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
>>
2013
>>
[2013] ZAGPPHC 517
|
|
Van Den Berg v Minister Of Defence and Others (32820/2013) [2013] ZAGPPHC 517 (17 September 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 32820/2013
DATE:
17/10/2013
In
the matter between:
BAREND
JACOBUS VAN DEN
BERG
...................................................
Applicant
PLAINTIFF
And
THE
MINISTER OF
DEFENCE
....................................................................
1st
RESPONDENT
THE
SECRETARY FOR DEFENCE
….......................................................
2nd
RESPONDENT
THE
CHIEF OF THE
SAND
F.............................................................
.........
3rd RESPONDENT
THE
CHIEF OF THE S.A.
ARMY
......................................................
..........
4th RESPONDENT
GENERAL
OFFICER COMMANDING,
SOUTHAFRICAN
ARMY SUPPORT FORMATION
…...............................
5th
RESPONDENT
GENERAL
OFFICER COMMANDING,
SOUTHAFRICAN
ARMY SUPPORT BASE, BLOEMFONTEIN
.................
6th
RESPONDENT
COLONEL
J.S.
MALEPE
......................................................................
......
7th RESPONDENT
DATE
HEARD: 17th SEPTEMBER 2013
DATE
JUDGMENT HANDED DOWN: 17th OCTOBER 2013
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL AND APPLICANT’S RULE 49(11)
APPLICATION
EBERSOHN
AJ
[1]
After this Court granted the interim interdict to the applicant, the
respondents applied for leave to appeal and will be referred
to
herein as "the respondents". The applicant on the other
hand applied for an order in terms of Rule 49(11). The applicant
will
be referred to as such in this judgment.
[2]
It is clear that the relief granted is only interim in nature.
[3]
About the only merit in the application for leave to appeal is the
correctness of the reference to the typing error in the judgment
where “section 49" was typed instead of “section
50".
[4]
As the Court only granted an interim order, cases such as
Airoadexpress (Pty) Ltd v Chairman, Local Transportation Board,
Durban and Others
1986 (2) SA 6
AD and
South African National
Defence Union & Others v Minister of Defence (T)
case
15790/2003 dated 14 July 2003 as referred to in
South African
National Defence Union & Others v Minister of Defence &
Others
2007 (5) SA 400
(CC) at p. 415A, apply.
[5]
At the hearing of the application for leave to appeal the Court
questioned counsel for the respondents as to when the grievance
procedure will be finalised and counsel, obviously expecting the
question, immediately shrugged his shoulders and responded by
answering to the effect of “Don't ask me". At the initial
hearing of the matter the Court got the clear impression that
the
respondents were not candid with the Court, lies were told to the
Court in the affidavits, perjury was committed and now the
Court is
faced with some respondents being obstructive of the applicant's
rights to have his grievance being dealt with.
[6]
The respondents, instead of putting a logically phrased application
for leave to appeal before this Court, put an
argumentatio
be
lore this Court ard the Court had to screen the document to tty and
figure out what exactly the alleged grounds were.
[7]
The first is that the Court erred with regard to the provisions of
section 50(5)(b) of the Defence Act to be tested against
the
provisions of scction 33 of the Constitution and the "Interim
Procedure Instruction’' issued by Gen. Nyanda. With
regard to
the latter it was blandly stated that as the present Defence Act came
into effect on 23 May 2003, i.e. after the Interim
Procedure
Instruction of Gen. Nyanda, the latter was no longer of effect. Just
like that. No motivation and no authority quoted.
It show's a poor
knowledge of the military by those who instructed counsel. A perusal
of the Defence Act will in any case show
that the Defence Act did not
repeal the Interim Procedure Instruction.
[8]
The second is that the Court erred in extending the lifespan of the
interim interdict further than which the applicant originally
asked
for. When the Court deliberated about the initial order to be made
the Court was acutely aware of the reluctance of the respondents
to
deal with the applicant's grievance for some undisclosed reason and
to prevent the respondents from sidestepping the issue by
some or
other ploy or delay the Court in terms of its discretion and under
alternative relief as claimed in prayer 7 of the notice
of motion the
Court decided to pin the respondents down and make the order it did
and extended the period.
[9]
The third ground, namely that the transfer of the applicant from
Bloemfontein to Limpopo would not have devastating consequences
for
the applicant, clearly shows that the author of the application for
leave to appeal did not read the papers or was just being
mischievous.
[10]
The fourth ground was that the applicant did not lodge the grievance
timeously. The papers were not closely read by the drafter
of the
application for leave to appeal and this ground is also incorrect and
not applicable...
[11]
The fifth ground is that this Court erred with regard to General
Marumo not being a truthful witness. This Court ordered that
the
matter of his perjury be referred to the Director of Public
Prosecutions. His perjury was clearly demonstrated in the judgment.
It is noted that his perjury is now admitted but is referred to as
''unintentional". How' such clear perjury could be described
as
"unintentionally" boggles the mind. The fact that he had no
knowledge of the Interim Procedure Instruction was demonstrated
by
himself.
[12]
The sixth ground is that the Court erred in holding that the
respondents and the leadership of the Defence Force have a “peculiar
malicious attitude” vas also demonstrated by their conduct and
utterings which were recorded, transcribed and quo.ed in the
judgment.
[13]
The seventh ground is that the Court erred in finding that other
candidates were interviewed for the transfer but not the applicant.
This is not a ground of appeal at all. When the matter eventually
goes on trial and/or a hearing this aspect can be resolved by
the
calling of witnesses and cross-examination.
[14]
The interim order is not appealable and in any case this Court is not
prepared to exercise any discretion in favour of the
respondents .
[15]
Before the Court is also a Rule 49(11) application by the applicant.
[16]
The respondents have since March 2013 endeavoured to evade their
responsibilities towards the applicant and it can be expected
that
they may also attempt to obtain leave to appeal from another Court
and so stall the matter. If that happens the applicant
will have no
alternative but to succumb to his uprooting. This Court therefore
will grant an order in terms of Rule 49(11).
[17]
The following order is made:
1.The application for
leave of the respondents to appeal is refused.
2. The applicant's
application in terms of Rule 49(11) is granted and it is ordered that
the operation and execution of this Court's
order shall not be
suspended, pending the decision of any appeal or application for
leave to appeal to any court.
3.The First respondent is
ordered to pay the costs of the application for leave to appeal and
also the costs of the applicant’s
Rule 49(11) application which
costs will include the costs of a senior counsel.
P.Z. EBERSOHN
ACTING JUDGE OF THE
HIGH COURT
Applicant's
counsel
........................................................
Adv.
M.C. Erasmus SC
Applicant’s
attorneys
.....................................................
Gricscl
Breytenbach Attorneys
.......................................................................................
Tel.
012 343 2407
........................................................................................
Ref.
Mr. Griesel/7142/HVZ
Respondents'
counsel
.....................................................
Adv.
T.J.B. Bokaba SC
Respondents'
attorneys
...................................................
State
Attorney
........................................................................................
Ref.
3487/13/Z39/MFM
........................................................................................
Mr.
M. Mhambi
........................................................................................
Tel.
012 309 1500