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2024
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[2024] ZAKZPHC 30
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Pather v S (1490/24P) [2024] ZAKZPHC 30 (28 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO:
1490/24P
In
the matter between:
ALVIN
PATHER
Applicant
and
THE
STATE
Respondent
ORDER
The
following order is granted:
a)
The applicant’s application for a
postponement is refused.
b)
The application is dismissed;
c)
Each party shall bear their own costs.
JUDGMENT
Veerasamy
AJ
Introduction
[1]
The applicant seeks an order extending the
bail granted to him in terms of two orders of this court dated 28
June 2023 and 2 February
2024. He intends for such extension to
endure until he has finalised his appeal against an order handed down
by the regional court
on 27 February 2024 refusing his most recent
bail application before that court.
[2]
During the proceedings of 27 March
2024, the applicant’s attorney’s instructed Mr Osborne
who appeared for the applicant
to seek a postponement of the
proceedings. I was advised that in light of the questions posed by
the Court during the applicant’s
address, the applicant has
come to the conclusion that he needed to amend his notice of motion
to seek different relief and would
need to deliver a supplementary
affidavit. He essentially wanted to started the proceedings
de
novo.
[3]
Mr Truter who appeared for the respondent
opposed the application for a postponement.
[4]
Mr Osborne advised me that the applicant
would still seek an extension the bail granted to him in terms of the
order of 28 June
2023 so as to now continue to prosecute the revised
application (should the postponement be granted). He would seek such
an order
under the umbrella of section 173 of the Constitution, being
the basis upon which relief in the application is currently sought.
[5]
I intend to deal with the application for
postponement at the end of this judgment as it appears that the
success of such application
is tied to the merits of the application
in its current form.
[6]
A brief description of the events leading
to the order of 28 June 2023 is necessary.
[7]
On
4 October 2018, the applicant was convicted in the regional court,
sitting as a specialised commercial crime court of 16 counts
of
fraud.
[1]
[8]
On
25 November 2022, on appeal to the high court, the appeal on sentence
was upheld, and a new sentence was imposed for an effective
term of
eight (8) years of imprisonment.
[2]
[9]
The applicant’s petition to the
Supreme Court of Appeal failed and he subsequently sought leave from
the Constitutional Court
to appeal the sentence of the high court.
This further application for leave to appeal was refused on 31
January 2024.
[10]
Whilst
awaiting the outcome of his leave to appeal application before the
Constitutional Court, the applicant, who at this stage
would have
foreseen the likely outcome of his petition, instituted an
application to review the regional magistrate’s decision
on his
conviction and sentence. Such review application, I am advised, is
still pending.
[3]
[11]
On 2 February 2024, the applicant
instituted proceedings before this court and, by consent with the
respondent, obtained an order
directing him to institute a new bail
application in the regional court.
[12]
On
29 February 2024, the application for bail before the regional
magistrate in the regional court was refused.
[4]
[13]
An appeal against the refusal of the bail
was lodged on 4 March 2024. This application for bail has not been
heard.
[14]
What the applicant seeks from this court is
an extension of the bail, which he was granted in terms of the orders
dated 28 June
2023 and 2 February 2024.
The court order of 28
June 2023
[15]
The order of 28 June 2023 was granted by consent between the parties.
There were 13 conditions
attached to the
bail
which was granted in respect of the
order. I deal only with
those conditions which have a bearing on these proceedings.
These
conditions read as follows:
‘
9.
THAT
the Applicant shall lodge his application to the CC by no later than
5 July 2023 with the Registrar of the CC and also lodge
a copy
thereof with the Registrar of the High Court, Pietermaritzburg and
one with the Director of Public Prosecutions, Pietermaritzburg.
10.
THAT, in the event of the Applicant failing to lodge his application
to the CC by
5 July 2023 as stated above, or the application to the
CC being dismissed, whether wholly or in part, or withdrawn, or
abandoned
or struck from the roll or otherwise finally disposed of
with the result that the Applicant has to –
10.1
Surrender himself to the Registrar of this Court, between 08h30 and
13h00, within 3 (three) court days following
on the day on which the
said order was served on him/her, in order to give effect to the
sentence(s) imposed, which the order the
Applicant shall comply with.
11.
THAT, in the event of the Constitutional Court application being
successful and leave to
appeal is granted to the Applicant (hereafter
referred to as the Appellant) the bail as stated above will be
extended on same terms
and conditions pending the outcome of the
appeal.
. . .
13.
THAT, in the event of the appeal being finalised by being dismissed,
whether wholly or in
part, withdrawn, abandoned or struck from the
roll, or otherwise finally disposed of, with the result that the
Appellant has to:
13.1
Surrender him/herself to the Registrar of this court, between 08h30
and 13h00, within 3 (three) court days
following on the day on which
the said order was served on him/her, in order to give effect to the
sentence(s) imposed, which the
order the Applicant shall comply
with.’
The order of 2 February
2024
[16]
The order of 2 February 2024 consists of four paragraphs and reads as
follows:
‘
1.
It is directed that a new bail application must be brought in respect
of the pending
review application in AR392/2023.
2.
The issue of bail is referred to the Regional Court and the applicant
is warned
to appear in the Specialised Commercial Crime Court-T
Durban at 10:30 on 6 February 2024.
3.
The applicant’s bail, granted in Case No. AR336/2021 is
extended on the
following conditions:
3.1
The Regional Court Magistrate hear the bail application to determine
whether the applicant ought
to be released on bail pending the
finalisation of his review application.
3.2
The bail application must be concluded by no later than 23
rd
of February 2024 unless otherwise directed by the Regional Court
Magistrate.
4.
The order under appeal No. AR336/2021 is stayed pending the
finalisation of paragraph
3 herein.’
The parties submissions
[17]
The applicant submits that in terms of section 173 of the
Constitution the high court has
an inherent power to protect and
regulate its own process and develop the common law taking into
account the interests of justice.
He concedes that the relief which
he seeks falls outside the parameters of the
Criminal Procedure Act
55 of 1977
and that he seeks an extension
of bail pending a bail appeal
,
which is yet
to be heard.
[18]
The applicant submits that the order granted on 2 February 2024
permits him to remain on
bail pending the finalisation of the bail
proceedings. Thus, considering that there is a bail appeal pending,
such proceedings
have not yet been finalised.
[19]
The respondent conversely argues that the order which the applicant
seeks in these proceedings
is in law impermissible and unsustainable.
The respondent submits that the relief which the applicant
seeks is not countenanced
by the
Criminal Procedure Act and
that his
recourse lies in
section 65
of the
Criminal Procedure Act, which
he
has not invoked. Therefore, respondent submits, that this court has
no jurisdiction to grant the relief which the applicant
seeks.
[20]
In amplification thereof the respondent submits that the nature of
the relief which the
applicant seeks is an impermissible variation of
the order under case no. 1490/24P.
The extension of bail
[21]
The relief which the applicant seeks is foreshadowed in paragraph 2
of his notice of motion
and reads as follows:
‘
That
the applicant’s bail granted on 8 December 2022 and extended on
2 February 2024 be further extended until finalisation
of the court
order refusing bail dated 27 February 2024.’
[22]
The date in of ‘8 December 2022’
in the paragraph two of the notice of motion should read 28 June
2023. The notice of
motion was amended by consent between the parties
at the outset of the hearing so as to reflect the correct date. The
enquiry which
must be engaged in is whether either of the orders
under scrutiny permit an extension of the bail granted in terms of
these orders.
[23]
The
Supreme Court of Appeal in
Firestone
South Africa v Gentiruco
[5]
held
the following with regard to how one approaches the principles
regarding interpreting a court order:
‘
the
court's intention is to be ascertained primarily from the language of
the judgment or order as construed according to the usual,
well-known
rules . . . Thus, as in the case of a document, the judgment or order
and the court's reasons for giving it must be
read as a whole in
order to ascertain its intention.’
[6]
[24]
One
must start by determining the manifest purpose of the order under
consideration.
[7]
[25]
The order of 28 June 2023 limited the
lifespan of the applicant’s bail to the applicant’s
application for leave to appeal
before the Constitutional Court. The
order set out the consequences which would arise if application for
leave to appeal was successful
or unsuccessful.
[26]
The applicant conceded this much
during the hearing and accepted that once he had delivered his review
application in November 2023,
he should have approached this court to
revisit the order of 28 June 2023. Whilst I doubt, he would have been
able to revisit the
order without the buy-in of the respondent (since
it was a consent order), what his concession demonstrates is an
acknowledgment
that the order of 28 June 2023 was limited to the
lifespan of his leave to appeal before the Constitutional Court.
[27]
Paragraph
10.1 of the 28 June 2023 order provided that where such application
for leave to appeal was unsuccessful then the applicant
was to
surrender himself within three court days ‘
in
order to give effect to the sentence(s) imposed, which order the
applicant shall comply with
’
.
[8]
[28]
The
28 June 2023 order always intended for the applicant to serve out the
sentence of imprisonment if he was unsuccessful before
the
Constitutional Court. This is clearly evident from paragraph 13.1 of
the order
[9]
which
requires the applicant to surrender himself within three days in the
event that such appeal had been dismissed (provided that
the leave to
appeal was granted).
[29]
It is common cause between the parties that
the applicant’s application for leave to appeal to the
Constitutional Court was
finalised on 31 January 2024 with such
application being refused. Paragraph 10.1 of the order of 28 June
2023 is prescriptive,
and the applicant was required to surrender
himself by no later than 3 February 2024 in order to give effect to
the sentence imposed
upon him. The applicant has failed to surrender
himself, and effectively at present appears to be in contempt of such
court order.
[30]
The applicant has not brought an
application to vary paragraph 10.1 of the 28 June 2023 order and from
the facts presented in this
application, there appears to be no basis
upon which such variation would be available to him under Uniform
rule 42.
[31]
An extension of the bail granted in terms
of the 28 June 2023 order would ignore the further terms of the order
which direct the
applicant to surrender himself and commence serving
his sentence of imprisonment (by no later than 3 February
2024). The
extension of bail sought by the applicant would result in
two conflicting orders being in place.
[32]
Absent the further terms of the order of 28
June 2023 being varied, the relief for an extension of the bail is
unavailable to the
applicant. During the hearing Mr Osborne correctly
accepted that the order of 28 June 2023 demanded that the applicant
commence
serving his sentence of imprisonment and that the relief
which is sought in the notice of motion was contradictory to
paragraph
10.1 of the order of 28 June 2023.
[33]
The applicant contends in his application
that an extension of the bail granted to him in the 28 June 2023
order is always available
to him and this was acknowledged by
the court which granted the order of 2 February 2024. During the
hearing Mr Osborne correctly
accepted that paragraph 4 order of 2
February 2024 was limited in its application in that it only stayed
the order of 28 June 2023
until the bail application before the
magistrate had been decided by the magistrate.
[34]
Once the magistrate made took a
decision on 29 February 2024 to refuse the applicants
application for bail then the order
of 2 February 2024 ceased to have
any application and the applicant was obliged to surrender himself to
carry out his sentence
of imprisonment. I deal with same in greater
detail in this judgment.
[35]
Notably, the order of 2 February 2024 was
an order by consent. Hence, the court did not make a pronouncement on
whether it could
or would extend the applicant’s bail since the
parties had agreed to the relief in the limited terms as set out in
the order
of 2 February 2024.
[36]
The applicant’s suggestions in his
affidavit and heads of argument that the court hearing the
application on 2 February 2024
found substance in his argument ( for
the extension of bail) is not supported by the fact that such order
was one taken by consent.
[37]
Before me there is no such consent between
the parties for the extension of bail. As such, I must consider the
order of 2 February
2024 in accordance with its written terms. Much
like the order of 28 June 2023, the 2 February 2024 order is limited
in its application.
This is expressed in paragraph 4 of the order
which reads as follows:
‘
The
order under appeal No. AR336/2021 is stayed pending the finalisation
of the order in paragraph (3) herein.’
[38]
Paragraph 3 of the order, dated 2 February
2024, reads as follows:
‘
The
Applicant’s bail granted in Case No. AR336/2021, is extended on
the following conditions:
3.1
The Regional Court Magistrate shall hear the bail application to
determine whether the applicant
ought to be released on bail pending
the finalisation of his review application.
3.2
The bail application must be concluded by no later than 23
rd
of February 2024 unless otherwise ordered by the Regional Court
Magistrate.’
[39]
The
proceedings to which paragraph 3 of the order of 2 February 2024
relates is the new bail application that came before the regional
magistrate and was refused on 29 February 2024. Paragraph 3 does not
relate to any appeal of such refusal of bail. It is
common
cause between the parties that those magistrate bail proceedings were
finalised on 29 February 2024.
[10]
[40]
Thus, when the regional magistrate refused
the applicant’s application for bail, the order of 2 February
2024 ceased operate.
Once again, the applicant has not sought to vary
the terms of such order nor are there any facts before me which would
appear to
justify such application having been brought.
[41]
It
is clear that the orders of 28 June 2023 and 2 February 2024 sought
to bring finality to the various appeal processes which the
applicant
had invoked. The orders sought to avoid an untenable situation
arising where the bail granted to the applicant would
endure for an
indeterminate amount of time.
[11]
[42]
In respect of the pending bail appeal and a
review application, the applicant makes out no case as to whether he
enjoys any success
in those proceedings. Such would have been
important facts to be considered in the event that the applicant
wanted to lean on those
proceedings in order justify the relief being
sought.
[43]
In
S
v Nel
[12]
the
court held the following:
‘
I
persist in the view that finality is a very important consideration
in a matter such as the present where the Supreme Court
of
Appeal has had occasion to deliberate on and determine both the
merits and sentence of the applicant's appeal. It is not in
the
interest of justice, that a duly convicted person should delay or
postpone serving his or her sentence by seeking to be released
on
bail without any reasonable prospect of an appellate Court altering
such conviction or sentence.’
[13]
[44]
In
Bato
Star Fishing (Pty) Ltd
v
Minister of Environmental Affairs and Tourism
[14]
the
Constitutional Court held that ‘a court needs to ensure that
the possibility of duplicate or contradictory relief is avoided.’
[15]
[45]
If the order as prayed for by the applicant
is granted it would indeed result in contradictory relief. The
relief, if granted, would
contradict the orders of 28 June 2023 and 2
February 2024 in that:
(a)
Paragraph 10.1 of the 28 June 2023 order
expressly demands that the applicant surrender himself within three
days of his Constitutional
Court application failing; and
(b)
Paragraphs 3 and 4 of the 2 February 2024
order intended to extend the applicant’s bail until the date on
which the applicant’s
bail application before the regional
court had been heard.
(c)
The 28 June 2023 order does not envisage
the applicant having bail beyond 31 January 2024 being the date on
which the Constitutional
Court refused his appeal application; and
(d)
The order of 2 February 2024 does not
envisage the applicant’s bail being extended beyond 29 February
2024 being the date
on which the regional court heard the bail
application.
[46]
The
applicant contends that this court has inherent jurisdiction to grant
the order which he seeks. However, the applicant misconceives
the
circumstances under which an application of inherent jurisdiction
might be applied. The inherent jurisdiction of the high court
can
only be applied to address a lacuna which, in the absence of judicial
intervention, would result in injustice.
[16]
During
the hearing I enquired from applicant as to whether there was any
authority which would support his argument. The applicant
did not
have such authority. Rather, I was advised that I need look no
further than the wording of
section 173
and that the interests of
justice demanded that an order extending bail be granted.
[47]
The
applicant suggested that the case of
Bailey
and Others v S
[17]
,
which
was authority which the respondent had referred to, demonstrated how
Section 173
could be invoked by me. However, upon further
interrogation of the case, the applicant accepted that the case
addressed the issue
of the High Court’s jurisdiction to grant
bail. He further accepted that this was not the relief that he was
seeking from
me, rather what he sought as relief in these proceedings
was to extend the application of the 28 June 2023 order. Thus,
Bailey
and Others v S
was
distinguishable from the application before me.
[48]
In
Phillips
and Another v National Director of Public Prosecutions
[18]
,
the Constitutional Court held as follows:
‘
[47]
The Constitution requires that judicial authority must vest in
the courts which must be independent and subject only to the
Constitution
and the law. Therefore courts derive their power from
the Constitution itself. They do not enjoy original jurisdiction
conferred
by a source other than the Constitution. Moreover, in
procedural matters, section 171 makes plain that “[a]ll courts
function
in terms of national legislation and their rules and
procedures must be provided for in national legislation.” On
the other
hand section 173 of the Constitution preserves the inherent
power of the courts to protect and regulate their own process in the
interests of justice. In
S v Pennington and Another
, this
Court held that:
“
It is a power
which has to be exercised with caution. It is not necessary to decide
whether it is subject to the same constraints
as the ‘inherent
reservoir of power to regulate its procedures in the interests of the
proper administration of justice’ which
vested in the
Appellate Division prior to the passing of the 1996
Constitution. Even if it is subject to such constraints,
the
present situation, in which there is a vacuum because the legislation
and rules contemplated by the Constitution have not been
passed, is
an extraordinary one in which it would be appropriate to exercise the
power.”
[48]
In
Parbhoo and Others v Getz NO and Another
too,
this Court turned to its “inherent power” to meet an
“extraordinary” procedural situation pending enactment
of
relevant legislation and promulgation of rules of procedure. In both
cases the points are made that ordinarily the power in
section 173 to
protect and regulate relates to the process of court and arises when
there is a legislative lacuna in the process.
The power must be
exercised sparingly having taken into account interests of justice in
a manner consistent with the Constitution.
[49]
It may be that the High Court could legitimately claim inherent power
of holding the scales of justice where no specific law
directly
provides for a given situation or where there is a need to supplement
an otherwise limited statutory procedure such as
the one in section
26 of the Act. This can wait for a decision in the future when such a
case presents itself.
[50]
In the present matter the applicants made no attempt whatsoever to
bring their case within the provisions of the Act, which
they could
have done. The effect of the High Court order rescinding the
restraint order was to ignore the statutory provisions
of an Act of
Parliament.
[51]
Whatever
the true meaning and ambit of section 173, I do not think that an Act
of Parliament can simply be ignored and reliance
placed directly on a
provision in the Constitution, nor is it permissible to side-step an
Act of Parliament by resorting to the
common law.’
[19]
(footnotes omitted)
[49]
The
respondent directed my attention to the authority of
Molaudzi
v S
[20]
where
the Constitutional Court held:
‘
[34]
The power in section 173 must be used sparingly otherwise there would
be legal uncertainty and potential chaos. In addition,
a court cannot
use this power to assume jurisdiction that it does not otherwise
have.’
[50]
The
Constitutional Court in
Molaudzi
[21]
also
held the following in respect of finality of judgments in criminal
matters:
[19] However, the general
principle of res judicata in the criminal context is that once an
application for leave to appeal is dismissed,
this is a judicial
decision, which is final and determinative. It is somewhat different
from civil cases where a defendant may
raise a plea of res judicata
only where the same litigant seeks the same relief on the same cause
of action. Thus it appears that
in the criminal context, the “cause
of action” is more aptly regarded as the conviction or sentence
as a whole.
An accused who has been convicted and sentenced,
generally may not appeal against the decision more than once –
despite changing
the grounds for appeal. The minority judgment of Van
der Westhuizen J in Mpofu confirmed the need for finality in criminal
matters:
“
The
fact that an application for leave to appeal or an appeal is without
merit, or ‘ill advised’, cannot easily make
it a nullity
and open the way for further appeals, every time on a different
ground.”
[20] This accords with
the public policy considerations underpinning criminal res judicata:
to bring about finality to a conviction.
If a convicted person was
allowed to launch successive appeal proceedings on different grounds,
this would undermine legal certainty
and inundate courts with
frivolous litigation.
[51]
In these proceedings, the applicant is not
without remedy. His remedy is to persist with his bail appeal which
he has already instituted.
Should he wish to stay the effect of the
order compelling his imprisonment then that application needs to be
brought separately.
[52]
In this regard the respondent argues that
section 307
of the
Criminal Procedure Act 51 of 1977
does not suspend
the applicants sentence pending his review since his application for
bail was refused by the magistrate on 29
February 2024. The
applicant’s recourse is to appeal such refusal of bail, which
he has done. The respondent submits that
this Court does not have
jurisdiction to grant the applicant his relief.
[53]
I am not in agreement with the respondent’s
argument on the absence of jurisdiction since the relief which is
being sought
by the applicant ( by his own argument) is not for bail
but rather the extension of the order would grant him bail. Further
the
case of
Bailey and Others v S
(AR371/13) [2013] ZAKZPHC 72 (28
November 2013) which respondent has relied on seems to indicate that
this Court may grant bail
if same is directly sought under section
173 of the Constitution.
[54]
The application for an extension of the
bail granted in terms of the orders of 28 June 2023 and 2 February
2024 would result in
conflicting orders. Those orders limited the
lifespan of the applicant’s bail to the proceedings before the
Constitutional
Court and the magistrate court (respectively). Once
those proceedings finalised the application was directed by paragraph
10.1
of the 28 June 2023 order, to surrender himself to serve out his
imprisonment This much is conceded by the applicant.
[55]
There is no lacuna in our law which the
application seeks to address. Accordingly, the applicant has
failed to establish a
basis for the relief which he seeks in his
notice of motion and the application must fail.
[56]
The applicant fully alive to this, made his
application for a postponement whist simultaneously seeking an
order extending
the order of 28 June 2023 so that he could prosecute
his revised version of this application.
[57]
The
principles of an application for postponement as follows:
[22]
(a)
The court has a discretion as to whether an
application for postponement should be granted or refused.
(b)
That discretion must
at all times be exercised judicially. It should not be exercised
capriciously or upon wrong principles, but
for substantial reasons.
(c)
The Court must reach
a decision after properly directing his/her attention to all relevant
facts and principles;
(d)
An application for
postponement must be made timeously, as seen as the circumstances
which might justify an application become known
to the applicant but
where fundamental fairness and justice justify a postponement the
court may in appropriate cases allow such
an application for
postponement, even though the application was not timeously made.
(e)
The application for
postponement must always be
bona
fide
and
not used simply as a tactical manoeuvre, for the purpose of obtaining
an advantage to which the applicant is not legitimately
entitled.
(f)
Considerations of
prejudice will ordinarily constitute the dominant component of the
total structure in terms of which the discretion
of a Court will be
exercised. What the court has primarily to consider is whether any
prejudice caused by a postponement by an
appropriate order of costs
or any other ancillary mechanisms.
(g)
The Court should
weigh the prejudice which will be caused to the respondent in such an
application if the postponement in such an
application if the
postponement is granted against the prejudice which will be caused to
the applicant if it is not.
(h)
Where the applicant
for a postponement has not made the application timeously, or
otherwise to blame with respect to the procedure
which the applicant
has followed, but justice nevertheless justifies a postponement in
the particular circumstances of a case,
the court in its discretion
might allow the postponement but direct the applicant in a suitable
case to pay the wasted costs of
the respondent occasioned to such a
respondent on a scale of attorney and client. Such an applicant might
even be directed to pay
the costs of the adversary before the
applicant is allowed to proceed with the action defences in the
action
.
(i)
The factors to be considered are
the
broader public interest; the prospects of success on the merits the
reason for the lateness; the conduct of counsel; the costs
involved
in the postponement; the potential prejudice to the other interested
parties; the consequences of not granting a postponement;
and the
scope of the issues that ultimately must be decided.
[58]
The application for a postponement was made
midway the proceedings when the applicant foresaw the difficulties
with the relief he
was seeking. He now intends to start the process
de novo by amending the founding documents to his application. The
application
was not made timeously. The applicant should have alive
to the difficulties he was confronted with when h commenced
preparation
for the hearing.
[59]
It is not in the interest of justice to
postpone these proceedings for the only purpose of affording the
applicant the luxury of
using his existing case number, since the
case which the respondent will have to meet on the revised
application will, from the
impression created by the application for
a postponement, be materially different the case before me now. There
must be some finality
in these proceedings especially in light of the
order directing the application to surrender himself and commence
serving his sentence
of imprisonment.
[60]
The applicant has not demonstrated any
basis upon which it is in the interest of justice that this matter be
adjourned. For the
reasons already stated there is also no legal
basis for extending the orders of 28 June 2023 and 2 February 2024.
[61]
I am advised by both parties that neither
seeks a costs order against the other.
Order
[62]
I therefore make the following order:
a)
The applicant’s application for a
postponement is refused.
b)
The application is dismissed;
c)
Each party shall bear their own costs.
I VEERASAMY AJ
CASE
INFORMATION
Counsel for the
Applicant:
Adv B S Osborne
Attorneys for the
Applicant:
Chetty & Kistan
Attorneys
32 Adelaide Drive
Glenashley
Durban North
Email:
suren@chettyandkistan.co.za
c/o Ashraf Mahomed
Associates
456 Jabu Ndlovu
Street
Pietermaritzburg
Email:
asmlaw786@gmail.com
Counsel for the
Respondent:
Adv A Truter
Adv Kisten
Attorneys for the
Respondent:
The Director of
Public Prosecutions
Pietermaritzburg
286 Pietermaritz
Street
Tel: 033 392 8700
Date
of Hearing
27
March 2024
Date of Judgment:
28 March 2024
[1]
The record at 14, para 9 of the founding affidavit.
[2]
The record at 14, para 11 of the founding affidavit.
[3]
The record at 15, para 16 of the founding affidavit.
[4]
The record at 16, para 24 of the founding affidavit.
[5]
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) (
Firestone
).
[6]
Firestone
at 304E-F.
[7]
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
others
[2012] ZASCA 49
;
2013 (2) SA 204
(SCA) para 13.
[8]
The
record at 47, para 10.1 order dated 28 June 2023.
[9]
The record at 49.
[10]
The record at 16, para 24 of the founding affidavit.
[11]
Basadi
Baitsosa Consultants and Projects CC v South African Forestry
Company Soc Ltd
2021 JDR 1297 (GP) para 5.3.
[12]
S v Nel
2002 (1) SACR 425 (T).
[13]
S v Nel
at 429h-j.
[14]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star Fishing
).
[15]
Bato
Star Fishing
para 17.
[16]
Standard
Bank of South Africa Ltd and others v Mpongo and others
2021
(6) SA 403
para 53.
[17]
Bailey
and Others v S (AR371/13) [2013] ZAKZPHC 72 (28 November 2013)
[18]
Phillips
and others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC)
(
Philips
).
[19]
Phillips
paras
47-51.
[20]
Molaudzi
v S
2015
(8) BCLR 904 (CC)
[21]
Molaudzi
paras
19 - 20
[22]
Tuhf
Limited v 266 Bree Street Johannesburg (Pty) Ltd and Others
(11987/2020) [2023] ZAGPJHC 128 (14 February 2023), para 6 - 8