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[2010] ZAWCHC 346
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Maart v Minister of Defence and Others (743/2009) [2010] ZAWCHC 346 (9 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
743/2009
DATE:
9
DECEMBER 2010
In
the matter between:
DANIE
MARTHINUS MAART
…......................................................
Applicant
and
MINISTER
OF DEFENCE
…...................................................
1
st
Respondent
CHIEF
OF SOUTH AFRICAN DEFENCE
FORCE
…............................................................................
2
nd
Respondent
COL
LOUIS CORNELIUS HOFFMAN N.O.
….........................
3
rd
Respondent
JUDGMENT
(Application
for Leave to Appeal)
DAVIS.
J
:
This
is an application for leave to appeal against the judgment of this
Court on 2 September 2010. Reasons for dismissing the
application
was set out comprehensively in the written judgment and I do not
intend to traverse the dispute save where it is
strictly necessary.
The
essence of the finding of the Court was that the delay in
instituting review proceedings by applicant, was so unacceptably
long, thai a condonation application could not be justified in the
circumstances. Mr
Bodart
,
who appears again for the applicant, provided me with very
comprehensive reasons as to why leave to appeal should be granted
and has, in essence, honed in on the strongest possible point which
applicant can raise.
It
is this, even though the applicant appears to have been discharged
from the South African Defence Force in 1989, that is more
than 21
years ago, there was, as Mr
Bodart
put
it, an interruption in the process. That interruption having been
caused by the respondents instituting boards of inquiry
as set out
in the principal judgment. In other words, Mr
Bodart
submits
that it would be unfair to take account of the full 21 year delay
and that the delay is for a much shorter period. Given
the
injustice, which he submits has been suffered by applicant, it would
only be in the interests of justice to condone a relatively
short
delay and allow the merits of the dispute to be canvassed.
As
I noted in the principal judgment, whatever the dispute with regard
to delay, the founding affidavit provides no explanation
as to why
between December 2006 and 26 June 2008, applicant took no action to
expedite the process, nor did he take the Court
into his confidence
as to the reasons for this delay. That in itself is a delay of more
than 18 months, I might add a period
significantly in excess of the
period prescribed by the legislation for the institution of a
review.
At
the least it could have been expected from the applicant, given the
fact that there was the longer delay of more than 21 years
since his
dismissal, was for an adequate explanation as to an excessive delay
of more than 18 months. Mr
Bodart
was
constrained to concede that no explanation was provided in this
regard. A suggestion made both in the application for leave
to
appeal and in submission made by Mr
Bodart
during
the hearing, was that this Court was incorrect to have taken account
of the decision in
Gawetha
v Transkei Development Corporation Limited & Others
2006(2)
SA 603 (SCA), namely that not only is finality important, but when
the delay takes place within the context of an employment
relationship, the prejudice caused by that delay is exacerbated,
given the kind of evidence that would be required to determine
the
fairness or otherwise of the dismissal.
Mr
Bodart
is
correct when he submits that this dispute is strictly not one that
falls within this context. However in substance, the dispute
would
have to canvass issues not dissimilar from those which vexed
Nugent
,
JA in
Gqwetha
to
employment questions. Even if I do not take account of the
inordinate delays prior to December 2006, the fact is that this
Court would be asked to condone an application which would then
require a determination of a dispute that took place more than
two
decades ago, and in which the applicant has never shown the kind of
commitment to resolve the dispute which would justify
a condonation;
in particular the unexplained lengthy delay between 2006 and 2008.
To
the submission by Mr
Bodart
that
this Court overemphasised the policy considerations attendant upon
granting a delay of such a nature, the riposte is this:
Even he was
constrained to concede that this was a most unusual case. To allow
condonation in a case like this, would in effect
be to gut the very
purpose of reviews the provisions that brought expeditiously.
For
these reasons, therefore,
I
cannot
see how another court could reasonably come to a conclusion
different to this Court. Accordingly
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED
I
will
not make a costs order in this regard.
DAVIS,
J