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2023
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[2023] ZAECMHC 24
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Nqayana v Ndengezi and Another (1674/2022) [2023] ZAECMHC 24 (21 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
CASE
NO.: 1674/2022
Matter
heard on: 20 April 2023
Judgement
delivered on: 21 April 2023
REPORTABLE: YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
In the matter between: -
MKHANGELI
NQAYANA
Applicant
and
DUMISANI
SHYLOCK NDENGEZI
1st
Respondent
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
2nd
Respondent
JUDGMENT
SMITH J:
[1]
The applicant brought interlocutory proceedings for an order
compelling the first respondent to
furnish the record of court
proceedings heard on 30 March 2022 under case number RCCU 31/2021.
[2]
The first respondent is the magistrate who presided in the
proceedings which is the subject of
a review application. The second
respondent is the National Director of Public Prosecutions who has
been cited in these proceedings
as an interested party involved in
the review application.
[3]
The notice of motion, however, makes it clear that relief is sought
only against the first respondent
and a costs order would be sought
only in the event of him opposing the application.
[4]
The first respondent has not opposed the application. The second
respondent, however, surprisingly
filed opposing papers despite the
fact that no relief was being sought against her.
[5]
The relief sought by the applicant is pursued in terms of Uniform
Court Rule 53 (
b
) which provides that the notice of motion in
review proceedings must call ‘upon the magistrate, presiding
officer, chairperson
or officer, as the case may be, to dispatch,
within fifteen days after receipt of the notice of motion, to the
registrar the record
of such proceedings sought to be corrected or to
set aside, together with such reasons as he or she is by law required
or desires
to give or make, and to notify the applicant that he or
she has done so.’
[6]
It is common cause that the first respondent did not comply with that
rule and the applicant is
consequently
prima facie
entitled to
an order compelling compliance.
[7]
The second respondent purports to oppose the application essentially
on the basis that the applicant
is party to another review
application, brought under case no 1609/2022, in which an order
reviewing the same proceedings are sought.
It is contended on her
behalf that the Rule 53 record had been duly filed in those
proceedings and the applicant is accordingly
not entitled to an order
compelling the filing of the same record.
[8]
This submission is simply factually incorrect. Although the applicant
is cited in the heading
of documents filed in case number 1609/2022
as the second applicant, it is clear from the affidavits filed of
record in that matter
that he is in fact in not a party. The deponent
to the founding affidavit in that matter clearly states that: ‘The
second
and third Applicants are my co-accused in the criminal case I
have mentioned in paragraph 4 herein. I am duly authorized to depose
to this affidavit and launch this application for and on behalf of
the third applicant [Sonwibile Nogwebela] and myself.’
Only the
third applicant consequently filed a confirmatory affidavit.
[9]
In the event, the fact that the same record had been filed in a
related matter does not absolve
the presiding officer of the legal
obligation to file the record, and if so advised, to provide further
reasons.
[10] I
shall for the purposes of this application ignore the second
respondent’s comments regarding objectionable
allegations
contained in the founding affidavit or the possible consolidation of
these proceedings and those under case number
1609/2022, since no
such applications are before me.
[11] As
mentioned, the notice of motion stipulates that a costs order against
the first respondent would only
be sought in the event of him
opposing the application. He has not opposed and the applicant is
accordingly not entitled to such
an order.
[12]
The second respondent has, however, chosen to enter the fray, albeit
unnecessarily so and on the basis of
unsustainable contentions. She
must consequently bear the costs occasioned by her ill-conceived
opposition.
[13] In
the result the following order issues:
(a)
The first respondent is
ordered to furnish or dispatch to the Registrar of this Court, within
15 days from the date of this order,
the complete record of
proceedings under case number RCCU 31/2021 heard on 30 March 2022.
(b)
The second respondent
is ordered to pay the costs of the application on the party and party
scale.
JE SMITH
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the Applicant
Mr.
Genukile
M
K Dastile Attorneys
c/o
T L Luzipho Attorneys
No.
26 Cnr Victoria & Madeira Street
First
Floor Steve Motors Building
MTHATHA
Counsel
for the Respondent
No
Appearance
The
office of the State Attorney
No.
94 Sission Street
Old
Broadcast House
Fortgale
MTHATHA
(Ref.:
546/22-A8N)