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[2010] ZAWCHC 131
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Gerber v De Kock NO and Another (10499/2009) [2010] ZAWCHC 131 (17 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 10499/2009
In
the matter between:
P.H.J.
GERBER
Applicant
and
ADVOCATE
R.J. DE KOCK N.O.
First
Respondent
NPA
OFFICE, CAPE TOWN
Second
Respondent
JUDGMENT
HANDED DOWN ON 17 JUNE 2010
1. The
applicant, Mr P.H.J. Gerber, appears in person. In his application
the applicant sought orders -
(a)
compelling
the Director of Public Prosecutions and the NPA Office in Cape Town
not
"to
be obstructive"
and
to comply with the requirements of
section 8(2)
of the
Criminal
Procedure Act No 51 of 1977
,
"namely
to consult"
and
(b)
that
the Director of Public Prosecutions and the NPA Office do not
obstruct the applicant from prosecuting privately in terms of
section
8(1)
of the
Criminal Procedure Act
"by
not applying their mind (sic) to consultation between myself and the
DPP or the NPA Office ... in terms of
section 33
of the Bill of
Rights".
2. The
applicant has withdrawn this application.
3. The
respondent
1
,
however, has brought a counter-application for a declaration in terms
of the Vexatious Proceedings Act, No. 3 of 1956, in terms
whereof an
order is sought that the applicant shall not be entitled to bring any
legal proceedings against any person in any court
in the Republic of
South Africa without the leave of this Court or any judge thereof.
4. Mr
J.C. Gerber, the deputy director of public prosecutions and a senior
counsel of the Western Cape High Court and appointed
as such in terms
of
section 13(1)
of the
National Prosecuting Authority Act, No. 32 of
1998
deposed to the affidavit opposing the application and in support
of the counter-application. Insofar as it pertains to the
application,
he points out that it is in fact
res
judicata
since
similar applications were dismissed by this Court on 5 December 2008,
12 December 2008, 6 January 2009 13 February 2009, 9
April 2009 and 7
May 2009. In his affidavit Mr Gerber sets out the background to this
matter. It appears that the applicant was
formerly employed by Honey
Attorneys. The applicant's apparent dereliction of duty resulted in
two disciplinary hearings being
held against him. The second of such
disciplinary hearings resulted in him being dismissed from his
employment. The applicant applied
to the Labour Court of South Africa
for the review and setting aside of the sanction of dismissal that
had been handed down by
the Commissioner. The aforesaid application
was dismissed with costs by Nel AJ on 19 November 2007.
5. The
applicant laid criminal complaints with the South African Police
Service against four people whom he alleged had committed
the offence
of defeating the ends of justice. One was a director and the second a
professional assistant with Honey Attorneys.
Two were officials
attached to the Labour Court. The South African Police Service opened
dockets in respect of these complaints
and investigated them. The
dockets were considered by the Senior Public Prosecutor, Cape Town,
as well as Mr Gerber's office. Mr
Gerber stated that after carefully
considering the evidence against the aforementioned persons, the
prosecution at the instance
of the State was declined in respect of
all four of them.
6. The
applicant applied to Mr Gerber by way of what purported to be a
notice of motion for a certificate to be issued to him in
terms of
section 7(2)
of the
Criminal Procedure Act, in
order for him to
pursue a private prosecution against the above persons on a charge of
defeating the ends of justice.
7. A
certificate in terms of
section 7(2)
of the
Criminal Procedure Act,
dated
9 July 2008, was furnished to the applicant and his application
before the Cape of Good Hope Provincial Division of the High Court
was consequently struck off the roll.
8. The
applicant thereafter again approached this Court by way of notice of
motion dated 11 July 2008 to secure assistance from
Mr Gerber in
furnishing him with printed search warrants and warrants for the
arrest of persons.
9.
In
order to assist the applicant Mr Gerber furnished him, under cover of
a letter dated 12 July 2008, with a blank search warrant
and arrest
form. Mr Gerber states that he was under no duty to do so and merely
did so as a gesture of goodwill. In the aforesaid
letter Mr Gerber
advised the applicant as follows:
"I
further wish to state that it appears that you are preparing to
institute a private prosecution in terms of section 7 of
the Criminal
Procedure Act, 1977 (Act 51 of 1977). No member of my personnel nor
myself-
will
conduct any further consultation with you regarding this matter or
any other matter emanating therefrom;
will
assist you in any way regarding any further investigation of the
matter, in preparation for the trial or in obtaining further
statements. Nor will instructions be issued to the South African
Police Service to assist you;
will
assist you in your attempt to obtain either search warrants or
warrants for the arrest of any person connected with the matter."
10.
Mr
Gerber points out that the applicant complains that the
"obstructive
behaviour"
by
Mr Gerber and his personnel in denying his rights in terms of the
Bill of Rights and that such behaviour is allowing the registrars
of
the Labour Court in Cape Town and the Labour Appeal Court in
Braamfontein
to
act
with impunity. Mr Gerber denies these allegations. He points out that
he has no connection whatsoever with the registrars of
either the
Labour Court in Cape Town or the Labour Appeal Court in Braamfontein.
11. Mr
Gerber also denies that he or his personnel who have dealt with the
applicant are behaving obstructively or that they were
in any way
infringing upon the applicant's rights in terms of section 8 of the
Constitution.
12. Mr
Gerber pointed out that with regard to the certificate issued in
terms
of
section
7(2)
of the
Criminal Procedure Act
-
a) such
certificate is issued when he considered that the institution of a
prosecution by the State will either be bad in law, malicious
or that
there is no reasonable prospect
of
obtaining
a conviction on the evidence contained in the docket submitted by the
South African Police Service after their investigation;
b) the
issuing of such a certificate also entails that he considered that
any further investigation into the complaint by organs
of
the
State will further extend expenditure by the State on the matter, is
not warranted or justified in all the circumstances
of
the
matter and that the interests of justice will in no way be advanced
thereby;
(c)
a further consequence of the issuing of such a certificate is that
the entire prosecution is then in the hands of the private
prosecutor. Such a prosecutor may then not rely on or expect any
assistance from the State in the furtherance of the private
prosecution.
This Mr Gerber contends is supported by the provisions
of
sections 9
and
10
of the
Criminal Procedure Act Section
9
stipulates that the private prosecutor must furnish security for the
costs of such a prosecution and
section 10
stipulates that the
"private
prosecution shall be instituted and concluded and all process in
connection therewith issued in the name of the private
prosecutor".
13. Mr
Gerber states that the fact that a certificate in terms of
section 7
of the
Criminal Procedure Act has
been granted to the applicant,
relieves members of the office of the Director of Public
Prosecutions, Cape Town, of any obligation
to assist the applicant.
14. My
attention was drawn to the fact that the applicant had brought
similar applications in this Court under Case Nos. 1992/2008,
21319/2008 20451/2008, 1000/2009, 999/2009 and 7245/2009. The history
of these applications were as follows:
a) Case
No. 1922/2008 was struck from the roll on 5 December 2008;
b) The
application under Case No. 21319/2008 was dismissed by La Grange J on
6 January 2009;
(c)
The
application in Case No. 20451/2008 was dismissed by Traverso
AJP
on 12 December 2008;
The
application in Case No. 1000/2009 was dismissed with costs by Allie
J on 13 February 2009 as was Case No. 999/2009
The
application under Case No. 7245/2009 was dismissed with costs by
Erasmus J on 9 April 2009 on the basis that it had previously
been
dismissed by Traverso AJP;
The
application under Case No. 8423/2009 was dismissed with costs by
Cloete AJ on 7 May 2009 on the basis that it had previously
been
dismissed by Traverso AJP and Erasmus J.
15. Mr
Gerber submits that it is clear from the aforegoing that the
applicant has since July 2008 consistently instituted unfounded
and
vexatious legal proceedings. Mr Gerber contends that the actions of
the applicant is abusing the legal process in order to
be able to
pursue a vendetta against the aforementioned persons. The applicant
has, it appears to me, persisted in bringing applications
that had
already been dismissed by this Court, and which therefore would be
res
judicata.
16. Mr
Gerber contends that the actions of the applicant, in persisting
without any reasonable grounds in instituting legal proceedings
without just cause cannot be in the interests of justice or of the
affected persons. Mr Gerber asks that an order be made in terms
of
section 2(1
)(b)
2
of the Vexatious Proceedings Act, No. 3 of 1956, namely that the
applicant shall not be entitled to bring any legal proceedings
against any person in any court in the Republic without the leave of
this Court or any judge thereof, and that the applicant is
to pay the
costs of this application.
17.
Section 2 of the aforementioned Act provides that a court, if it is
satisfied that a person has persistently and without reasonable
grounds instituted legal proceedings in any superior or inferior
court, whether against the same person or different persons,
may
order that no legal proceedings shall be instituted by the said
person in any superior or inferior court without the leave
of that
superior court, a judge of that court or that inferior court, as the
case may be (Herbstein & van Winsen,
The
Civil Practice of the High Courts of South Africa
,
5
th
edition, at page 246-247 and pages 520, 525).
18.
In
Fisheries
Development Corporation v Jorgensen
1979 (3) SA 1331
(W) the court stated at 1339 that vexatious in the
sense that the word is used in the Act means
"frivolous,
improper, instituted without sufficient ground, to serve solely as
an annoyance to the defendant".
19.
The applicant appeared in person. He conceded that the
applications were all similar. He also conceded that they were
dismissed as set out above. He
contended
however that these dismissals were summarily done and because he
perceived that he did not have a fair hearing, he considered
that
they had not been dealt with. This he said was the case because he
had not been given any reasons.
20. Mr
Oliver, who appeared for the respondents, informed me that he had on
several occasions endeavoured to assist the applicant
and that he
had pointed out to him that there were no prospects of success in
the application as well as the reasons for there
being no prospects
of success.
1. It
seems to me that there never was any prospect of the applicant
succeeding with the relief sought by him once he had been
furnished
with a certificate in terms of
section 7
of the
Criminal Procedure
Act. The
applicant seeks an order that the court order the
respondents to grant him a certificate in terms of
section 8(2)
of
the Criminal Procedure Act, and that the respondents consult with
him as provided for in that Act.
22.
Section
8(2)
of the
Criminal Procedure Act provides
as follows:
"A
body which or a person who intends exercising a right of prosecution
under subsection (1), shall exercise such right only
after
consultation with the attorney-general concerned and after the
attorney-general has withdrawn his right of prosecution
in respect
of any specified offence or any specified class or category of
offences with reference to which such body or person
may by law
exercise such right of prosecution."
23. Subsection
8(1) refers to any body upon which or person upon whom the right to
prosecute in respect of any offence is expressly
conferred by law.
Mr Oliver submitted that it is clear that the applicant is not a
body or person upon whom the right to prosecute
in respect of any
offence is expressly conferred by law. This must be so. I am,
accordingly, in agreement with Mr Oliver that
the relief sought by
the applicant is incompetent. What the applicant was entitled to was
a certificate in terms of
section 7
of the
Criminal Procedure Act
and
it is common cause that such a certificate was issued to him and
that he returned same to the respondents.
24. As
pointed out above, the applicant has withdrawn the instant
application.
25.
In
re Alluvial Greek Ltd
1929 CPD at 532 Gardener JP held as follows at 535 with regard to an
issue concerning costs
"There
are people who enter into litigation with the most upright purpose
and the most firm believe in the justice of their
cause, and yet
whose proceedings may be regarded as vexatious when they put the
other side to unnecessary trouble and expense
which the other side
ought not to bear."
26.
Though
the applicant has explained that he was acting in a
bona
fide
manner,
I am of the firm view that his conduct, nonetheless, is still to be
regarded as vexatious. If he was at all concerned
with the absence
for any reason for any of the many orders granted against him, it
was open to him to have requested such reasons.
This he failed to
do, and, instead, he embarked on a persistent course of conduct in
bringing applications the one after the
other.
27. In
my view the respondent is entitled to an order in terms of the
counter-application.
28. In
the premises I grant the following order:
a) In
terms of the provisions of
section 2(1
)(b) of the Vexatious
Proceedings Act, No. 3 of 1956, the applicant shall not be entitled
to bring any legal proceedings against
any person in any court in
the Republic without leave of this Court or any judge thereof;
b) The
applicant is to pay the costs of this application.
OLIVIER,
AJ
1
Only the first respondent is properly before court
2
Section 2
(1
)(b)
of the Act provides as follows:
"If,
on an application made by any person against whom legal proceedings
have been instituted by any other person or who
has reason to
believe that the institution of legal proceedings against him is
contemplated by any other person, the court is
satisfied that the
said person has persistently and without any reasonable ground
instituted legal proceedings in any court or
in any inferior,
whether against the same person or against different persons, the
court may, after hearing that person or giving
him an opportunity of
being heard, order that no legal proceedings shall be instituted by
him against any person in any court
or any inferior court without
the leave of the court, or any judge thereof, or that inferior
court, as the case may be and such
leave shall not be granted unless
the court or judge or the inferior court, as the case may be, is
satisfied that the proceedings
are not an abuse of the process of
the court and that there is prima facie grounds for the
proceedings."