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[2018] ZAECMHC 57
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Minister of Police and Another v Nselemane (96/2017) [2018] ZAECMHC 57 (16 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 96/2017
In
the matter between:
MINISTER
OF
POLICE
1
st
Applicant
STATION
COMMISSIONER, MADEIRA
POLICE
STATION,
MTHATHA
2
nd
Applicant
WARRANT
OFFICER
MBARANE
3
rd
Applicant
And
SINIKO
NSELEMANE
Respondent
JUDGMENT
JOLWANA
J
[1] The applicants seek
an order for the rescission of a court order granted by this court in
unopposed motion court proceedings
as well as leave to defend the
main application.
[2] Without delving
deeply into the full factual background of the matter a brief history
of the proceedings which resulted in the
granting of the order sought
to be rescinded is necessary. Some of the respondent’s
factual averments, even though
not necessarily common cause, do give
a glimpse into the events of what lead to the respondent approaching
this court for its assistance.
[3] The respondent is an
employee of Kentucky Fried Chicken (KFC), Elloit Street, Mthatha.
On 27 January 2015 he was at work
when KFC was robbed of a trolley
full of meat. With the assistance of police he went to one of
the taxi ranks being Northcrest
Taxi Rank in apparent pursuit of the
robbers. He, together with the police saw a young man pushing a
trolley with meat in
it. They gave chase after the young man
ran away. Apparently the suspect was a taxi conductor in the
taxi rank.
[4] Unhappy about the
fact that the young man was apprehended some of the taxi drivers
assaulted the respondent in defense of the
taxi conductor in front of
the police who did not intervene. He went to Madeira Police
Station where he laid charges against
the assailants and a case
docket was opened being CAS265/01/2015. On 28 November 2016 he
received this docket and it appeared
to him that the investigation
had not progressed much and in fact the docket had been disposed of
as undetected in circumstances
in which he had not been advised about
the difficulties in investigating the charges he had laid against his
attackers.
[5] On the basis of these
facts as summarized above the respondent approached this court in
which the following court order dated
14 February 2017 was granted:
“
It
is ordered that:
1.
That
the second respondent’s disposal of docket under Madeira CAS
No. 265/01/2015 as undetected be and is hereby declared
unlawful,
invalid and accordingly set aside.
2.
That
the second and third respondents’ actions of
discontinuing the investigations on the criminal charges laid under
Madeira CAS No. 265/01/2015 be and are hereby declared unlawful,
invalid and accordingly set aside.
Alternative to
paragraph 2 above:
2.1 Third respondent’s
delay in investigating the criminal charges laid under Madeira Cas
No. 265/01/2015 be declared unlawful,
invalid, unreasonable and
accordingly set aside;
3.
That
the third respondent be and is hereby directed to forthwith
re-instate the docket under Madeira Cas No. 265/01/2015.
4.
That
the third respondent be and is hereby directed to forth with conduct
thorough investigations on the criminal charges laid under
Madeira
Cas No. 265/01/2015.
5.
That
the second and third respondents be and are hereby directed to advise
applicant of the progress of the investigations on a
regular basis
and of the outcome of their investigations on or before the expiry of
thirty (30) days of this order.
6.
That
the respondents be and are hereby ordered to pay costs of this
application on Party and Party scale.”
[6] A number of
observations about this order are apposite to the extent that they
are relevant for the determination of the rescission
application.
On the face of the order it appears that the respondents were
represented by Mrs Shumane. The court order
itself does not
indicate that it was obtained by consent even though Mrs Shumane is
reflected on the court order itself as having
represented the
respondents.
[7] The explanation of
who Mrs Shumane is and how the order was obtained is given by the
applicants in their founding affidavit
in the rescission application
as follows:
“
17.
On the 16
th
and 17
th
January 2017 respectively the Sheriff of the Court caused the
application to be served upon the applicants (respondents in that
application). The returns of service in respect thereof are
marked annexure “D” “E” and “F”
respectively glaring enough, as clear from annexure “E”
the third applicant was served upon the 2
nd
applicant. I submit that the 3
rd
applicant was wrongly served because he is stationed at Old Savoy
Park, Office No.9, Sutherland Street, Mthatha. Therefore
he was
never based within the 2
nd
applicants’ establishment.
18. The application
attracted no notice to oppose from the office of the state attorney
and as a result it was set down for hearing
for the 14
th
day of February 2017. Apparently on the date of the hearing one
Mrs Shumane from the offices of the State Attorney took an
order by
consent with the respondent’s attorneys which granted the
respondent all orders which he was seeking. The
order is
attached hereto marked annexed “A”. This order is
the one which is sought to be rescinded in these proceeding.”
[8] On the applicants’
own showing the applicants were served even though an attempt is made
to raise an issue about the service
on the 3
rd
applicant.
I find it difficult to understand the dissatisfaction about the
service of the papers on the 3
rd
applicant. It
appears from the papers that the 3
rd
applicant works under
and reports to 2
nd
applicant in terms of their line of
command even though they are not based on the same premises.
Secondly the 2
nd
applicant accepted service on behalf of
the 3
rd
applicant. Thirdly even though the service
of the papers on the 3
rd
applicant is said to have been
incorrect it is not the applicants’ case that the 3
rd
applicant did not receive the papers. In any event Mrs Shumane,
an attorney of this court, did appear on behalf of all the
respondents in that application and the order appears to have been
granted in her presence and with her consent.
[9] An attempt is made by
the applicants to distance themselves from Mrs Shumane in the
following terms:
“
35.
Notwithstanding the fact that the impugned court order reflects, that
Mrs Shumane appeared for the applicants, clearly the applicants
were
never represented in those proceedings. I say so because in
motion proceedings a party places, himself on record through
a notice
to oppose. In this matter there was no notice to oppose filed
in respect of the applicants. The court should
have simple not
allowed her to appear for the applicants because she never placed
herself properly on record. The said Mrs
Shumane never
consulted with the applicants hence their version was never placed on
record through an answering affidavit.
In any event she hand no
instructions from the respondents/applicants in this application.”
[10] I do not understand
the essence of the applicants’ submission when they say that
Mrs Shumane never consulted with them
and an answering affidavit was
never filed. The applicants having been served with the papers
it was up to them to file an
answering affidavit if they so wished
and they did not. How their failure to do so makes an order
taken by consent by their
own legal representative an order granted
in the absence of the applicants is difficult to discern.
During the hearing of
this matter Mr Notyesi who appeared for the
applicants did concede that a court cannot ignore a legal
representative who appears
in court on behalf of his or her client
and makes submissions only on the basis that a notice to oppose has
not been filed.
[11] The third
observation is the fact that the papers in the main application were
served on all the respondents in January 2017
and the court order
sought to be rescinded was served in February 2017. Thereafter
correspondence was exchanged between attorneys
for the applicants and
attorneys for the respondents as early as March 2017 in which the
court order dated 14 February 2017 is
acknowledged and in their
letter dated 09 March 2017 among other things the following is said
by the applicants attorneys:
“
Our
instructions are to report on progress made in the investigations of
the criminal case opened under Cas No. 265/01/2015 and
to ensure
compliance with the court order dated 14 February 2017 issued by the
Mthatha High Court.”
[12] Furthermore the
respondent in the rescission application makes the following point in
his answering affidavit:
“
3.2.1
Further
in
limine
,
it is contended that a delay or acquiescence in execution of the
judgment would bar success on an application to rescind as it
will be
regarded as acquiescence in the granting of the judgment. In
the current matter and in pursuit of the court order
in question, a
bill of costs was prepared, delivered and ultimately presented before
the taxing master for taxation in terms of
the provisions of Rule 70
of the uniform rules. A taxation of the bill having been duly
opposed by the respondents, was duly
taxed in the amount of R37
184.96 on 29 March 2017. A copy of the notice to oppose and
allocatur are hereto annexed marked
“A1” and “A2”
respectively. On 31 May 2017 the applicants paid the taxed bill
of courts. A
copy of the remittance advice is hereto annexed
marked “B”. I emphatically place on record that
applicant’s
participation in the proceedings and their
intention to acquiesce to the judgment did not start only during the
taxation, it started
even at the time when the judgment was taken.
Mrs Shumane executed her instructions to the best of her ability.”
[13] The applicants,
having been aware of the court order sought to be rescinded not only
because they were represented when it
was taken, they also became
aware of it throughout and for a period of over a year since the 14
February 2017. It is also
common cause that they were aware of
it. At various intervals the court order was brought to the
attention of the applicants
who among other things paid the taxed
costs which were granted to the respondent as part of that court
order. No cogent explanation
has been given by the applicants
for their delay in making the rescission application. This is
obviously an unreasonable
delay that called for a proper explanation
accounting for the whole period. Mr Notyesi appeared to concede
that no proper
explanation for the delay has been proffered by the
applicants.
[14] It must now be clear
that all the above facts scream very loudly for the dismissal of the
rescission application with costs.
However the above facts do
not represent the entire picture even though considered alone they
call for the dismissal of the application.
This is so for two
main reasons. The first one is that there is no proper
explanation why the matter was not opposed.
Secondly, the
substantial delay in launching the rescission application has not
been properly explained. The respondent or
at least, those
representing him are not entirely blameless as I will demonstrate
below.
[15] The court order
itself appears to be ambiguous. For instance it consists of
paragraphs 1 and 2 after which in the middle
of the court order the
following words appear, “
Alternative to paragraph 2 above.
”
Thereafter a paragraph 2.1 follows which is followed by paragraphs
3-6. The question is, which court order was
actually granted by
the court? Is it paragraphs 1 & 2 excluding 2.1?
Does 2.1 stand independently from 2?
What is the position
regarding paragraphs 3–6? Are they also alternatives to
paragraph 2?
[16] While it was open to
the applicant in the main application to couch prayers in the notice
of motion to have alternatives, the
draft order that was handed up to
the court should not have been handed up in that form. This
calls into question whether
it cannot be said that there is ambiguity
or patent error in the order itself.
[17] Rule 42 (1) provides
as follows:
“
42.
Variation
and Rescission of orders
(1)
The
court may, in addition to any other powers it may have
mero
motu
or upon the application of any party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
An
order or judgment in which there is ambiguity, or a patent error or
omission, but only to the extent of such ambiguity error
or omission;
(c)
An
order or judgment granted as the result of a mistake common to the
parties”
[18] I do not believe
that a court should grant an order in which there are alternatives to
compliance. This is so because
there are consequences flowing
from non-compliance. Section 165 (5) of the Constitution
provides that:
“
An
order or decision issued by a court binds all persons to whom and
organs of state to which it applies.”
[19] Were it to be
permissible that a court order that allows for alternatives can be
issued, that would lead to an undesirable
situation in which there is
dissonance between what was expected of the person against whom an
order has been issued and those
in whose favour the order was
granted. This is obviously an untenable situation as it could
create problems of compliance
and enforcement. In my view the
manner in which the court order dated 14 February 2017 was crafted is
such as to lead to
an ambiguity caused by an error in how it was
crafted. Even if I am wrong on the general principle of whether
an order with
alternatives can be issued, I find that in this case
the insertion of alternatives rendered the court order ambiguous.
[20] Furthermore
applicants in the rescission application contend that the court order
dated 14 February 2017 offends the doctrine
of separation of powers.
In their founding affidavit this is how the applicants raise the
issue:
“
3.1
As much as the courts have an obligation to ensure that state organs
fulfill their statutory obligations, they cannot decide
how the state
organs should execute their mandate as such conduct would be
tantamount to the violation of the doctrine of separation
of powers.
The court order which is a subject of litigation in these proceedings
is no exception. This order violates
the principle of doctrine
of separation of powers. The courts cannot decide how the
police shall conduct investigations.”
[21] It must be pointed
out that what the applicants are raising is obviously a
constitutional issue. Most importantly it
is an issue in which
this court has expressed itself pointedly on facts which are quite
similar to the facts in the main application
in this matter.
[22] In
Reformed
Presbyterian Church in Southern Africa v Minister of Police and
Another
[2018] 2 ALL SA 260
a judgment of this court delivered on
6 February 2018 the applicant had brought an application in which the
following relief was
sought:
“
(a)
that the Respondents’ disposal of the police docket opened at
the Libode Police Station under Cas No. 159/01/2015 and
the
subsequent filling thereof in the police archives be declared
unlawful and be set aside;
(b) that the Respondents’
discontinuation of the investigation into criminal charges made under
Cas No.159/01/2015 be declared
unlawful and be set aside;
(c) in the alternative to
(b) that the respondents’ delay in the investigation of the
above charges be declared unlawful and
be set aside;
(d) that the respondents
be directed to conduct thorough investigations, forthwith, into the
above charges; and
(e) that the respondents
be directed to advise the applicant of progress in the investigations
on a regular basis and of the outcome
of such investigations within
30 days.”
[23] The above prayers
which were sought by the applicants in the
Reformed Presbyterian
Church
matter are exactly the same prayers that were sought and
granted as the order now sought to be rescinded. Laing AJ had
this
to say in that matter:
“
50.
The Constitutional Court has preferred to refer to this as the notion
of respect, where it remarked in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at para 48, that:
[a] Court should be
careful not to attribute to itself superior wisdom in relation
to matters entrusted to other branches
of government. A Court
should thus give due weight to findings of fact and policy decisions
made by those with special expertise
and experience in the field…A
decision that requires an equilibrium to be struck between a range of
competing interests
or considerations and which is to be taken by a
person or institution with specific expertise in that area must be
shown respect
by the Courts. Often a power will identify a goal
to be achieved, but will not dictate which route should be followed
to
achieve that goal. In such circumstances a Court should pay
due respect to the route selected by the decision-maker.
51. In other words, a
court must be slow to intervene in the exercise and performance of
powers and functions by the police in relation
to the investigation
of crime, especially where the officials involved possess the
experience and expertise to make a better decision
than a court on
how to conduct such an investigation.
52. To the extent that
the Applicant is not satisfied that the First and Second Respondents
and their officials have carried out
a sufficiently thorough
investigation, the remedies under sub-section 206(5) and (6) of the
Constitution, read with the Independent
Police Investigative
Directorate Act 1 of 2011, must first be exhausted. Moreover,
given the particular facts of this matter,
it is not for the court to
impose a deadline by which the investigation is to be completed.
The court is required to respect
the approach adopted by the Second
Respondent and its officials to await the finalization of the civil
proceedings before taking
any further steps with regard to criminal
investigations.
53. Nevertheless, the
Applicant remains entitled to communication about progress made in
the investigation of the alleged crime
to which the charges pertain.
The police cannot simply ignore the Applicant and refuse to deal with
any reasonable queries
made. To that effect, the Applicant may
insist on the provision of proper information and insofar as this is
not forthcoming
the Applicant may utilize the remedies already
discussed. It is incumbent not forthcoming the Applicant may
utilize the remedies
already discussed. It is incumbent upon
the Applicant to demonstrate that it has pursued such remedies before
seeking relief
of the nature that informs the issue listed as (e),
above.”
[24] The court went on to
dismiss the application. In so doing the court relied both on
the relevant sections of the Constitution
as well as the Independent
Police Investigative Directorate Act 1 of 2011. The nature of
the unopposed motion court proceedings
may have resulted in the court
not properly considering the intricate constitutional issues involved
in circumstances in which
the order was taken by consent in this
matter. The impugned court order of the 14 February 2017
cannot, in my view, co-exist
with the decision of this court in the
Reformed
Presbyterian Church
matter as they point to
different directions on exactly the same issues.
[25] There is something
else that at the very least, calls for comment by this court.
Mrs Shumane is an attorney of this court.
So much is said about
her by the applicants. Very conspicuously, no affidavit even of
a confirmatory nature has been obtained
from her. In the
circumstances it is not known whether she had in fact consulted with
applicants before consenting to the
impugned court order.
[26] Despite
protestations to the contrary by the applicants, I will assume that
as an officer of this court she could not and would
not have taken an
order by consent without having taken instructions from those she
represented. If applicants wanted court
to believe that Mrs
Shumane had not consulted with them before taking the order by
consent, they could have obtained an affidavit
from her or explained
it if, for whatever reason, it was impossible to obtain an affidavit
from her.
[27] In any event, even
if it was not disputed by applicants that she had taken instructions
from them before she consented to the
order, that would not, in my
view, necessarily be a bar to the court granting a rescission
application, if the interest of justice
so required. In this
regard courts have very wide powers. For instance the
provisions of Section 173 of the Constitution
do come to mind.
This section provides thus:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
[28] Therefore, nothing
stands in the way of a litigant in making a case that a court order,
even one obtained by consent should
not stand. Courts are
entitled to look into and decide whether the consent itself was valid
and the circumstances in which
the consent to the order was made.
I am fortified in this view by the sentiments expressed by Mojapelo
AJ, writing a unanimous
decision of the Constitutional Court in
Occupiers of erven 87 & 88
Berea v Christiaan Frederick
De Wet N.O.
2017 (5) SA 346
(CC) at para 74 where he expressed
himself as follows:
“
Once
justus
error
is established a judgment by consent may be set aside. It will
be established where there is “good and sufficient cause,”
which entails the consideration of (a) the reasonableness of the
explanation proffered by the applicant of the circumstances in
which
the consent was entered, (b) the bona fides of the application; and
(c) the
bona
fides
of the defense on the merits of the case which
prima
facie
carries some prospects of success
.”
[29] In my view the
prospects of success for the applicants to convince the court in the
main application that the approach adopted
by the court in
Reformed
Presbyterian Church
is correct and therefore dismiss the
application are good. Even if the court were to come to the
conclusion that the order
of the 14 February 2017 is not incompetent
in relation to the constitutional issue of the separation of powers,
the court should
decide the matter and settle the law by explaining
why Laing AJ’s decision is clearly wrong.
[30] For all these
reasons, I have come to the conclusion that applicants must succeed
in their application for the rescission of
the court order dated 14
February 2017.
[31] The only issue left
to deal with now is the costs of this application. As indicated
above for reasons that have not been
adequately explained the matter
was not defended. Even when the order was granted, the
applicants delayed in launching this
application for more than a
year. Such delay has not been explained, something that could
easily have been ordinarily a bar
to the applicants succeeding in
this application. I am of the view that even though the
applicants have succeeded in their
application, the costs should not
follow the result. Furthermore I do not think that costs as should be
costs in the main application
as that would, in my view, be
tantamount to possibly rewarding the applicants for the cavalier
manner in which they have dealt
with this matter.
[32] In the result the
following order will issue:
1. The order
granted by this court dated 14 February 2017 be and is hereby
rescinded.
2. The applicants
are hereby granted leave to oppose the main application.
3. That applicants
are ordered to pay costs of this application.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Attorney
for the Applicants: M. NOTYESI
Instructed
by: MVUZO NOTYESI INC.
MTHATHA
Attorney
for the Respondents: A.S. ZONO
Instructed
by: A.S. ZONO & ASSOCIATES
MTHATHA
Heard
on: 22 September 2018
Delivered
on: 16 October 2018