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[2014] ZAFSHC 91
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Mbilini v Minister of Defence: S A National Defence Force, Free State and Another (3200/2013) [2014] ZAFSHC 91 (12 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
PROVINCE,
BLOEMFONTEIN
Case
No.: 3200/2013
In
the matter between:
PETER
MBILINI
.......................................................................................................................
Applicant
and
THE MINISTER
OF DEFENCE: S A NATIONAL
DEFENCE
FORCE, FREE
STATE
..............................................................................
First
Respondent
MICHAEL
ALBERTUS VENTER
N.O
...................................................................
Second
Respondent
CORAM:
JORDAAN, J
et
JAJI,
AJ
JUDGMENT:
JAJI, AJ
HEARD
ON:
2 JUNE 2014
DELIVERED
ON:
12 JUNE 2014
[1]
This is an application to review and set aside a decision by the
second respondent, sitting as a senior judge of a Military
Court, to
dismiss the appellant, from service from the first respondent on 23
January 2009. The decision to dismiss the applicant
was upheld on
automatic review on 21 April 2009 by the court of military appeals.
[2]
The application is for an order in the following terms:
“
(i)
Calling upon the respondents, responsible for the decision to dismiss
applicant, to show cause why the decision to dismiss the
applicant on
21 April 2009, should not be reviewed and corrected, or set aside;
(ii) Ordering the
respondents to reinstate the applicant, within 10 (ten) days from the
date this application is finalised: alternatively
(iii)
Ordering the first respondent to remit the matter afresh for
adjudication before a military judge other than the second
respondent;
within 30 (thirty) days from the date this application is
finalised…”
[3]
The application has been delayed for an extended period of almost
2years and 9 months. The applicant alleged that the delay
was
occasioned due to factors beyond his control.
[4]
In the notice of motion, the applicant alleged that after his
dismissal, he instructed a firm of attorneys, Vorster Botha
Bredenkamp
to pursue this matter. He claimed that he was
advised that an employee of the firm who was responsible for the file
did not
do his work. He claimed that the file could not be
located after the employee left the firm of attorneys.
[5]
Applicant claimed that an attorney had to reconstruct the file and
approached the union for confirmation that it would pay the
costs of
bringing this application. To date the union has not confirmed
that it would pay costs incurred as a result of this
review.
Consequently, he claimed that he did not unnecessarily delay this
matter. He averred that it would be unfair
to punish him for a
mistake that occurred in the office of his attorney.
[6]
He further claimed that prospects of success were favouring him and
that there was no prejudice to the respondent as the record
of
proceedings was still available. He alleged that upon factors
considered in their totality, the court can condone an unreasonable
delay where it is clear that the prospects of success were good.
[7]
He submitted that the constitutional court has held that the
applicant must provide a comprehensive explanation for the whole
period of delay.
[8]
The respondent opposed the application. It argued that the
delay in launching the application was unreasonable.
It claimed
that the applicant was vague and devious. The union, under
cover of the letter dated 25 April 2013, confirmed
cover. This
confirmation was three months before applicant deposed to his
founding affidavit.
[9] The respondent
claimed that the applicant does not disclose:
(i) When did he
instruct the firm of attorneys?
(ii) What his
instructions entailed?
(iii) Who the
particular attorney was?
(iv) When the
employee who was allegedly responsible for the file leave?
(v) When and how it
was discovered that the employee did not do his work;
(vi) When and why it
became necessary for the file to be reconstructed?
(vii) Whether the
firm of attorneys now representing him had anything to do with the
firm Vorster Botha Bredenkamp?
(viii) What role did
the attorney who deposed to the confirmatory affidavit dated 21
October 2013 play in this matter?
(ix)
It was not explained why it was necessary to approach the union
before launching this application and what steps (if any)were
taken
to monitor and follow up the matter.
[10]
Respondents contended that all these questions have not been
answered. It claimed that it could not even be said that
the
explanation was weak, there was no explanation at all,
[11]
Upon request by the court to respond to these questions, to give a
comprehensive explanation for the whole period, the applicant’s
legal representative conceded that applicant’s allegations
lacked particularity in the aforesaid respects.
CASE LAW
[12]
The case of
Opposition to
Urban Tolling Alliance & Others v
SANRAL & Others
2013 (4) All SA
639
(SCA), concerned an application for review under Rule 53 for the
setting aside of the decision by SANRAL and the Minister which
gave
rise to the declarations of the roads as toll roads in
2008(28/03/08).
The
application was brought on 23 March 2012 to review the decisions that
gave rise to the declaration of the seven toll roads under
section
27(1) of the SANRAL Act.
The
respondent relied on what has become known as the delay rule i.e.
proceedings for judicial review must be instituted without
unreasonable delay. The court referred for Nugent JA in:
Gqwetha
v Transkei Development Corporation Ltd and Others
2006 (2) SA 603
(SCA) paras [22] – [23]:
“
First,
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, and in my view more
importantly, there is a public interest element in the finality of
administrative decisions and the exercise of administrative
functions.”
[13]
See also
Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41E – F:
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or
acts to be
set aside after an unreasonably long period of time has elapsed
(
interest reipublicae ut sit finis
litium
)… Considerations of
this kind undoubtedly constitute part of the underlying reasons for
the existence of this rule.”
[14]
The rationale is the inherent potential for prejudice, both to the
efficient functioning of the public body and to those who
rely upon
its decisions.
[15]
In
Camps
Bay Ratepayers’ and
Residents’ Association v Harrison and Another
[2010] 2 ALL SA 519
(SCA) para [54]:
“
Whether
or not the delay was unreasonable and, if so, the extent of that
unreasonableness is still a factor to be taken into account
in
determining whether an extension should be granted.”
[16]
In the case of
SANRAL
(supra)
, five years had
lapsed since the impugned decisions were taken. Things have
happened in those five years that cannot be undone.
The delay
rule gives expression to the fact that there are circumstances in
which it is contrary to the public interest to attempt
to undo
history. The application for review could not succeed in those
circumstances.
[17]
See further
Ethekwini
Municipality
v Ingonyama Trust
2014 (3) SA 240
(CC). The SCA having decided in favour of the
respondent. In an application to the Constitutional Court for
leave to
appeal against the decision which was filed more than two
months after the deadline for doing so. The applicant
(municipality)
asked the Constitutional Court for condonation for its
late lodging thereof. The court restated the requirements for
granting
condonation and identified the cause and extent of the
delay, as well as the prospects of success, as the prominent factors
in
determining whether condonation should be granted in that case.
It
held that the application for condonation had to fail for the
following reasons:
(i)
Where the
delay was not short, the explanation given must not only be
satisfactory, but must also cover the entire period of delay.
Apart from being unsatisfactory, the explanation furnished did not
cover the entire period. Consequently, the applicant had
failed
to establish that the non-compliance was pardonable.
The
court noted that the conduct of litigants in failing to observe rules
of the court, is unfortunate and should be brought to
a halt.
The court cannot continue issuing warnings that are disregarded by
litigants. It must find a way of bringing
this unacceptable
behaviour to a stop. One way that readily presents itself is of
the court to require compliance with the
rules and refuse condonation
where these requirements are not met. Compliance must be
demanded, even in relation to rules
regulating applications for
condonation.
The
application for condonation and leave to appeal were dismissed with
costs.
[18]
In the case of
Gqwetha
,
supra
, the
court in a majority judgment held:
“
In
bearing in mind the nature of the decision (dismissal) of the
applicant, the lapse of fourteen months, for which there is no
adequate explanation, was unreasonable and the appeal had to fail.
The court held that the reliance upon absence of the transcript
as a
reason to explain the delay was spurious. The transcript of the
disciplinary had no bearing. Her reason for review
was that the
disciplinary hearing was irregular because she asked for but not
granted postponement.”
[19]
In the matter
Beweging vir
Christelik-Volkseie Onderwys v Minister of Education
[2012] 2 ALL SA 462
(SCA) the court noted the explanation for the
delay as unacceptable. In some instances, no explanation at all
is tendered,
while in others it is so threadbare as to amount to no
explanation. Throughout there is a dearth of detail and where
explanations
were offered, they tend to indicate that the appellants
dragged their heels throughout and did not take steps to safeguard
their
interests with reasonable expedition. The delay was
lengthy and its cause was the laxity and indifference of the
appellants.
In summary, no full and reasonable explanation has
been given for the entire period of delay. The application was
dismissed
without the merits even being considered.
[20]
The trend seems to be the same internationally. In the High
Court of Namibia in the case of
Ogbokor
v Immigration Selection Board and Minister of Home Affairs and
Immigration(A223/11)2012NAHCMD 33(17/10/12)
A delay of eight months in bringing a review application regarding
refusal of a permit was held to constitute an unreasonable
delay.
The court was not satisfied that there was evidential basis laid for
the delay. The applicant was aware of the
decision to refuse
the permit on 4 January 2011. It however only launched the
review application on 2 September 2011.
The court held that the
delay was unreasonable and refused the application.
[21]
In the case at hand, the applicant only brought the review
application two years and nine months later. There is no
explanation at all for the whole period of delay. In any event,
the explanation as terse as it is, is not satisfactory.
Consequently, the application has to fail because of want of
compliance with the rules. Applicant failed to establish that
non-compliance was excusable.
[22]
The application is dismissed with costs.
_____________
N.
P. JAJI, AJ
I
concur.
________________
A.
F.
JORDAAN, J
On
behalf of applicant:. A.P. Berry
Instructed
by:
Bredenkamp
Attorneys
Bloemfontein
On
behalf of respondents: Adv. M.C. Louw
Instructed
by:
State
Attorney
Bloemfontein