Maluleke v National Director of Public Prosecutions and Others (2866/2016) [2018] ZANWHC 32 (30 January 2018)

IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

CASE NO: 2866/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

CIRCULATE TO OTHER MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:

MALULEKE TSHUNDZUKA KEVIN Applicant

and

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 1st Respondent

CONTROL PROSECUTOR

MAGISTRATE'S COURT POLOKWANE 2nd Respondent

MINISTER OF POLICE 3rd Respondent

PROVINCIAL COMMISSIONER POLICE

(LIMPOPO PROVINCE) 4th Respondent

NATIONAL COMMISSIONER OF POLICE 5th Respondent

WARRANT OFFICER POOTONA

(INVESTIGATING OFFICER) 6th Respondent

STATION / BRANCH COMMANDER

(POLOKWANE SAPS) 7th Respondent

HONOURABLE JUDGE PRESIDENT

MAKGOBA EPHRAIM MAMPURU 8th Respondent

FREEDOM UNDER LAW 9th Respondent

DATE OF HEARING: 08 DECEMBER 2017

DATE OF JUDGMENT: 30 JANUARY 2018

COUNSEL FOR APPLICANT: IN PERSON

COUNSEL FOR THE 1ST TO 7TH RESPONDENTS: ADV. W.T MOKHARI SC with ADV. N THOKOANA

COUNSEL FOR THE 8TH RESEPONDENT: ADV. G.J DIAMOND

JUDGMENT

HENDRICKS J

Introduction

[1] This is an application for leave to appeal to the Supreme Court of Appeal (SCA) against the judgment / order of this Court in which the point of law raised by the first to eight respondents were upheld with costs. The point in limine raised by the applicant, was dismissed.

[2] It was contended by the applicant, an advocate by profession who appeared in person, that leave to appeal is premised on the fact that:

(i) there are reasonable prospects of success on appeal in terms of Section 17 (1) (a) (i) of the Superior Court Act, 10 of 2013 (Superior Court Act);

(ii) that although the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties as contemplated in section 17 (1) (c) of the Superior Court Act.

[3] The facts and reasons for judgment are comprehensively dealt with in the judgment of this Court dated 23 May 2017 and same need not be rehashed in this judgment on leave to appeal. I need however to deal with the pertinent issues raised during argument and submitted in the heads of argument by the respective counsel.

[4] The applicant contended that the point in limine raised by the first to eight respondents is not at all dispositive of the matter in that the real issues between the parties have not been resolved. It is a mere technical point of law implying only that the applicant should have sought consent in terms of section 47 (1) of the Superior Court Act, allegedly prior to the institution of these proceedings.

[5] Section 47 (1) of the Superior Court Act is clear and unambiguous. No civil proceedings may be instituted against any judge or Judge President except with the consent of the Head of that Court or, in the case of a Head of Court, the Chief Justice. This aspect was extensively dealt with in the judgment of this Court and same need not be repeated herein.

[6] The applicant contended that the case law quoted and referred to in the judgment of this Court are distinguishable from the present case because in all the quoted cases the relief was claimed against the judge / judges, whereas in this case no relief is claimed against the Judge President but he is merely cited as an interested party. I am holding a different view.

[7] In paragraphs [17] and [18] of the judgment, I dealt with the effect of the citation of the Judge President in these proceedings. That the relief sought will have a bearing on the person of the Judge President, who is cited in his personal capacity, is beyond question. This much was also conceded to by the applicant during address. The case law makes it undoubtedly cleat that once a Judge/Judge President is cited in his/her personal capacity, the provisions of section 47 (1) becomes applicable.

[8] The order of this Court reads as follows:

“Consequently the following order is made:

(i) The point of law raised by the 1st to 8th Respondents is upheld.

(ii) The point in limine raised by the Applicant is dismissed.

(iii) The Applicant is ordered to pay the costs of this application on a scale as between attorney- and-client.

(iv) Such costs to include the costs consequent upon the employment of two counsel (junior and senior), where applicable.”

The order does not have the effect of disposing of the review application. It is trite that an appeal lies against the order granted and not against the ratio decidendi.

[9] In terms of section 17 (1) of the Superior Court Act, leave to appeal may only be granted where the judge(s) concerned are of the opinion that the appeal could (not might) have a reasonable prospect of success. The test to be applied in applications for leave to appeal, is now higher than what it used to be. I am of the view that there are no reasonable prospects that a court of appeal will arrive at a different decision than what this Court had arrived at.

[10] The applicant furthermore submitted that in terms of section 17 (1) (c) of the Superior Court Act, the decision sought to be appealed does not dispose of all the issues in the case. Due to the fact that the merits of the review application were not disposed of, there is merit in the appeal; so it was submitted.

[11] This, in my respectful view, is not what was intended by the legislature. This section must be read in full to understand the

purpose and intention thereof. Leave to appeal may be granted where the decision sought to be appealed does not dispose of all the issues in the case but the appeal would lead to a just and prompt resolution of the real issues between the parties. This is not applicable to the present case.

[12] An appeal in this instance would not resolve the real issues between the parties. The merits of the review application cannot be dealt with on appeal when no pronouncement was made on it by the court of first instance. Therefore, although the decision sought to be appealed does not dispose of all the issues in the case, an appeal in this instance would not lead to a just and prompt resolution of the real issues between the parties. Section 17 (1) (c) is therefore applicable to this matter.

[13] To reiterate, section 47 (1) of the Superior Court Act is clear and unambiguous. No civil proceedings by way of summons or notice of motion may be instituted against a judge. This simply means that any form of civil proceedings against a judge is prohibited unless or except where the consent of the Head of Court or Chief Justice, where applicable, is obtained.

[14] Counsel on behalf of the eight respondent submitted that to argue that civil proceedings can be instituted against a judge in instances where no relief is sought against the judge but he/she is only cited in so far as the judge may have an interest in the application, would lead to absurdity because the judge may be compelled to participate in the proceedings (whether to resist the relief or not) and the whole purpose of the section, viz, to guard the integrity of the institution of the court as an institution, will be defeated. I fully agree with this contention.

[15] I am of the view that there are no reasonable prospects of success on appeal and leave to appeal should therefore be refused. Costs should also follow the result. This case, because of its import for the parties concerned, is meritorious of the employment of two counsel. Costs of two counsel should therefore be awarded, where applicable.

Order:

[16] Consequently the following order is made:

(i) Leave to appeal to the Supreme Court of Appeal (SCA) is refused.

(ii) The applicant is ordered to pay the costs of the application for leave to appeal.

(iii) Such costs to include the costs consequent upon the employment of two counsel (junior and senior), where applicable.

___________________

R D HENDRICKS

ACTING JUDGE OF THE HIGH COURT,