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[BATTLE LINES DRAWN BETWEEN MTSHAULANA AND SIMELANE]
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19 March 2007
ADV. PATRIC MZOLISI MTSHAULANA SC
DUMA NOKWE GROUP OF ADVOCATES
Fountain Chambers
86 Maude Street
cnf Gwen & Maude Streets
Sandown Village
SANDTON 2196
e-mail personal: mtshaula@duma.nokwe.co.za
personal assistant: Ms N Tshankie
e-mail: pm@duma.nokwe.co.za
P.O. Box 784845
SANDTON
2146
DOCEX 176, Johannesburg
Cell +27824685346
Tel: +27112823700
Fax: +27118848019
19 March 2007
Mr Sham Symon SC
Chairman: Professional Committee
c/o Group One
Sandown Village
Sandton
Tel: +271129040000
Fax: +271178363331/4
Dear Sham
Re: Complaint by Mr B Q P Simelane
1 Your letter dated February 2007 refers. This particular letter enclosed a copy of a complaint by Colonel Simelane against me.
2 Colonel Simelane is a former MK combatant who worked in Zimbabwe at the office of the Minister of Justice as a State Advocate/Attorney. From his CV it does look like he gained a considerable legal experience in that office.
3 In 1996 he returned to South Africa and joined the SANDF. According to the procedures then applicable, he had to obtain a certificate from his former force (MK) certifying that he was indeed a member of the force and indicating the rank he occupied in that force.
4 This information would then be taken into account in determining his rank in the SANDF. The ANC gave him the rank of Colonel and this was a rank conferred on him by the SANDF.
5 Colonel Simelane was not satisfied with this rank and has been fighting to be awarded the rank of Lieutenant General. This matter has gone to almost every possible legal institution. The matter has been taken to the Human Rights Commission, the Public Protector, the Public Service Commission, the Labour Court and the ordinary Courts in the TPD.
6 Colonel Simelane argues that when he was in Zimbabwe he was occupying a position which if translated in the military milieu compares to Lieutenant General. The State on the other hand has been arguing that the appointment of Lieutenant General is a prerogative of the President of the country and that his rights in Zimbabwe or the position he occupied in Zimbabwe is completely irrelevant to the position he would be awarded in South Africa. I started the matter initially as a junior to Marcus SC but later continued alone and later I brought in Jabu Luvuno as my junior.
7 The application was originally filed in December 2001. In January 2002, there was an amendment of the prayers.
8. The reason why the application was lodged in 2001 was because [sic] the Act in terms of which soldiers could still approach the Labour Court was to expire on the 31st of December 2001. When the amendment was filed we wrote the applicant stating that we did not think that a new cause[sic] of action could be added after the 31st of December. This particular point led to a series of exchanges of letters between my attorney and the attorneys of the applicant.
9. Anyway, as a result of these exchanges, the answering affidavit of the State was delayed. This resulted in Colonel Simelane bringing an application in August/September for the application to be dismissed, alternatively to have the respondents compelled to file their papers.
10. Thereafter there were other matters filed by Colonel Simelane. One such matter came before Justice Ledwaba in September 2004. Justice Ledwaba issued an order that Colonel Simelane must ask the Chief of the South African Defence Force [sic] and the Minister to give him a hearing. The order further went on to state that he would not be allowed to set down any of the matters that were before the Courts until he had had that meeting.
11. In November 2004, Colonel Simelane saw the Chief of the South African Defence Force [sic] Following that meeting he decided that it would be a waste of time to see the Minister. He then set the Labour Court matter down for 3 February 2005.
12 In December he called a pre-trial conference to explain why he had decided to set he[sic] matter down and to explain why he thought that his setting the matter down was not in disregard or breach of the Court order, but that he had substantially complied with the order although he had not seen the Minister. After a long discussion, the parties decided to postpone the pre-trial conference to January 2005.
13 At the meeting in January, the parties then agreed that a Special Appeal Board would be called to hear Colonel Simelane’s complaint or appeal. The parties further agreed that the matter set down for 3 February 2005 would be postponed sine die.
14 The Appeal Board was convened in May 2005. It ruled against Colonel Simelane. He sought to review their decision.
15 Without giving the State notice, he brought an application for dismissal in September of 2005. The matter came before Her Ladyship Justice Revelas, who postponed the matter to November 2005. According to her, she had given the instructions to the applicant to give notice to the respondents that the matter would appear on that date. When the matter came before her again in November 2005, she again postponed the matter to December 2005, again in the hope that the parties would be informed and that the matter would go ahead. When the matter came again in front of her in December, she then agreed to issue a rule nisi calling on the State to show cause why she should not give a final order.
16 In January 2006, when we returned from holiday and we found this order, we were surprised because we could not understand how this whole thing had happened. This resulted in a very big affidavit by the respondents explaining why the application for rule nisi had been irregular and challenging it and asking the court to discharge the rule. However, when we arrived in Court, her Ladyship Justice Revelas explained that she had issued the rule nisi just to ensure that the parties came before her so that she could deal with the matter. She explained that now that we were before her, she wanted the parties to arrange a date which would be convenient to both to deal with the matter. The parties then set down and agreed on a date in June.
17 When the date came however, the applicant’s advocate Mr Duba passed away and the matter had to be postponed. The date set was somewhere in September 2006. When this date came, no Judge had been allocated and therefore the matter had to be postponed once more. The only date available was the 8th of December 2006.
18 In the meantime Justice Revelas who had been dealing with the matter or ready to deal with the matter had been appointed as a Judge in the Eastern Cape. She had written a letter indicating that she would now not be able to deal with the matter and that we must ask for another Judge. When we arrived in Court on the 8th of December 2005, we found her on the bench, we were in a way happy because we knew that she had some knowledge of the matter. Let me make haste to state that that matter is voluminous, probably more voluminous than this complaint. But during the course of the day it became clear that there was a possibility that we may have to come back the following week. Judge Revelas asked us to work through lunchtime, as a result we finished the matter at 16H00.
19 When we finished I thanked her for going out of her way to accommodate us and in particular for being prepared to work through the lunch hour. I felt that this was something we could not take for granted. Thereafter, she asked us to leave Court because she was still busy with something she wanted to finish. At that moment we were busy packing our files and because she was quite[sic] on the bench, it felt very uncomfortable to me that we could continue to be making the noise whilst the court was in session, as it were. I then indicated to her that I felt very uncomfortable, in the light of the advocates’ rule, that if you are the last advocate in Court, you do not leave until the Court has risen. She then immediately indicated that she understood and she rose up and she went to her office. Thereafter we then collected our boxes and left.
20 Normally I do not work in December, that is the time I have with my children. I agreed to the 8th of December 2006 because I felt it was important to accommodate the applicant because of the failed attempts described above. However, we had already booked a holiday with my family. My son and his friends had to sit in Sun City from Monday to Friday and we were to join them that Friday. In the meantime, my mother-in-law from Holland and her partner had arrived and were also going to Sun City the same day.
21 Before leaving home I had promised that I would join them around 15H00 and that we would leave together, but that if I was late, they must leave. Because I did not even have a lunch hour, I did not even have the opportunity to indicate that I would be late.
22 So, once I was finished with Court, the next thing I did was to pack my bags and I drove straight to Sun City. I told my junior to collect all the files including mine and to try and deliver them in the office. The story that I saw Judge Revelas in her chambers after that is not and cannot be true.
23 The other complaint against me relates to my appearance before Judge Bettelsman[sic]. In that matter I had appeared before Judge Ledwaba in June/July of 2006. It was an application in which Colonel Simelane wanted an interim order, ordering the Department to keep him on his job pending an application to review a decision to send him on retirement. He lost that application.
24 In September 2006, he tried to bring another application which was substantially similar to the application brought in July 2006. Our defence to this application was amongst others, res judicata. There were other defences.
25 When the matter was called in Court, Justice Bettelsman[sic] asked me to stand up first to explain why he should not give the order as requested. You will know that this usually happens when the Judge is not with you. I stood up and explained to him why he should dismiss the application. Justice Bettelsman[sic] did not agree with my interpretation of the Judgement of his Lordship Seriti J.
26 On the matter of res judicata, however, he seemed in the long run persuaded that the matter could be res judicata.
27 Once he saw that aspect, the[sic] then decided to leave the merits on which we disagreed but to deal with the matter res judicata.
28 He then called Mr Simelane and explained to him that he intended to deal with the matter of res judicata in terms of Rule 33(4) (separation of matters). At this point he gave Mr Simelane an opportunity to address him only on res judicata.
29 Mr Simelane in his complaint says that my address was irregular. The point is I had been asked by a Judge to stand up and address him. I do not know what other choice I had. Could I refuse when the Judge says I must address him?
30 I will then leave the matter to the Professional Committee to deal with this complaint. I would however be very happy if the Professional Committee would deviate from its normal procedures and ask someone from outside Johannesburg to preside or deal with this. As you can see, there are complaints against Judges in Pretoria. Maybe getting someone from that jurisdiction to deal with the matter will avoid Johannesburg being accused of having dealt with the matter of its Vice-Chairman and thus allowing him to influence the outcome of the matter. If Pretoria does not have someone, you can go and ask somebody from somewhere else. I do ask that the matter must be dealt with by someone who will give a proper[sic] reasoned explanation. I have tried to be cool, but this is the first time that somebody accuses me of the things that Mr Simelane accuses me of, namely corruption, and so on.
31 I do not deal with matters which have been referred to the NPA. In this regard, I invoke my right to remain silent in respect of those matters because they are criminal in nature. I will deal with them when the police or the prosecutors come to charge me with corruption and defeating the ends of justice.
Yours sincerely
(SIGNED)
P M MTSHAULANA SC
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| Advocate P M Mtshaulana SC Image Courtesy Sowetan |
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