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[2015] ZAGPPHC 9
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Matlapeng v Minister of Justice and Constitutional Development and Another (33853/2007) [2015] ZAGPPHC 9 (23 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
33853/2007
DATE: 23 JANUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
RAMOSHIBUDI
STRANGER
MATLAPENG
...................................................................
Applicant
And
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
............................................
First
Respondent
DEVELOPMENT
SS
MTHIMKHULU
................................................................................................
Second
Respondent
JUDGMENT
STRAUSS, AJ:
1. The applicant
seeks review and setting aside of the 1
st
respondents
decision, in terms whereof the applicant was not, pursuant to the
recommendation of the Magistrate’s Commission,
appointed to the
vacant post of Magistrate for the Magisterial District of Pretoria,
but the second respondent was appointed in
the vacant post.
2. The applicant
seeks appointment as Magistrate at entry Level for the Magisterial
District of Pretoria, and seeks this court to
substitute its decision
for that of the first respondent, with costs.
3. On 7 November
2013, the applicant amended his notice and sought condonation that
the period of 180 days referred to in section
7(1) of the Promotion
of Administrative Justice Act, 3 of 2000, (PAJA) is extended insofar
as it may be necessary.
4. The first
respondent opposes the review application, and also the amended
relief for condonation, and raises the defence that
there was
unreasonable delay both in bringing of the application, and a
substantial delay in prosecution of the application, and
that the
applicant therefore should be non-suited.
BACKGROUND
FACTS
5.
The background facts which are common cause, between the parties, are
that the applicant was a Regional Magistrate in the Gauteng
Regional
Division before he vacated his office on account of ill health due to
depression in April 2001
.
6. After having
received treatment for his depression the applicant served articles
of clerkship with Verwey’s Attorneys from
middle 2002 until
2004, where after he wrote and passed his attorneys’ admission
examinations. On 1 October 2004, the applicant
was appointed in a
temporary capacity as an Acting Regional Magistrate until 31 March
2005, i.e. a period of six months.
7. The provision for
acting appointments of the applicant were not repeated due to the
fact that the first respondent could not
reconcile the conflict with
the appointment of the applicant in an acting position, while his
employment had been ended willingly
due to ill health.
8. In 2005, 75
vacant posts of Magistrate Entry Level were advertised by the
Magistrate’s Commission. The applicant duly applied
for
appointment in such a position. Attached to his application were
annexed medical reports, from Dr JW Vermaak, Dr JJ Grove,
both
psychiatrists, and also from clinical psychologist, Russel Matthews.
9. All these reports
were dated in January 2004, and were seemingly compiled to support
the good health of the applicant. All of
the reports were one page
reports simply stating that the applicant had been seen by the
mentioned doctors during 2000, was treated
for major depression, he
had received psychotherapy for two years from 2000 to 2002, and that
the applicant was fit to resume his
position as Magistrate, and was
in remission from his illness.
10. The short
listing of candidates and interviews were conducted by the Provincial
Judicial Committee for the Lower Courts, which
recommended candidates
for appointment to the vacant post, to the Appointments Committee of
the Magistrate’s Commission,
which in turn presented its
recommendations for the filling of the vacant post to the Executive
Committee of the Magistrate’s
Commission.
11.After considering
the motivations of the Provincial Judicial Committee and Appointments
Committee, the Magistrate’s Commission
recommended candidates
in order of preference to the first respondent for appointment to the
vacant post. In terms of the recommendations
of the Magistrate’s
Commission the applicant was recommended as the first candidate in
order of preference for appointment
as Magistrate Entry Level for the
Magisterial District of Pretoria. The second respondent was
recommended as the second candidate
in order of preference for the
filling of that specific post.
12. Notwithstanding
the recommendation of the Magistrate’s Commission the Deputy
Director General of the first respondent
submitted a memorandum to
the minister wherein he endorsed all of the recommendations of the
Magistrate’s Commission, save
in respect of the vacant post of
the applicant, and stated in the memorandum as follows:
“
THE
RECOMMENDATION FOR THE VACANT POSITION IN PRETORIA.
With
regard to this position, the Magistrate’s Commission
recommended as its first candidate Mr RS Matlapeng who the Minister
approved that he be medically boarded in 2001. When Mr Matlapeng
was
retired he was a
Regional Magistrate in Pretoria, and now he is recommended for an
Entry Level position in the same office...
In the absence of
medical evidence that Mr Matlapeng had fully recovered from his
illness it may be ideal for the Minister to consider
the second
recommended candidate for the position, Ms SS Mhtimkhulu.
13. The first
respondent then on 31 July 2006, appointed Ms Mthimkhulu the second
candidate instead of the applicant. The applicant
on 10 October 2006
requested written reason in terms of Section 5(1) of PAJA, from the
first respondent for the decision not to
appoint him in the vacant
post. It is common cause that no response was received for this
request for reasons.
14. On 27 February
2007, the Minister directed a letter to the applicant personally,
referring to a previous letter from the applicant.
The minister
stated in essence that the first respondent was not going to revoke
the second respondent’s appointment as magistrate,
and that the
Minister could not simply appoint the applicant in a current vacancy
without the position being properly advertised,
as to provide all
candidates with an equal opportunity to apply and to be considered
for such an appointment. It was reiterated
in the letter that there
was no obligation on the Minister to appoint the applicant in the
next round of appointments, and that
the applicant had to apply for
any position in the next round of applications.
15. A circular,
dated 2005, was once again brought under the applicant’s
attention. In the circular referred to, the Regional
Court Presidents
and Chief Magistrates where once gain reminded that (a) they must
properly consider the necessity for acting appointments
and if such
acting appointment were indeed necessary, they should take into
account the development potential of the candidates
in the sense of
investment for the future as well as the demographics of the country
and (b) only utilise retired Magistrates in
the most exceptional
circumstances.
16.
The applicant states that he became aware of the decision of the
first respondent in October 2006, it seems hereafter some
correspondence took place between the applicant and director of the
first respondent. The review application was launched on 19
September
2007. Attached to the application were all the memoranda of the
Minister, as well as the internal memoranda of the Magistrate’s
Commission, dated July 2006. In these various memoranda to the
Minister and the Magistrate's Commission, the reason for not
appointing
the applicant as set out
supra,
was
set out in the memorandum of the Minister, dated 31 July 2006.
17. The first
respondent opposed the review application and filed its replying
affidavit on 28 February 2008, approximately five
months after the
application for the review was brought and it had already in November
2007, filed the record of the proceedings.
Hereafter the applicant
only on 8 April 2013, filed his replying affidavit, thus,
approximately five years after the receipt of
the opposing affidavit
of the first respondent.
CONDONATION
FOR LATE APPLICATION AND DELAY IN PROSECUTION
OF
REVIEW
18. The review
application was brought approximately 6 months after the 180 days
prescribed in PAJA, had ran out, having regard
to the applicant
version that he became aware of the decision in October 2006, and he
launched the review in September 2007. The
applicants reasons for the
delay for bringing the application outside the prescribed period,
firstly was the first respondent neglected
to respond to the written
request for reasons and he was awaiting same, and secondly that he
was incorrectly advised by his first
set of attorneys to approach the
CCMA. Only after he had approached his current attorneys of record
was he advised that a review
application should be brought and it was
to thus brought within a relatively short time thereafter, although
the applicant does
not state when in 2007 he approached his current
attorneys.
19. On the above
mention explanation of the applicant, although it is not set out with
particularity, the court will exercise it’s
discretion in
favour of the applicant and accept his explanation as plausible. I
therefore, find, that there was not undue delay
in bringing of the
review application and that insofar as it is necessary the court does
extend the period of 180 days referred
to in section 7 of PAJA, and
condonation is granted for the late application.
20. As to the delay
in prosecution and the applicant only filing his replying affidavit
after the expiry of 5 years, no reasons
were set out in the replying
affidavit to explain the delay of five years, and the applicant also
did not request condonation from
the court in regards to the late
prosecution and/or late filing of his replying affidavit.
21.The first
respondent on 3 October 2013, filed a supplementary affidavit
indicating to the court and raising the point of unreasonable
delay
and prejudice in, first of all, the late bringing of the review
application and the late, or subsequent neglect, to prosecute
the
matter from 2008 up until 2013. Only hereafter did the applicant file
a supplementary replying affidavit to the defence raised,
and also
filed a notice seeking condonation in terms of Section 7(1) of PAJA
for extension of the 180 days.
22.The
applicant in the supplementary reply deals with the facts, and
disputes that he should be non suited and raises
in
limine
the
authority of the deponent of the first respondent, however the
applicant made no application for condonation for the delay in
prosecution, I however, accept by his denial of the facts as set out
by the first respondent, his intention was to seek the courts
indulgence and acceptance of the reasons provided for the long delay,
and dismiss the point of unreasonable delay raised by the
first
respondent.
23. The first reason
given by the applicant for the delay in the prosecution of the matter
was that during 2007 he was employed
by the Legal Aid and although he
received a salary of R28,000.00 per month, he did not have the
necessary funds to continue with
the application and to instruct
counsel and/or his attorney. It was conceded during argument that
besides this salary the applicant
had throughout received a salary
from the Department, since his termination of employment due to ill
health in 2001. Counsel could
not confirm the specific amount in
salary the applicant received throughout, and it was also not set out
in the papers of the applicant.
24. The applicant
further set out that he had applied for Magistrate’s posts in
November 2009 and December 2010 up until 2012.
On all three occasions
he thought that this application would become moot due to his
application for Magisterial posts with the
Department.
25. During this time
in a bizarre turn of events, a certain Ms Singh obtained an interim
order in the Equality Court of the North
Gauteng High Court that the
first respondent should not make any appointments to vacant posts of
Magistrates. This order was granted
on 13 January 2012. The applicant
therefore sets out for a period of about 7 months in 2012, the first
respondent was barred from
appointing Magistrates due to this pending
order obtained in the Equality Court. He thus explains why the first
respondent could
not appoint him in a magisterial position up until
July 2012.
26. He further sets
out that from July 2012 to at least October 2012, he attempted to
have his replying affidavit finalised by counsel.
The first counsel
did not attend to the brief from July up until September 2012, and
another counsel was approached who also did
not draft the replying
affidavit for another 5 weeks. The applicant and the attorney of
record then drafted the replying affidavit
which was filed and served
in April 2013. The applicant does not provide and explanation for the
expiry of the period from end
of October 2012 up until April 2013.
27. The applicant
concedes that there has been a long delay, but denies that he should
be non-suited. The applicant contends that
the first respondent could
have set the application down, when he became aware of the undue
delay. The first respondent argues
that the explanation given by the
applicant for the delay is insufficient and unreasonable.
28.
I do not agree with the applicant in his contention, the applicant is
dominus litis
and
the one who instituted the proceeding against the first respondent.
This fact that the respondent could set the matter down
is no answer,
and does not provide factors on which this court can relay to
exercise its discretion in favour of the applicant
.The natural
conclusion if any applicant neglects to proceed with a matter for at
least a year is that such an applicant has lost
interest in his
application, and does not want to continue with the matter, unless
the applicant gives reasons at a later stage
that proves otherwise.
29.The further
consequences of unreasonable delay, is that through the efflux of
time the relief claimed could become irrelevant,
or not applicable to
any of the respondents, or prejudicial to another party. Further
through the efflux of time, circumstances
change and factors in
favour of either party could become less applicable and or less
important, and could carry less weight.
30.The
test for considering condonation in an application is mainly the
interest of justice. This was set out in
Van Wyk
v Unitas Hospital
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477
.
[20]
“
This court
has held that the standard for considering an application for
condonation is the interest of justice. Whether it is in
the interest
of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant to
this inquiry
include, but are not limited to the nature of the relief sought, the
extent and cause of delay, the effect of the
delay on the
administration of justice and other litigants, the reasonableness of
the explanation for the delay, and the importance
of the issue to be
raised in the intended appeal on the prospects of success.”
[22] “In
general terms the interest of justice plays an important role in
condonation applications. An applicant for condonation
is required to
set out fully the explanation for the delay, the explanation must
cover the entire period of the delay and must
be reasonable."
31.The first
respondent argues in its heads, that the applicant’s purported
explanation does not cover even a quarter of the
period of delay and
the attempt by the applicant to render the application moot by
applying for various Magistrate posts, somehow
evidences the abuse of
process in that:
31.1
“
the
applicant never applied for extension of time from the first
respondent or from court, but wanted to keep the proceedings hanging
while he
was
pursuing other
avenues;
31.2
The applicant
never attempted to withdraw or stay the proceedings or inform the
first respondent that he is attempting to render
the proceedings moot
and that should he obtain a post somewhere else he would withdraw or
abandon the application;
31.3
the applicant
resuscitated the present proceedings with a view to spite the
Department after it had turned down his application
for the post as
referred to in his supplementary affidavit;
31.4
the attempts to
secure the post, while deliberately neglecting the present
proceedings clearly point to the intention on the part
of the
applicant to abandon these proceedings, which the first respondent
argues, is one of the reasons the applicant should be
non-suited. ”
32. The respondents
argue that the prejudice in the case is self-evident having regard to
the fact that the applicant seeks not
only the review of the decision
not to appoint him, but also the review of the decision to appoint
the second respondent and to
that particular post in the Magisterial
District of Pretoria.
33.The respondent
argue further, that the applicant seeks the substitution of the
decision of the first respondent to a court order
appointing him in
that particular post in Pretoria, in which the second respondent had
been appointed in September 2006. The allegation
that there are other
posts of Magistrates in Pretoria that may be vacant and that the
applicant had applied for posts in other
districts within Gauteng,
cannot avail the applicant in that the relief that he seeks relates
to the specific post to which the
second respondent had been
appointed.
34. I agree with the
first respondent’s argument that through the efflux of time the
applicant has rendered the specific relief
he claims, moot. This is
more evident after the court was informed that the second respondent
is currently no longer in the post
she was appointed in originally in
2006 , and that the relief the applicant therefore now seeks, will
have to granted against another
Magistrate appointed in the specific
post.
35.
The applicant relied on the case of
Molala
v Minister of Law and Order & Another
1993 (1) SA 673
(W)
where
Flemming J stated at page 677 (C
)
“
The
approach which I am bound to apply is therefore not simply whether
more than a reasonable time has elapsed. It should be assessed
whether a facility which is undoubtedly available to a party
was
used, not as an
aid to the airing of disputes and in that sense moving towards the
administration of justice, but knowingly in such
a fashion that the
manner of exercise of that right would cause injustice.
The issue is
whether there is behaviour which oversteps the threshold of
legitimacy. Nor, in the premises, can plaintiff be barred
simply
because defendants were prejudiced. The increasingly difficult
position of the defendants is a factor which may or may not
assist in
justifying an inference that plaintiffs intentions were directed to
causing or to increasing such difficulties. But the
enquiry must
remain directed towards what plaintiff intended, albeit in part by
way of dolus eventualis.
The increase in
defendants'problems is, secondly, a factor insofar as the Court, on
an overall view of the case, is to exercise
a discretion about how to
deal with a proven abuse of process.”
36.
The above mentioned judgment is not relevant to review applications
as the plaintiff in the matter
supra
had
launched an action, not a review application, the action was in any
event dismissed due to the unreasonable delay.
37.
The factors in exercising a courts discretion in favour of an
applicant who delayed a review of a decision by a public body
are set
out in
Setso
Skosana Busdiens (Edms) Beperk v Voorsitter: Nasionale
Vervoerkommissie & ‘n Ander
1986 (2) SA 57
(A):
“
Die
ondersoek wat 'n Hof moet doen om vas te stel of 'n gemeenregtelike
aansoek om hersiening in die afwesigheid van 'n besondere
tydsbepaiing, binne 'n redelike tyd aanhangig gemaak is, is tweeledig
van aard. Die Hof moet naamlik besiis (a) of die verrigtinge
wel na
verloop van 'n redelike tydperk eers ingestel is en (b) indien wel,
of die onredelike vertraging oor die hoof gesien behoort
te word. Wat
(b) aanbetref, oefen die Hof 'n diskresie uit, maar die ondersoek wat
(a) betref, het niks te make met die Hof se
diskresie nie; dit behels
'n blote ondersoek na die feite ten einde te bepaal of die tydperk
wat verloop het, in die lig van al
die omstandighede, redelik of
onredelik was. Natuurlik impliseer die bevinding wat in daardie
verband gemaak word dat die Hof'n
waardeoordeel uitspreek in die sin
van die Hof se beskouing van die redelikheid van die verstreke
tydperk in die lig van die omstandighede.
Gelykstelling van so 'n
waardeoordeel met 'n diskresie is regtens en logies egternie
regverdigbaar nie.”
“
Dit
volg hieruit dat wanneer daar aansoek om kondonasie gedoen word, die
duur van die versuim en die omstandighede wat die versuim
veroorsaak
het, dit wil sê die verduideliking vir die versuim belangrike
oorwegings by die Hof sal wees. In die saak van
United Plant Hire
(Pty) Ltd v Hills and Others
1976
(1) SA 717
(A)
op
720E
-
H vat HOLMES AR
die posisie in hierdie verband as volg saam:
"It is well
settled that, in considering applications for condonation, the Court
has a discretion, to be exercised judicially
upon a consideration of
all the facts; and that in essence it is a question of fairness to
both sides. In this enquiry, relevant
considerations may include the
degree of non-compliance with the Rules, the explanation therefore,
the prospects of success on
appeal, the importance of the case, the
respondent's interest in finality of his judgment, the convenience of
the Court, and the
avoidance of unnecessary delay in the
administration of justice. The list is not exhaustive. ”
“
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong”
“
In
die geval waar 'n gegriefde persoon na die Hof kom om verrigtinge op
hersiening te laat neem, oefen hy 'n reg uit en is hy in
'n heel
ander posisie as die persoon wat 'n prosesreël nie nagekom het
nie en daardeur 'n reg verloor het en die Hofom 'n
vergunning moet
nader vir die reg om weer met
sy
proses voort te
kan gaan. In die laasgenoemde geval is die duur van die versuim en
die verduideliking daarvoor 'n belangrike deel
van sy aansoek om
vergunning. In die eersgenoemde geval daarenteen, moet die Hof slegs
'n diskresie uitoefen of die gegriefde weens
verloop van tyd verbied
behoort te word om die hersieningsverrigtinge te bring. Dit sien ons
dan ook uit die socrt van oorwegings
wat in die meeste van die vorige
beslissings gegeid het waar daar geen tydsbeperkings was nie.
In
die saak van Sampson v SA Railways and Harbours
1933 CPD 152
het 'n
spoorwegamptenaar die verrigtinge voor 'n raad van ondersoek, as
gevoig waarvan hy uit sy pos ontslaan
was,
op hersiening
gebring. Die raad het sy beslissing in September 1928 gegee en die
aansoek om hersiening is vierjaar later in Oktober
1932 gebring.
Beswaar is gemaak omdat daar te lank gewag is om die
hersieningsverrigtinge in te stel. Die beswaar is gehandhaaf
en
GARDINER RP het horn op 154 as volg uitgelaat:
"This Court
has certain powers of review in proceedings of inferior tribunals,
and they may be reviewed on the grounds of irregularity,
but the
extent of the irregularity required I need not deal with. It is
important, when the Court is to be asked to exercise these
powers,
that no unreasonable time should be allowed to elapse, because,
especially in the case of tribunals which are not courts
of law, or
conducted by legal men, it is important that proceedings should be
taken promptly. There is not always the same careful
or full record
in proceedings which are not courts of law, and where the ground of
review is irregularity in the proceedings, then,
even in the case of
a court of law, there may not be anything on the record to show an
irregularity. In fact an irregularity may
sometimes consist in
refusing to put something on the record, refusing to record an
exception taken, or something like that. It
is therefore important
that proceedings for review should be taken while the matter is fresh
in the minds of the persons concerned,
and while those persons are
available to give testimony.... It seems to me that the Court cannot
allow such an extremely lengthy
period as four years to elapse, and
must hold that an unreasonable time has been allowed to pass without
proceedings being taken."
Op appêl,
in die saak Sampson v SA Railways and Harbours
1933 CPD 335
, het die
Hof verwys na die aard van die onreëlmatighede wat na bewering
voor die raad van ondersoek plaasgevind het en die
moeilikhede wat
ontstaan om na 'n lang verloop van tyd weer daarmee te handel. VAN
ZYL R het daarna op 338 as volg verklaar:
"Under
these circumstances the Court will, by reason of the long lapse of
time, be at a great disadvantage in going into the
questions raised
by the appellant, and it is right that it should refuse to do so,
unless very exceptional circumstances are placed
before it. It seems
to me that it must be a matter of importance in the proper running of
the railway service that there should
be, except in exceptional
circumstances, finality in matters of this nature after a lapse of a
certain time
."
38. Having regard to
the above, I find the applicant’s late application cannot be
tolerated. The reasons for the delay are
without substance, it is
clear that the applicant must have had sufficient funds, earning two
incomes, to at least attempt to prosecute
the review, he has never
been indigent. The fact that the first respondent was unable to
appoint him for a period of seven months,
has no bearing on the fact
that the applicant chose to continue with the review application, but
choosing not to prosecute it in
the mean time. The applicant with
respect had to choose which avenue he was pursuing and could not do
both. Thus the delay from
2008 to 2012 was directly due to the
applicant choice. Further no reasons were given for the further delay
of 7 months from October
2012 to April 2013.
39. The applicant
has used available processes in a dilatory fashion and has negated
time limits, this is against the spirit of
certainty, predictability
and fairness in our system. The first and second respondents also
have an interest in the particular
application and even if I find
that there was no specific prejudice caused to the first respondent,
there could be prejudice to
the second respondent in the
circumstances or any other Magistrate appointed in that position.
40.
I therefore come to the conclusion that the matter
in
causa
is
not similar in facts to the matter of
Kgoele
v the Minister of Justice and Constitutional Development, Case No
26026/2006
by
Pretorius, J of this division. In the matter of
Kgoele,
condonation
was granted for the late review application but the applicant in the
above matter brought the review application and
prosecuted its
application within a very short time span, and the court in the
matter of
Kgoele
could
with no prejudice, substitute its decision for that of the
respondents.
41. I am also not
sure that the decision of the Minister would be a foregone
conclusion, and I am mindful that correcting the decision
should be
done in exceptional cases. I might add that I do not intend to
correct the decision in this application, the applicant
could have
corrected the position by providing better medical evidence, more
recent and relevant when he re applied for positions
from 2009 to
2012, with the first respondent.
42. The reason for
the non appointment of the applicant is found in the memoranda of the
minister referred to , there was also written
communications between
the parties as referred to supra, in regards to the applicant’s
non appointment, and the applicant
was aware of the first
respondent’s stance and attitude towards the applicant’s
appointment as a magistrate.
43. I find, having
regard to my discretion and considering all the reasons provided by
the applicant for the delay in prosecuting
the application, the
applicant should be non-suited. His explanation for the delay was
unsatisfactory, it is clear that the applicant
was pursuing other
avenues. It is important that review applications are brought to
finality and the convenience of the Court,
and the avoidance of
unnecessary delay in the administration of justice has been
overlooked by the applicant.
44.The applicant can
still make application in his own time, for appointment as Magistrate
and his application can still be considered
having regard to the
current facts, and I suggest considerably more substantiated by
medical evidence which sets out his current
health.
I therefore make
the following order:
1. The review
application is dismissed with costs.
S STRAUSS
ACTING JUDGE OF
THE HIGH COURT, PRETORIA
HEARD ON: 18
AUGUST 2014
JUDGMENT
DELIVERED ON: 23 JANUARY 2015
ATTORNEYS ON
BEHALF OF APPLICANT:
SHAPIRO & SHAPIRO
ADVOCATE ON
BEHALF OF APPLICANT:
ADV G BESTER
ATTORNEYS ON
BEHALF OF FIRST AND SECOND RESPONDENT: THE STATE ATTORNEY
ADVOCATE ON
BEHALF OF FIRST AND SECOND RESPONDENTS: ADV DT SKOSANA