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[2013] ZAGPPHC 231
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Ka Mtuze v Judicial Services Commission and Others (22374/13) [2013] ZAGPPHC 231 (1 August 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO. 22374/13
DATE:01/08/2013
In
the matter between:
SIZWE
LINDELO SNAIL KA
MTUZE
......................................................................
Applicant
and
THE
JUDICIAL SERVICES
COMMISSION
..............................................
First
Respondent
THE
HON JUSTICE S
POTTERIL
........................................................
Second
Respondent
THE
CHAIRPERSON: JUDICIAL CONDUCT
COMMITTEE
.................................................................................................
Third
Respondent
Date
of hearing: 1 August 2013
Date
of judgment: 5 August 2013
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside inter alia a decision
made by the third respondent when it dismissed a complaint
against
the second respondent lodged by the applicant. The applicant also
seeks to challenge the validity of s 14(2) of the Judicial
Service
Commission Act 2008, on constitutional grounds. The application has
been enrolled on the unopposed motion roll. None of
the respondents
have filed answering affidavits, and the applicant contends that in
these circumstances, he is entitled to have
the merits of the
application determined. The first and third respondents submit that
the application was improperly enrolled,
and that they remain
entitled to file answering affidavits in due course in accordance
with the provisions of rule 53. Also before
the court is an
application for joinder, in which the applicant seeks to have the
Minister of Justice and Constitutional Development
(‘the
minister’) joined as a party to the application.
Factual
background
[2]
The applicant filed the present application on 16 April 2013. On 8
May 2013, the first to third respondents filed a notice of
intention
to oppose. The second respondent later withdrew her opposition, on
the basis that no relief was sought against her. On
or about 23 May
2013, the first and third respondents filed a notice in terms of Rule
30 A(1), in which they gave notice of their
intention to apply for an
order setting aside the notice of motion and the founding affidavit
as an irregular step, in that the
applicant had failed to join the
minister, and on account of the applicant’s failure to comply
with rule 53 (1), in particular,
to call on the respondents to file a
record of the proceedings under review within the prescribed time
period.
[3]
On 28 May 2013, the applicant filed what he termed an ‘amended
application for review’. In the amended papers, he
cited the
minister as a fourth respondent in the main application, and inserted
a paragraph into the original notice of motion
calling on the first
and third respondents to file the record of proceedings as
contemplated by rule 53. On the same date, the
applicant filed an
application to join the minister. In his founding affidavit, the
applicant states that it had never been his
intention not to cite the
minister; he had assumed that the minister, being a member of the
first respondent, would have been aware
of the application. Be that
as it may, the applicant appeared to concede that where a
constitutional issue is raised (as is the
case in the present
proceedings), rule 10A required the minister to be joined. On 14 June
2013, the state attorney, representing
the first and third
respondents, filed a record of proceedings with the registrar of this
court. On 21 June 2013, the applicant
filed a supplementary
affidavit. Here, the applicant specifically states that the
application is brought in terms of PAJA, and
in accordance with the
rules of procedure for judicial review of administrative action.
[4]
On 21 June 2013, the application was enrolled on the unopposed motion
roll.
Analysis
[5]
I deal first with the application for joinder. The application was
filed, no doubt, in response to the first and third respondent’s
notice in terms of rule 30A (1) and in particular, to the point of
non-joinder taken by them. As I have recorded above, the applicant
has filed an affidavit in support of the application for joinder in
which he concedes that the minister ought properly to have
been cited
as a party to the proceedings, especially in view of the attack on
the constitutional validity of
s 14(2)
of the
Judicial Service
Commission Act, 9 of 1994
.
[6]
Although the amended notice of motion filed by the applicant does not
make any specific reference to his application for joinder,
none of
the respondents were opposed to an order in the terms sought by the
applicant. On the contrary, they agree that the joinder
of the
minister as the responsible executive authority is necessary.
[7]
In these circumstances, I intend to grant an order joining the
minister as a party to the application. There is little point
in
making the customary order to the effect that all pleadings filed of
record be served on the minister; he was represented by
the state
attorney and by counsel and is clearly in possession of all of the
relevant documentation. It follows that the minister,
as the fourth
respondent in these proceedings, is bound by the rules to file any
answering affidavit that he may wish to file within
the time periods
prescribed, which must necessarily commence with effect from the date
of this order.
Rule
53
or
rule 6?
[8]
Turning next to the main application, the crisp issue to be decided
is whether the application was properly enrolled for hearing
on an
unopposed basis. The answer to that question lies, partly at least,
in a determination of the rules that apply to these proceedings.
[9]
The first and third respondents contend that the application before
the court is one properly filed in terms of
rule 53
, the rule
specifically regulating reviews. That rule, briefly described,
requires all review proceedings to be brought by way of
notice of
motion, calling on the decision-maker concerned to dispatch the
record of proceedings under review to the registrar within
fifteen
days after receipt of the notice of motion. (It is common cause that
in the present instance, the record was filed on 14
June 2013, within
the stipulated time limit.) The registrar is thereafter required to
make the record available to the applicant,
who in turn is afforded a
ten-day period within which to file any amended notice of motion
and/or supplementary affidavit.
Rule 53(5)
(b) requires any party
wishing to oppose the granting of the relief sought to file an
answering affidavit “within thirty
days of the expiry of the
time referred to in subrule (4) hereof.” Subrule (4) in turn
refers to the ten-day period within
which the applicant may vary a
notice of motion or file any supplementary affidavit, after receipt
of the record.
[10]
On this basis, counsel for the first and third respondents submitted
that that on the basis that the record had been made available
by the
registrar on 14 June 2013, the ten and thirty-day time periods
contemplated by subrules (4) and (5) (b) respectively expire
on a
date beyond the date on which the applicant filed the notice of set
down. In other words, the filing of the notice of set
down was
premature. In these circumstances, counsel submitted that the
application should be removed from the roll, and that a
punitive
costs order is warranted.
[11]
The applicant disavows any reliance on
rule 53.
His supplementary
affidavit makes reference to the rules of procedure for the judicial
review of administrative action, published
on 9 October 2009.
However, it does not appear that these rules have ever been brought
into operation, and in those circumstances,
the rules of this court
apply. At the hearing of the application, the applicant submitted
that the application had been filed in
terms of rule 6 of the Uniform
Rules, and stood to be dealt with on that basis. In terms of rule 6
(5) (d) (ii), the applicant
submitted that the first and third
respondents had been obliged to file answering affidavits within
fifteen days of the date of
their notice of intention to oppose the
application. Further, in terms of paragraph 13.10 of the Practice
Manual applicable in
this court, the applicant contends that he was
entitled, in the absence of the filing of answering affidavits, to
enroll the application
on the unopposed motion roll.
[12]
Paragraph 13.10 provides:
“
13.10
ENROLMENT OF APPLICATIONS AFTER NOTICE OF INTENTION TO
OPPOSE
1.
Where the respondent has failed to deliver an answering affidavit and
has not given notice only to raise a question of law (rule
6
(5)(d)(iii)) or a point in limine, the application must not be
enrolled for hearing on the opposed roll.
2.
Such an application must be enrolled on the unopposed motion roll. In
the event of such an application thereafter becoming opposed
(for
whatever reason), the application will not be postponed as a matter
of course. The judge hearing the matter will give the
necessary
directions for the future conduct of the matter.
3.
The notice of set down of such an application must be served on the
respondent’s attorney of record.”
[13]
Neither the notice of motion filed on 16 April 2013 nor the amended
notice of motion filed on 28 May 2013 make any reference
to any
statutory provision or any rule in terms of which the application is
brought. To the extent that the applicant asserts that
he relies on
rule 6 read with paragraph 13.10 of the Practice Manual to insist
that the matter proceed unopposed, his conduct of
the present
litigation has not been consistent with this assertion. In
particular, in response to the first and third respondent’s
rule 30 A notice, the applicant amended the notice of motion
specifically to require the respondents concerned to file the record,
on terms that directly reflect the requirement established by rule 53
(1)(b). The amended notice of motion filed by the applicant
reflects
in all respects the procedure established by rule 53 (1) and (2).
Further, after the record was provided to him, the applicant
filed a
supplementary affidavit as contemplated by rule 53(4). Although the
applicant’s submission that he is not necessarily
bound by rule
53 may well be correct (see
1
),
the fact of the matter is that applicant has conducted these
proceedings in a manner entirely consistent with the application
of
rule 53. In my view, the first and third respondents are entitled to
assume that the time limits established by rule 53(5) are
applicable,
and they are entitled to file answering affidavits accordingly.
Having failed to inject the papers with any degree
of specificity in
relation to his cause of action, the applicant appears to have been
content to take advantage of the consequent
uncertainty as a basis to
challenge the respondents’ right to be heard.
[14]
In any event, the application stands to be removed from the roll if
only on account of the qualifications incorporated into
the wording
of item 13.10 of the Practice Manual. Paragraph 1 entitles an
applicant to enroll an application for hearing on the
unopposed roll
after the filing of a notice of intention to oppose if and only if
two requirements are met: first, the failure
by a respondent to file
an answering affidavit and secondly, the absence of any notice of
intention by the respondent to raise
a question of law or a point in
limine. On 23 May 2013, in their rule 30A notice, the first and third
respondents squarely took
the points of non-joinder and the
applicant’s non-compliance with rule 53. At that stage, the
substantive merits of these
points were not relevant; they were
certainly not, as subsequent events have confirmed, an element of a
strategy of delay and the
frustration of the litigation initiated by
the applicant. For this reason alone, the applicant was not entitled
to enroll the application
on the unopposed motion roll.
Costs
[15]
The application for joinder was effectively before the court with the
consent of all of the parties, and I intend to make an
order on the
same basis. In that respect, in my view, there ought to be no order
as to costs. In regard to the main application,
the first and third
respondents have been substantially successful in their opposition to
the applicant’s attempts to have
the application heard on an
unopposed basis. This in itself militates in favour of an order to
the effect that the applicant pay
the costs of the proceedings of 1
August 2013. I must also necessarily take into account the letter
written by the state attorney
to the applicant on 29 May 2013, where
the point is clearly made that in the respondents’ view, the
dies for filing answering
affidavits had not expired and that they
were consequently not in default. Despite this caution, the applicant
elected to enroll
the application on an unopposed basis.
[16]
Counsel for the first and third respondents submitted that the
applicant’s conduct was such that a punitive costs order
is
warranted. While it is true that the applicant has expressed himself
in the papers in terms that might be described as robust,
and even if
I were to accept that he subjectively believes that he has been the
victim of a conspiracy to delay the proceedings
that he has
initiated, it should be recalled that an order for costs on the scale
as between attorney and client is not lightly
granted, and that the
courts are generally loath to penalise a party in this fashion. In my
view, it is just and equitable that
the applicant pays the first and
third respondents’ costs, including the costs of counsel, on
the ordinary scale.
For
these reasons, I make the following order:
1.
The Minister of Justice and Constitutional Development is joined as a
respondent in the main application.
2.
There is no order as to costs in the application for joinder
3.
The main application is removed from the roll.
4.
The applicant is ordered to pay the costs of the costs of the
proceedings on 1 August 2013.
ANDRE
VAN NIEKERK
ACTING
JUDGE OF THE NORTH
GAUTENG
HIGH COURT
SNAIL ATTORNEYS
Applicant’s
Attorneys
101
Java Building, 285 Lynwood Road,
Menlo
Park,
PRETORIA,
0001 Tel: 012 362 8939
THE STATE ATTORNEY
1st
& 3rd Respondents’ Attorneys 316 Salu Building
Cnr
Francis Baard & Thabo Sehume Streets PRETORIA, 0001 Ref:
2934/2013/Z75/js
1
Jockey Club of South Africa v Forbes 1993 (1) 649 (A)