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[2016] ZAECMHC 51
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Minister of Safety and Security and Others v Ndaba (481/1999) [2016] ZAECMHC 51 (10 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 481/1999
MINISTER
OF SAFETY & SECURITY
1
st
Applicant/Defendant
NATIONAL
COMMISSIONER
OF
THE SOUTH AFRICAN POLICE
SERVICE
2
nd
Applicant/Defendant
DETECTIVE
SERGEANT MCEBISI
KATSHULA
3
rd
Applicant/Defendant
and
MLAMLI
NDABA
Respondent/Plaintiff
JUDGMENT
BROOKS
J
[1]
This is an application in which the applicants seek the following
relief:
“
1.
That the Plaintiff’s action against the Defendants in case
481/99 be and is hereby
dismissed for want of prosecution or
inordinate delay in the prosecution thereof.
That
the Plaintiff pays the costs of this application only in the event of
his opposition thereof.
”
[2]
These being application proceedings in which the applicants, who are
the defendants in the action, seek final relief, their
entitlement
thereto is to be determined upon an assessment of those allegations
made in their founding affidavit which have been
admitted by the
respondent in his answering affidavit read together with the
allegations made by him therein.
[1]
[3]
In his opposition, the respondent raises a preliminary point
in
limine
which is expressed in the following terms:
“
6.1
The founding affidavit is lacking in facts and evidence demonstrating
that the deponent has the necessary
authority to institute the
interlocutory application for and on behalf of the 1
st
and 2
nd
defendants/applicants.
6.2
The authority of the deponent is therefore placed in issue.”
[2]
[4]
In argument on the point, Mr NKUBUNGU, who appeared on behalf of the
respondent, submitted that the mere say-so of the deponent
to the
founding affidavit is insufficient proof of either delegation or
authority without submitting acceptable evidence or documentation
to
substantiate the averment.
[3]
[5]
The relevant portion in the founding affidavit
[4]
reads
as follows:
“
1.2
I am an adult male in the employ of the 1
st
Defendant, holding the rank of a Colonel in the South African Police
Force and I am the co-ordinator of civil claims against the
Police in
all the former Transkei area, with offices at 11
th
Floor PRD Building, Sutherland Street, Mthatha.
1.3
I am duly authorised by the 1
st
and 2
nd
Defendants, who have duly resolved to bring this application, to
depose to this affidavit on their behalf.”
[6]
In meeting the argument, Mr ZILWA, who appeared on behalf of the
applicants, stressed that the challenge was apparently to the
deponent’s authority to institute the application, not his
authority to depose to the founding affidavit. Indeed this
is
plain from the answering affidavit
[5]
.
The deponent made no claim to having authority to institute the
proceedings. He stated clearly that it was the first
and second
defendants who had duly resolved to bring the application. To
this statement the applicant had made no challenge.
Accordingly
this matter is to be distinguished from the authorities upon which
the respondent placed reliance
[6]
and
which deal with the need for a deponent who claims direct authority
to institute proceedings, or a delegation of power to institute
proceedings, to place evidence or documentation before the court to
substantiate the averment.
[7]
In the present matter there can be no uncertainty about the authority
of the defendants to institute these proceedings and no
documentation
is required to substantiate the averment that they have duly resolved
to do so. It is not necessary for the
deponent to attach proof
of his authorisation to depose to the affidavit. Read with his
description of the position he holds
within the South African Police
Services, his statement under oath that he is authorised to depose to
the affidavit is sufficient.
In my view, there is no merit in the
point raised in
limine
.
[8]
It has been held
[7]
that an
inordinate or unreasonable delay in prosecuting on action may
constitute an abuse of process and warrant the dismissal of
an
action. The approach to be adopted in the consideration of
whether or not to dismiss an action in such circumstances has
been
expressed by BORUCHOWITZ AJA on behalf of the full court of the
Supreme Court of Appeal
[8]
as
follows:
“
There
are no hard-and–fast rules as to the manner in which the
discretion to dismiss an action for want of prosecution is
to be
exercised. But the following requirements have been recognised.
First, there should be a delay in the prosecution
of the
action; second, the delay must be inexcusable; and, third, the
defendant must be seriously prejudiced thereby. Ultimately,
the
enquiry will involve a close and careful examination of all the
relevant circumstances, including the period of the delay,
the
reasons therefor and the prejudice, if any, caused to the defendant.
There may be instances in which the delay is relatively
slight
but serious prejudice is caused to the defendant, and in other cases
the delay may be inordinate but prejudice to the defendant
is slight.
The court should also have regard to the reasons, if any, for
the defendant’s inactivity and failure to
avail itself of
remedies which it might reasonably have been expected to use in order
to bring the action expeditiously to trial.”
[9]
A perusal of the authorities
[9]
reveals
scant regard for the constitutional climate within which the court is
called upon to exercise its discretion in matters
of this nature.
The exception is to be found in the dicta of MOOSA J
[10]
who
has held that the court will exercise its power to dismiss an action
on account of the delay or want of prosecution only in
exceptional
circumstances “
because
the dismissal of an action seriously impacts on the constitutional
and common-law right of a plaintiff to have the dispute
adjudicated
in a court of law by means of a fair trial.
”
[10]
Section 34 of the Constitution
[11]
provides,
as part of the Bill of Rights, that:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a Court
or, where appropriate, another independent or impartial tribunal or
forum”
[11]
Section 39(2) of the Constitution ¹¹enjoins our court in
interpreting and when developing the common law or customary
law, to
promote the “spirit, purport and objects of the Bill of
Rights.” Even under common law, our courts are
open to
all and it is only in very exceptional circumstances that the doors
of the court will be closed upon anyone who desires
to prosecute an
action.
[12]
[12]
In my view, to the helpful summary of factors which fall for
consideration in matters of this nature that has been expressed
by
BOROUCHOWITZ AJA
[13]
should
be added that the power that the court has to dismiss an action for
want of prosecution, being a power to regulate its own
processes in
terms of the provisions of s173 of the Constitution
[14]
,
is a power which has to be exercised with caution
[15]
and
sparingly having taken into account the interests of justice in a
manner consistent whith the Constitution.
[16]
[13]
In the action instituted by the respondent in this matter, damages
are claimed in respect of an alleged unlawful deprivation
by servants
of the applicants of the respondent’s liberty and freedom of
movement, causing an impairment of his dignity.
In essence, the
respondent’s claim is based upon an alleged infringement of
some of his constitutional rights as protected
by the Bill of Rights.
In my view, the nature of the respondent’s claim is a
factor to which regard must be had in
accordance with the principle
that all law in this country must be grounded in constitutional
values set out in the Bill of Rights.
[17]
[14]
Moreover, the potential which the relief sought holds to have a
devastating effect upon the respondent’s right of access
to
justice, to have his case decided in a fair public hearing before a
court, must be a factor which is taken into account. In
this
regard, the court must be mindful of the approval given by the
Constitutional Court
[18]
to an
approach to be fundamental rights enshrined in the Bill of Rights
which, whilst paying due regard to the language that has
been used,
should be “generous” and “purposive” and “
give expression to the Constitution”.
The requirements of
this approach are satisfied by the observation, in matters of this
nature, of the common law principle
that the courts of law are open
to all and it is only in very exceptional circumstances that the
doors of the court will be closed
upon anyone who desires to
prosecute an action.
[19]
[15]
The applicants contend that the delays demonstrated in the conduct of
this matter by the respondent are “extensive and
inexcusable”
and have prejudiced the applicants in their ability to defend the
action.
[16]
Upon an application of the relevant principles
[20]
the
following facts are relevant to a determination of the applicant’s
entitlement to the final relief sought:
·
the
respondent’s cause of action is alleged to have arisen on 17
October 1997;
·
prior
to October 1997 the respondent was employed by Ncora Irrigation
Scheme in the district of Cofimvaba. The liquidation
of this
scheme led to his retrenchment in March 1997;
·
the
combined summons was issued on 12 March 1999;
·
initially,
the respondent utilised his savings and his retrenchment package to
fund the litigation;
·
a
plea was filed on behalf of the applicants in which a special plea
was raised to the effect that the respondent had failed to
comply
with the provisions of s 57 of the South African Police Services Act
68 of 1995;
·
thereafter
followed an application by the applicants for an order in terms of
Rule 33(4) of the Uniform Rules of Court directing
that the issue in
the special plea be argued separately from the merits of the action,
the latter to be postponed to a later date;
·
as
early as 25 February 2000 the respondent’s initial attorneys
addressed a letter to him, a copy of which is attached to
the
answering affidavit, in which it was indicated that the matter was
set down for trial on 31 May 2000 and that the respondent
was
required to call at the attorneys’ offices to make arrangements
for the payment of legal fees and disbursements;
·
the
respondent’s inability to make payment of legal fees led to the
withdrawal of his attorneys as attorneys of record on
22 August 2000;
·
leave
was obtained from the registrar of this court for the respondent to
proceed
in
forma pauperis
and
a notice of acting was filed by his new attorneys on 16 October 2000;
·
the
issue with which the special plea was concerned came before court on
20 October 2000 when an order was made directing the respondent
to
apply for condonation for the late institution of the proceedings
such application to the brought in accordance with the provisions
of
s 57 (5) of the South African Police Services Act 68 of 1995 within
thirty days. The respondent, notwithstanding the
in
forma pauperis
status
of his circumstances, was ordered to pay the costs;
·
on
4 February 2001 the respondent’s attorneys of record addressed
a letter to him advising that the matter had been set down
by the
applicants on 8 February 2001. A copy of the letter is attached
to the answering affidavit. It records further
that the
attorneys had found it impossible to secure an advocate who was
prepared to conduct the matter on an
in
forma pauperis
basis.
The statement is made that an “the last occasion which
was on 20
th
October 2000 and 30
th
November 2000” assistance was obtained from two advocates “and
this cannot happen any more”. In the circumstances
a
notice of withdrawal as attorneys of record was attached;
·
the
respondent again approached the registrar of this court
in
forma pauperis
and
on 12 June 2001 new attorneys of record filed their notice of acting;
·
on
15 June 2001, with the respondent being duly represented by an
advocate, the following order was issued in favour of the respondent:
“
That
the application for condonation is granted and Defendant is ordered
to pay costs of the Plaintiff”;
·
contemporaneously,
the respondent’s new attorneys of record informed him that they
needed to “co-ordinate and construct”
his file, “study
and assimilate the pleadings and, where necessary, collect supporting
documents and evidence relevant”
to his case;
·
the
respondent decided to afford his attorneys a period of two months,
after which he “frequented” their office. He
states
that each time he went there he was either told that the attorney was
busy and that he should “come some other time”
or that
the attorney was still busy “collecting relevant documentation
and evidence for use in a trial.”;
·
ultimately,
“realising that there was no progress in the prosecution of the
matter”, the respondent reported the unsatisfactory
circumstances in which he found himself to the registrar of this
court;
·
thereafter,
intermittent visits were made to the registrar’s office;
·
on
18 February 2008 the respondent completed on affidavit in terms of
Rule 40 of the Uniform Rules of Court for leave to bring his
action
in
forma pauperis
and
the registrar attached a copy thereof to a letter addressed to yet
another firm of attorneys, asking them to conduct an enquiry
into the
respondent’s means;
·
armed
with this documentation the respondent approached the new attorneys
“not having a single document regarding papers already
filed”;
·
the
respondent was told by his attorneys “to arrange an
appointment.” When he ultimately secured a consultation
he was informed that the attorneys “would first have to go
through certain formalities to obtain the file, study it and place
themselves on record before calling [him] for further consultation.”;
·
on
12 May 2008 the new attorneys addressed a letter to the registrar of
this court indicating that the action had reached the stage
where a
conference in terms of Rule 37 of the Uniform Rules of Court was due
to be arranged and that the previous attorneys were
still on record
as acting for the respondent. The letter concludes with the
statement that “we will gladly be of assistance
provided your
office instructs the present attorneys of record to file their
withdrawal notice so that we can file our notice of
acting.”;
·
on
11 June 2008 the new attorneys addressed a letter to the attorneys
who still remained on record requesting them to file a notice
of
withdrawal;
·
on
29 August 2008 a notice of withdrawal was filed;
·
thereafter,
the respondent’s new attorneys called him to a consultation and
informed him that they were “rather loath
to place themselves
on record before obtaining a record of criminal proceedings from the
Engcobo Magistrate Court to see if the
said record will in any case
support [the] cause of action.”;
·
it
is the respondent’s belief that his new attorney personally
drove to Ngcobo on diverse occasions to obtain the record as
he
experienced difficulty in communicating with the relevant office and
in getting co-operation. It is apparent that on each
occasion
the attorney was informed that the record was “in the archives
and officials had no time to get there because of
the pressure of
work.”;
·
towards
the end of May 2012 the respondent’s attorney received the
hand-written notes of the proceedings, made by the magistrate,
ascertained that they were incomplete and requesting a transcribed
record of the proceedings;
·
on
15 June 2012 the court manager at Ngcobo wrote to the respondent’s
attorney and informed them that during 1997 there was
no mechanical
recording in the district courts and accordingly what had already
been sent to the attorneys constituted the only
records of the
proceedings;
·
on
13
th
July 2012 the respondent’s attorneys filed a notice of acting
as attorneys of record;
·
discovery
of the charge sheet and the incomplete record of proceedings received
from Ngcobo was then made;
·
on
6 June 2014 the respondent’s attorneys of record addressed a
letter to the applicants’ attorneys of record pointing
out that
discovery had been made and requesting from them an indication that
they still held instructions as the applicants’
attorneys of
record;
·
on
17 June 2014 the applicants’ attorneys’ of record
requested the respondent’s attorneys of record to furnish
them
with copies of previous correspondence because they “had to dig
down before getting some of the file contents herein.”;
·
on
1 April 2015 a conference was held between the parties’ legal
representatives in accordance with the provisions of Rule
37 of the
Uniform Rules of Court ;
·
no
concerns were raised by the applicants’ attorneys of record
about prejudice caused by undue delays when the Rule 37 conference
was held;
·
on
13 July 2015 the respondent’s attorneys of record served a
request for particulars for trial in accordance with the provisions
of Rule 21 of the Uniform Rules of Court;
·
on
16 July 2015 the applicants’ attorneys of record addressed a
letter to the respondent’s attorneys of record indicating
that
as “this is an old matter, we will have to take instructions on
your request.” An indulgence of further
time was
requested;
·
on
20 July 2015 the respondent’s attorneys of record addressed a
response in which it was stated that an indulgence of one
month would
be granted after which a written request would be expected if any
further indulgence were to be sought;
·
no
further indulgence being sought on behalf of the applicants, and
there being no response to the respondent’s request for
particulars for trial, the respondent’s attorneys of record
made application to the registrar of this court for the allocation
of
a trial date;
·
the
registrar allocated 27 November 2015 as a trial date;
·
on
27 November 2015 the matter was postponed
sine
die
at the instance of the applicants who were ordered to pay the wasted
costs occasioned by the postponement;
·
on
3 February 2016 the respondent’s attorneys of record again made
application to the registrar of this court for the allocation
of a
trial date;
·
the
registrar allocated 19 May 2016 as a trial date;
·
on
11 May 2016, during the week preceding the allocated trial date and
in accordance with local rules of practice, both the attorneys
for
the applicants and the attorneys for the respondent attended the
meeting with the Deputy Judge President to indicate whether
the
matter was ready to be enrolled and to proceed to trial on 19 May
2016;
·
no
complaint about undue delays in the prosecution of the respondent’s
action causing prejudice to the applicants was ever
raised before the
present application was launched on 17 May 2016.
[17]
In the founding affidavit the applicants allege that the “inordinate
delay in prosecuting the action has had a detrimental
effect on the
Defendants and their ability to defend the action.” This
allegation is developed to claim that “all
relevant records
pertaining to the alleged cause of action have since become
untraceable, that all possible witnesses have either
since died,
resigned, retired and became untraceable.”(
sic
).
Lastly, the applicants claim that they have established that the
person cited by the respondent in the action as the third
defendant,
the police officer who is alleged to have laid false charges against
the respondent which led to his arrest and detention,
“is
unknown and has never been employed by the South African Police
Services or Force at any stage
.
”
[18]
Assessing the facts relating to the delay in the progress of the
prosecution of the action, it is evident that indeed there
are
significant periods of time in which the prosecution of the action
appears to have stagnated. However, the question to
be asked is
whether these periods of time are indicative either of vexatious
delaying tactics on the part of the respondent, or
of a dilatoriness
that amounts to an abuse of the court process, or of a level of
disinterest on the part of the respondent which
amounts to an
abandonment of his claim.
[19]
In my view it is a significant factor, which must be taken into
account, that the respondent expended his savings and his
retrenchment package in the initial funding of the litigation.
On his own allegations, his difficulties commenced when he
ran out of
funds and was obliged to seek leave to prosecute his action
in
forma pauperis
.
He states that this deprived him of the power to maintain the
momentum of the prosecution of the action. It is a sad
indictment on the organised legal profession that the facts in this
matter demonstrate that the respondent is justified in holding
this
view. There can be little doubt that much of the inactivity
evident in the history of the matter as set out in the answering
affidavit can be attributed directly to the reality that, with its
in
forma pauperis
character, the respondent’s action was not prioritised,
presumably because it did not immediately generate fees.
Accordingly,
it is his circumstances, rather than inactivity on his
own part, that denied him access to justice over significant periods
of
time.
[20]
As an
in
forma pauperis
litigant who would appear not to have a sophisticated background, the
battle between the respondent and the organised legal profession
must
at times have seemed like the unequal Biblical battle between David
and Goliath. However, even if there is room for
criticism of an
apparent delay on the part of the respondent in taking the issue of a
lack of progress either with his attorneys,
or with the registrar of
this court, in my view the delays do not amount to an abuse of the
court process. The matter has
been enrolled on the civil trial
roll on a number of occasions, with the applicants’ plea of
prejudice due to a delay in
prosecution emerging only belatedly.
[21]
The respondent deals, as he must, in the answering affidavit with the
allegations relating to the prejudice alleged to have
been suffered
by the applicants. He makes the point that as early as 18 July
2000 the applicants filed an amended plea based
upon information and
records at their disposal. There has been no change in the
applicants’ legal representation.
It is reasonable to
assume that consultations were held prior to the drafting of the
amended plea and it would be reasonable to
expect that statements
taken from witnesses at the time, or at the very least a list those
witnesses, would have been retained.
Accordingly, if only at
pre-trial stage the applicants are endeavouring to obtain evidential
material and are experiencing difficulty
therein, responsibility for
such difficulty cannot be laid unequivocally at the door of the
respondent. In my view, there
is merit in the response of the
respondent on this point.
[22]
Sight must not be lost of the discovery by the respondent of such
record as exists of the relevant court proceedings in the
Magistrate’s Court for the district of Ngcobo. A copy
thereof is annexed to the answering affidavit. Although
recorded in manuscript, it is a legible document which discloses the
evidence of one Mcebisa Katshila, who arrested the respondent.
In his particulars of claim the respondent alleges that he was
arrested by one Mcebisi Katshila, who was a detective sergeant in
the
employ of the South African Police Service. In the amended
plea, the arrest of the respondent by a member of the South
African
Police Service is admitted. Whilst the respondent is therein
put to the proof of his or her identity, the plea does
not claim that
the individual named was never employed by the South African Police
Service. Prima facie, whilst the respondent
may wish to
introduce an alternative spelling to the name of the third defendant
by way of an amendment in accordance with the
provisions of Rule 28
of the Uniform Rules of Court, the protest made by the applicants in
the founding affidavit relating to a
lack of connection between the
third defendant and the South African Police Force appears to be
disingenuous.
[23]
In my view, although adopted in the absence of a respondent who
carried the additional burden of neglect by the organised legal
profession as an
in forma pauperis
litigant, the approach of
Gordon J demonstrated in the following dicta commends itself to the
present matter:
“
In
my view, the power to strike out the claim will be used only in
exceptional cases, as stated in the cases referred to above,
and then
only where there has been a clear abuse of the process of Court.
In
the present case, while I consider the plaintiff’s conduct
reprehensible, I am unable to say that his action is so tainted
as to
amount to an abuse of process. Despite his delays, he had in
fact consulted a number of attorneys, and whatever the
causes of the
problems with his attorneys and counsel may have been, I do not
consider that the doors of the Court should, at this
late stage, be
closed to him. Should the case proceed, the trial Court would
be in a position to take all relevant factors
into account, including
the factor of prejudice to defendants.”
[24]
It follows that the application cannot succeed.
[25]
The following order is made:
“
The
application to dismiss the plaintiff’s action against the
defendants under case number 481/1999 is dismissed with costs.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances
For
the applicants/defendants: Adv PHS ZILWA SC
Instructed
by
Zilwa Attorneys
Suite
445 – 4th Floor,
Development
House,
York
Road,
MTHATHA
For
the respondent/plaintiff: Mr M H NKUBUNGU
of
B. Makade Inc,
Suite
7–IDK Building
92
Sutherland Street,
MTHATHA
Date
heard:
13 October 2016
Date
delivered:
10 November 2016
[1]
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ZUMA
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) par [26].
[2]
Par 6 of the answering affidavit.
[3]
Reliance was placed upon EVELTH v MINISTER OF
HOME AFFAIRS
[2004] 3 ALL SA 322
(T) 326 par [9] and KASIYAMHURU v
MINISTER OF HOME AFFAIRS & OTHERS 1999 (1) SA 643 (W) 649 A-B.
[4]
Par 1 of the founding affidavit.
[5]
Note (2) supra.
[6]
Note (3) supra.
[7]
VERKOUTEREN v SAVAGE
1918 AD 143
at 144; KUIPER
AND OTHERS v BENSON
1984 (1) SA 474
(W) 476 H–477B; BISSET AND
OTHERS v BOLAND LTD AND OTHERS
1991 (4) SA 603
(D) 608 C-E; MOLALA v
MINISTER OF LAW AND ORDER AND ANOTHER
1993 (1) SA 673
(W) 676 B–679
I; GOPAUL v SUBBAMAH
2002 (6) SA 551
(D) 558 F-G; SANFORD v HALEY NO
2004 (3) SA 296
(C) par [8]; GOLDEN INTERNATIONAL NAVIGATION SA v
ZEBRA MARITIME CO LTD; ZEBRA MARITIME CO LTD V MV VISVLIET
2008 (3)
SA 10
(C); ZAKADE v THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
[2010] JOL 25868
(ECB); CASSIMJEE v MINISTER OF FINANCE
2014 (3) SA
198
(SCA) par [10]
[8]
CASSIMJEE v MINISTER OF FINANCE 2014(3) SA 198
(SCA) par [11].
[9]
Note (7) supra
[10]
SANFORD v HALEY NO
2004 (3) SA 296
(C) par [8]
[11]
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT
108 of 1996.
[12]
WESTERN ASSURANCE Co v CALDWELL’S TRUSTEE
1918 AD 262
at 277; SCHOEMAN EN ANDERE v VAN TONDER
1979 (1) SA 305
(O) 305 F; FISHERIES DEVELOPMENT CORPORATION v AWJ INVESTMENTS
1979
(3) SA 1331
(W) 1338 F –G; BISSET AND OTHERS v BOLAND BANK LTD
AND OTHERS
1991 (4) SA 608
D-F.
[13]
Note (8) supra.
[14]
Note (11) supra
[15]
S v PENNINGTON AND ANOTHER
1997 (4) SA 1076
(cc).
[16]
PARBHOO AND OTHERS v GERTZ NO AND ANOTHER 1997
(4) SA 1095 (CC).
[17]
CITY OF CAPE TOWN v SANRAL AND 10 OTHERS
2015 (5)
BCLR 560
(SCA) par [31].
[18]
S v ZUMA AND OTHERS
[1995] ZACC 1
;
1995 (2) SA 642
(CC) par
[15]; S v MAKWANYANE
[1995] ZACC 3
;
1995 (3) SA 391
(CC) par [9].
[19]
Note (12) supra.
[20]
Note (1) supra