About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 537
|
|
MEC for Department of Agriculture And Rural Development N.O v Venter; In re: Venter v Acting Chief Magistrate Pretoria North Magistrate's Court and Others (73681/2013) [2015] ZAGPPHC 537 (18 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NUMBER: 73681/2013
DATE: 18 MAY 2015
In the matter between:
MEC FOR DEPARTMENT OF AGRICULTURE
AND RURAL DEVELOPMENT,
N.O
..............................................................................
APPLICANT
And
JAN ADRIAAN FREDERIK
VENTER
.......................................................................
RESPONDENT
IN RE:
JAN ADRIAAN FREDERIK
VENTER
...........................................................................
APPLICANT
And
ACTING CHIEF MAGISTRATE PRETORIA
NORTH MAGISTRATE’S COURT
THE DISTRICT OF
WONDERBOOM
...........................................................
FIRST
RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS:
PRETORIA
....................................................................................................
SECOND
RESPONDENT
MEC FOR AGRICULTURE AND RURAL
DEVELOPMENT
.............................................................................................
THIRD
RESPONDENT
DIRECTORATE OF CONSERVATION:
GAUTENG PROVINCIAL
GOVERNMENT
...........................................
FOURTH
RESPONDENT
JUDGEMENT
TLHAPI J
[1] The first application by the
applicant is for condonation for failure to comply with rule 53(5)(a)
and 53(5)(b) of the Rules
of Court and that the applicant be granted
leave to deliver its answering affidavit to the main application
within five days of
the grant of condonation. The second an
application is to rescind the orders granted by Louw J on 17 February
2014 .
[2] The respondent served the main
application on the applicant on 13 December 2013 and a copy of the
application was given to the
applicant’s Director of
Litigation, Mr Harish Jhupsee (‘Jhupsee) who consulted with Mr
Tshivasi (‘Tshivasi’)
of the State Attorney’s
Office and gave instructions to oppose the application. This was
followed by a letter of 18 December
2013 (annexure ‘B’)
confirming such instruction and enclosing a copy of the Notice of
Motion. Jhupsee sent another
letter on 20 December 2013 to Tshivasi
giving instructions as to whom to brief and confirmed instructions to
oppose. There was
a request to be informed of who was going to handle
the matter in the State Attorneys Office and that he,
Jhupsee would forward further
documentation on his return to work on 13 January 2014.
[3] On or after the 19 December 2013 Mr
Rabambi (‘Rabambi’) of the State Attorney’s Office
was allocated the file
to deal with and he only came into possessior
of the file upon his return from vacation on 14 January 2014. The
orders of 17 February
2014 came to the knowledge of the applicant
only on 26th of that month. The last communication between the
applicant and the office
of the State Attorney was the email
allegedly sent on 20 December 2013.
The orders of the 17 February 2014
read:
“1 Dat die bevel word toegestan
teen eerste, tweede end vierde respondent ingevolge bedes 1,2,3 en 5
van die konsepbevel “X”
soos gewisig.
2 Dat die aansoek teen die derde
respondent word uitgestel na 14 April 2015 Konsepbevel
1 Dat die J51 Deursoekings Lasbrief wat
deur die Eerste Respondent gemagtig is op 23 Augustus 2013 tersyde
gestel en ongeldig verklaar
word;
2 Dat die Vierde Respondent gelas word
on die besit van die Applikant se 3 Spribokke waarop beslag gele is
te herstel en aan hom
terug te besorg binne 10 date na betokening van
heirdie bevel;
3 By versuim soos vermeld in Paragraaf
2 heirbo, dat die Vierde
Respondent gelas word om toe te sien en
te verseker dat vervoer permit aan die Applikant uitgeruik word binne
twintig(20) dae na
betekening van hierdie bevel ingevolge waarvan die
Applikant en/of 7? gevolmagtigde gemagtig word on die 3 springbokke
by die Pretoria
Dieretuin te gaan afhaai en te vervoer na ‘n
geskikte bewaringsgebied;
4
5 Dat die Respondente gelas word on die
Applikant se kostes en kostes van doe aansoek gesamentlik en
afsonderlik te betaal, die
een betaal die ander vrygestel, bereken op
‘n skaal soos tussen prokureur en klient.”
[4] In an emergency consultation
arranged between Jhupsee, Rabambi and others, it appeared that
Rabambi had only been furnished
with a copy of annexure ‘B’
and had assumed that Mr Tshivasi had caused an intention to oppose to
be served on the
respondent’s attorneys and he did not consider
it necessary to confirm this position because Tshivasi was an
experienced
attorney.
[5] When Rabambi was requested to give
an account of his handling of the matter he took out a letter and
explained that he had requested
his secretary to forward via e-mail a
letter for instructions. He could not furnish proof that the letter
had been delivered or
sent, a copy of the letter dated 14 January
2014 annexure ‘D’ was annexed. Rabambi then explained
that due his workload
no follow up was made. The applicant contended
that it was reasonable for it to expect that the offices of the State
Attorney would
have delivered an intention to oppose on its behalf
and
that of the fourth respondent. In his
confirmatory affidavit Rabambi contended that having assumed that the
letter had been sent
to the applicant he awaited instructions from
Jhupsee. Tshivase took leave from 10 Janury 2014 to 10 February 2014.
[6] In its bona fide defence to the
main application the applicant stated:
1 that upon application and upon
payment of a fee it may grant or refuse the issue a licence, permit
or exemption, or exempt the
payment of prescribed fees;
2 that in terms of section 39 of the
Nature Conservation Ordinance 12 of
1983 it was an offence for any person
to keep or convey live game without being the holder of a permit;
3 that from the main application the
respondent had been the owner of
three springbok; springbok being
described as ordinary game in terms of section 15 read with schedule
3 of the Ordinance;
4 that nature conservators may at any
time enter upon any land or premises to carry out any investigation
in furtherance of their
duties under the Ordinance if there was
reason to suspect that there was anything being used in connection
with the commission
of an offence, and was entitled to seize anything
used in connection with the commission of the offence;
5 On 6 June 2013 Mr Fhutuwani
Netshampofu (‘Netshampofu’)) an employee in the branch
delegated to investigate compliance
or non- compliances and after he
had consulted with the respondent had established that the respondent
had no permit to keep or
convey the springbok;
6 that on the respondents own
allegations that the South African Police (‘SAPS’) were
present during the seizure; the
applicant submits that they were
entitled to do so as nature conservators and that they had
information from Netshampofu relating
to the commission of an offence
in contravention of the Ordinance and, had reasonable grounds to
believe that game was present
on the farm 116 Buffelsdrift without a
permit keep or convey; this constituted proof of the commission of an
offence and the fact
that the warrant was set aside did not take away
the fact that from February 2013 to December 2013 the respondent did
not make
an application in the prescribed form for keeping the
springbok;
7 possession would only be restored if
in the main application the applicant is not successful in showing
that the conduct of members
of the SAPS when it took part is seizing
the springbok were not acting in strict compliance with the
provisions of the ordinance;
the SAPS conducted themselves in strict
compliance with the provisions of the Ordinance and that constitutes
a bona fide defence;
8 That the alternative prayer be
dismissed because the Ordinance requires an application and payment
of the prescribed fee to be
made
and that any licence issued contrary to
the Ordinance was null and void;
9 That the third respondent had not
been cited in her representative capacity therefore the allegations
alleged did not disclose
a cause of action; (a point in limine taken
in Annexure ‘X’)
[7] The respondents contended that the
applicants had failed to show bona fides and good cause, did not have
a defence and were
consequently not entitled to condonation or
rescission of the court order.
The applicants and the Office of the
State Attorney had been grossly negligent and in wilful default in
responding to the main application.
The tracking report of the e-mail
of 20 December 2013 did not show that Tshivase had read it and the
applicant had failed to explain
why it failed to make any follow up
enquiries after that date until 26 February 2014 with the Office of
the State Attorney.
It was averred that on 14 March 2014
Jhupsee had called the respondent’s attorney indicating
applicant’s willingness
to settle the matter. Jhupsee was
requested to e-mail the settlement proposals and he failed to do so.
The applicant failed to
explain why it took almost another month
after this call, before this application was launched and there is no
explanation in this
application regarding this call.
[8] The respondent averred that he
owned the 3 (three) springbok which had been kept in a legitimate
nature conservation area in
the Buffelsdrift Nature Reserve.
It was denied that ‘springbok’
is defined as ordinary game in terms of section 15 read with Schedule
3 of the Ordinance.
[9] The respondent denied that it was
Netshampofu who contacted him on 6 June 2013 but that Mr Leon
Labuschagne of the Nature Conservation
contacted him on or about 6
May 2013 to enquire about the springbok.
According to the respondent the search
warrant (‘warrant’) issued on 23 August 2013 the search
warrant annexed as ‘JAVF2’
was declared invalid because
“1) no person is authorised to serve and execute the warrant,
2) no mention was made of any
other person/s who are authorised to
assist in the execution of the warrant, 3) no criminal charges are
mentioned on the warrant,4)
the warrant did not contain any case
number whatsoever indicating that there is a criminal case pending
against the respondent
which entitled the applicant to seize the
springbok, 5) the warrant was obtained and issued after the criminal
case was withdrawn
against the respondent by the senior public
prosecutor in the Pretoria North Magistrate’s Court”
[10] The respondent averred that
although members of the SAPS were present during the seizure and
execution of the warrant. They
had not been instrumental in securing
such warrant. The SAPS were not involved in the actual seizing or
execution of the warrant,
they kept their distance of 40 metres from
his premises. They did not speak to the respondent and it was denied
that their presence
was as a result of information received from
Netshampofu. The search warrant was obtained at the initiative and
strength of an
affidavit of Netshampofu who wilfully ignored the
withdrawal of criminal proceeding against him.
[11] The respondent denied he failed to
apply for a permit and referred to his interaction with Mrs C Hugo,
head of Nature Conservation
in Pretoria who informed him that her
interest was in removing the springbok from the respondent and that
she would not approve
any application from him for a permit.
[12] The applicant for its default
relies on the same explanations from the office of the applicant and
from the office of the State
Attorney in moving its applications for
condonation and rescission. The applicant has further referred to
annexure ‘X’
in the rescission application which was its
answering affidavit to the main application. I am in agreement with
the submission
by Mr Maritz that such annexure falls outside the
ambit of consideration of the rescission application, whose purpose
is to allow
the filling of such affidavit should this application
succeed.
DEFAULT:
Jhupsee:
1. The tracking report of the email he
allegedly sent to Tshivase on 20 December 2013 does not show that it
had reached or had been
read by Tshivase; there is no explanation on
this aspect from both officials;
2. Assuming that it had reached
Tshivase, Jhupseed confirmed instructions and indicated that further
documentation on the matter
would be forwarded to the State Attorney
on his return from leave on 13 January 2014. There is no explanation
why he never delivered
the said documents or made a follow up because
if he had he would have been enquired after the intention to oppose
and would have
arranged further consultations to deal
with the applicant’s answering
papers.
3. The letter of 20 December 2013 was
the last communication from his office with the Office of the State
Attorney until he was
served with the order that is sought to be
rescinded on 26 February 2014;
4. The respondent averred that Jhupsee
communicated with his attorney on 14 March 2014 regarding possible
settlement. The letter
of 20 December 2013 does suggest such
possibility with the State Attorney. There is no explanation from
Jhupsee if this was indeed
so and why he never followed up with these
proposals.
5. There is no explanation from Jhupsee
why it took so long after the 26 February 2014 or after his
conversation with the respondent’s
attorney on 14 March 2014
for the applicant to give instructions to launch the condonation and
rescission applications. There is
further no explanation that the
State Attorney’s office was aware of such endeavours or why he
had decided to take matter
into his own hands;
Rabambi and Tshivase
1. I do not understand how Tshivase
could have allocated the file to an official who was going on
vacation. There is no indication
that he discussed the matter with
Rabambi or that Rabambi was aware of such allocation. As I see it,
Rabambi became aware of the
file only in January 2014. His further
explanation on his handling of the matter demonstrates
lack of diligence and gross negligence
in attending to the instructions of the applicant and does not
deserve further comment. There
is no explanation why nothing was done
further from 26 February 2014 till these applications were launched
during April 2014.
[13] It is my view that Jhupsee, as
litigation officer in the office of the applicant was there to
oversee and to give support to
the Office of the State Attorney in as
far as it involved litigation matters of the applicant. This is
evident from his choice
of which counsel was to be engaged and the
fact that he contacted the respondent’s attorney after the
orders were granted.
He cannot shift the entire blame to the State
Attorney, his conduct and that of Tshivase and Rabambi should be
viewed in same light.
It is not in the interest of justice to allow
such conduct especially if it has the potential of prejudice to the
other litigant.
The explanations for the default are not reasonable
in the circumstance and should in my view, not be accepted.
RESCISSION
[14] There is concession by Mr Thompson
for the applicant that this application does not fall to be
determined in terms of rule
31(2)(b) or rule 42 of the Rules of
Court. This confirmed the submission by Mr Maritz. Mr Thompson
submitted that under the common
law the courts powers to consider and
to grant rescission extend beyond those rules and, that fairness to
both sides demanded that
the court exercise its discretion judicially
to consider the application. Mr Maritz submitted that the order was
not obtained in
a fraudulent manner or by justus error therefore the
common law was not applicable. In Promedia Drukkers en Uitgewers
(Edma)(Bpk)
v Kaimowitz and Others 1996 (4) 411(C) at 417 J -418 A it
was stated that the requirements
under the common law would be satisfied
if there was sufficient good cause shown, translated to a ‘reasonable
and acceptable
explanation for the default and a bona fide defence
which prima facie carries some prospects of success’.
[15] I have already found that the
explanation for the default by the applicant was not reasonable and
this is exacerbated by the
fact that Jhupsee was not a lay person as
far as the law was concerned.
[16] Mr Maritz raised the following
further aspects relating to the rescission application:
1. The fact that the 4th respondent had
not been joined in this application. Even though the applicant
contends that the 4th respondent
being the directorate functioning
under it, it was in my view necessary to join it in order also to
identify the individual responsible
for the seizure. I am not in
agreement with Mr Maritz that on this basis alone the application
should be dismissed. It is still
the duty of the court to consider
the other requirements relating to prospects, especially because the
order affected the fourth
respondent.
2. The main application specifically
addresses the conduct of an official of the directorate Mr
Netshampofu. Firstly the alleged
misrepresentation relating to the
service of the subpoena in terms of section 56 of Act 51 of 1977
dated 12 June 2013 with date
of appearance 22 August 2013. The
respondent attended court on that day and there is no explanation in
the rescission application
why Netshampofu failed to attend court
resulting in the charges being withdrawn.
3. There is no explanation from Mr
Netshmpofu why he proceeded to the Magistrate, being the first
respondent in the main application,
on 23 August 2013 to obtain a
search warrant armed with an affidavit without explaining his failure
to attend court on the date
set by him, which was a day before on 22
August 2013.
4. While the applicant contends that
the search and seizure was initiated by Netshmpofu alternatively the
SAPS there is no indication
on the warrant that the first respondent
in the main application was satisfied with an important
jurisdictional requirement for
the issue of a warrant, in these
circumstances being information of pending criminal proceedings and
other factors referred to
above and upon which grounds it was
contended the warrant was declared invalid. The fact that no mention
is made in the affidavit
of the criminal proceedings which were
initiated by Netshmpofu borders in my view on mala fides.
5. Alternatively, in as far as the
police were concerned since it was contended that they were acting
within the strict powers in
the Ordinance and, since it was their
first encounter with the respondent, it does not appear from
information availed to the first
respondent in the main application
that they had information of a pending criminal case or, knowledge
that the case had been withdrawn
and that there were reasonable
grounds to believe the commission of an offence was. It was denied
that the presence of the SAPS
was as a result of information from
Netshimpofu. The respondent averred that the SAPS were not involved
in the search and seizure;
that they did not communicate the reason
for their presence to the respondent; that they stood about 40 metres
away from his premises
while Netshimpofu and others engaged in the
search and seizure of the springboks. There were also allegations in
the main application
regarding the interaction with Mr Labuschagne
and Mrs Hugo relating to the permit or licence which were not
addressed.
6. The respondent denied that springbok
were protected animals as defined in section 15(b) or described in
Schedule 3 of the Ordinance
and he contends that he was allowed to
keep them within legitimate confines of the Buffelsdrift Nature
Reserve. These issues are
not addressed in the rescission application
in such a manner as to indicate that the applicant has prima facie
prospects in the
main application. I also checked the Ordinance and
section 15(b) and Schedule 3 do not mention the springbok (Antidorca
marupialis)
as a protected species.
I am therefore not satisfied that the
applicant has made out a prima facie bona fide defence.
[17] In the result the following order
is given.
1. The applications for condonation and
rescission are dismissed with costs.
TLHAPI V V.
(JUDGE OF THE HIGH COURT)
MATTER HEARD ON 12 MAY 2015
JUDGMENT RESREVED ON 12 MAY 2015
ATTORNEYS FOR THE APPLICANTS THE
STATE ATTORNEYS
ATTORNEYS FOR THE RESPONDENTS DU
TOIT ATTORNEYS