THE Constitutional Court had made a "significant" correction to a judgment that it handed down last year, it said on Monday.
It is rare for judgments of the highest court to contain factual errors. Although the counsel in the case thought the mistakes "may have been relevant to the outcome of the judgment", the Constitutional Court did not vary its order or reasoning.
It concerned an order by Judge Dennis Davis of the Western Cape division of the high court, in which he instructed the head of Western Cape immigration to report back to the court on procedures followed by immigration officials when they were served with urgent court orders and whether there was a plan to educate officials.
This followed an incident at Cape Town International Airport when Uzbek exotic dancer Violetta Mukhamadiva was refused entry and sent back to Uzbekistan — despite a court order.
Judge Davis did not hold the official who had dealt with Ms Mukhamadiva — a "Mr Grobler" — in contempt of court, but he ordered the report-back from the Department of Home Affairs.
The Constitutional Court judgment, written by Deputy Chief Justice Dikgang Moseneke, said Judge Davis’s "court-driven enquiry into hypothetical issues" was inappropriate. Once the contempt issue had been decided, that should have been the end of the matter, said Judge Moseneke. Judge Davis had "overstepped the bounds", he said.
The Constitutional Court’s judgment was handed down without a hearing and with no one to argue the case for Ms Mukhamadiva. She had already gone back, so there was no "live" dispute to decide anymore.
Instead, the court appointed Cape Town advocates — led by Anton Katz SC — to argue whether it should entertain the appeal.
Mr Katz and his juniors wrote to the Constitutional Court pointing out a "factual error and omissions" in the judgment.
Firstly, the judgment said immigration officials were unaware of the court order when Ms Mukhamadiva was put back on the aircraft. But Judge Davis had concluded Mr Grobler was likely to have been aware of it. Secondly, Mr Grobler was not held in contempt because he was acting on orders.
The advocates suggested that the court’s judgment "appears to be based on an incomplete appreciation of those facts" and did not "consider the apparent constructive and systemic contempt caused by the department’s attitude".
But alterations to the judgment released on Monday simply corrected the fact that Mr Grobler knew of the court order, but did not mollify the criticism of Judge Davis.
Judge Dennis Davis. Picture: MARTIN RHODES
THE Constitutional Court had made a "significant" correction to a judgment that it handed down last year, it said on Monday.
It is rare for judgments of the highest court to contain factual errors. Although the counsel in the case thought the mistakes "may have been relevant to the outcome of the judgment", the Constitutional Court did not vary its order or reasoning.
It concerned an order by Judge Dennis Davis of the Western Cape division of the high court, in which he instructed the head of Western Cape immigration to report back to the court on procedures followed by immigration officials when they were served with urgent court orders and whether there was a plan to educate officials.
This followed an incident at Cape Town International Airport when Uzbek exotic dancer Violetta Mukhamadiva was refused entry and sent back to Uzbekistan — despite a court order.
Judge Davis did not hold the official who had dealt with Ms Mukhamadiva — a "Mr Grobler" — in contempt of court, but he ordered the report-back from the Department of Home Affairs.
The Constitutional Court judgment, written by Deputy Chief Justice Dikgang Moseneke, said Judge Davis’s "court-driven enquiry into hypothetical issues" was inappropriate. Once the contempt issue had been decided, that should have been the end of the matter, said Judge Moseneke. Judge Davis had "overstepped the bounds", he said.
The Constitutional Court’s judgment was handed down without a hearing and with no one to argue the case for Ms Mukhamadiva. She had already gone back, so there was no "live" dispute to decide anymore.
Instead, the court appointed Cape Town advocates — led by Anton Katz SC — to argue whether it should entertain the appeal.
Mr Katz and his juniors wrote to the Constitutional Court pointing out a "factual error and omissions" in the judgment.
Firstly, the judgment said immigration officials were unaware of the court order when Ms Mukhamadiva was put back on the aircraft. But Judge Davis had concluded Mr Grobler was likely to have been aware of it. Secondly, Mr Grobler was not held in contempt because he was acting on orders.
The advocates suggested that the court’s judgment "appears to be based on an incomplete appreciation of those facts" and did not "consider the apparent constructive and systemic contempt caused by the department’s attitude".
But alterations to the judgment released on Monday simply corrected the fact that Mr Grobler knew of the court order, but did not mollify the criticism of Judge Davis.
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