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[2022] ZANCHC 37
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Maremane Communal Property Association v Minister of Police Station Commander: South African Police and Others (2086/21) [2022] ZANCHC 37 (15 July 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 2086/21
Heard
on: 28 April 2022
Delivered
on: 15 July 2022
Reportable:
YES / NO
In
the matter between:
MAREMANE
COMMUNAL PROPERTY ASSOCIATION
REGISTRATION
NUMBER: CPA/04/0745/P)
Applicant
and
MINISTER
OF
POLICE
First Respondent
STATION
COMMANDER: SOUTH AFRICAN POLICE
SERVICE,
POSTMASBURG
Second
Respondent
STATION
COMMANDER: SOUTH AFRICAN POLICE
SERVICE,
UPINGTON
Third
Respondent
JUDGMENT
ON APPEAL
Introduction
1
This is an
application for leave to appeal brought by the respondents
(‘’Minister of Police; Station Commander: South
African
Police Service, Postmasburg; Station Commander: South African Police
Service, Upington’’), against an order
of this Court
handed down on 25 March 2022, directing the second respondent
(‘’Station Commander: Postmasburg) to:
1.1.
execute the
orders granted by this Court under case numbers 1815/2019 and
2086/21, respectively; and
1.2.
pay the costs
of the application under case number 2086/21 on a punitive scale as
between attorney and client scale.
2
The
application is opposed by the applicant (Maremane Communal Property
Association). The background facts and the grounds of appeal
are set
out below.
Background
facts
3
This matter
has a long history. It dates to 2019 when a group of community
members (Boipelo Mojaki and 19 others) blockaded and/or
obstructed
the road giving access to portion 7 of the Farm D[....] [....],
district Hay, Northern Cape; remaining extent of the
Farm D[....]
[....], district Hay, Northern Cape; remainder of portion 2 of the
Farm K[....] [....] situated in the district of
Hay, Northern Cape
(‘’the
properties’
’).
4
The applicant
reacted to the blockade/obstruction by launching an urgent
application in this Court for an order
inter
alia
,
interdicting the respondents in that mater from blockading and/or
obstructing the road leading to the properties, and interfering
with
the operations of Afrimang (Pty) Ltd (‘’the
mine
’’).
On 16 August 2019 this Court
per
Williams J issued a
rule
nisi
calling upon the respondents in that case to show cause why they
should not be ordered and restrained from
inter
alia
:
4.1.
blockading/obstructing
the road giving access to portion 7 of the Farm D[....]2 [....],
district Hay, Northern Cape; remaining extent
of the Farm D[....]
[....], district Hay, Northern Cape; and remainder of portion 2 of
the Farm K[....] [....] situated in the
district of Hay, Northen Cape
(‘’the
properties’’
);
4.2.
unlawfully
erecting structures on the properties;
4.3.
unlawfully
issuing site permits/permission to occupy the properties;
4.4.
interfering
with the operations of Afrimang (Pty) Ltd (‘’Afrimang’’
or the ‘’mine’’)
and its stakeholders,
members, contractors and business associates;
4.5.
harassing
members of Afrimang and its stakeholders, members, contractors, and
business associates.’’
[1]
5
The
rule
nisi
was confirmed by Acting Justice Vuma on 1 November 2019, and the
issue of costs was postponed to 29 November 2019.
[2]
6
Upon receipt
of the Orders (
i.e,
the
rule
nisi
issued by Williams J on 16 August 2019 under case number 1815/19
(annexure ‘’FA4’’), as well as the subsequent
confirmation thereof by Acting Justice Vuma on 1 November 2019
(annexure ‘’FA2’’), the applicant approached
the Station Commander and members of the SAPS, Upington (‘’the
second respondent’’) with a request to assist
in the
execution and enforcement of the orders. The applicant alleges that
the second respondent refused to assist in executing
and enforcing
the Orders on the basis that the orders did not direct and authorize
the second respondent and members of the SAPS
Postmasburg to do so.
7
Notwithstanding
the Orders, in October 2021 the respondents resumed the
demonstrations and blockade of the road leading to the mine.
The
applicant, once again, approached the SAPS, Upington with the same
Orders and requested the police to assist in stopping the
demonstrations and blockade of the road leading to the mine. Members
of the SAPS, Upington refused to intervene as they held the
view that
the Orders did not direct them to assist the applicant.
8
On 11 October
2021 the applicant brought yet another application to this Court
under case number 2086/21, for an order
inter
alia
:
8.1.
That the
respondents in that case (Boipelo Mojaki and 19 others) be ordered to
refrain from blocking and/or obstructing the road
giving access to
portion 7 of the Farm D[....] [....], District Hay, Northern Cape;
remaining extent of the Farm D[....] [....],
District Hay, Northern
Cape; and remainder of portion 2 of the Farm K[....] [....] situated
in the district of Hay, Northern Cape
(‘’the
properties’’);
8.2.
Interfering
with the mining operations conducted by Afrimang on the aforesaid
properties;
8.3.
Harassing
members of the applicant and employees of Afrimang;
8.4.
Interdicting
the respondents from interfering with the administration of the
applicant;
8.5.
Interdicting
the respondents from instructing or affecting or causing any
employee, staff member or official of the applicant to
vacate their
offices and/or leave any of the campuses of the applicant;
8.6.
That prayers
8.1 to 8.5 above shall serve as interim interdict against the
respondents until the return date;
8.7.
That the order
be served on the respondents by the Sheriff for the district of
Postmasburg, Northern Cape, by reading out the order
by loudhailer at
the entrance or entrances of the properties, as well as affixing on a
notice board elected on the properties for
that purpose;
8.8.
That
members of the SAPS assist the Sheriff in serving and executing the
order.
[3]
9
The
application served before the Honourable Acting Justice O’Brien
on 11 October 2021, who issued a
rule
nisi
calling upon the respondents to show cause, if any, on 5 November
2021 why the following order should not be made final:
9.1
That the
respondents be ordered to refrain from:
9.1.1
Blocking
and/or obstructing the road giving access to the properties;
9.1.2
Interfering
with the mining operations conducted by Afrimang on the properties;
9.1.3
Harassing
members of the applicant and employees of Afrimang.
9.2
That the
respondents be interdicted from interfering with the administration
of the applicant.
9.3
That the
respondents be interdicted from instructing or affecting or causing
any employee, staff member or official of the applicant
to vacate
their offices and/or to leave any of the campuses of the applicant.
9.4
That prayers
9.1 to 9.3 above shall serve as interim interdict against the
respondents until the return date.
10
The
Order further directed that the Order be served on the respondents in
the following manner:
10.1.
By the Sheriff
for the district of Postmasburg Northern Cape by reading out the
order by loudhailer at the entrance or entrances
of the properties,
as well as affixing on a notice board elected on the properties;
10.2.
That the
members of SAPS assist the Sheriff in serving and executing the
order.
11
It is not in
dispute that the
rule
nisi
was
duly served on the respondents by the Sheriff for the district of
Postmasburg, in the manner directed in terms of the Order.
What
appear to be in dispute between the applicant and the first to third
respondents (the police respondents) though, are:
9.1.
whether after
service of the Order on the respondents, the deponent to the
applicant’s founding affidavit (Boniface Masiane)
approached
members of the SAPS, Upington for assistance in executing and
enforcing the Court order; and
9.2.
whether
Detective Reiter refused to offer such assistance on the basis that
the Order was not final, but merely provisional.
12
As I shall
demonstrate below, this dispute is illusory, more than real. I say so
because in their answering affidavit, the respondents
have located
their dispute somewhere else.
12.1.
The first
defence advanced by the respondents is that in terms of the Order,
the responsibility to serve and execute the Order rested
on the
Sheriff, and not the respondents;
12.2.
Secondly,
that in terms of the Court Order, it was only the Sheriff who could
approach members of the SAPS for assistance in serving
and executing
the Court order, and not the applicant itself.
[4]
This, notwithstanding the fact that the Court order was directed at
stopping conduct of a criminal nature, which falls squarely
within
the constitutional mandate of the SAPS – to prevent, combat and
investigate crime, to maintain public order, to protect
and secure
the inhabitants of the Republic and their property, and to uphold and
enforce the law.
[5]
13
It is a matter
of grave concern that the respondents have decided to adopt such
attitude when they are approached by members of
the community for
assistance in stopping criminal and/or disruptive conduct which
brought the activities of the mine to a grinding
halt. To insist that
the applicant must first obtain a final order before the police can
act, is in my view, illustrative of the
respondents’ lack of
appreciation of their role under the Constitution. This is the
type of conduct which the Court
must never countenance.
14
More and more,
we see civil society taking over and performing the functions that
are in terms of the Constitution reserved for
law-enforcement
agencies, security agencies, the National Prosecuting Authority and
other government agencies. Recently, we have
seen and heard of
Afriforum taking upon itself the role of guarding the Country’s
borders – a function which in terms
of the Constitution, is
reserved for the National Defence Force. We have also seen and heard
of criminal cases which Afriforum
has taken upon itself to prosecute
– a function reserved for the National Prosecuting Authority.
We have seen and heard about
Operation Dudula, an organization that
took on the fight against the influx of undocumented illegal
immigrants and drug trafficking
in our communities. The latest, is a
case brought by Solidarity trade union against Eskom employees who
embarked on an unprotected
strike. These are few of the examples
where civil society has taken upon itself, the role of fighting
crime, lawlessness and protecting
our country’s borders. In my
observation, all these things are happening because society has lost
confidence in the ability
of our law enforcement agencies to perform
their duties.
15
To come back
to the facts of this case, the
rule
nisi
was
confirmed on 11 March 2022 and on the same day, the final Order was
delivered to the SAPS, Postmasburg. It is alleged that
Detective
Mokgosi received the Order and promised to execute it the next day on
Saturday the 12
th
of March 2022. Needless to say that despite the respondents’
promise to execute the Order, the respondents once again, failed
and/or refused to clear the road and allow mining activities in the
properties to continue as
per
the Court
Order.
16
On
Monday, the 14
th
of March 2022 the deponent to the applicant’s founding
affidavit, the secretary of the applicant (Paulus Mphasi) and other
members of the applicant went to the SAPS, Upington which is a
cluster overlooking Postmasburg and other satellite police stations.
They showed the final Court Order to the Cluster Commander (Colonel
PC Coetzee ‘’
Coetzee’
’)
and informed him that the SAPS Postmasburg had refused to execute the
court order. Coetzee then contacted the Acting Station
Commander of
the SAPS, Postmasburg, and informed him to implement the Court Order.
The Acting Station Commander, Postmasburg agreed
and indicated that
the applicant’s representatives should report at the
Postmasburg Police Station on Tuesday the 15
th
of March 2022.
[6]
17
On
Tuesday (15 March 2022) the deponent to the applicant’s
founding affidavit, the secretary of the applicant, as well as
other
members of the applicant descended to the Postmasburg Police Station
as previously advised. On their arrival, Sergeant Qokolo
of the SAPS,
Postmasburg informed them that the applicant should allow the
respondents in that matter to benefit from the land.
In addition,
Constable Louw of the SAPS, Postmasburg also informed members of the
applicant that even if they registered hundred
complaints, the SAPS
will simply not act.
[7]
The
applicant’s members even registered a criminal complaint with
the SAPS, Postmasburg.
[8]
18
The next day
(Wednesday the 16
th
of March 2022) the deponent to the applicant’s founding
affidavit, together with Mphafi went to the Postmasburg Police
Station
to request assistance once again from members of the SAPS in
resolving the blockade of the road leading to the mine. They were
informed by a member of the SAPS, Postmasburg (Mokgosi) that since
the respondents had been blocking the road before 11 March 2022,
the
Court Order is no longer effective.
19
On
Tuesday the 17
th
of March 2022 the deponent to the applicant’s founding
affidavit, together with another member of the applicant (Ndlovu),
once again went to the Postmasburg Police Station to seek assistance
from the police. They showed Mokgosi photos and a video of
the
respondents blocking the road with a truck. Still, the members of the
SAPS, Postmasburg showed very little, if any, interest
in assisting
the members of the applicant to stop the respondents in that matter
from blocking the road leading to the mine and
generally acting in a
manner that disrupted the activities of the Mine.
20
This forced
the applicant on 23 March 2022 to launch yet another application on
an urgent basis, seeking assistance from the Court
as the SAPS has
either refused or simply neglected to assist them in enforcing the
orders of this Court, and to restore peace and
stability at the mine
as well as the community adjacent to the mine.
The
23 March 2022 Urgent Application
21
In the 23
March 2022 application, the applicant sought an order
inter
alia,
21.1
directing the respondents in that matter (being Minister of Police as
the ‘’first respondent’’;
Station Commander:
South African Police Service, Postmasburg as the ‘’second
respondent’’; and Station
Commander: South African Police
Service, Upington as the ‘’third respondent’’)
to execute the orders granted
by this Court under case numbers
1815/2019; and 2086/21 respectively; and directing the respondents to
bear the costs of the application
on attorney and client scale.
22
The
application was opposed by all three respondents. They did so
essentially on the following grounds:
22.1
First,
the deponent to the founding affidavit did not bring the Court Order
to the attention of the respondents and/or
detective
Reiter;
[9]
22.2
Second, in terms of the Court Order, the respondents could only
assist the Sheriff in serving and executing the Court
Order, but not
take over the responsibility of the Sheriff.
23
The matter
served before the Court on 25 March 2022. The applicant was
represented by Mr Ramonyai on the instructions of Koikanyang
Inc,
whereas the respondents were represented by Mr Ramavhale of the
office of the State Attorney (Kimberley).
24
After hearing
argument from both sides, I made an order directing the second
respondent to execute the orders granted by this Court
under case
numbers 1815/2019 and 2086/21. The second respondent was also
directed to pay the costs of the application on attorney
and client
scale. This is the order that is the subject matter of the
application for leave to appeal.
The
application for leave to appeal
25
In the
application for leave to appeal, the respondents have challenged the
Order of this Court granted on 25 March 2022 on seven
(7) grounds,
and these are:
22.1.
The Acting
Judge erred when he stated that the Respondents had a duty to act in
substitution of the Sheriff;
22.2.
The Acting
Judge erred when he found that the purposive interpretation was
applicable in the interpretation of his court order which
is subject
of urgent application;
22.3.
The Acting
Judge erred when he found that the Respondents (
sic)
intention to assist the Sheriff was not sufficient to comply with the
court order;
22.4.
The Acting
Judge erred when he did not consider the intention of the Respondents
to comply with the directions of the court order;
22.5.
The Acting
Judge erred when he ordered the Respondents to pay the costs of the
urgent application without considering the intentions
of the
Respondents;
22.6.
The Acting
Judge erred when he ordered the Respondents to pay the costs of the
urgent application on a punitive scale as between
attorney and
client;
22.7.
The Acting
Judge erred when he directed the Applicant not to address him in the
matter and stated in the order that he heard Mr
Ramonyai for the
Applicant.
26
Though the
respondents did not formally abandon some of the grounds of appeal,
only three of these grounds were seriously pursued
by the respondents
at the hearing of the application for leave to appeal. First, the
duty to serve and execute court orders rests
on the Sheriff, and not
the respondents. Second, since the court orders were clear, they did
not require any tools of interpretation
to be brought into aid.
Third, the cost order against the respondents was not just and
equitable. I deal with each of these grounds
in the discussion below.
Before doing so, it is necessary to make a few remarks about the test
for leave to appeal under section
17 of the Superior Courts Act, 10
of 2013 (‘’
Superior
Courts Act’’
).
This is particularly important because the respondents’ grounds
of appeal fall short of the standard set by
section 17(1)
of the
Superior Courts Act.
The
test for leave to appeal
27
The
test for leave to appeal is trite – it is whether the appeal
would have a reasonable prospect of success. This test was
explained
by the SCA in
Member
of the Executive Council for Health, Eastern Cape v Kirland and
Another.
[10]
’
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)(a)
of the
Superior Courts Act 10
of 2013
makes it clear that leave to appeal may only be given when
the judge concerned is of the opinion that the appeal would have a
reasonable
prospect of success; or there is some other compelling
reasons why it should be heard. An applicant for leave for leave to
appeal
must convince the court on proper grounds that there is a
reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless,
is not enough. There must be a sound rational basis to conclude
that
there is a reasonable prospect of success on appeal.’
28
Unlike
under the previous test,
[11]
which was mainly concerned with whether there is a reasonable
prospect of the appeal succeeding, the test for leave to appeal under
section 17(1)(a)
of the
Superior Courts Act now requires
a measure of
certainty – that another court will differ with the court
a
quo
.
[12]
Section 17(1)
has therefore raised the bar higher than it has been
under the repealed Supreme Court Act, 59 of 1959.
Evaluation
29
I have
carefully considered the grounds of appeal set out above, as well as
the heads of argument filed on behalf of the respondents.
I have also
considered the heads of argument filed on behalf of the applicant in
the main application and in this application for
leave to appeal. It
is apparent from the respondents’ heads of argument that the
respondents have completely missed the import
of the Order that is
the subject-matter of the application for leave to appeal. The issue
is not whether the SAPS has the primary
responsibility of executing
orders of court. That responsibility undoubtedly rests on the Sheriff
by virtue of
section 43
of the
Superior Courts Act. I
did not
understand the applicant to be contending differently. The applicant
too, seems to accept that under
section 43
of the
Superior Courts
Act, the
responsibility to execute court orders rested on the
Sheriff.
30
The central
question in this case, however, is whether once an order of court has
been served by the Sheriff, members of the community
can approach the
SAPS for assistance in enforcing the terms of the court order without
first enlisting the services of the Sheriff
to once again, try to
enforce the court order.
31
The
respondents contend that the wording of paragraph 3.2 of the Order
and
section 43(1)
of the
Superior Courts Act, precluded
the applicant
from directly approaching the SAPS for assistance to enforce the
Court Order. The applicant, so the argument continues,
ought to have
first enlisted the services of the Sheriff to execute the Court
Order, and it is only if the Sheriff has a problem
or is in any way
hindered or obstructed from executing the Court Order, that the
Sheriff would be entitled to request the assistance
of the SAPS. In
support of this argument, the respondents rely on an unreported
judgment of the North West High Court, Mahikeng
in
Harold
Msiza v Dikeledi Msiza
and another, case number M271/15. In particular, the
respondents rely on paragraphs [13] and [14] of the judgment, as
authority
for the proposition that the applicant was not entitled to
directly approach the SAPS for assistance. In that case –
Harod
Msiza
, the
Court said the following:
31.1.
The
primary responsibility for the execution of court orders is that of
the Sheriff of the High Court concerned.
Section 43(1)
of the
Superior Courts Act 10 of 2013
provides that the sheriff must,
subject to the applicable rules, execute all sentences, judgments,
writs, summonses, rules, orders,
warrants, commands, and processes of
any Superior Court directed to the sheriff.
[13]
31.2.
The
applicant was obliged to enlist the services of the sheriff. My order
directing the police to assist the sheriff should he request
assistance was specifically made because it is not the responsibility
of the South African Police Service to execute civil orders
of the
High Court.
[14]
32
The decision
in
Harold
Msiza
(
supra
)
is distinguishable from this case. In
Harold
Msiza
,
immediately after the order was granted by the court, the applicant
and his legal team went straight to the police station at
Rustenburg
and handed the court order to the police for execution. That is
different from the facts of this case. In this case,
the first order
(
rule nisi
)
was served on the respondents by the Sheriff. It was only when
despite service, the respondents persisted with their conduct of
blocking the road leading to the mine, that the applicant approached
the SAPS for assistance. Secondly, in
Harold
Msiza
there was no criminal and/or disorderly conduct involved. In that
case, the SAPS was merely requested to serve the court order
on the
respondent. That is different from this case. In this case, the
respondents were engaged in criminal and/or disorderly conduct
(harassment, blocking the road and hi-jack). The SAPS was being
requested to stop the blockade, harassment, and hi-jacking (the
subject of the Court Order). In essence, therefore, what the SAPS was
being requested to do, was to prevent crime and maintain
public
order. The facts of this case are clearly distinguishable from the
facts in
Harold
Msiza
.
Once it is so, then it follows that
Harold
Msiza (supra)
is not authority for the proposition that members of the SAPS are
entitled to refuse assistance to members of the community when
criminal and/or disorderly conduct is being committed, simply because
the Court Order says that the ‘
SAPS
shall assist the Sheriff
’
in serving and executing the order.
33
In my view, a
distinction must be drawn between mere service of a judgment or order
where criminal and/or disorderly conduct is
not involved on the one
hand, and execution of a court order or judgment which seeks to
prevent criminal and/or disorderly conduct,
on the other.
Harold
Msiza
is
concerned with the former scenario. That is different from the latter
scenario where criminal and/or disorderly conduct are
committed, and
the Court Order is intended to stop such conduct. In the latter
scenario, members of the SAPS cannot hide behind
the wording of the
Court Order to refuse assistance to members of the community when
their assistance is requested. That would
be a classic case of
abdication of the police’s constitutional responsibilities.
34
Crime
prevention, and maintenance of public order are some of the core
functions of the SAPS. In this regard, section 205(3) of
the
Constitution of the Republic of South Africa Act, 108 of 1996 (‘’the
Constitution
’’)
provides that the objects of the police are to prevent, combat and
investigate crime, to maintain public order,
to protect and secure
the inhabitants of the Republic and their property, and to uphold and
enforce the law.
35
Whenever acts
of criminality are committed, society is entitled to look up to the
SAPS for assistance, and the police have a corresponding
duty to step
up and help. That is really what the applicant was seeking from the
SAPS – assistance from the SAPS in stopping
the various acts of
criminality and/or disorderly conduct that were being committed by
the respondents, and protection from the
SAPS. With or without a
court order, the applicant was entitled to approach the police for
assistance whenever criminal and/or
disorderly conduct was being
committed against them. In fact, the police did not require a court
order to remind them of their
responsibilities. Whenever crime is
reported or brought to the attention of the police, they are obliged
to act.
36
The
respondents cannot hide behind the wording of the Court Order as a
basis for abdicating their constitutional obligations. As
an organ of
State, they too must respect, protect and uphold the Constitution.
That is what section 7(2) of the Constitution requires.
37
In fact, it is
unheard of that members of the police can refuse to act when conduct
of a criminal nature is brought to their attention
simply because the
Court Order says the ‘
SAPS
shall assist the Sheriff in serving and executing the orders’
.
To do so, would clearly be to excessively peer at the language of the
document without paying sufficient attention to the context
and
purpose of the document – the Court Order. That is precisely
what the Court tried to warn the respondents about, when
it called
upon the respondents to rather consider the purpose of the Court
Order. Clearly, that too, the respondents did not seem
to appreciate.
Hence their persistence in challenging the Order on the ground
inter
alia
, that
the Court erred by adopting a ‘purposive interpretation’
of the Court Order, when the court order was clear in
its terms. Only
two points need to be made in this regard.
37.1.
First, it is
mind-boggling for the respondents to contend as they do, that it was
not necessary for the Court to go into a process
of interpretation of
the Court Order because the order was clear in its terms. The fact
that the parties were not
ad
idem
about
the meaning of paragraph 3.2 of the Order means that the Court had to
go into a process of determining the true meaning of
that paragraph.
That is the very purpose of interpretation of documents.
37.2.
Second, a
court order like any other written instrument often requires
interpretation to ascertain the true meaning of the document.
This
was made clear by the SCA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA).
‘’
Interpretation
is the process of attributing meaning to the words used in a
document, be it a legislation, some other statutory
instrument, or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of
the document as a
whole and the circumstances attendant upon its coming into its
existence. Whatever the nature of the document,
consideration must be
given to the language used in the light of the ordinary rules of
grammar and syntax; context in which the
provision appears; the
apparent purpose to which it is directed and the material known to
those responsible for its production.
Where more than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective
not subjective. A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the
apparent purpose of the document…
The inevitable point of departure is the language of the provision
itself, read in context
and having regard to the purpose of the
provision and the background to the preparation and production of the
document.’’
37.3.
Once it is so,
then it is fallacious for the respondents to contend as they do, that
because paragraph 3.2 of the Order is clear,
then there was no need
for the Court to go into a process of interpretation.
38
In a
throw-away argument the respondents contend that since paragraph 3.2
of the Court Order envisaged that the Sheriff must first
execute the
Order before requesting the assistance of members of the SAPS, then
it was only the Sheriff who should have requested
assistance from
members of the SAPS, not members of the applicant.
39
Paragraph 3.2
of the Order of 11 March 2022 reads as follows:
‘’
That
the members of SAPS assist the Sheriff in serving and executing the
order as aforementioned.’’
40
The
respondents’ construction of paragraph 3.2 of the Order is
flawed precisely because,
38.1.
There is
nothing in paragraph 3.2 that requires the Sheriff to first serve
and/or execute the order before requesting assistance
from members of
the SAPS. There is no reason why the Sheriff cannot request
assistance from the police even before serving the
order.
38.2.
In any event,
the respondents’ construction moves from the premise that the
Order was never served by the Sheriff before the
SAPS was approached
for assistance; and
38.3.
That even
after execution of a court order, the Sheriff will always be
available to see to it that the terms of the order are carried
out,
and that if they are disobeyed then the Sheriff must be available to
request assistance from the SAPS to enforce the terms
of the order.
39.
All three
premises are demonstrably false.
39.1.
I have already
demonstrated above that the order (
rule
nisi
) was
served by the Sheriff on the respondents. The duty of the Sheriff is
to serve/execute a court order. Once he/she has served/executed
the
order, then he/she has discharged his/her mandate in terms of the
court order. The Sheriff is not required thereafter, to forever
be
available to see to it that the Order is complied with.
39.2.
As the
applicant’s counsel has correctly pointed out in his heads of
argument, it is not practical that each time members
of the community
engage in conduct that is prohibited in the court order, the
applicant must first enlist the services of a Sheriff
who will in
turn, then report the incident to the police. This is insensible. It
defeats the purpose of the Order especially one
that has been granted
on an urgent basis. There is absolutely no reason why in such event,
the applicant cannot directly report
the incident to the police and
request their assistance in preventing the conduct complained of
especially if such conduct amounts
to criminal and/or disorderly
conduct.
39.3.
I have already
explained above that the police have a constitutional obligation to
prevent, combat, and investigate crime, to maintain
public order, to
protect and secure the inhabitants of the Republic and their property
and to uphold the law. I find it difficult
to understand why the
police would even require a court order to direct them to perform
their constitutional obligations.
40.
If paragraph
3.2 of the Order was to be accorded the interpretation contended for
by the respondents, that would lead to insensible
results. On the
contrary, the interpretation contended for by the applicant would
achieve the purpose of the Order – to prevent
illegal/unlawful
and/or disorderly conduct in the community and the road leading to
the mine. In any event, it is plain from their
heads of argument that
in their interpretation of the Order the respondents focused solely
on the language of paragraph 3.2 of
the Order without paying
sufficient attention to the purpose of the Order. This method of
interpretation has been deprecated in
several judgments of our courts
as an incorrect method of interpretation.
41.
In the result,
I reject the interpretation of the Order contended for by the
respondents. I find such interpretation to be insensible
and
inconsistent with the purpose of the Court Order. Properly construed,
there is nothing in the Order that requires the applicant
to first
engage the Sheriff before requesting the assistance of the police to
prevent an illegal/unlawful and/or criminal conduct.
Beyond service
of the order on the respondents, there was nothing further that the
Sheriff could do to ensure compliance with the
Order. It was only the
police who could bring the situation under control.
42.
Regarding
costs, it is trite that costs on a punitive scale are within the
discretion of the Court and are awarded in exceptional
circumstances.
That would include a situation where the circumstances of the case
are such that they required a court to mark its
displeasure with an
appropriate costs order. Punitive costs are also awarded to ensure
that the successful party is not out of
pocket because of the
litigation.
43.
In this case,
the applicant incurred costs in obtaining various court orders to
prevent the respondents from continuing with the
various criminal
and/or disorderly conduct. This notwithstanding, the applicant was
once again forced to approach the Court to
compel the respondents
(the police) to perform their constitutional obligations and protect
the applicant against the alleged criminal
and/or disorderly conduct.
Instead of realizing their ‘mistake’ and apologized for
giving the applicant a run around,
the respondents persisted with
their nonchalant attitude.
43.1.
They opposed
the application on spurious and at times, contradictory grounds. For
instance, at one point they advanced the argument
that it is only the
Sheriff who could request their assistance, but not members of the
applicant. At another point, however, the
respondents argued that the
applicant did not request the assistance of the police. Then at
another point the respondents argued
that they offered their
assistance to the applicant.
43.2.
They persisted
with the same spurious grounds to apply for leave to appeal.
43.3.
Most
significantly though, the respondents refused to perform their
constitutional obligations at a time when their assistance was
most
needed. It is conduct like this that results in society losing
confidence in the ability of the SAPS to protect them from
criminal
conduct. Hence, society ends up taking the law into its own hands.
44.
This type of
conduct on the part of the police cannot be countenanced by the
Court. In fact, it is conduct which must never be tolerated.
The
police have a constitutional mandate to prevent, combat and
investigate crime, to maintain public order, to protect and secure
the inhabitants of the Republic and their property and to uphold the
law. The police have failed the applicant in this case. Since
the
police are not prepared to right their wrongs and instill the public
confidence in the ability of the SAPS to perform its functions,
it is
up to this Court to ensure that conduct of this nature does not
happen again. It is for this reasons that the Court ordered
the
respondents to pay the costs of the application on attorney and
client scale as a way of marking its displeasure about the
conduct of
the SAPS. Hopefully, the costs order will be a constant reminder on
the police of their constitutional obligations.
It seems that some
members of the police have completely forgotten why they are wearing
police uniform. It would also have been
unfair to expect the
applicant to be out of pocket because of litigation which is
senseless. This matter should not have reached
this point.
45.
In my view,
what happened in this case must be reported to the Minister of Police
for possible investigation into the conduct of
the various police
officers mentioned in the body of this judgment. Hopefully, the
Minister of Police will ensure that this does
not happen again.
Conclusion
46.
For all these
reasons, I find that the respondents have failed to meet the
heightened test for leave to appeal. In the result, the
application
for leave to appeal must be dismissed with costs.
Order
47.
In the result,
I make the following order:
1.
The
application for leave to appeal is dismissed.
2.
The
respondents are to pay the costs of the applicant, jointly and
severally the one paying the other to be absolved.
M J
Ramaepadi
Acting
Judge of the High Court of South Africa, Northern Cape Division,
Kimberley
APPEARANCES
For
the Respondents:
Ramavhale FD
Instructed
by
State Attorney, Kimberley
For
the Applicant:
Ramonyai ME
Instructed
by
Koikanyang Inc c/o Magoma Attorneys, Kimberley
[1]
Annexure FA4 pp56-59
[2]
Annexure
FA2 pp29-30
[3]
Annexure
‘’FA3’’ pp31-33
[4]
See
for example, Respondents’ answering affidavit p3 paras
5.2-5.5; p5 paras 10.1-10.4
[5]
S205(3)
of the Constitution of the Republic of South Africa Act, 108 of 1996
‘’
the
Constitution’’
[6]
FA
p18 para 6.5
[7]
FA
pp19-19 paras 6.6- 6.7
[8]
Annexure
‘’FA5’’ pp37-38
[9]
Answering
affidavit p5 para 10.2
[10]
[2016]
JOL 36940
(SCA) at paras 16-17
[11]
See
for example, Westinghouse Brake & Equipment (Pty) Ltd v Bilger
Engineering (Pty)Ltd
1986 (2) SA 55
(A) at 560I
[12]
See
for example, Mont Chevraux Trust v T Goosen and 18 others Case
T28/2012
[13]
Para
[13]
[14]
Para
[14]