S v Salomane and Another (1696/2004) [2004] ZAFSHC 147 (21 October 2004)

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[2004] ZAFSHC 147
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S v Salomane and Another (1696/2004) [2004] ZAFSHC 147 (21 October 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
Nr: 1696/2004
In
the review of:
THE
STATE
and
MOEKETSI
ARIEL SALOMANE
MOEKETSI
JOHANNES SANI
CORAM:
MUSI
J
et
CILLIé J
JUDGMENT:
MUSI J
DELIVERED ON:
21 OCTOBER 2004
The two accused, who
appear to be brothers, pleaded guilty to a charge of housebreaking
with intent to steal and theft. Pursuant
to questioning in terms of
section 112 of the Criminal Procedure Act, accused nr. 1 was
convicted on the competent verdict of theft,
whereas accused nr. 2
was found guilty as charged. Accused nr. 1 was sentenced to 18
months imprisonment whereas accused nr. 2 was
sentenced to 2 years
imprisonment. Accused nr. 2 is an adult man of 29 years and has a
previous conviction of robbery committed
in 1997. He was convicted
of a more serious offence and he is the man who broke into the
complainant’s house and removed goods
valued at R3 300,00. I
confirmed his conviction and sentence on review.
Regarding accused nr. 1,
I directed that he be released from prison immediately and my reasons
for this step follow hereunder:
The
accused was convicted on the basis that, by his own admission, he
knowingly assisted the accused nr. 2 to carry and hide the stolen
goods. The conviction is in order. The sentence of 18 months direct
imprisonment is however startlingly inappropriate.
The accused is a 19-years
old first offender. His explanation that he is a student in Grade 11
was not disputed and has to be accepted.
He played a minor role in
the offence. He probably acted under the influence of the older
co-accused. It is certainly in the interest
of the community that he
be given the opportunity to further his studies and it has to be
noted that the end of the year examinations
are about to start. It
also counts in his favour that he pleaded guilty and played open
cards with the court. Moreover direct imprisonment
will do him more
harm than good.
In
the premises, the sentence imposed stands to be set aside.
Sufficient information exists on the record enabling this Court to
substitute an appropriate sentence. A wholly suspended sentence
would be an appropriate option.
The
following order is made:
The conviction of accused
nr. 1 is confirmed. The sentence imposed is set aside and replaced
with the following: Twelve (12) months
imprisonment which is wholly
suspended for four (4) years on condition that the accused is not
convicted of theft or any offence
involving dishonesty committed
during the period of suspension.
___________
H.M.
MUSI, J
I
CONCUR:
____________
C.B. CILLIé, J
/ec
[1] The applicant is
employed by Tswelopele Municipality (the first respondent) as its
manager for technical services. On 2 December
2003 the applicant
together with his co-worker and first respondent’s municipal
manager, one mr. Mpatshe, were suspended from their
duties with full
pay pending an investigation into matters relating to their
employment. The internal investigation led to charges
being framed
and a disciplinary inquiry set in motion against the applicant and
his fellow employee aforesaid. The charges against
the applicant
essentially relate to disposal of certain assets of the first
respondent without proper authorisation and are not intricate
at all.
The second and third respondents’ are practising attorneys who
have been appointed by the first respondent respectively
as presiding
officer and prosecutor in the disciplinary inquiry of the applicant
and both acted throughout the events forming the
subject of this
application in their capacity as such.
It is necessary to give a
summary of what transpired and in so far as there are disputes of
fact, I shall rely on the version of the
respondents’.
[2] The disciplinary
hearings of both the applicant and the municipal manager were
initially set down for 15 March 2004, which date
had been arranged
with the then representative one mr. van Heerden, a labour
consultant. Such hearing was however postponed the
instance of mr.
Sizephe, the attorney now representing the applicant, who had then
taken over the case of the municipal manager from
mr. van Heerden,
apparently due to a conflict of interest. Because of difficulty in
reconciling the dates on which both representatives
would be
available the hearings of the two employees who were separated and
postponed to different dates. That of the applicant
was postponed to
26 and 27 July 2004. That of the municipal manager was postponed to
5 and 6 August 2004. However, in June 2004
the municipal manager
terminated a mandate of mr. Sizephe and appointed another attorney,
who apparently fitted himself into the
pre-arranged dates enabling
the disciplinary hearing of the municipal manager to continue as
planned.
[3] Not so with the case
of the applicant because on 26 July 2004, his labour consultant
representative was nowhere to be found and
mr. Sizephe had now been
roped in to represent him. The latter was, however, not available on
that date and send another attorney
(mr. Beukes) to appear on his
behalf purely to seek a postponement. He had given mr. Beukes dates
to which the matter could be postponed
but these could not fit in
with those of the second and third respondents’. On the first
proposed date of 3 August 2004, the second
respondent was not
available and the second proposed date of 20 August 2004 was
conditional upon mr. Sizephe securing a agreement
of a criminal
matter in which he had been scheduled to appear elsewhere. The
second respondent was not prepared to fix what he regarded
as an
uncertain date. A deadlock developed over dates and mr. Sizephe
withdrew from the matter there and then through mr. Beukes.
The
second respondent then postponed the matter in order to give the
applicant an opportunity to find another representative. The
applicant was advised that the matter would be heard in the week of
16 – 20 August 2004 and that his new representative must contact
the second respondent to confirm two dates within that week for the
hearing.
When nothing was heard
from the applicant’s side by 4 August 2004, the third respondent
directed a notice to be served on the applicant
advising that the
inquiry would be heard on 18 August 2004. It is clear that the
expectation throughout was that the inquiry would
need at least 2
days to be concluded and it can be accepted that 18 August 2004 would
only be the first date of the hearing.
[4] In the meantime, the
applicant had gone back to mr. Sizephe who, on 2 August 2004 wrote a
letter to the third respondent advising
of his reinstatement and
indicating that he would not be available on the dates given to the
applicant. He refers to 19 and 20 August
2004 but this is clearly
incorrect. By his own admission, the applicant had been told that
the hearing would take place on 2 days
between 16 and 20 August 2004.
The letter of 2 August 2004 did not reach the third respondent as a
wrong fax number had been used
and a further letter was then faxed on
11 August 2004 when the dates of 24 and 31 August 2004 were proposed.
This was followed by
another letter dated 13 August 2004 when it was
indicated that if the date of 24 August 2004 was not acceptable to
the respondents’,
mr. Sizephe would go ahead with his criminal
trial in New Castle. The third respondent’s reply was that the
inquiry would go on
as scheduled on 18 August 2004 and that the
applicant’s representative must simply make himself available on
that day. This triggered
the instant application which was launched
on 17 August 2004. Upon being served with the papers in the morning
of 18 August 2004
the respondents’ postponed the inquiry
sine
die
and
opposed the application. On the self same 18 August 2004 the
application was postponed
sine
die
with directions as to the filing of further papers.
[5] It is obvious that
once the disciplinary hearing was postponed
sine
die
upon service of the court papers herein, the purpose of the
application fell off. This must have been clear to all a sundry when
this matter was postponed
sine
die
.
In oral argument, I took up with counsel for the applicant the
question of what order does the applicant now seek. Mr. Edeling
conceded that prayer 2.1 was now academic but submitted that I could
still grant prayer 2.2 and costs. He submitted that the conduct
of
the respondents’ in refusing to postpone the disciplinary hearing
to the dates proposed by the applicant’s attorney to it
20 August
2004, was unreasonable and prejudicial to the applicant. In
particular, going ahead with the disciplinary hearing on 18
August
2004 in the absence of the applicant’s attorney would have entailed
grave consequences for the applicant. The applicant
was thus
entitled to bring this urgent application in order to ward off the
potential prejudice, so the argument went. Counsel thus
submitted
that I should grant the order sought in prayer 2.2 an order that the
respondents pay the costs of the application up to
18 August 2004.
He submitted that each party should pay their own costs incurred
after the latter date.
[6] The latter submission
in respect of costs is interesting. It was made in response to my
following query: Since by 18 August
2004 the purpose of the
application had been achieved, why the respondents’ still pursue
the matter? Why did he not go back to
the respondents’ with their
proposals for new dates for the hearing? In prayer 2.2 the applicant
requests the Court to order that
the parties arrange dates for the
disciplinary hearing to take place within two months. But two months
have almost elapsed since
the matter was last on the roll and nothing
has been done in the way of arranging new dates. It is not good for
the applicant to
put the blame on the respondents’, as mr. Edeling
has sought to do by saying that the respondents’ are
dominus
litis
in the disciplinary hearing and it is they who should have set new
dates. It was equally incumbent upon the applicant to realize
that
no further purpose would be served by pursuing the application. He
is not saying that he tried to talk to the respondents’
about new
dates but that he drew a blank. He did not approach the respondents’
at all and was contend on simply proceeding with
the application. It
is safe to assume that the applicant was happy that the disciplinary
inquiry remained stalled so he could keep
on drawing his full pay.
His conduct posed 18 August 2004 will have a bearing on what had
happened leading to the launching of the
application.
[7] Now mr. Benade for
the respondents’ has submitted that the purpose of this application
is very much alive. He argues that what
the applicant seeks with
prayer 2.1 is in fact an order that he is entitled to his preferred
attorney and that the disciplinary inquiry
could not go on in the
absence of such attorney. Views in that context, with prayer 2.2 the
applicant seeks an order directing that
new dates be arranged with
the particular attorney. He then argued that the applicant has no
right to insist on representation by
a specific attorney and cited
inter
alia
HAMATA
AND ANOTHER v CHAIRPERSON, PENINSULA TECHNIKON INTERNAL DISCIPLINARY
COMMITTEE AND OTHERS
2002
(5) SA
449
SCA
at 455 F
.
He submitted that the appropriate order would be to dismiss the
application with costs.
[8] This argument is not
without basis. It arises from the language of prayer 2.1 as well as
passages in the applicant’s founding
papers.
Prayer 2.1 seeks to stop
the disciplinary inquiry from going ahead in the absence of “his
preferred legal representative” and
throughout the founding
affidavit the applicant talks of the need for “my legal
representative” as opposed to a legal representative.
However mr. Edeling has
stated categorically that the applicant does not insist on the
services of a particular attorney but that
all he wants is to have
legal representation. He attributed prayer 2.1 to inapt language. I
agree that prayer 2.1 should not be
read as seeking an order that the
applicant is entitled to legal representation by a specific attorney.
But that does not detract
from the inescapable inference that the
applicant did insist on a particular attorney in the dispute over
postponements and this
will have a bearing on an assessment of the
reasonableness or not of the conduct of the parties.
[9] In my view, the real
purpose of this application was to stop the disciplinary inquiry from
proceeding as scheduled and that is
the essence of prayer 2.1. That
purpose was achieved when the disciplinary inquiry was postponed
sine
die
upon service of the Court papers. However in the absence of any
settlement as to what was to happen further to the application,
it
had to be adjudicated upon.
[10] The cardinal
question is whether the applicant was justifying in launching the
application in the first place. Put otherwise,
was the conduct of
the respondents’ in refusing to grant a further postponement beyond
18 August 2004 reasonable or not. This
refusal should be viewed in
the light of the history of the matter. It was of the utmost
importance that the disciplinary inquiry
be finalized as
expectatiously and promptly as reasonably possible. The Disciplinary
Procedure Collective Agreement applicable to
this matter (Annexure
“K” to the applicant’s founding affidavit) makes this clear.
Clause 6.5.7 thereof states that the inquiry
should be initiated upon
five days notice to the accused and should take place within 15 days
of service of such notice. The Code
allows for extension of these
pivots but it is significant that clause 6.5.8 and clause 6.5.9 vest
the disciplinary tribunal with
the power of control. If agreement
cannot be reached on suitable dates, the affected party may “apply
to the disciplinary tribunal
for an extension”. It is clear that
the presiding officer, in this case the second respondent, has a
final say in the matter.
Off course he cannot act arbitrarily or
unreasonably and must conduct matters in line with the principles of
material justice and
fair procedure.
[11] The reasons for the
prompt commencement and conclusion of a disciplinary inquiry of this
nature are obvious. It is of the utmost
importance to both the
employer and employee that there be certainty in their relationship.
A state of limbo where the employees’
future is uncertain and the
employer cannot fill his/her position is undesirable.
In
casu
,
the applicant had been earning a full monthly salary for some 8
months to July 2004 while (11 months to date) whilst rendering no
service at all. It is causing the first respondent considerable loss
and is untenable a situation. It was therefore reasonable
of the
second respondent to insist that the disciplinary inquiry be
concluded by no later than 20 August 2004.
[12] But whose fault was
it that the disciplinary inquiry could not proceed on earlier dates?
Certainly not that of the respondent.
The matter had been set down
for hearing on 15 March 2004 having been postponed from January at
the instance of the applicant’s
representative, Van Heerden. Three
clear months had been allowed. On 15 March 2004 it was again
postponed due to no fault on the
part of the respondents’. This
postponement was at the instance of mr. Sizephe as he had not been
ready to proceed on that day.
[13] The crucial date is
that of 26 July 2004, a date that had been arranged with the
plaintiff’s former representative. Five months
had elapsed since
the last sitting and certainly Van Heerden disappears from the scene
with no explanation whatsoever. Though the
applicant is not
personally responsible for this unacceptable development, Van Heerden
was non the less his representative. And
why does the applicant
become aware of Van Heerden’s absence only on 17 July 2004? When
they have consulted to prepare for the
hearing? Why not keep contact
with his representative? Even then there was still enough time to
find another attorney and prepare
for the hearing when the applicant
consulted his present attorney. The latter had been involved in this
matter whilst representing
the municipal manager and he should have
been aware that the matter had been dragging on. Knowing that he
would not be available
on 26 July 2004 he nonetheless accepted
instructions. Now the respondents’ were still pliable and
prepared to postpone the matter
further. But when the days that the
applicant’s attorney proposed were not acceptable to the
respondents’ the applicant’s
attorney unceremoniously withdrew.
[14] In my view, the
applicant’s attorney adopted the wrong attitude in this matter. He
did not seem to ………. That the second
respondent as presiding
officer had the final say in fixing dates. Throughout the rankling
over dates he talks of him accommodating
the respondents’ when the
opposite should have been the case. Now having withdrawn due to his
non-availability on the dates that
suited the respondents’ the
applicant’s attorney agrees to be reinstated in the matter within a
week of the earlier deadlock.
By this time the second respondent had
fixed dates for the hearing and had told the applicant in no
uncertain terms that he must
find a representative who would be
available on those dates. Yet the applicant goes back to the same
attorney. The attorney is
fully aware of the problems herein and is
again not available on the stipulated dates yet he accepts
instructions.
[15] In the
circumstances, the second respondent was justified in insisting that
the disciplinary inquiry would proceed on 18 August
2004 with or
without the applicant’s attorney. He was thereby not denying the
applicant his right to legal representation. All
that the applicant
had to do was to find an attorney who would be available. And the
applicant had been giving enough time to do
that. The applicant’s
claim that he could not find one is lame. He did not need a labour
law expert given the nature of the charges.
Moreover he was free to
engage even a non-lawyer to represent him, as he is provided for in
the relevant Code. The problem is that
both the applicant and his
attorney were harbouring a misconception that the applicant was
entitled to his preferred attorney and
that the inquiry could not go
ahead as long as such attorney was not available. That is
unacceptable and the remarks of Lombard,
J in
S
v KYRIACOU
2000 (2)
SA
CR
704
OPD
,
though relating to a criminal trial, are equally applicable to this
matter and I quote at 705 J – 706 C:
“The only question that presently
calls for an answer is whether the right to have legal representation
of one’s choice goes
so far as to include the scenario where a
Court finds itself in a situation that it is at the mercy of its
officers as regards the
commencement and or continuation of any
particular case or trial. If this had to be so it means in effect
that Courts surrender
themselves to the dictates of their officers in
respect of their uppermost function and that is to dispense justice.
The interest
of the ‘other side’ and the Court are completely
ignored. This Court cannot and will not allow itself to be kept or
taken hostage
by its own officers – the legal practitioners. Such
procedure or practice is unacceptable – it can and will lead to an
abuse
of the process of the Courts. It would enable any litigant or
accused to literally one-handedly frustrate the proceedings in any
court by changing legal practitioners regularly, thereby enabling him
or her to gain extra time – to encourage delaying tactics.
What
makes the situation even more unbearable is the fact that in the
process the hands of all the other interested parties, including
the
Court, are tied.”
[16] I hold that the
applicant was the offer of his own misery and that he himself created
the dilemma in which he found himself when
he launched the
application. I have already indicated that once the inquiry was
postponed on 18 August 2004 the applicant should
have taken steps to
arrange new dates with the respondents’, which could have obviated
the need to proceed further with this application
and saved costs.
The respondents’ could also have done that and not proceeded to
file opposing papers. But in view of the inept
wedding of the
prayers and the language of the founding affidavit the respondents’
can be ………… for adopting the art to
have had the matter
needed to proceed to trial so as the question of whether the
applicant had a right to be represented by his preferred
attorney be
adjudicated upon. It is obvious also that the applicant stood to
benefit the expense of the respondents’ as long as
the matter was
dragged out. He continued to draw a salary for which he was
rendering no services. That probably explains why he
took no steps
to bring closure to the matter much earlier.
[17] Finally, mr. Edeling
submitted that I should give directions as to how the inquiry should
be carried forward. I do not think
that I should ……… the
functions of the second respondent. If no agreement can be reached
as to new dates, he can use his discretion
and set down the matter
for hearing upon a reasonable notice of say 3 weeks to the applicant.
[18] In the result, the
application is dismissed with costs.
____________ H.M. MUSI, J
On
behalf of Applicant: Advocate W.J. Edeling
Instructed
by
Kramer
Weihmann & Joubert
BLOEMFONTEIN
On
behalf of Respondents’: Advocate H.J. Benade
Instructed
by
Phatshoane
Henney Inc
BLOEMFONTEIN
/ec