Minister of Police v Vowana and Another (884/2014) [2019] ZAECMHC 5; [2019] 2 All SA 172 (ECM); 2019 (4) SA 297 (ECM); 2019 (2) SACR 148 (ECM) (14 February 2019)

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[2019] ZAECMHC 5
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Minister of Police v Vowana and Another (884/2014) [2019] ZAECMHC 5; [2019] 2 All SA 172 (ECM); 2019 (4) SA 297 (ECM); 2019 (2) SACR 148 (ECM) (14 February 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION - MTHATHA)
Case
No: 884/2014
“
Reportable
”
In
the matter between:
MINISTER
OF POLICE

Applicant
and
LINDA
BLESSING VOWANA

First Respondent
ZOLEKA
SUSAN PONOANE

Second Respondent
JUDGMENT
MALUSI
et
JOLWANA
JJ
:
[1]
The matter came by way of a review to set aside a judgment written by
the second respondent
in a trial presided over by the first
respondent.  The misconduct which culminated in this review, to
the best of our knowledge,
is unprecedented in the annals of the
judiciary in this country.  We hope it will never be repeated by
any judicial officer.
[2]
The first respondent was a magistrate based in the Magistrates’
Court for the
district of Herschel.  We were informed at the
hearing that the first respondent
(the magistrate)
passed away
before the date of hearing.  The second respondent is an
attorney in private practice.
[3]
It is necessary to provide a background which led to the trial in the
court
a quo.
An elderly woman was raped and murdered in her shack at Silindeni
Administrative Area, Sterkspruit.  A group of residents
in the
area attacked and burnt down the home of a person suspected to have
committed the crimes.  The police arrested six
people who had
allegedly been involved in the arson and mob justice.  Each of
the six persons later initiated a claim for
damages for unlawful
arrest and detention against the applicant
(the
Minister).
Before the trial in
the court
a quo
all six cases were consolidated into one case
(Case
No 12/2009)
as per agreement amongst
the parties.  The six plaintiffs were all represented by the
second respondent as their attorney
of record.
[4]
At the trial during November 2012 the Minister led the evidence of
one witness and
four of the plaintiffs tendered evidence.  The
magistrate reserved his judgment.
[5]
On 26 November 2012 the magistrate prepared a draft judgment which
was four pages
in length.  It will become clear later in this
judgment the reason we referred to this document as a draft
judgment.
He sent the unsigned draft judgment to the second
respondent per facsimile on 27 November 2012.  Shortly after the
second
respondent received the draft judgment she discussed it
telephonically with the magistrate.  The respondents contend
that
it was during this telephone conversation that an agreement was
reached between them that the second respondent would re-write the

draft judgment.  It was neither sent to the Minister’s
attorney nor was he informed of the involvement of the second

respondent in re-writing the draft.  The reasons for this
conduct have not been stated by either of the respondents.
[6]
On 30 November 2012 the second respondent sent per facsimile the
judgment to the magistrate.
The judgment was ten pages in
length with significant amendments and additions effected to the
draft.  In a statement made
later to the police the magistrate
stated that he considered the ten page judgment the ‘
final,
official judgment’.
Further comment on the
differences between the draft and the judgment will be provided
later.
[7]
On 4 December 2012 the magistrate appended his signature to the
judgment and sent
it per facsimile to the second respondent.
The Minister’s attorney collected a copy of the judgment in the
court file
from the Clerk of the Court.  He transmitted it to
the State Attorney for them to comply with the order.
[8]
It appears that during April 2013 the second respondent enforced
payment of the damages
and costs awarded to the plaintiff as these
had not been defrayed until then.  It is at this stage that it
came to the attention
of the Minister’s employees that there
had been a gross irregularity or misconduct in the writing of the
judgment.
A criminal case on a charge of corruption was opened
against the magistrate by the police in Sterkspruit.  The
magistrate
deposed to a warning statement and answered questions from
the police. The Minister launched the present review only on 1 April

2014.
[9]
At the hearing Mr Matyumza, who appeared on behalf of both
respondents, raised a
point in limine
that there has been an
unreasonable delay in the launch of the application by the Minister.
His argument relied on the contention
in the answering affidavit that
the judgment at issue was delivered ‘
during November 2012’
whereas this review application was launched only on 1 April 2014.
Mr Matyumza argued that there has been a delay of more
than sixteen
months which has not been explained.  The court was prevailed
upon to dismiss the application on this point without
a consideration
of the merits.
[10]
Mr Sishuba, who appeared on behalf of the Minister, submitted that
there has only been an eleven
months delay.  He argued that the
Minister could not have known of the misconduct until it came to the
attention of the police
during April 2013.  He correctly
conceded that there has been no explanation of the eleven months
delay.  He strongly
argued that the misconduct has been so
egregious and unlawful that the court ought to condone the delay so
as to deal with the
misconduct.
[11]
The Constitutional Court has held that when an applicant seeks
condonation for delay, a full
explanation that covers the entire
period must be provided.
[1]
That court has also stated that the delay cannot be ‘
evaluated
in a vacuum’.
It
is necessary that all the relevant factors be considered and a
determination be made whether or not there are sound reasons for

overlooking the delay.
[2]
Tasima
cautioned
that ‘
A
court should therefore exhibit vigilance, consideration and propriety
before overlooking a late review…’.
[3]
[12]
It is perhaps appropriate that the common law principles on undue
delay which were recently summarized by the full court of
this
division be highlighted. They are the following:
“
(a)
where no time limit has been specified for the institution of review
proceedings, such proceedings
must be instituted within a reasonable
time;
(b)
common law remedies may be withheld by a court if a party has delayed
unreasonably in bringing
the proceedings. The rationale for this rule
is that the respondent may be prejudiced by the delay because
witnesses may no longer
be available, or it may no longer have
recollection of the events;
(c)
the party seeking condonation must furnish a full and reasonable
explanation for the
delay which covers the entire duration thereof;
(d)
the issue as to whether or not the delay is unreasonable is a factual
enquiry and is not
related to the court’s discretion;
(e)
relevant factors to be taken into account in determining whether an
undue delay should be
condoned include the nature of the relief
sought, the extent and cause of the delay, its effects on the
administration of justice
and other litigants, the importance of the
issues to be raised in the proceedings, and the prospects of success,
and;
(f)
the potential of prejudice to the respondent occasioned by the delay
is a crucial
factor in determining whether a remedy should be granted
or withheld.
[4]
”
[13]
The issues raised in the review have a wider effect surpassing the
narrow interests of the parties
involved.  They affect the
public interest fundamentally.  The misconduct at issue is an
affront to the foundational
values of the Constitution and the basic
tenets of the judiciary.  The misconduct is a stain on the
judiciary which requires
that the court determines the merits.
It is of singular importance for the integrity of the judiciary that
the merits of
the review are considered.  It would be
‘
irresponsible and not in the interests of justice’
for this court not to consider the important issues to be raised on
the merits.  There has been no averment that the respondents

would be prejudiced if the delay is condoned and we also could not
find any.  The applicant has good prospects of success.
We
are in agreement with the approach propounded by Pickering J (Lowe J
concurring) when he dealt with a defective condonation
application
stating that:
“
Unsatisfactory
as the circumstances may be, due to the nature of the issues it is
preferable to deal with the merits.”
[5]
The
respondents’ point
in limine
stands to be dismissed and condonation granted.
[14]
In terms of section 165 of the Constitution
[6]
the judicial authority of the Republic is vested in the courts.  A
magistrate’s court is recognized by the Constitution
as a
court.  Section 165 of the Constitution provides:
“
165
(1)       The judicial authority of the
Republic is vested in the courts.
(2)
The courts are independent and subject
only to the Constitution and the law, which they must
apply
impartially and without fear, favour or prejudice.
(3)
No person or organ of state may interfere with the functioning of the
courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts
to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to
which it applies.”
[15]
When dealing with these foundational principles the Constitutional
Court has said:
[7]
“
[18]
The Constitution thus not only recognizes that courts are independent
and impartial, but
also provides important institutional protection for courts.
The provisions of section 165, forming part
of the Constitution that
is the supreme law, apply to all courts and judicial officers,
including magistrates’ courts and
magistrates.  These
provisions bind the Judiciary and the government and are enforceable
by the Superior Courts, including
this Court.  It is in this
context that the issues raised in the present matter must be decided.
.
. .
[19]
In De Lange v Smuts NO and Others, Ackerman J referred to the views
of the Canadian Supreme Court
in The Queen in Right of Canada v
Beauregard, Valente v The Queen and R v Genereux on the question of
what constitutes an independent
and impartial court, describing them
as being ‘instructive’. In this context, he mentioned the
following summary of
the essence of judicial independence given by
Dickson CJC in Beauregard’s case:
‘
Historically,
the generally accepted core of the principle of judicial independence
has been the complete liberty of individual
Judges to hear and decide
the cases that come before them: no outsider – be it
government, pressure group, individual, or
even another Judge –
should interfere in fact, or attempt to interfere, with the way in
which a Judge conducts his or her
case and makes his or her
decision.  This core continues to be central to the principle of
judicial independence.’
[20]
This requires judicial officers to act independently and impartially
in dealing with cases that come before them, and at institutional

level it requires structures to protect courts and judicial officers
against external interference.”
[16]
The requirement of judicial officers to not only be independent but
also be seen to be independent
is one of the foundational prescripts
of our law and one of the very important aspects of the rule of law –
a fundamental
jurisprudential principle.  On this constitutional
principle the Constitutional Court has said:
[8]
“
[31]
Judicial officers must act independently and impartially in the
discharge of their duties.  In addition, as O’Regan
J
points out in De Lange v Smuts, the courts in which they hold office
must exhibit institutional independence. That involves an

independence in the relationship between the courts and other arms of
government.  It is that relationship, as laid down in
the
Magistrates’ Act and the Magistrates’ Court Act that the
High Court held to be inconsistent with the Constitution.
[32]
In dealing with this, the High Court adopted the test used in R v
Genereux, which is whether
the court or tribunal ‘from the
objective stand point of a reasonable and informed person, will be
perceived as enjoying
the essential conditions of independence’.
That the appearance or perception of independence plays an important
role
in evaluating whether courts are sufficiently independent cannot
be doubted. The reasons for this are made clear by the Canadian

jurisprudence on the subject, particularly in Valentine v The Queen
where Le Dain J held that:
‘
Both
independence and impartiality are fundamental not only to the
capacity to do justice in a particular case but also to individual

and public confidence in the administration of justice.  Without
that confidence the system cannot command the respect and
acceptance
that are essential to its effective operations.  It is,
therefore, important that a tribunal should be perceived
as
independent, as well as impartial, and that the test for independence
should include that perception.’
The
jurisprudence of the European Court of Human Rights also supports the
principle that appearances must be considered when dealing
with the
independence of courts.
[33]
When considering the issues of appearances or perceptions, attention
must be paid to the fact
that the test is an objective one.
Canadian courts have held in testing for a lack impartiality
‘
the
apprehension of bias must be a reasonable one, held by reasonable and
right-minded persons, applying themselves to the question
and
obtaining thereon the required information.  In the words of the
Court of Appeal … that test is “what would
an informed
person, viewing the matter realistically and practically – and
having thought the matter through – conclude”.’
[17]
The above test which was formulated in the Canadian jurisprudence and
quoted sixteen years ago by our Constitutional Court
in the
Van
Rooyen
case does aptly define the
central issue in this matter.  The test is ‘
what
would an informed person, viewing the matter realistically and
practically – and having thought the matter through –

conclude.’
[18]
Among other things, section 165 of the Constitution deals with the
accountability of judicial
officers.  They account to all
persons to whom the Constitution applies.  The people are
entitled to assume with confidence
that the law is applied without
fear, favour or prejudice and the constitutional principle of
legality is painstakingly observed.
[19]
The independence of the courts and judicial officers is not only
enshrined in our Constitution
but it is a universal principle
respected by all civilized judicial systems.  The Bangalore
Principles of Judicial Conduct
[9]
identify independence, impartiality, integrity and propriety amongst
the six core-values of the judiciary.  These principles
are
intended to establish standards of ethical conduct for judges.
They provide guidance to judges in the performance of
their judicial
duties and afford the judiciary a framework for regulating judicial
conduct.
[20]
The Bangalore Principles of Judicial Conduct provide that:
“
a
Judge shall exercise the judicial function independently on the basis
of the Judge’s assessment of the facts and in accordance
with a
conscientious understanding of the law, free of any extraneous
influences, inducements, pressures, threats or interference
direct or
indirect from any quarter or for any reason…. Impartiality is
essential to the proper discharge of the judicial
office.  It
applies not only to the decision itself but also to the process by
which the decision is made.  A Judge shall
ensure his or her
conduct is above reproach in the view of a reasonable observer. …The
behavior and conduct of a Judge must
reaffirm the peoples’
faith in the integrity of the judiciary.  Justice must not
merely be done but must also be seen
to be done…A Judge shall
in his or her personal relations with individual members of the legal
profession who practice regularly
in the Judge’s court, avoid
situations which might reasonably give rise to the suspicion or
appearance of favoritism or partiality.”
[21]
The importance of the independence of the decision maker and the
reasons he/she has given for
the order has been stated in a number of
cases, mostly those dealing with bias.  The Constitutional Court
in
Stuttafords
Stores
[10]
dealt with a matter where the Judge had reproduced the heads of
argument of counsel for the respondents save for adding thirty-two

lines of his own writing.  It appeared that the judgment was
substantially a reproduction of the heads of argument instead
of
being the original reasoning of the Judge.  The Constitutional
Court stated as follows:
“
[10]
This Court has stated that furnishing reasons in a judgment—
‘
explains
to the parties, and to the public at large which has an interest in
courts being open and transparent, why a case is decided
as it is.
It is a discipline which curbs arbitrary judicial decisions.’
[11]
While some reliance on and invocation of counsel’s heads of
argument may not be improper,
it would have been better if the
judgment had been in the judge’s own words-
‘
The
true test of a correct decision is when one is able to formulate
convincing reasons (and reasons which convince oneself) justifying

it.  And there is no better discipline for a judge than writing
(or giving orally) such reasons.  It is only when one
does so
that it becomes clear whether all the necessary links in a chain of
reasoning are present; whether inferences drawn . .
. are properly
drawn; whether the relevant principles of law are what you thought
them to be; whether or not counsel’s argument
is as well
founded as it appeared to be at the hearing (or the converse); and so
on.
.
. .
The
very act of having to summarize in one’s own words what a
witness has said, or what is stated in an affidavit or what
a
document says or provides, is in itself a very good discipline and is
conducive to a better and more accurate understanding of
the case.’”
(
Footnotes omitted).
[22]
Meer J in
Calligeris
NO
[11]
was faced with facts strikingly similar to those in
Stuttafords
Stores
.
An award by an arbitrator was a word for word regurgitation of the
claimant’s heads of argument.  It did not
contain any
independent consideration or assessment of the defendant’s
argument and defence which were presented to the arbitrator
both
orally and in writing.  The learned Judge expressed herself in
the following terms:
“
.
. . the manner in which the arbitrator abrogated his duty to write
his own award, and his failure to address the trustees’

arguments and defences, prevented a fair trial of the issues.
In replicating the heads of argument as his award, the arbitrator
did
not exercise his own judgment in deciding the issues.  The
arbitrator’s actions clearly prevented the trustees from
having
its case fully and fairly determined and thus falls under the purview
of gross irregularity. . . His actions also permitted
his decision
making function to be usurped by the claimant’s heads of
argument in a manner subversive of his independence,
and prevented
the exercise of his own judgment in deciding the issues. . .”
[23]
The Supreme Court of Appeal had occasion in
Total
Support Management
[12]
to consider the conduct of an arbitrator who had an assistant
throughout the hearing.  After the hearing the assistant had

conducted research and based on a discussion with the arbitrator had
drawn the first draft of the award.  The arbitrator later
spent
fifteen hours writing the award himself though he had utilized the
draft drawn by the assistant.  The court expressed
itself in the
following apt words regarding the conduct of the arbitrator:
“
[41]
When selecting an arbitrator the parties to an arbitration agree to
someone in whom, by dint of (his or her)
experience and ability, they
can repose the necessary confidence and trust to determine their
dispute.  What they seek is
a judgment from the person chosen.
An arbitrator is not entitled to delegate this function.  He
alone must perform the
duties he has undertaken and with which he has
been entrusted,.... Because of the essentially personal nature of his
appointment
he should be circumspect about using the services of an
assistant....  In no circumstances may the assistant be allowed
to
usurp the decision making function of the arbitrator or act in a
manner subversive of his independence. . . .”
[24]
It is manifest that this matter impacts on section 34 of the
Constitution which provides:
“
Everyone
has the right to have a dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
The
learned Pickering J has stated that section 34 has the effect of
entrenching, as a constitutional value, the right to a fair

trial.
[13]
[25]
In
S
v Le Grange
[14]
where the Supreme Court of Appeal was dealing with the alleged bias
of a presiding officer, the following was stated:
“
[14]
A cornerstone of our legal system is the impartial adjudication of
disputes which come before our courts
and tribunals.  What the
law requires is not only that a judicial officer must conduct the
trial open-mindedly, impartially
and fairly, but that such conduct
must be ‘manifest to all those who are concerned in the trial
and its outcome . . . .’
The right to a fair trial is now
entrenched in our Constitution. . . . The fairness of a trial would
clearly be under threat if
a court does not apply the law and assess
the facts of the case impartially and without fear, favour or
prejudice.  The requirement
that justice must not only be done,
but also be seen to be done has been recognized as lying at the heart
of the right to a fair
trial.”
And
later in the judgment the learned Ponnan JA eruditely stated:
[15]
“
[21]
It must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial.
The integrity of the justice
system is anchored in the impartiality of the judiciary.  As a
matter of policy it is important
that the public should have
confidence in the courts.  Upon this social order and security
depend.  Fairness and impartiality
must be both subjectively
present and objectively demonstrated to the informed and reasonable
observer.  Impartiality can
be described - perhaps
somewhat
inexactly - as a state of mind in which the adjudicator is
disinterested in the outcome, and is open to persuasion by the

evidence and submissions. . . .  Bias is a condition or state of
mind which sways judgment and renders a judicial officer
unable to
exercise his or her functions impartially in a particular case.”
[26]
The magistrate forwarded his draft judgment to the second
respondent.  He thereafter discussed
the contents of his
judgment with the second respondent.  He agreed with her that
she would write the final judgment.
He engaged in the
dishonorable conduct of abdicating his responsibility of writing a
judgment in the matter to the second respondent.
Her
involvement in writing the judgment was the antithesis of
impartiality.  She had a vested interest in the outcome of the

case as she represented the four plaintiffs in the matter.  It
would have been most surprising if the judgment she wrote had

dismissed their claims!
[27]
An explanation of the misconduct by the
magistrate, who did not depose to an affidavit in these proceedings,

can be gleaned from an annexure to the replying affidavit.  This
is a warning statement made by the magistrate to the police
in
connection with a charge of corruption relating to the impugned
judgment.  This is the closest one gets to hearing an undiluted

version of events from the magistrate.
[28]
The magistrate stated the following:
“
2.
I made the judgment in the matter in question myself on 26 November
2012 and I gave
it to Miss Vuthu to type. After the judgment was
typed it was brought to me and I read it through. When I was
satisfied by the
content I then signed it (judgment) and I later
faxed it to Mrs Ponoane, the attorney of the plaintiffs on 27
November 2012.
I wish to add that my judgment was in favour of
Mrs Ponoane or the plaintiffs.
3.
Later on, I am not sure about the date, Mrs Ponoane phoned me to
confirm receipt
of the judgment.  On the day Mrs Ponoane phoned
me she also raised the format in which my judgment was written.
She
further informed me that there was a better format that she had
seen from a certain advocate with whom she handled another civil

matter.  Mrs Ponoane and myself agreed that she was to rewrite
my judgment, meaning the same judgment I already gave her,
in the
same manner she had seen without altering the content of my judgment.
4.
On 30 November 2012 I received a copy of the judgment that Mrs
Ponoane had re-written
for me.  That judgment was sent by fax to
Lady Grey Magistrates Court when I do magisterial work every Thursday
of the week.
Upon receiving the judgment from Mrs Ponoane I read it
through and I was interested by the format in which it was written.

When I was satisfied I signed the judgment from Mrs Ponoane.
5.
On 04 December 2012 I caused Mr Sipamla, a senior interpreter at
Sterkspruit
Magistrate’s Court to fax the same judgment back to
Mrs Ponoane. I kept the fax that I received from Mrs Ponoane in my
office
for future reference.
6.
There was no favour or benefit of any kind to anybody in the
process.”
[29]
The signed draft judgment never found its way to the court file.
The first respondent also
says he destroyed his manuscript thereof
after it was typed.  He did not even inform the applicant’s
attorney that he
had asked the plaintiffs’ attorney, the second
respondent, that his judgment was to be re-written by the latter for
whatever
reason. After the judgment was re-written from initially
having only four pages it more than doubled to ten pages. This is not
explained.  Most importantly the only signed judgment that was
found in the court file is the ten page judgment which had admittedly

been re-written by the second respondent.
[30]
With these scandalous anomalies not having been
explained we are unable to accept the innocence with which
this
behaviour is sought to be deceptively imbued.  On the
respondents’ own showing it is clear that there was improper

conduct on the part of the magistrate who got the second respondent
involved in his work, all without the knowledge of the applicant.

The behaviour of the second respondent was equally deplorable,
probably driven by improper motives.  According to her version

it was her unsolicited suggestion that the judgment of the first
respondent be re-written so that it then ‘
is
in keeping with modern trends of judgment writing
’.
[31]
The behaviour of both respondents has not been explained on any
cogent basis.  It was dishonest and crafty for the magistrate
to
have no compunction at all at having had secret liaisons with the
plaintiffs’ attorney about a matter in which he presided.

Similarly the second respondent who, after all, is an officer of this
court, perhaps blinded by dishonesty and unprofessionalism,
sees
nothing wrong with what they both did.  Her own craftiness and
deceit is palpable and in our view has brought the attorneys’

profession into disrepute.  The audacity with which she sought
to unashamedly explain the inexplicable even when her subterfuge
had
been uncovered is shocking.
[32]
This brings us to the magistrate’s election not to depose to an
affidavit in these proceedings
and instead, merely deposing to a
confirmatory affidavit.  In a case of this nature in respect of
which a judicial officer
is a litigant it is simply not enough for
such a respondent to be content with merely deposing to a
confirmatory affidavit.
[33]
It is odd and perturbing, to put it mildly, that the magistrate saw
no need to depose to an affidavit
and in his own words account on how
he exercised the authority that the Constitution vests in him. It
needs no emphasis that a
judicial officer in respect of a matter in
which he presided is not an ordinary litigant when the exercise of
his judicial authority
is being questioned.  In such an
affidavit the magistrate ought to have given a full, personal version
of events in his own
words. This is crucial in light of the fact that
in essence, the misconduct is that he had abdicated his judicial
office and thus
put the judiciary as an institution into disrepute.
[34]
The conduct of the magistrate is utterly unacceptable as he is not an
ordinary litigant.
This court was confronted with the
unedifying spectacle of a magistrate deposing to a confirmatory
affidavit when it
is
his judgment that was at issue in the review. Instead the attorney
for the plaintiffs
(second respondent)
deposed to the answering affidavit.  This was deplorable conduct
by the magistrate in failing to explain his scandalous abrogation
of
the responsibility of writing a judgment to the attorney.  Our
view that the magistrate had compromised his independence
and
impartiality was bolstered by the fact both respondents were
represented by the same firm of private attorneys – the
second
respondent’s firm - and the same Counsel.
[35]
A comparison of the draft and the judgment indicates that the
judgment was predominantly in the
second respondent’s words.
She assessed the evidence of the witnesses and decided to reject the
evidence of the Minister’s
sole witness.  She further
accepted the evidence of her own clients and gave reasons for doing
so.  The difference between
the two documents is pronounced.
This misconduct violated the core values of the judiciary including
the truism from antiquity
that ‘
one
cannot be a judge in his own case’.
[36]
The second respondent astonishingly explained the differences between
the draft and the judgment
in the following terms:
“
I
wish to point out that even where one compares these two annexures
[the draft and the judgment], he will find that their tone
and style
is not the same up to their respective court order though the content
of the results it’s the same being in favour
of the
plaintiff.”
Read
in the context of the affidavit as a whole, she makes the point that
the re-writing was not improper as the magistrate had
already
indicated the order to be granted in the draft.  The magistrate
in his statement to the police labours under the same
fallacious
reasoning that only the order is important.
[37]
A court order is a consequence of the assessment of the evidence and
the application of the law
to the facts.  It is manifest from
the authorities cited above that it is not only the order that is
important.  Equally
important are the reasons which result in
the order.  The process of coming to a decision for a judicial
officer starts with
the consideration of the matter and a formulation
of the reasons.  It is those initial steps that inform the order
to be granted.
It is an act of inherent intellectual dishonesty
at best and at worst down-right fraudulent to have one person decide
what order
to give and thereafter have another person make up the
reasons for that order post
facto
.
[38]
In the answering affidavit the respondents sought refuge in the
version that the draft had been
the magistrate’s judgment.
The second respondent asserted that she only improved on the draft to
show the magistrate
a better way to write a judgment in the future.
This version only has to be stated for it to be rejected as a
fabrication.
The purported signed version of the draft sent to
the second respondent has never been produced nor was it placed in
the court
file.  For all we know, it does not exist.  The
magistrate directly contradicted this version in his warning
statement
to the police.  The magistrate said the judgment is
the ‘
final, official’
one.
[39]
Another aspect requires our comment.  The judgment was
ostensibly delivered by the magistrate
in faxing it to the second
respondent.  The magistrate in his statement to the police
further disclosed that it is an accepted
procedure in the
magistrates’ court for a judgment to simply be placed in the
court file and the parties’ attorneys
are expected to uplift
the judgment from the court file.
[40]
Section 5(1) of the Magistrates’ Court Act 32 of 1944 provides
that:
“
(1)
Except where otherwise provided by law, the proceedings in every
court in all criminal cases and
the trial of all defended civil
actions
shall
be carried on in open court
,
and recorded by the presiding officer or other officer appointed to
record such proceedings.”
(Own emphasis).
Rule
55 of the Magistrate’s court rules provides that:
“
(10)
All opposed applications shall be
heard
in open court
.”
(Own emphasis).
[41]
Applying the principles of interpretation enunciated in
Endumeni
Municipality,
[16]
both the Magistrates’ Court Act and the rules require that
hearing of trials and applications be conducted in open court.
The
word hearing in this context must be read to include the delivery of
judgments and orders. It is absurd to read the Act and
the rules to
provide that only the tender of evidence and arguments constitute a
hearing to the exclusion of delivery of judgments.
Such an
absurdity would also be contrary to transparency which is a thread
that runs through the Constitution.
[42]
It is trite that our Republic is a constitutional State.  The
institutions of State and
the officials may act only in accordance
with the powers conferred on them by law.  This is the principle
of legality, an
incident of the rule of law
[17]
which is a foundational value of the Constitution. It is salutary
practice that delivery of a reserved judgment must be done in
open
court.  The High Court and the Appellate Courts routinely follow
this practice.  We find no reason for the magistrate’s

court not to apply this practice.  If this practice had been
applied in this case there would have been no allegation by the

respondents that the draft was the actual judgment.
[43]
In our strong view the only reasonable conclusion is that the conduct
of the respondents was
indeed an unconstitutional, disgraceful,
dishonest and unlawful abuse of the judicial authority which the
Constitution vests in
the courts.  In our view the misconduct
under review is beyond the pale.  The costs are to be awarded on
a punitive scale
as a mark of our disapproval of the respondents’
misconduct.
[44]
Accordingly, the applicant must succeed in his application.  In
the result the following
order will issue:
44.1
The proceedings and judgment in consolidated Case No 12/2009 in the
magistrates’ court for the district
of Herschel are reviewed
and set aside.
44.2
The trial in the abovementioned case must be heard
de
novo
before another magistrate
from outside the magisterial district of Herschel.
44.3
This judgment is referred to the Legal Practice Council to
investigate the conduct of attorney Zoleka Susan
Ponoane.
44.4
The first and second respondents are ordered to pay the costs of this
application on an attorney and client
scale.
_______________________
T
MALUSI
JUDGE
OF THE HIGH COURT
______________________
M
S JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant:
Advocate Sishuba
instructed by
State Attorney
EAST
LONDON
c/o
State Attorney
MTHATHA
Counsel
for the Respondents:       Advocate Matyumza
instructed by
ZS
Ponoane & Co.
c/o
Mafungo Tshaka Inc
Date
heard:

18 October 2018
Delivered
on:

14 February 2019
[1]
Van Wyk
v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC),
2008 (4) BCLR 442
(CC) at para 22.
[2]
Department
of Transport v Tasima (Pty) Ltd
2017 (1) BCLR 1
(CC)
2017 (2) SA 622
(CC) at para 159.
[3]
Tasima
ibid
at para 160.
[4]
Member
of the Executive Council for the Department of Health Eastern Cape
Province v Gono
(2053/13) [2017] ZAECMHC 48 (24 November 2017) para 15.
[5]
Minister
of Safety & Security v Jongwa & Another
2013
(3) SA 455
(ECG);
2013 (2) SACR 197
(ECG) at para 33.
[6]
Constitution of the Republic of South Africa, 1996.
[7]
Van
Rooyen and Others v The State and Others (General Council of the Bar
of South Africa intervening)
2002 (5) SA 246
(CC) at page 268C-269C.
[8]
Van
Rooyen and Others supra
at
271H-272F.
[9]
www.undoc.org>judicial group;accessed on 24/1/2019
[10]
Stuttafords
Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd
2011 (1) SA 267
(CC) at paras 10 and 11.
[11]
Calligeris
N.O. & Another v Parker N.O. & Another
(7937/2017)
[2018] ZAWCHC 35
(22 March 2018) at para 27.
[12]
Total
Support Management (Pty) Ltd & Another v Diversified Health
System
s
(SA)
(Pty) Ltd & Another
[2002] ZASCA 14
;
2002 (4) SA 661
(SCA) at para 41.
[13]
Jongwa
ibid
at para 36 and the authorities cited therein.
[14]
S v Le
Grange
2009
(2) SA 434
(SCA) at 449B-D.
[15]
Le
Grange ibid
at
459C-F.
[16]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
2 ALL SA 262
(SCA);
2012 (4) SA 593
(SCA).
[17]
Gerber
v MEC of the Gauteng Provincial Government, Development Planning &
Local Government
[2002] 4 ALL SA 518
(SCA),
2003 (2) SA 244
(SCA) at para 35.