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[2010] ZAGPJHC 119
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Minister of Defence and Another v Phiri (A474/08) [2010] ZAGPJHC 119 (12 November 2010)
IN THE NORTH GAUTENG
HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE NO: A474/08
DATE: 12/11/2010
NOT REPORTABLE
In the matter between:
MINISTER
OF DEFENCE
First
Appellant
DIRECTOR,
MILITARY PROSECUTIONS,
DEPARTMENT
OF DEFENCE
Second
Appellant
And
GOODMAN
MANYANYA PHIRI
.
Respondent
JUDGMENT
Tuchten
J
:
1
This appeal arose from a dispute about access to documents in the
context of proceedings in a military court, similar to the access
to
the docket to which an accused in a criminal case is entitled
1
and
analogous
to a discovery dispute in a civil case. The respondent was arraigned
to appear before the military court on 9 March 2001.
He was charged
with several offences, including using threatening or insulting
language, insubordination and disobeying lawful
orders.
2. On 23 March 2004 the
respondent brought an urgent application before this court under case
no. 7697/2004, alleging that he was
entitled to certain documentation
in the possession of the Department of Defence. On 23 March 2004 and
in default of appearance
or opposition by the appellants, the High
Court stayed the proceedings in the military court pending compliance
with its orders
directing the first appellant to provide the
respondent with certain identified documentation.
3. Amongst the
documentation which the High Court directed the first appellant to
provide was the following, relevant to this appeal,
which I shall
call collectively the documentation in issue:
3.1 "South African
Army Inspector General's report, involving Phiri
et al at the South
African Army College, February to March 2001"; and
3.2 "The B. Matt
Intervention report (intervention at the SA Army
College-January/February 2001 bythe British Military advisors
to SA
National Defence Force".
4. The trial before the
military court was part heard when the High Court granted its order.
On 8 October 2004, the respondent's
trial before the military court
was due to continue but the respondent sought, and was granted, a
postponement on the ground that
the documentation in issue had not
been produced. At the same time, the military court ordered that a
"ministerial investigation
report" be handed over to the
respondent.
5.
The appellants' case is that the documentation in issue had indeed
been provided under cover of a letter dated 19 April 2004.
The
appellants say that they provided what they had in relation to the SA
Army Inspector General's report in what they called Enclosure
1 and
to the B Matt intervention report in what they call Enclosure 4.
6.
The respondent's answer to this claim of full compliance is contained
in a letter dated 3 May 2004, written by the respondent's
attorney to
the State Attorney. The respondent's complaints in relation to the
documents provided under cover of the letter dated
19 April 2004, to
the extent relevant, were as follows:
2
6.1
In relation to
Enclosure 1
:
Enclosure
1 is incorrect in that what is sought in terms of the court order is
specifically the SA Army Inspector General's report
instigated by the
SA Army College presiding General Moshoana, which report was
finalised on the 6th March 2001. Full transcript
of the witness
testimony is required as it is relevant to the proceedings presently
before the court of a Military Judge, Thaba
Tshwane.
6.2
In relation to
Enclosure 4
:
Enclosure
4 thereof relation to the B Matt intervention report is truncated and
incomplete as it lacks the deliberations by our
client and the
Board's response. Full communicate is missing in its entirety.
7.
By notice of motion dated 25 July 2005, the appellants moved the High
Court for an order declaring that the first appellant had
fully
complied with the order of 23 March 2004. The appellants' case was
simple: they said that they had provided what documents
they had in
relation to the documentation in issue and could
do no better because the additional documentation sought did not
exist.
8. In the answering
affidavit, but not in the attorney's letter to which I have referred,
the respondent claimed further to be entitled
to the "ministerial
investigation report" referred to by the military court when it
granted the postponement on 8 October
2004.
9.
In relation to the complaint that Enclosure
1 did not contain the SA Army Inspector General's report instigated
by the SA Army College
at which General Moshoana [sic] presided and a
full transcript of the witness' testimony, the appellants said that
they had given
the respondent what they had. They pointed out that
the respondent had misspelt the name of Brigadier General Mashaola
(ie not
"Moshoana") and that the general had not compiled
the report, as in fact the report had been compiled by Colonel
Mokalake.
10. The respondent's
answer to this is that there is a report of the SA Army Inspector
General finalised in March 2001. He does
not dispute that the report
was prepared by Colonel Mokalake but says that the report he wants
and which the High Court order the
first appellant to produce is not
that contained in Enclosure 1.
11. In reply the
appellants reiterate that they have given the respondent, through
Enclosure 1, all they have in relation to the
SA Army Inspector
General's report.
12. In relation to the
complaint that Enclosure 4 is truncated and incomplete as it lacks
the deliberations by the respondent and
the Board's response, the
appellants say that no B Matt intervention report exists but that it
provided what records it had of
a meeting of a body called the JCSD
Assessment Board, at which no such deliberations were minuted.
Forthese reasons, the appellants
say, the further documentation
sought in relation to Enclosure 4 does not exist and cannot be
provided.
13. The respondent's
answer to this is to admit that "the B-Matt intervention report
does not exist and only the minutes of
the JCSD Assessment Board
exist". He insists that in the minutes of the Assessment Board
there will be a record of the deliberations
in question.
14. The appellant dealt
with the "ministerial investigation report" in the replying
affidavit and demonstrated conclusively
that it does not exist. This
conclusion renders the order of the military court relating to
production of the "ministerial
investigation report" moot,
ie incapable of fulfilment and the order of the military court in
this regard must not be utilised
further to delay the trial of the
respondent.
15.
In argument before us, the respondent accepted that on the
appellants' version, they had complied with the order of the High
Court. But his counsel submitted, the respondent's version raises a
dispute of fact which, on the Plascon-Evans rule, cannot be
resolved
on paper.
16.
This was the basis on which the court a quo found for the respondent.
As I shall show, the learned judge a quo erred in his
regard. The
Plascon-Evans rule provides no bar to the applicant because no real
dispute of fact is raised in the papers.
17.
Recognising that the truth almost always lies beyond mere linguistic
determination, the courts have said that an applicant who
seeks final
relief on motion must, in the event of conflict, accept the version
set up by his opponent unless the latter's allegations
are, in the
opinion of the court, not such as to raise a real, genuine or bona
fide dispute of fact or are so far-fetched or clearly
untenable that
the court is justified in rejecting them merely on the papers. A
real, genuine and bona fide dispute of fact can
exist only where the
court is satisfied that the party who purports to raise the dispute
has in his affidavit seriously and unambiguously
addressed the fact
said to be disputed. There will of course be instances where a bare
denial meets the requirement because there
is no other way open to
the disputing party and nothing more can therefore be expected of him
or her. But even that may not be
sufficient if the fact averred lies
purely within the knowledge of the averring party and no basis is
laid for disputing the veracity
or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily
possess knowledge of them
and be able to provide an answer (or
countervailing evidence) if they are not true or accurate but,
instead of doing so, rests
his case on a bare or ambiguous denial,
the court will generally have difficulty in finding that the test is
satisfied. A court
will have such difficulty "generally"
because factual averments seldom stand apart from a broader matrix of
circumstances,
all of which needs to be borne in mind when arriving
at a decision. A litigant may not necessarily recognise or understand
the
nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and will only
in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles
an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately
in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.
3
18.
The respondent himself does not have the knowledge on which his
denials of the appellants' case is based. On the other hand,
the
appellants witnesses do have such knowledge and abundant documentary
and testimonial evidence was placed before the court a
quo to bear
out the appellants' contentions that the documents in issue had been
furnished, to the extent that they existed and
the appellants' were
able to provide them, and that the "ministerial investigation
report sought by the respondent did not
exist.
19.
I have said that this is akin to a discovery dispute. It is trite
that the courts are reluctant to go behind a discovery affidavit,
which is regarded as conclusive, save where it can be shown either
from the discovery affidavit itself, from the documents referred
to
in the discovery affidavit, from the pleadings in the action, from
any admissions made by the party making the discovery affidavit
or
the nature of the case or the documents in issue that there are
reasonable rounds for supposing that the party making the discovery
affidavit has or had other relevant documents in his possession or
power or has misconceived the principles upon which the affidavit
paras 12-13
should
be made.
4
A
party who is not satisfied with the discovery made by his adversary
bears the onus of proving on the probabilities that the documents
for
which he contends in fact exist.
5
20.
In my view these principles are, mutatis mutandis, applicable to the
present dispute. Bearing in mind the incidence of the onus,
it is
clear that the respondent has not succeeded in making a case on paper
for the proposition that there existed documents contemplated
in the
High Court order, in addition to those made available as Enclosures 1
and 4, which the appellants have omitted to make available
to the
respondent. It thus follows, in my judgment, that no dispute of fact,
as that concept is understood within the context of
the Plascon-Evans
rule, was raised by the respondent.
21. As to costs: I do not
think that the issues were of any complexity. I therefore do not
think that the case justified the employment
of two counsel.
22. It therefore follows,
in my view, that the appeal must succeed. I propose that the
following order be made:
Erasmus,
Superior Court Practice (looseleaf ed), note to rule 35(3) at
B1-256A-B1-257 and cases there cited.
22.1 The appeal succeeds,
with costs.
22.2
The order of the court a quo is set aside and replaced with the
following:
1. It
is declared that the applicant has fully complied with the order of
the High Court granted on 23 March 2004 under case no.
7697/04;
2. It is declared that
the proceedings in the military court against the respondent,
Lieutenant Colonel Phiri, that were previously
stayed by order of the
High Court must continue and resume;
3. The respondent must
pay the costs of the application.
NB Tuchten
Judge
of the High Court
10 November 2010
I agree.
P Ebersohn
Acting
judge of the High Court
10 November 2010
I agree.
It is so ordered.
BR South wood
Judge of the High
Court
10 November 2010
CASE NO: A474/08
HEARD ON: 10 November
2010
FOR THE APPELLANTS: ADV.
H.J. DE VOS SC
ADV. M.D. MOHLAMONYANE
INSTRUCTED BY: State
Attorney
FOR THE RESPONDENT: ADV.
S. JOUBERT SC
ADV. AT. NCONGWANE
INSTRUCTED BY: Msiza,
Kruger & Bembe Inc.
DATE OF JUDGMENT: 12
November 2010
1
Shabalala
and Others v Attorney-general of Transvaal and Another
1995
2 SACR 761
CC
2
3
Wightman
t/a JW Construction v Headfour (Pfy) Ltd and Another
[2008] ZASCA 6
;
2008
3 SA 371
SCA paras 12-13
4
Superior
Court Practice
(looseleaf
ed), note to rule 35(3) at B1-256A-B1-257 and cases there cited.
5
Swissborough
Diamond Mines (Pry) Ltd and Others v Government of the RSA and
Others
1999
2 SA 279
T 320D