About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 587
|
|
Bruwer v South African Board for Sheriffs (4220/2010) [2010] ZAWCHC 587 (30 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE NO: 4220/2010
In
the matter between:
RENE
ETIENNE OSHE BRUWER
…..................................................
Applicant
and
SOUTH
AFRICAN BOARD FOR SHERIFFS
….............................
Respondent
JUDGMENT DELIVERED ON
30 NOVEMBER 2010
BLIGNAULT
J
:
[1] This is an opposed
review application which is interlinked with a number of other
opposed applications between the same parties.
[2] Applicant is the
Sheriff for the High Court and the Magistrate's Court for the
district of Durban North. Respondent is the
South African Board for
Sheriffs, constituted in terms of the Sheriffs Act 90 of 1886 ("the
Act"), with offices at
4 Church Square, corner Spin and
Parliament Streets, Cape Town.
[3] In this application
applicant seeks to have reviewed and set aside a decision taken by
respondent and conveyed to him on 25
February 2010 not to issue a
fidelity fund certificate to him for the year 2010. Applicant also
claims certain consequential
relief.
[4] Applicant was
informed of respondent's impugned decision by way of a letter dated
25 February 2010. The letter informed applicant
that the reasons for
respondent's decision were his failure to comply with the signing of
the "Final Written Warning"
by 10 February 2010 and the
signing of the "Admission of Guilt" form by 10 February
2010. The letter also informed
applicant that his operation as a
sheriff without a fidelity fund certificate would be unlawful in
terms of the Act.
[5] Applicant described
the recent history of the matter. In December 2009 he applied in the
usual manner to respondent for his
fidelity fund certificate for the
year 2010. On 10 December 2009 he received a letter from respondent
attaching a complaint from
one Singh in the form of an affidavit.
Applicant replied to the complaint on 24 December 2009 but he did
not keep a copy of that
letter.
[6] On 9 February 2010
applicant received a telefax from respondent. Apart from the
covering sheet it comprised two documents.
The first was a letter
headed "Final Written Warning". The first part of that
letter reads as follows:
"RE:
FAILURE TO APPOINT A DEPUTY SHERIFF IN TERMS OF SECTIONS 6 (1) OF
THE SHERIFFS ACT 90 OF 1986
This
is a Final Written Warning in terms of the
Disciplinary
Code and Procedures
for
the transgression of
Section
43 (1 )(h) (ii)
and
Section
43 (1 )(d)
of
the
Sheriffs
Act 90 of 1986,
read
with
Schedule
6
of
the
Code
of Conduct for Sheriffs,
accompanied
by a fine of
R10
000,00
in
terms
of
Section 45 (2 )(b)
of
the
Act.
Should
you engage in further transgressions, the final written warning may
be taken into account in determining a more serious
sanction.
The
final written warning will be placed on your personal file and will
remain valid for a period of six months from the date
hereof. After
six months, the final written warning will be removed from your
personal file and destroyed. If you object to the
warning, you may
direct an appeal to the Legal and Compliance Manager within
five
(5)
working
days."
The second part of the
letter contained particulars of the alleged improper conduct on the
part of applicant. It related to the
conduct of one Sephilal.
[7] The second document
was headed "Admission of Guilt Agreement". It reads as
follows:
"BE
PLEASED TO TAKE NOTICE THAT
after
due consultation with the Board, I am willing to enter a plea of
guilt for making use of fraudulent and misleading representations
in
using a simulated official as a Deputy Sheriff and failure to
appoint same in the prescribed manner, in particular Mr Ivan
Sephilal whom I allowed to misrepresent himself as a Deputy Sheriff
by virtue of which I am in transgression of
Section
43 (1 (h) (ii)
and
Section
43 (1)(d)
of
the
Sheriffs
Act 90 of 1986,
read
with
Schedule
6
of
the
Code
of Conduct for Sheriffs.
I enter into the
above with the undertaking that the Board is recommending a sanction
of:
a)
a
fine of R10 000,00 and
I
FURTHER
undertake
to return this agreement to the Board by
10
February 2010
as
stipulated by the Board, and confirm that the amount of
R10
000,00
will
be paid to the Board by
Wednesday,
the 10
th
day
of February 2010.
TAKE
FURTHER NOTICE
that
I confirm that I enter into this agreement with full knowledge of my
rights.
FURTHER
THAT
I
fully understand the consequences of this agreement, which is made
without any duress on my part."
[8] Applicant said that
he was confused as to how to react to these documents. The next day,
10 February 2010, he received a telefax
from respondent informing
him that the admission of guilt fine had to be paid the next day.
Upon receipt of this telefax he did
not know what to do and he
decided to pay the fine on 11 February 2010.
[9] On 25 February 2010
applicant received the letter from respondent which conveyed to him
the decision which forms the subject
matter of the present review
application.
[10] A flurry of
applications then followed. Applicant launched an urgent application
on 2 March 2010 for interim relief. The
court postponed the urgent
application to 25 March 2010 and granted applicant interim relief.
On 11 March 2010 respondent launched
a conditional
counter-application in which it sought an order in the event of
applicant's application for urgent relief succeeding.
On 23 March
2010 applicant launched the present review application. Applicant's
urgent application and respondent's conditional
counter-application
served before the court on 25 March 2010. On 25 March 2010 the court
ordered that the review application
would be heard on 13 September
2010 and that suitable interim relief would in the meantime be
granted to both parties. The review
application was then further
postponed and heard by me on 8 November 2010.
[11] In applicant's
founding affidavit in the review application he summarised his
grounds of review with reference to certain
provisions of the
Promotion of Administrative Justice Act 3 of 2000
. These grounds all
relate to respondent's decision not to issue to him a fidelity fund
certificate for the year 2010. Applicant
contended that respondent's
decision was unlawful and procedurally unfair in terms of the
provisions of sections 44, 45, 46 and
47 of the Act. They read as
follows:
"44. Lodging
of complaint against sheriff
(1) Any complaint,
accusation or allegation against a sheriff may be lodged with the
Board in the prescribed manner.
(2) The Board shall
keep record of each complaint, accusation or allegation lodged with
it in terms of subsection (1).
45. Charge of
improper conduct -
(1) The Board may, on
its own initiative or upon the lodging of a complaint, accusation or
allegation referred to in section 44(1),
charge a sheriff by a
notice in writing with improper conduct.
(2)
(a)
A notice referred to in subsection (1) shall be served upon a
sheriff in the prescribed manner, and shall contain or be
accompanied by a request that the sheriff furnishes the Board with a
written admission or denial of the charge and, if the sheriff
so
prefers, a written explanation in connection with the charge within
14 days of the service thereof.
(b) The Board may, if
it believes that on conviction of the sheriff a fine not exceeding
the prescribed amount will be imposed
upon him or her, afford the
sheriff an opportunity to admit his or her guilt in respect of the
charge and to pay the fine determined
by the Board in the said
notice on or before the date specified in the notice without
appearing before the Board.
(c) Any sheriff who
wishes to pay an admission of guilt fine referred to in paragraph
(b), must -
(i)
pay
the fine in the prescribed manner before
the date specified in
the notice; and
(ii)
surrender
the notice at the time and place of
payment of the fine.
(d)
The
Board shall keep a register in the prescribed form of all fines paid
in terms of this subsection, and a copy of the register
shall be
included in the reports referred to in section 59.
(3) The Minister may
at any time withdraw a charge of improper conduct.
46.
Inquiry into improper conduct.
-
The Board shall, unless an admission of guilt fine has been
determined and paid in terms of section 45(2), inquire into a charge
of improper conduct at such time and place as the Board may
determine and shall in the prescribed manner give the sheriff
charged
at least 14 days' notice in writing of the time and place so
determined.
47. Procedure at
inquiry. -
(1) The Board may
authorize any person to attend an inquiry instituted in terms of
section 46, to adduce evidence and arguments
in support of the
charge and to cross-examine any person who has given evidence in
rebuttal of the charge.
(2) At such inquiry
the sheriff charged shall have the right to be present, to be
assisted or represented by another person, to
give evidence and,
either personally or through a representative -
(a) to be heard;
(b) to call
witnesses;
(c) to cross-examine
any person called as a witness in support of the charge; and
(d) to have access to
documents produced in evidence.
(3)
The
failure of the sheriff charged to attend the inquiry shall not
invalidate the proceedings.
(4) The Board shall
keep a record of the proceedings and of the evidence given."
[12] Applicant
accordingly contended that respondent's decision not to issue a
fidelity fund certificate to him for the year 2010
should be
reviewed and set aside.
[13]
Respondent opposed the review application. Mr Cheslan America, the
executive manager of respondent, deposed to a provisional
answering
affidavit filed on 25 March 2010. In this affidavit Mr America
raised a defence
in
limine,
namely
that applicant had brought two applications for the same relief and
based on the same facts.
[14]
On 30 August 2010 respondent filed a substantive answering affidavit
in the review application, also deposed to by Mr America.
Mr America
stated first that first respondent was persisting with its defence
of
lis
alibi pendens.
In
regard to the merits Mr America alleged that applicant defiantly and
fraudulently allowed one Sephilal to hold himself out
as a sheriff.
During 2009 Sephilal had been charged with 19 charges of misconduct.
It appears that
Sephilal was found
guilty on a number of these charges and summarily dismissed.
[15] Mr America said
that applicant knew of Sephilal's dismissal but nevertheless started
using Sephilal as a deputy sheriff without
following the prescribed
procedures. On 11 December 2009 applicant lodged an application for
the appointment of Sephilal as a
deputy sheriff. The application, Mr
America said, was defective.
[16] Mr America stated
that the reasons for respondent's decision not to issue applicant
with a fidelity fund certificate for
2010 were the following:
"26.1 The
applicant's trend of non-compliance and late compliance with is
legal obligations;
26.2.
The fact that the applicant only submitted payment for the issuing
of his Fidelity Fund Certificate on
20
January 2010,
two
and a half months after payment was due;
26.3.
The fact that the applicant defiantly continued to operate as
sheriff from
01
January 2010 to 26 February 2010
whilst
prohibited from doing so due as not having been issued with a
Fidelity Fund Certificate for operation in 2010;
26.4. The illegal use
by the applicant of Mr SEPHILAL as a Deputy Sheriff; and
26.5. The fact that
the applicant has failed to surrender the admission of guilt notice,
after he made the admission of guilt
payment to the respondent, as
stipulated in Section 45(c)(ii) and his persistence with his refusal
to do so".
[17] Mr America added
that applicant's collusive and sometimes criminal dealings with
Naidoo was also one of the facts which made
applicant not fit to
hold the office of sheriff. The investigation into the alleged
wrongdoings on the part of Naidoo, he said,
was still pending at the
time when he deposed to the answering affidavit.
[18] Mr America said
that on 12 May 2010 applicant had been charged with 8 (eight)
charges of misconduct. A disciplinary hearing
in regard to these
charges was still pending.
[19] The matter was
heard by me on 8 November 2010. Mr S M Shepstone appeared on behalf
of applicant and Mr J D de Vries on behalf
of respondent.
[20]
Mr Shepstone dealt briefly with respondent's defence of
lis
alibi pendens.
He
submitted, correctly in my view, that the first application was
brought to obtain interim relief. The second application is
the
review application in which applicant is seeking final relief.
[21] Applicant's case on
the merits of the review seems straightforward. One must assume from
the five factors mentioned in Mr
America's answering affidavit that
applicant had been found guilty on these five charges. Respondent
did not, however, charge
applicant of the complaints in question and
it did not give applicant written notice of the hearing. It is
self-evident, therefore,
that applicant was not able to exercise any
of the rights described in section 47(2) of the Act, as he was never
informed by
respondent what he was being charged with.
[22] In arguing the case
for respondent, its counsel reiterated the five charges which
appeared in Mr America's answering affidavit.
Counsel also
submitted, with reference to applicant's complaint of procedural
unfairness, that, in the context in which the admission
of guilt
fine was paid, applicant had admitted that he was guilty of the
charges set out in the admission of guilt agreement.
[23]
It seems to me that respondent's main defence ignores the
fundamental distinction in our law between an appeal and a review.
In an appeal the question is whether the decision was right or
wrong. In a review the focus is on the process and on the way
in
which the decision maker came to his conclusion. See the following
passages in
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration
2007
(1) SA 576
(SCA) paras [30] and [31]:
" The question
on review is not whether the record reveals
relevant
considerations that are capable of justifying the outcome. That test
applies when a court hears an appeal: then the inquiry
is whether
the record contains material showing that the decision -
notwithstanding any errors of reasoning - was correct. This
is
because in an appeal the only determination is whether the decision
is nght or wrong.
[31] In a review the
question is not whether the decision is
capable of being
justified (or, as the LAC thought, whether it is
not so incorrect
as to make intervention doubtful), but whether the
decision-maker
properly exercised the powers entrusted to him or
her. The focus
is on the process and on the way in which the
decision-maker came
to the challenged conclusion "
[24] In the present case
the court has been requested to review the respondent's decision,
namely to consider whether respondent
followed a valid procedure in
arriving at the decision in question. The issue is not whether the
outcome of the process was right
or wrong.
[25] In the case of
applicant, as I pointed out above, the process followed by
respondent was fundamentally flawed. Respondent's
first defence
accordingly fails.
[26] Respondent's second
defence is based on the provisions of section 46 of the Act. The
defence appears to be that applicant's
payment of the fine of R10
000,00 amounted to an "admission of guilt fine" within the
meaning of section 46 of the
Act. In view thereof, so ran the
argument, no further inquiry was necessary or proper.
[27] The procedure for
the determination and payment of an "admission of guilt fine",
is set out in section 45 of the
Act. It contains five requisites
which may be summarised as follows:
(1) The initiation of a
charge by way of notice in writing to be served upon the sheriff.
A request for a written
admission or denial of the charge.
An opportunity to allow
the sheriff to consider an admission of guilt and the payment of
the fine.
Payment of the fine by
the sheriff.
The signature of the
admission of guilt by the sheriff.
[28] In the present case
not one of these five requisites was met save, perhaps, the payment
of the fine. This took place, however,
in circumstances where undue
influence was being exerted upon him by respondent. Its validity is
therefore doubtful.
[29] Applicant is
accordingly entitled to the principal relief sought by him.
[30] Applicant also
asked for an order that respondent be directed to issue a fidelity
fund certificate to him. Ordinarily a court
would not grant such an
order but as the remaining period to the end of this year is
relatively short, I am prepared to grant
this order.
[31] Applicant asked, in
the third place, an order that respondent be directed to issue
fidelity fund certificates to certain
of his employees. The
circumstances in which respondent refused to grant fidelity fund
certificates to such employees did not,
however, feature as part of
the review before me and I cannot grant such an order.
[32] The question of the
validity of the final written warning issued to applicant was
similarly not investigated before me and
I cannot make any order in
regard to it.
[33] In the light of my
finding that respondent's handling of the alleged complaint against
applicant was invalid, I am of the
view that applicant is entitled
to the repayment of the alleged fine of R10 000,00.
[34] In the result I
make the following orders:
(1) The decision of
respondent not to issue a fidelity fund certificate to applicant for
the year 2010, is reviewed and set aside.
(2) Respondent is
directed to issue such a certificate to applicant for the year 2010.
(3) Respondent is
ordered to pay the sum of R10 000,00 to applicant.
(4) Respondent is
ordered to pay applicant's costs.
A
P BLIGNAUT