Buthelezi v Minister of Home Affairs and Others (6445/2009) [2009] ZAWCHC 135 (2 April 2009)

IN THE HIGH COURT OF SOUTH AFRICAWESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 6445/2009

DATE: 2 APRIL 2009

In the matter between:

PRINCE MANGOSUTHU BUTHELEZI, MP Applicant

and

THE MINISTER OF HOME AFFAIRS 1st Respondent

THE DIRECTOR GENERAL OF HOME AFFAIRS 2nd Respondent

THE PRESIDENT F THE

REPUBLIC OF SOUTH AFRICA 3rd Respondent

JUDGMENT

ALLIE. J

In this matter the Court has to decide primarily at this stage whether the relief sought by the applicant is of such an urgent nature that it warrants being placed on this Court's roll whether it be on Tuesday or today, as it is, whether it warrants being placed on this Court's roll as a matter of urgency and thereby obviously eclipsing the possibility of other litigants

In this regard I would like to quote from certain cases which have in fact been regarded as trite law on the issue of urgency, and I would like to start with the case of Luna Meubel Vervaardiaers v Makin and Others 1977(4) SALR 135(W) at 137f;

"Practitioners should carefully analyse the facts of each case to determine for the purpose of setting the case down for a hearing whether a greater or lesser degree of relaxation of the rules and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate there with. Mere lip service to requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm which is involved in the time and day for which the matter be set down."

Further in that same case at 139 E the Court says the following;

'Although tt happens far too frequently that urgent applications are set down on the simple basis that just any element of urgency justified them being set down at any time without any consideration of the simple and logical factors which I have canvassed I nevertheless believe that this is not a general practice which is so deeply ingrained that a warning to desist should first be given."

That then are the factors which I wish to draw attention to, which has been outlined in that particular case dealing with the issue of urgency.

I now turn to another case, which has also been considered as trite law on the issue of urgency, and this is the one of I L and B Marcow Caterers (Ptv) Limited v Greatermans S A Limited and Another, also related case Aroma Inn (Ptv) Limited v Hypermarket (Ptv) Limited and Another. 1981(4) SALR at 108t (WLD) decision and I would like to quote from that case primarily the following, at110H-111A;

"In terms of Rules 27 and 6 (12) applicants thus had to show good cause why the time should be abridged and why applicants could not be afforded substantial redress at a hearing in due course. The case for urgency had to be made out in the supporting affidavits."

Further on in that case, at 112H

t;)t is clear from the requirements set out in Rule 27 and Rule 6 (12) that the Court's power to abridge the time prescribed and to accelerate the hearing of the matters should be exercised with judicial discretion and upon sufficient and satisfactory grounds

being shown by the applicants. The major considerations normally and in these two applications are three in number, viz the prejudice that applicants must suffer by having to watt for a hearing in the ordinary course; the prejudice that other litigants might suffer if the applications were given preference; and the prejudice that respondents might suffer by the abridgment of the prescribed times and an early hearing."

I specifically quoted from the abovementioned cases to point out that the purpose of creating an urgent roH and creating a rule such as Rule 6 (12) and Rule 6 (5) is precisely so that litigants and legal representatives of litigants in matters actually deal fairly with fellow litigants as well as with the Court in terms of setting matters down so that matters of urgency only are dealt with.

Now I turn to the applicants founding affidavit and in particular to paragraph 31 thereof where the applicant seeks to make out a case for urgency, and I quote the following from paragraph 31;

"As set out in the aforegoing averments this application is urgent. Jf a visa is not issued to allow the Dalai Lama to enter South Africa in the nearest future, the purpose of the Dalai Lama's entry and my constitutional right to participate in it will be irreparably jeopardised as;

(1) The intended peace conference will not be held.

(2) The Dalai Lama will not return to South Africa any time soon.

(3) The Dalai Lama and I cannot discuss urgent issues of present day world politics relating to the present political situation in South Africa and Tibet.

The Dalai Lama, I and many other South Africans will not be able to jointly muster spiritual energies and pray for peaceful and serene elections on April 22 2009.

The damage to the international image of our country will be irreparable if the impugned action is allowed to stand without an immediate judicial reaction."

So those are the reasons given by the applicant in its founding papers for urgency. While this Court makes no pronouncement on the prospect of success on the relief sought by the applicant in this matter, this Court believes that while the applicant's argument that he and other South African citizens1 constitutional rights are infringed may in fact be so, without saying that it is in fact so, this applicant has not shown that the continued alleged infringement of those rights are of such a nature that they warrant a truncated application brought on short notice without giving sufficient time to the other side to file papers, dealing with the merits of the matter, and without bringing the matter in the ordinary course where a judge could perhaps have been devoted or dedicated to deal just with this matter for the day. Applicant Instead elected to bring this matter as one of urgency on a time during recess when essentially there are only two judges on duty, and where also it is brought on an urgent basis, clearly this is not a situation which this Court can countenance as one where the alleged breach of rights justify the bringing of an application in this manner, While the Court is aware of the fact that in other instances where there are allegations of a breach of constitutional rights, urgency may in fact be found, this Court is of the view that in this particular instance the applicant has not discharged the responsibility of showing that in fact this matter is sufficiently urgent to warrant the attention of this Court, and thereby crowd out other litigants who in fact may

have matters of extreme urgency which will require the attention of this Court.

In the circumstances this matter is then struck from the roll and the issue of the costs of today, as wefl as the wasted costs of Tuesday, the 31 March 2009, are then to stand over for later determination.

ALLIE, J