Mlunguza v Smit
| Jurisdiction | South Africa |
| Judge | Erasmus J, Le Grange J |
| Judgment Date | 12 February 2009 |
| Citation | 2009 JDR 0093 (C) |
| Docket Number | 15721/2007 |
| Court | Cape Provincial Division |
HJ Erasmus J:
Introduction
[1] The applicant was convicted and sentenced by the respondent, in his capacity as senior military judge presiding over a senior military court, on seven counts pertaining to absence without leave and disobeying lawful commands.
[2] The decision was in terms of sections 25 and 34(3) of the Military Disciplinary Supplementary Measures Act 16 of 1999 ("the MDSM Act") reviewed by a review counsel who recommended that the findings in respect of counts 1, 5, 6 and 7 be upheld and that the findings in respect of counts 2 and 4 be set aside.
[3] The applicant applied in terms of section 34(5) of the MDSM Act that the matter be reviewed by the Court of Military Appeals. On 11 October 2007 this Court, chaired by Ngoepe JP, found:
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After perusal of the record and hearing argument by counsel for defence and prosecution, this court is satisfied that the findings on charges 1, 3, 5, 6 and 7 are in accordance with real and substantial justice and they are accordingly upheld.
The findings in respect of charges 2 and 4 are not in accordance with justice and are accordingly not upheld.
In respect of sentence, the Court was "of the opinion that the sentence imposed by the court a quo was lenient and not shockingly inappropriate". The Court corrected the wording of the sentence to read as follows:
Reduction in seniority in rank with forfeiture of rank and seniority in his corps and in the South African Navy as if his appointment as Leading Seaman was dated 15 August 2005; and detention for a period of 270 days and reduction to the ranks. The whole period of detention and reduction to the ranks are suspended for a period of three years on condition that the accused is not convicted of committing Sections 13, 14(a), 19(1) Or 19(2) MDC within the period of suspension.
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The course of the proceedings
[4] On 2 November 2007 the applicant launched the current review application. In the Notice of Motion, the following relief is sought:
Reviewing and setting aside the decision of the Respondent of convicting Applicant on charges set in annexure "A" taken on or about 15 August 2005.
Directing the Respondent to disclose to the Applicant the reason for the decision referred to in prayer 1, supra;
Directing the Respondent to take all necessary steps to ensure that he reconsiders his decision.
Directing the Respondent to pay costs of this application in case he opposed it.
The applicant, who is now a qualified attorney, acted for himself throughout the proceedings. When the incompatibility of the prayers was pointed out to him, the applicant indicated that he would abandon prayers 2 and 3.
[5] The course of the proceedings after launch was beset by oversight and error. The Notice of Opposition, dated 23 November 2007, though duly served on the same day at the applicant's appointed address for receipt of process, was in error filed at the Labour Court. This necessitated an interlocutory application for condonation. The founding affidavit in the interlocutory proceedings was deposed to by Ms Mantame, the respondent's attorney.
[6] On 18 December 2007 in terms of a Notice in Terms of Rule 53(1)(b) (the Notice bears the date 14 December 2008), addressed to the Registrar and the applicant, the respondent despatched the record of the proceedings sought to be set aside to the Registrar of this Court. The despatch of the record at that date is
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confirmed in the founding affidavit of respondent's attorney in the interlocutory proceedings adverted to in the preceding paragraph.
[7] In a letter dated 11 April 2008 the applicant acknowledges that he received the Notice in Terms of Rule 53(1)(b), but complains that he had not received the record and that the record was not to be found in the Registrar's office. In the letter, the applicant accordingly demands proof that the record had been despatched, and also, under threat of an urgent application, that it be dispatched "again as they are not in the court file". He further demands that the respondent uplift his answering affidavit filed on 10 April 2008 –
as it is premature because I have not yet received the records which will determine whether I amend my Notice of Motion and supplement my [founding] affidavit.
[8] The applicant's demands are misconceived. The respondent complied with Rule 53(1)(b) by despatching the record to the Registrar. The Registrar must thereupon make the record available to the applicant. If the record is not to be found in the Registrar's office, the respondent cannot be held responsible, and despatch of a further copy by the applicant cannot simply be demanded as of right. It is, moreover, not clear why the applicant complained only on 11 April 2008 that he had not received a copy of the record: the applicant acknowledges receipt of the Notice in Terms of Rule 53(1)(b) dated 14 December 2007 that the record was despatched to the Registrar.
[9] On 3 June 2008 the applicant delivered a supplementary affidavit in which he raises additional grounds of review; that is, additional to the grounds raised in the founding affidavit. When taken to task on the first day of hearing for filing the supplementary affidavit without the leave of the Court, the applicant relied on Rule 53(4) which provides as follows:
The applicant may within ten days after the registrar has made the record available to him, by delivery of a notice accompanying the affidavit, amend,
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add to or vary the terms of the notice of motion and supplement the supporting affidavit.
In terms of the sub-rule, the applicant was entitled to amend, add to or vary the terms of the notice of motion and supplement his founding affidavit without the consent of the respondent or the leave of the court. [1] An applicant's right to deliver such an affidavit is not unqualified: the affidavit must be delivered within ten days after the record has been made available to the applicant. The respondent despatched the record to the Registrar on 18 December; the applicant acknowledges receipt of the Notice recording the despatch of the record. In the normal course, in accordance with the assumption that official acts are presumed to have been duly performed until proof to the contrary be adduced (omnia preasumuntur rite esse acta donec prohibetur in contrarium), the Registrar will deliver the record to the applicant upon receipt thereof in his office. Delivery of the supplementary affidavit six months after the record was delivered to the Registrar may be due to either (i) failure on the part of the Registrar to make the record available to the applicant, or (ii) failure on the part of the applicant to deliver the supplementary affidavit within the period prescribed in Rule 53(4). In either event, an explanation had to be placed before the Court and, in the case of failure on the part of the applicant to deliver the affidavit with the period prescribed in the Rule, condonation for the late delivery of the affidavit had to be obtained. Despite the absence of (at least) an explanatory affidavit, we received the applicant's supplementary affidavit as an affidavit properly filed under the provisions of Rule 53(4).
[10] The demand in the applicant's letter of 11 April 2008 that the respondent uplift his answering affidavit filed on 10 April 2008 is misconceived. The respondent, having complied with Rule 53(1)(b) in December 2007, was by April 2008 entitled to accept that no additions or amendments under Rule 53(4) would be forthcoming. A respondent cannot be expected to await an applicant's further affidavit under Rule 53(4) for an indefinite period. If in fact the record was not available in the offices of the Registrar, a much earlier indication from the applicant (who had knowledge of the Notice that the record had been despatched to the registrar in December 2007) that the
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record was not available would have contributed to a more orderly and more expeditious course of events.
[11] Prior to the hearing on 28 November 2008, the respondent, by notice dated 11 November 2008, brought an application for leave to file a further answering affidavit in response to the applicant's supplementary affidavit. We granted the application but afforded the applicant the opportunity to deal with such further answering affidavit in a further replying affidavit.
[12] In the supplementary affidavit, the applicant raises a number of grounds of review not raised in the founding affidavit. Upon closer examination, it becomes clear that in the supplementary affidavit no ground of review is raised of which the applicant was unaware at the time of the launch of the application. In other words, in the supplementary affidavit, no ground of review is raised, the existence of which only came to the knowledge of the applicant when he gained access to the record. This is apparent from what the applicant states in the founding affidavit. In paragraph 13 of his founding affidavit, the applicant says:
In order not to prolix (sic) the documents before this court I will refer this honourable court to my head of arguments (sic) attached as annexure "D" and "E" as the grounds for my application for setting aside conviction on charges one, three, five and seven.
Annexure "D" and "E" are the applicant's heads of argument in the proceedings before the Court of Military Appeals. We leave aside this novel way of raising grounds of review in a founding affidavit. [2] In those heads, every ground of review raised in the supplementary affidavit is canvassed at some length. The only new matter in the supplementary affidavit are a few page references to the record of the proceedings before the respondent.
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[13]...
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