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[2017] ZAWCHC 161
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Mthenjwa v Steyn and Another (9028/17) [2017] ZAWCHC 161 (30 November 2017)
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HIGH
COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case No: 9028/17
In
the matter between:
ADVOCATE
SEPHEKA
MTHENJWA
Applicant
v
JUDGE
ELIZE
STEYN
First
Respondent
NATIONAL
MINISTER OF
JUSTICE
Second
Respondent
Heard:
31 October 2017
Delivered:
30 November 2017
JUDGMENT
Tlaletsi
JP
[1]
The applicant, Mr Sepheka Mthenjwa, an admitted
advocate of the High Court of South Africa, residing at Unit […]
Village,
Kraaifontein, Western Cape issued a Notice of Motion
proceedings in which he sought leave or consent to institute legal
proceedings
against Judge Elize Steyn of the Western Cape Division of
the High Court, the first respondent. Further ancillary relief is
also
sought. The second respondent is cited as ‘National
Minister of Justice. No relief is sought against him.
[2]
The
applicant appeared in person. The relevant s 47(1) of the Superior
Courts Act
[1]
in terms whereof
the application is purportedly brought provides that:
"Notwithstanding any
other law, no civil proceedings by way of summons or notice2017 of
motion may be instituted against any
judge of a Superior Court, and
no subpoena in respect of civil proceedings may be served on any
judge of a Superior Court, except
with the consent of the head of
that court or, in the case of a head of court or the Chief Justice,
with the consent of the Chief
Justice or the President of the Supreme
Court of Appeal, as the case may be."
[3]
In simple terms what the section provides is that
before any person may institute civil legal proceedings, either by
way of summons
or Notice of Motion against any Judge of a Superior
Court, he or she must first obtain the consent of the Head of Court
to which
the Judge is appointed. Furthermore, a Judge may not
be served with a subpoena in respect of civil proceedings without
having
obtained the consent of the Head of Court. In this case
the Head of Court is the Judge President.
[4]
Before I deal with the merits of the application
it is necessary to dispose of the point
in
limine
raised by the first respondent.
It was contended on her behalf that the applicant failed to comply
with s 47(1) in that he
has not obtained the consent of the Judge
President in order to institute the application under consideration.
[5]
In my view, the objection raised by the first
respondent is significant. It is not a matter of form over
substance or simply
a procedural issue. It has both the
procedural as well as the substantive elements attached to it.
At a procedural
level, the inquiry is what procedure should a
prospective litigant wishing to institute legal proceedings against a
Judge follow.
The substantive level relates to the decision to
be taken by the Head of Court once he/she receives a request to give
consent to
institute legal proceedings against a Judge in his / her
Court.
[6]
In
N
v Lukoto
[2]
Ngoepe
JP had the opportunity to deal with an application brought in terms
of s 25(1) of the Supreme Court Act 1959, which is the
precursor to s
47(1) and had the following to say:
“
[4]
It is necessary to explain how such applications are traditionally
dealt with and the reasons therefor. Normally, it is the
Judge
President who would receive such an application, and consider it in
Chambers. This mechanism would quietly dispose of patently
frivolous
claims which might unjustifiably damage the reputation of a Judge.
Where there appears to be at least an arguable case,
the Judge
President would approach the Judge concerned. In appropriate
circumstances, the Judge President might even urge the Judge
to
oblige; for example, where there is a clear debt against the Judge.
The Judge President would impress on the Judge concerned
that those
who are the ultimate enforcers of the law must themselves make every
endeavour to observe it; also of importance
is to avoid the
appearance of a Judge as litigant in court, particularly in the lower
courts. Where there seems to be an arguable
case against the Judge
but the latter remains recalcitrant, the Judge President would give
the Judge the opportunity to oppose
the application for leave to sue
him/her. The matter may then be disposed of in Chambers or in an open
court, depending on the
intensity of the opposition. Once an
applicant shows good cause, leave would be granted.”
[7]
It is worth noting that in the
Lukoto
matter, the proceedings were initiated by a letter
from the Public Prosecutor, as the intended action related to a
maintenance inquiry.
The respondent did not oppose the request
and same was granted. After a lengthy delay and further
developments at the maintenance
inquiry the Public Prosecutor issued
another letter to the Judge President to seek consent. It was only
when it was clear that
leave to institute proceedings was opposed
that the Judge President directed that a formal affidavit be filed, a
case number be
allocated and the respondent be given an opportunity
to file an opposing affidavit. The matter was heard open court.
[8]
The
above seminal remarks in the
Lukoto
decision,
on the procedure to be followed in the institution of legal
proceedings against a Judge, were endorsed by Mlambo JP in
Engelbrecht
v Khumalo
[3]
as
follows:
“
In
essence the person seeking consent writes to the head of the court
concerned. On receipt of the request the head of court
discusses the matter with the judge concerned and may thereafter
either grant the consent requested or direct
that
a formal process be followed involving the filing and service of an
application accompanied by the necessary affidavits
.
The head of court will then hear argument and thereafter dispose of
the matter as he deems fit.”
“
I
followed a similar approach in this matter.
I
considered the correspondence from Engelbrecht and from the judge and
advised Engelbrecht’s attorneys that I was disinclined
to grant
consent based on the correspondence at my disposal. I advised
that should Engelbrecht be so inclined he was at liberty
to pursue
the matter formally through a court process where both parties would
be afforded the opportunity to file affidavits and
advance
submissions
.”
[Emphasis
provided].
[9]
The
procedure outlined in the
Lukoto
decision
was further endorsed in
Winston
P Nagen v The Honourable Judge President John Hlophe
.
[4]
In the
latter decision the letter seeking leave from the respondent to
institute action had a draft consent attached to it for signature
by
the Judge concerned. It was only after the claim was disputed
by the Judge that formal proceedings were pursued.
[10]
In
casu
the
applicant did not, before instituting the current application, seek
the consent of the Judge President either through a letter
or any
other form of informal request. He contended that it was not
necessary to seek permission or consent to institute
proceedings
against the Judge because a requirement that a letter should precede
the application is not a Rule of Court.
He submitted that the
requirement would offend against section 34 of the Constitution
[5]
which provides that: “
everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
The
applicant further contended that this application would, in any
event, have been necessary since the first respondent had denied
the
allegations forming the basis of the application at the Judicial
Service Commission.
[11]
The
constitutionality of s 25(1) of Supreme Court Act, 59 of 1959, was
considered in
Soller
v President of the South Africa.
[6]
In that matter it was contended
inter
alia
,
that the section violated a complainant’s right enshrined in s
34 of the Constitution. In dismissing the application
to
declare s 25(1) of Act 59 of 1959 unconstitutional,
Ngoepe JP correctly reasoned as follows:
“
[14]
It is true that s 25(1) of Act 59 of 1959 places a hurdle in the way
of a prospective litigant, namely, that leave first be
applied for
and obtained. Is the section justified? Broadly, the purpose thereof
is to ensure the independence of the Judiciary.
The oath which Judges
take upon assumption of office requires of them to adjudicate matters
fearlessly. This they can only do if
protected against
non-meritorious actions. Judges should not, in the execution of their
judicial functions, be inhibited by fear
of being dragged to Court
unnecessarily over their judgments. Such a threat could have a
chilling effect on the execution of their
duties (cf May's case,
supra at 19H). Furthermore, Judges should rather spend time hearing
matters than defending themselves against
endless unfounded civil
claims. The very nature of the duty of a Judge is such that it would
open them to such litigation: a Judge's
task is to resolve disputes,
inevitably leaving one person or the other dissatisfied; moreover
they are, in the process, required
to make findings on the
credibility, honesty and integrity of witnesses and litigants and to
justify those findings.
[15] Some of the people
not sufficiently acquainted with the execution of judicial functions
may tend to think that Judges are not
accountable for their
decisions. Nothing is further from the truth. Judges are expected to
justify every decision they take: they
must give full reasons
therefor. Surely that is being accountable, not only to the
litigants, but to the public at large. The latter
are entitled to
know why and how a particular decision was arrived at and if they so
wish, make informed criticism of the judgment,
including questioning
its correctness. For them to be able to do so a Judge owes them the
reasons for his/her decision. How, then,
would Judges be able to
account for their adverse findings on the character of litigants or
witnesses without exposing themselves
to an avalanche of
non-meritorious civil actions by disgruntled litigants if there were
to be no sifting mechanism? Were
they, under those
circumstances, nonetheless stoically to continue to do their work as
they should, they could find themselves
spending more time in court
as defendants than as adjudicators of disputes. The administration of
justice would be hampered, and
genuine litigants would be seriously
prejudiced.
[16] The section does not
completely take away the right to sue except in instances where the
claim has no merit; but, a question
may be asked, who on earth has a
'right' to prosecute a frivolous or non-meritorious claim?
Furthermore, where leave has been refused,
an applicant can appeal”
The
above reasoning and conclusion are equally applicable to s 47(1) and
as such the applicant’s contention that s 47(1) is
unconstitutional is without merit.
[12]
I now revert to the question whether this
application should have been preceded by a request for leave to the
Head of Court.
In my view, the words employed by the
legislature in s 47(1) are couched in peremptory terms. The
legislature’s intention
is to prohibit the institution of any
civil proceedings, be it by way of summons or by Notice of Motion,
against a Judge without
the consent of the Head of that Court in
which the Judge serves. The question to be asked is whether the
proceedings under
consideration constitute civil proceedings by way
of Notice of Motion referred to in s 47(1). These proceedings
were initiated
in the form of a formal application issued by the
Registrar of the Court without the knowledge and involvement of the
Head of Court.
The application was served on the first
respondent placing her on terms to respond to the substantive
allegations made in the founding
affidavit and annexures thereto.
She was required to respond within a time frame as prescribed by the
Uniform Rules of Court.
The proceedings were not specifically
directed at the Head of Court. The Head of Court only came into
the equation right
at the end of the spectrum, after pleadings have
closed and the matter was ripe to be heard. Once the
application was issued
by the Registrar it became a public document
to which any member of the public had access. It follows that
the present proceedings
constitute proceedings referred to in s 47(1)
and therefore, leave of the Head of Court was necessary before they
could be instituted.
[13]
There are good reasons why a form of ‘
informal’
notice or communication to the Head of Court is
necessary before formal legal proceedings to obtain consent are
instituted.
This is the substantive aspect of the requirement.
The Head of Court must first determine whether the claim,
to which the request for consent relates, would have merit if
instituted. He/she would also take the matter up with the Judge
concerned and where appropriate, impress upon the Judge to satisfy
the claim/demand or accede to the consent. Where the Judge
unreasonably refuses to satisfy the claim or accede to the request, a
party seeking consent would be granted consent to bring a
formal
application. In such event the Judge would be exposed to filing
papers in response to the application which may ultimately
be
adjudicated either in chambers or in open court.
[14]
The
requirement to bring a request before issuing a formal application to
seek consent serves as a screening process for the Head
of Court.
It contributes to the need to insulate Judges against ill-conceived
and unwarranted legal proceedings. This
statutory requirement
for the insulation of Judges should therefore start at the very
beginning when legal proceedings are contemplated
and not only when
substantive proceedings are instituted. The requirement for an
informal request to institute proceedings is not
intended to be a
mere courtesy, but an opportunity for the Head of Court not to allow
baseless, unwarranted and ill-conceived litigation
against the
Judge.
[7]
The Judge
who refused to heed the advice of the Head of Court to settle the
dispute or agree to the consent exposes
himself/herself to a formal
application for consent to the Head of the Court.
[15]
In conclusion I find that the application brought
by the applicant is fatally defective on two fronts. Firstly,
it is not
directed at the Head of the Court. It is issued
through the Registrar’s Office and directed at the Court.
Secondly,
the application is issued without the consent of the Head
of the Court. For these reasons the application falls to be
dismissed.
[16]
Unfortunately the allegation that the first
respondent lied is in the public domain. She was forced to file
an affidavit to
respond to the allegations against her. The
conduct of the applicant has defeated the whole purpose of s 47(1).
In
any event the application itself is, as will be shown hereunder,
without merit. A brief factual background to the application
is
necessary to illustrate my point.
[17]
It is common cause that on 02 September 2014 the
applicant was employed as counsel for an applicant in an urgent
application that
served in the Western Cape High Court. The
first respondent was an Urgent Court Judge and therefore this matter
was assigned
to her. She received the file shortly before
lunch. The parties were informed that the matter would be
called as soon
as the first respondent was ready to hear it.
[18]
During the course of the day the Registrar, on the
direction of the first respondent, contacted the parties to notify
them that
the Judge was ready to hear the matter. The first
respondent was advised that the respondent’s legal team was
already
waiting in the allocated courtroom. The applicant and
his instructing attorney were at the time not present. Shortly
after 16h00 first respondent was informed that the applicant’s
representative in the matter had arrived and that the matter
could be
heard.
[19]
When first respondent entered the courtroom, the
applicant’s representative had disappeared. The first
respondent instructed
the court orderly to call his name as well as
that of his counsel (the applicant) outside court. None turned
up. The
Court orderly could also not explain to the Court what
happened to the representative who was in the courtroom earlier.
Counsel
for the respondent was given an opportunity to address the
Court. In his opening address he informed the Court that he
telephonically
spoke to the applicant and informed him that the
matter was ready to be heard. The applicant replied that he was
in Kraaifontein
en route
to
the Court; he requested the respondent’s counsel to stand the
matter down until he arrived. The respondent’s
counsel
told him it would be in the court’s discretion whether to grant
the indulgence and not up to him to stand the matter
down.
[20]
Counsel for the respondent (in the urgent
application), with leave of the first respondent, made submissions to
the Court on the
merits of the application and also prayed for the
dismissal of the application with costs. Thereafter the first
Respondent
made the following pronouncement:
“
Court:
It is now nearly quarter past four. It is about an hour since
we contacted the applicant in this matter who brought
an urgent
application to this court to hear an urgent application. We
asked them to come to court, we are told that the applicant’s
attorney appeared briefly and disappeared. We haven’t
heard anything further from either of them regarding their absence.
I do not think that it would be fair to keep everybody else waiting
any longer in any event.”
The application was
dismissed with costs at 16h14. This was after the first
respondent had satisfied herself that the application
was totally
without merit and fatally defective given that there had been no
service of the application on the respondent who was
only identified
and cited as ‘The Purchaser’ in the application.”
[21]
The first respondent returned to her chambers to
attend to among others, a matter which was scheduled to be heard at
16:15.
Upon reaching her chambers she was informed that the
applicants had arrived and were in the courtroom. First
respondent returned
to the courtroom. She addressed the
applicant as follows at 16:16:
“
Mr
Mthenjwa, will you please stand up: The Court has granted an
order in this matter. We have waited for an hour for
your
appearance. We have not been informed that you are on your way
and that you are close and that you are nearly here.
There is
no merit in this application in any event. If you are not happy
with the order of the court, you can ask for leave
to have it set
aside. That is all. Thank you very much. The court
will adjourn. (at 16:18).”
[22]
These latter remarks by the first respondent are
the main cause of controversy which precipitated this application.
The applicant’s
cause of action is outlined in paragraph 5 of
his founding affidavit as follows:
“
What
is clearly in dispute is that the first respondent, in reconvening
the court after my arrival, lied by saying she had never
been
informed of my request to stand the matter down until my arrival.
She repeated this denial in her response to the Judicial
Service
Commission when she was asked to reply to the allegation of the lie
that I levelled against her.”
[23]
In short what the applicant is contending is that
the first respondent “lied” to him in court after it was
reconvened
by saying she had never been
informed
of his request to stand the matter down until his arrival.
In response to paragraph 5 of the founding
affidavit the first respondent states that:
“
The
statement that I “lied” is clearly defamatory and I
reserve my right to deal therewith in due course should I so
decide
or be so advised.
However, Advocate
Mthenjwa has, at best for him, misunderstood or misconstrued what I
said which appears at page 7 of the transcript.
In saying ‘We
have not been informed that you are on your way and that you are
close and that you are nearly here,’
what I was conveying was
that, had I been told that they were close, I would obviously have
stood the matter down for a short while,
say five minutes, to enable
them to get to Court, given that I had already been waiting for
almost an hour. However, they
were not contactable. This
does not contradict the fact that I knew, because Advocate Rabie
informed me as much, as appears
from page 2 of the transcript that
Advocate Mthenjwa had much earlier indicated that he was in
Kraaifontein and that he was en
route to the Court and that he
requested the matter to stand down. While being fully aware of
that, I had not been informed
how much longer I would be expected to
wait and I was not, in the circumstances, prepared to wait
indefinitely for advocate Mthenjwa
and his attorney to make their
appearance. Then I was told that representatives of the
applicant were in court but when I
arrived in court, such person had
left. I may have expressed myself badly, but in saying I did
not know where they were,
that part of what I referred to and what I
meant to convey in the part of the record that appears at page 7 of
the transcript.”
[24]
For
the applicant to be granted leave to institute proceedings against
the first respondent he has to satisfy the requirements of
“
good
cause”.
The
following passage from
Soller
v President of the Republic of South Africa
[8]
sets
out the correct legal position:
“
[9]
For leave to be granted in terms of the section, "good cause"
must be shown, Erasmus Superior Court Practice Al-76.
Whether or not
good cause has been shown, will depend on the facts and circumstances
of each case. It is of course common cause
that the words were
uttered, and published, by the Judge. The words, ordinarily speaking,
would be defamatory. The question is
whether, given the context in
which they were uttered of the applicant, the applicant has shown
good cause for the purpose of obtaining
the leave required. It is
trite law that a judge enjoys at least a qualified privilege when
executing judicial functions. After
examining authorities regarding
the position of non-judicial officers (eg counsel, witnesses etc)
Joubert JA says the following:
"As regards the
legal position of a judicial officer I must stress the fact that the
law requires of him to be 'capable of
doing as part of his duty
everything which makes for the tracking down of the truth and the
‘administration of justice'...
The nature of his judicial
duties are such that a judicial officer is more often than not active
in a sphere where the performance
of his judicial duties exposes him
to the risk of injuring a person in his reputation. It is for this
very reason that there is
according to our common law a rebuttable
presumption that a judicial officer, who defames someone in the
exercise of his judicial
authority, does so lawfully within the
limits of his authority. "[May v Udwin
1981 (1) SA 1
(A)
19C-F".]
The application must
be considered against this background.”
[25]
In
Engelbrecht
v Khumalo
[9]
supra, Mlambo JP restated the position as follows:
“
The
test is no different regarding matters where consent is sought, as is
the case in this matter, to institute legal proceedings
against a
Judge. In this context a court would consider whether on the
facts before it an arguable case calling for an answer
by the Judge
is made out, and whether it is fair, just and equitable between the
parties to grant or refuse consent. Simply
put the issue is
whether the proceedings, for which consent to litigate against a
judge is sought, contains a justiciable issue.”
[26]
In my view, the applicant has failed to meet the
threshold of good cause. What he perceived to be a lie has been
fully explained
by the first respondent. What the first respondent
said must be understood within the context of the information already
known
to her which was already on record. Nowhere in the transcript
is it reflected that the first respondent said that she was not
informed
of the applicant’s request for the matter to be
adjourned until his arrival. No malice can reasonably be
inferred from
the words uttered by the first respondent in Court.
[27]
Reference was made to the first respondent
repeating her denial as she did in a dispute the applicant referred
to the Judicial Service
Commission. Reading the extract of the
decision of the Judicial Conduct Committee, attached to the
applicant’s founding
affidavit, the first respondent disclosed
that the respondent’s counsel informed her from the bar that he
had been in contact
with the applicant who requested that the matter
stand down. There is therefore no inconsistency between what
the first respondent
says in these proceedings and what she conveyed
to the Judicial Conduct Committee.
[28]
The applicant does not disclose the intended legal
proceedings against the first respondent in his papers. In
response to
my question, he intimated
inter
alia
, that the nature of the
proceedings would be decided once leave to institute proceedings has
been granted, and that it is not necessary
to disclose that at this
stage. It is fundamental that an indication be given before
leave to litigate is granted so that
the Head of Court can be in a
position to assess whether there is an arguable or justifiable case
the Judge has to face.
A blanket leave to institute proceedings
would defeat the very object of s 47(1) of the Superior Courts Act
and open Judges to
frivolous and ill-conceived litigation.
[29]
There is one general observation I wish to make.
The applicant is quite indifferent in his conclusions. His
incautiousness
was expressed in his papers and during his address.
He accused the first respondent of racism, “
attempted
bribe”,
that “…
it
brings out her deceitful character…”
These are strong allegations which should not be
lightly made against a person, worse against a judicial officer.
[30]
In summary, I find that the application is
defective for failure to comply with s 47(1). On the factual
and legal basis I
cannot find that there is an arguable case made out
which warrants the granting of leave to institute legal proceedings
against
the first respondent. I am mindful of the fact that, at
this stage of an inquiry, the applicant merely needs to establish
a
prima facie
case
and not to prove his case on a balance of probabilities. The upshot
of this is that the application must fail.
[31]
In light of my decision and the fact that no
relief is sought against the second respondent, it shall not be
necessary to decide
whether there is any connection between the
second respondent and the Judges, and whether the second respondent
is vicariously
liable for the actions of Judges. There is no reason
why costs should not follow the result.
[32]
In the result I make the following order: -
Order:
The application is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
__________________
L. P TLALETSI
JUDGE PRESIDENT
Northern
Cape High Court, Kimberley
[10]
Counsel:
For
the Applicant:
IN PERSON
For
the First Respondent: Mr. I JAMIE SC with Mark Filton
Instructed
by: State Attorney, Cape Town (L.S Ngwenya)
[1]
Superior Courts Act 10
of 2013
which came into operation on 23 August 2013.
S 47(1)
repealed s 25 of the Supreme Court Act 59 of 1959 and
s 5
of the
Constitutional Court Complementary Act 13 of 1995
.
[2]
N
v Lukoto
2007
(3) SA 569
(TPD) at 572B-E par 4.
[3]
Engelbrecht
v Khumalo
2016
(4) SA 564
(GP) at 566H-567C.
[4]
Winston
P Nagan v Honourable Judge President John Hlophe
(unreported:
Western Cape High Court, Cape Town, case number 100061/08 delivered
on 19 March 2009
).
[5]
Act
108 of 1996.
[6]
Soller v President of
the Republic of South Africa
[2005] ZAGPHC 13
;
2005
(3) SA 567
(T) at par 14 – 16.
[7]
Soller v President of
the Republic of South Africa
[2005] ZAGPHC 13
;
2005
(3) SA 567
(T) at para 14.
[8]
[2005] ZAGPHC 13
;
2005
(3) SA 567
(TPD)
at
para
[9]
.
[9]
Para
[8] (see also
Winston
P Nagan v Honourable Judge President John Hlophe
[unreported:
Western Cape High Court, Cape Town, case number 100061/08 delivered
on 19 March 2009]. In this case Majiedt
J referred to an
“arguable case” at para 10 having agreed to the test in
the
Soller
decision.
[10]
Duly
appointed by the Minister of Justice and Corrections to preside in
this matter.