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[2011] ZAKZDHC 73
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Jesse v Minister of Justice and Constitutional Development NO and Others (15349/2010) [2011] ZAKZDHC 73 (18 October 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
Case No: 15349/2010
In the matter between
David Israel Ben Jesse
…........................................................
Applicant
and
The
Minister of Justice and
Constitutional
Development N.O.
…..........................
First
Respondent
Nedbank Limited
…...............................................
Second
Respondent
General Council of the
Bar of South Africa
…........
Third
Respondent
JUDGMENT
Delivered on: 18 October
2011
STEYN J
[1] On 23 June 2011 the
applicant, Mr Jesse, sought the following order:
“
(a) The
current High Court ‘practice’ of a litigant bringing a
‘review’ by way of a uniform rule 49 appeal
procedure is
struck down and declared invalid, as is all common law relating to
this procedure; and,
It is declared that a litigant may
take the procedure/conduct employed by a single judge of the High
Court of South Africa on
‘review’ before 2 or more
judges of the same division; (a full court); and
Until new
legislation/rules/procedure are drawn up by the 1
st
respondent in this regard, the procedure described in uniform rule
53 of the High Court of South Africa will apply thereto; and
The 1
st
respondent is
ordered to take all necessary steps to formulate and implement rules
and procedure for:
the review of a single judge of
the High Court by 2 or more judges of the same division; (a full
court)(and all superior courts
thereafter;) and,
a full and complete set of rules
and regulations for the peremptory procedure to be applied in
‘fundamental rights’
applications in the High Court of
South Africa;
such rules aforesaid are to
include the full and complete ethics required of judges; advocates
and lawyers in motion proceedings.
It is declared that private
persons are equally bound by the Bill of Rights and that horizontal
application applies without exception
and in
toto
and
(sic)
,
the application of the Bill of Rights is to be applied in all
material cases.
Alternatively:
(*Only if the above application
fails)
In terms of section 9: Supreme
Court Act 59, of 1959:
(f) (i) the ‘review’
proceedings raised by Dr and Mrs
Jesse in Jesse v Nedbank H.C.
13776/08 are to be heard by a ‘full court’ of the NPD;
(in Durban; or Pietermaritzburg;)
(ii) The registrar of the High
Court in Durban is to
prepare the relevant records in the
requisite numbers and deliver a copy thereof to the parties and
transfer the relevant record(s)
to the registrar of the NPD; and
(iii) The registrar of the High
Court in Durban is to
thereafter arrange a set down date
with the registrar of the NPD and communicate the same to Dr and Mrs
Jesse at fax 0865100356
and Nedbank’s attorney Mr Bester at the
fax 011-2861264.
(g) alternative and or further
relief in the discretion of the Court.
(h) No order as to costs.”
[2] Mr Jesse appeared in
person when the matter was argued. Mr Smith appeared on behalf of the
second respondent and Mr Saks on
behalf of the third respondent. In
order to understand the application it is necessary to consider the
background of the application,
which forms the prelude to the present
application.
The applicant’s
wife, Sharon Margaret Jesse (“the applicant’s wife”),
launched an application out of this
court under case number
13776/2008 seeking
inter alia
the following relief before
Mokgohloa J:
“
1. that
the second respondent be interdicted from removing anything from the
premises situate at 25 Kirriemuir Road, for the duration
of the lease
agreement (“the leased premises”);
2. that a contract was entered into
between the applicant’s wife and the second respondent
suspending the operations of the
lease agreement as entered into
between the applicant’s wife and Nomuzo Faith Nyanzi, pending
the resale of the leased premises
to a third party;
3. that the second respondent be
ordered to pay damages to the applicant’s wife in an amount of
R250 000.00 for contumelia
as allegedly suffered by her;
4. that the second respondent be
ordered to pay the costs of the application.”
The court dismissed the
aforesaid application on 5 May 2009. The applicant’s wife filed
an application for leave to appeal
against the order granted by
Mokgohloa J. The application was not brought in time and was
abandoned. The applicant then lodged
an application for review of the
order.
The second respondent
opposed the application to review the order on the basis that an
order granted by a Judge of the High Court
cannot be reviewed, and
that there is no procedure other than appeal as provided for in terms
of the rules of this honourable court
whereby an order of the court
or its proceedings may be overturned.
The applicant thereafter
launched an application for direct access to the Constitutional Court
to have the order set aside. The
aforesaid application was dismissed
by the Constitutional Court on the basis that the applicant had not
obtained the appropriate
relief. The current application follows from
this unsuccessful application to the Constitutional Court.
[3] It should be evident
from the aforesaid that this matter has a long history that has its
genesis in the application before Mokgohloa
J. The applicant’s
wife, and not the applicant, was a party to the matter before
Mokgohloa J.
[4] It was submitted by
the respondents
1
that Mr Jesse’s
application is flawed on a number of levels:
First, that the
applicant lacks the necessary
locus standi
to lodge this
application;
Second, that the order
of Mokgohloa J is not open to review but to appeal; and
Third, that no
constitutional right had been infringed.
[5] I will at first
consider Rule 49 of the Uniform Rules and what it provides. It reads
as follows:
“
49
Civil Appeals from the High Court
(1) (a) When leave to appeal is
required, it may on a
statement of the grounds therfor be
requested at the time of the judgment or order.
(b) When leave to appeal is
required and it has not been requested at the time of the judgment or
order, application for such leave
shall be made and the grounds
therefore shall be furnished within fifteen days after the date of
the order appealed against: Provided
that when the reasons or the
full reasons for the court’s order are given on a later date
that the date of the order, such
application may be made within
fifteen days after such later date: Provided further that the court
may, upon good cause shown,
extend the aforementioned periods of
fifteen days.
(c) When in giving an order the
court declares that the reasons for the order will be furnished to
any of the parties on application,
such application shall be
delivered within ten days after the date of the order.
(d) The application mentioned in
paragraph (b) above shall be set down on a date arranged by the
registrar who shall give written
notice thereof to the parties.
(e) Such application shall be heard
by the judge who presided at the trial or, if he is not available, by
another judge of the division
of which the said judge, when he so
presided, was a member.
(2) If leave to appeal to the full
court is granted the notice of appeal shall be delivered to all the
parties within twenty days
after the date upon which leave was
granted or within such longer period as may upon good cause shown be
permitted.
(3) The notice of appeal shall
state whether the whole or part only of the judgment or order is
appealed against and if only part
of such judgment or order is
appealed against, it shall state which part and shall further specify
the finding of fact and/or ruling
of law appealed against and the
grounds upon which the appeal is founded.
(4) A notice of cross-appeal shall
be delivered within ten days after delivery of the notice of appeal
or within such longer period
as may upon good cause shown be
permitted and the provisions of these Rules with regard to appeals
shall mutatis mutandis apply
to cross-appeals.
(5) In the case of an appeal
against the judgment or order of the court of the Witwatersrand Local
Division, the judge president
of the Transvaal Provincial Division
shall determine whether the appeal should be heard by the full court
of the said local division.
As soon as possible after receipt of the
notice of appeal or cross-appeal, if any, the registrar of the local
division shall ascertain
from the judge president his direction in
the particular case. If the judge president has directed that the
appeal be heard by
the full court of the Witwatersrand Local
Division, the said registrar shall immediately inform the parties of
the direction. If
not so directed by the judge president, the said
registrar shall inform the registrar of the provincial division as
well as the
parties accordingly.
(6) (a) Within sixty days after
delivery of a notice of
appeal, an appellant shall make
written application to the registrar of the division where the appeal
is to be heard for a date
for the hearing of such appeal and shall at
the same time furnish him with his full residential address and the
name and address
of every other party to the appeal and if the
appellant fails to do so a respondent may within ten days after the
expiry of the
said period of sixty days, ass in the case of the
appellant, apply for the set down of the appeal or cross-appeal which
he may
have noted. If no such application is made by either party the
appeal and cross-appeal shall be deemed to have lapsed: Provided
that
a respondent shall have the right to apply for an order for his
wasted costs.
(b) The court to which the appeal
is made may, on application of the appellant or cross-appellant, and
upon good cause shown, reinstate
an appeal or cross-appeal which has
lapsed.
(7) (a) At the same time as the
application for a date
for the hearing of an appeal in
terms of subrule (6)(a) of this rule the appellant shall file with
the registrar three copies of
the record on appeal and shall furnish
two copies to the respondent. The registrar shall further be provided
with a complete index
and copies of all papers, documents and
exhibits in the case, except formal and immaterial documents:
Provided that such omissions
shall be referred to in the said index.
If the necessary copies of the record are not ready at that stage,
the registrar may accept
an application for a date of hearing without
the necessary copies if –
the application is accompanied by
a written agreement between the parties that the copies of the
record may be handed in late;
or
failing such agreement, the
appellant delivers an application together with an affidavit in
which the reasons for his omission
to hand in the copies of the
record in time are set out and in which is indicated that an
application for condonation of the
omission will be made at the
hearing of the appeal.
The two copies of the record to be
served on
the respondent shall be served at
the same time as the filing of the aforementioned three copies with
the registrar.
After delivery of the copies of
the record, the
registrar of the court that is to
hear the appeal or cross-appeal shall assign a date for the hearing
of the appeal or for the application
for condonation and appeal, as
the case may be, and shall set the appeal down for hearing on the
said date and shall give the parties
at least twenty days’
notice in writing of the date so assigned.
If the party who applied for a
date for the
hearing of the appeal neglects or
fails to file or deliver the said copies of the record within 40 days
after the acceptance by
the registrar of the application for a date
of hearing in terms of subrule (7)(a) the other party may approach
the court for an
order that the application has lapsed.
(8) (a) Copies referred to in
subrule (7) shall be
clearly typed on A4 standard paper
in double spacing, paginated and bound and in addition every tenth
line on every page shall be
numbered.
(b) The left side of each page
shall be provided
with a margin of at least 35 mm
that shall be left clear, except in the case of exhibits that are
duplicated by photoprinting, where
it is impossible to obtain a
margin with the said dimensions. Where the margin of the said
exhibits is so small that parts of the
documents will be obscured by
binding, such documents shall be mounted on sheets of A4 paper and
folded back to ensure that the
prescribed margin is provided.
(9) By consent of the parties,
exhibits and annexures having no bearing on the point at issue in the
appeal and immaterial portions
of lengthy documents may be omitted.
Such consent, setting out what documents or parts thereof have been
omitted, shall be signed
by the parties and shall be included in the
record on appeal. The court hearing the appeal may order that the
whole of the record
be placed before it.
(10) When the decision of an appeal
turns exclusively on a point of law, the parties may agree to submit
such appeal to the court
in the form of a special case, in which
event copies shall be submitted of only such portions of the record
as may be necessary
for a proper decision of the appeal: Provided
that the court hearing the appeal may require that the whole of the
record of the
case be placed before it.
(11) Where an appeal has been noted
or an application for leave to appeal against or to rescind, correct,
review or vary an order
of a court has been made, the operation and
execution of the order in question shall be suspended, pending the
decision of such
appeal or application, unless the court which gave
such order, on the application of a party, otherwise directs.
(12) If the order referred to in
subrule (11) is carried into execution by order of the court the
party requesting such execution
shall, unless the court otherwise
orders, before such execution enter into such security as the parties
may agree or the registrar
may decide for the restitution of any sum
obtained upon such execution. The registrar’s decision shall be
final.
(13) (a) Unless the respondent
waives his or her right
to security or the court in
granting leave to appeal or subsequently on application to it, has
released the appellant wholly or
partially from that obligation, the
appellant shall, before lodging copies of the record on appeal with
the registrar, enter into
good and sufficient security for the
respondent’s costs of appeal.
(b) In the event of fail by the
parties to agree on the amount of security, the registrar shall fix
the amount and the appellant
shall enter into security in the amount
so fixed or such percentage thereof as the court has determined, as
the case may be.
(14) The provisions of subrules
(12) and (13) shall not be applicable to the Government of the
Republic of South Africa or any provincial
administration.
(15) Not later than fifteen days
before the appeal is heard the appellant shall deliver a concise and
succinct statement of the
main points (without elaboration) which he
intends to argue on appeal, as well as a list of the authorities to
be tendered in support
of each point, and not later than ten days
before the appeal is heard the respondent shall deliver a similar
statement. Three additional
copies shall in each case be filed with
the registrar.
(16) A notice of appeal in terms of
section 76 of the Patents Act, 1978 (ACT 57 OF 1978), or section 63
of the Trade Marks Act,
1963 (*Act 62 of 1963), may be served on the
patent agent referred to in the
Patents Act, 1978
, or the agent
referred to in section 8 of the Trade Marks Act, 1963, who
represented the respondent in the proceedings in respect
of which an
appeal is noted.
(17) In the case of appeals to the
full court in terms of the provisions of a statute in which the
procedure to be followed is laid
down, this rule is applicable as far
as provision is made for matters not regulated by the statute.
(18) Notwithstanding the provisions
of this rule the judge president may, in consultation with the
parties concerned, direct that
a contemplated appeal be dealt with as
an urgent matter and order that it be disposed of, and the appeal be
prosecuted, at such
time and in such manner as to him seems meet.”
The applicant argued that
Rule 49(11) does not stipulate that if a review is to be made it has
to be brought under Rule 53.
[6] I fail to understand
this submission since the Rule so clearly regulates civil appeals and
not reviews. A basic knowledge of
procedural law would have guided a
person to another rule that regulates reviews. This is premised on
the understanding that there
is a distinction to be made between an
appeal and a review. This distinction is important since it
decisively determines which
of the two procedures find application.
In
SA
Jewish Board of Deputies v Sutherland NO and Others
2
Malan J, as he then was,
stated at para 25:
“
[A]
review is not an appeal. In
Minister
of Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd
2003
(6) SA 407
(SCA) Shutz JA remarked at 4321F-G para [52]:
‘
During
the course of argument for Phambili we were frequently told that
something that the Chief Director had done was “wrong”.
This is the language of appeal, not review. I do not think that the
word was misused, because time and again it appears that what
is
really under attack is the substance of the decision, not the
procedure by means of which it was arrived at. That is not our
job.’
”
[7] Leave to appeal
remains a jurisdictional fact and needs to be obtained in respect of
a judgment or order.
3
Mr Jesse, rather than
utilising the rule to challenge the order of Mokgohloa J and
prosecute the appeal, opted for a procedure not
provided for in
either the Uniform Rules of Court or in the Supreme Court Act.
4
The Supreme Court of
Appeal, per Schutz JA, succinctly defined how a judicial error should
be corrected and at the same time definitively
stated the purpose of
a review in
Pretoria
Portland Cement Co Ltd v Competition Commission
:
5
“
[35]
Review is not directed at correcting a decision on the merits. It is
aimed at the maintenance of legality, at the administration
of ‘the
law which has been passed by the Legislature’ as Bell J put it
on the same page of
Meintjies’s
case.
And throughout it has been the High Court, and only the High Court,
acting through its Judges, that has enjoyed the general,
inherent
jurisdiction to entertain reviews.
It
is not itself the subject of review
–
see
the cases cited in para [29].
There
are other means, quite sufficient means, to which I shall come, by
which the judgment of a Judge may be corrected.
[36] The primary means of
correction of judicial error is appeal to a higher Court, which is
appropriate where a Judge has reached
a final decision. But if an
ex
parte
order has been
granted, that may be corrected by another single Judge through the
ordinary processes of the Court. (I shall explain
the processes
relevant to this case below.) Once this is so all need for the
joinder of a Judge falls away. In an appeal or a rehearing
of a
matter in which an exparte order has been made, grounds which before
other tribunals may be raised as review grounds may equally
be raised
in the appeal or rehearing. But that does not make such proceeding a
review.”
6
(My emphasis)
[8] This brings me to the
founding affidavit filed on behalf of the applicant. Both the
founding affidavit of the applicant as well
as the written heads
submitted by him reveals a plethora of authorities, which are in main
neither relevant nor helpful. In my
view it is in excess, and
unnecessarily prolonged the proceedings. I do not intend dealing with
all the authorities cited by the
applicant since the majority of
cases are quoted out of context and are simply not relevant to the
proceedings before me.
Recently, the Court of
Appeal in England commented on such excessive citation in
R
v Erskine; R v Williams
7
as follows:
“
Undoubtedly
the problem of excessive citation of authority grew with the ready
availability on the internet of most High Court and
all Court of
Appeal decisions. In
Michaels
and another v Taylor Woodrow Development Limited and others
[2001]
Ch 493
, Laddie J pointed out that
‘
. . . the
recent growth of computerised databases has made it an even more
frequent and extensive occurrence. There are now significantly
more
judges, more cases and more databases than there were even two
decades ago. Until comparatively recently, this was not a substantial
problem . . . now there is no pre-selection. Large numbers of
decisions, good and bad, reserved and unreserved, can be accessed
. .
. it seems to me that the common law system, which places such
reliance on judicial authority, stands the risk of being swamped
by a
torrent of material . . .’ ”
8
In my view authorities
are useful if they establish new principles or are relevant in
supporting a specific proposition. The founding
affidavit of the
applicant, on another level, leaves much to be desired, in that it
does not set out the facts relied upon simply
and clearly,
9
but contains
argumentative submissions.
[9] Mr Jesse contended
that rules and regulations should be easily discernible and should
not require of a layperson to research
the common law or additional
legislation in order to know the process. He argued that in order for
a layperson to comply with the
uniform rules of court the procedure
must be set out under the uniform rules. He further submitted that it
is for this very reason
that the Minister did not oppose the
application. In his view the Minister must have been in agreement
otherwise the Minister would
have opposed the application. I am not
persuaded by this argument. At the commencement of the opposed motion
being argued, it became
clear that the third respondent was not given
proper notice. It appeared from the submissions made by Mr Jesse that
he elected
to inform the first and third respondent via e-mail.
Whether such ‘notice’ was received by the relevant party
is questionable
in light of what happened to the third respondent. I
am merely stating this since the applicant argued that the first
respondent’s
failure to file any opposing papers should be seen
as an admission.
The applicant also relied
on section 38 of the Constitution of the Republic of South Africa
Act, 1996
10
as giving him the
necessary
locus
standi
to
lodge the application, since the application affected his family’s
constitutional rights.
[10] Mr Smith, acting on
behalf of the second respondent, submitted that there is an appeal
procedure, provided for in terms of
the rules, which grants a party
access to court, so there could be no challenge on the basis that the
applicant was deprived of
a process to access justice. The mere fact
that the applicant misread a rule does not result in the rule being
unconstitutional.
[11] In dealing with the
first issue of
locus
standi
,
I am of the view that it is doubtful, given the circumstances of the
application, that the applicant has the necessary
locus
.
The issue was however not pertinently raised, until Mr Saks, acting
on behalf of the third respondent raised it in his oral submissions.
As a general rule the requirements of
locus
standi in
judicio
remain as follows:
“
(a) the
plaintiff/applicant for relief must have an adequate
interest in the subject-matter of
the litigation, which is not a technical concept but is usually
described as a direct interest
in the relief sought;
(b) the interest must not be too
far removed;
the interest must be actual, not
abstract or academic;
the interest must be a current
interest and not a
hypothetical one.”
11
Having duly considered
the fact that the applicant acted as a layperson, and assumed
locus
and since no proper exception was raised I decided to proceed with
the matter in light of the lateness in challenging the applicant’s
locus
. I am, however, not convinced that the applicant has
made out a case for
locus
in his founding affidavit.
[12] In dealing with the
second issue, it should be evident from the rules and authorities
cited above that a judgment of a judge
of the High Court cannot be
reviewed. If a party wishes to have the judgment of the court set
aside then it is entitled to challenge
the judgment by way of appeal.
I am not persuaded that
the decision of Mokgohloa J is open to review.
[13] This brings me to
the third issue to decide and that is whether Rule 49 infringes on
any constitutional right or rights of
the applicant. In my view Mr
Jesse is faced with an insurmountable hurdle and that is that Rule 49
does not deprive him of a process
to challenge the judgment of
Mokgohloa J. Should the rule have limited Mr Jesse’s right to
approach another court (i.e. his
right to access to courts
12
)
then I would have been persuaded that a constitutional analysis
should have followed.
There is, however, no
basis for a constitutional challenge given the circumstances of this
case. The Uniform Rules clearly provide
for a procedure to challenge
a judgment of a judge of the High Court. Accordingly, there has been
no serious challenge that the
rule does not comply with section 171
of the Constitution. I agree with the submissions made on behalf of
the second and third
respondent, that Mr Jesse’s attack on Rule
49 is ill-founded.
[14] There is also no
basis to grant any relief as is alternatively claimed by the
applicant.
Costs
[15] On the papers before
me, I cannot find anything sufficiently cogent to support a finding
to not award costs against the applicant.
The conduct displayed, in
my view, shows a disregard of the court process, if not an abuse. I
am not persuaded that the applicant
could have been mistaken in
lodging this application. I am therefore satisfied that the
circumstances of this application justify
a cost order against the
applicant.
Order
[16] The applicant’s
application is dismissed with costs, such costs not to include any
costs of the third respondent who
appeared
pro
amico
for
the first respondent.
____________________________
Steyn, J
Date of Hearing: 23 June 2011
Date of Judgment: 18 October 2011
Counsel for the applicant: In person
Instructed by: In person
Counsel for the first respondent: No
appearance
Instructed by: No appearance
Counsel for the second respondent: Adv
HJ Smith
Instructed by: Cliffe Dekker Hofmeyer
Inc
c/o King-Essack & Associates Inc
Counsel for the third respondent: Adv
DJ Saks
Instructed by: Nichols Attorneys
1
Second
and Third respondent
.
2
2004
(4) SA 368
(W).
3
See
Harms ‘Civil Procedure in the Supreme Court’
Butterworths (Service issue
43)
at B49.4.
4
Act
59 of 1959.
5
2003
(2) SA 385 (SCA).
6
At
page 402B-E.
7
(2009)
EWCA Crim 1425 at para 71.
8
At
para 71.
9
See
Reynolds NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75
(W) at 78I-J.
10
Section
38 of the Constitution provides as follows:
“
38.
Enforcement of rights
.
– Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights
has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons
who may
approach a court are –
anyone acting in
their own interest;
anyone acting on
behalf of another person who cannot
act in their own
name;
anyone acting as a
member of, or in the interest of, a
group or class of
persons;
anyone acting in the
public interest; and
an
association acting in the interest of its members.”
11
See
Erasmus
‘
Superior Court Practice’
Rev 36 at B1-126A.
12
See
section 34 of the Constitution, 1996.