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[2019] ZAGPPHC 19
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Minister of Home Affairs v Ahmed and Others (A102/17) [2019] ZAGPPHC 19 (14 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED
______________________
_____________________
DATE
SIGNATURE
CASE NUMBER: A102/17
DATE: 14
February 2019
THE MINISTER OF
HOME AFFAIRS
Appellant
V
MUKHTAR
AHMED
First Respondent
TASLEEM
AKHTAR
Second Respondent
ABDUR RAHMAN
AHMED
Third Respondent
ABDULLAH
AHMED
Fourth Respondent
JUDGMENT
MABUSE
J
:
(Fabricius J and Teffo J, concurring)
[1]
On 29 January 2019 I requested my brother, Fabricius J, to write the
following email to the parties:
“
In
the light of the application that was dismissed by Kgomo J on 4
September 2012, whether Collis AJ had any jurisdiction to hear
part B
of the same application.
(Vide
page 358 of the judgment of Mngqibisa-Thusi)
.”
We
were unanimous in our view, that that issue was of paramount
importance and furthermore that the parties had to be given an
opportunity to address us on that point.
[2]
In Court all Counsel, Adv Nazeer Cassim (SC) (“Mr Cassim”),
who appeared for the appellant, Attorney
Zehir Omar (“Mr
Omar”), who appeared for the respondent, and Adv PW
Springveldt, who appeared for the 2
nd
, 3
rd
and
4
th
respondents, confirmed that they had received the said
email and that they were ready to argue the point although Mr Omar
complained
about being sent such an email a day before the appeal
would be heard. The importance of that point will become
apparent
later in the judgment.
[3]
This matter came before us as an appeal by the appellant, the
Minister of Home Affairs (“the Minister”),
against the
orders contained in paragraphs 2 and 3 of the order given by
Mngqibisa-Thusi J on 1 November 2016. The appellant
sought an
order that the appeal should be upheld and the said order should be
replaced by an order in the following terms:
“
The
plaintiffs’ claims against the first defendant are dismissed
with costs.”
[4]
Paragraphs 2 and 3 of the order given by Mngqibisa-Thusi on 1
November 2016 read as follows:
“
2.
The first defendant is ordered to:
2.1
pay the first and second plaintiffs an amount of R350,000.00 each as
damages;
2.2
pay the third and fourth plaintiffs an amount of R50,000.00 each as
damages;
2.3
pay interest on the said amounts at the rate of 15.5% per annum from
the date
of this order;
3.
The first defendant is ordered to pay the costs of the action.”
[5]
In order to fully understand the matter, it is of the utmost
importance to set out the history of the involvement
of the
respondents, especially the first and second respondents. This
history will be set out as it appears in the cases
that were heard by
Levinsohn J in KZN; Kgomo J in the Gauteng Local Division and more
importantly by Collis AJ in the Gauteng Local
Division and lastly by
Mngqibisa-Thusi in the Gauteng Division, all of which involved the
first respondent and others
[6]
It is equally of paramount importance to observe that the plaintiff’s
entire cause of action is founded on
the judgment, in particular the
order of Collis AJ in case number 31902/2012, which was handed down
on 5 February 2013. As
a prelude in that judgment, Collis AJ
had given the following order:
“
6.1
The decision by the Respondent to place the names of the First and
Second Applicants on a “V” list or
any list prohibiting
their re-entry into the Republic to be invalid and unlawful;
6.2
The Respondent, its department officials, employees and agents to
forthwith remove the names of the First and Second
Applicants from a
“V” list, alternatively from any list or memorandum that
conveys that the Applicants must be refused
entry into the Republic;
6.3
it is declared the Respondent’s prevention of the First and
Second Applicants entering the Republic constituted
a violation to
the First and Second Applicants constitutional rights as set out in
Section 10 (Human Dignity), Section 12 (Freedom
and Security of
person), and Section 21 (Freedom of movement and residence) of Act
108 of 1996;
6.4
the respondent is ordered to pay the Applicants costs of suit for the
proceedings in respect of part B of the Notice
of Motion.”
THE
MATTER BEFORE LEVINSOHN J
[7]
This matter was registered by the registrar, Durban Coast and Local
Division, under case number 4153/2006.
The applicant in that
matter was the same Mukthar Ahmed, the first respondent, in this
appeal. The respondent in that case
was the Minister of Home
Affairs, the current appellant.
[8]
In that case, which was heard by Levinsohn J, on 20 May 2018, the
applicant had launched motion proceedings on 30
April 2008 in which
he had sought relief in two parts. In part A he had sought an
interdict restraining the respondent from
deporting him and an order
that he be released forthwith from custody. In part B of his
notice of motion he had prayed for
an order declaring his arrest and
incarceration to be unlawful. Secondly, he had sought a
declarator to the effect that his
constitutional rights had been
violated.
[9]
Having read the papers and having listened to
viva voce
evidence tendered on one side by the applicant and on the other side
by one Langa, an officer of the Department of Home Affairs,
and
having listened to Mr Omar, who appeared for the applicant, and a
certain Mr CM Nqala, who appeared for the respondent on the
instructions of the State Attorney KZN, Levinsohn J made the
following order:
“
[1]
It is hereby declared that the applicant is forthwith entitled to his
immediate release from detention.
[2]
It is hereby declared that the applicant is entitled to exercise the
right of review which is set forth in sections
8 and 34 respectively
of the Immigration Act, number 13 of 2002. Such review
proceedings are to be prosecuted by the applicant
within ten days
from the date of this order.
[3]
Pending the said review the respondent or any of her servants or
agents are interdicted and restrained from deporting
or causing the
applicant to be deported from the Republic of South Africa.
[4]
The applicant is directed to lodge with the registrar of this Court
security in an amount of R10,000.00.
[5]
The applicant is directed to report to the charge office at Isipingo
Police Station each Monday between the hours
of 8am and 5pm.
[6]
The respondent is directed to pay the cost of this application.”
[10]
In paragraph [17] of his judgment, Levinsohn J had recorded that:
“
[17]
Langa essentially confirmed the version set forth in his affidavit.
He said that he had determined that the applicant
was an illegal
immigrant and decided that he ought to be deported. According
to Langa he completed a document headed “Notification
of
Deportation” (page 82 of the papers). The document
informs the applicant that he is an illegal foreigner and that
he
needs to be deported. It sets out that he has certain rights,
inter alia, to appeal the decision of the Director-General
within
thirty days and that he may have his detention confirmed by a warrant
of Court.”
[11]
In paragraph [19] the judgment recorded that:
“
[19]
On 6 April 2008 Langa presented the applicant with yet another
document which essentially recorded that the applicant had not
exercised his right of review and accordingly he had forfeited his
rights to request the Minister to review the Department’s
decision.”
It
is for that reason that Levinsohn J made the order contained in
paragraph 2 supra of this order on 20 May 2008. He stated
the
following,
inter alia
, in paragraph [27] of his reasons for
the judgment:
“
[27]
I therefore took the view that the applicant ought to exhaust all his
appeal remedies.”
[12]
Quite clearly the applicant had been informed that he was an illegal
foreigner. He had furthermore been informed
in writing that he
could have that determination by the Director-General reviewed and
set aside by the Minister. The judgment
was silent with regard
to Part B of the application. The applicant did not on his part
pursue Part B of the said application.
THE
REVIEW
[13]
On 27 May 2008 Mr Omar submitted his review documents to the Minister
of Home Affairs undercover of a letter of the same
date. The
said letter stated,
inter alia
, as follows:
“
We
act on behalf of Mukthar Ahmed. In terms of the court order
handed down by the learned Judge Levinsohn in the High Court
–
Durban on 20 May 2008, our client hereby submits his review for your
consideration. The court order referred to herein
is attached
hereto marked “F”.”
The
papers in connection with the review were delivered to the Office of
the Minister where they were received by “Ministry
DHA:
Maria Dithebe 012-8108087 – 28/05/2008.” The review
documents did not put the Minister on terms.
No period was
indicated within which the Minister had to respond, nor was a date
given by which the Minister had to respond.
[14]
Upon consideration of the documents submitted to him by Mr Omar, the
Minister was obliged to review the determination
of the Department of
Home Affairs or the Director-General and to decide whether to set it
aside or confirm it. Up to the
date hereof the Minister has
done neither of the two. Mr Omar conceded, during the hearing
of the appeal, that he did not
have the results of the review. He
did not have the decision of the Minister. Accordingly the decision
of the Director-General
declaring Mukthar Ahmed an illegal immigrant
has neither been reviewed and set aside nor confirmed.
[15]
What followed after Mr Omar had received no response from the
Minister of Home Affairs is somewhat confusing. It
would appear
though, this is not very clear, that Mr Omar approached the court in
Durban and asked for the following order:
“
1.
Directing that the appellant is no longer required to report to the
charge office at Isipingo Police
Station every Monday between the
hours of 8am and 5pm;
2.
The registrar is directed to release security in the amount of
R10,000.00 lodged by the applicant in
accordance with the order of
the Honourable Justice Levinsohn DJP dated 20 May 2008;
3.
The respondent is directed to pay the costs of this application.”
[16]
There is in the file a letter from Browne Brodie Attorneys of Durban
dated 23 February 2009. This letter states,
inter alia
, the
following:
“
We
confirm that the above matter was heard on 19 February 2008 (it
should be 2009). To follow is a copy of the draft order
for
your records.”
It
is important to point out that a copy of the relevant court order is
not available. For this reason the court doubted the
authenticity of the court order referred to in the preceding
paragraph, as will be shown in Kgomo J’s judgment.
THE
APPLICATION BEFORE KGOMO J
[17]
On 28 August 2012 under case number 31902/12 Mukthar Ahmed, as the
first applicant, Tasleem Akhtar, the second applicant,
and Zafa
Mehdi, as the third applicant, launched motion proceedings in the
South Gauteng High Court, Johannesburg, against the
Minister of Home
Affairs, as the first respondent, and the Director-General Department
of Home Affairs, as the second respondent.
In the said
application proceedings the applicants sought the following relief:
“
1.
Condoning the applicant’s non-compliance with the rules
relating to form, time and service.
2.
Directing the respondent to take all the necessary steps to ensure
that the first and second applicants
are allowed re-entry into the
Republic of South Africa (“the Republic”).
3.
Permitting the applicants to remain in the Republic until the
finalisation of part B of the proceedings
herein.
4.
That costs of Part A of these proceedings be reserved for
adjudication at the proceedings in part B.
5.
Further and/or alternative relief.”
[18]
In part B of the same motion proceedings that served before Kgomo J
the applicants had sought the following order:
“
Part
B
BE
PLEASED TO TAKE notice that application will be made to the above
Honourable Court on a date to be accorded by the Registrar
for an
order in the following terms:
(a)
Declaring that a decision by the Respondent to place the names of the
1st and 2nd Applicants on a “V”
list or any list
prohibiting their re-entry into the Republic to be invalid and
unlawful.
(b)
Declaring that the prevention of the 1st and 2nd Applicants from
entering the Republic constitutes a violation
to the 1st and 2nd
Applicants’ constitutional rights as set out in Section 10
(Human Dignity), Section 12 (Freedom and security
of the person), and
Section 21 (Freedom of movement and residence) of Act 108 of 1996.
(c)
Ordering the Respondent, its department’s officials, employees
and agents to forthwith remove the names
of the 1st and 2nd
Applicants from any “V” list, alternatively any other
list or memoranda that conveys that the Applicants
must be refused
entry into the Republic.
(d)
Cost of suit in the proceedings in Part A and Part B.
(e)
Further and/or alternative relief.”
[19]
These motion proceedings were heard by Kgomo J on an urgent basis on
28 August 2012. On 4 September 2012 Kgomo
J handed down his
written judgment. The order of the said judgment reads as
follows:
“
Part
A of this application is dismissed with costs.”
Before
the said judge had made the said order he had observed, quite
importantly, in paragraph [58] of his judgment that:
“
[58]
In the circumstances of this application it is my considered view and
finding that the applicants have not made out a case
for the granting
of prayers sought in Part A of the notice of motion. The
application, therefore, is as far as Part A is
concerned, stands to
be dismissed with costs.”
[20]
The whole relief in Part A that the applicants sought was dismissed.
That relief included even the relief that the applicants
sought in
paragraph 3 of the notice of motion. At the pain of repetition
the relief that the applicants sought in paragraph
3 was the
following:
“
3.
Permitting the applicants to remain in the Republic until the
finalisation of Part B of the proceedings hereunder.”
Paragraph
3 was never postponed
sine
die
.
All the relief sought in Part A was refused.
[21]
The implication of Kgomo J’s order was that the applicants
could not remain in the country, if they were inside;
that they may
not enter the country, if they were outside; that they may not
proceed with Part B of their application because it
had been
dismissed. The other avenue left for them would have been to
note an appeal against the judgment and the order of
Kgomo J.
It also means that they remained illegal foreigners according to the
determination of the Director- General.
Before Kgomo J appeared
Mr Omar, for the applicants. In paragraph [31] and [32] of his
judgment Kgomo J has made the following
observations and stated as
follows:
“
[31]
There is no indication on file whether the above draft order ever
served before court as it has no date stamp. My enquiry
from
counsel for the applicants concerning this aspect was met with a
response that he (counsel) cannot take this matter any further,
which
in my view means he cannot say that for certain such an order was
ever granted by the court.
[32]
In any event, even if such a draft order was ever made an order of
court, same did not extend to issues of citizenship, refugee
and
citizenship statuses. The review application envisaged in Case
no: 4153/2006 remains pending.
In
paragraphs 41, 42 43 he now stated as follows:
“
[41]
According to the respondents’ record the second applicant is
presently an illegal foreigner, which fact was discovered
and
documented during or on 23 February 2009 because she did not comply
with the conditions of her visa in 2007 as well as that
she obtained
her permit to be in South Africa through misrepresentation or through
an illegal foreigner or prohibited person, whose
status to be or to
remain in South Africa is null and void.
[42]
Similarly, the first applicant’s sojourn or entry into South
Africa is prohibited because of the Department’s discovery
during 2008 that he had entered into a marriage of convenience with a
South African citizen, one Ms Natalie Nagadu, through which
he,
through such misrepresentation obtained South African citizenship
which resulted in the revocation of his South African citizenship
and
concomitant requisite status.
[43]
The relationship between the respondents and especially the first
applicant is chequered and littered with litigation.
When I
look at the status of the first of the Durban and Coast Local
Division cases, the review part thereof has not yet been finalised.
As such, it is still pending. On the other hand, if the
contradictory version presented by the applicants that the letter
written by Zehir Omar Attorneys dated 27 May 2008 represents the
review process contemplated in Levinsohn J’s judgment of
20 May
2008, then the applicant would have re-confirmed the unreliability of
their version as evidenced by the document which they
alleged was
proof of a review process launched in the Durban and Coast Local
Division of the High Court.”
THE
PROCEEDINGS BEFORE COLLIS AJ
[22]
That on 31 October 2012, again with the assistance of Mr Omar, the
following applicants Mukthar Ahmed as the first applicant,
Tasleen
Akhtar Ahmed, as the second applicant, and Zafa Mehdi as the third
applicant launched on an urgent basis motion proceedings
against the
Minister of Home Affairs as the respondent. The applicants
called the motion proceeding Part “B”
of the proceedings
that commenced before Kgomo J. This matter served before Collis
AJ. In its application the said
applicant sought the following
relief:
“
In
the present application the applicants pursued an application seeking
the following relief:
Part
A thereof for an order in the following terms:
1.
condoning the applicants non-compliance with
the rules relating to forms and **** service;
2.
directing the respondents to take all the necessary steps to ensure
that the first and second applicants
are allowed re-entry into the
Republic of South Africa;
3.
permitting the applicants to remain in the Republic until the
finalisation of Part B of the proceedings;
4.
that the cost of part A of these proceedings are reserved for
adjudication the proceedings of part B;
and,
5.
further and/or alternative relief.”
In
Part B of those proceedings the applicants sought the following
order:
“
1.
Declaring that the decision by the Respondent to place the names of
the first and second applicants on
the “V” list or any
list prohibiting their re-entry into the Republic to be invalid and
unlawful;
2.
Declaring that the prevention of the first and second applicants from
entering into the Republic constitutes
a violation to the first and
second applicants constitutional rights as set out in Section 10
(Human Dignity), Section 12 (Freedom
and Security of persons), and
Section 21 (Freedom of movement and residence) of the Constitution of
the Republic of South Africa,
Act 108 of 1996 (as amended);
3.
Ordering the Respondent, its departments, officials, employees and
agents, to forthwith remove the names
of the first and second
applicants from any “V” list, alternatively other list on
memorandum that conveys that the
applicants must be refused entry
into the Republic;
4.
Costs of suit in respect of both Part A and Part B, and;
5.
Further and/or alternative relief.”
It
is as clear as crystal from the record of the appeal that at the
trial in the Court
a
quo
the respondents, through Mr Omar, regarded the proceedings before
Collis AJ as Part B or as a continuation of the motion proceedings
that were heard and dismissed by Kgomo J.
[23]
As indicated above it was on the basis of the said order that the
respondents in this appeal issued action proceedings against
the
appellant for payment of money. Those proceedings served before
Mngqibisa-Thusi J. In her written judgment handed
down during
November 2016 the said judge, made the order set out in paragraph [2]
supra
.
[24]
Once Kgomo J had dismissed Part A of the notice of motion and with it
paragraph 3 thereof, Part B could not be heard. In our
considered
view, this means that Collis AJ should not have heard the proceedings
before her as Kgomo had pronounced that they were
dismissed.
Accordingly, Collis AJ had no
locus standi
or jurisdiction to
entertain Part B of the application that was heard and dismissed
before Kgomo J. Mr Cassim, counsel for
the appellant, put it
differently. He stated in his heads of argument that on a
proper reading of the judgment of Kgomo J,
the learned Judge gave a
final judgment. According to him litigation should not be
endless. He submitted finally that
on the requirement of good
faith, which permits of no same things being demanded more than once,
that the proceedings before Collis
AJ were an abuse. We agree
with him for the following reasons. The parties before Kgomo J
and Collis AJ were the same
and so was the cause of action and in
substance the relief that the applicants in those matters sought.
[25]
Mr Omar argued that the provisions of section 19 of
the Superior
Courts Act
are clear. Relying on the provisions of section
19, as he read them from his prepared notes, he argued that an Appeal
Court
may only decide issues that are subject matter of an appeal.
He developed his argument and stated that this Court will be
violating the provisions of the section 19 relied on if it ventured
into an appeal of the order of Judge Collis in circumstances
where
Collis’s order had not been a subject of an appeal.
[26]
For the following reasons we disagree with him. In the first
place, section 19 of the
Superior Courts Act
does not support
Mr Omar’s argument. Secondly, it is clear that,
notwithstanding the order of Kgomo J, Mr Omar regarded
the order of
Collis AJ sacrosanct unless it is set aside. The High
Court derives its powers from legislation, common
law and inherent
jurisdiction. Its powers are therefore not limited by the
provisions of section 19 on which Mr Omar sought
to rely on or by any
legislation. It retains its powers even when it deals with
appeals. This inherent jurisdiction
“
should be seen as
those (unwritten) powers, ancillary to its common law and statutory
powers, without which the Court would be unable
to act in accordance
with justice and good reason”.
See in this regard
The
Inherent Jurisdiction of the Supreme Court by Jerold Taitz, pages 8
to 9
. In this respect we are fortified by the remarks of
Sir Jack Jacob in his article on
Practice and Procedure in
Halsbury’s Laws of England, Volume 37 (4
th
Edition) at paragraph 14
that:
“…
the
inherent jurisdiction of the Court is a virile and viable doctrine,
and has been defined as being the reserve or fund of powers,
a
residual source of powers, which the court may draw upon as necessary
whenever it is just or equitable to do so, in particular
to ensure
the observance of the due process of the law, to prevent vexation or
oppression, to do justice between the parties and
to secure a fair
trial between them.”
This
passage was cited with approval by the Court of Appeal of Manitoba in
Montreal
Trust Co v Churchill Forest Industries (Manitoba) Ltd (1971) 21 DLR
(3
rd
)
75 at 81.
One of the cases in which the Court exercised its inherent
jurisdiction to avoid injustice to the parties is
Leibowitz
and Others v Schwartz and Others
1974 (2) SA 661
T at 662 DC
where the Court had the following to say:
“
The
Court has inherent powers to grant relief where an instance upon
exact compliance with a rule of court would result in substantial
injustice to one of the parties.
The
Court must, in my view, similarly, have power to grant relief where
it is concerned not with a rule of court but with a rule
of practice
even in a case it seems to me with great respect where the rule of
practice has been declared by the appellate division.”
[27]
Finally, in
Toubie v S
[2012] 4 ALLSA 290
(SCA)
the Court
endorsed the inherent powers of the SCA, and so of the superior
courts, when it stated the following:
“
The
intention is for a Court of Appeal to dispense justice. An
appeal court cannot close its eyes to a patent injustice simply
because the injustice is not a subject of appeal.”
Accordingly,
the argument by Mr Omar about the powers of the Superior Courts in
terms of his interpretation of s 19 of the
Superior
Courts Act
is too narrow. His argument about his sacrosanct and
inviolability of Collis AJ’s judgment is also flawed. We
therefore conclude that this court has inherent jurisdiction to look
at the judgment of Collis AJ in order to establish whether
she had
jurisdiction to entertain the proceedings placed before her as Part B
of the proceedings that were dealt with by Kgomo
J.
[28]
We are unanimous in our view that Collis AJ had no jurisdiction to
hear what was considered to be Part B of the application
that had
served before, and was dismissed by, Kgomo J on 4 September 2012. The
law regards the proceedings before Collis AJ as
invalid and upon
prove of invalidity the order made by Collis AJ may be disregarded.
In 1883 Connor CJ had the following
to say in
GW Willis v LB
Cauvin
4 NLR 97
at 98-99:
“
The
general rule seems to be that a judgment, without jurisdiction in the
Judge pronouncing it, is ineffectual and null.”
The
law as set out in
Willis
v LB Cauvin
supra
was cited with approval in
Lewis
& Marks v Middel
1904 TS 291
,
where Mason J, with whom Innes CJ and Bristowe J concurred, held at
page 303 that:
It
was maintained that the only remedy was to appeal against the
decision of the Land Commission; but we think that the authorities
are quite clear that where legal proceedings are initiated against a
party, and he is not cited to appear, they are null and void;
and
upon proof of invalidity the decision may be disregarded, in the same
way as a decision given without jurisdiction, without
the necessity
of a formal order setting it aside (Voet, 2, 4, 14; and 66; 49, 8, 1,
and 3; Groenewegen, ad Cod. 2; 41; 7, 54; Willis
v Cauvin,
4 N.L.R.
98
; Rex v Stockwell,
[1903] T.S. 177
; Barnett & Co. v Burnester &
Co.,
[1903] T.H 30).
”
In
Sliom
v Wallach’s Printing and Publishing Co Ltd
1925 TPD 650
Curlewis
JP with Krause J concurring had the following to say at 656:
“
The
action, therefore, of the respondent company in applying for
judgment, apparently by default, against the individual partner
Sliom, the appellant in the present case, was an illegal and wrongful
act. A judgment was thereby obtained against a person
who had
not been legally cited before the Court, and the effect of that
judgment is that it is a nullity; it is invalid and of
no effect.
In the case of Lewis & Marks v Middel, to which Mr Murray has
referred us, and also in an earlier case where
the Roman-Dutch
authorities were examined, it was laid down on the authority of
Voet
that
a judgment given against a person who had not been duly cited before
the Court is of no effect whatsoever. It is a nullity
and can
be disregarded. It seems to me that is the position here.
A judgment was obtained against the individual Sliom
personally,
whereas he had never been cited personally and individually to appear
before the Court. Therefore, that judgment
was wrongly obtained
against him, and that judgment, in my opinion, was a nullity as far
as he was concerned.”
Finally,
the law as set out in Lewis & Marks v Middel was followed by the
Appellate Division in
S
v Absalom
1989 (3) SA 154
(A) at 164
,
where the Court stated that:
“
Dit
volg dus dat die Volle Hof myns insiens geen bevoegdheid gehad het om
die appél aan te hoor nie. Die gevolg, meen
ek, was,
soos voorspel deur Strydom R, dat die Volle Hof se uitspraak ‘n
nietigheid was. Sien, benewens die bronne,
aangehaal deur
Strydom R, Voet Commentarius ad Pandectus 49.8.1 en 3; Groenewegen De
Legibus Abrogatis, Ad Cod 7.64; Lewis &
Marks v Middel 1904 (TS)
291 op303; Sliom v Wallach’s Printing and Publishing Co Ltd
1925 TPD 650
op 656 en Trade Fairs and Promotions (Pty) Ltd v Thomson
and Another
1984 (4) SA 177
(W) op 183 D-E. Soos blyk uit
hierdie bronne, het die uitspraak van ‘n hof wat nie
regsbevoegdheid het nie, geen regskrag
nie, en kan dit eenvoudig
geïgnoreer word. Groenwegen (loc cit) sê weldra dit
gaan oor die nietigheid van ‘n
uitspraak van die Hooggeregshof,
die Princeps se hulp ingeroep moet word, maar hierdie reël geld
nie meer by ons nie.”
[29]
We are therefore strongly of the view that the order of Collis AJ was
an order given without jurisdiction. It is therefore
an invalid
order that may be disregarded without the necessity of a formal order
setting it aside. The respondents were therefore
not justified
and entitled to rely on it for their action proceedings against the
appellant in this matter. We found several
other material
problems with the respondent’s action as it served before
Justice Mngqibisa-Thusi. The first of
these material
problems relates to the pleadings.
THE
PLEADINGS
[30]
It is clear that plaintiffs’ claim is based on the
actio
iniuriarum
and it is also clear that the Judge a quo regarded it
as such (Judgment p. 360). This is a form of delict, and
obviously the
relevant elements thereof need to be pleaded and
proven. These elements are conveniently set out in
Amler’s
Precedence of Pleadings, 8
TH
Edition by L.
Harms, Lexis-Nexis at 205
. At the very least, the
particular plaintiff must allege and prove wrongfulness as well as
animus iniuriandi
. It is clear that facts must be
pleaded which would lead to a reasonable inference of
animus
iniuriandi
. The test is an objective one.
See:
Jackson
v SA National Institute for Crime Prevention
1976 (3) SA 1
(A).
It
is also clear that there is a distinction in the Law of Delict
between the elements of wrongfulness and fault or blameworthiness.
In addition, there must obviously be a causal connection between the
conduct complained of, and the plaintiffs’ harm.
See:
McCarthy
v Sunset Beach Trading 300
2012 (6) SA 551
GNP at 559 par. 12
,
where the relevant authorities are referred to. The whole topic is
also dealt with in great detail in
Neethling-Potgieter-Visser,
Law of Delict 7
TH
Edition, Lexis-Nexis at 36
and further.
[31]
Plaintiffs’ particulars of claim however, have not pleaded the
necessary elements of the delict relied
on. In par. 11 of the
particulars of claim, it was stated that on 18 August 2013, first and
second plaintiffs were refused
entry into the Republic and were
informed that they had been placed on a so-called “V”
list, which accorded that they
were prohibited persons. Following
allegation is then made: “This listing was incorrect”.
In par. 14 of the particulars
of claim, the same allegation as to
“incorrect” listing was repeated and it was then
concluded that this constituted
an infringement of plaintiffs’
various constitutional rights. In par. 15 however, it is then pleaded
that these infringements
were caused by the “intentional
alternatively negligent conduct of first defendant’s
employees”, who conducted
themselves in the following manner:
“They wrongly placed an endorsement on first respondent’s
traveller’s record
system describing the first plaintiff as
prohibited person and the second plaintiff as an illegal foreigner”.
Again
it was pleaded that this endorsement was “wrong”.
In par. 16 of the particulars of claim, it was in addition pleaded
that the defendants as the Immigration Authority South Africa owed a
“duty of care” to the plaintiffs as residents
in the
Republic. In that context, it was pleaded that defendants
failed to exercise the standard of care of a reasonable
immigration
authority.
[32]
It is immediately obvious that plaintiffs in the main relied on the
fact that the Immigration Authorities made
an error by placing the
plaintiffs’ names on the so-called “V” list. This
was done intentionally, but erroneously
according to the particulars
of claim. No details of the negligent conduct in this regard were
pleaded and no facts relating to
the alleged “duty of care”
were pleaded. See in this context the discussion about the role of
the “duty of care”
vis-à-vis the “legal
duty” in the decision of
McCarthy
supra
. Reliance
on a “duty of care” is obviously misplaced and it is not
pleaded on which facts a legal duty arose.
[33]
It is clear from defendant’s plea that issues relating to
animus iniuriandi
, negligence and wrongfulness in general,
were put in issue. This was also emphasized by the defendant’s
Counsel at the time,
as clearly appears from the record. (See pages
169, 170 and 186). Despite these issues being plainly before the
Court, the Judge
in the Court a quo had disallowed any
cross-examination on the essential elements of the delict relied
upon. The learned Judge
was plainly of the view that the judgment of
Collis AJ was sufficient to have established a cause of action.
[34]
In my view, the elements of the delict relied upon were not properly
pleaded, remained an issue before a Court,
and were ultimately not
proven in any event. This would include the question of causation and
damages. It is abundantly clear that
the respondents, as well as the
Court, regarded the judgment of Collis AJ as being sufficient to have
established a cause of action,
the only outstanding aspect then being
the question of quantum. In my view, this is plainly wrong, and quite
apart from any other
argument, would be a sufficient reason to uphold
the appeal.
[35]
Lastly, it also appears from the evidence of the first respondent
himself, that he only regarded the relevant endorsement
as being
“wrong”. His evidence also does not support a cause of
action based in delict, and in particular, on the
actio
iniuriarum
.
[36]
The
Bill of Rights in the Constitution of the Republic of South
Africa Act 108 of 1996
protects fundamental rights relating to
human dignity, freedom and security and freedom of movement and
residence. The same
rights also enjoy the protection of the
actio injuriarum
. It was argued by Mr Cassim, Counsel
for the appellant that therefore, a claim based on the violation of
the said rights
must not be based on the constitutional rights but
instead should be based on common law rights. We agree with
him.
In this regard he found support in the case of
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) paras. 27, 28 and 45
.
In conclusion he referred us to paragraph 45 of the same authority in
which it is stated as follows:
“
In
the circumstances, the applicants have not shown that the common law
as currently developed is inconsistent with the provisions
of the
Constitution and their appeal must fail.”
[37]
It is therefore not possible in law to base a delictual claim on the
provisions of the
Constitution
. There is, in our law, no
delictual claim arising from the
Constitution
. This is
our law as ably demonstrated by the following excerpt from
LAWSA
page 90 paragraph 61
:
“
Infringements
of rights entrenched in chapter two do not per se entitle a person to
sue in delict, or result in successful delictual
claims. To
found a claim for compensation the fundamental right must (a) be
recognised as a subjective right, or create a
legal duty in delict,
and (b) the infringement of that right or breach of that duty must
violate a societal norm. In Jooste
v Botha
2002 BCLR 187
T or
2002 SA 199
(T) the Court was asked to recognise, on the strength of
section 28 of the Constitution, that a child has a delictual right to
parental love, attention and affection. However, the court
declined to extend the law of delict to such instances, partly
because such right was never recognised at common law, but also
because of social policy. Nonetheless, the case illustrates
that, as part of the wrongfulness inquiry, the Bill of Rights
operates at two levels: in some instances its provisions may
serve to establish or confirm the existence of a subjective right
but, more often, it will serve as one of the factors determining
society’s norm. In the latter instance, policy decisions
and value judgments are to be enriched by constitutional norms.”
See
in this regard
Carmichele
v Minister of Safety and Security
2001 10 BCLR 995
(CC)
.
[38]
We now conclude that when the matter came before Mngqibisa-Thusi J
the Court should have found, as we now do, that the respondents
had
not pleaded their case properly and should have dismissed their
action.
[39]
Lastly, we unfortunately have to address another topic: during the
trial, both legal representatives lost control
of their emotions, if
not minds, at a certain level. They repeatedly insulted each other
with reference to their race and religion
as well. This cannot be
tolerated, nor condoned. They showed no respect for each other, and
also, no respect for the Court. The
learned Judge a quo showed the
greatest restraint however. Nevertheless, we deem it important to say
that she would have been justified
to postpone the proceedings and to
have ordered the particular Counsel and Attorney to pay the wasted
costs personally.
Insults
in Court are not to be tolerated, no matter what the subject-matter
at hand is. There is no room for abuse or insults in
Court
proceedings, be it verbally, or in affidavits. The legal
representatives also showed no respect for the constitutional rights
they purported to defend: i.e. the right to dignity, as an example.
[40]
We did not deem it necessary to deal with other grounds of appeal.
The issues raised above are sufficient to enable us
to arrive at a
conclusion which is that:
1.
The appeal is upheld with costs.
2.
The order of the trial court is hereby set aside and in its place is
substituted the following:
“
The
plaintiffs’ claims are dismissed with costs.”
PM
MABUSE
JUDGE
OF THE HIGH COURT
HJ
FABRICIUS
JUDGE
OF THE HIGH COURT
MJ
TEFFO
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the
Appellant:
Adv NA Cassim (SC)
(NOT
THE COUNSEL AT THE HEARING A QUO WHO WAS BOFILATOS SC)
Adv
S Freese
(NOT
THE COUNSEL AT THE HEARING A QUO WHO WAS BOFILATOS SC)
Instructed
by:
The State Attorney
Counsel
for the first respondent:
Mr Z Omar
Counsel
for the second, third and fourth respondents:
Adv PW Springveldt
Instructed
by:
Zehir Omar Attorneys
c/o
Friedland Hart Solomon & Nicolson
Date
Heard:
30 January 2019
Date
of Judgment:
14
February 2019