Timber Fram Technologies (Pty) Ltd and others v Roelofse
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Roelofse AJ |
| Judgment Date | 28 July 2023 |
| Citation | 2023 JDR 2782 (MN) |
| Hearing Date | 03 July 2023 |
| Docket Number | 2273/2023 |
| Court | Mpumalanga Division (Main Seat) |
Roelofse AJ:
On 3 July 2023, I dismissed an application for my recusal in the main application (“the recusal application”). I undertook to later give my reasons for dismissing the recusal application. These are the reasons for dismissing the recusal application.
The main application was an unopposed application wherein the applicants sought the following relief:
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Roelofse AJ
The First Respondent be found to be in contempt of Court of a Court Order granted in the above Honourable Court on 15 March 2022, a copy of which is attached to the founding affidavit as annexure “TF3”.
The First Respondent be committed to a period of imprisonment for 90 (ninety) days, alternatively that this Honourable Court impose upon him such a sentence as it considers appropriate.
The First and Second Respondents to pay the costs of this application on a scale as between attorney and own client, jointly and severally, the one paying the other to be absolved.’
I granted the order referred to in the first prayer in the main application (“the first order”) in favour of the applicants. The third respondent in the recusal application (“WDT”) represented the applicants in the main application and also now. The first order (in relevant part) provided [1] :
The first respondent [2] is directed to do all things necessary to execute the order granted in the Regional Court for the Regional Division of Mpumalanga held at Mbombela, under case number MRCC – 331 dated 6 March 2019, within 10 (ten) days from the date of service of this order;’
The Regional Court’s order was granted upon an application by the second respondent in the main application that Ms. Paulette Langa demolish a structure that was built without the second respondent’s permission on an erf in Mbombela.
WDT applied to join proceedings that was instituted by the Mpumalanga Society of Advocates (“MSA”) in the Local Division of the Gauteng High Court against the Judicial Services Commission (“the JSC”), the President and me wherein
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Roelofse AJ
the MSA seeks to review and set aside the decision of the JSC in October 2021 to recommend me for judicial appointment (“the review application”).
I am not opposing WDT’s joinder application in the review application. WDT’s joinder application was served upon my attorneys in the review application on 5 June 2023.
The main application was set down for 12 June 2023.
On 6 June 2023, WDT wrote to the Judge President and the Deputy Judge President of this Division. Although I was already seized with the main application, I was not copied in this correspondence. I reproduce the full content of WDT’s letter:
‘RE: APPLICATION FOR LEAVE TO INTERVENE AS AMICUS CURIAE - WDT ATTORNEYS INC / ADV JOHANNES HENDRICKUS ROELOFSE AND THREE OTHERS (2021/555663)
With reference to the abovementioned matter, We confirm that we have brought an application for leave to intervene as amicus curiae in the application brought by the Mpumalanga Society of Advocates in the High Court of South Africa Gauteng Division, Johannesburg under case number: 2021/55663
We attach hereto copies of:
notice of motion together with the founding affidavit in support of the application (excluding the annexures is thereto) mar ked annexure “A”; and
A copy of the notice of motion in the main application, marked annexure “B”.
It has come to our attention that the matter between Timber Frame Technologies (and Another) and Wiseman Khumalo (and Another) under case number: 2273/23
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Roelofse AJ
had been allocated to Acting Judge Roelofse’s roll on 12 June 2023 (number: 28).
Given the nature of the relief sought in the applications referred to above, we humbly submit that it would be imprudent to have matters from our firm allocated to Acting Judge Roelofse.
We therefore request that this matter be allocated to another available judge for purposes of adjudication.
If any matter from our firm is allocated to acting judge Roelofse, we will have no choice but to ask him to recuse himself from presiding over the matter.’
On 8 June 2023, the Judge President responded to WDT’s letter. I reproduce the full content of the Judge President’s letter:
‘I refer to the above matter in particular your email letter addressed to the judge president. I hereby wish to confirm that same has been brought to his attention and have been directed by the judge president to respond to your letter as follows:
It is noted that your communication to the Judge President insofar as it relates to the pending matters in our Court, has not been brought to the attention of the parties’ legal representatives in those matters in particular the matters referred to in paragraph 3 of your letter. It is the view of the Judge President that it is inappropriate to have ask for the recusal of Judge Roelofse and then not copy the correspondence to your opponent.
The Judge President has also noted in paragraphs 4 and 5 of your letter, you want the Judge President with a stroke of a pen to recuse Judge Roelofse from presiding in the matter referred to in paragraph 3 of your letter and any other matter where your firm is involved.
It is the view of the Judge President that it will be inappropriate to do so taking into account the fact that amongst others, your firm is not a litigant in any matter that you had referred to in your communication and any other matter that might be allocated to him to which you are a legal representative for any of...
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