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[2012] ZAGPPHC 282
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Mosidi v Minister of Justice and Constitutional Development and Others (45193/2012) [2012] ZAGPPHC 282 (20 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 45193/2012
Date:
20 November 2012
In
the matter between:
A
M
MOSIDI
.............................................................................................................
Applicant
And
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
…................................
1
st
Respondent
DEVELOPMENT
THE
DIRECTOR GENERAL: DEPARTMENT OF JUSTICE
….........................
2
nd
Respondent
AND
CONSTITUTIONAL DEVELOPMENT
P
NKUTHA
N.O.
........................................................................................................
3
rd
Respondent
(in
her capacity as Chairperson of the disciplinary hearing against the
Applicant
JUDGMENT
PRETORIUS
J.
[1]
In this application the applicant
approaches the court on an urgent basis requesting the disciplinary
hearing to be postponed pending
the outcome of the main application
and other related relief.
[2]
The applicant is the State attorney for
Pretoria who has been suspended since April 2012, pending a
disciplinary hearing.
[3]
The disciplinary hearing was to commence
on 12 July 2012, but was postponed as the final charge sheet had not
yet been served. The
proceedings were postponed to 22 October 2012.
The final charge sheet was served on 6 August 2012. On 31 August 2012
the applicant
requested financial assistance for her legal fees for
the preparation and conduct of the proceedings from the respondents.
[4]
On 22 October 2012 a further request for
postponement was launched by the applicant to have the disciplinary
hearing postponed to
enable the applicant to finalize an application
to the High Court to order the respondents to grant the applicant
assistance with
her legal costs in the disciplinary proceedings. The
third respondent granted the postponement. The proceedings were
postponed
to commence on 19 November 2012. The applicant contends
that the postponement for 3 weeks does not afford her enough time to
arrange
for her house to be sold to enable her to finance her legal
costs. Furthermore the so-called main application requesting the
court
to order the respondents to pay her legal costs has not been
set down as yet.
[5]
Mr Celliers, for the applicant, argued
that solely on the balance of convenience the application should be
granted. In Tshabalala
v Minister of Health
1987 (1) SA 513
WLD
Goldstein J held at p 523:
“
The
balance of convenience, in my opinion, is heavily on the side of the
second applicant. If he is not temporarily reinstated,
he might
irrevocably lose the opportunity of qualifying as a nurse, and apart
from that he will lose what he says is his only source
of income.”
(Courts
emphasis)
[6]
In this instance the applicant will be
severely prejudiced if she has to proceed without legal
representatives where the respondents
are represented by senior and
junior counsel. The respondents’s prejudice will be much less.
The applicant’s service
of 30 years may be terminated as a
result of the disciplinary action and she is entitled to have legal
representation. If her employers
do not pay for her legal
representation she must be prepared to do so herself. She will have
to find another means to fund it,
but cannot hold the respondents at
ransom indefinitely by indicating that she will have to sell her
house for funds.
[7]
Mr Pelser, for the respondents, is
correct when he argues that she will not be entitled to the most
expensive counsel, but the court
finds that, in these circumstances,
she is entitled to legal representation. She may suffer irreparable
harm if the relief is not
granted.
[8]
I have considered all the facts and
arguments by both parties and have come to the conclusion that the
applicant is entitled to
relief as she had made out a prima facia
case and has no other satisfactory remedy.
[9]
Having decided this, I must however take
into consideration that she has been delaying the disciplinary
hearing for some time. The
court must indicate that the hearing must
commence as soon as possible. The applicant must be prevented in
delaying the inevitable
further. Therefore certain time limits will
be prescribed.
[10]
The following order is made:
1.
The
application is urgent;
2.
The respondents are prohibited to
proceed with the disciplinary proceedings instituted against
applicant and set to commence on
the 23
rd
of November 2012 pending the finalisation of the application by
applicant for financial assistance with her legal fees already
issued
in this court;
3.
Counsel
for the applicant and respondent must approach the Deputy Judge
President for a date for the hearing of the application
for financial
assistance with her legal fees on or before 23 November 2012;
4.
A date for the disciplinary hearing must
be set down within 7 days after judgment had been delivered in above
mentioned application;
5.
Each party to pay its’ own costs.
Judge
Pretorius
Case
number : 60444/2012
Heard
on : 19 November 2012
For
the Applicant / Plaintiff : Adv JG Cilliers SC
Instructed
by : Geyser en Coetzee
For
the 1
st
Respondent : Adv Q Pelser SC
:
Adv B Matlejoane
Instructed
by : Mponya Ledwaba
Date
of Judgment : 20 November 2012