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[2010] ZAGPPHC 174
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Pitje and Another v Van Der Merwe and Another (25095/09) [2010] ZAGPPHC 174 (23 September 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 25095/09
DATE:
23/09/2010
S.
N.
PITJE
...............................................................................................
1
st
APPLICANT
N.
PITJE
...................................................................................................
2
ND
APPLICANT
vs
G.
T. VAN DER
MERWE
......................................................................
1
st
RESPONDENT
A.
P. J.
ELS
.........................................................................................
2
nd
RESPONDENT
JUDGMENT
Delivered
on: 23 September 2010
POTTERILL
J,
1.
The
first applicant representing himself and the second applicant
represented by Advocate Tsweni brought an application for my recusal.
2.
The
background to this application is that on 30 October 2009 I granted
an application for the eviction of the applicants in terms
of the
Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act, 19 of 1998, herein
after referred to as the PIE Act." The respondents
were to
vacate the premises by 30 November 2009.
3.
The
applicants filed an application for leave to appeal against this
order. This application was served on the respondents on 20
November
2009. It was arranged by my Registrar that the matter be heard on 2
December 2009. On 2 December 2009 the application
for leave to appeal
was postponed
sine
die,
but
the application in terms of rule 49(11) for the execution of the
eviction order proceeded. I granted this order.
4.
The
respondents in the rule 49(11) application on 4 December 2009 brought
an urgent application to suspend the order made in terms
of rule
49(11), but the application was dismissed by Webster J.
5.
On
24 December 2009 the respondents in the rule 49(11) application
brought an application to vary the order granted by Webster J
before
Sapire AJ and the matter was removed from the roll.
6.
On
1 January 2010 the variation order once again came before Makgoka J
and he directed that the matter be removed from the roll.
7.
On
15 January 2010 Acting Judge Tuchten entertained on an urgent basis
an application to vary an interlocutory order made by Webster
J on 4
December
2009.
Tuchten
AJ ordered inter alia that the matter is urgent but all the same
postponed it
sine
die.
8.
On
10 June 2010 Makgoka J made inter alia the following order:
“
The
execution order granted by Potterili J on 2 December 2009 is
suspended, pending the determination of the rescission application
launched by the first and second applicants on 3 December 2009"
9.
The
respondents to the leave to appeal against my eviction order then
proceeded to apply for a date for the leave to appeal to be
heard. My
registrar informed the respondents that the date of 20 September 2010
would be suitable. This was after the respondents'
attempt to arrange
a date with the applicants therein was fruitless.
10.
On
20 September 2010 the first applicant averred he did not know of the
date for the leave to appeal but was present because he
accidentally
heard of it via an advocate who told him he saw his (Pitje's ) name
on the roll.
i
found
that he did in fact know of the date, but afforded him opportunity to
obtain counsel and for preparation and let the matter
stand down till
the next day, 21 September
2010,
at
9:00.
11.
On
21 September 2010 he represented himself and Advocate Tsweni appeared
on behalf of second applicant (his wife). They arrived
at 9:50 and
the matter proceeded whereby the applicants brought an application
for my recusal.
12.
The
basis for the recusal is threefold:
17.1
"It
is further not without significance that at least two legal minds
from the Bench in this division also found that what
has occurred
during the proceedings heard by Justice POTTERILL was controversial
and amounted to an injustice being done to us
from the Bench.
"(Paragraph 4.4)
17.2
"I
further articulated the view that her aforesaid conduct was well
planned with the Respondents. This contention is further
apparent
from the various documents forming part of the record in the
matter."(Paragraph 4.3)
17.3
Mr
Pitje lodged a complaint against me at the Judicial Services
Commission to which I have not responded.
13.
The
test to be applied in cases of applications for the recusal has
recently been laid down by the Constitutional Court in the case
of
President
of the RSA v SA Football Union
199(4)SA
147 CC where the Court held at 177B. par [48] as follows:
"It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the onus of establishing it rests upon the applicant. The question is
whether a reasonable, objective and informed person would
on the
correct facts reasonably apprehend that the Judge has not or will not
bring an impartial mind to bear on the adjudication
of the case, that
is a mind open to persuasion by the evidence and the submissions of
the counsel. The reasonableness of the apprehension
must be assessed
in the light of the oath of office taken by Judges to administer
justice without fear or favour: and their ability
to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any
irrelevant personal beliefs
or predispositions. They must take into account the fact that they
have
a
duty
to sit in any case in which they are not obliged to recuse
themselves."
In
par [40] it was found that the law presumes that judges are impartial
and the party applying for the judge's recusal must therefore
establish the reasonable apprehension of bias. The presumption is not
easily dislodged; it requires cogent or convincing evidence
to
establish that a judge should recuse herself from the matter. At
paragraphs 46-47 it is found that given the presumption the
mere fact
that a party brings a recusal application is not enough to disqualify
a judge. A Judge has a duty to sit.
14.The
first ground for the recusal (par 12.1 above) is ill-founded and
without any merit. No other Judge has pronounced over the
judgment in
the eviction application to which the leave to appeal pertains. Not
that another Judge has the jurisdiction to sit
in appeal or review
over another Judge's judgment, bar very exceptional circumstances.
This can thus not be a fact for recusal.
Subsequent to the eviction
order the application in terms of Rule 49(11) came before Judge
Tuchten in the urgent court. He made
no finding of irregularity or
that justice was not served. He could not because the applicants in
that matter had not put the best
evidence before him; the lack
thereof so fatal that he had to postpone an urgent application
sine
die.
He
made several
obiter
remarks
and suggestions but stressing immediately after making them that he
is not making any findings or expressing any opinions:
Paragraphs 23
& 25. In paragraph 9 of his judgment he states the following:
"What
transpired at the hearing on 2 December 2009 is at present
controversial. Suffice is to say that the application for
leave to
appeal did not proceed on the date but Potterill J heard and granted
the Rule 49(11) application...."
In
paragraphs 11 and 12 Tuchten J sets out that the applicants' (Pitsi)
were not represented at this hearing. Also that it is averred
that
the rule 49(11) could not have been entertained because it had to be
heard simultaneously with the application for the leave
to appeal. I
thus had no jurisdiction to entertain the rule 49(11) application
because the leave to appeal did not proceed.
"All
these contentions are hotly disputed by the respondents."
He
then in paragraph 24 finds that in fact there needs to be no
controversy as the transcripts will determine what was said.
No
reasonable, objective and informed litigant would in possession of
these facts reasonably apprehend that I am partial. The controversy
lies in what the applicants are averring vis a vie the respondents.
He does not find that I acted controversially or that an injustice
is
done to the applicants and averring so under oath is an untruth.
It
is also stated that the second legal brain" that found that I
acted controversially and unjustly towards the applicants
is Makgoka
J. Once again his judgment has no bearing on the application for
leave to appeal against the judgment granting the eviction.
For
the sake of completeness the judgment of Makgoka J can also never
objectively, reasonably convey to an informed litigant that
I am
partial. Paragraph [37] of this judgment has the heading "CONCLUSION"
[37]
"Having
regard to all the factors in this application, I am of the view that
the relief sought by the applicants be granted.
I have come to this
conclusion mainly on the basis that Potterill J's judgment was
granted in the absence of the second applicant.
From a practical
point of view, the order I am about to make affects invariably the
first respondent They are husband and wife."
Makgoka
J then makes an interlocutory order that the execution order is
suspended pending the determination of the rescission application.
Many orders are granted in the absence of a party where notice had
been given or service was affected. Be that as it may, at the
most a
reasonable, objective litigant in possession of all the facts can
apprehend that I made a "mistake", but not that
there was
bias. The "mistake" is in any event against Mrs Pitje and
not against Mr Pitje, the first applicant. This "ground"
for recusal is thus dismissed.
15.
The second ground for the recusal is based on obviously wrong and
unsubstantiated factual averments and it is also rejected.
On 24
August 2010 I received a letter from the respondents wherein they set
out that I granted an eviction order. The judgment
was transcribed by
the respondents and served on the applicants in the application for
leave to appeal on 12 August 2010. They
enquired from the appeal
registrar and ascertained that I have not yet allocated a date for
the hearing of this application. They
then requested that I arrange a
date for hearing.
My
registrar on 27 August 2010 in answer to their request informed them
that I have not had a request to allocate a date hence no
date was
allocated. He informed them to arrange a date with the applicants for
any morning at 9:30. This is in accordance with
normal practice in
this division.
On
6 September 2010 I received a letter form the respondents wherein
they requested that I provide a date as they have approached
the
attorneys of the applicants on three occasions to no avail. In
response thereto my Registrar provided them with the date of
20
September 2010 9:30 and requested them to serve a notice of set-down
on the applicants in the application.
I
also instructed my clerk to send a copy of the letter dated 6
September 2010 to the applicants' attorney by registered post. The
registered slip is dated 9 September 2010. On the same date my
registrar also faxed and e-mailed tn the applicants attorney.
The
notice of set-down is served on the applicants' and filed at the
registrar on 9 September 2010.
The
applicants submitted that I gave the respondents a date already in
July 2010 and I confirmed this in a remark I made when Mr
Pitje
argued that he did not have notice of this date of the 20
th
of September 2010. This is devoid of all truth: all the
correspondence bears this out. I, in court, informed Mr Pitje that I
had
given the respondents the date prior to the notice of set-down
and not in July 2010. He jumps to this conclusion because the notice
of set-down is dated 12 July 2010 although served and filed on 5
September 2010. The judgment had not been transcribed by 12 July
2010
and was only revised on 5 August 2010. The facts speak for
themselves. On these objective facts no reasonable litigant can
reasonably apprehend bias. I took all steps to timeously inform the
applicants' when their application is to be heard.
The
statement under oath "/
further
articulated the view that her aforesaid conduct was well planned with
the Respondents"
is,
having regard to the true facts, highly irresponsible, reprehensible
and unethical. This ground is rejected.
I
on 20 September 2010 found on a preponderance of probabilities that
the applicants' knew of the date of 20 September 2010. The
notice of
set-down was served and filed and my registrar had successfully
transmitted a fax, sent e-mail and registered post. The
fact that Mr
Pitje was at court on 20 September 2010 confirms this. The fact that
he was in court because on the morning of the
20
th
an advocate informed him that his name was on the roll is so
improbable as to be unbelievable. This is borne out by the fact that
he refused to enlighten the Court as to who this advocate was. The
affidavit presented on the 21
st
of September 2010 that the secretary of his attorneys did receive
"LP1 "(notice of set-down) and "LP2"(letter
emanating from my registrar) but did not bring it to the attention of
the professional staff is filed after my ruling and my ruling
stands.
She does not state whether she filed the letter received by
registered post or the one sent by e-mail or the one sent by
fax. I
stand by my ruling that on a preponderance of probabilities Mr Pitje
knew that the application was to be heard on 20 September
2010.
16.The
last ground for the recusal is that Mr Pitje laid a complaint at the
Judicial Services Commission. He avers that the basis
of his
grievance is that
"Justice
POTTERILL has acted in a manner that is openly bias against us and
has made only adverse orders against us as a result
of her such
conduct."
Paragraph
4.5 stating that I have not responded to the complaint is a blatant
untruth. It can just again be described as reprehensible
conduct on
the part of Mr Pitje and deserves no further comment.
The
matter is still pending and will be finalized on the 4
th
of October 2010. Accordingly the merits of the complaint will not be
dealt with, suffice to say that the nature of the complaint
as set
out in the complaint, or the lodging of the complaint itself, can
never impact on my ability to be free of unfitting adherence
to
either party.
Applying
the test as set out above I am mindful that a litigant knowing that a
pending complaint was laid by Mr Pitje and I have
to adjudicate in a
matter that he is involved may apprehend whether I would be able to
distance myself from this complaint.
On
this ground I accordingly recuse myself.
17.
I accordingly make the following order:
17.1
I
recuse myself from the application for leave to appeal.
17.2
The
costs of this application is costs in the cause.
17.3
The
wasted costs of 20 September 2010 is to be argued at the hearing of
the application.
17.4
Either
party may forthwith approach Judge W van der Merwe, the Deputy Judge
President in writing for two judges
of
this
division to hear the leave to appeal application.
S.
Potterill
Judge
of
the
Hight
Court
Matter
heard on: 20&21 September 2010
Delivered
on: 23 September 2010
Counsel
for the 1
st
Applicant:
Counsel
for the 1
st
& 2
nd
Respondents:
In
Person
Advocate
van der Merwe
Counsel
for the 2
nd
Applicant:
Advocate
Tsweni
Attorney
for the 1
s
'
& 2
nd
Applicants:
Attorney
for the 1
st
& 2
nd
Respondents:
Mkhabela
Attorneys.
Van
der Merwe & Associates
Pretoria.
Pretoria
(Ref:
MK/LP/40/2010)
(Ref:
P VD MERWE/II/PV0054)