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[2010] ZAWCHC 207
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Maart v Minister of Defence and Others (743/2009) [2010] ZAWCHC 207 (2 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Reportable
Case
No.: 743/2009
In
the matter between:
Danie
Martinus Maart
….......................................................................................................
Applicant
and
The
Minister of Defence
…....................................................................................................
First
Respondent
Chief
of the South African Army
…........................................................................................
Second
Respondent
Colonel
Louis Cornelius Hoffman
…......................................................................................
Third
Respondent
CORAM
D M DAVIS J
JUDGMENT
BY DAVIS J
FOR
THE
APPLICANT
MR R BODART
INSTRUCTED
BY LEGAL AID
FOR
THE FIRST RESPONDENT ADV S POSWA-LEROTHOL1
INSTRUCTED
BY STATE ATTORNEY
DATE
OF HEARINGS
02
SEPTEMBER
2010
DATE
OF JUDGMENT
02
SEPTEMBER
2010
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER 743/2009
DATE:
2 SEPTEMBER 2010
In
the matter between:
DANIE
MARTHINUS MAART
…...........................................................................................
Applicant
and
THE
MINISTER OF DEFENCE
…........................................................................................
1st
Respondent
CHIEF
OF THE SOUTH AFRICAN ARMY
….........................................................................
2
nd
Respondent
COLONEL
LOUIS CORNELIUS HOFFMAN N.O.
….....................................................................
3
rd
Respondent
JUDGMENT
DAVIS,
J
:
The
applicant has come to court to seek relief against the first and
second respondents, the relief being couched as follows:
1.
Condoning the applicant's non-compliance for the time period in
which to bring this application and to extend the time period
of the
common law delay rule, as well as the 180 days referred to in
section 7(1) of PAJA of the date of the institution of these
proceedings.
Reviewing,
setting aside and correcting (on a date to be determined by the
Registrar) in terms of uniform Rule 53, alternatively
declaring
invalid with no force and effect the 1989 decision of the second
respondent who discharged the applicant from the
SADF, as well as
the 2006 decision of the first respondent to endorse the 1989
decision to discharge applicant.
Declaring
that first respondent's failure to prescribe proceedings in terms
of
section 61(2)
of the
Defence Act 2002
. to specify the processing
of grievances and the train of command of individuals within the
South African National Defence
Force may address individual
grievances being consistent, section 34, 35(3)(c) (indistinct) of
the Constitution.
Directing
the first respondent to present to this Court within a time period
to be determined by this Court, a plan on how the
first respondent
intends to rectify the failure to comply with his constitutional
obligations set out above.
The
facts of this case are, to say the least, somewhat unusual.
Applicant is 53 years old. He obtained a Standard 9 from Mostert
High School in Oudtshoorn in 1974 and he joined the South African
Defence Force (SADF) in January 2005. He underwent basic training
at
Eerste River and Bloemfontein and thereafter was transferred to the
infantry school in Grahamstown where he worked as a storeman
from
1976 to 1979. In December 1979 he was transferred to the infantry
school in Oudtshoorn. It appears from the papers that
he worked for
the SADF from January 1975 to 30 November 1988 and again from 1
December 1988 to 31 July 1989.
During
1988 a board of inquiry (66/88) was convened to investigate
surpluses and shortages and the incorrect recording thereof
at
various warehouses at the infantry school in Oudtshoorn, including
the warehouse where applicant had been stationed. The Board
came to
the conclusion that stock inconsistencies had occurred at the
various warehouses. For this reason it made the following
recommendations:
"Dit
sal derhalwe nie raadsaam wees slegs sekere persone uit te sonder
teen wie dissipliner opgetree behoort te word nie
en behoort a lie
persone wat nie die kapitale SAW voorraad voorskrifte streng
nagevolg het nie, vir, onder andere 19(5), aangekla
en so meer
verhoor te word. Die aanbeveling is van toepassing op die volgende
persone, Sers D M Maart... Dit behoort egter in
gedagte gehou te
word dat die beheer en leiding wat bogenoemde lede vanaf die
kapitale KM ontvang het ten opsigte van voorraad
en
voorraadsprosedure nie na wense was nie... Aangesien die surplus en
tekorte van hoe ontvang is, word aanbeveel dat 'n voorlopige
ondersoek deur die stafhoof... bele word en dat kommandant
Labuschagne deur 'n algemene krygsraad verhoor word indien nodig."
On
29 July 1989 applicant was informed that he had been discharged from
the SADF and that he was required to leave the infantry
school as at
31 July 1989. No reasons were initially given for this discharge. On
3 March 1993 he received the following explanation:
"Die
oortredings wat hierop gevolg het, het aanleiding gegee tot sersant
Maart se ontslag. ETV, kapitale AR (iv) - 21 (2)(f)(iii)."
This
reference refers to an administrative discharge in terms of section
12(1 )(f) of the Defence Act, 44 of 1957. Soon after
he was informed
about this discharge on 29 July 1989, applicant invoked certain
internal procedures of the SADF in terms of section
144 of the
Defence Act, in order to obtain clarity about the manner in which he
had been discharged. Section 134(1) provides:
"Any
person subject to this code, who is aggrieved by an act or omission
of any other person subject to this code, may complain
in writing.
(3) If the general officer commanding of the South African Defence
is unable to address the wrong or otherwise dissatisfy
the
complainant, he shall, if requested by the complainant to do so,
transmit the complaint to the State President, whose decision
shall
be final."
According
to applicant, other than recourse to these internal remedies,
pursuant to section 134 of the Defence Act, his parlous
financial
position did not allow him to explore any other avenue in order to
seek redress for what he considered to be a wrongful
dismissal.
However,
in 2003 the General Officer Commanding of the SADF convened a
ministerial inquiry in terms of section 136 of the Defence
Act, to
investigate the circumstances that led to the discharge of the
applicant. The outcome of this inquiry was that the applicant
had
been unfairly discharged and there was a warning attached to the
documentation that the SADF could be faced with "a
massive
claim" as a result of an unfair dismissal.
Recommendations
followed from this particular inquiry, including:
"The
then new officer commanding, Colonel Stroebel (now retired as Brig
GEN) dismissed Sgt D M Maart without any authority
on 30 July 1989.
Sgt D M Maart was subsequently placed in the reserve forces on 1
August 1989. The person who can be held liable
for these
circumstances, can in all probability be identified as the then
commander (Lieutenant Colonel F Lerm), who it appears
had a personal
grudge against Sgt Maart and for that reasons was somehow determined
to throw Sgt D M Maart out of the then SA
Army. The end result of
this is that the entire Department of Defence (DOD) was faced with a
possibility of a massive claim for
unlawful dismissal and other
liabilities."
Shortly
after the 2003 board had made its recommendations, it appears from
the evidence that a further inquiry was initiated,
again to
investigate the circumstances relating to applicant's dismissal
(board of inquiry 27.02.2004). Here the board concluded
that the
2003 board had lacked the ability to deal with the matter and it
concluded, on a conspectus of the evidence which was
available to
it, that applicant had been properly discharged:
"It
can safely be assumed that Mr D M Maart was discharged due to
multiple convictions. The discharge of the member was based
on
administrative process and place and time of discharge in terms of
general regulations... which was in effect at the time."
A
further recommendation followed:
"Due
to the fact that prescription has taken place and no court has the
jurisdiction to hear the matter, combined with the
fact that the
administrative discharge appears to be properly authorised in any
event, the matter should be considered as final."
In
February 2007 the applicant received a letter dated 18 December 2006
from Mr Ratsomo, the head of ministerial services. Mr
Ratsomo
informed applicant that based on the findings and recommendations of
the 2004 board, the decision was made that the 1989
discharge had
been properly decided. The letter then concludes
"According
to the evidence presented to this board of inquiry, Sergeant Maart's
service was terminated in accordance with
all the rules and
regulations applicable at the time."
So
much for the chronology of events. The critical issue, before the
merits of the case can be truly investigated, and this was
certainly
prefigured in the relief sought by applicant, as well as the very
comprehensive and careful submissions of Mr
Bodart
.
who appeared on behalf of the applicant, was the question of delay.
A major obstacle to the relief sought is the length of time
taken to
prosecute this application and the various issues which relate to a
dismissal of more than 21 years ago. In the founding
affidavit, the
following explanations provided by the applicant as to the
extraordinary delays which had been occasioned in this
case.
It
is, therefore, necessary to reproduce applicant's version in some
detail:
"During
1990 (I cannot remember the exact date) I requested James Swiegelaar
of the Labour Party in Oudtshoorn to assist
me to lodge a complaint.
He wrote a letter on my behalf to Colonel J J Claasen at the Castle
in Cape Town. I never received a
copy of this letter nor any
feedback from the SADF In 1993 I approached a member of parliament,
Mr S Simmons, to assist me. He
wrote a letter to the SADF at the
Castle. On 3 March 1993. Colonel Claasen replied. In his letter he
stated the following:
"Na
'n reeks oortreding is sersant Maart op 4 Junie 1985 meegedeel dat
verdere oortredings wat deur horn begaan sou word,
sy voortgesette
indienshouding in gedrag sou bring. Die oortreding wat hierop volg
het aanleiding gegee tot sersant Maart se
ontslag...".
I
submit that the allegations contained in this letter from Colonel
Claasen made no sense whatsoever, apart one charge which was
brought
against me during (I think) 1985, relating to mind the stock losses
from my store at the infantry school (and for which
I was fined and
paid R100.00), I had a clean record for the period January 1975 (the
date I started my training at the SADF)
to 30 November 1988, which
is the date when I voluntarily resigned from the SADF... During 1993
I approached Attorneys Visagie
Vos for legal advice, but due to the
fact that I did not have money to pay for their services, they were
not able to assist me.
My monthly income at the time was about R2
600,00 and I was unable to pay for legal representation. It was only
during 2000 when
I met Clifton Murphy at Ubunthu Office in
Oudtshoorn that I was again able to get assistance to take the
matter further. Mr Murphy
wrote a letter on my behalf to the
Ministerial Defence. On 21 October 2002, Lieutenant Colonel N M
Mdayi replied. He stated the
following:
"The
matter is receiving attention and the outcome of the investigation
will be conveyed to you in due course". During
2002 I also
asked Mr Murphy to lodge a complaint on my behalf against the SADF
through the Public Protector and to request them
to investigate the
matter. The Public Protector replied on 13 June. 14 August 2002 a
certain Mr A T Lose advised me that the
matter was referred to the
National Office of the Public Protector for further investigation.
On 19 February 2003 I received
a letter from Colonel A R Pretorius.
In this letter was stated that the SADF "requests extension on
the target till 31 March
2003... investigation not complete yet".
On 3 July 2003 I received a letter from Colonel L Magxwalisa, in
which he informed
me that:
"The
matter has not yet been finalised. As soon as answer is available,
you will be advised accordingly... Please accept
our apologies in
this regard." On 29 July 2003 I received another letter with a
similar message:
"This
serves to confirm receipt of your fax... Our office is attending to
the matter. Your office will be informed in due
course on
developments of the matter." On 17 December 2003, Mr Murphy
wrote a follow up letter on my behalf to the Department
of Defence
and requested a progress report relating to the investigation to my
dismissal. On 11 March 2004, Mr Murphy had a telephone
conversation
with Colonel Pega, the Ministerial Defence and followed this up with
a letter that same day. On 12 November 2004,
Mr Murphy write again
to the
Public
Protector in an attempt to get assistance, however, to no avail. On
15 December 2005, I approached Attorneys Coetzee en
Van der Bergh in
Oudtshoorn for help. I did not have the financial means to instruct
him to litigate, but I hoped he would be
able to speed up the matter
by getting clarity regarding my dismissal and the outcome of the
board of inquiry. Mr Van der Bergh
wrote a letter to Colonel Bega.
On 31 January 2005, Colonel Bega replied (indistinct) once again
that the investigation was ongoing
and "sodra Yi antwoord
beskikbaar is, sal u verwittig word". On 13 April 2005 my
attorney received another letter from
Colonel J Pega to advise that
the investigation was ongoing. On 21 June and 21 July 2005, my
attorney wrote yet again to Colonel
Pega to enquire whether any
progress was made. On 28 July 2005, Colonel Z (sic) Pega replied
with another standard letter, stating
that "u navraag nog nie
gefinaliseer nie". On 26 October 2005, T Ratsomo for the
Ministerial Defence wrote a letter
and his letter stated again that
the investigation was as yet not completed and a reply would be
forthcoming once the investigation
was final. On 30 January 2006. Mr
Van der Bergh wrote a letter to the Minister of
Defence...
On 6 February 2006, Colonel Z Bega replied, he stated that "u
navraag nog nie gefinaliseer is nie aangesien daar
Vi tans "n
interne
ondersoek aan die gang is". Mr Van der Bergh wrote a final
letter on 20 February 2006 and Colonel Z Bega replied
thereto on 22
February 2006, once again stating that the investigation was not yet
final... On 12 April, 16 April, 26
,n
,
28
,h
,
30
lh
,
16 October, 23 November, Colonel Bega wrote follow up letters with
similar contents. On 18 December 2006, Mr T Ratsomo of the
Ministerial Defence wrote a letter to me stating:
"We
have been informed that the claim of Mr C Murphy that Sergeant Maart
was victimised and unlawfully dismissed by his former
supervisor,
Lieutenant Colonial (then kommandant) J W Lerm, was referred to the
S A Army Infantry Formation 2003 on the grounds
that this alleged
instance occurred at the infantry school and the infantry school
currently resorts under the command of the
general office commander
of the S A Arm Infantry Formation... His claim that he was dismissed
by his former supervisor... and
who allegedly victimised him is not
true, as the chief of the S A Army was the only person who could
authorise any termination
of service of the time. We have also
discovered that neither Sergeant Maart or any of his fellow Coloured
colleagues ever lodged
a complaint of racism or victimisation in
relation to Lieutenant Colonel (kommandant) Lerm." I applied
for legal aid at
the Cape Town Justice Centre. The merits of my
(indistinct) investigated and legal aid was granted in terms of the
legal aid
guide. On 26 June 2008, my attorney, Mr R Bodart, wrote a
letter to the head of ministerial services."
It
is apparent from this detailed affidavit, which forms part of the
founding papers, that applicant has provided no explanation
for the
delay in instituting any form of proceedings against the alleged
unfair dismissal between 1990 to 1993, again from 1993
to 2000. from
2000 to 2002 and then from December 2006 to June 2008. Insofar as
the latter is concerned, it is possible that
in that interim period,
there was an application for legal aid, but other than this act, in
the latter period from some 18 months,
no action appears to have
been taken, notwithstanding the flurry of letters that were
generated in the period immediately preceding
2006.
These
are hugely significant and unexplained delays. The question that,
therefore, arises as to whether the applicable law would
justify a
condonation so as to ensure this Court could proceed to deal with
the merits of the application. I turn, therefore,
to deal with the
law on delay.
The
Law on Delay
At
common law. a review to set aside or correct is in effect a
discretionary remedy that may be refused if the applicant delays
excessively in prosecuting the application. See
Wolqroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978(1)
SA 13 (A) at 41E-F. Finality is clearly an issue which underlines
the Court's concerns with delay, in that delay may cause
prejudice
to a respondent. In addition it can also undermine the public
interest in ensuring certainty of legal proceedings.
The
matter has received recent attention in an important case for the
purposes of this dispute,
Gqwetha
v Transkei Development Corporation Ltd & Others
2006(2)
SA 603 (SCA) and in particular the majority judgment of
Nugent
.
JA. In his judgment,
Nugent
,
JA approves of the dictum of
Miller
.
JA in
Wolgroeiers
(supra)
at 41E-F:
"It
is desirable and important that finality should be arrived at within
a reasonable time in relation to the judicial and
administrative
decisions or acts. It can be contrary to the administration of
justice in the public interest to allow such decisions
or acts to be
set aside after an unreasonably long period of time has elapsed
interest
reipublicae ut sit finis litium...
Considerations
of this kind undoubtedly constitute part of the underlying reasons
for the existence of this rule."
Nugent
.
JA continues:
"Underlying
that latter aspect of rationale is the inherent potential for
prejudice, both to the efficient functioning of
the public body and
to those who rely upon its decisions, if the validity of its
decisions remains uncertain. It is for that
reason in particular
that proof of actual prejudice to the respondent is not a
precondition for refusing to entertain review
proceedings by reason
of undue delay, although the extent to which prejudice has been
shown is a relevant consideration, that
might even be decisive where
the delay has been relatively slight... Whether there has been undue
delay entails a factual inquiry
for which a value judgment is called
for, in the light of all the relevant circumstances, including any
explanations offered
for the delay... The material factors to be
taken into account in making that value judgment - bearing in mind
the rationale
for the rule - is the nature of the challenged
decision. Not all decisions have the same potential for prejudice to
result from
their being set aside. The challenged decision in the
present case was a decision to dismiss the appellant for complicity
in
financial irregularities. A decision of that kind will
necessarily have immediate consequences for the ordinary
administration
of the organisation and for other employees who will
be called upon to perform the functions of the dismissed employee or
even
to replace her Moreover personal decisions that are susceptible
for review, are no doubt made by any large organisation on a regular
and ongoing basis and some measure of prompt certainty as to the
validity is required. The very nature of such decisions speaks
of
the potential of prejudice, if they are to be capable of being set
aside on review after a lapse of any considerable time."
Rule
53 does not stipulate a period within which review
proceedings
must be brought. It has been established, of course, as is evidenced
from the
dicta
which
I have cited, that the application must be brought within a
reasonable period. Where the delay is found to be unreasonable,
the
Court may decide to condone it, if the applicant can provide a
satisfactory explanation therefore. See in this regard
Hoexter
.
Administrative
Law in South Africa
at
476.
There
is a case which appears to "buck the trend", being a
judgment of
Plasket
,
J in
Ntame
v MEC for Social Development Eastern Cape And Two Similar Cases
2005(6)
SA 248 (E). In that case, applicants sought orders reviewing
administrative action by the Department of Social Development
in the
Province of the Eastern Cape. In one application the so-called
Ntame
case,
applicant had been in receipt of a disability grant for 11 years
until it was stopped in December 1996 without notice. In
June 1999
it was reinstated and she was given an amount of R1 100.00 as back
pay. She applied for an order setting aside the
suspension of her
grant and an order directing the respondent to pay the R13 460 that
was owed to her. In the other matters,
the so-called
Mnvaka
cases,
applicant applied in June 1997 for a maintenance grant in respect of
her two children. By the time the maintenance grant
were phased out
in April 2001, she had still not received a response to her
application. Ms
Mnvaka
applied
for an order directing the respondent's failure to consider the
application be declared unlawful. There was, of course,
a question
as to whether there had been an unreasonable delay in bringing these
proceedings.
It
is this point which is relevant to the present dispute.
Plasket
.
J dealt with the question of delay with great care in paras 13ff of
the judgment. He noted that:
"Ms
Ntame
had
stated in her founding affidavit that she is an unsophisticated
person with little formal education. She is also poor. In
order to
qualify for the disability grant that she received since the mid
1980's, she must suffer from a disability that renders
her unable to
work. She is, not surprisingly, too poor to pay for the services of
an attorney. When her disability grant was
stopped, she was given no
explanation, nor was she advised of her right to appeal in turn
against the decision. A sense of helplessness,
frustration and
powerlessness in the face of an unhelpful bureaucracy can easy be
imagined. She first became aware of her right
when she approached a
non-governmental organisation, the Centre for Human Rights,
Community Advice & Development.
This
organisation assisted her by engaging the services of her current
attorneys, who had agreed to represent her on a contingency
basis...
They wrote a letter of demand to respondent dated 19 October 2004 in
which the respondent was given ten days in which
to meet the demand.
No response of any sort was received. The founding affidavit was
signed on 8 November 2004, the notice of
motion was signed 10
November 2004 and the papers were issued on the same date."
paras 14-20.
The
learned judge concluded at para 24 that:
"[t]he
delays as set out were....unreasonably long, even though, once the
applicants was placed in contact with attorneys
who could advise
them and represent them, the steps that followed were taken with
reasonable haste."
However,
Plasket
,
J exercised his discretion to condone the unreasonable delays for a
series of reasons:
1.
Section 34 of the Republic of South African Constitution Act 108 of
1996 ("Constitution") guarantees a right of access
to
courts. Section 39(2) of the Constitution enjoins the court in
either interpreting legislation or developing the common law
or
customary law to "promote the spirit, objects of the Bill of
Right". Section 34 represents that spirit and accordingly,
to
the learned judge to refuse to condone would constitute to deny her
access to courts.
2
Section 1(c) of the Constitution "entrenches the rule of law -
and its principle of legality - as a founding value of our
constitutional order" Thus, courts have to be careful to allow
as "few invalid exercises of the public power as possible
to
slip through the judicial net." At para 25.
3.
The applicants sought to enforce a fundamental right of access to
social assistance as enshrined in section 27(1)(c) of the
Constitution. Further they were "drawn from the very poorest
within our society and have the least chance of vindicating
their
rights through the legal process." (para 25)
According,
emphasising that the applicants were unsophisticated people with
little formal education and living in considerable
poverty which
hampered their access to court, a more lenient approach was,
therefore, required. Accordingly the lengthy delays
were condoned.
Before
concluding this excursus into the law of delay, it is important to
note that our law has changed in this regard, as a result
of the
Promotion of Administrative Justice Act ('PAJA") in that PAJA
now requires review proceedings to be instituted without
unreasonable delay, and not later than 180 days after domestic or
internal remedies had been exhausted. (See section 7(1)(a)
of PAJA.)
Where there are no such remedies, the period of 180 days begins to
run from the date on which the applicant was informed
of the
administrative action, became aware of the action and the reasons
for it, or might reasonably be expected to become aware
of the
action and the reasons. Section 7(1)(b).
Section
9 of PAJA makes provision for an extension of the period by
agreement, or an application by the person concerned and thus
extension may be granted where the interest of justice so require.
See in particular
Scenematic
14 (Ptv) Ltd v Minister of Environmental Affairs & Tourism
2004(4)
BCLR 430 (C) and further authorities as cited by
Hoexter
at
478.
Evaluation:
In
this case the delay was even longer than in the cases dealt with by
Plasket
,
J. Unfortunately in the
Ntame
case
supra, the facts are not set out with sufficient clarity to be
helpful to other courts, that is the exact length of the delays
which necessitated the application of condonation. Nonetheless it
can certainly be confidently concluded that the delays as I
have set
them out, far exceeded anything which confronted the court in
Ntame
.
Secondly, applicant, unlike the applicants in the
Ntame
case,
was not illiterate and was not incapable of generating his own
correspondence. That he lived in circumstances of relatively
scarce
means, does not necessarily classify him as living in a standard of
poverty, which clearly confronted
Plasket
.
J in
Ntame
.
Thirdly,
even after applying for legal aid, there is an unexplained further
delay. I am not certain of the length thereof, because
it was never
explained. But the founding affidavit provides no explanation to the
Court as to why between December 2006 and 26
June 2008. no action
appears to be taken to expedite the process.
Fourthly,
as
Nugent
,
JA said in
Ggwetha
's
case, this case concerns dismissal, and thus necessitates a speedy
resolution.
What
the learned judge of appeal had in mind and which is clearly
exemplified in these papers, is that to determine the fairness
of a
dismissal, some 21 years after the dismissal took place, where
witnesses are not available, where some may have died, where
memories are hazy and where there is a lack of clarity as to
precisely what happened as is evidenced from the two boards of
inquiry to which I have made reference, buttresses the approach
which was adopted by the majority of the Supreme Court of Appeal
in
Gqwetha
.
I should add that in that case, delay was of a far shorter order of
magnitude; that is less than a calendar year
Fifthly,
the Court in
Gqwetha
emphasised
that, during this period, there was no explanation for the delay. In
the present case much of the reason for the delay
remains
unexplained. There are two significant periods, between 1990 and
1993 and 1993 and 2000 in which there is no explanation
provided as
to why the applicant generated any further correspondence, if any.
Mr
Bodart
referred
me, in an attempt to illustrate that Courts can be more generous
with regard to condonation applications, to the decision
of
Bothma
v Els and Others
2010(1)
SACR 184 (CC). In this case there had been a 37 year delay in the
institution of a private prosecution for a crime of
rape. As
Sachs
,
J said in his judgment, at para 65 to 66:
"Mrs
Bothma submits that the nature of the offence inexplicably linked
with the reason for the delay. She avers that she internalised
the
shame of the events, feeling guilty, betrayed and powerless and
fearing stigmatisation should she confide in anyone. She suppressed
the memory of the rape due to these feelings, her schoolwork suffered
and she became withdrawn, and the sense of 'inner badness'
persisted
into her adult life, where she endured three failed marriages and was
unable to find success in her business ventures.
She adds that it was
only after she received counselling during the time spent in prison,
that she came to grips with, and accepted
the common thread
underlying all the disasters in her adult life, namely the treatment
she had endured while still a child at the
hands of Mr Els. It was
then for the first time that she developed meaningful knowledge of
the wrong that had been done to her.
Without pronouncing on the
veracity of her charges, it will be noted that there also exist
strong public policy reasons for allowing
the nature of a crime to
weigh heavily in favour of allowing these charges to be aired in
court. Adults who take advantage of their
position of authority over
children to commit sexual depredations against them shall not be
permitted to reinforce these sense
of entitlement by overlaying it
with a sense of impunity. On the contrary, the knowledge that one day
the secret will out, acts
as a major deterrent against sexual abuse
of other similarly vulnerable children."
Manifestly,
the present dispute is a different order of case. In the case of
Bothma
.
as is evidenced in the
dicta
which
I have cited, there were deeply sourced psychological reasons as to
why a prosecution could not have been brought at an earlier
stage.
The present case is incomparable and is far more approximate to that
of
Gqwetha
,
supra.
I
have leave aside the function of a board of inquiry, that is whether
it had the power to reinstate and further, its exact function,
in the
context of this dispute. The fact is that the initial decision to
dismiss applicant was taken in 1989. For at least ten
years and
possibly more, applicant has not explained why no action was taken by
him, the reason for these delays and why, at the
very least, he did
not seek to pursue any of the internal remedies or generate any
further correspondence Mr
Bodart
contended
that the boards of inquiry acted as an interruption of the delay, in
the sense that they evidenced some recognition by
respondents, that
the matter is still live; hence the further inquiries in 2003 and
2004
I
shall assume in favour of applicant so that I am prepared to condone
a decade of unexplained delay, far more than even in the
case which
vexed
Plasket
.
J in
Ntame
.
The question would still arise as to why there was a further
extensive delay, way beyond the prescribed limits in terms of PAJA,
after the two boards of inquiry had concluded their business. Given
the nature of this dispute, the fact that it concerns a dismissal
even a condonation of the earlier delays would be insufficient to
justify ultimate condonation: a court would have to condone the
further delay. In the context of the nature of this dispute and the
vast length between the time of the alleged misconduct against
applicant and any remedy that could possibly be granted, there can be
no justification to classify any of the further delays as
reasonable,
disregard the prejudice which respondents would encounter, if
condonation were granted, or ignore the potential opening
of the
floodgates of delayed litigation manifestly against the public
interest.
Given
the conclusion to which I have arrived, there is no basis on which to
investigate the merits of the case, because the delays
cannot, on the
law as I have outlined, be condoned.
I
do not, however, consider that this is a case in which a cost order
would be appropriate, given the very nature thereof.
Accordingly
the application is dismissed.
DAVIS, J