Nyaphuli v Minister of Defence (3178/2002) [2002] ZAFSHC 12 (12 September 2002)

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[2002] ZAFSHC 12
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Nyaphuli v Minister of Defence (3178/2002) [2002] ZAFSHC 12 (12 September 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 3178/2002
In
the matter between:
MOKONE
PETRUS NYAPHULI
Applicant
and
THE
MINISTER OF DEFENCE
Respondent
CORAM:
RAMPAI, J
HEARD
ON: 5 SEPTEMBER 2002
JUDGMENT
BY: RAMPAI, J
DELIVERED
ON: 12 SEPTEMBER 2002
[1]
The applicant, Mr Mokone Petrus Nyaphuli, was a member of the South
African National Defence Force. He was a corporal by rank
attached to
the Tempe Military Base here in Bloemfontein. He is a married man and
a father of a two year old child.
[2]
On Tuesday 27 August 2001 he was convicted on eight counts of fraud
in Bloemfontein by Major A.S. Venter, the military judge in
the Tempe
Military Court.
[3]
On the same day he was sentenced to 18 months direct imprisonment.
Moreover, he was discharged from the South African National
Defence
Force. The sentence was suspended pending the outcome of his appeal
to the Military Court of Appeal.
[4]
His appeal was heard by the Military Court of Appeal in Pretoria on
14 April 2002 in terms of
section 34(2)
of The
Military Discipline
Supplementary Measures Act No. 16 of 1999
. The Military Court of
Appeal confirmed the conviction and sentence.
[5]
The applicant was subsequently admitted to Grootvlei Prison in
Bloemfontein. It does not appear when he was jailed. At present
he is
still detained there. The applicant was aggrieved by his conviction
as well as sentence. He intends to appeal against both.
[6]
On Thursday 5 September 2002 he launched this application for his
release on bail pending his appeal to the Free State High Court.
I
deem it unnecessary to dwell on the merits now. I shall confine
myself to the three points raised
in
limine
.
[7]
Mr Möller, counsel for the respondent, raised the following points
in limine
at the beginning of these proceedings: Firstly, that there was a
glaring non-joinder of two interested parties; secondly, that there
was no measure of urgency and, thirdly, that the provisions of
section 35 of the General Laws Amendment Act No.62 of 1955 were not
complied with.
[8]
Mr Stander, counsel for the applicant, challenged all the submissions
advanced on behalf of the respondent. He contended that
there was no
misjoinder or non-joinder; that there was a measure of urgency and
that the court had the power to condone non-compliance
with the
provisions of section 35 of the General Laws Amendment Act No.62 of
1955.
[9]
The application was postponed to Friday 6 September 2002. On that day
I extended an invitation to the Director of Public Prosecution
in the
Free State to make an imput as to whether the director of public
prosecutions or the director of military prosecutions has
jurisdiction in this matter. The matter stood down until Monday 9
September 2002.
[10]
On Monday 9 September 2002 the Deputy Director of Public Prosecution
was represented by Ms Giorgi. She submitted that the National
Director of Public Prosecution had no interest or jurisdiction in the
matter and that the director of military prosecution was correctly
cited as the respondent in the application. I then reserved judgment
and postponed the case to Thursday 12 September 2002 for judgment.
[11]
It was contended on behalf of the respondent that the respondent was
wrongly cited as a party. Mr Möller argued that the applicant
lost
his status as a soldier on 27 August 2001 when he was discharged or
dismissed from the South African National Defence Force.
With that
loss of status the argument developed further that the respondent
lost jurisdiction over the applicant. I am not persuaded.
The
applicant was not charged as a civilian in a civilian court by the
civilian prosecuting agency. He was charged as a soldier in
a
military tribunal by the military prosecuting agency. He intends
appealing against the decision of the Military Court of Appeal
in an
attempt to have his military status restored. In my view the
respondent was correctly cited. Notwithstanding the said dismissal
and the subsequent detention of the applicant in a civilian prison,
the provisions of the Defence Act No.44 of 1957 and the
Military
Discipline Supplementary Measures Act No.16 of 1999
still applied to
him. For instance section 104(5)(c) of the Defence Act No. 44 of 1957
provides that the military discipline code
applies to all persons
lawfully detained by virtue of sentences imposed under the military
discipline code. The applicant is not
detained in terms of the public
criminal code, but the military discipline code, which is why the
Director of Public Prosecution
declines to get involved, in my view
correctly so. The submission of Mr Stander has merits in my view. He
is in good compan of Ms
Giorgi.
[12]
It was not necessary at all to join the minister of correctional
services. His department has no direct and substantial interest
in
these proceedings or any order the court may grant. Almost every day
the courts throughout this country hear countless bail applications.
The honourable minister is hardly ever cited as a party. I can see no
compelling reason why he should have been cited in this instance.
Ms
Giorgi has contended that the National Director of Public Prosecution
does not desire to trespass on the terrain of the director
of
military prosecution. Neither the minister of correctional services
nor the minister of justice are likely to be adversely affected
by
whatever order may emanate from these proceedings. They were in my
view not necessary parties to be joined. I am aware of the
decision
in
AMALGAMATED ENGINEERING
UNION v MINISTER OF LABOUR
1949 (3) SA 637
AD. My ruling does not do violence to the principle
laid down in that case. Should the court order the release of the
applicant in
this matter, I do not suggest that it will, such order
will not negatively and automatically mean that he should be released
even
if there are two or more other warrants on the strength of which
he was received and detained in jail. The cancellation of one warrant
of detention does not mean the cancellation of all the other warrants
of detention. As Mr Stander correctly pointed out this is way
our
justice criminal system operates.
[13]
The applicant’s wife has been hospitalised. She apparently has a
cardiac problem. Her condition is said to be deteriorating.
Mr
Venter, the applicant’s attorney, has struggled to put together the
military court record.
Prima
facie
a two year old
child’s welfare is at stake. I accept that the matter is urgent.
[14]
The provisions of section 35 of The General Laws Amendment Act No.62
of 1955 are peremptory. They are cast in very strong commandative
or
imperative mood - no court shall grant a rule
nisi
against an organ of the state. There is no question that the
respondent is indeed an organ of the state. The respondent deserved
to be given at least 72 hours notice of this application. It was not
done. No attempt was made to request a waiver from the respondent.
No
application for condonation was made. No reference to this important
statutory provision was made in the applicant’s papers.
I uphold
this point
in limine
.
The steps taken on behalf of the applicant to bring this matter to
court were procedurally unfair to the respondent.
[15]
But the reality of the situation is that somewhere out there there is
a child who is in desperate need of care. Though I decline
to condone
non-compliance with section 35 of The General Laws Amendment Act
No.62 of 1955 I urge the respondent in its free and absolute
discretion to bear the plight of the aforesaid child in mind and deal
with the matter in a humane and compassionate manner by, among
others, waiving the right in terms of the said enactment.
[
16]
Accordingly I make the following order:
16.1
The application is removed from the roll.
16.2
The applicant is granted leave to amend or amplify his papers and
thereafter serve the application upon the respondent afresh
if he
still wishes to pursue the matter having due regard to the provisions
of section 35.
16.3
The applicant is ordered to pay the wasted costs of this application
including the cost relating to the postponements of 5, 6
9 and 12
September 2002
.
M.H.
RAMPAI, J
On
behalf of Applicant: Mr H. Stander instructed by:Stander, Venter &
Kleynhans Bloemfontein
On
behalf of Respondent: Adv. M.J. Möller instructed by: Director:
Public Prosecution