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[2016] ZAGPPHC 412
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Kgatle v Minister of Justce and Correctional Services and Others (41072.2016) [2016] ZAGPPHC 412 (25 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 41072/2016
DATE:
25 MAY 2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
DINEOK
GATLE
...............................................................................................................
..
Applicant
And
MINISTER
OF JUSTICE
AND
............................................................................
......
1
st
Respondent
CORRECTIONAL
SERVICES
COMMISSIONER
OF
CORRECTIONAL
........................................................
......
2
nd
Respondent
SERVICES
CHIEF
WARDER OF
BAVIAANSPOORT
.......................................................
......
3
rd
Respondent
MEDIUM
SECURITY PRISON
AREA
COMMISSIONER:
BAVIAANSPOORT
.................................................
....
4
th
Respondent
MEDIUM
SECURITY PRISON
JUDGMENT
Baqwa
J
[1]
There is a reason why the practice manual of the Gauteng High Court
(Pretoria)
is formulated in the manner it is, it is formulated as follows:
“
13.24
URGENT APPLICATIONS
1.
A judge is designated for the hearing of urgent applications for each
week of the year. For this purpose the week commences on
Friday at
16:00 and terminates on the Friday of the next week at 16:00.
2.
The normal time for the bringing of an urgent application is at 10:00
on Tuesday of the motion court week.
3.
3.1
If the urgent application cannot be brought at 10:00 on the Tuesday
of the motion court week, it may be brought on any other
day of the
motion court week at 10:00. The applicant in the founding affidavit
must set out facts which justify the bringing of
the application at a
time other than 10:00 on the Tuesday.
3.2
If the urgent application cannot be brought at 10:00 on any day
during the motion court week, it may be brought at 11:30 or
14:00 on
any day during the motion court week. The applicant in the founding
affidavit must set out facts which justify the bringing
of the
application at a time other than 10:00 on the Tuesday and other than
10:00 of the relevant court day.
3.3
If the application cannot be brought at 10:00 on the Tuesday or at
10:00 on any other court day or at 11:30 or 14:00 on any
court day it
may be brought at any time during the court day. The applicant in the
founding affidavit must set out facts which
justify the bringing of
the application at a time other than 10:00 on the Tuesday and other
than at 10:00, 11:30 or 14:00 on any
other court day.
3.4
The aforementioned requirements are in addition to the applicant’s
obligation to set out explicitly the circumstances
which render the
matter urgent. In this regard it is emphasised that while an
application may be urgent, it may not be sufficiently
urgent to be
heard at the time selected by the applicant.
3.2
The aforementioned practices will be strictly enforced by the
presiding judge. If an application is enrolled on a day or at
a time
that is not justified, the application will not be enrolled and an
appropriate punitive cost order may be made.
4.
The first paragraph of relief sought in the applicant’s notice
of motion must be for the enrolment of the application as
an urgent
application and for dispensing with the forms and service provided
for in the rules of court, to the extent necessary.
5.
5.1
Unless the circumstances are such that no notice of the application
is given to the respondent, or unless the urgency is so
great that it
is impossible to comply therewith, the notice of motion must follow
the format of form 2(a) of the First Schedule
to the Rules of Court
and therefore must provide a reasonable time, place and method for
the respondent to give notice of intention
to oppose the application
and must further provide a reasonable time within which the
respondent may file an answering affidavit.
The date and time
selected by the applicant for the enrolment of the application must
enable the applicant to file a replying affidavit
if necessary.
5.2
Deviation from the time periods prescribed by the Rules of Court must
be strictly commensurate with the urgency of the matter
as set out in
the founding papers.
5.3
In cases of extreme urgency, the reasonable time afforded to the
respondent to give notice of intention to oppose, is usually
not less
than 2 hours, excluding the hour between 13:00 and 14:00.
6
.
6.1
If the facts and circumstances set out in the applicant’s
affidavits do not:
6.1.1
constitute sufficient urgency for the application to be brought as an
urgent application and/or
6.1.2
justify the abrogation or curtailment of the time periods referred to
in rule 6(5) and/or
6.1.3
justify the failure to serve the application as required in rule 4,
the court will decline to grant an order for the enrolment
of the
application as an urgent application and/or for the dispensing of the
forms and services provided for in the rule. Save
for a possible
adverse cost order against the applicant the court will make no order
on the application.
6.2
The aforementioned requirements will be strictly enforced by the
presiding judge.
7
7.1
For the purposes of urgent applications ordinary court hours are
10:00 to 11:15, 11:30 to 13:00 and 14:00 to 16:00 of a court
day. If
a party wishes to bring an urgent application out of ordinary court
hours the presiding judge’s clerk must be telephoned
at his/her
office or on cell number: 083 677 0522.
The
following information must be conveyed to the judge’s clerk:
7.1.1
the identity of the parties;
7.1.2
whether or not service has been or will be effected;
7.1.3
whether or not the application is or is anticipated to be opposed;
7.1.4
the type of application;
7.1.5
the nature of the relief sought;
7.1.6
why it is not possible for the application to be heard during
ordinary court hours; and
7.1.7
when it is anticipated the application will be ripe for hearing.
7.2
The judge’s clerk will communicate with the judge and
thereafter advise the party when and where the application will
be
heard or
what directions the judge has given in regard to the
application.
7.3
When an urgent application is brought out of ordinary court hours,
the applicant must ensure that the order of the court can
be typed so
that it can be signed by the presiding judge’s clerk.
7.4
The judge designated for the hearing of urgent applications is not to
be contacted directly.
7.5
If the judge designated for the hearing of urgent applications
directs that the application be heard in court after ordinary
court
hours the judge’s clerk shall telephone
—
7.5.1
the court stenographer on urgent application duty to arrange the
stenographer’s attendance in court at the
arranged
time. The stenographer’s telephone number is obtained from
iAFRICA on the Friday before 16:00.
7.5.2
the security officer on duty at the main entrance of the High Court
at telephone number 012 315 7460 to arrange for the admission
of the
parties to the court and for the parties to be directed to the court
in which the court dealing with urgent matters is sitting.
8
.
8.1
When an urgent application is brought for the Tuesday at 10:00 the
applicant must ensure that the relevant papers are filed
with the
registrar by the preceding Thursday at 12:00.
8.2
The registrar’s office must ensure that the court files of all
urgent applications set down for the Tuesday at 10:00 are
brought to
the clerk of the judge hearing the urgent applications by 16:00 on
the preceding Thursday.
8.3
The clerk of the judge hearing urgent applications will prepare a
roll in respect of the urgent applications to be heard on
the Tuesday
at 10:00. The clerk will publish the roll in the foyer of the High
Court by no later than 10:00 on the Tuesday.
8.4
Where an urgent application is brought for any other time than
Tuesday at 10:00, the registrar’s office shall ensure that
the
court file is brought to the clerk of the judge hearing urgent
applications as soon as possible. The judge’s clerk shall
prepare a roll in respect of the urgent applications to be heard on
the other days of the week. The clerk will publish the roll
in the
foyer of the High Court by no later than 09:00 on the day of the
hearing.
9.
Save in exceptional circumstances the applicant should not frame the
relief sought in the form of a rule nisi which has in whole
or in
part interim effect Where applicable, the urgent relief should be
sought pending the determination of the application.
10
.
10.1
On the Friday of each week at 16:00 the registrar shall send to the
clerk of the judge designated for the hearing of urgent
applications
for the week commencing at 16:00 on the Friday
10.1.1
the cellular phone provided for the judge’s clerk;
10.1.2
fifteen consecutively numbered court files (these files are to be
utilised in the event of an urgent application being brought
without
a court file having been opened by the registrar of the court);
10.1.3
an official stamp of the registrar of the High Court.
10.3
On Friday of each week, before 16:00, the clerk of the judge who is
to take over the urgent court must obtain from i AFRICA
the telephone
number of the stenographer on urgent court duty for the urgent court
week.
10.4
On the Friday morning at the conclusion of the week during which the
designated judge heard the urgent applications, the judge’s
clerk must return the cellular telephone, the unused numbered files
and the aforesaid stamp to the registrar.
11.
The memorandum to practitioners titled:
‘
Procedure
in the Pretoria urgent motion court’ dated 12 February 2007,
annexed hereto as annexure ‘A is applicable and
of full force
and effect and must be complied with together with the aforegoing.”
[2]
The Practice Manual is intended to give the parties who are cited as
respondents the opportunity to formulate their response
and serve
same on the applicants and the court. Urgency is not a license for
one party to trample over the right of reply which
the respondent
party is entitled to.
[3]
The applicant herein has not complied with the provisions of the
practice manual and claims that she could have brought the
application
ex parte
but has
nevertheless given notice to the respondents. The respondents are
State entities situated in places not in close proximity
to each
other. It has to be borne in mind that, their turn around times
cannot be equated with those of private individuals.
[4]
The fallacy upon which the applicant has operated is the conclusion
that his detention is “
unlawful
’
without hearing the side of the respondents and attempts to suggest
to this court that it must accept such unlawfulness
as a fact not
only without hearing the respondents but also on the basis of hearsay
evidence deposed to in the affidavit of the
sister of the applicant
Katlego Leso.
[5]
The applicant is a convicted prisoner who had been sentenced to 28
years in 2002 on a charge of armed robbery.
[6]
After having served 12 years of his term and following a decision of
the Parole Board, he was released on parole from Kgosi
Mampuru
Correctional Centre on 29 August 2013.
[7]
The applicant’s conditions of parole included a ‘tagging’
with an electronic monitoring device commonly referred
to as “EMD”
which comprises of two instruments, namely an anklet permanently
attached to the applicant’s ankle
and a Global Positioning
Systems receiver or GPS receiver.
[8]
The applicant was made to understand that the anklet must not be
tampered with, and that the GPS receiver should be charged
daily and
that the two should be kept within a reasonable proximity of each
other at all times failing which an alert would be
triggered to the
Department of Correctional Services.
[9]
On 29 July 2014 under conditions which I need not detail here, the
applicant appears to have lost the GPS receiver after which
he was
taken back into custody at Baviaanspoort Medium Security Prison.
[10]
It would appear that from that time in 2014 no steps were taken for
the release of the applicant until about February 2016
when an urgent
application was brought before this court. The application was struck
off the roll for lack of urgency.
[11]
Today, about two months later the matter has been brought back to the
urgent court as a
habeas corpus
application and with less than 24 hours’ notice to the
respondents.
[12]
It bears noting that even though the applicant is a convicted
prisoner who was paroled subsequent to a recommendation of the
Parole
Board, the Parole Board has not been cited as a party to this
application.
[13]
The applicant has been in the custody of Correctional Services since
2014 without any action being taken and in May of 2016
it is
submitted that the matter is inherently urgent and must be dealt with
as such.
[14]
In the case of
Van Gund v Minister
of Correctional Services
2011 (1) SACR 16
the following was
said at para 17:
“
Lastly,
I want to comment on the manner in which these applications are
brought to court. Prisoners invariably, and in almost all
their
cases, bring their matters in the urgent court. In some cases the
prisoners have been sentenced to life
imprisonment.
The argument is often advanced that cases involving prisoners are
urgent, in that they involve their liberty. They
argue that they have
a right to freedom of security in terms of s 12 of the Constitution.
In my view there is a fallacy in this
argument. It loses sight of the
fact the, once a prisoner has been lawfully sentenced by a court of
law, his/her right is limited
to prison grounds. This limitation is
justifiable in an open democratic society. A prisoner has no right to
be released before
he has served his sentence in full. For this
reason I see no reason why they should be treated differently from
ordinary litigants.
They, like all litigants, must comply with the
well-established principles relating to urgent applications. In
particular, if a
prisoner claims urgency, such urgency must be
clearly shown and grounds thereof be clearly stated on the papers.
The right to liberty
is not a ground per se constituting urgency.
Something more is required. It is now well settled that, in the
absence of the grounds
for urgency, these cases ought to be struck
off the roll."
[15]
The me
rits of this case are such that I must take into
consideration that:
15.1
This matter was struck off the roll by this court for lack of urgency
in February 2016 as I have already stated. No reasons
have been
advanced as to what has changed since that time for the matter to be
treated differently by the same court on the same
facts a mere two
months later.
15.2
It has taken the applicant about two years to take action regarding
his release and the matter cannot therefore become ‘urgent’
on the mere say so of the applicant. If that were so, urgency would
be a matter of semantics and not a matter for factual and/or
legal
determination.
15.3
Quiet clearly this is a matter in which the applicant can obtain
redress in due course as the applicant is a person whose liberty
might be subject to a limitation. That determination in due course
must be made after a hearing of all the parties given the fact
that
the applicant is a convicted prisoner.
[16]
In the result I have come to the conclusion that this matter ought to
be struck
off
the roll for want of urgency.
It
is so ordered.
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Date
of Hearing:
....................................
25 May 2016
Date
of Judgment:
.................................
25 May 2016 (Extempore)
For
the Applicant:
...................................
Advocate S. W. Burger
Instructed
by:
..........................................
Bowman Gilfillan Inc.
For
the Respondents:
.............................
Advocate T. Lupuwana
Instructed
by:
...........................................
State Attorney