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[2008] ZASCA 160
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Jeebhai and Others v Minister of Home Affairs and Another (139/08) [2008] ZASCA 160; 2009 (4) SA 662 (SCA) ; [2009] 2 All SA 330 (SCA) (27 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
139/08
ISMAIL
EBRAHIM JEEBHAI
First
Appellant
YASMIN
NAIDOO
Second
Appellant
ZEHIR
OMAR
Third
Appellant
and
MINISTER
OF HOME AFFAIRS
First
Respondent
MICHAEL
SIRELA
Second
Respondent
Neutral
citation:
Jeebhai
v Minister of Home Affairs
(139/08)
[2008] ZASCA 160
(27 November 2008)
Coram:
MPATI
P, STREICHER, CAMERON, PONNAN and CACHALIA JJA
Heard:
4
NOVEMBER 2008
Delivered:
27
NOVEMBER 2008
Summary:
Matter
struck off the roll – no proper record – attorney ordered
to pay costs
de
bonis propriis
.
_______________________________________________________________________
ORDER
_______________________________________________________________________
On appeal from: High
Court, Pretoria (Ngoepe JP, Pretorius J and Snijman AJ sitting as
court of first instance).
1. The matter is struck
off the roll.
2. The third appellant is
to pay the wasted costs of the day including the costs relating to
the present record,
de
bonis propriis
.
______________________________________________________________
_______
JUDGMENT
_____________________________________________________________________
STREICHER JA (
MPATI
P and PONNAN JJA
concurring)
[1] This is an appeal
that was struck off the roll because of the state of the record. The
third appellant, Mr Zehir Omar, the attorney
of record for the
appellants, was ordered to pay the wasted costs of the day including
the costs relating to the record,
de
bonis propriis
.
At the time we indicated that reasons would follow. These are the
reasons.
[2] On 12 June 2006 the
first appellant launched an application in the Pretoria High Court
against the respondents in terms of which
he applied for an order
declaring, amongst others, that the arrest of Khalid Mahmood Rashid
(‘Rashid’) on 31 October
2005, his subsequent detention
and his removal from South Africa were unlawful and inconsistent with
the Constitution. The respondents
filed an answering affidavit and
counter applied for an order that Mr Omar and his professional
assistant, the second appellant,
be declared to have been in contempt
of court and that they be incarcerated for a period of time. The
respondents alleged that
Poswa J had on 14 May 2006 made an order
that certain documents may not be published and that the appellants,
in contravention
of that order, had published those documents by
annexing them to the first appellant’s founding affidavit. The
notice of
motion, founding affidavit and answering affidavit are
contained in volume 4 of the record.
[3] An answering
affidavit in respect of the counter application, deposed to by Mr
Omar and consisting of six pages, is contained
in volume 7 of the
record (p 557-563). Volume 7 also contains an application for
the clarification of the order by Poswa J
on 14 May 2006 (p 618-619)
and a copy of the order sought by the first appellant (p 627-628).
Although Poswa J apparently
granted an order amending the order
previously granted by him, I have not been able to find that order in
the record. I did find
the first three pages of his judgment, which
would appear to consist of many more pages, in volume 11 (p 946-948)
of the record.
Volume 12 of the record contains the judgment of the
court a quo (p 960-998), the judgment by the court a quo
refusing leave
to appeal (p 1010-1021), the order by this court
granting leave to appeal and the notice of appeal (p 1204-1039).
[4] These are the
documents that are relevant in this appeal. They should have been
contained in a maximum of three volumes, yet,
the record consists of
12 volumes. Volume 1 contains the documents relating to an earlier
application. Volume 2 contains further
documents relating to the
earlier application and documents relating to a contempt of court
application. Volume 3 contains further
documents relating to the
contempt application, documents relating to an amendment of the
notice of motion in the earlier application
and an application
demanding compliance with another order by Poswa J. The order itself
one eventually discovers in volume 11 (p 944-945).
Volumes 5 and
6 contain documents relating to an application concerning Rashid, by
The Society for the Protection of our Constitution
against the
Government of South Africa, the Minister of Home Affairs, the
Government of the United States of America and the Government
of
Pakistan. Volume 7 contains some of the relevant documents referred
to in para 3 above and in addition an application that was
struck off
the roll, heads of argument in respect of the application to have
Poswa J’s order dated 14 May 2006 clarified
and the record of
proceedings before Poswa J which are of no relevance to the issues to
be decided in this appeal. Volume 8 contains
the record of
proceedings relating, so it would seem, to an application for Poswa
J’s recusal in the application for the
clarification of his
order. The rest of volume 8 as well as part of volume 9 consist of an
application for the filing of an additional
affidavit, the outcome of
which does not appear from the appeal record. Volume 9 also contains
affidavits and heads of argument
in response to an order that Mr
Peter Ramano, a candidate attorney employed by Mr Omar, and Mr Omar
should show cause why an order
de
bonis propriis
should not be made against them. The rest of volume 9 (p 777-817)
consists of the transcript of argument before Poswa J in
an
application, subsequently withdrawn, by a person to be admitted in
the proceedings as an
amicus
curiae
. Volume
10 contains a transcript of discussions between Poswa J and the legal
representatives relating to the publication of documents
annexed to
the application to be admitted as an
amicus
curiae
. In
addition it contains documents relating to an application for leave
to appeal against the court a quo’s judgment being
appealed
against, which application was struck off the roll. Apart from the
three pages of the judgment by Poswa J relating to
the amendment of
the order previously granted by him, volume 11 consists of a judgment
by Poswa J concerning an earlier application
and a judgment by
Southwood J in another matter. At the hearing of the appeal counsel
for the appellants had to concede that all
the documents referred to
in this paragraph were irrelevant.
[5] According to the
rules of this court an appeal record should not contain documents not
proved or admitted (rule 6(j)(v)) and
a core bundle of documents
should be prepared if to do so is appropriate to the appeal (rule 7).
Each party is furthermore, in
terms of a practice direction of this
court, obliged to file a practice note in which it is indicated which
parts of the record
should be read. The appellants, in purported
compliance with these requirements, filed a practice note in which it
is stated that
the entire record should be read and that a core
bundle is not appropriate due to the concise nature of the record.
The practice
note is annexed to heads of argument filed and signed by
Mr Omar.
[6] As a result of the
state of the record and the note by Mr Omar, five judges had to waste
hours and hours of their time wading
through pages and pages of
irrelevant documents in order to determine what was relevant and what
was not relevant. The record caused
confusion not only in the minds
of the judges but also in the minds of the parties and the Wits Law
Clinic who applied to be admitted
as
amicus
curiae
. This
confusion appears from the heads of argument filed by the parties and
the
amicus
curiae
. In its
heads of argument the
amicus
curiae
states
that the facts are common cause. It then recites the alleged common
cause facts by reference to documents which should not
have formed
part of the record and without a single reference to the relevant
part of the record. The most important fact for purposes
of the
argument by the
amicus
curiae
is taken from the application by the Society for the Protection of
our Constitution. Mr Omar, in his heads of argument, also relies
on
that fact and on other statements contained in documents that should
not have formed part of the appeal record. The respondent,
similarly,
in the section of its heads of argument dealing with the factual
background, states what the appellants’ and the
respondents’
versions are by reference to the earlier applications and not by
reference to the application which is the subject
of this appeal.
[7] It is evident that Mr
Omar never considered what documents should be included in the appeal
record except, it would seem, in
one respect. In its judgment the
court a quo said ‘there are not sufficient proven facts from
which an inference can be drawn
that at the time Rashid was handed
over, the authorities were aware that he was being sought (if that
was the case) for questioning
in connection with alleged acts of
terror’. In his heads of argument Mr Omar says that the court a
quo ‘erred and or
misdirected itself in not finding that
Annexure “SC14” is evidence of the crime of “enforced
disappearance”’.
Annexure SC14 purports to be a statement
by the High Commission for the Islamic Republic of Pakistan which
reads as follows:
‘
Mr
Khalid Mahmood, a Pakistani national was arrested by South African
Authorities on 31 October 2005. Mr Khalid Mahmood was wanted
in
Pakistan for his suspected links with terrorism and other anti state
elements. The suspect was handed over to Government of
Pakistan
officials on 6 November 2005. Presently he is in the custody of
Government of Pakistan.’
However, the document is
an annexure to the founding affidavit in the application by the
Society for the Protection of our Constitution
which should not have
formed part of the record. It would seem to have been included in the
record to counter the finding by the
court a quo referred to above.
As an attorney Mr Omar should have realised that the application
could not be included as part of
the record and that the court a quo
could not be criticised for not having had regard to an annexure in
that application.
[8] Not having made any
attempt whatsoever to satisfy himself that the documents in the
appeal record were relevant and that they
had been inserted in a
coherent order, Mr Omar had the temerity to certify that the entire
record had to be read and that a core
bundle was not appropriate due
to the concise nature of the record! In doing so he treated the rules
and practice of this court
as well as the court itself with contempt,
caused confusion and undermined the proper functioning of the appeal
process.
[9] In my view this
conduct should not be tolerated. Counsel for the appellants, who were
briefed after the heads of argument had
been filed, did not even try
to defend the state of the record, while the
amicus
curiae
agreed
that the record was a disgrace. However, both of them urged us to
proceed with the hearing of the appeal and to express
our disapproval
of the record by way of an adverse costs order and not by way of
striking the matter off the roll.
[10] The case concerns
the arrest, detention and deportation of Rashid but all of that is
history and Rashid has been released by
the Pakistani authorities. He
is not a party to the proceedings. The proceedings were instituted by
the first appellant on behalf
of Rashid and the first appellant’s
brother who had been arrested together with Rashid. We were informed
from the bar that
Mr Omar has not had contact with Rashid for a year
and that the first appellant is no longer interested in the matter as
his brother
had been released and not deported. In these
circumstances the matter is no longer urgent. In fact, when the
appeal was set down
for hearing on 4 November 2008 Mr Omar complained
and asked that it should be set down in February 2009.
[11] In the light of the
fact that the matter is no longer one of urgency where the safety and
well-being of a person is at stake
and in the light of the fact that
the culprit in this case, Mr Omar, would seem to be the real driver
of the case, I am of the
view that striking the matter from the roll
and ordering Mr Omar to pay the wasted costs of the day, including
all costs relating
to the record, is the appropriate remedy. As
stated above he has shown a flagrant disregard for the rules of this
court. Practitioners
who exhibit this kind of attitude should not,
and will not be tolerated by this court. To have proceeded with the
matter on the
basis that he would be deprived of his costs in the
event of him being successful would not have been appropriate. First,
in the
event of the appeal being dismissed it would probably have
made little difference to Mr Omar as he would seem to be funding the
proceedings. (In one of the affidavits, confirmed by Mr Omar, that
should not have been included in the record, it is stated that
neither the applicant nor the family of Rashid had paid any fees to
Mr Omar Attorneys.) Second, as stated above, it appeared from
the
heads of argument that the legal representatives prepared their
argument on the basis that all the documents in the appeal
record
could be relied upon. Third, during the argument as to whether the
matter should be struck from the roll, it became apparent
that there
was uncertainty as to which documents in the record constituted
evidence in this matter.
[12] It is true that this
court has on occasions despite lamentable records gone ahead and
entertained matters, ‘balancing
the degree of non-compliance
against other relevant factors such as prospects of success and the
importance of the issues raised.’.
1
But there comes a time when one needs to say ‘enough is
enough’; and when stern action, such as striking the matter
from the roll, must be taken. This is such a case, especially in the
light of the fact that, as I have mentioned, there is no longer
any
urgency in the matter. This is not the end of the road for the
appellants. Once a proper record has been prepared they may
apply for
the reinstatement of the matter and for condonation of the late
filing of the record. When that happens, this court may
well, in the
light of the appellants’ prospects of success, the importance
of the issues raised and other relevant considerations
entertain the
matter.
[13] The respondents are
not free from blame. Like the appellants, they stated that a core
bundle is not appropriate due to the
concise nature of the record and
that the entire record should be read. However, the primary
responsibility is that of the appellants
as represented by Mr Omar
who should in the circumstances be held personally responsible for
the wasted costs of the day and the
costs relating to the appeal
record.
_____________________
P E STREICHER
JUDGE OF APPEAL
CAMERON
AND
CACHALIA JJA dissenting:
[
14] When
the appeal was struck off the roll on 4 November 2008, we dissented
from the order. These are our reasons.
[15] We
quite agree that the record is in a lamentable state. We further
agree this is due to the deplorable, flagrant and indeed
intolerable
conduct of the appellants’ attorney, Mr Zehir Omar. We agree
that this caused unnecessary effort, distraction,
vexation and
confusion. We agree yet further that some special mark of the Court’s
displeasure is appropriate. We disagree
however that the matter
should have been struck off the roll.
[16] This
is a case of major public importance and has generated considerable
public interest, here and abroad. The appellants allege
that under
the guise of deportation, Mr Khalid Mahmood Rashid was unlawfully
extradited from this country to Pakistan. They claim
that because of
his alleged links with international terrorists he was, in current
parlance, the victim of an unlawful rendition,
or an ‘enforced
disappearance’. If this can be shown to be true on the papers
before us, and if the issue is otherwise
appropriate for decision,
this Court’s early pronouncement on the matter is necessary in
the public interest. If not, it
is equally necessary for this Court
to say so.
[17] The
appellants’ claims received enormous publicity and it is
important, either way, for the dispute to be heard and determined
as
soon as possible. Although the individual concerned has been
released, the disputed questions about the propriety of governmental
conduct remain very much alive and current.
[18] Our
colleagues considered that the egregious conduct of the appellants’
attorney necessitated the striking-off order.
We strongly disagree.
The deficiencies in the record are not such as to outweigh the public
importance of determining this dispute.
Putting the appeal off to
another date, and requiring the attorney to secure its reinstatement,
merely wastes time and money, and
contributes to wasting scarce
judicial resources. That will be even more so if a different panel,
or partially different panel,
is constituted to hear the appeal if
reinstated in due course.
[19] We
have all read the record, despite its mangled and over-inclusive
state and misleading inclusions. We have noted the relevant
and
admissible evidence, and sought to disabuse ourselves of the rest.
There was in our view no reason why a trained court of five
appellate
judges could not proceed to sift the chaff and focus on the wheat
alone. This is what the appellants’ counsel (who
had not
appeared below) and the amicus asked us to do. Their request was
reasonable and deserving. They offered to conduct the
hearing on the
strictly limited and proper record alone. The respondents themselves
came prepared to argue the matter on the record,
claiming no
prejudice. The evidence in the properly-presented volumes could and
should have been dealt with immediately.
[20] It
is not as though ill-prepared, incomplete, over-inclusive and shabby
records are unknown in this Court. Take
Premier,
Free State v Firechem Free State (Pty) Ltd
2000 (4) SA 413
(SCA). There, Schutz JA – hardly one noted for
his indulgent approach to breaches of the rules – said it
‘would
have required a mathematician deeply versed in chaos
theory to work out the system’ by which the record was put
together
(para 42). This is how he described the problems this
presented the court (paras 40-41, paragraphing excised):
‘
When
it was filed the record was in a lamentable state. This has wasted a
great deal of judicial time and made what should have
been something
quite straightforward, a burden. ... To give some examples: Many
quite unnecessary documents were included. Thus
the petition to the
Chief Justice requesting leave to appeal and the whole of the opposed
motion proceedings preceding the reference
to trial (running to 254
pages) were included. As a result we were presented with 20 volumes
of record. Bulk was also added by
the duplication or triplication of
annexures sometimes in a clump, sometimes widely dispersed. It would
have required a mathematician
deeply versed in chaos theory to work
out the system. For instance, there were two copies of the judgment
of the Court a quo. Unfortunately
for myself I read the first that I
discovered. It happened to be the indistinct copy. Bulk was also
added by unnecessary retyping.
… Had there been a proper
index, that would have alleviated the problems. But there was not.
… Records are meant to be read, not fought with.’
[21] This
Court heard the appeal in
Firechem
,
despite the disgraceful state of the record, and even though there
was no suggestion that the appeal involved issues of major
public
significance. It reflected its displeasure in an appropriately
crafted punitive order for costs. That, in our view, is what
should
have happened here.
________________
__
E CAMERON
JUDGE OF APPEAL
_________________
A CACHALIA
JUDGE
OF APPEA
L
APPEARANCES:
For appellant: N Cassim
SC
F Boda
Instructed by:
Zehir Omar Attorneys,
Springs
Goodrick & Franklin,
Bloemfontein
WLD Law Clinic, C/o
Matsepes, Bloemfontein
For respondent: P M
Mtshaulana SC
G Bofilatos
Instructed by:
The State Attorneys,
Pretoria
The State Attorneys,
Bloemfontein
Amicus Curiae: University
of Witwatersrand Law Clinic
A Katz
M du Plessis
1
Premier, Free State, and others v Firechem Free State (Pty) Ltd
2000 (4) SA 414
(SCA) para 41.