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[2013] ZACC 31
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Ka Mtuze v Bytes Technology Group South Africa (Pty) Ltd and Others (CCT 53/13) [2013] ZACC 31; 2013 (12) BCLR 1358 (CC) (12 September 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 53/13
[2013] ZACC 31
In the matter between:
SIZWE LINDELO SNAIL KA MTUZE
.........................................................
Applicant
and
BYTES TECHNOLOGY GROUP
SOUTH AFRICA (PTY) LTD
.............................................................
First
Respondent
DEIDRE VANESSA LE HANIE
....................................................
Second
Respondent
IZAK STEPHANUS FOURIE VAN DER MERWE
.........................
Third
Respondent
MICHAEL YARDAN MICHAEL
...................................................
Fourth
Respondent
COUZYN HERTZOG & HORAK
......................................................
Fifth
Respondent
Decided on : 12 September 2013
CORAM: Cameron J, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J,
Skweyiya J, Van der Westhuizen J and Zondo J.
JUDGMENT
THE COURT:
Introduction
On 28
May 2013 this Court dismissed with costs an application for leave to
appeal against an order of costs that the North Gauteng
High Court,
Pretoria (High Court), through Potterill J, had granted against the
applicant
de bonis propriis
(from his own pocket). In the
order of this Court it was indicated that the dismissal of the
application was for lack of prospects
of success. After our order of
28 May 2013 the applicant filed an application which was styled “an
application . . . for
reconsideration of [this Court’s]
earlier order.” This judgment relates to this
“reconsideration” application.
Background
The
applicant is an attorney who practises for his own account under the
name and style “Snail Attorneys @ Law”. Before
he opened
a law firm of his own, he was employed as a professional assistant
by a law firm called Couzyn Hertzog & Horak
(CHH), the fifth
respondent in this matter. The first three respondents were the
applicants in the proceedings in the High Court
in which this matter
has its origin. The fourth respondent (Mr Michael) was the first
respondent in those proceedings and was
the applicant’s
client.
High Court
While
he was in the employ of CHH, the applicant accepted instructions to
represent Mr Michael in the High Court in a matter involving
the
first three respondents in this matter. It appears that at some
stage he also appeared in that Court in person and not as
Mr
Michael’s attorney. It is not necessary to go into details
about how this came about. It suffices to say that at some
stage he
appeared before Prinsloo J, and on other occasions before
Potterill J. The manner in which the applicant conducted
himself in representing Mr Michael in the High Court, in his
communications with the attorneys for the first three respondents
and when he appeared in person before Potterill J was such that the
latter granted a punitive order of costs against him.
In
the matter in which Potterill J made the costs order, the applicants
were the present first three respondents and the respondents
were
the present fourth and fifth respondents and the present applicant.
She made the following order:
“
12.1.
The costs of the urgent application are to be paid on an attorney and
own client scale by the respondent,
de
bonis propriis
by
the respondent’s attorney (Couzyn, Hertzog and Horak) and
de
bonis propriis
by
Sizwe Snail, jointly and severally, the one paying the others to be
absolved.
12.2. Direct that the Registrar
transcribe the proceedings of 31 October 2011. The
Registrar is ordered to send the record
of the proceedings, a copy of
all the documents in the file and my judgment to the Law Society of
the Northern Provinces.
12.3. The conduct of Mr Snail of
Snail Attorneys at Law . . . is to be investigated. Mr Snail’s
conduct acting as attorney
for Mr Michael as well as his conduct in
court on 31 October 2011 need to be addressed.”
Not
only did Potterill J grant a punitive costs order against the
applicant but she also directed the Registrar to send the judgment
and the papers in the matter to the relevant Law Society because she
believed that the applicant had conducted himself in a manner
that
warranted possible disciplinary action by the Law Society.
The
applicant brought an application before Potterill J for leave to
appeal against the costs order. The application was dismissed
with
costs. In her judgment, Potterill J mentioned that “the
conduct of Mr Snail once again today in court is absolutely
reprehensible”. She said that she would also refer his conduct
on that day to the Law Society.
Supreme Court of Appeal
The
applicant says that on 4 January 2013 he applied to the Supreme
Court of Appeal for leave to appeal against Potterill J’s
order of costs against him but that application, too, was dismissed
with costs.
Judicial Service Commission
The
applicant subsequently lodged two complaints with the Judicial
Service Commission (JSC) against Potterill J. He says one was
dismissed and the other was either not considered or was also
dismissed. He says that he subsequently launched an application
in
the High Court to have the decision(s) of the JSC reviewed and set
aside.
In this Court
The
applicant thereafter lodged the application for leave to appeal to
this Court against the costs order of Potterill J. In that
application the applicant included a request that any Judge of this
Court or of the Supreme Court of Appeal acting in this Court
at the
time who had dealt with his complaint to the JSC against Potterill J
should recuse himself or herself. Among the
Justices of this Court
who dealt with the applicant’s application, there was no
Justice who had sat in the JSC in connection
with the applicant’s
complaints against Potterill J. For this reason the applicant’s
application for recusal did
not arise. This Court dismissed his
application for leave to appeal with costs on 28 May 2013. The Chief
Justice and the Deputy
Chief Justice were not party to the order of
28 May 2013. The Justices who took part in the decision were
Bosielo AJ, Froneman J,
Jafta J, Khampepe J, Mhlantla
AJ, Nkabinde J, Skweyiya J and Zondo J.
Application for the reconsideration of the order of 28 May 2013
After
the first three respondents’ delivery of their answering
affidavit in the applicant’s application for leave
to appeal
but before this Court made its decision, the applicant addressed a
letter to the Registrar and asked whether it was
permissible for him
to file a “supplementary affidavit” dealing with “new
allegations” in the answering
affidavit. That letter is dated
10 May 2013. It would appear that he did not receive any reply to
that letter. That letter does
not appear to have come to the
attention of the Justices of this Court before they made the order
of 28 May 2013.
On 29
May 2013 – that is the day after this Court had made its
order – the office of the Registrar circulated an email to
the
Justices of this Court and three emails from the applicant. One of
them – which is undated – was addressed to
the Registrar
asking for a reply to his letter or email of 10 May 2013. Another
one was dated 28 May 2013. It states
that the applicant
had received the order of this Court on the day of writing the
letter. In that email he complained that he
did not get a response
to his correspondence. He, inter alia, said that “[t]he
important issues raised in our application
for leave to appeal have
not been considered at all and the dismissal ruling is unacceptable
in the circumstances.” He
also said that he had had “a
legitimate expectation” to receive a response to his
correspondence but none had been
received. He said: “I have
not been deflated by this minor set-back and will continue to fight
this matter as well as the
JSC and Judge Potterill with all the
energy that I have. I may be down but not out.”
The
applicant also asked that he be provided with reasons “for
your judgment as we do not accept your 2 (two) line judgment
either
– our rights are fully reserved to take further steps against
the Registrar and/or the Judges of the Constitutional
Court.”
He addressed the third email to the Chief Justice via the Registrar.
In it he said that he had decided “to
proceed with what we
call an extraordinary application for the re-consideration or
variation of this matter to the Constitutional
Court and will file
our Notice of Motion and supplementary affidavit today.” He
wrote that that application would not be
in terms of “Rule 6
of the Supreme Court Act but in terms of the common law.”
On 30
May 2013 the applicant launched his application in this Court “for
reconsideration” of its order of 28
May 2013. The
first three respondents opposed the application and filed their
opposing affidavit in support thereof. In his application
the
applicant included a request for the recusal of Bosielo AJ and
Mhlantla AJ on the basis that, although they were Acting Justices
in
this Court at the time, they remained permanent members of the
Supreme Court of Appeal which had dismissed his original application
for leave to appeal. Bosielo AJ and Mhlantla AJ had not taken part
in the decision of the Supreme Court of Appeal dismissing
his
application. He accepted this but still considered that they could
not be seen to reverse a decision of their colleagues
in the Supreme
Court of Appeal. He also sought the recusal of any Justice of this
Court who may have been party to the decision
of the JSC dismissing
his complaint against Potterill J. Since Bosielo AJ and Mhlantla AJ
did not participate in the decision
of the Supreme Court of Appeal
dismissing the applicant’s application for leave to appeal to
the Court and since no Justice
of this Court participating in this
matter was party to the decision of the JSC dismissing the
applicant’s complaint against
Potterill J, his application for
recusal does not arise.
The
reason why the applicant has brought the present application is that
he feels aggrieved that this Court decided his application
for leave
to appeal before he could file his “supplementary affidavit”
in which, he had said, he wanted to deal with
“new
allegations” made in the first three respondents’
opposing affidavit. He was also aggrieved that he did
not get a
response to his correspondence. He accepts that the letter he had
addressed to the Chief Justice seems not to have
been received by
the Chief Justice. The applicant’s objective was that this
Court should have had regard to his “supplementary
affidavit”
before it could decide his application for leave to appeal.
Applications
for leave to appeal to this Court against orders of any court
including the High Court and the Supreme Court of Appeal
are
governed by Rule 19 of the Rules of this Court. That Rule makes
provision for a person who seeks leave to appeal to this
Court to
lodge an application for leave to appeal with the Registrar of this
Court and for the respondent(s) to respond to the
application. The
Rule does not make provision for the applicant to file a reply. The
rationale for this is that, if it is in
the interests of justice
that this Court should entertain a litigant’s appeal, the
Court should be able to decide that
from the applicant’s
application for leave to appeal and the respondent’s response
without the applicant having to
file a reply. In this regard it must
be remembered that, even though Rule 19 does not contemplate a reply
by the applicant, the
documents that the Court is required to have
before it when it considers an application for leave to appeal
include the judgment
of the court against which the applicant seeks
leave to appeal. This means that Rule 19 contemplates that the Court
will have
one set of papers from each party to the dispute and the
judgment from the court against which an appeal is sought. The Rule
does not contemplate that any one party will file more than one set
of papers.
In
bringing his application for “reconsideration” the
applicant elected not to cast it as an application for rescission.
However, he did also say he wanted to have the order of 28
May
2013 varied even though he did not say what variation he sought. The
applicant is a practising attorney. He knows about rescission
applications. His election not to bring an application for
rescission must have been deliberate. We, therefore, do not propose
to treat his application as a rescission application. However, if he
had brought it as a rescission application, the closest
his case
could have come within the ambit of Rule 29 of the Rules of this
Court read with Rule 42 of the Uniform Rules of Court
would have
been Rule 42(1)(a).
1
That is that the order of 28 May 2013 was erroneously granted.
However, he would not have succeeded because the information
the
applicant wanted to place before the Court by way of a supplementary
affidavit was largely irrelevant or did not seek to
show that there
were reasonable prospects of success or that it was in the interests
of justice that his matter be entertained
by this Court.
2
A
reading of the applicant’s response to the “new
allegations” reveals that he does not identify the allegations
in that affidavit that he says are new. Instead in one section he
deals with his application for the recusal of Bosielo AJ and
Mhlantla AJ and talks about the fact that they did not recuse
themselves and spends considerable energy discussing his complaint
to the JSC against Potterill J.
The
applicant made a bald statement in his affidavit that he was
bringing his application under common law but did not substantiate
it in any way. In
Baphalane
3
this Court recorded that the question whether it has power as a
court of final instance to vary its past orders under the common
law
or under its inherent power to protect and regulate its own process
or under its power to develop the common law, taking
into account
the interests of justice, had been left open in the past.
4
However, subject to what has been said, this Court has reiterated
the well-known general principle that, once a court has made
a final
decision in a matter, it becomes
functus officio
and has no
power thereafter to reconsider its decision other than under
provisions such as those relating to rescission or variation
of
judgments.
5
The rationale behind this principle is, in part, that there should
be both certainty and finality on matters that have been decided
by
a court. This is because it would be untenable if a court were free
to reconsider and change its decisions as it pleases and
if parties
to disputes do not have the finality necessary for them to arrange
their affairs appropriately.
If
the position were to be that this Court does have power outside of
Rule 29 read with Rule 42 to reconsider and, in an
appropriate
case, change a final decision that it had already made, one can only
think that that would be in a case where it
would be in accordance
with the interests of justice to re-open a matter in that way. The
interests of justice would require
that that be done in very
exceptional circumstances. However, even if this Court had power to
entertain the application if the
interests of justice so required,
the applicant would have failed because a reading of his affidavit
reveals no exceptional circumstances.
Accordingly, the application
comes nowhere near showing that it would be in the interests of
justice for this Court to reconsider
its order of 28 May 2013.
There
can be no doubt that, even if the information that the applicant
wanted to place before the Court had been before it when
it made its
order of 28 May 2013, this Court would still have dismissed his
application for leave to appeal with costs.
In
the circumstances this application is dismissed with costs.
1
Rule
42 provides in relevant part:
“
(1) The court may, in
addition to any other powers it may have,
mero
motu
or upon the
application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or
erroneously granted in the absence of any party affected thereby;
(b) an order or judgment in which there is an
ambiguity, or a patent error or omission, but only to the extent of
such ambiguity,
error or omission;
(c) an order or judgment granted as the result of a
mistake common to the parties.”
2
See
Daniel v President of the Republic of South Africa and Another
[2013] ZACC 24
at para 6.
3
Baphalane
ba Ramokoka Community v Mphela Family and Others, In re: Mphela
Family and Others v Haakdoornbult Boerdery CC and Others
[2011]
ZACC 15
;
2011 (9) BCLR 891
(CC) (
Baphalane
).
4
Id
at para 27.
5
Daniel
above n 2 at para 5.