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2024
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[2024] ZAFSHC 159
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Mokhele v Minister of Defence and Others (4228/2021) [2024] ZAFSHC 159 (24 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No
:
4228/2021
In
the matter between
:
MOTLALEPULA
JOHANNES MOKHELE
APPLICANT
and
MINISTER
OF DEFENCE
1
st
RESPONDENT
CHAIRPERSON:
COURT OF MILITARY APPEALS
2
nd
RESPONDENT
MILITARY
JUDGE: LT COL STEMMET
3
rd
RESPONDENT
CHIEF
OF MILITARY LEGAL SERVICES
4
th
RESPONDENT
DIRECTOR:
MILITARY PROSECUTIONS
5
th
RESPONDENT
CORAM:
CHESIWE, J et
GROENEWALD,
AJ
HEARD
ON
:
22 APRIL 2024
DELIVERED
ON:
24
MAY
2024
INTRODUCTION:
[1]
The applicant,
Mr Motlalepula Johannes Mokhele, was a military police official in
the South African National Defence Force
(SANDF)
and held
the rank of sergeant.
[2]
On 16 July
2019 the applicant was found guilty of the contravention of section
4(1)(a)(iv) of the Prevention and Combatting of Corrupt
Activities
Act 12 of 2004 by the Military Court in Bloemfontein.
[3]
The applicant
was subsequently sentenced on 16 July 2019 by the Military Court in
Bloemfontein to imprisonment for a period of 12
(twelve) months and
was discharged with ignominy from the SANDF.
[4]
The conviction
and sentence of the Military Court was subject to an automatic review
by the Court of Military Appeals in terms of
section 34(2) of the
Military Discipline Supplementary Measures Act 16 of 1999.
[5]
On 15 May 2020
the Court of Military Appeals confirmed the conviction of the
applicant by the Military Court and increased the applicant's
sentence from 12 (twelve) months to 48 (forty-eight) months. The
sentence regarding the discharge of the applicant with ignominy
from
the SANDF remained unaltered
.
[6]
The applicant
seeks to review and set aside his conviction and sentence by the
Military Court as well as the order of the Court
of Military Appeals
in which the applicant's conviction was confirmed and the sentence
increased.
[7]
The
respondents brought an application for condonation for the late
delivery of their answering affidavit and the applicant in turn
sought condonation for the late delivery of his replying affidavit.
Both counsel
for the applicant and the respondents conceded that there would be no
prejudice if the said condonation is granted
.
I therefore
granted condonation for the late delivery of the respondents
'
answering
affidavit as well as the applicant's replying affidavit.
[8]
Because both
the applicant and the respondents sought condonation for the late
delivery of their answering and replying affidavits
respectively, I
am of the
view
that the parties should be ordered to pay their own costs in respect
of their applications for condonation
.
CONDONATION
FOR LATE FILING OF APPLICATION:
[9]
The applicant
made the following allegations
in respect
of the
application for condonation
for the late
filing of the application for review:
[9.1]
Shortly after his conviction and sentencing on 16 July 2019, the
applicant requested the transcript of the trial in the Military
Court
and that process took approximately 4 (four) months;
[9.2]
The applicant has been serving his sentence since 19 May 2020. During
this time the country went under level 4 lockdown and
the applicant
had no access to lawyers;
[9
.
3]
On or about
July 2020 the applicant instructed Mr Fannie Zim from Zim Attorneys
Inc to assist him with the matter.
Mr Zim was
however unable to commit to this matter;
[9.4]
The applicant then instructed Mr Lebogang Mokhele from Mokhele Inc.
to assist with this matter but was informed by Mr Mokhele
that he was
unable to assist the applicant because Mr Mokhele was involved a
complex matter involving inmates from Grootvlei Prison;
[9
.
5]
During this
time the applicant suffered from emotional distress as a result of
his continuous failure to obtain legal assistance
and he felt
hopeless;
[9.6]
On 20 April 2021 the family of the applicant obtained the services of
counsel who assisted the applicant with the drafting
of a legal
opinion on the matter. The applicant was advised by counsel to launch
an application in the High Court and the applicant
had to obtain the
legal services of an attorney in Bloemfontein;
[9.7]
The applicant was able to obtain the services of his current attorney
of record in July 2021;
[9.8]
Due to his incarceration the applicant's family was under immense
financial pressure and had to rely on family members to
provide
financial assistance for applicant's legal fees.
[10]
On 13
September 2021 the application for review was issued by the Registrar
of this Court.
The
respondents delivered their notice of intention to oppose the
application for review on 18 October 2021.
[11]
According to
the respondents the applicant's explanation for his failure to launch
the review application timeously is inadequate
and is based on
unsubstantiated allegations of being failed by legal practitioners.
According to
the respondents there are also extensive periods that remain
unexplained by the applicant.
The
respondents further contend that they suffered severe prejudice as a
result of the unreasonable delay of the applicant in launching
the
application for review.
[12]
In
Competition
Commission v Pickfords Removals
[1]
the
Constitutional Court held that condonation is not a mere formality.
Good cause must be shown. Courts are afforded a wide discretion
in
evaluating what constitutes
"good
cause"
as
to ensure that justice is done. Ultimately the overriding factor is
the interests of justice.
[13]
In
Van
Wyk v Unitas Hospital
and
Another (Open Democratic Advice Centre as
Amicus
Curiae)
[2]
the
Constitutional Court held that whether it is in the interest of
justice to grant condonation depends on the facts and the
circumstances
of each case. Factors that are relevant to this enquiry
include
but
are not limited to the nature of the relief sought, the extent and
cause of the delay, the effect of the delay on the administration
of
justice and other litigants,
the
reasonableness of the explanation of the delay, the importance of the
issue to be raised in the matter and the prospects of
success.
[14]
Lateness
is not the only consideration in determining whether condonation
should be granted. In the interest-of-justice test required
for
condonation an applicant's prospects of success and the importance of
the issues to be determined are relevant factors.
[3]
[15]
In
Valor
IT v Premier Northwest Province
[4]
the
Supreme Court of Appeal held that one of the factors that must be
considered whenever condonation is sought is the applicant's
prospects of success on the merits.
It
must be borne in mind that the grant or refusal of condonation is not
a mechanical process but one that involves the balancing
of often
competing factors
.
So,
for instance, very weak prospects of success may not offset a full,
complete and satisfactory explanation for delay, while strong
prospects of success may excuse an inadequate explanation for the
delay.
[16]
I agree with
the respondents that certain time periods relating to the applicant's
delay was not fully explained by the applicant.
I however keep in
mind that
the
applicant has been incarcerated since 19 May 2020 and apparently
struggled to obtain legal representation
.
The
applicant's prospects of successes and the importance of the issues
to be determined by the Court remain important factors that
the Court
needs to consider.
[17]
As will be
evident
infra
the
applicant has strong prospects of success which in my view may excuse
the inadequate explanation for the delay proffered by
the applicant.
[18]
The relief
that the applicant seeks in this application is in my view very also
important as he
inter
alia
seeks
to review and set aside his conviction and sentence
of 48
(forty-eight)
months and his
discharge
with
ignominy from the
SANDF.
Even though the applicant has already served a substantial portion of
his sentence, his discharge with ignominy from the
SANDF
is
still an issue
that needs to be determined. The relief that the applicant seeks
is
therefore not
only academic in nature as the respondents contend. Should
condonation for the
late
filing of the
review application not be granted the applicant will be severely
prejudiced as he will be unable to seek the review
and setting aside
of his conviction and sentence. The prejudice that the applicant may
suffer should condonation be refused will
in my view outweigh any
potential prejudice that the respondents may suffer if condonation in
granted.
[19]
Having
considered all the relevant facts and circumstances in this matter I
am persuaded that it will be in the interest of justice
to grant
condonation to the applicant for the late filling of his application
for review.
[20]
It
is trite that an applicant for condonation
seeks
an indulgence from Court. As a general rule the applicant for an
indulgence should pay all such costs as can reasonably
said
to be wasted because of the application.
[5]
[21]
I could find
no reason to deviate from the usual cost order and is therefore of
the view that the applicant should be ordered to
pay the respondents'
costs relating to the application for condonation for the late
filling of his application for review.
NON
- JOINDER:
[22]
The applicant
was represented in the Military Court by Mr Crous from Dippenaar &
Crous Attorneys in Bloemfontein. The applicant
was a policy holder at
a legal insurance company known as Scorpion Legal Protection and Mr
Crous was appointed by Scorpion Legal
Protection to represent the
applicant in the Military Court.
[23]
The
respondents contend that the applicant should have joined Scorpion
Legal Protection and Mr Crous as parties to the application.
[24]
The
test relating to non-joinder is whether or not a party has a
"direct
and substantial interest”
in
the subject matter of the application, i.e
.
a
legal interest in the subject matter of the litigation that may be
affected prejudicially by the judgment of the court.
[6]
The mere fact that a party may have an interest in the outcome of the
litigation does not warrant a non-joinder challenge.
[7]
[25]
The applicant
does not seek any relief against Scorpion Legal Protection or Mr
Crous and I am of the view that they do not have
any direct and
substantial interest in this application that may be affected
prejudicially by the judgment of the Court.
[26]
I therefore
find that there was no need for the applicant to join Scorpion Legal
Protection or Mr Crous as parties to this application.
THE
GROUNDS FOR REVIEW:
[27]
In the
Military Court the applicant was represented by Mr Crous. According
to the applicant Mr Crous however never had instructions
to represent
him in the review proceedings in the Court of Military Appeals
.
The applicant
indicated that the last time he in fact communicated and issued an
instruction to Mr Crous was during the trial proceedings
in the
Military Court.
[28]
It is common
cause between the parties that before the review could be adjudicated
Mr Crous sent communication
to the Court
of Military Appeals, on 5 May 2020
,
indicating
that his services as the legal representative of the applicant were
terminated.
[29]
On 13 May 2020
,
after he
already indicated that his services as the legal representative of
the applicant were terminated
,
Mr Crous sent
further correspondence to the Court of Military Appeals in which he
stated that the Court of Military Appeals can
adjudicate the review
"
on
paper
"
based on
the heads of argument that was submitted. Mr Crous further indicated
that he
would
furnish supplementary heads of argument to the Court of Military
Appeals before 14 May 2020.
[30]
In the
judgement of the Court of Military Appeals the following was stated:
"
Counsel
for the State and accused were alerted to the possibility that the
court considered increasing sentence, and were asked
to address the
court on the matter. Extensive heads of argument were fortunately
submitted
,
for
Mr Graus could not attend the proceedings.
We
are however satisfied that the arguments forwarded
by
both counsel
in
their heads
of
argument
were
sufficient
for
this court to come to
a
finding.
We
take note that Mr Craus' mandate had been ended after he submitted
his heads, but the accused and his legal insurance organisation
(Scorpion) indicated that they were content that this court decide
the matter only on the supplied heads of argument”'
[8]
(sic)
(Emphasis
added.)
[31]
The applicant
denied that he or Scorpion Legal Protection agreed that the Court of
Military Appeals could adjudicate the review
only on the heads of
argument and reiterated that Mr Crouse never had instructions to
represent him in the review proceedings
.
[32]
The
applicant further alleged that he did not receive any notice from the
Court of Military Appeals informing him of its intention
to increase
the sentence of the applicant.
[9]
In their answering affidavit the respondents merely alleged that they
do not have knowledge of the applicant's aforesaid allegation
and
therefore denied same. Counsel for the applicant correctly argued
that the respondents' aforesaid denial constitutes a bare
denial.
[33]
According to
the applicant he was prejudiced because the Court of Military Appeals
effectively entertained the review, confirmed
his conviction and
increased his sentence in his absence
.
The applicant
therefore contended that his right to a fair trial in terms section
35(3) of the Constitution
of the
Republic of South Africa, 1996 was infringed
.
[34]
In terms of
section 35(3) of the Constitution of the Republic of South Africa,
1996 every accused person has the right to a fair
trial which
includes the right to be present when tried and to choose, and be
represented by, a legal practitioner.
[35]
In my view Mr
Crous was not authorised to agree that the Court of Military Appeals
can adjudicate the review on the heads of argument
because his
mandate was already terminated at that juncture. Despite the fact
that Court of Military Appeals was aware that the
mandate of Mr Crous
was terminated it still proceeded to adjudicate the review solely on
the heads of argument. The Court of Military
Appeals therefore
adjudicated the review in the absence of the applicant and without
affording the applicant an opportunity to
be represented by a legal
practitioner in order to advance the necessary legal argument. I am
therefore of the view that the proceedings
in the Court of Military
Appeals were procedurally unfair and the applicant's right to a fair
trial before the Court of Military
Appeals was infringed.
[36]
I am therefore
of the view that the judgment and order by the Court of Military
Appeals should be reviewed and set aside and that
the matter should
be referred back to the Court of Military Appeals in order to
consider the applicant's review afresh
.
COSTS:
[37]
A
successful litigant is generally entitled to his or her costs.
[10]
[38]
The respondents
argued that
should the application be granted in favour if the applicant each
party should be ordered to pay their own costs of
the application.
I
was however unable to find any reason why the principle that a
successful litigant is generally entitled to his or her costs should
not be applied in this application.
[39]
I am therefore
of the view that the respondents
should be
ordered to pay the applicants costs relating to the application for
review.
[40]
All the
parties are
ad
idem
that
the costs consequent upon the employment of counsel in this matter
should be allowed on scale A.
[41]
Accordingly I
make the following order:
[41.1]
Condonation is granted to the applicant for the late filling of his
application;
[41.2]
The applicant is ordered to pay the respondents' costs relating to
the application for condonation for the late filling of
his
application, including costs of counsel as per scale A.
[41
.
3]
The
judgment
and order by the Court of Military Appeals under case number 41/2019
is hereby
reviewed and set aside.
[41.4]
The automatic review of the applicant’s conviction and
sentencing by the Military Court under case number 86/2019 BFN
is
referred back to the Court of Military Appeals in order to consider
the applicant’s review afresh.
[41.5]
The respondents are ordered to pay the applicant’s costs
relating to the application for review, including costs of
counsel as
per scale A.
WJ.
GROENEWALD, AJ
I
Concur
S.
CHESIWE, J
On
behalf of the Applicant:
Adv.
D De Kock
Wesi
Attorneys
Bloemfontein
On
behalf of the Respondents:
Adv.
TM Ngubeni
The
State Attorney
Bloemfontein
[1]
2021
(3)
SA 1
(CC) AT 21D
–
F
[2]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at
477A-
C; Also see Competition Commission
v
Pickfords Removals
supra
at
21D-F
[3]
Ferris
v Firstrand Bank
2014 (3) SA 39
(CC) at 43G -
44A
[4]
2021
(1)
SA 42
(SCA)
at 54E - G
[5]
Myers
v Abramson 1951
(3)
SA 438 (CPD) at
455G-h
[6]
Henri
Viljoen (PTY) Ltd v Awerbuch Brothers
1953 (2) SA 151
(O)
at 168 -170; PE Bosman Tranport WKS Com v Piet Bosman Transport
1980
(4) SA 801
(TPD)
at 804B; ABSA Bank v Naude
2016 (6) SA 540
(SCA) at 542I -
534C
[7]
Judicial
Service Commission v Cape Bar Council
2013 (1) SA 170
(SCA) at 176I
[8]
Record,
p.21
[9]
Record,
p
.
92,
par 19.2
[10]
Kathrada
v Arbitration Tribunal
1975 (2) SA 673
(A) at 679B, Baptista v
Stadsraad van Welkom 1996
(3)
SA 517 (O) at 521E
-F