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[2021] ZAECMHC 15
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Ponoane v Minister of Police; In re: Minister of Police v Vowana and Another (884/2014) [2021] ZAECMHC 15 (28 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION: MTHATHA]
CASE
NO. 884/2014
In
the matter between
ZOLEKA
SUSAN
PONOANE
APPLICANT
AND
MINISTER
OF
POLICE
RESPONDENT
IN
RE:
MINISTER
OF
POLICE
APPLICANT
AND
LINDA
BLESSING
VOWANA
1
ST
RESPONDENT
ZOLEKA SUSAN
PONOANE
2
ND
RESPONDENT
JUDGMENT
JOLWANA J
[1] On 14 February 2019
this court delivered a judgment in respect of a review application
(the main application) instituted by
the respondent and granted
orders in which it directed that the proceedings and the judgment of
the magistrate’s court for
the district of Herschel were
reviewed and set aside. It was further ordered,
inter alia
,
that the case in those proceedings must be heard
de novo
before another magistrate from outside the magisterial district of
Herschel.
[2] On 5 March 2019 the
applicant filed an application for leave to appeal to the full bench
of this division the whole judgment
and orders delivered on 14
February 2019. On 10 July 2019 the following directive was
issued inviting the parties to make
written submission on or before
the 16 July 2019 on the following issues:
“
1.
The appropriateness of the applicant’s application for leave to
appeal to the full bench of this division.
2. The appropriateness of the leave to
appeal being sought to be heard by the two judges of this division
sitting as a full bench.
3. Whether it is procedurally
appropriate for the applicant to raise alleged bias and/or conflict
of interest on the part of the
presiding judges who heard the main
application only after judgment was delivered and not prior to the
matter being heard.
4. The identity of the author of the
applicant’s notice of application for leave to appeal.”
[3] The issues referred
to above are largely procedural issues on which we sought to be
addressed by counsel for a proper determination
of the application
for leave to appeal. No submissions have been filed to date by
the applicant. Instead a notice to
amend the application for
leave to appeal was filed on 15 July 2019 to which a notice of
objection was filed by the respondent.
On 10 February 2020 the
applicant filed a notice of withdrawal of the application for leave
to amend.
[4] When the application
was heard the applicant had still not filed the submissions nor had
any explanation for not complying with
the court directive been
given. Mr Matyumza who appeared for the applicant sought
refuge, with respect incoherently, in the
withdrawn amendment of the
application for leave to appeal. However, even if the amendment
had not been withdrawn it would
not have availed counsel and the
applicant both of whom are legal practitioners in this division who
should know better as officers
of this court than not comply with
court directives. It is even more surprising that this
justification was sought to be
made long after the said amendment had
been withdrawn by the applicant herself. This begs the
question, firstly, once the
amendment was withdrawn why was the
directive not complied with. Secondly and even if the intended
amendment had not been
withdrawn what about the other directives
which had nothing to do with what the amendment sought to address.
[5] What the parties were
required to make submissions on through the directive, at least in
respect of paragraphs 1 and 2 thereof,
can be put to rest with
reference to
De Villiers v The State and Another
(20732/14)
[2016] ZASCA 38
(24 March 2016) para 3 in which Madjiet JA clarified
the legal position as follows:
“
It
is plain that a division of the high court which sits on review with
two judges presiding is a court of first instance as contemplated
in
s 16(1)(a) of the Superior Courts Act (the Act) and that leave has
therefore been properly granted in this instance in terms
of section
16(1)(a)(ii). The relevant part of that section reads as
follows:
‘
16
Appeals generally
(1)
Subject to section 15(1), the Constitution
and any other law-
(a)
An appeal against any decision of a
Division as a court of first instance lies, upon leave having been
granted –
(i) …
(ii) If the court consisted of more
than one judge to the Supreme Court of Appeal.’
The review before us is regulated by
Uniform rule 53. It is not regulated by the Criminal Procedure
Act 51 of 1977 (the CPA)
or by any other criminal procedural law as
envisaged in s 1 of the Act, and sections 16 and 17 of the Act
therefore apply in this
case. In the premises the matter is
properly before us on appeal. The petition was therefore
unnecessary and should
be regarded as superfluous. I discuss
the merits next.”
[6] It is therefore
axiomatic that leave to appeal can be sought from this court and if
granted it can only be to the Supreme Court
of Appeal and not to the
full bench of this division as the notice of application for leave to
appeal seeks to do. Where
two judges sat as a court of first
instance as was the case in this matter leave to appeal from it can
be sought only to the Supreme
Court of Appeal and not to a full court
of a division. Therefore, the application for leave to appeal
will be dealt with
and determined on the basis that it is sought from
this Court to the Supreme Court of Appeal and not to the full bench
of this
division which is simply impermissible. It was
incorrect for the applicant to apply for leave to appeal to the full
court
of this division in any event.
[7] The rather lengthy
notice of application for leave to appeal which runs into twelve
pages may be correctly characterized, to
borrow the words of Leach J,
as vitriolic diatribe. In our view it does not raise any new
matter or different contentions
to the ones made in the main
application save for one or two issues which will be dealt with later
herein. The contentions
are, in the main, that in the decision
and the reasons therefore contained in the judgment in which we dealt
with all the arguments
that were made, we erred. The grounds
for the leave to appeal are stated in the notice of application for
leave to appeal
and need not be repeated in this judgment.
Suffice to state the applicant’s contentions are essentially
that a proper
case has been made and that the applicant has satisfied
the requirements set out in
section 17
of the
Superior Courts Act No.
10 of 2013
for the granting of an application for leave to appeal.
[8] One of the new
contentions raised for the first time in the notice of application
for leave to appeal is also foreshadowed in
the directive that was
issued on the 10 July 2019. That is the issue of our alleged
bias. For reasons that are not
altogether clear that directive
has not been complied with even as it relates to the new issue of our
alleged bias and our alleged
failure to recuse ourselves. In
essence we are alleged to have had prior knowledge of this matter
long before the review
application was instituted. As far as we
understand this ground of appeal we are alleged to have dealt with
the matter motivated
by bias and we ought to have recused ourselves
from hearing the main application.
[9] These allegations of
bias on our part are cast in wild terms, bereft of any factual
material and are more of an attack on our
integrity as judicial
officers without any factual basis for the alleged bias, actual or
potential. Quintessentially the
allegations, at least as stated
in the notice of application for leave to appeal, are that Justice
Jolwana was at some stage before
he was appointed to the bench, a
councilor of the then Cape Law Society and later its president.
During this time it is alleged
that he would have become aware of or
did become aware of this matter through a report allegedly made to
the Cape Law Society by
a colonel Magadlela. On this basis, so
goes the contention, when he co-presided over the main application he
dealt with this
matter already vested with inside knowledge attained
in the manner aforesaid. He, nevertheless, despite his
foreknowledge
of the matter, allowed himself to preside over it
instead of recusing himself.
[10] On the other hand
the allegations of bias against Justice Malusi is that his wife was
also a councilor of the then Cape Law
Society. Therefore Mrs
Malusi, would have, just like Justice Jolwana, become aware of this
matter through the same report
allegedly made by colonel Magadlela to
the Cape Law Society. On this basis, so goes the submission,
“
it is most likely that Justice Malusi could have had a
preview of the matter through his wife even when pillow talking
”.
Therefore, Justice Malusi should have recused himself from presiding
over this matter, so contends the applicant.
Based on these
allegations we are said to have committed a gross irregularity in
failing to recuse ourselves.
[11] It is not clear when
the applicant gained insight into this information in relation to the
date on which the main application
was heard. The significance
of this is that no application for our recusal was made before or
during the hearing of the main
application. We do not consider
it necessary to respond to these wild allegations nor have we been
enabled to do so which
are at best, speculative and are made without
any attempt to provide a simple factual basis. They are, in any
event, factually
incorrect.
[12] It would have made
more sense for Mr Matyumza and the applicant to establish as a matter
of fact from the Legal Practice Council
the dates of Justice Jolwana
and Mrs Malusi’s councillorship and president of the Cape Law
Society in relation to when Mr
Magadlela reported the matter to the
Cape Law Society. Secondly the applicant could have ascertained
if, in any event, such
a complaint was ever tabled in any meeting
Justice Jolwana and Mrs Malusi had attended in those capacities.
That is not to
say that if they had attended meetings in which the
matter served a case of bias, actual or perceived would have
necessarily been
made without more. It would at least have
given some form of factual context to the allegations and would have
made it somewhat
possible to respond thereto.
[13] This style of
litigation is more indicative of the applicant, who herself is an
attorney, having been ill advised by her attorneys
and counsel, who
had no difficulty in lending their name to a direct attack on our
integrity as judicial officers and are happy
to have us slighted
without any factual basis. This conduct should be a matter of
grave concern to the judiciary at large
because it is an attack on
the integrity of judicial officers who are maligned based on what is
seemingly nothing more than unhappiness
with the outcome. It is
even difficult to resist the feeling that had this Court found in
favour of the applicant none of
these very reckless allegations would
have been made hence the inexplicable failure to apply for our
recusal at the hearing of
the main application. During the
hearing of the application for leave to appeal Mr Matyumza withdrew
this ground of appeal
which was, in any event ill informed,
ill-advised and based on conjecture.
[14] The other ground of
appeal that calls for specific comment relates to the averments
allegedly raised by the respondent for
the first time in the replying
affidavit in the main application. There was no application to
strike out the impugned averments.
The replying affidavit was
served on applicant’s attorneys on 23 July 2018. The
matter was only heard on 18 October
2018. For a period of
almost three months before the matter came before us the applicant
was in possession of the replying
affidavit, it must be assumed,
having no qualms about any of its averments. The impugned averments
could not have been new to the
applicant as they related to a warning
statement made to the police by the magistrate in which he admitted
to the impropriety of
his liasons with the applicant about the
judgment. That warning statement was taken by the police from
the magistrate long
before the proceedings in the main application
were launched. Even if it could be argued that the applicant
had all along
not been aware of the magistrate’s warning
statement until the replying affidavit was filed, it was incumbent
upon the applicant
to make an application to strike them out which
she did not do. It is very significant also that both the
magistrate and
the applicant were represented by the same attorney,
Mr Tshaka and the same counsel, Mr Matyumza in the main application.
In the circumstances ignorance about the existence of the warning
statement is clearly feigned.
[15] We delivered what we
considered to be a comprehensive judgment in the main application and
therefore no purpose will be served
by the rehashing of the detailed
reasons contained therein. We therefore refrain from doing so
herein save to point out that
most, if not all
,
the relevant material facts on which our judgment was based were, on
the papers, common cause. For instance there is no dispute
that
unbeknown to the respondent the magistrate who presided over the
matter communicated with the plaintiffs’ attorney about
the
judgment he intended to deliver in the same matter. He and the
plaintiffs’ attorney agreed that the plaintiffs’
attorney
would rewrite the said judgment in respect of which the plaintiffs’
attorney represented the plaintiffs in the proceedings
before the
said magistrate. The judgment rewritten by the plaintiffs’
attorney is the judgment which the magistrate
signed as his own
judgment and released to the parties. All of this was done to a
completion without the knowledge or consent
of the respondent’s
attorney who was in complete darkness about these engagements,
conversations and happenings. It
is even shocking that the said
plaintiffs’ attorneys who now applies for leave to appeal has
no compunction whatsoever in
maintaining that there was nothing wrong
with her conduct.
[16] During the hearing
of the application Mr Matyumza initially conceded that the conduct of
the magistrate and the applicant was
unlawful. He later made a
belated attempt to withdraw the concession and recharacterised their
conduct as having been merely
procedurally incorrect as against being
unlawful. It is atrocious that Mr Matyumza who has been counsel
in this division
for about three decades at least, downplays the
violation of judicial ethics, norms and standards in this manner.
It is even
more shocking that in all the submissions he made he
completely ignored the provisions of section 165 of the Constitution
which
is also relied upon in the judgment as it relates to the
judicial authority of the republic which vests in no one else other
than
judicial officers only. We simply do not understand how it
could not be unlawful and unconstitutional for a legal representative
of one of the litigants to secretly usurp the authority of judicial
officers by contributing to the outcome of the case through
a
contribution in formulating the reasons for the said outcome.
How Mr Matyumza downplayed that behavior to a mere procedural
irregularity is unconscionable to say the least.
[17] On the issue of
costs, a submission was made that costs ought not to have been
awarded without the substitution of the estate
of the magistrate who
had died before the matter was heard. In making this submission
Mr Matyumza ignored the fact that the
magistrate was cited in an
official capacity as a judicial officer and not in a personal
capacity. His estate, even if he
had not died, had nothing to
do with the matter unless the court had decided to award costs
against him personally which the court
did not do and in any event no
case was made for such an order. The trite legal position is
that costs are a matter of discretion
by the court of first instant.
On the facts of this matter we exercised our discretion judiciously
and awarded costs on a
punitive scale. We are not persuaded
that we erred in doing so.
[18]
Section 17(1)
of the
Superior Courts Act provides
as follows:
“
17(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)
(i) the appeal would have a reasonable
prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard including conflicting judgments
on the matter under consideration;
(b)
the decision sought to be appealed does not
fall within the ambit of
section 16(2)(a)
; and
(c)
where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.”
[19] In
MEC for
Health, Eastern Cape v Mkhitha and Another
[2016] JOL 36940
SCA
paras 16-17 the court explained the approach to an application for
leave to appeal as follows:
“
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)(a)
of the Superior Courts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the
opinion that the appeal would
have a reasonable prospect of success; or there is some other
compelling reason why it should be
heard.
An applicant for leave to appeal must
convince the court on proper grounds that there is a reasonable
prospect or realistic chance
of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless,
is not enough. There
must be a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[20] Having considered
the peculiar facts of this case, which are largely common cause, our
reasons for the judgment and orders
in the main application and the
grounds on which leave to appeal is sought, the threshold for the
granting of an application for
leave to appeal has not been met in
our view. Accordingly, the applicant’s application for
leave to appeal falls to
be dismissed.
[21] In the result the
following order shall issue:
1.
The application for leave to appeal is dismissed with costs.
_____________________________
M S JOLWANA
JUDGE
OF THE HIGH COURT
I agree and it is so
ordered:
___________________________
T MALUSI
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the
Applicant:
Advocate Sishuba
instructed by
State
Attorney
EAST
LONDON
o/c
State Attorney
MTHATHA
Counsel for the
Respondents: Advocate Matyumza
instructed
by
ZS
Ponoane & Co.
c/o
Mafungo Tshaka Inc
Date
heard:
26 March 2021
Delivered
on:
28 April 2021