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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 38322/2019

In the matter between:
THINA BAMBENI	Applicant
and
AMOKELANI MSIMEKI	First Respondent
MERVYN HYMAN CIROTA	Second Respondent

 

JUDGMENT

MATOJANE J

[1] The applicant brought an urgent application on the 7 September 2019 in which she sought the following relief:

1.1 An order interdicting the first respondent, a magistrate, from carrying out a function prescribed by law as a duly appointed judicial officer;

1.2 A declaratory order that her application pending before the first respondent be heard by a different magistrate other than the first respondent

1.3 An order that the first respondent’s refusal of the applicant’s recusal application be reviewed and set aside.

[2] The only relief sought against the second respondent is an order directing the second respondent to pay the costs of the application on a punitive scale.

[3] The application was filed on Thursday, 31 October 2019. The respondents were called upon to file answering affidavits by 17h00 on Tuesday, 5 November 2019. The application was to be heard on 7 November 2019.

[4] After hearing the matter, I decided that the matter was not urgent, bad in law, and an abuse of the court process. I dismissed the application with costs. The applicant has requested me to furnish the reasons for my decision. These are my reasons.

Background

[5] The applicant is a councillor for the City of Ekurhuleni Metropolitan Municipality and a member of the Democratic Alliance political party (the ‘DA’). She is also an admitted attorney. On 24 July 2018, the applicant lodged an internal complaint of sexual harassment against a fellow Ekurhuleni councillor. The DA investigated the sexual harassment allegations and found that the applicant had lied, exaggerated or misled in her evidence under oath. Misconduct proceedings were brought against the applicant, which resulted in the applicant being suspended from the DA’s Ekurhuleni Caucus.

[6] The applicant has launched a separate application in this Court to review her suspension from the caucus. This application is pending. The applicant has launched various other proceedings against the DA in this Court and in the lower courts. It is not necessary to address those proceedings.

[7] In or around February 2019, the applicant brought an application for a protection order against the second respondent in the Kempton Park Magistrate’s Court. The second respondent is the Chairperson of the DA’s Gauteng Provincial Disciplinary Committee; he also represents the DA in the Provincial Legislature.

[8] On 19 July 2019, the applicant was charged internally by the DA with a separate disciplinary offence. On 13 August 2019, the applicant brought an urgent application seeking, amongst others, an interdict against the DA from conducting the disciplinary proceedings against her and uplifting her suspension from the DA Ekurhuleni Caucus. An interim order was granted in the applicant’s favour, and the matter is pending.

[9] On 17 October 2019, the applicant launched another urgent application seeking the imprisonment of individual officers of the DA without joining any of them in the application. The application is opposed by the DA and is also pending.

The events relevant to the present application

[10] On 29 July 2019, the applicant brought an application for the recusal of the first respondent, alleging that the respondent has not ruled in her favour in two previous applications. She argued that the first respondent might be biased against her. The application for recusal was refused, and the applicant proceeded to argue her application for the protection order. The matter did not conclude on that day and was postponed to 27 August 2019. All that was remaining was for the applicant to conclude her replying argument and for the first respondent to give judgment.

[11] On 27 August 2019, instead of concluding her replying argument, the applicant brought an application for the transfer of the matter to another court in terms of s 35 of the Magistrates’ Court Act 32 of 1944. The matter was postponed sine die to allow the respondents to file their opposing papers. The first respondent made an order that the applicant approach the court for a hearing date.

[12] The applicant enrolled the section 35 interlocutory application for hearing before the first respondent on 30 October 2019. She alleges that the first respondent refused to hear her matter and stormed out of the courtroom in the middle of her leading facts stating that the matter was placed correctly before the first respondent and was accordingly ripe for hearing. The applicant states that the clerk of court informed her that the first respondent was refusing to hear her matter that day, because she did not approach the first respondent to check her availability to preside over the matter on that day.

[13] The duty magistrate in the protection order court, Magistrate Maharaj, informed the parties that the applicant’s s 35 application was not on the roll, and that the first respondent would be available to hear the matter on 18 November 2019. The applicant informed Magistrate Maharaj that she did not agree to a postponement and demanded that the matter be heard by the first respondent on that day.

[14] The first respondent entered the court later and proceeded to deal with the issue surrounding the enrolment of the matter. According to the second respondent, the interaction between the applicant and the first respondent was immediately confrontational and hostile. The applicant was argumentative, aggressive and disrespectful. The first respondent then left the courtroom.

[15] The record shows that the matter is part-heard and was postponed sine die on 23 August 2019, with an order that applicant approaches the court for a new date. On her version, the applicant proceeded to set the matter down without first agreeing on a date with the first respondent. Contrary to the applicant’s averments, the matter was not properly before the first respondent, and the only inference that can be drawn in the circumstances is that the applicant behaved in the manner alleged by the second respondent, which led to the first respondent walking out of the courtroom.

The first issue – notice and urgency

[16] Rule 6(12) of the Uniform Rules of Court regulates urgent applications, and it provides:

(a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.

(b) 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.

[17] An applicant is not entitled to select any day of the week and time to demand a hearing. The question in such applications is whether there must be a departure at all from the times prescribed in Rule 6 (5)(b). In the case of Luna Meubel Vervaardigers (Edms) Bpk v Makin[1] it was held that:

‘Practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules and of the ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirements of Rule 6(12)(b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.’

[18] Since the applicant objected to Magistrate Maharaj postponing the s 35 application to 18 November 2019, the matter is still pending until it is correctly enrolled for hearing by the applicant.

[19] The applicant claims that the circumstances which rendered this application urgent was ‘the joint and collaborative efforts of the first and second respondents’. She makes bald allegations that there is a ‘relationship of undue influence and collusion happening between the first and second respondents in how the first respondent has presided over the matter’.

[20] Both counsel for the respondents argued that the applicant’s drastic departure from the Uniform Rules of Court was not justified in the circumstances of the matter. They further contended that the applicant had dismally failed to set forth explicitly the circumstances which she avers renders the matter urgent; and why she could not be afforded substantial redress at a hearing in due course.

[21] I fully agree with both counsel for the first and second respondents that the enrolment of this matter on the urgent roll was unwarranted. The baseless allegations against the respondents do not justify setting down the hearing at a time other than 10h00 on the Tuesday of a motion court week as required in terms of the Practice Directive of this Division.

[22] The applicant has abused the process of this Court by improperly affording the respondents three days to file answering affidavits and bringing the application on 7 November 2019 as an urgent application when the matter was not urgent.

The second issue – non-joinder

[23] The applicant seeks an order preventing the first respondent, a judicial officer, in her personal capacity, from discharging a statutory and constitutional function. If this relief is granted, the decision will impact materially, directly and adversely on the administration of justice, in particular the running of the courts. The Chief Magistrate of Kempton Park and the Minister of Justice and Constitutional Development have a legal interest in the finding of this Court and accordingly, the failure by the applicant to join these parties to the application amounts to a material non-joiner which renders the application defective.

The third issue – the order sought is incompetent

[24] The applicant seeks an order that the refusal by the first respondent to recuse herself from presiding over her protection order application be reviewed and set aside. She also seeks an order interdicting the first respondent from presiding over all matters related to the protection order until the matter is decided on review. The relief sought by the applicant is misdirected, as the refusal of the recusal application is a final order which can only be reconsidered on appeal.

[25] The above sums up the reason for the order granted on the 7 November 2019.

 

_____________________________

K E MATOJANE

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Date of hearing: 7 November 2019

Date of order: 7 November 2019

Date of judgment: 11 November 2019

Appearances:

Counsel for the Applicant: In person

Instructing Attorneys for the 1^st Respondent: State Attorney

Instructing Attorneys for the 2^nd respondent: Minde Shapiro and Smith Inc

 

[1] Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makins Furniture Manufacturers) 1977 (4) SA 135 (W) at 137 E-F.

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