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[2011] ZAGPPHC 159
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Mafafo v Minister of Justice and Constitutional Development and Another (74629/10) [2011] ZAGPPHC 159 (3 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 74629/10
DATE:O3/05/2011
TEBOGO
EUGENIA
MAFAFO
.................................................................................
APPLICANT
VS
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
........................................................................................
First RESPONDENT
MAGISTRATE
COMMISSION
...............................................................
Second
RESPONDENT
JUDGMENT
MABUSEJ:
1
On 17 December 2010 I dismissed, with costs, the applicant's
application and undertook to furnish reasons for the said order on
request. On 22 March 2011, the Applicant made a written request for
such reasons. These are therefore the reasons for the order
that I so
made on the aforementioned date.
2
The Applicant is a female person who resides at 64 Newark street,
Highveld, Centurion. The First Respondent is the Minister of
Justice
and Constitutional Development. The second respondent is the
Magistrate Commission. The applicant has not furnished the
further
details of the respondents.
3.
The applicant brought this application personally and in her own name
on an urgent basis. She sought the following order:
1.
"That this application is treated as an urgent application and
that the above mentioned Honourable Court in accordance with
the
provisions of Rule 6 (2) dispense with the normal forms and service,
2.
Compelling the First Respondent on recommendations of the Second
Respondent to re-instate or compensate Applicant in accordance
with
the order of this Honourable Court, in the matter number 2644A/10.
3.
Immediate retrospective payment of salaries due to the Applicant from
the resignation date (16.01.2009) to the date of final
decision of
the First Respondent.
4.
Interest at 15.5 percent per annum on arrear salaries due to the
Applicant pending the final decision of the First Respondent.
5.
Cost to be paid by the First and Second respondent, Jointly and
severally the one paying and the other to be absolved.
6.
Further/ Alternative relief as the Honourable Court may deem fit"
[4]
Attached to the notice of motion was the applicant's founding
affidavit which she used in support of this application. In view
of
the fact that the genesis of applicant's application is the court
order under case number 26440A/10, it is only apposite, in
my view,
that I set out the terms of said order. A copy the said order is
annexed to the said application and marked 'A'. The said
order which
the court granted on 27 October 2010 reads as follows:
"l.
That the proceedings in which the administrative decision by the
first
respondent
to relived the applicant of her duties as a judicial officer be and
is hereby reviewed and set aside.
2.
That the proceedings before the second respondent dated 04 December
2004 in which it was resolved to charge the applicant with
misconduct
summarily be and is reviewed and set aside.
3.
That the misconduct investigation conducted by the second respondent
against the applicant be and is hereby reviewed and set
aside.
4.
That the costs of occasioned by any opposition to this application
for review be and should be paid by the respondent who oppose
it".
5.
BACKROUND
In
1997, the applicant was appointed as a Magistrate in terms of the
provisions of the Magistrate Court Act No: 32 of 1994. Due
to
personal reasons, so contends the applicant, the Chief Magistrate
took a administration decision to relief her of her duties
as a
judicial officer without complying with the provisions of the
Promotions of the Administrative Justice Act 3 of 200o("PAJA")
and, in addition, by acting outside his course and scope of his
authority as a Chief Magistrate.
6.
The Second Respondent also took an administrative decision to charge
her with misconduct summarily based on the allegations
of the Chief
Magistrate.
Furthermore the Second Respondent conducted and
misconduct investigation against the applicant which had no findings
or recommendations
in contravention with the rules of natural
justice.
7.
Although, as stated above, the said misconduct investigations were
conducted against her had no findings, the Applicant contends
that
the misconduct
investigations were set aside by the Court order
referred to in paragraph 4 supra.
8.
Although the respondents were served with copies of the said Court
order on 28 October 2010, they have failed to comply with
it within
the ten days after it had been granted. It is unclear from the
founding affidavit whether the respondents were supposed
to comply
with the said court order within ten days of it service. According to
the applicant the respondents are not willing to
comply with said
court order.
9.
On 4 December 2010 the Applicant went to the office of the Second
Respondent's secretary to establish what its response to the
said
order was. She was told that, in view of the fact that the court did
not order her reinstatement into her former position,
there was
nothing that the Second Respondent could do in the circumstances.
10.
The secretary of Second Respondent was taken aback that the Justice
Legal Department seemed to have failed, despite the instructions
form
the Second Respondent, to oppose the application that led to the said
Court order.
11.
The applicant contends that, on the following reasons, the
application was brought on an urgent basis and it merited to be
treated accordingly in that manner:
(i)she
resigned from her employment on 16 January 2009 after the said Chief
Magistrate had taken a decision to relief her of her
duties and has,
since then not had any source of income. She could not be admitted as
a attorney simply because the Law Society
of Northern Province
opposed her application for admission on the strength of the
submissions made by the said Chief Magistrate
that she was not a fit
an proper person to admitted as an attorney. Despite opposition from
the said Law Society, she was ultimately
admitted.
(ii)
As a parent she has legal obligations to maintain her children.
(iii)
She has a domestic worker who had to be paid by 20 December 2010 when
she was due to go on leave for Christmas holidays.
(iv)
She also had an uncle who was bedridden and who, because his
condition, required 24 hours home care by a nurse who had to be
paid
by 20 December 2010.
(v)
She had arrears to settle immediately on her mortgage bond
instalments.
(vi)
She has other contractual liabilities which she could not fulfil in
the past 24 moths by reason of the fact that she has no
source of
income.
In
a word, those are the factors that the applicant advanced on the
basis of which she claimed that her matter was urgent. Having
considered the matter and satisfied myself that the matter, though in
my view not urgent, I decided to deal with it speedily.
12.
The applicant contends furthermore that the aforementioned Court
order was valid and that the respondents have taken no steps
to have
it set aside. She was of the view that if this court granted her the
prayers she sought there would be no prejudice suffered
by the
respondents. The respondents would, in her view, and if her
application is granted, be afforded an opportunity to apply
their
minds and decide whether or not to compensate her for the remainder
of the employment contract up to her age of retirement
or reinstate
her in the position she occupied before the Chief Magistrate took his
decision and before she resigned. She believed
that for all intents
and purposes she was still a magistrate because the decision of the
magistrate has been set aside. No Act
of Parliament empowers a Chief
Magistrate to relief a magistrate of her duties as a judicial
officer.
13.
As I indicated earlier that this application is opposed by the
respondents. An affidavit by Abel Daniel Schoeman("Schoeman"),
a major male employed by the Department of Justice and Constitutional
Development ("the Department"), acting in this
matter in
his capacity as a secretary of the Second Respondent was used by both
respondents to oppose the application. A verifying
affidavit by
Therese Bezuidenhout ("Bezuidenhout"), who was employed by
the Department as the Director for Directorate;
Law Enforcement, was
used in to support Schoeman's affidavit.
14.
According to the respondents, the applicant was appointed in 1997 as
an additional Magistrate who, in that capacity and at the
pleasure of
the Chief Magistrate of Pretoria (Chief Magistrate), rotated between
civil and criminal courts and was sometimes released
to act in the
regional courts.
15.
On 4 December 2008, the Second Respondent received from the Chief
Magistrate serious complaints relating to the conduct and
insubordination of the Applicant. These complaints included, among
others, disregard for authority, deliberate attempts to bring
the
judiciary into disrepute and failure or refusal of the Applicant to
comply with lawful instructions of a senior magistrate.
These
complaints were lodged in an extensive affidavit consisting of
twenty-eight (28) typed pages. A copy of the aforementioned
affidavit
is part of the opposing papers.
16.
The Ethics Committee of the Second Respondent decided, at its meeting
on 4 December 2008, to charge the applicant with misconduct,
it
conveyed its decision to charge the Applicant with misconduct to the
said Chief Magistrate in a letter dated 15 December 2008.
In the same
letter, the Second Respondent indicated to the Chief Magistrate that
it would compile a charge sheet and have it served
on the Applicant
after its approval.
17.
Before a charge could even be served on her, on 15 January 2009, the
Applicant tendered a written resignation with effective
from 16
January 2009. Although this notice of termination of service by the
applicant was short notice the Chief Magistrate accepted
it
notwithstanding. The said letter reads as follows
"The
Chief Magistrate
Private
BagX61
PRETORIA
0001
Dear
Sir
TERMINATION
OF SERVICE
I
would like to take this opportunity to congratulate you on your
endeavour of making it possible that you make my working condition
and my continued stay in this establishment unbearable and
intolerable.
I
have since made a verbal and written request on 22 December 2008 to
be furnished with copies of the affidavit upon which a charge
of
misconduct against myself has been preferred. To date you have not
complied instead you issued an instruction to the acting
senior
Magistrate that myself and Ms Ndamase should not be placed on the
duty list. This simply means you have declared us, redundant
and
unfit to perform any judicial work. After taking this drastic step
you did not deem it necessary to give us reasons why we
should not
perform any judicial work.
Today
on 15 January you gave me a letter in which you requested met to give
reasons for refusal to perform judicial work. This is
very strange.
Let
me remind you of the provisions of section 33 of the Constitution Act
108/1996.
(1)
Everybody has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
My
continuous stay in this establishment will result in more violation
of my constitutional rights and will have a negative impact
on my
health in general.
I
cannot tolerate this humiliating degrading and stressful working
environment any longer therefore, I resign as a Magistrate. I
however
intend to pursue the affidavits issue. If need be I will institute
legal action to compel you to produce them as soon as
possible.
My
last working day in this establishment is 16 January 2009.
Thank
you
T.E.
MAFAFO"
18.
The applicant in turn also complained to the Second Respondent about
the conduct of the same Chief Magistrate. The Second Respondent
resolved to pay attention to the complaint lodged by the Applicant
after it would have dealt first with the Chief Magistrate's
complaint
against her.
19.
After her res ignation as a Magistrate, the Applicant requested a
letter of good standing from the Second Respondent in order
her to
enable her to apply for her admission as an attorney. The said letter
was a requirement of the law under which she applied
for her
admission. The letter was issued by the Second Respondent on 5
October 2009. When the said letter was issued it contained,
among
others, a paragraph that the Ethics Committee of the Second
Respondent had taken a resolution to charge the Applicant with
misconduct and that she resigned from the service of the Department
before a charge sheet could be served on her.
20.
Although the Law Society of the Northern Province (sic) opposed her
application for her admission as an attorney, the Applicant
was
eventually admitted. She now practises under the name and style of
Mafafo Attorneys and (ADR) Practitioners.
21.
During May 2010 the applicant brought a review application in this
Court under case number 26440/2010 for the following relief:
"(I)
That the administrative decision by the second respondent to relief
her of her duties as a judicial office(sic) be reviewed
and set
aside.
(ii)
That the proceedings before the second respondent (Magistrate
Commission) dated 4 December 2008 in which it was resolved to
charge
her with misconduct be reviewed and set aside.
(iii)
That the misconduct investigation conducted by the second respondent
(Magistrate Commission) against the applicant be reviewed
and set
aside".
22.
In her aforementioned review application, the applicant relied,
firstly, on the fact
that
she tendered her resignation as a Magistrate during January 2009
after numerous attempts to resign; secondly, she attempted,
without
success, to secure employment in the private and public sector as
result of the pending misconduct investigations by the
Second
Respondent and, thirdly, her rights to work, to earn a living, to
practise a profession of her choice, dignity, fair labour
practice,
good name , reputation , integrity, good health, just administrative
. action and to be heard and are violated as a result
of the pending
misconduct investigation by Second Respondent.
23.
On 27 October 2010, the Applicant obtained an order she had sought
in the said review application. The respondents contend
that due to a
administrative oversight, it never opposed the Applicant's review
application and stated furthermore that it was
in the process of
seeking legal opinion on the rescission of the order so obtained by
the Applicant.
24.
It is clear that the Applicant seeks to be reinstated into her
former position as a Magistrate on the basis of the order she
obtained on 27 October 2010. It is as clear as crystal that the
Applicant completely misunderstood the terms and effect of the
said
order.
25.
In the first place, on 20 October 2010 the court did not order that
she should be reinstated into her former position as a
magistrate.
This is so because she never
sought such an order in the review
application under case number 26440/10.
Accordingly the court
could not grant her an order she never sought and could therefore not
order the respondents to reinstate her.
Secondly on her own
admission, the Applicant resigned from her employment as a magistrate
on 15 December 2009. Whether or not there
were good and valid grounds
for her to resign is immaterial as far as the current application was
concerned. What is of paramount
importance is that she resigned form
the service of the Department on 15 January 2009 with effect from 16
January 2009. Accordingly
she ceased to be in employ of the
Department on 16 January 2009. From 16 January 2009 the applicant had
never had any office as
a magistrate and the Second Respondent
stopped having any control over her. Thirdly and lastly her claims to
be reinstated into
her former position of a magistrate is not
supported by the facts she purports to rely on. The relief she
claimed in the said review
application was only directed at the
decision of the respondents to charge her with misconduct.
26.
On her own version, it was contended by the respondents, the
Applicant was never subjected to any misconduct inquiry and hearing
by the Second Respondent simply because she jumped the gun. Secondly
she was never suspended from her duties as a magistrate pending
the
finalization of the investigation of her fitness to hold an office of
a magistrate and thirdly and finally the First Respondent
never
removed her from her office as a magistrate. In my view the applicant
had failed to make a proper case for her reinstatement
hence the
order that I made on the 17 December 2010.
27.
It is indeed so, and I agree with counsel for the respondents, that
this matter was not urgent. The applicant had failed to
make out a
good case for urgency. It will be recalled that the matter was heard
on a Friday and that it was the only opposed matter
on the roll on
that particular day. I perused the papers and had made up my mind
that I would hear and dispose of the matter notwithstanding
the fact
that it was not urgent. It did not appear to be a complex matter, in
my view. It was a matter that could be easily disposed
on the facts.
P.M.
MABUSE
JUDGE
OFTHE HIGH COURT