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Ex Parte Thukwane (15301/05) [2005] ZAGPHC 7 (1 January 2005)

IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION

In the ex parte application of Case no. 15301/05

THAMSANQA FORTUNE THUKWANE Applicant


JUDGMENT

HARTZENBERG ADJP:
         [1]
This is an urgent application. The applicant, a prisoner in the Pretoria Central Prison, appears in person. The applicant prays for a rule nisi calling upon all interested parties to show cause why a letter by the registrar to the head of Pretoria Central Prison should not be set aside as invalid and why certain declaratory orders should not be made about the import of some of the rules of court. The letter was written after consultation with me and indicated that applications by prisoners are to be served by the Sheriff, are to be typed or printed by means of a printing process, must be stamped with R80,00’s worth of revenue stamps and are to be brought in terms of the long notice of motion, form 2(a) of the first schedule to the Uniform Rules of Court.

         [2] The reason why the letter had been written
was to try and eatablish some order in the recent spate of applications emanating from prisoners incarcerated in the many prisons within the jurisdiction area of this court. There has been a rapid growth in the number of such applications over the past three years. Some of the applications are in manuscript and, if not totally illegible, very difficult to read and understand. The applications are taken by family or friends to the office of the State Attorney and a stamp signifying service on the State Attorney is affixed to the papers. Such applications do not necessarily come to the notice of the relevant section of the office of the State Attorney. Applicants then enrol the matters to be heard as unopposed matters on specific dates. The registrar issues requisitions for their attendance at court on the relevant dates. In other cases the State Attorney files an appearance to defend the matter but the document disappears from the court file. Again the matter is enrolled as an unopposed matter and a requisition is issued. Usually the judge hearing the matter has reason to believe that the failure to defend the matter is not deliberate but due to the respondent’s lack of knowledge of the application or the enrolment thereof. It is in any event usually impossible to understand the applicant’s complaints without the assistance of the State Attorney and the officials of the Department of Correctional Services. Even when there are notices of opposition in the files applicants sometimes prematurely have the matters enrolled and have themselves requisitioned to attend at court. In case of postponements most of the prisoners do not seem to be overly disappointed.

        
[3] Every time when a prisoner is brought to court he has to be accompanied by two prison officers. The prisoners have to be driven to court in a State vehicle driven by a State driver. Very often the prisoner does not get to the right court on the right day. It is obvious that the futile transport of a prisoner to court to have a matter postponed has negative side effects. Apart from the direct costs of transport there is the expense involved in having a number of prison officers not being able to fulfil their normal duties and the fact that a judge has to prepare for the application During April this year there was an instance where in one abortive application 41 prisoners were transported from Kutama Sinthumule prison, more than 400 kilometres from court in five vehicles guarded by 25 warders. The entourage left the prison before 4:00 am and must have arrived back very late that evening. The matter was not on the roll and there was no service on the State.. Apart from anything else the State Attorney must keep a watchful eye to avoid having orders made against the State by default. In Pretoria there are opposed and unopposed motion courts on Tuesdays, Wednesdays, Thursdays and Fridays. In practice there are two advocates and one member of the State Attorney’s office who have to make arrangements for the finalization of the matters virtually on every motion court day. Their policy seems to be that in cases where they are of the view that the applicant has a valid grievance they arrange that the matter will be attended to by the correct people. When they are of the view that the application is without merit they oppose it and file opposing papers. In the great majority of cases where prisoners are requisitioned to attend at court, the matters merely get postponed and their attendance has not served any purpose. In many of the cases the complaints are frivolous or without a valid foundation. Another feature of these matters is that prisoners deliberately, especially in hopeless applications, refuse legal aid and insist upon attending court themselves. There are a small number of the cases though where prisoners have valid complaints.

         [4] The
biggest problem is that prisoners seem to think that by coming to court, even where the matters are not ripe for hearing, they will speed up the process. They do not seem to understand that courts have to listen to both sides of a story. They do not understand the rules or, if they do it appears that often they deliberately try to circumvent them.

         [5] Uniform rule 4(1) of the rules of court is peremptory. It provides
that “subject to the provisions of paragraph (aA)” service of any document initiating application proceedings shall be effected by the sheriff...” (My emphasis). The ways in which the sheriff is to do that in the case of different classes of respondents are set out in sub rules (i) –(ix). Not one of those sub rules has to do with service upon the State or organs of State. That aspect is specifically dealt with in rule 4(9). It provides:
“In every proceeding in which the State, the administration of a province or a Minister, Deputy Minister or Administrator in his official capacity is the defendant or respondent, the summons or notice instituting such proceeding may be served at the Office of the State Attorney...........” (My emphasis)

        [6] The position is clearly that in order to initiate proceedings against an organ of state it will not be necessary to serve upon a specific person or department but that service can be effected at the office of the State Attorney. The service, however, has to be in terms of rule 4(1) i.e. by the sheriff, and more in particular in terms of rule 4(1)(v), by delivering it to a responsible person. After all, the purpose of having process served through the sheriff is to ensure that the defendant or respondent receives the document initiating the proceedings and that the court has proper proof thereof.
         [7] The primary basis upon which the applicant brought the application is a misconception of the purview of rule 4(aA). It provides:
“Where the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings.”
The purpose of the sub rule is to make it unnecessary for litigants in pending proceedings to have an interlocutory application served by the sheriff. The attorney of record has a mandate from his client and will inevitably have to deal with the application. That is not necessarily the position with the organs of State. Although in the majority of cases the State departments are represented by the State Attorney there are many instances where organs of State employ attorneys other than the State Attorney. In any event the wording of the sub rule is clear and allows for service upon an attorney of record. Until such time as the State Attorney enters appearance on behalf of an organ of State it is not an attorney of record for the purposes of that case.

         [8]
Prayers 2.2, 2.3 and 2.4 are respectively for declaratory orders to the effect that rule 4(1)(aA) provides an exception to the general rule that applications must be served by the sheriff, that rule 4(10) confers a judicial discretion upon the court to order effective service of process and that rule 30A(1) and (2) give the court a discretion to condone non-compliance with the rules. The purpose and import of rule 4(1)(aA) have been discussed above. It is not applicable to the way in which applications may be initiated when there are no pending proceedings between the same parties. Rule 4(10) provides that if a court is not satisfied with the effectiveness of service it can order that further steps be taken. It is not at all applicable in the present matter. Rule 30A does not deal with condonation of non compliance with the rules. It gives a weapon to a litigant to have his opponent’s case dismissed if the latter fails to comply with the rules. The applicant must have had rule 27(3) in mind. I shall deal with it herein later.

         [9] Prayer 2.5 asks for an order that provision be made in the rules for
the waiver of court fees in the form of stamp duties of R80,00 in the case of the applicant and of all parties appearing in person who satisfy the registrar that they are indigent. Rule 67(a)(i) provides that there is a R80,00 fee payable in respect of every original initial document whereby an application is made. It is clear that the order sought, ex parte, envisages a drastic change in fiscal policy. In my view the Minister of Justice and the Minister of Finance have a real interest in such an application. In any event this court cannot change the rules. There is a Rules Board and a procedure in terms of which rules of court are made, revised and changed. It is clear that the order sought cannot be made in this application. In any event, the applicant does not wish to have the matter postponed in order to join the other interested parties.

         [10] Prayer 2.5 is for a declaratory order to the effect that the applicant “and other inmates” have a right of access to court in terms of section 34 of the Constitution which may only be limited in terms of section 36 of the Constitution. In my view the letter of the registrar only explains to prisoners what the normal rules of the court are with which all litigants have to comply. It does not discriminate against prisoners. It tries to achieve an objective that applications will, in terms of the rules, become ripe for hearing, will be allocated to a court and will then be dealt with. Ordinarily an applicant must require of the respondent to indicate whether it intends to oppose the application Rule 6(5)(b) and Form 2 of the First Schedule.. The respondent then has 5 court days to enter an appearance. Thereafter the respondent has 15 court days to file an opposing affidavit Rule 6(5)(d)(ii),. The applicant has a further 10 court days within which it may file a replying affidavit Rule 6(5)(e).. After the replying affidavit has been filed the matter is ripe for hearing. The applicant must then, in this division, obtain a date from the registrar on the opposed motion court roll for the hearing of the matter and enrol it for that date. It is only on that date that any ordinary opposed application will be heard by the court. It seems that prisoners have no regard for those rules and, as I have indicated, have themselves requisitioned to appear in court in matters that the court simply cannot deal with.

[11]It would perhaps have been more clear if the letter of the registrar had also referred to the provisions of rule 6(12) and rule 27(3). Rule 6(12) provides that, in urgent applications, the court or a judge may dispense with the forms and service provided for in the rules. Rule 27(3) provides that the court may, on good cause shown, condone any non-compliance with the rules.

         [1
2] In my view the effect of these two rules for the purposes of this judgment is that in appropriate circumstances a court may dispense with the necessity of service in terms of the rules and may even dispense with the necessity of requiring of the applicant to provide the court fee of R80,00. What is however clear is that it is a court that may dispense with the requirement of service through the sheriff, or may decide that a matter be heard as one of urgency, or that an application may be brought without paying the court fee. From a practical point of view it means that, when a prisoner brings an application on an urgent basis, or applies to be exempted from the payment of court fees, or for any other indulgence to deviate from the rules of court, the application must be submitted to the court so that the court can determine if a proper case has been made out that the matter be dealt with otherwise than in the normal course of the rules. It obviously entails that the applicant will have to persuade the court that the matter is urgent or that the stamp duty ought not to be paid or that some other deviation should be allowed. In practice and before the registrar will be entitled to issue the application, directives will have to be given either by the Deputy Judge President or by the judge doing the urgent court. As far as urgency is concerned, the judge looking at the application must decide whether the matter is in fact so urgent that a departure from the normal requirements and time periods is warranted. It is for the applicant to persuade the judge by making the necessary averments in his application. See rule 6(12)(b). If he fails to do so the judge will in all probability direct that the ordinary requirements must be met and that ordinary time periods shall apply. If the judge is of the opinion that the matter is urgent the judge will give directives how the matter is to be dealt with. The respondent may for example be ordered to file the opposing affidavit within a shortened period or a specific date for the hearing of the matter may be determined.

[13]As far as an exemption from stamp duty is concerned it must be remembered that an applicant must show good cause. It means that he must not only prove that he is indigent but also that, prima facie, he has a good case. The stronger his case the easier it will be for him to persuade the judge that he need not pay the court fee and vice versa.

[14] From a practical point of view prisoners who want to bring applications will have to submit their applications to the registrar who will in turn submit it to either the Deputy Judge President or the judge doing urgent applications. Such judge will issue directives as to how the matter is to be dealt with. When an applicant is unrepresented a requisition for the prisoner’s attendance at court ought in general not to be issued before an opposed matter has been enrolled on the opposed roll for a specific date, and, in the case of an urgent application before a judge has indicated that he must be requisitioned.

[15] An affidavit resisting the application of the applicant was filed on behalf of the
Department of Correctional Services. The department was represented by Mr. Roux during argument. Mr. Roux asks that the application be dismissed and that the applicant be ordered to pay the department’s costs. The applicant on the other hand is of the view that the department invited itself to the party and resists the prayer for costs.

[16] The situation is simply that the application cannot succeed. As far as costs are concerned the letter may have created the impression with prisoners that they have been deprived of access to the court. It did not intend
and does not do so. However by approaching the court the situation has now been explained to the applicant and fellow prisoners. In the circumstances the applicant will not be ordered to pay the department’s costs.

The application is dismissed.



...............................................
W J HARTZENBERG
JUDGE OF THE HIGH COURT
I agree.
..........................................
I W B DE VILLIERS
JUDGE OF THE HIGH COURT
I agree
..................................................
F H D VAN OOSTEN
JUDGE OF THE HIGH COURT
Representation: Applicant. In person
On behalf of the Department of Correctional services: Adv. J Roux and The State Attorney.