About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 34
|
|
Leanya v The Regional Magistrate, Bloemfontein and Another (A205/2017) [2019] ZAFSHC 34 (13 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
YES
Case number:
A205/2017
In
the matter between:
THUSO
ABRAM LEANYA
Applicant
and
THE REGIONAL
MAGISTRATE,
BLOEMFONTEIN
1
st
Respondent
NATIONAL PROSECUTING
AUTHORITY:
FREE
STATE
2
nd
Respondent
CORAM:
JORDAAN, J
et
DAFFUE, J
HEARD
ON:
13 MAY 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
13
MAY 2019
I
INTRODUCTION
[1]
This
is an application for review of proceedings in the Regional Court,
Bloemfontein. The application papers are in a chaotic
condition
and contrary to Uniform Rule of Court 62, read with this Division’s
Practice Direction 1/2015, incorrectly collated,
secured and bound.
We are confronted with two sets of heads of argument by applicant’s
counsel consisting of 210 pages,
the last set filed as late as one
court day before the hearing of this application. More will be
said about the heads of
argument later. Notwithstanding the
condition of the application papers we decided to consider the merits
of the application
in the interest of justice.
II
THE PARTIES
[2]
The
applicant is Mr Thuso Abram Leanya, a former procurement officer of
the Mohokare Local Municipality. He is the accused
in the
Regional Court, Bloemfontein, facing 186 counts of fraud and one
count of money laundering. He is represented in the
Regional
Court by Adv Erwin Smit who also appeared on his behalf before us on
the so-called
“
autonomous
instructions”
–
whatever
that means - of Tshepo Thusi Attorneys.
[3]
First
respondent is the Regional Magistrate, Bloemfontein. She does
not oppose the application and abides by the decision
of this court.
[4]
Second
respondent is the National Director of Public Prosecutions
(“NDPP”). Adv JBK Swanepoel of the DPP,
Free
State represented the NDPP before us. I shall refer to the NDPP
as the respondent in this judgment as it is the only
respondent who
opposes the application, unlike what applicant’s counsel
pretended in his supplementary heads of arguments
which I shall refer
to later.
III
THE RELIEF SOUGHT
[5]
On
3 August 2018 applicant filed an amended notice of motion, signed by
Mr Smit. This document, as is the case with the original
notice
of motion, refers extensively to case law, contains argument and
several quotations. This is contrary to practice
and more will
be said about this later.
[6]
Applicant
seeks the following relief (if he is correctly understood
notwithstanding the elaborate and even confusing manner in which
the
papers have been drawn):
(1)
That this
court rule that respondent may not lead
viva
voce
evidence at the trial of any witnesses whose statements are not
contained in Part A of the docket, although these statements are
captured on the CD presented to his legal representative months
before he was called upon to plead;
(2)
That
this court rule that the Justices of Peace and Commissioner of Oaths
Act, 16 of 1963 and the 1972 Regulations issued in terms
thereof are
peremptory;
(3)
That
the evidence of Ms T Swart and Ms A Barnard, who testified already in
the main trial and were fully cross-examined, be declared
inadmissible in that their witness statements were not contained in
Part A of the docket, although captured on the CD, and also
insofar
as the statements do not qualify as affidavits in that the oath was
not administered properly (these females were referred
to as
“
he”
in the attestation
clauses);
(4)
That
the purported section 236
[1]
affidavits did not form
part of Part A of the docket and furthermore, that these affidavits
and the annexures thereto,
inter
alia
bank statements of the complainant and applicant’s bank
accounts, could not be used as documentary evidence in order to serve
as
prima
facie
proof and should be declared inadmissible; also that the
commissioners of oath could not be called in the trial-within-a-trial
to remedy defects to these documents.
IV
THE OPPOSITION
[7]
The
respondent
in
limine
opposes the application on the basis that the trial court has not
made any ruling on the admissibility of the witness statements
and/or
whether these affidavits may be used in accordance with the
provisions of section 236.
[8]
The
respondent also dealt with the merits in its opposition and insisted,
based on section 35(5) of the Constitution, that evidence
obtained in
a manner that violates any right of the Bill of Rights shall be
excluded if the admission thereof would render the
trial unfair or
otherwise be detrimental to the administration of justice. It
is its case with reference to
Key
v Attorney General, Cape Provincial Division & another
[2]
that a
“
predilection
for technical niceties and ingenious legal stratagems”
should not be
countenanced.
[9]
It
also dealt with the pervasive feature of white collar crime cases
where accused persons and their legal representatives embark
on
preliminary litigation in an effort to delay the start and/or
conclusion of criminal cases.
V THE
REVIEW OF UNCOMPLETED CRIMINAL PROCEEDINGS
[10]
Hancke
and Pickering JJ considered the applicable principles pertaining to
reviews of uncompleted criminal proceedings in
Motata
v Nair NO
[3]
and for the sake of convenience I quote extensively from
paragraphs [9] – [12]:
“
[9]
It is trite that, as a general rule, a High Court will not, by way of
entertaining an application for review,
interfere with
uncompleted proceedings in a lower court. As stated in
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959
(3) SA 113
(A)
at
119G, the High Court will not ordinarily interfere whether by way of
appeal or review before a conviction has taken place in
the lower
court even if the point decided against the accused by a magistrate
is fundamental to the accused's guilt. At 119H -
120A Ogilvie
Thompson JA (as he then was) stated as follows:
‘
It
is true that, by virtue of its inherent power to restrain
illegalities in inferior courts, the Supreme Court may, in a
proper case, grant relief - by way of review, interdict,
or
mandamus
-
against the decision of a magistrate's court given before conviction.
(See
Ellis
v.
Visser
and Another
,
1956 (2) S.A. 117
(W), and
R.
v
.
Marais
,
1959 (1) S.A. 98
(T), where most of the decisions are collated).
This, however, is a power which is to be sparingly exercised. It is
impracticable
to attempt any precise definition of the ambit of
this power; for each case must depend upon its own circumstances. The
learned
authors of
Gardiner
and Lansdown
(6th
ed., vol. I p. 750) state: 'While a superior court having
jurisdiction in review or appeal will be slow to exercise any
power,
whether by
mandamus
or
otherwise, upon the unterminated course of proceedings in a court
below, it certainly has the power to do so, and
will do so in rare
cases where grave injustice might otherwise result or where justice
might not by other means be attained . .
.. In general, however, it
will hesitate to intervene, especially having regard to the effect of
such a procedure upon the continuity
of proceedings in the court
below, and to the fact that redress by means of review or appeal
will ordinarily be available.'
In
my judgment, that statement correctly reflects the position in
relation to unconcluded criminal proceedings in the magistrates'
courts.
At
120D, the learned judge continued: ‘(T)he prejudice,
inherent in an accused's being obliged to proceed to trial, and
possible conviction, in a magistrate's court before he is accorded an
opportunity of testing in the Supreme Court the correctness
of the
magistrate's decision overruling a preliminary, and perhaps a
fundamental, contention raised by the accused, does not
per
se
necessarily justify the Supreme Court in granting relief
before conviction (see too the observation of MURRAY, J., at pp.
123-4
of
Ellis'
case,
supra
). As
indicated earlier, each case falls to be decided on its own facts and
with due regard to the salutary general rule that appeals
are not
entertained piecemeal.’
[10]
In
Ismail
and Others v Additional Magistrate, Wynberg and Another
1963
(1) SA 1
(A)
,
the following was stated at 5H - 6A:
‘
I
should point out that it is not every failure of justice which would
amount to a gross irregularity justifying interference before
conviction. As was pointed out in
Wahlhaus
and Others
v
.
Additional Magistrate, Johannesburg and Another
,
1959 (3) S.A. 113
(A.D.) at p. 119, where the error relied upon is no
more than a wrong decision, the practical effect of allowing an
interlocutory
remedial procedure would be to bring the magistrate's
decision under appeal at a stage when no appeal lies. Although there
is no
sharply defined distinction between illegalities which will be
restrained by review before conviction on the ground of gross
irregularity,
on the one hand, and irregularities or errors which are
to be dealt with on appeal after conviction, on the other hand,
the distinction
is a real one and should be maintained. A
Superior Court should be slow to intervene in unterminated
proceedings in the court below,
and should, generally speaking,
confine the exercise of its powers to 'rare cases where grave
injustice might otherwise result
or where justice might not by other
means be attained' (
Wahlhaus's
case,
supra
at
p. 120).’
[11]
These principles have been applied in a number of later cases
including
Sita
and Another v Olivier NO and Another
1967
(2) SA 442
(A)
at
447E - F;
Lombard
en 'n Ander v Esterhuizen en 'n Ander
1993
(2) SACR 566
(W) at 569
e
- f
;
S
v Western Areas Ltd and Others
2005
(5) SA 214
(SCA)
(2005
(1) SACR 441)
in para 20.
[12]
It has been stressed that underlying the reluctance of the courts to
interfere in unterminated
proceedings in a lower court is the
undesirability of hearing appeals or reviews piecemeal. See
S
v The Attorney-General of the Western Cape; S v The Regional
Magistrate, Wynberg and Another
1999
(2) SACR 13 (C) at 22
e
- f
;
Nourse
v Van Heerden NO and Others
1999
(2) SACR 198 (W) at 207
d
- e
;
and
S
v Western Areas Ltd and Others
(supra)
where, in para 25, Howie P stated:
‘
Long
experience has taught that in general it is in the interests of
justice that an appeal await the completion of a case whether
civil
or criminal. Resort to a higher Court during proceedings can result
in delay, fragmentation of the process, determination
of issues
based on an inadequate record and the expenditure of time and effort
on issues which may not have arisen had the process
been left to run
its ordinary course.’”
[11]
No
decision and/or ruling has been made by the trial court and/or no
action or inaction by the trial court requires any review and
possible setting aside by this court. This observation does not
mean that we entirely agree with the approach followed, but
that is
not the test.
[12]
Applicant’s
counsel indicated on 23 May 2017
[4]
that he wanted to take
issues on review to the Constitutional Court or this court, but then
decided against that. I quote
the final discussion that took
place between the trial court and counsel on 19 June 2017 when the
matter was postponed to 26, 27
and 28 March 2018 in order to proceed
with the trial-within-a-trial
verbatim
[5]
:
“
COURT:
Right, so we do not, I am not expected to give a
ruling at this stage
with any interlocutory matter, because it has not been concluded.
I will then suspend the trial-within-a-trial
that we dealt with
relating to the 236 statements at this stage, pending the addition of
all these other issues the three objections
raised by the defence.
And you will then, I will the State to reopen its case in the
trial-within-a-trial, to include evidence
on these issues. And
then we will proceed within the trial-within-a-trial on these issues
up until you close your case on
again. So your case can be
reopened at this stage. I do not believe there will be an
objection from the defence.
MR
SMIT
:
It is in order, Your Worship;
that
is actually what I wanted from the start;
as the Court pleases.
COURT:
So Mr de Bruyn, your case is reopened.
PROSECUTOR: Thank you,
Ma’am.
COURT:
And the defence case is also reopened
at this stage, because they did
not provide any evidence, so it goes without saying that their case
is also reopened for them to
proceed at will to call any witnesses
they consider relevant.”
(my
emphasis).
[13]
I
am satisfied that, bearing in mind what has been stated herein, no
exceptional circumstances have been shown why this court should
interfere with the criminal proceedings pending in the trial court.
This is not a rare case which may result in a grave injustice.
As Harms DP said in
NDPP
v King,
[6]
potential prejudice may
be rectified during the course of the trial and preliminary rulings
may be revoked or amended, the effect
hereof being that
“
(I)rregularities
do not lead necessarily to a failure of justice”.
We
do not live in a perfect world and there
“
is
no such thing as perfect justice.”
In
paragraph [5] the learned judge relied on
Key
[7]
and
Thint
(Pty) Ltd v NDPP & others; Zuma v NDPP & others
[8]
while commenting in
strong language about the tendency of accused persons accused of
white collar crimes to rely on technicalities
and to embark on
preliminary litigation with no intention to co-operate in a process
that may lead to the finalisation of the criminal
trial. In
these case it is often the order of the day to attack the
prosecution. This is exactly what has been happening
in this
case. Applicant went further and even attacked the trial
magistrate as will be demonstrated.
[9]
This should really be the
end of the matter, but in fairness to the parties I considered it
appropriate to briefly deal with the
two pertinent issues raised by
applicant.
VI
THE BLANKET DOCKET PRIVILEGE RULE
[14]
The
Constitutional Court changed the law relating to
“
blanket
docket privilege”
expressed
in
R v
Steyn
[10]
in the seminal judgment
of
Shabalala
& others v Attorney General of Transvaal & another
[11]
,
finding
the rule to be inconsistent with the Constitution.
[15]
The
rule is easy to understand in our new democratic order and has
generally been complied with to the best of my knowledge by
prosecutors and State advocates ever since
Shabalala
.
This case makes it clear that those documents contained in Part A of
the Police docket,
i.e.
the witness statements, expert reports and documentary exhibits, may
not be withheld from an accused based on a so-called blanket
privilege. The information and documentation contained in Parts
B and C of the docket, being internal reports and memoranda
as well
as the investigation diary, are privileged and the accused is not
entitled thereto as a general rule.
[16]
In
this matter applicant does not complain that access to the documents
in Part A of the docket has been denied. His case
is that he
was provided with a CD containing much more evidence and evidential
material than what is in essence contained in hard
copy in Part A.
Apparently, the report of the forensic auditors,
PriceWaterhouseCoopers (“PWC”), including
statements
obtained by them from witnesses and documentary evidence such as bank
statements of the complainant and applicant’s
bank accounts do
not form part of Part A of the docket or to use respondent’s
terminology,
“
have
not formally been married to the docket”.
However, on 16 November
2015 the CD containing all these documents was made available to Mr
Smit when he substituted applicant’s
previous Legal Aid
attorney. This was several months before applicant was called
upon to plead to the charges which only
occurred on 29 June
2016.
[12]
[17]
It
is not for this court to direct the trial court how to deal with the
applicant’s insistence that
Shabalala
should be followed. I wish to make general comments only.
Shabalala
is not applicable. The applicant received the documents
contained in Part A of the docket and as conceded, several further
documents that the State intends to use which documents were
timeously made available to the defence. The State has played
open cards with the applicant and presented him with a forensic
report with accompanying documents consisting of apparently seven
lever arch files. Bearing in mind the number of lever arch
files presented to the registrar of this court and the fact that
the
transcribed record is contained in the first two files only,
voluminous documents have been provided to the defence.
There
is no complaint that they did not have sufficient time to peruse
these documents. Mr Smit’s reliance on
S
v Molimi
[13]
is misplaced and without
merit. In that case hearsay in the form of an extra-curial
confession by a co-accused against the
appellant which was not
repeated during the trial, was allowed. The CC held that it was
irregular for the trial court to
make a ruling at the end of the case
(that is after both parties have closed their cases). Such
practice has the effect that
“
the
accused will be left in a state of uncertainty as to the case he is
expected to meet and may be placed in a precarious situation
of
having to choose whether to adduce or challenge evidence.”
The CC’s
finding is with respect correct, but the facts differ from those in
this matter.
[18]
The
evidence of the two State witness, Swart and Barnard, who testified
in the main trial, cannot be declared inadmissible for the
reasons
advanced by applicant. If Mr Smit was caught by surprise, he
could have asked for an adjournment to consider the
statements and
obtain instructions on the merits of their versions, instead of
criticising the State for alleged technical deficiencies.
It is the
viva
voce
evidence that the trial court must consider eventually and not
whether the witness statements complied with the aforesaid
Regulations.
Witness statements, unless the CPA provides
otherwise, cannot be handed in to serve as the evidential material
before the
court. Witnesses must, as a general rule, present
viva
voce
evidence in order to be cross-examined.
[19]
I
said earlier that we do not live in a perfect world and although it
is advisable that all documents to be relied upon by the State
are
provided to the accused before a trial date is arranged, we know from
experience that ballistic reports, DNA reports and several
other
documentary evidence are often obtained late and after the contents
of Part A of the docket had been made available to accused
persons.
Matters are usually rectified by either postponing the case if so
required, or for the matter to stand down for
a while, to obtain
proper instructions. It is common cause that the South African
Police Service does not have the capacity
to investigate white collar
crime and in most of these cases forensic auditors are briefed to
assist with the investigation.
These reports and the
documentary evidence relied upon in order to prove a proper paper
trail are voluminous and it is not uncommon
that these documents are
captured in electronic format and not in hard copy. The mere
fact that these documents are not included
in Part A of the docket at
the stage when the contents thereof are made available to the
accused, or at all, cannot result in a
situation where the State is
prohibited from relying on those evidence as Mr Smit submits.
It is always a matter of fairness
and whether the accused is
prejudiced to such an extent that he did not receive a fair trial.
I have not heard any word from
the accused that he had been
prejudiced or will be prejudiced if evidence is allowed. The
fact that he might be convicted
based on admissible evidence cannot
be regarded as prejudice.
VII
THE ALLEGED UNSWORN STATEMENTS
[20]
Statements
that do not comply with the legislation and regulations may be found
to be defective to the extent that no reliance can
be placed on them
for purposes of section 236. Mr Smit referred to several
judgments, some which are in favour of his argument
and some against
him. The trial court must still rule on this issue and it would
be premature to present this court’s
view on the matter.
It needs to be clarified: I do not refer to witness statements in
general, but to those statements and/or
affidavits provided by the
CPA to be handed in as
prima
facie
proof, such as is the case with section 236.
[21]
The
purpose of section 236 is clear. It obviates the necessity of
calling bank officials to hand in documents which should
in most
cases not even be in dispute; therefore to shorten the proceedings.
We do not know what the applicant’s defence
is, but it is a
concern that a major issue is made of evidence relating to the bank
statements of his former employer, the complainant
in the criminal
case, and his own bank statements. I say this, having noted
from the charge sheet and annexure thereto that
it is the State’s
case that in 186 instances specified amounts of money were
transferred on specified dates over a number
of years to accounts of
the applicant. The total amount is approximately R900 000.00.
[22]
Even
if the trial court finds that the statements (affidavits) could not
be handed in in terms of section 236, it will not be the
end of the
matter. Nothing would then prevent the respondent to call the
particular witnesses, the bank officials, or if
they are not
available anymore, other bank officials in control of the bank
statements or who can positively testify about the
statements, to
testify for the State. Mr Smit submitted to the trial court
that such
viva
voce
evidence
would not be admissible in the following words:
[14]
“
It means that you
cannot enter the court without disclosing the evidence to the
defence, and if it is not affidavits, there is nothing
we can work
out, because they can come in and now tailor the evidence, because we
do not have anything under oath to bind them
upon, and that is the
argument here.”
Mr Smit’s
submission appears to be that if there was no compliance pertaining
to attestation of all the affidavits (statements)
- not only the
section 236 statements - but all other witness statements in the
docket or contained on the CD, then the State would
not be in a
position to present any admissible evidence at all and his client
would go free. This is absurd and the argument
is rejected.
Justice is not a one-way street: an accused is entitled to a fair
trial, but the State, representing the public
and acting in the
interest of the public purse in this instance, is entitled to
fairness as well. The irony of Mr Smit’s
argument is that
he indicated initially that he would not have any objection if the
witnesses who testified in the trial-within-a-trial
were called to
testify in the main trial, but when the trial magistrate indicated
that he was confusing her, he changed tack and
made it clear that on
“
face
value of the State’s case files, the State is not in a position
to lead any further evidence in this matter, because
it is
inadmissible …. So we say all the affidavits are inadmissible
because of the presumption of irregularity.”
[15]
I quote from the
transcribed record as Mr Smit has
ad
naseam
made the same submissions in this regard and on other aspects from
the onset and continued to do so in this court. His argument
is
rejected.
VIII
THE CONDUCT OF APPLICANT’S COUNSEL
[23]
Mr
Smit was requested to address the court in view of the respondent’s
stance that he should be ordered to pay the costs of
the application
de bonis
propriis
.
His attempts in this regard were not at all meritorious. The
following conduct requires censure:
(1)
He failed to accept the CD and insisted on hard copies of the
documents captured on the CD. This
reminds me of Mr King who
wanted the prosecution to present him with copies of all relevant
documentation free of charge.
The SCA stated that “
the
application was cynical, and without any merit and was brought purely
with a view to delay the criminal proceedings.”
[16]
(2)
The change of attitude pertaining to the trial-within-a-trial cannot
be overlooked. The real issue
to be addressed was the
admissibility of the documents pretending to be affidavits for
purposes of section 236 of the CPA.
During the proceedings and
after the State has closed its case, Mr Smit decided to attack the
authority of PWC, the forensic auditors,
who had been mandated by the
complainant to do a forensic audit. He even went so far to
attack the validity of the procedure
undertaken by the State in terms
of section 205 of the CPA to obtain evidence from bank officials.
This caused the trial
court to widen the scope of the
trial-within-a-trial procedure, causing the court to rule that that
process should be continued,
and by agreement with the parties, their
cases were reopened to allow them to lead evidence in respect of
these issues as well.
[17]
(3)
The manner in which the trial court was referred to in Mr Smit’s
heads of argument is atrocious.
It is indicative of an
arrogant, unprofessional and unethical approach by counsel which I
have never come across. The trial
magistrate is labelled in the
initial heads of argument as the
“
main
culprit”
and
when respondent’s counsel pointed this out, Mr Smit tried to
escape from being reprimanded by quoting a less damning meaning
of
“
culprit”
and relying on the fact
that he is actually Afrikaans speaking. It is not necessary to
become involved in semantics, but the
New Oxford Dictionary defines
“
culprit”
also as
“
a
person accused of a criminal offence”
and
even
“
a
person guilty of a criminal offence.”
Mr
Smit, instead of tendering an excuse, carried on in his supplementary
heads by stating that it
“
is
highly irregular that the National Prosecuting Authority is
representing the First Respondent”
(the
trial magistrate);
(T)he
independence of the Regional Court has been tarnished here as well as
the National Prosecuting Authority is now the mouthpiece
of the
‘Regional Court”’;
and
“
(S)uffice
to say that the custom of citing the ‘Regional Magistrate’
in litigation ….should actually change in
future as it is
actually the ‘Regional Court Bloemfontein as per the Honourable
Magistrate Soomaroo’ who is on trial
here. In other words
the Criminal Regional Court Bloemfontein is on trial here.”
To say the
least, this is outrageous speech by a legal practitioner that should
not be tolerated. He knows that the first
respondent decided to
abide the decision of this court, but apparently relied on a mistake
in the covering sheet filed by the State
Attorney referring to
“
respondents’”
heads of argument –
the plural form - instead of to second respondent’s heads.
Mr Smit’s unwitty approach
is deplorable.
(4)
The manner in which this court was addressed in the heads of argument
is also far from what is expected
of a legal practitioner. I do
not intend to refer to several examples of an arrogant attitude
displayed towards the court.
(5)
The fact that Mr Smit took over the role of attorney is indicative of
the subjective manner in which
he approached the litigation from the
onset and in this court as well. He not only signed the amended
notice of motion and
the notice of set down which is the obligation
of the attorney and not counsel, but the applicant’s attorney
was actually
side-stepped and possibly ignored in the process.
It is apparent from the documents that Mr Smit is not a member of any
recognised
society of advocates, but a private investigator and
member of L.A.P.I., also known as Legal and Private Investigations.
(6) Clearly,
the application bundles have been prepared by Mr Smit and not his
attorney. These do not comply with
the court’s Practice
Directive 1/2015. The documents, some of them being printed
double-sided, are not bound in such
a way that permit both sides to
be fully legible without turning one’s head or neck 45 degrees
clockwise or by turning the
document the same degrees
anti-clockwise. Furthermore, Mr Smit saw it fit to attach his
various written submissions presented
to the trial court to the
founding affidavit, whilst both notices of motion are in essence
consisting of legal argument –
all and all, we have been
presented with an application and heads of argument in excess of a
thousand pages, excluding the two
volumes in excess of 800 pages
consisting of the charge sheet, evidence and repetitive oral and
written submissions presented to
the trial court;
(7)
Applicant caused the trial court to arrange for the record to be
transcribed and copies to be made of
numerous exhibits which is a
prescript of rule 53 – a total of eleven lever arch files have
been filed with the registrar
of this court – but then Mr Smit
decided that the transcribed record is irrelevant, although extracts
thereof have been made
and attached to his papers as it pleased him.
(8)
The two lengthy heads of argument with unnecessary repetition and
quotations from legislation, other
documents and case law are
inconsistent with vested practice. Mr Smit would be
well-advised to study retired Deputy President
Louis Harms’
article with the title, “
Heads
of argument in courts of appeal”
in
Advocate
,
December 2009 edition. He has no idea of the meaning of
“
concise.”
Both Uniform Rules of
Court 49(15) and 50(9), dealing with appeals, state that
“
concise
and succinct”
heads
of argument shall be filed, dealing with the
“
main
points (without elaboration).”
Superfluous
matter such as lengthy quotations should be eliminated or at least
kept within reasonable bounds. Excessive prolixity
may be
penalised.
[18]
The first set of heads of
argument comprises 239 pages. On Friday 10 May 2019, the last
court day before the hearing, Mr Smit
filed 68 pages of supplementary
heads of argument. The Rules of this Division
[19]
do not provide for what
is in essence a written response to the respondent’s heads of
argument. In this instance Mr Smit responded
to an extent to the
submissions of the respondent, but again repeated what has been
submitted in the first heads and also on more
than one occasion in
the criminal trial. Thirty years ago, Hefer, JA commented on
this issue in
Van
der Westhuizen NO v United Democratic Front
[20]
in no uncertain terms and
disallowed counsel’s fees for drafting their heads of argument
and ordered that their opponents’
heads of argument shall be
taxed on the basis that they comprise twenty pages only.
[24]
Punitive
costs orders against attorneys are granted from time to time.
See
Machumela
v Santam Insurance Co Ltd
[21]
and
SA
Liquor Traders’ Association v Gauteng Liquor Board.
[22]
In the
last-mentioned case O’Regan, J held that an order of costs
de
bonis propriis
is warranted where the negligence of the attorney is of a serious
degree. The order is made
“
as
a mark of the court’s displeasure.”
The
CC cited
Machumela
supra
and
Waar
v Louw
quoted in
Webb
v Botha
hereunder with approval. Similar orders against counsel are
rare especially insofar as advocates are not directly involved
with
the affairs of clients and do not drive the litigation. In this
matter counsel was actively in charge of proceedings
from the first
day he took over in the criminal court. A perusal of the record
serves as proof that he never requested an
opportunity to obtain
instructions from his attorney. In fact, he even allowed his
client to sign heads of argument and other
written submissions
clearly drafted by him and presented to the trial court. In
this court he acted as the attorney, signing
the amended notice of
motion and the notice of set down. His address in Pellissier, a
residential area, was used as the address
for delivery of documents.
His attorney, if he is still to be regarded as such, has taken a back
seat and was apparently
not involved in the litigation in this court,
save insofar as he has signed the original notice of motion which was
obviously drafted
by Mr Smit.
[25]
In
Webb &
others v Botha
[23]
the court dealt with an
attorney that was known for his propensity of taking highly technical
and often ill-considered objections
and I quote the following:
“
In any event, Mr
van Wyk ought to have advised his client to abandon the judgment when
he received the magistrate’s written
judgment and not to have
waited until costs had been incurred by the preparation of copies of
the record. Had he been unable
to unearth any “defects”
in the papers he would presumably have advised his client to concede
the appeal, or he might,
having regard to his propensity for taking
highly technical, and more often than not ill-founded, objections,
even have found some
other point on which to resist the appeal, in
either of which events his client would have become liable for
costs………..
As was pointed out by MT
STEYN J in
Waar v Louw
1977 (3) SA 297
(O) the Courts have in
the recent past tended to make attorneys pay for their mistakes.
MT STEYN J stated the reason for
this as follows:
“
Die prokureursamp is ‘n
hoë en verantwoordelike amp. Die prokureursberoep is ‘n
geleerde beroep wat groot
vaardigheid van sy lede verg. Foute
wat ‘n prokureur in gedingvoering begaan en wat onnodige koste
tot gevolg het,
moet derhalwe nie ligtelik oorgesien word nie.
En ‘n gedingvoerder behoort nie altyd verplig te word om self
die koste
te betaal wat deur die nalatigheid van sy Prokureur
veroorsaak is nie.”
He went on to mention
“oneerlikheid, moedswilligheid of nalatigheid van ‘n
ernstige aard” as examples of the kind
of conduct which will be
visited with an order for the payment of costs
de bonis propriis
.
[26]
In
Absa Bank Ltd v Public Protector
[24]
the full court commented as follows:
“The issue as to what order of costs would be appropriate falls
primarily within the discretion of a Court which must be
exercised in
a judicial manner. Generally speaking, a Court will not grant an
order for costs to be paid personally where a litigant
is acting in a
representative capacity. Herbstein & Van Winsen give the
following summary of the law in this regard:
"A representative litigant whose conduct is
so
unreasonable
as
to justify this special order can, despite
acting in good faith, be ordered to pay the costs de bonis propriis.
The Court will not,
however, make such an order lightly, and mere
errors of judgment will not be sufficient. It has been held that such
an order should
not be granted in the absence of
some
really
improper conduct, and that the fairness or unfairness of proceedings
honestly brought should not be scrutinised too closely.
The criterion
has
been stated to be actual misconduct of any
sort
or
recklessness, and the reasonableness of the conduct should be judged
from the point
of
view
of
the person of ordinary
ability bringing an average intelligence to bear on the issue in
question, not from that of the trained lawyer."
[27]
It
is apposite to mention
Turnbull-Jackson
v Hibiscus Coast Municipality
[25]
as Mr Smit has made much
noise about the trial magistrate, unnecessarily attacked her
personally as indicated above and already
paved the way to eventually
launch an application for her to recuse herself. Madlanga, J
said the following about an allegation
of bias against a
decision-maker:
“
This
would be the easiest stratagem for the unscrupulous to get rid of
unwanted decision-makers: if I insult you enough –
whatever
enough may be – you are out.”
[28]
Mr
Smit must take the brunt of the court’s displeasure with his
attitude and actions in light of the authorities quoted and
upon this
court exercising its discretion. He must be held liable in his
personal capacity for a portion of the costs incurred
herein.
This matter should be referred to the Free State Society of Advocates
to be dealt with in an appropriate manner.
[29]
The
applicant should be ordered to pay some of the costs as well as he
must have played a not too insignificant role in the tactics
adopted
herein. In my view it would be fair if applicant is ordered to
pay 50% of the second respondent’s costs of
the application and
his counsel, Adv Erwin Smit the balance of 50%
de
bonis propriis
.
They shall also pay the first respondent’s costs of preparing
and copying of the transcribed record and all documentation
contained
in the eleven lever arch files filed with registrar in equal
portions.
IX
CONCLUSIONS
[30]
In
conclusion it is confirmed that applicant has failed to show that any
irregularities, not to speak of reviewable irregularities,
have been
committed by the trial court, and even if that was the case, that any
exceptional circumstances exist why this court
should intervene
midstream in the part-heard proceedings in the Regional Court.
[31]
The
costs should follow the event, but as mentioned earlier, applicant’s
counsel should be ordered to pay a portion of the
second respondent’s
costs as well as the costs of preparing and copying of the record in
order to show this court’s
disapproval of the manner in which
he has conducted him thus far, not only in the trial court, but in
this court as well.
X
THE ORDERS
[32]
The
following orders are issued:
(1)
The
application is dismissed.
(2)
Applicant
and his counsel, Adv Erwin Smit, shall each pay 50% of the second
respondent’s costs in opposing the application
as well as the
first respondent’s costs of preparing and copying the
transcribed record, inclusive of all documentation such
as the charge
sheet and exhibits contained in the eleven lever arch files filed
with the registrar of this court.
(3)
The matter
is referred to the Free State Society of Advocates to consider the
approach of Adv Erwin Smit to the litigation and to
take appropriated
steps it may deem fit.
J P DAFFUE, J
I
concur
JORDAAN, J
On
behalf of Applicant
: Adv E Smit
Instructed
by
: Tshepo Thusi Attorneys
Bloemfontein
On
behalf of 2
nd
Respondent : Adv JBK
Swanepoel
Instructed
by
: NDPP
c/o the DPP, Free State
BLOEMFONTEIN
[1]
Of the Criminal Procedure Act, 51 of 1977 (“the
CPA”)
[2]
1996 (4) SA 187 (CC)
[3]
2009 (2) SA 575
(TPD)
[4]
Transcribed record, pp 766 – 769.
[5]
Transcribed record, pp 794/5.
[6]
2010 (2) SACR 146
(SCA) at paras [4] & [5].
[7]
Footnote 2 supra.
[8]
[2008] ZACC 13
;
2008 (2) SACR 421
(CC) paras [65] & [66].
[9]
Par [23] (3) infra.
[10]
1954 (1) SA 324 (A).
[11]
[1995] ZACC 12
;
1996 (1) SA 725
(CC) at par
[72]
.
[12]
Transcribed record, p 73.
[13]
[2008] ZACC 2
;
2008 (3) SA 608
(CC) at par
[42]
.
[14]
Transcribed record, p 113/4.
[15]
Transcribe record, pp 286 -288.
[16]
National Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA) at par [8].
[17]
See footnote 5 and the particular quotation.
[18]
Erasmus Superior Court Practice, D1- 661 to 693
and authorities relied upon.
[19]
Rule 13(4) in particular.
[20]
1989 (2) SA 242
(A) at 252 B – H. See
also: SA Post Office v De Lacy (19/08)
[2009] ZASCA 45
(13 May
2009) at paras [7] & [8].
[21]
1977 (1) SA 660
(A) at 664B.
[22]
2009 (1) SA 565
(CC) at par [54].
[23]
1980 (3) SA 666
(N) at 672C – 673H
[24]
[2018] 2 All SA 1
(GP) at par [125].
[25]
2014 (6) SA 592
(CC) at par [32].