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2023
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[2023] ZAFSHC 299
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Mokhele v Minister of Defence and Others (A127/2022) [2023] ZAFSHC 299 (28 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: A127/2022
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
MOTLALEPULE
JOHANNES MOKHELE
Appellant
and
MINISTER
OF DEFENCE
1
st
Respondent
CHAIRPERSON
OF COURT OF MILITARY APPEALS
2
nd
Respondent
MILLITARY
JUDGE: LT COL STEMMET
3
rd
Respondent
CHIEF
OF MILITARY LEGAL SERVICE
4
th
Respondent
DIRECTOR:
MILITARY PROSECUTIONS
5
th
Respondent
HEARD
ON:
13 JUNE 2023
CORAM:
MUSI, JP
et
MHLAMBI,
J
et
OPPERMAN,
J
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
28 JULY
2023
[1] On
10 November 2021, the appellant launched an application to compel the
second respondent to dispatch the
full record of the proceedings of
the Military Court of Appeals under case number 41/2019 which was the
subject of a review. On
27 May 2022, the court dismissed the
application with costs having found that the second respondent had
complied with the provisions
of Rule 53(1)(b). It is against this
judgment and order that the appeal lies. The appeal is with the leave
of the court a
quo.
[2] At
the inception of these proceedings, the respondent sought condonation
for the late filing of the heads
of argument in the main application
and tendered the costs thereof. The appellant did not oppose the
application and it was granted.
[3]
In the judgment of the court
a
quo,
the
appellant required the second respondent to file with the Registrar a
record consisting of:
[1]
3.1 The
transcribed record of the proceedings of 8 May 2020 and 16 January
2020;
3.2 All the
correspondence between the second respondent, the appellant’s
legal insurer, Scorpion Legal Protection,
and his erstwhile attorney,
Mr Crous including;
3.2.1 the
appellant’s and/or Mr Crous’ consent to the automatic
review being decided on the heads of argument
without oral
submissions;
3.2.2 c copy of the
power of attorney filed by Mr Crous; and
3.2.3 the notice
of the automatic review hearing and proof of service thereof.
[4] The
court found that the second respondent filed a record consisting of
the following:
4.1 a copy of the second
respondent’s directive dated 4 October 2019;
4.2 Mr Crous’ email
dated, 13 May 2020, addressed to the prosecution and Scorpion Legal
Protection;
4.3 copies of the heads
of argument filed by the prosecution and Mr Crous;
4.4 Mr Crous’ email
dated 6 May 2020; and
4.5 a copy of the second
respondent’s judgment dated 8 May 2020.
[5]
Even though copies of the Power of Attorney, the notice
of the automatic review, and the record of the proceedings
held on 16
January 2020 were found not to have been furnished, the court a quo
was of the view that the applicant would not be
prejudiced by the
respondents’ failure to file a copy of Mr Crous’ Power of
Attorney.
[2]
Similarly, proof of
the transmission of the notice of the automatic review proceedings to
Mr Crous, the applicant and Scorpion
Legal Protection was
inconsequential as both Mr Crous and Scorpion Legal Protection were
aware of the automatic review.
[3]
The court a quo accepted the respondents’ belated explanation
that the matter was postponed, on 16 January 2020, and that
there was
no transcript of the record as the review proceedings were disposed
of without the hearing of oral evidence.
[6]
The court a quo was correct to refer to the purpose of Rule 53 and
the law as stated in Helen
Suzman
Foundation v Judicial Service Commission
[4]
that the rule is to
facilitate
and regulate applications for review. The requirement in rule
53(1)
(b)
that
the decision-maker must file the record of the decision, is primarily
intended to operate in favour of an applicant in
review proceedings
and ensures that review proceedings are not launched in the dark. The
record enables the applicant and
the court to fully and properly
assess the lawfulness of the decision-making process. It allows an
applicant to interrogate
the decision and, if necessary, amend its
notice of motion and supplement its grounds for review.
[7]
However, the court a quo missed the point when it
reasoned that the applicant would suffer no prejudice if the
requested documents were not given. What was sought from the court a
quo was an order to place the applicant in possession of all
the
relevant documentation so that he could assess his review application
and the grounds therefor. That all the information was
not in the
possession of the applicant was conceded by the respondents in oral
address.
[5]
In the answering
affidavit, the respondents referred to the further documentation
requested as having been outside the scope of
the documentation
listed in the notice of motion. This is the same information that is
set out in paragraph 3 above and contained
in the applicant’s
attorneys’ correspondence of 31 January 2022 addressed to the
respondents’ attorneys.
[6]
[8]
The applicant’s case was that, on reading the
military appeals court’s judgment, further documents
and
correspondence existed which did not form part of the documents
discovered by the respondents on 7 and 25 January 2020.
[7]
The applicant contended that he instructed Mr Crous to represent him
in the criminal proceedings only and not in the military appeal
court, which proceedings he was unaware of. He neither knew that the
court was of intention to increase the sentence nor gave instructions
that the matter be adjudicated on the heads of argument only. This is
contrary to what was stated in the judgment that the counsel
[8]
for the state and the accused were alerted to the possibility that
the court considered increasing the sentence and that the accused
and
his legal insurance organisation (Scorpion), indicated their
contentment that the matter be decided solely on the heads of
argument.
[9]
In my view, the court
a quo
should have granted
the appropriate relief in favour of the applicant.
[10]
In the present proceedings, the respondents argued that they were not
in possession of the requested information and were unable
to furnish
it to the applicant. This prompted the court, despite the change of
tack by the respondents, to enquire from the applicant’s
counsel what use would it be to grant an order which, in the light of
the respondents’ submissions, would be impossible to
implement.
Even though the respondents did not state in their affidavits and
correspondence that the information sought by the
applicant was not
available despite a diligent search, the appeal has to fail as the
granting of an order in the circumstances
would be impossible to
implement.
[11]
The
manner in which the respondents
presented their case in the affidavits, is a factor relevant to the
exercise of the court’s
discretion as to costs.
As
the respondents ought to have succeeded in the court
a
quo
, the
order of costs granted against them cannot be allowed to stand. It is
only to that limited extent that the order of the high
court needs to
be altered which is relevant to the question of costs in this court.
It is also relevant that the respondents only
altered their
circumstances, in
facie
curiae,
when
it was disclosed that they did not have in their possession the
information required by the applicant. It is therefore just
that the
applicant should be granted an order for the costs of appeal.
[12]
For these reasons, the following
order is made:
Order:
1.
The appeal is upheld to the limited extent
indicated below.
2.
The court a
quo’s
costs order is set aside and replaced with the following:
2.1 The respondents are
ordered to pay the applicant’s costs, jointly and severally,
the one paying, the other to be absolved.
3. The respondents
are ordered to pay the appellants costs of appeal.
MHLAMBI, J
I concur
MUSI, JP
I concur
OPPERMAN, J
On
behalf of the Applicant:
D
De Kock
Instructed
by:
Wesi
Attorneys
Unit
6, 107 Zastron Street
Westdene
Bloemfontein
On
behalf of the respondent:
TM
Ngubeni
Instructed
by:
State
Attorney
11
th
Fedsure Building
49
Charlotte Maxeke Street
BLOEMFONTEIN
[1]
Para
7.
[2]
Para
15 of the judgment.
[3]
Para
16 of the judgment.
[4]
2018
(4) SA 1 (CC).
[5]
Page
215, lines10-20 of the indexed papers.
[6]
Annexure
“GP2” on page 176 of the indexed papers.
[7]
Page
204, lines 17-20 of the indexed papers.
[8]
Para
1 on page 28 of the indexed papers.