About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2019
>>
[2019] ZAECELLC 14
|
|
Juma v Minister of Justice and Constitutional Development (EL573/2017) [2019] ZAECELLC 14 (7 May 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: EAST LONDON
CASE NO. EL 573/2017
ECD 1473/2017
REPORTABLE
In
the matter between:
ABDULLAH
KHALIFA JUMA
Plaintiff
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Defendant
JUDGMENT
GRIFFITHS,
J.
[1]
The plaintiff in this matter has sued the defendant (Minister of
Justice and Constitutional
Development) for damages arising from the
alleged negligent conduct of the defendant’s employees in
failing to keep a complete
and proper record of the proceedings at
his criminal trial, which resulted in his being incarcerated for an
unduly lengthy period.
As a consequence of this he has sued the
defendant for damages in the amount of R5 million. The defendant has
denied that he is
liable for such damages on the basis that the
failure to obtain the record timeously or at all was due largely to
the negligent
conduct of the plaintiff’s own erstwhile
attorney, and indeed the plaintiff himself.
[2]
The background to this matter may be stated fairly briefly as has
emerged both from
the three appeal court judgments which have been
placed before me together with the evidence of the plaintiff himself,
who was
the sole witness to testify in his case. The plaintiff was
convicted on 30 September 2010 by the Regional Magistrate, East
London,
of contravening section 5(
b
) of the Drugs and Drugs
Trafficking Act (140 of 1992) and was sentenced to a period of 15
years imprisonment of which 3 years imprisonment
was suspended for a
period of 5 years. He was granted leave to appeal against both
conviction and sentence and the matter initially
came before Alkema J
(sitting with Roberson J) during November 2012. Apparently there was
no proper record before the appeal court.
According to the judgment
of Alkema J, substantial parts of the record were missing which were
“…
prima facie… material to a proper
adjudication of the appeal
”. Accordingly, the matter was
unable to proceed before that court and it was removed from the roll
together with an order,
in effect, that the Clerk of the Regional
Court, East London, was to obtain the necessary tapes and to ensure
that the full record
was transcribed. In the event that such tapes
were missing, a full report was to be placed before the court setting
out in detail
all the steps taken to trace them. Again, failing this,
the court ruled that the Clerk of the Regional Court was to, in
conjunction
with the plaintiff’s legal representative and the
State, approach the presiding magistrate to obtain the necessary
notes
and to, jointly, reconstruct the record.
[3]
It appears that very little was done in this respect and the matter
again served before
the appeal court resulting in the appeal being
struck from the roll. Hartle J thereafter proceeded to give lengthy
directions as
to how the record was to be reconstructed making the
point that very little had been done in this regard particularly by
the plaintiff’s
erstwhile legal representative. After the
granting of this order it seems that, once again, not very much was
done particularly
by the plaintiff’s attorney (a matter which
the plaintiff himself agreed to under cross-examination) to source
the necessary
materials in order to either complete the record or to
reconstruct it. The matter ultimately once again served before the
appeal
court on 21 September 2016. On this day, the appeal came
before Lowe J (sitting with Bacela AJ) who stated that despite the
lengthy
directives given by Hartle J during 2013, “…
what has been placed before us now is just a series of documents
and affidavits which, to cut a long story short, disclosed that
in
essence no progress has been made, the recordings cannot be
resurrected, there is no possibility of reconstructing the record
from the notes of either the prosecution or the defence, let alone
the magistrate and the State now accepts that it is impossible
to
reconstruct this record in any form that would admit of the proper
hearing of an appeal
…” That court accordingly upheld
the appeal and dismissed the plaintiff’s conviction and
sentence.
[4]
Based on these facts, the plaintiff has claimed that he remained
incarcerated unlawfully
due to the negligence of the defendant’s
employees. In this regard, he has alleged in his particulars of claim
that:
“
4. Defendant’s
employees (machine operator/stenographer) whilst acting in the course
and scope of their employment failed
to ensure that:
14.1 She/he maintained
control of every recording at each court session during which
evidence is mechanically recorded.
14.2 Kept a running
legend of what was happening from moment to moment as the proceedings
unfold, usually noted on a brown envelope
so that the transcription
of the proceedings at the relevant time can be produced in due
course. A written record would therefore
exist indicating who the
relevant operators were on the contentious dates (these being 27 May
2008, 16 July 2008, 18 February 2009,
22 October 2009 and an
undisclosed date on which accused number 3 testified), and what their
input was respectively.
14.3 The recordings were
downloaded and stored”
[5]
In addition to testifying to these facts, the plaintiff testified as
to the fact that
he had attempted to rectify the situation by writing
to various entities such as the Law Society, the National Director of
Public
Prosecutions and the Public Protector. All of these proved
unsuccessful. His own erstwhile attorney, on his evidence, was
thoroughly
unhelpful and stopped contacting him during or about 2013.
He also testified extensively as to the harshness of the conditions
whilst he was in custody.
[6]
Upon the closing of the plaintiff’s case, I invited the
defendant to apply for
absolution from the instance based on the fact
that,
inter
alia
,
the plaintiff had not established a causal connection between any
negligence which may have been attributable to the employees
of the
defendant, and the damages he suffered as a consequence of his
incarceration. In this regard, Mr Mageleni (who appeared
on behalf of
the plaintiff) sought to argue that this case was on equal footing
with that of
Alves
v LOM Business Solutions (PTY) LTD and Another
[1]
.
In that case, Willis J (as he then was) awarded damages to the
plaintiff as against the second defendant in that matter (The
Minister of Justice and Constitutional Development) due to an unduly
lengthy period of incarceration resulting from the fact that
there
had been a delay on the part of the defendant’s employees in
producing the necessary transcript on appeal. It was indeed
conceded
in that matter that the second defendant owed a duty to the plaintiff
to ensure that records were prepared for the hearing
of an appeal
within a reasonable time. When, ultimately, the record was finally
produced, it served before the appeal court and
the appeal was
upheld, the conviction and sentence being set aside.
[7]
It will immediately be seen that the facts in the
Alves
matter
are entirely distinguishable from the present. In that matter, the
record was indeed produced and it established that the
trial court
was incorrect in convicting the plaintiff and that such conviction
and sentence stood to be set aside on appeal. In
the present matter,
up to this day, the full and proper transcription of the trial in the
Regional Court has never surfaced.
[8]
As I have indicated, the paramount question to be decided in
assessing whether or
not the application for absolution from the
instance should be granted is whether the plaintiff has established,
or whether it
could ever be established, that there is a causal
connection between the damages suffered by the plaintiff (by way of
his lengthy
incarceration) and the failure on the part of the
defendant’s employees (insofar as they were indeed employees of
the defendant
– another matter which has not as yet been
established) to keep a true and proper recording of the trial in the
lower court.
[9]
The manner in which a court is to assess causation in a delictual
setting was addressed
by Corbett CJ in the matter of
International
Shipping Company Limited v Bentley
[2]
as
follows:
“
As has previously
been pointed out by this Court, in the law of delict causation
involves two distinct enquiries. The first is a
factual one and
relates to the question as to whether the defendant's wrongful act
was a cause of the plaintiff's loss. This has
been referred to as
'factual causation'. The enquiry as to factual causation is generally
conducted by applying the so-called 'but-for'
test, which is designed
to determine whether a postulated cause can be identified as a
causa
sine qua non
of the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff's
loss would have
ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff's
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way not to be a
causa
sine qua non
of the loss suffered, then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a
causa
sine qua non
of the loss does not necessarily result in legal liability. The
second enquiry then arises, viz whether the wrongful act is linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote.
This is
basically a juridical problem in the solution of which considerations
of policy may play a part. This is sometimes called
'legal
causation'. (See generally
Minister
of Police v Skosana
1977
(1) SA 31
(A)
at 34E - 35A, 43E - 44B;
Standard
Bank of South Africa Ltd v Coetsee
1981
(1) SA 1131
(A)
at 1138H - 1139C;
S
v Daniëls en 'n Ander
1983
(3) SA 275 (A)
at 331B - 332A;
J
Siman & Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888A
at 914F – 915H ...”
[10]
The difficulty I have in this matter is with regard to the question
of factual causation. As
spelt out in the passage to which I have
referred, in order to apply the test for factual causation one must
make a hypothetical
inquiry as to what probably would have happened
but for the wrongful conduct of the defendant. In this matter, it is
clear as to
what this is. The court must mentally eliminate the
alleged wrongful conduct (the alleged failure on the part of the
defendant’s
employees to properly record and retain the record)
and consider the position had this not occurred i.e. by substituting
the lawful
conduct of the production of the full and complete record
of the lower court criminal proceedings. If the court can conclude on
the evidence that has been placed before it by the plaintiff that, on
a balance of probabilities, had the transcribed record of
the
proceedings in the lower court been placed before the appeal court,
the appeal court would have upheld the appeal, then any
proven
negligence on the part of the defendant’s employees would have
been a
causa causans
of the plaintiff’s ensuing damages
for his incarceration whilst the appeal court waited for the
transcribed record. If on
the other hand the court cannot conclude on
a balance of probabilities that had the transcribed record been
placed before the appeal
court it would have upheld the appeal, then
indeed it has not been established that the alleged wrongful act was
a
causa sine qua non
of the plaintiff’s loss.
[11]
On the evidence before me, it took two successive appeal courts, with
stringent court orders,
to try to rectify the record. This was never
done. As appears from the judgment of Lowe J, it appears that for
whatever reason
the record has been lost and cannot be retrieved, or
reconstructed. Indeed, he may well not have granted the relief he did
had
it been obtainable. In the circumstances, the plaintiff in this
matter can never establish that, had the proceedings in the lower
court been properly recorded and properly transcribed, the appeal
court would have found that the conviction and sentence were
improper, for whatever reason, and would have set them aside in the
plaintiff’s favour. The only vague evidence before the
court is
a brief statement by the plaintiff during evidence that he was
innocent, which takes the matter nowhere. This being so,
in my view
the plaintiff has not established a causal connection between the
alleged negligence of the defendant’s employees
and the loss
suffered by the plaintiff.
[12]
When this was pointed out to him, Mr Mageleni sought to avoid the
consequences by submitting
that, should he be given an opportunity to
cross-examine the defendant’s witnesses, the picture would
change. He submitted
in the alternative that the plaintiff should be
given an opportunity to amend his particulars of claim. In my view
neither of these
avenues, if I were to accede to them, would assist
the plaintiff. Cross-examination of any of the defendant’s
witnesses cannot
result in the production of the record. Likewise, an
amendment to the particulars of claim can never rectify this
deficiency.
[13]
As to the question of costs, it seems that the defendant is clearly
the successful party. Whilst
there might be some question mark as
against the defendant’s employees’ conduct in not
properly recording the proceedings
and/or not retaining such record
in its digital form or otherwise, this has not been established.
Indeed, in my view the plaintiff’s
action was stillborn from
the start and he ought to have been advised in this regard before
incurring the costs of a defended action,
including putting the
defendant to the costs of an action which was taken all the way to
trial.
[14]
In the circumstances,
The
defendant is granted absolution from the instance with costs.
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF : Mr
Mageleni
INSTRUCTED
BY
: M.O. Mageleni Attorneys
COUNSEL
FOR DEFENDANT : Mrs Mtshizana-Canca
INSTRUCTED
BY
: The State Attorney
HEARD
ON
: 06 MAY
2019
DELIVERED
ON
: 07 MAY
2019
[1]
2012 (1) SA 399 (GSJ)
[2]
1990 (1) SA 680
(A) at 700E – 701A;
Oppelt
v Department of Health, Western Cape
2016 (1) SA 325
(CC) at para 35.