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[2022] ZAFSHC 353
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Central University of Technology v Free State Provincial Commissioner of the South African Police Services and Others (3278/2022) [2022] ZAFSHC 353 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3278/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
CENTRAL
UNIVERSITY OF TECHNOLOGY Applicant
and
THE
FREE STATE PROVINCIAL COMMISSIONER OF
THE
SOUTH AFRICAN POLICE SERVICES First
Respondent
THE
MINISTER OF
POLICE Second
Respondent
MPHO
CANSLEY
LITABE Third
Respondent
BANGANI
MOHALE RADEBE Fourth
Respondent
MOHLOMI
JACKSON MAPHIKE
Fifth
Respondent
MOTHIBEDI
JUSTICE SKHOSANA
Sixth
Respondent
KGOSUITSILI
MAKOKO Seventh
Respondent
STEPHEN
STEFEN MOTETE Eight
Respondent
KAKGISO
DIRADITSILE Ninth
Respondent
DINEO
MOTAUNG Tenth
Respondent
KHANYISO
DWAZA Eleventh
Respondent
THABANG
MEKHOE Twelfth
Respondent
RORISANG
F
NKUNA Thirteenth
Respondent
MASHOPHA
TISETSO POROTA Fourteenth
Respondent
JUNIOR
MOROENYANE
Fifteenth Respondent
ALL
INDIVIDUALS ACTING UNDER/OR ON
BEHALF
OF AND/OR IN CONCENT WITH THE
3
RD
TO 4
TH
RESPONDENTS AND/OR CONTRAVENING
ANY
OF THE ACTIVITIES PROHIBITED BY ANY
ORDER
GRANTED PURSUANT TO THIS
APPLICATION
AND PERTAINING TO THE FACTS
ON
WHICH THE ORDER WAS PREMISED Sixteenth
Respondent
CORAM:
OPPERMAN,
J
HEARD
ON:
27
October 2022
DELIVERED
ON:
14 December
2022. The judgment was handed down electronically by circulation to
the parties’ legal representatives
by email and release to
SAFLII on 14 December 2022. The date and time for hand-down is deemed
to be 14 December 2022 at 15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Rule
Nisi
& interim interdict –
confirmation & mootness – costs of the application for
confirmation of order
JUDGMENT
[1]
The application that lies before this court is
for the confirmation of a Rule
Nisi
order that comprises an interim
interdict. The disagreement is between the applicant and the third to
fifteenth respondents. The
issues in dispute, as correctly identified
by the applicant, are:
1.
Whether the relief sought by the
applicant has become moot?
2.
Whether the applicant is entitled to the
confirmation of the Rule
Nisi
order
as against the third to sixteenth respondents?
3.
The costs of this application.
[2]
This is the order that the applicant wants now
and that was specified in a draft order that was attached to their
heads of argument
dated 19 October 2022:
10.
I
will therefore move for an order in terms of the Draft Order annexed
hereto as annexure “
X”
DRAFT
ORDER
THE
FOLLOWING ORDERS ARE MADE:
1.
Ad 1
st
and 2
nd
Respondents
By
agreement between the Applicant and the 1
st
and 2
nd
Respondents the following final order is made:
1.1
The First and Second Respondent shall
deploy and make available a reasonable number of the Public Order
Police Force members, at
the entrance to the Applicant’s campus
an on the campus grounds situated at No 1 Mothusi Road, Thabang,
Welkom, Free State
Province, if necessary, or wherever necessary,
upon request of the Applicant and provide patrol services at the
Applicant’s
entrance or entrances as reasonably possible and
render such service/s
until 5 August
2022
and keep them so deployed as
necessary
until 5 August
2022.
1.2
The First and Second Respondents shall
up until
5 August 2022:
1.2.1
reasonably prevent any unlawful conduct
by any of the Respondents being committed around or on the
Applicant’s campus;
1.2.2
prevent any of the Respondents that do
not want to write exams from being present at the entrance of the
Applicant’s campus
and to prevent them from entering the
Applicant’s campus and /or examination facilities;
1.2.3
Prevent the Respondents from enticing,
intimidating, threatening and unduly influencing students not to
write exams on the Applicant’s
campus.
1.3
No order as to costs against the 1
st
and 2
nd
Respondents.
2.
Ad 3
rd
to 16
th
Respondents:
2.1
The Rule
Nisi
dated 13 July 2022 is confirmed with costs
against 3
rd
to 15
th
Respondents.
2.2
The Rule
Nisi
dated 13 July 2022 is confirmed with costs
against 16
th
Respondent, no order as to costs.
[3]
The relevant part of the 13 July 2022 –
order against the third to sixteenth respondents reads as follows:
3.3
The Third to Sixteenth Respondents shall:
3.3.1
refrain from protesting at the entrance to the Applicant’s
Welkom Campus or on the Applicant’s Welkom Campus which is
situated at No 1 Mothusi Road, Thabang, Welkom, Free state Province;
3.3.2
refrain from enticing, intimidating, threatening, disturbing and
unduly influencing the Applicant’s students by whatever means,
not to write exams on the Applicant’s Welkom campus
from the
date of granting of this order up and until 5 August 2022;
3.3.3
not interfere, in whatever manner, with the access of students
onto
and from the Applicant’s Welkom Campus;
3.3.4
refrain from making any post on any social media or other platform/s
intended to entice, intimidate, threaten or unduly influencing the
Applicant’s students not to write exams on the Applicant’s
Welkom Campus up and until 5 August 2022;
3.3.5
not enter the Applicant’s Welkom Campus from date of granting
of this order up and until 5 August 2022 unless they want to write
the exams peacefully;
3.3.6
not obstruct and/or block any of the entrances, classrooms or
buildings on or to the Applicant’s Welkom Campus;
3.3.7
not obstruct, impede, disrupt or interfere with any scheduled exams;
3.3.8
not cause any damage to any property situated on the Applicant’s
Welkom Campus, whether movable or immovable and regardless of who the
owner thereof may be.
3.4
Costs, only in the event of opposition to the application.
4.
The orders contained in paragraphs 3.1
[1]
to 3.3.8 above shall operate as an interim interdict with immediate
effect;
(Accentuation
added)
[4]
The crux of the above is that the order of
interdict is
interim
with immediate effect.
It only had
effect until 5 August 2022; this is the atmosphere and the intent of
the order based on the prevailing facts.
[5]
On the evidence adduced and the arguments of
the applicant at the time of the application for the 13 July 2022 –
order; the
order was legal. It cannot be faulted.
[6]
The facts that prompted the order have seized
to exist. The case has run its course.
[7]
A Rule
Nisi
is
a rule or order upon condition that is to become absolute unless
cause is shown to the contrary. An interim interdict only has
effect
until the date and time it is due and ordered to lapse.
[8]
Courts are
not inclined to make moot orders. The Constitutional Court in
Normandien
Farms (Pty) Limited v South African Agency for Promotion of Petroleum
Exportation and Exploitation (SOC) Limited and
others
2020 (6) BCLR 748
(CC) gave some direction on the subject of the
mootness of the adjudication of cases and the resultant orders.
[46]
It is clear from the factual circumstances that this matter is moot.
However, this is not the end of the inquiry.
The central question for
consideration is: whether it is in the interests of justice to grant
leave to appeal, notwithstanding
the mootness. A consideration of
this Court’s approach to mootness is necessary at this
juncture, followed by an application
of the various factors to the
current matter.
[47]
Mootness is when a matter “no longer presents an existing or
live controversy”. The doctrine is based
on the notion that
judicial resources ought to be utilised efficiently and should not be
dedicated to advisory opinions or abstract
propositions of law, and
that courts should avoid deciding matters that are “abstract,
academic or hypothetical”.
[48]
This Court has held that it is axiomatic that “mootness is not
an absolute bar to the justiciability of an
issue [and that this]
Court may entertain an appeal, even if moot, where the interests of
justice so require”. This
Court “has discretionary
power to entertain even admittedly moot issues”.
[49]
Where there are two conflicting judgments by different courts,
especially where an appeal court’s outcome
has binding
implications for future matters, it weighs in favour of entertaining
a moot matter.
[50]
Moreover, this Court has proffered further factors that ought to be
considered when determining whether it is in
the interests of justice
to hear a moot matter. These include:
(a)
whether any order which it may make will have some practical effect
either on the parties or on others;
(b)
the nature and extent of the practical effect that any possible order
might have;
(c)
the importance of the issue;
(d)
the complexity of the issue;
(e)
the fullness or otherwise of the arguments advanced; and
(f)
resolving the disputes between different courts.
[9]
This case begins and ends with the conclusion
of the factual circumstances that demanded the interim interdict. It
resolved on 5
August 2022 and there is no evidence that the third to
sixteenth respondents have perpetuated their conduct. Imperative is
the
fact that any conduct from hereafter and after the date of the
5
th
of August 2022, will have to be the subject; and with a cause of
action for a separate application and for another day.
[10]
The
matter has been classified by counsel for the third to fifteenth
respondents as one that resorts under the
Bio-Watch
principle.
[2]
At paragraph 42 of
their heads of argument they argued, and correctly so, that the
respondents opposed the confirmation of the
Rule
Nisi
in
a good faith effort to protect their constitutional rights. Even were
they to fail in their opposition, costs should not be awarded
against
them.
[11]
The evidence that served before the court on
the 13
th
of July 2022, and now; show that the applicant acted with the same
good faith, in public interest and to protect order and
constitutional
decorum.
[12]
The facts and circumstances of the case demand
that each party that partook in the litigation
in
casu
must carry their own costs. The
first, second and sixteenth respondents did not join in the
litigation and there was not any opposition
from their side to the
application; they will not be mulcted with a costs order.
[13]
ORDER
1.
The application as per the draft order
attached to the heads of argument of the applicant is denied. The 13
July 2022 – Rule
Nisi
order is thus not confirmed.
2.
Each party; the applicant and the third
to fifteenth respondents must carry their own costs.
M
OPPERMAN, J
APPEARANCES
For
the applicant: ADVOCATE
HJ CILLIERS
Chambers,
Bloemfontein
083
293 2910
Instructed
by:
M
Gertenbach
Symington
& de Kok Attorneys, Bloemfontein
051
505 6600
Ref:
T O’Reilly/FX2386
tonie@symok.co.za
First
& second respondents OFFICE
OF THE STATE ATTORNEY:
FREE
STATE, BLOEMFONTEIN
NO
APPEARANCE; UNOPPOSED
Third
to fifteenth respondents ADVOCATE
JFD BRAND
Free
State Centre for Human Rights:
Bloemfontein
082
4480 473
Instructed
by:
CMD
Rawson
UFS
Law Clinic, Free State,
Bloemfontein
051
401 9970
Ref:
OF//2020/PA
Sixteenth
respondent
NO APPEARANCE; UNOPPOSED
[1]
3.1
and 3.2 is in regard to the first and second respondents.
[2]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC),
2009 (10) BCLR 1014
(CC),
[2009] ZACC 14.