S.V.M v S and Others (19275/20) [2021] ZAWCHC 260; 2022 (1) SACR 313 (WCC) (7 December 2021)

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[2021] ZAWCHC 260
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S.V.M v S and Others (19275/20) [2021] ZAWCHC 260; 2022 (1) SACR 313 (WCC) (7 December 2021)

SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 19275/20
In the matter
between
LIEUTENANT
COMMANDER S[….] V[….].

PLAINTIFF
M[….]
And
THE
STATE

FIRST DEFENDANT
PRESIDENT

SECOND DEFENDANT
MINISTER OF
DEFENCE

THIRD DEFENDANT
CHIEF OF THE
SOUTH AFRICAN NAVY
FOURTH DEFENDANT
OFFICER IN CHARGE
LEGSATO CAPE TOWN
FIFTH DEFENDANT
MR MARCEL DE
WIT
SIXTH DEFENDANT
MINISTER OF
POLICE
SEVENTH DEFENDANT
AND
NATIONAL
PROSECUTING AUTHORITY
THIRD PARTY
JUDGMENT
delivered 7 December 2021
THULARE AJ
[1] This should be
an application as envisaged in section 2(1)(b) of the Vexatious
Proceedings Act, 1956 (Act No. 3 of 1956) for the
plaintiff to be
granted leave to institute proceedings against the defendants. An
order had been granted, on 14 September 2018, that
no legal
proceedings shall be instituted by the plaintiff against any person
in any court without the leave of that court. It was
for the
plaintiff to satisfy the court that the proceedings were not an abuse
of the process of the court and that there was a
prima facie
ground for the proceedings.
[2] A judge
allocated to attend to the matters filed by the applicant has to read
on average 500 pages of ‘urgent applications’
at his instance. In
my view, reference to just a few documents will suffice. The first
will be the ‘draft order’ prepared by
the applicant and filed on
12 November 2021. The draft order, which followed the notice of
motion, read as follows:
“
DRAFT
ORDER
Having read the documents filed
of record, heard counsel and considered the matter:
IT IS ORDERED THAT
1.
The application is enrolled as an urgent
action.
2.
The bail condition against the Plaintiff by
the Magistrate Court of Simons’ Town is unconstitutional, unlawful,
invalid and set
aside.
3.
The First Defendant must respect, protect,
promote and fulfil the Plaintiff’s rights enshrined in the Bill of
Rights.
4.
The Plaintiff has inherent dignity and the
right to have His dignity respected and protected,
5.
The Plaintiff has the right to life.
6.
The Plaintiff has the right to freedom and
security of the person, which includes the right not to be tortured
in any way.
7.
The Plaintiff and no one must be subjected
to slavery, servitude or forced labour.
8.
All Defendants are employed by the First
Defendant to fulfil the obligations imposed by the Constitution and
the law.
9.
The Second Defendant must by proclamation
declare the replacement of the terms “let us live and strive for
freedom in South Africa
our land” with “let us live and enjoy
freedom in the Universe our home” in the national anthem of the
Republic.
10.
The First Defendant must arrest the decline
in critical capabilities through immediate directed interventions as
mandated by the South
African Defence Review 2014 and imprison other
Defendants for life for torturing the Plaintiff.
11.
The First Defendant must remove Second
Defendant from office on the grounds of a serious violation of the
Constitution or the law,
serious misconduct, or inability to perform
the functions of office and compel the National Assembly to fulfil
the obligations imposed
in terms of section 89 of the Constitution.
12.
The First Defendant must ensure that all
organs of State including all Defendants fulfil their respective
constitutional mandates.
13.
The Second Defendant must cancel a
permanent commission of the Fourth and Fifth Defendants for crimes
against the State and the administration
of justice.
14.
The Second Defendant must remove from
Office the Third and Seventh Defendants for crimes against the State
and the administration
of justice.
15.
The Second Defendant must remove the Sixth
Defendant from office for unlawfully and intentionally making a false
entry on a DOD PERSOL
System to the actual or potential prejudice of
the Plaintiff.
16.
The Seventh Defendant must without delay
process SAPS CAS No 150/5/2020 registered on 2020-05-29 at Khuma
Police Station.
17.
The Plaintiff has security of tenure to
land and property No 4 Cable Hill Road Simon’s Town 7975 and
comparable redress.
18.
The immediate retrospective reinstatement
of the Plaintiff’s salary, benefits and allowances to be paid into
the following banking
details within 3 days:
BANK NAME: CAPITEC
ACCOUNT NUMBER: [….]
BRANCH CODE: 470010
ACCOUNT HOLDER: S[….] V[….]
M[….]
19.
The Plaintiff he hired an Executive Range
of a Lexus pending the return at 100% working condition of His Lexus
IS 250 SE registration
[….] at the First Defendant’s expense.
20.
The Fifth Defendant must allow the transfer
of Case No A666/20; A718/20 and M503/20 from the Simon’s Town
Magistrate Court in order
to maintain military discipline and ensure
a fair military trial to the Plaintiff.
21.
The order issued on 14 September 2018 in
terms of Case No 15141/2018 is rescinded.
22.
The Defendants be ordered to pay the
costs.”
[3] Amongst the many
papers filed is one titled “Role of Parties”. It’s first two
paragraphs read:
“
TAKE
NOTICE that the above-named Plaintiff has commenced proceedings
against the above-named Defendants for the relief set forth in
the
notice of motion to be heard on Tuesday on the 5
th
day of January 2021 at 10H00 or as soon thereafter as the parties may
be heard, a copy of which is herewith served upon you:
1.
Lieutenant Commander S[….] V[….] M[….]
(hereinafter referred to as the Plaintiff) defends and protects the
Constitution, the
territorial integrity and the national sovereignty
of the Republic and our democracy, against all enemies, foreign and
domestic.
His inalienable right to life guaranteed in the Bill of
Roghts of the Constitution is entrusted to the nation and the State,
and
has pledged to serve and defend the Republic of South Africa in
accordance with the Constitution and the law, and with honour,
dignity,
courage and integrity.”
[4] Paragraph 3 of
the papers titled “Founding Affidavit” read as follows:
“
3
The Republic of South Africa is
in a critical decline as a result of corruption deeply rooted in
organs or the First Defendant, including
in the legislature, the
judiciary and the national executive. For simply refusing to be part
of corruption, the undersigned is denied
all his inalienable rights,
without shelter, food, and all his personal belongings in the streets
and the National Flag on the muddy
ground of Simon’s Town as
ordered by the incumbent President Cyril Ramaphosa. All that has been
happening was to suppress the truth.”
[5] On 3 December
2021 the plaintiff issued an email addressed to a multiplicity of
persons within various organs of State, State
institutions and
Government Departments. Amongst the recipients were the Court Manager
at this High Court, and the Provincial Head:
Administration: Office
of the Chief Justice. The introductory part thereof reads as follows:
“
Good
day
On
7 December 2021 at 10h00 in terms of section 14 (1) (a) of the
Superior Courts Act Case Number (s) 15141/2018; 19275/2020 &
18063/2021 will be heard.
The
Court Manager is requested to ensure that there is a projector and
audio speakers available in court as there is video evidence
that
must be presented.
The
national anthem affects us all, including our children and their
children's children, and it is trite that "A child’s best
interests are of paramount importance in every matter concerning the
child".
I
am the Defence Force.
I
serve and defend my country and its people in accordance with the
Constitution and the law, and with honour, dignity, courage and
integrity.
Without
fear, favour or prejudice, the Acting Chief Justice Ray Zondo must in
terms of section 165 (6) of the Constitution, read with
section 47 of
the Superior Courts Act and Rule 38 (1) (a) of the Uniform Rules of
Court ensure that all witnesses attend court on
7 December 2021 at
10h00.”
[6] For convenience
I will use the names as assigned to parties by the applicant. The
plaintiff’s right to legal representation,
including the right to
approach Legal Aid South Africa, local Universities, the Legal
Practice Council and the Cape Bar Council for
assistance was
explained, and he elected to conduct his own case. An “urgent
application’ of the plaintiff, against the Minister
of Defence and
others was struck off the roll on 31 August 2021 for failure to
comply with the court order of 14 September 2018.
Mangcu-Lockwood J
ordered the plaintiff to pay the costs of that ‘urgent application’
on an attorney and client scale and further
ordered that the
plaintiff shall only be allowed to sue, even if he had been granted
leave, only after paying the costs of the application
then before
her.
[7] Both orders of
14 September 2018 and 31 August 2021 were disregarded. The notice of
motion had two stamps of the Registrar in
the General Office, the one
dated 30 December 2020 and the other dated 13 January 2021. All that
the plaintiff did on 11 November
2021 was to file a notice of set
down. The next day, the 12
th
November 2021 he filed the
draft order, the index and a list of 38 authorities he relied on. The
rate at which the plaintiff is filing
documents at court, almost
every day, is causing a great inconvenience to the administration of
justice. He has become an annoyance
to the court administration
moreso because it is either his way or the high way in how the
matters are to be dealt with, which often
called for the intervention
of security either to calm him down or to remove him from one office
or the other.
[8] Section
27(1)(a)(ii) of Mental Health Care Act, 2002 (Act No. 17 of 2002)
read as follows:
“
Application
for assisted care, treatment and rehabilitation services
27. (1)(a) An application
referred to in section 26 may only be made by the spouse, next of
kin, partner, associate, parent or guardian
of a mental health care
user, but where the –
(ii) spouse, next of kin,
partner, associate, parent or guardian of the use is unwilling,
incapable or not available to make such
an application, the
application may be made by a health care provider.”
Section 27(2)(b)(ii)
provides:
“
(2)
Such application must be made in the prescribed manner, and must-
(b) if the applicant is a health
care provider, state –
(ii) what steps were taken to
locate the relatives of the user in order to determine their
capability or availability to make the
application.”
[9] Section 26 read
as follows:
“
Care,
treatment and rehabilitation services for mental health care users
incapable of making informed decisions
26. Subject to section 9(1)(c), a
mental health care user may not be provided with assisted care,
treatment and rehabilitation services
at a health establishment as an
outpatient or inpatient without his or her consent, unless –
(a) a written application for
care, treatment and rehabilitation services is made to the head of
the health establishment concerned
and he or she approves it, and
(b) at the time of making the
application-
(i) there is a reasonable belief
that the mental health care user is suffering from a mental illness
or severe or profound mental
disability, and requires care, treatment
and rehabilitation services for his or her health or safety, of for
the health and safety
of other people; and
(ii) the mental health care user
is incapable of making an informed decision on the need for the care,
treatment and rehabilitation
services.”
[10] Justice demands
that I initiate that steps be taken to locate the relatives of the
applicant in order to determine their capability
or availability to
make an application as envisaged in section 27(1)(a)(ii) read with
section 26 and 27(2)(b)(ii) of the Mental Health
Care Act, 2002 (Act
No. 17 of 2002) (the MEHCA). Section 26 deals with the care,
treatment and rehabilitation services for mental
health care users
incapable of making informed decisions. Section 27 provides for the
application for assisted care, treatment and
rehabilitation services.
Whilst section 27(1)(a)(ii) makes provision for the health care
provider, like a person in the position
of the District Surgeon to
make a written application for care, treatment and rehabilitation
services in respect of the user to the
head of the health
establishment, it seems to me that the Legislature preferred that the
relatives of such user should be involved
in such an application
unless they were unwilling, incapable or not available to make such
an application.
[11] The plaintiff
was a member of the armed forces of the Republic. He held the rank of
Lieutenant-Major in the Fleet Command of
the South African Navy,
stationed in Simon’s Town. He was charged with five offences
relating to what was seen as offensive behaviour,
four of which
related to his failure to appear at his place of duty and one to both
failure to appear and making a false entry on
the day register. It is
the events arising out of these developments and their consequences
in his life which, in my view, appear
to have had an adverse effect
on the plaintiff.
[12] In my
prima
facie
view, there is a need to ascertain whether the plaintiff
can appreciate the nature of the orders granted against him, and
consequently,
the nature of the proceedings before the court, and
what he in law, can competently place before the court, at this point
of his
intended litigation. In my view, the absence of a coherent
provision of evidence and prayers for the relief sought, and the
general
conduct of the plaintiff both inside the courtroom, within
the courthouse and outside, warrants some observation and
investigation
of his psychological, if not psychiatric position. I
have my doubts about the state of his intellectual functions and the
degradation
of his memory. This may explain his warped papers.
[13] The Minister of
Defence would be in a better position to help trace the relatives of
the plaintiff, so as to provide them with
an opportunity to consider
to file an application as envisaged in section 27(1)(a) of MEHCA.I
find that the plaintiff should go for
observation, in the interests
of justice. For these reasons I make the following order:
1.
The Minister of Defence
is to trace the relatives of the plaintiff and provide all the
necessary assistance for them, if they so elect,
to file an
application as envisaged in
section 27(1)(a)(i)
of the
Mental Health
Care Act, 2002
, before the end of the month of February 2022.
2.
The Minister of Defence
is to file a report in respect of 1 to be tabled at the date to which
this matter is postponed.
3.
Should the spouse, next
of kin, partner, associate, parent or guardian of the plaintiff all
be unwilling, incapable or not available
to make such an application,
the plaintiff shall present himself before the District Surgeon, Cape
Town, on or before 9 March 2022
for consideration of
section
27(1)(a)(ii)
of the Mental Health Care Act, 2002.
4.
The matter is postponed
to 15 March 2022.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT