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[2017] ZAGPPHC 318
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Minister of Defence and Another v Mbambo (A358/2015) [2017] ZAGPPHC 318 (24 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:A358/2015
DATE:
24/4/2017
In
the matter between:
THE
MINISTER OF
DEFENCE
FIRST APPELLANT
THE
HONOURABLE JUSTICE MR MORNE BOTHA
SECOND APPELLANT
and
POWER
MANDLA
MBAMBO
RESPONDENT
JUDGMENT
RANCHODJ:
[1]
This is an appeal against the whole of the judgment and order of
Kollapen J in the court a
quo
in which the learned judge
granted the respondent condonation for the
late bringing of
a review application
and upheld the application on the merits. The appeal is with the
leave of the court a
quo.
[2]
The respondent held the rank of captain in the South African
National
Defence
Force (the SANDF) when he was dismissed
[1]
after a hearing before a Military Court Judge on a charge of
intimidation as well as assaulting a superior officer. The
proceedings
were conducted in terms of the Military Disciplinary
Supplementary Measures Act 16 of 1999 (the Act).
The
issues to be determined
[3]
Three issues arose before the court a
quo
for determination,
namely:
3.1
Whether the respondent should be granted condonation for
bringing a review application against his conviction and sentence in
a
military court some eleven years out of time;
3.2
Whether a preliminary investigation as contemplated in the Act
was held prior to his trial in the military court; and
3.3
Whether the fact that the military trial judge sat without
assessors was permissible under the Act, alternatively, whether the
military
trial without assessors was
per se
unfair.
Background
[4]
The respondent was charged with:
4.1
Contravention of
section 1(1)(b)
of the
Intimidation Act No 72
of 1982
, as amended, read with sections 1, 48, 50, 51, 56, 88 and 93
of the Military Discipline Code, and
section 12
of the
Military
Discipline Supplementary Measures Act No 16 of 1999
, as amended, and
4.2
Contravention of section 15 of
the Military Discipline Code:
Assaulting a
superior officer.
In the
alternative:
4.3
Contravention of section 15 of the Military Discipline Code:
Assaulting a superior officer; and
4.4
Contravention of section 45(a) of the Military Discipline
Code: Riotous or unseemly behaviour.
[5]
The trial took place before the second appellant from 4 December 2000
to 6 December 2000. The respondent was found guilty on
both the main
counts and sentenced to cashiering.
[6]
However, the sentence was not executed until the proceedings were
reviewed by the Military Court of Appeals in terms of s34(2)
of the
Act on 27 October 2001 and the conviction and sentence were
confirmed. The respondent was informed of the decision of the
Military Court of Appeals on 1 November 2001 and his employment was
terminated on 30 November 2001.
[7]
In the application for condonation for the late filing of the
application for review the respondent sets out in the founding
affidavit the steps he says he took to seek redress against what he
perceived to be an incorrect conviction and sentence. On or
about 6
November 2001 he approached Legalwise which is a legal expense
insurance company, of which he was a member, to assist him.
He was
referred to a firm of attorneys who launched an appeal in this
division of the High Court. The matter was eventually heard
on 25
August 2004. The Full Court struck the appeal from the roll on 12
October 2004 and remarked that the respondent should have
applied for
a review and not an appeal.
[8]
He almost immediately went to Legalwise for further assistance but
they could not assist him any more as he was no longer a
contributing
member.
[9]
The respondent says that he then approached the Durban Justice Centre
of Legal Aid who asked him to furnish a copy of the record,
which he
did. (It is not clear which record is being referred to, i.e. of the
trial or of the Military Court of Appeals but I assume
it is the
former.) He says he waited for some two years - between September
2004 and September 2006 before he was informed by it
that they will
not assist him as they saw no prospects of success in the matter.
[10]
The respondent says 'another reason' for the two-year delay was that
his Legal Aid attorney had advised him that counsel had
been briefed
for an opinion. He attached a letter (annexure "'PMM2') dated 29
May 2012 from the Durban Justice Centre
in support of this
allegation.
[11]
The respondent says he then sought assistance from the Human Rights
Commission. After about six months he was told that the
Commission
does not take on matters which had been 'finalised'.
[12]
At the beginning of 2007 he approached the Human Rights Centre in
King Williams Town for assistance and attached a letter dated
27
February 2009 addressed by the Centre to the 'State President'
seeking the latter's assistance to have him re-instated in the
ranks
of the SANDF. That apparently came to nought as will be apparent
later.
[13]
Undaunted by these setbacks, he then approached the Presidency
directly in 2009 and, at the request of the Secretary in the
Presidency provided a copy of the record by sending it via ordinary
mail. He made various telephonic enquiries with the Secretary
(who had confirmed receipt of the documents) who referred him to a
certain Nonhlanhla. He contacted the latter who told him the
record
was handed over to another person in the Presidency, namely a Mr Vusi
Mona. Respondent says he telephonically contacted
Mr
Mona,
'around 2010' who told him the matter is receiving attention. About
two months later he made a telephonic follow up
enquiry only to
be told that Mr Mona no longer worked at the Presidency. Respondent
says no one at the President's office knew
what he was talking about
or where his documents were.
[14]
The respondent then approached the Defence Commission 'between the
periods 2010 until February 2012' which is when he last
had a
telephonic conversation with someone in the office of the Defence
Commission. He says he was advised that his documents had
been
referred to the Chief of the South African Air Force and attached a
copy of the reply he says he received from the latter
which is dated
8 October 2010. (It is to be noted that the letter is addressed to
the Human Rights Centre in King Williams Town
and was written in
October 2010.)
[15]
The respondent then says another major cause of the delay was that he
had become extremely depressed and mentally distressed
after his
matter had been struck off the roll in August 2004, it led to his
'mental instability' and to him being admitted to various
mental
institutions. He attached letters from various doctors and hospitals,
being annexures 'PMM6' - 'PMM10'.
The
legal principles regarding applications for condonation
[16]
In
Pharmaceutical Manufacturers
Association of South Africa
and
Another:
In Re Ex Parte President of the Republic of South Africa
[2]
the Constitutional Court made it clear that the body of common law
which comprised administrative law has been constitutionalised
and
that the common-law principles have now been subsumed under the
Constitution so that there are not two systems of law, each
dealing
with the same subject matter, each having similar requirements,
each operating in its own field with its own highest
court but only
one system of law: that system of law is shaped by the Constitution
which is the supreme law and all law, including
the common law,
derives its force from the Constitution and is subject to
constitutional
control.
[17]
For
the purposes of the issue of condonation it is not necessary to
determine whether the original
review
application was one under the
Promotion of Administrative Justice Act 3
of 2000 ("the PAJA")
or was one under the doctrine of legality: in both instances (and
under the common-law delay
rule
[3]
a review application has to be launched without any unreasonable
delay and the basic principles applicable to the granting of a
condonation for such delay are in essence the same.
[18]
The
Supreme Court of Appeal in
Beweging
vir Christelik-Volkseie Onderwys v Minister of Education
[4]
held that - in the application of both the common-law delay rule and
section 7 or section 9 of the PAJA - a
two-stage
approach
is required:
18.1
The first question is whether the delay in launching the application
was unreasonable, or (under
the PAJA) whether it was launched more
than 180 days after internal remedies had been exhausted or the
applicant had been informed
of, had knowledge of or ought to have had
knowledge of the administrative action under challenge.
18.2
The second question is whethe , if the first question is answered in
the affirmative, the delay ought
to be condoned or in the case of the
PAJA whether it is in the interest of justice that the 180- day
period be extended.
[19]
The two decisions that were taken on review were made on 6 December
2000 (by the Military Judge) and on 27 October 2001 (by
the Military
Court of Appeals) respectively.
[20]
Hence the internal remedy was concluded on 27 October 2001 and the
review proceedings only instituted some 11 years later (that
is, when
the application was launched on 23 July 2012).
[21]
In
Melane
v
Santam
Insurance
Co
Ltd
[5]
it
was
held:
'... the
basic principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and
in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation
therefor, the
prospects of success, and the importance of the case.
Ordinarily these facts are interrelated:
they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course
that if there are
no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb
would only
serve to harden the arteries of what should be a flexible discretion.
What is needed is an objective conspectus of all
the facts. Thus a
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. Or
the importance of the
issue and strong prospects of success may tend to compensate for a
long delay. And the respondent's interest
in finality must not be
overlooked. I would add that discursiveness should be discouraged in
canvassing the prospects of success
in the affidavits....'
[22]
In
Opposition
to Urban Tolling Alliance v SANRAL
[6]
it was said that:
'...
the constitutional enjoinder to fair administrative action, as it has
been expressed through PAJA, expressly recognises that
even unlawful
administrative action may be rendered unassailable by delay.'
Discussion
[23]
I deal firstly with whether the delay of about eleven years before
the respondent launched the review application is inordinate
and
whether it causes actual or potential prejudice to the appellants.
[24]
It is apparent from the annexures attached to the founding affidavit
that the respondent relied to a large extent upon documentary
hearsay
to explain the various cumulative delays. His explanations in this
regard are often vague or not explained in proper detail.
[25]
For example, there is no proper explanation why the abortive 'appeal'
to the High Court took nearly three years to reach the
court in
August 2004.
[26]
On his own version, the respondent did nothing but wait for the
Durban Justice Centre from 2004 to 2006 to revert to him which,
in
any event, informed him that it saw no prospects of success in
the matter. There is no substantiation or corroboration
for the
hearsay allegation that an advocate was partly responsible for
the delay between 2004 and 2006. In the letter of
the Durban Justice
Centre dated 29 May 2012 which was apparently in response to the
respondent's attorneys who wrote to the Board
on 26 May 2012 it is
stated that a file was opened on 6 December 2005 and closed on 27
November 2006. It is apparent that although
the respondent refers to
an advocate Irvan Markham the letter refers to an Advocate Manickum
but that Legal Aid's records do not
reflect any referral of the
matter to Advocate Manickum although it cannot deny (presumably on
the basis that the Board can only
confirm what is in its records)
that Mr Manickum might have been briefed. But it appears, contrary to
the respondent's averment
that he approached Legal Aid in 2004
already, that it had opened a file only in December 2005. Hence the
respondent's allegation
that he approached
Legal Aid in 2004 cannot be correct as, in all probability, Legal Aid
could not have acted in the
matter without first opening a file.
[27]
The respondent says he sought assistance from the Human Rights
Commission. On his own version the respondent waited for some
six
months for a response from it. He appears to have done nothing in the
interim and, he fails to explain what 'assistance'
he applied
for.
[28]
Between 2007 and 2009 the respondent again did nothing. Apart from
stating that the legal advisor at the Human Rights Centre
- a Mr
Tatyana - had passed away the respondent does not elaborate on
the more than two years that elapsed since he approached
the Human
Rights Centre at the beginning of 2007 and the letter written to the
President at the end of February 2009. It
appears that that
letter of the Human Rights Centre was referred to the Interim
National Defence Force Commission. The Chief of
the Air Force Lt Gen
Gagiano responded to the letter in a letter dated 8 October 2010.
Gagiano informed the respondent that
there would be no intervention
in the matter and that only a court of higher
jurisdiction than
the Court of Military
Appeals may intervene. As I said, he was informed about this in
October 2010 yet launched
his application for condonation and review
only in July 2012 - almost two years later.
[29]
The respondent also relied on the fact that he had been ill and in
and out of hospital. He says he became 'extremely depressed
and
mentally distressed' after August 2004. In June 2005 he was diagnosed
with a bipolar type schizophrenic disorder. Between 2005
and 2009 he
was treated for bipolar mood disorder. In September 2010 he was
diagnosed with acute psychosis and mental disturbance
and in the
following month he underwent a hip replacement. Among others, the
respondent attached a letter dated 2 April 2012 from
a Dr Moosa Desai
stating that he was suffering from 'anxiety and depression because of
stress from dispute at work with the SANDF.'
However, by that
time the respondent no longer worked for the SANDF but had been
cashiered some ten years earlier. (None of the
documents attached in
support of the submissions have been confirmed under oath and
therefore are of little or no evidential value.)
[30]
Even if it is accepted that the respondent suffered from the stated
illnesses it does not adequately explain the long delay
in bringing
the review application which is no doubt prejudicial to the
appellants. The respondent seeks reinstatement to his previous
rank.
This would mean undoing years of progression in the ranks of others
in the military which would be prejudicial not only to
the appellants
but also to those military officers.
Review
on the merits
[31]
On the merits the court a
quo
entertained two grounds for
review, namely:
31.1
Firstly, that no preliminary investigation was held as is allegedly
required (as
a jurisdictional condition for a military trial under the Act), in
respect of which the learned Judge concluded that
the SANDF (as the
then respondents in motion proceedings) had not proven on a
preponderance of probabilities that such an investigation
was held;
and
31.2
secondly, the allegation that the respondent was not informed of his
right under the Act to elect
to be tried by assessors, in respect of
which the learned Judge concluded that the right of the respondent to
a fair trial was
breached..
[32]
It is apparent that the court a
quo
approached the
evaluation of the evidence before it from the perspective that the
SANDF carried the burden of proof to dispel the
grounds of review,
whilst it is trite law that the onus of proof
was
upon the respondent (as the applicant in the review application) to
establish the grounds of review relied upon
[7]
.
As a result of this point of departure the court a
quo
found
that there was no proof on a
preponderance
of
probabilities that a preliminary investigation was conducted in the
matter and held that with regard to the appointment of military
assessors, there was no evidence by the SANDF indicating that the
respondent's trial before the military court was fair and just.
The
SANDF had no such onus. In any event, the findings were against the
evidence before the court a
quo.
[33]
In
National
Director of Public Prosecutions v Zuma
[8]
Harms DP (as he then was)
held:
'In
motion proceedings the question of onus does
not arise and the
approach set
out in the preceding paragraph [the
Plascon-Evans
rule]
governs irrespective of where the legal or evidential onus lies'.
[34]
The
risk of a factual dispute rests upon the litigant electing to proceed
on motion proceedings. It appears that the respondent
(as applicant
in the review proceedings) at no stage applied to have the matter
referred to evidence or trial, or have the deponents
to the
affidavits filed by the SANDF called for cross-examination,
either
before or after argument in
the
matter
[9]
.
[35]
The general principles applicable to disputes of fact
in motion proceedings are summarised in para B6.45
of
Harms Civil Procedure in the
·
Superior
Courts
(footnotes omitted):
'Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless
the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the
Plascon-Evans
rule that where in
motion proceedings disputes of fact arise on the affidavits, a final
order can be granted only if the facts averred
in the applicant's
affidavits, which have been admitted by the respondent, together with
the facts alleged by the latter, justify
such order. It may be
different if the respondent's version consists of bald or
uncreditworthy denials, raises fictitious disputes
of fact, is
palpably implausible, far-fetched or so clearly untenable that the
court is justified in rejecting them merely on the
papers.
...
Whether a
factual dispute exists is not a discretionary decision; it is a
question of fact and a jurisdictional pre-requisite for
the exercise
of the discretion given by rule 6. It is not a question of any
difference of character between the various kinds of
claims being
enforced, but a question of the proper method of determining in each
case the facts upon which any claim depends.
The rule of
evidence that if the facts are peculiarly within the knowledge of a
defendant the plaintiff needs less evidence to establish
a prima
facie case, applies to trials. In motion proceedings the
question of onus does not arise and the approach set out
above
governs irrespective of where the legal or evidential onus lies.'
The
'Plascon-Evans'
rule
is a reference to the well-known principle enunciated in
Plascon-Evans
Paints Ltd
v
Van Riebeeck Paints (Pty) Ltd
[10]
The
preliminary investigation
[36]
Section 10 of the Act, dealing with the composition and
jurisdiction of the court of a military judge, provides that the
court shall
consist of:
(a)
an officer of not less than field rank and with not less than three
years' experience
as a practising advocate or attorney of the High
Court of South Africa or three years' experience in the
administration of criminal
justice or military justice, assigned in
terms of section 14(1)(b) to act as a military judge; and
(b)
subject to sections 20 and 30(24) of the Act, a military assessor.
[37]
Section 20 of the Act provides, inter alia, for the
appointment of two assessors. Section 30(24) provides (in the context
of a provision
dealing with preliminary investigations) that upon the
completion of a preliminary investigation, the presiding judge,
commanding
officer or recording officer shall at the end of that
preliminary investigation - which is a separate proceeding from the
trial
before a military court-
'(a)
inform the accused of the accused's right to elect-
(i)
to be tried by a military court consisting of a presiding
judge and two assessors; and
(ii)
that one of the assessors shall be a warrant officer; and
(b)
explain section 20(1), (2), (3) and (4) to the accused.'
[38]
This duty to inform and the right to elect should take place
prior to the military trial as part of the proceedings during the
preliminary
investigation.
[39]
If
the respondent did not make an election then the maxim
omnia
praesumuntus rite essa acta donec probetur in contrarium
applies.
The maxim was applied in the recent case of
Phillips
v South African Reserve Bank
[11]
where the
Supreme
Court of
Appeal
remarked:
'The maxim
omnia praesumuntur rite esse acta donec probetur in contrarium
(all [official acts] are presumed to have been duly performed
until the contrary is proved), on which the appellant's counsel
relied,
applies, as it did, for example, in
Cape Coast Exploration
Ltd v Scholtz
1933 AD 56.
In that case, one of the. issues was
whether the defendant had been sent a letter from the Civil
Commissioner for Namaqualand
notifying him that his diamond
prospecting certificate had been withdrawn. A copy of the
letter had been found in the commissioner's
office but no evidence
was led to the effect that the original had been posted. Wessels CJ
said (at 76):
"Absolute
proof is well-nigh impossible where the frail recollection of men is
a factor, and especially is this the case when
we have to deal with
the recollection of officials who almost automatically do much of
their routine work. Hence the importance
of the maxim
omnia
praesumuntur rite esse acta.
See
Byers v Chinn and Another
1928 AD at p. 332. We must presume that an official will carry
out the ordinary routine work of his office, for in our experience
this is what usually occurs. Hence we must presume that if an
official letter is written and a copy filed, that the former is
dispatched in the ordinary course of business to the person concerned
and that he has received it."
[40]
In
terms of s32(4)(d) of the Act military assessors are appointed only
'where applicable' and not inevitably. Hence, in the military
context, a different set of values inspired by the imperative
for military discipline apply and therefore trial before assessors
is
not a condition or requirement for a fair or just trial
[12]
[41]
The respondent was legally represented at the trial. Defence
counsel did not raise any issue about whether a preliminary
investigation
had been conducted or not.
[42]
The respondent says in the review application ('Notice of Review')
that: 'It is trite that in the event of a Captain (as the
respondent
was at the time) being prosecuted that a preliminary investigation
(known as the 'Pl') should have been held with regards
to the charges
against such a Captain'.
The
respondent then alleges that such an investigation was never held.
[43]
The appellants contended that the investigation was in fact held but
that due to the long period of time that had lapsed they
were unable
to locate the record of the investigation.
[44]
The court a
quo
decided the merits of the review application
on the factual basis that a preliminary investigation was not
conducted, whilst this
allegation of the respondent was contradicted
by the sworn testimony of three witnesses testifying from their
personal knowledge
on behalf of the SANDF (with one of those
witnesses being the defence counsel of the respondent himself at the
military trial)
that a preliminary investigation was in fact held.
That testimony was not of such a nature that it could be rejected
(nor was it
expressly rejected) on the papers as they stood.
[45]
The court a
quo
did not take into account the explanation on
record under oath that no original record of the preliminary
investigation or a copy
thereof could be produced as a result of the
delay of more than 10 years in bringing this review application.
[46] Of
importance also is that when the respondent testified before the
military court he said:
'Then with
this right hand of mine because I was facing - I don't know whether
like you've got a picture of those rooms even when
maybe like
when
you did Pl,
that
is being investigation especially for this case you should go to
those rooms of ours.
1
'
[13]
[My emphasis.]
There
can be no doubt that the reference to 'Pl' by the respondent must
have been a reference to the preliminary investigation and
that he
was aware that it had been held.
[47]
In my view the court a
quo erred
in finding as a fact that no
preliminary investigation had been conducted.
Appointment
of military assessors.
[48]
It is common cause that the trial took place without the assistance
of military assessors. It is apparent from the respondent's
founding
papers that it was not his case that he had been deprived of the
right to have assessors preside with the judge in the
trial nor was
his case based on a complaint that his trial was unfair because it
took place without the assistance of military
assessors. Those were
not the issues in the case that the SANDF was called upon to meet.
[49]
The respondent simply alleged that his military trial took place
without a military assessor, apparently on the supposition
that such
a trial of an officer with the rank of Captain was a nullity
per
se.
His complaint on the papers was not, as the court a
quo
assumed, that a military judge had the legal duty but failed to
inform him of his right to elect to be tried before a court composed
of a judge and assessors. In this, the court a
quo,
with
respect, departed from the wrong premise.
[50]
The respondent, in my view, has no reasonable prospects of success on
review. In all the circumstances I would uphold
the appeal.
Costs
[50]
During oral submissions, counsel for the appellants said that the
appellants will seek only the costs of the appeal.
[51]
I would make the following order:
51.1
The appeal is upheld with costs, such costs to include the costs of
two counsel
and the costs of the application for leave to appeal.
51.2
The order made by the court
a quo
is set aside and replaced
with the following order:
'The
application for condonation is dismissed. There is no order as to
costs.'
______________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
I
AGREE
______________________
A.A
LOUW J
JUDGE
OF THE HIGH COURT
I
AGREE
______________________
BAM
AJ
ACTING
JUDGEOF THE HIGH COURT
Appearances:
Counsel
on behalf of Appellants :
Adv M.M Oosthuizen (SC)
: Adv M.S
Mphahlele
Instructed
by
: The State Attorney
Counsel
on behalf of Respondent : Adv L.S De Klerk
(SC)
: Adv A.S.L
Van Wyk
Instructed
by
: Ehlers Fakude Inc.
Date
heard
: 19 October 2016
Date
delivered
: 24 April 2017
[1]
The term used in the military is 'cashiering'. The concept of
cashiering is not defined in legislation
but
it has the traditional meaning of a ritual discharge of an officer
from a military force at a parade and in front of the assembled
troops, where he or she is publicly disgraced by stripping the
officer of his or her rank and then chased off the parade ground.
[2]
2000(2) SA 674 (CC).
[3]
See Wolgroeiers Afslaers (Edms) Bpk v Munisiplaiteit van
Kaapstad 1978(1) SA 13 (A).
[4]
[2012] 2 All SA 462 (SCA) 464.
[5]
1962(4) SA 53 l(A) at 532, per Holmes JA.
[6]
[2013] 4 All SA 639
(SCA) at para 36.
[7]
See record vol 3 p 288 (line 13) - p 289 (lline 1)
[8]
[2009] 2 All SA 243
(SCA) par 27.
[9]
Kalil v Decotex (Pty) Ltd 1988(1) SA 943 (A) at 981D-G.
[10]
1984(3) SA 623 {AD) at 634 E- 635 C.
[11]
[2012] 2 All SA 532
(SCA) para 48.
[12]
Legal Soldier (Pty) Ltd v Minister of Defence 2002(1) SA 1 (CC) at
20 para 44 D-G where it was said:
'The
impugned sections of the Act differentiate between soldiers and
other people. Such differentiation is rationally connected
to the
legitimate government purpose of establishing and maintaining a
disciplined military force with a viable military justice
system.
The ground of differentiation is not one specified ins 9(3) of the
Constitution; it applies equally to all members of
the SANDF in
their capacity as such. This basis of differentiation can have no
adverse effect on their human dignity or have
any comparable impact
on them. It has not been suggested that it is unfair to apply the
machinery of the military justice system,
including the prosecution
regime created by the Act, to people who voluntarily join the SANDF
in the knowledge that it is a disciplined
force with its own
disciplinary rules and enforcement machinery. The differentiation is
therefore not unfair discrimination within
the meaning of s 9(3) of
the Constitution.'
[13]
Record Vol 2. pl68 lines 26-30.