About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2016
>>
[2016] ZAECMHC 22
|
|
Minister of Police, Libode and Another v Reformed Presbyterian Church in South Africa; In re: Reformed Presbytarian Church in South Africa v Minister of Police and Another (3642/2015) [2016] ZAECMHC 22 (24 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION –MTHATHA
CASE
NO 3642/2015
DATE:
24 MAY 2016
In
the matter between:
MINISTER
OF POLICE,
LIBODE
...................................................................................
1
st
Applicant
STATION
COMMISSIONER
..........................................................................................
2
nd
Defendant
And
REFORMED
PRESBYTERIAN CHURCH
IN
SOUTH
AFRICA
..............................................................................................................
Respondent
IN
RE
REFORMED
PRESBYTARIAN CHURCH
IN
SOUTH
AFRICA
.................................................................................................................
Applicant
And
MINISTER
OF
POLICE
.................................................................................................
1st
Respondent
STATION
COMMISSIONER,
LIBODE
.....................................................................
2nd
Respondent
JUDGEMENT
MGXAJI
A.J.
[1]
This matter came before me as an application for rescission brought
according to the applicants’ papers under common law
alternatively in terms of rule 42(1) (a) of the Uniform Rules of
court. The respondent had launched by way of long form the main
application on the 9
th
December 2015 and service was effected on the 11
th
December 2015 at the office of the State Attorney Mthatha. Following
an expiry of fifteen days from the 11
th
December 2015 the main application was set down for hearing on the
12
th
January 2016, with the notice of set down having been served at the
State Attorneys’ office on the 6
th
January 2016. On the 12
th
January 2016 an order was granted against the applicants herein
notwithstanding requests from the bar for postponement by Ms Madyibi
who pitched up at court on behalf of the applicants herein.
[2]
The main application was served for the 2
nd
respondent at the State Attorneys’ office as also for the 1
st
respondent with the stamp thereof reflecting that Yandisa Damane,
described in the sheriff’s return of service as a receptionist,
acknowledged receipt of the application.
[3]
In this rescission application it is so that the applicant’s
founding affidavit, deposed to by Sabelo Mbeki who describes
himself
as a Colonel in rank and a Commander of Mthatha Civil Litigation
Centre in the South African Police Services, states that
the 1
st
respondent was alerted to the main application on the 12
th
January 2016 by Mr Tshitshi whose attention similarly had been drawn
to such application in the early hours of the 12
th
January 2016. In his confirmatory affidavit Mr Tshitshi states that
the applicants had not been made aware of the main application
until
that 12
th
January 2016.
[4]
Further raised by the applicants in their papers is that the 2
nd
applicant was not served with the main application and given that
service in respect of him had been effected at the office of
the
State Attorney as with the 1
st
applicant, so is it contended on behalf of the applicants, the order
of the 12
th
January 2016 was granted in their absence and without having afforded
them an opportunity to be heard on the merits.
[5]
The respondents herein dispute the applicant’s contention
stating that Ms Madyibi on behalf of the applicants was given
an
opportunity to address the court on the 12
th
January 2016 during which she pointed to the court the shortcomings
in the main application. Moreover the applicants, contends
the
respondent, had been given adequate dies prior to the setting
down of the main application for hearing over and above
the palpable
failure by Mr Tshitshi in his confirmatory affidavit to detail how it
came about that Ms Yondisa Damane could have
missed bringing to his
attention the main application papers.
[6]
On behalf of the respondent herein, during the hearing, Mr Zono
submitted that Ms Madyibi having been present and actually addressed
the court before the order of the 12
th
January 2016 was granted the applicants should have appealed the
order of the 12
th
January 2016 instead of seeking a rescission relief. On these facts,
so submitted Mr Zono, the order cannot be considered to have
been
granted in the applicants’ absence.
[7]
There is no dissonance in the papers that the main application was
served as was the notice of set down on the 6
th
January 2016 at the office of the State Attorney in respect of the
2
nd
applicant herein. It is this preliminary yet pivotal issue of
service, in my considered view, which needs determination as
applicant’s
subsequent steps culminating to the order of the
12
th
January 2016 turn on whether there was compliance or not with rule
4(9) of the uniform rules of court as a requisite for the court
to
granting the order. Barring all other additional considerations
pertinent in the adjudication of rescission applications whether
in
terms of rule 31 (2) (b) or rule 42(1) or under common law, service
of the process initiating the legal proceeding is the primary
issue
for consideration. It is my considered view that it is decisive in
this application.
[8]
Mr Zono argued before me on behalf of the respondent that in terms of
rule 4(9) of the Uniform Rules of court service in respect
of the 2
nd
applicant herein was properly done since the 2
nd
respondent as an Administrator should be served at the Office of the
State Attorney, Mthatha. Further argued is that the
order of
the 12
th
January 2016 could not have been erroneously sought nor erroneously
granted in the applicant’s absence as Ms Madyibi appeared
and
made representations to the court before the granting of the order.
To the latter submission Ms Madyibi submitted that she
made no
arguments regarding the merits on the 12
th
January 2016 as it was ruled by court that she had not filed a notice
to oppose and could not be heard.
[9]
It was argued on behalf of the respondent that this aspect of
appearance in court on the 12
th
January 2016 by Ms Madyibi is a point of dispute resolvable on the
basis of the Plascon –Evans’ principle. Whether
this
court will have to take a view on this issue of whether there is or
not a dispute of fact depends on the view I take hereunder
of what I
consider to be the first substantive issue to be disposed of in this
matter before determining, if at all, whether the
presence during the
hearing of the main application of Ms Madyibi constitutes a dispute
of fact. That substantive issue is whether
there was proper service
of the main application upon the 2
nd
applicant herein or not before other issues fall to be considered.
[10]
I have above indicated that the return of service reflects the main
application to have been served at the State Attorney’s
office
on behalf of the 2
nd
applicant herein and, as I understand the argument on behalf of the
respondent to be, reliance for the appropriateness of such
service is
placed on behalf of the respondent herein on rule 4(9) of the uniform
rules to the extent that the rule authorises service
of a notice or
summons instituting legal proceedings against an Administrator to be
at the State Attorney’s office situate
in the area of the court
jurisdiction in which the legal proceedings are instituted. In issue
herein is whether the Station Commissioner,
Libode, or a Station
Commissioner in general, can be construed as an Administrator for
purposes of service of a notice of motion
instituting legal
proceeding for the service at the office of the State Attorney on
behalf of the 2
nd
applicant to be regarded as a proper service in compliance with rule
4(9) of the uniform rules of court.
[11]
The Constitution of the Republic of South Africa, Act 108 of 1996
section 207 (3) thereof makes provision for the National
Commissioner, with the concurrence of the Provincial Executive to
appoint a Provincial Commissioner to exercise control over and
manage
the police service in the province in accordance with national
policing policy. Such Provincial Commissioner in terms of
section 12
of the South African Police Service Act 68 of 1995 (hereinafter
referred to as Act) establishes Police Stations and
determines their
boundaries. Members of the Police Service are appointed in terms of
section 5 of the Act and exercise such duties
and functions as are
conferred by law or assigned to as Police official.
[12]
What the Act has no assigned to Police Officials in particular in the
position of the 2
nd
applicant is the duty to act as an Administrator neither is there in
my view a law nor have I been referred to any legislation
conferring
powers to the 2
nd
applicant to perform or function as an Administrator. In my view for
a Police Official to act as an Administrator as envisaged
in rule
4(9) of uniform rules of court there has to be an empowering
legislation enacted for that role for there to be a notice
of
instituted legal proceeding against him served at the office of the
State Attorney.(See: NIGEL TOWN COUNCIL v AH YAT
[1]
).
[13]
It seems to me that the Station Commissioner, Libode can never be an
Administrator as conceived in law and even worse not as
contemplated
in rule 4(9) of Uniform Rules of Court and any notice of legal
proceeding instituted against him or her has to be
served upon him or
her and not at the office of the State Attorney as was done in the
main application by the respondent herein.
On these facts the
respondent in approaching court and obtaining the order granted on
the 12January 2016 erroneously sought such
order in the absence of
the 2
nd
applicant as it was obtained on a flawed return of service when it
should not have been granted.
[14]
For completeness sake on the issue in the foregoing paragraph, the
2
nd
applicant is not an organ of state as defined in section1 of the
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002
. In terms of
section 5
(1) (b) (11) of this Act service of
any process by which any legal proceedings against an organ of state
are instituted such process
must be served on the National
Commissioner or Provincial Commissioner of the province in which the
cause of action arose. So that
even in terms of this Act relative to
an instituted process the 2
nd
applicant’s position as Station Commissioner has no capacity as
an aspect which is consistent with the
South African Police Service
Act of 1995
. Therefore service at the office of the State Attorney on
behalf of the 2
nd
applicant as Station Commissioner is not contemplated in any
legislation and short of service upon him of the main application
any
subsequent order obtained shall remain invalid.
[15]
Notwithstanding my finding on the issue of improper service of the
main application in regard to the 2
nd
applicant herein I deem it proper to deal as well with whether the
order granted on the 12 January 2016 is not rescindable on another
basis too that it was granted erroneously in the absence of the
applicants.
[16]
It is common cause that the respondent had obtained in its favour an
interdict order issued by the Magistrate Court, Libode
and on the
basis of which the respondent’s members laid with Police
Officers in Libode Police Station, contempt of court
complaint
against the respondent’s members against whom such interdict
relief was. In the main application attached thereto
is ANNEXURE ‘M’
being a copy of the applicant’s investigating diary and in
which diary is acknowledged the receipt
of the court order forming
the basis of the complaint, as also the returns of service already of
the court order and a note that
the recording that the police
officers had received the Magistrate court final order. The last
entry note in ANNEXURE ‘M’
is to the effect that the
“
civil side of this matter should be finished first”.
[17]
The Contempt of Court alleged in respect of the Magistrate’s
Court order, unlike the established practice in the High
Court, is a
criminal offence created by statute in terms of
section 106
of the
Magistrate’s Court Act 32 of 1944 as amended, and the
requisites of which in order to secure conviction are:
(a)
That there must be a court order;
(b)
That there must have been service or notice;
(c)
That there was no compliance with the court order by the respondents
and are found to have been wilful and mala fide.
In
this regard reference is made to
FAKIE
NO v CCIISYSTEMS (PTY) LTD
[2]
.
[18]
From the above outlined requisites for a contempt of court charge it
becomes clear that, apart from the last recorded note
in annexure ‘M’
above which in its reading dissuaded any further action by Police
Officers, even though not decipherable
by whom it was, in law no
investigations let alone thorough investigations needed to be
undertaken save the service of summons
by Police Officers upon the
respondents against whom the contempt of court complaint was laid.
[19]
In terms of
section 13
(4) of the
South African Police Service Act 68
of 1995
as amended Police Officials are authorised as their duty and
function to serve court orders and summons and, inferably, no
investigations
were on these facts required or necessary save to
summon the respondents therein to appear before the Magistrate’s
Court,
Libode on charges of contempt of the court order of the 22
nd
January 2015 which they were alleged to have disobeyed.
[20]
In the present matter the respondent’s complaint was the
disregard of the court order of the 22 January 2015 by its
interdicted members but has not specified what investigations had to
be pursued by the 2
nd
applicant
where the interdicted members failed to observe the provisions of the
interdict. In my view such interdicted members’
disdainful
attitude and forceful entrance in the church premises to disrupt
church services was an act of disobedience to the court
order which
needed no investigations but opening of criminal charges only as
arresting such members for entering church premises
was not competent
for the police to have done. In fact the Magistrate’s Court
order itself does not authorise the Police
to arrest such interdicted
members of the respondent.
[21]
For purposes of such contempt charges it was to remain and still
remains the duty of the applicant in whose favour the order
was to
prove the three requisites for contempt of the court order in order
for conviction to follow unless the interdicted members
in rebuttal
evidenced absence of wilfulness and mala fides by creating a
reasonable doubt to escape such conviction.
[22]
Consequently I find that the order of the 12 January 2016 directing
the applicants to conduct a thorough investigations in
a contempt of
court order complaint, where on the applicable legal principles it
indisputably remained onerous on the respondent’s
members to
give evidence at the Magistrate’s Court establishing beyond
reasonable doubt the alleged non compliance by the
interdicted
members with the court order, to have been granted erroneously.
[23]
The applicants did not file a notice to oppose the main application
but showed up at court seeking to have the matter postponed
to enable
them to file opposing affidavits. In their founding affidavits the
applicants contend they have a good explanation alternatively
reasonable explanation and a bona fide defence entitling them to the
relief sought. It is the applicants’ alternative ground
on
which the rescission application is sought that the order of the 12
January 2016 was granted erroneously in their absence.
[24]
There are three ways in which a judgement taken in the absence of one
of the parties may be set aside and those could be in
terms of
Rule
31(2)
(b) or
Rule 42(1)
of Uniform Rules and under common law if the
party seeking the rescission has satisfied the requirements in one of
each of the
above mechanisms. See:
NYINGWA
v MOOLMAN
[3]
.
In view of the lack of service of the main application on the 2
nd
applicant as I have found above the order granted on the 12 January
2016 is rescindable in terms of rule 31(2) (b) of the Uniform
Rules
as in my evaluation good cause has been shown by the applicants.
[25]
Similarly where the nature of the complaint revolves around the
disobedience of the Magistrate’s Court orders of 19 November
2014 and 22 January 2015 proof of which depends on the evidence of
the respondent’s members who witnessed the forced entry
by the
interdicted members into the church and the alleged disruptions, an
order directing thorough investigations by Police was
erroneously
granted. Had the court been aware that the proof of the alleged
disobedience exclusively dependant on the observations
and evidence
of the church members present at Zandukwana it would not have granted
such order as nothing needed to be investigated
by the Police on
these facts.
[26]
Consequently such an order becomes rescindable as well in terms of
Rule 42 (1) (a).In each of the ways by which a default order
could be
set aside the overriding consideration is whether an applicant in his
papers has satisfied the requirements of the rule
in terms of which
the order is rescinded.
[27]
Before me it was strongly argued by Mr Zono that the order of the
12
th
January 2016 could not be regarded as having been granted in
the absence of the applicants as the applicants’
legal
representative Ms Madyibi appeared and was afforded opportunity to
orally address the court. It was however contended by
Ms Madyibi that
in her address she was not allowed to make any substantive
submissions as the court ruled that she had not filed
a notice to
oppose the matter and even a postponement she had applied for was
turned down.
[28]
It is manifest that the court order of the 12 January 2016 reflects
only the respondent herein as having been legally represented
which
lends credence to the applicants’ allegations. In the view that
I take on this aspect without a party having meaningfully
participated in the court hearing of the proceedings substantively
engaging in the presentation of the merits of the matter for
court’s
adjudication, it cannot be conceived that such mere presence in court
is not akin to absence. As the court order
of the 12 January 2016
depicts on the aspect of who was present at court during the hearing,
it does seem to me without further
evidential matter casting doubt, a
dispute as to whether the applicants were present, in the sense of
being involved in the hearing
of the matter, does notarise.
[29]
The foregoing notwithstanding it seems to me given the respondent’s
failure to serve the 2
nd
applicant with the application which should have notified him/her of
the relief sought to be obtained on the 12 January, the order
of the
12 January 2016 remains rescindable and falls to be set aside.
[30]
Inevitably further consideration of other issues as raised and argued
before me, inviting and cogent as they are, in my view
it remains
unnecessary for purposes of this rescission application to delve
into.
[31]
Accordingly I make the following order:
(a)
The order granted on 12 January 2016 be and is hereby set aside; and
(b)
The respondent is ordered to pay costs in the ordinary scale.
MGXAJI
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 12 May 2016
Date
handed down: 24 May 2016
For
the Applicants: Ms Madyibi
Instructed
by Mvuzo Notyesi Inc
For
the Respondent :Mr Zono
Instructed
by : A S Zono Attorneys
[1]
1950 SA (2) 182 at 185
[2]
[2006] ZASCA 52
;
2006 (4) SA 326
at 344H-345A
[3]
1993 (2) SA 508
at 510B-D