Category: JUDGEMENTS

Mazwi and Others v Fort Beaufort United Congregational Church of Southern Africa and Another

Mazwi and Others v Fort Beaufort United Congregational Church of Southern Africa and Another (3865/2009) [2010] ZAECGHC 123 (10 December 2010)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

CASE NO: 3865/2009

In the matter between:

FEZILE MAZWI 1ST Applicant

BONGISWA PANGO 2ND Applicant

HEADMAN PANGO 3RD Applicant

KHAYALETHU NGWATA 4TH Applicant

MANDLEKHAYA NGECE 5th Applicant

MLINDELI SOLANI 6TH Applicant

MZOXOLO NYENYEKU 7TH Applicant

NOSIPHO KOTSWANA 8TH Applicant

PHILANI KAMANDE 9TH Applicant

SIPHOKAZI PHEZISA 10TH Applicant

XOLANI PRENS 11TH Applicant

NOLUTHANDO MGXOTHWA 12TH Applicant

SIBAHLE PEZISA 13TH Applicant

ZANEKHAYA SIBANE 14TH Applicant

TOLANI GOSANI 15TH Applicant

NTSIKELELO MLENZE 16TH Applicant

and

FORT BEAUFORT UNITED CONGREGATIONAL

CHURCH OF SOUTHERN AFRICA First Respondent

THE UNITED CONGREGATIONAL CHURCH

OF SOUTHERN AFRICA Second Respondent

_____________________________________________________________________________

JUDGEMENT

MAGEZA AJ

[1] In this matter the Applicants seek an order setting aside the First

Respondent’s suspension of their membership of the First Respondent

dated 8th December 2002 and the reinstatement of all Applicants herein

to the full and unfettered membership of First Respondent. On the

papers, this order is sought against First Respondent, alternatively the

Second Respondent.

[2] First Respondent is a local church situate at Fort Beaufort and is a

member of Second Respondent.

[3] Second Respondent in turn is a union of local churches, Regional

Councils, Synods and an Assembly.

[4] Second Respondent does not oppose the relief sought and

asserts that it has done all in its power to reinstate the Applicants to full

membership but has been unsuccessful due to the defiant stance adopted

by Reverend Hartland, Minister in charge of the First Respondent.

To its knowledge, the current legal proceedings are rooted in a dispute

that dates back 8 years and despite its best efforts, Second Respondent

as the principal ecclesiastical mother body to whom First Respondent is

affiliated, has been unable to compel First Respondent to readmit the

Applicants.

It appears to it that the level of animosity runs regrettably deep and has

over time, perpetuated an acrimonious state of affairs between and

among parties mired in the conflict.

BACKGROUND

In setting out this background, I am assisted by the Second

Respondent’s Answering papers which in their fullness provide a more

helpful background to the history of the dispute.

[5] The Applicants, described as a group of young church members,

fell into disfavour with the local governing executive of the

First Respondent over their concerns relating to a number of issues

involving, inter alia, suspected financial mismanagement, the use of a

church vehicle and the whereabouts of cutlery. The manner in which they

raised their concerns in turn raised the ire of the bulk majority members

of the First Respondent’s congregation and its leader Reverend Hartland

and the Applicants were suspended on the 8 December 2002.

The decision to suspend the Applicants was, in line with the Church’s

Constitution, taken by a General Members meeting of the First

Respondent and was premised on the Applicants alleged undermining of

the Church leadership including their own ward deacons and interim

youth structures.

[6] In May 2003, again in line with the Church’s Constitution, the Applicants

appealed to the Kei Regional Council which considered the matter and

ruled that the First Respondent’s suspension of Applicants had been

lawful. The decision of the First Respondent to suspend the Applicants

was thus endorsed by the Kei Synod.

[7] Applicants then appealed to the National Synod headed by Second

Respondent. This National Synod then set up in January 2004, what is

referred to as a Synod Commission, with the purpose of reopening the

matter by visiting Fort Beaufort, meeting the respective parties and

interviewing them with the objective of reconciling them.

It would appear from the papers that news of this was received with

surprise and hostility by Reverend Hartland and the congregation of the

First Respondent resulting in no resolution to this ecclesiastical

conondrum.

[8] As at January 2006 (3 years later) the differences between the

Applicants and First Respondent had not abated and First Respondent

came before this Court and secured an interim interdict preventing

Applicants from attending church activities pending disciplinary

proceedings against the Applicants. Applicants were furthermore

precluded from undertaking protest actions within 50 meters

of the First Respondent’s church grounds.

[9] In light of these developments, the Second Respondent appointed in

April 2006, a further Commission, the “Bulawayo Commission”, to

investigate what it called – the Fort Beaufort situation. The commission

paid a visit to Fort Beaufort between the 1st to 4th June 2006 and

reported to Second Respondent on or about the 14th September of that

year.

It was, consequent thereon, resolved that:

9.1 Reverend Hartland and the First respondent be instructed to

withdraw the Court interdict;

9.2 Reverend Hartland and the First respondent be instructed to

allow the applicants to participate fully in the activities of the

church in order to honour witness as the body of Christ.

9.3 the applicants be heard and their concerns be dealt with;

and

9.4 the applicants be instructed that their actions were

misguided.

[10] These resolutions were communicated to the parties in March 2007 and

were not met with enthusiasm or welcomed by the Reverend

Hartland and the First respondent but both groups nevertheless

committed themselves to a process of reconciliation.

A “reconciliation team” was appointed by the Second respondent to

facilitate a process of healing and reconciliation. The First respondent

was also requested to withdraw the interdict against the Applicants with

immediate effect and by no later than the 31st May 2007. The failure to

do so was that Second Respondent would suspend the First respondent

and Reverend Hartland without any further delay.

[11] On the 12 December 2007, with no resolution in sight, Second

Respondent suspended Reverend Hartland on the basis of what it says

was the Resolution of the Assembly of 19-22 March 2007 outlined

above.

Significantly, that Resolution provided for the possible suspension of

both the local church and its Minister.

Nothing on both the Applicants and Second Respondents papers sheds

light on why only part of the Resolution was put into effect and the First

Respondent was not suspended and/or disassociated from Second

Respondent. Be that as it may, Reverend Hartland approached the

South Gauteng High Court which set the purported suspension aside on

the basis, inter alia, that he had not been afforded his right to be heard

prior to the decision.

[12] Second Respondent in its Answer states at paragraph 25 that

“Rev Hartland is a former Mayor of the Fort Beaufort district

municipality and enjoys widespread support from both the First

Respondent’s congregants and the wider community. Due to the

popularity of Rev Hartland, UCCSA has tried to tread carefully for

fear of exarcebating the conflict which has the potential to erupt into

violence and bloodshed. Whilst stating this, UCCSA is mindful of the

fact that this diplomatic approach has not brought the Applicant’s

desired results which is why the UCCSA believes that the only way

forward is through resorting to the High Court in order to bring

finality to the dispute.”

At paragraph 42.3-4 Second Respondent states;

“UCCSA has sought to deal with this matter in every way short of the

disassociation and severance of the First Respondent. That remains

its goal”.

“Achieving this goal has not been an easy task considering

the support enjoyed by Rev Hartland as explained above. Legal

action to evict Rev Hartland from the manse and to interdict him

from entering church premises might have inflamed emotions and

triggered events leading to confrontation and violence which is why

this course of action has not been taken by the UCCSA to date.”

FIRST RESPONDENT’S REPLY

[13] Reverend Hartland in his capacity as First Respondent’s authorised

representative states the following that:

the congregation of First Respondent is vehemently opposed to the relief sought by Applicants. At the outset, he emphasises that such a reinstatement would lead to an “inevitable bloodbath” and the consequences would be “too ghastly to contemplate.” ; and

”It would be an extremely irresponsible and insensitive thing to do. Not only would it exarcebate the already tense and volatile situation between the two groups, characterized by occasional outbursts of violence, but it would also paralyze the progress our church has made to attend to the after-effects of the schism since the Applicant’s left.” ; and

He blames the Second Respondent for having dismally failed to exercise leadership and for believing that suspending him would lead to the resolution of the impasse; and

He furthermore states that;

“Presently the objective reality is that since 2002 the relationship between the two groups has deteriorated to such an extent that the Applicant’s group are no longer part of the First Respondent’s church. They daily boast of having no less than 200 members; they have their own place of worship and a priest who was appointed by the Second Respondent in 2008 to minister to their spiritual needs and to perform other attendant tasks a priest is normally required to carry out to the congregation in terms of our denomination.”

he has been a member of UCCSA since birth; was educated by the church; holds a Diploma in Theology and has always been a priest in the service of the church save a stint in the private sector and the period as Mayor of Fort Beaufort District. He has never been found guilty of any misconduct.

He has served the public in leadership positions in many capacities. Notably, in the 80’s he was detained under the then Emergency Regulations; served as Chairman and Secretary of the Kei Region; First Chairperson of the South African Synod between 2002-4; Chairperson of Border Council of Churches in the 80’s etc.

the Applicant’s group complained in 2002 about a vehicle and other church property which they alleged was being misused by certain members. This led to a stand-off and violent clashes with random attacks and some of the adversaries were charged with assaults and public violence and were convicted. Church services came to a stop as a result hereof. In his view, the Interdicts restraining the Applicants were for this reason necessary and that there has been no change in the Applicant’s attitude.

He furthermore asserts that;

“For those of us who are dealing with the situation on the ground, this is a life and death matter which can lead to the loss of lives if not handled carefully…”;

[14] Now from the First Respondent’s papers, it is clear that the

congregation as a whole continues to be acutely opposed to the

prospect of having the Applicants being reinstated to full membership

of the First Respondent.

[15] Furthermore it appears from its papers that in 2008, the Second

Respondent appointed a Minister and constituted the Applicants as

a distinct congregation with Constitutional status within the UCCSA.

A Reverend Mthana was introduced to the Applicants church by the Kei

Regional Council represented by Reverend Snyman. This has not been

denied by Second Respondent.

APPLICANT’S REPLY

[16] Applicant in reply seeks to understate the schism between the two

groups and the potential for more violence. It is of the view that the

reference in answer to;

“…the inevitable blood bath if the applicants are allowed back to Church”

appears to it to have been calculated by the First Respondent to

generate acrimony and hate and that it is a gross exaggeration and

unfortunate use of language. That the Applicants have pledged

themselves to peace and due process of the constitutional imperatives

of the Church and will do nothing which may serve to compromise that

peaceful process and the laws of Christianity; and states

“I submit that there would be no reasonable belief after the substantial period of time which has elapsed, and given the undertakings furnished, that there would be no further outbursts nor that the Church would be ‘paralyzed’ that harmony would not prevail. There is nothing tense or volatile about the situation at this stage and especially should it please this Honourable Court to grant relief in favour of the Applicants, all parties will be protected by the terms of that order.” (paragraph 11)

[17] Turning now to the Constitution of the Second Respondent, it is

necessary to highlight that this document is the bedrock on which the

governace of the church is premised and it sets out, inter alia, the

procedural processes to resolve disputes. This is the Constitution in

force as at the commencement of the dispute in 2002.

[18] Clause 1 defines the Second Respondent (UCCSA) as a union of the

following Churches:

18.1 church Aid Missionary Society of South Africa; and

18.2 the London Missionary Society of Southern Africa; and

18.3 Bantu Congregational Church of the American Board; and

18.4 the South African Association of the Disciples of Christ.

[19] Clause 2 defines the structure of the organisation as composed of local

churches, Regional Councils, Synods and an Assembly.

[20] Clause 3 states that a local church is;

20.1 recognised by the Assembly as a fellowship of members of the

Church gathered in a particular locality for worship, witness and

service. A local church may consist of one or more

congregations. (my underlining).

and can be formed

20.2 at the request of existing local churches, on the

recommendation of the appropriate Regional Council, or by a

Regional Council in terms of any one or any combination of the

following (my underlining).

20.2.1 division of the existing church;

20.2.2 establishment and constitution of new congregations

and local churches;

..

[21] Procedure 17 of the Constitution is titled “TROUBLE IN A LOCAL

CHURCH” and sets out an investigations mechanism and provides

a sanction.

The parts relevant to this are as follows:

21.1 “When the Secretary of a Synod/Regional Council has

reason to believe that there is serious trouble in a local

church, he/she reports it to the Administrative

Committee of the Synod/Region concerned which

institutes a full investigation.” (clause 17.1)

21.2 Certain steps are then outlined in relation to how the

process is to proceed with regard to the right of each

party to be heard whereafter the following sanction is

set out as available to the church in the event of

non-cooperation by one or other of the belligerents.

21.3 “When the Administrative Committee of the

Synod/Region is satisfied from the written report of the

investigation that there is serious trouble in the church,

it reports its findings to the local church, the

complainants and the Assembly Executive Committee”.

(clause 17.2.7)

21.4 “Should a local church refuse to accept a full

investigation or to abide by the award given, such

local church may, by the decision of the Assembly,

upon the recommendation of the Synod/Regional

Council concerned, be disassociated from the United

Congregational Church of Southern Africa.”

(clause 17.2.10)

[22] It is clear that the Constitution of the Second Respondent is exhaustive

and provides for a variety of possible outcomes and adequate sanctions

in the event that difficulties confront the church in its lower structures,

that is, in local churches.

[23] Constitutions of voluntary associations such as ecclesiastical entities are

revised from time to time in order to set out as far as is foreseeable,

remedies to deal with possible disputes and conflict. Once members

join the church, they subject themselves to its restraints.

These Constitutions provide the Church with the rules framework with

which to deal with all matters of discipline, faith and adherence to

ecclesiastical norm and custom. Once it is shown in specific cases that

the Church in dealing with a dispute followed the correct internal

procedures, Courts will not readily interfere. Voluntary associations

are provided with a wide berth to deal with faith related matters in an

as appropriate a manner as is possible based on the tenets accepted

by the members thereof.

Courts will intervene where there is a discernible deviation from the

governing Constitution or where there is a failure to implement them

resulting in an injustice to one or more of its members. In many of

these Constitutions, the rules will stipulate that internal remedies be

first exhausted by a member before resorting to the Courts. Whether or

not possible remedies are exhausted is always a matter that varies from

one instance to the other but can be easily discerned from the facts.

[24] In Yiba and Others v African Gospel Church 1999 (2) SA 949 (C)

the Court, per Schippers AJ set out the following at page 960 E:-

“In summary, the principles are these:

A voluntary association is founded on the basis of mutual agreement which entails an intention to associate and consensus on the essential characteristics and objectives of the association (Joubert (ed) The Law of South Africa first re-issue vol 1 at 303 para 455; Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645B-C, 645H-646A; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere 1976 (2) SA 1 (A) at 25B).


An association has no inherent power to conduct disciplinary proceedings and to punish a member (Durr en Andere v Universiteit van Stellenbosch en ‘n Ander 1990 (3) SA 598 (A) at 608B-609A). The constitution of the association and its rules and regulations determine what violations of the rules by members warrant disciplinary action being taken against them, how the domestic tribunal entrusted with the investigation of such violations is to be constituted, the procedure to be followed by the tribunal in the exercise of its functions, and the penalties to be imposed for a violation of the rules (The Law of South Africa (op cit at 310 para 467)).
…”

It must in my view be added that, the decision maker in an

ecclesiastical tribunal charged with the responsibility to hear matters

where a dispute is arbitrated, must follow the Constitution and where

sanctions are provided for, must apply such according to the letter of

the Constitution without unduly and irrationally deviating therefrom.

This promotes certainty and with that, an unbiased application of the

churches’ rules and covenants to which all members have elected to be

bound. Once an adverse finding is made pursuant to a lawful internal

hearing, the legislated sanctions must be fairly and consistently applied.

The ultimate responsibility for this lies with the Church Executive, Synod

or Assembly as the upper guardians of the Constitution.

[25] When one has regard to the history of this matter following the dispute

in 2002, it is possible to summarise the material conclusions capable of

being drawn as follows:

A properly constituted hearing took place in

December 2002 leading to the suspension of

the Applicants.

(ii) A properly prosecuted appeal to the Kei Synod

was heard and dismissed by that Synod in May

2003.

A further appeal to the National Synod resulted

in the Second Respondent reopening the

matter and resolving to follow a path whose

end objective was re-integration and

reconciliation.

Following the appeal to the Assembly the

Second Respondent sought to reopen the whole

matter with a view to seeking to persuade the

parties to make peace and to reconcile.

This course has not been successful and the

schism remains alive.

First Respondents’ collective congregation does

not accept the Second Respondents’ ambitions

and are also firmly behind its leader the

Reverend Hartland. In attempting to reopen

and to resolve the dispute, Second Respondent

has wholly underestimated the commitment of

the congregation and erroneously sought to

isolate Reverend Hartland (whom it sought to

suspend without following its own Constitution)

and has now been paralysed by the response.

(viii) Second Respondent has unduly leaned

towards a conciliatory solution and

underestimated the depth of the distance

between the belligerents. This has been

viewed by First Respondent and Reverend

Hartland as undermining its moral authority

over the Applicants.

An opportunity existed for the Second

Respondent to follow its own Constitution and

its own resolution of the 19-22 March 2007 and

to suspend both the First Respondent and

Reverend Hartland if it felt so disposed. Second

Respondent failed to implement the full terms

of the resolution and this led to a successful

challenge by Reverend Hartland of his

suspension before the South Gauteng High

Court.

[26] The common consensus between the First Respondent and the Second

Respondent is the ever present prospect of violence if the parties were

to be forcefully reintegrated. Applicants conveniently downplay this

prospect. No doubt the levels of hatred have set over the years and a

sudden and abrupt unmonitored reintegration may well create an

opportunity for more violence resulting in possible injury and loss of

life. Moreover, in light of the vast period of time that has elapsed, and

the appearance that life has moved on fundamentally since 2002, a

reintegration may not be practical.

[27] Furthermore, First Respondent asserts that Second Respondent

has already put in train a process by which the Applicant’s have

what now amounts to their own congregation. This has not been

disputed by the Applicant’s nor by the Second Respondent and the

Court must assume there is some truth in the assertion. This

is a solution that is clearly available to the Second Respondent as the

guardian of the Constitution of the church. It is a Constitutionally

competent alternative remedy which the First Respondent says has

been implemented. If that is so then this Court has no need to grant

the order sought. If this is not the position then the question is why

not. Second Respondent is enjoined to promote the full tenets of its

Constitution and to implement each such available remedy.

[28] Applicant, in any event seeks final relief as against the First Respondent

and, in the alternative the Second Respondent. In those circumstances

it is clear that the matter must be decided on the facts as stated by the

Respondents, together with those facts stated by the Applicant which

Respondents do not deny. – See Plascon-Evans Paints Ltd. v Riebeek

Paints (Pty) Ltd 1984 (3) SA 623 (AD) at 634.

[30] I am also concerned with the fact that the Applicants were lawfully

suspended in December 2002 and this decision was later ratified by the

Kei Regional Council. Nowhere in its papers does the Second

Respondent or Applicants state that the decisions of the local

and Regional structures were ever formally overturned or if the

Applicants ever reapplied to commence with any process of atonement

after the Kei Synod suspension. What the Second Respondent states is

that the Assembly resolved to reopen the matter with a view to

promoting reconciliation. It does not say it set the Kei decision aside. In

its papers the Applicants have failed to deal with this background and in

fact sought to downplay its relevance to the current proceedings.

Whether or not on the papers before me the Applicants have a right to

the relief they seek, as against First Respondent, is also of doubtful

import.

Taking into account all the aforegoing, I am of the view that Second

Respondent has at its disposal sufficient Constitutional outcomes and

remedies to guide it in concluding this dispute and these are set out

succinctly in its own Constitution. It has hitherto failed to follow its

own resolutions and Constitution without a discernible rationale.

Furthermore, I am not convinced that the Applicants are entitled to the relief

sought for reasons set out above.

In the result, I make the following order:

The application is dismissed
Each party is to pay its own costs

___________________

MAGEZA AJ

10 DECEMBER 2010

APPLICANTS ATTORNEYS MICHAEL RANDELL ATTORNEYS

C/O BORMAN NEVILLE & BOTHA

APPLICANTS COUNSEL MR S COLE

FIRST RESPONDENTS ATTORNEYS DULLABH ATTORNEYS

FIRST RESPONDENTS COUNSEL MR N SANDI

SECOND RESPONDENTS ATTORNEYS WEBBER WENTZEL

C/O LEGAL RESOURCES

CENTRE

SECOND RESPONDENTS COUNSEL MR BOSWELL

S v Hute

S v Hute (CC 93/2011) [2012] ZAECGHC 79 (9 October 2012)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

CASE NO: CC 93/2011

In the matter between:

STATE

and

MICHAEL HUTE Accused

____________________________________________________

SENTENCE

____________________________________________________

MAGEZA AJ:

[I] In this matter the accused has been found guilty by this court on one count of rape of his minor daughter who was 7 years of age at the time.

At the outset, it is appropriate that this court expresses its appreciation for the commendable efforts of a non-governmental agency named the National Association of Child and Youth Care Workers Association situate within the Alexandria area. This Youth Care Workers Association employs one Ms Nomzikazi Cynthia Geleba, whose commendable selflessness led to the discovery of the victim’s predicament.

[2] This court in convicting Mr Hute of the rape, commented that Ms Geleba’s work involves going door to door within the community assessing each family’s state of means or levels of poverty. Her work includes assessing possible instances of the abuse of children and women in the local households.

She knew the family of the victim and they lived in a two roomed shack in Jikololo Street, Kwa-Nonkqubela Township in Alexandria. She was also familiar with the victim’s parents including the unemployed mother, one Kaytie Du Plessis, herself (as was Mr Hute), unfortunately an honeybrew beer– ‘Iqhilika’ addict.

[3] The dire existential reality of this family has already been canvassed in the principal findings of this court. She said there are a significant number of poor households in the area where this young bright victim and her parents live and that her parents are addicted to ‘Iqhilika’, (honey-brewed beer) which they drink and acquire from different places within the community all the time. The complainant’s parents were in the habit of taking her along during their daily drinking binges throughout the day.

[4] As a result of this, she had initially arranged with the parents for the child victim to stay over at her home each Friday and she thereafter enrolled her at the Khayalethemba Centre, this until the complainant came to stay with her after the 7th of May 2011 and following the sexual assault first coming to light and being reported to the Police.

[5] When the victim failed to attend the Centre for some days and only attended on the Friday 6th May 2011, she noticed that the child could not walk properly and kept brushing and scratching her private parts and the witness realised something was seriously amiss.

[6] Ms Geleba described the child prior the incident as by nature generally very active, jovial and intelligent. I noted in my principal findings that whilst testifying through an intermediary, she impressed me as bright, talkative and playful. She was obviously a very intelligent little girl who related her version of events with comfort. This may be so because she may have felt safe after being assured subsequent to being admonished. From the psychological assessment done by the clinical psychologist, it may well be that, as we shall see, this was not indicative of her real day to day responses to the sexual violation by her father.

[7] In aggravation of sentence, Ms September for the state introduced into evidence, the Victim Impact Report compiled by Clinical Psychologist, Ms Pumza Sakasa who interviewed and assessed the victim. The report does not provide for optimism and expanding on the effects of the rape, it details behavioural and emotional changes as follows:

“She is tearful most of the time. They find her very sensitive and touchy. She reported feeling sad and unhappy most of the time. She appears depressed. She is absent-minded and forgetful at times. She is withdrawn and keeps to herself most of the time. She reports feelings of shame and embarrassment.”

There are many more symptoms outlined such as ‘nightmares’; headaches, stomach cramps and abdominal pains regularly experienced by the child.

The conclusion of Ms Sakasa is that:

“Miss Hute impressed as clinically depressed. Her clinical presentation and description of her behaviour since the incident suggests that the rape has affected her significantly…”

In her testimony, Ms Sakasa emphasised the gravity and long-term effects of rape at such a tender age before the child has had the ability to form and develop her own character and the impediments this introduces prior to this necessary phase in the life of a girl child. She said she thereafter becomes fearful not only of the father, but also of male persons in general, thereby becoming ultimately incapable of nurturing trust in relationships with men. She said to overcome this, the child would require consistent and continuous counselling, a service not available in the resource-strained Alexandria neighbourhood in which she was born.

[8] This immediately brings to mind the words of Cameron JA (as he then was) in S v Abrahams 2002 (1) SACR 116 (SCA), where at para 17 he stated:

“Of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter. But it is a position to be exercised within reverence in the daughter’s best interest, and for her flowering as a human being. For a father to abuse the position to obtain forced sexual access to his daughter’s body, constitutes deflowering in the most grievous and brutal sense”

Furthermore he went on to say:

“… the fact that family rape generally also involves incest … grievously complicates its damaging effects … Deep social and religious inhibitions surround it and stigma attends it. What is grievous about incestuous rape is that it exploits and perverts the very bonds of love and trust that the family relation is meant to nurture.”

[9] The Medico-Legal (J88) findings noted by Dr Nadker were that although the posterior fouchette was inflamed and with fresh bruising, there was sufficient indication of force applied to the vagina without penetration. The hymen still remained intact but there was penetration past the labia majora at the entrance of the vagina.

[10] Section 51(1) of the Criminal Law Amendment Act 105 of 1997 provides for a sentence of life imprisonment in the case of the rape of a girl under the age of 16 years, save where there exist substantial and compelling circumstances (which must be entered on the record) justifying the imposition of a lesser sentence than that prescribed – section 51(3)(a) of the Act.

[11] It is also universally accepted that courts are required to regard the prescribed sentences as being appropriate for crimes specified and enjoined not to depart unless there is weighty justification. –see S v Malgas 2001 (1) SACR 469 (SCA); S v Nchenche 2005 (2) SACR 386.

[12] “The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetuating an injustice. Once a court reaches the point where unease has hastened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case renders the prescribed sentence unjust, or as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If it is the result of a consideration of circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.” – Marais JA in S v Malgas (supra) para 22.

[13] What are these relevant broad circumstances that the court must evaluate in this matter?

13.1 Mr Xozwa appearing for Mr Hute put in a commendable effort and left little in his representation of the accused unattended. I do not think the accused himself took advantage of this opportunity and throughout the trial he appears to have viewed the proceedings almost as an act of Ms Geleba, the child victim and mother lining up to accuse him with lie after lie.

This was his attitude to the end and he made no concession on even the most benign observations such as their addiction to ‘Iqhilika’ and the constant visits by Ms Gelebha at their home.

13.2 The state has proved a long catalogue of some 15 previous convictions involving theft and assaults against the accused. I will accept that these date back to his early childhood starting from the age of 18 and the last of these was a conviction in October 1993 relating to the theft of livestock for which he was sentenced to a two year term of imprisonment.

Whilst he commendably managed to keep away from the clutches of the law until the present rape in 2010, the underlying psychological foundation of these historical offences displayed itself before this court from inception to the conclusion of these proceedings. Mr Hute is simply unable to own up to any of his detrimental misdeeds.

13.3 The pre-sentence report compiled by Ms Fundiswa Matisi, a senior probation officer and handed into court by agreement reflects a long list of persons interviewed. All of these people are associated with the accused as relatives, previous employers and neighbours both in Alexandria and at Rocklands in Uitenhage where he was at some stage employed. His entire life appears to have been lived in a turbulent bubble. He is described in the interviews conducted by all and sundry as someone who has always been untruthful and dishonest. The probation officer reports that he displayed a knack for being untruthful even on his background. He appears to be regarded generally as someone abusive to his girlfriend (victim’s mother) and her female siblings.

13.4 He has a standard 1 education and is now 50 years of age. He was born in Alexandria with an absent father and both biological parents neglected him. His mother abandoned him and in his youth, his caregiver was his paternal grandmother. He met the mother of his child whilst employed at Uitenhage. He lived in a dishevelled shack with the victim and mother earning R290 per week supplemented by a social grant.

13.5 Although he admitted the previous convictions referred to above in this court, he denied any knowledge of these when they were put to him by the probation officer in the process of collating this pre-sentence report.

When regard is had to the pre-sentence report, indicative as it is of a life spent to date in conflict either (earlier in his upbringing) with law and generally in his adult life in constant conflict with those close to him; the breakdown in relations with all of those around him; the severity of the crime committed on his own daughter with its long-lasting debilitating effects and the denials to the end, the question is what is redeeming or ameliorating and gives hope in the accused for instance becoming a better person whilst in prison, really very little if any. Can there be said to exist substantial and compelling circumstances as contemplated in the Act, I think not.

[14] The prospects of rehabilitation of an accused is always a factor that a court must take into account in the process of sentencing and this is equally so in cases falling under the Criminal Law Amendment Act 105 of 1997.

I do not see how someone who refuses to acknowledge offending can appreciate the wrongfulness of their conduct or have the type of insight rendering him amenable to rehabilitation.

[15] I have already alluded to the injuries occasioned the victim and by all accounts clearly she is thankfully fortunate not to have been more injured and thus less permanently physically scarred. This is a fortuitous circumstance happily leaving less physical scarring and not one favourable to the accused.

[16] In all the circumstances and the offence falling within the purview of section 51 (1) and this court being unable to find any substantial and compelling circumstances from what is outlined above, this court is obliged to impose the sentence of life imprisonment.

[20] The accused is thus sentenced to a term of imprisonment for life.

___________

MAGEZA AJ

09 OCTOBER 2012

FOR STATE – MS M. SEPTEMBER

FOR ACCUSED – MR XOZWA [LEGAL AID].

Ngqondela v Road Accident Fund

Ngqondela v Road Accident Fund (1170/2008) [2010] ZAECPEHC 82 (1 March 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, PORT ELIZABETH)

CASE NO: 1170/2008

In the matter between:

FUNDISWA RIGINA NGQONDELA PLAINTIFF

and

THE ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

MAGEZA AJ:

[1] This is a claim for loss of support arising from the death of Mongameli Jackson Ngqondela (plaintiff’s deceased husband), who died in a motor collision which took place on 2 May 2004 at KwaNobuhle, Uitenhage within the jurisdiction of this court.

[2] Plaintiff, a businesswoman and widow, sues in her own right.

[3] The defendant is the Road Accident Fund, a juristic person in terms of section 2 (1) of Act 56 of 1996.

[4] Counsel for the plaintiff, Mr Frost, and this was confirmed by the defendant’s counsel, advised the court that liability in respect of the negligent conduct of the Insured’ driver was admitted by the defendant thus disposing of the necessity for an enquiry into the merits. The merits, in so far as they relate to the death of the deceased, are therefor conceded by the defendant. It is common cause that deceased was married to the plaintiff in community of property; that during his lifetime he was legally obliged to contribute to the maintenance and support of the plaintiff; that deceased in fact did contribute such maintenance and support,

[5] The issues in dispute, are (a) the question of damages to be awarded and (b) whether or not the deceased at the time of his death, had the means to provide the support and if so, the extent of the ability to so provide.

[6] An actuarial certificate of Dr Robert Koch was by agreement handed into court and this sets out the nett required support at R129 104.00.

[7] The plaintiff then sought leave to lead evidence in respect of deceased’s ability to provide the support and the basis for an amount as an award.

[8] The first witness called, Tololo Mzimkhuiu Sirayile, testified as follows:

8.1. He lives in Ponana Street, kwaNobuhie, Uitenhage and knew the deceased as a close friend with whom he also lived as neighbours for many years prior to deceased’s death.

8.2. Mr Sirayile, together with deceased had been in the employment of Volkswagen (SA), a motor vehicle manufacturer whose production plant is situate in Uitenhage from 1978 until 2000 when they were retrenched. The deceased’s salary at Volkswagen was approximately R750.00 per week. The witness testified that to date there remain some unresolved issues with Volkswagen pertaining to their retrenchment. He could not give full details regarding the nature of these.

8.3. Following the retrenchment, both the witness and the deceased decided to enter the informal transport industry by purchasing vehicles (sedans) that they used as taxis, albeit unregistered taxis transporting passengers in and around the townships.

8.4. The deceased bought a used Opel Kadett which operated as a “Jikeleza”, that is a private unlicensed taxi doing township rounds. This vehicle was in operation from sometime in 2000 until the death of the deceased in May 2004. The witness conceded that the vehicle was in the latter stages of deceased’s life experiencing breakdowns from time to time but was adamant that it continued to operate.

8.5. According to the witness, deceased himself did not drive and employed a driver whom he paid 10% of the day’s takings. These takings were varied but to his knowledge, were on average approximately R100. At times the amount was more, but sometimes less. The vehicle operated between Monday to Friday and not weekends, during which time he and the deceased attended funerals and other functions together.

8.6. The witness testified that being neighbours and close friends, they spent most of their social time together and confided in each other. He is also familiar with deceased’s family and knew the deceased as someone who always provided the necessary financial and related support for his family.

[9] Under cross-examination, he stated that the Opel Kadett was sold to “chicks” scrapyard after the death of the deceased.

[10] The second witness, Zukiswa Ngqondela testified:

10.1. That she is the deceased’s daughter and was born on 7 March 1981. Plaintiff is not her biological mother but she refers to her as her mother.

10.2. Until May 2004 she lived with deceased and plaintiff and was also supported by deceased. Plaintiff was not employed and the deceased supported the family and paid her tuition fees at Vista University where she was a student from 2003.

10.3. Following deceased’s death she had to abandon her tertiary education endeavours in 2004 and is now employed by a cleaning company.

10.4. The witness confirmed deceased owned a vehicle operated as a “Jikeleza”. According to her evidence, the vehicle was a good sedan and did not breakdown regularly. She said the vehicle experienced problems later on prior to deceased’s death. The deceased fully supported her and plaintiff and his death resulted in the loss of the said support.

[11] Both witnesses gave their evidence in a calm and relaxed manner. They were not doubtful or uncertain in their responses both in their evidence in chief and under cross-examination. It was clear that what they testified to was within their personal knowledge gleaned in the course of a practical lifelong relationship with the deceased. They did not exhibit any inclination to tell anything other than what they knew as fact. I have no reason to doubt the veracity of their testimony. It is clear therefrom that the deceased was a devoted husband, father and provider to his family. He had been employed for a lengthy period at Volkswagen, Uitenhage, being unfortunately retrenched in 2000. His misfortune did not induce despondency but ignited an entrepreneurial streak no doubt lit by his consciousness towards the responsibility of providing for his family. He acquired a vehicle which he put into use as an informal taxi.

[12] The business of the deceased was informal in nature and there was no specific licence that was issued by the authorities.

[13] In Dhlarnini v Multilateral 1992 (1) SA 802 (T) at 806 D-G:

“Dit blyk dus dat die oorledene die onderhoud was hy gedurende sy lewe aan eiseres en sy kinders voorsten het, nie op wettige wyse verdien het nie. Aan die hand van Dhlarnini en 7? Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A) en Santem insurance Ltd v Ferguson 1985 (4) SA 843 (A) het mnr Terblanche, namens verweerder, betoog dat die eiseres se eis derhalwe van die hand gewys behoort te word.

Mnr Geach, namens eiseres, het egter betoog dat die oorledene werk as ‘n wettige huurmotorbestuurder sou kon verkry het en dat hy in so ‘n geval ook R800 per maand sou verdien het. Gesien die getuienis van Prinsloo dat dear ‘n tekort aan sulke bestuurders was, meen ek dat die oorledene, op die waarskynlikhede, wel so ‘n werk sou gekry het. Die feit dat oorledene vanaf 1986 tot sy dood in Mei 1998 onwettige huurmotorwerk verrig het, kan wel in ag geneem word as ‘n anduiding van die oorledene se verdienvermoe (kyk Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A) op 964D-E.”

[14] In Griffiths v Mutual & Federal Insurance Co Ltd 1994 (1) SA 535 (A) at 546F it was stated by Vivier JA that:

“In a case where there is no evidence upon which a mathematical or actuarially based assessment can be made, the Court will nevertheless, once it is dear that pecuniary damage has been suffered, make an award of an arbitrary, globular amount of what seems to it to be fair and reasonable, even though the result may be no more than an informed guess. (See Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 113G-114E and the cases there cited).

[15] In Roxa v Mtshayi 1975 (3) SA 761 (A) Corbett JA said at 769G that:

“While evidence as to probable actual earnings and probable potential earnings (but for the injury) is often very helpful, if not essential, to a proper computation of damages for loss of earning capacity, this is not invariably the case.”

[16] In the present case deceased operated an informal passenger conveyancing business which at the very least enables the court to assess his earning capacity. The certificate of Dr Koch submitted by agreement is helpful in this regard. This certificate sets out the quantum.

In the result:

The claim succeeds and plaintiff is awarded damages in the sum of R129 104.00.
Defendant is to pay costs including Dr Koch’s qualifying fees.

P T MAGEZA

ACTING JUDGE OF THE HIGH COURT

Counsel for the Plaintiff: Adv Frost

Attorneys for the Plaintiff: Lessing, Heyos, Keyter & Van der Bank Inc

14 Baird Street UITENHAGE

Counsel for the Defendant: Adv Van der Linde SC

Attorneys for the Defendant: Boqwana Loon & Connellan

4 Cape Road

PORT ELIZABETH

Heard on: 16 February 2010

Delivered on: March 2010

Odendaal v Battiss (

Odendaal v Battiss (EL 410/2009, ECD 201/2009) [2011] ZAECELLC 16 (6 December 2011)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – EAST LONDON CIRCUIT

CASE NO: EL 410/2009

ECD 201/2009

Dates Heard: 18 & 19 October 2011

Date Delivered: 6 December 2011

In the matter between:

WILLEM JACOBUS ODENDAAL APPLICANT

and

GRACE BATTISS in her capacity as parent of

minor child P B O RESPONDENT

___________________________________________________________________

JUDGMENT

___________________________________________________________________

MAGEZA AJ:

Applicant approached this Court in May 2009 for a declaratory order the terms of which were set out as follows:

“1. Declaring that the Applicant is the holder of full parental rights and responsibilities in respect of the minor child, namely P B O [“the minor child”] as envisaged in sections 18[1] and 18[2] of the Children’s Act, 38 of 2005;

That the Respondent be ordered to immediately restore the status quo ante in respect of the Applicant’s rights of contact with the minor child such that the Applicant may exercise contact as follows:-

2.1 One full weekend per month commencing immediately from Friday at 17h00 until Sunday at 17h00; and

2.2 Telephonic contact at all reasonable times;

In addition to the relief sought in paragraph 2 above the Applicant be entitled to exercise contact with the minor child as follows:

3.1 Half of every school holiday;

3.2 Every alternate short school holiday;

3.3 On Father’s day;

3.4 On the minor child’s birthday;

3.5 On the Applicant’s birthday;

3.6 Every alternate public holiday.

…”

The matter came before Revelas J on the 24 November 2009 on which date, based on an agreement between the parties that there existed in the matter material disputes of fact, the matter was referred to trial for the hearing of oral evidence.

On 18 October 2011, for reasons more fully set out herein, Applicant brought a fresh application by way of an amended Notice of Motion seeking the following relief, namely:

“1. declaring that the Applicant is the holder of full parental rights and responsibilities in respect of minor child P B O (“P”) as envisaged in sections 18[1] and 18[2] of the Children’s Act 38 of 2005;

directing the Respondent, with immediate effect, to submit herself and P to the integrative therapy recommended by counselling psychologist Lynda Graetz (“Graetz”) in her report dated 28 June 2011;

as against the issue of a report from Graetz that the undermentioned access is in the best interests of P, directing that the Applicant shall be entitled to exercise rights of reasonable access to P, including, but not limited to the following, namely:

one full weekend per month commencing from 17h00 on a Friday to 17h00 on a Sunday;
telephonic contact at all reasonable times;
half of every long school holiday per annum; Christmas and the July holiday to alternate between the parties;
one long school holiday per annum;
on the Applicant’s birthday and on Father’s day, in the event that the Applicant is not ordinarily having contact with P;
P birthday to be shared between the parties.

…”

This is the application before me.

Background

Applicant is the father of the minor child P, born to him and the Respondent out of wedlock on 21 June 2003. At the time of the child’s birth, the parties resided together in Cape Town where the Respondent had full-time employment whilst Applicant was employed on part-time basis. Some 7 (seven) months after the birth of the child and in January 2004, according to Applicant, Respondent expressed a desire to return to Johannesburg as she felt she needed the support of her family and friends. The parties moved to Johannesburg and, presented with financial constraints occasioned by the Applicant’s being unemployed, they took up residence in the Respondent’s father’s converted double garage in Melville.

In June 2004, the financial difficulties not abating, Respondent elected to terminate their romantic relationship but for some reason, moved (together with Applicant) out of her father’s property to live in another property which they shared sleeping in separate bedrooms.

The couple finally parted in July 2005, and the Applicant states that he subsequently continued to enjoy normal and regular access to the child two or three times a week and each weekend, for the entire weekend when the child would be with him. During this period Applicant asserts that no conflict existed between him and Respondent and that they continued to enjoy a friendly relationship with a routine that availed Applicant regular and unrestricted access throughout the years 2005 to mid-2008. Each of the parties found new love and settled into new relationships.

At the commencement of 2008 the child, having attained the age of 5, was by agreement enrolled at Grayston Primary School in Sandton, Johannesburg and the Respondent was responsible for transporting him to and from school. He says he generally spent afternoons with the child until Respondent returned from work. At all times associated with this period the contact arrangements were flexible, relaxed and without incident. Their relations, according to him, were most cordial and civil.

It is also common cause that in June 2008, the Respondent informed Applicant that she had found new love and intended to relocate to East London in order to pursue this new romantic relationship. Although Applicant says this was an unwelcome surprise, this led to a draft agreement aimed at regulating access (contact) and associated matters pertaining to the child’s welfare being discussed and prepared.

In July 2008 on Applicant’s birthday, he arranged a small party at his home with family and friends and the child was present. In the course of the evening he found the child engaged in an act of oral sex with another boy of the same age in a shed in his garden. He advised the Respondent of the incident that very evening.

This incident set off a chain of events which ultimately led to the Respondent denying Applicant access and contact with the child. Immediately after the shed incident Respondent, no doubt out of grave concern for P, arranged for the child to be assessed by a child psychologist, one Dr Deborah Bernhardt, whilst still in Johannesburg. Dr Bernhardt consulted once with Applicant, Respondent and the child with a view to providing a preliminary assessment and report. Her report is dated 13 August 2008. Some of her pertinent observations were that:

“P’s disclosures indicate that P has been exposed to sexual information inappropriate for his age. This in itself can be an indication of sexual molestation. P did not identify a perpetrator, beyond naming particular boys at his school who he claims to have introduced him to these sexual games.”

It furthermore emerged in the interview that there had been other similar incidents at his school and that:

“most of the sexual acts occurred at school on the jungle gym and that they had also occurred in his father’s tool shed… P’s disclosures do not seem to indicate that he was intimidated or forced into these sexual encounters with the other boys but that he did so willingly…”

Dr Bernhardt recommended that P should undergo evaluative therapy for approximately 6 months and that he remain in the primary care of Respondent with access by other parties supervised by Respondent.

The report was followed five days later by a letter dated 18 August 2008 from Respondent’s Johannesburg legal representatives wherein they intimated that Respondent was no longer prepared to sign any agreement regulating access as Applicant’s rights were set and regulated by statute in sections contained in the Children’s Act; that their client had never denied Applicant access to the minor child; that Applicant is an extremely aggressive individual who is a drug addict continuing to use unlawful drugs; that Appellant is,

“…unstable and has demonstrated himself to be sexually deviant towards our client and demonstrated further that he had sexually deviant thoughts with regards to minor children in particular, which is obviously disturbing in the circumstances.”

and;

“Our client and the psychologist who evaluated your client advise that your client has an aggressive attitude; one way in which this is displayed is by your client’s violent conduct towards his dogs. The minor child role models his father’s conduct and your client is influencing the child negatively”

In addition that;

“Your client’s attitude towards sex and the minor child’s behaviour was disturbing. Our client is aware of certain comments that the minor child has disclosed to her about your client ‘touching’ the minor child in a way that the minor child is unhappy with. Your client has informed the minor that the ‘bum game’ he plays is acceptable to be played with children of the female sex but not the male sex…”

furthermore;

“We deny that our client is acting in any way that is contrary to the object of the Children’s Act as we repeat that our client is not denying your client access to the minor child.”

lastly;

“… In the circumstances, your client can exercise supervised access to the minor child as follows:

Every alternate weekend where your client can attend at our client’s residence in East London on a Saturday from 12h00 to 14h00… and on the Sunday of such weekend … at a child friendly venue at 09h30 to 11h00”

Once resettled in East London, Respondent through her East London attorneys, revised her proposal and made the determination that contact with the child be only by means of one telephone call conducted over a speakerphone or alternatively recorded to ensure that the conversations are appropriate and, supervised contact by a social worker at unspecified mutually agreed times.

In February 2009, the Respondent applied for and successfully obtained an order in terms of section 4(1) of The Domestic Violence Act 116 of 1998 prohibiting Applicant from having any contact with the minor child. A perusal of the said Application contains at paragraph 5 the following reasons and information provided by Respondent to the authorities:

“A case is pending with the Child Protection Unit, with Inspector Rudi van Dyk. It has been disclosed by the minor that his father performed sexual activities in front of and with the child. Namely masturbating and watching pornography; as well as masturbating and rubbing the child. These actions appear to be sexual grooming. It has taken over 7 months for this child to disclose as the father threatened the child.”

Respondent’s answer.

Respondent’s opposing papers were filed on 22 July 2009 and therein she makes the following averments, that:

14.1 the Applicant’s contact with the minor child has been suspended pending further investigation into the alleged sexual abuse by the Applicant of P;

14.2 taking into account the reports of various independent experts and evidence that has since become available, she believes it is not in the child’s best interests that contact with Applicant should be reinstated;

14.3 a South African Police Services investigation is being conducted together with various law enforcement agencies co-ordinated by the ‘Family Child Centre’.

14.4 the minor child’s East London therapist and the police investigator had disclosed to her that the child revealed during consultations that Applicant watched pornographic material and masturbated and ejaculated in front of the minor child.

14.5 she believes Applicant has launched the application for access so as to gain access to the minor child in order to continue his sexual abuse of the child.

Respondent goes on to say:

“P to this day does not speak to me of the events. He only discusses this with the therapist/investigator and I believe the Applicant has made some sort of threats to P should he ever disclose this to me. I believe the Applicant has some sort of hold over P, be it threats or whatever, and that he possibly wants to reinforce this hold before the criminal case comes to Court.”

Respondent also takes issue with a number of the Applicant’s assertions relating to the background to their relationship prior, and subsequent to, the birth of P. She however acknowledges that following on the consultations with, and report of Dr Deborah Bernhardt, she was quite comfortable affording the Applicant supervised access as per her communication dated 4th August 2008. For purposes of my finding, it is not necessary for me to dwell into all the secondary background, save to say Respondent denies that they had a good relationship throughout the period after P’s birth and their move to Johannesburg, nor whilst living together, both at her father’s home in Melville and later in Midrand. She denies that Applicant had the degree and extent of access that he paints in his founding papers.

She avers that although P loves his father, he was not happy staying overnight at his house. She states that Applicant has been aggressive towards her and that he is a regular drug user. She admits that she herself underwent psychometric testing with a clinical psychologist, Ms Pat Hill in East London on her relocation thereto. The report furnished by Ms Hill states, inter alia, that:

“The profiles suggest that Grace (Respondent) has a very low self-esteem and tends to be submissive, doubting her own adequacy as a woman. She tends to be anxious and tense, highly-strung and jumpy. She is vulnerable to real and imagined threat. She will tend to anticipate problems before they occur and may over react to minor stress. Depression is evident, although these symptoms and those of anxiety, are probably less evident since Grace has been on the prescribed medication.”

Respondent emphasises that Applicant has, as a matter of fact, sexually abused the minor child and cites as an example another incident during which she had availed Applicant unsupervised access whilst Applicant was visiting in Cintsa, East London. She says the child returned sunburnt and complaining of an itchy penis.

Respondent concludes by stating that the minor child was continuing a therapy program with Ms Lize Basson to help him recover and to become a mentally and emotionally healthy, happy individual that can interact socially with his peers. Finally, she says investigations by the Police Services are ongoing and it is her stated view that:

“criminal proceedings must take their course and whilst I personally would like to see the Applicant facing the consequences of his actions in a Criminal Court, my primary concern is with P. I do not want my child to be subjected to further sexual abuse or any form of mental or emotional trauma”.

A confirmatory affidavit deposed to by psychological therapist, Lize Basson (engaged by the Family Advocate) dated 20 July 2009 discloses that following an interview with P, she contacted the Child Protection Unit Division of the South African Police Services as a result of what she terms were:

“…certain disclosures to me which made it apparent that P has had inappropriate sexual interaction with the Applicant.”

and

“P has developed a relationship of trust with me and he has managed to make significant progress in his therapy. I believe that it is in P’s interests that I do not breach his trust at this stage by disclosing the full nature and extent of what has been told to me by P.”

Ms Lize Basson’s report is of importance and is the first formal expert report which sought to directly point a finger at the Applicant and it detailed the content on which Respondent placed much store. It is also the report which precipitated the criminal investigations against the Applicant. It is appropriate that I highlight at least two important paragraphs.

Paragraph 4 is headed ‘The nature of P’s disclosure’ and reads:

“As I have explained before, P disclosed that there had allegedly been inappropriate sexual behaviour between his father and himself. I was under legal obligation to disclose the nature of P’s disclosure to the South African Police and as you are aware, I have met this obligation. As such there is a police investigation under way which will likely lead to a court case. P’s disclosure will possibly be important evidence in this court case. As such, I do not believe it is in my client’s best interests to jeopardise the evidence by disclosing prematurely. I believe that jeopardising this evidence could be construed as defeating the ends of justice. I do endeavour to disclose the nature of P’s disclosure in an appropriate legal setting.”

Paragraph 5 is headed ‘Mr Odendaal’s request for contact with P’ and reads;

“Initially, after P’s disclosure, I felt that it may be good for P to see his father under strictly supervised access. My rationale for this was that despite the alleged sexual contact between P and his father, P clearly loved his dad and at that stage wanted to see him. I felt that the supervised access would protect P from any possible abuse in future (at this stage, I had to assume, in the interest of my client, that P’s disclosure is not fictional). Inspector Van Dyk, however informed me that, in his opinion, contact between a child and an alleged perpetrator is not in the interest of the child and that until the SAP investigations are finished, he would prefer no contact between P and his father. Ms Battiss followed the advice of Inspector Van Dyk and a protection order to protect P from any contact with his father was obtained.” (my underlining)

Applicant’s reply dated 9th September 2009 states at paragraph 3 thereof that:

“Numerous of the Respondent’s allegations in her Affidavit are vague and superficial, and she draws conclusions from unsubstantiated statements. She has made the most serious allegations against me of sexual abuse of my own son, P (“P”), yet she has steadfastly declined to make a full and proper disclosure of any details to substantiate same. She has employed subterfuge and ‘cloak and dagger’ secrecy to ensure that any form of relevant detail remains obscure to me, which I expand on hereafter.”

Applicant proceeds further at paragraph 4 to say:

“I am advised by my legal representatives that there are too many material disputes of fact to warrant this matter being argued and determined on these papers, and that the matter should be referred to trial. I am advised that, at the hearing of this Application, an appropriate order for such a referral will be sought from this Honourable Court. The Respondent shares this sentiment.”

I also do not regard it as necessary to traverse the balance of the contents of the reply save to restate that Applicant throughout emphasises the paucity of detail and full disclosure in the answering papers as regards how he is alleged to have sexually abused the child.

As aforesaid on 24 November 2009, the matter came before Madam Justice Revelas who, there being consensus between the parties, made an Order that the matter be referred to trial for the hearing of oral evidence, with Applicant’s right to apply for an interim Order of access to the child pending trial (should he deem fit) reserved. The further terms of the Order dealt with the future conduct of the matter governing the exchange of pleadings. The declaration and plea were filed and as at January 2010 the pleadings closed. Nothing further was done by any of the parties.

On the 23 March 2011, the National Prosecuting Authority informed the Applicants legal representatives by letter that a decision had been taken by that office not to pursue criminal charges against Applicant as:

“…there is not sufficient information available to indicate that Mr Odendaal acted intentionally in a sexually inappropriate manner towards his son, P.”

It would furthermore appear that the decision of the National Prosecuting Authority was informed by a report prepared by one Mrs Nellie Prinsloo, a Clinical Psychologist engaged by the State. Her report is quite voluminous and extensive in its analysis. She interviewed a wide spectrum of role players including not only the child and parents but also Mr Matison (Respondents partner) and Mrs Odendaal, (Applicant’s mother). It contains inter alia the following findings at paragraph 30:

“30.1 P has disclosed different things at different times that do not correlate with a memory of a child who has been molested at age 4 – 4 and-a-half years. It is my opinion that he could have been exposed to sexual behaviour and or molestation at any place, be it at school as he initially indicated, in his mother’s bedroom or with another adult or when Mr Odendaal washed his penis in the bathroom. The therapeutic process that involved him was not investigative or forensic and that is a pity since a lot of information was lost in the process and not further investigated.

30.2 Although Mr Odendaal has an unhealthy personality, no indication of aggression directed towards others (especially children) or sexual preoccupation or conflicts were noted.

30.3 Ms Battiss has a very frail personality make-up of someone that could have instigated the disclosures and or misinterpreted certain disclosures. She certainly focused therapy in a certain direction. She also encouraged parental alienation.

30.4 In my opinion there is not enough evidence to prosecute anyone at this stage for the alleged sexual molestation since the identification of Mr Odendaal as perpetrator is highly suspicious.

30.5 I further recommend that an integration process is started between P and Mr Odendaal in a therapeutic environment.”

Applicant says the decision not to prosecute vindicates him and it is this decision that led to the fresh application now before me.

The pertinent legal position.

It is trite that this Court as upper guardian of all minor children within its jurisdiction, has extremely wide powers and a wide discretion as to what is in the best interests of minor children. See Terblanche v Terblanche 1992 (1) SA 501 (W).

[27] The best interests of the child principle was articulated as long ago as 1948 by the Appellate Division in Fletcher v Fletcher 1948 (1) SA 130 (A) and has since found application in numerous judgements.

Section 6 of the Children’s Act No. 38 of 2005 provides –

“(2) All proceedings, actions or decisions in a matter concerning a child must-

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard set out in section7 and the rights and principles set out in this Act, subject to any lawful limitation.”

[28] Section 7(1) of the Children’s Act 38 of 2005, (parts of which entered into force on 1 July 2007 and which Act replaces the Child Care Act 74 of 1983 and Children’s Act 33 of 1960), sets out a lengthy list of factors for Courts to consider when determining a child’s best interests under the Act and under the Constitution.

[29 The Act furthermore details that children with the requisite level of maturity and intelligence must be heard in all matters affecting them. Section 31 thereof states that due consideration must be given to the views and wishes expressed by the child, taking into account maturity and stage of development.

[30] A Court hearing an application for access by one parent has to always remain mindful that:

“Although access rights are often spoken of as the rights of the child, it is artificial to treat them as being exclusive to parents’ rights … the right which a child has to have access to its parents is contemplated by the right of the parents to have access to the child. It is essential that a proper two-way process occurs so that the child may fully benefit from its relationship with each parent in future. Access is therefore not a unilateral exercise of a right by a child, but part of a continuing relationship between parent and child. The more extensive that relationship with both parents, the greater the benefit to children it is likely to be.” See V v V 1998 (4) SA 169 (C) at 189.

Dispute of fact.

[31] As regards referral to oral evidence on the basis of perceived disputes of fact in matters of this nature involving children and governed by the new framework set out in the Act, the view of the Courts is that disputes in proceedings before them must ideally be concluded expeditiously in a manner avoiding delays. This new framework, arising from the reformulation of the entire body of law affecting children obligates courts adjudicating disputes concerning children to engage in a value based method of appropriate dispute resolution and to order the proceedings before them in a manner minimizing adversarial litigation and delays.

“The intention of the legislature to encourage courts to deploy appropriate expeditious and cost-efficient methods could not be more clearly stated. As a consequence, earlier judicial pronouncements regarding the applicable principles of evidence and procedure in such cases may lose some of their force and should be relied upon with circumspection… A robust common sense approach is called for and any recourse to oral evidence should be a reluctant choice to be exercised sparingly and only when essential. Furthermore, the points of contention that inevitably arise in applications of this kind tend in the main to concern the inferences which might legitimately be drawn from undisputed facts or are merely disagreements about the construction or interpretation to be placed upon undisputed facts. Differences of opinion do not necessarily involve disputes of fact requiring oral evidence to resolve them.” – See Godbeer v Godbeer 2000 (3) SA 976 (W) at 977F.

[32] I mention the aforegoing in light of the earlier Order for referral to oral evidence made by agreement between the parties. The Respondent having laid criminal charges against Applicant and the position being complicated by a restraint Order in terms of the Domestic Violence Act, it is understandable why the agreement would have been made pending the investigations. That is not the position with regards the present Application before me. There is no prospect of the Applicant being charged. Moreover, nothing appears in my view to have necessitated Respondent applying for a restraint Order. The only remaining disputes are peripheral and concern individual opinions having very little, if any, bearing on the central issue defined in the Act as the child’s best interests.

Brief overview.

[33] It bears repeating that the proper approach for all parents pitted against one another in matters having a bearing on a child’s right to contact and access by one parent, should be to adopt a less belligerent and rigid stance and to explore as far as is feasible, alternative means of resolving disputes and difficulties involving children.

Most ordinary parents are not acquainted with the inclusive and inquisitorial nature of the provisions of the current Children’s Act and legal practitioners advocating an adversarial attitude in dealing with cases of access and contact foster views, among well-meaning parents, at odds with the concept of the child’s best interest as contemplated in the Act. The starting point will always be that these interests will be primarily served where children grow up with easy access to both the parents. It will needless to say, be only in extreme cases posing clear physical and/or psychological dangers to a child that a parent will be denied contact or, at the very least, have same restrictively managed.

[34] The report of Mrs Prinsloo contradicts much of what the Respondent has accused Applicant. Whilst I must not be understood to say the Applicant is a model father, I do not find support for the Respondent’s contentions that Applicant is a drug addict, an individual with a propensity for wanton violence and of having sexually groomed his child. Very little support for these contentions is made out in her papers.

[35] An overview of the detail in the matter proceeds in my view as follows:

35.1 The Applicant was the person who reported the ‘shed’ incident to Respondent and this incident took place very shortly before her relocation with the child, a matter that the Applicant had reconciled himself with. If the Applicant was indeed the source of the child’s deviant conduct, it appears most unlikely that he would have reported the incident to the mother.

35.2 Respondent dutifully arranged for the child to have an initial interview and assessment by Dr Bernhadt who presented a report providing no evidence of Applicant’s involvement in the child’s deviant sexual knowledge. The interview uncovered the school ‘jungle gym’ incidents between various children as learners. This evoked a degree of panic in the Respondent but this was an instinctive reaction perhaps understandable in a mother.

35.3 Despite the fact the report was neutral in so far as Applicant’s complicity in sexually grooming the child, Respondent engaged legal advisors who inflamed an already tenuous situation by accusing the Applicant of all sorts of criminal conduct as alluded to above. The letter of 18 August 2008 clearly demonstrated a complete lack of understanding of what was at stake, that is, the child’s best interests. Fortified no doubt by the hostile attitude of the legal advisors, Respondent closed her mind to the other reported possibilities linking the child’s relationships with other learners and related close family male role models. Respondent focused all her energies at a father she began more and more to view as deviant by pointing out to what can only be best defined from the papers as a mild use of dagga and violence associated with kicking and shoving of Applicant’s dogs.

35.4 The next clinical psychologist appointed by Respondent at her own instance and request is Ms Pat Hill. I have already cited the findings she made with regards to her personal make up and I need not repeat reference to the same.

[36] I have dealt with the various expert reports and indicated where these were either of general import or were never conclusive in bringing Applicant squarely into the realm of the conduct complained of. The report which, for the first time, contained inculpatory and damaging findings against Applicant is that of Ms Lize Basson. From this report the following can be gleaned:

36.1 It is apparent ex facie the report that Ms Basson treated Respondent as her client. From the Applicant’s papers it is also stated that she declined to interview Applicant and settled the report without having done so. Ms Basson was happy to interview only the Respondent and the child. She, in her own words, reported the matter to the law enforcement agencies without seeing and interviewing Applicant.

36.2 The full report shows very clearly that the overall considerations informing the conclusion and recommendations were those pertaining to the anticipated criminal trial. She found what the child had told her sufficiently and completely credible and saw no necessity to forensically test it as against what Applicant had to venture. It is in all probability this that Mrs Prinsloo laments when she makes the comment in her report that;

“The therapeutic process that involved him was not investigative or forensic and that is a pity since a lot of information was lost in the process and not investigated further.”

36.3 Ms Basson also appears to have been swayed in her thinking by the views of the investigator Inspector Van Dyk. She recommended that Applicant should have no contact with the child. This despite her stated personal view that it would be good for P to see his father under strictly supervised circumstances as the child expressed a desire to see his father.

As will become clear, the investigation of Inspector Van Dyk petered out and the anticipated criminal trial has since not materialised.

[37] I am more persuaded by and believe this Court ought to take guidance from the report of Mrs Prinsloo for a number of reasons. Aside from the indisputable fact that she is the only expert to have approached her investigation with a commendable degree of professional diligence, she cast her forensic search for answers sufficiently widely.

In addition I am of the view that:

She is demonstrably highly experienced and her academic and intellectual background and case studies in which she has been involved are detailed in her report for all to see. This is not the case with any of the other experts. She studied and dealt with all the other reports, interviewed all the parties and came to the conclusion that there was indeed no merit in the allegations made by Respondent. The tenor of her report is in fact wholly aligned with the preliminary findings of the first child psychologist, Dr Deborah Bernhardt who pointed out the child could have acquired this knowledge and tendencies from other learners.

None of the reports have on their own conclusively advocated that Applicant should, without more, have no contant with his son and instead, even Ms Lize Basson who assisted Respondent in reporting the matter to the authorities, was in fact of the view that he should, save that the investigator van Dyk appeared to think not, at least up until the then anticipation of Appellant being charged.

She is an independent expert employed by the State to evaluate whether evidence existed on the basis of which any person could be charged for what Respondent in the Domestic Violence restraint Order referred to as ‘sexual grooming’. In other words, she was employed to investigate Respondent’s own complaint.

P, Ms Battiss and Mr Odendaal were all interviewed by Mrs Prinsloo and extensive reports prepared on all of them using 5 (five) psychosometric testing methods inclusive of the:

Rorschach Inkblot Test;
Thermatic Apperception Test;
Millon Clinical Multi axial Inventory III etc.

From these tests, the most troubling findings relate to the Respondent. She has, from what the report tells us, been diagnosed with a Bipolar Disorder and is described therein as “highly strung and emotionally very fragile”. She firmly believes Applicant has sexually molested P. “She shows many characteristics commonly observed in people who subsequently commit suicide”. “Her faulty reality testing may detract from her ability to exercise good judgment as a parent. In particular, she may be prone to forming mistaken impressions of what children’s behaviours signify and to making ill-advised childcare decisions without appreciating the consequences of these decisions”.

[38] Mrs Prinsloo interviewed Applicant and states that he is currently employed as a consultant with the Enterprise Architecture team at Transnet. Whilst still living in Cape Town with Respondent and at a time when he was unemployed, he smoked marijuana with a friend with whom he regularly played chess. He also gave a history of smoking marijuana and using ecstasy whilst in his late twenties. When Respondent arrived at home one day, she found him watching pornography of women masturbating on a French site. He admitted to having done this out of boredom at home. He said he had pulled his life together after the birth of the child. Applicant confirmed to Mrs Prinsloo that he lived with Respondent in Johannesburg at her father’s house. He told her that Respondent’s father is gay and he often invited gay friends over to his house when Applicant lived there with the child. He admitted to having bathed with the child at times but denied the child ever saw him naked. He showed the child how to pull his foreskin when he was small for him to clean his penis. Mrs Prinsloo found that Applicant:

“… approaches experience in a reasonably open manner without showing indications of a narrow frame of reference…”

“He appears to be a flexible person who is able to view people and events from multiple perspectives and is willing to consider modifying his opinions and beliefs.”

“Mr Odendaal appears to be currently in a state of mild but chronic stimulus overload resulting from persistent difficulty in mustering adequate psychological resources to cope with the demands being imposed on him by internal and external events in his life. Consequently, he is at risk for recurrent episodes of over anxiety, tension, nervousness and irritability. People with this pattern of stimulus overload tend to have limited tolerance for frustration and a less than average ability to persevere in the face of obstacles. They may consequently show a tendency toward impulsive outbursts of unwarranted affect and/or ill-advised actions. However, the likelihood of his showing such adjustment problems appears limited to ambiguous and complex situations, whereas in fairly structured situations, in which he knows what is expected of him, he may function in a reasonably adaptive and untroubled fashion that seldom attracts the attention of others.”

[39] Despite the extensive clinical assessment done by a highly qualified expert, Respondent continues to oppose the current Application before me on the basis that she is still unsatisfied and believes the Applicant to be a danger to the child.

[40] The most acute difficulty I am presented with is how to achieve the balance necessary to assure a well-meaning but probably misguided parent with the looming prospect of having to embrace a reintegration process by which the child is rightfully re-familiarised with a biological father. It is imperative that all father and child relationships be nurtured and promoted as this can only lead to and be of critical benefit to the development of the child’s overall character and personality. The bond between a father and son is inextricably linked to the child’s psychological, physical, material and social upbringing and transition from growing up as a child into manhood. This provides the child with a defined identity and contributes to the self-confidence so necessary for all individuals to navigate life’s challenges. It is a natural bond incapable of severance and alienation can only lead to negative effects in the later life of a child. All children, boys in particular benefit immensely from a close relationship with a father and these benefits ultimately enure to the benefit of society as a whole. Indeed an effort by a misguided and self-serving parent to promote alienation must be discouraged at all costs. Whilst the child in this case has some father figure in Respondent’s partner, the relationship with the child’s natural father remains sacrosanct.

[41] In this case there never was a cogent reason for the course of action the Respondent embarked upon. It may well be that it arose out of concern. It also may well have been founded on the Respondent’s world view and psychological disposition alluded to by Ms Hill and Mrs Prinsloo. The interruption of the contact and access between father and son has however to be restored albeit with attendant sensitivity. I am hopeful that the objective will be achieved. I have come to the conclusion that Ms Linda Graetz will have to assist this Court and the parties and to guide them in the future arrangement of normalisation of access, a matter that must ideally be done by agreement between the parties themselves without permanent interventions by the Courts and other State Institutions.

[42] If the parties are in future still unable to regulate their affairs then the matter will revert to this Court. If that does happen, the Order that the Court can make can only at best be informed by a future report from Ms Graetz detailing how the reintegration process will have unfolded from the date this Order comes into effect.

[43] I have come to the conclusion that the following Order is the only appropriate Order in the circumstances:

43.1 Applicant is the holder of full parental rights and responsibilities in respect of minor child P B O as envisaged in sections 18[1] and 18[2] of the Children’s Act 38 of 2005.

43.2 The Court herewith appoints Ms Lynda Graetz, a Professional Counselling Psychologist to oversee the process of the re-integration of the minor child “P” with Applicant as father, in a manner that will entail supervised contact for an initial period of 9 (nine) months commencing 16 December 2011 (one introduction day) or such day in December as may be agreed to by the parties through Ms Graetz.

43.3 Thereafter the Applicant shall have access for one weekend each month commencing January 2012, each Saturday from 09h00 to 17h00 and Sunday 09h00 to 17h00.

43.4 Ms Lynda Graetz will for these purposes determine, in consultation with Ms Battiss and Mr Odendaal, the specific days of the month and the most appropriate manner in which the supervised contact is to be exercised.

43.5 Ms Lynda Graetz is to file a report with this Court by no later than 30 September 2012, which report must detail her initial findings regarding the re-integration.

43.6 Applicant shall have reasonable access to the minor child including:

43.6.1 telephonic contact at reasonable times once each week.

43.6.2 On Father’s day and on Applicant’s birthday.

43.7 The parties are ordered each to pay its own costs herein.

________________________________

PT MAGEZA

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

FOR APPLICANT: Ms PV Ternent, instructed by Tanya Brenner Attorneys

c/o Gravett Schoeman Van Rensburg & Moodley Inc.

FOR RESPONDENT: Mr DH de la Harpe, instructed by Drake Flemmer & Orsmond.

Ufudo Estate Agents CC t/a Remax Sunshine Coast v Rakel (Pty) Ltd

Ufudo Estate Agents CC t/a Remax Sunshine Coast v Rakel (Pty) Ltd (EL 737/08, ECD 3037/08) [2013] ZAECELLC 5 (24 July 2013)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – EAST LONDON

CASE NO: EL 737/08

ECD 3037/08

Delivered: 24 July 2013

In the matter between:

UFUDO ESTATE AGENTS CC

t/a REMAX SUNSHINE COAST Plaintiff/Respondent

and

RAKEL (PTY) LTD Defendant/Applicant

____________________________________________________________________

LEAVE TO APPEAL

____________________________________________________________________

MAGEZA AJ

[1] On the relatively few occasions during which I have had to hear argument in respect of applications for leave to appeal, I must say I have not been particularly occasioned much ambivalence in granting such leave and have done so immediately pursuant to argument having been heard. This matter stands on quite a different footing in that, not only is the law clear on the issues under discussion but more importantly, the pertinent factual history convincingly lends itself to the cautions pointed out in our case law and authorities concerning both the requirement for the sufficiency of the ‘reason(s) explaining the withdrawal sought’ and the imperative to avoid an injustice and ‘prejudice occasioned the other party’ consequent upon such withdrawal.

[2] Having heard Mr Schultz for applicant and Mr Brooks for the respondent on this application for leave to appeal, I remain unconvinced that applicant sufficiently explained itself in its papers and am persuaded by respondent that it will suffer prejudice not capable of mitigation through either an award of costs or similar relief. I say so taking full cognizance of the argument made by Mr Schultz on behalf of applicant that this decision has the consequence of possibly closing the door on applicant (as defendant) in the relevant material respects, something that I appreciate, on tortured consideration, must yield to the rights that respondent (as plaintiff) must be allowed.

[3] Having heard the application on 19 October 2011 and handed down judgment on 8 November 2011, the application for leave itself was before me on 18 June 2013. In my principal judgment after having considered the matter, I came to the conclusion reached having also accepted, inter alia, that:

“Plaintiff points out that if Defendant were to be allowed to amend its plea, this would necessitate the joinder of a third party to the proceedings and this would needless to say cause it severe financial prejudice and obstruct the Plaintiff’s right to have its case timeously disposed of. It furthermore asserts that the Defendant’s application is a delaying tactic and an attempt to prevent it from obtaining justice. Plaintiff also points that any claim against Lutge has now prescribed.”

[4] In order to succeed in the application for leave to appeal, applicant must show that there is a reasonable prospect of success on appeal. –see Pharmaceutical Society of South Africa v Tshabalala – Msimang 2005 (3) SA 238 (SCA) at para 40. I am also alive to the precaution that where a Court decides to refuse leave to appeal, it is not necessary for it to give reasons why it does so as the reasons for its findings will have already been set out in its judgment. Indeed the authorities say such a course ought to be discouraged. – see Mphahlele v First National Bank of SA Ltd 1999 (2) SA 667 (KH) (199 (3) BCLR 253) and (Beyers v Elf Regters van die Grondwetlike Hof 2002 (6) SA 630 at 635 paras [4] and [5].

[5] Suffice to repeat only this that the basis on which the applicant brought the application for the withdrawal of the admissions made in its plea and the reasons for the refusal of that application by this Court are in my view sufficiently set out in the judgment. The law pertinent thereto is stated, discussed and applied.

[6] Applicant also seeks leave to appeal the order of costs granted on an attorney and client scale. Mr Schultz argued that the order was made without the parties being invited to argue the issue of costs on this scale. In paragraphs (6) to (10) of my judgment I deal with what I characterize as the applicant’s failure to give a logical, coherent and candid explanation as to what the meetings were precisely concerned with and what decisions were arrived at thereanent. Applicant wholesomely failed to address itself to the specifics of the discussions around the matters it was required to sufficiently explain, that is, how the contentious issues in the meetings referred to were resolved. The applicant avoided pinning itself to even moderate detail and resorted instead when unable to do so by attempting to detach itself from those discussions. I remain needless to say left with a negative impression in respect of the basis on which the application was brought; the passage of time between the making of the admission and the application; the timing thereof coming as it did after a pre-trial where the issue was not raised and the trial itself, as all suggestive of an effort to, inter alia, buy time. That is to say nothing of the applicant’s knowledge of the setting in of prescription against Lutge as stated by Respondent. All these are tantamount to an abuse of the processes of this Court and the Court has a judicial discretion in such circumstances to express its rebuke and if necessary, to make such an order. – see Commissioner for SARS v Hawker Air Services (Pty) Ltd: 2005 (5) SA 283 (T); Lourenco v Ferela (Pty) Ltd (No1) 1998 (3) SA 281 (T); Rhino Hotel and Resort (Pty) Ltd v Forbes 2000 (1) SA 1180 (W).

[7] The application for leave to appeal is therefore refused.

___________

MAGEZA AJ

18 JULY 2013

Potelwa v Potelwa

Potelwa v Potelwa (EL 125/2010, ECD 325/2010) [2011] ZAECELLC 14 (15 March 2011)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT – LOCAL DIVISION)

CASE NO: EL 125/2010

CASE NO. ECD 325/2010

In the matter between:

PRINCESS VUYOKAZI POTELWA

(born MANONA) ……………………………………………………………………………….APPLICANT

and

ROY KHWEZI POTELWA ………………………………………………………………RESPONDENT

REASONS FOR JUDGMENT

MAGEZA AJ

This is a second Application for relief in terms of Rule 43 of the Uniform Rules of Court. The Applicant seeks an Order that Respondent make a contribution to costs in the sum of R630 812.00 towards the Applicant’s costs of the divorce proceedings between the parties. These are legal costs and costs for asset verification, assessment and valuation.

APPLICANT’S CASE:

[1] Applicant, Defendant in the main action and Respondent were married at Butterworth in June 1984 in terms of the Marriage Act of Transkei No. 21 of 1978 (the Transkei Act). This Act excludes community of property and this is not in dispute. The Act has since been repealed.

[2] In August 2008 the Respondent, as Plaintiff in the main action, instituted an action against Applicant, defendant therein, for a decree of divorce. He tendered maintenance for the 3 (three) minor children as well as reasonable non private school fees, expenses and provision for medical aid. No tender for maintenance is made in the action in respect of the Applicant and she has consequently filed a counterclaim for maintenance in terms of s 46 of the Transkei Act for an order that Respondent provides her with accommodation, a motor vehicle, personal maintenance and medical expenses. According to Applicant, Respondent disputes her entitlement to these and the issues ‘remain hotly contested’ (Applicant’s averment).

[3] Applicant lives with the children in Vincent, East London whilst Respondent lives in Idutywa where he practices as a medical practitioner and businessman. She is unemployed, has no income and is dependent on the Respondent. Following their marriage, she stopped teaching and assisted the Respondent in setting up and managing the dry cleaning businesses set up by Respondent.

[4] She first commenced Rule 43 proceedings on 9 November 2008, before Chetty J and on that date an Order that the Respondent, inter alia, make a contribution towards costs in the sum of R25 000.00 was made. Following upon the granting of the aforesaid Order, the Respondent failed to comply with the Order necessitating the launch of an Application for the committal of the Respondent to jail for Contempt of Court. The Application for Contempt was commenced in March 2009, Respondent opposes the same and it has since then been postponed on at least 7 (seven) occasions at Respondent’s instance and request.

[5] In the interim, the divorce trial was set down for hearing on the 25th of June 2009 and on this day, settlement negotiations were held for the first time and these lasted all of two days. At these settlement negotiations Respondent, as Plaintiff, was represented by senior counsel. Applicant avers, ‘a comprehensive deed of settlement was drafted which at the eleventh hour, the Respondent refused to sign, despite indicating agreement in principle throughout the days of negotiation’. At present Applicant believes that all settlement negotiations have been exhausted and it is, in her view, given the Respondent’s attitude, unavoidable that the matter will regrettably proceed to trial.

[6] In order to support her claim for maintenance in the main action, the quantum thereof and Respondent’s ability to provide the same, Applicant believes that she requires valuations of the numerous properties owned by the Respondent, as well as valuations of his businesses, shares, investments and other assets. According to her, in the earlier Rule 43 Application heard by Chetty J, the main defence which the Respondent raised to the costs of a Sworn Valuator, or expert Accountant was that Respondent argued the need for such Valuator or Accountant or Forensic Auditor as premature, with Respondent stating in paragraph 58.2 of his previous affidavit resisting the contribution towards costs that “documentation and valuations will be obtained in the discovery stages of the trial action and there is no need, at present, for unnecessary costs to be incurred as alleged by the Applicant”.

[7] Furthermore, Applicant contends that discovery having now been made in the main action and Respondent having failed to file any of these documents and valuations, it is, self evident from the inadequate discovery affidavit filed by the Respondent, that he has not obtained the valuations of any assets whatsoever. In any event, the discovery stage of the trial has now dawned, and she wishes to pursue the valuations as a matter of urgency.

[8] The Respondent’s Assets.

These are:

(i) a well established medical practice in Idutywa;

(ii) 3 (three) dry cleaning businesses in Mthatha and Idutywa;

(iii) shares in Idutywa Hotel;

(iv) 2 (two) motor vehicle spare parts businesses in Mthatha and Idutywa;

(v) shares in a Total garage;

(vi) share portfolio held in JSE listed companies;

(vii) unit trust and investment policies held in Liberty, Old Mutual and Sanlam valued conservatively at R10 000 000.00 (ten million Rand).

In addition, the properties (residential and commercial) owned by Respondent include the following:

Erf No. Description Estimated Value

76, 257, 324 Dutywa vacant plots R 340 000.00

126, 413 Dutywa dilapidated structures R 315 000.00

322, 323, etc. Dutywa & Butt., & Mthatha

Res. Dwellings R12 430 000.00

503 Port St Johns Guest Lodge R 2 800 000.00

27058 Vincent Gardens East London R 3 500 000.00

10283 Vacant site at Bonnie Doon, E L R 1 500 000.00

1939 Upmarket property in an estate

Fourways Ext 34 Johannesburg R 4 500 000.00

15366 Office Building Central East London R10 000 000.00

_____________

TOTAL R35 385 000.00

_____________

[9] Applicant is of the view that taking into account the immovable properties held by the Respondent, his movables and other assets, his estate is conservatively estimated at R50 000 000.00.

Arising from all the investments, businesses, rentals and practice, Respondent’s conservative monthly income is estimated at R400 000.00 (four hundred thousand Rand).

[10] Applicant has attached indicative costs of valuation work that can be done by a reputable accounting/auditing (KPMG) firm and this is in the sum of R455 000.00 and a further sum of R50 000.00 in respect of the services of a forensic investigator.

Applicant has further filed a detailed legal costs breakdown for trial preparation, consultation with the use of commensurate counsel including her attorneys up to and including the first day of hearing for a total of R98 724.00.

RESPONDENTS CASE.

[11] The gravamen of Respondent’s reply to Applicant’s claim can be summed up as follows:

11.1 He concedes that on the 25 June 2009 the parties entered into settlement negotiations. These, according to him, ‘were scuppered by Applicant’s excessively extravagant, unjustified and extortionate demands’ paragraph 15 of answering affidavit.

11.2 He states that the present Application is unnecessary in that the award of Chetty J in November 2008 provides Applicant sufficient cover to proceed to trial. The argument from the bar on Respondent’s behalf is that if she did utilise such funds for the 25 June 2009 trial, then she should have no need for more contribution to costs. In any event the Respondent, out of his own goodwill, tenders an amount of R20 000.00.

11.3 In so far as the valuations pertaining to his estate, he states at paragraph 37, ‘The homework referred to by the Applicant herein is totally unnecessary and uncalled for since the contents of the estate have absolutely nothing to do with her, our marriage being out of community of property and each of us having a distinct and separate estate’.

[12] Now the starting point in these matters can be summarized as follows:

This relief (contribution to costs) is available to a spouse pendente lite and is founded on the duty of support. – See Chamani v Chamani 1979(4) SA 804 (W).

These are costs that are necessary and as would be adequate for Applicant to prepare for and conduct pending litigation. – See Senior v Senior 1999(4) SA 955 (W).

In determining the quantum of the contribution, the Court will have regard to the circumstances of the case, the financial ability of the parties, difficulty of issues pertinent thereto and the levels at which the manner of litigating is pitched. In this evaluation, the court does so bearing in mind that it has a discretion that it has to exercise judiciously and for sound reasons.

In Nicholson v Nicholson 1998(1) SA 48 (W), Wunsh J at page 51 I observed, “Whatever the position may be where spouses are married in community of property and the Applicant is claiming access to funds in the joint estate, the starting point in a case like this should be the Applicant’s party and party costs which are subject to adjustment according to the factors mentioned in the cases, such as the means of the husband, the scale upon which he is litigating and the complexity of the case”.

Further at page 52-B, “I can see no logical or rational basis for excluding the Applicant’s attorney’s fees from the costs to which a contribution must be made”.

In cases where the Respondent is litigating through the utilization of the best Counsel the court will have regard to equality of arms and means.

[13] In Cary v Cary 1999(3) 615 (C), Donen AJ, after considering the right to equality enshrined in s 9(1) of the Constitution of the Republic of South Africa Act 108 of 1996, commented at p 621 – D, “By similar reasoning in this matter, Applicant is entitled to a contribution towards her costs which would ensure equality of arms in the divorce action against her husband. The Applicant would not be able to present her case fairly unless she is empowered to investigate Respondent’s financial affairs through the forensic accountant appointed by her. That is, Applicant will not enjoy equal protection unless she is equally empowered with ‘the sinews of war’”.

[14] In an unreported Rule 43 judgment of this Division (Olivier v Olivier – case 1298/04) delivered by Leach J, (some 6 years ago) dealing with a contribution to Applicant’s costs in the proceedings, the Court awarded Applicant the sum of a R150 000. It is to be noted that this sum related only to legal costs. At page 5 para 2 the Court observed, “Turning to the contribution towards costs, both parties have employed senior counsel, which is understandable if one bears in mind the considerable amount of money in the matrimonial cake about which they are fighting. Litigation is an expensive business. It is impossible to know what the actual expenses of the parties will be. When one hears that both sides are hell bent on taking preliminary issues to the Constitutional Court, it is clear that lengthy and protracted litigation lies ahead. Recently, in an opposed divorce which was not unduly complicated and which came before me on a review of taxation, the taxed bill of one side up to and including the first day of trial (when the matter settled) exceeded R90 000.00. Consequently, a substantial contribution would have to be made, albeit bearing in mind that a contribution is merely to provide the “sinews of war” and not payment of all the anticipated expenses of the other party. In these circumstances, I was of the view that, at this stage, a contribution of R150 000.00 was called for”.

Further at page 6 the learned Judge went on to say, “While it is so that a contribution towards costs is often calculated on the basis that it includes costs up to and including the first day of trial, where after an application can be brought for each succeeding day, I did not attempt to determine the contribution in casu in that way. Instead, taking into account the fact that the matter would probably run well beyond the first day, I ordered a contribution in a large sum towards what is undoubtedly going to be a substantial fee liability”.

[15] Some 10 (ten) years ago in Greenspan v Greenspan 2000(2) SA 283 (C), a case much analogous on the facts with the present, Hlophe DJP (as he then was) in summing up at p 290 B – F commented, “The Applicant seeks an Order that the Respondent should pay a contribution of R250 000 towards the Applicant’s costs in the divorce action. It is common cause between the parties that the Respondent has already paid about R56 000 as contribution towards the Applicant’s costs in the divorce action. The Applicant contends that that is just not good enough, regard being had, inter alia, to complex factual issues that will arise with regard to the fixed property in Houghton, coupled with the fact that the Respondent himself is conducting litigation on a luxurious scale. It is a fact that the Respondent’s legal team, save Mr Rogers, comes from Johannesburg. This includes senior counsel and a Johannesburg Attorney. It is also a fact that the Respondent’s attitude throughout has been that his financial circumstances are irrelevant for purposes of the divorce action. That is obviously not true, as the Respondent will soon find out. The Respondent was described by Lategan J as ‘an enormously wealth man in any terms … [who] is worth in the vicinity of R100 million’. This is not to say the Respondent should be punished for his wealth. The Applicant is entitled to litigate on a scale commensurate with the means of her husband. She is certainly not expected to litigate upon the basis that she has to watch every penny that is spent in litigation. Her husband is clearly conducting litigation on a luxurious basis. The Applicant likewise is entitled to conduct litigation on a similar basis (see Glazer v Glazer 1959 (3) SA 928 (W) at 932; Nicholson v Nicholson 1998 (1) SA 48 (W) at 52; Cary v Cary [1999] 2 B All SA 71 (C) at 76 – 7.

[16] I have for good reason set out the aforegoing to highlight not only the right of Applicant to the relief sought but to provide a comparative analysis of decisions apposite the case before me. The Respondent has both in his replying papers under oath and in argument before me, not sought to deny the extent of the estate at his disposal. He steadfastly seeks to repel Applicant’s claim fundamentally on the ground that Applicant, being married out of community, has no right to interrogate his estate. In his view, it would appear, her claim for maintenance has no bearing on his assets. This cannot be so in light of the fact that the trial court would, if the right to maintenance is proved, have to make an assessment of the Respondent/Plaintiff’s ability and means to provide the maintenance. From a perusal of the papers I am of the view that Applicant, as Defendant, could succeed in its counterclaim thereby rendering imperative the assessment of his estate.

[17] The Respondent has been less than truthful in the manner in which he has conducted litigation to date. He could have easily obviated the need to have forensic investigations and valuations by making good on the undertaking he made to this Court in the first Rule 43 hearing of the 9th November 2008 by discovering same as undertaken. Not only does he not do that, he boldly misrepresents how that Court came to the award of R25 000.00.

[18] The inexplicable refusal to put to bed a settlement agreement in June 2009 when the matter had been set down for trial is starkly indicative of the probability that Respondent is prepared to wear out the Applicant utilising the vast resources at his disposal. The costs of the two days with senior counsel in attendance were needless, to say, a tragic dissipation of resources.

[19] On the papers before me, the Applicant has shown a prima facie case and, being unemployed and without assets, lacks the means to conduct legal proceedings. In light of the manner in which this matter has progressed since the award of R25 000, it is certain that the same would have been used up as at the settlement negotiation stage. Furthermore, I am quite satisfied that given the scale and luxury with which Respondent is litigating and the use of the best legal teams including senior advocates, Applicant is entitled to commensurate ‘sinews of war’. This does not mean that she is entitled to all the costs set out in her papers. I am in agreement with the aforegoing authorities on the expensive nature of litigation and in my view an amount in the order of R90 000.00 up to the first day and including all necessary preparation is eminently reasonable in light of the facts.

[19] The sinews of war are not limited to the legal costs. Where parties in a matrimonial dispute are able to minimise issues by exercising rationality and reason, they avoid the unwarranted escalation of costs. Where however, as in the present instance, one party in whose favour resources are weighted does not co operate by providing information relating to assets where the evaluation of these are relevant to the determination in the main action, our Courts will come to the assistance of an Applicant. In so far as the complexities of assessing and valuing the vast multifaceted estate at Respondent’s disposal including the valuation thereof, such work would require the services of auditors and expert valuators. Indicative fee structures have been submitted by Applicant. Having been a commercial legal practitioner for years I am cognisant of how expensive these services are and whilst it is so that these services are expensive in light of the globalised nature of reputable auditing firms, I would think that a sum in the order of R190 000.00 would be a useful contribution towards these costs. In this I include the costs anticipated for the forensic investigators.

In the result, I make the following order:

1. That the Respondent is to make an interim contribution to costs of preparation to Applicant in the sum of R280 000.00 inclusive of experts and associated legal costs.

2. That the Respondent pay the amount as follows:

2.1 R100 000.00 on or before the 31st March 2010

2.2 R100 000.00 on or before the 31st May 2010

2.3 R80 000.00 on or before the 30th June 2010

3. That the costs be costs in the main action.

____________________

P.T. MAGEZA

ACTING JUDGE OF THE HIGH COURT

MATTER HEARD ON : 11 MARCH 2010

REASONS DELIVERED ON : 15 MARCH 2010

COUNSEL FOR THE APPLICANT: MR COLE

ATTORNEYS FOR APPLICANT : MAVONYA MOSHESH & ASSOC

21 KING STREET, SOUTHERNWOOD

EAST LONDON

COUNSEL FOR RESPONDENT : MR ZILWA

ATTORNEYS FOR RESPONDENT

: SMITH TABATA INC

57 WESTERN AVENUE, VINCENT

EAST LONDON

Anglin v Burchell

Anglin v Burchell (1134/2005) [2010] ZAECGHC 79 (22 September 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO. 1134/2005 DATE: 9 SEPTEMBER 2010

In the matter between

SCOTT ANGLIN Applicant

And

BARRY GRANT BURCHEL Respondent

___________________________________________________________

REASONS FOR JUDGEMENT

MAGEZA AJ:

This matter came before me by way of Motion Proceedings on the 9th of September with Applicant seeking an order, inter alia, that:

“ The trial in the action instituted in the above Honourable Court under case number 1134/2005, between the present Respondent (as Plaintiff) and the present Applicant (as Defendant ), which trial is enrolled for hearing in the above Honourable Court on the 27th of September 2010, be postponed, to a date to be arranged by the Registrar of the above Honourable Court…”

The further order related to the matter of Costs.

Respondent in turn opposed the Application and brought a Counter Application for a separation of the merits and quantum in terms of Rule 33(4) of the Rules of this Court.

After hearing argument from Mr Cole (for Applicant) and Mr Goosen SC (for Respondent), I granted the Application for the postponement and dismissed the Counter Application for separation in terms of the aforegoing rules of Court. I further ordered that costs in the application be costs in the main action.

Background

For purposes of contextualising the Application, it is helpful to briefly set out some of the history of the matter.

Applicant (Defendant in the main matter) is a citizen of the United States of America and a businessman based in San Antonio, Texas.

The Respondent (Plaintiff) is the owner of Frontier Safaris, a game farm catering for visiting hunting groups primarily from the United States of America, and is a South African with farms situate in Alicedale within the jurisdiction of this Court.

For a period commencing in 2002, the parties were friends and business associates with the Defendant frequently visiting South Africa and engaging in business with the Plaintiff. It is common cause that they concluded agreements, during this period, wherein different properties were purchased. Their relationship later came apart as a result of one or more business related disagreement/s. From the papers before me, it is clear that they have since at least 2005, become involved in protracted legal disputes, some of which have since become resolved.

The Judgement of Acting Justice Crouse

Out of a total 5 (five) claims brought by Plaintiff (Respondent) in 2005 against the Defendant (Applicant), 4 (four) have since been resolved and the only outstanding matter impeding resolution of all disputes between the erstwhile friends, is the defamation claim which is part – heard. Acting Judge Crouse is currently seized with the matter and has already handed down on 30 April 2010, a lengthy and illuminating judgement on the choice of law issue, argued as a point in limine before her by the parties – See Burchell v Anglin, 2010 (3) SA 48 (ECG).

The ruling, from what I make of the judgement, was necessitated by the Defendant’s argument that publication of the allegedly defamatory content had been made to one Cabelas (and his employees), Plaintiff’s American booking agent who sold hunting packages for Plaintiff. That this had been communicated – published- and received in the United States and that therefore, that is where the matter fell to be determined. I also understand that in line with Defendant’s argument outlined above, his position is generally that justification exists in American law which would, according to American law, render his conduct nugatory.

The damages claimed are in the sum of R11 834 945, 16.

A perusal of Acting Judge Crouse’s earlier judgement reveals that she heard evidence, including that of experts, on the choice of law issue over a period of 29 Court days. Argument alone was presented over another 3 Court days. This gives an indication of how intractable the issues between the parties were and how they might so remain in the future.

It is common cause between the parties that Acting Judge Crouse is seized with the matter. It is without doubt apparent that extensive evidence was presented and the judgement makes it abundantly clear that continuation before her will facilitate more seamless proceedings and curtail the duration that a new Judge would need.

The Court then found in favour of the Defendant, pronouncing (at paragraph 130) that:

“Thus, in my judgement, the factors connecting the delict and the parties with Nebraska are sufficiently strong to make it substantially more appropriate to displace the law of South Africa as the applicable law on this substantive matter. I therefore find that, for the just disposal of claim 5 the lex causae is the law of Nebraska, subject thereto that it passes our constitutional threshold test. This decision does not mean that the law of Nebraska is applicable in the quantification of damages. This decision is also left open for decision after argument at the subsequent trial (my underlining).”

Process leading to set down .

It is also common cause between the parties that on the 11th February 2010 (prior to judgement being handed down by Crouse AJ), the parties approached the office of the former Judge President and were advised that in light of the presiding Judge’s Acting capacity, the matter could only be enrolled outside of term time ie during recess.

The dates covering 27 September to 8 October 2010 were then, at best, mooted as suitable at least to Plaintiff and Acting Judge Crouse. Defendant’s attorney Mr Brody, vehemently disputes the contention that such dates were available and suitable to Defendant. In other words, although the dates were mooted, he contests the proposition that these dates were agreed to at the Judge President’s chambers as suitable.

Mr Parker of Pagdens, representing the Plaintiff, then wrote a brief letter to Defendants attorney, Mr Brody, stating the following:

“1. As you are aware, the Judge President insists that this matter be heard in recess.

We are available to deal with the matter during September recess, commencing 27 September and ending 7 October 2010.
Kindly advise as soon as possible whether or not we may set the matter down for hearing during this period.”

Mr Brody responded by way of a letter dated 3rd March advising that Defendant had ‘commitments’ until the middle of December 2010, and that the matter would have to be heard some time during 2011. He followed this missive up with a letter dated 12 March 2010 advising that any attempt to set the matter down during the September recess would be met with an application for a postponement.

On the 17th March Mr Parker then wrote back to say:

“1. the Judge President insists that the matter be heard during recess;

Plaintiff, is entitled to have the matter brought to finality and it is unacceptable that the matter be delayed for a further year;
the defendant has not specified exactly why he cannot attend the hearing during the period 27 September to 8 October 2010;
Acting Judge Crouse is available during the September recess;
the date is suitable to all concerned, with the exception of the defendant who has unspecified ‘commitments’;
under the circumstances, the matter would be set down for trial during the period 27 September to 8 October 2010”.

The matter was then set down by Plaintiff by way of Notice delivered to Defendants attorneys on the 18 March 2010.

Mr Brody then sent a further letter on the 23 March re-stating Defendants inability to attend the hearing on the dates proposed and that Defendants witnesses would also be unavailable.

Applicant’s basis for the postponement.

Applicant’s basis for the application to postpone the matter is founded on this that from the outset, the Plaintiff was appraised of the fact that Defendant would not be ready for a continuation of the trial within the current year. That, until at least the middle of December 2010, he had ‘commitments’ and the earliest he would be ready is from February 2011 onwards.

That the trial action is not ripe for hearing in this that Applicant has, in the American Courts been engaged in a process of obtaining documentation relevant to the trial from Cabelas. These efforts by the Defendant appear to have commenced in May of 2007 but that despite a Subpoena issued under the authority of a Texas Court, Cabelas had continuously failed to co-operate.

That in 2009 the Defendant had again approached a United States Court for the district of Nebraska, requesting an Order for discovery of all relevant documents in the matter between the parties. A copy of the resultant Order is annexed to Defendant’s (Applicant’s) papers and it is dated the 17 June 2010, signed by “Cheryl R Zwart – United States Magistrate Judge.” He avers that this Order has led to ‘a large number of documents from Cabelas’ being obtained.

It is further stated by Mr Brody, that on the 17 July 2010, Defendant received a compact disc from Cabelas containing electronic copies in excess of 50 000 pages on a PDF format. These are in an unarranged and disorderly format. It will require an inordinate amount of time to sort out the documents. More importantly, so the Applicant says, these documents are “clearly discoverable in the present action between the parties and will have to be made available to the Respondent”. He states that “I am instructed that many emails between Respondent and Cabelas’ offices have for the first time been disclosed”.

Applicant contends that “Throughout the litigation between the parties discovery has been an ongoing issue. Numerous Rule 35(3) Notice have been filed and it has always been apparent that there has been insufficient discovery on the part of the Respondent.”

According to Applicant these documents are relevant in the present proceedings. They in his assessment thereof, go to the heart of respondent’s main claim. In other words they are vital to the preparation and presentation of his defence at the trial.

Respondent’s reply.

Respondent in reply posits the following:

After setting out the process outlined in obtaining the recess dates from the office of the Judge President, Respondent makes the point that in the letters exchanged in the run up to setting down the matter, “No reasons for the Defendant’s alleged unavailability were furnished”.

There is then reference by Respondent to what he terms ‘harassment and intimidation’ allegedly on the part of Defendant directed at Respondent. I do not propose to go into any detail thereon.

Respondent then states at paragraph 30 of his papers that, “Clearly the defendant is using as a ruse and an excuse his ongoing litigation with Cabelas in an attempt to justify a postponement of the trial.”

Respondent then proceeds to deal with the matter of Separation of merits and quantum.

Now, it is settled law that the granting of a postponement in an appropriate case by a Court is an indulgence and is at the Court’s discretion.

The aforegoing principle is expanded upon in Isaacs and others v University of Western Cape 1974(2) SA 409 (C) at 411H as follows:

“It is clear that an appellant who seeks a postponement must satisfy the Court that it should grant him such indulgence. Despite this fact a Court will be slow to refuse a postponement because of the consequences which may ensue. However, a party who seeks this form of relief should fully explain the true reason for his non-preparedness”.

In Madnitsky v Rosenberg 1949(2) SA 392 AD at 399, the Court stated:

“No doubt a court should be slow to refuse to grant a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case.”

For an applicant to succeed they would, at the very least, have to show that they would suffer some material prejudice in the presentation of their case were the postponement to be denied.

The Court in Persadh and Another v General Motors South Africa (Pty) Ltd 2006(1) SA 455 (SE) at 459E-G – a decision of this Division- outlined the law as follows:

“The following principles apply when a party seeks a postponement. First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent’s procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant’s inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.” – per Plasket J.

I have applied my mind to the arguments herein for and on behalf of both parties. The Applicant’s case is that Respondent, in the first place, was aware right at the time that these dates were mooted in February that he would not be ready to proceed. His argument is that despite this being the position, his view is that Respondent elected to forge on regardless and arranged that the matter be set down for trial. A perusal of the letters exchanged between the attorneys representing the two parties does not even allude to telephonic or other more considered discussions around the suitability of the said dates. Secondly, Applicant views the documentation secured in July in the United States from Cabelas as relevant and central to the dispute between the parties. He argues that he needs time to discover the same once the same is reorganised by his lawyers in America.

One of the overriding features of this case is that it is a part-heard trial in South Africa and the lex loci delicti is the United States. The outcome of which, at least in so far as the merits are concerned, is to be tried according to the defamation law of the United States. It appears to me to be premature for any of the parties to argue with certainty regarding whether or not the documentation secured from Cabelas will be relevant in the trial or not. My view is that on the papers before me, I have no basis to come to such a conclusion. Such a view on the part of this Court might in these circumstances result in serious prejudice to the Applicant in the future conduct of his case.

It has to also be borne in mind that the parties have been conducting lengthy litigation proceedings against one another with claims and counterclaims. These proceedings are ongoing. There is nothing that appears to be a ruse for purposes of delay in the conduct of the Applicant. I do not view the conduct of Applicant in doing all it can to secure documentary evidence from Cabelas, as Respondent’s booking agent, in order to meet the Respondent’s case as a fishing expedition and an attempt to unduly delay these proceedings. It is quite evident from the papers that his efforts to secure the relevant documentation commenced as far back as 2007. Cabelas is central to the dispute both in regard to the publication of the alleged defamatory content and the possible consequential damages.

Finally, where there are unique and exceptional factors evident and associated with a particular case, it may be so that such ought to guide the presiding Judge in assessing possible prejudice to either of the parties.

The following collective considerations do somewhat set the present matter apart from routine defamation trials. These are characteristics which, in my view, are of such a nature that they require a Court presiding particularly on an application for a postponement to have acute regard to the possible prejudice that can be visited the respective litigants in the event of an adverse order.

33.1 The parties are resident in different parts of the world and each conducts a sole proprietor business, the one in the United States and the other in South Africa.

33.2 The matter is already part-heard and the presiding Judge has ruled the lex causae as based on the law of the United States.

33.3 That American law will thus be the applicable law and that its content must be proved as a matter of fact.

33.4 That this will no doubt require expert witnesses from the United States to be called to testify to this end.

33.5 The period between the 27 September and 8 October will according to the parties not, in any event, be sufficient to complete the trial in all its material respects.

33.6 That an opportunity has availed itself in terms of which the Judge President is willing to assist in having the matter enrolled in normal term time and as early as February 2011.

In the result, the Application for a postponement was granted.

I ordered that Costs be Costs in the main action.

Separation of merits and quantum

The Respondent brought a Counter application for the separation of the merits and quantum in terms of Rule 33(4) of this Court’s Rules.

The grant or refusal of such an Application rests on whether such an Order would, in the disposal of the matter, lend convenience to the Court and the parties. A Court engaged with such a request must to the best of its ability gauge the extent of the advantages and/or disadvantages which would result from the granting of such an Order.

I have already pointed out that this is a part-heard matter and Acting Justice Crouse is engaged with the same. In her Judgement referred to above, she has intimated that her ruling in favour of Nebraska on the choice of law issue does not mean that the said legal jurisdiction is to be looked to in the quantification of damages. Clearly the learned Judge anticipates that that question will still need to be argued before her – see paragraph 11 of my reasons herein.

In the premises, it appears to me that the Rule 33(4) application must be brought before Acting Justice Crouse.

I therefore dismissed the Counter-Application.

I further ordered that Costs be Costs in the main action.

______________

MAGEZA AJ

22nd September 2010

APPEARANCE FOR APPLICANT – MR S. H. COLE

ATTORNEYS FOR APPLICANT – WHEELDON RUSHMERE

APPEARANCE FOR RESPONDENT – MR G. GOOSEN SC

ATTORNEYS FOR RESPONDENT – PAGDENS INC

Dlusha v King Sabatha Dalindyebo Municipality and Others

Dlusha v King Sabatha Dalindyebo Municipality and Others (1494/09) [2010] ZAECMHC 27 (18 March 2010)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION‑MTHATHA)

CASE NO: 1494/09

In the matter between:

NONTSIKELELO DLUSHA APPLICANT

and

KING SABATA DALINDYEBO MUNICIPALITY FIRST RESPONDENT

THE MUNICIPAL MANAGER SECOND RESPONDENT

CHIEF FINANCIAL OFFICER THIRD RESPONDENT

INFORMATION OFFICER (KSD MUNICIPALITY) FOURTH RESPONDENT

JUDGMENT

MAGEZA AJ:

[1] Applicant is a ratepayer and resident of North Crest, Mthatha, an area which falls under the administration of KSD Municipality (First Respondent).

[2] The Second, Third and Fourth Respondents are all officials employed as such by the First Respondent.

[3] This matter has its genesis in a discontinuation of service notice served on the Applicant by Third Respondent, the Chief Financial Officer of the First Respondent, on 5 March 2009. In this notice, Third Respondent demanded the payment of the sum of R61 098.49 for arrear municipal rates and services.

[4] Pursuant to this discontinuation of service notice and on 1 July 2009, Applicant approached the First Respondent and formally requested information forming the basis of the calculation of the rates said to be outstanding. Applicant was handed a pro forma document headed ‘Form For Application of Information’ which she duly completed and submitted.

[5] On the face of this document is a stamp purporting to be that of the Second Respondent. This stamp is dated 1 July 2009 and the recipient is one Babalwa Nonyukela, acting on behalf of the Second Respondent. Babalwa Nonyukela received this document at 09h52 on that day.

It is common cause that the Second Respondent never favoured the Applicant with the information requested. In fact none of the Respondents reverted back to the Applicant in any manner of form.

[6] Some (2) two months later on 24 August 2009, Applicant issued and served on the Respondents on Notice of Motion an Application in which the following relief is sought:-

“6.1 That the respondents’ failure to furnish applicant with information requested relating to assessment of rates and other service charges with KSD Municipality be and is hereby declared unlawful and an infringement on applicant’s constitutional right to access to information as provided for by the Promotion of Access to Information, Act 2 of 2000;

6.2 That the respondents be and are hereby ordered and directed to furnish applicant through her attorneys with the following information regarding assessment of rates;

6.2.1 A copy of a document which shows the valuing system used by the KSD Municipality Valuers to value all properties within its jurisdiction;

6.2.2 Copies of valuation rolls (at applicant’s expense) used to determine rates from 1993/1994 financial year to the 2009/2010 financial year;

6.2.3 The Government Gazette numbers of the gazettes in which notices of abstracts of estimates of revenue and expenditure forming the basis for rates assessment have been promulgated for all the financial years referred to above;

6.2.4 A copy of the rates policy used all the financial years referred to above;

6.2.5 The provincial Government Gazette numbers in which by‑laws have been promulgated giving effect to first respondent’s rates policies for all the financial years referred to above;

6.2.6 A copy of the booklet/book which shows the tariffs used to determine rates for all the financial years referred to above (copies at applicant’s expense);

6.2.6 A copy of the document from the MEC for Local Government approving an increase in tariff for fixing rates which is higher than the 2 cents in a rand as stipulated by section 82 of the Municipality Ordinance 20 of 1974;

6.3 That the respondents be and are hereby ordered and directed to furnish applicant through her attorneys proof of respondents’ attempt to solicit community participation in rates assessments, such proof in the form of newspaper cuttings in which council resolutions of rates assessment for each financial year from 1993/1994 to 2009/2010 was published;

6.4 That the respondents be and are hereby ordered to also furnish applicant through her attorneys with water tariffs and sewerage tariffs from the financial year 1993/1994 to 2009/2010;

6.5 That the respondents be and are hereby ordered and directed to furnish applicant through her attorneys with tariffs for refuse collection and the fire levy from the financial year 1993/1994 to 2009/2010 (or 2013);

6.6 That the respondents be and are hereby ordered and directed to furnish the information referred to in paragraphs above within fifteen (15) days of the issue of this court’s order;

6.7 That the respondents pay costs of this application jointly and severally each paying the other to be absolved;

6.8 Granting applicant further and/or alternative relief.”

[7] The Respondents following upon service of the Application, filed a notice to oppose on 27 August 2009. This was then followed by a Notice in terms of Rule 6 (5) (d) (iii) raising a special defence in the following terms:-

“7.1 Section 1 of the Promotion of Access to Information Act No 2 of 2000 (the Act) defines the Respondent as a public body in that it states ‘public body’ means:

“any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government. . .”

7.2 Section 27 of the Act is a deeming clause. It provides that if an information officer fails to give the decision on a request for access to the requester concerned within the period contemplated in section 25 (1), the information officer is, for the purpose of this Act, regarded as having refused the request;

7.3 Section 78 (1) of the Act provides that a requester or third party referred to in section 74 of the Act may only apply to a court for appropriate relief in terms of section 82 of the Act after that requester or third party has exhausted the internal appeal procedure against a decision of the information officer of a public body provided for in section 74 given the deemed refusal;

7.4 In the circumstances, first respondent being a public body or functionary, the applicant has failed to exhaust the internal remedies contemplated in section 82 of the Act;

7.5 In the event of the above points do not succeed the respondents will seek the leave of this Honourable court to file the affidavits on merits.”

[8] The matter was then set down for argument on 4 February 2010 before this court.

[9] The Respondents’ special defence as set out in its rule 6 (5) (d) (iii) is in essence that to the extent Applicant has not, in its view, exhausted internal appeal related remedies in terms of section 74 (1) of the Promotion of Access to Information Act 2 of 2000 (PAIA), Applicant’s request for relief in the court is premature.

[10] In sum, that Respondents are of the view that Applicant ought to be directed back to the First or Second Respondent for the information sought.

[11] Section 74 (1) reads as follows:-

“a requester may lodge an internal appeal against a decision of the information officer of a public body referred to in paragraph of the definition of “public body” in section 1 –

to refuse a request for access.”

[12] Section 27 of the Act is a deeming provision which reads as follows:

“If an information officer fails to give the decision on a request for access to the requester concerned within the period contemplated in section 25 (1), the information officer is, for the purposes of this act, regarded as having refused the request.”

[13] Whilst the Respondents rely on the deeming provision referred to, counsel for the Respondents’ heads of argument at paragraph 1.2 of the introduction appear to in fact for the first time, provide the reason why the Applicant’s request was met with silence by the Respondents. This paragraph reads:-

“The applicant’s papers seem to reflect that the applicant seeks or demands information which has a potential of crippling and jeopardizing the first respondent’s claims against various consumers in the area of jurisdiction of the first respondent.”

If this then fairly reflects the real disposition of the Respondents towards Applicant’s request for the relevant information, it is somewhat inexplicable as to why the court is simultaneously invited to rely on the deeming provision. It is difficult to understand the reason why this position was not communicated to the Applicant to enable her to exercise the various options at her disposal including, among others, exercising her right to an internal appeal; abandoning the request if so desired or to approach the court for relief.

[14] Section 34 of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) entitles all citizens to a just and fair resolution of disputes they may be involved with in a fair public hearing before a court or by an impartial tribunal.

[15] Section 36(1) of the Constitution establishes a right of access to any information held by the state and section 36(2) requires national legislation to effect this right. The Promotion of Access to Information Act 2 of 2000 is such Act.

[16] Section 237 of the Constitution requires that all constitutional obligations must be performed diligently and without delay.

[17] In Nouport Christian Care Centre v Minister, National Department of Social Development 2005 (1) BCLR 1034 (T) at paragraph 28 the court held that:

“The approach to be followed in matters where the exercise of public power is challenged by way of review proceedings, has been encapsulated in various decisions by the Constitutional Court. For present purposes I only refer to the judgment in Pharmaceutical Manufacturers Association of South Africa and Another, in re: Ex parte President of the Republic of South Africa & Others 2000 (2) SA 674 (CC) at 696 E‑H (paragraph 45):

The interim Constitution which came into force in April was a legal watershed. It shifted constitutionalism, and with it all aspects of public law, from the realm of common law to the prescripts of a written Constitution which is the supreme law. That is not to say that the principles of common law have ceased to be material to the development of public law. These well established principles will continue to inform the content of administrative law and other aspects of public law, and will contribute to their future development. But there has been a fundamental change. Courts no longer have to claim space and push boundaries to find means of controlling public power. That control is vested in them under the Constitution, which defines the role of the courts, their powers in relation to other arms of Government and the constraints subject to which public power has to be exercised. Whereas previously constitutional law formed part of and was developed consistently with the common law, the roles have been reversed.”

[18] In Armbruster & Another v Minister of Finance and Others 2007(12) BCLR 1283 (CC) at page 1309 paragraph 81, the Constitutional Court per Mokgoro J stated:-

“Finally, though nothing untoward in the conduct of the official in this case has been established, it is necessary to underline the fact that officials are constitutionally bound, in the daily operation of their role and functions, to observe the rule of law and promote the spirit, purport and objects of the Bill of Rights. The public administration must always and in every sphere be governed by the democratic values and principles enshrined in the Constitution and services must be provided impartially, fairly, equitably, and without bias.” (Section 195 of the Constitution).

[19] In University of Western Cape v MEC for Health and Social Services 1998(3) SA 124 (C) at 1301, Hlophe J, (as he then was), stated:-

“Our courts have repeatedly laid down that they do not want to usurp the powers of the authorities to whom the legislation has vested the powers to decide one way or the other. To do otherwise would constitute an unwarranted usurpation of the powers entrusted to the public authorities by the relevant statute. Therefore in the ordinary course the Courts will refer the matter back because the Court is slow to assume a discretion which has by statute been entrusted to another functionary or repository of power. It is only in exceptional cases that this principle will be departed from. Over the years, South African Courts have recognised that in exceptional circumstances the Court will substitute its own decision for that of a functionary who has a discretion under the Act. Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter, the Courts have not hesitated to substitute their own decision for that of the functionary. Our Courts have further recognised that they will substitute a decision of a functionary where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction.”

[20] In MEC for Roads and Public Works, EC v Intertrade Two (Pty) Ltd 2006(5) SA 1 (SCA), Maya JA para (8) observed:

“Section 32 of the Constitution confers upon every person a general and unqualified right of access to any information held by the State and its organs. It then requires the enactment of national legislation to give effect to the right, which legislation ‘may provide for reasonable measures to alleviate the administrative and financial burden on the State’. The Promotion of Access to Information Act is that legislation. The right to obtain information is conferred also, albeit for the limited purpose of litigation, by Uniform Rules 53 and 35, which regulate review proceedings and the discovery procedure, respectively.”

The learned Judge of the Appeal went on to say at para 20:

“There is another issue that requires comment. The appellant’s resistance to Intertrade’s request for documentation on technical grounds was, in my opinion, most reprehensible. Important issues are at stake here. Intertrade seeks to establish the truth about an extraordinarily extended tender process to exercise and protect its rights. The appellant’s knew precisely what documents it required from the outset. They did not raise any impediment which would prevent them from producing the documents. Neither did they deny that they had the documents in their possession. Their response is rendered more deplorable by the report contained in the department’s own correspondence which shows that, whilst they were embarking on delaying tactics at the taxpayer’s expense, sick and vulnerable citizens were suffering and children were dying in poorly maintained hospitals as a direct result of their failure to comply with their constitutional obligations.”

[21] I refer to the aforegoing decision in an effort to send the clear message that an Applicant who has in good faith and as of right requested information in terms of PAIA ought to be dealt with in a rational, fair and just manner by public authorities. In an open and democratic society, government must be accountable for its decisions and its actions should be informed by rational considerations that are explicable to those affected. Public access to information is fundamental to encouraging transparency and accountability in the way in which government and public authorities operate. Executive action must not be arbitrary. Arrogant disregard and failure to positively engage the public is not one of those values contemplated in the Constitution. There is no room for a policy of ‘don’t ask, don’t tell’.

In this case, there seems to exist an apparent lack of insight by Respondents of their legal position as a body that is there in order to serve citizens and ratepayers. I still do not understand why, if the reason Applicant was not furnished the information arose out of the Respondents’ perception to be gathered from counsel’s heads, this was not communicated to Applicant as Applicant is entitled to be told by law.

[22] The nature and extent of a public body’s obligation where the right of access to information is involved is eloquently expressed in Van Niekerk v Pretoria City Council 1997 (3) SA 839 (T). There, Cameron J, (as he then was) dealing with a claim brought under section 23 of the interim Constitution (the precursor to section 32 of the Constitution) said at 850 A-C:-

“In my view, section 23 entails that public authorities are no longer permitted to ‘play possum’ with members of the public where the rights of the latter are at stake. Discovery procedures and common‑law claims of privilege do not entitle them to roll over and play dead when a right is at issue and a claim for information is consequently made. The purpose of the Constitution, as manifested in section 23, is to subordinate the organs of State. . . to a new regimen of openness and fair dealing with the public.”

[23] The election by the Respondents not to simultaneously file answering affidavits is also a matter of concern in light of the unwarranted additional costs to be incurred by the Applicant where Respondents are given leave to file. This matter could have been concluded but for the Respondents’ conduct. The duty of the Respondents is always to facilitate rather than to obstruct the dissemination of reasonably requested information.

[24] Where the manner in which an Applicant was dealt with and both the decision to oppose and the way in which the case was conducted represented unconscionable conduct on the part of any sphere of government, the court can express its displeasure by an award of costs on a punitive scale. See: Njongi v MEC Department of Welfare, Eastern Cape 2008(4) SA 237 (CC).

[25] In the result the following shall issue:

The Respondents’ special plea is dismissed;

The Respondents are ordered to file their answering affidavits within fifteen (15) days of this order;

The Respondents are ordered jointly and severally, to pay Applicant’s costs on a scale as between attorney and client, the one paying the others to be absolved.

________________________

P T MAGEZA

ACTING JUDGE OF THE HIGH COURT

Attorney for the Applicant: Mrs E N Nyobole

Attorneys for the Applicant: Voyi-Nyobole Attorneys

Suite 318 & 325, 3rd Floor

Development House

York Road

MTHATHA

Counsel for the Respondents: Mr V Kunju

Attorneys for the Respondents: X M Petse Incorporated

4th Floor‑Suite 445

Development House

York Road

MTHATHA

Heard on: 4 February 2010

Delivered on: 18 March 2010

Pienaar v Registrar of Financial Services and Another

Pienaar v Registrar of Financial Services and Another (629/2013) [2013] ZAECPEHC 37 (16 July 2013)

IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – PORT ELIZABETH

CASE NO: 629/2013

REPORTABLE

Heard: 27 June 2013

Delivered: 16 July 2013

In the matter between:

FRANCOIS GIDEON PIENAAR………………………………………………………………APPLICANT
and
THE REGISTRAR OF FINANCIAL SERVICES …………………………..FIRST RESPONDENT
NATIONWIDE FUNERAL SERVICES CC
(Registration Number 2000/015435/23)
(In Liquidation) ………………………………………………………………….SECOND RESPONDENT
______________________________________________________________________

JUDGMENT
______________________________________________________________________

MAGEZA AJ

The statutory provisions and Registrar’s directives
to financial service providers.

[1] Section 14(1) of the Financial Advisory and Intermediary Services Act No. 37 of 2002 (FAIS Act) makes provision for the debarment of financial services representatives and requires that an authorized financial services provider must ensure that any representative who no longer complies with the ‘fit and proper’ requirements referred to in section 13(2) (a) read with section 8(1), or has contravened or failed to comply with any provision of this Act in a material manner, is prohibited by such provider by the withdrawal of any authority to act on behalf of the provider, and that the representative’s name is removed from its register referred to in section 13(3).

[2] Section 14(2) enjoins: “For the purposes of the imposition of any prohibition contemplated in subsection (1), the authorized financial services provider must have regard to –

(a) information regarding the conduct of the representative as provided by the registrar …; and

(b) any contravention of, or failure to comply with, any relevant provision of this Act by the representative.”

Section 14(3) provides that an authorized financial services provider must within a period of fifteen days after the removal of the name of a representative from the register as contemplated in subsection 14(1), inform the registrar in writing thereof and provide the registrar with the reasons for the debarment in such format as the registrar may require. The registrar may then make known any such debarment and the reasons
therefor by notice in the Gazette or by means of any other appropriate public media.

[3] The Registrar of Financial Services Providers has, in terms of the amended section 13(3)(a) of the FAIS Act, made available by way of a circular to all financial services providers, a ‘request for debarment’ form, in a prescribed format in which a provider must notify the Registrar of the removal of the debarred representative’s name from the register and the reasons for the debarment. This form is titled:

“Form and manner of notification to registrar of financial services providers regarding debarment of representatives under the section 14 of the financial advisory and intermediary services Act, 2002”
and provides:

“Instructions on completing the prescribed form –

1. Providers must ensure that the prescribed form is completed in full and that subsequent alterations are initialed.

2. Full reasons for the debarment must be provided and the information and documentary evidence in support of the reasons must be attached.” (my underlining) Appearing at the bottom of the body of the form itself, is the further directive that a

requester must:

“7. Attach all relevant documentation including, but not limited to-

(i) evidence and information supporting the reasons for debarment;

(ii) a copy of the service contract or mandate between FSP and debarred representative;

(iii) transcript of disciplinary hearing; and

(iv) forensic/investigation report (if any).”

These are the first respondent’s own directives which it requires of financial services

providers to follow and comply with in requesting a debarment.

[4] This Court is called upon to decide whether (a) second respondent, represented by one Mari van Rooyen, had lawful reason to request and secure a debarment of the appellant without complying with the above statutory provisions and directives and; (b) whether the first respondent acted lawfully in effecting the debarment. The application is directed at the review and setting aside of the decision of the second respondent, effected by the first respondent at the request of second respondent. The applicant is of the view that there has been a lamentable failure by both respondents to comply with the law and directives provided and set out in the above paragraphs. The relief he seeks is the following:

“1. That the Second Respondent’s debarment of the Applicant on 17 October
2012, in terms of Section 14 of the Financial Advisory and Intermediary
Services Act, 37 of 2002 is declared to be a nullity.

2. Alternatively that the said debarment be set aside.

3. That the First Respondent be directed to amend his central representative register to reflect the decision of this Honourable Court in terms of 1, alternatively 2 above;

4. That the First Respondent be directed to pay the costs of this application.
5…”

[5] First respondent is defined as a person contemplated in section 2 of the Financial Advisory and Intermediary Services Act, 37 of 2002 (FAIS Act) charged with the duty to enforce compliance by registered financial services providers and exercises public power and function as contemplated in the definition of “administrative action” in section1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The second respondent in turn, prior to its liquidation, conducted business as an administrator of group funeral insurance policy schemes and sold funeral insurance policies. Second respondent does not oppose the relief sought and it has thus been left to the first respondent to resist the relief sought by applicant on the grounds set out hereunder.

[6] Applicant details in his papers that he is the founder of the second respondent and commenced the business in 1994 ‘literally from nothing’. According to him, at the time of its liquidation in 2012, the business yielded a turnover of some seven million rands in revenue. Ms Mari van Rooyen, his daughter, joined him in the business at a time when she was still a student and had, over a period of time, admittedly made a substantial contribution in the development thereof. Motivated by her contribution, he decided to relinquish some of his member’s interest in the close corporation in her favour with a view to increasing her personal holding gradually over time, in anticipation of his own retirement from the business.

[7] These laudable intentions however did not come to pass as the relationship between father and daughter took a nasty turn, leading in the end to a complete breakdown in their relationship and eliminating, as he puts it, ‘the possibility of any future co-operation between us.’ He says, in an effort to hound him out of the enterprise and to assume his participation and member’s interest therein, his daughter launched an urgent application for Interdictory relief against him on 15 October 2012 before the Western Cape High Court under case number 1976/2012. He says:
‘The relief van Rooyen sought in the Cape Town application was couched
in the form of a temporary interdict pending the conclusion of a substantive application she intended launching in terms of Section 36 of the Close Corporations Act, 69 of 1984 whereby she would seek the approval of the court for my removal as a member of the Second Respondent and the acquisition by the Second Respondent of my membership interest.’

[8] He goes on to say that:

‘Contemporaneously with the launching of the Cape Town application van
Rooyen, unilaterally, formally notified the First Respondent that I had been
debarred from acting as a representative of the Second Respondent, as
contemplated in section 14 of the Act.’
and that,

On 5 November 2012 the First Respondent wrote to Ms van Rooyen, confirming that he had recorded my purported debarment in its central representative register.’

[9] Applicant also makes reference to a prescribed form circulated by first respondent to all financial services providers, the completion of which form is mandatory for purposes of lodging debarment requests with first respondent. This form was completed and submitted by Ms van Rooyen on 17 October 2012. The form bears the following inscription at the top thereof,

‘DEBARMENT IN TERMS OF SECTION 14 OF THE FAIS.’
He points out that contrary to what is anticipated in the first respondent’s own prescribed forms, no reasons for the request to debar him are evident and no relevant document was attached thereto. The debarment was also neither authorized by the second respondent, as no resolution to this effect had been taken by the members, nor was he informed or afforded an opportunity to answer any “charges” of wrongdoing against him. According to him he had in fact committed no wrong, save that her daughter’s only interest was his removal from the business by any means necessary. Applicant also relies on a further ground. He alludes to a meeting held in Cape Town on 22 October 2012 during which it was agreed that van Rooyen would immediately attend to uplifting the debarment in order for the first respondent to amend its records accordingly. This meeting held to attempt to settle the dispute before the Western Cape High Court was attended by their respective legal representatives. In light of the view I take of the matter on the main ground advanced by applicant, I do not propose to canvas the detail relating to this alleged agreement.

[10] First respondent in its answer deals with how debarments are initiated and undertaken by a financial services provider as well as, what it views as, its role in such proceedings as follows:

“7.1 Its [first respondents] primary function is to oversee the activities of financial institutions (other than banks) and exercises supervision over compliance with the laws regulating financial institutions.

7.2 In terms of section 13(2) of the FAIS Act it is the responsibility of an authorized financial services provider (in this instance second respondent) to ensure and to be satisfied that its representatives at all times comply with the fit and proper requirements prescribed by section 8(1) of the FAIS Act.

7.3 Section 14(1) of FAIS Act requires the financial services providers to debar representatives who, inter alia, do not comply with the fit and proper requirements. The responsibility in terms of the FAIS Act to ensure that representatives comply with the Act rests on the financial services providers themselves. The Registrar plays no role in the debarment and any aggrieved person must address such grievance with the financial services provider directly.

7.4 The Registrar is not required to evaluate or adjudicate on the reasonableness, validity or otherwise of the reasons for the debarment.
First respondent does nevertheless point out in a letter dated 9 November 2012 to applicant’s attorneys that,

‘… the Registrar must ensure that a financial services provider acts in accordance with the provisions of the Act. As such, the Registrar may engage a financial services provider to determine whether a debarment was effected in accordance with the requirements of section 14(1) of the FAIS Act.’

[11] In a further affidavit filed [by agreement] by first respondent, paragraph 6 thereof sets out the following detail explaining the manner in which it had proceeded in effecting the debarment:

“6.1 Finally, I need to deal with the investigations by the Registrar’s office
into the matters alluded to in paragraph 6.8 of the answering affidavit.

6.2 Firstly the reasons for the debarment provided by Ms Van Rooyen on
behalf of Second Respondent in terms of section 14(3).

6.3 These reasons are not perused for the purposes of intervention into the
fsp’s (financial services provider) decision to debar a representative. That
decision is the fsp’s prerogative and duty as is abundantly clear from section

14(1) read with section 13.
6.4 The Registrar looks at the reasons to see that they relate to the
representative’s (in this case the Applicant’s) fitness and propriety as
understood by the FAIS Act; and that the debarment has not been
effected for another reason. The reasons provided normally also serve to
guide the Registrar in his decision whether the debarment and reasons
therefor should be published in the Gazzette as contemplated by section

14(3)(b).

6.5 In this particular instance the Applicant queried the motives for his
disbarment and prevailed upon the Registrar to investigate the
debarment and to exercise his (the Registrar’s) power to debar Ms Van
Rooyen in terms of section 14A.

6.6 The reasons for the debarment were set out in a form used by the
Registrar’s office for this purpose. The office has also published
guidance notes on section 14 debarments. (The Registrar receives
between 40 and 90 debarment notifications on a monthly basis). A copy
of the debarment form received in this instance dated 17 October 2012 is
attached marked GEA 5.
6.7 Attached to the form was a notice of motion (without any founding
affidavit) in Case No 19761/2012 of the Western Cape High Court, in which van Rooyen figured as applicant and sought interdictory relief against Applicant (First Respondent in that matter), not to interfere in the affairs of the Second Respondent.

6.8 These documents were scrutinized not only for reasons furnished by van Rooyen for the debarment of Applicant, but also against the background of the Applicant having insisted that the Registrar should exercise his powers to debar van Rooyen in terms of section 14A for the improper debarment of the Applicant.

6.9 As it were the Registrar’s office was not satisfied that the information
was sufficient and on 22 January 2013 advised van Rooyen to provide
appropriate evidence that the debarment complied with the section 14
requirements.“ Conduct of Ms Van Rooyen

[12] Ms Van Rooyen does not resist the relief sought and from the applicant’s papers it does appear that the parties had started on a sound business footing but had over time gravitated apart with their relationship ultimately reaching the proverbial dead-end, disabling them from operating the business with the same goals and mutual tolerance. The genesis of this is not fully germaine to the relief sought but the fights led ultimately to a battle for control and complete takeover by Ms van Rooyen. The nature of the relief set out in the notice of motion filed with the Western Cape High Court makes this pretty clear and Ms van Rooyen was proceeding with a view to assuming all the members’ interest in the second respondent. I will revert to the detail set out in this notice of motion.

[13] She was also (within the business) its compliance officer appointed and discharging the duties set out in terms section 17 of the FAIS Act. As a compliance officer, she was vested with a statutory power and function to ensure that representatives who no longer comply with the ‘fit and proper’ requirements set out in section 13(2)(a) read with section 8(1) are “prohibited” by her as compliance officer from rendering any new financial service and removed from the list of representatives (s13(3)).

[14] Contemporaneously with launching the Western Cape proceedings on 15 October 2012, she requested the first respondent to debar the applicant by letter dated 17 October 2012. The letter was accompanied by the prescribed form and, first respondent says, attached to this form was also the Western Cape High Court notice of motion. First respondent confirmed the debarment on 5 November 2012 without requiring any additional information underpinning the debarment. Once applicant became aware of the aforegoing, extensive correspondence was exchanged between applicant (through his legal representatives) and the first respondent seeking removal of the debarment. First respondent adopted the attitude that in its view the second respondent had complied with the FAIS Act and that its only role was to simply effect the debarment.

[15] Now, what is in my assessment undeniable is that Ms van Rooyen filed a request for debarment without any reasons being provided other than the attached notice of motion. It is clearly evident that there were many proper courses available to her if she perceived there was financial misconduct on the part of applicant. The most immediate course would have been to source an internal auditor’s report detailing misappropriation or wrongdoing. Once available and presented to applicant for comment, she could if dissatisfied with the response, commission an independent financial investigation based on such a report and if material wrongdoing was confirmed on the two reports becoming available, in my view justifiably approach the first respondent and submit these with a request to debar. Although a disciplinary hearing presided over by an independent chairperson is ideal, a small entity with two partners, members or co-shareholders acting also as representatives may well not have the ability to undertake a lengthy hearing. In such event it could sufficiently comply with a credible financial investigation in which a representative is afforded an opportunity to gainsay investigative findings. She neither did this nor did she convene a hearing. The legislative provisions entrust her with a crucial responsibility to serve a public good whose aim is the protection of a vulnerable public by prohibiting offending representatives and submitting requests to debar.

Conduct of the first respondent?

[16] First respondent failed to act lawfully by debarring applicant without determinable reason and exacerbated the situation by undertaking what I view as an inexplicable excursion to search for reasons post effecting the debarment. Its own letter dated 5 November 2012 acknowledged the letter requesting the debarment and with an alarming innocence and lack of consciousness of its duties, assured her that it had recorded the debarment of applicant and had entered this in its central representative register “as per your notification in the letter referred to above”. In this Court first respondent advanced differing alternative premises in justifying its conduct. First it denies that it has a role to play in the process of a debarment by a requester and states that “any aggrieved individual must address such grievance with the financial services provider.” That, “the Registrar is not required to evaluate or adjudicate on the reasonableness, validity or otherwise of the reasons for debarment” but nonetheless it acknowledges that it has a duty to ensure the financial service provider acts within the terms of the FAIS Act and the law. The first respondent then makes the startling averment that Ms van Rooyen furnished it with reasons and, ‘The reasons for the debarment were set out in a form used by the Registrar’s office for this purpose’ and, ‘Attached to the form was a notice of motion (without any founding affidavit) in Case No 19761/2012 of the Western Cape High Court, in which van Rooyen figured as applicant and sought interdictory relief against Applicant (First Respondent in that matter) not to interfere in the affairs of Second Respondent.’
[17] I do not agree with this assertion made in first respondent’s papers. In the first place, the prescribed form referred to by first respondent and annexed is no more than a sterile and bland document requiring only the personal details of the compliance officer and representative sought to be debarred. All that Ms van Rooyen had done in addition was to simply tick the ‘Honesty and Integrity’ box or column but failed to attach any report of a duly convened hearing or forensic investigative report from which the first respondent could have seen detail resembling reasons. There were none. The fact such a material assertion, is made by an officer charged with the responsibility to independently navigate the obligations set out in the FAIS Act and enforce compliance therewith, is disturbing.
[18] The notice of motion first respondent refers to is a document used in application proceedings and sets out little else but the relief claimed. Such a notice does not set out the facts upon which an applicant relies and the notice must refer to and be accompanied by at least one affidavit in which the facts constitute the evidence in support of the relief claimed. – Rule 6(1) of the Uniform Rules of Court; Wingaardt v Grobler 2010 (6) SA 148 (ECG)
No such affidavit was availed first respondent as at 5 November 2012 when the debarment was effected. A perusal of this notice of motion is also damning in that it clearly spells out that the applicant therein acted in her personal capacity and cited the applicant herein as first defendant and second respondent herein as second respondent. From this it is immediately decipherable that she was pursuing a pure personal interest against the present applicant. The relief therein was totally unrelated to the applicants conduct for purposes of the FAIS Act. She was not acting qua compliance officer as the relief sought was directed only at interdicting the applicant from participating in the day to day conduct of the business; implementing a so-called “Risk Management Plan”; entering the business premises; using its facilities; using motor vehicles and log books and conducting any financial transactions pending his leaving the business. First respondent could not have misconceived the relief sought and it eludes me as to how he could continue in his papers to make this assertion.
[19] Whilst I do not deem it necessary to burden this judgment with irrelevant matter, it is necessary to refer to the paragraphs (in the notice) which specify Ms van Rooyen’s true intentions. Paragraph 4 states:
“4. DAT die bevele uiteengesit in 2.1, 2.2 en 3 hiervan sal dien as ‘n tussentydse interdik met onmiddelike werking, hangende die beregting van ‘n aansoek …
4.1 Dat die Eerste Respondent op hou om lid van die tweede Respondent tewees, en verder bevele dien aangaande wat insluit:
4.1.1 die verkryging van die Eerste Respondent se ledebelang deur die Tweede Respondent;
4.1.2 die bedrae (as daar is) wat betaal moet word opsigte van die betrokke ledebelang of die eise teen die tweede respondent van Eerste Respondent;
4.1.3 die bedraaie (as daar is) wat betaal moet deur die Eerste Respondent aan die Tweede Respondent van Eerste Respondent;
4.1.4 die wyse en tye van sodanige betalings; en
4.2 enige ander angellentheid betreffende die beeindiging van lidmaatskap wat die Hof mag goeddunk;
4.3 Koste
4.4 “
In my view, this lends credence to the applicant’s averment that the request to debar was sought not for the purposes set out in the FAIS Act but for her own self-serving ends.
[20] There is the further unsupported proposition by first respondent that it was within its powers to enter the name of applicant in its list of debarred financial services advisory practitioners without considering reasons for the request. In making this groundless averment, first respondent relies for justification on the mistaken view that it plays no role in the debarment procedures available to financial services providers other than to enter the name of a non-compliant representative at the request of a compliance officer representing an authorized financial services provider. Having set this view out in the letter dated 9 November 2012 to applicant’s attorneys, first respondent hastens to cover its rearguard by adopting the posture that,
‘… the Registrar must ensure that a financial services provider acts in accordance with the provisions of the Act. As such, the Registrar may engage a financial services provider to determine whether a debarment was effected in accordance with the requirements of section 14(1) of the FAIS Act.’
PAJA
[21] It is common cause that first respondent exercises public power and function as contemplated in the definition of “administrative action” in section1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Section 3(1) of PAJA provides that:
“Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.”
Section 3(2)(b) provides that an administrator must give an affected
person
“(i) adequate notice of the nature and purpose of the proposed administrative action;
(ii) a reasonable opportunity to make representations;
(iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable;
and
(v) …”
Section 6(1) of PAJA provides that any person may institute proceedings in a court for judicial review of an administrative action where such an act was in terms of section 6(2)(c) procedurally unfair; or the action was taken in bad faith or arbitrarily or capriciously (section 6(2)(e)(v) and (vi)).
An administrative act?
[22] First respondent is admittedly a public body established by statute to protect the public from wrongful conduct of finance service representatives resulting in financial losses or prejudice. It owes its powers and duties to an act of parliament, serves a public functionand performs an administrative act. Second respondent is an authorized financial services provider defined in terms of section 1 of the FAIS Act as “a person who has been granted authorization as a financial services provider by the issue to that person a licence under section 8.”
[23] Ms Van Rooyen was a key individual appointed compliance officer in terms of section 17 charged with the responsibility to monitor compliance with the Act. One of these responsibilities contained in section 14 was to ‘prohibit’ a non-compliant representative from rendering such a service and ensuring adebarmentby first respondent in order to protect the public.
Section1 of the PAJA defines administrative action as:
“any decision taken, or any failure to take a decision, by –
1. …
2. A natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision which adversely affects the rights of any person and which has a direct or external legal effect …”
In our law a legal entity “does not have to be part of government itself to be bound by the Constitution” – see AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2006 11 BCLR 1255 (CC). Section 239 of the Constitution defines an organ of state to include “any other functionary or institution … exercising a public power or function.”
It is instructive to note that the FAIS Act provides for debarment at the request of an authorized financial services provider (section 14) or (mero motu) by the Registrar or Deputy-Registrar of the Financial Services Board (section 14A, inserted by Parliament in 2008). Whether the debarment is requested in terms of section 14 or 14A an administrative function is performed and the provisions of PAJA find application. In President Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 CC at paras 140-141 it is emphasized that in determining whether an act is of an administrative nature the emphasis is on the function rather than on the functionary. What is important is the nature of the power that is being exercised. Whilst section 1 of PAJA defines administrative action in terms of ‘a decision taken’, the kind of action that will constitute a ‘decision’ is a matter of construction in the context of each case – see Bhugwan v JSE Ltd 2010(3) SA 335 (GSJ) and Mobile Telephone Networks (Pty) Ltd 2013(1) All SA 60 (SCA).
[24] The steps taken by first respondents’ officials in receiving, considering and implementing a debarment must be lawful. In this sense, it is imperative that the reasons for the requested debarment must be evident in the documentation provided by the requester and attached to the form provided by the Financial Services Board. It is evident from the first respondent’s own prescribed debarment forms that financial services providers are required to submit supporting documentation which include, but not limited to, a transcript of a disciplinary hearing pursuant to which a debarment is sought. It is not for the Board to insulate itself from the obligation to act lawfully by denying that it owes a representative sought to be debarred from considering whether there were such valid reasons or not. Its consequence is that members of the public may be informed of such a debarment by a notice in the Government Gazzette and by way of an entry of the name of such a representative in first respondent’s central representative register. In all such cases, the individual is entitled to just and reasonable procedure. Section 14(1) does not authorize unlawful acts either in respect of the conduct of the financial services provider or the first respondent.
[25] Section 3(1) of the Promotion of Administrative Justice Act (the Act) requires administrative action which materially adversely affects the rights or legitimate expectations of any person to be procedurally fair. A compliance officer in the position of second respondent must provide any such person in terms of section 3(2)(b) of the Act adequate notice of the nature and purpose of the administrative action; reasonable opportunity to make representations; notice of any right of review and right to request reasons for the administrative action. In terms of section 6 of the Act a court may review action taken by an administrator who was biased and/or where such action was procedurally unfair. In receiving the information and carrying out the public function of recording the details of the debarment and publishing a notice in the Government Gazzette for public information the first respondent concurrently carries out a public function and must act consonant with procedural fairness.
Must the non-compliance be visited with nullity?
[26] All administrative acts not authorized by law are invalid. This is expressed in the maxim quid fit contra legem est ipso jure nullum. The administrative agency is not simply free to use its powers as it pleases … it must exercise them in a manner which advances the public interest whilst remaining faithful to the purpose of the enabling legislation. – see Lawrence Baxter, Administrative Law (1984) at p351.
Can the first respondent reverse the debarment?
[27] First respondent expressed the view in its papers that, having effected the debarment, it was not in a position to remove the same and that the only route for relief available to applicant was initiating Court proceedings for a review of the decision to have him debarred and to have the Court set aside the debarment. To put it differently, the debarment of the applicant stands until set aside in review proceedings. For once I agree with the first respondent in this restatement of the law. Although an act may be unlawful and thus invalid, our law acknowledges that pending a declaration of invalidity, the unlawful act carries factual effect … and it is necessary to secure a Court order to obtain reparation or prevent the harm. – Baxter op cit at p 360.
[28] In Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at para 26, this is put as follows:
“For those reasons it is clear, in our view, that the Administrator’s permission was unlawful and invalid at the outset. Whether he thereafter also exceeded his powers in granting extensions for the lodgement of the general plan thus takes the matter no further. But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided its belief was correct? In our view it was not. Until the Administrator’s approval (and thus also the consequences of its approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognized that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.”
[29] See also the as yet unreported decision of Plasket AJA in MEC for Health, Province of Eastern Cape NO and Another v Kirkland Investments (Pty) Ltd t/a Eye & Laser Institute (473/12) [2013] ZASCA 58 (16 May 2013) at para 21 where the learned Judge expands as follows:
“There is no suggestion in the above passage that the obviousness of the unlawfulness is a factor of any relevance. Indeed, Hoexter understands Oudekraal to mean – and she is in my view correct – that ‘even an obvious illegality cannot simply be ignored’. One can easily understand why this is so. It would be intolerable and lead to great uncertainty if an administrator could simply ignore a decision he or she had taken because he or she took the subsequent view that the decision was invalid, whether rightly or wrongly, whether for noble or ignoble reasons. The detriment that would be caused to the person in whose favour the initial decision had been granted is obvious.”- the Court went on to refer toLawrence BaxterAdministrative Law (1984) at p372 where the author states:
‘Indeed, effective daily administration is inconceivable without the continuous exercise and re-exercise of statutory powers and the reversal of decisions previously made. On the other hand, where the interests of private individuals are affected we are entitled to rely upon decisions of public authorities and intolerable uncertainty would result if these could be reversed at any moment. Thus when an administrative official has made a decision which bears directly upon an individual’s interests, It is said that the decision-maker has discharged his office or is functus officio.’
[30] The matter then in my view resolves as follows:
30.1 The application succeeds.
30.2 The second respondent’s debarment of the Applicant on 17
October 2012, in terms of Section 14 of the Financial Advisory and
Intermediary Services Act, 37 of 2002 is declared to be a nullity.
30.3 The first respondent is directed to amend its central
representative register to remove the debarment of the applicant
Francois Gideon Pienaar.
30.4 First respondent is ordered to pay the costs of this application.
______________
MAGEZA AJ
For Applicant: Mr OH Ronaasen
Instruted by: Van Zyl’s Incorporated
25 4th Avenue
Newton Park
Port Elizabeth
For First Respondent: Mr Van der Linde
Instructed by: Strauss Daly Attorneys
57 Pickering Street
Newton Park
Port Elizabeth

Minister of Safety and Security and Others v Ndlovu

Minister of Safety and Security and Others v Ndlovu (788/11) [2012] ZASCA 189; 2013 (1) SACR 339 (SCA) (30 November 2012)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 788/11

Reportable

In the matter between:

MINISTER OF SAFETY AND SECURITY FIRST APPELLANT

MINISTER OF JUSTICE AND CONSTITUTIONAL SECOND APPELLANT

DEVELOPMENT

and

NEVER NDLOVU RESPONDENT

Neutral citation: Minister of Safety & Security v N Ndlovu (788/11) [2012] ZASCA 189 (30 November 2012).

Coram: Ponnan, Bosielo and Petse JJA

Heard: 7 November 2012

Delivered: 30 November 2012

Summary: Claim for damages for unlawful detention following upon unlawful arrest ─ unlawfulness not ceasing when accused is brought before a reception court which remands him in custody without enquiring whether it is in the interests of justice to detain him further.

________________________________________________________________

ORDER

________________________________________________________________

On appeal from: Eastern Cape High Court, Grahamstown (Mageza AJ sitting as court of first instance):

1 The appeal is dismissed with costs, including the costs of two counsel to be paid jointly and severally by the appellants, the one paying the other to be absolved.

2 The following order is substituted for the order of the court below:

‘(1) Judgment is entered in favour of the plaintiff:

(a) against the first defendant for:

(i) payment of the sum of R55 000;

(ii) interest at the prescribed legal rate a tempore morae;

(iii) costs.

(b) against the first and second defendants jointly and severally, the one paying the other to be absolved, for:

(i) payment of the sum of R175 000;

(ii) interest at the prescribed legal rate a tempore morae;

(iii) costs.’

________________________________________________________________

JUDGMENT

________________________________________________________________

PETSE JA (Ponnan and Bosielo JJA concurring):

[1] This appeal concerns the issue whether or not the further detention of the respondent, Mr Never Ndlovu, for the period from 24 October to 31 October 2008 to await his trial on a charge of possession of suspected stolen property was unlawful. The Eastern Cape High Court, Grahamstown (Mageza AJ) held that it was and accordingly awarded the respondent damages. It subsequently granted the appellants leave to appeal against its judgment and order to this court. I shall say more about the terms of the order later.

[2] The determination of the issue arising in this appeal will best be understood against the backdrop of the facts that follow.

[3] On 21 October 2008, late in the afternoon, the respondent, a Zimbabwean national, received a telephone call from an acquaintance known as Golden, requesting him to meet the latter in the street in Joza Township, Grahamstown, where the respondent lived at the time. Golden also requested the respondent to bring with him a laptop that he had earlier that day handed to the respondent for the purposes of the latter to install a Windows Software Program.

[4] The respondent obliged, but unbeknown to him Golden was accompanied by eight police officers, under the command of Warrant Officer Van Ross, who were investigating a case concerning the theft of the laptop in question from the premises of Westbank in Grahamstown. The police officers, after a brief questioning of the respondent, seized the laptop and asked the respondent to lead them to his residence, which he did. There, four police officers conducted a search of the premises without a search warrant. They seized an assortment of the respondent’s property comprising, inter alia, computers, a television set, Tech DVD player, a LG flatron screen and miscellaneous computer accessories.

[5] The respondent was arrested and detained for being in possession of what the police said was suspected stolen property in contravention of s 36 of the General Law Amendment Act 62 of 1955. On 23 October 2008 he was brought before a so-called ‘reception court’ ─ about which more shall be said later ─ and remanded in custody to 30 October 2008 because a so-called ‘Bail Information Form’, completed by the police and contained in the police docket, reflected that the respondent had furnished a false address and consequently had no fixed address. For this reason, according to the police, the respondent was not to be released on bail. On 30 October 2008, the respondent was granted bail of R500 which was paid on his behalf the following day. His case was postponed yet again. On 9 December 2008 charges against the respondent were withdrawn and on 10 December 2008 his property, seized by the police, on the date of arrest, was released to him.

[6] On 21 April 2010 the respondent instituted proceedings against the appellants, the Minister of Safety and Security, as the first defendant and the Minister for Justice and Constitutional Development, as the second defendant in the high court for unlawful arrest and detention from 21 to 31 October 2008.

[7] The matter proceeded to trial before Mageza AJ. During the appellants’ case it was conceded on behalf of the first appellant that the arrest of the respondent on 21 October 2008 and his subsequent detention until 23 October 2008, when he was brought before the ‘reception court’, were unlawful. But the appellants persisted in their defence that the respondent’s unlawful detention ceased when the magistrate in the ‘reception court’ remanded the respondent in custody to 30 October 2008 for a bail application and legal aid. This appeal is thus only concerned with the lawfulness of his further detention from 24 to 31 October 2008. The case of the appellants was that from the time the magistrate issued the detention order the unlawful detention ceased.

[8] The high court found in favour of the respondent and granted judgment as follows:

‘1. Judgment is entered in favour of Plaintiff:

(a) in respect of the unlawful arrest, attendant contumelia and detention between the evening of the 21st to the morning of the 23rd October 2008, damages in the amount of R55 000.00.

(b) in respect of the unlawful detention in prison between the 24th October to 31st October 2008 for the sum of R175 000.00.

(c) The defendants are ordered, jointly and severally, to pay interest on the damages awarded in (a) and (b) above at the legal rate from a date fourteen days after date of this judgment to date of final payment.

(d) Costs of suit together with interest calculated at the legal rate from a date fourteen days after the allocator to the date of payment.’

[9] On the pleadings, the arrest and subsequent detention of the respondent were common cause. It was also not in dispute that the respondent was arrested at Extension 4, Grahamstown where he was found in possession of the goods seized by the police on suspicion that they had been stolen. At a subsequent pre-trial conference, held on 7 April 2011 in terms of rule 37(1) of the Uniform Rules, the appellants correctly accepted that they bore the onus to establish that the respondent’s arrest and detention were legally justified (see Minister of Law & Order & others v Hurley & another 1986 (3) SA 568 (A).

[10] In Zealand v Minister for Justice and Constitutional Development & another 2008 (6) BCLR 601 (CC) the Constitutional Court in affirming this principle said:

‘It has long been firmly established in our common-law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification.

. . .

There can be no doubt that this reasoning applies with equal, if not greater, force under the Constitution.’[1]

[11] Of the witnesses who testified at the trial only the evidence of Captain Green, who was, at the material time, the Sector Commander of the Detective Branch, Grahamstown and Mr Lionel Prince, the prosecutor who appeared for the State in the ‘reception court’ on 23 October 2008, is material. Captain Green testified that, as Sector Commander, he had eighteen investigating officers under him. When he received police dockets he would peruse them and allocate them to designated investigating officers. When he received the docket relating to the respondent, he observed that it contained no identity or passport number and that a visit by an officer to the address furnished by the respondent had established that the respondent was unknown and that this triggered what he called ‘red lights’ because the respondent was a Zimbabwean national. Contained in the docket was a document titled ‘Bail Information Form’, which had been completed by Constable Buthi. This ‘Bail Information Form’ was intended to assist the prosecutor at the respondent’s first appearance at court. The prosecutor was expected to evaluate the information contained in that form and then decide whether to consent or object to bail. The form recorded that the appellant be refused bail because he was considered a flight risk.

[12] Prince testified that he did not study the docket but merely perused the ‘Bail Information Form’. He said it was the responsibility of the control prosecutor, Ms Msesiwe, to study the docket, draw a charge-sheet and thereafter give it to the prosecutor in the ‘reception court’. He, upon receiving the docket, only read the ‘Bail Information Form’ and realised that bail was to be opposed. He then called the respondent’s case before a magistrate in the ‘reception court’ and applied for the case to be remanded. All of this he did without reference to the respondent. Without further ado the magistrate postponed the case for seven days.

[13] It is opportune to say something about the so-called ‘reception court’, which has since ceased to exist. This is a ‘court’ which at that time was solely dedicated to dealing with accused persons at their first appearance in court. All cases before it were postponed as a matter of course and as a rule it never entertained any bail applications. Neither did it embark on a judicial evaluation to determine whether it was in the interests of justice to grant bail nor, in this case, did it afford the respondent an opportunity to address it on the question of his eligibility to be released on bail.

[14] Msesiwe, who was said to have perused the docket to make a determination as to whether the respondent should be released (whether on bail or warning) or detained further, did not testify. Nor did Constable Buthi. The evidence does reveal that the arresting officers had been to the respondent’s residence where they conducted a search and seized some of the respondent’s goods at the time of his arrest. Accordingly there could have been no doubt about the respondent’s residential address. It is thus inexplicable why Buthi would have suggested that the respondent had no fixed abode and as a consequence that he posed a flight risk. Buthi was a crucial witness. Indeed that seemed to have been accepted by Green when he testified.

[15] The case of the appellants thus suffers fundamentally from evidentiary short-comings. First, Prince who applied for the postponement of the respondent’s case on 23 October 2008 did not, on a fair assessment of his evidence, read the contents of the docket. He solely relied on the police entry in the ‘Bail Information Form’ that the respondent should not be granted bail. Msesiwe, who was said to have read the docket was not called. Indeed Prince conceded under cross-examination that anyone properly applying their mind to the matter at hand would have realised that the respondent was not a flight risk. Nor was Buthi called, who was said to be the source of the entry in the ‘Bail Information Form’ that the respondent had furnished a false address. The inevitable consequence of these evidentiary short-comings is that the evidence of the appellants, who bore the onus to justify the deprivation of the respondent’s liberty, came nowhere near discharging that onus. Quite clearly had the police conscientiously performed their duties, given that the respondent’s freedom was at stake, they would have realised that the respondent had a fixed address and was thus not a flight risk. Moreover the appellants’ problems are also compounded by the fact that the respondent was granted bail on his second appearance before court even though his circumstances had not changed.

[16] In Minister of Law and Order v Kader 1991 (1) SA 41 (A) at 51A-C this court held:

‘. . . I consider, that when s 50(1) speaks of further detention for the purposes of trial being ordered by the court “upon a charge of any offence”, this does not contemplate that the matter would be ready for trial at the first appearance of the arrested person, or that a properly formulated charge must then be preferred against him . . . All that the section contemplates is that the purpose of the detention throughout must be to secure the attendance of the accused at his trial upon the charge, which, it is expected, will be preferred against him. It goes without saying that it is the function of the judicial officer to guard against the accused being detained on insubstantial or improper grounds and, in any event, to ensure that his detention is not unduly extended.’ (My emphasis.)

In this case it is common cause that the ‘reception court’ never embarked on any judicial evaluation because, as a matter of course, its function was merely to postpone cases and without, it would seem, enquiring whether or not an accused person ought to be detained pending a trial. It can thus hardly be contended that the unlawful detention of the respondent ceased when he was brought before the ‘reception court’ which ordered his further detention. It follows that this appeal must fail.

[17] It remains to deal with one final aspect. It was common cause before us that the order of the high court has to be corrected. Judgment was entered in favour of the respondent for his unlawful:

(a) arrest and detention for the period 21 to 23 October 2008 in the sum of R55 000; and

(b) detention for the period 24 to 31 October 2008 in the sum of R175 000.

Although the order does not make it plain, in respect of (a), judgment could only have been entered against the first appellant. That would also hold true in respect of the interest and costs that flow from that award. And in respect of (b), judgment, interest and costs ought to have been entered against the appellants jointly and severally. It is thus necessary that the order be amended to reflect that. To avoid further confusion it may simply be more convenient to set aside the order in its entirety and replace it with the correct order. Save for correcting the order, the appeal must otherwise be dismissed with costs including the costs of two counsel, it being agreed between the parties that the employment of two counsel was justified.

[18] The following order is made:

1 The appeal is dismissed with costs, including the costs of two counsel to be paid jointly and severally by the appellants, the one paying the other to be absolved.

2 The following order is substituted for the order of the court below:

‘(1) Judgment is entered in favour of the plaintiff:

(a) against the first defendant for:

(i) payment of the sum of R55 000;

(ii) interest at the prescribed legal rate a tempore morae;

(iii) costs.

(b) against the first and second defendants jointly and severally, the one paying the other to be absolved, for:

(i) payment of the sum of R175 000;

(ii) interest at the prescribed legal rate a tempore morae;

(iii) costs.’

_________________

X M PETSE

JUDGE OF APPEAL

Appearances:

Appellants: M J Louw SC

N J Sandi

Instructed by:

Nkuhlu Khondo Incorporated, Grahamstown

The State Attorney, Bloemfontein

Respondent: A Beyleveld SC

D Niekerk

Instructed by:

Whitesides, Grahamstown

Naudes Attorneys, Bloemfontein

[1] At para 25.
© 2016 Templeton Pops Mageza