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2024
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[2024] ZAFSHC 9
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Motsoane v Chairperson the Board Legal Aid South Africa and Others (5153/2022; 3449/2023; 1857/2021) [2024] ZAFSHC 9 (18 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
1. Reportable:
Yes/No
2. Of interest to other
judges: Yes/No
3. Revised: Yes/No
Application
no: 5153/2022
In
the matter between:
CEPHAS
MOTSOARI MOTSOANE
Applicant
and
CHAIRPERSON THE BOARD
LEGAL
AID SOUTH AFRICA
1
nd
Respondent
CHIEF
EXECUTIVE OFFICER
2
nd
Respondent
LEGAL AID SOUTH
AFRICA
CHIEF
OPERATIONS OFFICER
3
rd
Respondent
LEGAL AID SOUTH
AFRICA
PROVINCIAL
MANAGER
4
th
Respondent
LEGAL AID SOUTH AFRICA
FREE STATE PROVINCE
IL
DE
WET
5
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
BLOEMFONTEIN JUSTICE
CENTRE
FREE STATE PROVINCE
AND:
Application
no: 3449/2023
In
the matter between:
CEPHAS
MOTSOARI MOTSOANE
Applicant
and
LEGAL
AID SOUTH AFRICA
1
st
Respondent
CHAIRPERSON OF THE
BOARD
LEGAL
AID SOUTH AFRICA
2
nd
Respondent
ALL MEMBERS OF THE
BOARD
LEGAL
AID SOUTH AFRICA
3
rd
Respondent
MS/MRS
MONTITI KOLA
4
th
Respondent
CHIEF EXECUTIVE
OFFICER
LEGAL AID SOUTH
AFRICA
CHIEF
OPERATIONS OFFICER
5
th
Respondent
LEGAL AID SOUTH
AFRICA
MS/MRS
PORTIA THANGAVHUELELO
6
th
Respondent
NATIONAL OPERATIONS
OFFICE
LEGAL AID SOUTH AFRICA
ROVINCIAL
MANAGER
7
th
Respondent
LEGAL AID SOUTH AFRICA
GAUTENG PROVINCE
MS/MRS
NCEKAZI MOAHLODI
8
th
Respondent
MANAGER
JOHANNESBURG JUSTICE
CENTRE
LEGAL AID SOUTH AFRICA
ADV.
ENRICO GUARNERI
9
th
Respondent
HIGH COURT UNIT
MANAGER
LEGAL AID SOUH AFRICA
JOHANNESBURG
ADV.
MBONGENI MBATHA
10
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
MS/MRS
ELSE SEBE
11
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
JOHANNESBURG JUSTICE
CENTRE
MR
NTAKE
12
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
JOHANNESBURG JUSTICE
CENTRE
PROVINCIAL
MANAGER
13
th
Respondent
LEGAL AID SOUTH AFRICA
FREE STATE PROVINCE
MR
MACHINI MOTLOUNG
14
th
Respondent
LEGAL PRACTITINE
LEGAL AID SOUTH AFRICA
BLOEMFONTEIN JUSTICE
CENTRE
IL
DE
WET
15
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
BLOEMFONTEIN JUSTICE
CENTRE
FREE STATE PROVINCE
LEONA
SMIT
16
th
Respondent
LEGAL PRACTITIONER
LEGAL AID SOUTH AFRICA
BLOEMFONTEIN JUSTICE
CENTRE
FREE STATE PROVINCE
AND:
Case
no: 1857/2021
In
the matter between:
CEPHAS
MOTSOARI MOTSOANE
Applicant
and
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
Respondent
CORAM:
VAN
ZYL, J
HEARD
ON:
5
OCTOBER
2023
DELIVERED
ON:
18
JANUARY 2024
[1]
The application under application number 5153/2022, served before me
on 5 October 2023 in the
unopposed Motion Court. The applicant, who
is presently incarcerated at Mangaung G4S Private Prison,
Bloemfontein, appeared in
person. Mr Geyer, employed by Legal
Aid South Africa, Bloemfontein Local Office, appeared on behalf of
the respondents.
[2]
There are two other applications in which Mr Motsoane is also the
applicant, which applications
are intertwined with this application,
but which were not placed on the roll for 5 October 2023.
However, all three files
were placed before me prior to the hearing
of the application under the application number 5153/2022.
Background
to the present application:
[3]
The applicant previously issued an application against the National
Commissioner of the South
African Human Rights Commission under
application number 1857/2021 (“the main application”).
The application
was issued on 21 December 2021. The matter
became opposed and both parties filed heads of argument, with the
applicant appearing
in person. The application eventually
served before Opperman, J on 8 March 2022. Opperman J issued
the following order:
“
1.
The matter is struck from the roll.
2.
No order is made as to costs.
3.
The matter is referred to Legal Aid South Africa to supply the
applicant with legal representation
in order for him to prepare [and]
promote his case.”
[4]
The subsequent application which was issued by the applicant is the
present application
under application number 5153/2022. The
first set of papers herein was issued on 19 October 2022. The
second set of
papers was issued on 14 December 2022, the third set of
papers on 7 March 2023, the fourth set of papers on 5 July 2023 and
the
fifth set of papers, being the papers which served before me on 5
October 2023, was issued on 22 September 2023. The matter
initially served before Reinders, J on 16 March 2023, when she made
the following order:
“
The matter is
removed from the roll.”
[5]
Before the last-mentioned set of papers was issued on 22 September
2023, the matter
also served before Mbhele, DJP on 20 July 2023, when
she made the following order:
“
1.
The matter is struck off the roll.
2.
No order as to costs.”
[6]
In the meantime the applicant issued another application on 5 July
2023 under case
number 3449/2023. It appears to be an application
that Legal Aid South Africa and the further respondents be found
guilty of contempt
of court due to its failure to have appointed a
legal representative for the applicant in accordance with the court
order issued
by Opperman, J under application number 1857/2021 on 8
March 2022.
[7]
It seems that the last-mentioned application under application number
3449/2023 was set down to
be heard by Molitsoane, J on 29 August
2023, as well as application number 1857/2021. The file under the
present application number
5153/2022 was seemingly also placed before
Molitsoane on the said date when he heard application numbers
1857/2021 and 3449/2023.
Be that as it may, during my hearing
of the present application under application number 5153/2022 on 5
October 2023, the applicant
advised me that both Mbhele, DJP and
Molitsoane, J advised the applicant during the respective hearings
that served before them
that the applications should be consolidated
since the same respondents have been cited in both application
numbers 3449/2023 and
5153/2022.
[8]
During the hearing by Molitsoane, J on 29 August 2023, he ordered as
follows in both application
numbers 1857/2021 and 3449/2023:
“
1.
The application is removed from the roll.
2.
There is no order as to costs.”
Case
Number 5153/2022 which served before me on 5 October
2023:
[9]
As previously indicated, there are a number of sets of application
papers which have been filed
on different dates under the last
mentioned application number. The relevant set of papers which,
according to my understanding,
served before me is the set which was
issued on 22 September 2023 and enrolled for 5 October 2023.
[10]
The main relief sought in the said papers is threefold:
1.
Firstly, the applicant is seeking an order for the consolidation of
application numbers 5153/2022
and 3449/2023 and also of application
numbers 1857/2021 and 5153/2022.
2.
Secondly, the applicant is seeking an order that Legal Aid South
Africa and the further respondents
cited in application number
5153/2022 be found guilty of contempt of court and be compelled to
appoint a legal representative for
the applicant in accordance with
the order of Opperman, J issued under application number 1857/2021 on
8 March 2022.
3.
Thirdly, the applicant is seeking an
order that he should not be transferred to a different prison
pending
the finalization of all the aforesaid applications.
[11]
From his oral address during the hearing of the application, I
understood the applicant to be saying that
initially he was advised
that an application that Legal Aid South Africa be found guilty of
contempt of court should be issued
under a new case number and not
under the initial application number 1857/2021. That is why
application number 3449/2023 was issued.
However, afterwards
the applicant was advised that he should have issued the contempt
application under the same application number
in which Opperman, J
made the order regarding legal representation, hence 1857/2021, the
main application. He consequently filed
such papers on 24 August 2023
under the initial case number of 1857/2021, in which only the South
African Human Rights Commission
was cited as respondent.
My
approach and the reasons therefore:
[12]
In my view I have no other option but to follow a robust and
practical approach in this matter, as well as
the other applications.
In the absence of such an approach, the matters are probably time and
time again get removed from the roll
and the applicant will make no
headway with the applications. It is in the interest of all relevant
parties that the litigation
be finalised sooner rather than later.
[13]
Although application numbers 1857/2021 and 3449/2023 were not
specifically enrolled for 5 October 2023, I
deem it essential that
they retrospectively be and deemed to be enrolled as such.
[14]
I consider it appropriate that application numbers 5153/2022 and
3449/2023 be consolidated and subsequently
be adjudicated
simultaneously. I further deem it appropriate that the contempt of
court etc part of the main application filed
under application number
1857/2021 on 24 August 2022, firstly be separated from the main
application and secondly be consolidated
with application numbers
5153/2022 and 3449/2023. I will refer to the aforesaid three
applications as “
the three applications
”.
[15]
The South African Human Rights Commission (“the Commission”)
is not a party to the aforesaid
three applications. However, from the
relief which is being sought in the separated and consolidated
contempt of court etc application
filed under application number
1857/2021 on 24 August 2022, it is evident that the Commission may
have an interest in the relief
which is being sought therein. I
therefore deem it essential that the Commission be joined as a
respondent to the three applications.
[16]
The remaining part of the main application under application number
1857/2021, will remain a separate application,
but I deem it
necessary for the main application to datewise run concurrently with
the three applications in order for all parties
to keep track of all
papers filed and developments in the respective applications, insofar
as they would want to do so. The merits
of the main application
however, will only be adjudicated once the three applications have
been finalised and a legal representative
has been appointed to
assist the applicant therein or when the applicant has delined such
legal representation.
Time
frames:
[17]
For practical reasons and for the sake of effective litigation, I
intend to order time frames within which
the parties need to file
their respective papers.
Further
applications:
[18]
I need to record that I am the duty judge for this week. I have been
advised by my registrar that the applicant
has filed two further
applications to be heard today. However, I wish to state that I have
not read the new applications and I
do not know what relief is being
sought therein, since I do not want the contents of the new
applications to have any possible
effect on my present judgment. I
will read and prepare them later today after I have handed down the
present judgment.
Service
of the present judgment and order:
[19]
Although Mr Geyer indicated and offered that the local Bloemfontein
Legal Aid office will assist with service of the present
order and
judgment on the applicant, which offer I appreciate, it will no
longer be necessary. The applicant has been requisitioned
to appear
before me today for the two new applications and I will see to it
that my registrar hands a copy of the judgment and
the order to the
applicant personally in court.
[20]
With regard to Legal Aid and the Commission, Mr Geyer and Adv. Modise
will be telephonically advised of the
proposed delivery of the
judgment today, where after the judgment and order will be emailed by
my registrar to them. I do, however,
request Mr Geyer to email the
judgment and order to the other relevant respondents in the
employment of Legal Aid South Africa
and the Local Bloemfontein
Office.
[21]
With regard to further service after service of the present judgment
and order, the parties are to do so
in terms of the Court Rules
and/or on the basis of mutual arrangement.
Order:
[22]
I consequently make the following orders:
1.
The contempt of court etc part of the main application filed under
application number 1857/2021
on 24 August 2022, is separated from the
main application.
2.
The separated part of the main application referred to in paragraph 1
above, application
number 5153/2022 and application number 3449/2023
are consolidated and the three applications are subsequently to be
adjudicated
simultaneously.
3.
The South African Commission of Human Rights is joined as a
respondent in all three applications
referred to in paragraph 2
above.
3.
The remaining part of the main application under application number
1857/2021, is to remain
a separate application, the merits of which
will only be adjudicated once the three applications referred to
above have been finalised
and a legal representative has been
appointed to assist the applicant therein or the applicant has
declined such legal representation.
4.
The three applications and the remaining part of the main application
are postponed to 22
March 2024 at 9h30.
5.
The respondents, including the South
African Human Rights Commission, are to file their answering
affidavits, if any, in the three applications, or in any of the three
applications, on or before 9 February 2024.
6.
The applicant is to serve his replying
affidavits, if any, in the three applications, or in any
of the three
applications, on or before 4 March 2024.
7.
The parties are to file their heads of argument as follows -
the applicant on or before
13 March 2024 at 11h00 and the respondents
on or before 15 March at 11h00.
8.
Apart from the aforesaid affidavits
and heads of argument, the parties are prohibited from filing
further
applications under the aforesaid application numbers.
9.
Mr Geyer employed by the Bloemfontein Local Office of Legal Aid South
Africa is requested
to email this judgment and order to the other
relevant respondents in the employment of Legal Aid South Africa and
the Bloemfontein
Local Office.
10.
No order as to costs.
C.
VAN ZYL, J
On
behalf of the applicant: In
person
G4S Contact Details
Winnie.tau@za.g4s.com
Sandy.vanblerk@.za.g4s.com
On
behalf of Legal Aid South Africa and further respondents from Legal
Aid:
Mr Willem Geyer
Legal Aid South Africa
High Court Civil Legal
Practitioner
Bloemfontein Local Office
BLOEMFONTEIN
Email:
WillemG@legal-aid.co.za
On
behalf of The South African Commission for Human Rights:
No appearance
Representative:
Mr TJ Modise
BLOEMFONTEIN
Email:
TModise@sahrc.org.za