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[2005] ZAGPHC 16
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Zulu v Minister of Defence and Others (28410/04) [2005] ZAGPHC 16; 2005 (6) SA 446 (T) (9 February 2005)
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IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) REPORTABLE Date: 9/2/05 Case No.: 28410/04 PORTIA SMANGELE ZULU Applicant and MINISTER OF DEFENCE 1 ST Respondent CHIEF OF SOUTH AFRICAN NATIONAL DEFENCE FORCE 2ND Respondent PRESIDING OFFICER: COURT OF SENIOR MILITARY JUDGE 3 RD Respondent CHIEF MILITARY LEGAL SERVICES 4 TH Respondent PRESIDING OFFICER: COURT OF MILITARY APPEALS 5 TH Respondent JUDGMENT MOJAPELO J 1. The applicant has brought an application to review and set aside: 2 (a) the decision of the Presiding Officer: Court of Senior Military Judge (3rd Respondent) which was handed down on 29 May 2001; and
(b)
the decision of the Presiding Officer: Court of Military Appeals (5th Respondent) which was handed down on 07 July 2004.
The review application has not been heard, is not before this court for decision and is still pending. The founding papers in the
review application have however been placed before this court as they are referred to and have been incorporated by reference in
the founding affidavit for the proceedings before this court. They in fact form a substantial part of the application before this
court. 2. 3. Pending the decision in the review application, the applicant has brought the present application, on urgent basis, to stay execution of the decisions that she seeks to have reviewed and set aside (as set specified in paragraph 1(a) and (b) above and amplified later in this judgment). The first, second and fourth respondents oppose the urgent application on the grounds, inter alia, that the decision of the third respondent was confirmed by the fifth respondent on 07 July 2004, that the decision of the fifth respondent is not "'l ,) reviewable and accordingly that the urgent application discloses no cause of action. It is on this crisp point that the respondents launched their main attack against the interim relief sought by the applicant. I revert later in the judgment to this point. 4. In its decision of 29 May 2001, the third respondent convicted the applicant on certain charges and dismissed her from service as a member of the South African National Defence Force (SANDF). On 04 October 2001 the applicant noted an appeal to the fifth respondent against the decision of the third respondent and at the same time filed an application for the review of the decision of the third respondent by the fifth respondent. 5. The same matter therefore came before the fifth respondent on 07 July 2004 and in its decision of that day the fifth respondent upheld the decision of the third respondent of 29 May 2001. I cannot help observing that the period of over three years that lapsed from the initial decision to the date of hearing of the review / appeal is inordinately too long. I presume that the applicant remained in service as a member of the SANDF pending the review and appeal to the fifth respondent. 4 6.
It is necessary to set out briefly the details of the charges on which the applicant was initially convicted, the grounds of appeal and review as well
as the full details of the decision or judgement of the fifth respondent.
The applicant was charged and convicted on the following charges: 7. 7.1 disobeying a lawful command in contravention of section 19(2);
7.2 intimidation in contravention of section 1 (1) of the Intimidation Act 72 of 1982 read with section 36 of the Military Disciplinary Code;
8.
The applicant took the decision of the third respondent on review to the fifth respondent on three (3) main grounds, namely:
5
8.1 that the Senior Military Judge who presided in the court of the third respondent that convicted the applicant was biased against
the applicant (the applicant refers to and quotes specific utterances of the presiding officer which she contends demonstrated bias);
8.2 In effect that the court of the third respondent which convicted the applicant was not properly composed when it convicted her
as one of the assessors had recused himself during the trial (allegedly because of the utterances of the presiding officer that demonstrated
bias). The applicant contends that the court should then have been reconstituted for the matter to commence de novo;
8.3 that part of the proceedings were conducted in a language
with which the applicant is not conversant in that whereas the applicant had in terms of the applicable rules elected to have the
proceedings conducted in English, the presiding officer allowed a state witness to testify in Afrikaans without affording the applicant
the services of an official interpreter.
6 9.
These are substantial grounds of review, each of which touches on the right of the applicant to a fair trial which is guaranteed under
the Bill of Rights (section 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996). They call into question the
fundamental fairness of the trial of the applicant by the third respondent when it convicted her:
9.1
If the applicant was tried and convicted by a presiding
officer who was biased against her, her trial cannot be fair and on that basis alone should be set aside with major consequences for
the applicant and the course of her trial. As a demonstration of the alleged bias the applicant quotes the following utterance of
the presiding officer from the record of the proceedings before the third respondent:
"I am granting you a further opportunity to consult with defence counsel and I have good mind to lock you up with him here until
this consultation is finished so that you do not escape again, because I am nearing the end of my tether about this matter. You cannot
play with justice. You are going to get burnt. "
7 9.2 If on the other hand the court or tribunal which
initially tried and convicted the applicant was not properly constituted in terms of the law when it convicted her, then on that ground
alone the question whether the decisions which it took are legally valid and binding is a legitimate one. A court or tribunal which
is not lawfully constituted cannot produce or make decisions which are valid and enforceable at law. On this ground alone, if upheld,
a decision of the tribunal or court of first instance may be declared to be invalid and set aside.
9.3
Equally important in any proceedings against a party
is the ability of that party to follow fully and clearly the proceedings against her or him. It would be a gross injustice that cannot
be allowed to stand, if the applicant was convicted in proceedings which she could not follow.
Of particular importance within South Africa with its eleven official languages, is the right of an accused to be tried in an official
language that she or he
8
understands. South Africa is a multi-cultural and multi-lingual country. Not only are litigants entitled to be tried in an official
language, but what is more important, each litigant is entitled to be tried in a language which she/he understands and, if that is
not practicable, the litigant has a constitutional right "to have the proceedings interpreted in that language" (sec 35(3)(k)
of the Constitution). Surely the right to have proceedings "interpreted" must mean the right to have them interpreted properly
and intelligently. It cannot mean any interpretation whatsoever and whatever the quality and effect of such interpretation.
The essence of interpretation must be that it should be understood and understood must mean clearly understood. Any possibility that
the proceedings may not have been understood by the litigant must touch on the fairness of those proceedings and of the consequent
trial.
The traditional guarantee for proper and adequate interpretation in court proceedings has always been,
9
and still is, the use of official trained interpreters, who are duly sworn to interpret properly and to the best of their abilities
on the basis of their proven competence in the languages they interpret in.
The applicant alleges that, though she had made an election upfront of the language in which she wanted to be tried, in the course
of the trial the third respondent allowed a witness to testify in a different language with which she was not fully conversant and
the proceedings were not properly interpreted to her. She calls into question the violation of her constitutional right to have the
proceedings interpreted when she says that she has been advised that the presiding officer "warbled and garbled" some interpretation
to her. The language challenge on review is therefore also a substantial one.
The question of language, particularly of black people in South Africa to follow proceedings in Afrikaans,
10
should never be lightly dismissed, given the notorious history of the country when that language was forced upon them by the previous
government. That step resulted in major frictions that polarised the country and sent some of the black students into exile where
they joined armies of the liberation organisations in countries where there was no Afrikaans. It is common knowledge that those armies
were subsequently integrated into the national defence force. In this context the question of black people's inability to follow
proceedings in that language must be handled with even more sensitivity within the military context, where this case arises
10.
The three grounds raised on review were each important
and had
potentially far reaching consequences. The Court of Military Appeals (fifth respondent) was called upon in considering the review
to consider and express itself by making factual and / or legal findings on each of these challenges.
11 11.
The grounds on which the applicant took the decision of the third respondent on appeal to the fifth respondent are in brief the following:
Against conviction 11.1 A misdirection by the court a quo on the law and on the facts; 11.2 Failure by the state to prove its case beyond reasonable doubt and the court a quo's failure to give the applicant the benefit of doubt; 11.3 The alleged illegality and unconstitutionality of the
detention of the applicant without just cause and in contravention of the applicant's right to freedom and security (sec 12(1)(a)
and (b) of the Constitution);
11.4
The failure by the court a quo, once the one assessor
had recused himself, to reconstitute itself with two assessors (one of whom had to be a warrant officer) in accordance with the election
made by the applicant in terms of section 24(a) of the Military Discipline Supplementary Measures Act, Act 16 of 1999;
Against sentence 12 11.5 The alleged failure to exercise discretion properly and judicially; and 11.6 That the sentence is unreasonably harsh and causes a sense of shock 12.
The grounds of appeal against sentence, i.e. (a) proper exercise of discretion in the sense of absence of misdirection and (b) appropriateness
of sentence, are two valid grounds on which a sentence may be validly challenged on appeal. The fifth respondent was therefore called
upon to consider and make a finding on these two principal grounds of appeal against sentence.
The applicant was equally entitled to a judgement on appeal against conviction on the grounds which she raised and relied upon. The
fifth respondent was called upon to consider those grounds of appeal and return a judgment thereon. Each ground of appeal, if upheld,
could have far reaching consequences on the case and therefore stood to be considered.
The decision and judgement of the fifth respondent on 07 July 2004 was given in one sentence which reads as follows: 13. 13 "07 July 2004 After perusal of the record of proceedings and after hearing counsel the Court is satisfied that the findings and sentence are in accordance with real and substantial justice and they are accordingly upheld. Sgd: Chairperson Sgd: Member 09/07/04 Sgd: Member" At the bottom the decision is signed by the presiding chairperson and two other members of the Court of Military Appeals. 14. Some remarks and observation about that decision and judgment are appropriate and called for: 14.1 The decision is dated 07 July 2004 and was presumably given on that date. 14.2 It would have been expected that the decision, if given in writing, would have been signed on the day on which it was given or at least before the day on which it was given. However one of the members (second 14
member) of the court of the fifth respondent signed the decision on 09 July 2004, which is different from and two days after the date
of the decision.
14.3
The dates on which the chairperson and the third
member signed the decision do not appear on the record of the decision. This in itself raises a number of questions which the record
of the decision before me is unable to answer:
14.3.1
Did the chairperson and the third member sign the decision on 07 July 2004, on 09 July 2004 or on another date?
14.3.2 Was the decision taken on the same date on which it was given or was it taken on one date and given on another?
14.3.3
When the decision was taken, were the members at one place or were they at different places?
14.3.4 Was the decision reduced to writing at the same time when it was taken or was it taken at one stage/date and reduced to writing
at another stage / date?
15 14.4 The record of the decision / judgment consists of two
pages, the covering page (which is not signed nor dated) and a second page (with the date 07 July 2004 on top) on which the decision
as quoted above (paragraph 13) appears in two and half lines.
14.5
The cover sheet does say that the hearing before the
fifth respondent was held on 07 July 2004. It however does not say who, if any, appeared for which party (appellant or respondent).
The cover sheet only refers to appearances before the third respondent and not before the fifth respondent.
14.6
It does not say whether this is the decision of the fifth
respondent on appeal, review, or on both. From the wording of the decision and the covering sheet it appears to be a decision on review.
This is however not decisive of the question. Depending on the nature of the jurisdiction of the fifth respondent, it could also
conceivably be a decision on appeal. I say so because some courts, such as the High court, also have wide inherent review jurisdiction
which they are entitled to
16 exercise and often in fact regularly exercise on appeal in matters before them. 14.7 It does not deal with nor comment on any of the
substantial grounds of review raised: the applicant is not informed in the judgment if and why any of the substantial grounds of review
she raised were dismissed. Nor does the judgment and decision do so with regard to the grounds of appeal raised.
One accepts that in certain jurisdictions the decision maker may not be required, and may even be excused, by statute from giving
reasons for his or her decision. However in any matter where real and substantial issues are raised, it is difficult to see how any
judgment fulfils its basic function without having reasons as part of it.
The reasons for a judgment are the essence of that judgment. It is the reasons, more than any order that follows a judgment, that
provides the cogency and persuasive force behind it; it is the reasons that
17
demystify the operation of the law and the role of the courts; it is the reasons that give a judgment what Mahomed C J, (in an address titled "The Independence of the Judiciary" delivered
to the International Commission of Jurists in Cape Town on 21 July 1998) described as "the real and ultimate power of the judiciary
(which) must lie in its independence and integrity and in the esteem which this generates within the minds and hearts of the people
affected by its judgments."
In a moving metaphor, Mahomed C J compared the esteem which well-reasoned judgments generate within the minds and hearts of litigants
to "the power of the purse or the army or the police (that helps them) to execute their will". However correct a judgment
may be it cannot communicate itself to "the minds and hearts" of the litigants without reasons which are its essence.
15. The respondents opposed the interim interdict before this court and raised the crisp point that the applicant chose to follow a 18 particular route and has exhausted all the remedies available within the military court structure and that having been heard by the fifth respondent she exhausted all available legal remedies to the full. The respondents contend in particular that the fifth respondent has considered the matter and decided thereon and that the decision of the fifth respondent, which is presided over by a judge as is compulsory in terms of section 7 the Military Discipline Supplementary Measures Act 16 of 1999, is not reviewable by the High Court. It is in essence the contention of the respondents that having been heard in an appeal and review by the fifth respondent, the applicant exhausted all her remedies and has no right to any further remedy or access to this High Court and that she accordingly has no prima facie right nor any right to an interdict at all. 16.
The respondents relied largely, and almost exclusively, on a remark by Maluleke J in Steyn v Minister of Defence, unreported case number A643/2003, which was handed down in this court on 05 May 2004. The respondents relied particularly on paragraph 13 on page 13 of that judgement where Maluleke J state:
19 "The Act creates a complete separate military court system and no appeal or review lies against the decision of the Court for Military Appeals. From the authorities referred to by Mr Mohlamonyane it is clear that the high court has at all times had the power of review and not appeal on decisions of military courts. See in this instance the decided cases of Union Government & Fisher v West 1918 AD 556; Van Duvker v District Court Martial and Others 1948 (4) SA 691 (AD); S v Van Tonder [1991] ZASCA 18; 1991 (3) SA 731 (A). A decision of a judge cannot be reviewed by another judge and cannot be taken on appeal to another judge or judges unless there are specific provisions in the Act or rules for such appeal. To declare otherwise would lead to absurdities as I have already referred to. " 17. Mr P J J De Jager S C, for the respondents, argues in his written heads of argument (paragraphs 8 and 9) that Steyn v Minister of Defence (supra) follows the Supreme Court of Appeals decision in Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA), that this court is bound by the decision in Steyn, and that once this has been established "there is not the faintest probability or possibility for the applicant to successfully bring a review application against the judgment of the fifth respondent." He argues further from this premise that if no such review exists and cannot be enforced 20
in this court, then "no interim interdict pending such procedure can ever establish a prima facie right (even open to some doubt)."
18.
If this were indeed so, the applicant's case would be
shut and
closed without a cause of action. I however do not agree with the premise of that argument, and, as I will demonstrate, this court
is not bound by the decision in the Steyn case.
19.
I shall revert later in this judgment to the decision in Pretoria Portland Cement case (supra). I first wish to focus attention to the Steyn case and the submission that it bound this court when it held that the High Court has no powers to review the decision of the fifth
respondent.
20.
Before I proceed to do so, if one takes a close look at the quotation of Maluleke J from the judgment in Steyn as quoted in paragraph 16 above, the learned judge makes three statements of principle, each of which I will touch upon and possibly comment
on in the course of this judgment. These are:
(a) No appeal or review lies against the decision of the Court of Military Appeals; 21 (b) The High Court has at all times had the power of review and not appeal on decisions of military courts; and
(c) A decision of a judge cannot be reviewed by another judge and cannot be taken on appeal to another judge or judges unless there
are specific provisions in the Act or rules for such appeal.
Power of High Court to review Court of Military Appeals (the decision in Stevn) 21. The application in the Steyn matter was specifically for a declaration of rights as to whether a decision of the Court of Military Appeals was appealable to the High Court, and if so, to which appeal court the appeal should be noted and the procedure that should be followed in prosecuting such appeal. The decision of the court on that specific question was that the decision of the Court of Military Appeals is final and not appealable. The question of reviewability of the decision of the Court of Military Appeals by the High Court was not before the court in the Steyn matter. The remark made by Maluleke J, as quoted above, is however clearly to the effect that the decisions of the Court of Military Appeals are not subject to appeal or review to the High 22 Court. The remark of Maluleke J with reference to review was therefore obiter as that question was not before that court. That remark therefore is not binding on this court . .. 22. The questions of appealability and reviewability of decisions are quite different issues which have to be determined on different principles. For instance, the right of appeal lies / exists where there is a specific provision for it, whereas the High Court has inherent power of review over the decisions and proceedings of other bodies even where there is no specific provision to that effect. As Maluleke J states in the passage relied upon by the respondents: "From the authorities referred to by Mr Mohlamonyane it is clear that the high court has at all times had the power of review and not appeal on (sic) decisions of the military courts. " 23. That there is no right of appeal that lies to the high court from the court of military judge and from the Court of Military Appeals was confirmed in the full bench decision of this court by Du Plessis J in the as yet unreported judgement in Power Mandla Mbambo v Minister of Defence (case number A1220/2002) which 23 was delivered on 22 September 2004 (see esp at pages 15-16). That is however not an issue in the proceedings before this court. 24. The present case, particularly the pending review in the main case, raises directly the specific questions (a) whether the High Court has jurisdiction to review the decision of the military court of first instance (in particular the Court of Senior Military Judge) after the Court of Military Appeals has confirmed the proceedings, and (b) whether this court has the power to review the proceedings of the Court of Military Appeals. None of these questions were in issue in the Steyn case. The Steyn case can therefore not be binding authority for deciding them. Both these questions were raised but were specifically left open by the full bench in the Power Mandla Mbambo case (supra) (at page 16 and 19 respectively). 25.
That these questions, which arise in this case, were left open and have not been decided before, should indicate the need for them
to be considered and decided in the interest of legal certainty. It should, at the very least, illustrate that it cannot be said,
as counsel for the respondents would contend, that the applicant's case is shut and closed in that she has no prima facie right
24 because this court has no powers to entertain the review remedy she seeks in the main application. 26. As Herbstein & Van Winsen: The Civil Practice of The Supreme Court of South Africa (now the High Courts and Supreme Court of Appeals), 4th edition by Van Winsen, Cilliers & Loots, state at 938: "Subject to statutory limitation or modification in a particular case, a superior court has an inherent right to review the proceedings of any body or tribunal on which statutory duties are imposed, without the necessity of any special machinery of review created by legislature. This form of review has consequently been termed 'review under the common law'. The mere creation of a statutory right of review or appeal does not oust the court's inherent jurisdiction to review unless it is excluded expressly or by necessary implication. " See also the cases referred to in footnote 85 on page 938 of Herbstein & Van Winsen. 27. It seems to me therefore that while the power to entertain an appeal exists only where there is a specific provision for it, the inherent power of the High Court to review decisions and 25
proceedings of the lower courts and other bodies exists unless it has been excluded expressly or by necessary implication. I am not
aware of, and have not been referred to, any specific provisions in law that excludes the review powers of the High Court over the
proceedings of the military courts including those of the Court of Military Appeals (fifth respondent).
28.
On the contrary, in terms of section 2(c) of the Military Discipline Supplementary Measures Act 16 of 1999 (which Act creates the
structure of the military courts), one of the objects of the Act is:
" ... to ensure a fair military trial and the accused's access to the High Court of South Africa. " 29.
In the light of the stated object of the Act to ensure not only fair military trial but also the accused's access to the High Court, any provision to exclude such access and the jurisdiction of the High Court, especially its age old inherent power of review, will
need to be clear and explicit.
Judge not subject to review (the Pretoria Portland Cement case) 26 30.
Mr P J J De Jager SC argued for the respondents, on an even broader basis, that because the chairperson of the fifth respondent, who
presided over the decision (second decision), which the applicant seeks to have reviewed, is a judge of the High Court, then the
decision of the fifth respondent cannot be reviewed. This in a sense also echoes the third of the three statements of principle I distilled (in paragraph 20 above) from the statement of Maluleke J in the Steyn case (supra) which is set out in paragraph 16 above. Mr De Jager SC submitted on behalf of the respondents that it is trite law that a judge cannot be taken on review, whether he sits as a judge of the High Court or otherwise. The respondents relied for this proposition on Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003(2) SA 385 at 406 para 35 et seq. Reliance was also placed in this regard on Union Government & Fisher v West (supra), Van Duyker v District Court Marshall and Others (supra) and S v Van Tonder (supra) all of which were referred to by Maluleke J in the passage quoted above from Steyn v Minister of Defence (supra).
31.
I have had a look at and considered the decisions referred to by the respondents. None of them is close enough to the issue as the
27
decision in Pretoria Portland Cement (supra) which may be regarded as the locus classicus on the point. It is thus instructive to take a closer look at the latter case.
32.
The decision / appeal in the Pretoria Portland Cement case concerned the validity of a search and seizure operation conducted under the authority of a search warrant issued under section 46 of the Competition Act 89 of 1998. The search was conducted at the premises of first and second appellants by the Competition Commission established in terms of the
said Act. The order under which the warrant was issued had been granted ex parte and in camera by Spoelstra J.
The order was signed by the registrar and in signing the warrant Spoelstra J described himself as Judge sitting in Chambers. The appellants
felt aggrieved and sought a reversal of the decision authorising the warrant, making an application in terms of section 25(1) of
the Supreme Court Act 59 of 1959 for leave to join Spoelstra J as respondent in the proceedings. Counsel for the appellants (applicants
in the court a quo) contended that review proceedings were appropriate as the court had performed an administrative function and not a judicial function
in authorising
28
the warrant. In refusing leave, Roux J, in the judgment of the court a quo (later reported at 2003(2) SA 381 (T)), held that as a matter of law Spoelstra J had acted as a Judge and not in administrative capacity.
On appeal to the SCA the question of the capacity in which Spoelstra J had acted was argued further as a point in limine, raised by the appellants who argued that he had acted administratively and should therefore have been joined. Schultz JA, writing
the unanimous decision of the SCA, held that the fact that the application made to Spoelstra J was heard ex parte and in camera did not necessarily detract from the requirement of openness (which characterises court hearings) because in exceptional cases judges
do hear matters on this basis (para [23] at 398J-399A). It was further held that there was no need to have joined Spoelstra J in the proceedings and the point in limine was dismissed.
Although there was uncertainty (on appeal) as to whether Spoelstra J acted in a judicial capacity (he not only issued the order but
also signed the warrant as "Judge sitting in Chambers"), it is fairly clear in my view that in hearing and deciding the
matter ex parte and in chambers, he acted as a Judge of the High Court and exercised
29
powers vested in him as such. The application which he initially heard ex parte in chambers subsequently served before other judges in an open court, which hearings are to be regarded as part of the same case.
The matter in Pretoria Portland Cement case therefore concerned the action of a Judge sitting in his chambers at the seat of the High Court hearing an ex parte application in a case registered in the High Court. It is, in my view the clear authority of Pretoria Portland Cement (PPC) that a Judge acting in those circumstances acts as a Judge of the High Court and is not reviewable. His or her decision may only be
corrected by other means including appeal but certainly not by review proceedings.
It is clear from the reading of the judgement in PPC that where reference is made to the decision of a Judge not being subject to review, reference is in fact to a Judge of the High Court
acting as a judge of the high court. In that context the decision of a Judge is not subject to review - this quite clearly refers
to instances where the words "Judge" and "High Court" are used in an interchangeable sense where they mean one
and the same thing. A good example of such use of the words is employed by Schultz JA
30 in paragraph [35] of the judgement in the PPC (at 402B-C) where, putting the principle quite clearly, he states: "And throughout it has been the High Court, and only the High Court, acting through its Judges, which has enjoyed the general, inherent jurisdiction to entertain reviews. It is not itself the subject of review - see cases cited in para [29]. There are other means, quite sufficient means, to which I shall come, by which the judgment of a Judge may be corrected. "(Emphasis supplied)
See also Ex parte Scott (1909) 26 SC 520, Gentiruco AG v Firestone SA (Pty) Ltd1972 (1) SA 589 (A) at 600E-603H especially at 601 E-F.
33.
The principle is also stated clearly by Rose Innes: Judicial Review of Administrative Tribunals in South Africa at 11 when he
says:
"There is no procedure, other than in the form of an appeal, whereby the proceedings of a Supreme Court (now High Court) may be brought on review. There is no right of review from the decision of of a Judge of the Supreme Court, either by statute or at
common law. " (Emphasis supplied).
31 34.
There is in my view much to be said for the view that reference to non-reviewability of the decision of a Judge is in fact reference
to a judge of the High Court exercising his judicial function as such. There are good reasons, some referred to in the PPC case, for the decision of a Judge of the High Court exercising his judicial authority as such, not to be subject to review.
35.
Where a Judge however sits or acts in other and separate capacity than in the exercise of judicial authority as a Judge of the High
Court, his or her decision may well be subject to review. A good example referred to in the PPC case is where a Judge of the High Court sits a chairperson of a Commission of Inquiry (See para [41] at 403F/G-G and also [28] at 400). Another example could be where a Judge (which includes a retired Judge) sits as an arbitrator,
presides over a tribunal or as a chairperson of a statutory board (such as the Legal Aid Board) or as trustee of a non-governmental
organisation where he clearly does not exercise his or her judicial powers as Judge of the High Court. The question of non-reviewability
of a Judge where he or she acts in these other capacities, other than in the exercise of judicial authority as Judge of the High
Court which is the purpose for which he was appointed as judge, has not been clearly established
32
in our law. There may indeed well be good reasons in some of those cases for the "Judge" to be reviewable. When and if that should be done, it will not be a review of the proceedings or decision
of the High Court.
36.
In the general sense in which the point was argued on behalf of the respondents, that the decision of a Judge cannot be reviewed,
regardless of the capacity in which he or she acts, that point cannot be sustained and is dismissed. It cannot be the correct statement
of principle of the law that the decision of a body presided over by a Judge, is not reviewable by the High Court regardless of the
capacity in which the judge presided over such body or took the decision in question.
37.
At the very least for the applicant in casu therefore it has not been established as a cut and clear principle in our law that the decision of the fifth respondent (and that
of the third respondent after being upheld by the fifth respondent) is not reviewable. Those questions which her case raises directly
have not been decided by this court. They have been raised and left open by the full bench of this division. They need to be considered
and
decided as her case raise them directly. Her case, for the 33
consideration of the point which arises therein is, in the very least open to argument or arguable. There is a clear cause in her
review application that needs to be decided and which her case raises. I need not decide finally, for the purposes of the present
application for interim relief, the question(s) of law which arises in the main review application. It is sufficient if I hold the
prima facie view, as I do, that she has a prima facie right on the probabilities (even though open to some doubt or argument) for her in order to succeed with an interim interdict. The
view I express in this regard does not bind nor purport to bind the hands of the review court in considering fully the question of
law raised.
38.
The test in this regard has been authoritatively first laid and developed through case law over the years starting with the wellknown
matter of Setlogelo v Setlogelo 1914 AD 221 at 227. It is an absolute requirement (inter alia) to prove a prima facie right on probabilities (even open to some doubt) for an applicant to succeed with an interim interdict.
In the judgment of Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 Clayden J defined this requirement as follows: 39. 34
" the right to be set up by an applicant for a temporary interdict need no be shown by a balance of probabilities. If it is prima facie established though open to some doubt that is enough."
40.
This broad statement is still the law. It has been qualified amongst others by the judgment of Ogilvie Thompson J in Gool v Minister of Justice 1955(2) SA 682 (C) at 688 where the learned judge finds as follows:
"With the greatest respect, I am of the opinion that the criterion prescribed in this statement for the first branch of the enquiry
thus far outlined is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on the applicant's
own averred or admitted facts is: Should (not could) the applicant on those facts obtain final relief at the trial. Subject to that
qualification, I respectfully agree that the approach outlined in Webster v Mitchell .... is the correct approach for ordinary interdict applications. " 41. The correct test was however correctly and hopefully now finally been expressed even more correctly by Goldstein J in Toney Rahme Marketing Agencies v Greater Johannesburg Transitional Metropolitan council 1997 (4) SA 213 (WLD) at 215C-216C where he writes: 35 "The applicants seek two interim interdicts pending the determination of review proceedings they intend instituting against the respondent. No answering affidavit has been filed, the respondent arguing that the application ought to be dismissed for reasons of fact and law. Before I address the issues I have to decide, it is necessary to refer to the difference of approach in our case law regarding the test I have to apply to disputes of law. Of course the principles to be applied to disputes regarding interim interdicts have long ago been authoritatively laid down in such cases as Webster v Mitchell 1948 1 SA 1186 W; Ndauti v Kgami and Others 1957 (2) SA 27 (W) at 36-7 and Olvmpic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D). Are such principles to apply only in respect of factual and not in respect of legal disputes? In Mariam v Minister of Interior and Another 1959 (1) SA 213 (T) Roper JA (as he then was) simply applied Webster to a matter involving disputed legal issues. Viljoen J (as he then was) criticised this approach in Fourie v Olivier en Ander 1971 (3) SA 274 (T). The decision in Webster was intended, he said
at 285, to apply to factual disputes and not legal ones. In the case of the former a final decision would be premature but not
in the case of the latter. In such a case the court was obliged to give a decision and conclude the matter finally. Viljoen J went
to say the following at 285F-H:
'Die Regter wat 'n aansoek om 'n interdik pedente lite verhoor wat afgemaak kan word deur 'n regsbeslissing is myns insiens nie geregtig om te s
dat hy die regsvraag halfhartig gaan benader en dit aan sy ampsbroer wat die verhoor waarneem
36
gaan oorlaat om die saak behoorlik te oorweeg en finaal te beslis nie. Dit sou strydig wees met die beginsels in ons reg ten aansien van res judicata, dit sou onnodig koste veroorsaak en dit sou die onsuksesvolle party in die pedente lite aansoek die reg van app
l onts
terwyl die uitleg van die regter op daardie stadium aan die regsvraag heg, hoewel dit miskien nie bedoel is om die Verhoorregter te bind nie, hom in n groot verleentheid kan stel as hy voel dat hy met die eersgenoemde Regter wil verskil. In die hierargie van Howe staan die Verhoorhof nie ho
r as die Kamerhof waar die aansoek van die interdik aanhangig gemaak word nie. Dit is albei een-Regter-Howe wat oor dieselfde aangeleentheid moet beslis. '
With respect I differ from the learned Judge. Whilst there may be situations where a Court having to decide an interim interdict,
has sufficient time and assistance to arrive at a final view on a disputed legal point - in which event it probably has to express a strong view in order to save costs - situations of urgency arise when decisions on legal issues have to be made without the judicial officer concerned having had the time
to arrive at a final considered view. In such a situation he is surely forced to express only a prima facie view. I cannot see how the expression of such a view and the grant of interim relief would conflict with principles of res judicata. I also see no embarrassment in an urgent Court Judge being overridden by a trial Judge. Each of us, privileged to hold this high and
responsible office, owe, in the wielding of our considerable power, a duty only to truth and justice. The interlocutory decisions
of Colleagues, and indeed of our own, are not binding 37 at later stages of proceedings and should, and 1 trust, do yield easily to persuasive arguments indicating error or oversight. " 42.
I am in full agreement with the remarks of Goldstein J as set out above. Quite clearly in my view it is not an issue of the hierarchy of the courts and which of the two courts (interim or final relief court) has the power
to bind the other. It is a matter of the two courts fulfilling different functions in the exercise of their judicial powers. The
court of final relief is seized with the full matter and is called upon to decide the issue finally. On the other hand the court
that considers interim relief only has to decide the issues preliminarily and on the basis of the existence or non-existence of a
prima facie right. The court of interim relief is specifically not called upon to decide the issues on a final basis. The latter court often has
to decide the issues on an urgent basis and without the benefit of a comprehensive ventilation thereof, as is the case in the present
case, where the court has before it only the founding papers in the main review application without the answering and
replying papers which are still to be filed. It would in my respectful view be indeed unwise for an urgent court seized with the matter
in this way to try and consider the matter finally unless the legal issue or dispute is not really an issue in the sense that the
38 applicant clearly has no basis on which to approach the court for the remedy he/she or it seeks. As long as there is an issue, though disputed or doubtful, then there is a prima facie right and it is only wise to let the final relief court to determine the issues finally after full ventilation thereof, provided all the other requirements for the granting of the interim interdict are satisfied. There can be no basis of the principles of res judicata applying to the decision of the court that considered only the interim relief in such a case. 43. I am satisfied that the applicant has a prima facie right for the interim interdict which she seeks. The balances of the requirements for the grant of an interim interdict are satisfied and are not in issue in this case. 44. The applicant has therefore made out a case on a balance of probabilities for the relief that she seeks. 45. I therefore grant prayers 1,2 and 3 of the notice of motion. PM MOJAPELO JUDGE OF HIGH COURT 39 Counsel for Applicant: Mr Venter Attorneys for Applicant: K P Seabi & Associates Pretoria 012 325 7028/9 Counsel for Respondents: Mr P J J G de Jager SC Attorneys for Respondents: The State Attorney Pretoria 012 328 5512 Date of Hearing: 11 November 2004 |