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[2015] ZAFSHC 131
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Seoe and Another v Deputy Director of Public Prosecutions of Free State (2648/2013) [2015] ZAFSHC 131 (25 June 2015)
IN
THE HIGH COURT OF South Africa,
Free
State DIVISION, BLOEMFONTEIN
Appeal
No.: 2648/2013
In
the matter between:
MOHLOUA
ISAAC SEOE
1
st
Applicant
VIRGINIA
MOSEIA
2
nd
Applicant
and
THE
DEPUTY DIRECTOR OF PUBLIC
PROSECUTIONS
OF FREE STATE
Respondent
JUDGMENT
BY
:
JAJI,
AJ
HEARD
ON
:
13
MARCH 2015
DELIVERED
ON
:
25
JUNE 2015
INTRODUCTION
[1]
This is an application for leave to appeal against the whole Judgment
and order of the High court in Bloemfontein (High Court),
dated 27
November 2014.
[2]
The leave to appeal is premised on the grounds enunciated in the
Notice of Application for leave to appeal dated 12/12/2014.
[3]
The grounds for leave to appeal are as follows :-
A.
that
there is a reasonable possibility that another court may find that
the court a quo erred and / or misdirected itself by:
(a)
dismissing
the application of the second applicant without having considered,
studied, taken into account, analysed, discussed or
pronounced upon
the second applicant’s case for the required relief;
(b)
finding
that the reasons advanced by the applicants for their trial prejudice
are speculative;
(c)
incorrectly
applying the judgment in the case of
Zanner
V Director Of Public Prosecutions
2006(2)
SACR 45 (SCA) to the facts of the present case, which facts however
differ substantially and materially from the facts of
the
Zanner
case;
(d)
incorrectly
applying the test enunciated in the
Zanner
case to the facts of the case,
(e)
indicating
in its judgment that the grounds relied upon by the first applicant
should be ventilated in trial court and not in the
above court which
finding:
(i)
violates
and renders the provisions of Section 38 read with Section 35(3)(d)
of the constitution inoperative;
(ii)
closes
the doors of the court to the applicants, and;
(iii)
denies
the applicants recourse to a competent court;
(f)
ordering
the applicants to pay costs of the application, as a punitive
measure, for allegedly:
(i)
bringing
the applications piece-meal,
(ii)
not
heeding the warning by the respondent of an adverse cost order;
(iii)
the
challenges and negative impact of the present application on the
arranged trial date;
B.
That
there is a reasonable possibility that another court may find that:
(a)
the
applicants have probably suffered significant irreparable trial
prejudice as a result of the delay;
(b)
the
combination of factors in this case constitute extra-ordinary
circumstances justifying a permanent stay of prosecution,
(c)
the
respondent was at fault, without justification, for the inordinate
delay, and therefore the balance should shift decisively
against him;
(d)
the
reasons the state assigns to justify the lengthy and inordinate delay
are inadequate and unacceptable.
(e)
the
applicants showed definite (and not mere speculative
trial-prejudice);
(f)
the
applicants showed in what specific manner missing witnesses would
have aided their defence and identified such missing witnesses
by
name;
(g)
no
order of costs should be made, having regard to the nature of the
proceedings where the claimants seek to enforce a constitutional
right;
C.
that
there are also other compelling reasons as contemplated in
Section
17(1)(a)(ii)
of the
Superior Courts Act, 10 of 2013
, why the appeal
should be heard to wit that;
(a)
the
curtailment of fundamental rights under the constitution warrant
judicial scrutiny and consideration;
(b)
the
rights of other accused are depended upon the determination of this
application;
(c)
the
matter is substantial and paramount importance in itself, for the
parties;
(d)
considerations
of legal and public policy, coherence and consistency dictate that
the Supreme Court of Appeal should hear the matter.
[4]
The applicant has asked for an order directing that the appeal be
heard by the Supreme Court of Appeal, alternatively by a Full
Bench
of the Free State High Court, Bloemfontein.
FACTUAL
BACKGROUND
[5]
The matter came to engage the attention of the high court under the
following circumstances:
(i)
The
applicant sought a permanent stay of prosecution on charges contained
in the indictment amongst others, tender fraud, racketeering,
corruption and money laundering;
(ii)
The
applicant relied on the provisions of
section 35(3)(d)(h)
and (i)
of the constitution of South Africa,
sec 342
A of the Criminal
Procedure especially factors to Be considered by a court before which
criminal proceedings are instituted in
investigating inter alia any
delay in the completion of proceedings which may be unreasonable in
given circumstances.
(iii)
The
applicant relied further on the legal principles involved as laid
down in case law i.e.
Sanderson
v Attorney General, Eastern Cape
1998(2) SA 38 CC;
Director
Of Public Prosecutions And Another v Phillips
2012(4) ALL SA 513 (SCA), Unreported judgment of
John
Robbs And Others v Deputy Director Of Public Prosecutions
for
the province of KwaZulu Natal, case no 13510/201.
(iv)
They
relied to facts regarding allegations and circumstances giving rise
to the charges which occurred a decade ago from 2001-2013;
(v)
Applicants
relied on compliance with legal principles especially the inordinate
delay to prosecute, effect of delay, trial prejudice
and legal
consequences resulting from the effects of the above principles.
(vi)
The
applicants contended that the critical issue, was the determination
of reasonableness of time taken to prosecute. The conduct
of the
prosecution and accused had to weighed and balanced. They contended
that a permanent stay of prosecution was appropriate
when there was
prejudice.
[6]
The application for permanent stay was opposed by the respondent. The
issue was whether the court should grant a permanent stay
of
persecution on the basis as set out in applicant’s affidavit
and whether the applicants would suffer irreparable trial
related
prejudice if the matter proceeded to trial. The respondent contended
that:
(i)
The
arguments by the applicant be made in trial court;
(ii)
The
delay was occasioned also by the applicants bringing five other
applications which were similar in nature whilst aware of the
imminent trial date, which was already available.
(iii)
Respondent
contended that there was no basis for the alleged prejudice by the
applicants.
(iv)
It
submitted that the application was not an appropriate case for stay
of prosecution. It submitted that a stay of prosecution is
relevant
when there was clear trial prejudice. It explained the delay and
raised dispute of facts relating to inherent contradictions
in the
applicant’s papers
[7]
The matter was finally disposed by the Judgment of the court
delivered on the 27 November 2014 dismissing the application with
costs on a normal (party and party) court scale.
THE
APPLICATION TO THIS COURT
[8]
The summary of the applicant’s submission could be tabled as
follows:-
(i)
the
court
a
quo
had erred in some respects, misdirected itself in other respects and
that there is a reasonable possibility that another court
may find
that a permanent stay of prosecution is justified due to infringement
of fundamental rights which included the right to
have a trial begin
and continue without reasonable delay;
(ii)
that
it appeared from the judgment that the court did not address the case
of the second applicant;
(iii)
that
it appeared from the judgment that the court
a
quo
was of the view that the proceedings were brought in an incorrect
forum;
(iv)
that
it was stated in court
a
quo
that the issue specifically regarding trial prejudice, should have
been rather ventilated in the trial court.
(v)
that
regarding the delay in forensic report, it appeared as if the
court
a
quo
deemed
it an administrative matter and accordingly elected or decided not
the apply its mind to the facts;
(vi)
that
the weight of compelling authority would justify leave to appeal and
costs order was unjustified and inappropriate and against
the weight
of authority.
[9]
The respondent submitted as follows in opposing the application:-
(a)
The
application should be refused because authority state that the court
is entitled to grant leave only if it is persuaded that
the appeal
would have a reasonable prospect of success not a reasonable
possibility. It also argued that there are no conflicting
judgements
on the permanent stay of prosecution. The applicant had argued that
other compelling reasons why the appeal should be
heard included
conflicting judgments. The respondent contended that the highest
court in the land,
Bothma
v Els
(CCT 21/09) ZACC 27, 2010(2) SA 622(CC) 2010(1) SACR 184(CC)
2010 (1)
BCLR 1(CC)
(8 October 2009) laid out criteria to be considered in
granting or refusing a permanent stay of prosecution.
(b)
The
constitutional court stated that the following factors had to be
weighed as a balancing act:-
(i)
The
nature of the offence,
(ii)
The
length of, the delay;
(iii)
The
reasons given for the delay, and
(iv)
The
potential prejudice to the accused.
The
seriousness of the crimes spoke to the reason that is proffered by
the respondent for the delay. The respondent has been frank
and
candid with the court as to why there was a delay. The court a quo
had also taken into account public policy dimensions in
the balancing
exercise and dealt extensively with the nature of the offence in its
judgment. The court did not deal with only the
length of the delay,
it dealt with the four factors that
Bothma
v Els
says. The respondent challenged the applicant to convince the court
that
Bothma
v Els
has not been taken into account
(c)
Harms
volume 4, 3
rd
edition (2012) was quoted by the respondent
“
. . . . . . leave
to appeal can only be granted if the applicant has a reasonable
prospect of success on appeal. The matter should
be decided without
reference to the wishes of the parties. Leave is granted not in
respect of the reasons for the judgment or order
but in respect of
the judgement or order itself. The success must relate to the
outcome of the case and not an argument that
does not dispose of the
case in favour of the applicant. In other words, objection cannot be
levelled at the faulty reasons only”.
-
He
went on further
“
.
. . . . it cannot be levelled as a faulty reason only. It is the
consequences of such reasoning that may be subject of an appeal.
The
importance of a matter is also not on its own a justification for
granting leave to appeal”.
The
respondent contended that they were not dealing with reasonable
possibility but what the prospects of success were.
(d)
The
applicant’s case that another court might find that they were
prejudiced by the court
a
quo
’s
indication that the grounds relied upon should be ventilated in a
trial court. The court in its judgement addressed the
reasons for
such a conclusion. The respondent submitted that indeed they conceded
that a court
a
quo
is competent to hear the matter but was not the appropriate court.
The applicant conflated competence and appropriateness. The
motion
court would have to deal with matters that were irresolvable because
they were on affidavit and yet in trial court which
would also be a
competent jurisdiction, matters would be able to be dealt with. The
respondent argued that the court did not close
the door to the
applicant by refusing a permanent stay but has opened another door,
which is an appropriate court, the trial court.
The gravamen of
reasoning in
Bothma
v Els
is that the court will grant a permanent stay only if it is manifest
that the prejudice to the accused person is so material that
it
cannot be cured by a lesser manner of dealing with the problem raised
by the applicants.
(e)
The
respondent submitted that from 2013, the applicant could have raised
the same issues in the trial court. They were arguing in
2015 a
matter they claim is being delayed or inordinately delayed. The court
has referred to the contradictions on papers and stated
that only the
trial court can deal with them. The court cannot deal with it on
papers. The court clearly was aware that when the
applications for
stay were made, the matter was trial ready, and that was the forum
where the applicants would have raised the
issues. The respondent
submitted that the court cannot be faulted for the reasoning that the
trial court was the appropriate forum
to deal with the
contradictions.
(f)
The
respondent submitted that in line with the case of
Sanderson
v Attorney General Eastern Cape
1998(2) SA 38 CC, the court a quo on balance held that a permanent
stay was not an appropriate order. It was not all about taking
one
factor and isolating it and holding higher than all other factors.
The court further dealt with the dead witnesses. Even if
they were
alive, they would have to deal with the contradiction in the tender
documents. Again the court stated that the trial
court was best
placed to deal with that issue because on the papers it was
impossible to resolve it. The trial court would have
to deal with
whether or not there has been unfairness in the manner in which the
order of the court is alleged to have violated
section 35
of the
constitution.
(g)
The
applicant submitted that the court misapplied the
Zanner
judgment
(Zanner
v Director Of Public Prosecution
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA). The court recognised a very critical
criterion which had to be considered in an application for a
permanent stay of prosecution.
It was some form of additional
criterion, namely the nature of the offence. The court used the
language of
Zanner
,
i.e. what was being sought to be addressed in the case like
Zanner
,
was merely speculative. The court was saying it could not interrogate
motion court papers, they say what they say and an appropriate
court
to resolve issues that arise from the papers, is the court that will
be able to deal with cross-examination and the matters
that arise
there from.
(h)
The
delay has been exacerbated in the case by the present application.
The respondent submitted that the case law on aggregate was
more on
the side which will refuse the permanent stay for all the reasons
given in cases including
Naidoo’s
Case (S v Naidoo
2012(2) SACR 126 (WCC). The case held that it was not easy to
establish trial prejudice because it borders on the impossibility
for
a court other than trial court to determine the impact of the loss of
a witness or the effect of the lapse of time on the reliability
of
the recall events by witnesses. The respondent submitted that the
court stated that the state faced the same prejudice and the
extent
of the prejudice can only be properly measured by the trial court
hearing all the relevant evidence.
(i)
The
respondent argued that a permanent stay, any other court will hold,
can only be justified in extraordinary circumstances and
those
extraordinary circumstances are when the accused person can
demonstrate that it can no longer be afforded a fair trial because
the accused has suffered material trial related prejudice which
cannot be cured by a lesser remedy. The respondent argued that
no
other court understanding that there was an application on motion for
a permanent stay and that the application was refused
because the
court weighed all the four factors indicated, not one, seemly reasons
for the delay, weighed all of them. It further
argued that no court
can find differently to what the court found on whether or not it can
be said that the applicants have suffered
such material trial related
prejudice which cannot be cured by a lesser remedy. It referred to
Bothma’s
case where it was stated that irreparable prejudice had to amount to
something more than a disadvantage caused by loss of evidence.
The
irretrievable loss of some evidence, even if it is associated with a
delay, was held (
Bothma’s
case) not to be determinative of irreparable trial prejudice.
(j)
It
was submitted that in essence the court was asked not to look at the
prejudice to the state if it has to weigh that there was
so much of
prejudice to the accused without resolving the dispute which was on
the papers. The court was referred to
Zanner’s
case where it was held that prejudice is not only that of the
accused, the prejudice is also that of the state. It was contended
that the applicant had to show whether the refusal to grant permanent
stay in itself meant that the accused persons have been prejudiced
beyond repair.
(k)
Regarding
the allegation that the court did not consider and address the
second’s applicant’s case. The respondent submitted
that
she (second applicant) did not put a separate case. Her fullest
contribution to the case was by way of confirmatory affidavit.
She
associated herself with everything that has been said by the first
applicant.
(l)
The
issue of costs. The court did not only address the issue of costs on
the basis that the applicants have been warned. The court
dealt with
the letter warning the applicant as well as the piecemeal dealing by
the application of the case. The conduct of setting
down for the same
date and time of voluminous papers especially when the applicants
knew already of the trial case. The applicants
refused to take one of
the applications as a test case when requested to do so by the
respondent. The respondent responded to all
six applications and
filed answering affidavits. This all was time consuming. The
applicants decided to take one of the applications
instead of the six
to see what would transpire out of it. This the respondent referred
to as conduct that contributed to the delay.
In any event the court
did not order a punitive costs order, it awarded party and party
costs. The court of an appeal would have
to show that the court a quo
did not exercise its discretion judicially.
The
contention by the applicants that by awarding costs against litigants
raising constitutional issues against sate entities would
have a
chilling effect. The applicant conceded that this was a general rule
and as all general rules there are exceptions. The
respondent argued
that the court did not err in awarding the costs order especially
when one has regard to the conduct of the applicant’s
in the
present case. The applicant referred to the case of
Biowatch
Trust v Registrar Genetic Resources And Others
(CCT 80/08)[2009] ZACC14 2009(6) A 232 (CC) 2009(10) BCLR 1014 (CC)
(3 June 2009). It argued that the case at hand required the
court to
order costs against the party that has lost even if the issues that
have been raised were constitutional. Where a matter
is either
frivolously raised and/or vexatiously raised, the conduct of the
applicant’s warranted a cost order. In any event,
the
respondent submitted that all the cases that go to constitutional
court will never have a costs order because every case that
ends in
the constitutional court raises a constitutional issue.
SHOUD
LEAVE TO APPEAL BE GRANTED?
[10]
It is trite that the existence of reasonable prospects of success on
appeal is paramount in an application for leave to appeal.
The test
is the same in both criminal and civil cases
.
(
see
Mthirara
v Landmark Mthatha
(Pty) Ltd (607/2007) [2007] ZA ECHC,
Van
Wyk v S, Galela v S
(20273/2014, 20448/2014 ZASCA 152
[2014] 4 ALL SA 708
(SCA); 2015(1)
SACR (SCA) (29 September 2014).
“
The
issue to be determined is not whether the appeal against conviction
and sentence should succeed but whether the high court should
have
granted leave which is in turn depend upon whether the applicant
could be said to have reasonable prospects of success on
appeal”.
S
v Matshona
2013(2)
SACR 126 (See also
S
v Kriel
2012
(1) SACR (1) SCA paragraph 11-12,
S
v Smith
2012 (1) SACR 567
(SCA) paragraph 2-3.
PROSPECTS
OF SUCCESS
[11]
Prospect of success, are they so strong that refusal of leave to
appeal would probably result in a manifest denial of justice?
The
application for leave to appeal must succinctly set out the respects
in which it is alleged the high court erred and the judgment
must be
subjected to a critical analysis, either as to the findings of facts
or as to the exposition and application of law. NB
A generalised
attack on the findings of the high court in insufficient, as is
reliance on the notice of appeal, or a recitation
of the grounds of
appeal. The existence of reasonable prospects of success on appeal
has been held in a long line of cases to be
paramount. (See
R
v Baloyi
1949 (1) SA 523
(A) at 524,
R
v Nxumalo
1939
AD 580
at 582,
R
v Ngubane & othes
1945
(AD) 185 at 187,
Capital
building Society v De Jager & Others, De Jager and Another
Capital Building Society
1964 (1) SA 247
(A),
Afrikaanse
Pers Bpk v Olivier
1949, (2) SA 890
(0) at 892 -893,
S
v Ackerman en ‘n Ander
1973 (1) SA 765
(A) and
S
v Sikosana
1980
(4) SA 559
(A) at 562.
[12]
Judicial Authority enjoins the courts to reflect dispassionately upon
court’s decision and decide whether there is a
reasonable
prospect that the appeal court may disagree with the decision.
The applicants have argued that there was a reasonable
prospect that
another court, on the grounds advanced in support of the application,
coming to a different conclusion. The
respondents disagreed and
submitted that there was no such reasonable likelihood of another
court coming to a different conclusion
from that of the court a quo.
In
Cameron
Mclaggen v The state
,
case no CC 70/2011 delivered on the 4/10/12, quoting
Songono
v Minister of Law & Order
1996 (4) SA 384
( E ) application for leave, Leach J (as he then was)
set out applicable principles at (385F-368B)
“
Rule
49 (3), is concerned, it has been held that the grounds of appeal are
bad if they are so widely expressed that it leaves the
appellant free
to canvass every finding of fact and every ruling of law made by the
court a quo, or if they specify the findings
of fact or rulings of
law appealed against so vaguely as to be of no value to either the
court or respondent……………………………”.
Leave
to appeal will be granted where there is reasonable possibility that
another court may come to a different conclusion either
on the facts
or law or both. It is not for the court to give appellant a
second opportunity to reargue its entire case.
“
The
essential function of an appeal court is to determine where the court
below came to a correct conclusion…”
(See
Quartermark
Investments (Pty) Ltd v Mkhwanazi & Another
(2013) ZASCA 150
,
2014 (3) SA 96
(SCA) at para 20.
[13]
The court a quo has raised the contradictions which amounted to
dispute of facts. In
USA
vs Tao Ying Metal Industries & Others
(2008) ZACC 15
,
2009 (2) SA 204
(CC), 2009 (1) BCLR (1) CC at para
[68], the court said:
“
where
a point law is apparent on the papers, but the common approach of the
parties proceeds on a wrong perception of what the law
is, a court is
not only entitled, but is in fact also obliged,
mero
motu
,
to raise the point of law…”
[14]
The court in
Shaik
v Minister of Justice and Constitutional Development
2003 ZACC 24
,
2004 (3) SA 599
(CC) 2004 (4) BCCR 333 (CC) at para
[16] stated that:
“
This
court will only grant leave to appeal if it considers it to be in the
interest of justice to do so. The prospects of
success are
important in deciding whether or not to grant leave to appeal, but
they are not the only issue to be considered when
the interests of
justice are being weighed. There are a number of factors that
are relevant to this enquiry. They have
to be assessed
together”.
It
was held in the matter of
BLOSE
v Ethekwini Municipality
(2005/14) ZASCA 87 that:
“
the
achievement of justice should not be hampered by excessive adherence
to printed form of legislation without regard to
its
significance and what it seeks to accomplish.”
[15]
The Applicant in the application to appeal conceded that indeed that
the contradictions on the papers in respect of charges
7 -12.
“
There
may be some controversy about that but not in respect of court 2 and
in respect of court 4”
(Submissions
by applicant counsel).
[16]
In the notice of application for leave to appeal p 4 para B (a)
(grounds for appeal) the applicants state clearly that there
was a
reasonable possibility that another court may find
“
the
Applicants have
probably
suffered significant irreparable trial prejudice as a result of the
delay”.
The
applicants went further at page 5 of the notice especially at para B
(c)………… and therefore the
balance
should
shift decisively against him.
Clearly
the applicants argue on the basis of probabilities and balance of
probabilities shifting to the respondent in respect of
trial
prejudice caused by the delay. The alleged prejudice is not
definitive but speculative based on probabilities arising
from the
applicants own papers. The alleged trial prejudice complained of is
not definitive but probable. The applicants
are not even sure
of this alleged prejudice.
[17]
The applicants have contended in the papers and in submissions that
the second applicant’s case had not been separately
addressed.
The respondent correctly argued that the second applicant’s
case was based on confirmation of what the first
applicant was saying
in his founding affidavit. It did not raise anything
different. Upon perusal of the notice of
motion the following
is glaring:
(i) It is stated
that the abovementioned
applicants
intend to ………..for
an order
(ii)
permanent
stay of prosecution
on the charges contained…….
(iii) Grounds for the
application (its applicant refers to) i.e. para [13].
The
applicants
…………………………….
(iv) Effects on family
life (
referring to the second applicant)
Para153,154,155,156
&158.
(v)
Impaired memory
Para 211 & 214.
(referring
to the second applicant.)
Now,
upon further perusal of the founding affidavit of the second
applicant whose case is alleged not to have been addressed and
different from the first applicant. She actually raised the
same issues as the first applicant i.e.
(i) Purpose of the
application.
The applicants seek injucture relief
…………………..
(referring to both applicants).
(ii) Para (13) at p
203 (record). The applicants contend ……………….sec
35(3)
of the constitution (
same issue raised by first
applicant
).
(iii)
para 15 at p 204 (record)
“
I
have read the founding affidavit deposed to by the first applicant
and I confirm the contents…….”
(
confirmation
by the second applicant
)
(iv) Para 16.3 p 204
(record) (
second applicant alleges that she suffer the same
damages as applicant number one and in the same respects as set forth
in the paragraphs
164 to and inclusive of paragraph 247.
(v)
Para
17 at p 205 (record)
“
paragraphs
15 to and inclusive of paragraph 80 of the founding affidavit and
confirm the contents hereto”
The
second applicant confirming the contents of the first applicants
affidavit.
(vi)
Para 20 at p 205 (record)
“
I
confirm in this regard the contents of paragraphs 153 to paragraph
162 of the first applicant’s founding affidavit.”
From
the above, clearly the grounds of appeal of the two applicants are
confirmed. The constitutional rights raised by the
second
applicant are the same as those raised by first applicant albeit in
summary. The affidavit of the first applicant
is confirmed from
pages 15 - 80, 153 -162,164 --247. The case of the second
applicant is clearly not different from the first
applicant’s
as confirmed by the second applicant. It is not clear on what
basis is it alleged that it should have been
addressed separately.
The
court a quo therefore could not be said that it failed in its duty to
traverse in its judgment evidence before it. It
is trite that
in motion proceedings, the affidavits constitute both the pleadings
and the evidence (see
Minister
of Agriculture, Land and Weveel Trust & Others
(2007) SCA 153 RSA at para 43). The court in dismissing the
application for leave to appeal in this case held that prospects
of
success were not demonstrably strong.
COSTS
[18]
The conduct of the applicants in this matter has already been
highlighted by the respondent. The following quote becomes
therefore relevant in the circumstances:
“
In
its legal sense “vexatious” mean a frivolous, improper,
and instituted without sufficient ground to serve solely
as an
annoyance to the defendant”.
Vexatious
proceedings would also no doubt include proceedings which although
properly instituted, are continued with the sole purpose
of causing
annoyance to the defendant, “abuse” connotes “misuse
an improper use, a use mala fide, a use for an
ulterior motive”.
In
Re Alluval Greek Ltd CPD 532 at 535,
Gardiner
J said in the context of a punitive costs order:
“
Now
sometimes such an order is given because of something in the conduct
of a party which the court considers should be punished,
malice,
misleading the court and things like that, but I think the order may
also be granted without any reflection upon the party
where the
proceedings are vexatious, and by vexatious I mean where they have
the effect of being vexatious, although the intent
my not have been
that they should be vexatious. There are people who enter into
litigation with the most upright purpose
and a most firm belief in
the justice of their cause, and yet whose proceedings maybe regarded
as vexatious when they put the other
side to unnecessary trouble and
expense which the other side ought not to bear.”
The
manner or piece-meal dealings with six applications of voluminous
nature by the applicant where the respondent had to file in
each of
them answering affidavits falls squarely in the category stipulated
by Gardiner J. Subsequent to the tedious exercise,
the applicants did
not proceed with the applications. Clearly the court could not
close its eyes on this conduct. It
had to demonstrate its
displeasure at this kind of litigation.
It
follows therefore that there is no warrant for interfering on appeal
with the discretion exercised by the court a quo regarding
costs.
In
Agriculture,
Land & Wevell Trust, 2007 (SCA) p 153 at 51
“…
.that
even if the application was not intended to be vexatious, if it had
that effect, a punitive cost order would be justified”.
CONCLUSION
[19]
All the grounds for appeal as laid down by the applicants have no
merit at all. The court agreed with the submissions
of the
respondent to the extent that they did not contradict the contentions
of the court a quo’s judgment. The appeal
is premised
from wrong inferences and deductions. The applicants infer from
the judgment of the court a quo unjustified conclusions.
The
glaring assumption that has been put forward is that the court a quo
inferred that the applicants were in a wrong forum where
it the
proper reading of the judgment was that the motion court was not an
appropriate court to resolve dispute of facts.
The respondent
correctly dealt and belied this improper reading and interpretation
of the judgment. The applicants did not
show and explain the
prejudice to be caused by arguing the alleged prejudice in the trial
court which is also a competent court
like motion court albeit an
appropriate court in the circumstances. The trial court could
hear all the evidence relating
to the delay from both sides. In
fact, given the long history of the matter and the time lapse since
the charging of the
applicants, it is in the interests of all
affected parties that the court brings finality to the matter.
There are no prospects
of success and the interests of justice demand
that leave to appeal be refused with costs.
ORDER
[20]
I, therefore make the following order:
20.1
Leave to appeal is refused; application for leave to appeal is
dismissed with costs.
_____________
N.P.
JAJI, AJ
On
behalf of the Applicants:
Adv C. Ploos Van Amstel
Adv.G
Langenhoven
Instructed
by:
Bezuidenhout Inc.
BLOEMFONTEIN
On
behalf of the Respondent: Adv. D.
Ntsebeza
Adv.
R. Rathidile
Instructed
by:
State Attorney
BLOEMFONTEIN