IN T H E H I G H C O U R T OF S O U T H A F R I C A
( N O R T H G A U T E N G HIGH C O U R T . P R E T O R I A )
: QEUSTE W H I C H E V E R !S N O T A P P L I C A B L E
7
(1) REPORTABLE VES/HO
| ;
O f INTEREST TO OTHER JUDGES
J (3) REVISED-/'
2 }
(
\
jjpef/NO |
C A S E N R : 51128/09
D A T E : 09 D e c e m b e r 2010
le m a t t e r b e t w e e n :
PATRICIA GERBER
APPLICANT
And
G O V E R N M E N T OF T H E R E P U B L I C OF
s
SOUTH AFRICA
1 '
RESPONDENT
M I N I S T E R OF I N T E R N A T I O A L R E L A T I O N S
AND CO-OPERATION
RESPONDENT
MINISTER OF C O R R E C T I O N A L SERVICES
RESPONDENT
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
4 ' * RESPONDENT
P R E S I D E N T O F T H E R E P U B L I C OF
SOUTH AFRICA
5 ' " RESPONDENT
JUDGMENT
Ranchod J.
[1]
Applicant launched an application against the respondents in which
s h e seeks an order in the following terms:
1
R e v i e w i n g a n d setting aside the decision of the first r e s p o n d e n t
and/or s e c o n d respondent o n or about 25 February 2 0 0 9 to
refuse to a c c e d e to the applicant's request dated 23 N o v e m b e r
2 0 0 7 that t h e first r e s p o n d e n t enter into a prisoner transfer
a g r e e m e n t with t h e G o v e r n m e n t of Mauritius ("the
impugned
decision").
2.
Declaring t h e i m p u g n e d decision to be unlawful, inconsistent
with t h e Constitution a n d invalid.
3.
Ordering t h e first r e s p o n d e n t with due regard to the contents of
t h e j u d g m e n t of this Court a n d without u n r e a s o n a b l e delay and
by properly
applying
therein,
reconsider
to
its mind
the
to the motivations
applicant's
request
contained
dated
23
N o v e m b e r 2 0 0 7 that the first respondent enter into a prisoner
e x c h a n g e a g r e e m e n t with t h e Republic of Mauritius, at least in
respect of J o h a n n Daniel Gerber.
Prayer 4 is for a n order for costs against any of t h e r e s p o n d e n t s w h o o p p o s e
t h e relief s o u g h t while prayer 5 (incorrectly typed '6') is t h e usual request for
further or alternative relief.
[2]
1 wilt d e a l w i t h t h e contents of the applicant's letter (request) d a t e d 23
N o v e m b e r 2 0 0 7 presently.
[3]
A p p l i c a n t says that s h e brings this application in her o w n right, o n behalf
of her s o n J o h a n n Daniel Gerber ('Johann') a n d the class of persons w h o . like
J o h a n n , are South A f r i c a n nationals imprisoned in Mauritius.
2
[4]
T h e r e s p o n d e n t s h a d applied for c o n d o n a t i o n , w h i c h w a s d e a l t with at
the b e g i n n i n g of the h e a r i n g . T h e a p p l i c a t i o n for c o n d o n a t i o n w a s for:
4.1
late filing of t h e notice of intention to o p p o s e the a p p l i c a t i o n by
s e c o n d , third a n d fourth r e s p o n d e n t s ;
The
4 2
late filing of t h i r d r e s p o n d e n t ' s c o n f i r m a t o r y affidavit;
4 3
r e s p o n d e n t s ' n o n - c o m p l i a n c e with t h e R u l e s of Court: a n d
4.4
the iate filing of r e s p o n d e n t s ' H e a d s of A r g u m e n t .
application
by
respondents
was
not
opposed
and
it was
granted
accordingly.
[5]
T h e a p p l i c a n t p l a c e d in issue t h e evidential v a l u e of the A n s w e r i n g
Affidavit by a Mr D a y a n a n d N a i d o o (Mr N a i d o o ) . Mr N a i d o o is t h e C h i e f
Director: C o n s u l a r S e r v i c e s of t h e s e c o n d r e s p o n d e n t . H e d e p o s e d to the
A n s w e r i n g Affidavit o n b e h a l f of t h e s e c o n d , fourth a n d fifth r e s p o n d e n t s . It
w a s c o n t e n d e d that Mr N a i d o o ' s affidavit, insofar a s it p u r p o r t e d to state f a c t s
on b e h a l f of any of t h e r e s p o n d e n t s , w a s i n a d m i s s i b l e in that no confirmatory
affidavits w e r e filed by a n y of t h e relevant r e s p o n d e n t s . A p p l i c a n t ' s C o u n s e l
r e f e r r e d to Gerhardt
v State President
& Others
1989 (2) SA 499 (T) at 504 D-
H in his H e a d s of A r g u m e n t about t h e i m p o r t a n c e a n d implications of not filing
c o n f i r m a t o r y affidavits. In Gerhardt
"Clearly
Mr
one person
Hattingh,
concedes
the second
v/ho
correctly
cannot
appears
make
on
an affidavit
behalf
on behalf
of
the
Insofar
affidavit
in which
as he imputes
he refers
intentions
of another
three
that I can only take into account
respondent's
his, own knowledge.
(supra) it w a s held;
those
and
respondents,
portions
to matters
or anything
of
within
else to
the State President,
it is clearly
hearsay
and inadmissible."
{Emphasis
added.)
[6] C o u n s e l for s e c o n d , fourth a n d fifth respondents w a s of the view that the
e v i d e n c e of Mr N a i d o o s h o u l d in any event be admitted in t h e interests of
justice in t e r m s of section 3{c) of t h e Law of Evidence A m e n d m e n t Act 45 of
1988 (the Act). T h e only issue insofar as the respondents are c o n c e r n e d that
m a y be placed in dispute is t h e m e a n i n g to be attributed to the c o m m u n i q u e
that w a s i s s u e d .
A s I s a i d , applicant is of the view that it reflects the
r e s p o n d e n t s ' policy w h e r e a s Mr N a i d o o denies that the c o m m u n i q u e reflects
a policy d e c i s i o n of the r e s p o n d e n t s . C a n Mr Naidoo's evidence in this regard
9
be a c c e p t e d T h e s e c o n d r e s p o n d e n t is the Minister of international Relations
and Co-operation.
A s s u c h it is abundantly clear or it should admit of no
d o u b t that it is the Minister and her d e p a r t m e n t w h o w o u l d be dealing with,
issues
of foreign
relations
Mr
Naidoo
is an
executive
official
in
the
D e p a r t m e n t . T h e c o m m u n i q u e w a s as a result of the m e e t i n g of ministers of
the S A D C countries.
[7] insofar as applicant's c o u n s e l s e e k s to rely on t h e c a s e of Gerhard,
supra
it s h o u l d be borne in mind that that decision w a s prior to the c o m i n g into effect
of t h e Act. T h e Act w a s a s s e n t e d to by the then State President, w h o signed
t h e A f r i k a a n s text, on 15 April 1988. It c a m e into operation o n 3 O c t o b e r
1988. T h e c a s e of Gerhard
w a s d e c i d e d o n 7 S e p t e m b e r 1986, that is, prior
to t h e c o m i n g into o p e r a t i o n of the A c t . i w a s not referred to any c a s e s
4
d e a l i n g w i t h t h e i s s u e o f h e a r s a y e v i d e n c e a f t e r t h e A c t c a m e into o p e r a t i o n .
But I d o not need to consider that for the reasons that follow.
[8] T h e A c t i n t r o d u c e d a m e a s u r e o f f l e x i b i l i t y t o t h e h i t h e r t o c o m m o n l a w r u l e
on t h e admissibility of h e a r s a y e v i d e n c e .
t h e Gerhard
It s h o u l d b e b o r n e in m i n d t h a t in
c a s e t h e issue w a s w h e t h e r certain s t a t e m e n t s m a d e by the t h e n
P r e s i d e n t in P a r l i a m e n t c o u l d b e c o n s t r u e d t o b e a n o f f e r w h i c h t h e a p p e l l a n t
h a d a c c e p t e d a n d a s a r e s u l t o f w h i c h a c o n t r a c t h a d c o m e into b e i n g . In t h i s
m a t t e r b e f o r e m e t h e r e is n o d i s p u t e a s t o a n y m e a n i n g s to b e a s c r i b e d to
w h a t e v e r t h e s e c o n d , f o u r t h a n d fifth r e s p o n d e n t s m a y h a v e s a i d .
{9] i n Von Abo
(CC)
v President
The Constitutional
"...
a matter
clear
seized
from
Court
with the matter
Consequently,
diplomatic
Africa
for Foreign
constitutionally
in a generic
constitutional
to the foreign
and that each
any failure
SA
345
amounts
of the Republic,
of Foreign
to that department
have
the failure
minister,
concluded
failure
Affairs
of a minister
to a failure
was
was sent
request
it does
the
.
by the President
of
Minister
not follow
or of the
to
for
of the Government
in this case
earlier,
it is
for its attention
the applicant's
been
of a specific
As I have
reprehensible
sense
2009(5)
time correspondence
to consider
would
or indeed
Affairs.
Africa
relations
that the Department
it was forwarded
protection
of South
h e l d at p a r [ 4 3 ] t h a t a s t h a t c a s e w a s :
vshich relates
the papers
the President
South
of the Republic
that a
government
to fulfil
his
obligations."
5
Moseneke
DC J summarised
the provisions
ofss91
(1) and (2) and 92(1)
and
(2) a s f o l l o w s at par [40]:
"In terms of these provisions
the Deputy
President
President-
He assigns
powers
and functions
to them their powers
are responsible
assigned
to them.
for the executive
These provisions
are accountable
of their powers
good measure.
s92{3)
the powers
must act in accordance
functions
because
so assigned
executive
leadership
and
ministers
to
of specified
State
Parliament
the obvious
For
which
to them, members
is
of the
This is
are assigned
they are not mere vassals
which in practice
of the
of their functions.
restates
assigned
the
and
functions
and collectively
They bear the duty and the responsibility
functions
Once
President
with the Constitution.
once Cabinet
by the President
powers
and performance
of the Constitution
that, when they exercise
significant
and functions.
the Deputy
President,
by the
make plain that members
independently
for the exercise
Cabinet
is made up of the
who are ail appointed
have been assigned,
Ministers
Cabinet
the Cabinet
and Ministers
powers
of the
to fulfil the duties
and
President.
and
take the form of political
and
departments."
A n d at par [ 4 1 ] :
"Relevant
here, in my opinion,
executive
function,
every
minister
is the collaborative
nature
on the one hand, and the individual
in the Cabinet,
on the
of the
national
accountability
of
other."
[10] In t h i s m a t t e r before m e clearly it is t h e s e c o n d r e s p o n d e n t , that is "the
Minister concerned*" in the s p h e r e of f o r e i g n relations. A p p l i c a n t ' s c o u n s e l in
6
their w r i t t e n a r g u m e n t in reply s u b m i t t e d that it is the g o v e r n m e n t collectively
a n d in a c o l l a b o r a t i v e m a n n e r w h i c h has the duty to negotiate a n d sign
i n t e r n a t i o n a l a g r e e m e n t s . T h a t "collective a n d collaborative" m a n n e r in m y
view, h e r e , is the f o r m u l a t i o n of national policy in relation to P T A ' s .
However,
t h e individual Ministers r e s p o n s i b l e for the specific tasks a s s i g n e d to t h e m in
t h i s i n s t a n c e w o u l d b e t h e s e c o n d a n d third r e s p o n d e n t s .
[ 11] It is s o t h a t Mr N a i d o o s a y s he m a k e s t h e affidavit o n behalf o f t h e
s e c o n d , f o u r t h a n d fifth r e s p o n d e n t s . At first b l u s h it w o u l d s e e m he is
relating t h i n g s s p o k e n of by t h e s e c o n d , fourth and fifth r e s p o n d e n t s .
H o w e v e r , N a i d o o ( w h o as 1 s a i d is t h e Chief Director: C o n s u l a r S e r v i c e s of
s e c o n d r e s p o n d e n t } g o e s o n t o say that he has b e e n a u t h o r i s e d to d o s o , "by
r e a s o n of m y k n o w l e d g e of t h e f a c t s to w h i c h I shaN refer" ( e m p h a s i s a d d e d ) .
T h e q u e s t i o n is w h e t h e r t h e f a c t s he d e p o s e s t o are within his k n o w l e d g e .
In
this r e g a r d it is clear that he d o e s h a v e firsthand k n o w l e d g e of the matter as
b e h i m s e l f w a s at v a r i o u s s t a g e s involved in s e c o n d r e s p o n d e n t ' s
D e p a r t m e n t ' s r e s p o n s e to a p p l i c a n t ' s a t t o r n e y s ' r e p r e s e n t a t i o n s o n behalf of
t h e a p p l i c a n t . His affidavit s h o u l d therefore be a l l o w e d , in a n y e v e n t , t h e real
issue insofar as g o v e r n m e n t policy o n P T A ' s is c o n c e r n e d is w h e t h e r the
c o m m u n i q u e reflects s u c h policy, as c o n t e n d e d for by applicant. T h a t issue is
pertinently d e a l t w i t h b y M s Schreiner. A c o n f i r m a t o r y affidavit w a s filed by
third r e s p o n d e n t c o n f i r m i n g w h a t Schreiner d e p o s e d to o n her behalf.
[ 1 2 ] T h e appficant in her p a p e r s refers intermittently to a prisoner 'transfer'
agreement
or
to
a
prisoner
exchange'
agreement.
However,
the
word
7
1
e x c h a n g e is cieariy a m i s n o m e r . If is clear from the record and in t h e h e a d s
of a r g u m e n t a n d oral s u b m i s s i o n s that w h a t the applicant requests is a
prisoner transfer a g r e e m e n t . T h e r e is no request for the e x c h a n g e of a South
A f r i c a n national i n c a r c e r a t e d in Mauritius to be e x c h a n g e d for a Mauritian
national i m p r i s o n e d in S o u t h Africa.
[13}Applicant's son J o h a n n is currently a convicted prisoner and is detained
in t h e B e a u Bassin Prison i n Mauritius. He w a s arrested on 29 A u g u s t 2 0 0 5 at
t h e Maritim Hotel in that country and c h a r g e d with the illegal importation into
Mauritius of t h e d r u g h e r o i n e contained in 993.14 g r a m s of white solid m a s s
c o n c e a l e d in ninety-two pellets in his body cavity. He pleaded guilty a n d w a s
c o n v i c t e d o n 4 J u n e 2 0 0 7 . He w a s s e n t e n c e d by the S u p r e m e Court of
Mauritius to pay a fine of 5 0 0 0 0 (Mauritian) R u p e e s and to undergo penal
servitude for nine years.
He w a s 2 0 years old at the time a n d is currently 2 4
years o l d . He w a s a d v i s e d by Mauritian lawyers not to a p p e a l against his
conviction or s e n t e n c e , as there w e r e prospects on a p p e a l that a heavier
s e n t e n c e may be i m p o s e d .
[ 14]
T h e applicant's stated reasons for w a n t i n g the G o v e r n m e n t to enter
into a Prisoner Transfer A g r e e m e n t (PTA) with Mauritius are that she and her
family are suffering physical, e m o t i o n a l a n d financial strain as a result of
J o h a n n ' s incarceration in Mauritius as they are not abie to visit him often
e n o u g h a n d w h e n they d o its at considerable cost. This strain w o u l d be
c o n s i d e r a b l y r e d u c e d s h e says, if he w e r e serving his s e n t e n c e in a South
A f r i c a n prison. Securing c o n t a c t visas to e n a b i e physical contact with J o h a n n
8
h a s also b e e n difficult. In a d d i t i o n , s h e is of the v i e w that t h e r e is a real n e e d
for
him
to
be
returned
to
S o u t h Africa
so that
he
might e n h a n c e
his
o p p o r t u n i t i e s for rehabilitation a n d reintegration into a city a n d the c o m m u n i t y
o n c e h e is e v e n t u a l l y r e l e a s e d .
[ 1 5 ] T h e a p p l i c a n t s a y s b y e n s u r i n g that S o u t h African nationals i m p r i s o n e d
a b r o a d a r e r e t u r n e d h o m e t o c o m p l e t e their s e n t e n c e s t h e G o v e r n m e n t will
be a c t i n g c o n s i s t e n t l y with "its policy" a n d it will be acting consistently with its
o b l i g a t i o n s u n d e r s e c t i o n 7 ( 2 ) of t h e Constitution of t h e Republic of S o u t h
A f r i c a . 1 9 9 6 (the C o n s t i t u t i o n ) - to "respect, protect, p r o m o t e a n d fulfil" at least
t h e right t o equality, t h e right to dignity a n d t h e right t o v o t e a s set out in
s e c t i o n s 9. 10 a n d 19 respectively of the Bill of Rights. A p p l i c a n t s a y s t h e
g o v e r n m e n t ' s "policy" is reflected in a C o m m u n i q u e
issued jointly by t h e
S o u t h e r n A f r i c a n D e v e l o p m e n t C o m m u n i t y m e m b e r states (the S A D C ) in J u l y
2 0 0 3 . I wiil revert to t h e s e a s p e c t s presently.
[ 1 8 ] T h e a p p l i c a n t s a y s her a t t e m p t s to e n c o u r a g e t h e G o v e r n m e n t to enter
into a P T A w i t h M a u r i t i u s b e g a n formally w h e n her (then) a t t o r n e y s w r o t e a
letter d a t e d 23 N o v e m b e r 2 0 0 7 t o the t h e n President of S o u t h A f r i c a , Mr
T h a b o Mbekt. T h e letter is ten p a g e s long, e x c l u d i n g the a n n e x u r e , a n d is
a n n e x e d to t h e a p p l i c a n t ' s f o u n d i n g affidavit as " P G 5 a " . T h e p u r p o s e of the
letter is stated t o be
"to encourage
the Government
into a prisoner
exchange
other South African
of the Republic
(sic) agreement
nationals
detained
of South Africa
in respect
in Mauritius."
of Johann
to
and
enter
the
It g o e s o n to state
9
that t o t h e applicant's k n o w l e d g e there is "no official
why
the Government
should
refuse
to enter
reason
explaining
into prisoner
exchange
agreements."
[17JFurther letters w e r e e x c h a n g e d b e t w e e n the applicant's attorneys a n d the
various r e s p o n d e n t s . Ultimately, a r e s p o n s e by Mr Naidoo of the s e c o n d
r e s p o n d e n t (which w a s at the t i m e k n o w n as the D e p a r t m e n t of Foreign
Affairs)
(the
Department)
was
sent
via
e-mail
dated
3 0 July
2008
to
A p p l i c a n t ' s representatives in w h i c h he said "The
Department
of
Foreign
Department
of Correctional
department
responsible
including
the matter
order to respond
Affairs
Services,
for ail policy
of the, status
has
who
of Prisoner
Agreements
this
intention
to enter
is
no
Agreement
with Mauritius
the
documents
been
SADC
Transfer
have
taken by the Department
been
noted
:
the
function
prisoners.,
Agreements
that South
a Prisoner
country.,
Services
in
Africa
and at
Transfer
The contents
but no formal
of Correctional
line
with any country
into
or with any other
with
concerning
to the letter. We have been advised
Transfer
there
(sic) is the
matters
does not have Prisoner
stage
consulted
position
of
has
in this regard. *
( e m p h a s i s added).
[18]in a letter d a t e d
15 A u g u s t 2 0 0 8 to t h e D e p a r t m e n t the
applicant's
attorneys c o m p l a i n e d that t h e D e p a r t m e n t had failed to furnish any reasons
w h a t s o e v e r for its refusal to enter into a PTA and placed it on t e r m s to
r e s p o n d within a stated t i m e "with full and adequate
reasons
as to why
South
10
Africa
has
no
intention
to enter
into
a prisoner
transfer
agreement
with
Mauritius".
[19]The Director-General of the D e p a r t m e n t responded in a tetter d a t e d 10
September 2008:
7 wish to reiterate
the position
South
not
Africa
country.
does
This position
1. South
have
to the principle
Rules
governments
adhere
South
of
serious
international
efforts
Africa
Consular
subscribes
and
and
are
and
as
Standard
it
encourages
incarcerated
to
rules.
taken
has
aimed at combating
is party
to the
and
such
a strong
stand
committed
to
serious
crime-
Vienna
support
Convention
on
attorneys
requested
that
the
second
respondent
assists
in
[ 2 0 ] T h e A p p l i c a n t w a s not satisfied with the response and her
and will continue
as
Nations
of Prisoners,
has
crime
serve
countries
Africans
abroad
(1963).
with such
in
In this respect
United
Africans
Africa
Africans
must
terms
any
South
imprisoned
Relations
the
South
to and comply
respect
to
of the Treatment
where
2. Domestically,
of such
were committed
adheres
abroad
that
with
that South
committed
term and conditions
Africa
Minimum
South
for crimes
Government
agreements
subscribes
the offences
South
transfer
by the fact that:
Africa
where
prisoner
is informed
who are arrested
their prison
of the South African
to do so."
furnish
"formal,
intelligible
and
n
comprehensive
PTA
with
reasons''
Mauritius.
for t h e G o v e r n m e n t ' s d e c i s i o n not to enter into a
After
a
further
exchange
of
correspondence
the
a p p l i c a t i o n for r e v i e w w a s l a u n c h e d . Applicant s a y s in prayer 1 of t h e notice
of m o t i o n t h e i m p u g n e d d e c i s i o n is that m a d e on or about 25 F e b r u a r y 2 0 0 9
by first a n d / o r s e c o n d r e s p o n d e n t s
That d e c i s i o n is contained in a letter
d a t e d 25 F e b r u a r y 2 0 0 9 f r o m the Director-General of t h e s e c o n d r e s p o n d e n t
(then k n o w n as t h e D e p a r t m e n t : Foreign Affairs) to applicant's a t t o r n e y s
The
r e l e v a n t portion reads:
"in this regard
we again
10 September.
2008
wish to affirm
that the contents
of our letter
of
remains.''
T h e c o n t e n t s of t h e letter (par 19 supra)
are t h e n q u o t e d v e r b a t i m . It is this
d e c i s i o n t h a t a p p l i c a n t s a y s is irrational.
[ 2 1 ] T h e R e s p o n d e n t s s a y s t h a t the matter c a n n o t be r e v i e w e d as the s c o p e
of j u d i c i a l r e v i e w is limited b y t h e highly discretionary nature of the e x e c u t i v e
p o w e r in i s s u e . T h e i s s u e of e n t e r i n g into international a g r e e m e n t s s h o u l d be
left t o the e x e c u t i v e a u t h o r i t y a n d c o u r t s s h o u l d therefore not intrude t h e r e i n ,
they c o n t e n d .
F A C T S N O T IN D I S P U T E
[22]lt Is not in d i s p u t e that t h e applicant's son is detained in Mauritius, that
consular
services
have
been
rendered
on
numerous
occasions
by
the
r e s p o n d e n t s to t h e a p p l i c a n t and her son to inter a i i a facilitate her a n d her
:
f a m i l y ' s visits to her s o n . i n v e s t i g a t e t h e transfer of J o h a n n f r o m o n e prison to
E2
a n o t h e r , visiting h i m to c h e c k o n his w e l l - b e i n g a n d facilitate his e n r o l m e n t at
UNISA.
[23JThe c o n t e n t s of t h e C o m m u n i q u e i s s u e d b y t h e ministers of c o r r e c t i o n s
a n d p r i s o n s e r v i c e s of t h e S A D C o n 3 July 2 0 0 3 a r e afso not in d i s p u t e .
ISSUES TO BE DECIDED
[ 2 4 ] T h e f a c t s in d i s p u t e a r e :
24.1
Whether
the decision
applicant's
by t h e G o v e r n m e n t
r e q u e s t that
it e n t e r
into a
not to a c c e d e
PTA
is
to
insufficiently
r e a s o n e d , arbitrary a n d irrational a n d s t a n d s to b e r e v i e w e d a n d
set a s i d e o n t h e b a s i s of t h e principle of legality { ' t h e i m p u g n e d
decision"): and
24.2
Whether the Communique
official
issued by the S A D C
policy of t h e G o v e r n m e n t
of S o u t h Africa
reflects
relating
the
to
p r i s o n e r t r a n s f e r a g r e e m e n t s u p o n w h i c h it c a n b e f o r c e d to act.
REVIEW OF THE IMPUGNED DECISION
[ 2 5 ] l n t h e N o t i c e of M o t i o n it is s t a t e d the d e c i s i o n of first a n d / o r s e c o n d
r e s p o n d e n t s m u s t be r e v i e w e d and set a s i d e b e c a u s e of their failure to
a c c e d e to a p p l i c a n t ' s r e q u e s t that t h e G o v e r n m e n t e n t e r into a P T A w i t h
M a u r i t i u s a n d that that r e q u e s t m u s t b e r e c o n s i d e r e d . H o w e v e r , in t h e written
a n d oral s u b m i s s i o n s o n b e h a l f of a p p l i c a n t t h e e m p h a s i s s h i f t e d .
Applicant's
c o u n s e l c o r r e c t l y c o n c e d e d in their s u b m i s s i o n s that t h e a p p l i c a n t d o e s not
h a v e a right to insist that the G o v e r n m e n t e n t e r into a P T A . T h e thrust of
13
A p p l i c a n t ' s c o u n s e l ' s a r g u m e n t w a s that she has a right to have her request
properly c o n s i d e r e d by the r e s p o n d e n t s and decided upon rationally, in g o o d
faith a n d in a c c o r d a n c e with the principle of legality.
[ 2 6 ] T h e constitutional principle of legality (i.e. that ail public p o w e r m u s t be
e x e r c i s e d in a c c o r d a n c e with law and m u s t be rational) is f o u n d e d on t h e rule
of law. C o n d u c t w h i c h falls foul of this principle is liable to be set aside.
Albutt
and the Centre
CCT 54/09 [2010]
for the Study of Violence
ZCC. 23 February
and Reconciliation
(Ryan
and
Others
2010 pes N g c o b o CJ at para [ 4 9 ] ) St is
e n t r e n c h e d as a founding v a l u e in section 1(c) of t h e Constitution. Arbitrary
a n d irrational c o n d u c t o n t h e part of the executive would be unlawful.
[27]The
Constitution
also
provides
that
negotiating
and
signing
of
international a g r e e m e n t s is the responsibility of the national executive.
e m p o w e r s the e x e c u t i v e to d e v e l o p a n d implement national policy.
J held in
It also
O' R e g a n
3
Kaunda :
"It is clear, though
conduct
of
Executive
And
2
all
foreign
not explicit,
affairs
is
that under
primarily
the
our Constitution
responsibility
the
of
the
"
further
negotiating
foreign
perhaps
that
and
relations
"
. . the
signing
national
international
is therefore
typically
executive
is
responsible
agreements.
The
conduct
an executive
power
under
for
of
our
" Section 23 1(1) o f the Constitution t>f ihe Republic of South Africa, 1996
'• id section 85(21,
1
Katmda and Othors v Presides o f the Republic oi'Soinli Africa and O t h m 2005 (4) SA 235 ( C O ;
2004(!())BCLR 1009 ai pa.^243
245,
[4
Constitution.
conduct
. . . (TJ'ne Executive
foreign
affairs."
arm of government
is best placed
to
( F o o t n o t e s omitted)
[ 2 8 | O n e of t h e t e n e t s of t h e rule of law is t h e doctrine of s e p a r a t i o n of p o w e r s
w h i c h p r o v i d e s t h a t e a c h s p h e r e of g o v e r n m e n t , including t h e judiciary, m u s t
g i v e d u e d e f e r e n c e to t h e s p h e r e of g o v e r n m e n t in w h i c h the Constitution
resides any particular power,
[ 2 9 ] T h e q u e s t i o n to be a n s w e r e d t h e n is w h e t h e r the r e s p o n d e n t s h a v e
arbitrarily
or without
Another
sufficient
2008 (1) SA 566
reason".
(Masethla
v President
"acted
of the RSA
and
(CC).)
[ 3 0 ] T h e a p p l i c a n t ' s letter of 23 N o v e m b e r 2 0 0 7 (supra)
a s s e r t e d that the
c o n c l u s i o n of a P T A w o u l d g i v e effect to the G o v e r n m e n t ' s obligations u n d e r
t h e C o n s t i t u t i o n to act in t h e protection of the dignity, life a n d bodily integrity of
all S o u t h A f r i c a n s , it called u p o n 'the Minister
nominated
official
conjunction
with
exchange
African
without
the
(sic) agreement
nationals
reasonable
relevant
currently
delay
Mauritian
Affairs
or her
to take the appropriate
authorities
with the Republic
incarcerated
of Foreign
to enter
of Mauritius
in Mauritius
into
in respect
duly
steps
a
in
pnsoner
of
South
"
[31 lln his a n s w e r i n g affidavit Mr N a i d o o s a y s t h e G o v e r n m e n t c o n s i d e r e d t h e
r e q u e s t a n d c o n c l u d e d t h a t it d o e s not h a v e a n obligation to enter into s u c h
a n a g r e e m e n t . R e a s o n s p r o f f e r e d are;
to hold S o u t h A f r i c a n s
travelling
a b r o a d to be r e s p o n s i b l e a n d to r e m a i n law a b i d i n g : t o help t h e G o v e r n m e n t s
15
fight against c r i m e , m o r e specifically serious crimes such as d r u g trafficking;
to respect the n o r m a ! operations a n d c o n s e q u e n c e s of the criminal justice
s y s t e m s of third party countries; to avoid irrational and arbitrary distinctions of
c h o o s i n g one country t o c o n c l u d e a P T A and not another; and to avoid unfair
and
unequal treatment
b e t w e e n the s a m e or different classes of
South
A f r i c a n s i m p r i s o n e d a b r o a d . Mr Naidoo says (at para31.2 of his affidavit):
7 emphasise
thai one of the reasons
of the Republic
country
(upon
African
citizens
responsibilities.
South
and
African
not to conclude
which
I shall elaborate
who travel
citizens
knowledge
travelling
of felonies
of the
abroad
is designed
or stationed
abroad
in unlawful
by them
of
are not
to ensure
act
acts,
will be duty-bound
committed
government
treaty with a
later) is that the rights
policy
to engage
thai the government
upon their conviction
transfer
or find themselves
The governments
are not encouraged
for the policy
a prisoner
foreign
South
without
that
responsibly
secured
to return them
in the
home
abroad."
T h a t r e a s o n , in m y view, c a n n o t be a rational decision related to t h e policy not
to enter into P T A ' s with a n y country.
I do not think any South African citizen
will b a s e his or her decision t o e n g a g e in criminal activities abroad on w h e t h e r
the G o v e r n m e n t w o u l d be d u t y - b o u n d to return t h e m to South Africa upon
their c o n v i c t i o n .
But that in itself is not sufficient reason to review and set
a s i d e the decision.
[32]The R e s p o n d e n t s have a r g u e d that the Applicant is not entitled t o any
further reasons w h y . other t h a n those already given, the G o v e r n m e n t of S o u t h
Africa d o e s not enter into P T A s with other countries as this is a discretionary
16
e x e c u t i v e a c t i o n a n d a policy d e c i s i o n . A p p l i c a n t ' s C o u n s e l s u b m i t t e d in the
w r i t t e n h e a d s of a r g u m e n t t h a t t h e a p p l i c a n t d o e s not c h a l l e n g e t h e a d e q u a c y
or s u f f i c i e n c y of t h e r e a s o n s but ' w h e t h e r t h e justifications o f f e r e d by t h e
r e s p o n d e n t s a r e rationafly c o n n e c t e d t o t h e p u r p o s e s o u g h t t o be a c h i e v e d by
them
t h r o u g h t h e e l e c t i o n not t o e n t e r a P T A w i t h M a u r i t i u s ' .
s u b m i t t e d t h a t o n c e t h e Court
Counsel
a c c e p t s t h e principle of legality 'as it m u s t , t h e n
t h i s C o u r t is o b l i g e d t o c o n s i d e r t h e r e a s o n s a n d test their rationality a g a i n s t
t h e s t a n d a r d s of t h e principle of legality. T h a t is all the a p p l i c a n t a s k s of this
Court -
a n d s h e h a s a right to m a k e t h a t request. 35. T h a t is w h a t
the
a p p l i c a n t s u b m i t s this C o u r t has an o b l i g a t i o n to d o ; n o t h i n g m o r e , n o t h i n g
less'.
[ 3 3 ] A p p l i c a n t s u b m i t s t h a t t h e p o l i c y of t h e g o v e r n m e n t c a n b e g l e a n e d f r o m
t h e c o m m u n i q u e i s s u e d by t h e S A D C w h i c h s t a t e s t h a t t h e r e a r e g o o d or
s o u n d r e a s o n s for t h e S A D C c o u n t r i e s to e n t e r into P T A s . T h e r e f o r e , s a y s
a p p l i c a n t , r e s p o n d e n t s ' policy c o n s i d e r a t i o n s as stated by M s S c h r e i n e r a r e
c o n t r a r y to t h e c o m m u n i q u e a n d are t h e r e f o r e irrational.
[ 3 4 | T h e c o m m u n i q u e w a s t h e result of a m e e t i n g o n 3 J u l y 2 0 0 3 h e l d by
several
Ministers
of
Prisons
and
Correctional
Services
of
the
SADC.
Deliberations w e r e made regarding several matters, including the structuring
of
a
common
policy on development,
rehabilitation
and
reintegration
of
o f f e n d e r s , a s w e i l as t h e e s t a b l i s h m e n t of n a t i o n a l a n d r e g i o n a l i n s t r u m e n t s in
relation
to
transfer
of
foreign
nationals
to
their
c o m m u n i q u e w a s a d o p t e d by all a t t e n d i n g parties
home
countries.
The
it w a s i n d i c a t e d that f u r t h e r
17
foilow-up a n d regular m e e t i n g s by representatives of S A D C countries involved
w e r e required. A task t e a m w a s established to begin with t h e work of drafting
a
framework
document,
which
would
be
used
for the
development
legislation, p r o t o c o l a n d p r o c e d u r e s to e n a b l e the transfer of
of
sentenced
foreign nationals to their countries of origin, within the S A D C region
[ 3 5 j T o d e t e r m i n e this issue, I have to consider the s u b m i s s i o n s of the third
r e s p o n d e n t (the Minister of Correctional Services). In the e-mail dated 30 July
2 0 0 8 (supra) Mr N a i d o o s a y s it is 'the
who
(sic) is the line function
concerning
prisoners,
Agreements."
The
fifth
Department
department
.including
the matter
of Correctional
responsible
of the status
Services,
for all policy
matters
of Prisoner
Transfer
T h e third r e s p o n d e n t is clearly a part of the national executive.
respondent
is t h e
head
of the
national
executive.
The
r e s p o n d e n t ' s s u b m i s s i o n s about policy matters concerning prisoners
third
and
P T A s c a n therefore safely be regarded as that of the national executive which
includes t h e other r e s p o n d e n t s .
[36}The Third R e s p o n d e n t s a y s the applicant's request w a s fully c o n s i d e r e d
a n d r e s p o n d e d to a n d that it had b e e n d e c i d e d "at this stage" not to enter into
a P T A with Mauritius or a n y other country. Ms Schreiner s a y s 7 s a y at this
stage because
the issues
is not inconceivable
be
of international
relations
are by definition
fluid and it
that on a date in the future, such PTA with Mauritius
may
concluded."
IS
[ 3 7 ] T h e third respondent h a s given a n u m b e r of reasons w h y the g o v e r n m e n t
will not enter into a PTA w i t h Mauritius at this stage.
T h e r e a s o n s , says Ms
Schreiner w h o filed a n affidavit on behalf of the third respondent, are that the
c o n c l u s i o n of P T A s is a polycentric matter; there are policy a n d political
c o n s i d e r a t i o n s infused in a decision to c o n c l u d e a PTA; there are policy
c o n s i d e r a t i o n s to e x c l u d e certain types of crimes out of a PTA (such as drug
related offences), t h e r e are costs considerations (with approximately
South Africans
incarcerated
1049
in Brazil alone) to factor in deciding o n
a
particular PTA: there is, as yet, a n undetermined number of S o u t h Africans in
f o r e i g n prisons t h r o u g h o u t t h e w o r l d ; a n d in order not to upset international
relations,
some
of t h e political
reasons
are too sensitive
to
publish
in
d o c u m e n t s of public record.
[38] It is w o r t h quoting certain portions of M s Schreiner's affidavit at length:
"3 10 The Third Respondent
other members
The question
concluded
For
3.10.1
is desirous
of the SADC
of whether
are matters
to conclude
region
or when
replete
PTA's with
various
to which Mauritius
is part.
such
will
agreements
with polycentric
be
considerations.
instance:
There
ultimately
is
a
deep
appreciation
it is a preferred
must take responsibility
within
position
SADC
that each
for the imprisonment
that
country
of its
own
SADC
that
citizens:
3.10.2 There is also a profound
imprisonment
has
as
appreciation
its
primary
within
purpose
the
19
rehabilitation
for that
and possible
reason,
would better
the
The
Third
in their countries
associated
with
the cost
associated
The question
of PTA's
take into account
agreements
sensitive
costs
instance,
for
in
if after
with foreign
future
common
rehabilitating
countries
of crimes
I postulate
exportation,
Another
depending
on the political
example
that
may
also
to which
purely
for
such
purposes
persons
(there are for instance,
to importation,
be to exclude
of the
For
amounts,
the category
drugs).
would
prisoners
prisoners
that a PTA may exclude
of drug smuggling
prisoners
deported:
may relate.
of illustration
on
origin:
expenditure
is to be
and
the
mindful
of prisoners.
society,
to fruitless
such a prisoner
of
with re-skiiling
into
parlance,
where
is deeply
detention
of prisoners
imposed
their purposes
Respondent
reintegration
3.10.4
sentences
achieve
are imprisoned
3.10.3
reintegration
convicted
countries
very
use and dealing
comes
considerations
from a PTA prisoners
to
of
of
mind,
countries,
convicted
of
terrorism;
3.10.5The
PTA's
attended
to another.
this item.
may
also
have
with the transfer
to provide
of prisoners
Any PTA agreement
Most prisoners
and have no income
for
the
costs
from one
country
would have to
address
are by definition
and their repatriation
unemployed
would
involve
20
large sums
have
of money.
to be moved
contact
with
associated
For Instance,
by special
ordinary
with
people
such
the prisoners
carriers
and
transfer.
might
so as to
contain
avoid
the
AH these
risk
are
major
considerations;
3.10.6 On
a light
country
such
this stage,
this
it is somewhat
as the United
conclude
example
Honourable
3.10.7
note,
Court
mired
in a number
which
fall outside
South
Africa
thousand)
burden
with
member
and
role
would
This
to
of SADC
to negotiate
at
make
above
a PTA
is
judiciary:
7000
(seven
naiionals
is
an
is, in
of the
engage
from
immense
The Third Respondent
plans
a
considerations
foreign
making
line
Republic
with
some
the terms of PTA s
and
consideration
relate
are
the responsibilities
with such countries;
3.10.8 Another
of the
Mozambique.
SADC,
the
to conclude
has approximately
who
would
I
to
and political
the jurisdiction
and
states
of America
demonstrate
of policy
currently
thai
with Afghanistan.
that a decision
on our fiscus.
the
within
to
prisoners
Zimbabwe
State
a PTA
purely
inconceivable
for
to the numbers
nature
of offence
There
can be a compelling
for which
the
conclusion
of prisoners
of
they have been
case
where
a
as well as
PTA
the
imprisoned.
the numbers
in
other
countries
are large
and the reciprocal
burden
is
cancelled'."
[39]
Insofar as t h e c o m m u n i q u e reflects the S o u t h A f r i c a n
Government's
policy to c r e a t e the basis - t o g e t h e r with t h e other S A D C countries -
upon
w h i c h P T A s m a y be e n t e r e d into, I agree. However, t h e d i s c u s s i o n s recorded
in t h e c o m m u n i q u e did not, in my view, d e v e l o p into a c o m m o n a n d binding
yardstick of t h e S A D C c o u n t r i e s w h o i s s u e d it. i s a y so b e c a u s e a task t e a m
was
established
to
draft
a
framework
that
would
be
used
to
develop
legislation, p r o t o c o l and p r o c e d u r e s . T h e issue of P T A s involves international
relations.
The
relevant
SADC
ministers w e r e to t a k e
i m p l e m e n t their c o m m o n d e s i r e to h a v e P T A s .
various steps
to
The government may decide
to e x c l u d e t h o s e c o n v i c t e d of d r u g offences says M s Schreiner
In t h e s e
c i r c u m s t a n c e s , c o u r t s w o u l d a n d , in m y view s h o u l d give "due deference'' to
the
Executive
to
determine
c o n s i d e r a t i o n s of a P T A
the
before
scope
and
ambit
and
other
relevant
it finally d e c i d e s to enter into o n e
with
Mauritius.
[40] T h e third r e s p o n d e n t ' s r e a s o n s , as stated by Ms Schreiner, c a n n o t in m y
v i e w b e c o n s i d e r e d to be irrational a n d in t h e context of those r e a s o n s the
possibility of e n t e r i n g into P T A s at a later stage m a k e s s e n s e .
1
[41] A n o t h e r r e a s o n w h y a p p l i c a n t s a y s t h e r e s p o n d e n t s d e c i s i o n is irrational
is that Mauritius is willing t o enter into a P T A with S o u t h Africa a n d has e v e n
p r o v i d e d a draft for the r e s p o n d e n t s to consider. That d o e s not avail t h e
22
a p p l i c a n t as it b a s e d o n t h e n a r r o w view that o n c e Mauritius is p r e p a r e d to
e n t e r into a P T A the g o v e r n m e n t is s o m e h o w c o m p e l l e d to enter into s u c h an
a g r e e m e n t w i t h o u t further a d o . T h e third r e s p o n d e n t ' s s u b m i s s i o n s that t h e
g o v e r n m e n t has to t a k e into c o n s i d e r a t i o n a n u m b e r of other factors c a n n o t
be f a u l t e d . A s I s a i d M s S c h r e i n e r s a y s there are 1049 S o u t h A f r i c a n s w h o
a r e p r i s o n e r s in Brazil, a n as yet u n d e t e r m i n e d n u m b e r in other c o u n t r i e s and
t h a t t h e r e are policy c o n s i d e r a t i o n s to e x c l u d e certain types of c r i m e s (for
e x a m p l e d r u g related o f f e n c e s ) . In other w o r d s there are v a r i o u s factors to be
c o n s i d e r e d and for this r e a s o n t h e g o v e r n m e n t has d e c i d e d not to enter into a
P T A w i t h M a u r i t i u s . H o w e v e r , t h e d e c i s i o n has not b e e n cast in s t o n e . It h a s
left o p e n t h e possibility that it m a y d o s o in t h e future after c o n s i d e r i n g ail t h e
other f a c t o r s that h a v e a b e a r i n g on t h e matter.
4
[42] In Kaunde
it w a s h e l d , p e r C h a s k a i s o n C J :
'A decision
as to whether
an aspect
of foreign
protection
policy
should
which
be given,
is essentially
and if so, what,
the
function
of
is
the
Executive."
5
T h e C o n s t i t u t i o n a l C o u r t has h e l d that:
"In
treating
appropriate
Executive
the
within
not to attribute
to other
a
Court
the Constitution.
to itself superior
branches
to findings
decisions
respect,
of fact
of government.
and
policy
of
administrative
is recognizing
agencies
the
with
proper
role
In doing so a Court should
wisdom
in relation
A court should
decisions
made
be
to matters
thus give due
by those
with
the
of
the
careful
entrusted
weight
special
1
Kaunda ami OttterS * President ofthc Republic of South Africa 2005 (4) SA 235 (CCS para 77,
' Balo SOT Fishing (Ply) Lid v Minister o f Environmental Affairs and Otters 2004 (41 SA 400 (OCT) t t
para 48.
23
expertise
and
should
give
character
A decision
by a person
interests
or institution
respect
with specific
Often
but will not dictate
In such circumstances
where
facts
or not reasonable
may
not
review
that
decision.
A Court
simply
because
or the identity
of the
decision-maker."
must
to
achieve
should
to the
however,
result
in
supported
given
be
to be
not mean.,
in the light of the reasons
a
taken
pay due respect
will not reasonably
the
decision­
a goal
be followed
is not reasonably
decision
Court
between
in that area
This does
unreasonable
of the
will identify
a Court should
or which
a
upon
to be struck
which route should
is one which
of the goal
to which
depend
and which is to be
expertise
a power
by the decision-maker.
the decision
achievement
an equilibrium
or considerations
that goal.
that
will
as well as on the identity
by the courts.
selected
The extent
considerations
itself
achieved,
route
[43]
these
that requires
of competing
shown
in the field.
to
of the decision
maker.
range
experience
weight
the
on
the
for it, a
Court
not rubber-stamp
an
of the complexity
of the
decision
T h e a p p l i c a n t c o n c e d e s that s h e m a y not h a v e a right to insist t h a t t h e
G o v e r n m e n t enter into a P T A . I a m of t h e view t h a t t h e r e a s o n s g i v e n by the
third
respondent,
objectively
c o n s i d e r e d , are not
only
sufficient
but
also
c a n n o t b e r e g a r d e d as irrational. T h e y are rationally c o n n e c t e d to t h e d e c i s i o n
not to e n t e r into a P T A w i t h Mauritius at this s t a g e a n d a r e justifiable. In
addition, if the g o v e r n m e n t w e r e t o enter into a P T A w i t h Mauritius it m a y w e l l
be a c c u s e d of b e i n g unfair a n d treating the s a m e or different c l a s s e s of S o u t h
Africans imprisoned abroad unequally.
3
[44] it has b e e n h e l d that:
'' Pharmaceutical Manufacturers Association o t ' $ A and Another v In ve: Es parte President o"'the
Republic of South Africa and Others 2000 (2) SA 674 (COat 90.
2-
"Rationality
exercise
. . . is a minimum
of ail public
power
functionaries-
Action
that fails
requirements
of oui
Constitution
standard
does not mean
to what is appropriate
vested.
public
As long
power
functionary's
with
power
[45]
to pass
that courts
as the purpose
viewed
simply
was exercised
of the
this threshold
of those
inappropriately.
is rational,
other
with
the
of
this
The setting
substitute
in whom
to be achieved
it disagrees
to the
and
is inconsistent
of the functionary,
objectively,
because
applicable
Executive
unlawful.
can or should
sought
the authority
decision
requirement
and therefore
for the opinions
is within
the decision
threshold
by the members
their opinions
the power
has
by the exercise
and as long
a court cannot
with it or considers
as
been
as
of
the
interfere
that
the
*
I turn t h e n to t h e s o m e of t h e other s u b m i s s i o n s m a d e by the applicant.
A p p l i c a n t s a y s it is very difficult for her and her family to visit her s o n in
M a u r i t i u s . T h e y are u n d e r p h y s i c a l , e m o t i o n a l a n d financial strain. T h a t the
a p p i i c a n t a n d her family m a y be u n d e r physical, e m o t i o n a l a n d financial strain
is u n d e r s t a n d a b l e a n d certainly e v o k e s e m p a t h y for their plight.
However:
t h o s e in t h e m s e l v e s are n o t sufficient g r o u n d s to review a n d set a s i d e the
respondents' decision.
[46]
M r s G e r b e r also relies on her son's rights to dignity, equality a n d the
right
to
vote. There
is
nothing
in the
papers
to
suggest
that
Johan's
i n c a r c e r a t i o n offends a g a i n s t his right t o dignity or equality. It has b e e n held
that t h e right to vote c a n be e x e r c i s e d by prisoners in foreign countries w h e r e
25
c o n s u l a r services are available. Third r e s p o n d e n t s counsel submitted - a n d it
w a s not d i s p u t e d - that s u c h services are available in Mauritius.
[47]
Applicant's
counsel
said
a further
example
of the
irrationality
of
g o v e r n m e n t ' s decision is a p p o r e n t from t h e fact that Mr Naidoo says t h e
g o v e r n m e n t wit! not enter into a PTA w h e r e a s Ms Schreiner says it will not do
so "at t h i s s t a g e . "
i d o not agree.
A s I understood c o u n s e l s a g r u m e n t . Mr
N a i d o o is s a y i n g g o v e r n m e n t will never into any P T A s . No g o v e r n m e n t of the
d a y c a n purport to bind a future g o v e r n m e n t on matters, of policy.
1 d o not
s e e a n y contradictions b e t w e e n w h a t Mr Naidoo and Ms Schreiner are s a y i n g .
Both a r e in effect saying it is present policy not to enter into P T A s .
[48]
in all t h e c i r c u m s t a n c e s , I a m of the view that the application falls to be
dismissed.
[ 4 9 ] T h e r e r e m a i n s the question of costs. Normally, costs follow t h e event.
this application the applicant a s k s for costs if her application s u c c e e d s .
Naidoo
said, b e c a u s e a p p i i c a n t
asked for costs if she s u c c e e d e d
In
Mr
then
similarly if t h e application f a i l e d , t h e appiicant should pay r e s p o n d e n t s ' costs.
[50]
In the c a s e of Affordable
Medicines
Trust v Minister
of Health
2006
(3)
SA 247 C C at 2 9 7 E-G it was held that as a general rule a n unsuccessful
litigant in constitutional litigation s h o u l d not be ordered to pay costs.
16
[ 5 1 ] T h e q u e s t i o n is w h e t h e r t h e a p p l i c a n t w a s asserting constitutional rights.
A t first s i g h t it m i g h t s e e m t h a t t h e A p p l i c a n t b r o u g h t t h i s c a s e for her o w n a n d
her
son's
particularly
benefit and
second
is n o t constitutional
respondent
litigation.
acknowledged
C o m m u n i q u e a l t h o u g h it is n o t g o v e r n m e n t policy.
Trust
v Registrar,
Genetic
Resources
2009
The
the
Respondents,
contents
It w a s stated on
of
the
Bio-watch
(6) SA 232 CC at p a r a g r a p h [23]
that:
"...constitutional
litigation,
whatever
not only on the interests
the rights
the outcome,
of the particular
of all those in similar
might
litigants
ordinarily
involved,
bear
but also
on
situations".
In m y v i e w this is such a c a s e . T h e matter of P T A s affects not only t h e
a p p l i c a n t a n d her s o n but other prisoners - h u n d r e d s of t h e m - in similar
s i t u a t i o n s . It w a s further stated in the s a m e p a r a g r a p h that:
"If
there
should
constitutionality
the State
then
should
the losing
consequences
be
a
genuine,
non-frivolous
of a law or of the State
bear
the costs if the challenge
non-State
of failure.
law and State conduct
litigant
challenge
conduct.
should
is good,
be shielded
In this way responsibility
are constitutional
to
the
It is appropriate
is placed
that
but if it is not,
from
for ensuring
at the correct
the
costs
that
the
door".
[52] In all t h e c i r c u m s t a n c e s , 1 m a k e the f o l l o w i n g order:
T h e a p p l i c a t i o n is d i s m i s s e d a n d e a c h party is o r d e r e d to pay its o w n
costs.
27
u
j
mm
JUDGE OF THE NORTH G A U T E N G HIGH COURT
R e p r e s e n t a t i o n for t h e a p p l i c a n t :
Counsel
A d v . A Katz (SC)
Adv. M Du Plessis
I n s t r u c t e d by A t t o r n e y s :
Gavin Werner & Associates
C/o J a c o b s o n & L e v y Inc.
Pretoria
R e p r e s e n t a t i o n for t h e r e s p o n d e n t :
C o u n s e l : For Third Respondent:
Adv. I S e m e n y a (SC)
A d v . N. N h a r m u r a v a t e
C o u n s e l : F o r S e c o n d F o u r t h a n d Fifth R e s p o n d e n t :
Adv. Maleka (SC)
Adv
I n s t r u c t e d by A t t o r n e y s
Homzamo
T h e State A t t o r n e y
Pretoria