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[2014] ZAGPPHC 255
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Raaff v Minister of Defence And Military Veterans and Others (55030/2012) [2014] ZAGPPHC 255 (25 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 55030/2012
DATE:
25 APRIL 2014
In the matter
between
BARRY WILLIAM
RAAFF
................................................................................................................
Applicant
And
MINISTER OF
DEFENCE & MILITARY
VETERANS 1
st
.......................................................
Respondent
COL PV NOMOYI
NO
...........................................................................................................
2nd
Respondent
HON. JUDGE
PRESIDENT BM NGOEPE
NO
...................................................................
3rd
Respondent
MAJ GEN V L
SINDANE
NO
................................................................................................
4th
Respondent
COL A M KOLBé
NO
..............................................................................................................
5th
Respondent
JUDGMENT
ISMAIL J:
[1] Mr Raaff, the
applicant, in this matter, brought an application wherein he sought
an order in the following terms:
1. That, to the
extent necessary, the period of 180 days, referred to in
section 7
of the
Promotion of Administrative Justice Act 3 of 2000
, be extended
from the date of the expiry thereof to a date one day after is
application is served on the last of the Respondent;
2. reviewing and
setting aside of the decision by the Second Respondent, as the
Presiding Senior Military judge of a Court of Senior
Military Judge
held at Pretoria, in terms of which Applicant was convicted and
sentenced to “Dismissal from the SANDF”
ON 11 June 2008,
alternatively declaring the said proceedings and/or decision by the
Second Respondent null and void ab ignition.;
3. reviewing and
setting aside of the decision by the Court of Military Appeals held
at Pretoria, under the chairmanship of the
Third Respondent and with
the Fourth Respondent and the Fifth Respondent as the other two
members thereof, taken on 189 November
2008 in terms of which the
said conviction was confirmed and the said sentence was varied to
“Reduction to the lower commissioned
rank of Captain”;
4. referring the
matter back to a Court of Senior Military Judge, to be heard afresh
by a different Presiding Senior Military Judge;
5. reinstating the
Applicant in the rank of Major, with retrospective effect as from 1
June 2008, on the terms and conditions that
would have applied to him
as from that date;
6. for the
back-payment of remuneration, calculated from 11 June 2008,
alternatively from 18 November 2008, further alternatively
from such
date as the Honourable Court deems fair and reasonable on the basis
of the terms and conditions that would have applied
to the Applicant
as from the relevant date;
7. that the
Respondents pay the costs of this application jointly and severally,
the one to pay the other to be absolved and including
the costs of
two counsel;
8. for such further
and/or alternative relief as the Honourable Court deems fit; and that
the accompanying affidavit of BARRY WILLIAM
RAAFF will be used in
support thereof.
Background
[2] The applicant
was a Colonel in the South African National Defence Force. He was
charged with an offence of assault with the
intention to do grievous
bodily harm. It was alleged that on the 22 April 2005, he assaulted
staff sergeant, Kagiso Mampe, with
the intention of causing him
grievous bodily harm.
[3] The matter was
heard before the court of Senior Military Judge who presided in the
matter. Upon conviction of the applicant
the court made a finding
that the applicant be dismissed from the military.
[4] Pursuant to the
court’s finding the matter went on appeal to the Court of
Military Appeals. This court was composed of
Judge President Ngoepe,
the third respondent and two senior officers. The Court of Military
appeals (hereinafter referred to as
Appeal Court) confirmed the
conviction and set aside the sentence. The original sentence imposed
was replaced with the sentence
that the applicant’s rank be
reduced from colonel to that of captain.
[5] The finding was
made by the Appeal Court on the 18th of November 2008.
[6] The applicant
launched review proceedings in terms of the Promotion of the
Administrative Justice Act no 3 of 2000 (PAJA).The
applicant’s
case being that the hearing before the senior military judge should
be set aside on the basis of legality, in
that the proceedings were
ultra vires. The reason being that no preliminary enquiry was held
prior to the trial, in terms of section
29 (3) (f) Military
Discipline Supplementary Measures Act 16 of 1999 (hereinafter
referred to as the MDSMA).
Section 29 (3) (f)
stipulates:
“(3) When a
person is brought in terms of this section before a military court
other than a disciplinary hearing, that court…
(f) shall in every
case where the offence charged is not a military disciplinary offence
cognisable by a disciplinary hearing,
direct that a preliminary
investigation be held;…”
[7] The review
application was launched on the 20 September 2012, approximately 4
years subsequent to the Court of Military Appeals
findings in this
matter. It is clear that the delay in this matter by far exceeds the
period of 180 days, prescribed in terms of
section 7 of PAJA. For
this reason the applicant seeks an order, for condonation, in terms
of prayer 1 of the Notice of Motion.
Undue Delay
[8] On behalf of the
respondents the argument advanced was that there had been an undue
delay on the part of the applicant to bring
this matter in terms of
PAJA.
[9] It was submitted
on behalf of the respondents that the applicant did not deal, at all,
with the question of undue delay in his
heads of argument apart from
submitting that Section 9 of PAJA should be considered as it would be
in the interest of Justice to
do so.
[10] I do not
propose to deal with the applicant’s dilatoriness in great
detail. Apart from stating that in summary, the applicant
seems to
suggest that it was always his intention to take the matter further.
He experienced certain financial constrains due to
his demotion in
rank, and that he consulted numerous legal representatives and could
not afford their fees. His present attorneys
in turn briefed counsels
who were amenable to doing the work on a contingency fee basis. There
had been a delay in drafting the
papers as both his counsel were
otherwise engaged in other matters.
[11] On behalf of
respondents, Mr Dreyer SC, submitted that before the court even
entertained the merits of the matter the question
of the time delay
should be considered. The court should consider the inordinate delay
within which this matter was brought. Mr
Dreyer submitted that even
in terms of the common law the application was not brought within a
reasonable period.
There are two
reasons for bringing the application within the structure set out in
PAJA or in terms of the common law within a reasonable
period. The
first being that the failure to bring the review within a reasonable
time will cause prejudice to the respondents and
secondly there is a
public interest element namely that the formality of the
administrative decisions and the exercise of the administration
should be exercised and be finalised reasonably.
The question which
needs to be determined is whether the 4 year period which the
applicant took to bring this matter under review
should be condoned.
This issue must be seen in the light of the judicial precedent.
In the matter of
Opposition to Urban Tolling Alliance and Others v The South African
Roads Agency Limited and Others a judgment
of Brand JA in the Supreme
Court of Appeal under case number
90/2013 particularly
at para [36] and [38] the court stated:
“ [36] the
fourth basis invoked by the appellants as to why the 180 day time bar
should be extended was that it was the requirement
of the rule of
law that the exercise of all public power should be lawful and that
SANRAL and the government has failed to act
legally. As I see it,
however, the argument is misconceived. While it is true that the
principle of legality is constitutionally
entrenched, the
constitutional enjoinder to fair administrative action, as it has
been expressed through PAJA expressly recognises
that even unlawful
administrative action may be rendered unassailable to delay.”
Further on at para
[38] the learned judge continued;
“ [38]
However, the passage in Oudekrall upon which the appellants rely in
authority for the contrary. The passage makes clear
that, unless an
invalid administrative act is set aside by a competent court, it is
regarded as valid for the purposes of consequent
acts. This is
supported by the following statement in the unanimous judgment by the
Constitutional Court in Camps Bay Ratepayers’
& Residents’
Association and another v Harrison and another
2011 (4) SA 42
(CC) at
para 62:‘As was explained in Oudekrall estates (Pty) Ltd v City
of Cape Town and others [par 31] administrative decisions
are often
built on supposition that previous decisions were validly taken and
unless that previous decision is challenged and set
aside by a
competent court , its substantive validity is accepted as a fact.
Whether or not it was indeed valid is of no consequence.”
[12] Gqwetha v
Transkei Development Corporation Limited and Others
2006 (2) SA 603
(SCA) the majority judgment handed down by Nugent JA at para 25
thereof stated:
“[25] The
challenged decision in the present case was a decision to dismiss the
appellant for complicity in financial irregularities.
A decision of
that kind will necessarily have immediate consequences for the
ordinary administrations of the organisations, and
for other
employees who will be called upon to perform the functions of the
dismissed employee or even to replace her….
The very nature of
such decision speaks of the potential for prejudice if they were all
to be capable of being set aside on review
after the lapse of any
considerable time”
At para 32 of the
judgment Nugent AAJ continued and stated the following:
“[32] As
pointed out by Mpati DP the learned Judge exercised his discretion in
that regard solely on the grounds that the
period of delay was ‘
not very long’ and that the appellant was ‘quiet strong
on the merits of the application’.
I agree with the Court a quo
that the approach of the Learned Judge was unduly narrow.
[33] As to the first
ground upon which the learned Judge exercised his discretion, the
delay cannot be evaluated in a vacuum but
only relative to the
challenged decision, and particularly with the prejudice in the mind.
In abstract terms the period of delay
might be described as being
‘not very long’ but it was correctly found to have been
unreasonable…”
[13] Counsel for the
respondents submitted that the delay in bringing this review
application was inordinately lengthy. Furthermore,
the applicant did
not tender a full explanation regarding why the delay lasted for
four years. In general terms his explanation
was that he was
impecunious and that his attorneys and counsel were prepared to do
the matter on a contingency fee basis. In general
terms he
stated that he saw
several counsel sought to be paid and were not prepared to do the
matter on a contingency fee basis. However,
the applicant failed to
mention who these counsel were whom he approached and more
particularly when he approached them.
[14] There had been
a time delay of several months from the time his attorney settled the
draft of his papers in April. These documents
were only given to the
junior counsel in November. No reasons whatsoever were furnished for
the delay of that six months period
by the applicant. In addition the
applicant suggested that this was a complicated matter which
required the expertise of legal
practitioners who specialised in
military matters. Mr Dreyer on the other hand submitted that the
trial before the Senior Military
Judge was nothing other than a
criminal proceeding in a military setting.
[15] It was
submitted on behalf of the respondents that nowhere in the papers
does the applicant depose to the fact that he constantly
enquired
from his attorney about the progress of
the application.
[16] Counsel for
the respondents submitted that the court should dismiss the
application with costs solely on the grounds of the
undue delay in
this matter. In this regard it would be prudent to mention what Mpati
DP in the Gqwetha matter, supra, stated at
para [5] at page 606:
“[5] The
attitude of our courts when faced with the issue of delay in matters
of this nature is neatly captured by Brand JA
in Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA)
([2004]
4 All SA 133)
at 321B (SA) as follows:
‘[46]…
it is a long standing rule that the courts have the power, as part of
their inherent jurisdiction to regulate
their own proceedings to
refuse a review application if the aggrieved party had been guilty of
unreasonable delay in initiating
the proceedings. The effect is that,
in a sense, delay would “ validate” the invalid
administrative action . (see e.g
Oudekraal Estates (Pty) Ltd v City
of Cape Town and Others
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1)
at
para [27]). The raison d’etre of the rule is said to be
twofold. First, the failure to bring a review within a reasonable
time may cause prejudice to the respondent. Secondly, there is a
public interest element in the finality of the administrative
decisions and the exercise of administrative functions.(see eg
Wolgroeiers Afslaers ( Edms) Bpk v Munisipaliteit van Kapstaad
1978
(1) SA 13
(A) at 41).
[17] Cora Hoexter
in her book Administrative Law in South Africa (2012) explained the
effect of unreasonable delay as follows:
“ [I]t is
possible for a delay to be found to be unreasonable even if
proceedings are brought within the 180 day limit.”
In the matter of
Thabo Mogudi Security Services CC v Randfontein Local Municipality
[2010] 4 All SA 314
(GSJ) at para [59] the court adopted the view
that:
“ Section 7(1)
requires that the proceedings for judicial review must be instituted
without unreasonable delay and not later
than 180 days..” this
entails a twofold enquiry: the first is whether the proceedings were
instituted “ without unreasonable
delay”. If they were
not, then the enquiry ends there, without having regard to whether
such proceedings were instituted
within the period of 180 days. In
other words, a period less than 180 days could be found by the court
to constitute unreasonable
delay.”
[18] I am inclined
to agree with respondents’ counsel, Mr Dreyer’s, argument
that this application was launched after
a considerable period, which
in my view is neither reasonable
nor tenable.
However, Mr Oosthuizen SC, on behalf of the applicant, submitted
that the applicant’s case was strong on the
merits and for that
reason the delay should be
condoned.
[19] I have
entertained and considered Mr Oosthuizen’s argument before me
regarding the failure of the Senior Military Judge
to hold a
preliminary enquiry. I also considered the decisions which I was
referred to regarding the failure to hold the preliminary
enquiry.
Amongst the cases I was referred to was the Jacobs matter in the
Court of Military Appeals heard by the Honourable Judge
Mbha
and Colonel Step and
colonel Taljaard, as well as the matter of Sgt Thomas Oscar Maluleke
heard in the Court of Military Appeals
before the honourable Judge ML
Mailula
and colonel Zimmer
and Colonel Kolbe.
[20] Mr Oosthuizen’s
argument is premised on the principle of Legality. He submitted
that a preliminary enquiry was peremptory.
According to him a failure
to hold a preliminary enquiry rendered the proceedings annulity. This
aspect,namely the failure to hold
a preliminary enquiry was never
raised at the hearing of Military Court of Appeal. This point is
raised for the first time in the
review proceedings before me. In my
view the Oudekraal principle applies.
[21]Mr Oosthuizen
submitted that there would be no prejudice to third parties in that
any appointment made as a consequence of the
applicant’s
lowering in rank would not have to be set aside in view of him
having been subsequently promoted to colonel
again. The only aspect
that would need consideration would be the financial difference which
the applicant suffered as a consequence
of his rank being lowered to
captain from that of a colonel. In other words the difference in
salary which the applicant earned
by his rank being lowered from that
referred to above.
[22] I will briefly
deal with the grounds of review which the applicant raised. I do not
propose to deal with each and every ground
raised by the applicant.
Some of the grounds were not abandoned however they were not
strenuously argued before me. The most significant
ground being that
the preliminary investigation was not held at the first disciplinary
investigation of the applicant. The second
ground of review
being that Major Selolo was not present at the preliminary
investigation. (Major Selolo being the military prosecution
counsel).
Another ground of review being that on 29 June 2006 the applicant was
warned with a charge of assault with intention
to do grievous bodily
harm against him, however the fact of his arrest on the 23rd of June
was simply ignored.
[23] Section 30 (11)
of the MDSA reads as follows:
“(11) When a
preliminary investigation is held in respect of any offence other
than an offence referred to in subsection (8),
the prosecution
counsel shall-
(a) read over to
the accused the particulars of each witness and-
(I) a summary of the
available evidence from whichever sources
which each such
witness will give; or
(ii) a signed
statement of a witness; or
(b) call witnesses
to give evidence viva voce and under oath, in which event subsections
(8), (9) and (10) shall apply, subject
to the necessary changes.
Mr Dreyer submitted
that the prosecutor was of the view that a sentence not exceeding 10
years will be imposed therefore the leading
of evidence was not
required. The test to be applied in this regard was an objective one.
Mr Oosthuizen on the other hand submitted
that a test cannot be
applied when one starts out with an investigation. One would have no
idea how serious the matter would turn
out to be. He submitted that
the correct test would be to determine the maximum sentence that can
be imposed as a penalty by the
court for that offence and therefore a
preliminary investigation should have been held. I beg to disagree
with the learned senior’s
argument as the prosecutor seized
with the matter would have been in possession of the witnesses’
statement and he/she would
be able to make a decision whether the
matter would call for a 10 year term of imprisonment upon conviction
or a lesser period.
[24] Mr Dreyer
submitted that the applicant had the statements of the various
witnesses who testified and that there was no prejudice
to the
applicant as he was aware of the allegations against him which the
witnesses made. Furthermore, the applicant was represented
during the
trial by an experienced person. The applicant also raised a ground of
review to the effect that his counsel was not
suitably qualified and
as a consequence he did not receive a fair trial. For this reason the
review should succeed. In this regard
Mr Dreyer relied upon R v
Matonsi
1958 (2) SA
450
AD at 456A-H
where Schreiner stated at 456 B-C: “The English cases show that
in general, trials cannot be conducted partly
by the client and
partly by counsel. Once the client has placed his case in the hands
of counsel the latter has complete control
and it is he who must
decide whether a particular witness, including the client, is to be
called or not.”
In Hlobo v
Multilateral Motorvehicle Accident Fund
2001 (2) SA 59
(SCA) 65 C- E
the following was stated:
“What is more,
in this country (as in England) the conduct of a party's case at the
trial of an action is in the entire control
of the party's counsel.
Counsel has authority to compromise the action or any matter in it
unless he has received instructions
to the contrary. In England his
apparent authority to compromise cannot be limited by instructions
unknown to the other party.
Halsbury's Law of England 4th ed vol 37
para 511. Counsel's general authority in South Africa is similar. R v
Matonsi
1958 (2) SA 450
(A)per Schreiner JA at 456A - H and Benjamin
v Gurewitz
1973 (1) SA 418
(A) at
428E - F. At the
stages prior to the assumption of control by counsel the attorney of
record stands in the same position.”
[25] Interestingly
the Senior Military Judge informed the applicant that he must
challenge whatever a witness said against him
which he did not agree
with. The applicant was warned of this, notwithstanding the fact that
he was represented during the proceedings.
At page 296 line 30 to 35
of the record a conscious decision was taken between the applicant
and his counsel that they were not
going to dispute the evidence
regarding the assault in the work shop. During cross examination it
was put to him that these aspects
were not disputed.
[26] Having read
through the record I am of the view that the applicant is
unjustifiably blaming his lawyer for the manner in which
the trial
was conducted. At best his legal representative could be criticized
for failing to raise the aspect of a preliminary
enquiry being held
as was argued before me.
Mr Dreyer also
submitted that in the definition section of PAJA in terms of para
(ee) the following is stated: which adversely affects
the rights of
any person and which has a direct, external legal effect, but does
not include-
(aa)…
(ee) “the
judicial functions of a judicial officer of a court referred to in
section 166 of the Constitution or of a Special
Tribunal established
under section 2 of the Special Investigating Units and Special
Tribunals Act, 1996 (Act 74 of 1996), and the
judicial functions of a
traditional leader under customary law or any other law;”
Mr Dreyer submitted
that the hearing of the Senior Military Judge and the Military Court
of Appeal were excluded in terms of the
provisions of para (ee) of
PAJA.
[27] Examining the
totality of the arguments advanced before me by both parties I am of
the view that the time periods prescribed
by PAJA should not be
extended and for that reason the application should be dismissed due
to the undue delay in bringing the application.
Having said that it
must not be assumed that the merits of the matter were not be
entertained. In fact the merits was entertained
in me arriving at
this conclusion.
[28] Accordingly I
make the following order:
The application is
dismissed with costs. Such cost to include the cost of senior and
junior counsel.
APPEARANCES:
For the
Applicant: Adv M Oosthuizen SC assisted by Adv H A Percival
Instructed by Van Schalkwyk attorneys ,
Pretoria.
For the
Respondents: Adv J H Dreyer SC assisted by Adv Z Z Mastebane
Instructed by State Attorneys Pretoria.
Date of hearing:
3 March 2014
Date of Judgment:
25April 2014.