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[2016] ZAGPJHC 192
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Manaka and Another v Office of the Chief Justice (27754/ 2015) [2016] ZAGPJHC 192 (8 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
27754/ 2015
DATE:
08 JULY 2016
In
the matter between:-
MANAKA,
MANCHA
GABRIEL
..................................................................................
First
Applicant
CORNELIUS,
JOHNATHAN
MICHAEL
................................................................
Second
Applicant
And
OFFICE
OF THE CHIEF
JUSTICE
...................................................................................
Respondent
J
U D G M E N T
Ismail
J:
[1]
In this application the applicants seek an order in the following
terms:
1.
that the applicants be awarded R
2 124 888,00 ;
2.
interest from the date of approval as per
annexureMM3 or date of demand, as directed by the Honourable Court;
3.
costs of the application, only if the
application is opposed by the respondent(s);
Background
to the dispute:
[2]
The applicants were appointed as assessors in a criminal trial, in
terms of the provisions of section 142 (2) the
Criminal Procedure Act
51 of 1977
[CPA].The significance of the role of assessors in a
criminal trial was dealt with by van der Westhuizen J in
S
v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
(CC)
at paras [36],[37] and [53] of the judgment.
[3]
The applicants were paid the sum of a R1 000, 00 per day for
each day that the trial lasted, during the initial period.
[4]
The initial period is the period when the trial commenced on the 22
February 2010 until 24 April 2012
[5]
The applicants made representation to the Judge President of the
division, who recommended an increase in the daily fee. The
Judge
President forwarded his recommendation to the court manager.
[6]
The court manager in turn forwarded the request to the regional head
in terms of the chain of command, regarding the issue increasing
the
fee. To cut a long story short, the increment was approved on the 24
April 2012. The fee was thereafter increased from R1 000
per day to
R3 494 per day as from the date of approval. This is evident
from the internal memo dated 13 April 2012, which
is contained at
pages 124 to 126 of the paginated papers.
[7]
In a further internal memorandum dated 13 April 2012 from M Janse van
Rensberg, the Director Regional Court Services to Adv
S Jiyane
(pages128-130 of bundle), Acting Chief Director: Court Performance, M
Ndlokovane in manuscript commented as follows:
“
only
support the increase from date of approval and does not support any
past
factor
approval”
[8]
The nucleus of the dispute between the applicants and the respondent
evolves around the sphere, that the applicants aver that
they were
not awarded the increase retrospective from the inception of the
trial.
The
applicants contend and seek an order compelling the respondent to
comply with provisions of the Department of Justice Financial
Instructions.(DFI)
[9]
It was submitted that the tribunal erred in not approving the
applicants fee from inception of the trial and had it properly
construed its duty it would have found that there was merit in the
applicants complaint to have their fee increased retrospectively,
to
22 February 2010.
[10]
In a further internal memorandum dated 5 October 2012, from the
Director General, a response from the CFO, at page 134, the
following
appears:
“
In
instances where the aforementioned process was not followed the
granting of exemptions for example ex post facto approvals will
reside with the Accounting Officer.Notwithstanding the
aforementioned, in light of our existing financial constraints as
well
as the precedence that will be set in this regard, it is
recommended that
ex post facto
approval
should not be granted.
The
reason proffered for not granting such exemptions for increased fees,
were twofold. Firstly, financial constraints and budgetary
parameters
and secondly the setting of a precedent for increased fees.
Financial
constraints are by their very nature based on budgetary allocations
to different departments from the treasury. Each department
has to
work within the parameters of the budget allocations made to it.
[11]
The reasons for not granting the retrospective increase was that it
would have equated to a 249% increase in the fee and it
would have
created pressure on the budgetary constraints.
[12]
Court managers were in terms of a circular directed to keep assessors
costs to a minimum, and increases were to be motivated,
before they
were considered. To this end the respondent submitted that it acted
in terms of the prevailing legislation, namely
in an endeavour to
limiting costs and that the decision taken was a rational and
reasonable one. The respondent could not accede
to the request for
the financial years 2010 and 2011. The viability of the request was
considered for the year 2012 and it was
accordingly approved.
[13]
The respondent submitted that the request for an increase is
discretionary and it does not give rise to a substantial right.
The
decision had to be taken in view of various factors, which had to be
considered.
[14]
This application is not an application seeking a review of the
decision not to grant the increment with retrospective effect.
It is
an application seeking a declaratory order for payment ‘the
increased fee’ for the initial period.
[15]
On behalf of the respondent it was submitted and contended
thataffidavit, on which the applicants relied failed to disclose
a
cause of action for the relief they sought. It was contended that the
relief which they seek in the notice of motion is an
“
award in the amount of R2 124 888. 00 plus
interest
from
date of approval”
It
was argued on behalf of the respondent that it is not clear whether
the award sought
1.
Is as a result of a contractual claim or a
breach of thereof; and/or
2.
is based on delict and the facts founded in
a claim in delict.
In
this regard the respondent relied upon the matter of
Democratic
Alliance v Kouga Municipality and Others
[2014]
1 All SA 281
(SCA) where Ponnan JA stated:
“
[18]
it is disconcerting to say the least that the a simple throw- away
line in paragraph 27 of the DA’s
founding
affidavit could be relied upon as a foundation for the second leg of
the argument advanced on
appeal
. for, as Mhlantha AJA remarked in
National Council of
Societies for the Prevention of Cruelty to
Animals
v Oppenshaw
[2008] ZASCA 78
,
2008 (5)
SA 339
(SCA)
‘
[29]
It is trite that the applicant in motion proceedings must make out a
proper case in the founding papers. Miller J in
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger
,
put the matter
thus:
‘
In
proceedings by way of motion the party seeking the relief ought in
his founding affidavit to disclose
such
facts as would, if true, justify the relief sought and which would ,
at the same time, sufficiently inform the other party
of the case he
was required to meet. ’ ”
[16]
The applicants, in their heads of argument filed on their behalf,
allege that they acted to their detriment owing to a serious
material
representation that was made to them by the court manager. The
misleading information they relied upon was-
(i)
that the trial was scheduled to last 98
days when in fact the realistic estimation was not less than four
years;
(ii)
the complexity of the issues to be
determined , was undermined;
(iii)
relying on the misleading information they
accepted to render service at a fee which was inappropriate.
Thereafter they requested
an appropriate fee or a variation of the
rate by
increasing the fee to an
appropriate amount.
The
applicants aver that the court manager acted negligently in that they
were given incorrect and/or misleading information regarding
the
duration of the trial. The court manager also kept the Department of
Justice Financial Instructions( DFI) as a confidential
document
whereas it ought to have been made available to them.
These
arguments are contested by the respondent in that it was contended
that the court manager had no control or say regarding
the duration
and/or complexity of the trial.
[17]
The applicants allege that their request for an increase took two two
years before the court manager, ultimately acceded to
their request.
This was only done as a consequence of the intervention of the Judge
President who recommended an increase of the
fee. Only on the 23
April 2012 did the court manager find that there was substance to
their request. It was submitted that the
administrator did not take
the decision within a reasonable time, and
a fortiori
there
was a substantial delay on the part of
the
administration, which prejudiced them financially.
[18]
The applicants are dissatisfied with the decision taken by the
tribunalreferred to in para [7],
supra.
They aver that the tribunal did not act independently and objectively
in that it failed to consider that the court manager delayed
in
determining their request. Furthermore no good or sound reason was
proffered regarding the approval of the increase only from
23 April
2102 as opposed to February 2010. They are accordingly of the view
that there is no substance for not awarding the increase
from
inception of the trial.
[19]
The applicants contend that they were seeking a review with the
tribunal to have the terms of their contract reviewed by the
Accounting Officer.
[20]
The applicants referred to a letter from Mrs C Kok read with the
comments of Ms T N Sindane, the Director General, of the 18
September
2012 which indicated that the accounting officer was not opposed in
principle to paying the appropriate rate retrospectively.
The only
reservation being the availability of funds.
[21]
On behalf of the respondent, Adv Platt SC, submitted that the letter
from the Judge President only came to the attention of
the correct
officer during April 2012. In this regard she referred to the para
4.11 of the first respondent’s answering affidavit,
at
paginated page 89 where the following is stated:
“
The
letter from the Judge President wherein his ‘support’
of the application was made on 12 March 2012 which was
received by
the national office on 13 April 2012, as annexure MM12 to the
founding affidavit.
The
approval for the increment was approved on the 24 April 2012, within
11 days of receipt of the request. It was argued that there
was no
delay on the part of the administration and they acted promptly and
the allegation made by the applicants therefore has
no merit.
[22]
Mr Magano, acting for the applicants, submitted that this matter was
sui generis
and
that in terms of section 172 (1) of the Constitution a court
has a discretion to make a declaratory order. The issue which
this
court is confronted with, is whether the decision to grant the
applicants an increase
was
an administrative decision. If so, it was always subject to the
process of review in terms of the
Promotion of Administrative Justice
Act 3 of 2000
[PAJA]. The applicants who were aggrieved by the
decision not to grant the fee with retrospective effect should have
taken the
panel’s decision on
review
in terms of
section 6
of PAJA. This was not done. In
Bengwenyama
Minerals v Genorah Resources
2011 (4)
SA 113
at 138A para [61] Froneman J referred to
Zondi
v MEC for Traditional Local Government Affairs and Other
2005
(3) SA 589
(CC) where Ngcobo J stated:
“
PAJA
was enacted pursuant to the provisions of
s33
of, which requires the
enactment of national legislation to give effect to the right of
administrative action. PAJA therefore governs
the exercise of
administrative action in general. All decision-makers who are
entrusted wity authority to make administrative decisions
by any
statute are therefore required to do so in a manner that is
consistent with PAJA. ...”
[23]
Even if the 180 days period had elapsed since the decision was taken,
they, the applicants, could have brought an application
for
condonation. This was not done. As far as this court is concerned the
decision
of the panel stands, irrespective of it being correct or not. In
Oudekraal Estates (Pty) Ltd v City of
Cape Town and Others
[2004] 3 All SA 1
(SCA) at para [31] the court stated:
“
Thus
the proper enquiry in each case – at least at first- is not
whether the initial act was valid but rather whether its
substantive
validity was a necessary precondition for the validity of consequent
acts. If the validity of consequent acts is dependent
on no more than
the factual existence of the initial act the n the consequent acts
will have legal effect for so long as the initial
act is not set
aside by a competent court.”
[24]
This court is requested to make an order that the increased payments
should be applied retrospectively, however the order which
was made
still stands, and has not been set aside by a competent court. To
compound the issue, the applicants simply seek the court
to make an
order for the
payments,
without challenging the decision not to allow the increments with
retrospective effect. In essence this court is called
upon to make a
decision that the fees should have been paid with retrospective
effect. This should have been done by reviewing
the decision taken
not to increase the
fees
from the outset. This has not been prayed for in the notice of
motion.
[25]
I am therefore of the view that the applicants claim to be
compensated for the initial period at the rate of R3 499,00 per
day
stands to be dismissed.
[26]
I have thought long and hard why the issue of costs should not follow
the result. The applicants already feel ‘done in’.
If I
were to order costs against them they would suffer even further
financial hardship apart from those alluded to by their counsel
during the arguments presented.
[27]
Their counsel submitted that they sacrificed their time and spent a
considerably time away from, their practices and both of
them had to
make enormous adjustments to the careers. That the first applicant
was even sued whilst the trial was pending.
[28]
This is in my view is a unique case and for that reason I have
decided to exercise my discretion in not making a cost order
in the
normal course, namely that the costs should follow the result.
[29]
Accordingly I make the following order:
The
applicants claim is dismissed. Each party is to pay its own costs.
APPEARANCES:
For
the Applicants : Adv T J Magano.
For the
Respondent : Adv A L Platt SC instructed by State attorney,
Johannesburg
Date
of hearing : 15 June 2016
Date of Judgment
: 08 July 2016.