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2021
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[2021] ZAGPJHC 418
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Mavudzi v Director Public Prosecutions Gauteng Local Division and Others (2020/42295) [2021] ZAGPJHC 418 (23 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: Yes
REVISED
(revised on 23 September 2021)
14
September 2019
Case
No.: 2020/42295
In
the matter between:
MAXWELL
MAVUDZI
Applicant
and
DIRECTOR
PUBLIC PROSECUTIONS
GAUTENG
LOCAL
DIVISION
First Respondent
GAUTENG
PROVINCIAL COMMISSIONER
SOUTH
AFRICAN POLICE SERVICES
Second Respondent
MR
RAMOLEBANE N.O.
JOHANNESBURG
CENTRAL MAGISTRATES COURT
Third Respondent
JUDGMENT
This
judgment was prepared and authored by Acting Judge Gilbert. It is
handed down electronically by circulation to the parties
or their
legal representatives by email and by uploading it to the electronic
file of this matter on CaseLines. The date for hand-down
is deemed to
be the date it is uploaded to CaseLines (14 September 2021).
The
judgment was revised on 23 September 2021 to correct the
typographical error by substituting “De Villiers AJ” with
“Du Plessis AJ” wheresoever it appears in the judgment.
Gilbert
AJ:
1.
The applicant seeks an order by way of
motion proceedings declaring as null and void a warrant of arrest
issued on 24 March
2015 by the third respondent authorising his
arrest, and consequent thereupon that his arrest on the strength of
that warrant on
31 July 2015 also be declared unlawful.
2.
The first respondent opposed the
proceedings and delivered an answering affidavit deposed to by Mr
Marius Raymond Oosthuizen, an
Acting Deputy Director of Public
Prosecutions, Gauteng Local Division. The notice to oppose and
the answering affidavit was
late. The first respondent sought
condonation for the late delivery. Although the applicant opposed the
condonation application,
I granted the application.
3.
As will appear below, the applicant in his
detailed founding affidavit makes the serious allegation that the
state prosecutor Advocate
Majola made certain misrepresentations to
this court in previous proceedings. These misrepresentations
constitute one of the two
grounds upon which the applicant founds his
present relief challenging the lawfulness of the warrant of arrest.
4.
The applicant challenges the admissibility
of the evidence of Mr Oosthuizen for the first respondent on the
basis that Mr Oosthuizen
has no personal knowledge of the
relevant facts, including of the misrepresentations and that in the
absence of Advocate Majola
giving evidence, the appropriate
inferences are to be drawn against the first respondent and Advocate
Majola. Advocate Majola did
not depose to a confirmatory affidavit.
5.
The applicant launched an application to
strike out the answering affidavit of Mr Oosthuizen,
alternatively portions thereof,
on the basis that same constituted
inadmissible hearsay evidence. A further reason advanced for the
strike out was that, the applicant
contended, as Mr Oosthuizen
did not appear to have consulted with Advocate Majola and other
necessary persons, the answering
affidavit was probably prepared for
signature by someone else and not Mr Oosthuizen. The applicant
further argues that Mr Oosthuizen
was substituted at some point as
the signatory of the affidavit. The applicant’s argument
continues that in those circumstances
the affidavit was effectively
that of someone else, and not of Mr Oosthuizen, notwithstanding that
he had signed the affidavit,
and so effectively resulting in the
answering affidavit being a “
misrepresentation
of what it purports to be
” and a
“
fraudulent misrepresentation”
.
This further reason for the strike out is, in my view, an strongly
worded extension of the challenge that Mr Oosthuizen does not
have
the requisite personal knowledge to depose to the answering
affidavit.
6.
I dismissed the strike out application
because at least certain portions of the answering affidavit are
admissible. I also did not
find it convenient to engage in a parsing
exercise as to what portions of the answering affidavit may be
inadmissible. I did make
it clear though that the dismissal of the
strike out application did not mean that I necessarily accepted what
was stated by Mr Oosthuizen,
particularly when it came to issues
in respect of which he may not have had personal knowledge. As
appears later in this judgment,
I adopted a generally critical
approach towards the answering affidavit.
7.
A further preliminary objection, this time
raised by the first respondent, was that the applicant’s
founding affidavit had
not been properly commissioned. To address
this difficulty, and without objection from the first respondent, the
applicant, who
represented himself personally and is incarcerated,
was sworn in and under oath confirmed the contents of his founding
affidavit
and all other affidavits in these application proceedings.
8.
This then disposed of the
in
limine
or interlocutory issues.
9.
Section 43(1)
of the
Criminal Procedure
Act, 1977
[“CPA”] provides that:
“
(1)
Any magistrate or justice may issue a warrant for the arrest of any
person upon the written application of
an attorney-general, a public
prosecutor or a commissioned officer of the police –
(a)
which sets out the offence alleged to have been committed;
(b)
which alleges that such offence was committed within the area of
jurisdiction of such magistrate
or, in the case of a justice, within
the area of jurisdiction of the magistrate within whose district or
area application is made
to the justice for such warrant, or where
such offence was not committed within such area of jurisdiction,
which alleges that the
person in respect of whom the application is
made, is known or is on reasonable grounds suspected to be within
such area of jurisdiction;
and
(c)
which states that from
information taken upon oath there is a reasonable suspicion that
the
person in respect of whom the warrant is applied for has committed
the alleged offence.
”
10.
The last requirement, in
section 43(1)(c)
,
features centrally in these proceedings, as it did in earlier
proceedings before this court, as the applicant asserts that it
is
this requirement that was not satisfied, and so his arrest is
unlawful. More specifically, the applicant asserts that there
was not
information
taken upon oath
from which the necessary reasonable suspicion could have been formed
that he had committed an offence, with the dispute being what
affidavit or affidavits (as that is where information would be found
taken on oath), if any, existed when the warrant was applied
for and
were relied upon.
11.
The applicant previously, before Du Plessis
AJ, called upon this court to decide the same issue, and the court
per Du Plessis AJ
has done so, against him. Unsurprisingly, the first
respondent contends before me that the matter is
res judicata
and that the applicant cannot now seek,
of this court, to determine the same issue between the same parties.
The applicant’s
response is that he now relies on new grounds
and so the matter is not
res judicata
,
and that in any event the nature of the previous proceedings before
this court precludes an application of the principle. If
res
judicata
does apply, then, the
applicant further argues, the interests of justice require the
principle to be relaxed and that I must determine
the issue afresh on
the new grounds.
12.
The applicant has also set for himself the
somewhat ambitious task of persuading a court to declare the issue of
the warrant of
arrest unlawful by way of motion proceeding. I say so
because ordinarily this is usually done by action as factual disputes
are
readily anticipated. Those witnesses that typically feature in
the process of issuing the warrant, such as the investigating officer
and the person who applies for the warrant such as the state
prosecutor, would not ordinarily be available to or readily cooperate
with the plaintiff, and so would need to be subpoenaed and/or
cross-examined. Motion proceedings do not lend themselves to
resolving
this kind of dispute. Nonetheless, the applicant elected
not once, but twice, to seek declaratory relief by way of motion
proceedings.
13.
To appreciate these challenges and how the
matter came before me, it is necessary to set out some facts.
14.
The applicant was arrested on 31 July
2015 pursuant to a warrant of arrest that was applied for by Mr
Advocate Majola as the
state prosecutor on 17 March 2015 and
issued by the magistrate on what appears to be 24 March 2015.
Advocate Majola had
applied for the warrant at the instance of the
investigating officer Mr Gobozi. The warrant expressly records
“
whereas from written application
by Adv. S Majola there is reasonable suspicion that [the applicant]
on the 31
day
of August 2013 committed the crime of fraud, racketeering and money
laundering
”.
15.
The applicant, together with co-accused,
has been arraigned in this court on various serious offences
including more than 4,000
counts of money laundering, more than 380
counts of fraud including forgery and uttering and/or contravening
various provisions
of the Value Added Tax, 1991 Act and/or Tax
Administration Act, certain sections of the Prevention and Combatting
of Corrupt Activities
Act, 2004 and various other offences. The
criminal trial is now, over five years later, at an advanced stage.
Neither the seriousness
of the charges and the advanced stage of the
trial nor that the applicant has been incarcerated since July 2015
must be allowed
to cloud the central issue, which is whether the
warrant of arrest was issued lawfully.
16.
The
applicant had previously - before his most recent previous
unsuccessful proceedings before Du Plessis AJ - applied,
unsuccessfully,
for bail, followed by unsuccessful applications for
leave to appeal to the Supreme Court of Appeal and the Constitutional
Court.
Although the first respondent wished to make something of
these previous unsuccessful applications preceding the proceedings
before
Du Plessis AJ and that those earlier proceedings also rendered
the present matter
res
judicata
,
there is no evidence before me that the lawfulness of the applicant’s
arrest featured in those early bail proceedings.
[1]
That the applicant may have engaged in several unsuccessful prior
proceedings does not enable me to find that the present proceedings
are abusive or for that reason alone are unmeritorious.
17.
On 10 December 2019 the applicant
launched further bail proceedings on what he contends were ‘new
facts’. Those
are the proceedings that would be heard by Du
Plessis AJ. The relief the applicant sought was two-fold. Apart from
seeking bail,
the applicant sought declaratory relief that the issue
of the warrant of arrest was unlawful. The basis for the declaratory
relief
arose from the applicant’s cross-examination of the
investigating officer, Mr Gobozi during his criminal trial on
5 December
2019.
18.
Mr Gobozi under cross-examination
during the applicant’s criminal trial had testified on 5
December 2019 that the information
under oath that had been relied
upon for purposes of section 43(1)(c) in applying for the warrant on
17 March 2015 were affidavits
by Mr Motsoleni Setswane (“Mr
Setswane”) as complainant on behalf of the South African
Revenue Services (“SARS”).
Mr Gobozi testified that those
affidavits were dated 10 April 2015. But the warrant of arrest
had been applied for on 17 March
2015 and had been issued on
24 March 2015, and so the applicant challenged Mr Gobozi in
cross-examination during the
criminal trial that the April 2015
affidavits could not have been relied upon those affidavits to apply
to the magistrate for the
issue of the warrant as those affidavits
did not yet exist. The applicant explains in his founding affidavit
in these proceedings
that when this incongruity was put to Mr Gobozi
under cross-examination during the criminal trial, Mr Gobozi
then claimed
that he had rather relied upon affidavits made by the
complainant dated 10 October 2014 and that it was these
affidavits that
constituted the information taken upon oath pursuant
to which the reasonable suspicion was formed necessary to have
enabled the
warrant of arrest to have been applied for and issued in
March 2015. The applicant’s argument continued in those
proceedings
that when regard is had to the October 2014
affidavits, they were in any event insufficient to have justified the
formation
of the required reasonable suspicion because he was neither
mentioned by name nor implicated in those affidavits.
19.
Those proceedings were heard by Du Plessis
AJ on 5 March 2020. The applicant was legally represented during
those proceedings.
Advocate Majola represented the first respondent.
20.
An issue squarely raised by the applicant
in the proceedings before Du Plessis AJ on 5 March 2020 was
the lawfulness of
the issue of the warrant based upon Mr Gobozi’s
apparent reliance upon the complainant’s affidavits dated April
2015 and how this could not have been possible as the warrant had
already been applied for on 17 March 2015.
21.
Du Plessis AJ specifically enquired of
Advocate Majola for the first respondent whether he had relied on any
other information taken
upon oath (i.e. other than the complainant’s
affidavits) for the reasonable suspicion required for him to have
applied for
the warrant on 17 March 2015. Advocate Majola
answered that he had also relied upon an affidavit by Mr Gobozi,
as the
investigating officer. It must be remembered that Advocate
Majola is the prosecutor who applied for the warrant and therefore
was
informing the court what he had relied upon in applying for the
warrant.
22.
The Gobozi affidavit was not available to
the court and so Du Plessis AJ postponed the hearing to 12 March
2020 to enable the
Gobozi affidavit to be located. Advocate Majola
had informed the court on 5 March 2020 that the original
affidavit should
still be with the magistrate who ordinarily would
keep the affidavit and that enquiries must take place at the
magistrates’
court. Advocate Majola also said that the State
may have a copy, but it may be locked away in a storeroom and that it
would be
like “
looking [for] a
needle in a haystack”
.
23.
When the hearing resumed on 12 March
2020 before Du Plessis AJ, it transpired that the original Gobozi
affidavit could not
be found at the magistrates’ court.
Advocate Majola was nevertheless able to hand up a copy of the
affidavit. It is not clear
from the papers how Advocate Majola
located the copy of the Gobozi affidavit, particularly given his
expressed hesitation that
it would be found. Although the papers
before me included a transcript of the proceedings that took place
before Du Plessis AJ
on 5 March 2020, I was not furnished with a copy
of the transcript of the proceedings of 12 March 2020.
24.
But what the applicant states under oath is
that Advocate Majola did hand up the copy of the Gobozi affidavit and
notwithstanding
objection from the applicant’s then legal
representative, Du Plessis AJ accepted the affidavit.
25.
On 17 April 2020 this court per Du
Plessis AJ ruled that:
“
On
a balance of probabilities, I am of the view that this warrant has
been lawfully issued. I therefore rule that the point in limine
is
dismissed
.”
26.
It is clear that the point
in
limine
that had been raised was the
lawfulness of the warrant. The court accordingly has found against
the applicant on that issue. It
is the same warrant that the
applicant now seeks to again challenge as having been unlawfully
issued.
27.
Du Plessis AJ also refused bail.
28.
Du Plessis AJ in his judgment of 17 April
2020 does refer to and acknowledge that he had regard to the Gobozi
affidavit, which
is described as Exhibit B in his judgment. But
it appears from the judgment that further documents had been placed
before
the court. These included the October 2014 complainant
affidavits. Du Plessis AJ in his judgment, after referring to the
Gobozi
affidavit as Exhibit B, stated “
[w]hat
was also submitted to me were affidavits by Mr Setswane from the
South African Revenue Service (SARS) that was commissioned
in October
2014 as part of his investigation on behalf of SARS. He is also the
complainant in the trial.”
29.
Du Plessis AJ continued in his judgment
that:
“
The
warrant of arrest before me was issued by a magistrate on application
by the prosecution long after October 2014. An allegation
in the
application for the warrant is to the effect that there is
information under oath of a reasonable suspicion that the second
applicant committed certain crimes or offences.
”
30.
It is clear from the judgment that Du
Plessis AJ did not rely only upon the Gobozi affidavit that had been
handed to the court by
Adv. Majola on 12 March 2020 but that he
had regard to the October 2014 affidavits.
31.
The applicant sought leave to appeal the
judgment of Du Plessis AJ. The application for leave to appeal
was subsequently heard,
and dismissed on 20 August 2020.
32.
Du Plessis AJ in refusing leave to
appeal recorded in his judgment that:
“
On
12 March 2020 I ruled that the [applicant] was arrested on a valid
warrant of arrest. I therefore proceeded to hear the bail
applications. On 19 March 2020 I dismissed his
applications.
”
33.
Du Plessis AJ specifically confirmed that
he had decided the issue of the lawfulness of the warrant of arrest,
albeit that the proceedings
before him were bail proceedings.
34.
The applicant applied unsuccessfully for
leave to appeal to the Supreme Court of Appeal, but that application
too was unsuccessful.
The applicant informed me that he did not make
an application to the Supreme Court of Appeal for leave to adduce new
or further
evidence in support of the appeal but that instead he
elected to rather approach this court with his now new evidence
because of
what he termed “
concurrent
jurisdiction, of this court to consider that new evidence
.”
The first respondent’s counsel had no objection to the factual
accuracy of what was told to me by the applicant.
35.
I now turn to what the applicant contends
are those ‘new’ facts that he argues enables this court
to now again consider
the lawfulness of his arrest.
36.
The first set of new facts is what the
applicant describes as the evidence given by Mr Gobozi under
cross-examination during the
criminal trial on 5 December 2019 and 20
August 2020 that the information relied upon under oath to apply for
the warrant in March
2015 was the April 2015 complainant affidavits.
Clearly the cross-examination of 5 December 2019 cannot be ‘new’
–
it had existed at the time for the proceedings before Du
Plessis AJ and was pertinently relied upon by the applicant in those
proceedings.
These ‘new’ grounds then must be limited to
the further cross-examination of Mr Gobozi, on 20 August 2020.
37.
The second set of new facts that the
applicant now relies upon is what he contends was a
misrepresentation, effectively by omission,
by Advocate Majola who
argued the application on behalf of the first respondent before Du
Plessis AJ on 12 March 2020.
38.
The applicant states under oath, and this
is supported by the transcript, that Advocate Majola assured Du
Plessis AJ that the Gobozi
affidavit existed and that he relied upon
it in applying for the warrant. This appears from the following
exchange between the
court and Advocate Majola on 5 March 2020, which
was specifically extracted from the transcript and included in the
body of the
applicant’s founding affidavit:
"COURT: Yes. So
you say there was an affidavit and that affidavit on which the
warrant was requested was an affidavit by the
investigating officer
Mr Gobozi?
MR MAJOLA:
Investigating officer, Mr Gobozi.
COURT: Yes.
…
"COURT: But I
have your assurance there was a warrant, there was an affidavit by
the investigating officer and that was the
affidavit on which the
warrant was requested?
MR MAJOLA: Correct,
M'Lord and...
…
"COURT: But you
say the original is in the possession of the Magistrate?
MR MAJOLA: The
magistrate keeps the original and then they give
the......(intervenes).
COURT: Well obviously
I would like to see the original.
Mr MAJOLA: Yes.”
39.
The applicant then further states in his
founding affidavit that at the resumed hearing on 12 March 2020 Du
Plessis AJ accepted
the Gobozi affidavit into evidence on its mere
production by Advocate Majola despite objections by his then legal
representative,
including to its authenticity and that no factual
basis had been laid for it to be tendered from the bar. I repeat that
have not
been provided with the transcript of what took place on
12 March 2020 but in the absence of any evidence to the contrary
I
accept what the applicant says transpired on that day.
40.
I have no reason to doubt the applicant’s
version that Advocate Majola persisted on 12 March 2020 in his
assurance that
he relied upon the Gobozi affidavit for the necessary
reasonable suspicion so as to approach the magistrate for the issue
of the
warrant of arrest. Advocate Majola, who self-evidently has
personal knowledge of what transpired both in relation to the issue
of the warrant and what transpired before Du Plessis AJ on 5 and 12
March 2020, did not give any evidence to the contrary in these
proceedings.
41.
To repeat, the warrant was applied for on
17 March 2015 and appears to have been issued on 24 March
2015. So, the applicant
argues, both him and his then legal
representative assumed on 12 March 2020 when the hearing resumed
before Du Plessis AJ that
the Gobozi affidavit must have pre-dated
17 March 2015 as how else could Advocate Majola have relied upon
that affidavit if
it had not then already existed.
42.
The applicant states in his founding
affidavit that it was only after Du Plessis AJ “
had
already finalised [his] applications
”
and had dismissed them that he noticed that the Gobozi affidavit was
dated 23 March 2015. The applicant
states that this
is the date of the Gobozi affidavit because that is the date
reflected on the affidavit when the affidavit was
deposed to before
the commissioner of oaths.
43.
The difficulty for the first respondent is
now apparent. How could Advocate Majola have relied upon and have
assured Du Plessis
AJ that the Gobozi affidavit existed and that he
had relied upon the Gobozi affidavit when applying for the warrant on
17 March
2015 if that affidavit had only been deposed to on
23 March 2015. The applicant squarely raises this in his
founding affidavit
in these proceedings and makes it plain that
Advocate Majola should have informed the court on 12 March 2020
when he handed
up the Gobozi affidavit that it was dated 23 March
2015 and that this would have immediately called into question how
that
affidavit could have been relied upon for the reasonable
suspicion necessary in terms of section 43(1)(c) of the CPA for the
issue
of warrant on 17 March 2015. The applicant argues that as
a officer of the court, Advocate Majola was duty bound to draw this
difficulty in relation to the date to the court and that it could not
have been reasonably expected of the applicant or his then
legal
representative in the cut and thrust of the proceedings on 12 March
2020 to have noticed any discrepancy in the date.
44.
The applicant then says as follows in his
founding affidavit:
“
69.
From his exchanges with the learned Judge, as reflected in paragraphs
42 to 46 hereinabove, it is clear that Advocate
Majola assured his
Lordship that he relied on the [Gobozi affidavit] to sign the
[application for the warrant of arrest] on 17 March
2015. On the
facts it could not have existed.
70.
One cannot resist inferring that on the facts Advocate Majola misled
the bail court or was reckless to the truthfulness
or correctness of
[the Gobozi affidavit]
.”
45.
These are extremely serious allegations
being directed at Advocate Majola, who is both an advocate and a
state prosecutor. It would
have been expected of Advocate Majola to
squarely deal with these serious allegations levelled against him.
Instead, Advocate Majola
did not give any version under oath in the
proceedings before me. Instead, Mr Oosthuizen, who has no
personal knowledge on
this issue, filed an answering affidavit.
Notably, no confirmatory affidavit was deposed to by Advocate Majola.
In any event
the transcription of 5 March 2020 speaks for itself. The
applicant’s evidence is left unrebutted as to the
representations
that had been made by Advocate Majola to the
court.
46.
This is what Mr Oosthuizen, who has no
personal knowledge, had to say in response to these serious
allegations:
“
53.1
The contents of these paragraphs are denied.
53.2
It is inconceivable that the investigating officer would obtain the
warrant for the arrest of the applicant where no
case existed against
him. The legal requirement in terms of section 43(1) is that
there must exist a reasonable suspicion
that an offence had been
committed. Such information must be under oath. These requirements
were complied with hence the issuing
of the warrant of arrest by the
magistrate.
”
47.
This is obviously not a satisfactory
response to the serious allegations. Mr Oosthuizen in his
answering affidavit sidesteps
the issue and instead advances reasons
why the warrant of arrest was nonetheless lawfully issued and why the
matter is in any event
res judicata
.
That may be so but what is entirely lacking is any attempt to deal
with these serious allegations directed against Advocate Majola.
48.
I have only identified two paragraphs in
the applicant’s founding affidavit dealing with the averred
misrepresentation by
Advocate Majola to Du Plessis AJ. The
thrust of the founding affidavit – the ‘new evidence’
that forms
the primary basis of the application – is the
averred misrepresentation. It is also the central feature in the
applicant’s
replying affidavit and his heads of argument.
49.
Advocate Majola has not taken this court
into his confidence and informed the court of his version. No reason
is given why Advocate
Majola, who should be the central witness, did
not depose to the answering affidavit, or at the very least furnish a
confirmatory
affidavit.
50.
The applicant submitted that I am to draw
the appropriate negative inferences against Advocate Majola and
the first respondent
and to find that the misrepresentations asserted
by him in his founding affidavit as having been made by
Advocate Majola are
well-founded.
51.
There may be an innocent explanation. It
may be that the date of commissioning of the Gobozi affidavit of
23 March 2015 was
a typographical error and that it had been
deposed to earlier, particularly as there is a typed date on the
affidavit of 23 February
2015. There is also the evidence of the
further cross-examination of Mr Gobozi by the applicant on
20 August 2020 during
the course of the trial and which the
applicant has disclosed in his founding affidavit. Mr Gobozi was
again challenged on 20 August
2020 as to the date of his
affidavit, and appears to advance a version that the date of
23 March 2015 “
might be an
error
” and that the correct date
was 3 February 2015, which would obviously pre-date
17 March 2015. But the typed
date is 23 February 2015 and
not 3 February 2015 and the commissioning is reflected to have
taken place on 23 March
2015. It would have been expected of
both, or at least either, of Advocate Majola or Mr Gobozi to have
given their version under
oath in these proceedings on this central
issue as to the date of the Gobozi affidavit that features squarely
in the representations
made by Advocate Majola to the court on 5 and
12 March 2020, and which is also the focus on the present proceedings
before me.
52.
The situation faced by this court is that
the two central witnesses involved in the process of issuing the
warrant of arrest, namely
Advocate Majola who applied for the
warrant on 17 March 2015 and Mr Gobozi on whose affidavit
Advocate Majola apparently
relied in applying for the warrant have
not given any evidence. Particularly disconcerting is the failure of
Advocate Majola
to do so given that he is a officer of the court
and where he has been accused of serious misrepresentations.
53.
In
the circumstances, and for purposes of these proceedings, I accept
that the applicant has established the misrepresentations
upon which
he relies. These are motion proceedings and the only version placed
before me is that of the applicant. A bare denial
in an answering
affidavit by someone with no personal knowledge does not suffice to
create a genuine factual dispute.
[2]
A
denial
will particularly be inadequate for creating a genuine dispute of
fact
where
the
person making the denial has
in
his
or her possession the
relevant
facts
to
amplify
the
denial,
[3]
which in this instance is in the form of Advocate Majola’s
personal knowledge of what happened. The applicant’s version
is
not so inherently improbable or untenable that I can reject it –
to the contrary, it is consistent with such other evidence
as there
is, including the transcription of the court proceedings on 5 March
2020 and such other material as has been placed
before the court by
the applicant in his affidavits.
54.
Having now found for purposes of these
proceedings that the applicant has established the
misrepresentations, the next question
is whether those can now be
relied upon by the applicant to seek of this court to find that his
arrest was unlawful.
55.
This requires a closer consideration of the
challenge raised by the first respondent that the judgment of Du
Plessis AJ is
res judicata
of the matter before me.
56.
Res judicata
means
‘a matter judged’. It is in the public interest that once
a matter has been judged, it cannot be judged again.
Claassen
defines
res judicata
as:
“
[a]
case or matter is decided. Because of the authority with which in the
public interest, judicial decisions are invested, effect
must be
given to a final judgment, even if it is erroneous. In regard to
res
judicata
the
enquiry is not whether the judgment is right or wrong, but simply
whether there is a judgment.”
[4]
57.
For
the defence of
res
judicata
to succeed i.e. to find that a matter has already been adjudged, and
so cannot be adjudged again, the matter must be “
between
the same parties, in regard to the same thing, and for the same cause
of action”
.
[5]
58.
The
courts recognise that application of
res
judicata
has the potential to work injustice. In order to avoid injustice, in
certain instances the court stresses that the three requirements
must
be strictly satisfied.
[6]
In
other instances, the requirements are relaxed, and an absolute
identity of relief and the cause of action is not required, in
what
is known as issue estoppel.
[7]
But in turn the relaxation of the three requirements too can work
hardship, and so “
[e]ach
case will depend on its own facts and any extension of the defence
will be on a case-by-case basis … Relevant considerations
will
include questions of equity and fairness not only to the party
themselves but also to others…”
[8]
59.
In
the circumstances, the three requirements for
res
judicata
must not be read overly literally or applied dogmatically. For
example, in
Fidelity
Guards Holdings (Pty) Ltd v PTWU & others
[9]
,
in relation to the requirement of “
the
same cause of action”
,
Myburgh JP for the Labour Appeal Court held that:
“
The
cause of action is the same whenever the same matter is in
issue:
Wolfaardt v
Colonial Government
(1899)
16 SC
250
at 253. The same issue must have
been adjudicated upon. An issue is a matter of fact
or
question
of
law
in
dispute
between
two
or
more
parties
which a court is called upon by the
parties to determine and pronounce upon in its judgment and is
relevant to the relief sought:
Horowitz v Brock and others
1988
(2)
SA
160
(A)
at
179F–H.”
60.
In determining whether the present matter
has already been adjudged by Du Plessis AJ, in both proceedings the
applicant seeks the
same thing: he seeks that the issue of the
warrant for his arrest issued on 24 March 2015 be declared invalid
and so that his arrest
is unlawful. It is based on the same cause of
action: in both matters, the applicant relies upon the requirement of
section 43(1)(c)
of the CPA not having been fulfilled. To use the
phraseology from
Fidelity Guards
,
the “
same issue [-] the same
matter of fact
or
question
of
law”
is in dispute.
The
applicant asserted both in the previous proceedings and these
proceedings that there was no information taken upon oath from
which
the necessary reasonable suspicion could have been formed, in
particular what affidavit or affidavits (as that is where information
would be found taken on oath), if any, existed when the warrant was
applied for and were relied upon.
61.
The
applicant does not raise an new cause of action or a new issue, as
properly understood, for purposes of avoiding the matter
being
res
judicata
.
That Mr Gobozi subsequently testified on 20 August 2020 in the
applicant’s criminal trial and the applicant now wishes to
use
that evidence to set aside the same warrant of arrest on the same
basis – alleging non-compliance with section 43(1)(c)
–
does not constitute a new issue or create a new cause of action.
Rather it is further evidence in support of the same relief
based
upon the same cause of action. Reliance on further or new evidence
does not overcome the matter being
res
judicata
.
To the extent that the applicant wished to rely on that evidence, his
remedy was to seek to place that evidence before an appeal
court.
[10]
62.
Similarly that Advocate Majola
misrepresented by omission to Du Plessis AJ that the Gobozi affidavit
predated the issue of the warrant
does not constitute a new issue or
create a new cause of action. Rather it is a further ground to
contend that the warrant was
unlawfully issued as section 43(1)(c)
had not been satisfied. Again, if the applicant wished to rely on
that “new”
evidence, his remedy was to seek to place that
evidence before an appeal court. To the extent that the applicant
contends that
the misrepresentation effectively resulted in the
judgment of Du Plessis AJ being the product of and so vitiated by
fraud, that
too does not make the issue not adjudged, whatever effect
that misrepresentation may have for founding rescission of the
judgment.
63.
The applicant argued that the parties are
different and so the matter cannot be
res
judicata
. This is because, the
applicant argues, Du Plessis AJ determined the issue in what were
bail proceedings, and so only the State
was an opposing party to
those proceedings. In contrast, the applicant argues, in the present
proceedings he has in addition cited
the second and third respondents
(with the State in the bail proceedings being the first respondent in
the present proceedings).
In my view, the additional citation of the
second and third respondents in the present matter does not render
the matter not
res judicata
.
As appears above, the requirements for
res
judicata
must not be applied
mechanically. Du Plessis AJ in dismissing the declaratory relief and
this court in finding that the matter
has already been adjudged,
prejudices neither the second nor third respondents as the warrant
and the arrest stands.
64.
The applicant also argues that the
principle of
res judicata
cannot
apply because the nature of these proceedings and those before Du
Plessis AJ are different, as are the courts. The applicant
argues
that these are civil proceedings before a civil court whereas the
proceedings before Du Plessis AJ were bail proceedings
before a
criminal court.
65.
I
do not understand the applicant’s argument to be that
res
judicata
cannot apply as a matter of principle in criminal cases.
Res
judicata
applies in both civil matters and criminal cases. As observed in
Molaudzi
,
[11]
while in civil matters the ‘cause of action’ must be the
same, in the criminal context the ‘cause of action’,
is
more aptly regarded as the conviction or sentence as a whole, and so
“
the
general principle of res judicata in the criminal context is that
once the application for leave to appeal is dismissed, this
is a
judicial decision, which is final and determinative… an
accused who has been convicted and sentenced, generally may
not
appeal against the decision more than once – despite changing
the grounds of appeal.”
66.
Rather I understand the applicant’s
argument to be that a determination in criminal proceedings as to the
lawfulness of the
warrant cannot be
res
judicata
in relation to a determination
of the same issue in civil proceedings. This argument rests on the
proposition that a determination
in criminal proceedings of an issue
cannot be
res judicata
of the same issue in civil proceedings, and
visa
versa
.
67.
The parties describe the proceedings before
Du Plessis AJ as bail proceedings. In
S
v Botha en ‘n ander
2002 (2) SA
680
(SCA) the Supreme Court of Appeal had to decide whether bail
proceedings were civil proceedings. Vivier AJA referred to the
following
dicta from
Sita and Another v
Olivier NO and Another
1967 (2) SA 442
(A) at 449B - E:
“
It
is in my view not the form of the procedure adopted but the
subject-matter of the proceedings which determines their character
as
either a civil or criminal matter. . . . Nor in my view does the fact
that the relief was sought by way of a declaratory order,
interdict
and mandamus make the proceedings before the Court a quo a civil
matter originating in that Court.”
68.
In
S v Mohamed
1977 (2) SA 531
(A) the Appellate Division, applying
Sita
,
found that bail appeal proceedings, although civil in form, were
criminal in substance as those proceedings “
orginate
in and are closely associated with the accused’s arrest,
detention and prosecution of a criminal offence”.
Similarly
in
S v Absalom
1989 (3) SA 154
(A) the court found that a condonation application
for the late filing of an appeal was so closely associated with the
accused’s
conviction, sentence and appeal that it constituted
criminal proceedings.
69.
Vivier
AJA in
Botha
,
applying
Mohamed
and
Absalom
found that bail proceedings did not constitute civil proceedings.
[12]
70.
I therefore accept that bail proceedings
are criminal proceedings.
71.
Although
section 6(1)
of the
Superior Courts Act, 2013
provides for a single
High Court of South Africa, consisting of various Divisions, the Act
does distinguish the constitution of
the High Court as a court of
first instance when arriving at a decision in a civil matter (when it
is to before a single judge,
subject to certain exceptions)
[13]
and the constitution the High Court as a court of first instance when
arriving at a decision in a criminal case (when the court
is to
constituted in the manner prescribed in the applicable law relating
to procedure in criminal matters).
[14]
As Du Plessis AJ was hearing the applicant’s bail application
as a court of first instance, for which provision is made in
the
Criminal Procedure Act, I
am also prepared to accept that Du Plessis
AJ was sitting as a court of first instance in a criminal case.
72.
But
does it make any difference that Du Plessis AJ made the determination
of the issue of the lawfulness of the arrest in criminal
proceedings?
In my view not, at least on these facts in this instance. Whatever
the form or nature of the proceedings before Du
Plessis AJ, the
applicant chose to place the issue of the lawfulness of his arrest
squarely before that court to decide, and it
decided the issue. The
applicant cannot complain at any prejudice he may have suffered
because he sought that determination of
a judge sitting in a criminal
matter
[15]
rather from a judge
sitting in a civil matter. The applicant did not seek the
determination as an ancillary part of the bail proceedings,
but as
distinct relief, which if granted would have rendered the bail
proceedings academic as the applicant sought his release
from custody
if his arrest was declared unlawful.
73.
The applicant is not entitled, in my view,
to have two bites at the cherry – he cannot seek in criminal
proceedings an order
declaring his arrest unlawful based upon
section
43(1)(c)
not having been satisfied, and when he fails in those
proceedings, to seek the same relief again based upon
section
43(1)(c)
not having been satisfied in civil proceedings. Consider the
position if the applicant had succeeded before Du Plessis AJ and his
release was ordered. The State could not contend that because those
were criminal proceedings, the judgment is of no consequence
and
could be ignored. The parties would be bound such a judgment, as they
are now bound by the judgment that found that the arrest
was lawful.
74.
If there is a difficulty with Du Plessis AJ
having determined the issue in criminal proceedings (and in respect
of which I cannot
and do not make a finding as I am not a court of
appeal), the order stands and cannot be ignored. I am also mindful
that the principle
of
res judicata
must not be applied rigidly where it may work an injustice, which is
considered more closely below. But I do not find that applying
the
principle in respect of the issue adjudged in the criminal
proceedings to the present civil proceedings will work an injustice.
75.
A further ground relied upon by the
applicant why the issue of the lawfulness of the issue of the warrant
can be revisited is that
this is a suitable case to relax the
application of
res judicata
.
The applicant submits that the new facts or evidence that he relies
upon, constituted by the misrepresentation of Advocate Majola,
are sufficient to allow this court to find that the application of
res judicata
must
not preclude this court, in the interests of justice, from revisiting
the issue.
76.
In
Molaudzi
[16]
,
Theron AJ for the Constitutional Court emphasised that “
[t]he
interests of justice is the general standard, but the vital question
is whether there are truly exceptional circumstances”
.
[17]
77.
Theron AJ held:
“
Where
significant or manifest injustice would result should the order be
allowed to stand, the doctrine ought to be relaxed in terms
of
sections 173 and 39(2) of the Constitution in a manner that permits
this Court to go beyond the strictures of rule 29 to revisit
its past
decisions.
This
requires rare and exceptional circumstances, where there is no
alternative effective remedy
.
This accords with international approaches to res judicata. The
present case demonstrates exceptional circumstances that cry out
for
flexibility on the part of this Court in fashioning a remedy to
protect the rights of an applicant in the position of Mr
Molaudzi.”
[18]
78.
Molaudzi
was
truly exceptional as in that matter there simply was no option open
to the applicant in order to obtain appropriate relief other
than a
relaxation of the principle of
res
judicata
.
79.
As appears above, the applicant seeks to
adduce further grounds or evidence why the warrant of arrest was
unlawfully issued because
of non-compliance with section 43(1)(c).
80.
In
R
v D and another
1953
(4) SA 384 (A), the then Appellate Division found, in the
context of a dismissal of an appeal against conviction
and sentence,
that the decision is final and cannot be reopened, except, possibly,
on the ground that it was obtained by fraud
and that decision stands
until reversed or varied by the appeal court.
[19]
The Appellate Division went further and pointed out that the proper
course to adopt is for the appellant to apply to the appeal
court for
leave to adduce further evidence before that appeal court and
to set down that application and the appeal together
for hearing.
[20]
81.
Section 19
of the
Superior Courts Act, 2013
in setting out the powers of the
Supreme Court of Appeal in exercising appeal jurisdiction expressly
provides that the appeal court
can receive further evidence.
Section
17(2)(f)
of the
Superior Courts Act provides
for a reconsideration of
the refusal by the Supreme Court of Appeal of an application for
leave to appeal by the President of the
Supreme Court of Appeal in
exceptional circumstances, which may include upon the basis of new
evidence even after the application
has been dismissed,
[21]
in both civil and criminal matters.
[22]
82.
The
applicant argued that exceptional circumstances are present as the
order was procured by fraud. A criminal matter cannot be
reopened
once the appeal has been disposed of except, possibly, when a fraud
had been practised on the court.
[23]
This is in accordance with the established principle in our law that
a judgment can be set aside on the ground of fraud provided
that the
applicant can prove the requirements to do so.
[24]
Senior counsel for the first respondent made the point that this
avenue was open to the applicant, through the making of a substantive
application for rescission.
83.
In my view, the applicant has not made out
truly exceptional, or even exceptional, circumstances for the
relaxation of the principle.
As appears above, and accepting that the
applicant has for present purposes established the misrepresentation
upon which he relies,
there were or are avenues available to the
applicant to make use of that additional evidence as well as the
additional evidence
given by Mr Gobozi during the criminal trial on
20 August 2020. As appears above, the applicant chose not to make an
application
to adduce such further evidence on appeal when applying
to the Supreme Court of Appeal for leave to appeal.
84.
I do not suggest that such additional
evidence is sufficiently cogent to persuade an appeal court to
entertain the fresh evidence
or for a court to find that the judgment
of Du Plessis AJ is to be rescinded. Rather the point is that there
were or are avenues
open to the applicant. This can be contrasted to
Molaudzi
where there was no other remedy.
85.
The applicant, perhaps realising his
difficulty late in the day, sought of this court to rescind and set
aside the order of Du Plessis
AJ. This reformulated relief appears
for the first time in the most recent draft order uploaded by the
applicant to the electronic
court file. It does not feature in the
notice of motion, or any intended amendment of the notice of motion.
No substantive application
has been made for rescission. As stated,
the relief that the applicant seeks in his application is a
declarator as to the lawfulness
of the warrant and his arrest.
86.
The applicant argued that provided the
appropriate factual basis had been made out in his founding
affidavit, it did not matter
that he did not specifically in his
notice of motion ask for rescission of the judgment based upon, for
example, fraud. In my view,
it would be prejudicial to the first
respondent to treat the applicant’s application as one for
rescission. A rescission
application, based upon fraud or otherwise,
has its own distinct requirements and those have not been properly
ventilated.
87.
The interests of justice do not cry out in
the present circumstances for the application of
res
judicata
to be relaxed. The order of Du
Plessis AJ stands unless and until set aside.
88.
I
therefore find that the matter of the lawfulness of the issue of the
warrant of arrest on 24 March 2021 has already been adjudged
i.e. is
res
judicata
.
[25]
89.
In the circumstances, the application
is to be dismissed.
90.
The first respondent’s senior counsel
submitted that costs should follow the result and that the applicant
should be ordered
to pay the costs.
91.
In my view, the conduct of the first
respondent is regrettable. As I have emphasised, serious allegations
were directed at Advocate Majola’s
conduct and which went
substantively unchallenged. This allegations featured centrally in
the applicant’s founding affidavit.
That Advocate Majola
was being called upon to explain himself is clear from
the applicant’s affidavits and heads
of argument. The
applicant’s challenge to Mr Oosthuizen’s evidence as
being hearsay was not a technical objection
but went to the heart of
the applicant’s case, which was that Advocate Majola as a
central witness was not giving his
version in response to the
allegations that he had misrepresented by omission to Du Plessis AJ
that the Gobozi affidavit predated
the application for the warrant.
Neither the first respondent nor Advocate Majola has engaged with
these serious allegations.
92.
In my discretion, although the first
respondent has succeeded in resisting this application, I find that
the first respondent should
not be entitled to any costs.
93.
I also intend directing that a copy
of this judgment be made available by the Registrar to the Director
of Public Prosecutions.
As stated, there may be an innocent
explanation as to the date of the Gobozi affidavit, but neither the
first respondent nor Advocate
Majola have proffered any explanation.
94.
The following order is made:
94.1.
The application is dismissed, no order as
to costs.
94.2.
The Registrar is directed to forward a copy
of this judgment to the Director of Public Prosecutions within thirty
days of the order.
B
M Gilbert
Acting
Judge of High Court
Date
of hearing:
19, 25 August 2021
Date
of judgment:
14 September 2021
Date
of revision:
23 September 2021
Applicant:
In person
Counsel
for the First Respondent:
Mr RN Rathidile
SC
Instructed
by:
The State Attorney, Johannesburg
[1]
In
any event, Du Plessis AJ found that those earlier proceedings were
not
res
judicata
of the issue whether the warrant had been lawfully issued, and so I
cannot revisit that finding.
[2]
As
held in
Room
Hire Co (Pty) Limited v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162 1163: “
If
by
a
mere denial in general terms
a
respondent can defeat or delay an applicant who comes to Court on
motion, then motion
proceedings
are worthless, for a respondent can always defeat or delay a
petitioner by such
a
device.”
[3]
Wightman
trading as JW Construction v Headfour (Pty) Limited and another
[2008] ZASCA 6
;
2008
(3)
SA
371
(SCA)
at
375G-376B
[4]
Claassen
Dictionary
of Legal Words and Phrases
(Butterworths, Durban 1977), cited with approval
in
S v Molaudzi
2015 JDR 1315 (CC), para 14. (Also cited as
2015 (8) BCLR 904
(CC),
2015 (2) SACR 341
(CC).
[5]
Bertram
v Wood
(1883)
10 SC 177
at 181.
[6]
For
example,
Bertram
v Wood
referred to with approval in
Molaudzi
,
para 15.
[7]
Hyprop
Investments Ltd and Others v NSC Carriers and Forwarding CC and
Others
2014
(5) SA 406
(SCA), para 14, citing with approval
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and another
2014 (5) SA 297 (SCA).
[8]
Smith
v Porritt
2008
(6) SA 303
(SCA), para 10, cited with approval in
Hyprop
,
para 14.
[9]
[1998]
10 BLLR 995 (LAC)
[10]
The
applicant submits that the judgment of the High Court of Swaziland
in
Moyo
v Rex
[2016] SZHC 35
is authority for the broad proposition that new facts
or circumstances are a basis to impugn the operation of
res
judicata
.
I disagree that the judgment is authority for that proposition,
which proposition is unsound, at least where there are other
avenues
to introduce those new facts or circumstances.
[11]
Para
19.
[12]
At
684I – 685A.
[13]
Section
14(1)(a).
[14]
Section
14(2).
[15]
Such
as
Du
Plessis AJ
invoking
the provisions of
section 60(3)
of the CPA to adjourn the hearing
from 5 to 12 March 2020 to enable the Gobozi affidavit to be
located.
[16]
Above.
[17]
At
para 38.
[18]
Para
45. My emphasis.
[19]
At
390F and at 391A.
[20]
At
391C/D.
[21]
Liesching
and others v S and another
2017
(4) BCLR 454
(CC), para 46, 54 and 61.
[22]
Liesching,
para
57.
[23]
R
v D
above
at
391A.
[24]
See
the discussion in
Erasmus:
Superior Court Practice
,
RS 16, 2021, D1-564.
[25]
The
applicant argued, with reference to
Woji
v Minister of Police
[2015] 1 All SA 68
(SCA), para 22 that this court was free to decide
the issue of unlawfulness afresh, without setting aside the order Du
Plessis
AJ. In
Woji
the SCA, following the Constitutional Court in
Minister
of Justice and Constitutional Development and another v Zealand
[2007] 3 All SA 588
(SCA), found in para 22 to 27 that
notwithstanding that there are orders in place remanding the accused
in custody, the detention
of the accused can, without setting aside
those orders, be unlawful. The applicant’s reliance on W
oji
is
misplaced as the order of Du Plessis AJ is not an order remanding
the accused in custody that need not be set aside to determine
the
issue of unlawfulness, but an order consequent upon the
determination of the very issue of the lawfulness of the arrest and
detention. Further, the application of
res
judicata
did not feature in
Woji.