Tshabalala and Another v Director of Public Prosecutions, Gauteng Local Division, Johannesburg and Another (29734/2016) [2017] ZAGPJHC 154 (14 June 2017)

Tshabalala and Another v Director of Public Prosecutions, Gauteng Local Division, Johannesburg and Another (29734/2016) [2017] ZAGPJHC 154 (14 June 2017)

The court found that the applicants failed to exhaust internal remedies before approaching the court and did not follow the correct procedure. The decision to proceed with prosecution is excluded from the definition of administrative action under the Promotion of Administrative Justice Act and is not subject to judicial review. The application was therefore ill-conceived and bad in law. Furthermore, the applicants' attorney displayed a flagrant disregard for the rules and practice directives of the court, amounting to gross negligence. The court held that a punitive costs order de bonis propriis was appropriate to mark its disapproval of the attorney's conduct.

Citation
[2017] ZAGPJHC 154
Parties
Applicant: Khaya Stoffel Tshabalala; Applicant: Thokozani Pelington Mnisi; Respondent: Director of Public Prosecutions, Gauteng Local Division, Johannesburg; Respondent: Mrs. V.D Merwe (Regional Magistrate, Lenasia)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 June 2017
Case Number
29734/2016
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed. Punitive costs order granted against the applicants' attorney.
Judges
M L Twala, C I Moosa
Legal Topics
Judicial Review, Exhaustion of Internal Remedies, Costs De Bonis Propriis, Administrative Action Exclusion
Civil Procedure Administrative Law Judicial Review Exhaustion of Internal Remedies Costs De Bonis Propriis Administrative Action Exclusion

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Parties

Khaya Stoffel Tshabalala

Applicant

Thokozani Pelington Mnisi

Applicant

Director of Public Prosecutions, Gauteng Local Division, Johannesburg

Respondent

Mrs. V.D Merwe (Regional Magistrate, Lenasia)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicants were entitled to review the decisions of the respondents under Rule 53.
  2. 2 Whether the applicants exhausted all internal remedies before approaching the court.
  3. 3 Whether the decisions to proceed with prosecution constitute administrative action subject to review.

Ratio Decidendi

The court found that the applicants failed to exhaust internal remedies before approaching the court and did not follow the correct procedure. The decision to proceed with prosecution is excluded from the definition of administrative action under the Promotion of Administrative Justice Act and is not subject to judicial review. The application was therefore ill-conceived and bad in law. Furthermore, the applicants' attorney displayed a flagrant disregard for the rules and practice directives of the court, amounting to gross negligence. The court held that a punitive costs order de bonis propriis was appropriate to mark its disapproval of the attorney's conduct.

Court Disposition

Application for review dismissed. Punitive costs order granted against the applicants' attorney.

Orders

  • The application for review is dismissed.
  • The attorney for the applicants is ordered to pay the costs of this application for two days' hearing on an attorney and client scale de bonis propriis.