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[2021] ZAGPPHC 340
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Phiyega v Farlam N.O and Others (49521/2016) [2021] ZAGPPHC 340 (30 May 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 49521/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
30/5/2021
In
the matter between:
GENERAL
VICTORIA MANGWASHI PHIYEGA
Applicant
And
JUDGE
I.G FARLAM
(N.O)
First Respondent
ADVOCATE
P.D HEMRAJ SC
(N.O)
Second Respondent
ADVOCATE
B.R TOKOTA SC
(N.O)
Third Respondent
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA
Fourth Respondent
Delivered.
This judgment was handed down
electronically by circulation to the parties’ representatives
by email. The date and time for
hand down is deemed to be 10h00 on
1
June 2021.
JUDGMENT
RANCHOD,
J
Introduction
[1]
This is an application to review and set aside the findings made
against the applicant
by the first to third respondents sitting as
the Marikana Commission of Inquiry (the Commission). The review is
premised on the
legality and rationality of the recommendations and
findings under review.
[2]
The applicant alleges that the recommendations and findings by the
Commission were
irrational because they were not supported by the
evidence that was before it and relevant evidence was not taken into
account.
Issues
for determination
[3]
It appears from the papers that the following issues are sought to be
determined by
this court:
3.1
Whether condonation for the late filing of the
fourth respondent’s answering affidavit and the applicant’s
replying
affidavit should be granted.
3.2
Whether the first to third respondents’ findings and
recommendations as set out in
prayers 1.1 to 1.3 of the notice of
motion were irrational and fall to be set aside, considering the
evidence that was before the
Marikana Commission.
3.3
Whether the first to third respondents’ verbatim reproduction
of the Marikana Commission
Evidence Leaders’ heads of argument
and the cut and paste exercise undertaken by them is inconsistent
with their obligation
to apply their minds independently. If it was
inconsistent, whether the report should be reviewed and set aside to
the extent that
it made negative findings against the applicant. The
applicant contends that the Commission’s approval of some of
the arguments
made by the evidence leaders is a “cut and paste
job” that resulted in contradictions, which are in turn an
indication
of a failure on the part of the Commission to apply its
mind; rendering the conclusions reached irrational and vulnerable to
review.
[4[
The fourth respondent contends as follows in his answering affidavit:
4.1
The applicant has misconceived the correct review standard, or
purports to subject a judicial
commission of inquiry’s report
to appeal scrutiny; and in any event, even were the appeal standard
to be applied, the applicant
has failed to establish any basis for
criticising the correctness of the Marikana Commission’s
report;
4.2
The applicant has failed to satisfy the test for legality and
rationality review as articulated
by the Constitutional Court in
Democratic Alliance v President of the Republic of South Africa
2013 (1) SA 248
(CC) at para 37;
4.3
The criticisms advanced against the selected parts of the Marikana
report by the applicant
does not establish reviewable irregularities,
and the Marikana Commission was justified in making the observations
it did in the
circumstances in which it sat; and
4.4
The applicant has failed to show that the impugned findings and
recommendations of the Marikana
Commission’s report has direct
and external legal effect on the applicant.
Points
in limine
[5]
The fourth respondent has raised three points
in limine
and
contends that if any one of them is upheld, it would be dispositive
of the application:
5.1
There has been an unreasonable delay by the applicant in the
launching of the review application;
5.2
The recommendations and findings sought to be reviewed by the
applicant have become moot
as a result of the findings of the
Claassen Board of Inquiry, which was constituted pursuant to the
Marikana Commission; and
5.3
The applicant – in accepting before the Claassen Board of
Inquiry that the Marikana
Commission’s report constituted
prima
facie
evidence, electing not to testify
before the Claassen Board of Inquiry but to participate in it and to
subject herself to it –
perempted this review application.
Factual
background
[6]
The factual background to this application is set out in the first to
third respondent’s
‘answering affidavit’ filed in
response to the application after a notice of intention to oppose was
filed by them.
However, in the answering affidavit the first
respondent says that it was filed ‘to provide an overview of
the contextual
facts, in an effort to be of assistance to this
Honourable Court, and to address the averments made by the applicant
herein. .
. . I further state that we shall abide by the decision of
this Honourable Court.’
[7]
The applicant objected to this approach of the members of the
Commission on the basis
that they either opposed the application or
abided the decision of the court. If it was the latter, their
answering affidavit should
be disregarded. However, at
the hearing counsel for the applicant, Mr Mokhare SC informed the
court that the applicant
was no longer persisting with the objection.
Counsel for the first to third respondents, Ms Moroka SC, made very
short submissions
and stated that since the applicant no longer
opposed the filing of the answering affidavit of the first to third
respondents,
this court must consider its contents. The first to
third respondents also accept that it is more appropriate for the
fourth respondent
to respond to the review application.
[8]
When the application for review was launched the applicant did not
cite the fourth
respondent. It was the fourth respondent who applied
for leave to intervene in the application. The application was not
opposed
and this court granted it with cost to be determined at a
later stage. The fourth respondent thereafter filed his answering
affidavit.
[9]
Mr Mokhare SC informed this court that the applicant did not oppose
the late filing
of the fourth respondent’s answering affidavit.
[10]
The fourth respondent, however, takes issue with the late filing of
applicant’s replying
affidavit but says that, if it was
granted, then, certain hearsay allegations contained therein should
be struck out. In light
of the view I take of this matter I do not
deem it necessary to deal with the application to strike out.
[11]
The trigger for the late filing of the replying affidavit was
apparently the fourth respondent’s
heads of argument, which
were filed on 25 July 2018. The replying affidavit was filed some
seven months later on 21 February 2019.
The fourth respondent
contended that this is an extraordinary delay, particularly in
circumstances where the applicant says in
the replying affidavit that
“the President’s answering affidavit is confined to
opposing [the] review application on
legal grounds only.”
Therefore, since no factual matter required investigation and
traversed a delay of seven months was
not warranted.
[12]
The applicant says the fourth respondent himself also filed his
answering affidavit late, to
which she does not object and therefore
the fourth respondent should not raise ‘technical objections’
to the late filing
of the replying affidavit. Again, at the hearing
fourth respondent’s counsel, Ms Pillay SC did not strenuously
object to
its filing.
[13]
I deem it appropriate in the circumstances that condonation should be
granted in respect of both
affidavits bearing in mind the interests
of justice.
[14]
The background to this application is accordingly sketched from the
first to third respondents’
affidavit:
14.1
On 9 August 2012, some of the mineworkers of Lonmin PLC (Lonmin) (a
platinum producer in the district of
Rustenburg in the North-West
Province) embarked on a strike.
14.2
The miners objected to the low salaries and wages paid to them and
demanded a minimum of R12,500.00 (twelve
thousand five hundred rand)
after deductions, as a living wage.
14.3
Members of two trade unions, namely, the National Union of
Mineworkers (NUM) and the Association of Mineworkers
Construction
Union (AMCU) as well as workers who were not members of a union, were
involved in the strike. Although some of its
members took part in the
strike, NUM itself was opposed to the strike and there was, as a
result, conflict between some of the
strikers and the NUM.
14.4
During this period and up until the 16
th
August 2016, there were several incidents of violence involving
security guards employed by Lonmin, the mineworkers (including
amongst themselves), and members of the South African Police Services
(SAPS). This resulted in injury to and the death of members
of SAPS,
Lonmin security guards and mineworkers.
14.5
On 16 August 2012, 33 mineworkers and a family member of a mineworker
were tragically killed at Marikana
[1]
and many other mineworkers were seriously injured in a confrontation
between members of SAPS and the striking mineworkers.
14.6
Subsequent to the events at Marikana, the President of the Republic
of South Africa appointed a Judicial
Commission of Inquiry in terms
of section 1 of the Commissions Act, 8 of 1947. Retired Judge Farlam
was appointed as chairperson
to preside over the Commission and
senior advocates P.D Hemraj and B.R Tokota were appointed as members
of the Commission. They
are the first, second and third respondents
in this application.
14.7
The Commission was mandated to inquire into, make findings, report
and make recommendations concerning the
conduct of the Lonmin PLC,
the SAPS, AMCU, and the NUM and the role they played in the tragedy;
and individuals and loose groupings
in fomenting and/or promoting
conflict and confrontation which may have resulted in the tragedy.
14.8
The terms of reference insofar as they relate to the applicant and
the conduct of the SAPS, are contained
in the Commission’s
mandate, namely:
14.8.1 The nature, extent
and application of any standing orders, policy considerations,
legislation or other instructions in dealing
with the situation which
gave rise to the incident;
14.8.2 The precise facts
and circumstances which gave rise to the use of all and any force and
whether this was reasonable and justifiable
in the particular
circumstances;
14.8.3 To examine the
role played by the SAPS through its respective units, individually
and collectively in dealing with the incident;
and
14.8.4 Whether any act or
omission it directly or indirectly caused loss of life or harm to
persons or property.
14.9
The Commission had the power,
inter alia
, to refer any matter
for prosecution, further investigation, or the convening of a
separate enquiry to an appropriate law enforcement
agency, government
department or regulator, regarding the conduct of certain persons.
14.10 In the
conduct of the proceedings, the Commission followed a
quasi-adversarial procedure. The first respondent was empowered
in
terms of Regulation 5, as the Chairperson, to designate one or more
knowledgeable and experienced persons to assist the Commission
in the
performance of its functions in a capacity other than that of a
member. The Commission appointed evidence leaders and investigators,
to assist in the conduct of its work. The evidence leaders were
required, at the instance of the members of the Commission, to
investigate the facts, lead the evidence of witnesses that the
Commission wished to hear and cross-examine witnesses who testified
at the instance of the various participants in the Inquiry. They were
also required to make submissions on fact and law at the
end of the
hearing of the evidence, to assist the members of the Commission in
the execution of their mandate.
14.11 The
investigations carried out by the evidence leaders and the witnesses
led by them were undertaken at the instance
of the members of the
Commission. The first respondent says it is in this context that the
Commission used some of the submissions
of the evidence leaders as a
framework for the findings in the report.
14.12 The
Commission also heard evidence and legal argument by legal teams
representing the various participants at the Commission.
A report was
compiled and submitted to the President at the end of March 2015.
14.13 After the
release of the Marikina Report (“the Report”) in June
2015, the President acted on its recommendations
and appointed a
Board of Inquiry (“the Claassen Board”) in terms of
section 9 of the South African Police Service Act
68 of 1995. Its
mandate was to conduct an inquiry into the fitness of the applicant
to remain in her post and to investigate
whether she is guilty of any
misconduct in attempting to mislead the Commission.
14.14 The Claassen
Board duly completed its inquiry and filed its report with the fourth
respondent.
14.15
The fourth respondent suspended the applicant in October 2015 and she
remained suspended with full pay and all benefits
forming part of her
remuneration package until, by the effluxion of time, her five year
term of office came to an end on 31 May
2017. (The five-year term
commenced a mere some two months before the Marikana tragedy
occurred.)
The
impugned findings
[15]
The impugned findings and recommendations of the Commission, set out
in prayers 1.1 to 1.3 of
the notice of motion are:
“
1.1
A finding that the leadership of the police, on the highest
level appears to have
taken the decision not to give the true version of how it came about
that the Tactical option was implemented
on the afternoon of 16
August 2012 and to conceal the fact that the plan to be implemented
was hastily put together without POP
inputs or evaluation;
1.1.1
that a decision at the NMF was not
disclosed to the commission;
1.1.2
an inaccurate set of minutes for the
06h30 meeting was prepared and a number of SAPS witnesses testified
before the commission in
support of the incorrect version; and
1.1.3
that there is at least a prima facie
case that the National Commissioner and the Provincial Commissioner
for the North West Province,
who knew the true facts, approved
Exhibit “L”, an SAPS presentation which contained the
incorrect facts.
1.2 A finding that the
media statement dated 17 August 2012
which was read by the
applicant to the media on 17 August
2012 created the
impression of only one shooting incident
and that the most
reasonable conclusion is that the report
which
had been prepared for the President was deliberately
amended
in order to obscure the fact that there had been two
shooting incidents
separate in time and space, and that this
resulted
in deliberate misleading of the public, who were
brought
under the impression that all of the deaths had been
caused at the
confrontation at scene one which they had
seen on television.
1.3
The recommendation that steps be
taken in terms of section 9 of the SAPS Act to inquire into the
fitness to remain in office of
the applicant and whether the
applicant is not guilty of misconduct in attempting to mislead the
commission”
Commissions
of Inquiry
[16]
It would be apposite to mention briefly the legal principles
governing commissions of inquiry.
[17]
The appointment of a commission of inquiry constitutes executive
action, not administrative action.
[2]
The President is not required to consult with the subject-matter of
the inquiry before appointing a commission.
[3]
The function of a commission of inquiry is to determine facts and to
advise the President through the making of recommendations.
[4]
The President is not obliged to follow the recommendations, nor is he
bound by the factual findings.
[5]
[18]
A commission of inquiry is not a court.
[6]
A commission is entitled to receive evidence
or
information
relevant to the issues before it,
[7]
and is entitled to determine its own procedure.
[8]
It has the inherent power to determine how it will perform its
functions.
[9]
It may receive
evidence of any nature, including hearsay evidence and newspaper
reports, and it may “even [receive] submissions
and
representations that are nothing more than opinions”.
[10]
Pre-liminary
points (points
in limine
)
[19]
As I said, the fourth respondent has raised three preliminary points
any one of which, if upheld,
says counsel, would be dispositive of
the review application. Firstly, the unreasonable delay in the
bringing of the review application.
Secondly, that the review
application has become moot. Thirdly, peremption.
Delay
in instituting the review application
[20]
The fourth respondent contends that there has been an unreasonable
delay by the applicant in
instituting this application. It is not in
dispute that the application was launched more than twelve months
after the Marikana
Commission’s report was published.
[21]
The Constitutional Court has stated that review proceedings are to be
instituted without any
undue delay.
[11]
An application for condonation must provide a full and satisfactory
explanation for the entire period of the delay.
[12]
Whether condonation is to be granted depends
inter
alia
on
the following factors:
‘
the
relief sought; the extent and cause of the delay; its effect on the
administration of justice and other litigants; the reasonableness
of
the explanation for the delay, which must cover the whole period of
the delay; the importance of the issue to be raised; and
the
prospects of success.’
[13]
[22]
The impugned report is attacked in only three respects. Firstly, two
of the three attacks are
academic on the bases of mootness and
peremption – which I deal with below. Thus only a small residue
of the applicant’s
case and the relief she seeks is still
alive. Secondly, the delay is substantial - twice the period
applicable under PAJA.
[14]
It
militates against granting condonation. Thirdly, the only reason
advanced for the delay is that the applicant elected to participate
in the proceedings of the Claassen Board of Inquiry, which is a
self-defeating explanation, as I point out below regarding the
second
point
in
limine.
Fourthly,
the importance of the issues to be raised relate exclusively to the
applicant herself in circumstances where her tenure
as National
Commissioner has expired (on full pay), and who has no career in the
SAPS or reputation as police commissioner to defend.
Finally, it
seems to me that the applicant’s prospects of success are
particularly poor, more so after having agreed to participate
in the
Claassen Board of Inquiry on the basis I referred to earlier. On
these grounds the point
in
limine
falls
to be upheld.
Mootness
[23]
The Commission made certain
(prima
facie)
adverse
findings against the applicant. It recommended to the fourth
respondent that steps be taken in terms of
section 9
of the
South
African Police Service Act 68 of 1995
.
[15]
The fourth respondent thereupon appointed a board of inquiry (which
is referred in these proceedings as the ‘Claassen Board
of
Inquiry’ which was chaired by retired Judge Neels Claassen) to
conduct an inquiry into the fitness of the applicant to
remain in her
post and to investigate whether she is guilty of any misconduct in
attempting to mislead the Commission.
[24]
The applicant elected to participate in the proceedings of the
Claassen Board of Inquiry. At
the inquiry, the parties had agreed
that the evidence before the Marikana Commission will constitute
evidence before the Board
of Inquiry. The applicant says it is for
this reason that she elected not to testify before the latter Board
as it would have meant
regurgitating what she had said at the
Marikana Commission of Inquiry.
[25]
The fourth respondent contends that the applicant’s election to
participate in the proceedings
of the Claassen Board of Inquiry and
the latter’s report (which supports the Marikana Commission’s
report), renders
at least the second and third of the three impugned
paragraphs in the Marikana Commission’s report academic. This
quite apart
from confirming these paragraphs’ correctness.
Because the Claassen report confirmed the crucial findings and has
overtaken
the recommendations, the second and third impugned
paragraphs are rendered academic in their entirety. As regards the
third impugned
paragraph the Claassen report confirmed the Marikana
Commission report’s finding. It concluded that the applicant’s
“deliberate attempt to mislead South Africa by amending the
media statement to read as if the tragic incident only occurred
at
scene 1 where the police acted in self-defence is not in
keeping with the duties commensurate to her office. A reasonable
National Commissioner would have known that this amounted to
misrepresentation to the people of the country and would not have
acted in this way.”
[16]
[26]
I turn now to the first impugned paragraph. The Claassen report
concluded that the applicant
did not conceal from the Marikana
Commission “in her initial testimony” the fact “that
a decision was taken during
the evening of Wednesday 15 August 2012
to effect the disarming and dispersal of the strikers the next day on
Thursday 16 August
2012”.
[17]
Thus the finding that “[t]here is at least a
prima
facie
case that the National Commissioner and the Provincial Commissioner
for the North West Province who know the true facts approved
Exhibit
‘L’, SAPS’ presentation, which contained the
incorrect facts” is by implication confirmed by the
Claassen
report.
[27]
The applicant contends that her rights to dignity and just
administrative action have been impaired
and therefore the
recommendations in the Marikana Commission’s report cannot be
considered moot despite the fact that the
fourth respondent has
already acted on them by appointing the Claassen Board of Inquiry. I
do not find this argument persuasive.
[28]
As regards any residual reputational effect of the first impugned
paragraph is concerned, the
relief sought by the applicant cannot be
sustained. The Claassen report is entirely destructive of any such
relief being granted.
The report records that whereas the Marikana
massacre manifested the worst possible policing practices, the
applicant described
it as “the best possible policing”.
[18]
It also analysed all the evidence and concluded that the applicant
“was not a satisfactory witness in all respects”;
was
“ambivalent and contradictory on the topic whether or not the
tactical option was discussed”; “attempt[ed]
to
avoid taking responsibility for the conduct of the police at Marikana
by denying that she took the decision”, and this
“tainted
her evidence to the extent that her credibility is in serious doubt”;
and her self-exculpatory argument “was
disingenuous and
somewhat facile.”
[19]
[29]
Mootness is not surmounted by claiming that rights ‘have been
impaired’. It must
be met by demonstrating that the prejudice
resulting from the contended ‘impairment’ still has
practical effect.
[20]
In my
view the applicant has failed to do so. She merely denies that the
Marikana report did not have ‘tremendous impact’
on her
person and as National Commissioner and says it in fact continues to
have that impact. What this alleged ‘tremendous
impact’
is has not been explained or disclosed.
[30]
The limited relief sought by the applicant relating to the first
impugned paragraph of the Commission’s
report has been
overtaken by the Claassen report. The latter report found that she
did not mislead the Marikana Commission in certain
respects but did
so in other respects.
[31]
As was said in
Rand
Water Board supra,
judicial review does not lie against matters that are moot.
[21]
The Constitutional Court has stated a number of times that a court
may only determine issues which ‘no longer present existing
or
live controversies’
if
the interests of justice so require.
[22]
But, a prerequisite is that any order a court may make will have some
practical effect either on the parties or on others.
[23]
[32]
The applicant contends in her supplementary heads of argument that
her rights to dignity and
just administrative action have been
impaired and therefore the recommendations in the Marikana
Commission’s report cannot
be considered to be moot [despite
the fourth respondent already having acted on them]. She says the
review application is based
on legality and rationality grounds.
However, this contention (of rights to dignity and just
administrative action) is in effect
a reliance on rights that should
be pursued under PAJA or other legislation giving effect to the
rights entrenched in Chapter 2
of the Constitution – not
Chapter 1, which governs legality and rationality.
[33]
In my view, the applicant has failed to establish any subsisting
prejudice resulting from the
Marikana Commission’s report. As I
said, that report has been overtaken by the Claassen report. The
applicant elected to
participate in the proceedings of the Claassen
Board of Inquiry but, as I said, did not give evidence there. It
subsequently made
its report.
[34]
The applicant merely states that she is to have the Claassen report
also subject to review. However,
no further details are provided. In
any event, if she intends to pursue that course then, even more so,
it seems to me, the present
application is doomed to failure. The
Claassen report resulted from the recommendations of the Marikana
Commission. Hence the recommendations
have been rendered moot as they
have been acted upon by the fourth respondent. In any event, neither
the right to dignity nor the
right to just administrative action is
infringed by a preliminary report recommending a subsequent inquiry.
[35]
Counsel for the applicant contended, in the alternative, that
mootness should be overlooked on
the basis of an alleged high public
importance nationally and internationally, of the tragic incident
that occurred at the Lonmin
Mine in Marikana.
[36]
The difficulty I have with this alternative argument is that it is
inconsistent with the express
basis on which the application was
brought. It was not brought in the public interest, but only the four
bases set out in the notice
of motion. Furthermore, the
recommendations of the Marikana Commission are explicitly attacked
only insofar as they relate to the
applicant herself in her own
personal capacity and her then official capacity as National
Commissioner of Police. It is on that
basis that she has approached
this court.
[24]
The applicant
has conflated three issues,
viz,
the
public interest, issues interesting to the public and the applicant’s
private interest. This is inconsistent with the
applicant’s
averment that her focus is on the findings of the Marikana report
against herself. Nowhere in the applicant’s
papers or argument
is any discrete legal issue of public importance alleged to arise
that would affect matters in the future, thus
justifying this
adjudication of the matter in the interest of justice.
[25]
[37]
The point
in limine
that
the application is moot falls to be upheld.
Peremption
[38]
The applicant variously concedes that she had indeed ‘subjected’
[26]
herself to the process of the Claassen Board of Inquiry. She also
‘elected’
[27]
not
to testify before it as it would have constituted a repetition of her
evidence given at the Marikana Commission and she accepted
that the
latter’s report constituted ‘
prima
facie’
evidence against herself).
[28]
[39]
The Constitutional Court has held that once a litigant subjected
himself or herself to a court,
its jurisdiction cannot subsequently
be contested.
[29]
In my view,
a similar consideration would apply with regard to a commission of
inquiry. Thus the submission to the jurisdiction
of the Marikana
Commission is binding on the applicant. It accordingly constitutes a
peremption, and the point
in
limine
on
this ground also falls to be upheld.
Costs
[40]
There is the question of costs of:
40.1.
The fourth respondent’s application to intervene;
40.2
The costs of the application for condonation for the late filing of
the answering affidavit of the fourth
respondent;
40.3
Costs of the application for condonation for the late filing of the
applicant’s replying affidavit;
40.4
The fourth respondent’s supplementary heads of argument; and
40.5.
The costs of the main application.
[41]
The application for intervention by the fourth respondent was
unopposed. Costs were sought only
in the event of opposition to the
application to intervene. Only in the alternative was it prayed for
that they be reserved for
later determination. The application was
granted but the costs were reserved for later determination. In my
view there should be
no order as to costs in the intervention
application.
[42]
I am of the view that there should be no order as to costs for the
applications for condonation
for the late filing of the fourth
respondent’s answering affidavit and the applicant’s
replying affidavit.
[43]
The costs of the supplementary heads of argument of the fourth
respondent should form part of
the costs of the main application.
[44]
In my view, there is no reason why the costs of the main application
should not follow the result,
including the costs of two counsel
where so employed.
[45]
In the result the following order is made:
1.
Condonation is granted for the late filing of the fourth respondent’s
answering
affidavit.
2.
Condonation is granted for the late filing of the applicant’s
replying
affidavit.
3.
The points
in limine
raised by the fourth respondent,
viz,
unreasonable delay in the institution of the review application,
mootness and peremption are upheld.
4.
There is no order as to costs of the application to intervene by the
fourth respondent.
5.
The application for review is dismissed with costs including the
costs of two
counsel where so employed and shall include the costs of
the supplementary heads of argument of the fourth respondent.
RANCHOD,
J
JUDGE
OF THE HIGH COURT
Date
of hearing: 1 September 2020
Date
of judgment:
Appearances:
Appearance for
applicant:
Adv W.R Mokhare SC with Adv Z Manentsa
Instructed by Werksmans
Attorneys
c/o Mabuela Inc.
4
th
Floor,
Charter House
179 Bosman Street
Pretoria
Appearance for first to
third respondents:
Adv K.D Moroka SC with Adv
M.H Mabena SC
Instructed
by The State Attorney
316
SALU Building, Ground Floor
Corner
Francis Baard & Thabo Sehume Streets
Pretoria
Appearance for fourth
respondent:
Adv K Pillay SC with Adv F.B Pelser
Instructed
by The State Attorney
316
SALU Building, Ground Floor
Corner
Francis Baard & Thabo Sehume Streets
Pretoria
[1]
Marikana,
formerly known as Rooikoppies, is a town in Rustenburg local
municipality, Bojanala Platinum District Municipality district
in
the North West province of South Africa.
[2]
President
of the Republic of South Africa v South African Rugby Football Union
2000
(1) SA 1
(CC) at paras 147 and 156. See now section 1(i)(aa) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA), which
expressly
excludes the President’s constitutional power under
section 84(2)(f) of the Constitution to appoint a commission of
inquiry
from PAJA’s definition of administrative action (and
therefore from the application of PAJA, which governs administrative
action).
[3]
Id
at
para 159.
[4]
Id
at
para 146.
[5]
Id
at
paras 146 and 220.
[6]
Dotcom
Trading 121 (Pty) Ltd t/a Live Africa Network News v King NO
2000
(4) SA 973
(C) at para 49; Joubert
et
al
(eds)
The
Law of South Africa
2
nd
ed (LexisNexis, Durban 2003) part 2(2) at para 171.
[7]
S
v Naude
1975
(1) SA 681
(A) at 698B.
[8]
Id
at
698
sup
and
699 A/B.
[9]
Id
at
701
fin-
702
sup.
[10]
Joubert
et
al
(eds)
The
Law of South Africa
2
nd
ed (LexisNexis, Durban 2003) part 2(2) at para 171. See, too,
S
v Mulder
1980
(1) SA 121F-
fin.
[11]
Cape
Town City v Aurecon SA (Pty) Ltd
2017
(4) SA 223
(CC)
at
para 37,
confirming
the refusal of condonation in the context of a one-year delay. Also
Camps
Bay Ratepayer’s and Resident’s Association v Harrison
2011 (4) SA 42
(CC), which confirmed that the legal policy against
undue delay is so strong that a court can and should raise the issue
even
mero
motu.
[12]
Van Wyk
v Unitas Hospital
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 20
.
[13]
Cape
Town City v Aurecon
supra
at para 47
[14]
The
Promotion of Administrative Justice Act 3 0f
2000.
[15]
9
Misconduct by or incapacity of National or Provincial Commissioner
(1)
Subject to this section, subsections (1)
to (8) of
section 8
shall apply
mutatis
mutandis
to any inquiry into
allegations of misconduct by the National or Provincial
Commissioner, or into his or her fitness for office
capacity for
executing his or her official duties efficiently.
(2)
The board of inquiry established by virtue
of subsection (1) shall make a finding in respect of the alleged
misconduct or alleged
unfitness for office or incapacity of
executing official duties efficiently, as the case may be, and make
recommendations as
contemplated in
section 8(6)
(b).
(3)
If the National Commissioner has lost the
confidence of the Cabinet or a Provincial Commissioner has lost the
confidence of the
Executive Council or the National Commissioner, as
the case may be, following on an inquiry in terms of this section,
the provisions
of
section 8(7)
shall apply
mutatis
mutandis.
[16]
Record
pp 1326 – 1327 para 138.6.
[17]
Record
p 1289 para 47.
[18]
Record
p 1326 para 138.5.
[19]
Record
pp 1239 – 1330 para 146.
[20]
See
the Supreme Court of Appeal’s most recent reiteration of the
correct approach to mootness in
Mabotwane
Security Services CC v Pikitup SOC (Pty) Ltd
[2019]
ZASCA 164
(29 November 2019) at para 32 confirming that “what
was stated by this Court in
Rand
Water Board v Ratek Industries (Pty) Ltd
2003
(4) SA 58
(SCA) para 26 demands repetition. The present case is a
good example of this Court’s experience in the recent past
including
unreported cases that there is growing misperception that
there has been a relaxation on dilution of the fundamental principle
… that Courts will not make determinations that will have no
practical effect.”
[21]
Cape
Town City v Aurecon SA (Pty) Ltd
2017
(4) SA 223
(CC) at para 54;
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000
(2) SA 1
(CC) at para 21.
[22]
Sanderson
v Attorney-General, Eastern Cape
1998
(2) SA 38
(CC) at para 17;
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC) at para 11.
[23]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC) at para 11.
[24]
See
e.g Record p 1356 para 47 where the applicant deposes (in her
replying affidavit) as follows: “I wish to make it clear
that
I am not attacking the entire Marikana report at all. My focus is on
the findings made against me. This is much bellied
[sic] by the
prayer in the notice of motion. I deny that I seek to attack the
entire Marikana report and to seek an order setting
it aside. I do
not at all.”
[25]
As
the Supreme Court of Appeal held in
Centre
for Child Law v Hoerskool Fochville
2016
(2) SA 121
(SCA) at para 11, “there are number of cases where,
notwithstanding the mootness of the issues as between the parties to
the litigation, [the court] has dealt with the merits of an appeal.
With those cases must be contrasted a number where the court
has
refused to enter into the merits of the appeal. The broad
distinction between the two classes is that in the former a discrete
legal issue of public importance arose that would affect matters in
the future and on which the adjudication of this court was
required,
whilst in the latter no such issue arose.”
[26]
Paras
4.4 and 30 of applicant’s supplementary heads of argument.
[27]
Applicant’s
replying affidavit at para 23.2.
[28]
Applicant’s
replying affidavit at para 23.1.
[29]
Government
of the Republic of Zimbabwe v Fick
2013
(5) SA 325
(CC) at para 46, in which the Chief Justice held for a
unanimous Court that:
“
A
jurisdictional challenge based only on certain specific grounds
amounts to a submission to jurisdiction, subject to the dismissal
of
those specific concerns raised. In other words, absent those
objections, it is to be accepted that there was a submission
to that
court’s jurisdiction. And that submission to jurisdiction must
always stand. Once a litigant has submitted to the
jurisdiction of a
court, ordinarily, it may not in later or appellate proceedings
dispute that jurisdiction. By parity of reasoning,
once a litigant
has chosen specific grounds for impugning the jurisdiction of court,
it may not in later proceedings attack the
jurisdiction of the first
court on new or fresh grounds.”