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2024
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[2024] ZAECMHC 50
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National Director of Public Prosecutions v Goqwana (2938/2022) [2024] ZAECMHC 50 (18 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case No: 2938/2022
In the matter between:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
NDIYAKHOLWA
GOQWANA
Respondent
JUDGMENT
METU AJ
INTRODUCTION
1.
This an application by the National
Director of Public Prosecutions (the applicant”) seeking leave
to amend her plea which,
in some parts, has an effect of withdrawing
admissions.
2.
The respondent, Ndiyakholwa Goqwana is
resisting the application contending that such withdrawal of
admissions is
mala fide
and
no satisfactory explanation has been proffered as to the basis on
which they were made and why the withdrawal thereof is now
sought.
3.
On
30 August 2023, the applicant served the Notice of Intention to
amend on the Respondent’s attorneys of record
[1]
.
4.
On 04 September 2023, the respondent’s
attorneys delivered a Notice of Objection in terms of Rule 28 (3) of
the Uniform Rules
of Court.
5.
The applicant delivered a Notice to Oppose
on 12 September 2023 followed by his opposing affidavit on 19
September 2023.
6.
The matter was set down for hearing on 04
December 2023 and on that date, it was postponed to 06 June 2024 to
allow the applicant
to deliver her replying affidavit by no later
than 15 December 2023. This was duly done as the applicant delivered
her replying
affidavit on 14 December 2023.
7.
On 06 June 2024, the matter served before
me and after hearing submissions by both parties, I reserved
judgment, which I now pen.
THE ISSUE
8.
The issue for determination is whether it
is permissible for the applicant to withdraw admissions made at
paragraphs 3 and 4 of
the original plea through the proposed
amendment.
DISCUSSION
9.
In
broad terms, where a proposed amendment involves a withdrawal of an
admission, the Court will generally require a satisfactory
explanation of the circumstances in which the admission was made and
the reasons for seeking to withdraw it, and the Court will
also
consider the question of prejudice to the other party. If the
prejudice cannot be compensated by a special order as
to costs, the
application to amend will be refused.
[2]
10.
In
Krogman
v Est. Moolman
1926 OPD 191
it was
held that an amendment cannot be claimed as of right. An
amendment is generally granted to enable a proper ventilation
of
issues between the parties.
11.
The application to amend should not be
predicated on
mala fides
on the part of the party seeking the amendment. By the same
token, it must not be prejudicial or unjust to the other party.
12.
The
inconvenience must be capable of being compensated by a postponement
or an order of costs. This is done to put the Respondent
in the
same position he was in before the filing of the original plea.
On this point, Spilg J in
Ergo
Mining (Pty) Ltd
[3]
succinctly outlined this requirement as follows:
‘
An
amendment will generally be granted to enable the real issues between
the parties to be properly ventilated. It follows that
a pleading
which does not disclose a cause of action or defence will not qualify
or where it is self-evident that no case could
be made out in fact or
law. An amendment will also not be granted if it results in prejudice
that cannot be cured by an award of
costs or a postponement.
In
this regard an amendment to cure a tactical advantage which the other
party may enjoy is not the type of prejudice which will
suffice
and although an exception may be raised if the other party fails to
cure a pleading which is vague and embarrassing the requirement
of
prejudice remains’.
[Emphasis added]
13.
Pertaining
to the withdrawal of an admission, Leon J in
Amod
v South African Mutual Fire and General Insurance Co Ltd
,
[4]
had this to say:
‘
I
consider that the true position in the case of the withdrawal of an
admission is as follows. The Court has a discretion
but will
require a reasonable explanation both of the circumstances under
which the admission was made and of the reasons why it
is sought to
withdraw it. In addition, the Court must also consider the
question of prejudice to the other party. If
the result of
allowing the admission to be withdrawn will cause prejudice or
injustice to the other party to the extent that a
special order as to
costs will not compensate him then the application to amend will be
refused. It should, however, be noted
that the fact that the
amendment will cause the Goqwana to lose his case is not of itself
"prejudice" or "injustice"
in the sense discussed
above’.
14.
In Erasmus.
Superior
Court Practice
. @ B1-1182/2 read
with footnotes 8 and 1, respectively, it is stated:
‘…
withdrawal
of an admission is usually more difficult to achieve because (i) it
involves a change of front which requires full explanation
to
convince the court of the benefit is there and (ii) it is more likely
to prejudice the other party, who had by the admission
been led to
believe that not prove that relevant affect and might, for that
reason, have omitted together the necessary evidence.
The court will,
therefore, in the exercise of its discretion, require an explanation
of the circumstances and that which the admission
was made and the
reason for now seeking to withdraw it’.
FACTUAL MATRIX
15.
The
District Court Prosecutor, Ms. Saziwe Ncaza (“Ms. Ncaza”),
on the first appearance of Goqwana, requested that he
be remanded in
custody at the Wellington Prison in Mthatha for further profiling.
This brought detention by police to end
[5]
.
16.
The respondent asserts in paragraph 6 of
the Particulars of Claim, that the
judicial
detention
endured until 14 April 2022.
It must be borne in mind that according to the respondent, Ms.
Ncaza requested that the matter
be postponed to 19 April 2022, which
was a period in excess of the prescribed seven (7) days.
17.
Notably, the respondent’s first
appearance was on 29 March 2022. The respondent’s gripe
is for the period 09 to
14 April 2022. The period from 30 March
to 08 April 2022 is not accounted for and nothing is said about it in
the Particulars
of Claim. One would assume that this further
detention was lawful.
18.
Then in paragraph 7, it is contended that
the applicant is liable for the respondent's unduly extended
detention because:
18.1.
she was exercising her powers;
18.2.
she was carrying out her duties; and
18.3.
she was performing her functions conferred,
upon her or assigned to her by the Constitution, the National
Prosecuting Act, 32 of
1998 or any other law.
19.
It is worth mentioning that the Particulars
of Claim are expiable as no cause of action is disclosed.
20.
In
paragraph 8 of the Particulars of Claim, it is stated that Ms. Ncaza
postponed the bail hearing to 19 April 2022, which according
to the
Respondent was a dereliction of a statutory duty
[6]
.
21.
Paragraph
9 of the Particulars of Claim asserts that Ms. Ncaza had a public law
duty not to violate the respondent’s right
to freedom. It
is further averred that Ms. Ncaza omitted to perform her public duty
and according to the respondent, this
was wrongful in private law
terms. The respondent does not elaborate on the cornerstone of
this public law duty nor provides
reasons for his conclusion that Ms.
Ncaza’s conduct was wrongful in private law terms
[7]
.
22.
In the original plea, the applicant in
paragraphs 1 to 3 simply noted these paragraphs. Effectively,
these are to be taken
as admissions. Then, in respect of
paragraphs 5 to 7, the applicant admitted the contents thereof. The
plea pertaining
to paragraphs 8 to 14 of the Particulars of Claim
admitted the contents of these paragraphs except for the allegation
that the
postponement of the bail hearing disclosed a dereliction of
statutory duty, and put the respondent to proof thereof.
THE TEST
23.
The
Court has to first determine the presence or absence of
jurisdictional fact, which is the reasonable basis of initially
having
made the admission and subsequently the reason of seeking to
withdraw such an admission
[8]
.
This is objectively assessed.
24.
The jurisdictional fact will be determined
by assessing the basis for the original admission and comparing it
with the reason for
the later withdrawal.
25.
The Court must also consider whether the
prejudice or injustice can be compensated by a postponement or an
order of costs placing
the respondent in the same or similar position
he would have been in before the admission was made.
26.
In
Jomovest
Twenty-Five CC v Engel & Volker Western Cape (Pty) Ltd
,
Moosa J, said
[9]
:
‘
Before
the court exercises its discretion whether or not to grant the
amendment to withdraw the admissions, the court is required
to
determine the presence or absence of the jurisdictional fact.
The test to determine the presence or absence of the jurisdictional
fact, in this matter, is an objective one. Should the court
find that the Defendant has failed to establish the jurisdictional
fact, the proposed amendment is refused. On the other hand,
should the court find that the Defendant has established
jurisdictional
fact, such finding triggers the exercise of the
court’s discretion. In exercising such discretion, the
court considers
the question of
mala
fides
on the part of the
Defendant in seeking the amendment and of the potential prejudice or
injustice that the Plaintiff may suffer
if such amendment is
granted’.
EVALUATION
27.
I now turn to evaluate the evidence to
determine whether the respondent has made a case for withdrawing the
admissions and has,
therefore, established the jurisdictional fact.
This is an objective test.
28.
The first question is whether the applicant
has tendered evidence showing the reasonable basis for making the
admission in the original
plea.
29.
In respect of the pleading to paragraphs 1
to 3 of the Particulars of Claim, the applicant contends that the
original plea did not
meet the requirements and/or threshold laid
down in Rule 22 (2) of the Uniform Rules of Court. As such, the
respondent should
have made an exception to the plea.
30.
Paragraph 3 of the original plea, pleaded
to paragraphs 5 to 7 of the Particulars of Claim, wherein the
contents of those paragraphs
were simply admitted without any
qualification. The proposed amendment seeks to introduce a
denial that Ncaza made the request
for the criminal case to be
remanded to 19 April 2022.
31.
The applicant’s explanation for the
admission in the original plea is found in paragraph 8, read with
paragraph 13 and their
subparagraphs of the founding affidavit filed
in support of the application to amend.
32.
The
reason proffered is that the Particulars of Claim were not clear in
saying whether the Prosecutor requested a remand of the
case, whether
the respondent should be kept in custody, or whether the Prosecutor
requested the case to be remanded to 14 April
2022. The
applicant argues that the language used in the Particulars of Claim
did not exactly express properly a clear case
for the applicant to
answer in the manner in which the allegations were made. In the
circumstances, the allegations could
neither be admitted nor
denied
[10]
.
33.
Paragraph 6 remains admitted, and paragraph
7 is denied, as the applicant contends that retaining an admission
would be a deviation
from the admission contained in paragraph 4 of
the original plea.
34.
The original plea’s paragraph 4 is
couched differently. The admission to the contents is followed
by a specific denial
of the postponement of bail being a dereliction
of duty by Ms. Ncaza and the respondent being put to proof.
35.
The proposed amendment does not deviate
from this posture but seeks to put flesh to the bones.
36.
A cogent explanation is proffered in
respect of the proceedings of 28 March 2022, which puts light on the
roles played by:
36.1.
Ms. Ncaza as a District Prosecutor;
36.2.
Ms. Peti as Goqwana’s legal
representative; and
36.3.
the Magistrate who presided on the day.
37.
It is important to note that in terms of
procedure and the law, it is the Magistrate who has to apply his/her
mind and decide whether
to postpone the bail hearing for seven (7)
days to allow further investigation. This does not take away the
magistrate's power
and authority to make the decision to postpone the
bail hearing.
38.
It is unclear what the basis is for the
respondent’s legal representative to impute vicarious liability
to the applicant for
a decision the Magistrate took.
39.
What is noteworthy is the fact that the
presiding Magistrate is not joined in these proceedings.
40.
It must also be borne in mind that the
respondent has not laid any basis that there was a departure from the
well-established law
and procedure regarding who is vested with
decision-making in bail applications and postponements.
41.
A reading of Sections 50 (3) and 60 (2)
tells us that
the
Court
‘may’ postpone
any
proceedings contemplated
in Section
50 (3) of the CPA. This brings about the examination of Section
50 (6) (d) (i) which reads: [Emphasis added]
‘
The
lower court before which a person is brought in terms of this
subsection, may postpone any bail proceedings or bail application
to
any date or court, for a period not exceeding seven days at a time,
on the terms which the court may deem proper and which are
not
inconsistent with any provision of this Act, if -
(i)
the court is of the opinion that it
is has insufficient information or evidence at its disposal to reach
a decision on the bail
application…’
42.
Clearly, the lower Court is vested with the
power and authority to decide. This power does not reside with
the District Prosecutor
and cannot be delegated. The premium is on
the Court to make a well-informed decision on bail proceedings. The
procedure followed
in these proceedings may very well be
inquisitorial, and the lower Courts are encouraged to be proactive.
43.
In this matter, the original plea was just
a blanket admission, which in the proposed amendment is a bare
denial. The applicant
does not proffer a reasonable explanation
about how the admission was made in the original plea. All the
applicant does in
paragraph 13 and subparagraph 13.1.1 of the
founding affidavit is to deny that Ms. Ncaza requested that the case
be postponed to
14 April 2022. The confirmatory affidavit by
Ms. Ncaza does not shed any light in this regard as it is just the
standard
confirmation without attesting to any specific facts that
she has personal knowledge of.
44.
In
as much as I cannot say that the respondent has provided a model
explanation establishing the jurisdictional fact in respect
of the
withdrawal of admission made to paragraph 7 of the Particulars of
Claim, I cannot turn a blind eye to the fact that the
exposition of
what took place in Court and how the respondent regards the
respondent liable is not in consonance with the law.
It is
true, as alleged in paragraph 6, that the respondent was remanded in
custody from 09 to 14 April 2022 as a result of judicial
detention.
However, it is incorrect that the applicant bears legal liability for
the further detention of the respondent
[11]
.Theron
J cited with approval some cases which unambiguously state that the
Magistrate in a Court of first appearance has to apply
his/her mind
to the question of bail. In paragraph 50, Madam Justice Theron
aptly states:
‘
...Under
s 60(1) of the Criminal Procedure Act and as recognised in
Minister
of Police v Kader
1991 (1)
SA 41
(A) the magistrate was obliged to apply their mind to the
question of bail. Failure to do so, and the resultant remand,
was
unlawful’.
45.
I cannot ignore the fact that such further
detention can only be imposed by a decision taken by the Magistrate
who presided on the
day the matter was postponed. It bears
mention that the said Magistrate has not been joined in these
proceedings.
46.
It would be a miscarriage of justice to
allow a blanket admission to an otherwise incorrect exposition of
fact and law in the Particulars
of Claim.
47.
Hathorn AJA in
Gordon
v Tarnow
1947 (3) SA 525
(A)
propounded:
‘…
speaking
of judicial admissions in general, refers to the Court's discretion
to relieve a party from the consequences of an admission
made in
error. It does not seem to me that such discretion could be
exercised, in a case where the admission has been made
in a pleading,
in any other way than by granting an amendment of that pleading’
.
48.
I
find that the proposed amendment raises a genuine and
bona
fide
defence. Taking a cue from the decision of Searle AJ in
Frenkel
Wise & Co Ltd
[12]
:
where it was held:
‘
I
had proposed to t follow the case of
Rossouw
v Bonthuys
(1933 CPD 201)
, in which
SUTTON J, held that, in applications for amendment of pleadings, it
is not sufficient that there should be a mere notice
if the matter is
one of substance, but there should, in addition, be an affidavit
explaining why the pleading was not put in proper
order at the
outset’.
49.
The applicant has bolstered her application
with an affidavit in which,
inter alia
,
she canvasses that the amendment results from a new attorney coming
on board after the attorney who was handling the matter left
the
State Attorney's employ. The question is whether the previous
attorney's remissness binds the applicant even in the face
of the
glaring shortcoming to pleading to excipiable Particulars of Claim.
Let alone that the original plea is also excipiable.
50.
The
test for exercising discretion on whether or not to grant an
amendment to withdraw an admission was laid down in
Amod
[13]
.
Leon J put the test as follows
[14]
:
‘
I
consider that the true position in the case of the withdrawal of an
admission is as follows. The Court has a discretion but will
require
a reasonable explanation both of the circumstances under which the
admission was made and of the reasons why it is sought
to withdraw
it. In addition, the Court must also consider the question of
prejudice to the other party. If the result of allowing
the admission
to be withdrawn will cause prejudice or injustice to the other party
to the extent that a special order as to costs
will not compensate
him then the application to amend will be refused. It should,
however, be noted that the fact that the amendment
will cause the
Goqwana to lose his case is not of itself "prejudice" or
"injustice" in the sense discussed
above’.
51.
It
must be borne in mind that the functionary that was handling the case
is no longer with the office of the State Attorney and
therefore it
is not possible to have an affidavit from a person with personal and
direct knowledge of the basis for making the
original mistaken
admission. It appears that the Prosecutor who was involved in
the matter denounces the plea in its form
that it is not in
accordance with the information and/or facts furnished during the
consultation held before the plea was crafted
[15]
.
52.
The mistake is so apparent as the decision
maker for further detention is the Magistrate who was presiding on
that day.
The respondent on the other hand does not state
where this legal liability of the applicant comes from.
53.
It is apposite that the respondent was
legally represented on the day of first appearance i.e. on 29 March
2022, wherein the matter
was postponed for the respondent’s
profiling to 19 April 2022. The respondent’s legal
representative did not
oppose or protest against the postponement to
a date beyond the prescribed seven (7) day period. This did not
militate against
the subsequent application made by the respondent,
challenging the legality and appropriateness of his further
detention.
The same principle should apply that the door should
not be closed to the applicant for her to amend the plea accordingly.
54.
Herbstein and van Winsen
are perfectly correct in stating (at p. 329):
‘
It
is submitted that, while in most cases the reason for wishing to
withdraw an admission may be due to some mistake of fact or
law, the
Court's discretion to grant an amendment involving a withdrawal is
not fettered by the necessity to find that there has
been an error
before it can allow such amendment’.
55.
During the hearing of this matter, Mr.
Siwahla, who appeared for the respondent, could not advance any
argument regarding the prejudice
the respondent would suffer if the
amendment is allowed.
56.
I
am mindful of the decision in
Trans-African
Insurance Co Ltd v Maluleke
[16]
,
which was quoted with approval in
Life
Healthcare Group (Pty) Ltd v Mdladla and Another
(42156/2013)
[2014] ZAGPJHC 20 (10 February 2014) where it was said:
‘
No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which are an
important
element in the machinery for the administration of justice. But on
the other hand technical objections to less than perfect
procedural
steps should not be permitted, in the absence of prejudice, to
interfere with the expeditious and, if possible, inexpensive
decision
of cases on their real merits’.
57.
Having regard to the whole conspectus of
facts and the test on whether to allow an amendment withdrawing an
admission, which was
formulated some fifty- two (52) years ago, I
find that the applicant has provided a reasonable explanation for the
original mistaken
admission which she now seeks to withdraw.
58.
The prejudice that the respondent may
suffer is capable of being cured by an order of costs. On the
other hand, if the amendment
is not allowed, grave injustice will
occur.
59.
Both parties filed heads of argument, for
which I am thankful, in this regard, Mr. Siwahla further referred me
and handed a copy
of an unreported judgment, which was not cited in
his heads of argument, in the matter between
Standard
Bank of South Africa Limited v Davenport
NO
& Others
(847/10) [2014]
ZAECGHC 27 (25 April 2014) wherein at paragraph 6, Plasket J said the
following:
‘
This
Court has the greatest latitude in grunting amendments, and it is
very necessary that it should have. The object of the
Court is
to do justice between the parties. It is not a game we are
playing, in which, if some mistake is made, the forfeit
is claimed.
We are here for the purpose of seeing that we have a true account of
what actually took place, and we are not
going to give a decision
upon what we know to be wrong facts...’
60.
This statement cannot be truer than the
salient facts of this matter.
61.
This leaves me with the discretion of
whether or not to allow the proposed amendment in the circumstances.
CONCLUSION
62.
I am of the view that proper ventilation of
the issues will ensue when the amendment is effected and perfected.
63.
In the circumstances, the amendment ought
to be allowed.
COSTS:
64.
The applicant has been successful. It
does not follow, however, that costs should follow the event.
This is one case
where the general rule should be deviated from.
The applicant sought and obtained an indulgence. The opposition
was
not frivolous. In my discretion, the respondent cannot be
put out of pocket for the lackadaisical manner in which the original
plea was crafted.
ORDER
65.
The following order will issue:
65.1.
The applicant is granted leave to amend her plea in accordance
with the notice of intended amendment dated 14 August 2023.
65.2.
The leave to amend will lapse if the amendment is not effected
within ten (10) days of the delivery of this order. The
amendment
must be effected and perfected no later than 03 July 2024.
65.3.
The applicant is to bear the costs of the application.
B. METU
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Adv. Mnyani
Office
of the State Attorney
Broadcast
House
94
Sisson Strreet
Fortgale
MTHATHA
(REF.:
953/22-A8N (Ms Nyangiwe))
Attorney
for Respondent
Mr. Siwahla
Mandisi
Siwahla Inc.
19
Cumberland Street
MTHATHA
(REF.:
MS/CIV/07-22)
Date
Heard
06 June 2024
Date
Delivered
18 June 2024
[1]
See:
p16 – 20 of Index to Pleadings.
[2]
Zarug
v Parvathie NO
1962 (3) SA 872
(D), J R Janisch G
(Pty) Ltd v W M Spilhaus & Co (WP) (Pty) Ltd
1992
(1) SA 167
(C); and
Amod
v South African Mutual Fire and General Insurance Co Ltd
1971
(2) SA 611 (N).
[3]
Ergo
Mining (Pty) Ltd v Ekurhuleni Metropolitan Municipality & Ano
[2020]
3 All SA 445
(GJ) at para.8
[4]
Amod
v South African Mutual and Federal Insurance Co Ltd
1971
(2) SA 611
(N) at p 614H – 615A.
[5]
Index
to pleadings; p5 para 5 – Plaintiff’s Particulars of
Claim.
[6]
Loc
cit
@
para 8.
[7]
See:
Index to Pleadings @ p6, para 9.
[8]
Ibid.
[9]
[2010]
4 All SA 619
(W) Para.11
[10]
See:
Revised Index @ p8 – 9 para 13 and subparagraph 13.1.1.
[11]
De
Klerk v Minister of Police
2021
(4) 585
[12]
Frenkel
Wise & Co Ltd v Cuthbert
1947
(4) SA 715 (C)
[13]
Amod
v South African Mutual Fire and General Insurance Co Ltd
1971
(2) SA 611.
[14]
Loc
cit
@
p614H – 615A
[15]
Revised
index @ p40 41, para 14.6 – 14.7 of replying affidavit r/w
confirmatory affidavit of Ms. Saziwe Ncaza @ p45 –
46.
[16]
Trans-African
Insurance Co Ltd v Maluleke
1956
(2) SA 273
(A)