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2021
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[2021] ZANCHC 50
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Minister of Correctional Services and Others v Ozukalu and Others (299/21) [2021] ZANCHC 50 (15 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO:
299/21
DATE
HEARD:
03/09/2021
DATE
DELIVERED:
15/10/2021
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
THE
MINISTER OF CORRECTIONAL SERVICES
1
st
Applicant
THE
COMMISSIONER: CORRECTIONAL SERVICES
2
nd
Applicant
THE
HEAD: TSWELOPELE CORRECTIONAL SERVICES
THE
HEAD OF CASE MANAGEMENT COMMITTEE:
3
rd
Applicant
TSWELOPELE
CORRECTIONAL SERVICES
4
th
Applicant
THE
CHAIRPERSON OF THE CORRECTIONAL
SUPERVISION
AND PAROLE REVIEW BOARD;
TSWELOPELE
CORRECTIONAL CENTRE
5
th
Applicant
and
ANTHONY
OZUKALU
1
st
Respondent
TITUS
NKUNA
2
nd
Respondent
PRINCE
EDWIN
NWAUGURU
3
rd
Respondent
JORAM
NKIRIHO
4
th
Respondent
Coram:
MOSES AJ
JUDGMENT
Moses
AJ:
1.
The dispute presently before Court is one
of costs.
2.
The Applicants is
casu
argued that the costs of this application ought not to be granted in
favour of the Respondents. Mr Mphalwa who appeared on
behalf of
the Applicants, submitted during oral arguments in Court that there
are essentially two (2) reasons why the Respondents
should not be
awarded costs: firstly that exceptional circumstances exist in
casu
which militate against a cost order in favour of the Respondents; and
secondly that the Court order granted by Eillert AJ on 7
April 2021
under this very same case number was sought, and granted in error.
Hence in this application initially, the Applicant
brought a
rescission application to rescind the afore-mentioned judgment.
3.
The Respondents in
casu
argued during oral submissions in Court, represented by Mr
Kgotlagomang that, in as much as the Applicants had withdrawn their
application, on the eve of the hearing of that matter, as a result of
which the Respondents were dragged back to Court to oppose
the said
rescission application, the Respondents are/were entitled to the
costs and hence the Court should find in the Respondents’
favour.
A
Brief Case History
4.
On 17 February 2021 the present Respondents
launched an urgent application which was heard by Eillert AJ, wherein
they, qua Applicants
sought,
inter alia;
4.1
that the application be heard on an urgent
basis and their departure from the Rules of Court, insofar as it may
be necessary be
condoned;
4.2
that a Rule Nisi do issue calling on the
then Respondents, now the Applicants herein, to show cause on a date
to be determined by
this Court, why the following final orders should
not be granted:
4.2.1
The Respondents are interdicted from
keeping the Applicants in detention at Tswelopele Correctional
Centre, Kimberley;
4.2.2
The Respondents are directed to immediately
release the Applicants from detention;
4.2.3
That the detention of the Applicants be
declared unlawful;
4.2.4
That the unlawful detention of the
Applicants, pending the decision of the Department of Home Affairs
whether they wish to deport
the Applicants, be declared wrongful and
set aside;
4.3
That the orders given in terms of
paragraphs 4.2.1 to 4.2.4 operate as interim interdicts with
immediate effect pending the return
day of the Rule Nisi.
4.4
Costs on an attorney and client scale; and
4.5
That the Applicants (now Respondents) be
granted leave to supplement their papers if necessary, and if the
said application becomes
opposed.
5.
The said application became opposed indeed
and it was eventually heard by, and argued before, Eillert AJ.
According to Mr Kgotlagomang,
who appeared in that court on behalf of
the said Applicants – now the Respondents – the issues
before Court were fully
ventilated by all parties concerned.
6.
The
First Applicant (now the First Respondent) in that case was convicted
of dealing in drugs on 27 October 2017 in the Thembalethu
Magistrate’s Court and sentenced to six (6) years imprisonment
which commenced on 27 October 2017.
[1]
7.
The
Second Applicant therein (now Second Respondent) was convicted of
housebreaking and theft in Mossel Bay on 22 July 2019, and
sentenced
to twelve (12) years imprisonment, of which five (5) years were
conditionally suspended, thus effectively serving
a seven (7) year
imprisonment with effect from 22 July 2019.
[2]
8.
The
Third Applicant therein (now Third Respondent) was convicted in the
Lephalale Magistrate’s Court for dealing in drugs
on 6 December
2016, and was sentenced on that date, to five (5) years direct
imprisonment.
[3]
9.
The
Fourth Applicant (now Fourth Respondent) was convicted in the then
Port Elizabeth Magistrate’s Court of fraud on 15 October
2018,
and was sentenced to eight (8) years imprisonment with effect from
that date.
[4]
10.
In
terms of a Presidential Proclamation in terms of section 84(2) of the
Constitution, a remission of sentence was proclaimed for
qualifying
inmates at the time, with effect from 16 December 2020. The effect
hereof was that the said First Applicant was granted
a twelve (12)
month remission of sentence, Second Applicant, 24 months, Third
Applicant, twelve (12) months, and the Fourth Applicant,
24 months.
All of them were/are foreign nationals at the time.
[5]
11.
Earlier this year a letter was addressed to
the Senior Public Prosecutor, Springbok, dated 5 February 2021, by
these Applicants’
attorney of record, indicating, int
er
alia
, that the Department of
Correctional Services had in fact decided to release all these
Applicants with effect from 25 November
2020, and that they would
have been so released, but for the intervention at the time, of
the Department of Home Affairs,
pointing out that certain of these
inmates were in fact also physically attacked by the responsible unit
of the Department of Home
Affairs, and requesting the intervention
of/by the said senior Public Prosecutor at the time.
12.
The then Respondents, now the Applicants
herein, duly gave Notice of their intention to oppose the said
application, dated 18 February
2021, pursuant whereto they served and
filed their opposing papers, the answering affidavit which was
deposed to by one Vuzumzi
T Ncwadi, signed by him and dated 22
February 2021. He is the Legal Administration Officer within the
Department of Correctional
Services. I point out momentarily that he
is/was also the main deponent to the founding affidavit in the
afore-mentioned application
for rescission of the judgment of Eillert
AJ as above-stated.
13.
In this answering affidavit the said
deponent, Mr Ncwadi,
inter alia
,
alleged that:
13.1
the
Department of Home Affairs should be joined in those proceedings as a
party as they have a direct and substantial interest in
the
matter;
[6]
13.2
the
Respondents (the present Applicants) over that the date for placement
on parole for all the applicants is 28 April 2021, respectively,
although their maximum release dates are 2023, 2024 and 2026
respectively;
[7]
13.3
it
seems that part of their parole conditions were that the applicants
were to be handed over to the Department of Home Affairs
upon with
date of placement on parole so that they be deported (sic) to their
countries of origin.
[8]
13.4
It
is admitted that the Applicants were informed of their release date
of 25 November 2020, and the third Applicant on 25 January
2021;
[9]
13.5
The warrant for their detention was,
and is still valid to keep all of them in the Correctional Centre,
until their placement
date arrived and until they were duly handed
over to the officials of home affairs for deportation; and
13.6
It
is admitted that the applicants were informed by officials that since
Home Affairs did not arrive to take them into their custody,
that
they had to go back to their units.
[10]
14.
Then on 24 March 2021 the following Court
Order was issued by Eillert AJ, after, so it was submitted by
counsel, the matter had
been argued and all relevant issues fully
ventilated:
“
IT
IS ORDERED THAT:
1.
The requirements of the Uniform
rules as to form, service and time limits are dispensed with
this matter is hereby heard on
an urgent basis;
2.
The current detention of the
Applicants at the Tswelopele Correctional Centre, Kimberley is hereby
declared unlawful;
3.
The issue of an appropriate order
for the release of the Applicants from their current detention as
well as an appropriate order
as to costs are suspended pending
finalization of the rule nisi as provided for in paragraph 4 below.
4.
A rule nisi is hereby issued calling
upon the Respondents as well as the Department of Home Affairs (”the
DHA”), the
Immigration Inspectorate (”the Inspectorate”)
or the designated Immigration Officer (“the Immigration
Officer”),
whichever is applicable in the circumstances of this
matter, to appear before this Court on 7 April 2021 at 09h30 to show
cause,
if any, why the following orders should not be made:
4.1
that the DHA, the Inspectorate or
the Immigration Officer be joined as the Sixth Respondent in this
matter;
4.2
that the DHA, Inspectorate or the
Immigration Officer shall file an affidavit, together with such
supporting documents as may be
appropriate, on an urgent basis and on
a date to be determined by this Court on 7 April 2021, to inform this
Court,
(a)
whether the Applicants are lawfully
entitled to reside and/or sojourn within the Republic of South
Africa;
(b)
should the Applicants not be
lawfully entitled to reside and/or sojourn within the Republic of
South Africa, what order this Court
should consider making in
addition to an order for the release of the Applicants from
detention;
4.3
An appropriate cost order, which is to include the wasted costs
incurred as a result of
the non-joinder of the necessary party or
parties to this application.
5.
The Office of the State Attorney is directed to identify the relevant
official(s) in the
DHA, the Inspectorate or the relevant Immigration
Officer, upon whom a copy of the papers in this application is/are to
be served
and to provide such information to the Applicant’s
attorneys, together with the name and surname of the attorney in
their
offices who is responsible for the representation of the DHA,
before or on 25 March 2021.
6.
The Applicants are directed to cause a copy of the application papers
and this order to be
served upon the official(s) identified in terms
of paragraph 3 above as well as the attorney in the Office of the
State Attorney
responsible for the representation of the DHA, before
or on 30 March 2021.”
15.
It is apparent, and this Court was advised
during oral submissions, that the Department of Home Affairs never
made any entry of
appearance in the said proceedings, despite the
above-stated court order.
16.
On 7 April 2021 Eillert AJ issued the
following Court order:
“
HAVING
HEARD
MR
KGOTLAGOMANG
for the Applicants and
MR
SEKGOBELA
for the Respondents
and having read the documents filed of record;
IT
IS ORDERED THAT:
1.
The Rule Nisi issued on 24 March
2021 is discharged.
2.
The Respondents are ordered to take
all necessary steps to effect the immediate release of the 1
st
,
2
nd
and 4
th
Applicants on Parole, and the immediate release, without
qualification, of the 3
rd
Applicant.
3.
The Respondents are ordered to pay
the costs of the application.”
17.
It is this court order that the current
Applicants, the then Respondents, subsequently sought to be
rescinded. They also lodged
an application for leave to appeal the
said court order.
18.
As was pointed out above, the Applicants
subsequently abandoned their application for leave to appeal the said
court order of 7
April 2021.
19.
It is also common cause that the Applicants
never applied to also have the court order dated 24 March 2021
rescinded and/or set
aside, to date of this hearing.
20.
It is furthermore common cause that the
current Applicants subsequently withdrew this current application for
rescission of the
above-stated Court order of 7 April 2021, on the
eve of the hearing date of that application, because all the
Respondents in casu
had in the meantime been released on parole by
the Department of Correctional Services. This only left the
issue of costs
to be determined.
The
Applicable Legal Principles
21.
In
this regard this Court is guided by the trite principle set out in
the matter of
Gamlan
Investments (Pty) Ltd and Another v Trilion Cape (Pty) Ltd
[11]
where
the court referred with approval to the judgment
of
Jenkins v SA Boiler Makers, Iron & Steelworkers & Ship
Builders Society
1946 WLD 15
where it was held (as paraphrased by the court in Gamlan) that :
‘
where
a disputed application is settled on a basis which disposes of the
merits except insofar as the costs are concerned,
the
Court should not have to hear evidence to decide the disputed facts
in order to decide who is liable for costs, but the Court
must, with
the material at its disposal, make a proper allocation as to costs.
’
(emphasis added).
22.
This Court is in agreement with Price J in
the
Jenkins
matter at
para 18
,
where in the court stated :
“
I
cannot imagine a more futile form of procedure than one which would
require Courts of law to sit for hours, days, or perhaps even
for
weeks, trying dead issues to discover who would have won in order to
determine questions of costs, where cases have been settled
by the
main claims being conceded.
”
23.
The
court in
Gamlan
[12]
took this principle further and went on to draw attention to the
finding in the
Jenkins
matter, as the former put it, that
“
Costs
... must be decided on broad general lines and not on lines that
would necessitate a full hearing on the merits of a case
that has
already been settled. This approach is certainly to be commended.
Costs, more particularly at present, play a very important
role in
litigation and the presiding judicial officer should, in my view,
discourage the incurring of unnecessary costs by making
an
appropriate order in this respect.
”
24.
As
a general rule costs should follow the course, however the court
retains a discretion, to be exercised judicially upon a consideration
of all relevant facts, and that costs should be awarded to the
successful party, a rule which should not be departed from without
good grounds.
[13]
25.
The
general rule, in relation to costs orders where a litigant withdraws
his or her action, is that the withdrawing party is liable
to pay the
costs of the proceedings. There must be very sound reasons why the
other party should not be entitled to his or her
costs. This is so
because the withdrawing party is in the same position as an
unsuccessful litigant, and should be responsible
for costs.
[14]
26.
It
is a fundamental principle of South Africa jurisprudence that out
courts decide on disputes between the parties before them;
they do
not pronounce on abstract questions of law when there is no actual
dispute to be resolved.
[15]
27.
The
above principle has been a component of our jurisprudence for over a
century. In
Geldenhuys
& Neethling v Beuthin
[16]
,
the then appellate division held as follows:
“
After
all courts of law exist for settlement of concrete controversies and
actual infringements of rights, not to pronounce upon
abstract
questions, or to advise upon differing contentions, however
important
”.
28.
The
Constitutional Court has endorsed the principle and persistently
warned against courts deciding on moot cases. A case is moot
and
therefore not justiceable if it no longer presents an existing or
live controversy between the parties.
[17]
29.
In
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa
,
[18]
the Supreme Court of Appeal also reaffirmed the principle and held
that the principle has not been diluted and courts will not
make
determinations that will have no practical effect.
A
Brief Evaluation
30.
Drawing on these principles and applying it
to the facts of this case, the following objective facts stand out:
30.1
the
Applicants herein, on their own papers, in what I call the first
application, which led to the Court Order of 24 March 2021
as
above-stated, admitted that the Respondents herein were in fact
already informed, and hence granted parole with effect from
20
November 2020, but that their further detention was caused by the
fact that the Department of Home Affairs did not come to “take
them into their custody” apparently for purposes of their
deportation.
[19]
30.2
On the Applicants own admission furthermore
– in the said first application as above-stated, the minimum
date of the Respondents’
release on parole was in and around
November 2020, the Third Respondent – then the Third
Applicant’s release date being
21 January 2021, before they –
the then Applicants, were necessitated to launch that first
application.
30.3
The Department of Home Affairs, never
entered any appearance in the said proceedings, despite the Court
Order of 24 March 2021,
to date hereof.
30.4
The present Applicants also never applied
for the rescission and/or setting aside of that Court Order of 24
March 2021, to date
hereof.
30.5
The present Applicants abandoned their
Application for leave to appeal the Court Order dated 7 April 2021,
as above-stated;
30.6
The present Applicants withdrew the present
application to rescind and/or set aside the Court Order dated 7 April
2021, as stated
above, on the eve of the hearing date of the said
application; and
30.7
The Applicants’ Department of
Correctional Services in fact released all the Respondents on parole
before the hearing date
of the aforestated application.
31.
In the circumstances, and on the objective
facts of this case, no good grounds, nor exceptional circumstances
had been shown to
exist to cause this Court from departing from the
general rule regarding costs, namely that it should follow the
course.
32.
It needs to be pointed out specifically,
that despite the Applicants’ counsel emphasising the alleged
defectiveness of the
founding papers of the Respondents – the
Applicants in the first application - no such issue was taken
by them at the
time despite the fact that both the deponent to the
Answering Affidavit therein, and the Founding Affidavit in the latter
application,
being the same person. And despite the fact that the
then Respondents’ legal representative and counsel, also being
the same
legal representatives who were involved in both
applications.
33.
The present counsel on behalf of the
Applicants before this Court, was not involved in this matter at the
time.
34.
In any event and based on those alleged
“defective” founding papers, more specifically the
affidavits of those deponents
in the first application, the said
Court Order of 24 March 2021 was issued, was and remains binding and
enforceable, and was never
rescinded and/or set aside, no such
application for its rescission and/or being set aside had been
brought by and/or on behalf
of the then Respondents – the
Applicants herein.
35.
In the circumstances and in the
result the following order is hereby made:
The
Applicants are to pay the Respondents’ costs on the scale as
between party and party, the one paying the other to be absolved.
MOSES
AJ
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the applicant:
Adv. M Mpahlwa
(oio
State Attorney)
For
therespondents: Mr C
Kgotlagomang
(oio
Towell& Groenewaldt Attorneys
)
[1]
Paragraph
21 – 22 of that Founding Affidavit.
[2]
Ibid:
paragraph 23.
[3]
Ibid,
paragraph 25.
[4]
Ibid;
paragraph 27.
[5]
Ibid;
paragraph 29.
[6]
Answering
Affidavit, paragraph 10.
[8]
Ibid;
paragraph 25.
[9]
Ibid
para 35 emphasis added.
[10]
Ibid.
[11]
1996
(3) SA 692
(CPD) at 700G,
[12]
Gamlan
supra
[13]
See:
Gamlan (supra); See also Levben Products (Pty) Ltd v Alexander Films
(Pty) Ltd 1957 (4) SA 225 (SR) 227
[14]
Germishuys
v Douglas Bespoeiingsraad 17373 (3) SA 299 (NC) AT 300 D- E.
[15]
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
Others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) at par 9.
[16]
1918
AD 426
at 411
[17]
National
Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs & Others
2000 (2) SA 1
(CC) at par 21.
[18]
2005
(1) SA 47
SCA.
[19]
See
paragraphs 13 to 16 above.