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[2011] ZAECMHC 11
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Gabavana v Magistrate of Ngcobo: Solwandle and Others (1622/09) [2011] ZAECMHC 11 (23 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION : MTHATHA
CASE
NO. 1622/09
In
the matter between:
MINENKULU
MZIWABAMBO
GABAVANA
….......................................................................................
Applicant
and
THE
MAGISTRATE OF NGCOBO :
E.
D. SOLWANDLE
…..................................................................
1
st
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…................................
2
nd
Respondent
THE
MINISTER OF POLICE
…................................................
3
rd
Respondent
THE
STATION COMISSIONER
NGCOBO
POLICE STATION
…................................................
4
th
Respondent
MAGISTRATE
MOLEKO
….......................................................
5
th
Respondent
JUDGMENT
GRIFFITHS, J.:
[1] The applicant in this matter has launched an
application as against "The Magistrate of Ngcobo: E D
Solwandle", and
certain other respondents. The main purpose of
this application is to seek an order setting aside a warrant of
arrest issued against
the applicant and an interdict against
Solwandle restraining him from hearing any matter concerning the
applicant, together with
certain further ancillary relief. A
rule
nisi
was granted by this court on an urgent basis together with
certain interim relief.
[2] Confirmation of the
rule nisi
was opposed by
the first and second respondents and, in due course, an answering
affidavit was delivered on their behalf. The third
and fourth
respondents duly filed a notice to abide the decision of this court.
I shall, for the purposes of convenience, in the
balance of this
judgment refer to the remaining respondents as "the
respondents".
[3] The answering affidavit was deposed to by Solwandle
himself who, during the course of explaining the manner in which the
relevant
warrant of arrest came into existence, stated that the
relevant file had been placed before another magistrate of Ngcobo,
one Moleko,
who had duly heard the matter and had authorized the
issue of the warrant. Accordingly, it was not Solwandle who issued or
authorized
the relevant warrant of arrest, but Moleko.
[4] This triggered a further flurry of activity on the
part of the applicant. It resulted in an application for the joinder
of magistrate
Moleko as fifth respondent in these proceedings
together with certain further relief. By way of a subsequent court
order, Moleko
was duly joined in the proceedings as the fifth
respondent and the applicant was granted leave to amend "
his
Notice of Motion so as to seek appropriate relief against the 5th
respondent
." In purported pursuit of this order, the
applicant in due course filed a notice (presumably in terms of rule
28) indicating
his intention to amend his notice of motion by the
addition of the following prayer:
"
That the decision and the conduct of the1st
Respondent to peruse the Ngcobo Court File No.A 377/04 on the 9th
September 2009 and
to instruct the criminal Court Clerk to place the
matter before the fifth Respondent for hearing on the 10th September
2009 without
giving notice to the Applicant be and is hereby declared
irregular, unlawful, unconstitutional ultra vires and should be
reviewed
and set aside
."
[5] This prompted a notice of objection in terms of rule
28(3) to such amendment from the respondents and an application for
this
same amendment was duly launched. This was opposed by the
respondents, who did not file an answering affidavit thereto but
merely
indicated that they would oppose it on the basis as set out in
their earlier notice of objection. It is this application for an
amendment with which I am presently seized.
[6] The applicant has argued that in order to obtain the
ultimate relief which it seeks, namely the setting aside of the
warrant
of arrest, it is necessary for the court to set aside the
"decision" of Solwandle as reflected in the above-mentioned
draft amendment. Mr. Melane, who appeared for the applicant, has
further argued that, had it not been for the "disclosure"
by Solwandle in his answering affidavit that he had perused this file
and instructed that Moleko handle the matter, the applicant
would
never have known about this fact. On this basis, so he argued, the
court should allow the amendment.
[7] Miss da Silva, who appeared for the first, second
and fifth respondents, has in turn argued that the amendment should
not be
granted as it would not introduce a triable issue in that the
"decision" referred to in the draft amendment is not
reviewable
as it does not amount to an administrative decision, is
not final in nature, is not prejudicial to the applicant as, in
effect,
it does not directly affect his rights, and is not
established by the evidence "thus foreshadowed in the
application papers".
She thus submitted that the amendment
sought to be introduced is thus not a triable issue, is irrelevant
and is not viable.
[8] It is trite that an amendment will not be granted
where the amendment sought does not raise a triable issue or raise a
viable
claim. In
Trans - Drakensberg Bank Ltd.
(under Judicial Management) v Combined Engineering (PTY) Ltd. and
Another
1
Caney J dealt with this as follows:
"
Having already made his case in his pleading,
if he wishes to change or add to this, he must explain the reason and
show prima facie
that he has something deserving of consideration, a
triable issue; he cannot be allowed to harass his opponent by an
amendment
which has no foundation. He cannot place on the record an
issue for which he has no supporting evidence, where evidence is
required,
or, save perhaps in exceptional circumstances, introduce an
amendment which would make the pleading excipiable
."
[9] A similar point was made by Selikowitz JA in
Benjamin v Sobac South African Building and
Construction (PTY) Ltd
.
2
where he stated in a similar context that:
"
If the claim is, in the circumstances of this
case, not in law a viable claim I would be doing not only the
respondent but also
the applicant an injustice by granting the
amendment
."
[10] It is furthermore trite that for a decision of a
functionary to be reviewable it must be an administrative action
which adversely
affects the rights of any person and which has a
direct, external, legal effect. In addition, it should be final in
nature before
it attracts administrative justice rights
3
.
[11] I am not at all persuaded that the applicant's
conclusion that Solwandle in fact was the person who made the
decision to place
the relevant file before Moleko is correct. The
relevant passages of the answering affidavit read as follows;
“
8.1 I dispute that I issued or directed a warrant
of arrest to be issued against the applicant on 10 September 2009.
8.2 The applicant was convicted with contravening a
protection order and sentenced on 6 June 2008, to pay a fine of R5
000.00 or
to undergo imprisonment of 12 months should he default in
paying the fine. Upon application by the applicant, the fine was
deferred
for payment on or before 31 August 2008.
8.3 The applicant launched an application for leave to
appeal. The application for leave to appeal was set down for hearing
on 3
June 2009.
8.4 On 3 June 2009, the applicant applied for
postponement in order for him to engage the services of counsel. The
matter was postponed
to 1 July 2009.
8.5 However, the matter did not proceed on 1 July 2009
due to the non-appearance of the applicant. Upon me having inquired
from
the public prosecutor (Mrs Nzuzo-Songo) in open court about the
appearance of the applicant, I was informed that the applicant had
communicated with her that 1 July 2009 was not suitable to him. This
had not been communicated to me.
8.6 The matter was then postponed to 6 August 2009 and I
ordered that the applicant be informed of the new date for the
hearing
of the application for leave to appeal.
8.7 I am advised that the court manager delivered a
letter to the applicant informing him of the date of hearing. The
letter is
annexure “MMG 2” to the affidavit under reply.
8.8 On 6 August 2009 and in open court, Mrs Nzuzo-Songo
furnished me with annexure “MMG 3” being a letter from
the applicant
informing the court, once again of his non-availability
and requesting a postponement as he and his counsel were engaged “in
the same civil matter on 6 August 2009 as opposing parties” and
that the matter should be postponed to 14 December 2009 being
the
“nearest available date on recess”.
8.9 The State applied for the application for leave to
appeal to be heard in the absence of the applicant.
8.10 After having read the letter addressed by the
applicant and the address by the State, and applied my mind to the
facts, I exercised
my discretion and postponed the matter to 31
August 2009 on which date the application would be heard with or
without the applicant.
8.11 Annexure “MMG 4” shows that the
applicant was notified of the date of hearing on 18 August 2009.
8.12 On 31 August 2009 the applicant’s name had
been called out three times and he did not appear. Mrs Nzuzo-songo
addressed
me in open court by informing me that the applicant had
been duly informed of the date of hearing and handed up a copy of
annexure
“MMG 4” but had failed to appear in court.
8.13 Due to the applicant’s non-appearance and
regard being had to my previous directing that the matter would be
dealt with
on 31 August 2009 with or without the applicant, I
exercised my judicial discretion by directing the applicant to pay
the fine
on or before 9 September 2009 failing which he was to serve
his term of imprisonment. Implicit in my order was that the
application
for leave to appeal was dismissed. Although my reasons
for the order made on 31 August 2009 have not been requested, I made
the
order having had regard to.
Inter alia
the following:
(a) the application for leave to appeal had been
postponed on various occasions at the instance of the applicant;
(b) the interests of justice dictated the finality of
the matter;
(c) the applicant had not proffered any explanation,
whatsoever as to why he was not in court, notwithstanding
notification; and
(d) the integrity of the court demanded that there be
finality to the matter.
8.14 The order made on 31 August 2009 was communicated
to the applicant on 1 September 2009, as is evidenced by annexure
“MMG
5” to the affidavit under reply.
8.15 Upon perusal of court file no. A377/04, I see that
the applicant did not pay the fine in terms of the court order and as
such
the matter was placed before Magistrate Moleko for hearing on 10
September 2009 by the criminal court clerk.
8.16 On 10 September 2009, Magistrate Moleko, upon
application by the prosecutor Mtengwana therefore, exercised his
judicial discretion
by issuing a warrant for the arrest of the
applicant for failure to comply with an order of court.”
[12] It should be remembered that the above-mentioned
extracts from the answering affidavit were made in response to the
allegations
made by the applicant in his founding affidavit to the
effect that the warrant had been unlawfully issued in his absence. It
is
fairly clear therefore that he was unaware of all the facts
pertaining to the issue of the warrant as he was not present when it
was issued. In founding his claim for the amendment mentioned, he has
apparently based his factual conclusions entirely on the
content of
paragraph 8.15 reproduced above. As I read this sub paragraph, it
clearly indicates that Solwandle, on being faced with
this
application, called for the file, perused it and noticed that, for
whatever reason, the clerk of the criminal court had placed
the file
before Magistrate Moleko for hearing on 10 September 2009. The
applicant's interpretation that this subparagraph amounts
to a
"confession" that Solwandle had, on or prior to 10
September 2009, himself called for the file and personally made
a
decision not to hear the matter himself but to place it before
Moleko, does not appear to be correct. On this basis alone it
is my
view that the applicant has not made out a case for the amendment
sought as there is no factual basis at all for his contention
that
Solwandle made such a decision to place the file before Moleko.
[13] On this misconception of the facts, the applicant
has proceeded in his founding affidavit in support of the application
for
the amendment to state the following at paragraph 18:
"
The confession made by the first respondent in
his answering affidavit... that "upon perusal of Court file No.A
377/04, I see
that the applicant did not pay the fine in terms of the
Court Order and as such the matter was placed before Magistrate
Moleko
for hearing on 10 September 2009 by the criminal Court Clerk"
has brought about the desire to prove that the Magistrate Moleko
who
has been joined as first respondent behind whom the first respondent
Mr. Solwandle seeks to hide, would not have authorized
the Warrant of
Arrest he granted against me on the 10 September 2009 had it not been
for the malicious, unlawful and unconstitutional
administrative
conduct of the first respondent of perusing a court file which was
beyond the scope of his employment
."
[14] It seems to me that the applicant has not only
misconstrued the factual statement in the affidavit of Solwandle but
has concluded
that this "decision" by Solwandle to place
the file before Moleko was "malicious, unlawful and
unconstitutional".
This conclusion is absolutely baseless. It is
so that the applicant has in his founding affidavit in the main
application made
allegations against Solwandle relating to certain
tensions which may have existed between them. This however, to my
mind, is completely
insufficient to lay a basis for the supposition
that Solwandle had placed the file before Moleko in an unlawful
manner, in an unconstitutional
manner and, in particular, driven by
malicious motives. Likewise, the statements that Solwandle made a
"confession" in
this regard and "seeks to hide"
behind Magistrate Moleko, have no factual foundation.
[15] In any event, even if the applicant could make out
a case to the effect that Solwandle had made such a decision, this
could
have had absolutely no direct effect on the rights of the
applicant and such a decision would not have been a final one
sufficient
to bring it within the purview of a review. The final
decision to issue the warrant was clearly made by Moleko and there is
no
allegation whatsoever that he was influenced in any way by
Solwandle in reaching his decision. Even if Moleko had been
influenced
by Solwandle and such a case could have been made out, it
seems to me that this would be a matter to be taken into account by
the
court ultimately hearing the main application in deciding whether
or not to set aside the warrant of arrest.
[16] I am perturbed by the allegations made in this
matter relating, firstly to the question of the applicant's conduct
during the
course of the criminal case before the Ngcobo Magistrate’s
court and, secondly, by the unfounded allegations made against
a
judicial officer by the applicant as set out above and elsewhere in
these papers. The applicant is apparently a practicing advocate
of
this court. In these circumstances, I believe that it would be proper
for the Bar Council to have sight of these papers and
to consider any
possible action they may deem meet against the applicant in this
regard.
[17] In these circumstances, I make the following order:
1. The applicant's application for an amendment to
his notice of motion is dismissed;
2. The applicant is ordered to pay the costs of the
application for amendment;
3. The Registrar of this court is directed and
requested to ensure that a copy of these papers and this judgment are
made available
to the Bar Council for its consideration with regard
to any action it may consider proper as against the applicant.
JUDGE OF THE HIGH COURT
HEARD ON : 14 JUNE 2011
DELIVERED ON : 23 JUNE 2011
COUNSEL FOR APPLICANT : Mr Melane
INSTRUCTED BY : CK Guzana Attorneys
COUNSEL FOR RESPONDENT : Ms Da Silva
INSTRUCTED BY : State Attorney
1
1967(3)
SA 632) (DCLD)
2
1989(4)
SA 940 (C) at 958D
3
Eastern
Metropolitan Substructure v Peter Klein Investments
2001 (4) SA 661
(WLD) at paragraphs 14 – 16; New Clicks South Africa (PTY)
Ltd. v Tshabalala- Msimang
2005 (2) SA 530
at paragraphs 38 - 41