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[2000] ZACC 15
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National Police Services Union and Others v Minister of Safety and Security and Others (CCT21/00) [2000] ZACC 15; 2000 (4) SA 1110 (CC) ; 2001 (8) BCLR 775 (CC) (27 September 2000)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
21/00
NATIONAL POLICE SERVICE UNION First Appellant
OWEN
YIMANI ZAMA Second Appellant
SIMANGALISO GODFREY MDLULI Third
Appellant
versus
THE MINISTER OF SAFETY AND SECURITY First
Respondent
THE NATIONAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE
SERVICE Second Respondent
THE PROVINCIAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICE FOR
KWAZULU-NATAL Third Respondent
BONITAS
MEDICAL FUND Fourth Respondent
Heard on : 24 August 2000
Decided on : 24 August 2000
Reasons furnished on : 27 September
2000
JUDGMENT
MOKGORO J:
[1]
When this appeal was called
for hearing on 24 August 2000, an application for its postponement by the
appellants was refused. The
appeal was struck from the roll and no order was
made as to costs. It was intimated that reasons for the refusal would be
furnished
later. These are the reasons for such
order.
[2]
The application had been
lodged with the Court the previous day. No legal representative for the
respondents appeared, apparently
because the parties had agreed that the matter
would not be opposed and that the appellants would pay certain of the
respondents’
costs. Both parties seemed to have assumed that the
postponement would be granted on the basis of their agreement. After the
application
was refused, counsel for the appellants
withdrew.
[3]
The appellants’ reason
for seeking the postponement was that they were not ready to proceed. The
explanation for this unpreparedness
lay in a dispute between the appellants and
one of their attorneys, Dehal Incorporated (Dehal). On the appellants’
version,
the dispute concerned, amongst other things, their dissatisfaction with
Dehal’s work, their unhappiness about the counsel selected
by them, a lack
of consultation between Dehal and second appellant’s original attorneys,
Nompumelelo Radebe & Company (Radebe),
and the fees charged by Dehal. The
disagreement came to a head two days before the hearing when, according to the
second appellant,
Dehal’s instructions, were withdrawn. In the result,
counsel for the appellants who had been instructed the previous day,
was not in
a position to proceed with the appeal, because he had not been instructed to do
so.
[4]
The Constitutional Court has the
inherent power to protect and regulate its own
process.
[1]
The postponement of a
matter set down for hearing on a particular date cannot be claimed as of
right.
[2]
An applicant for a
postponement seeks an indulgence from the Court. Such postponement will not be
granted unless this Court is
satisfied that it is in the interests of justice to
do so. In this respect the applicant must show that there is good cause for
the
postponement. In order to satisfy the Court that good cause does exist, it will
be necessary to furnish a full and satisfactory
explanation of the circumstances
that give rise to the application. Whether a postponement will be granted is
therefore in the discretion
of the Court and cannot be secured by mere agreement
between the parties. In exercising that discretion, this Court will take into
account a number of factors, including (but not limited to): whether the
application has been timeously made, whether the explanation
given by the
applicant for postponement is full and
satisfactory,
[3]
whether there is
prejudice to any of the parties and whether the application is opposed. All
these factors will be weighed by the
Court to determine whether it is in the
interests of justice to grant the postponement.
[5]
What is in the interests of
justice will in turn be determined not only by what is in the interests of the
parties themselves, but
also by what, in the opinion of the Court, is in the
public interest. The interests of justice may require that a litigant be
granted
more time, but account will also be taken of the need to have matters
before this Court finalised without undue
delay.
[6]
Heads of argument were filed
timeously by both parties and the matter was ripe for hearing. Dehal withdrew
on 2 August 2000; the
notice of withdrawal was purportedly sent by hand to
Radebe and to the first appellant on that day; it is on record that this notice
was sent to second appellant by registered post; Radebe remained on record as
the appellants’ attorneys throughout. There
is nothing on the record to
show that the appellants did not know of Dehal’s withdrawal and if not,
why that was not known.
If the withdrawal was known, there is no information as
to what was done between 2 August and the date fixed for hearing, to ensure
that
counsel was instructed timeously, nor is there anything to indicate why the
matter could not be argued when appellants’
detailed heads of argument had
already been filed with this Court. In the circumstances, the appellants had
not furnished enough
information to establish good cause for the postponement or
to show that the postponement was in the interests of justice. For these
reasons, we did not accede to the request for
postponement.
[7]
It is necessary to emphasise
that a postponement will not be granted simply because the parties agree to it.
Ordinarily therefore,
if an application for a postponement is to be made on the
day of the hearing of a case, the legal representatives for the opposing
party
must
appear and be ready to assist the Court both in regard to the
application for the postponement itself and if the application is refused,
the
consequences that would follow.
[8]
Finally, it must be said
that the fact that the matter has been struck from the roll does not mean that
the doors are completely shut
to the appellants. They may make an application
for the reinstatement of the appeal. In that event they will be required to
show
good cause and furnish a full explanation, not only as to why they could
not proceed with the matter on 24 August 2000, but also
in relation to any lapse
of time between this date and the date of the application for reinstatement.
The prospects of success in
the appeal will be an important factor to be taken
into account when any reinstatement application is
considered.
Chaskalson P, Langa DP,
Ackermann J, Goldstone J, Kriegler J, Ngcobo J, O’Regan J, Sachs J, Yacoob
J and Madlanga AJ concur
in the reasons of Mokgoro J.
For the appellant: Tjaart van der Walt instructed by Nompumelelo Radebe and
Company and Du Plessis and Associates.
For the respondents: No appearance.
[1]
Section 173 of the Constitution of
the Republic of South Africa, 1996.
[2]
National Coalition for Gay and
Lesbian Equality and Others v Minister of Home Affairs and Others
1999 (3)
SA 173
(C) at 181D;
1999 (3) BCLR 280
(C), see also
Carephone (Pty) Ltd v
Marcus NO and Others
1999 (3) SA 304
(LAC) at para 54.
[3]
Madnitsky v Rosenberg
1949
(2) SA 392
(A) at 399. For the application of the test for sufficient
explanation in the context of condonation see
Moraliswani v Mamili
1989
(4) SA 1
(A) at 8H - I.