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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case number: 530/2015

Date Heard: 19/02/2015

Date Delivered: 26/02/2015

In the matter between:

PALESA LERATO BUSHULA.........................................................................................APPLICANT

And

CAPTAIN L V LWANA...........................................................................................1^ST RESPONDENT

WARRANT OFFICER SONKOSI........................................................................2^ND RESPONDENT

OFFICER COMANDING, LADY GREY POLICE STATION.........................3^RD RESPONDENT

THE MINISTER OF POLICE..............................................................................4^TH RESPONDENT

CONTROL PROSECUTOR, ALIWAL NORTH.................................................5^TH RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS,

GRAHAMSTOWN................................................................................................6TH RESPONDENT

REASONS FOR ORDER

SMITH J:

[1] On 19 February 2015 I granted a rule and interim relief, and, because of the urgency of the matter, indicated that reasons for the order would follow. The following are the reasons for my decision.

[2] In van Rensburg N.O. and another v Naidoo N.O. and others (unreported case no: 2732/11, Port Elizabeth High Court) this Court commented as follows regarding the constitutional imperative for court orders to be complied with:

“In terms of section 34 of the Constitution everyone has the right to have his or her legal disputes resolved by a court of law, or where appropriate, by another independent and impartial tribunal or forum.  The necessary corollaries of this fundamental constitutional right are: the entitlement of successful litigants to enforce final court orders; and the concomitant legal obligation on those who are subject to court orders to comply with them. If these legal principles are not vigorously enforced by our courts, the aforementioned constitutional right would have no substance, would be rendered meaningless and the dignity and authority of our courts would be compromised.”

[3] The facts of this matter, in my view, calls for such vigorous enforcement of these principles. They show that the first respondent (“Lwana”), who is a captain in the South African Police Services, has knowingly ignored a valid court order compelling him to return the applicant’s cell phone.  Significantly, the Director of Public Prosecutions, Grahamstown, who has been cited as sixth respondent, has not filed any opposing papers. Lwana, however, has been unrepentant, gave no indication whatsoever of an intention to purge himself of the contempt, but has instead opposed the relief on technical grounds; which in effect challenge this Court’s jurisdiction to deal with the matter. He adopted this obdurate stance despite the fact that the interim relief sought by the applicant only had as its object the preservation of the cell phone in the custody of the Registrar of this Court, pending a decision on the final relief. The applicant’s attempts to retrieve her cell phone were also frustrated by other members of the police force, who refused to record her complaint, and by Lwana himself, who instead arrested her and attorney Scoombee on charges of frustrating the administration of justice. Mr Quinn SC, who appeared for the applicant, correctly submitted that Lwana’s high-handed and contemptuous behaviour underscores the need for the judiciary to be vigilant in its duty to protect the integrity of court orders.

[4] The applicant brought urgent proceedings for a rule nisi, calling upon the respondents to show cause why they should not be ordered to return her cell phone to her, and for an interim order compelling the respondents to deliver the cell phone for safekeeping to the Registrar of this Court, pending the finalization of the main application.

[5] It is common cause that the applicant’s cell phone was seized by Lwana during a fracas that occurred at the offices of the Senqu Municipality in Lady Grey on 2 July 2013. The applicant had apparently made a video recording of the incident with her cell phone in order to record and preserve evidence of what she considered to have been ‘unlawful or unjustifiably heavy handed conduct on the part of the first respondent’. She had apparently recorded part of an exchange between Lwana and the municipal manager, one Yawa, as well as the latter’s’ arrest.

[6] She subsequently confronted Lwana and demanded that he return the cell phone to her. When he refused, she attempted in vain to lay a charge of theft against him. According to her the police officer on duty at the charge office refused to record her complaint. Instead she, together with attorney Schoombee and one John Adam, were arrested on charges of defeating the administration of justice, resisting arrest, and assaulting Lwana.

[7] They were held overnight at the Lady Grey police station and appeared in the Lady Grey Magistrate’s court the following morning, when they were allowed out on bail. The charges were thereafter withdrawn and later reinstated on at least two occasions.

[8] When the applicant attempted to fetch her cell phone after the first withdrawal, she was informed by the police that it had been handed to Lwana. She, together with Yawa and other municipal functionaries were arrested on corruption charges during March 2014.

[9] During February 2014, the applicant instructed her attorneys to commence civil action for damages in the sum of R867 000, against Lwana and the second respondent. Though the action had not yet been instituted, particulars of claim had apparently already been drafted. She contends that the recording of the incident at the municipal offices will constitute evidence in the civil action action, as well as the criminal case against her.

[10] During August 2014 her attorney, Van Breda, made representations to Adv. Ketani, the prosecutor assigned to deal with the corruption matter, for the return of the cell phone. Ketani’s attitude, however, was that the state was entitled to retain the cell phone and that it would be used as evidence, and as an exhibit in the court case.

[11] On 18 September 2014 Van Breda moved an application for the return of the cell phone in the Lady Grey Magistrate’s Court. The state had apparently requested that the application be postponed, but that request was denied. The application was argued, and the presiding magistrate postponed the matter to 30 October to consider his judgment. On 30 October 2014 the magistrate ordered that the applicant’s cell phone be returned to her on or before 16h00 on 6 November 2014. Lwana and the second respondent were both present in court when the judgment was handed down. The time frame for the return of the cell phone had apparently been set by the magistrate after consulting Lwana and second respondent.

[12] The respondents did not comply with the Court order, and on 10 November 2014 the applicant attempted to lay a charge of contempt of court against Lwana. The officer on duty, however, refused to record her complaint despite the fact that she presented an affidavit and all necessary supporting documentation. She was told that the matter would be dealt with the following day when the Station Commander had returned. When, however, she returned the following day, she was informed that the Station Commander was still unavailable. Her attorneys subsequently addressed letters of complaint to the Provincial Commissioner, the third respondent and the Independent Police Investigative Directorate. She was subsequently contacted by a police officer on 12 November 2014, and invited back to the Lady Grey police station to lay the charge. Her complaint was eventually recorded and a case number allocated.

[13] Apart from challenging the urgency of the matter, Lwana and the second respondent appeared to oppose the application only on the basis that the matter is res judicata, the magistrate already having granted an order. They contend that the applicant should consequently revert to the magistrate’s court to enforce that order.

[14] Mr Maseti, who appeared for the respondents, understandably did not appear to seriously advance the argument regarding the lack of urgency at the hearing of the matter. I am in any event satisfied that the application, involving: the constitutional rights of the applicant; alleged contempt of a court order; and unlawful spoliation, was sufficiently urgent to justify the truncated time limits set in the applicant’s notice of motion.

[15] Although effectively admitting that he is in contempt of the order granted by the magistrate on 30 October 2014, and apart from some oblique reference to plans to review that decision, Lwana has made no attempt to purge himself of the contempt, or to provide an explanation for his failure to comply with that order.

[16] There being no equivalent procedure for contempt of court in the Magistrate’s Court, the applicant was constrained to lay criminal charges in terms of section 106 of the Magistrates’ Court, Act 32 of 1944. Even in this regard her attempts were deliberately frustrated by the police officers who were obviously reluctant to record criminal charges against their colleagues. Even though criminal charges had since been opened, it is still cold comfort for the applicant who is left without an effective remedy. It is trite that criminal matters in the Magistrate’s Court may take some time, even years, to be resolved. And, given the reluctance of the police to record her complaint, it is unlikely that the investigations will be pursued with any measure of urgency or enthusiasm.

[17] Being armed with a valid court order, there can be little doubt that the applicant has established a clear right. In addition, the images on her cell phone will constitute evidence in both the criminal proceedings, as well as the civil action which she intends to institute. Self-evidently therefore, there is a real danger that she will suffer irreparable harm if those images are tampered with, or the cell phone lost. It may well be that in such an event her constitutional right to a fair would be seriously impaired.

[18] In addition, the interim relief sought by the applicant will ensure that the cell phone is placed with a responsible official, and will thus be safe-guarded against any tampering. The balance of convenience is therefore firmly in favour of the applicant. I was thus satisfied that the applicant had established all the pre-requisites for the relief sought, and accordingly granted the rule and interim relief.

_________________________

J.E SMITH

JUDGE OF THE HIGH COURT

Appearances

Counsel for the Applicant: Advocate Quinn, SC

Attorneys for the Applicant: Changfoot van Breda Attorneys

C/o

Netteltons

P.O Box 449

Grahamstown

6140

Tel: 046 622 7149

Ref: Mr Nettelton

Counsel for the Respondent: Mr Maseti

Attorneys for the Respondent : State Attorney

C/o

Whitesides Attorneys

53 African Street

Grahamstown

6140

Ref: 159/2015/E Ms Bosman

Date Heard : 19 February 2015

Date Delivered: 26 February 2015

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