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[2015] ZAGPPHC 47
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Helen Suzman Foundation v Minister of Police and Others (1054/2015) [2015] ZAGPPHC 47 (6 February 2015)
/SG
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE: 6 February
2015
CASE NO: 1054/2015
In the matter
between:
THE HELEN SUZMAN
FOUNDATION
..............................................................................
APPLICANT
And
MINISTER OF
POLICE
...............................................................................................
1
ST
RESPONDENT
LIEUTENANT
GENERAL ANWA
DRAMAT
...........................................................
2
nd
RESPONDENT
MAJOR-GENERAL
BERNING
NTLEMEZA
............................................................
3
rd
RESPONDENT
NATIONAL
COMMISSIONER OF THE SOUTH
AFRICAN POLICE
SERVICE
.....................................................................................
4
TH
RESPONDENT
JUDGMENT
PRINSLOO, J
Introduction
[1] On 19 January
2015,1 heard, as a matter of urgency, an application by the applicant
for certain declaratory and ancillary relief
flowing from the
suspension by the first respondent (“the Minister”) of
the second respondent (“Dramat”)
from his position as the
National Head of the Directorate for Priority Crime Investigation
(“the DPCI”), and his subsequent
appointment of the third
respondent as the Acting National Head of the DPCI following the
Minister’s suspension of Dramat
(“the main application”).
[2] On Friday 23
January 2015, I delivered a judgment (“the main judgment”)
granting the relief sought in the main application.
[3] The relief
granted in the main judgment included declarators to the effect that
the Minister’s decisions to suspend Dramat
and thereafter to
appoint the third respondent were unlawful and invalid. Both
decisions were set aside.
[4]
The order made in the main judgment is based, by and large, on the
judgment of the Constitutional Court in
Helen
Suzman Foundation
v
President of the
Republic of South Africa and Others', Glenister
v
President of the
Republic of South Africa and Others
(CCT07/14,
CCT09/14)
[2014] ZACC 32
of 27 November 2014 (“the 2014
judgment”).
[5] On Monday 26
January 2015 the Minister and the third respondent (as first and
second applicants) filed an application for leave
to appeal against
the main judgment. As the only two respondents, they cited the
applicant and Dramat as first and second respondents
respectively
(“the leave to appeal application”) thereby suspending
the operation and execution of the decision in
the main judgment
pending the outcome of the leave to appeal application or the
subsequent appeal, if any.
[6] On the same day,
Monday 26 January 2015, the applicant filed an application in terms
of the provisions of rule 49(11) and 49(12)
of the Uniform Rules of
Court and also in terms of section 18 of the Superior Courts Act 10
of 2013 (“the section 18 application”)
for relief to the
effect that the order in the main judgment shall operate and be
executed in full until the final determination
of all present and
future appeals and, in addition, until final determination of a
direct access application to the Constitutional
Court launched by the
applicant and dated 25 January 2015, seeking substantially the same
relief as that sought and granted in
the main judgment (“the
direct access application”). I add that the Acting Senior
Registrar of the Constitutional Court
already issued directions on 27
January 2015 requiring the respondents, if they wish to oppose the
application, to file notices
of opposition and opposing affidavits on
or before 15:00 on Thursday 29 January 2015. On 3 February I was
informed by notice from
the applicant’s attorney that the
direct access application was dismissed by the Constitutional Court
on 2 February.
[7] The applicant
enrolled the section 18 application for hearing before me on Friday
30 January 2015. I gave directions that I
would hear both the leave
to appeal application and the section 18 application at 09:00 on that
day. In the event, counsel for
the Minister and the third respondent
were, through no fault of their own, not ready to present argument on
the leave to appeal
application on that day, having been brought
under the impression that only the section 18 application would then
be heard. This
is what happened, and the leave to appeal application
was postponed to Monday 2 February 2015 when argument in respect
thereof
was heard.
[8] It is convenient
to give one judgment, as I hereby do, in respect of both the leave to
appeal application and the section 18
application.
To avoid confusion,
I use the same citation as was used by the applicant in the main
application and in the section 18 application,
so that, for example,
the Acting Head, Major-General Ntlemeza, will remain “the third
respondent” which he is in the
main application and in the
section 18 application, even though he is now the second applicant in
the leave to appeal application.
It is also not clear
why the fourth respondent was omitted from the citation by the
Minister and the third respondent when they
launched the leave to
appeal application. The fourth respondent clearly has a material
interest in the outcome of these proceedings.
A.
THE
LEAVE TO APPEAL APPLICATION
[9]
Section 17 of the Superior Courts Act 10 of 2013 (“the
Superior
Courts Act&rdquo
;), under the heading “leave to appeal”
reads as follows:
“
17(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that -
(a)(i) The appeal
would have a reasonable prospect of success; or
(ii) There is some
other compelling reason why the appeal should be heard, including
conflicting judgments on a matter under consideration;
(b) The decision
sought on appeal does not fall within the ambit of
section 16(2)(a)
;
and
(c) ...”
[10]
Section
16(2)(a)(i)
stipulates:
“
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.”
[11] I turn to the
grounds of appeal offered by the Minister and the third respondent as
co-applicants for leave to appeal:
(i)
The
applicant did not have the necessary standing or
locus
standi
to
bring
the
main application
[12]
I dealt with this issue, at some length, in the main judgment. I
pointed out that in neither
Glenister
2 [Glenister
v
President of the
Republic of South Africa and Others
2011
(3) SA 347
(CC)] nor the 2014 judgment, was the standing of the
applicant in any way questioned or attacked. The 2014 judgment, in
particular,
deals with the Minister’s powers to suspend the
National Head of the DPCI, as does the main judgment in this case. It
is
not necessary to revisit the subject as discussed in the main
judgment. I am not persuaded that an appeal on the question of
standing
would have a reasonable prospect of success as intended by
the provisions of
section 17(
1
)(a)(i) of the
Superior Courts Act.
Where
this Act, in section 17(1) clearly stipulates that leave
may
only be given
where
I am of the opinion that the appeal would have a reasonable prospect
of success, I consider myself precluded from granting
leave to appeal
on the question of standing. (Emphasis added)
(ii)
The
Minister’s power to suspend
[13] This issue was
dealt with at length in the main judgment with particular reference
to the striking down by the Constitutional
Court, on 27 November
2014, of the “(2)” in section 17DA(1) of the South
African Police Service Act, 1995 (“the
SAPS Act”) and
also section 17DA(2) of the SAPS Act and the deletion of those
provisions from the Act with effect from 27
November 2014. This
meant, as clearly stated in the 2014 judgment, that the Minister is
not empowered to suspend the National Head
of the DPCI other than
accordance with sections 17DA(3) and (4) read with section 17DA(5) of
the SAPS Act and I held accordingly
in the main judgment.
[14] The same
arguments on this subject, which I rejected in the main judgment, for
the reasons therein mentioned, and without repeating
them, are raised
in this application for leave to appeal.
For the reasons
stated in the main judgment, I cannot find that an appeal on this
ground would have a reasonable prospect of success.
In the result, I
consider myself, in view of the provisions of
section 17(1)
of the
Superior Courts Act, to
be precluded from granting leave to appeal on
this ground. Indeed, to do so, would be to disregard the 2014
judgment, a judgment
by which I am bound.
[15]
I add that other “grounds” mentioned by the Minister in
his suspension notice to Dramat in December 2014, purportedly
entrenching the Minister’s right to suspend the National Head
despite the striking down by the Constitutional Court of the
provisions mentioned, appear to have been abandoned for purposes of
the leave to appeal application as they are not raised at all.
This
includes reliance on certain provisions of the Public Service Act
(“the PSA”) and the so-called “SMS Handbook”.
The same applies to another argument raised on behalf of the
Minister, namely that based on an alleged compromise or
transactio.
(iii)
The
setting aside of the decision to suspend Dramat
[16] The argument,
if I understand it correctly, appears to be based on the premise that
the setting aside and declaration of invalidity
of a decision of an
organ of state or a member of the Executive does not operate
retrospectively unless the court stipulates accordingly.
The failure
to pronounce, in the main judgment, on the status of the decisions
taken by the third respondent since his appointment
is a misdirection
and a good ground of appeal. I ought to have pronounced on the
validity or otherwise of those decisions made
by the third respondent
during the period of suspension of Dramat before declaring the
Minister’s decision to suspend invalid
and unlawful. In the
main judgment, provision should have been made for “an
appropriate remedy”.
[17] I dealt with
this subject fully in paragraph [30] of the main judgment. I do not
propose revisiting the details for present
purposes. From the
authorities quoted in the main judgment, it does appear that
invalidity operates with retrospective effect.
[18] In the main
application, no relief was sought beyond the declarators of
invalidity and the setting aside of the two decisions.
This was done
in the main judgment. It is difficult to understand how there can be
a reasonable prospect on appeal simply because
the judgment does not
go further by providing “an appropriate remedy”. In any
event, it appears that “an appropriate
remedy” inasmuch
as one may have been required, lies in the setting aside of the
decisions following upon the declarations
of invalidity. Moreover, I
am of the view that the granting of further appropriate relief
following upon declarations of invalidity
is not compulsory but
optional: section 172 of the Constitution, 1996, provides:
“
172
Powers of Courts in Constitutional Matters -
(1) When deciding a
Constitutional matter within its power, a Court -
(a)
must
declare
that any law or conduct that is inconsistent with the constitution is
invalid to the extent of its inconsistency; and
(b)
may
make
an order that is just and equitable, including -
(i) an order
limiting the retrospective effect of the declaration of invalidity;
and
(ii) an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to
correct the defect.”
(Emphasis added)
[19]
The subject is also dealt with by the Constitutional Court in
Bengwenyama
Minerals
v
Genorah Resources
2011
(4) SA 113
(CC) at 144F-147C.
At 145A-E the
discretionary nature of the decision to grant further equitable
relief following upon a declaration of in validity,
both in terms of
section 172(1) of the Constitution and section 8 of PAJA (which I
have found not to apply to the present case)
is dealt with. At 145D-E
it is stated: “If the administrative action is declared
unlawful, but all its consequences are not
set aside, the practical
effect of the order will be final, not merely a temporary suspension
of invalidity. In my view it is not
necessary to place the just and
equitable relief that may be granted under PAJA into this kind of
conceptual straitjacket in order
for that relief to be
constitutionally acceptable.”
I add that in the
main application no case was made out by any party (including, in
particular, the Minister and/or the third respondent)
for the
granting of equitable relief or an appropriate remedy in the event of
a declaration of invalidity, and what such relief
or remedy should
consist of.
In his comprehensive
argument on the question of a just and equitable remedy that should
have been prescribed following the declarations
of invalidity and the
setting aside of the decisions of the Minister, Mr Mokhari SC for the
Minister and the third respondent argued
that I erred in not
pronouncing further on the consequences of the order I made in the
main judgment. The main thrust of his argument,
if I understood it
correctly, is that I should have made a pronouncement, as counsel
says in his heads of argument, “on what
happens to the
decisions that had been made by the Acting Head of DPCI during the
duration of the absence of Dramat from office,
before the court
declared his suspension unlawful and invalid. A failure by the court
to do so, leaves room for confusion in that
the declaratory order
made by the court subject itself to varying interpretation and
thereby prolonging the dispute.”
The first
difficulty, as I have said, is that no case whatsoever was presented
to me in this regard in the main application by the
Minister or
anyone else. No details were presented about the decisions taken by
the third respondent so that a pronouncement on
how to deal with
those decisions, following the declaration of invalidity, would have
been out of the question, neither was I asked,
in the papers relating
to the main application to make such a pronouncement.
Secondly,
I attempted to deal with the consequences of the declaration of
invalidity in the main judgment in paragraphs [30] to
[31] and, with
regard to the third respondent, in paragraphs [33] to [41]. I do not
consider it appropriate to revisit all those
remarks or to qualify
what was said in the main judgment, save for suggesting that in the
spirit of Oudekraal (main judgment page
34) the actions taken by the
third respondent may well have produced legally valid consequences
until his appointment was declared
invalid and therefore null and
void
ab initio.
It
may be up to the newly appointed and lawfully appointed Head (Dramat
or somebody else) to consider whatever decisions the third
respondent
made in the period of approximately one month while he was in office,
and to deal with them accordingly.
Thirdly,
I have mentioned the remarks of the learned judge in Bengwenyama
where he recognised the discretionary nature of a decision
to grant
further equitable relief following upon a declaration of invalidity
both in terms of section 172(1) of the Constitution
(which would
include setting aside executive action such as in the present matter)
and section 8 of PAJA which is what applied
in Bengwenyama but is not
applicable in this case). It may well be that in PAJA reviews it is
incumbent upon the court to supply
an alternative remedy - see
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others
v
CEO South African
Social Security Agency and Others
2014
(4) SA 179
(CC) at 188B-E. However, in this case involving the
setting aside of executive action, and under circumstances where no
alternative
remedy was proposed, I have difficulty in finding a
reasonable prospect that another court will interfere with the main
judgment
on the basis of a failure to produce an alternative or
equitable remedy. I am also alive to the fact that in the first
Allpay
case
(“Allpay 1”)
2014 (1) SA 604
(CC) it is stated in
paragraph [56] that “once a finding of invalidity under PAJA
review grounds is made, the affected decision
or conduct must be
declared unlawful and a just and equitable order must be made”.
For the reasons mentioned, this would
not appear to apply to the
present case and under the present circumstances.
In
fairness, I must also record that Mr Mokhari referred me to the case
of
Democratic
Alliance
v
President of the
Republic of South Arica and Others
2013
(1) SA 248
(CC) involving the setting aside of the appointment of the
National Director of Public Prosecutions. After confirming the
decision
of the Supreme Court of Appeal to set aside the appointment
the learned judge, in paragraph [93] observed that an order should be
made that the invalidity of the appointment will not by itself affect
the validity of any of the decisions taken by him while in
office as
National Director. It is interesting that the Supreme Court of Appeal
was silent on this particular aspect. Nevertheless,
it is not clear
to what extent this subject was canvassed in the higher court. It
seems to me that each matter should be treated
on its own merits.
Finally, it was
argued by Mr Mokhari that the appointment of the third respondent
will only be displaced by a reinstatement order
to the effect that
Dramat is entitled to return to work. I dealt with this aspect in the
main judgment. I am not persuaded that
the absence of a reinstatement
order in the main judgment renders it flawed to the extent that there
is a reasonable prospect of
success on appeal on that particular
ground.
[20] Under these
circumstances, I am unable to find that there is a reasonable
prospect of success on this particular ground, thereby
precluding me
from granting leave to appeal on this ground.
(iv)
The
Setting Aside of the Appointment of the Third Respondent
:
(v)
Appropriate
Remedy
[21] It seems to me
that the same remarks which are made under (iii) above would apply to
the submissions made under these grounds
of appeal. The position of
the third respondent is fully dealt with in the main judgment, and
more particularly in paragraphs [39],
[40] and [41]. I, respectfully,
cannot find a reasonable prospect of success on appeal against these
conclusions.
(vi)
Conclusionary
Remarks
[22] I am fully
alive to the fact that this is an important case with wide spread
implications not only for the law enforcement
authorities but also
for the public at large. Generally, a court would be slow to refuse
leave to appeal in a case of this importance.
Nevertheless, one must
also pay due deference to the recently enacted
Superior Courts Act,
and
more particularly the requirements in
section 17(1)
that leave to
appeal may only be given where one is of the opinion that the appeal
would have a reasonable prospect of success.
This I could not find,
for the reasons mentioned.
I could also not
find “some other compelling reason why the appeal should be
heard, including conflicting judgments on the
matter under
consideration” as foreshadowed in
section 17(l)(a)(ii).
I was
not informed of any conflicting judgments, nor of “some other
compelling reason why the appeal should be heard”.
[23] Most
importantly, I am of the view that the fact that the main issues in
this case have already been pronounced upon by the
Constitutional
Court, militates against allowing an appeal where essentially the
same considerations will come under scrutiny.
[24] In the result,
I have come to the conclusion that the application for leave to
appeal ought to fail.
B.
THE
SECTION 18
APPTICATION
[25]
The relevant portions of
section 18
of the
Superior Courts Act, under
the heading
“
suspension
of decision pending appeal”,
provide:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
(2) (Not applicable,
dealing with interlocutory orders).
(3) A court may only
order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise,
in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders.
(4)
If the court orders otherwise, as contemplated in subsection (1)-
(i) the court must
immediately record its reasons for doing so;
(ii) the aggrieved
party has an automatic right of appeal to the next highest court;
(iii) the court
hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will
be automatically suspended, pending the outcome of such appeal.
[26]
Rule 49(11)
provides:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
[27]
In discussing the implications of
rule 49(11)
, with reference to an
order allowing execution pending the appeal (“an enforcement
order”) the learned author, Harms,
Civil Procedure in the
Superior Courts at B-355 states that the court to which application
for leave to execute is made has a wide
general discretion to grant
or refuse leave. In exercising this discretion the court should
determine what is just and equitable
in all the circumstances and, in
doing so, will normally have regard,
inter
alia,
to
the following factors: the potentiality of irreparable harm or
prejudice to the appellant should leave to execute be granted,
the
potentiality of irreparable harm or prejudice to the respondent on
appeal if leave were to be refused and the prospects of
success on
appeal (only where leave to appeal has not yet been granted). Where
there is the potentiality of irreparable harm or
prejudice to both
appellant and respondent the balance of hardship or convenience must
be considered.
[28]
In
Incubeta
Holdings (Pty) Ltd
v
Ellis and Another
2014
(3) SA 189
(GJ) the learned judge had occasion to consider the impact
of
section 18
on
rule 49(11).
He also considered the test to be
applied when confronted with an application of this nature as it was
earlier pronounced in
South
Cape Corporation
v
Engineering
Management Services
1977
(3) SA 534
(AD) at 545D-G. These are also the grounds mentioned by
the learned author Harms,
supra.
The
learned judge in
Incubeta
,
correctly in my respectful view, recognised, at 194C-E, that a new
dimension has been introduced to the test by the provisions
of
section 18.
The learned judge points out that the test is twofold.
The requirements are: first, whether or not exceptional circumstances
exist;
and second, proof on a balance of probabilities by the
applicant of - the presence of irreparable harm to the applicant, who
wants
to put into operation and execute the order; and the absence of
irreparable harm to the respondent, who seeks leave to appeal.
[29] At 194E-I the
learned judge also deals with authority containing guidelines as to
what “exceptional circumstances”
represent.
[30] As to the first
leg of the test, I am of the view that exceptional circumstances are
indeed present in this case: it involves
the reputation and smooth
functioning of one of the top corruption busting and crime fighting
units in the SAPS. The case has evoked
nationwide interest and
concern and the public perception of the criminal law system itself
is at stake, particularly in this countiy
which suffers from high
levels of corruption, often involving senior public officials. As it
is pointed out in the founding affidavit
in the main application, the
National Head is at the very heart of the DPCI’s ability to
function effectively and fulfil
its constitutional mandate. The
National Head makes dozens of critical operational, institutional and
financial decisions which
may have a substantial bearing on on-going
sensitive and high profile investigations and pending cases, the
rights and expectations
of members of the public, and the very
structure and operational integrity of the DPCI.
[31] In the main
judgment, with reference to the 2014 judgment, it was concluded that
the actions of the Minister in suspending
Dramat and appointing the
third respondent as the Acting Head, were unlawful and invalid. These
are exceptional circumstances which
would, in my view, dictate that
Dramat should be restored to his position without delay pending the
outcome of any appeal procedures
which may take years to conclude.
[32] Turning to the
second leg of the enquiry, the question of irreparable harm to the
respondents, and more particularly the Minister
and the third
respondent, counsel for the applicant pointed out that at no stage
have any of the respondents, in their opposing
affidavit to the
section 18
application or otherwise, alleged or asserted that the
immediate implementation of the relief sought by the applicant and
granted
in the main judgment, would cause them any harm or prejudice:
in paragraph 33 of the founding affidavit in the
section 18
application, the applicant alleges:
“
At
no stage have any of the respondents alleged or asserted that the
immediate implementation of the relief sought by the applicant
and
granted by this court ... would cause them any harm or prejudice. The
respondents will suffer no harm through the execution
of the order.
The balance of equity thus clearly favours the immediate enforcement
of the order.”
In his opposing
affidavit, the Minister does not contest these allegations.
It
seems to me that much is to be said for the submission by counsel for
the applicant that the correct operation of law (as determined
in the
main judgment following the pronouncements in the 2014 judgment)
cannot, as a rule, cause harm, irreparable or otherwise.
It seems to
me that the decisions of the Minister, which have been found to be
unlawful and void
ab
initio,
and
which have been set aside, ought to be addressed urgently by
restoring the
status
quo,
which
would mean the reinstatement of Dramat in his position. Indeed,
failure to act promptly would be to allow the perpetuation
of a state
of affairs tainted by unlawfulness and illegality.
[33] As to the
question of irreparable harm to the applicant (in this context,
obviously, including Dramat and the DPCI and the
general public) it
is submitted on behalf of the applicant that the DPCI faces
irreparable harm should the order not be executed
and enforced with
immediate effect. Decisions already made by the third respondent and
the disruptions caused by the unlawful displacement
of Dramat, could
in the time pending an appeal cause irreparable harm to the DPCI. The
launching of the main application on an
urgent basis was necessary in
order to restore Dramat to his office as National Head of the DPCI as
soon as possible in order to
limit any adverse effects on the
functioning, operational integrity and independence (actual and
perceived) of the DPCI. The effects
of the unlawful suspension of
Dramat must be addressed without delay and cannot be allowed to
continue pending the result of any
appeal. In these circumstances, it
was submitted on behalf of the applicant that it would be just and
equitable for the
section 18
application to be granted.
[34] Inasmuch as the
prospects of success on appeal may still be relevant to this enquiry,
I have already expressed the view that
I cannot find reasonable
prospects of success. On this subject, it was also argued on behalf
of the applicant that the fact that
the sixty day suspension period
(imposed by the Minister on Dramat) will run out before any appeal,
must militate against the Minister
in the context of the
section 18
application because any appeal court is likely to dismiss the appeal
against the declarations of invalidity of the two decisions
of the
Minister on the basis of mootness alone - see
section 16(2)(a)(i)
of
the
Superior Courts Act, quoted
earlier.
[35]
I add that it was submitted on behalf of the applicant that even if
leave to appeal is denied the respondents may well petition
the SCA
to grant leave to appeal. This would further delay the finalisation
of the appeal process. It was pointed out to me that
there is
authority for the proposition that
rule 49(11)
(and, I assume,
section 18)
does not limit the right of a party to make an
application for an enforcement order to cases where the application
for leave to
appeal has been successfully made - see
Airy
and Another
v
Cross-Border Road
Transport Agency and Others
2001
(1) SA 737
(T) at 743 A-D, paragraph [24],
[36] Finally, I deal
with the question of security.
Rule 49(12)
provides:
“
If
the order referred to in sub-rule (11) is carried into execution by
order of the court the party requesting such execution shall,
unless
the court otherwise orders, before such execution enter into such
security as the parties may agree or the registrar may
decide for the
restitution of any sum obtained upon such execution. The registrar’s
decision shall be final.”
[37]
This is not a claim sounding in money which may be lost by the
successful appellant if no security is furnished. It is a case
involving the restoration of the
status
quo
following
unlawful and unconstitutional decisions. In the circumstances, I am
of the view that I should “otherwise order”
to relieve
the applicant from furnishing security.
[38] In all the
circumstances, I have come to the conclusion that the applicant
managed to discharge the onus upon it on a balance
of probabilities
as foreshadowed by
section 18(3)
of the Superior Courts Act and that
the applicant has also shown exceptional circumstances to exist as
intended by section 18(1).
[39] In the result,
the section 18 application should succeed.
Costs
[40] In respect of
the unsuccessful application for leave to appeal, the costs should
follow the result.
[41] In respect of
the section 18 application, the applicant sought those costs to be
costs in the leave to appeal application (which
would, in this
instance, yield the same result) and cautioned that in the event of
opposition to the section 18 application, the
opposing respondents
ought to be ordered to pay the costs. There was a prayer for costs on
a punitive scale which I am not inclined
to grant. Because of the
complexity of the matter, I am of the view that the costs of two
counsel (where employed) ought to be
awarded.
The Order
[42] I make the
following order.
1. The application
for leave to appeal is dismissed.
2. In terms of rule
49(11) and
section 18
of the
Superior Courts Act, 10 of 2013
it is
ordered that the order in the main application handed down on 23
January 2015 (“the order”) shall operate and
be executed
in full until the final determination of all present and future
appeals in respect of the order or the terms thereof.
The order will
operate and be executed despite the delivery of any present or future
application for leave to appeal in respect
thereof and any noting of
any appeal by any party (including the respondents) or the hearing or
consideration of any appeal in
this court or any other court.
3. It is ordered
that no security need be furnished by the applicant for the execution
of the order as envisaged under
rule 49(12).
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4. The Minister is
ordered to pay the costs of the application for leave to appeal and
the
section 18
application including the costs of two counsel (where
applicable) which costs will include the costs flowing from the
proceedings
of 30 January 2015 and 2 February 2015.
W
R C PRINSLOO
JUDGE
OF THE GAUTENG DIVISION. PRETORIA
Heard
on
:
30 January and 2 February 2015
For
the Applicant
:
Adv D Unterhalter SC & M Du Plessis
Instructed
by
:
Webber Wentzel
For
the 1
st
Respondent
:
Adv W Mokhari SC & Ms T Seboko
Instructed
by
:
Hogan Lovells (South Africa) Incorporated as
Routledge
Modise Incorporated
Date
of Judgment
:
6 February 2015