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2024
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[2024] ZAMPMBHC 14
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Thwala v South African National Parks and Others (1132/2022) [2024] ZAMPMBHC 14 (23 February 2024)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NO: 1132/2022
(1) REPORTABLE:NO
(2) OF
INTEREST TO OTHER JUDGES: NO
(3) REVISED:
YES
DATE: 23/02/2024
SIGNATURE
In the
matter between:
DANNY
SIBUSISO THWALA
Applicant
and
SOUTH AFRICAN
NATIONAL PARKS
First Respondent
THE BOARD
OF DIRECTORS OF SANPARKS
Second
Respondent
CHIEF
EXECUTIVE OFFICER OF SANPARKS
Third Respondent
WERKSMANS
ATTORNEYS
Fourth
Respondent
GARETH
COLEMAN
Fifth Respondent
This
judgment was handed down electronically by circulation to the parties and/or
parties representatives by email. The date and
time for hand-down is deemed to
be 23 February 2024 at 10:00.
Date
heard: 13 February 2024
J U D
G M E N T
BHENGU
AJ:
INTRODUCTION
[1]
This matter concerns a labour dispute between the
Applicant, Mr Thwala and his employer, South African National Parks
(SANPARKS).
The Applicant was charged with 6 charges relating to misconduct.
His disciplinary enquiry commenced on 23 September 2021. On 12
February 2022,
he was issued with an addendum containing an additional charge of bringing his
employer, SANPARKS into disrepute
due to his whistle blowing letter that he had
sent to the office of the Chairperson of the Board of SANPARKS, office of the
Public
Protector, the Minister of Environment & Fisheries and the Minister
of Finance.
[2]
On 08 March 2022 the Applicant brought an urgent
application against the Respondents. In the urgent application, the Applicant sought
an order compelling two witnesses, namely, his line manager, Mr Coleman as well
as the author of an investigative report relating
to his charges to testify at
his disciplinary hearing. The disciplinary hearing was scheduled to proceed on 30
March 2022. The
Applicant also sought a declarator to the effect that the additional
charge contained in the addendum to a charge sheet dated 12
February 2022 be declared
invalid
[1]
.
[3]
Having
discussed the background of the matter I was faced with the following
challenges:-
3.1
I was concerned that the matter
now serves before this Court with the same papers that was before the Urgent Court
in 2022. This
concern was informed by the fact that the disciplinary hearing
against Mr Thwala was to be held on 30 March 2022 and it has now
been 23 months
since that date has passed. There is no supplementary affidavit from the
Applicant explaining what has happened
in the matter since 08 March 2022 todate.
3.2
The papers before the Court were
not properly indexed and paginated and the Court bundle was falling apart. The
Courts Registrar
had to ask the parties to provide a properly secured bundle
which was only provided in the morning of the hearing. There was no
Form B
relating to the opposed motions which is an indication that the matter was not
case managed. There was no agreement between
the parties when their heads of
argument were to be filed. This resulted the Applicant filing its heads of
argument on 09 February
2024 and the Respondent filing its heads of argument
and an additional bundle on the eve of the hearing. It is worth to note that
none of the documents that were filed via email were placed in the Court File. This
prompted me to ask the parties to address the
Court on the readiness of the
matter to proceed.
Submissions
on behalf of the Applicant
[4]
Counsel
for the Applicant submitted that the matter is ready to proceed. He submitted
that the Applicant is no longer persisting
with the relief sought in prayer 2 of
his Notice of Motion as that the relief that was sought in prayer 2 has been
overtaken by
events. According to counsel for the Applicant, the Fifth
Respondent, Mr Coleman against whom the relief was sought had already
testified
at the disciplinary hearing. He still however persists with the relief sought
in prayer 3 and 4 as there has not been
a ruling on this issue yet. Whist he
concedes that there is no supplementary affidavit or amended Notice of Motion
that is properly
placing this change of circumstances before Court, he asked
the Court to
use its discretion and dispense with any non-compliance
if any and allow the matter to proceed. He is of the view that the non-compliance
is not of such a degree that can prevent the matter from proceeding.
Submissions
on behalf of the Respondents
[5]
Counsel
for the Respondent argued that the application is moot and constitutes
frivolous and vexatious litigation. He argued that
the relief sought in the
application is not competent. That the applicant has abused the processes of
the Court by not supplementing
his papers that served before the urgent Court
in March 2022, thus not disclosing all that has passed since the last two years
to enable the Court to properly determine the matter. He submitted that the
Applicant had failed to comply with the directives of
this Court relating to
case management of opposed motions. He contends that this matter should be
enrolled as a special motion
because the estimated time for oral argument is
estimated by the Applicants counsel is over 2 hours.
[6]
The
Respondents referred to the Court to an
ex-tempore
judgement by Judge
Ratshibvumo dated 08 March 2022, which in addition to striking off the from the
roll for lack of urgency, stated
that
there is no merit in bringing the
application altogether
.
[7]
The
Respondents also contends that the issues before this Court in the application
as it stands are moot because the internal disciplinary
hearing has concluded,
and the Applicant has also closed its case. Mr Coleman has testified and one of
the investigators and authors
of the investigative reports have also testified.
He submitted that the moot charge 7 has been already fully ventilated and that
the Applicant did not disclose other judgments of this court in respect of the
same matter and further findings in the Pretoria
High Court, CCMA and Labour
Court. The Respondent sought dismissal of the Application with a punitive cost
order.
Analysis
[8]
Harms
[2]
provides that a notice of motion must set
out the relief sought and must be accompanied by an affidavit in which the
facts upon
which the applicant relies are set out. In this matter the Applicant
seeks to amend the relief sought in the Notice of motion by
ways of a practice
note and from bar without setting out reasons a case for the departure in a
supplementary affidavit.
[9]
Applicants
counsel denied any knowledge of the
ex-tempore
judgment by Judge Ratshibvumo
dated 08 March 2022 and contended that as far as he knows, the judgement only
related to the urgency
of the matter and nothing else.
[10]
Practice
Directives of the Division
7.1 No opposed matter shall be
enrolled for hearing unless it has gone through judicial case management
conference by completion
of Form B after consulting with the registrar for the available
date chosen and agreed upon between the parties and the parties
or their legal
representatives having entered their particulars in the opposed motion roll
provisional register..
[11]
In this matter there has been a total disregard
of the Practice Directive and there is no reasonable explanation for such
conduct.
I agree with the Applicants counsel that the Court hearing the matter
has a discretion to condone non-compliance. But I must re-iterate
that that
discretion can only be exercised in favour of the defaulting party on good
cause shown for non-compliance. Even if I
were to condone the non-compliance
with the Practice Directive, I am however, still faced with a matter which has almost
two years
history that is missing from the papers. It seems there are other
parallel proceedings that have taken place in other Courts which
this Court is
not informed of that may have an effect of the orders sought. I take note of
the submissions by the Respondents as
to what transpired in the matter before
this hearing, but I am constrained from utilising that information as such
information
was not contained in a supplementary affidavit from either party.
[12]
Having regard to the aforesaid, I am persuaded
to find that the matter is not ready to proceed.
Costs
[13]
Counsel for the Applicant argued that costs
should be costs in the application. Counsel for the Respondent argued that costs
should
be awarded against the Applicant on a punitive scale for abusing the
Court process by bringing frivolous and vexatious Application.
The Labour
Appeal Court in Plastic Converters Association of SA
[3]
, found that
the
scale of attorney and client is an extraordinary one which should be reserved
for cases where it can be found that a litigant
conducted itself in a clear and
indubitably vexatious and reprehensible manner.
[14]
Over and above the Applicants failure to comply
with the practice directives of this Court, the Applicant also failed to bring
to
the attention of the Court all the other proceedings in different fora adjudicating
on the same or related issues. This could have
an effect of issuing conflicting
orders. I am satisfied that the conduct of the Applicant is tantamount to an
abuse of Court process
and as such a cost order on an attorney and client scale
is justified.
[15]
In the circumstances, I make the following
order:
(a)
The matter is removed from the roll.
(b)
The Applicant is ordered to pay Respondents
costs on an attorney on an attorney and client scale.
(c)
The matter is referred to Case Management.
JL
BHENGU
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Adv
B Morris
Instructed
by:
Werksmans
Attorneys
Counsel
for the Respondent:
Adv
A Maisela
Instructed
by:
Macbeth
Attorneys Inc
Date
of Judgment:
23
February 2024
[1]
Notice of motion dated 01
March 2022, para 2, 3 & 4
[2]
D Harms Civil Procedure in
the Superior Courts (2022 Service Issue 75) para B6.4
[3]
Plastic Converters
Association of SA on behalf of Members v National Union of Metalworkers of SA
[2016] ZALAC 39
; (2016) 37 ILJ 2815 (LAC) at para 46