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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE NO. 1993/2008

In the matter between :

THE DIRECTOR OF PUBLIC

PROSECUTIONS (TRANSKEI) APPLICANT

And

MAGISTRATE : MICHAEL

MAKHOSANDILE NKALWENI FIRST RESPONDENT

LUNGISWA JOYCE PASIYA SECOND RESPONDENT

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EX - TEMPORE JUDGMENT

_______________________________________________________

PETSE ADJP

[1] The Director of Public Prosecutions, Mthatha has approached this Court on a semi-urgent basis and seeks an order in the following terms :

1. That the applicant’s non-compliance with provisions of Rule 6(5) of the Uniform Rules of this Honourable Court be condoned and that leave be granted to the applicant to bring this application as a matter of urgency in terms of Rule 6(12) of the Rules of Court.

2. That a Rule Nisi be issued calling upon the respondents to show cause, if any, on Tuesday the 30^th December 2008 at 10h00 or so soon thereafter as counsel may be heard, why an order in the following terms should not be granted :

2.1 Setting aside the decision by the first respondent on 12 December 2008 to release the second respondent on bail;

2.2 Directing that the second respondent be arrested and placed in custody pending the outcome of a bail application, if any, before the Magistrate, Mthatha or finalisation of the criminal case against her now pending before Court.

2.3 That such further and/or alternative relief be granted as this Honourable Court may deem fit.

2.4 That the respondents pay the costs of this application only in the event of respondents opposing the relief sought.

[2] The first respondent is Magistrate Michael Makhosandile Nkalweni, who is cited in his official capacity as the judicial officer who made the decision to release the second respondent on bail now being impugned.

[3] The second respondent is Lungiswa Joyce Pasiya, an adult female of Mthatha.

[4] Only the second respondent is opposing this application. The first respondent has not entered the legal fray but has elected to file with the Registrar of this Court a notice to abide the decision of this Court.

[5] The matter initially served before me on Monday 22 December 2008 when the points in limine taken by the second respondent were argued .

[6] I pause at this juncture to say in passing that as at the aforementioned date the second respondent had not filed an answering affidavit dealing with the merits of the application. She had merely contented herself with raising preliminary points which were the subject of some debate before me on the aforementioned date.

[7] The following are the preliminary points taken by the second respondent, and I take the liberty to quote liberally from her answering affidavit deposed to on 22 December 2008 :

1. That the second respondent was not served with the application papers as required by the Rules but that papers were merely delivered to her erstwhile legal representative whose mandate was terminated on the 12^th December 2008 when bail was granted. Accordingly the second respondent had to instruct her erstwhile attorney afresh after hearing from him about the present matter on 21 day of December 2008.

2. That the applicant’s founding affidavit is itself defective and does not comply with Rules in that it does not state at all as to who the respondents are with reference to their status and title as it is supposed to be the case in terms of Rule 17(4) of the Uniform Rules.

3. That service of the papers on the second respondent was effected by police and in particular the Investigating Officer Inspector Mnoneleli Mvu on her erstwhile attorney whereas there is no prayer in the notice of motion seeking an order that the said officer should do so instead of the Sheriff who is duly authorised to serve papers.

4. That the Certificate of Urgency is defective and does not comply with the practise manual of this Court in that it does not itself set out the grounds of urgency.

5. That there are no specific paragraphs whatsoever in the founding affidavit and the confirmatory affidavit which deal specifically with urgency as required by the practise manual given that the paragraphs referred to in Certificate of Urgency do not deal with the question of urgency in that there are no reasons as to why this application should be heard as one of urgency.

[8] At the hearing of the matter the applicant was represented by Mr Siyo of the office of the Director of Public Prosecutions whilst the second respondent was represented by Mr T.R. Qina.

[9] Having had the opportunity of listening to argument on the points in limine I expressed my disinclination to dealing with this matter in a piecemeal fashion and gave directions as to the further conduct of the matter.

[10] The upshot of the directions I gave was that the matter was adjourned to Wednesday 24 December 2008 for argument and the parties were put on terms in regard to the filing of whatever affidavits that they might desire to file in order for the matter to be ripe for hearing . Pursuant thereto the second respondent filed her further answering affidavit dealing with the merits in the early morning on 23 December 2008 and the applicant filed his replying affidavit in the late afternoon on the same day. Filed simultaneously with the applicant’s replying affidavit was also an amended Certificate of Urgency which sought to rectify the shortcomings in the Certificate of Urgency filed by the applicant initially when these proceedings were instituted.

[11] The matter, as per previous arrangement, came before me once again on Wednesday 24 December 2008.

[12] It is timely at this juncture to pause and mention that the applicant seeks, in terms of his notice of motion a Rule Nisi returnable on 30 December 2008.

[13] Before the commencement of argument I enquired from both counsel as to whether there would be any virtue in granting a Rule Nisi in this matter given that all the protagonists had fully presented all the facts at their disposal in their respective affidavits. Counsel confirmed that given the prevailing situation as aforesaid it would be best to deal with the matter, in a manner of speaking, in one fellswoop and make a final order one way or the other thereby disposing of the matter once and for all.

[14] I further enquired from Mr Qina as to whether the second respondent would still persists in her points in limine given the strong prima facie views that I had expressed in regard thereto on 22 December 2008. Mr Qina’s response was, surprisingly if I may say so, in the affirmative.

[15] It is timely at this juncture to say that in his concluding argument Mr Qina conceded that if this Court were to dismiss the points in limine this application would fall to be granted. This concession was made by Mr Qina on the acceptance, after he had initially sought to persuade me otherwise, that on a proper construction of sec 60 (11)(a) of the Criminal Procedure Act 51 of 1977, as amended (“the Act”) there were no jurisdictional facts (which are a sine qua non for the proper exercise by a judicial officer of the judicial power conferred on him/her in terms of sec 60(11)(a) of the Act) established before the magistrate in the court a quo which would have entitled him to grant bail to the second respondent.

[16] For the sake of completeness I should perhaps just state briefly what those jurisdictional facts are : They are, inter alia, the following :

1. the accused who seeks to be admitted to bail must be charged with an offence listed in schedule 6 of the Act;

2. the accused must lead evidence which must establish

that exceptional circumstances exist which in the interests of justice permit his/her release on bail;

3. the accused must establish the existence of such exceptional circumstances on a balance of probabilities.

[17] It must be said that Mr Qina acted wisely in making this concession. See for example in this regard : Herbay v S [1999] 2 All SA 216 (W) at 216 in which it was held that the phrase “exceptional circumstances” means something unusual or not typical. In S v Mokgoje 1999 (1) SACR 233 (NCD) it was therein held that the phrase “exceptional circumstances” means unique, unusual, rare and peculiar circumstances. I, with respect, entirely agree with the views expressed in the aforementioned decisions.

[18] The procedure that is required to be followed in a bail application in which schedule 6 of the Act is of application or any bail application for that matter is to be found in the judgment of the Supreme Court of Appeal in S v Mabena and Another 2007 (1) SACR 482 (SCA). Because of the hierarchical structure of our courts the decisions of the Supreme Court of Appeal are binding on this Court which means that this Court must take its tune from the Supreme Court of Appeal and follow its decisions even when this Court might be in doubt about their correctness. I hasten, however, to say that far from doubting the correctness of the Supreme Court of Appeal decision in S v Mabena, supra, I, in fact and with respect, find it to be an accurate and correct exposition of the law on this subject.

[19] So much on what is manifestly the nub of the applicant’s case in these proceedings in so far as the merits thereof are concerned.

[20] I now hasten to consider the points in limine taken by the second respondent in casu to which reference has already been made which are fully encapsulated in paragraph [7] of this ex-tempore judgment .

[21] But before I do so I need to make one point clear, and an important one at that, which is that Rules of Court are not an end in themselves which must be observed for their own sake and that the Rules are for the Court and not the Court for the Rules, There is a long line of cases that proclaimed that courts of law must not encourage undue formalism in the application of the Rules and indeed they must eschew undue formalism. Rules are intended to secure the least expensive and expeditious finalisation of litigation before the courts of the land. See for example in this regard : Hudson and Another 1927 AD 259 at 267; LF Boshoff Investments (Pty) Ltd v Cape Town Municipality (2) 1971 (4) SA 532 (CPD) at 535; Viljoen v Federated Trust Ltd 1971 (1) SA 750 (OPD) at 754 D – E; Vitorakis v Wolf 1973 (3) SA 928 (WLD) at 932 F-G.

[22] This then necessarily means that where the one or other party has failed / neglected to comply with the Rules and his/her opponent has not suffered any prejudice as a consequence of such non-compliance it is the duty of the Court to endeavour to remedy any prejudice, if any has been established, in a manner appropriate to the peculiar circumstances of each case, bearing uppermost in its mind the object which the Rules seek to achieve. See in this regard : Trans - African Insurance Co. Ltd v Maluleka 1956 (2) SA 273 (AD) at 278 E-G.

[23] With that prelude I now turn to deal with the second respondent’s points in limine in the same order in which they are set out in paragraph [7] of this judgment.

[24] NON-COMPLIANCE WITH RULE 4 OF THE UNIFORM RULES

The main objective of Rule 4 is, to my mind, to give practical effect to what has been described as the cornerstone of our legal system that a person is entitled to notice of legal proceedings against him/her. In this case the complaint of the second respondent is that the service of the papers on someone she refers to as “her erstwhile attorney” was not regular despite the fact that her erstwhile attorney brought the papers to her and sought and obtained instructions from her to oppose the application. She now wants this Court to, as it were, shut its doors to the applicant despite the fact that she has been afforded the opportunity to oppose the application, represented by her attorney duly instructed by her who was afforded the opportunity to present full argument to this Court on her behalf.

[25] Although there are cases that say that mere knowledge of the institution of legal proceedings does not constitute service and can thus not relieve the applicant of his/her obligation to serve properly in terms of the Rules I think that on the peculiar circumstances of this case as summarised in the preceding paragraph the second respondent has no legitimate complaint, in my view, in so far as the manner of service of the papers is concerned even on an acceptance that it was otherwise than in accordance with Rule 4 of the Uniform Rules. Her objection is manifestly overly technical.

[26] In relation to the point made that the papers should have been served by the Sheriff I think it must be said that whilst this is ordinarily what should have happened I can conceive of no prejudice that the second respondent can be said to have suffered by reason of the fact that in casu the papers were served on her erstwhile Attorney by the Investigating Officer in the case pending against her in the Mthatha district court. If she was not before court on the date and time at which the application was set down for hearing and an attempt were made by the applicant in her absence to move the application without proof of proper service as envisaged in terms of the Rules – this would have been an entirely different situation. This Court would have been duty bound to refuse to entertain the application until and unless there was proof of proper service on her.

[27] In so far as the third point in limine is concerned I think it can be disposed of on the simple basis that whatever shortcomings or defects there might have been present initially in the applicant’s founding affidavit were sufficiently cured by the particularity contained in the second respondent’s own answering affidavit.

[28] IN RE : CERTIFICATE OF URGENCY

Although the Certificate of Urgency filed initially with the application did not meet the requirements prescribed in terms of the Practice of this Division its shortcomings have since been cured by an amended Certificate of Urgency filed on 23 December 2008. In any event a Certificate of Urgency is for the Court and not for a litigant. Accordingly nothing more need be said on this aspect.

[29] IN RE : GROUNDS OF URGENCY :

Whilst it is so that the issue of urgency is not adequately dealt with and canvassed in the applicant’s founding affidavit as required in terms of Rule 6(12) (b) of the Uniform Rules different considerations ought to apply on the facts of this case. Rule 6(12)(b) reads thus :

“In every affidavit or petition filed in support of any application under paragraph (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.”

It is my respectful view that a court must hesitate too long and indeed eschew a mechanical and/or pedantic approach to the interpretation of the Rules. It should rather not hesitate to adopt a practical and pragmatic approach in interpreting the Rules. Desirable and necessary though the requirements of Rule 6 (12) (b) are it still behoves this Court to consider the whole conspectus of the evidence presented before it in order to determine the question of whether what has been set out in the applicant’s founding affidavit does meet the threshold as required by Rule 6(12)(b).

[30] Although the grounds of urgency, regard being had to the nature of the relief sought by the applicant in these proceedings, could have been set out more concisely and clearly in the founding affidavit this Court must nevertheless take cognisance of the fact that it must have regard to substance and not form.

Compare in this regard : Cekeshe v The Premier Eastern Cape 1998 (4) SA 935 (Tk) at 948 A-949 C a judgment of Van Zyl J who, whilst dealing with an identical point as has been raised in casu, made reference to the case of Sikwe v S A Mutual Fire and General Insurance Co Ltd 1977 (3) SA 438 (WLD) in which Kirk-Cohen AJ, as he then was, expressed the view that, it does not follow that an application is necessarily defective if the form referred to in Rule 12 is not strictly adhered to. The learned judge summed up the position as follows at 440H : “……. the substance of the affidavit, and not its form, which will weigh with a Court; if an affidavit sets out facts upon which a Court can decide that an applicant is entitled to relief in terms of the sub-rule, the Court will entertain the application. If the only reasonable inference from the facts set out in the affidavit is that the matter is one of urgency, then an applicant will have complied with the requirements of the sub-rule, even though he does not make a specific averment that it is urgent.’ (Underlining mine)

It is therefore my judgment that pretty much the same situation obtains in this case and I thus align myself, with respect, with the aforequoted remarks by the learned judge.

[31] In the light of the aforegoing reasons it follows that my judgment is that none of the points in limine taken by the second respondent in casu has merit. All of them, in my view, fall to be dismissed.

[32] It remains now to deal with the question of the costs. Although the applicant has sought an order for costs against whoever, as between the respondents, opposes this application Mr Siyo informed this Court from the Bar that the applicant was no longer seeking costs against the second respondent despite the fact that she is opposing the application. Accordingly nothing more needs be said about the issue of costs in these proceedings save to reflect the applicant’s attitude thereanent in the order that I propose to make in a moment.

[33] In all the circumstances it is thus my judgment that this application must naturally succeed.

[31] Before concluding this judgment I feel constrained to make some observations in relation to the assault that the second respondent alleged in the court a quo she was subjected to at the hands of the Police whilst in custody. This is an extremely serious matter and its seriousness is aggravated by the fact that this allegation of assault is levelled against members of the Police. But as matters stand this allegation by the second respondent is not an issue that concerns me in these proceedings. Nevertheless I want to make one point abundantly clear which is that every judicial officer is duty bound not to turn a blind eye to the gravity of an allegation by a person in Police custody that she/he was assaulted. By virtue of their training and the nature of their duties members of the South African Police Service are expected and indeed it is required of them by the law at all times not only to respect the rights to physical integrity of the persons in their custody but also to protect them. I would therefore strongly urge the Station Commissioner under whose command the Police Station in which the second respondent will be detained to thoroughly investigate the second respondent’s allegation that she was assaulted by the Police and if that allegation is proved to have substance to ensure that the perpetrator(s) of the assault on the second respondent is/are speedily brought to book.

[32] In the result the following order shall issue :

1. That the decision of the first respondent taken on 12 December 2008 admitting the second respondent to bail be and is hereby reviewed and set aside.

2. That the second respondent be and is hereby directed to surrender herself to the Investigating Officer Inspector Mnoneleli Mvu within 72 hours calculated from 13h00 today.

3. That in the event of the second respondent failing/neglecting to surrender herself within the time allowed in terms of paragraph 2 of this order Inspector Moneleli Mvu shall arrest her and take her into Police custody.

4. That the Clerk of the Criminal Court in the magistrate’s office, Mthatha be and is hereby directed to refund forthwith the amount of R3 000.00 (Three Thousand Rand) paid by the second

respondent in respect of the bail fixed by the first respondent on 12 December 2008

5. That the second respondent be brought before court within 3 (three) court days from the grant of this order in order for her to make a bail application which shall be heard by a magistrate other than Mr M.M. Nkalweni and such court to make a decision in relation thereto.

6. That the Registrar of this Court be and is hereby directed to forthwith furnish a copy of this order to the Provincial Commissioner of the South African Police Service, Eastern Cape and the Station Commissioner, Central Police Station, Mthatha with a view to them to have the second respondent’s allegation of having been assaulted whilst in Police custody investigated as a matter of priority.

7. That the Registrar of this Court is directed to furnish forthwith a copy of this order to the Director of Public Prosecutions, Mthatha, with a view to him/her, in collaboration with the Provincial Commissioner of the South African Police Service and the Station Commissioner Central Police Station Mthatha, ensuring that the second respondent’s allegation of having been assaulted whilst in Police custody is investigated as a matter of priority.

8. That there be no order as to the costs of this application.

_______________________________

X M PETSE

JUDGE OF THE HIGH COURT

HEARD ON : 24 DECEMBER 2008

DELIVERED ON : 24 DECEMBER 2008

COUNSEL FOR THE

APPLICANT : MR S.W. SIYO

INSTRUCTED BY : THE DIRECTOR OF PUBLIC

PROSECUTIONS, MTHATHA

ATTORNEY FOR THE

SECOND RESPONDENT : MR T.R. QINA

INSTRUCTED BY : MESSRS T. QINA AND SONS

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