IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CONCOURT CASE NO:
SCA CASE NO: 89/07
In the matter between:
WILMOT MANDLA CHAGI AND 29 OTHERS (AS PER
ANNEXURE ‘’A’’ HERETO) APPLICANTS
And
SPECIAL INVESTIGATING UNIT RESPONDENT
FOUNDING AFFIDAVIT
I, the undersigned
ZANDISILE RICHARD TWANI Do hereby make oath and state that:
1.
The facts I depose to herein are, save where the contrary appears otherwise to the contrary, within my personal knowledge both true and correct.
1.1 All allegations of a legal nature contained herein are based on the legal advice I have obtained from our legal representative.
2.
I am an adult male person being the second applicant herein and the 2nd plaintiff in the main action. I depose to this affidavit both in my capacity as such and also on behalf of the rest of the applicants having been duly authorised by them to do so.
3.
The respondent is the SPECIAL INVESTIGATING UNIT (hereinafter referred to as the SIU) established in terms of Proclamation NO. R118, 2001 of 31 July 2001, issued and published in terms of Section 2 of Act 74 of 1996 (as amended) whose address for purposes of service of court process in these proceedings is Sanlam Park, 59 Western Avenue, Vincent, East London.
4.
A CONDONATION
4.1 The rest of the applicants herein are resident throughout the country. I am responsible to organise them whenever we are needed by our attorney for purposes of giving further instructions in the main action.
4.2 I am advised by my attorneys and verily believe this to be correct that the judgment sought to be appealed against in this matter was handed down on the 29th November 2007 during his absence. He informs me that he was informed by their correspondent attorney in Bloemfontein, prior to the handing down of the said judgment, that it was to be handed down on the said date but that, due to administrative processes, a copy thereof would be available in about three to four days time. Our Attorney requested the correspondent attorney that he checks this copy everyday as clients, referring to us, might seek to pursue the matter further should they not be successful. The said judgment was faxed through to our attorney’s offices on the 6th December 2007. Our attorney phoned me on the same day about it and explained it to me. He expressed his opinion about it that he has serious doubts about its correctness on law. I then gave him instructions to take it up on appeal to this Honourable Court and undertook to him to contact the rest of the applicants for their instructions.
4.3 Indeed I contacted the rest of the applicants the last five of whom I managed to contact on the 12th December 2007. They all
confirmed that the legal validity of the Judgment of the SCA made against us be tested in this Honourable Court by way of an appeal.
4.4 As a result of these house keeping delays, our attorney started preparing our papers on 12 December 2007. He informs us that due to the fact that our application has to be bound in 27 books, the process involved in doing so may take him more than 15 days from the 29th November 2007 within which to deliver our
application. According to him only upon a successful application for leave to appeal can we be allowed to appeal against the said judgment of the SCA or upon this honourable court directing the hearing of both the application for leave to appeal and the merits of the appeal simultaneously in view of the fact that the intended appeal hinges squarely on a pure legal point.
4.5 In the premises, should our application be delivered outside the applicable time limits, this honourable court is prayed to condone the delay.
4.6 We are advised and verily believe that on the grounds we rely on in this application, our intended appeal enjoys reasonable prospects
of succeeding.
5.
This is an application for leave of this Honourable Court under Rule 19 of the rules of this Honourable Court to appeal to this Honourable Court against a judgment of the Supreme Court of Appeal delivered by Mr Justice PONNAN to which Messrs Justices NAVSA JA, BRAND JA, JAFTA JA and COMBRINCK AJA agreed.
5.1 A copy of the said judgment is annexed hereto marked ‘’ZRT1’’.
5.
The said judgment was a sequel to an appeal by us to the Supreme Court of Appeal upon being granted leave to appeal by it to appeal to it against the judgment of DAMBUZA AJ (as she then was) upholding a special plea of lack of locus standi in judicio to be sued by us raised by the respondent in the court of the first instance.
5.1 The judgment of DAMBUZA AJ referred to above is annexed hereto marked ‘’ZRT2’’.
6.
The basis of the said special plea essentially is that the delicts we
complain about were committed by the old SIU the Heath Unit (in other
words by members of the old SIU) which was established under and by virtue of Proclamation R24 of 1997 whereas the respondent was
established as a completely new unit in terms of Proclamation R118 of 2001 which took over no rights, powers, obligations or liabilities of the old unit other than the powers set out in Proclamation R118. The respondent, so goes the contention, has no jurisdiction to deal with the matters in issue in plaintiffs’ claims and therefore no locus standi to be sued by us.
7.
B BACKGROUND
7.1 The rest of the applicants and I are former employees of the former Transkei Agricultural Corporation Limited (hereinafter referred to
as TRACOR)
7.2 On 10 July 1997, Tracor was dissolved and closed by the Premier for Eastern Cape Province acting purportedly under and by virtue of section 19 of the Transitional Corporations Amendment Act of 1995 amending section 13 of the Transkei Corporations Act, 1985 (Act no. 10 of 1985) and pursuant to a decision of the Executive Council for the Eastern Cape Provincial Government taken during
March 1997. Tracor was placed under the control of appointed liquidators.
7.3 The employees of Tracor, including ourselves, subsequently instituted review proceedings challenging the validity of the said proclamation and seeking an order that it be set aside. This was done in the Transkei Division of the High Court of South Africa.
The said application was granted on 13 November 1997. All subsequent appeals by the Premier and the MEC for Agriculture and Land Affairs failed and this included a petition to the Supreme Court of Appeal which was dismissed during November 1998.
7.4 Whilst the said appeals were still pending, and during August 1998, the former SIU being the Heath Unit referred to above and the MEC referred to above together with the aforesaid appointed liquidators implemented the aforesaid liquidation process. They started a process of recovery of moneys that we owed under
various motor vehicle schemes whilst Tracor was still in operation.
In doing so, they launched proceedings before the Special Tribunal in East London.
7.5 Prior to the proceedings for recovery of the said moneys being instituted, the aforesaid MEC, the respondent and the said liquidators launched an interdict application before the Special Tribunal in East London under case no. 342/98. At that time, all the applicants resided in the Transkei and most of us in Mthatha. An interim interdict, being an interdict pendente lite, pending the aforementioned action, was granted in terms of which our bank accounts were frozen and the vehicles in question were placed under judicial attachment pending institution of the aforementioned action.
7.6 In the founding papers in the said application for an interdict, the members of the former SIU and the MEC aforesaid made
allegations which were defamatory of us namely that we had stolen funds of Tracor to the tune of R3 000 000-00 and that we were fraudulent and corrupt. These papers were served on our banks.
7.6 In the proceedings focused under the aforementioned interdict which subsequently followed the said application being the
summonses that were subsequently issued separately against each one of us by the said officials, only the aforementioned moneys in respect of balances on the vehicles we possessed under the
aforementioned motor schemes were claimed. Nothing was claimed which was based on the aforementioned defamatory allegations.
7.7 It was clear to every one of us that the levelling of the
aforementioned defamatory allegations of fraud and corruption against us was done for purposes of investing the Special Tribunal with the jurisdiction which it otherwise would not have had.
7.8. The summonses that were issued against us were defended and at the consolidated trial thereon that took place in March of 2000, His Lordship Mr Justice Picard raised a point mero motu at the
inception of the proceedings that he had no jurisdiction over the matter since these were ordinary claims for recovery of balances allegedly owing under motor vehicle car schemes and that it was ordinary courts that had jurisdiction over such matters. Indeed, we are advised that the Special Tribunal would have had jurisdiction if claims based on the aforementioned defamatory allegations were pursued in the subsequent claims.
7.9. Upon the said point being taken by the court, the respondent’s predecessor and the MEC requested postponement of the matter.
On the date of postponement, the Heath Unit withdrew the action and applied for a discharge of the interdict obtained under the aforementioned case no. 342/98.
7.10. The court refused to grant us costs following upon the said withdrawal of action and the interdict.
7.11. We subsequently appealed against the judgment refusing us costs appealing to the Full Court in Grahamstown. The appeal was argued in the case of TWANI & OTHERS V SIU AND OTHERS CASE reported in (2001) JOL 9001 (E) being the Judgment of the Full Court of Eastern Cape Division which dealt with the same issue between the same parties as the instant matter namely the issue concerning liability of the respondent for damages by way of costs incurred by us against the old SIU. The court in this case applied the provisions of section 12 (2) of the
Interpretation Act, 1957 (Act no. 33 of 1957) and decided this issue in our favour.
7.12 During August 2001 we instituted the proceedings in the main action which were met by the respondent with the special plea
referred to above which forms the subject of the instant proceedings.
7.12.1I annex hereto marked ‘ZRT3’ and ‘ZRT4’ copies of the said summons and special plea.
8.
C CONSTITUTIONALITY OF THE ISSUES IN THE INTENDED APPEAL
The following facts are common cause in this matter, viz:-
8.1 On 14 March 1997 and at the request of the Premier for the Eastern Cape Province, the State President, acting in terms of section 14 (1) of the Special Investigating Unit and Special Tribunals Act, 1996 (Act no. 74 of 1996) ( SIUST Act) dissolved the Heath Commission and established in its place a Special Investigating Unit (SIU) by means of Proclamation R24 of 1997 and further established under section 3(1) of the SIUST Act a Special Tribunal.
8.2 On 30 June 1998, the State President promulgated proclamation R66 of 1998 by virtue of which he referred certain matters
concerning Tracor for investigation by the said SIU and for adjudication by the Special Tribunal.
8.3 Pursuant to the said mandate, the aforesaid SIU proceeded to investigate the process of dissolution of Tracor and upon such investigation instituted interdictory proceedings against us before
the Special Tribunal in East London. It is in the papers in the said proceedings that, allegedly, defamatory statements were made
concerning us and the said proceedings, we allege, were malicious and unlawful proceedings.
9.
In acting as aforesaid the Premier, the State President and the SIU were exercising public powers. It is now trite law that the exercise of all public power is a constitutional issue. Our law in this respect was laid to rest by His Lordship the honourable Mr Justice CHASKALSON in the case of PHARMACEUTICAL MANUFACTURE ASSOCIATION OF SOUTH AFRICA IN RE: THE EX PARTE APPLICATION OF THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 2000 (2) SA 674 CC.
9.1 The issues in the intended appeal are issues connected with a constitutional issue.
10.
D. FINDINGS MADE BY THE SUPREME COURT OF APPEAL
10.1 Proclamation R118 of 2001 provides, neither expressly nor by necessary implication, for rights and obligations of the Heath Special Investing Unit to devolve upon the respondent. This proclamation creates no legal nexus between the Respondent and the Heath unit.
10.2 By virtue of section 13 of the SIUST Act, the respondent was created as a separate juristic person from its predecessor the Heath Unit. The consequences of the unlawful acts of the Heath Unit could not, absent a legal nexus, be imputed on the respondent.
Liability for wrongful acts of one juristic entity does not devolve upon the other.
10.3 If the intention had been for liability of the Heath Unit in the given instance to devolve upon the respondent, that could have been simply and briefly stated by the legislature. That would obviously
have been a clearer and more effective, indeed easier method of expression than the implication inherent in mere silence. It must be accepted that the Act and the Proclamation dealt exhaustively with the subject matter.
10.4 The appellants could have sued the political head of the Department such being the Minister of Justice.
11.
E. GROUNDS OF THE INTENDED APPEAL
11.1 With respect to the finding set out in paragraph 10.1 above, it is clear that the Supreme Court of Appeal interpreted the
provisions of proclamation R118 of 2001in order to come to the conclusion it reached which is stated in the said paragraph. In attacking the validity of this conclusion, it is significant to first set out the relevant principles of interpretation of statutes as follows:-
11.1.1 The starting point in statutory interpretation remains an endeavour to ascertain the intention of the Legislature from the words used in the enactment. The relevant enactment in the given context is the relevant provisions of the SIUST Act and the provisions of the proclamation in question. Those words must be attributed their
ordinary, literal and grammatical meaning. Before the court may do otherwise, whether by cutting down or adding or varying the actual language of the statute, it must be shown that the case falls within what has been described as the rule in R V Venter 1907 TS 910.
That is, that the court may depart from the ordinary literal meaning of the words used only where to do so
‘would lead to absurdity so glaring that it could never have been contemplated by the Legislature, or whether it would lead to a result contrary to the intention of the
legislature, as shown by the context or by such considerations as the court is justified in taking into account.’
In the above regard see also Randburg Town Council v Kerksay Investments (Pty) Ltd 1998 (1) SA 98 (SCA) at `107A-C
11.1.1.1 The second relevant rule of interpretation was set out by Leach J in the case of Stafford v Special Investigating Unit 1999 (2) SA 13 (ECD) as follows:-
‘That is not to say that legislative intent cannot necessarily be implied and, for present purposes, I accept that when the legislature has provided in an enactment for a set of circumstances and failed to provide a means of dealing with it, should a court, not acting on conjecture or surmise, determine that something pertinent has been omitted but
conclude that to omit it would defeat the purpose of the enactment or render it nugatory, it may supplement the enactment by providing for the omission provided that it does not conflict with the clear intention of the Legislature.’
11.1.1.2 The third relevant rule of interpretation of statutes in the given context is the presumption that the legislature does not intend to make a provision which is futile, nugatory,
unnecessary or meaningless. See Perumal v Minister of Public Health & Others 1950 (1) SA 631 (A) AT 633.
11.1.1.3 The fourth relevant rule of interpretation is that deprivative provisions or provisions which remove or encroach upon the rights of the individual are subject to strict construction, if possible, so as to respect such rights and in favour of the affected individuals. See Rose’s Car Hire (Pty) Ltd v Grant 1948 (2) SA 466(A) at 471
Innes CJ (as he then was) in the above regard and in the case of Dadoo v Krugersdorp Municipality 1920 AD 530 at 552 expressed himself thus:-
‘It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights. And it should be applied
not only in interpreting a doubtful phrase, but in ascertaining the intent of the law as a whole.’
11.2 In interpreting the provisions of proclamation R118 of 2001 the Supreme Court of Appeal, with respect, erred in disregarding the importance and effect of the provisions of sections 13(2), 13(3)
and 3(4) (b) of the SIUST Act, 1996 (Act no. 74 of 1996).
11.2.1 In the above regard, we state that even though section 13(1) of the said Act provides that any SIU shall be a juristic person, section 13(2) provides that the State Liability Act shall mutatis mutandis
apply in respect of a Special Investigating Unit, and in such application, a reference in the said Act to ‘the Minister of the department concerned’ shall be construed as a reference to the Head of the Special Investigating Unit.
11.2.2 The court in respect of section 13(2) ought to have
distinguished between vicarious liability or responsibility of a defendant and liability of a defendant, be it natural or juristic person, as a nominal defendant as envisaged in the State Liability Act. In respect of a nominal defendant, such defendant is regarded as the embodiment of his establishment. See the unreported
Judgment of the Supreme Court of Appeal in the case of Director, Export Partners and another v Director General of the Department of Trade and Industry CASE NO. 521/03 Page 4 para 1 (copy thereof is annexed hereto marked ‘ZRT5’)
11.2.2.1 The respondent took over the establishment of the Heath Unit which includes the very members that had committed the delicts in question. They became part of its establishment as the change in the establishment of the Heath Unit was only in respect of its Head. See South African Association of Personal Injury Lawyers v Heath and Others
2001 (1) SA 883 (CC).
11.2.2.2 As to continuation of membership to the respondent by the members of the Heath Unit, this is also strongly implicit in the provisions of section 3 (4) (b) of the SIUST Act 74 of 1996. The task concerning Tracor affairs had not been
completed as the respondent was established just to rectify the anomaly of the Heath Unit being headed by a Judge. By all implications the members of the Heath Unit were taken over by the respondent as they had not completed the task assigned to the Heath Unit which task was inherited by the
respondent in terms of clause 6 of proclamation R118 of 2001.
The establishment of a SIU includes its terms of reference.
The respondent was, in terms of clause 6 of proclamation R118 of 2001, required to take over all the functions
assigned to the Heath Unit under proclamation R66 of 1998.
11.2.2.3 In terms of section 13(3) of the SIUST Act aforesaid the members of the SIU are not liable for the wrongs they commit. By all implications, the SIU to which members are attached is responsible for their wrongs. The said section
takes away common law rights of individuals against a wrongdoer who in this case would be the members of the SIU. If they are not liable, then the SIU to which they are attached is surely liable. Proclamation R118 of 2001 in this regard ought to be interpreted in favour of the applicants herein. The respondent did not come with its own members.
The same members who were members of the Heath Unit became members of the respondent. As stated elsewhere in this affidavit, much as the respondent herein is sued as a
nominal defendant, the fact that it was established as a
separate juristic person from the Heath Unit is irrelevant as we are here not dealing with the same situation as in
vicarious liability.
11.2.2.4 In view of the fact that the SIU, through its head becomes a nominal defendant, its juristic personality is irrelevant. Just like a Minister of state who, for any reason, takes over from another Minister cannot be heard to say that he or she is not liable for the wrongs committed by the officials of his department before he or she took over as Minister because he was not the Minister at the time the delicts were
committed by officials of his department. He or she cannot even say that it is his predecessor who committed the wrong and that he or she is a different person from his predecessor though he is in fact a different person. This is exactly what the respondent has been allowed by the SCA to say in hoc casu.
11.2.2.5 This reasoning, about the take over of the establishment, was adopted also by His Lordship Mr Acting Justice Van Der Byl in the case of Simon Nicholas Konyn and 72 Others v Special Investigating Unit and Others unreported case no
A550/97 and 429/05 page 15 para 48 (copy thereof is annexed hereo ‘ZRT6’), which is identical to this case regarding the
same issue though the argument concerning a nominal defendant was not invoked by the court as a basis for the conclusions it reached.
11.2.2.6 The point being made herein therefore is that the respondent took over the establishment of the Heath Unit including the very members who committed the delicts in question, assuming that they committed the delicts, and by virtue thereof, in the light of the provisions of section 13(2) read with sections 13(3) and 3(4) (b) of the SIUST Act, it is liable to us. The argument the respondent is invoking which
was upheld by the Supreme Court of Appeal would hold water if we were herein dealing with vicarious liability of the respondent. Indeed under vicarious liability for example an employer, be it a natural or a juristic person, who has taken over from another employer cannot be held liable for the wrongs committed by servants of a previous employer from whom the new employer has taken over in the absence of special arrangement made during the take over because there would be no legal nexus between the two employers.
11.2.3 Section 13(3) of the SIUST Act provides that no member of the Special Investigating Unit shall be liable in his or her personal capacity in respect of anything done by him or her in good faith in the course of performing functions or exercising powers of such SIU in terms of the said Act. This provision shows clearly that section 13 (2) of the SIUST Act is intended to cover individuals against the wrongful acts of the members of a SIU. It further shows that it is in fact the SIU that ought to be sued for wrongs committed by its members rather than the Government. To hold that it is the Government that is liable would render the provisions of section 13(2) devoid of purpose, futile, unnecessary and nugatory. This
certainly could never have been intended by the Legislature.
11.3 It was the right and obligation of the Heath Unit to investigate the affairs of Tracor. The Heath Unit did not complete this assignment.
It was taken over by the respondent who, by means of clause 6 of proclamation R118 of 2001, was given a right to pursue the same assignment. The court a quo therefore erred in finding that
proclamation R118 provides neither expressly nor by implication for the rights and obligations of the Heath Unit to devolve on the respondent. Proclamation R118 in paragraph 6 expressly creates this right and obligation.
11.3.1 Copies of proclamations R24 of 1997, R66 of 1998 and R118 of 2001 are annexed hereto marked ‘ZRT7’ ‘ZRT8’ and ‘ZRT9’
respectively for the attention of this honourable court.
11.3.2 Regarding the legal nexus between the two units, the members of the Heath Unit by virtue of the provisions of section 3 (4) (b) of the SIUST Act, continued to be members of the respondent. There is a complete legal nexus between the said units.
12.
On the grounds already stated, the court a quo erred in finding that by virtue of the juristic personality of the respondent, the respondent is not liable for the delicts committed by the Heath Unit through its members.
In this regard we re-emphasize the fact that the court erred in not
distinguishing between vicarious delictual liability of a defendant and the liability of a defendant as a nominal defendant. In respect of the latter, the fact that such defendant changes into being a different person whilst in charge of the same establishment is irrelevant whilst this fact is of great moment in respect of vicarious responsibility.
13.
In the given circumstances of the present matter, the court erred in
finding that if the intention of the Legislature had been for liability of the Heath Unit to devolve upon the respondent that could have been simply and briefly stated. The court a quo erred in not finding instead that if the intention of dissolution of the Heath Unit was also to terminate liability of the respondent for the wrongs committed by the members of the Heath Unit, which is discernible from the provisions of section 13 (2), the Legislature would simply and briefly have said so in the new
proclamation. This is so because the Heath Unit was not dissolved by reason of completion of its assignment but just for purposes of changing its head. All the express obligations of the Heath Unit under proclamation R66 of 1998 were passed on to the respondent in terms of clause 6 of Proclamation R118. Why should the Legislature be taken to have
removed the obligation as to liability of the respondent? The silence here is as to the non-liability of the respondent rather than its liability because the respondent’s liability is discernible from the provisions of section 13 (2) of the SIUST Act as a nominal defendant. If the Legislature wished to change this liability in proclamation R118 it imply would have said so.
This is the interpretation that ought to be adopted in respect proclamation R118 of 2001 herein which is interpretation that favours the individuals
affected by the provisions of section 13(3) of the SIUST Act which is a deprivative provision.
14.
On the basis of the aforementioned grounds, we are advised that the intended appeal has strong prospects of success purely on law and that it will be in the interest of justice that leave herein be granted. There is only one volume of the appeal record in this matter.
15.
In the premises, this honourable court is prayed to grant us an order in terms of the notice of motion.
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DEPONENT
I certify that the deponent to this affidavit has acknowledged that he knows and understand the content of this affidavit which was sworn to and signed before me at MTHATHA on this 18th day of
DECEMBER 2007, the Regulations prescribed in Government Notice No. R1258 dated 21st July 1972, as amended, having been complied with.
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COMMISSIONER OF OATHS ---
FULL NAMES
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