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[2020] ZAGPPHC 555
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Mahlangu and Another v Minister of Justice and Correctional Services and Others (86997/18) [2020] ZAGPPHC 555 (20 February 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO
:
86997/18
In
the matter between:
MAKHEHLA
LUCAS MAHLANGU
FIRST APPLICANT
DUMISANI
MUNDIDA
SECOND APPLICANT
and
THE
MINISTER OF JUSTICE
AND
FIRST RESPONDENT
CORRECTIONAL
SERVICES
THE
NATIONAL COMMISSIONER
SECOND RESPONDENT
DEPARTMENT
OF CORRECTIONAL SERVICES
THE
PROVINCIAL COMMISSIONER OF
THIRD RESPONDENT
CORRECTIONAL
SERVICES (GAUTENG)
AREA
MANAGER, KGOSI MAMPURU II
FOURTH RESPONDENT
THE
HEAD OF PRISON, KGOSI MAMPURU II
FIFTH RESPONDENT
CORRECTIONAL
CENTRE
JUDGMENT
Van
der Shyff, J:
Introduction
[1]
This is an application in terms of Rule 53 of the Uniform Rules of
Court, as well as the
Promotion of Administrative Justice Act, No 3
of 2000
, hereafter PAJA, for an order reviewing and selling aside the
decision of the fifth respondent's delegated official finding the
applicants guilty of a disciplinary offence and the subsequent
confiscation of computer equipment. In the alternative, the
applicants
requested Court to refer the matter back for
reconsideration
[2]
At the outset, I have been informed from the Bar, that the first
applicant has died since the application was launched. Counsel
for
the respondents submitted that the first applicant had to be
substituted with the executor of his deceased estate. In the view
I
take of this matter, it would not serve any purpose to delay the
matter any further by ordering a stay of the proceedings In
regard to
the first applicant for such substitution and I shall accordingly
deal with the application of both applicants.
Point
in limine – Condonation application
[3]
It is common cause that the respondents failed to file their
answering affidavit in time and the matter was enrolled on the
unopposed motion roll for adjudicationon6 June
2019.
[4]
On the said date, counsel for the respondent appeared In Court and
asked for an indulgence. The matter was postponed
sine die.
and
the following order was made:
a. The respondents are to deliver
their opposing affidavits and an application for condonation by 21
June 2019;
b. The applicants are to deliver a
replying affidavit, if any, by 8 July 2019;
c. The respondents to pay the costs of
the pos1pOnement on an attorney and client basis,
[5]
The respondents flied their answering affidavit on 6 August 2019
without filing an application for condonation
[6]
The opposed application was set down for hearing on the opposed
motion roll on 30 January 2020 but postponed to 7 February 2020
to
enable counsel for the respondents to obtain the signed affidavit in
support of the condonation application.
[7]
In court, when the order was made, counsel for the applicants,
requested that the wasted costs must be paid by the respondents
on an
attorney and client scale Counsel for the respondents argued that the
Court should first consider the condonation application
before the le
of the cost order is determined.
[8]
As a result, the matter was postponed to 7 February 2020 and costs
were reserved to be determined simultaneous with the condonation
application. I emphasised that the cost order was only reserved for
the purpose of determining the appropriate scale on which the
respondents are to pay the wasted costs occasioned by the
postponement.
[9]
On 31 January 2020 the respondents filed a condonation application.
In order to avoid confusion, the parties will be referred
to as in
the main application
[10]
The respondents case pertaining to the late filing or the answering
affidavit is set out as follows: initially no answering
affidavit was
filed because the respondent's legal team was labouring under the
Impression that the matter may be settled. They
wanted to avoid
incurring the unnecessary costs The notion that a settlement might be
reached was premised on the fact that the
Office of the State
Attorney was informed that applicants wrote to the fifth respondent
requesting that their computers be returned
to their families. While
the request was considered counsel was requested by the State
Attorney to await the outcome of this request
as It had the potential
of settling the matter.
[11]
After the Court order of 6 June 2019, counsel consulted on 14 June
2019 and it became apparent that there was still information
outstanding that was needed to draft the answering affidavit. It is
not stated with whom counsel consulted and whether the deponent
to
this affidavit was part of the consultation.
[12]
The outstanding information was delivered to counsel on 24 June2019,
but counsel was attending proceedings in Port Elizabeth
at the time.
I pause to note that two advocates are appearing on behalf of the
respondents and it is not explained which counsel
was in Port
Elizabeth and why the remaining counsel could not attend to the
drafting of the answering affidavit.
[13]
The answering affidavit was then sent to the Office of the State
Attorney on 27 June 2019 Counsel enquired about the whereabouts
of
the answering affidavit on 26 July 2019 and it is evident that the
answering affidavit was commissioned on 26 July 2019. It
was served
on the applicants' legal representatives on6 Augusl2019
[14]
The respondents contend that the delay was not excessive and that a
reasonable explanation was provided for the Court to consider
condoning the delay. They additionally contend that the parties have
filed all the papers, that the matter is ripe for hearing
and that
the respondent has a reasonable prospects of success in the review.
[15]
It must be stated from the onset that the bulk of the affidavit
consists of hearsay evidence that is not verified by any confirmatory
affidavit. The affidavit was deposed to by Mr Mathews Tibane Moleki,
the head of Kgosi Mampuru II Correctional Facility, but the
explanation primarily deals with actions and omissions oi the
respondents' legal team. I fail to see how the information can fall
within the deponent's personal knowledge.
[16]
The applicants oppose the condonation application. They emphasise
that the date for the filing of both an answering affidavit
and a
condonation application was set by the Court. Not only did the
respondents fall to file the answering affidavit within the
time
stated in the Court order, they also failed to file a condonation
application.
[17]
The applicants also contend that the respondents have failed to place
sufficient facts before the Court to condone their omissions
and that
the applicants have been substantially prejudiced by the respondents'
failure to act timeously.
[18]
In my view, the respondents not only had to apply for condonation for
the late filing of the answering affidavit, they also
had to apply to
the Court to condone the late filing of the condonation application.
No such application was launched, and the
Court is still in the dark
as to why the condonation application was not filed in accordance
with the time period prescribed in
the Court order of 6 June 2019.
[19]
However, the parties agreed that the application could be postponed
in order to afford the respondents the opportunity to file
the
condonation application The only issue remaining is the scale of the
costs order regarding the wasted costs occasioned by the
postponement
granted on 30 January 2020, and the question as to whether the late
filing of the respondents' answering affidavit
must be condoned.
[20]
The respondents' lackadaisical approach to the condonation
application affects the scale of the cost order that I am to make
pertaining to the wasted costs occasioned by the postponement. When
the matter was postponed and the issue of costs was argued,
counsel
for the respondents argued that the explanation that will be provided
might sway the court not to make a punitive cost
order. The fact that
no explanation at all was provided for the omission to file a
condonation application before or on the date
ordered by the Court,
however, is conduct that cannot be tolerated and calls for a punitive
cost order. For this reason alone,
I am of the view that the
applicants' wasted costs occasioned by the postponement, must be
borne by the respondents on an attorney
and client scale.
[21]
As for the condonation application itself, it is trite that the court
may, on good cause shown, condone any non-compliance
with the Uniform
Rules of Court. The court’s wide discretion is fenced in by the
requirement that good cause must exist fur
the court to exercise the
discretion to condone non-compliance. It is trite that the reason for
the delay and the defaulting party's
prospects of success are factors
that the court has to take into consideration When the condonation
application Is considered.
[22]
The applicants might have been prejudiced by the delay brought about
by the respondents' omission to file their documents timeously.
but
the condonation of the late filing of the answering affidavit
per
se will not lead to any additional prejudice.
[23]
As for the reasons for the delay I have no doubt that the cause of
the delay must be attributed to the respondents' legal team.
If the
hearsay evidence is disregarded, no reason is put forward explaining
why the delay occurred. The mere fact that the affidavit
primarily
consists of hearsay evidence is however in itself an indication of
the attitude and approach with which this condonation
application has
been dealt with, and this in turn implicates only the respondents'
legal team.
[24]
However, it was emphasised in
Gumede v Road
Accident Fund
2007 (6)SA 304 (C) at
307C-308A, that the court's discretion must be exercised having
regard to the merits of the matter as a whole.
[25]
The Constitutional Court in
Ferris v FirstRand
Bank Ltd
2014 (3) SA 39
(CC) at 43G- 44A held
that lateness is not the only consideration in determining whether an
application for condonation should
be granted. The fundamental
question is whether it is in the interest of justice to grant it, and
in this regard the respondents'
prospects of success and the
importance of the issue to be determined, are relevant factors.
[26]
The parties were consequently directed to address the merits of the
main application.
Facts
underpinning the review application
[27]
It is an undisputed fact that the applicants were subjected to two
disciplinary hearings, respectively held on 5 October 2018
and 10
October 2018, on -the same charges and the same charge sheet the two
hearings being presided over by the same presiding
officer They were
found not guilty in the first, and guilty in the second disciplinary
hearing. As a result certain penalties were
imposed, to which I shall
revert.
[28]
The applicants were incarcerated al the Zonderwater Correctional
Centre. They were transferred to Kgosi Mampuru II Prison during
October and November 2017. On 5 August 2018 their cells were raided,
and the fifth respondent's officials confiscated certain electronic
devices, which included a laptop and external hard drives.
[29]
After the seizure, no immediate steps were taken against the
applicants. Two months later they were summonsed to attend an
informal disciplinary hearing. On 5 October 2018 they attended an
informal disciplinary inquiry. They were charged with having
been in
possession of unauthorised Items. They pleaded not guilty. The first
applicant's version was accepted by the presiding
officer. He stated
that he went to the reception officer accompanied by the correctional
officer, to collect his laptop. The laptop
was handed over to him “as
he produced documents that he is studying.” On both the
applicants' and the respondents'
papers filed of record, the
applicants' version is set out that they previously obtained
permission to possess the confiscated
Items from the Head of Prison
of Zonderwater Correctional C ent.re Both applicants were acquitted
on the charge.
[29]
After the 5 October 2018 new information became known to the
respondents It became apparent-that no such permission had been
granted to the applicants. As a result, it was deemed necessary to
conduct the second disciplinary hearing, which was held on 10
October
2018. As I have alluded to, the exact same charges were preferred
against the applicants and the same presiding officer
presided in the
hearing.
[31]
The applicants state in their founding affidavit that no new evidence
was adduced at the hearing. It is however, evident from
record of
proceedings filed by the respondents that
viva voce
evidence
was led - at least in relation to the charge against the first
applicant. The minute of the disciplinary hearing of the
second
applicant indicates that documentary evidence was considered.
[32]
The respondents contend that the decision of 10 October 2018 is
lawful, reasonable and rational and there is no basis for setting
it
aside. The applicants raised a number
of grounds to the effect
that the second disciplinary hearing was procedurally and
substantively flawed
.
[33]
I am of the view that the crisp issue requiring determination is
whether the second disciplinary enquiry constituted Just
administrative action in the circumstances as alluded to above In
view of the common cause facts it is necessary to determine whether
the principle of
res judicata
,
or
autrefois acquit
applies to administrative
proceedings.
It
i
s
trite that the principle of
res judicata
fulfils the same role
in civil
proceedings than the principle of
autrefois
acquit
in criminal cases.
[34]
Respondents
'
counsel referred me to case law, in support of the submission that
the issue of
‘d
ouble jeopardy' does not find application in
disciplinary hearings-. Both cases dealt with disciplinary hearings
held in the context
of labour relations. The first case referred to
is
BMW (South Africa) (Pty) Ltd v L van der Walt
(JA 10/99)
[1999] ZALAC 28
(18 November 1.999)
.
Counsel referred me to a portion of the judgment where it is stated
"Whether or not a second disciplinary inquiry may be opened
against an employee would
,
I consider, depend on whether it Is, in all the circumstances, fair
to do so…”
[35]
I am of the view that the current matter is distinguishable from
BMW
in that new charge was levelled against the employee at the
subsequent disciplinary enquiry, although it was substantiated by the
same underlying facts.
[36]
Cognisance must also be taken of the fact that Conradie JA stated in
the BMW-case (para 12) that the principles of
autrefois
acquit
and
res
judicata
are public policy rules, and in
labour law
“
fairness
and fairness alone
”
i
s
the yardstick. He stated, however, that “
it
would probably not be considered to be fair to hold more than one
disciplinary enquiry save in rather exceptional circumstance
s.”
[37]
The second case I was referred to
,
i
s
Branford
v Metrorail
Services
(Durban)
and
Others
(DA 19/2002)
[2003] ZALAC 16
(
13
November 2003 ),). This case is
distinguishable because
the-court a
qu
o
found
that there was only one disciplinary hearing where proper c
h
arges
were
brou
g
ht against the
emplo
y
ee, This disciplinary hea
ri
ng
was prec
ed
ed by a m
e
re
discuss
i
on
be
tw
een the employee a
n
d the
line manager which resulted
i
n a verbal wa
rni
ng
.
No charges were proffered against the
employee
during the d
iscussi
on. In the present matter
formal charges
,
contained in the same charge
sheet that was subsequently used at the second hearing, were put to
the applicants
.
Although the respondents contend
that the first disciplinary hearing was merely an informal hearing as
opposed to the second, a
formal hearing, I fail to see the difference
on the papers as filed. In both Instances the same charge sheet was
used, the same
presiding officer presided, and a record of each
proceedings was kept.
[38]
The cases referred to are also distinguishable from the disciplinary
enquiry now under discussion. In that the context Within
which the
disciplinary actions were taken, namely the employer-employee
relationships regulated by contract, was the subject matter
of the
case law referred to, as opposed to an inmate-correctional authority
relationship that existed here. I am of the view that
"public
policy rules" are of significant importance where the
relationship between inmates and officials in correctional
facilities
is concerned, quite different from employees who have some bargaining
power, whereas Inmates are exposed to procedural
abuse.
[39]
I was not referred to any other case law on this specific point I
could also not find any national case law dealing with this
specific
issue
Coke-Wallis v Institute of Chartered Accountants ln England
and Wales
[2011] UKSC 1
provides a perspective from foreign law
regarding the application of the principle of res
judicata
in
disciplinary proceedings not relating to employer-employee relations.
I am alive to the fact that foreign law must be considered
with
circumspection, but I found the case informative since it deals with
the relevance and application of the principles of
autrefois
acquit
and
res judicata
In the context of successive
proceedings before a regulatory or disciplinary tribunal
[40]
In
Coke-Wallis
an accountant from Jersey was convicted of
failing to comply with a directive of the Jersey Financial Services
Commission The Institute
of Chartered Accountants brought a complaint
against the appellant that he was liable to disciplinary action under
the Institute’s
rules in that he had committed an act or
default liable to bring discredit on himself, the Institute or the
profession. Under the
Institute’s rules, a conviction outside
England and Wales was conclusive evidence of such an act or default
if it corresponded,
to one which was indictable in England and Wales
The disciplinary action was dismissed on the. grounds that the
offence did not
correspond with any indictable offence in England or
Wales. The Institute brought a second complaint, relying on the
conduct that
led to the conviction in Jersey. The tribunal held that
the second complaint could be brought as the two complaints did not
allege
the same thing, and the appellant applied for judicial review.
[41]
The court emphasised that the appeal is concerned only with the
instance where there have been two successive sets of disciplinary
proceedings, and not where either set of proceedings was either civil
or criminal. The court found the first enquiry's decision
to be
final, and on the merits, held that the principle of
res
judicata
applied.
[42]
For current purposes, it is relevant to take note of the fact that
several penalties can be imposed subsequent to disciplinary
proceedings being held in correctional facilities arbitrarily and as
a result a prisoner has an interest that penalties are not
imposed it
is important to maintain good order Inside prisons and transgressions
must be addressed in an effective and fair manner.
It is likewise
important to realise that the imposition of penalties is not
comparable to a criminal conviction, although it can
affect a
prisoner's already limited freedom of movement and the loss of
gratuity and other benefits for a period of time.
[43]
Despite the unique environment within which prisoners find themselves
a prisoner is not isolated from constitutional protection
and prison
disciplinary proceedings must be governed by a mutual accommodation
of institutional needs and generally applicable
constitutional
requirements. The fact that a person is incarcerated does not remove
him or her from the right to require just administrative
action.
[44]
In the current matter the applicants' first disciplinary enquiry was
held two months after their electronic equipment was confiscated.
Incidentally, this happened around the same time they instituted
urgent court proceedings to recover the confiscated items. I pause
to
note that the urgent application was struck from the roll for want of
urgency. It is evident from the record of proceedings
that no
witnesses were called, and no evidence adduced, except for their own
version of events. Instead of remanding the disciplinary
hearing to
obtain further evidence, the presiding officer found the applicants
not guilty of the charge put to them. Five days
later, at the second
hearing, evidence was presented, and the applicants were found guilty
of exactly the same charge. They were
subsequently penalised.
[45]
No explanation is proffered as to why the evidence that was produced
five days after the first disciplinary hearing was not
presented at
the first.
[46]
The respondents argued that they could not institute a judicial
review of their own decision, and as a result it was only fair
that
the respondents held the second disciplinary enquiry. If cognisance
is taken of section 23 of the Correctional Services Act
No 111 of
1998 (the Act), it is evident that a host of disciplinary
infringements are listed Section 23 (1)(a) reads-"An inmate
commits a disciplinary infringement if he or she - replies
dishonestly to legitimate questions put by a correctional official or
other person employed at a correctional centre. "In the event
that it was found that the applicants were dishonest ln their
defence
pertaining to the disciplinary charges this subsection could be
utilised to address the subsequent infringement.
[47]
The principle of
res judicata i
s
rooted in two important Latin maxims “
interest
reipublicae ut sit finis litium”
and
“
nemo debet bis vexari pro una et eadem
causa"
These maxims articulate the
principles that there should be finality in litigation and that no
person should be tried twice for
the same cause. These are
fundamental principles in law and not mere public policy rules.
Section 22 of the
Act
expressly
provides that an inmate can be subjected to a disciplinary hearing
and charged with a criminal offence in a court of Iaw.
The
legislature was thus aware of the notion of res
judicata
and excluded it statutorily. However, the
legislature did not provide that an inmate can be subjected to
successive disciplinary
hearings relating to the same charqes.
[48]
For all these reasons, I am of the view that the second disciplinary
hearing does not constitute just administrative action.
[49]
The respondents averred that the applicants did not exhaust their
internal remedies in that they did not approach the Area
Commissioner
for reviewing the proceedings. Section ;14(7) (a) of the Act provides
that proceedings resulting in any penalty other
than a penalty
contemplated in subsection 5(d), must be referred for review to the
National Commissioner at the request of the
inmate. The National
Commissioner may confirm or set aside the penalty and substitute an
appropriate order.
[50]
The applicants’ case is that they did approach the National
Commissioner. They were merely informed by the senior legal
admin
officer of the Department of Correctional Services that the Head of
the Correctional Centre upheld the decision of the disciplinary
hearing. The applicants were also informed that they had failed to
refer the matter to the Area Commission within two working days
after
receipt of the decision. I pause to note that it has not been
indicated where this procedure is prescribed. The Act provides
that
the matter had to referred to the National Commissioner. Since the
matter was referred to the National Commissioner the applicants
thereby exhausted their internal remedy. In addition, no evidence was
furnished that the applicants were informed that they had
to refer
the matter to the Area Commissioner within two days after being
informed of the decision of the disciplinary hearing.
[51]
In the result the application for condonation for the late filing of
the answering affidavit is dismissed,
[52]
The question is now whether the Court must impose its own decision or
refer the matter back to the National Commissioner to
make an
appropriate order
[53]
As for the finding of guilty and the imposing of penalties, I am of
the view that it would serve no purpose to refer the matter
back to
the National Commissioner. The second disciplinary hearing needs to
be set aside in totality. This in itself is an exceptional
circumstance which allows the court to correct the order of the
presiding officer of the disciplinary hearing by finding that the
matter has become
res judicata
and
the same charges cannot be heard again.
[54]
I am however not of the view that it would be prudent for this Court
to order that the confiscated equipment be returned to
the
applicants. This decision must be taken by the respondents after
considering whether the applicants have met the requirement
set by
the respondents,
[55]
It was argued by counsel on behalf of the second applicant that the
request is not that the equipment be returned to the inmates,
but to
their families. This is, however, not the case made out in the
applicants' founding affidavit. This Court is not prepared
to venture
in the domain of the administration in this regard. The applicants,
or their successors, must utilise the processes
in place to apply for
the utilisation or return of the electronic equipment
[56]
As to costs, it is common cause that the applicants approached the
court for relief in two parts, namely the setting aside
of the
decision of 10 October 2018 and the return of the articles
confiscated by the respondents. The application was effectively
decided on the applicants' papers since the late filing of the
answering affidavit was not condoned. Despite the fact that prayer
2
contained in the notice of motion is not granted, the applicants were
successful in obtaining the most important component of
the relief
sought. I am of the view that the general rule that costs to follow
suit applies. I am not satisfied that a punitive
costs order is
justified.
[57]
Counsel for the applicants requested that an order that costs of two
counsel be paid in the event that the applicant succeeds
with the
application. The applicants were represented only by advocate
Kellerman SC and the second counsel only appeared the final
day when
the motion was argued. The complexity of the matter is not such that
it warranted the appointment of two counsel.
ORDER
As
a result, the following order is made:
[1]
The respondents are to pay the wasted posts occasioned by the
postponement of this matter on an attorney and client scale, jointly
and severally, the one paying the other to be absolved;
[2]
The proceedings before and decision of the third respondent's
delegated official, dated 10 October 2018, are reviewed and set
aside,
[3]
The respondents are to pay the costs of this application jointly and
severally, the one paying the other to be absolved.
______________________
E
van der Schyff
Judge
of the High Court, Gauteng Division, Pretoria
Counsel
for the applicants:
Adv Kellerman SC
Instructed
by.
Julian Knight and Associates Inc.
Counsel
for the respondent
Adv Mpahlele SC with Advocate Leopeng
Instructed
by
The State Attorney
Date
of the hearing:
7 February 2020
Delivered:
20 February 2020