About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 104
|
|
Mokhele v Minister of Defence and Others (4228/2021) [2022] ZAFSHC 104 (27 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4228/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
MOTLALEPULE
JOHANNES MOKHELE
1
st
Applicant
And
MINISTER
OF DEFENCE
1
st
Respondent
CHAIRPERSON
OF COURT OF MILITARY APPEALS
2
nd
Respondent
MILITARY
JUDGE: LT COL. STEMMET
3
rd
Respondent
CHIEF
OF MILITARY LEGAL SERVICES
4
th
Respondent
DIRECTOR:
MILITARY PROSECUTIONS
5
th
Respondent
In
re:
MOTLALEPULE
JOHANNES MOKHELE
1
st
Applicant
And
MINISTER
OF DEFENCE
1
st
Respondent
CHAIRPERSON
OF COURT MILITARY APPEALS
2
nd
Respondent
MILITARY
JUDGE: LT COL. STEMMET
3
rd
Respondent
CHIEF
OF MILITARY LEGAL SERVICES
4
th
Respondent
DIRECTOR:
MILITARY PROSECUTIONS
5
th
Respondent
HEARD
ON:
17 FEBRUARY 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 14H00 on 27 May 2022.
[1]
The applicant was a military police sergeant in the South African
National Defence
(SANDF), Bloemfontein until he was discharged with
ignominy on 16 July 2019 pursuant to his conviction on a charge of
corruption
in contravention of section 4(1)(a)(iv) of the Prevention
and Combatting of Corrupt Activities Act
[1]
by the Military Court (the third respondent). The applicant who was
legally represented throughout the proceedings by Mr Francois
Crous,
was subsequently sentenced to twelve (12) months imprisonment.
[2]
The trial proceedings were subject to automatic review as provided
for in section
34(2) of the Military Discipline Supplementary
Measures Act.
[2]
On 8 May 2020,
the Court of Military Appeals (the second respondent) sitting as the
review court confirmed the conviction applicant’s
conviction.
The sentence was increased to 48 months’ imprisonment on the
basis that the sentence of twelve (12) months imprisonment
was
disproportionate to the gravity of the offence he was convicted of.
[3]
Aggrieved by the outcome of both the trial and the automatic review
proceedings, the
applicant launched a Review application (“the
main application) in this court on 13 September 2021 for the review
and setting
aside of the decisions of both the second and the third
respondents.
[4]
This application is directed at the second respondent. The applicant
seeks an order
to compel the second respondent to file with the
Registrar a full record pertaining to the automatic review
proceedings.
[5]
Before
dealing with
the issue to be considered in this matter, there were
preliminary
issues raised in the parties’ affidavits. The parties sought
condonation for the late filing of their respective
affidavits. At
the commencement of the hearing, the parties took an order by
agreement for the condonation of the late filing of
the respondent’s
answering affidavit and the applicant’s answering affidavit.
[6]
As regards the merits of the application, it is the applicant’s
case that the
main application is premised on the grounds that the
proceedings were marred by irregularities. They were conducted in his
absence
and also without his knowledge thereby infringing on his
constitutional right to a fair trial.
[7]
The applicant requires the second respondent to file with the
Registrar a record constituting
of:
7.1.
The transcribed record of the proceedings of 8 May 2020 and 16
January 2020;
7.2.
All the correspondences between the second respondent, the
applicant’s
legal insurer, Scorpion Legal protection and his
erstwhile attorney, Mr Crous including;
7.2.1.
the applicant’s and/or Mr Crous’ consent to the automatic
review being
decided on the heads of argument without oral
submissions;
7.2.2.
a copy of the Power of attorney filed by Mr Crous; and
7.2.3.
the Notice of the automatic review hearing and proof of service
thereof.
[8]
The applicant contends that without the record of the impugned
decision, he is prejudiced
as he is unable to fully and properly
state his case in the main application with the result that to
continues to serve a sentence
that was imposed irregularly.
[9]
The second respondent opposes the application on the basis that the
required record
has been filed with the Registrar pursuant to the
second respondent’s Rule 53(1)(b) notice filed on 7 January
2022 and supplemented
on 25 January 2022. The application is thus
unnecessary.
[10]
The second respondent further confirms that the proceedings were
indeed heard in the absence
of the applicant and this was as a result
of the parties’ agreement that the automatic review be
adjudicated on the basis
of the papers including written heads of
argument instead of an oral hearing. The record of those proceedings
namely: the written
heads of argument, the judgment, the reasons and
all the correspondences between the parties have been duly filed.
[11]
Rule 53 provides thus:
“
(1)
Save where any law otherwise provides, all proceedings to bring under
review the decision or
proceedings of any inferior court and of any
tribunal, board or officer performing judicial, quasi-judicial or
administrative functions
shall be by way of notice of motion directed
and delivered by the party seeking to review such decision or
proceedings to the magistrate,
presiding officer or chairperson of
the court, tribunal or board or to the officer, as the case may be,
and to all other parties
affected—
(a)….
(b) calling upon the
magistrate, presiding officer, chairperson or officer, as the case
may be, to despatch, within 15 days after
receipt of the notice of
motion, to the registrar the record of such proceedings sought to be
corrected or 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.”
[12]
The provisions of Rule 53 fundamentally confirms the principle of a
litigant’s constitutional
right of access to court.
[3]
[13]
As stated in
Helen
Suzman Foundation v Judicial Service Commission
,
[4]
Rule 53 p
rimarily
operates to the benefit of an applicant in that the record of the
proceedings enables a review court to fully and properly
assess the
lawfulness of the decision making process and also enables an
applicant to understand
how
the decision was arrived at, to assess its options whether to advance
its case
and,
if so inclined, to amend its notice of motion and supplement its
grounds for review
or even abandon it.
[5]
[14]
On the facts germane to this matter, it is not in dispute that the
second respondent is in terms
of Rule 53 (1) (b) obliged
to
file with the Registrar the record and the reasons of the proceedings
sought to be set aside and that p
ursuant to the notices
contemplated in Rule 53 (1) (b), the second respondent filed a record
comprising of:
14.1.
A copy of the second respondent’s directive dated 04
October
2019 informing the parties of the postponement of the automatic
review to 16 January 2020 pending the filing of the complete
trial
record. The notice was signed by the applicant on the said date;
14.2.
Mr Crous’ an email dated 13 May 2020 addressed to the
prosecution and Scorpion Legal Protection stating the following:
“…
We
refer to the above matter and wish to confirm that we are satisfied
that the court adjudicate this matter on paper based on our
heads of
argument that was submitted. We have noted that the state filed
supplementary heads of argument and we kindly request
if we may do
the same?
We
will ensure that should we feel the ned to file supplementary heads
that you will be furnished with same before close of business
tomorrow 14 May 2020.”
14.3.
Copies of the heads of argument filed by the prosecution
and Mr Crous
for the review hearing to be determined on the basis of written
arguments instead of an oral hearing.
14.4.
Mr Crous’ email dated 6 May 2020 informing the prosecution that
his mandate had been terminated; and
14.5.
A copy of the second’s respondent’s judgment
dated 8 May
2020.
[15]
As may be gleaned from the above record, the copies of the Power of
Attorney, the Notice of the
automatic review and also the record of
the of the proceedings held on 16 January 2020 have not been
furnished.
[16]
In my view, from the disclosed information it can be determined
whether or not at the time of
the review proceedings Mr Crous had the
necessary authority to act on behalf of the applicant or not as
averred by the applicant.
The applicant would not be prejudiced in
its case by the respondent’s failure to file the copy of Mr
Crous’ Power of
Attorney. Similarly, the proof that a notice of
the automatic review proceedings was transmitted to Mr Crous and/or
the applicant
and Scorpion Legal Protection is inconsequential as on
the available facts, both Mr Crous and Scorpion Legal Protection were
aware
of the automatic review proceedings. This fact is essentially
confirmed by Mr Crous in his email dated 13 May 2020. See para [13.2]
above.
[17]
As regards a record of what transpired on 16 January 2020, the second
respondent’s explanation
(belated as it is) that the matter was
postponed on that day at the request of Mr Crous and finally heard on
8 May 2020 is incontrovertible.
According to the second respondent,
since the automatic review proceedings were disposed of without the
hearing of oral argument
as agreed by the parties there is no
transcribed version of the record except for the documentary record.
[18]
It is trite that it is not a requirement that a record must be a
transcribed record to constitute
a proper record. A record under
these circumstances can be a formal typed document or even hand
written on a paper. What is important
is that the document sheds
light at what transpired during the proceedings.
[6]
Conclusion
[19]
Having regard to the facts of this matter and the case law to be
applied, I’m satisfied
that the record filed by the second
respondent contains all the relevant information pertinent to the
proceedings which are subject
to review in this court. The second
respondent has complied with the provisions of Rule 53(1)(b), the
application ought to be dismissed.
Costs
[20]
There
is no reason why the costs should not follow the result.
Order
[21]
The following order is granted:
1.
The application is
dismissed with costs.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. D.
De Kok
Instructed
by:
Bonolo Wesi Attorneys
BLOEMFONTEIN
Counsel
on behalf of the respondents:
Adv. T. Ngubeni
Instructed
by:
State Attorneys
BLOEMFONTEIN
[1]
Act, No 12 of 2002.
[2]
Act No, 16 of 1999.
[3]
Section 34 of the Constitution of the Republic of South Africa Act,
No 108 of 1996
[4]
[
20
18]
Z
ACC
8
a
t
paras 13 to 16.
[5]
See also
Bridon
International GMBH v International Trade Administration
Commission
[2012]
ZASCA 82
;
2013
(3) SA 197
(SCA)
at para 31.
[6]
Johannesburg
City Council v The Administrator Transvaal
(1)
1970
(2) SA 89
at 91G-92B.