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[2016] ZAGPPHC 843
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Office of the Public Protector v Otshinga and Others (50385/2013) [2016] ZAGPPHC 843 (15 September 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 50385/2013
Date: 15/9/2016
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
OFFICE OF THE PUBLIC
PROTECTOR APPLICANT
AND
BAIBANGA OTSHINGA,
SIMON FIRST
RESPONDENT
MINISTER OF HOME
AFFAIRS SECOND
RESPONDENT
McKAY, J
N.O. THIRD
RESPONDENT
SHERIFF OF THE HIGH
COURT, FOURTH
RESPONDENT
PRETORIA SOUTH EAST
JUDGMENT
TOLMAY,
J:
[1] The Applicant (the
Public Protector) brought an application against the First Responded
(Mr Otshinga) setting aside a writ of
arrest in respect of the Head
of the Office of the Public Protector and setting aside a Court order
granted by Madiba AJ on 10
December 2015 under case number 50385/2013
in terms of Rule 42(1)(a). The Public Protector also seeks a punitive
costs order against
Mr Otshinga.
[2] At the hearing before
me the Public Protector was represented by senior counsel and Mr
Otshinga appeared in person. The second
Respondent and the third
Respondents’ counsel were merely present to observe and
indicated that they support the application
by the Public Protector.
[3] The application was
divided in a Part A and Part B. Part A of the application was brought
on an urgent basis on 11 March 2016.
The Public Protector on that
date obtained an order inter alia suspending a writ of arrest in
respect of the Head of Office of
the Public Protector, Adv Madonsela,
pending the finalisation of Part B and suspending with immediate
effect in terms of Rule 45
A, the execution of the Court order
granted on 10 December 2015 by Madiba AJ under case number 50385/2013
pending the finalisation
of part B.
[4] In terms of the court
order of 10 December 2015 the Court found the Office of the Public
Protector in contempt of a Court order
dated 30 June 2014 and
directed that the Head of Office be committed to jail for a period of
90 days, suspended for 14 days, subject
to compliance with the Court
order of 30 June 2014.
[5] This Court has to
determine Part B of the proceedings.
[6] In August 2013 Mr
Otshinga, launched an application requiring the second Respondent
(The Minister of Home Affairs) and the third
Respondent (Mr McKay) to
consider his and his family members’ applications for permanent
residence with exemption.
[7] On 20 August 2013 the
Court granted such an order. After that and on 19 February 2014 Mr
Otshinga was advised by the Minister
of Home Affairs to apply for a
permanent residence permit in the usual manner as Home Affairs was of
the view that he does not
qualify for an exemption.
[8] Mr Otshinga then
applied for a variation of the Court order and on 30 June 2014 an
order was granted against the Minister of
Home Affairs and Mr McKay
to consider Mr Otshinga’s application for permanent residence
for him and his family with exemption.
The application had to be
considered within 30 days from the granting of the order and the
Public Protector had to furnish the
Applicant with the findings about
the conduct of the Minister of Home Affairs and Mr McKay regarding
the Applicant’s application
for permanent residence with
exemption. No time limit was given in the order as to when the Public
Protector had to comply with
the Court order.
[9] On 11 April 2015 Mr
Otshinga instituted contempt of Court proceedings against the Public
Protector, the Minister of Home Affairs
and Mr McKay for an alleged
failure to comply with the Court order of 30 June 2014. The Public
Protector filed a notice of opposition
in these proceedings on 13 May
2015.
[10] On 4 June 2015 Mr
Otshinga’s attorneys of record at the time, Christian Pieters
Attorneys and Mr Molver, the attorney
for the Public Protector,
agreed to suspend the time period for filing answering affidavits
pending a response to the Public Protector
as to whether Mr Otshinga
intends persisting with the contempt application despite the letter
of the Minister dated 19 February
2014.
[11] On 8 June 2015 the
State Attorney, representing the Minister of Home Affairs and Mr
McKay addressed a letter to Mr Otshinga,
advising him that there was
compliance with the Court order of 20 August 2013 and that the
compliance was conveyed to him in the
letter dated 19 February 2014.
He was also advised that the Minister of Home Affairs and Mr Mckay
were unaware of the order granted
on 30 June 2014 as that order was
not served on them.
[12] On 14 August 2015
the notice of appointment as attorneys of record for the Public
Protector was served by email on Mr Otshinga
and on 19 August 2015 it
was served per sheriff on Mr Otshinga’s son at his residence.
[13] On 30 November 2015
Mr Otshinga served a notice of appointment of B M Kolisi Inc
Attorneys (BMK) as his attorneys of record,
together with a notice of
set down of the contempt application for hearing on the unopposed
motion roll of 10 December 2015.
[14] The attorneys of the
Public Protector then directed a letter to BMK advising them that the
set down was irregular as the matter
was opposed and informed the
attorneys that the parties agreed during June 2015 to suspend the
further filing of affidavits. BMK
was also advised of the
irregularity that the notice of set down and the appointment of BMK
had been served on the Public Protector
despite the fact that Adams
and Adams was on record as the attorneys of the Public Protector.
[15] On 4 December 2015
BMK delivered a notice of removal of the application from the
unopposed roll of 10 December 2015 to Adams
and Adams.
[16] Mr Otshinga, without
the knowledge of BMK, personally attended to the re-enrolment of the
matter on the unopposed roll of 10
December 2015. He appeared
personally and obtained default judgment on the same date. No notice
was given to the other parties
about the re-enrolment of the matter
nor was BMK informed thereof. Mr Otshinga did not disclose to the
Court that the matter was
opposed and that his attorneys had removed
the matter from the roll and had notified the other parties thereof.
[17] On 21 December 2015
Adams and Adams advised Mr Otshinga that the order was improperly
obtained and that the order would be
challenged and a punitive costs
order sought against him. He was also advised not to seek enforcement
of the Court order pending
steps to overturn it.
[18] Only on 22 December
2015 did Mr Otshinga’s attorneys withdraw as attorneys of
record.
[19] On 4 January 2016
the Office of the Public Protector issued the closing report in
respect of Mr Otshinga’s complaint
regarding the delay by Home
Affairs and Mr McKay in processing his application. The report
is signed by an official of the
Office of the Public Protector acting
under delegated authority. A perusal of this report reveals that the
Office of the Public
Protector had been involved in the dispute
between Mr Otshinga and Home Affairs since 2012 and various
interventions occurred to
resolve the complaint. Sec 6(4)(b) of the
Act gives the Public Protector the authority to resolve a matter
without conducting
an investigation and resolve a complaint
through appropriate dispute resolution measures. According to the
report the complaint
was classified as an early resolution matter
capable of resolution by way of a conciliation process in line with
Sec 6(4)(b) of
the Act. The investigators were of the view that
the matter was resolved amicably and were therefore of the view that
it
did not require a report at the time. The communication with
Mr Otshinga ceased when it came to the Public Protector’s
knowledge that Mr Otshinga instituted legal proceedings against the
Public Protector. After this the closing report was issued.
[20] On 12 January 2016
Adams & Adams advised Mr Otshinga that the Office of the Public
Protector had filed the closing report
envisaged by the court order
of 30 June 2014. Mr Otshinga was advised that the Office of the
Public Protector had fully complied
with the court order of 30 June
2014 (and consequently the court order of 10 December 2015), in terms
of which it was required
to furnish him with “
the report on
its findings in relation to his application for permanent residence
with exemption”
, and that as a result of such compliance,
no further steps could be taken against the Office of the Public
Protector, based on
the order of 10 December 2015.
[21] The aforesaid did
not satisfy Mr Otshinga and on 10 March 2016 he advised Adams &
Adams by e-mail that three writs of arrest
have been issued, one of
which was in respect of Adv Madonsela, the Head of Office of the
Public Protector, and that these writs
of arrest would be executed on
14 March 2016.
[22] On 10 March 2016
Adams & Adams sought an undertaking from Mr Otshinga not to
proceed with the execution of the writ of
arrest for the Head of the
Office of the Public Protector.
[23] This undertaking was
not forthcoming and on 10 March 2016 at 18:19 Mr Otshinga was advised
that an urgent application would
be brought on 11 March 2016 for the
suspension of the writ of arrest of the Head of the Office of the
Public Protector. The urgent
application was served electronically on
11 March 2016 at approximately 01:15.
[24] On 11 March 2016 an
opposed hearing took place in the urgent Court before Legodi J and an
order was issued under Part A of
the Application suspending both the
writ of arrest of the Head of Office of the Public Protector and the
Court order of 10 December
2015, pending the setting aside of the
writ and the order under Part B of the application.
[25] The writ of arrest
was signed by Legal Aid South Africa, Johannesburg Justice Centre,
but on 17 March 2016 Legal Aid South
Africa withdrew as attorneys for
Mr Otshinga.
[26] This Court has to
determine Part B of the application which deals with the setting
aside of the writ of arrest and the Court
order of 10 December 2015.
[27] It must be noted
that the facts are for the most part common cause. Mr Otshinga’s
case is that his attorneys were not
mandated to firstly agree to the
suspension of filing of answering affidavits in the contempt
application and secondly to remove
the matter from the unopposed
motion roll. He states that he was unaware of the agreements and did
not give instruction to that
effect. He also took issue with the fact
that the report filed by the Office of the Public Protector was not
signed by Adv Madonsela
herself but by Ms Mogaladi a staff member and
executive manager appointed by the Public Protector. If I understand
him correctly
this supports his submission that the Public Protector
is in contempt of the Court order of 30 June 2014.
[28]
The Public Protector contends that the Court order was erroneously
sought and granted and should be set aside in terms of Rule
42(1) of
the Uniform Rules of court. Rule 42(1)(a) empowers a court to rescind
or vary a court order erroneously sought or granted
in the absence of
a party. Once a Court finds that the order was erroneously sought or
granted the order must be rescinded without
any further enquiry
[1]
.
[29] Mr Otshinga’s
view is that he was entitled to act as he did as the Public Protector
didn’t file opposing affidavits
within the prescribed time
periods and his attorneys did not act in accordance with his
instructions when they agreed on the suspension
of the filing of
affidavits and removal from the unopposed motion roll.
[30] It is common cause
that Mr Otshinga’s attorneys came to the aforementioned
agreements with the attorneys of the public
Protector and the issue
is whether he is bound by the actions of his attorneys.
[31]
In
MEC
for Economic Affairs, Environment and Tourism, Easter Cape v
Kruizenga and Another
[2]
the following was said by Cachalia JA:
“
[20] I accept
that in this matter, by agreeing to the settlement, the State
Attorney not only exceeded his actual authority, but
did so against
the express instructions of his principal. As opprobrious as
this conduct was, I cannot see how this has any
bearing on the
respondents’ estoppel defence. The proper approach is to
consider whether the conduct of the party who
is trying to resile
from the agreement has led the other party to reasonably
believe that he was binding himself. Viewed
in this way, it
matters not whether the attorney acting for the principal exceeded
his actual authority, or does so against his
client’s express
instructions. The consequence for the other party, who is
unaware of any limitation of authority,
and has no reasonable basis
to question the attorney’s authority, is the same. That
party is entitled to assume, as
the respondents did, that the
attorney who is attending the conference clothed with an ‘aura
of authority’ has the
necessary authority to do what attorneys
usually do at a Rule 37 conference – they make admissions,
concessions and often
agree on compromises and settlements. In
the respondents’ eyes the State Attorney quite clearly had
apparent authority.
“
[32]
In
Hlobo
v Multilateral Motor Vehicle Accidents Fund
[3]
the SCA found that it is open to a litigant to expressly limit the
implied authority of his attorney or counsel to agree to a compromise
of the case. Counsel for the Public Protector argued that just
as any other principal who may be liable for the acts of his
agent,
despite limitations placed on the agent’s authority, a litigant
may be bound to a compromise entered into, or a judgment
or order
consented to, by his legal representative despite instructions to the
contrary. The reason therefore lies, so it
was argued, in the
fact that an agent’s implied authority and his apparent or
ostensible authority normally coincide, and
the act of representation
does not merely operate between the client and his representative,
but also between the client and his
opponent who deals with the
representative. Unless the limitation of authority is
communicated to the litigant’s opponent
or his legal
representative, or it is implicit from what the litigant does or the
surrounding circumstances, he may be estopped
from relying on the
absence of or excess of authority. A litigant can therefore not
by secretly or by way of private instructions
to his legal
representative curtail the latter’s authority as far as third
persons are concerned.
[4]
[33] The attorneys for Mr
Otshinga was “clothed with an aura of authority” as
described above and were entitled to act
on the ostensibly authority
of the legal representatives of Mr Otshinga.
[34] There is nothing to
indicate that the Public Protector’s attorneys had any reason
to doubt the authority of Mr Otshinga’s
attorney to enter into
these agreements. If there was any limitation of authority the Public
Protector’s attorneys were clearly
unaware of it. No limitation
of authority was communicated to the Public Protector’s
attorney, consequently Mr Otshinga is
bound by the actions of his
attorneys. Mr Otshinga’s attorneys, in respectively agreeing to
suspend the filing of further
affidavits, and to remove the 10
December 2015 application from the unopposed roll, did not act in a
manner requiring a special
mandate.
[35] As far as the
re-enrolment on the unopposed roll is concerned Mr Otshinga was
obliged to inform the attorneys of the Public
Protector that he was
going to re-enrol the matter. He was also duty bound to reveal to the
Court hearing the application that
the matter was opposed. He misled
the Court and it is certain that the order would not have been
granted if the presiding Judge
was aware of the opposition and the
circumstances surrounding the re-enrolment. I am of the view that
there is no doubt that the
order of 10 December 2015 was erroneously
sought and granted in the absence of the Public Protector as
envisaged by rule 42(1).
[36] Mr Otshinga also
persists with the allegation that the Public Protector is in contempt
of the order of 30 June 2014. As already
stated the Public Protector
had been mediating between Home Affairs and Mr Otshinga since 2012
and was of the view that the matter
was resolved and on 4 January
2016 the closing report pertaining to his complaint was issued. The
delivery of the aforesaid closing
report constituted compliance with
the order of 30 June 2014. On 12 January 2016 the attorneys for the
Public Protector advised
Mr Otshinga that the report had been
provided to him.
[37] It seems that Mr
Otshinga takes issue with the fact that the closing report was not
signed by Adv Madonsela herself. Mr Otshinga
contends that he was
entitled to a report from the Public Protector personally. The
respondent, cited by the applicant, is
the Office of the Public
Protector. The closing report was signed off by Ms Mogaladi,
being the Executive Manager:
Administrative Justice and Service
Delivery Branch, who along with other executive managers of the
Office of the Public Protector,
has a standing delegation in terms of
sec 3(3) of the Act to issue closing reports on behalf of the Public
Protector in such matters.
In the light of the fact that she acted in
terms of a proper delegated authority she was clearly entitled to
sign off on the report.
Consequently Mr Otshinga’s complaint in
this regards must also be rejected.
[38] Despite the fact
that Mr Otshinga was advised on 12 January 2016 that there was
compliance with the Court order of 30 June
2014 and therefore also
with the order of 10 December 2015, he persisted on 10 March 2016 to
obtain a writ of arrest in respect
of Adv Madonsela. In the light of
the fact that the Public Protector was not in contempt of Court Mr
Otshinga was not entitled
to obtain a writ of arrest.
[39] The Public Protector
asks for a punitive costs order based on the way that Mr Otshinga
obtained the order as well as his persistence
to insist on executing
on the warrants despite the circumstances of the case. Mr Otshinga,
not only enrolled the matter on the
unopposed roll well knowing that
it was opposed, but also misled the Court. After that, despite the
fact that the report was filed
he persisted with obtaining a writ of
arrest and the contempt application. In my view his actions in the
light of all the circumstances
were not in good faith and were
vexatious. Consequently a punitive cost order is appropriate.
[40] I make the following
order:
41.1 The court order
granted by Madiba AJ on 10 December 2015 under case number 50385/2013
is set aside; and
41.2 All writs of
arrest issued pursuant to the above order are set aside;
41.3 The first
respondent is ordered to pay the costs of the application of the
Applicant on a scale as between attorney and own
client, such costs
to include the costs in terms of Part A. The costs will include costs
of senior counsel.
____________________
R G TOLMAY
JUDGE OF THE HIGH
COURT
DATE OF
HEARING:
4 AUGUST 2016
DATE OF
JUDGMENT:
15 SEPTEMBER 2016
ATTORNEY FOR
APPLICANT:
ADAMS & ADAMS
COUNSEL FOR
APPLICANT:
ADV W LUDERITZ (SC)
ATTORNEY FOR 1
ST
RESPONDENT:
IN PERSON
ATTORNEY FOR 2
ND &
3RD
RESPONDENT: STATE
ATTORNEY
NO APPEARANCE
[1]
Erasmus, Superior Court Practice, sec ed, vol 2; Van
Loggerenberg D567
[2]
2010(4) SA 122 (SCA)
[3]
2001(2) SA 59 (SCA) at 65 D
[4]
LAWSA, par 194 at 190 – 1; Glofinco v Absa Bank Limited (t/a
United Bank) 2002(6) SA 470 (SCA) at 482 (B)