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[2016] ZAGPPHC 515
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Kgatle v Minister of Justice And Correctional Services and Others (41072/2016) [2016] ZAGPPHC 515 (25 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 41072/2016
DATE:
25 MAY 2016
In
the matter between:
DINEO
KGATLE
......................................................................................................................
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 APPLICA TIONS
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.
2.1
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.
2.2
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.
2.3
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.
2.4
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.
3.
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.
3.1
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.
3.2
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.
3.3
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.
1.1
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
.
9.1
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
—
9.1.1
the
cellular phone provided for the judge’s clerk;
9.1.2
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);
9.1.3
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.
10.
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 “
unlawfuf
’
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 merits 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