About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 9
|
|
Tshilas v Minister of SAPS NO and Others (96217:2016) [2017] ZAGPPHC 9 (25 January 2017)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
25/1/2017
CASE
NUMBER: 96217: 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
COSMAS
TSHILAS APPLICANT
And
THE
MINISTER OF SAPS
N.O. 1
st
RESPONDENT
CAPTAIN
ANTON VIUOEN
N.O. 2
nd
RESPONDENT
THE
MAGISTRATE POTCHEFSTROOM
N.O. 3
rd
RESPONDENT
THE
CHAIRPERSON:
NORTH
WEST GAMBLING
BOARD 4
TH
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
This is an urgent application in terms of which the applicant sought
an order in the following terms:
1.1
Dispensing with forms and services in terms of
Rule 6 (12) of the Rules of the High Court and disposing of the
matter as one of
urgency in terms of this Rule;
1.2
Reconsideration in terms of Rule 6(12)(c) of the
Rules of the High Court of:
(a)
the warrant issued by the third respondent on the
5 December 2016 in respect of the applicant's business ZAR
Entertainment situated
at 159 Sykiotis Building,"Wandelaan",
3 Wes Walk Way, Potchefstroom and executed on 5 December 2016 ;
(b)
Directing and ordering the First, Second and
Fourth Respondents and any other respondent who is in possession or
control of the
applicant's movable goods and monies listed in
ANNEXURE A hereto, to forthwith return and restore possession of the
moveable goods
that were removed by the SAPS representatives, who
were under the control of the second respondent from the applicant's
business
premises, which are situated at 159 Sykiotis Building,
'Wandelaann, 3 Wes Walk Way, Potchefstroom;
(c)
Costs of suit (only in the event of opposition)
against those respondents who oppose the application.
[2]
The matter was opposed by the first to third resondents. There was
neither appearance for nor any opposition to the application
by the
fourth respondent. In that regard they raised three points
in
limine,
one of which was during the hearing of the matter
abandoned, the remaining two being one of urgency and the second one
being of
locus standi.
The main defence on the merits being
that the warrant issued in terms of s25 of CPA was dully issued by
the third respondent having
bona fide and properly applied his mind.
[3]
The matter came before me on the 12 January 2017. I allowed the
parties to address me on the points of
limine,
and without
deciding thereon, as well on the merits, just in case I were to
dismiss the points
in /imine.
Having heard the parties I
reserved judgment. Itherefore proceed to deal with the points
in
limine,.
AD
POINTS IN LIMINE:
AD
URGENCY
[4]
Rule 6(12} of the Uniform Court Rules of High Court deal with urgent
applications.
4.1
The purposes of this rule is, in my mind, to
afford an aggrieved person to approach the Court for whatever relief
he
I
she or it seeks
on urgent basis without following the prescribed ordinary Court rules
with regard to forms, service, time frames
for entering notice of
intention to oppose, filing of opposing and replying affidavits and
the setting down of the matter. The
applicant may structure the rules
and truncate the time frames as he deems fit to meet the exigency or
urgency of situation; rule
12(a);
4.2
The applicant in his founding affidavit must set
forth explicitly the circumstances which render the matter urgent and
the reason
why he claims that he cannot be afforded substantial
relief at a hearing in due course;
4.3
An urgent application although brought in terms
of rule 6(12), it is in essence brought in terms of rule 6(5) the
provisions of
which also apply. The subrule 6(5) prescribes the time
frames for the filing of the notice of appearance to oppose and the
filing
of the opposing affidavit. Whereas, under normal
circumstances, in terms of this subrule 6(5), the filing of the
opposing affidavit
must be filed within fifteen days after filing of
the notice of intention to oppose, the applicant, in an urgent
application is
permitted to truncate this period of filing of the
opposing affidavit;
4.4
The
question of abridging the prescribed time frames in Rule 6(5), is
dictated upon by the exigency and circumstances of the particular
case. The Courts · have warned that an applicant who believes
that the matter is urgent, must truncate the period afforded
to the
other party, mindful of and proportionate to the degree of urgency.
The Courts have warned that not every matter is urgent
and therefore
a kneejerk approach in truncating the period will not be tolerated;
vide
Gallagher v Norman's Transport Lines (Pty) Ltd.
[1]
4.5
In my view, the applicant in an urgent
application can only deviate from the prescribed time frames, by,
inter alia, truncating
the period of filing opposing affidavit, but
is not permitted to extend same beyond the ordinary prescribed period
in subrule 6(5).
An extension beyond the ordinary prescribed period
suggests that the matter is not urgent and therefore the applicant
must bring
it in an ordinary motion court;
vide
Luna Meubel Vervaardigers v Makin and Another
1977
(4) SA 135
(WLD) at 136H-137A-B.
[5]
In casu
it is common cause that the application was launched
on the 9 December 2016. It is common cause that the respondents were
called
upon to file their notice of intention to oppose the
application, if any, not later than the 14 Decembers 2016. The
resondents
were afforded until the 29 December 2016 to file answering
affidavit thus 20 days, which was done; and the matter was set down
for hearing on the 10 January 2017.
[6]
It brooks no argument that the aforesaid 20 days afforded to the
respondents to file their answering affidavit was in fact not
a
truncation, but an extension of the time frame prescribed by rule
6(5).
[7]
The reason why the applicant decided to afford the respondents twenty
days, as contained in the founding affidavit are:
"143 that the
respondents are afforded sufficient time to oppose this application
and file opposing papers and that there cannot
be any mention of any
prejudice on their part due to the shorterned time periods laid done
in the notice of motion;
145 ... the first and
second respondent chose to raid my business strategically at a time
when the court is about to go on recess
and when the state
departments are run on Skeleton staff;
146 This forces me to
afford the respondents adequate time bearing in mind that it is
almost mid-December;
147 I have been
accordingly been advised to afford the respondents more time than
what the facts actually justify, and stress that
this is done for no
other reason than to ensure that the matter gets heard and not be
subject of unnecessary time delays."
[8]
A search warrant is by its very nature invasive and infringes upon
the rights of privacy of the person or owner of the premises
the
warrant is directed against. Once issued and executed, it invariably
attracts urgency, thus accords a person aggrieved thereof,
or
dispossessed of his goods thereof, a right to approach the Court on
urgent basis to have such warrant reviewed and set aside.
[9]
Once the right to approach the court on urgent basis arises, it must
be exercised promptly, otherwise the urgency is lost.
In casu,
as
pointed out herein above the applicant, decided to afford the
respondents more time than is prescribed by sub rule 6(5). The
reason
advanced for affording the respondents adequate time was that it was
almost mid-December and the Court was about to go on.
In my view,
these reasons advanced by the applicant are not persuasive to justify
stretching the prescribed period of 15 days demanded
by rule 6(5). It
needs to be borne in mind that the Court doors remain open even
during recess period. The fact that the respondents
offices would be
operating on skeleton staff is also not a justification to stretch
the Court rules beyond fifteen court days.
The very fact that the
respondents operate its offices on skeleton staff is because the
respondents appreciate that it is not an
excuse not to defend any
matter simply because it is mid-December and the Court is in recess.
The very fact that the Court doors
are open even during recess
period, is to ensure that deserving urgent matters are dealt with
during such period.
[10]
In my view, the applicant by "relaxing" the period of
filing of opposing affidavit upward, for unpersuasive reasons,
deliberately gave away his right to access the urgent court and must
therefore bear the consequences he crafted for himself. The
matter
stands therefore to be struck from the urgent roll with costs,
without having to decide the rest of the other points
in limine
because, as same can be decided together with the merits of the
matter.
[11]
In the result it is ordered that:
(i)
The matter is removed from the urgent roll;
(ii)
The applicant is ordered to pay the first, second
and third respondents' costs.
__________________
N.M.
MAVUNDLA J.
DATE
OF HEARING
10/01/2017
DATE
OF JUDGMENT 25/01/2017
APPLICANT'S
ADV ADV
N JAGGA
APPLICANT'S
ATT
VARDAKOS ATTORNEYS
RESPONDENT'S
ADV ADV M BOTMA
RESPONDENT'S
ATT STATE ATTORNEY PRETORIA
[1]
1992 (3) SA 500
at 502E-503 D.