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[2012] ZAECBHC 4
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Hoho v Speaker of the Eastern Cape Legislature and Another (11/2011) [2012] ZAECBHC 4 (26 April 2012)
IN
THE EASTERN CAPE HIGH COURT
BHISHO
CASE
NO. 11/2011
DATE
HEARD: 24 APRIL 2012
DATE
DELIVERED: 26 APRIL 2012
NOT
REPORTABLE
In
the matter between:
KERR
HOHO
PLAINTIFF / APPLICANT
and
SPEAKER OF THE EASTERN CAPE
LEGISLATURE
1
ST
DEFENDANT/ 1
ST
RESPONDENT
SECRETARY TO THE
EASTERN CAPE LEGISLATURE
2
ND
DEFENDANT
/ 2
ND
RESPONDENT
JUDGMENT ON PLAINTIFF’S /
APPLICANT’S APPLICATION FOR LEAVE TO APPEAL
VAN
ZYL J:
[1]
The defendants (respondents in the application for leave to appeal)
raised an exception
to the plaintiff’s (applicant in the
application for leave to appeal) particulars of claim that was upheld
by this Court
with costs. It was as a result ordered that
paragraphs [6.5] and [13] of the particulars of claim and paragraph
(a) of the
relief claimed therein be set aside. The plaintiff
was however given leave to amend and to cure the deficiencies therein
complained of. The plaintiff decided not to avail himself of
that opportunity, choosing instead to apply for leave to appeal
against the order of this Court. There may be merit in the
defendants’ argument that the order is not final in its
effect. I will however in favour of the plaintiff and for
purposes of this application alone accept that the order upholding
the exception is a final order and that it is appealable.
[2]
The plaintiff’s first complaint in his notice of appeal is that
this Court displayed
bias in the manner in which it dealt with the
defendants’ exception. At the
heart
of this complaint is the assertion that the Court advised the
defendants’ legal representative to “make changes”
to the exception raised and ignored the plaintiff’s “expressed
desire to be equally rescued,” presumably from
the defects in
his particulars of claim and in respect whereof the exception was
raised. This ground of appeal is without
merit. As stated
in the judgment on the exception, the defendants effectively raised
three objections with regard to the
plaintiff’s particulars of
claim. At the commencement of argument, the Court debated with
Counsel for the defendants
whether there was any merit in the third
objection, namely that the plaintiff’s particulars of claim
were vague and embarrassing.
The issue raised by the Court with
Counsel for the defendants was purely on a matter of law and is dealt
with in paragraph
[6] of the judgment on the exception. Counsel
for the defendants decided to abandon any reliance on that ground and
the matter
was as a result confined to the first and second
objections referred to in paragraph [5] of the said judgment.
How this can
on any reasonable basis be interpreted as having allowed
the defendants’ to correct their pleadings, or unduly giving
assistance
to the defendants, is not clear. If anything, it
assisted the plaintiff in that he was then only faced with two
objections
to his particulars of claim, instead of three. This
ground of appeal displays a lack of appreciation of the fact that the
defendants, being
dominus litis
in the exception, is entitled
to raise any such objection to the plaintiff’s particulars of
claim as the law may allow them
to, and equally to abandon any such
objection raised at any time. It is not for the Court to
“allow” them to
abandon any of the objections raised, and
the assertion that the Court, by raising the issue referred to,
assisted
defendants’ Counsel to
argue his case is without merit, in law and in fact.
[3]
The plaintiff’s second ground of appeal relates to his claim in
his particulars
of claim that an instruction issued by the second
defendant to a member of the South African Police Services
constitutes administrative
action which is unconstitutional, in that
it is unjust, unreasonable and therefore unlawful. The
plaintiff’s argument
is that this Court, having accepted for
purposes of the judgment that the instruction concerned constitutes
administrative action,
erred in finding that any determination of the
unlawfulness thereof must be dealt with in terms of the provisions of
the
Promotion of Administrative Justice Act 3 of 2000 (PAJA)
.
The argument is that the Court thereby ignored the provisions of
section 33 of the Constitution
“and places it at the
mercy of ordinary legislation.” There is equally no merit
in this argument. Firstly,
it is trite that PAJA gives effect
to
section 33
as provided for in that section. Secondly,
and leaving aside the status of
section 33
of the
Constitution, the real issue is whether the plaintiff has shown in
his particulars of claim to have an interest in any right
to which
the administrative action concerned relates. The
locus standi
of the plaintiff remains an issue, whether or not the unlawfulness of
the admistrative action concerned is to be determined in
terms of
PAJA, or in terms of the Constitution.
[4]
The appellant’s third ground of appeal relates to the “other
findings”
of the Court. On a reading of the appellant’s
complaint in this regard it is evident that he is referring to what
the
Court dealt with in paragraphs [4] and [5] of its judgment.
In those paragraphs reference is made to a number of other
defects in the plaintiff summons and particulars of claim which the
defendants should have, but chose not to raise by way of Rule
30
proceedings. As it was not raised it could not, and was not
dealt with. The result is that the Court made no findings
in
relation thereto. That much is clear from the judgment and the
order made. Instead, the Court dealt only with the
objections
which were properly raised by the defendants on the papers.
With regard to the plaintiff’s claim for defamation,
the Court
simply commented on the fact that he failed to expressly allege the
existence of
animus injuriandi
, that there was publication of
the defamatory words and that it was spoken of and concerning the
plaintiff. However, as this
was not raised by the defendants in
their exception, no finding was made with regard thereto. The
purpose was rather to assist
the plaintiff by directing him to these
other defects so as to take the necessary steps to have it corrected,
rather than be faced
therewith at a later stage in the proceedings.
[5]
Lastly with regard to the costs order made, as the defendants were
successful on two
of the grounds of objection raised in the
exception, the order was justified. The fact that the
defendants may have abandoned
their objection relating to their
complaint of vagueness at the hearing of the matter does not alter
the fact that the defendants
were substantially successful.
[6]
Accordingly, and for these reasons, the application for leave to
appeal is dismissed
with costs.
D
VAN ZYL
JUDGE
OF THE HIGH COURT
Counsel
for the Appellant :
In Person
Counsel
for the Respondent
:Mr Kunju
Attorneys
for the Appellant :
In person
Attorneys
for Respondent :
The State Attorney
c/o Shared Legal Service
32 Alexandra Road
KING WILLIAM’S TOWN