Jin Sweet Supermarket CC v The Miniter of SAPS NO.
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | RD Hendricks DJP |
| Judgment Date | 09 January 2020 |
| Docket Number | UM 228/2019 |
| Hearing Date | 06 January 2020 |
| Court | North West High Court, Mafikeng |
| Citation | 2021 JDR 1413 (NWM) |
Hendricks DJP:
Jin Sweet Supermarket CC (the applicant) is a close corporation conducting business of selling sweets and other items to the public from its premises situated at 168 Market Street, Vryburg. On 04th December 2019 Warrant Officer Moorcroft accompanied by other police officers and two civilians, conducted a search at the applicant's premises and confiscated seventeen (17) boxes of what is alleged to be counterfeit cigarettes to the value of R115 600.00. Mr. Qinrong Yu was taken to the Vryburg Police Station but was released without any explanation. The following day Warrant Officer Moorcroft returned to the applicant's premises and instructed Mr. Yu to accompany him to the police station. Mr. Yu's attorney also went to the police station. Mr. Yu was released at the police station on R3000.00 bail and warned to attend court on 09th December
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2019. On 09th December 2019 the prosecutor did not place the matter on the court roll.
Mr. Yu's attorney requested that the cigarettes be returned to Mr. Yu seeing that no criminal prosecution was instituted. The investigating officer promised to revert to him after seeking legal advice and consent for the return of the cigarettes. This did not happen. The applicant launched an urgent application on the 11th December 2019 which was set down for 20th December 2019 seeking an order declaring the search and seizure invalid and ordering the return and restore of possession of the cigarettes to the applicant. On 20th December 2019 the matter was postponed until 06th January 2020 for the filing of an answering affidavit by the respondents. This was by consent between the parties and it was also ordered that the first respondent should pay the wasted costs occasioned by the postponement. The matter appeared before this Court on 06th January 2020. Arguments were presented by counsel on behalf of both parties and judgment was reserved.
Most of the facts in this matter are either common cause or not seriously disputed. The respondents submitted that this matter lack urgency and that the applicant dragged its feet to bring this matter to court. There was a time lapse of sixteen (16) days from 04th to 20th December 2019. The applicant contended that there were bona fide negotiations between its attorney and the investigating officer and such negotiations does not in any way negate the urgency. Furthermore, this is a spoliation application which is by its very nature urgent.
There are different degrees of urgency. Rule 6 (12) of the Uniform Rules of Court (the Rules) provide for a court to deviate from the specified time limits provided for in the Rules, on good cause shown.
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In South African Airways SOC v BDFM Publishers (Pty) Ltd & 2 Others 2016 (2) SA 561 (GJ) at paragraphs [24] and [26] the following is stated:
… When a litigant contemplates any application in which it is thought necessary to truncate the times for service in the Rules of Court, care must be taken to use all reasonable steps to mitigate such truncation. In a matter in which less than a day's notice is thought to be justifiable, the would-be applicant's attorney must take all reasonable steps to ameliorate the effect thereof on the would-be respondents. The taking of all reasonable steps is not a collegial courtesy, it is a mandatory professional responsibility that is central to the condonation necessary to truncate the times for service. When there is the prospect of a hearing before a judge after business hours, and even more so, when there is the prospect of the hearing taking place elsewhere than in a courthouse, the duty to take reasonable steps is ever more important and imperative.
In my view it is incumbent on the attorney of any person who contemplates an urgent application on less than 24 hours' notice, to undertake the following default actions in fulfilment of the duty to ensure effective service:
At once the respondents are properly identified, the names and contact details, i.e. phone, cell, email, fax, and physical addresses of persons who have the authority to address the application must be ascertained. Obviously, if the issue has already been the subject of debate between the parties and an attorney has already
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been retained by a respondent, such attorneys contact details will top the list.
At the earliest moment after deciding to bring an urgent application, contact must be made to demand compliance with the relief to be sought and to alert one or more of such persons of the intention to bring an application, stating where it is likely to be heard, when it likely to served, and the identity of the judge on urgent duty. Agreement should be reached about who should receive service on behalf of the respondent by email or fax or other method.
Next, the urgent judge shall be alerted, and a report made whether or not the respondents have been alerted.
When the papers are ready for service, direct contact shall again be made with the persons dealing with the matter on behalf of the respondent. Where delays occur, the respondents must be kept informed by interim calls to report progress.
Sufficient time must be allowed for the respondents to read and digest the papers. It is appropriate to...
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