The two Special Constables, Olebile Modisakgosi and Gagoleame Poromate, though they won their challenge at the High Court, they could not maintain their winning streak at the Court of Appeal (CoA) this Tuesday. The CoA bench of Justices Isaac Lesetedi, Goemekgabo Tebogo-Maruping and president Tebogo Tau held the appeal by the BPS on reasons that the duo had failed to follow court rules when filing their review application. The Commissioner of Police, Senior Assistant Commissioner and others filed an appeal with the higher court following a High Court judegment setting aside the Commissioner’s decision not to elevate the special constables to the position of constables. In Justice Lesetedi’s reason, he said it was a case where the two could not be permitted to abuse the court process whilst closing the door to a party whose breach of the rules carried little if any whim of deliberate intention to prejudice the other side. “The appeal must on that ground stand. An abuse of court process is more a bad conduct and a court should not tolerate it in order to send a message that it will not countenance a deliberate subversion of legal process,” he said.
He explained that it has always been well established even before the introduction of Order 61 (8) into the rules that applications for judicial review should be brought expeditiously and that where there has been an undue delay, the applicant must render a satisfactory explanation of such delay justifying bringing the review application late. Justice Lesetedi pointed out that Order 61 (8) was introduced to bring certainty on the time frame for timeous filing of applications for judicial review and on when the applicant for judicial review loses the entitlement to file such application as of right. “It, however, left a window for the court to grant leave for bringing the application out of time where good cause is shown. From the authorities, it is also clear that filing of an application for review outside the prescribed procedure in order to avoid the time limits imposed under Order 61 (8) is presumptively prejudicial to the respondent in the review application,” he said. He emphasised that on the police side, they raised their complaint without giving the other side 10 days notice to remove the cause of complaint and that prejudice was a relevant consideration in deciding whether or not to condone the non compliance by either side.
