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2024
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[2024] ZAFSHC 267
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Motsoane v Legal Aid South Africs and Others (3449/2023; 5153/2022) [2024] ZAFSHC 267 (26 August 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not reportable
Case
no:3449/2023
In
the matter between
CEPHAS
MOTSOARI MOTSOANE
APPLICANT
And
LEGAL
AID SOUTH AFRICA
1
ST
RESPONDENT
CHAIRPERSON
OF THE BOARD LEGAL AID
SOUTH
AFRICA
2
ND
RESPONDENT
ALL
MEMBERS OF THE BOARD LEGAL AID
SOUTH
AFRICA
3
RD
RESPONDENT
MS/MRS.
MANTITI KOLA CHIEF EXECUTIVE OFFICER
LEGAL
AID SOUTH AFRICA
4
TH
RESPONDENT
CHIEF
OPERATIONS OFFICER LEGAL AID
SOUTH
AFRICA
5
TH
RESPONDENT
MS/MRS.
PORTIA THANGAVHUELELO NATIONAL
OPERATIONS
OFFICER LEGAL AID SOUTH AFRICA
6
TH
RESPONDENT
PROVINCIAL
MANAGER LEGAL AID SOUTH AFRICA
GAUTENG
PROVINCE
7
TH
RESPONDENT
MS/MRS.
NCEKAZI MOAHLODI MANAGER
JOHANNESBURG
JUSTICE CENTRE LEGAL AID
SOUTH
AFRICA
8
TH
RESPONDENT
ADVOCATE
ENRICE GUARNERI HIGH COURT UNIT
MANAGER
LEGAL AID SOUTH AFRICA JOHANNESBURG
9
TH
RESPONDENT
ADVOCATE
MBONGENI MBATHA LEGAL PRACTITIONER
LEGAL
AID SOUTH AFRICA JOHANNES JUSTICE CENTRE
10
TH
RESPONDENT
MS/MRS.
ELSE SEBE LEGAL PRACTITIONER LEGAL AID
SOUTH
AFRICA JOHANNESBURG JUSTICE CENTRE
11
TH
RESPONDENT
MR.
NTAKE LEGAL PRACTITIONER LEGAL AID
SOUTH
AFRICA JOHANNESBURG JUSTICE CENTRE
12
TH
RESPONDENT
PROVINCIAL
MANAGER LEGAL AID SOUTH AFRICA
FREE
STATE PROVINCE
13
TH
RESPONDENT
MR.
MACHINI MOTLOUNG LEGAL PRACTITIONER
LEGAL
AID SOUTH AFRICA BLOEMFONTEIN JUSTICE
CENTRE
FREE STATE PROVINCE
14
TH
RESPONDENT
I.
L. DE WET LEGAL PRACTITIONER LEGAL AID SOUTH
AFRICA
BLOEMFONTEIN JUSTICE CENTRE FREE STATE
PROVINCE
15
TH
RESPONDENT
LEONA
SMIT LEGAL PRACTITIONER LEGAL AID SOUTH
AFRICA
BLOEMFONTEIN JUSTICE CENTRE FREE STATE
PROVINCE
16
TH
RESPONDENT
And
Not
reportable
Case
no:5153/2022
In
the matter between
LEOCEPHAS
MOTSOARI MOTSOANE
APPLICANT
and
CHAIRPERSON
OF THE BOARD LEGAL AID
SOUTH
AFRICA
1
st
RESPONDENT
CHIEF
EXECUTIVE OFFICER
LEGAL
AID SOUTH AFRICA
2
nd
RESPONDENT
CHIEF
OPERATIONS OFFICER
LEGAL
AID SOUTH AFRICA
3
rd
RESPONDENT
PROVINCIAL
MANAGER
LEGAL
AID SOUTH AFRICA (FREE STATE)
4
th
RESPONDENT
IL
De WET
LEGAL
AID SOUTH AFRICA
5
th
RESPONDENT
LEONA
SMIT LEGAL PRACTITIONER LEGAL AID SOUTH
AFRICA
BLOEMFONTEIN JUSTICE CENTRE FREE STATE
PROVINCE
6
th
RESPONDENT
Coram:
MOLITSOANE, J
Heard:
30 MAY 2024
Delivered:
26 AUGUST 2024
ORDER
CASE
NO: 3449/2023
The
application is dismissed with costs on scale A.
CASE
NO: 5153/2022
The
application is dismissed with costs on scale A.
JUDGMENT
Molitsoane
J
[1]
The applicant instituted various applications
against the respondents seeking different reliefs. On 18 January 2024
Van Zyl J,
inter alia
,
made the following orders:
a)
‘
The contempt of court etc. part of the main
application filed under case number 1857/2021 on 24 August 2022, is
separated from the
main application.
b)
The separated part of the main application
referred to in paragraph 1 above, application number 5153/2022 and
application number
3449/2023 are consolidated and the three
applications are subsequently to be adjudicated simultaneously.
c)
. . .
d)
The remaining part of the main application under
application 1857/2021, is to remain a separate application, the
merits of which
will only be adjudicated once the three applications
referred to above have been finalized and a legal representative has
been
appointed to assist the applicant therein or the applicant has
declined such legal representation.
e)
d) Mr. Geyer employed by the Bloemfontein Local
Office of Legal Aid South Africa is requested to e-mail this judgment
an order to
the other relevant respondents in the employment of Legal
Aid South Africa.’
[2]
Van Zyl J also issued directives as to the filing
of further affidavits in order to case manage these proceedings.
CASE
NUMBER 3449/2023
[3]
In this application, the applicant seeks as a
starting point, condonation for the late filing of the replying
affidavit. I granted
the application in the absence of opposition and
I proceed to deal with the merits of the case.
[4]
The applicant seeks a myriad of orders against the
Legal Aid South Africa (LSA) and its functionaries. From the notice
of motion,
it appears that the applicant seeks declaratory orders. As
can be gleaned from the citation above, there are 16 respondents;
some
of them are in Gauteng while the others are within the
jurisdiction of this Division. The essence of the case of the
applicant
is captured as follows by the applicant:
‘
4.
This litigation is instituted by the Applicant against the
Respondents in this matter given their unfair, unconstitutional,
unlawful and wrongful conduct
to
have deliberately failed in an arrogant and flagrant manner to
provide the Applicant with proper, effective or competent legal
representation during his criminal trial and hearing of his appeal
respectively. The Respondents also acted in bad faith against
the
Applicant by having deliberately provided illusory, improper,
ineffective or incompetent legal representation to him.’
(My
emphasis.)
[5]
It appears from the record filed that the
applicant was convicted and sentenced to an effective term of
imprisonment in the Regional
Magistrate Court in Gauteng on two
counts of robbery with aggravating circumstances and possession of
ammunition. He appealed to
the South Gauteng High Court and on 14
November 2013 under case number A216/2013, his appeal was dismissed.
He is unhappy with
the legal representation he received during his
hearing and at the appeal stage.
[6]
From the above, it appears that the issue of the
jurisdiction of this court looms on the horizon. It is clear from the
papers filed
that the source of the complaint arose out of the legal
representation afforded to the applicant in Gauteng and on a matter
which
arose in Gauteng. It seems to me that the only reason that this
matter is before this court is for the convenience of the applicant.
He is incarcerated at Mangaung Prison within the jurisdiction of this
court.
[7]
Much as it appears on the face of it that
this court has no jurisdiction in this matter, I am willing to accept
that this court
is clothed with jurisdiction in view of the
consolidation order granted by my sister Van Zyl J. The consolidation
order also included
the contempt of the court application issued
under case number 3449/2023. The order on which the contempt of court
application
is premised, was granted by the Judge of this Division.
Again, during the hearing of this application.
[8]
It is necessary to deal with the issue of the burden of proof in our
law. It is often said that ‘he
who alleges must prove’.
The court in
Pillay
v Krishna and Another
[1]
dealt with the basic rules which govern the incidence of the burden
of proof. The court said the following:
‘
If
one person claims something from another in Court of law, then he has
to satisfy the Court that he is entitled to it. But there
is a second
principle which must always be read with it: “. . . Where the
person against whom the claim is made is not content
with a mere
denial of the claim, but sets up a special defence, then he is
regarded
quoad
that
defence, as being the claimant: for his defence to be upheld he must
satisfy the Court that he is entitled to succeed on it.
. . . But
there is a third rule, which Voet states . . . as follows: “He
who asserts, proves and not he who denies, since
a denial of a fact
cannot naturally be proved provided that it is a fact that is denied
and that the denial is absolute.”
. . . The onus is on the
person who alleges something and not on his opponent who merely
denies it.’
[2]
[9]
The assertion by the applicant that he was granted ‘illusory,
improper and ineffectual legal representation’
is without
merit. This assertion is not based on any factual basis. The
applicant asserts that the 12
th
Respondent abandoned oral
argument and replaced it with, what he terms, poorly written argument
at the end of the defence case.
While an accused is entitled to
address the court at the end of the state’s case, a verdict in
any trial is supposed to come
after careful analysis and evaluation
of the evidence. While addresses are invaluable in the adjudication
of the issues in dispute,
they do not replace the evidence.
[10]
What cannot be disputed is that this trial took
place in the presence of the applicant as it is required
by
s 158
of
the
Criminal Procedure Act 51 of 1977
. It is axiomatic that the
presence of the applicant during the trial also entitled him to give
instructions at all material times
to his legal representative(s).
The applicant makes no averments that he gave instructions to his
legal representatives and same
were not heeded. Even if this were so,
he could simply have terminated the mandate of his erstwhile legal
representatives and maybe
referred the matter to the regulatory
professional body to which such legal practitioner belonged, if such
a practitioner acted
without instructions.
[11]
During the hearing of this application, it was established that the
applicant is not legally qualified and trained in
law. His opinion as
to the competency and knowledge of the law of the legal
representatives who appeared for him is irrelevant
for the purposes
of determining whether such representation was effective or not, he
is simply a lay person in law. His complaint
must be based on facts.
He dismally failed in this regard. As such, his claim is baseless and
cannot succeed.
CASE
NUMBER 5153/2022
[12]
In this application, the applicant seeks an order to hold the
respondents in contempt of the order of this court. On
8 March 2022
the applicant brought an urgent application under case number
1857/2021 against the South African Human Rights Commission
(the
SAHRC). During the hearing of this application, the court made the
following order:
‘
i.
The matter is struck from the
roll.
ii.
No order is made as to costs.
iii.
The matter is referred to Legal aid South Africa
(First Respondent) to supply the applicant with legal representation
in order for
him to prepare and promote his case.’
[13]
It is settled that the applicant who alleges contempt of an order of
court must establish the following jurisdictional
facts in order to
succeed with this kind of an application, namely that: (a) an order
was granted against the alleged contemnor;
(b) the alleged contemnor
was served with the order or had knowledge of it, and (c) the alleged
contemnor failed to comply with
the order of the court.
[3]
[14]
Upon proof of the above three elements, willfulness and
mala
fides
will
be presumed and the evidentiary burden will shift to the contemnor.
Willfulness and
mala
fides
have
to be established beyond a reasonable doubt.
[4]
Failure by the respondent to discharge this burden, will result in
contempt being established.
[15]
The existence of the order is not in dispute. I, however, need to
mention that the order to provide legal aid to the
respondents was
made without affording the LASA the opportunity to make any
submissions. This order was not attacked by any of
the respondents.
The Respondents chose not to review the order of court forcing them
to grant legal aid to the applicant. According
to them they complied
with the order.
[16]
As indicated above, it must be proven that the contemnor was served
with the order or had knowledge with it. The applicant
did not file
any returns of service against any of the applicants. Van Zyl J had
ordered that one Mr. Geyer should email the judgment
and the
consolidation order to the respondents. The judgment and order of
consolidation did not take away the obligation which
rests on the
applicant to have the order properly served on the respondents. The
applicant made an impassioned plea to the court
to ‘understand’
that he is in custody and a lay person and had no means to effect
service on the respondents. Much
as I sympathies with the applicant,
the fact is that it will not serve the best interests of justice to
make a finding of contempt
without the person(s) having been served
with the application and granted her/him the opportunity to be heard.
In any case,
Mr. Geyer did not file any service
affidavit, even on the consolidation order. In
Mjeni
v Minister of Health, Eastern Cape
[5]
the court said the following:
‘
I
would like to stress that contempt of court proceedings can only
succeed against a particular official or person if the orders
have
been personally served on him or its existence brought to his
attention and it is his responsibility to take steps necessary
to
comply with the order but he willfully and contemptuously refuses to
comply with the court order.’
[6]
[17]
I am not satisfied in the absence of any proof to the contrary, that
all the respondents had been properly served. I, however,
accept that
some of the respondents may have had knowledge of the application.
There is no evidence that all the respondents are
still employed by
Legal Aid South Africa. Failure to satisfy the court that there had
been personal service on the respondents
in their personal capacities
is fatal to the applicant’s case especially when their
committal is on the offing.
[7]
[18]
The respondents contend that they complied with the order of the
court. In this regard they instructed the fifth respondent,
who is a
legal practitioner, to consult and compile a merit assessment report
on the case of the applicant. In the assessment,
the fifth respondent
concluded that there were no merits in the relief sought by the
applicant. The applicant was informed that
the legal aid had to be
terminated. According to the respondents, the applicant was informed
to follow the internal processes of
the Correctional Services
Department and/or contact NICRO or South African Prisoners
Organisation for Human Rights. The applicant
was informed of the
decision by the first respondent.
[19]
The Legal Aid Manual to the Legal Aid South Africa Act 39 of 2014
provides:
‘
Regulation
9
(1)
Legal Aid South Africa may grant legal aid to a litigant in any civil
matter if –
(a)
in the opinion of Legal Aid South Africa, the
matter has good prospects of success.
(b)
in the opinion of Legal Aid South Africa, the
matter has good prospects of enforcement of a court order; and
(c)
Legal Aid South Africa has the necessary resources
available, based on a written merit report, where such report is
applicable.”
(2)
Legal Aid South Africa may, subject to sub regulation (1), provide
legal aid for the purpose of compiling
a merit report, before any
steps are taken, except where steps are necessary to prevent
prescription, default judgment of lapsing
of the litigants’
rights.
Regulation 27
(1)
In order to qualify for legal aid in either civil or criminal cases,
the legal aid applicant’s
gross monthly income less tax and net
assets must fall within the parameters set by the means test
contemplated in subregulations
(2), (3), (4), (5), and (6) before
legal aid may be granted.
(2)
An applicant who applies for legal aid for a civil case and who does
not have a spouse or is not a member
of a household and has a net
monthly income, after deduction of income tax, of R8 200.00 a month,
or less, may qualify for legal
aid for that civil matter.
(3)
An Applicant who applies for legal aid for a civil case and who has a
spouse, or the applicant is a
member of a household and whose
household has a monthly income, after deduction of income tax, of R9
000.00 a month or less, may
qualify for legal aid for that civil
matter.
(4)
A legal aid applicant or an applicant who is a member of a household
who does not own immovable property
and has net movable assets of
less than R151, 700.00 in value may qualify for legal aid for a civil
or criminal matter.
(5)
A legal aid applicant of an applicant who is a member of a household
who owns immovable property and
has net immovable assets and movable
assets in value of up to R711 700.00 may quality for legal aid for a
civil or criminal matter:
Provided that the legal aid applicant or
the member of a household must physically reside in the immovable
property or in at least
one of the immovable properties, where there
is more than one, unless Legal Aid South Africa decides to the
contrary.
(6)
The amounts contemplated in sub regulations (2), (3), (4), (5), and
(6) will increase annually on 1
April on the basis of the Consumer
Price Index, rounded off to the next 100.’
[20]
It is common cause that when the court ordered LASA to provide legal
aid to the applicant, LASA was
not a party to the
dispute between the applicant and the SAHRC. LASA was not granted the
opportunity to weigh in on the issue of
whether the applicant
qualifies for legal aid in terms of its guidelines and statutory
provisions. Fairness dictate that LASA should
have been granted the
opportunity to make its own assessment and according to its dictates,
decide on the issue whether to grant
legal assistance or not. If the
applicant is aggrieved by the decision of LASA, then in that case, he
still has remedies in terms
of the internal processes of that
organization. Apart from this, if he does not get any joy in the
internal processes, he can still
approach the court for review of the
decision not to grant him legal aid.
[21]
It has to be borne in mind that LASA receives its monies from the
fiscus and other sources.
[8]
It
is legally obliged to manage, use and account for the taxpayer monies
it received in terms of the
Public Finance Management Act 1 of 1999
.
It stands to reason that such monies cannot be expended on civil
matters where LASA holds the view that they are unmeritorious.
It is
thus preferable that where the court is of the view that legal aid is
necessary for a litigant to vindicate her/his rights,
that the court
should ideally refer such a litigant to LASA in order to apply for
legal aid. This would obviate the need
for LASA to seek to
review the decision of the court where it deems meet to do so with
great expense.
Regulation 9
read
regulation 27
promulgated in terms
of the Legal Aid Act sets out the qualifications an applicant must
meet in order to be eligible for assistance
in a civil suit.
[22]
The evidence reveals that LASA consulted with the applicant and
compiled a merit report and found that there were no
prospects of
success in the relief sought. The applicant contended in the
submissions before me that LASA was obligated to grant
legal aid and
had no business in considering the merits of the case of the
applicant. This contention is flawed. It does not take
into account
that the fifth respondent is an officer of the court and has a duty
to act ethically and with integrity towards the
court. She cannot
bring unmeritorious cases before the court well knowing that there
are no prospects of success in the relief
sought. If she were to do
so, she would be exposing herself to possible personal costs orders.
She would also be going against
the pertinent criterion for
eligibility as set out in the Regulations and the Legal Aid Manual
and which her employer expects her
to follow to the letter. She also
has a duty, as a professional legal practitioner, to advise her
clients accordingly, lest her
clients would end up being mulcted with
unnecessary costs which could have been avoided.
[23]
In my view, upon receipt of the order from this court, LASA did all
that had to be done in order to comply with the order
granted. There
is therefore no failure on its part to comply with the order of the
court. The applicant has failed to prove two
of the elements to
trigger the presumption that the respondents’ non-compliance
was willful and
mala fide
. For this reason, no evidentiary
burden shifts to the respondents. The application for contempt of
court must accordingly fail.
I can find no reason why I should depart
from the principle that costs should follow the course.
Order
[24]
In the result, I make the following order:
CASE NO:
3449/2023
The application is
dismissed with costs on scale A.
CASE NO:5153/2022
The application is
dismissed with costs on scale A.
P.E.
MOLITSOANE, J
For
the Applicant:
In
person
G4S
Contact Details
W[…]@za.g4s.com
S[...]@.
za.g4s.com
For
the Respondent:
Adv.
Lamprecht
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
[1]
Pillay
v Krishna and Another
1946
AD 946.
[2]
Ibid at 951-952.
[3]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[2021]
ZACC 19
;
2021 (9) BCLR 992
(CC) para 37.
[4]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others: Mkhonto and
Others v Compensation Solutions (Pty) Ltd
[2017]
ZACC 35
; 2017(11) BCLR 1408 (CC); 2018 1 CC para 62.
[5]
Mjeni
v Minister of Health, Eastern Cape
2000
(4) SA 446
(TkHC) 454G-H.
[6]
Ibid at 454G-H.
[7]
Footnote
4 para 103.
[8]
See s
21
(a)
and
(b)
of
Legal Aid Act 39 of 2014.