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(LOCAL SEAT) CASE NO: 1170 / 2020 in the Matter Between

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(LOCAL SEAT) CASE NO: 1170 / 2020 in the Matter Between SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT) (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES ………………………………. 27 May 2020 SIGNATURE DATE CASE NO: 1170 / 2020 In the matter between: ADV MXOLISI ZONDO 1st APPLICANT SS MASONDO 2nd APPLICANT ADV THAMI NCONGWANE SC 3rd APPLICANT ADV ANDREW PAPI LAKA SC 4th APPLICANT ADV LUCKY ZWANE 5th APPLICANT TMN KGOMO AND ASSOCIATES 6th APPLICANT SIMON MOHUBE SETSOALO 7th APPLICANT 1 TSHEPO RAMPATLA 8th APPLICANT HLULANI SHILENGE 9TH APPLICANT IN RE: THE ADMINISTRATOR OF JS MOROKA 1ST APPLICANT DR JS MOROKA MUNICIPALITY 2ND APPLICANT MEC FOR COGTA, MPUMALANGA 3RD APPLICANT MINISTER OF COGTA 4TH APPLICANT And THAMMY GOODWIN KUBHEKA 1ST RESPONDENT THE ECONOMIC FREEDOM FIGHTERS 2ND RESPONDENT ___________________________________________________________________________ JUDGMENT ___________________________________________________________________________ BRAUCKMANN AJ INTRODUCTION [1] ”The world has changed, and we are all in a quandary as to how to go about our daily lives in view of the pandemic. I would implore the applicants and all other students seeking to ignore the Directives issued by the University, in the spirit of Ubuntu, to follow the protocols issued by the University, the President, the NCID and the WHO. This is an unprecedented time for all of us. We are stronger if we work 2 together. Nkosi sikelel' iAfrika1” A quotation from a recent judgment penned by Weiner J. It was not the spirit displayed by the applicants in this application when they attended court on 31 March 2020, in defiance of the regulations 2 by the Minister of Cooperative Governance and Traditional Affairs (“The Minister of COGTA”) and pleas by our President to cooperate to prevent the uncontrolled spread of this dreadful “deadly corona virus”3. [2] This is a “consolidated” application for leave to appeal (“The Applications”) this Court’s judgment of 3 April 20204 by nine applicants. With leave of the Judge President of this Division, the applications were initially enrolled for 23 April 2020. In a letter by Finger Attorneys, acting for Adv Zondo, and Mr Masondo, addressed to the Judge President and the Court, it was stated that the Legal Practice Council (“The LPC”) refused to issue permits to the practitioners from Gauteng to travel to Middelburg, as cross border travel was, according to the LPC, still prohibited. According to the applicants and their attorneys, they could not legally travel to Middelburg on 23 April 2020. It was agreed that the applications would be heard on 4 May 2020. On 25 April 2020, 1Weiner J, unreported case: Lerato Moela and Another v Adam Habib and Another, High Court South Africa, Gauteng Local Division, Johannesburg, Case no 9215 / 2020, paragraph [1]. 2 GOVERNMENT GAZETTE No 43148 of 25 MARCH 2020 Department of Co-operative Governance and Traditional Affairs R 398 Disaster Management Act (57/2002): Regulations made in terms of Section 27(2) by the Minister of Cooperative 3 Description given to the COVID10 virus by the 1st and 2nd applicants attorneys in paragraph 4 of a letter by 1st and 2nd applicants’ attorney to the Judge President (see paragraph 2 of this judgment). 4 Now reported by Saflii: (1170/20) [2020] ZAMPMHC 3 (3 April 2020 3 in a letter by Finger Attorneys addressed to the Judge President, the exceptionally dire and dangerous nature of the COVID-19 pandemic, and their clients’ exposure thereto, was highlighted. This letter was penned by Finger Attorneys on instruction of his clients, and therein, less than a month after the main application was heard, and after the state of disaster was downgraded, the applicant’s attorneys lament about the dangerous situation in the country. Their attorneys describe it as follows: “2. The President has announced on Thursday that the lock down will with effect from 1st May 2020 be eased from level 5 to level 4. This is due to the still increasing numbers of infections daily, signifying that we are not out of danger yet. 3. We however do not wish the [application for] leave to appeal to be postponed further. Our clients however do not wish it to take place in open Court due to the dangers of being infected by the deadly corona virus. 5. Our clients do not understand why the Mpumalanga High Courts are not using this technology to conduct proceedings in order to ensure that the lives of practitioners are not placed in danger. The practice directive of the Chief Justice is very clear on that aspect that first and foremost the Courts should use video link during this period and physical attendance at Court should happen as a last resort. [Own emphasis] [3] The Court can therefore hardly be criticized for viewing the pandemic, the regulations to prevent the spread thereof and the measures 4 (directions) which include, amongst other, the restriction on the of the movement of persons, on 31 March 2020. The Court pause to mention that the applicants and their legal representatives could obtain permits from the LPC to travel to the Court on 4 May 2020. It begs the question: why did the same practitioners travel to Middelburg on 31 March 2020, without valid permits, placing their lives in danger whilst violating a clear prohibition of cross border travel in the regulations, whilst the pandemic was rated at its most critical? Then on 25 April 2020, despite being able to legally travel to Middelburg, did not want to do so? That when Adv Laka SC, while the Court engaged the practitioners about the fact that they were not allowed to be in the court on 31 March 2020, with or without permits, having come from Gauteng, sarcastically informed the Court5, to the amusement of all the other applicants in this application: “A D V L A K A : M ’ L o r d y ou should not be overly worried, w e d o n o t have Corona. I said ... (intervenes)” This, to the Court, was a clear indication that the practitioners did not view the pandemic or the regulations made by the Minister of Cooperative Governance and Traditional Affairs (“The Minister of COGTA”) in a serious light. BACKGROUND 5 Transcript page 5, lines 4 &5. 5 [4] All the individual applicants for leave to appeal, (“herein jointly referred to as the applicants, and severally by their respective titles, and surnames, where applicable”) apply for leave to appeal the judgment6 handed down by this Court on 3 April 2020 in the main application. This judgment might be very lengthy, but was caused, amongst other, the accusations by the applicants of prejudice, dishonesty, collusion and incompetence on the part of the Court in their applications. In both their applications and heads of argument words are published which tend, or are calculated, to bring the administration of justice into contempt. Nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, and in social media that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of dishonesty, concocting falsehoods, bad faith and ulterior motives in judicially deciding a matter in open Court7.The Judge President of this Division also did not escape the applicants’ unfounded averments of inappropriate conduct by alleging that he is guilty of improper interference with this Court thereby causing this Court to loose it’s judicial independence. The Court will deal with this later. 6 Now reported by Saflii: (1170/20) [2020] ZAMPMHC 3 (3 April 2020) 7 In re Phelan (1877 81); S v MOILA 2006 (1) SA 330 (T) p346 F to H 6 [5] In some of the applications the applicants deviated from the normal practice and expanded on the so-called “background” to the application for leave to appeal. This was not necessary, as the Court is privy to the facts and “background” in the matter. The Court therefore, in the light of the tone and distortion of facts in the applications and heads of argument filed, decided to deviate from normal practice, and to deal with the true background facts and the proceedings on 31 March 2020. [6] It is important to deal with the proceedings in the main application in order to indicate that the applicants’ “background” is a distortion of what really transpired in court. I will, for the purpose of this judgment, refer to specific portions in the transcribed record of the proceedings of 31st March 2020 (“The Transcript”) which is in the court file. [7] In the judgment the court ordered that the applicants were not allowed to charge their client any fees or expenses for preparation, travelling and appearance in this court in the application on 31 March 2020. The Court also directed the Registrar to send a copy of this judgement to the LPC. No findings or orders were made in respect of Mr Masondo. 7 [8] Adv Zondo, and Mr Masondo, stated in their applications, heads of argument, and an interview with the Citizen Newspaper (which the Court will revert to later in this judgment) that the court concocted falsehoods, and made statements that were patently false when the court found that they were not in possession of any permits issued by the LPC, or any other authority for that matter, as required on 31 March 2020. The Zondo-applicants’ statement to that effect is simply false and is proven to be so in their own correspondence inadvertently disclosed to the Judge President and the Court by their attorneys.
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