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[2010] ZACC 23
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Betlane v Shelly Court CC (CCT 14/10) [2010] ZACC 23; 2011 (1) SA 388 (CC) ; 2011 (3) BCLR 264 (CC) (24 November 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 14/10
[2010] ZACC 23
In the matter between:
KABELO BETLANE
….......................................................................................
Applicant
and
SHELLY COURT CC
…...................................................................................
Respondent
Heard on : 24 August 2010
Decided on : 24 November 2010
JUDGMENT
MOGOENG J:
Introduction
Several
orders were made by the South Gauteng High Court, Johannesburg
1
(High Court), which effectively restrained the applicant from
petitioning the President of the Supreme Court of Appeal for leave
to appeal
2
against the eviction and costs orders made by the High Court against
him.
3
These restraining orders would cease to apply only if the applicant
paid the costs or furnished security for them.
The
applicant approached this Court primarily on the ground that those
orders constituted an infringement of his right of access
to court.
4
About
three weeks before the date of hearing this application the
respondent, for whose benefit the restraining orders were made,
abandoned them. The question then arises whether there is a live
constitutional issue remaining and, if so, whether it is in
the
interests of justice for this Court to pronounce on it.
Parties
The
applicant is Mr Kabelo Betlane, a lay litigant and former tenant of
premises belonging to Shelly Court CC, which is the respondent
in
this matter. The applicant and the respondent are collectively
referred to as “the parties”.
Factual background
The
parties entered into an oral lease agreement in terms of which the
applicant rented residential premises from the respondent.
His
rental obligations were about R1 100 per month.
A
dispute arose between the parties about arrear rental. As a result,
the respondent instituted an action against the applicant
for the
recovery of the rental owing and for his eviction, in the
Johannesburg Magistrates’ Court (Magistrates’ Court)
in
November 2004. The applicant opposed the action on the basis that
the rental had been remitted, owing to the premises’
poor
state of repair and the damage to his appliances caused by an
electrical surge.
It is
common cause that the parties entered into a settlement agreement on
15 August 2005. In terms of this agreement,
they would
conclude a written lease agreement by 17 August 2005, the
respondent would abandon its action and repair
or replace the
applicant’s damaged appliances.
Another
dispute arose between the parties in 2007. Again it was about arrear
rental. The applicant contested these allegations
on the basis that
his rental payments were up to date. The parties attempted to
resolve this dispute but failed.
Eventually,
the respondent launched an application for the applicant’s
eviction in the High Court. It came before Bhika
AJ who issued the
eviction order with costs on an attorney and client scale.
5
In terms of this order, the applicant was to vacate the premises by
18 November 2007, failing which he would be evicted.
The
applicant later applied for leave to appeal against the eviction
order. Although this application was launched in November
2007, it
was only heard and dismissed by Bhika AJ on 15 June 2009,
in these terms:
“
1.
That the application for condonation is not properly before the
court. Application for leave to appeal is dismissed with costs.
2.
That the Applicant must
provide proof of payment of the Respondent’s costs before being
allowed to proceed further.
2.1
The Respondent must
provide proof thereof;
2.2
The Applicant must lodge
security for costs with the Registrar before he is allowed to proceed
further in the matter.
” (Emphasis added.)
On 13
May 2008, while the application for leave to appeal was pending, the
respondent secured a writ of execution on the strength
of which the
applicant was evicted from the premises on 23 May 2008.
Aggrieved
by the eviction, the applicant brought an application for a
spoliation order on 2 June 2008. He challenged
the
lawfulness of the execution of the eviction order on the basis that
it was unlawful to execute an eviction order in circumstances
where
leave to appeal against that eviction order is pending. Essentially,
the applicant challenged the writ of execution, as
a result of which
he was ejected from the premises, on the same basis as in this
Court. Satchwell J dismissed the application
with costs.
6
The applicant then brought an application for the review of the
dismissal of his application for a spoliation order. It was
dismissed by Nkosi-Thomas AJ on 10 June 2008.
The
applicant brought an application for leave to appeal against the
dismissal of the application for the spoliation order on
23 June 2008. He later approached the High Court for an
order to compel Satchwell J to hear this application. It was
postponed by Lamont J on 15 January 2009 to allow
Satchwell J to deal with the application for leave to appeal.
Satchwell
J heard that application on 27 January 2009. She made the
following order:
“
1.
That
Mr Betlane may not approach this court in respect of this particular
matter, that is, the eviction application or the application
to be
re-instated in occupation which appears under case 2007/13744
.
This does not preclude him from properly following the procedures for
an application for leave to appeal in respect of the order
made by
Acting Judge Bhika on 17 October 2007.
2.
As and when Mr Betlane has
provided the attorneys for Shelly Court with his proper physical
address and as and when Mr Betlane has
made full payment in respect
of the costs orders against him, Mr Betlane may only then again
approach this High Court in respect
of the eviction application and
his re-instatement in possession/occupation of this flat in case
2007/13744
.
3. That the application for
leave to appeal is dismissed.” (Emphasis added.)
On
6 October 2009 the applicant brought an urgent application
for the rescission of the last order made by Bhika AJ.
Ntsebeza AJ
when seized with the matter made the following order:
“
1.
The
application is struck off the Roll.
2.1 The Applicant is ordered to
comply with the orders of Satchwell J and Bhika AJ, in full.
2.2 The Applicant is ordered to
fully comply and to co-operate with the Respondent in order for all
cost orders made against the
Applicant, to be taxed and paid.
3.
The Applicant may not
enrol or bring any matters, relating to his eviction and proceedings
which are connected thereto, until the
Applicant has complied with
the orders of Satchwell J and Bhika AJ
.
4. The
Applicant will pay the costs of this application.”
(Emphasis added.)
The
effect of these orders was to debar the applicant from launching any
proceedings relating to the order for his eviction unless
he paid
the costs previously ordered against him or furnished security for
those costs.
The
applicant then applied for direct access to this Court for an order
setting aside the restraining orders, and for leave to
appeal
against the eviction order and the writ of execution. He prayed for
an order in the following terms:
“
(a)
Review of order as to costs granted by the South Gauteng High Court
(Security for costs).
(b) Reinstatement of the
applicant to the premises he leased.
(c) Application for an order for
a leave to appeal to proceed procedurally.”
It follows
from these prayers that he had three main concerns. First, the
security for costs orders; second, his ejectment from
the residential
premises and third, the eviction order itself. In all these desperate
attempts to hold onto the accommodation,
the applicant was not
represented.
Both
the applications for direct access and leave to appeal were set down
for hearing on 24 August 2010.
On 29
July 2010 the respondent filed a notice to abandon the following
orders:
“
1. The
order of Satchwell J dated 2 June 2007;
2. The order of Satchwell J
dated 27 January 2009;
3. Paragraph 2 of the order of
Bhika AJ dated 15 June 2009;
4. Paragraphs 2 and 3 of the
order of Ntsebeza AJ dated 6 October 2009.”
This
abandonment has a dual effect. The first is to leave intact the
eviction order, the order dismissing the application for leave
to
appeal and several orders for costs made against the applicant. The
other is to clear all obstacles which hitherto prevented
the
applicant from taking steps to appeal against the eviction order.
In
light of the abandonment, further directions were sent to the
parties, calling upon them to make submissions on costs and on
whether the matter should still be proceeded with in view of the
respondent’s abandonment of orders relating to security
for
costs. In his written submissions, the applicant contended that the
order for his eviction deserved the attention of this
Court, whereas
the respondent held the contrary view. These opposing positions
resulted in the matter being fully argued on 24
August 2010.
The issues
There are two preliminary and two substantive issues that arise in
this matter. The preliminary issues are the applications for
direct
access and leave to appeal and the substantive issues relate to the
lawfulness or otherwise of the writ of execution and
the appropriate
orders for costs. I deal with these issues in the same sequence
below.
Direct
access
Satchwell
J, Bhika AJ and Ntsebeza AJ made orders which effectively put an end
to any attempt by the applicant to challenge the
eviction order made
against him. When these restraining orders were made, their
constitutional implications were not pronounced
upon by the High
Court.
It
was only when the applicant approached this Court to have this
barrier removed, that these orders were attacked on the basis
that
they infringed his fundamental right of access to courts. This then
is an application for direct access to this Court, to
argue a point
that was not raised in the High Court. Section 167(6)(a)
7
of the Constitution read with rule 18 of the rules of this Court
8
allows this Court to grant leave for direct access when it is in the
interests of justice to do so. This Court is, however, reluctant
to
be the court of first and last instance and it will only grant leave
for direct access under exceptional circumstances.
9
An
abandonment of orders does not automatically deprive this Court of
its inherent jurisdiction to hear matters which raise constitutional
issues of importance, when it is in the interests of justice to do
so. In this case, however, the abandonment of the restraint
orders
is dispositive of the substance of the application for direct
access. The parties are agreed that there is nothing left
of the
security for costs issue to be determined by this Court. The
application for direct access is, for these reasons, to be
dismissed
on the basis that the issues connected with direct access have now
been rendered moot and it is therefore not in the
interests of
justice for this matter to be heard by this Court.
Leave to appeal
Fundamental
to the applicant’s application to this Court was the setting
aside of the restraining orders. One of his prayers
was to have the
matter remitted to the High Court for issues relating to the
eviction order to be properly ventilated.
When
the respondent abandoned all the orders which effectively barred the
applicant from approaching the Supreme Court of Appeal,
the
applicant then became free to do what he had always wanted to do.
The way was cleared for him to petition the Supreme Court
of Appeal
for leave to appeal against the eviction and costs orders.
10
It is
common cause that there are factual disputes relating to the
granting of the eviction order, which are still lingering on.
Further evidence might even have to be led for all the key issues to
be properly ventilated. Some of the issues raised by the
applicant
are that: this Court should take into account that Bhika AJ did not
give him the kind of assistance that a judicial
officer ought to
give to an unrepresented lay litigant;
11
some payments made by him are not reflected in the print-out of
payments; the facts of this case disclose enough to doubt the
correctness of the eviction order; and the High Court failed to
fulfil its duties under section 4 of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act,
12
namely, to investigate all of the applicant’s defences to the
eviction claim, in particular whether he was entitled to
a remittal
of rental and whether he had alternative accommodation; and the
facts were not properly assessed. These allegations
are disputed by
the respondent. The applicant acknowledges that there is a dispute
of facts.
For
these reasons, the applicant is asking this Court to set aside the
eviction order, without pronouncing itself on its merits,
and to
remit the matter to the High Court for the proper ventilation of the
factual disputes relating to the eviction order.
No legal basis
exists for the approach contended for. All these are matters which
would best be handled by the Supreme Court
of Appeal or the Full
Court of the High Court, should leave to appeal be granted.
Although
eviction by its very nature implicates the right to housing and
therefore raises a constitutional issue,
13
it is not in the interests of justice to entertain this appeal at
this stage. Besides, it is inappropriate for appeals to be
heard by
this Court directly from the High Court without the benefit of the
decision of the Full Court of the High Court or the
Supreme Court of
Appeal.
14
The other issue which is related to this application for leave to
appeal, is the validity of the writ of execution and the lawfulness
of applicant’s ejectment, based on that writ.
15
This issue is addressed below.
It is
trite that one ought to stand or fall by one’s notice of
motion and the averments made in one’s founding affidavit.
16
A case cannot be made out in the replying affidavit for the first
time.
17
It was for this reason that some of the allegations made in the
replying affidavit, such as the unlawfulness of the writ of
execution, were challenged. The applicant’s situation is
special though. He is a lay person, who until recently did not
have
the benefit of legal assistance. When he approached this Court, he
did so on his own. Consequently his notice of motion
and founding
affidavit did not properly set out all the relevant issues. It was
as a result of the legal advice that was not
previously available to
him that he became aware of the need to attack frontally, the
lawfulness of the writ of execution that
was issued and executed,
while his application for leave to appeal was pending.
18
To
the applicant’s credit, the notice of motion does reveal his
desire to challenge the execution of the eviction order.
He alludes
to that desire by praying for his reinstatement to the residential
premises. A compassionate reading of his notice
of motion, mindful
that it was settled by an unrepresented lay litigant, would lead to
no other conclusion.
19
When counsel and the Socio-Economic Rights Institute Law Clinic
(SERI) assisted the applicant by offering pro bono legal
representation,
they helped him to draft his replying affidavit in a
manner that clarifies the relief sought from this Court.
The
writ of execution was issued by the appeals registrar.
20
It implicates the applicant’s right to housing because it
facilitated his ejectment from the residential premise.
21
This leg of the application for leave to appeal raises an important
constitutional issue. And it is in the interests of justice
to
decide this issue given the exceptional circumstances under which it
arose.
In
the result, I am satisfied that leave to appeal against the eviction
order stands to be dismissed whereas leave to appeal ought
to be
granted in respect of the application to set aside the writ of
execution. I now turn to consider the lawfulness of the
writ.
The lawfulness of the writ of execution
The application for leave to appeal against the eviction order was
still pending in the High Court when the respondent applied
for and
was granted a writ to execute the order for the applicant’s
eviction. On the strength of this writ, the respondent
executed the
eviction order and the applicant was effectively forced out of the
premises.
This
was done notwithstanding the provisions of rule 49(11) of the
Uniform Rules of Court which read:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
An
application for leave to appeal suspends the
execution of an order unless leave to execute is sought and obtained,
not from a registrar
but, from the court which granted the order.
22
Although the respondent was aware of the pending application for
leave to appeal, it nevertheless obtained the writ of execution
and
executed the eviction order. It is of some significance that the writ
was issued by the appeals registrar of the same High
Court in which
the application for leave to appeal was pending. All this flew in the
face of rule 49(11).
The
applicant is asking this Court to find that the writ of execution
was unlawfully sued out and that the execution of the order
for
eviction, based on that writ, was also unlawful. Counsel for the
respondent unequivocally, and rightly, conceded that the
warrant of
eviction should not have been granted while the applicant’s
application for leave to appeal was pending, and
hence that the
execution of that order was unlawful. I am satisfied that the writ
is unlawful and it falls to be set aside.
Ordinarily,
an eviction which is carried out pursuant to an invalid writ of
execution amounts to spoliation. The evictee would
therefore, be
entitled to restitution.
23
However, when the premises are already occupied by a bona fide third
party, they are as a matter of fact not available, and restitution
is impossible. It is for this reason that an order reinstating a
tenant to premises cannot be granted when the premises are no
longer
available for occupation. Counsel for the applicant in these
circumstances did not press for an order of reinstatement
and in
fact conceded that such an order would not be appropriate. We
cannot, therefore, order the reinstatement of the applicant
to the
premises because they are presently occupied. The effect of the
setting aside of the writ of execution, in this case,
is merely to
allow the applicant to exercise any right that flows from this
order, as he might be advised to do.
Costs
From the High Court up to the time when this Court was approached,
the applicant was unrepresented. This Court intervened on
his behalf
and requested the Cape Bar Council to assist him. In response, the
SERI and two counsel graciously stepped in to assist
the applicant,
for which this Court is grateful.
Neither
counsel nor the SERI has asked for costs. What they have asked for
is that the SERI be reimbursed by the respondent for
all the
disbursements made in this case.
The
respondent did not abandon the restraint orders, as soon as they
were prominently singled out for attack as barriers to the
exercise
of the applicant’s fundamental right of access to court. It
was only after the matter had progressed for a while,
and
disbursements had been made, that the respondent made the concession
in its heads of argument and subsequently filed a notice
of
abandonment.
Even
when those orders were abandoned, the respondent failed to recognise
that some disbursements had been made. This is borne
out by its
failure to tender costs for any disbursements. The applicant had to
be heard to have this issue resolved.
The
respondent had no valid answer to the unlawfulness of the writ of
execution and the execution of the eviction order. Yet it
never
conceded the unlawfulness until the matter was argued in this Court.
Even after this concession, it still opposed the application
for its
setting aside.
For
the reasons set out above, the applicant is the successful party.
All the disbursements made by the SERI from the time of
their
instatement as the applicant’s attorneys, to the date of
hearing, must be borne by the respondent.
Order
In
the event, the following order is made:
The
application for direct access is dismissed;
Save
for granting leave to appeal against the issuance of the writ of
execution, the application for leave to appeal is otherwise
dismissed;
The
appeal against the issuance of the writ of execution is upheld and
the writ of execution is set aside;
The
respondent is ordered to pay all the disbursements incurred by the
Socio-Economic Rights Institute Law Clinic, from its appointment
as
the applicant’s attorneys to the date of hearing; and
Each
party is to pay his or its own costs.
Ngcobo CJ,
Moseneke DCJ, Brand AJ, Cameron J, Froneman J,
Khampepe J, Nkabinde J, Skweyiya J,
and concur in the
judgment of Mogoeng J.
For the
Applicant:
For the
Respondent:
Advocate A Friedman and Advocate S Wilson instructed by the
Socio-Economic Rights Institute Law Clinic.
Advocate JF Roos SC and Advocate N Smit instructed by Anthony
Berlowitz Attorney.
1
Betlane
v Shelly Court CC
,
South
Gauteng High Court, Johannesburg,
Case No 2007/13744A, 15
June 2009, 27 January 2009 and 6 October 2009, unreported.
2
Section 20(4)
of the Supreme Court Act 59 of 1959 (Act) provides:
“
No appeal shall lie against a
judgment or order of the court of a provincial or local division in
any civil proceedings or against
any judgment or order of that court
given on appeal to it except—
. . . .
(b) in any other case, with the leave of the court
against whose judgment or order the appeal is to be made or, where
such leave
has been refused, with the leave of the appellate
division.”
Section 21(3)(a)
of the Act provides that “[a]n application to the appellate
division under subsection (2) shall be
submitted by petition
addressed to the Chief Justice.”
3
Shelly
Court CC v Betlane
,
South
Gauteng High Court, Johannesburg,
Case No 2007/13744A, 17
October 2007, unreported.
4
Section 34
of the Constitution provides:
“
Everyone has the right to have any dispute that
can be resolved by the application of law decided in a fair public
hearing before
a court or, where appropriate, another independent
and impartial tribunal or forum.”
5
Above
n 3.
6
Shelly
Court CC v Betlane
, South Gauteng High Court, Johannesburg, Case
No 2007/13744A, 2 June 2009, unreported.
7
Section 167(6)
reads:
“
National
legislation
or the rules of the Constitutional Court must allow a person, when
it is in the interests of justice and with leave of the
Constitutional Court—
to
bring a matter directly to the Constitutional Court”.
8
Rule
18(2) of the
Constitutional Court Rules, 2003
reads:
“
An application in terms of subrule (1) shall be
lodged with the Registrar and served on all parties with a direct or
substantial
interest in the relief claimed and shall set out—
the grounds on which it is contended that it is in the
interests of justice that an order for direct access be granted”.
9
Mkontwana
v Nelson Mandela Metropolitan Municipality and Another; Bissett and
Others v Buffalo City Municipality and Others; Transfer
Rights
Action Campaign and Others v MEC, Local Government and Housing,
Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi
Municipality as Amici Curiae)
[2004] ZACC 9
[2004] ZACC 9
; ;
2005 (1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 11 and the cases cited therein.
See also
Dormehl v Minister of Justice and Others
[2000] ZACC
4
;
2000 (2) SA 987
(CC);
2000 (5) BCLR 471
(CC) at para 5 and
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC
3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 9.
10
Above
n 2.
11
See
Mpange and Others v Sithole
2007 (6) SA 578
(W) at para 15.
12
19
of 1998.
13
Machele
and Others v Mailula
and Others
[2009] ZACC 7
;
2010 (2) SA 257
(CC);
2009 (8) BCLR 767
(CC)
at
para 26 and
Jaftha v Schoeman
and Others
; Van Rooyen v Stoltz and Others
[2004]
ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at para 34
.
14
See
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v
Khanyile and Others
[2010] ZACC 3
;
2010 (5) BCLR 422
(CC) at
paras 21-4 and
Campus Law Clinic,
University of KwaZulu-Natal v Standard Bank of South Africa Ltd and
Another
[2006] ZACC 5
;
2006 (6) SA 103
(CC);
2006 (6) BCLR 669
(CC) at para 26 and cases cited therein.
15
The
application for a spoliation order referred to in [12] and [13]
above was based on a challenge to the lawfulness of the execution
of
the eviction order. This application for leave to appeal is,
therefore, essentially a challenge to the High Court order
dismissing the applicant’s application for the setting aside
of the writ of execution on the basis that it was unlawful and
that
for that reason his eviction amounted to spoliation. See [16] above
and [36] below.
16
Van
der Merwe and Another v Taylor NO and Others
[2007] ZACC 16
;
2008 (1) SA 1
(CC);
2007 (11) BCLR 1167
(CC) at para 122;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) (
SARFU
) at para 150;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at paras 29-30;
Port
Nolloth Municipality v Xhalisa and Others; Luwalala and Others v
Port Nolloth Municipality
1991 (3) SA 98
(C) at 111E-F;
Langeberg Ko-operasie Beperk v Folscher and Another
1950 (2)
SA 618
(C) at 621;
Geanotes v Geanotes
1947 (2) SA 512
(C) at
515; and
Pountas’ Trustee v Lahanas
1924 WLD 67
at 68.
17
See
Van der Merwe
above n 16 at para 122;
SARFU
above
n 16 at para 150;
Director of Hospital Services v Mistry
1979 (1) SA 626
(A) at 636A-B; and
Bayat and
Others v Hansa and Another
1955 (3) SA
547
(N) at 553D
.
18
See
rule 49(11) of the Uniform Rules of Court which is quoted and
discussed at [34].
19
See
in this regard
Registrar of Insurance v
Johannesburg Insurance Co Ltd
1962 (4)
SA 546
(W) at 547A-B where the court emphasised that:
“
The rules of procedure are made to facilitate
litigation; they are always subject to the over-riding discretion of
the Court.”
This
Court, in
Xinwa and Others v Volkswagen of South Africa (Pty) Ltd
[2003] ZACC 7
;
2003 (4) SA 390
(CC);
2003 (6) BCLR 575
(CC),
construed a notice of motion that had been drafted by lay litigants
and did not include a prayer for leave to appeal, as
indicating that
such leave was sought. It held, at para 13:
“
Lay litigants should not be
held to the same standard of accuracy, skill and precision in the
presentation of their case required
of lawyers. In construing such
pleadings, regard must be had to the purpose of the pleading as
gathered not only from the content
of the pleadings but also from
the context in which the pleading is prepared. Form must give way to
substance.”
See
also
S v Twala (South African Human Rights Commission
Intervening)
[1999] ZACC 18
;
2000 (1) SA 879
(CC);
2000 (1) BCLR
106
(CC) at paras 4 and 5 and
Viljoen v Federated Trust Ltd
1971 (1) SA 750
(O) at 757B-C.
20
In
terms of rule 45 of the Uniform Rules of Court.
21
This
Court, in
Machele
and
Jaftha
above n 13
held that a
person’s eviction from his home always raises a constitutional
issue. Section 26 of the Constitution provides:
“
(1) Everyone has the right to
have access to adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) No one may be evicted from their home, or have
their home demolished, without an order of court made after
considering all
the relevant circumstances. No legislation may
permit arbitrary evictions.”
22
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 544H-545A.
23
This
was the applicant’s case in his application for a spoliation
order in the High Court which was dismissed. See [12]
above.