Director of Public Prosecutions, Transkei v Nkalweni NO and Another

• Jurisdiction: South Africa
• Judge: Petse ADJP
• Judgment Date: 24 December 2008
• Docket Number: 1993/2008
• Hearing Date: 22 December 2008
• Counsel: MW Siyo for the applicant. No appearance for the first respondent. TR Qina (attorney) for the second respondent.
• Court: Transkei High Court

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 H 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 30 December 2008, at 10:00, or so soon thereafter as counsel may be heard, why an order in the following terms should not be granted:

2.1

I Setting aside the decision by the first respondent on 1 2 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 J case against her now pending before court.

Petse ADJP

2.3

Such further and/or alternative relief be granted as this honourable A court may deem fit.

2.4

Directing 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 B 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 C 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 2 2 December 2008, when the points in limine taken by the second respondent were argued. D

[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 E 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:

(a)

That the second respondent was not served with the application F papers as required by the rules, but that papers were merely delivered to her erstwhile legal representative whose mandate was terminated on 12 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 December 2008. G

(b)

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

(c)

That service of the papers on the second respondent was effected by H 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.

(d)

That the certificate of urgency is defective and does not comply with I the practice manual of this court, in that it does not itself set out the grounds of urgency.

(e)

That there are no specific paragraphs whatsoever in the founding affidavit and the confirmatory affidavit which deal specifically with urgency as required by the practice manual, given that the paragraphs referred to in the certificate of urgency do not deal with the J

Petse ADJP

A 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 B respondent was represented by Mr TR 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.

C [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 of 23 December D 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.

E [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.

F [13] Before the commencement of argument I enquired from both counsel as to whether there would be any virtue...