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2024
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[2024] ZAFSHC 339
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Motsoane v Minister of Correctional Services and Constitutional Development and Others (52/2024) [2024] ZAFSHC 339 (17 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: 52/2024
In
the matter between
CEPHAS
MOTSOARI MOTSOANE
APPLICANT
And
MINISTER
OF CORRECTIONAL SERVICES
AND
CONSTITUTIONAL DEVELOPMENT
FIRST
RESPONDENT
NATIONAL
COMMISSIONER OF CORRECTIONAL
SERVICES
SECOND
RESPONDENT
THE
CONTROLLER OF MANGAUNG G4S PRIVATE PRISON
IN
BLOEMFONTEIN
THIRD
RESPONDENT
G4S
CORRECTIONAL SERVICES (BLOEMFONTEIN)
RF (PTY)
LIMITED
FOURTH
RESPONDENT
And
Not
reportable
Case
no: 53/2024
In
the matter between
CEPHAS
MOTSOARI MOTSOANE
APPLICANT
and
JUDICIAL
INSPECTORATE FOR CORRECTIONAL
SERVICES
FIRST
RESPONDENT
HONOURABLE
JUDGE CAMERON
INSPECTING
JUDGE
FOR
CORRECTIONAL SERVICES
SECOND
RESPONDENT
CHIEF
EXECUTIVE OFFICER
JUDICIAL
INSPECTORATE
FOR
CORRECTIONAL SERVICES
THIRD
RESPONDENT
CHIEF
OPERATIONS OFFICER
JUDICIAL
INSPECTORATE
FOR
CORRECTIONAL SERVICES
FOURTH
RESPONDENT
PROVINCIAL
MANAGER
JUDICIAL
INSPECTORATE FOR
CORRECTIONAL
SERVICES
FREE
STATE PROVINCE
FIFTH
RESPONDENT
Neutral
citation: XXX
Coram:
Gusha AJ
Heard:
01 August 2024
Delivered:
This judgment was handed down in open court, and released to SAFLII.
The date for hand-down is deemed to be 17
October 2024
Summary:
Declaratory relief - the authorities’ alleged failure to attend
to his complaints and the inhumane treatment the applicant
allegedly
suffered at the hands of prison officials is unlawful, in bad faith
and unconstitutional.
ORDER
CASE NO: 52/20024
1.
The application is dismissed.
2.
No order as to costs.
CASE
NO: 53/20024
1.
The application is dismissed.
2.
No order as to costs.
JUDGMENT
Gusha
AJ
[1]
The applicant launched various applications in terms of
rule 6(12) of the Uniform Rules of Court. On 18 January 2024, my
sister
Van Zyl J issued orders which,
inter alia
, consolidated
the two present applications and directed that same should be heard
in the normal course of process and not on an
urgent basis. She
further, for purposes of case management, issued directives as to the
filing of further affidavits and the filing
of heads of argument.
[2]
The applicant is an adult male inmate who is
incarcerated at the Mangaung G4S private correctional centre (the
correctional centre)
situated in Bloemfontein. He is serving a
sentence of 23 years’ imprisonment and has been incarcerated at
the correctional
centre since 28 October 2013. He represents himself
and for this reason, I granted the applicant generous time to
properly ventilate
his case. It bears noting that, albeit the
applicant constantly reminded the court of his plight, as an
unrepresented inmate, I
found him to be eloquent and well-articulate
in English. He is also quite well versed in the law as evinced by his
reliance on
judgments of this and higher courts and, as he informed
me during arguments, he holds a tertiary qualification.
[3]
I am indebted to counsel in both cases for the manner
in which they approached this matter; they displayed the requisite
professionalism,
understanding and tolerance towards the applicant.
[4]
The official capacities,
personae
, and authority
of the respondents in case
no 52/2024 are self-evident from the
citations and need no further setting out. The fourth respondent is a
public company operating
under the style and name of G4S Correctional
Services (Bloemfontein) (RF) (Pty) Ltd (G4S). It is contracted with
the Department
of Correctional Services (DCS) to manage and control
the daily functioning of the Mangaung Correctional Centre situated in
Bloemfontein,
and as such, operates as a private correctional
facility (the correctional facility). They were joined to these
proceedings by
an order as issued by my brother Loubser J on 22 March
2024.
[5]
In case 53/2024 the first respondent is an autonomous
government entity whose mandate is to uphold and protect the rights
of inmates
through independent oversight over DCS. It reports to the
President of the Republic of South Africa, the Minister of Justice
and
Correctional Services and to the Parliamentary Portfolio
Committee. It plays a pivotal role in conducting the inspection of
correctional
centres, ensuring that the conditions and treatment of
inmates are in alignment with legal and constitutional standards. The
current
Inspecting Judge (IJ), is Justice Cameron, a retired Justice
of the Constitutional Court and the second respondent.
[6]
Similarly, the third to fifth respondents’
official capacities,
personae
, and authority are self-evident
from the citations and need no further setting out.
Case
Number 52/2023
[7]
The applicant seeks a plethora of relief against the
respondents. In his quest to obtain same, he has filed voluminous
hand-written
affidavits which, at times, made for laborious reading.
The notice of motion and its various attachments spans 43
hand-written
pages. His replying affidavit and its various
attachments comprise some 114 hand-written pages and his purported
supplementary
affidavit comprises 40 hand-written pages.
[8]
In
so far as he seeks to affirm his rights under the Bill of Rights, I
agree with him that these rights are innate to him. Section
7(1) of
the Bill of Rights and the preamble to the Constitution enshrines the
rights of all people in our country and affirms the
democratic values
of human dignity, equality and freedom. It, however, needs no
restating that the rights as enshrined in the Constitution
are
subject to limitation. Albeit his status as a sentenced prisoner may
curtail some of the rights enshrined, his status does
not in and of
itself render him devoid of constitutional protection. In
Minister
of Justice and Constitutional Development and Others v Ntuli
(Judicial Inspectorate for Correctional services intervening
as
amicus curiae)
[1]
(
Ntuli
)
the Supreme Court of Appeal remarked as follows;
‘
Under the
Constitution, however, prisoners have the rights given to all
persons, entrenched in the Bill of Rights, subject to a
regime of
punishment that meets the criteria of limitation set out in s 36 of
the Constitution. Hence, a prisoner does not have
a
residuum
of rights. A prisoner enjoys the rights the Constitution extends to
all persons and those specifically given to every sentenced
prisoner
(s 35(2)), unless these rights are limited by a law of general
application in terms of s 36. So understood, it is for
the State to
justify a measure that compromises a prisoner’s constitutional
rights. Following what is said in s 36, it must
be a measure that is
a law of general application; and that is reasonable and justifiable
in an open and democratic society based
on human dignity, equality
and freedom.’
[2]
[9]
From
what I could discern, it appears that the genesis of these
proceedings is the alleged seizure of certain documents belonging
to
the applicant during a planned search conducted at the correctional
facility on 28 September 2023
[3]
,
the authorities’ alleged failure to attend to his complaints
and the inhumane treatment he allegedly suffered at the hands
of
prison officials.
[10]
His
papers are drafted somewhat inelegantly and this at times made it
difficult to distil what the application is predicated on.
However,
from what I could discern, it appears that the applicant seeks
declaratory, interdictory relief and seemingly also seeks
to assert
some constitutional rights. As appears from the notice of motion, the
applicant seeks,
inter
alia
,
the following relief;
[4]
1.
That the court make a finding that in terms
of the constitution and
the correctional services Act 111 of 1998 that any infringement of
his rights by the officials at the correctional
centre and any
damages sustained as a result thereof be attributed fully to the
respondents given their constitutional and statutory
obligations, as
such infringements occurred with impunity under the third
respondent’s watch.
2.
That the respondents bear constitutional obligations
arising from
provisions of ss 2, 7(2), 8(1), 40, 41, 165(4) and 195(1) of the
Constitution to ensure that all reasonable measures
are in place and
taken to observe, respect, protect and fulfil applicant’s
rights in the Bill of Rights in prison, and where
his rights have
been infringed they are constitutionally and statutorily obliged to
properly and effectively attend to such without
delay.
3.
Make a finding that the respondents, through
the third respondent,
acted unconstitutionally, unlawfully and with bad faith by
deliberately failing to attend to the complaints
he lodged.
4.
Take notice that the applicant is litigating
on person despite being
a lay-person and incarcerated.
5.
Make a finding that the second respondent
acted unconstitutionally
and unlawfully by approving rules and or procedures that deprived the
prisoners’ rights to lodge
complaints or requests to the Head
of Prison.
6.
Make a finding that the second respondent
acted unconstitutionally
and with bad faith by approving rules or procedures that require
prisoners to get permission from the
authorities in order access to
justice.
7.
Make a finding that second respondent acted
grossly unconstitutional,
unlawfully and with bad faith by approving practices aimed at
disrespecting a prisoner’s rights
to legal confidentiality.
8.
Make a finding that on 28 September during
a search of his cell, his
documents were unlawfully seized and order the immediate return of
such documents.
9.
Make a finding that his bag that was seized
during the search be
returned to him.
10.
Make a finding that during the search the officials abused
their
power and acted unlawfully, with bad faith and grossly
unconstitutional.
11.
Make a finding that any failure by the officials to return
his
documents unlawfully seized will undermine his right to a fair trial.
12.
Make an order that until this matter is finalized that the
applicant
must not be transferred to another correctional facility.
13.
Make a finding that an official at the private prison acted
unlawfully and with wanton disregard to his human dignity by
attempting to insert his finger in the applicant’s anal
orifice.
14.
Make an order interdicting the prison officials from searching
him in
a manner that violates his human dignity.
15.
Make a finding that the applicant is a vulnerable person worthy
of
the court’s protection and that the ‘court rules’
ought to be relaxed to accommodate lay-people not well versed
in the
law.
16.
Make a finding that his safety at the correctional facility
should
not be compromised and that he should not be persecuted by the
officials in retaliation to these proceedings.
17.
Make a finding that due to the power dynamic which exists between
the
applicant and the respondents, no official is allowed to approach or
confront the applicant about these proceedings.
18.
Make a finding that the conduct of the officials to usurp the
powers
resorting with the respondents is in bad faith and dishonest.
19.
Make a finding that there is a need for this court to relax
the rules
and procedures of the court to accommodate a litigant in his
position.
20.
Make a finding that no legislation, procedure or rules of court
will
be applied in a manner which infringes the fundamental rights of the
applicant.
21.
Make an order that the second respondent invoke the provisions
of
section 95A
of the
Correctional Services Act 111 of 1998
with
immediate effect.
22.
Order that the second and third respondents pay punitive costs
in
their personal capacities.
[11]
The respondents oppose the relief sought and submit
that the relief sought is vague and incompetent.
[12]
The first to third respondents disavow not attending to
complaints lodged by the applicant. They assert that no complaints
reached
their offices and that no such records could be located. In
their answering affidavit they aver that it may very well be that
said
complaints, if ever lodged, never reached the office of the
controller.
[13]
The
fourth respondent disavows that the applicant was treated in an
inhumane manner during the planned search or that he was subjected
to
inhumane bodily probing in his anal orifice. They aver that during
the search the only item that was seized is a bag made of
inmate
clothing. The said bag constituted an unauthorized article and was
thus seized, the documents contained therein were handed
back to the
applicant.
[5]
[14]
In
his founding affidavit the applicant makes a flurry of vague and
unsubstantiated allegations not supported by evidence, he only
seeks
to introduce some modicum of evidence, and new matters, in his
replying affidavit and his purported supplementary affidavit
which he
snuck into the proceedings without first seeking an indulgence form
this Court. It seems to me that the only relief he
seeks which
warrants some traversing in these proceedings is the prayer for the
return of his allegedly seized documents and the
alleged failure of
the first to the third respondents to attend to his complaints. The
applicant did not set out in his notion
of motion whether he prays
for interim or temporary relief. However, what I could distil is that
the ‘remedies’ he
seeks are of final effect, thus the
Plascon-Evans rule obtains.
[6]
As demonstrated above, on these aspects, there is a clear dispute of
fact which is incapable of being adjudicated on the papers,
thus
motion proceedings as embarked on by the applicant are the incorrect
vehicle.
[15]
I am mindful of the fact that the applicant represents
himself, however, the rules of court exist for a reason; without them
confusion
and uncertainty of procedure and process would reign. I am
alive to the fact that, increasingly, litigants approach our courts
in person and most do not possess legal oratory skills or sophistry.
The applicant hardly falls in this category. I have already
alluded
to his eloquence and mastery of the authorities. In arguments, he
even pointed out what he called the respondents’
misinterpretation of the law. He brought these applications, after
all, in terms of the very uniform rules of court; in my view
he is
quite
au fait
with the rules and procedure in this court.
[16]
Holding
parties to the rules of court and pleadings is not pedantry, it is an
integral part of the principle of legal certainty
which is an element
of the rule of law, one of the values on which our Constitution is
founded.
[7]
In application
proceedings it is trite that a litigant must make out its case in its
founding papers, for it is to the founding
affidavit that a court
will turn to determine what the complaint is. The affidavits
constitute both the pleadings and the evidence-
hence the issues and
averments in support of the parties’ cases should appear
clearly therefrom. The founding affidavit must
in itself contain
sufficient facts upon which a court may find in the applicant’s
favour.
[8]
This is the
insuperable challenge the applicant faces; his founding affidavit
does not set out the case to be met by the respondents.
[17]
The
court in
Kouga
Local Municipality v St Francis Bay (Ward 12) Concerned Residents
Association and Other
[9]
the Court reaffirmed the trite principle that in motion proceedings
the papers stand as the pleadings and evidence do in action
proceedings. The relevance of the evidence offered is dependent on
its cogent connection with the relief being sought which, in
an
application, is defined in the notice of motion.
[18]
In
these proceedings the relief the applicant seeks is not only vague,
it is also impractical and incapable of being implemented.
It is
trite that court orders must be couched in clear terms and its
purpose readily ascertainable from the language of the order.
A court
order must bring finality to the dispute or part of it, to which it
applies. The order must be framed in unambiguous terms
and must be
capable of being enforced, in the event of non-compliance. If an
order is ambiguous, unenforceable, ineffective, inappropriate,
or
lacks the element of bringing finality to a matter or at least part
of the case, it cannot be said that the court that granted
it
exercised its discretion properly.
[10]
[19]
The relief, if that, the applicant seeks is inchoate
and in certain aspects vague and incompetent, his application cannot
succeed
and stands to be dismissed.
Case
Number 53/2023
[20]
In
this application the applicant seeks,
inter
alia
,
[11]
the following relief as set out in his notice of motion;
1.
‘Make a finding that as organs of state the respondents are
obliged to respect, protect, promote
and fulfil the applicant’s
rights in the bill of rights given the provisions of s 7(2) of the
constitution.
2.
Make a finding that as organs of state the respondents are obliged to
provide the applicant with effective,
proper, transparent,
accountable and coherent government services given the provisions of
section 41(1)(c) of the constitution.
3.
Make a finding that the applicant’s rights in the bill or
rights bind the respondents as organs
of state given the provisions
of s 8(1) of the constitution.
4.
Make a finding that the respondents as organs of state are obliged by
the provisions of s 195 of the
constitution to respond effectively
with high standard of professional ethics to the needs of the
applicant.
5.
Make a finding that the respondents as organs of state the
respondents through legislative and other
measures are obliged to
assist the court to be accessible to the applicant given his right to
access to court / justice given the
provisions of ss 34,38 and 165
(4) of the constitution.
6.
Make a finding that the respondents as organs of state the
respondents must take reasonable measures
within their available
resources and bounds of the law to ensure the realization of the
applicant’s right to access to court
/ justice given his
difficult circumstances in prison as an indigent person, because even
the provisions of ss 27(2), 34 and 35
of the constitution oblige the
respondents to that effect.
7.
Make a finding that given the pleadings that are already pleaded for
above herein at prayers 5, 6, 7,
8, 9 and 10, the infringement of
applicant’s rights by the prison officials under the watch of
the respondents and consequently
injuries and damages therefore
should be attributed to the respondents because they are doing
nothing despite being obliged by
the constitution and statute to do
something.
8.
Make an order that given the provisions of ss 32(1) and (35(3)(i) of
the constitution, respondents should
urgently and with immediate
effect furnish the applicant with all the record of the
teleconference discussions he had with the
respondents’
employee Mr. James Madiga on 6 August 2015 as that discussions was
recorded by Mr. James Madioga, because applicant
wants to observe his
right to a fair trial by adducing the said record as part of crucial
evidence in court in his litigations
in the cases 1857/2021,
5153/2022 and 3449/2023 that are about his fundamental rights to
access to justice and a fair trial already
before the Bloemfontein
High Court. In order for the court to grant an appropriate relief on
this prayer, applicant requests the
court to call or subpoena the
files of his litigations in the cases 1857/2021, 5153/2022 and
3449/2023 for that purpose.
9.
Make a finding that given the provisions of ss21,81,90,92 and 93 of
the correctional services act 111/1998
the respondents through their
various employees such as Mr AK Moduka, Mr Choma, Mr TJ Mthala and Ms
Seloma acted unconstitutionally,
unlawfully and with bad faith to
have flagrantly and dishonestly abandoned applicant’s
complaints and requests without complying
with correctional services
act.
10. Make a finding
that the respondents’ conduct to be just watching, folding
their arms and paying scant attention
to the complaints of applicant
against violations of his rights in prison is unconstitutional,
unlawful, wrongful and with bad
faith.
11. Make a finding
that given what was held by the constitutional court in United
Democratic Movement v Speaker National Assembly
and Others
2017 (5)
SA 300
(CC) that the respondents conduct to ignore his complaints is
in bad faith and constitutes unconstitutional delinquency.
12. Make a finding
that given what was held by the constitutional court in Rail
Commuters Action Group and Others v Transnet
LTD t/a Metrorail and
Others the respondents are constitutionally and statutorily
responsible obliged to take all reasonable measures
to assist
applicant to exercise his right to access justice even if they have
to fetch applicant’s application from prison
and file it in
court on his behalf.
13. Make a finding
that the applicant is the most vulnerable person who needs to be
protected by the court through application
of relevant provisions of
the constitution given his personal circumstances as a layman in law,
indigent person and incarcerated
but litigating in person in this
matter, because even legal aid south Africa has been refusing since
2022 to supply the applicant
with legal representation after it was
ordered by the court.
14. Make a finding
or an order that there is a need for this honourable court to relax
the doctrine (procedures and the rules
of court) in this matter
because the interests of justice demand that the applicant must be
accommodated by this honourable court
in this matter even if this
application does not satisfy some certain procedures and rules of
court because he is litigating in
person despite being a layman.
15. Make a finding
or an order that in order for this honourable court to meet the
exigencies of this matter, no legislation,
procedure or rules of the
court will be applied in this matter in a manner that infringes or
threatens applicant’s rights
in the bill of rights.’
[21]
The
remarks I made in the previous application with regards to the manner
in which the applicant approached the application apply
equally
herein. Once more he has filed voluminous handwritten papers.
[12]
[22]
To avoid prolixity, I shall not deal with each and
every averment and order sought. I will limit myself to only the
relief which
is opposed. In so far as the applicant seeks to assert
his rights as enshrined in the Bill of Rights and asserts that the
respondents
are bound by the constitution, I align myself therewith.
I however do not deem it necessary to make such declaratory orders
primarily
because as was held in
Ntuli
, in terms of the
constitution and its preamble he is intrinsically imbued with those
rights as a citizen, the fact that he is incarcerated
does not
deprive him of same. It is not necessary to declare the apparent.
[23]
With regards to the remainder of the relief he seeks,
apart from being inelegantly couched, the applicant seeks orders with
far-reaching
consequences and which, in my view, also goes against
the scope and mandate and capacity of the respondents as set out
elsewhere
in this judgment. It can hardly be expected of the
respondents to personally fetch the applicant’s papers and
lodge same
at a court. Aside from being impractical, financially
almost impossible due to budgetary constraints, the relief sought is
beyond
the scope and mandate of the respondents.
[24]
With regards to attributing the alleged violation of
rights to the respondents, allegedly committed by the functionaries,
the application
did not make out a case for the relief sought save to
make unsubstantiated allegations. In any event regard being had to
the mandate
of the respective respondents, it is doubtful whether the
relief sought would be competent and enforceable. In so far as the
alleged
recording is concerned, it is denied that the recording is in
the custody and or possession of the respondents, accordingly I
cannot
order an impossibility.
[25]
In
so far as the applicant seeks to assert his right to legal
representation, I can do no better than Molitsoane J in
Motsoane
v Legal Aid South Africa and Others
.
[13]
‘
[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.
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
.’
(footnotes omitted).
[26]
In the present proceedings the applicant submitted that
he did not apply for legal aid as he was previously unsuccessful. It
is
thus incorrect to aver that Legal Aid South Africa ‘flagrantly
refuses to supply him with legal representation.’
[27]
Here too, the application cannot succeed and stands to
be dismissed.
[28]
There
remains the aspect of costs. The general rule is that costs follow
the result. In the present matter I am of the view that
due to his
incarceration it would serve no purpose mulcting the applicant with
costs. In any event, albeit approached inelegantly,
in these
proceedings, he pursued some constitutional relief litigating against
the state or organs of the state. Accordingly, I
hold the view that
he should therefore not be mulcted with costs as was held in
Biowatch.
[14]
[29]
In the result the following orders are made;
CASE NO: 52/2024
1.
The application is dismissed.
2.
No order as to costs.
CASE NO:53.2024
1.
The application is dismissed.
2.
No order as to costs.
NG
Gusha, AJ
Appearances
For
the Appellant:
Cephas
Motsoari Motsoane
Instructed
by:
In
Person
For
the First, Second and
Third
Respondents:
Adv
K Naidoo
Instructed
by:
State
Attorney
For
the Fourth Respondents:
Adv L
Choate
Instructed
by:
Webbers
For
the Respondents:
Adv K
Motholo
Instructed
by:
State
Attorney
[1]
Minister
of Justice and Constitutional Development and Others v Ntuli
(Judicial Inspectorate for Correctional services intervening
as
amicus curiae)
[2023]
ZASCA 146; [2024] 1 All SA 333 (SCA).
[2]
Ibid para 16.
[3]
This
was a planned search conducted in terms of
section 26
of the
Correctional Services Act 111 of 1998
.
[4]
The
relief sought is fully set out in the notice of motion, Index to
Pleadings Bundle pages 1-24.
[5]
Fourth
respondent’s answering affidavit.
[6]
Plascon-Evans
Paints Ltd v Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[7]
SATAWU
and Another v Garvas and Others
[2012] ZACC 13
;
2013 SA 83
CC para 114.
[8]
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A) at 635H).
Elegant
Line Trading 257 CC v MEC for Transport, Eastern Cape
[2022] ZAECBHC 45 para 2;
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
[2007] ZASCA 153
;
2008 (2) SA 184
(SCA) at 200D.
[9]
Kouga
Local Municipality v St Francis Bay (Ward 12) Concerned Residents
Association and Other
[2023]
ZASCA 168; 2024 (4) SA 70 (SCA).
[10]
Eke
v Parsons
[2015] ZACC 30
;
2015 (11) BCLR 1319
(CC) para 74.
[11]
This
application was also brought in terms of
rule 6(12).
Van Zyl J, on
18 January 2024, made an order in that regard.
[12]
His
founding affidavit spans 37 pages and his replying affidavit 102
pages, excluding the attachments thereto.
[13]
Motsoane
v Legal Aid South Africa and Others
[2024]
ZAFSHC 267.
[14]
See
Biowatch
Trust v Registrar Genetic Resources and Others (
2009]
ZACC 14
;
2009 (10) BCLR 1014
(CC) para 46 where it was held that the
general rule in constitutional litigation was that an unsuccessful
litigant ought not
to be ordered to pay costs to the state unless
the application was frivolous or vexatious or in any other way
manifestly inappropriate.