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[2006] ZACC 19
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Lekolwane and Another v Minister of Justice (CCT47/05) [2006] ZACC 19; 2007 (3) BCLR 280 (CC) (23 November 2006)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 47/05
PHINEAS LEKOLWANE First Applicant
ELIZABETH LEKOLWANE Second
Applicant
versus
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Respondent
Heard on : 22 August 2006
Decided
on : 22 August 2006
Reasons furnished on : 23 November 2006
JUDGMENT
THE COURT:
[1]
Two applications were lodged
in this Court by the same applicants: one for leave to appeal (CCT 47/05); and
later, another for direct
access (CCT 16/06). The application for direct access
was dismissed on 5 April 2006 on the basis that it was not in the interests
of
justice for the issues raised to be determined by this Court as the court of
first and last instance.
[1]
When the
application for leave to appeal was heard on 22 August 2006, an application for
condonation and postponement by the applicants
was refused and the application
was struck off the roll. This judgment provides reasons for the Court’s
decision to remove
the matter from the
roll.
Factual background
[2]
On 15 August 1998 the first
and second applicants and their three children were placed under protective
custody in terms of the National
Witness Protection Programme
(NWPP).
[2]
A disagreement had
occurred within the community where they resided, during the course of which the
first applicant allegedly insulted
the Chief. As a result, tensions in the
community spiralled out of control and the applicants’ home, business and
belongings
were destroyed. The applicants and their children were forced to
flee their home and seek refuge under the NWPP, after laying a
charge of public
violence against certain members of the community.
[3]
Regulation
22(1)
[3]
of the Witness Protection Act
112 of 1998 (the WPA) provides for the payment of a daily allowance to a person
placed under protective
custody. The first applicant was a beneficiary of this
allowance, but his wife (the second applicant) and children were not. On
21
November 2002 the applicants filed an application in the Pretoria High Court.
An order was sought that the respondent pay to
the second applicant and the
children (1) a daily allowance in terms of the WPA and (2) arrears for payments
not made to them from
15 August 1998 to
date.
[4]
[4]
On 27 May 2003 the
application was dismissed by the High
Court.
[5]
The applicants then
appealed the decision to the full bench of the High Court. The appeal was
dismissed on 8 November
2004.
[6]
[5]
On or about 29 April 2005
the applicants lodged the application for leave to appeal to this Court against
the decision of the full
bench of the High Court and to declare regulation 22(1)
unconstitutional.
[7]
Rule 19(3) of
this Court provides that in order to obtain directions from the Court in
application proceedings, the application
must comprise (a) the decision against
which the appeal is brought and the grounds upon which such decision is
disputed, (b) a statement
setting out clearly and succinctly the constitutional
matter raised in the decision, (c) such supplementary information or argument
as
the applicant considers necessary and (d) a statement indicating whether the
applicant has applied or intends to apply for leave
or special leave to appeal
to any other court. The applicants’ papers did not comply with this
rule.
[6]
On 29 November 2005, after
an enquiry by the applicants, the Chief Justice directed that the matter be
enrolled for hearing on 9 March
2006, despite its non-compliance with the rules
of Court. The direction also requested that the Chairperson of the Society of
Advocates,
Pretoria, appoint counsel to act pro bono on behalf of the
applicants. Two senior counsel (one of whom had argued the applicants’
case before the High Court) and one junior, as well as an attorney were
appointed.
[7]
The record from the High
Court, together with the parties’ written arguments, was subsequently
filed. The day before the hearing,
the Court received a letter from the first
applicant stating that his legal representatives had not informed him of the
upcoming
hearing and that he had only come to know of it through reading a
newspaper report.
[8]
He further
claimed that he had not at any stage been consulted by the legal representatives
who had been appointed to the case.
[8]
On the day of the hearing, 9
March 2006, the first applicant was permitted to address this Court in person,
even though counsel was
appearing on his
behalf.
[9]
He submitted that he had
not been consulted by his appointed legal representatives and was unhappy with
the contents of the argument
which had been filed by them. The Chief Justice
ordered a brief adjournment, so that the first applicant and his legal
representatives
could consult and the argument advanced on his behalf could be
explained to him. The first applicant was not satisfied. The case
was
postponed by this Court at the instance of the first applicant until 22 August
2006. The Chief Justice explained carefully and
clearly to the first applicant
that it was most unusual for this Court to grant a postponement and that the
request had only been
granted on the clear understanding that it would be a
final postponement. The Chief Justice furthermore ensured that the first
applicant
understood the nature of the proceedings and the consequences of a
final postponement.
[9]
On 15 March 2006 the first
applicant requested in writing that the Court ignore the existing heads of
argument and appoint a new legal
team for him. Shortly thereafter, the pro bono
firm of attorneys and advocates requested leave from the Chief Justice to
withdraw
from the case, or for alternative directions. Towards the end of March
the Court received an application from the applicants’
new attorneys
confirming that they had appointed new advocates and requesting an extension for
the filing of documents from 30 March
2006 to mid May 2006. This request was
not granted. On 4 April 2006 the request by the pro bono firm of attorneys and
advocates
to withdraw from the matter was granted, given the first
applicant’s decision to appoint new counsel. This Court is indebted
to
them for their contribution.
[10]
On 22 May 2006 the first
applicant informed his newly appointed attorneys and the Court that he had
appointed a third legal team and
terminated the services of the second
team.
[11]
On 2 June 2006 the
applicants’ attorneys informed the Court that they intended to apply for
legal aid from the Legal Aid Board,
Pretoria, on behalf of the applicants.
Furthermore, on 22 June 2006 they requested that the Court issue new directions
granting
an extension for a date of the hearing beyond 22 August 2006, as they
felt that there was insufficient time within which to obtain
and prepare the
necessary documentation.
[12]
On 31 July 2006 the
Registrar of this Court sent a letter to the applicants’ attorneys
declining the request and informing them
that the appropriate procedure to
obtain a postponement would be to submit a formal application fully explaining
the reasons for
the postponement.
[13]
On 21 August 2006 an
application for condonation and postponement was filed with this Court. The
applicants sought condonation for
not having filed additional heads of argument
by 30 March 2006 and for an extension of time in which to do so. They also
sought
a postponement of the hearing and condonation for the late application
therefor.
[10]
The applicants
explained that because they belatedly obtained provisional legal aid – due
to the alleged inefficiencies of
the Legal Aid Board and the difficulties in
acquiring the papers – their legal representatives had insufficient time
to submit
proper heads of argument. From the application for condonation it
appears that the applicants’ attorneys had been briefed
towards the end of
May, but had only received confirmation of the provisional grant of legal aid on
18 August 2006.
[14]
On 22 August 2006 the
matter was again heard by this Court. Counsel made submissions on the
application for condonation and the postponement.
Counsel for the applicants
was asked by the Court whether he would be able to proceed in the event that the
application was not
granted. The Court then adjourned to consider the merits of
the application.
[15]
After the adjournment
counsel for the applicants informed the Court that he would not be able to
proceed if the application for condonation
and a postponement were not granted.
The Court then
ordered:
[11]
“(a) The application for condonation and postponement of today’s
hearing is dismissed.
(b) The application for leave to appeal the decision of the full bench of the
High Court Pretoria made on 8 November 2004 is struck
off the
roll.
(c) No order is made as to costs.”
[16]
The reasons for the order
now follow.
Reasons for the refusal of condonation and a
postponement
[17]
The postponement of a
matter set down for hearing on a particular date cannot be claimed as a
right.
[12]
An applicant for a postponement seeks an indulgence from the court. A
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
ordinarily show that there is good cause for
the postponement. Whether a
postponement will be granted is therefore in the discretion of the court. In
exercising that discretion,
this Court takes 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,
[13]
whether there is
prejudice to any of the parties, whether the application is opposed and the
broader public interest. All these
factors, to the extent appropriate, together
with the prospects of success on the merits of the matter, will be weighed by
the court
to determine whether it is in the interests of justice to grant the
application.
[14]
[18]
If a postponement is
refused and the applicant or his or her counsel is unable to argue the matter,
it follows that the matter cannot
proceed and has to be struck off the roll.
Naturally this does not mean that the doors are completely shut to a litigant.
A party
who wishes to approach the Court afresh will be required to show good
cause and give a full explanation as to why their application
should be enrolled
in view of its history.
[19]
The applicants were given
more than an ample opportunity to prepare their argument in the three month
period preceding the hearing.
The applicants and their legal representatives,
rather carelessly, failed to treat the matter as one of urgency. Instead they
adopted
a lackadaisical approach to their application, despite the knowledge
that the matter had already finally been postponed by this Court.
Their
approach resulted in the failure to draw the attention of the Legal Aid Board to
the fact that the matter was urgent. This
Court, mindful of the fact that it
had granted a final postponement, invited the applicants’ legal
representatives to proceed
with argument on the heads of argument produced for
the first hearing – but they were insufficiently prepared to do so. This
lack of preparation could have been avoided had the applicants’ legal
representatives simply applied timeously for condonation
and postponement. If
the application had been rejected at this stage they could still have elected to
proceed on the previous heads
of argument submitted to this Court for hearing on
9 March 2006 – which the first applicant had intimated, with hindsight,
had been adequate.
[20]
In light of the above,
there does not appear to be any good cause shown for the application for
condonation and postponement by the
applicants. On the contrary, the applicants
had foregone opportunities to have the matter fully ventilated and had been
warned that
the previous postponement granted was a final one. To grant yet
another postponement would have constituted a gross abuse of the
processes of
this Court. As such, it could not be considered in the interests of justice to
grant the application. Therefore the
Court did not grant the request for
condonation and postponement.
Langa CJ,
Moseneke DCJ, Kondile AJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J,
Sachs J, Van der Westhuizen J, Van Heerden AJ
and Yacoob J.
Counsel for the applicants: BH Pieters SC
Instructed by
BP
Angelopulo and Co.
Counsel for the respondent: JA Coetzee SC, HJ De
Wet
Instructed by the
State Attorney, Pretoria
.
[1]
The Court’s order was
faxed to the applicants on the same day and read:
“The Constitutional Court has considered the application for direct access
to this Court. The Court has decided that it is
not in the interests of justice
to grant the application.
Order:
The application for direct access to this Court is
dismissed.”
[2]
In terms of
section 185A(2)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
.
Section 185A
of the
Criminal Procedure Act was
subsequently repealed by the
Witness Protection Act 112 of 1998
.
[3]
Regulation 22(1)
provides:
“A protected person shall, for the period during which he is placed under
protective custody, be entitled to an allowance of
R10 per day minus any amount
which he may receive as witness fees, if he does not receive any income as a
result of the fact that
he is in protective
custody.”
[4]
The
applicants also had a fourth claim to increase the applicants’ food
allowance of R35 per day in line with inflation from
1998. This claim was,
however, subsequently abandoned by the applicants as the food allowance
programme undertook to pay compensation
to the applicants for the
difference.
[5]
By Bosielo J under case number
32659/2002.
[6]
By Daniels J, with whom Botha J
and Ranchod AJ concurred, under case number A1512/2003.
[7]
The applicants claimed
inter
alia
that the regulation constituted: unfair discrimination between persons
placed under protective custody who, at the time that they
were placed in
protective custody, had an income, and persons who at that time had no income;
an infringement of the rights of the
applicants’ minor children to proper
family and parental care by depriving their parents of sufficient funds to
ensure such
proper care; and an infringement of the rights to dignity and to
food and social security of the applicants and their minor children.
[8]
At the hearing on 9 March 2006
it emerged that the reason the applicants had not heard that the matter had been
placed on the roll
was because the address given by the applicants for the
service of documents was not a reliable permanent residential/business address
of the applicants, but a garage situated near to the applicants’ home.
[9]
Representation of parties is
generally limited by the rules of this Court. In terms of
Rule 6
only a person
entitled to appear in the High Courts may appear on behalf of any party in
proceedings before this Court unless the
Court or the Chief Justice directs
otherwise.
[10]
In the alternative the
applicants also asked for leave to appeal on the papers as they stood and to
postpone the hearing of the principal
case. As such, the hearing of 22 August
2006 would deal only with the application for leave to appeal and not with the
actual appeal
itself.
[11]
This Court’s order was
faxed to the applicants on the same day.
[12]
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) at 287E;
The National
Police Service Union and Others v The Minister of Safety and Security and
Others
[2000] ZACC 15
;
2000 (4) SA 1110
(CC);
2001 (8) BCLR 775
(CC) at paras 4 –
5.
[13]
Madnitsky v Rosenberg
1949 (2) SA 392
(A) at 399.
[14]
The National Police
Service Union and Others v The Minister of Safety and Security and Others
above n
12
at paras 4 – 5.