IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO. 118/2020
In the matter between:
LADUMA NOMATYE PLAINTIFF
and
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES FIRST DEFENDANT
THE HONOURABLE MAGISTRATE:
VAN PAPENDORP SECOND DEFENDANT
JUDGMENT
Rugunanan J
[1] On 11 April 2024, I granted an application for absolution from the instance
with costs. What follows are the reasons for the order.
[2] This is a civil action in which damages claimed by the plaintiff against the
defendants, jointly and severally, are set out in the particulars of claim as follows:
‘35.1 Unconstitutional deprivation of freedom and security of the plaintiff for
approximately 2½ years at Goedemoed and Middeldrift Correction facilities –
R10 000 000;
35.2 Unconstitutional deprivation of freedom and security and freedom of
movement as parolee at the plaintiff’s house for approximately 2 years –
R7 500 000;
35.3 Breach of the plaintiff’s constitutional rights, inclusive of the right to a fair trial,
the impairment of human dignity and associated rights set out in the Bill of
Rights and associated contumelia – R2 500 000.’
[3] Formulated as they are and flowing from the manner in which the plaintiff’s
cause of action has been pleaded , it appears at first glance that damages are
sourced directly from the Constitution. In heads of argument the legal basis for the
claim the plaintiff advances is for constitutional damages as a remedy in delict. 1 I will
approach the matter on that basis seeing as it appears from the particulars of
claim/pleading that the plaintiff’s claim is couched as one under the actio iniuriarum
in the light of the allegation that the second defendant acted with malice.
[4] A feature of applications of this sort is that they are usually brought at the
close of the plaintiff’s case without the defendant having given any evidence. T here
is no evaluation or weighing up of the evidence hence the conventional approach2 to
determining the facts in a civil trial once the parties have placed all their evidence
before court does not factor . The power to grant absolution at the end of a plaintiff’s
case is therefore one that should be granted sparingly and in the interests of justice.3
1 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) paras 67 and 74; Mankayi v Anglo
Gold Ashanti Limited 2011(5) BCLR 453 (CC) para 17; Law Society of South Africa v Minister of
Transport 2011 (1) SA 400 (CC) para 73.
2 As laid down in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at
440D-G. See too Mabona & another v Minister of Law and Order & others 1988 (2) SA 654 (SE) at
662C-F; Stellenbosch Farmers’ Winery Group Ltd & another v Martell et Cie & others 2003 (1) SA 11
(SCA) para 5; Dreyer & another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) para 30.
3 Gordon Lloyd Page and Associates v Rivera and Another 2001 (1) SA 88 (SCA) 88 at 93A.
[5] In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G -H the
test has been formulated in these terms:
‘. . . When absolution from the instance is sought at the close of plaintiff’s case, the
test to be applied is not whether the evidence led by the plaintiff establishes what
would finally be required to be established, but whether there is evidence upon which
a Court, applying its mind reasonably to such evidence, could or might (not should,
nor ought to) find for the plaintiff. ( Gascoyne v Paul and Hunter 1917 TPD 170 at
173; Ruto Flour Mills (Pty) Ltd v Adelson (2) SA 307 (T))’
[6] The practical approach to applying the test is that it requires the court to
establish whether there is sufficient evidence that prima facie relates to all the
elements of the claim. In its evaluation to this end Harms JA in Gordon Lloyd &
Associates v Rivera 4 held that it is not necessarily correct for the court to require
‘evidence upon which a reasonable man might find for the plaintiff’ ( Gascoyne (loc
cit))5. The formulation in those terms tends to cloud the issue as the court ought not
to be concerned with what someone else might think; it should rather be concerned
with its own judgment and not that of a reasonable person or court.6
[7] Broadly stated, the plaintiff, a former employee and member of the National
Prosecuting Authority advances a case arising from the conduct and decision of the
second defendant as presiding magistrate in the course of the plaintiff’s prosecution
in the Regional Court, Aliwal North allegedly for corrupt activities in contravention the
Prevention and Combatting of Corrupt Activities Act7. The plaintiff alleges inter alia
that the second defendant’s refusal to accede to a request for a postponement to
obtain the services of a n alternative legal representative resulted in the criminal trial
against him being tainted by unfairness occasioning his unlawful conviction and
sentence. On the basis that the second defendant is alleged to be an employee of
the first defendant ( i.e. the Minister of Justice and Constitutional Development) , and
that she act ed in the course and scope of her employment , the plaintiff imputes
4 2001 (1) SA 88 (SCA).
5 This is how the test was formulated in Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto
Flour Mills (Pty) Ltd v Adelson (2) SA 307 (T)
6 Gordon Lloyd Page and Associates v Rivera and Another supra para 2.
7 Act 12 of 2004.
vicarious liability to the first defendant as head of the Department of Justice who is
liable for the conduct of its employees.
[8] In so far as the issue of the liability of the second defendant in her capacity as
a judicial officer is concerned, and its implications for the first defendant, this is dealt
with much later in this judgment in the discussion pertaining to vicarious liability.
[9] Repeating only where necessary, the following allegations in the particulars of
claim gives context to the matter:
‘10. On the 9 th of July 2014, the plaintiff indicated to his legal representative, Mr
Scheun, that he no longer requires his services, due to a breakdown in trust
between the plaintiff and Mr Scheun, whereafter the plaintiff requested an
alternative legal representative . The aforementioned request was
communicated to the second defendant in open court.
11. On the date mentioned in paragraph 10 supra, the plaintiff’s legal
representative, Mr Scheun , was excused by the second defendant, and as a
result, ceased to act on behalf of the plaintiff.
12 …
13. The plaintiff communicated to the second defendant, in open court, that he is
unable to conduct his own defence and requires legal representation.
14. In response to the plaintiff’s request for a postponement to secure an
alternative legal representative, the second defendant uttered the following
statements which statements were uttered with malice:
14.1 “Are you in a position to proceed today? Because I ’m not going to grant any
further postponement for you for a legal advisor.”
14.2 “I’m not going to grant any further postponement for you to get other legal
representation. We will proceed today. This was an informed choice you
made yourself.”
14.3 “So if you want to a postponement today for a further legal application, sir, it is
refused.”
14.4 “You are finished, sir, you sit down.”
14.5 “Sir, are you now going to be – I can hold you in contempt of court. I’ve told
you to sit down, I’ve made my ruling.”
14.6 “Now without any good cause, you fired him. So you have negated any right
you have to further to apply to this court for legal representation.”
15 As a result of the second defendant’s refusal of the plaintiff’s request for a
postponement to secure alternative legal representation, the trial against the
plaintiff proceeded without the plaintiff being legally represented.
16. The refusal by second defendant of plaintiff’s request for a postponement to
secure alternative legal representation, and the decision by second defendant
to continue with the trial without plaintiff being legally represented, resulted in
an unfair trial which [was] unfair, unreasonable, tainted and unjust trial [and]
continued unabated throughout the hearing, conviction and sentencing. The
whole trial, conviction and sentence was tainted with this aforesaid unfairness.
17 - 21 …
22. The plaintiff , in terms of section 35(3) (f) and (g) of the Constitution of the
Republic of South Africa, has the right to a fair trial, which inter alia entitles the
plaintiff to:
22.1 choose and to be represented by a legal practitioner and to be informed of
this right promptly;
22.2 have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly.
23. The plaintiff furthermore has, in terms of section 73 (2) of the Criminal
Procedure Act 51 of 1977 (CPA), the right to be represented by his legal
adviser at criminal proceedings, if such legal adviser is not in terms of any law
prohibited from appearing at the proceedings in question.
24 - 26…
27. The first and second defendant owed the plaintiffs a duty of care to consider
the substantial injustice to the plaintiff, in limiting the plaintiff’s statutory right to
legal representation in terms of section 73(2) of the CPA, as set out in
paragraph 23 supra.
28. The first and second defendants, by virtue of the malicious conduct of the
second defendant… breached the plaintiff’s constitutional rights enshrined in
section 35 of the Constitution of the Republic of South Africa and the plaintiff’s
statutory right enshrined in section 73(2) of the CPA.
29. The limitation, and subsequent breach of the plaintiff’s constitutional rights as
set out above was not reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.
30 - 31…
32. The refusal of legal representation for the plaintiff by the second defendant
breached the plaintiff’s constitutional rights as enshrined in the Bill of Rights,
constituting a constitutional and statutory breach of their duty of care towards
the plaintiff … and resulted in a trial that was unfair, unreasonable, tainted,
and unjust, which said trial wrongfully unlawfully and unfairly continued
unabated throughout the hearing, conviction and sentencing …
33. Due to the first and second defendants breach of their constitutional and
statutory duty of care towards the plaintiff, resulting in the unfair,
unreasonable, tainted, and tarnished trial which continued and resulted in the
unlawful, wrongful, and unjustified conviction and sentence past (sic) upon the
plaintiff, the plaintiff suffered impairment to his freedom of movement, dignity,
bodily integrity and reputation as well as associated contumelia’.
[10] The trial culminated in the plaintiff’s conviction for fraud on 30 September
2014 for which he was sentenced on 28 April 2015 to 5 years’ imprisonment, part of
which he served directly at Goedemoed and at Middledrift with the remainder served
as a parolee effective from 31 October 2017. On 11 September 2019 and following
an appeal granted on petition against his conviction ( by then a substantial portion of
the sentence already served), the conviction and sentence were set aside by an
appeal court of this division in the exercise of its inherent power of review.
Subsequent to the present action being instituted by summons issued on 24 January
2020, the criminal prosecution against the plainti ff has been reinstated and is
pending.
[11] For present purposes it is unnecessary to traverse an all -inclusive analysis of
the plaintiff’s testimony. He is not an unsophisticated individual. Despite adversities
in life, he obtained a law degree (LLB) and charted his career in the legal profession
earning a livelihood initially as a candidate attorney, then as a Legal Aid employee ,
and later as a member of the prosecutorial authority in Aliwal North after completing
an aspirant programme. He has a wife with whom he has three children.
[12] In the main, he testified about his experience of his direct incarceration, the
hardy conditions which he endured, the constraints on his freedom of movement and
challenges in communicating with the outside world as a sentenced offender
including challenges imposed by parole restrictions, as also the undesirable effect of
his incarceration on himse lf, its effect on his family and his isolation from the
community. He testified that the community perceives him as a criminal and as
someone who cannot be trusted. Parenthetically, and in response to questions about
his current occupation and place of employment the plaintiff supplied trial particulars
on 25 October 2022 in which he expressly indicated that he was a PR Councillor
employed at the Ngqushwa Municipality.
[13] Following his dismissal from the prosecutorial ranks in 2013 he lost everything
and at some stage engaged in alcohol and drug abuse . He is presently unemployed.
In the course of his criminal prosecution he was warned by the second defendant
one of the conditions of section 342A of the Criminal Procedure Act 8 was that he
should stick to his choice of legal representation and not change his mind. He
testified there is no such condition contained in the section and asserted that the
second defendant failed to hold an enquiry under the section because she was of the
opinion that he was wasting time . It may fairly be presumed that the plaintiff has a
working knowledge of what the section entails. While referring to the
transcript/record of the trial proceedings and testifying about his request for legal
representation following the withdrawal of Mr Scheun and the second defendant’s
refusal to grant him a postponement, he stated that he was not in a position to
continue with the trial but that the second defendant ‘can proceed’ and that he would
not be taking notes or asking questions.
[14] While testifying in chief, evidence of the plaintiff’s loss of employment was
elicited and the effect it had on his family obligations, particularly having necessitated
that his children change schools and that he and his family became dependant on
his mother and sisters for support. Plaintiff’s counsel indicated that sight could not be
lost of the fact that the loss of income flowed from the unfair trial which contributed to
the additional suffering of the plaintiff. Since this appeared to be an attempt to elicit
evidence of patrimonial damages it is not surprising that an objection was raised
considering that a claim in the order of R20 million may conceivably secret a claim
for patrimonial loss where this has not been specifically pleaded. The Plaintiff further
testified about how the multiple series of postponements of the criminal trial had
been procured in the period between its inception and the date of the second
defendant’s refusal. The postponements are recapitulated elsewhere in this
judgment.
8 Act 51 of 1977.
[15] Cross-examination of the plaintiff was directed at establishing that his legal
experience rendered him subjectively aware that he would probably be found guilty
of a corrupt activity associated with receipt of gratification , that by terminating the
mandate of his legal representative he sought to enforce a delay by seeking a
postponement of the proceedings , that there is no absolute right to legal
representation, that the unavailability of a legal representative is not necessarily a
basis for seeking a postponement which the second defendant refused in the
exercise of her judicial functions, that he suffered loss through his own conduct, and
that as a legally trained person he was aware of his rights of appeal and review in
terms of the Criminal Procedure Act 9. On being c onfronted by material emanating
from the record of the trial before the second defendant (the record) , the plaintiff
consistently refrained from making admissions of fact and concessions by asserting
his right against self -incrimination. He also effectively insul ated himself from
admissions sought from video footage.
[16] The footage indicates two male persons interacting with each other – the one
handing over Rand notes to the other. The footage forms part of the criminal trial
record and was viewed following a ruling that it constitutes real evidence10 and may
be used during cross-examination. The quality of the replay was flawless and it is
startling that the plaintiff refused to identify himself notwithstanding it being obvious
that he featured therein. In making this remark, I constrain it to the identity of the
plaintiff and it is by no means intended to express a finding related to the alleged
illegal activity forming the substance of the charge/s against him in the reinstated
prosecution. I think defendants’ counsel is correct when he contends in his heads of
argument that the plaintiff’s refusal ‘bordered on the ludicrous’.
[17] The ruling permitting the use of the footage flows from t he minutes of the
parties’ rule 37 conference. The minutes reflect agreement that the record and other
specified documents such as the audio from the recording of the proceedings can be
referred to and used during trial without the need to prove authenticity. As expected,
and understandably with each party seeking leverage to advance its own case , there
9 Act 51 of 1977.
10 S v Mdlongwa 2010 (2) SACR 419 (SCA) para 22; S v Mpumlo and Others 1986 (3) SA 485 € at
490H-I.
were differing contentions about what this meant. The bottom line is that there is no
explicit agreement that the record itself correctly constitutes evidence of the matters
therein, nor is there a caveat that same may not be used during cross-examination.
[18] Apart from le aning on constitutional grounds to avoid self -incrimination, the
so-called Hollington rule11 also len t support for the plaintiff’s refrain. The rule is
authority for the view that a finding in a criminal case cannot in a subsequent civil
case serve as evidence of a fact that the criminal court had considered to be
proved.12 The inverse of the Hollington rule is to the effect that the findings in a civil
court are inadmissible in subsequent criminal proceedings.13
[19] Whatever the purport of cross -examination and the concessions that were
attempted to have been elicited from the plaintiff, the State would nonetheless be
required to prove them in the pending criminal proceedings on a standard higher
than a civil trial. It seems to me that the premise of the plaintiff’s refrain may be that
the court in the criminal trial would be influenced by the pronouncements in the
present matter.
[20] There is no basis for this.
[21] Nor is there a basis for the argument that plaintiff’s refrain finds support in
section 2 and section 14 of the Civil Proceedings Evidence Act 14. Section 2 provides
that no evidence as to any fact, matter or thing which is irrelevant or immaterial and
cannot conduce to prove or disprove any point or fact in issue should be admissible.
Section 14 prevents a witness in a civil action from refusing to answer a question
where the answer might expose them to civil liability, but it reaffirms the right not to
be compelled to give self -incriminating evidence in the context of a civil trial. 15 Seen
in the light of the plaintiff’s insistence to proceed to trial in this matter – having been
11 Hollington v F Hewthorn & Company Ltd [1943] KB 587 (CA) ([1943] 2 All ER 35.
12 See generally Schwikkard Mosaka, Principles of Evidence, Juta 5th ed at pp106-108
13 R v Lechudi 1945 AD 796; Pelser v Director of Public Prosecutions (Transvaal Provincial Division)
and Others [2008] ZAGPHC 426 paras 8 -9; Institute for Accountability in Southern Africa v Public
Protector and Others [2020] ZAGPPHC 64; [2020] 2 All SA 469 (GP; 2020 (5) SA 179 (GP) para 22.
14 25 of 1965.
15 MTN (Pty) Ltd v Madzonga and Others [2023] ZAGPJHC 188; 2023 (5) SA 548 (GJ) para 25.
fully advised by his legal representatives of the risks , his refrain during cross -
examination was criticised by the defendants as obstructive.
[22] It would be edifying for the plaintiff to grasp that t he institution of cross-
examination constitutes a right and it imposes certain obligations. When it is aimed
to suggest that a witness is not speaking the truth on a certain point, or perhaps
intended to put a proposition to the witness, it is essential to direct their attention
thereto so that the witness is given the opportunity of putting up an explanation or
defending their character .16 This is consistent with the elementary and standard
practice for a party to put to an opposing witness so much of its own case or defence
to avoid the assumption that if left unchallenged the witness ’s evidence may be
accepted as correct17.
[23] What emerges from the discourse in the preceding paragraphs is that there is,
at this stage of the proceedings, no evidence before this Court suggesting that the
plaintiff was involved in corrupt activities. Nor can factual conclusions be drawn from
the video footage to implicate him, other than the patent indication that the person
who received money is the plaintiff himself.
[24] A delict is defined as the act of a person that in a wrongful and culpable way
causes harm to another. 18 A remedy in delict requires the plaintiff to establish all its
elements, namely, conduct, wrongfulness, fault, causation, and harm or loss.
[25] In what follows hereafter is an assessment of these elements to establish
whether on the appropriate test for absolution this Court could or might reasonably
find for the plaintiff. The exercise is undertaken having regard to the general
approach to pleadings that their intended purpose is to define the issues between
the parties and to enable the court to adjudicate those issues based on the evidence
adduced by the parties.19
16 Compare President of the Republic of South Africa v South African Rugby Federation Union 2000
(1) SA 1 CC para 61; Swanevelder v Road Accident Fund [2007] ZAGPHC 201 para 19 and
authorities cited in the footnote thereto.
17 Small v Smith 1954 (3) SA 434 (SWA) at 438E-G.
18 Neethling et al, Law of Delict, 7th ed p4; LAWSA Volume 15 (third edition) p3 para 2.
19 See generally Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 897F-I.
[26] In the prep aration of this judgment I have, in addition, had regard to the oral
submissions and written arguments prepared by the parties’ counsel to whom I
express my gratitude.
Conduct
[27] This requirement presents no difficulty. It is a positive act. It is not disputed
that following the second defendant’s refusal of the postponement request the trial
against the plaintiff proceeded without the plaintiff having been legally represented.
Wrongfulness
[28] To establish liability in delict, a defendant’s conduct must be wrongful.
[29] Wrongfulness necessitates a distinct and separate enquiry from the other
elements for delictual liability. 20 It is not to be conflated with the requirement of fault
(dealt with later in this judgment). The enquiry into wrongfulness is conceptually
anterior to the fault enquiry21 assuming all the other elements for delictual liability are
present22. When enquiring into wrongfulness, one can either focus on the
infringement of a right or the breach of a legal duty. In the final analysis, the decision
involves an assessment of reasonableness and public policy 23 underlying which
there is an explicitly normative approach rooted in the Constitution.
[30] In Le Roux v Dey24 Brand JA described wrongfulness as follows:
‘In the more recent past our courts have come to recognise, however, that in the
context of the law of delict: (a) the criterion of wrongfulness ultimately depends on a
judicial determination of whether – assuming all the other elements of delictual
liability to be present – it would be reasonable to impose liability on a defendant for
the damages flowing from specific conduct; and (b) that the judicial determination of
that reasonableness would in turn depend on considerations of public and legal
policy in accordance with constitutional norms. Incidentally, to avoid confusion it
20 Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA) para 11 and the authorities
cited.
21 Minister of Safety and Security v Van Duiwenboden 2002 (6) SA 431 (SCA) at 442A.
22 Van Der Walt and Midgley, Principles of Delict, LexisNexis 4th ed at 99 para 75.
23 Loubser and Midgley et al, The Law of Delict in South Africa, Oxford 2nd ed p145
24 2011 (3) SA 274 (CC) para 122 (footnotes omitted).
should be borne in mind that, what is meant by reasonableness in the context of
wrongfulness has nothing to do with the reasonableness of the defendant’s conduct,
but it concerns the reasonableness of imposing liability on the defendant for the
harm resulting from that conduct.’
[31] Wrongfulness is a matter of law. Courts usually do not hear evidence on the
issue. It is incumbent on the plaintiff to make and prove factual allegations
substantiating the relevant policy considerations from which wrongfulness, which is a
matter for judicial determination, can be deduced. 25 As will be seen from the ensuing
discussion the manner in which the plaintiff’s cause of action has been pleaded was
described in argument by the defendants as ‘problematic’ – an epithet which the y
submit, is not without merit.
[32] For that reason it will do well to digress somewhat and say something about
the purpose of pleadings. A general rule is that pleadings must be lucid, logical and
intelligible26. Pleadings serve the purpose of bringing clarity, to the notice of the court
and to the parties in an action, the issues upon which reliance is to be placed. This
objective can only be attained when parties state their cases with precision, the
degree of which depends on the circumstances of each case27.
[33] Uniform rule 18(4) serves as a guideline for the careful drafting of a pleading.
In brief, the rule requires that every pleading shall contain a clear and concise
statement of the material facts upon which a pleader relies and that such facts be set
out with sufficient particularity to enable the opposite party to reply thereto. The
clarity and precision required of a pleading is explained in Jowell v Bramwell -Jones
and Others28:
‘[T]he plaintiff is required to furnish an outline of its case. That does not mean that
the defendant is entitled to a framework like a crossword puzzle in which every gap
can be filled by logical deduction. The outline may be asymmetrical and possess
25 Loubser and Midgley ibid p143; Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
2009 (2) SA 150 (SCA) paras 13-15.
26 Trope v South African Reserve Bank and Another 1992 (3) SA 208 (T) at 210H.
27 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (AD) at 107C-E.
28 1998 (1) SA 836 (W).
rough edges not obvious until actually explored by evidence. Provided the defendant
is given a clear idea of the material facts which are necessary to make the cause of
action intelligible, the plaintiff will have satisfied the requirements [of the rule].’29
[34] In that regard it is of importance to be mindful of the distinction between facta
probanda or primary factual allegations (i.e. material facts) which a pleader must
make and facta probantia which are secondary allegations or evidence upon which
the pleader will rely to prove the primary allegations.30
[35] In heads of argument the plaintiff approaches the wrongfulness issue from the
perspective of the infringement of a right and the breach of a legal duty.
[36] On the pleadings a case is advanced that the plaintiff’s rights under section 35
of the Constitution have been maliciously infringed.
[37] He argues in the first instance that the appeal court set aside his conviction
and sentence based on the infringeme nt of his right to a fair trial and because the
judgment has not been appealed against, it sta nds. By way of a brief excurses the
plaintiff’s allegation that his section 35 rights (which includes the right to a fair trial)
have been infringed is plainly disputed in the defendants ’ plea . The ir denial is
coupled with a pleaded form of justification (clarified later).
[38] In the second instance the plaintiff argues that:
‘[T]he factual infringement of a right contained in the Bill of Rights is prima facie
unlawful. The right of an accused to a fair trial places a correlative duty on the
presiding officer, to have a legal duty to respect and to prevent infringement thereof.’
As will become apparent from what follows below the short shrift approach to this leg
of the argument is that the plaintiff’s pleaded case does not to properly identify the
right/s infringed to accentuate the correlative duty contended for.
29 at 913F-G.
30 Nasionale Aartappel Korporasie Beperk v Price Waterhouse Coopers Ing en andere 2001 (2) SA
790 (T) at 797G-I and 798C-E; Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 903A -B;
and Makgae v Sentraboer (Koöperatief) Bpk 1981 (4) SA 239 (T) at 245D-E.
[39] Turning to the judgment of the appeal court , it is noteworthy to make a few
observations. To start with, the appeal court made the finding that the second
defendant’s refusal of the postponement ‘is not consistent with the constitutionally
(sic) imperative that assures accused persons of the entitlement to legal
representation’. This finding is distinct from the infringement of the right to a fair trial
which is now argued in these proceedings. Moreover, the appeal court did not make
a specific finding in terms of section 22 of the Superior Courts Act 31, and it tempered
its order ‘with no aspersions cast on [the] magistrate’.
[40] Aside from these remarks, I have reservations about whether the finding in
the appeal court judgment assumes relevance in these proceedings. I was not
referred to a decision in support of the contention that a finding of a court on review
can be used to prove a disputed fact (s) in a subsequent civil trial. Without intending
criticism, the appeal court judgment merely represents the opinion of another court
and is inadmissible in these proceedings.
[41] Adverting once again to the alleged infringement of plaintiff’s section 35 rights,
the question of a legal remedy for a particular consequence can only arise once the
relevant right alleged to have been infringed has been properly identified and
pleaded. The plaintiff relies on two provisions: the right to choose a legal practitioner
and to be represented by that person (section 35(3) (f)), and the right to have a legal
practitioner assigned by the State and at State expense if substantial injustice would
otherwise result (section 35(3) (g)). Underlying section 73(2) of the Criminal
Procedure Act is that an accused person shall be entitled to be represented by his
legal adviser at criminal proceedings.
[42] Foundational to sections 35(3) (f) and (g) is that they ensure fulfilment of the
right to legal representation. But the right in each instance, is discrete. The principle
underlying each right is affected by different factual considerations which suggests
that each right is capable of being fulfilled or realised in different ways. This is
unheeded in paragraph 28 of the particulars of claim in which it is baldly asserted
31 Act 10 of 2013.
that the defendants have breached the plaintiff’s rights in section 35 of the
Constitution and his right under section 73(2) of the Criminal Procedure Act. Whether
it is intended to suggest that section 73(2) is a self -standing right or a fusion of the
rights in section 35(3) (f) and (g) of the Constitution is indeterminate – but that is not
the issue to be decided (nor has it been pleaded). One merely notes that section
73(2) refers to the right to a ‘legal adviser’, whereas sections 35(3)(f) and (g) refers
to a ‘legal practitioner’. The expressions are not defined in the Criminal Procedure
Act or in the Constitution. The lack of definitions for these terms may , presumably,
not be of much significance in the context of a criminal trial, but in the context of a
civil action for damages for an alleged breach of right( s), the distinction may
conceivably be of importance in assessing exactly what right is asserted and (on the
plaintiff’s case) how it ought to have been given effect by the second defendant
when she refused the postponement.
[43] Accordingly, and c onsidering that each right in section 35(3) (f) and section
35(3)(g) can be fulfilled by different means it is not clear which of them has been
breached.
[44] The pleaded reference to section 73(2) lends no clarity either.
[45] Differently stated, the particulars of claim neither indicates exactly what right
to legal representation was breached nor does it reveal the factual considerations
underlying each right which the second defendant may either have regarded or
disregarded upon refusal of the requested postponement. No attempt to seek
clarification on these aspects was elicited from the plaintiff when he testified save
that he stated that upon requesting the postponement he wished to obtain the
services of a ‘legal aid’ attorney. Because the record has not been admitted as
evidence and is precluded by the Hollington rule, it was incumbent on the plaintiff to
have pleaded, as a material fa ct, his choice of representation in anticipation of his
testimony (the facta probantia). In evaluating delay one can conceive that there may
be numerous and varying factual considerations that come into play when a judicial
officer is required to exercise a discretion in deciding whether to grant a
postponement to enable an accused either the right to exercise his own choice of
appointing a legal practitioner or to have a legal practitioner assigned at State
expense. These considerations ultimately affect how the exercise of the discretion of
the presiding officer conduces to the interests of the administration of justice.
Moreover, to have pleaded that which the plaintiff intended to testify would have
identified the issue on which the Court would be required to make a finding. Since
the record is not admitted into evidence and the plaintiff’s pleading not formulated
with clarity, the Court and the defendants are deprived of a more complete picture of
the plaintiff’s case.
[46] Another problematic feature of the pleading is that it discernibly indicates that
the plaintiff’s cause of action appears to be founded on the second defendant’s
refusal of his request for a postponement . Read in context, indications are that the
plaintiff’s right to legal representation entitled him to a postponement as of right – the
refusal of the latter constituting wrongfulness. A postponement of a criminal trial lies
within the discretion of the presiding judicial officer. 32 (This features in the context of
section 342A which is dealt with below).
[47] The plaintiff’s pleading refers to section 342A 33 and once regard is had to his
knowledge of what the section entails, one may well observe that t here is , in
addition, an absence of pleaded facts indicating that the second defendant erred in
exercising her discretion, or that she did not properly apply her mind to the plaintiff’s
request when she failed to hold an e nquiry. In my view such facts would inform the
policy considerations in determining wrongfulness, particularly in the light of the fact
that a postponement cannot be claimed as of right 34 unless it is in the interest of
justice grant it35 – and especially in recognition of the fact that judicial officers have a
duty to the court system, their colleagues, the public and the parties to ensure that a
postponement is not deliberately engineered to undermine the administration of
justice.36 It must be appreciated that the policy considerations underlying
wrongfulness are of paramount importance in a setting involving the conduct of a
judicial officer whilst presiding. Judicial officers (be they judges or magistrates) are
human and not infallible – they will make mistakes and sometimes err especially
32 R v Zackey 1945 AD 505.
33 Paragraph 25.
34 Pangarkar v Botha [2014] ZASCA 78; 2015 (1) SA 503 (SCA) paras 22-33.
35 Lekolwane and another v Minister of Justice and Constitutional Development 2007 (3) BCLR 280
(CC) para 17.
36 Compare Take and Save Trading CC v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) para 3.
when matters of discretion are involved. In the circumstances – and as pleaded by
the defendants – even if the second defendant might have erred in exercising her
discretion as the presiding judicial officer in refusing the postponement, such conduct
was not wrongful.
[48] A postponement is a matter of judicial discretion and the facts underlying the
improper exercise thereof ought to have been pleaded . That said, and as a result of
the plaintiff’s failure to properly identify the right infringed neither the policy
considerations relevant to the question of wrongfulness nor the factual basis
underlying such considerations were identified and investigated when he testified.
Cross-examination of the plaintiff on these aspects was either objected to or met by
the refrain that he did not wish to incriminate himself. I have already proffered
comment on this. The proposition that facts that substantiate policy considerations,
should be pleaded is in principle well founded. 37 In point, the absence of the
necessary factual substrate may render the particulars of claim excipiable on the
basis that no cause of action is disclosed.38
[49] While it would be futile to investigate whether an exception if taken would
have been successful, it bears mentioning that the matter already gave rise to an
exception prior to the involvement of counsel presently appearing for the defendants.
Some amendments ensued but the presently formulated particulars of claim remain
problematic, if not convoluted. The lack of a sufficiently detailed and structured
factual matrix (which by contrast is essential for determining causation) detracts from
finding that it would be reasonable to impose liability and from recognising the public
policy considerations underlying that determination ( Le Roux v Dey supra ).
Inferential reasoning does not assist. The high water mark of the plaintiff’s case on
wrongfulness is that his own pleading has placed a brake on liability. The upshot is
that the appeal court judgment does not come to his assistance and his pleading
precludes finding that it would be reasonable to impose liability in the circumstances.
As such, the issue of the defendants’ being put to the task of discharging the onus to
prove justification does not arise.
37 See for example Sampson v Legal Aid South Africa [2022] ZANCHC 49; (2023) 44 ILJ 422 (NCK).
38 Trope v SA Reserve Bank 1992 (3) SA 208 (T) art 214A -G; Indac Electronics (Pty) Ltd v Volkskas
Bank Ltd 1992 (1) SA 783 (A) at 797E; Telematrix (Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 462 (SCA) para 2; Sampson supra.
[50] In F v Minister of Safety and Security 39, Froneman J noted 40 that where
positive conduct infringes recognised interests of persons or property, a conclusion
of wrongfulness in respect of such invasion:
‘… can be avoided only by pleading some form of justification for the breach of the
duty or, put differently, the infringement of the recognised right or interest.’
[51] In admitting the refusal of the postponement the defendants pl ead that the
second defendant had the authority as a judicial officer to decide the causes or
issues that arose in the criminal trial, having to render a decision in a judicial
capacity. Reliance therefor is placed on the Criminal Procedure Act . Section 73(2C)
permits that a court may in certain circumstances order that a trial proceeds without
legal representation unless the court is of the opinion that it would result in
substantial injustice. Section 342A permits discretionary orders that may be made to
obviate unreasonable delays in trials.
[52] In raising these provisions the defendants maintain in their amended plea that
the postponement could not be claimed by the plaintiff as of right but amounted to a
request for an indulgence which could be granted in terms of a discretion which had
to be judicially exercised having regard to the circumstances of the matter and the
interests of justice.
Fault
[53] Malice is attributed to the second defendant. In the context of the actio
iniuriarum, the concept means animus iniuriandi 41 (i.e. the intention to injure). The
onus to prove intent is on the plaintiff. Due to its subjective nature its existence is
determined by having regard to each particular situation and to the external facts and
circumstances from which an inference as to the state of mind of the defendant can
be drawn. 42 In drawing inferences a court must guard against subtly applying an
39 2012 (1) SA 536 (CC).
40 Para 118.
41 Relyant Trading (Pty) Limited v Shongwe and Another [2007] All SA 375 (SCA) para 4.
42 Maisel v Van Naeren 1960 (4) SA 836 (C) at 840G.
objective instead of a subjective test. 43 Armchair reasoning must be guarded
against.44
[54] With regard to external facts and circumstances it was mentioned in plaintiff’s
opening address that evidence will be led regarding the tone of voice and body
language of the second defendant – such evidence indicating that she was
indisposed towards the plaintiff and acted with malice and mala fides.
[55] The plaintiff’s heads of argument conceives the following submission:
‘We venture to suggest that where a right guaranteed in the Bill of Rights is infringed,
that the Court should follow the presumption of animus iniuriandi when the wrongful
conduct is proved. This development took place in defamation cases.’
[56] Intention is not anything to be presumed – it must be affirmatively
established.45 While courts are duty bound to ensure that the values of the
Constitution underlie all law, the existing common law is undoubtedly adequate in
providing a remedy for the protection of the plaintiff’s fundamental rights. But, it is not
every infringement of a constitutional right or obligation that can be visited with
unlawfulness in a delictual sense46. And where it is contended that intention to injure
should be presumed when a right is infringed, then the anticipated development
ought to have been pleaded47.
[57] This does not feature in the particulars of claim.
[58] In attempting to establish malice, an audio clip from the trial proceedings was
heard in open court. Its intended purpose was to confirm the excerpts in paragraph
14 of the particulars of claim and to contextualise the interaction between the plaintiff
and the second defendant as also to set the scene for drawing inferences against
the second defendant. The selectively quoted excerpts are not denied by the
43 C R Snyman, Criminal Law, LexisNexis 6th ed at 185.
44 Snyman ibid at 185.
45 Maisel supra at 840H.
46 Minister of Police v Mboweni 2014 (6) SA 256 (SCA) at 265G.
47 Compare for example H v Fetal Assessment Cen tre 2015 (2) BCLR 127 (CC); also Amle r’s
Precedents of Pleading, 9th ed at 95.
defendants in so far as they accord with the transcript. The defendants deny
however, that the second defendant’s utterances were made with malice or with
animus iniuriandi.
[59] Testifying on how he felt about the second defendant’s utterances the plaintiff
stated that he was afraid of her. She leaned towards the bench pointing her finger at
him. He went on to testify that her tone changed, her face turned red; she was angry
and he felt that she was out to kill him. By this he stated that he believed that she
was determined to convict him.
[60] During examination in chief it was put by way of a leading question to the
plaintiff that the second defendant failed to hold an enquiry under section 342A of the
Criminal Procedure Act48 since she was of the opinion that he was wasting time. The
section deals with unreasonable delays in criminal trials. It is framed in peremptory
terms. It provides that the court shall investigate any delay in the completion of
proceedings (section 342A(1)), and it directs the court to consider several
jurisdictional factors (section 342A(2)(a-i)). My sense is that the discretion to grant or
refuse the postponement (section 342A(3) (a) and (b)), or to make any other order in
circumstances specified (section 342A)(3) (c-f)), only arises once the jurisdictional
factors have been considered.
[61] In heads of argument the plaintiff makes the following submissions (amongst
others) with reference to the second defendant:
‘She knowingly failed to hold an enquiry under section 342A;
Without any investigation she stated the plaintiff has forfeited any right to legal
representation;
After deciding to refuse the postponement, she belatedly gave false reasons inter
alia: the plaintiff voluntarily made a decision to represent himself; that he had ‘how
48 Act 51 of 1977. See also the particulars of claim at paragraph 25.
many’ attorneys in the course of the matter; and ‘how many’ people have had to step
down;
She knew the plaintiff required an attorney to represent him and that he could not
handle his own case;
She knew that the plaintiff would not take any notes as he needed the assistance of
an attorney;
She knew the plaintiff would not ask any questions as he needed an attorney to
represent him; and
She enforced the trial knowing that it will be spurious and a pretence.’
[62] Emerging from the aforegoing is a combination of legal and factual material
which, on the issue of malice, is not foreshadowed in the plaintiff’s pleading
especially as regards those submissions where knowledge of circumstance is
imputed to the second defendant.
[63] On what has been pleaded and what has been placed before Court, there is
no scope for a n inferential finding that the second defendant acted with malice or
animus iniuriandi . In Janse van der Walt v Minister of Safety and Security and
Ohers49 the court had this to say about malice and bad faith:
‘Since the existence of malice or bad faith is not an issue which can be observed in
the abstract, it is by necessity an issue which must be determined by drawing an
inference from established factual circumstances. In the absence of rebutting
evidence or a plausible explanation by the magistrate in question, such an inference
is justifiable and the most probable and the most plausible inference which can be
drawn from the testimony of the plaintiffs regarding the conduct of the magistrate.’
49 [2011] ZAGPJHC 15 paras 48-49.
[64] To draw inferences wholly and/or collectively from the material in the plaintiff’s
heads of argument or from the second defendant’s tone in the audio playback or
from the self-serving description of her demeanour as testified by the plaintiff , is a
speculative exercise and one that is not marked by infallible accuracy . Gauging from
what is before this Court it is doubtful whether malice is the most probable and the
most plausible inference that can be drawn for the reason that it is also open to infer
that the second defendant might have been overly annoyed by the plaintiff. This
does not equate to malice. Even if mistaken in expressing these sentiments this
Court is in any event not gifted with the psychological or intuitive perception of
drawing inferences from the tone of a recorded human voice.
[65] I turn briefly to t he history of the delays and post ponements of the criminal
trial.50 It demonstrates that the proceedings against the plaintiff as accused had been
postponed time and again. The timeline of events indicate that the commencement
of the criminal trial had been postponed time and again (10 July to 6 August 2012; 6
August 2012 to 27 September 2012; 27 September 2012 to 26 November 2012; 26
November 2012 to 17 April 2013 ; 17 April 2023 to 18 April 2013; 18 April to 16 May
2013; 16 May 2013 to 10 June 2013; 10 June 2013 to 26 June 2013; 28 June 2013
to 10 July 2013; 10 July 2013 to 28 August 2013; 28 August 2013 to 23 October
2013; 23 October 2013 to 26 February 2014; 26 February 2014 to 27 February
2014; 27 February 2014 to 28 February 2014; 28 February 2014 to 9 July 2014). The
reasons for the postponements relate primarily to direct arrangements between
plaintiff’s erstwhile legal representative, (an attorney in private practice whose costs
were funded by the plaintiff until such time as the plaintiff’s resources were depleted)
and the prosecutor, as well as the plaintiff being sick on one occasion and on
another for being in default of appearance. The fact of the matter is that these
postponements were not at the instance of the State.
[66] Whether on its own or viewed in the light of what has been discussed above
the second defendant’s refusal of the postponement remains vital to the inference
the plaintiff wishes the C ourt to draw from her refusal of the further postponement
sought on termination of the mandate of Mr Scheun. In so far as r eliance is placed
50 Defendants’ bundle – History of Postponements.
on the appeal court judgment to support the inference for which he contends, the
plaintiff’s approach appears to be that he was entitle d to a postponement as of right
and that its refusal either tantamounts to malice or wrongfulness.
[67] This is incorrect.
[68] A postponement is and has always been an indulgence which can only be
granted as a matter of judicial discretion51.
[69] Even if it is assumed that the second defendant erred in exercising her
discretion to refuse the requested postponement, this by no means permits an
inference that she acted with the malice.
[70] The aforegoing presents mixed matters of fact and law which have not been
forecasted in the plaintiff’s pleading. He steers away from dealing with the
jurisdictional facts and the principles governing the discretion to grant a
postponement, and proceeds on the assumption that a mere refusal by the second
respondent somehow translates to wrongfulness and establishes malice. Neither the
Court nor the defendant has been given a clear idea of the material facts underlying
the plaintiff’s case as would offer an indication of what would be explored in
evidence.
Causation
[71] By reason of the findings in the preceding paragraphs of this judgment, it is
unnecessary to deal with this aspect in any significant detail.
[72] Causation is an element of delictual liability. The broad question to be asked
is what would have happened if the defendant’s conduct is mentally eliminated and
hypothetically replaced with lawful conduct. If a plaintiff establishes that in such an
event the detrimental consequences suffered by him would not have happened, he
51 Lekolwane and another v Minister of Justice and Constitutional Development 2007 (3) BCLR 280
(CC) para 7.
would be entitled to recover his damages because causation will be regarded as
having been established.52
[73] Causation involves a consideration of two issues: Whether a factual
relationship exists between the defendant’s conduct and the resultant harm. If not,
then no legal liability arises and caedit quaestio – but if it does exist, then the second
issue becomes relevant; viz whether or to what extent the defendant should be held
legally responsible for the consequences factually induced by his or her conduct.
The second issue is a juridical problem and involves considerations of legal policy.53
[74] In heads of argument, the plaintiff makes the following submission:
‘The trial has already been set aside and declared a nullity because of the conduct of
the second defendant on 9 July 2014. Her decision resulted in an unfair trial
depriving the plaintiff of and infringing on his constitutional right to a fair trial.’
[75] The argument is unsustainable.
[76] For reasons already dealt with, the judgment of the appeal court represents
the opinion of another court and is not binding on this Court. Furthermore no obvious
indication emerges from the particulars of claim and/or the plaintiff’s evidence in
explicitly identifying what infringement of right and/or decision of the second
defendant resulted in an unfair trial.
[77] The plaintiff fails on first leg of the causation enquiry.
Vicarious liability
[78] It is trite that a judicial officer whilst serving in a judicial capacity can only be
held liable in delict for ill-judging due to mala fides, malice or fraud54 but is immune if
52 International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700F-701G.
53 Van Der Walt and Midgley, Principles of Delict, LexisNexis 4th ed at 275 para 175.
54 Penrice v Dickinson 1945 AD at 6; Moeketsi v Minister van Justisie en in ander 1988 (4) SA 707
(T) at 713G; Telematrix (Pty) Ltd tla Matrix Vehicle Tracking v Advertising Standards Authority
SA 2006 (1) SA 461 (SCA); Claassen v Minister of Justice and Constitutional Development &
another 2010 (6) SA 399 (WCC) para 22.
their judgment is occasioned by negligence55, mistake, lack of knowledge or lack of
skill56. Underlying such immunity are policy considerations favouring the protection of
the independence of the judiciary to enable it to adjudicate fearlessly . For that
reason litigants are not entitled to a process of adjudication free from innocent (i.e.
non mala fide) errors.57
[79] Vicarious liability is generally described as the strict liability of one person for
the delict of another. The former is indirectly liable for the damage caused by the
latter. This liability applies where there is a particular relationship between the two
persons such as , for example ; employer and employee, principal and agent, and
motor vehicle owner – motor vehicle driver .58 Since liability is closely linked to the
wrongful conduct of the primary wrongdoer it is inconceivable that there could be
vicarious or secondary liability where there is no primary delictual liability.59
[80] In heads of argument the plaintiff placed significant store on the judgment of
the full bench in Minister of Justice and Constitutional Development and Another v
Masia60. In that matter a magistrate’s order for the summary arrest and detention of
the respondent (for proposing what the magistrate felt was an inadequate offer for
child maintenance) was found to be mala fide.
[81] In attributing vicarious liability to the first appellant (the Minister of Justice and
Constitutional Development) the appeal court reasoned that the magistrate acted as
employee of the first appellant in the exercise of his judicial duties and since the
magistrate acted maliciously he did not enjoy judicial immunity . The court
accordingly held that the magistrate committed a delict against the respondent whilst
acting in the course and scope of his (i.e. the magistrate’s) employment.61
55 Telematrix supra para 14; Minister of Safety and Security v Van der Walt para 21.
56 Telematrix supra para 17 wherein reference is made to Gane’s translation of Voet’s Commentary on
the Pandects.
57 Telematrix supra para at 471B.
58 Fongoqa v Passenger Rail Agency of South Africa and Another [2022] ZAGPJHC 183 para 62.
59 Minister of Safety and Security v Van der Walt [2015] 1 All SA 658 (SCA) at 668c.
60 [2021] ZAGPPHC 428; 2021 (2) SACR 425 (GP).
61 Minister of Justice and Constitutional Development and Another v Masia [2021] ZAGPPHC 428;
2021 (2) SACR 425 (GP) para 48.
[82] Having anxiously considered the judgment in Masia, it does not assist the
plaintiff for the following reasons.
[83] At the outset t he findings in the preceding paragraphs of this judgment
demonstrate that no primary liability against the second defendant has been
established and thus no secondary liability can be attributed to first defendant.
[84] In addition, the facts in Masia are not aligned with those in the present matter ,
more particularly Masia did not deal with a circumstance in which a discretionary
power was exercised in refusing a request for a postponement.
[85] Vicarious liability in Masia was grounded in the finding by the appeal court
that the magistrate acted in the course and scope of his employment as an
employee of the first appellant. It is with respect not clear from the judgment what
analysis was undertaken by the appeal court in concluding that the magistrate acted
as an employee. The judgment inferentially assumes that as an employee the
magistrate was subject to the control of the first appellant.
[86] This brings me to the final aspect that calls for comment.
[87] The legislative framework dealing with the appointment of magistrates was
pertinently dealt with by a full bench of the Eastern Cape Division, Bhisho in
Makaphela and Others v Acting Regional Court Magistrate and Others62.
[88] It is worth quoting in full from the analysis undertaken in the judgment:
‘[23] The applicants seem to rely on the unreported case of Tsotetsi v The
Honourable Magistrate Delize Smith and Another (23969/2015) [2016] ZAGPJHC
329 (29 November 2016) for the contention that liability for costs on the part of the
fourth respondent can be based on vicarious liability. In that matter Van der Linde J
approved a finding by Van Der Merwe AJ in Minister of Safety and Security and
62 [2019] ZAECBHC 22; 2020 (2) SACR 427 (ECB) para 23.
Others v Van der Walt and Another 63 where it was held that magistrates are
employees of the Minister of Justice. This aspect was left open on appeal in Minister
of Safety and Security and Others v Van der Walt and Another 64 save to mention
that the Appeal Court reiterated that a conclusion that the Minister is vicariously
liable based on a finding that magistrates are “employed” by the Minister, ignores the
well-established principle that magistrates, when they act in the course and scope of
their judicial functions, enjoy, like all judicial officers, a status of judicial
independence when they perform these judicial functions and in so doing, form part
of the judicial branch of government.
[24] Lest we be understood to agree with the finding by Van der Linde J, let us
clarify: We do not agree that magistrates are employees of the State. Magistrates do
not fall within the category of public servants employed in terms of the Public Service
Act Proclamation No. 103 of 1993. They do not fall under the Department of Justice
and Correctional Services. The fact that they are appointed by the Minister of Justice
by virtue of the provisions of section 9 of the Magistrates’ Courts Act 32 of 1944,
does not detract from the fact they are not his employees. In terms of section 10 of
the Act, the Minister can only appoint them on the recommendation of the
Magistrates’ Commission just like the President who appoints judges on the
recommendation of the Judicial Service Commission. The Minister does not have
control and supervisory powers over magistrates. He cannot direct and control them
in the execution of their judicial duties. The Constitution provides that: ‘ The courts
are independent and subject only to the Constitution and the law, which they must
apply impartially and without fear, favour or prejudice.’ 65 Consequently the control
element by the Minister over magistrates is lacking.
[25] Furthermore, the Constitutional court has ruled that magistrates are not
employees but they are judicial officers. 66 We are accordingly of the respectful view
that the cases relied upon by the applicants defining magistrates as employees of
the Minister of Justice are, to that extent, incorrect.’
63 [2011] ZAGPJHC 15 (25 January 2011).
64 [2015] 1 All SA 658 (SCA).
65 Section 165(2) of the Constitution Act, 1996.
66 Van Rooyen & Others v The State & others (General Council of the Bar intervening) 2002 (5) SA
246 (CC) para 139.
[89] In President of the Republic of South Africa v Reinecke67, the Supreme Court
of Appeal made it clear 68 in its pronouncement that a finding that magistrates are
employed does not impact upon their constitutionally guaranteed independence, and
further that nothing in its judgment affects the constitutional position of magistrates
as part of the judiciary.
[90] I consider that Reinecke has settled the legal position on judicial immunity and
that Makaphela has dispelled the notion that magistrates are in the exercise of their
judicial powers subject to the control of the Minister of Justice which renders them
employees
[91] Both decisions are binding on this Court.
Conclusion
[92] It is in the context of the assessment undertaken in this judgment that t he
application by the defendants to be absolved from the instance is evaluated.
[93] From that perspective the case presented by the plaintiff, reasonably
assessed by this Court, renders absolution an appropriate order. In the
circumstances no finding could or might reasonably be made in favour of the plaintiff
on what is presently before Court.
[94] At the c onclusion of argument counsel for the plaintiff sought attorney and
client costs including the costs of two counsel against the defendants in the event
that absolution is refused.
[95] No motivation was given for a cost order on this scale , nor was any prior
notice given to the defendants.
[96] The order of 11 April 2024 remains extant.
67 2014 (3) SA 205 (SCA) para 17.
68 In dealing with the position of magistrates appointed in the period 1996 to 2002.
M. S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff: J. Y. Claasen SC and W. H. Olivier, Instructed by NN
Dullabh & Co, Makhanda, (Ref: Mr Dullabh), Tel: 046 -622 6611, email
naran@dullabhs.co.za
For the First and
Second Defendants: M. G. Swanepoel SC, Instructed by The Office of the
State Attorney, Gqeberha, c/o Whitesides Attorneys, Makhanda (Ref: Mr Barrow),
Tel: 046-622 7117, email barrowsec@whitesides.co.za
Reasons: 30 April 2024 (circulated by email).