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[2013] ZANCHC 14
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Steele v Minister of Correctional Services and Other and Others (679/2013) [2013] ZANCHC 14 (30 May 2013)
Reportable:
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to Judges:
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to Regional Magistrates
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to Magistrates:
YES
/ NO
YES
/ NO
YES
/ NO
YES
/ NO
IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High Court,
Kimberley)
Case number:
679
/ 2013
Date heard:
17 / 05
/2013
Date delivered:
30 /
05 /2013
In
the matter between:
EUCLID
BRANDON STEELE
........................................................
Applicant
and
MINISTER
OF CORRECTIONAL SERVICE
............................
1
st
Respondent
COMMISSIONER
OF
CORRECTIONAL
SERVICES
...............................................
2
nd
Respondent
DIRECTOR
OF CORRECTIONAL SERVICES
.........................
3
rd
Respondent
CHAIRPERSON
OF THE
CASE
MANAGEMENT COMMITTEE
......................................
4
th
Respondent
CHAIRPERSON
OF CORRECTIONAL
SUPERVISION
AND PAROLE BOARD
.................................
5
th
Respondent
Coram:
Erasmus,
AJ
JUDGMENT
ERASMUS, AJ
[1] The applicant, an inmate in die
Kimberley Correctional Centre, lodged an urgent application 22 April
2013. For purposes of this
judgment it is not necessary to deal with
the alleged urgency and the relief sought.
[2] When the application was
postponed on 10 May 2013, the Kimberley Justice Centre was instructed
to entertain an application for
legal aid by the applicant and, if
possible, to assist the applicant in this matter.
[3] The respondents who filed a
notice of intention to oppose the application on 22 April 2013 and
filed opposing papers on 16 May
2013.
[4] On 17 May 2013 Mr Mayisela of
the Kimberley Justice Centre, as requested by the Court to do, was
present in Court and placed
on record that the Kimberley Justice
Centre will not represent the applicant. He placed on record that he
consulted with the applicant
on the merits of the application and
that the applicant seeks to withdraw the application. As Mr Mayisela
did not hold formal instruction
to appear on behalf of the applicant
in the matter, I enquired from the applicant as to what his
intentions were. The applicant
confirmed that he sought to withdraw
the application.
[4] Mr Lategan, for the respondents,
confirmed that the respondents consented to the withdrawal of the
application. The withdrawal
of the application was noted. Mr Lategan
proceeded by requesting that a cost order be made against the
applicant. Mr Mayisela,
although not acting for the applicant,
indicated that the applicant, being a lay person, should not be
burdened with a cost order.
[5] The applicant, at that stage of
proceedings, had not filed a notice of withdrawal. There was no
tender of costs in court.
[6] Rule 41 of the Uniform Court
Rules reads as follows:
“
(1)
(a)
A person instituting any proceedings may at any time before the
matter has been set down and thereafter by consent of the parties
or
leave of the court withdraw such proceedings, in any of which events
he shall deliver a notice of withdrawal and may embody
in such notice
a consent to pay costs; and the taxing master shall tax such costs on
the request of the other party...
(c)
If no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an order
for costs.”
[7] The applicant has not delivered
a notice of withdrawal, as is prescribed in Rule 41(1)(a). Until such
time as the applicant
delivers the notice of withdrawal, irrespective
whether he consents to pay costs or not, no cost order can be made.
If no consent
to pay costs is embodied in the notice of withdrawal,
the respondents are entitled to apply to Court, on notice to the
applicant,
for an order for costs.
[8] Given the fact that the
applicant is a lay person and does not have legal representation, I
deem it necessary to give further
directions in this matter and make
the following order:
THE APPLICANT IS DIRECTED TO
FILE A NOTICE OF WITHDRAWAL WITH THE REGISTRAR AND THE STATE
ATTORNEY WITHIN 30 DAYS OF THIS ORDER;
THE REGISTRAR IS ORDERED TO HAVE
A COPY OF THIS ORDER DELIVERED TO THE APPLICANT AT THE CORRECTIONAL
CENTRE WHERE HE IS CURRENTLY
BEING DETAINED.
______________________
SL ERASMUS
ACTING JUDGE
NORTHERN
CAPE DIVISION
For the
Applicant:
In person
For the
Respondent:
Mr Lategan
State Attorney,
Kimberley