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[2021] ZAGPJHC 404
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Zitha v The Minister of Justice and Correctional Services and Others (2021/30167) [2021] ZAGPJHC 404 (13 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2021/30167
Reportable
No
Of
interest to other Judges No
Revised:
Yes
Date:
13/09/2021
In
the matter between:
MBULELO
ZITHA
Applicant
and
THE
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
1
st
Respondent
THE
ACTING AREA COMMISSIONER CORRECTIONAL SERVICES
2
nd
Respondent
(Mr
Henry Makhubela, Boksburg Management Area)
THE
HEAD OF CORRECTIONAL
CENTRE
3
rd
Respondent
(Mr
Lucky Mabhena, Boksburg Correctional Services Centre A)
THE
CHAIRIPERSON OF THE CASE MANAGEMENT COMMITTEE
4
th
Respondent
(Mrs
Thokozile Lekker, Boksburg Correctional Services Centre A)
JUDGMENT
MAIER-FRAWLEY
J
Introduction
1.
This is an application wherein
the applicant seeks an order in the
following terms:
“
1.
That the application be heard as a normal application and that Rule 5
of the uniform rules of court be applied
and that the normal form[s]
and service provided for in the uniform rules may be abridged to that
extent as set forth hereunder.
2.
That the applicable normal procedure is dispensed for the purpose of
the application.
3.
That the court declares the decision made by the respondents in
dismissing the applicant’s
application to have his sentence
converted into Correctional Supervision and to be considered for
placement on Correctional supervision
based on the notion that the
applicant doesn’t qualify because of the violent and aggressive
nature of the crimes(s) he was
convicted for to be a contravention of
the provisions made in section 73 (7) (d) and (e) of the Correctional
Matters Amendment
act 5 of 2011 read together with sections 276
(1)(b) and 276A (3)(a) of the Criminal Procedure Act and thus
unfairly discriminatory
unlawful invalid and inconsistent with the
Constitution.
4.
That the court narrowly clarifies and simplifies the contextual
interpretation of the provisions
made in terms of section 276A (3) a)
(ii) of the criminal procedure Act 51 of 1977.
5.
That the court orders the respondents to process the applicant’s
application to have
his sentence converted into correctional
Supervision and be considered by placement on Correctional
supervision and adhere fully
to the to the provisions made (sic) in
section 73 (7) (d) and ( e) of the Correctional Matters Amendment act
5 of 2011 read together
with section 276(1)(b) and 276A(3) of the
Criminal Procedure Act [the CPA] within 24 hours upon the issuing of
this order.
6.
Costs of the matter.
7.
Further and /or alternative relief. ”
2.
The applicant appeared in
person at the High Court, Johannesburg, in
order to access the virtual hearing conducted on 6 August 2021. He
was previously represented
by Adv. J. Magayi (Legal Aid South Africa)
but on the morning of the hearing, the applicant informed the court
that he had terminated
the services of his Legal Aid representative
due to an irreconcilable difference of opinion that had arisen
between them. Mr Magayi
requested permission to withdraw from the
matter in the circumstances, which request I granted upon being
assured by the applicant
that he was both prepared and well equipped
to argue the matter himself. Although Mr Magayi had prepared and
filed written heads
of argument on behalf of the applicant, the
latter disavowed any reliance thereon. The applicant requested leave
to submit new
heads of argument that he had specially prepared
shortly prior to the hearing. I allowed the applicant’s new
heads to be
received into the record, given that there was no
opposition to such request since the respondents were in default of
appearance
at the hearing, an aspect to which I return later in the
judgment.
Background
3.
The applicant is currently
serving a 28 year sentence in the Boksburg
Correctional centre. He was convicted on the 20th September 2011 of
two counts of attempted
murder, one count of pointing a firearm and
two counts of robbery. He was also convicted of one count of murder
and possession
of an unlicensed firearm as well as possession of
ammunition. He was sentenced to 30 years imprisonment. This sentence
was subsequently
reduced to 28 years on appeal.
4.
Up to the time that this
application was launched, the applicant has
served 9 years and 10 months of his sentence. The applicant alleges
that he was granted
a period of 6 months of ‘special remission’
on the 27 April 2012 by the former President of the country, thereby
reducing
his sentence to 27 years and six months. Assuming the
correctness thereof (albeit in the absence of substantiating
evidence) it
means that if the period of remission is taken into
account, the applicant will have served 10 years and four months of
his 28
year sentence thus far.
5.
The applicant alleges that
his earliest date of release is 19 June
2025, being the date on which he would become eligible for
consideration on parole.
6.
Whilst serving his sentence,
the applicant has improved his academic
qualifications and presently he is a third year law student, studying
through the University
of South Africa (Unisa).
7.
On 2 March
2021, the applicant submitted an application to the Case Management
Committee for his sentence to be converted to correctional
supervision and to be considered for placement under correctional
supervision. This application was lodged in terms of section
73(7)(d)
and (e) of the Correctional Services Act (‘CSA’), read
together with section 276(1)(b) and 276A(3)(a) of the
CPA.
[1]
8.
It is alleged that the fourth
respondent refused to entertain the
application in the following circumstances: On the 5 March 2021 the
applicant was taken to
the office of the fourth respondent, who spent
approximately 3 minutes with the applicant and merely informed him
that:
(i)
he (the applicant) was serving a thirty year sentence (
which was
clearly wrong
);
(ii)
he had killed a person;
(iii)
in her experience, the Department of Correctional Services has never
been approached to process an application
to convert a lengthy
sentence such as the applicant’s sentence to one of
correctional supervision, such procedure usually
applying to
prisoners serving 5 years or less.
9.
On 9 March
2021, in response to the fourth Respondent’s utterances, the
applicant lodged a formal complaint with the third
Respondent, (Head
of Correctional Centre), Mr Lucky Mabhena.
[2]
10.
The applicant met with the third respondent who
informed him that he
does meet some of the conditions for his sentence to be converted,
however such an application could only
be brought in 2034, given that
his sentence would only expire in 2039.
11.
On 30 March 2021, the applicant was furnished with
formal written
reasons as to why his application for conversion was declined.
Reasons cited included:
(i)
The applicant does not qualify due to the aggressive nature of the
crimes for
which he was convicted, namely, murder, attempted murder
and armed robbery, and for which he is serving a term of imprisonment
of 28 years. In this regard, the third respondent stated that ‘
all
these crimes are regarded as aggressive crimes in terms of
B
order
1 Ch 26
subsection 12.1.(a) of the Correctional Services’
;
(ii)
The applicant’s sentence expiry date is 19 September 2039 and
not 19 June 2025;
(iii)
Having regard to the provisions of s 276A(3) of the CPA, the
applicant did not meet the criteria
for his application to be
referred to a court as the remainder of his sentence until expiry
date ‘
exceeds 5 years in line with section73(7)(e) of the
Correctional Services Act 111 of 1998.’
(own emphasis)
12.
On 31 March 2021, Ms Maseko, acting for the applicant,
sent an e-mail
to the second respondent in terms of s 21 of the Correctional Service
Act 11 of 1998, seeking a review of the third
respondent’s
decision and giving the latter 7 days to respond. Up to the time of
the lodging of the present application,
the second respondent has not
replied to the correspondence addressed to him.
13.
On 21 April
2021 the applicant submitted a letter (dated 19 April 2021) to the
second respondent, seeking a review of the third
respondent’s
decision, which application for review was submitted to the Acting
Head of the Correctional Centre on the day,
(Mr Radebe), for onward
submission to the second respondent.
[3]
Mr Radebe instructed the applicant to amend his application as he (Mr
Radebe) was not pleased with the tone of the content recorded
in
paragraphs 16 to 18 thereof.
14.
On 5 May 2021, the applicant submitted an amended
application, which
was received by Ms Bontle Matsebula, who handed same to the third
respondent.
15.
The present application was lodged on 15 June 2021
after the
applicant had exhausted all internal remedies, however, to no avail.
His attempts at reviewing the third respondent’s
decision were
met with no response from the second respondent, both prior to and
after his submission of an amended application
for review.
16.
On 23 June 2021, the Judge President of this division
issued a
directive requiring the respondents to deliver their answering
affidavit/s on or before 14 July 2021 with the applicant
being
directed to deliver his replying affidavit, if any, on or before 23
July 2021, by uploading same onto the CaseLines electronic
platform.
17.
The respondents, who were represented in the matter
by the State
Attorney, failed to comply with the aforesaid directive and
notwithstanding being called upon to do so by service
of a Notice of
bar. Instead, on 3 August 2021, the State Attorney merely addressed
correspondence to the applicant’s Legal
Aid representative, who
was at that stage still representing him, in which the following was
said: “
Please be advised that we’ve since requested
instructions from our client and to date the same has not been
forthcoming. In
the premises, we’ve not been able to file the
requisite answering affidavit herein.’
18.
The respondents were invited in correspondence
addressed by the
registrar of the presiding Judge to the parties (including the State
Attorney) to attend ae virtual hearing of
the matter on 6 August
2021, despite which the respondents all remained in default of
appearance on that date.
Discussion
19.
The grounds on which an internal review of the
third respondent’s
decision was sought, is encapsulated in paragraphs 12- 14 of annexure
‘MZ8A’, where the following
was stated:
“
12.
It is of paramount importance for you to note that I am scheduled to
be released parole on the 13'" of March 2025 upon
reaching my
half sentence, minus the 6 months' special remission of sentence that
I benefited from on the 27th of April 2012, which
was granted by the
former President Jacob Zuma and therefore, meet the criteria of not
more than 5 years until my release date
in future.
13.Furthermore,
I have already served over a quarter of my sentence and therefore
meet the requirements stipulated in section 73
(7) (e) of the
Correctional Matters Amendment Act 5 of 2011.
14.
I find it illogical that according to Mr. Mabhena I can only apply or
qualify to have my sentence converted into correctional
supervision
and be placed on correctional supervision on the 19'"of
September 2034, when I will be left with 5 years until
the expiry of
my sentence, I mean at that time I would have been released on parole
already. Which then begs the question, why
would I apply for
correctional supervision when I would have been on parole for almost
10 years? ”
20.
The Correctional Services Act of 1959 was repealed
and replaced by
the Correctional Services Act 111 of 1998 (‘the CSA). It is the
latter Act that is applicable in this case.
21.
Section 73(7)(d) of the CSA provides that:
“
A person
sentenced to incarceration for a definite period in terms of section
276(1)(b) of the Criminal Procedure Act may not be
placed in
correctional supervision unless such sentence has been converted into
correctional supervision in accordance with section
276A (3) of the
said Act.”
Section
73(7)(e) of the CSA provides that:
“
A person sentence
to incarceration for a definite period under section 276(1)(b) of the
Criminal Procedure Act, may be referred
to a court in accordance with
section 276A(3)(a) of that Act, if the offender has completed at
least a quarter of the effective
sentence and the remainder of the
sentence until sentence expiry does not exceed five years.”
22.
Section 276A (3)(a) in turn provides, in relevant
part, as follows:
“
Where a person
has been sentence by a court to imprisonment for a period-
(i)…
(ii) exceeding five
years, but his date of release in terms of the provisions of the
Correctional Services Act, 1959 (Act 8 of 1959),
and the regulations
made thereunder is not more than five years in the future,
and such a person has
already been admitted to a prison, the Commissioner or a parole board
may, if he or it is of the opinion that
such a person is fit to be
subjected to correctional supervision, apply to the clerk or
registrar of the court, as the case may
be, to have that person
appear before the court
a quo
in order to reconsider the said
sentence.”
23.
The applicant submits that the provisions of section
73(7)(d) and (e)
of the CSA, read together with section 276(1)(b) and 276A(3)(A) of
the CPA, strictly or narrowly stipulate that
any person who has been
convicted and sentenced by a court and who has served a quarter of
his or her sentence and is left with
five (5) years before his or her
future release date, may submit an application for conversion of the
remainder of his or her sentence
into correctional supervision.
24.
To this end, the applicant contends that he satisfies
the
requirements for conversion of his sentence, in that he has served
more than a quarter of his sentence and he is left with
less than
four (4) years to reach half of his sentence and thus he thereby
becomes illegible to be released on parole within the
next five
years.
25.
The
applicant relies on the case of
Price
v Minister of Correctional Services
2008
(2) SACR 64
(SCA) at para 14,
[4]
where Scott JA stated:
“
It follows from the
aforegoing that, in my view, the
Steenkamp
case was wrongly
decided. The ‘date release’ referred to in section
276A(3)(ii) of CP Act means, for the purpose of
a prisoner subject to
the provisions of the 1959 Act relating to his or her placement under
community corrections, the date on
which the prisoner may be released
upon the expiration of his sentence, whichever occurs first. The
appellant is accordingly entitled
to a declaratory to this effect.”
26.
In
Minister of Correctional Services v Johnson NO
2013 (2)
SACR 565
(a Full Court decision of the High Court, Gauteng division)
Fabricius J dealt with the interpretation of the ‘date of
release’
as stipulated in s 276A(3)(ii) of the CPA, which were
determined with reference to the relevant provisions of the
Correction Services
Act of 1998, as they existed at the relevant
time, namely, when the sentences of imprisonment of the third and
fourth respondents
in that case were being considered for conversion
into correctional supervision.
27.
The
court In
Johnson
supra
concluded that it was clear from the CPA that an application for
conversion of a sentence of imprisonment could not be brought
or
granted where the prisoner’s date of release, being the date
upon which the term of the sentence imposed on the particular
offender has expired, was more than five years in future. The learned
judge agreed with the reasoning of the Full Bench in
The
Minister of Correctional Services and Others v Mario Roos
(Case no. A629/12 dated 21 May 2013)
(‘Roos’),
[5]
namely, that the
relevant
date of release must be interpreted to mean the date upon which the
sentence relating to the period of imprisonment expires,
regard being
had to the provisions of s
276 A(3)(a)(ii) of the CPA and
s 73
of the
Correctional
Services Act 111 of 1998
. Such interpretation was also consistent
with the decision in
Swart
v Minister of Correctional Services and others
2011
(2) SACR 217
(WCC), which was affirmed and approved of in
Johnson
supra
.
Suffice
it to say that I am in agreement with the reasoning of the courts in
each of the cases cited above. In accordance with the
principle of
stare
decisis
,
I am in any event bound by the decision of the Full Court in
Johnson
supra.
[6]
28.
The argument that an interpretation that an offender would
only be eligible for conversion of his/her sentence if he/she is
within
five years of the sentence expiry date would lead to the
absurdity than an offender sentenced to imprisonment for a long term,
might be considered and released on parole much earlier than he/she
may have been considered for conversion of his/her sentence
into
correctional supervision, was dealt with and dismissed by the court
in
Swart
supra, at paragraphs 14 to 28 of the judgment. In
para 27 of the judgment, the learned judge concluded that:
“ …
if an
inmate has served more than a quarter of his/her effective sentence,
he/she will not be prejudiced, because he/she may be
considered to be
placed on parole after he/she has served half of his/her sentence. He
is therefore entitled to either benefit,
whichever occurs first,
provided that he/she is found to be suitable. If due to the length of
a sentence, it may be more beneficial
for an inmate, who qualifies to
be considered or even released on parole, rather [than] to be
considered for correctional supervision,
then that may be the proper
course of action to follow.”
29.
In
Johnson’s
matter,
supra,
the third and fourth
respondents, together with others, were convicted of murder and
assault with the intent to commit grievous
bodily harm. This is
relevant, as the applicant was informed that he was not entitled to
bring an application for his prison sentence
to be converted into
correctional supervision,
inter alia
, because of the violent
nature of the crimes he was convicted of.
30.
There is no provision in the CSA or the CPA
which prohibits any person who is convicted and sentenced for
aggressive and/or violent
offence(s), from seeking to have his or her
sentence converted for placement under correctional supervision. In
so far as the third
respondent relied on,
inter
alia
, the provisions of the ‘
B
order’
for refusing the
applicant’s application to initiate the conversion process, the
applicant submitted during his oral address
that such order is
considered to be ‘confidential’ by Correctional Services,
thus he has not been afforded access thereto,
and he has, as a
result, been precluded from placing it before court. This is an
untenable state of affairs, more so by virtue
of the fact that the
respondents have not taken the trouble to place their version before
court. I am, however, cognizant of the
fact that that the conversion
application was ultimately refused for failing to
meet
the required criteria to permit a reconsideration of the applicant’s
sentence in terms of the relevant legislative framework
as set out
above. Based on the authorities cited above, it seems clear that the
present application cannot succeed.
31.
The applicant alleges that the respondents
failed to consider that he has empowered himself academically whilst
incarcerated and
that he has also behaved himself exceptionally
whilst serving his sentence. To this end, he was elected by his
fellow in mates
to represent them in the Sport Recreation Arts
Culture and Library (SRACL), where he serves as the treasurer of the
committee,
a position imbued with trust and which involves the use
and application of financial resources in the facility. These are
however
facts that will be considered by the parole board or
sentencing court in due course. They are not relevant to the present
debate.
32.
The applicant also improved his level of
education and this is an important achievement, one which will
undoubtedly not go to waste
and will inure to his benefit when the
time arrives for a consideration of his placement on parole. After
all, education is one
of the vehicles that will enable the applicant
to fully re-integrate into society in general. These are important
strides which
the applicant has achieved by empowering himself and
they bode well for his future reintegration into society at the
appropriate
time.
33.
The applicant submitted in his papers that
the respondents’ ‘modus operandi’ is such that they
simply ignore letters
sent to them by prisoners, thereby failing
(dismally, I should add) to take responsibility and accountability
for such overt inaction.
This conduct is exacerbated by the failure
on the part of the respondents to furnish any (let alone proper)
instructions to the
state attorney in this matter for purposes of
filing an answering affidavit. One wonders, do they even care about
the fact that
proceedings such as the present, as lawfully initiated
by prisoners such as the applicant, are brought, or indeed the
outcome of
such proceedings? In this regard, a complaint was
addressed to the head of the CMC regarding the manner in which Ms
Thokozile Lekker
attended to the applicant’s application for
the conversion of his sentence, as referred to above. The applicant
was ultimately
persuaded to withdraw the complaint in order to have
his application processed. This, in my view, amounts to nothing other
than
undue manipulation, which is to be deprecated in the strongest
terms. For this reason, a copy of this judgment is to be furnished
to
the respondents in the hope and expectation that such conduct will
not be perpetuated in the future.
34.
The applicant submits that he has followed
all prison protocols to have his application for the conversion of
his sentence properly
considered, including having exhausted all
internal remedies available to him, albeit that same ultimately met
with no success.
For this reason, he approached the court, which he
submits, is vested with the authority to either grant or dismiss his
application.
35.
The
applicant has, however,impermissibly sought to raise a constitutional
challenge to the provisions of
ss 73(7)(e)
of the CSA, read with
267A(3)(a)(ii) of the CPA in his new heads of argument, on a basis
other than that which was sought in the
notice of motion or pleaded
in the founding affidavit, in circumstances where the new heads were
not served upon the respondents
and where they chose ultimately not
to oppose the application at the hearing of the matter on the narrow
basis of the challenge
as brought in the application, as delineated
in the Notice of Motion. In
Public
Servants Association obo Olufunmilayi Itunu Ubogu v Head of
Department of Health, Gauteng and Others
[2017]
ZACC 45
, para [50], the Constitutional court endorsed the cautionary
remarks expressed by Jaftha J (albeit in the minority judgment ) in
SATAWU
v Garvas
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) (Garvas) at para
114, where the learned judge emphasised the need for accuracy in the
pleadings when stating as follows: “
Holding
parties to pleadings is not pedantry. It is an integral part of the
principle of legal certainty which is an element of
the rule of law,
one of the values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet
.”
[7]
36.
From the authorities
cited, it seems clear that a challenge to the constitutionality of
legislative provisions must be properly
pleaded with all interested
persons joined to the proceedings. The fact that the applicant is a
lay person does not in my view
detract from adherence to the
substantive requirement of the law, as set out above.
Concluding
remarks
37.
It is rare that one encounters lay
litigants, such as the applicant, who has exhibited a special flair
for the law, both in his
understanding and articulation thereof, not
least of all, with the degree of aptitude displayed by him during
oral argument presented
at the hearing of the matter. If he continues
along his chosen path in pursuing his legal studies, his future
appears promising.
38.
In the circumstances and for all the
reasons given, the following order is made:
ORDER
1.
The application is dismissed.
A.
MAIER-FRAWLEY
JUDGE
OF THE HIGH COURT,
GAUTENG
DIVISION, JOHANNESBURG
Date
of hearing:
6 August 2021
Judgment
delivered
13 September 2021
This
judgment was handed down electronically by circulation to the
applicant at his nominated email address and to the respondents’
legal representatives by email, and publication on Caselines. The
date and time for hand-down is deemed to be have been at 10h00
on 13
September 2021.
APPEARANCES:
Applicant:
In
person
First
to fourth Respondents:
No
appearance at the hearing.
Attorneys
for Respondents:
The State Attorney, Johannesburg.
[1]
Criminal
Procedure Act, 51 of 1977
, as amended.
[2]
See
Annexure ‘MZ5’.
[3]
See
Annexure ‘MZ8A.’
[4]
In
Price,
however,
the Correctional Services Act 8 of 1959 was still in force and the
interpretation of the words ‘date of release’
in s
267A(3)(a)(ii) was determined by the SCA in reference to the (old)
Correctional Services Act of 1959, which contained a
deeming
provision in s 63(1)(b)(i) thereof which read as follows:
“
Provided
that for the purposes of such recommendations a prisoner’s
date of release contemplated in s276A(3)(a)(ii) of the
CPA, 1977,
shall be deemed to be the earliest date on which a prisoner may, in
terms of this Act, be considered for placement
on parole or the date
on which the prisoner may be released upon the expiration of the
sentence, whichever occurs first.”
[5]
Roos
was in
fact a decision of the Full Court (three judges) in the Western Cape
Division of the High court, and not the full Bench
(two judges)..
[6]
Stare
decisis
is Latin phrase for “
to
stand by things decided
.”
In short, it is the doctrine of precedent. Courts cite stare decisis
when an issue has been previously brought to the
court and a ruling
already issued. Decisions of higher courts (such as a Full court of
three judges) are binding on lower courts
(such as a court
comprising of a single Judge).
[7]
See
too:
Khumalo
v Member of the Executive Council for Education, KwaZulu
Natal
[2013]
ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC).para 90: (per
Zondo J, minority judgment), where the following was said:
“
[90]
…In Gcaba [
Gcaba
v Minister of Safety and Security
and
Others
[2009]
ZACC 26
;
2010
(1) SA 238
(CC);
2010
(1) BCLR 35
(CC).
para 75]
this
Court rejected the notion that, if pleaded facts sustain a claim not
relied on by an applicant, a court may adjudicate such
claim. The
Court said:
“
While
the pleadings – including in motion proceedings, not only the
formal terminology of the notice of motion, but also
the contents of
the supporting affidavits – must be interpreted to establish
what the legal basis of the applicant’s
claim is, it is not
for the court to say that the facts asserted by the applicant would
also sustain another claim, cognisable
only in another court
.”
See
too:
Minister
of Cooperative Governance and Traditional Affairs v De Beer and
Another
(538/2020)
[2021] ZASCA 95
(1 July 2021), para 87, where
the following was said:
“
Likewise,
in
Fischer
v Ramahlele,
it
was stated
:
‘
Turning
then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits,
which
serve the function of both pleadings and evidence, to set out and
define the nature of their dispute and it is for the
court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights
guaranteed by
our Constitution, for “it is impermissible for a party to rely
on a constitutional complaint that was not
pleaded.’ There are
cases where the parties may expand those issues by the way in which
they conduct the proceedings. There
may also be instances where the
court may
mero motu
raise
a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject to
the
proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify
the dispute
and for the court to determine that dispute and that dispute alone.
It
is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important they
may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those issues.
A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties. However,
it is
then for the parties to determine whether they wish to adopt the new
point. They may choose not to do so because of its
implications for
the further conduct of the proceedings, such as an adjournment or
the need to amend pleadings or call additional
evidence. They may
feel that their case is sufficiently strong as it stands to require
no supplementation. They may simply wish
the issues already
identified to be determined because they are relevant to future
matters and the relationship between the parties.
That is for them
to decide and not the court. If they wish to stand by the issues
they have formulated, the court may not raise
new ones or compel
them to deal with matters other than those they have formulated in
the pleadings or affidavits.
This
last point is of great importance because it calls for judicial
restraint
. . . .”
(
footnotes omitted)