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[2010] ZACC 24
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Malachi v Cape Dance Academy International (Pty) Ltd and Others (CCT 05/10) [2010] ZACC 24; 2011 (3) BCLR 276 (CC) (25 November 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 05/10
[2010] ZACC 24
In the matter between:
TATIANA MALACHI
….....................................................................................
Applicant
and
CAPE DANCE ACADEMY INTERNATIONAL
(PTY) LTD
…............................................................................................
First
Respondent
HOUSE OF RASPUTIN PROPERTIES (PTY) LTD
…......................
Second
Respondent
ADDITIONAL MAGISTRATE, DISTRICT OF
CAPE TOWN
….......................................................................................
Third
Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
…..............................................................................
Fourth
Respondent
MINISTER FOR HOME AFFAIRS
….....................................................
Fifth
Respondent
COMMANDING OFFICER,
POLLSMOOR PRISON
….......................................................................
Sixth
Respondent
Decided on : 25 November 2010
JUDGMENT
MOGOENG J:
Introduction
The
main judgment in this matter was delivered on 24 August 2010.
1
A provisional order was made by this Court on its own accord
directing the Minister for Justice and Constitutional Development
(Minister) on the one hand, and Cape Dance Academy International
(Pty) Ltd as well as House of Rasputin Properties (Pty) Ltd
(jointly
referred to as the “employers”) on the other, to each
pay half of the applicant’s (Ms Malachi’s)
costs in this
Court.
These
parties were afforded the opportunity to make written
representations on whether the proposed order was just and
equitable.
Representations have been made. It is time to determine
whether or not the provisional order should be made final. A
synopsis
of the representations is necessary and follows.
Representations
The
Minister stated that he had nothing new to add and had no objection
to the provisional order being made final.
Likewise,
Ms Malachi has no objection to the provisional order being made
final. She, however, asks that the final order be just
and equitable
and provide for the recovery of all her costs on a party and party
scale including costs occasioned by the employment
of two counsel.
The
employers’ representations were filed one month after the date
set by this Court. They applied for condonation and explained
that
they did not have funds readily available to engage counsel. They
had to raise funds first, hence the delay in filing their
representations. Condonation should be granted and the employers’
representations should be considered.
The
employers made the following detailed representations:
When
they approached the Magistrates’ Court, Cape Town for an
order in terms of section 30(1) and (3) (the impugned provisions)
of the Magistrates’ Courts Act
2
(Act), the law permitted them to do so. The order which authorised
the arrest and detention of Ms Malachi was made by a court
of law
in terms of a section which was still applicable and available to
the employers.
As
soon as the employers were made aware that the impugned provisions
may be unconstitutional, they agreed to the release of
Ms Malachi
from Pollsmoor Correctional Centre forthwith.
Again,
recognising that the subsections they relied on for the order to
incarcerate Ms Malachi may be unconstitutional, they
decided not to
oppose her efforts to have the impugned provisions declared
unconstitutional but to rather abide the decision
of the Western
Cape High Court, Cape Town
3
(High Court) and of this Court.
The
agreement was reached with Ms Malachi that she would not ask for
costs against her employers.
The
litigation in this matter was not between Ms Malachi and the
employers but rather between her and the Minister.
The
government should bear the costs of litigation which relate to
challenges to the constitutionality of statutes because of
its
obligation to ensure that statutes are in line with the
Constitution.
4
This Court’s decision in
Biowatch
5
should apply to this matter.
Should
the provisional order be made final?
We
are satisfied that it will not be just and equitable for the
employers to be required to pay any of Ms Malachi’s costs.
While it is true that they set the ball rolling by causing Ms
Malachi’s arrest, we must also have regard to what happened
after that. The employers agreed to her release and, after securing
an agreement that Ms Malachi will not require them to pay
her costs,
took no further part in the proceedings. The position would have
been different had the employers insisted on Ms Malachi’s
further detention and defended the constitutional validity of the
proceedings.
The
Minister has the duty to ensure that any provision or statute within
his functional area which offends the provisions of the
Constitution
is suitably amended or repealed without unnecessary delay. This
applies to the impugned provisions. As noted in
the main judgment,
6
he has not done so for the past 15 years into the new constitutional
dispensation.
7
There is, therefore, merit in the employers’ contention that
the challenge to the constitutionality of the impugned provisions
is
a contest not between Ms Malachi and her employers but between her
and the Minister. It is therefore just and equitable that
the
Minister should pay Ms Malachi’s costs in this Court.
For
these reasons, I am satisfied that the provisional order for costs
should be discharged. The Minister alone must be ordered
to pay Ms
Malachi’s costs in the main application.
In
the result, the following order is made:
The
application for condonation for the late filing of Cape Dance
Academy International (Pty) Ltd and House of Rasputin Properties
(Pty) Ltd’s representations on the provisional order for
costs is granted;
The
provisional order for costs is discharged; and
The
Minster for Justice and Constitutional Development is ordered to
pay Ms Malachi’s costs in this Court.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J,
Skweyiya J and Yacoob J concur in the judgment
of Mogoeng J.
For the
Applicant: Advocate A Katz SC and Advocate R
Garland
instructed by Eisenberg & Associates.
For the First and Second Respondents: Advocate N Bawa instructed by
Adams and May Attorneys.
For the Fourth Respondent: Advocate P Bezuidenhout instructed by the
State Attorney, Cape Town
1
Malachi
v Cape Dance Academy International (Pty) Ltd and Others
[2010]
ZACC 13
; Case No CCT 05/10, 24 August 2010, as yet unreported
(
Malachi CC
).
2
32
of 1944.
3
Malachi
v Cape Dance Academy International (Pty) Ltd and Others
2010 (7)
BCLR 678 (WCC).
4
Gory
v Kolver NO and Others (Starke and Others Invervening)
[2006]
ZACC 20
;
2007 (4) SA 97
(CC);
2007 (3) BCLR 249
(CC) at para 65.
5
Biowatch
Trust v Registrar, Genetic Resources, and Others
[
2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at
para 56
.
6
Malachi
CC
above n 1 at para 50.
7
This
is computed from the commencement of the interim Constitution of the
Republic of South Africa Act 200 of 1993 to the launch,
in 2009, of
the application in the High Court.