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[2018] ZAECPEHC 34
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Nelson Mandela Bay Municipality v Gcora (992/2016) [2018] ZAECPEHC 34; 2019 (2) SACR 451 (ECP) (10 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO. 992/2016
In
the matter between:
NELSON
MANDELA BAY
MUNICIPALITY
Applicant
and
SIPHO
GCORA
Respondent
JUDGMENT
MBENENGE
JP:
Introduction
[1]
This is a threefold application: the applicant municipality (the
Municipality) seeks an order declaring the respondent to be
in
contempt of court and that he be punished therefor in terms of the
law, as also an interdict restraining the respondent from
defaming
the Municipality, its officials and its legal representatives. The
respondent, on the other hand, seeks orders of a declaratory
nature,
that the applicant has either breached or not fulfilled certain of
its constitutional or statutory obligations,
[1]
has committed perjury on several occasions and has deliberately
committed financial misconduct in the manner contemplated in the
Local Government: Municipal Finance Management Act.
[2]
[2]
The matter has a rather longish and unsavoury history, involving the
applicant on the one hand, and the respondent and his wife
[3]
both of whom were, at all times relevant hereto, members of the Gobo
Gcora Construction and Project Management CC (hereinafter
referred to
as the “
the
CC”
),
on the other.
Factual
background
[3]
The facts of this case are largely common cause or, at the very
least, not in dispute. During October 2009 the Municipality
called for tenders for the installation of municipal services and the
construction of houses in Areas 9 and 10, Kwa-Nobuhle.
W K
Construction (Pty) Ltd and W K Pipelines (Pty) Ltd (hereinafter
collectively referred to as “WK”) were appointed
contractors for Areas 9 and 10. W K in turn sub-contracted the
construction of some of the houses to the CC. It transpired
that WK
failed and/or refused to make payment to the CC for some of the work
done by the CC.
[4]
The CC thereupon lodged a complaint with the Public Protector of
South Africa, aggrieved at the manner in which it had been
treated in
the execution of the sub-contract. The complaint culminated in
a report entitled “
Cost of Deviation
” being issued
by the Public Protector on 29 January 2016. The report ordered
the Municipality to take certain remedial
steps in favour of the CC
aimed at compensating the CC for the losses it allegedly incurred
during the execution of the sub-contract
and to apologise to the CC’s
members. The Public Protector further found that the
appointment of W K, which had not
been a registered homebuilder, was
unlawful and ordered the Municipality to educate its supply chain
management officials accordingly.
[5]
The Gcoras launched an application under case no 992/2016 seeking an
order compelling the Municipality to comply with the order
referred
to in paragraph 4 above insofar as it directed the Municipality to
take remedial action in favour of the CC. The
application to
compel compliance with the Public Protector’s remedial action
was postponed by agreement for the Municipality
to lodge its review
application to review and set aside the Public Protector’s
report, “
Costs of deviation
”.
[6]
The court,
per
Smith J on 2 April 2016, postponed the
application to compel
sine die
and directed that it be heard
simultaneously with the review application (whose founding papers had
at that stage been in the process
of being finalised).
[7]
The Gcoras launched yet another application under the same case
number as the review application seeking an order reviewing
and
setting aside, as an irregular proceeding, the alleged failure by the
Municipality to comply with the terms of Smith J’s
order of 12
April 2016. The matter was heard by Plasket J. He dismissed the
application with costs. Plasket J also
pronounced as follows
regarding the
locus standi
of the applicant and his wife:
“
[15] Both Mr
Gcora and Ms Gobo-Gcora are unrehabilitated insolvents, final orders
sequestrating their estates having been made by
this court on 3
December 2013 and joint trustees having been appointed by the Master
on 28 March 2014.
[16] In terms of
s
20(1)(a)
of the
Insolvency Act 24 of 1936
, the effect of their
sequestration is, inter alia, that they have been divested of their
estates which first vested in the Master
and then, on their
appointment, in their trustees. That would include their
member’s interest in Gobo Gcora Construction
and Project
Management CC.
[17] In terms of
s
23
of the
Insolvency Act, the
capacity of an insolvent to institute
legal proceedings is limited. For instance,
s 23(6)
provides that an
insolvent may ‘sue or be sue in his own name without reference
to the trustee of his estate in any matter
relating to status or any
right insofar as it does not affect his estate or in respect of any
claim due to or against him under
section…’. Neither
this subsection nor any of the other subsection of
s 23
have any
application to this matter.
[18] The result is
that Mr Gcora and Ms Gobo-Gcora have been divested of their member’s
interest and have no standing to represent
the close corporation.
As they are not vested with the capacity to sue in their own names in
terms of any of the subsections
of
s 23
, they have no standing in
their personal capacities….
[21] As Mr Gcora and
Mrs Gobo-Gcora have no standing in their personal capacities,…
the application must fall on this account.”
[8]
Having been not satisfied with the judgment of Plasket J, the Gcoras
launched an application whereby they sought an order declaring
the
judgment of Plasket J “
null and void and of no force and
effect
.” Eksteen J, before whom the application
served, dismissed the application.
[9]
The review application and the application to compel were eventually
heard by Pickering J on 14 September 2017. In a judgment
delivered on 21 September 2017 Pickering J ordered:
“
1. In case
number 992/16 the application is dismissed with each party to bear
their own costs.
2. In case number
1414/16 the application for the review and setting aside of the
Public Protector’s report succeeds to the
following extent:
a. The finding in
paragraph 8.2.1 that the Metro irregularly used funds from the
conditional grant for building the top structure
for internal
services, a purpose for which it was not intended, is set aside.
b. The finding in
paragraph 8.3.1 that the Metro improperly allocated insufficient
funds for work done on the top structure for
each housing unit is set
aside.
c. The finding in
paragraph 8.4 that the complainant, Gobo-Gcora CC, suffered prejudice
due to the conduct of the Metro is set aside.
d. The remedial
action set out in paragraphs 9.1.1, 9.1.2 and 9.1.3 is set aside.
3. The application
in case number 1414/16 is dismissed in the following respects:
a. The finding in
paragraphs 8.1 to 8.1.5 that the tender for the construction of RDP
houses in areas 9 and 10, Uitenhage, was irregularly
awarded and that
the Metro’s conduct in this regard constituted improper conduct
as envisaged in section 182(1) of the Constitution
and
maladministration as envisaged in section 6(4)(a)(i) of the Public
Protector Act is confirmed.
b. The remedial
action set out in paragraph 9.1.4 and 9.1.5 is confirmed.
4. Each party
is to bear their own costs.”
[10]
The respondent was displeased with the outcome of the cases referred
to above. Besides unsuccessfully seeking leave to
appeal the
relevant judgments,
[4]
he
resorted to penning a plethora of communications to wide raging
recipients concerning Judges of this division, especially Pickering
J, the applicant, certain of the applicant’s functionaries and
other public office bearers.
[11]
The picture would not be complete without me alluding to an exchange
that ensued between the respondent and Pickering J when
the
respondent’s application for leave to appeal was being heard on
22 November 2017, the essence of which is captured as
follows in the
relevant judgment:
“
Mr
Gcora
has further stated in a document filed on 19 November that my
judgment is ‘
at
war with itself
’
and that:
‘
Any conduct that is at
odds with the rule of law and the Constitution is invalid, this
includes judgments too. How will the
public be protected if
judges can decide to act against the same law they took an oath to
uphold.’
He has also accused
me of somehow acting fraudulently in this matter with the result that
my judgment is vitiated thereby and has
no force or effect.
Today, during the course of his argument, he expressly repeated his
view that I acted fraudulently.
I do not intend to dignify
these contemptuous allegations with any response other than to state
that they are devoid of merit and
that I reject them.
These are very
serious allegations to level at a judge of the High Court. I
have taken an oath to uphold the Constitution.
In my 25 years
on the bench I have always done so. Mr Gcora has displayed an
alarming tendency to gratuitously and contemptuously
insult a number
of the judges of this court who have found against him from time to
time. I have read through all these voluminous
papers during
the course of the review and in preparing for the application for
leave to appeal. It is apparent that all
these judges at all
times treated Mr Gcora with nothing other than respect, but he has
chosen to reciprocate with insults and contempt.
His conduct is
to be deprecated in the strongest terms.”
[12]
I deal hereunder copiously with the communication allegedly made by
the respondent referred to in the applicant’s founding
papers
as having been the most extreme examples of the offensive passages.
The
impugned remarks
[13]
The respondent addressed an email to the City Manager of the
Municipality, Mr Johann Metler (the Manager), on 23 December 2017
at
4:14pm, copied to the Executive Mayor’s Personal Assistant, the
Executive Mayor (Mr Athol Trollip), the Public Protector’s
legal representatives and Ms Roberts, the Municipality’s
attorney of record, in which he made the following remarks:
[13.1]
“
That is why I
submitted that ….NMBM’s lies about lack of contractual
nexus which is a private law defence, was diversionary
and
impermissible to be relied on”;
[13.2]
“
Pickering J
has misled you like Schppers J (sic) misled the President in Nkandla,
but in both these cases, you and the President
are happy to be
misled….”;
[13.3]
“
But the
difference, Schippers J as he had no malice assisted in getting
clarity from the SCA, that is what an impartial and independent
and
incorruptible judge should do”;
[13.4]
“…
I
shall await to hear from you when you authorize more lies under oath,
just take time to read the judgment on Adv Jiba by the PTA
High
Court, then you will know the consequences that will follow Sarah and
[counsel].”
[14]
On 24 December 2017 at 3:58pm, the respondent addressed a further
email to the same parties detailed in paragraph [13] above
threatening to have the Manager arrested and accusing him of
“
negligence and recklessness
.”
[15]
On 27 December 2017 at 12:10am, the respondent addressed a further
email to the same parties detailed above in which he made
the
following remarks:
[15.1]
“…
when
I see that there is racial collaboration which runs up to court, that
is problematic. The white monopoly capital which
you seem to be
its machinery must be stopped in its tracks”;
[15.2]
“…
but
now everybody including you [the Executive Mayor] and Metler are
unsuccessfully covering this up because a white incompetent
and
corrupt employee messed up big time, and we caught him”;
[15.3]
“
And I
recommend to the councillors who are interested in transformation not
you and Metler to investigate all the infrastructure
projects they
will see how your supporters have been looting from council”;
[15.4]
“
In the
Stadium we know there was collusion, why are you not acting against
that corruption. The answer is easy, white corruption
must be
protected”;
[15.5]
“
This is what
makes you, Metler and Bonnie to protect Brummer and WK, it’s
their colour, white corruption is being protected”
(Ms Bonnie
Chan is the Head of the Municipality’s Internal Audit, whilst
Mr Calvin Brummer, the applicant’s Senior
Director: Development
and Support (Human Settlements Directorate), deposed to the main
affidavits in the review application and
the application to compel.);
[15.6]
“…
racism
especially with your arrival is terrible in PE”;
[15.7]
“I have been approached by business people, in PE and they told
me that they are shocked with your racist
management style”;
[15.8]
“
You want
everyone to comply with PP reports, but when they disclose white
collar crime, you look the other way. That makes
you corrupt
and unsuitable to be a mayor.”;
[15.9]
“
,,, all you
are doing you are drinking expensive booze while ratepayers’
money is at risk, where is your conscience?”
[15.10]
“
[the City
Manager] has no right to take the PP on review unless he was insane
or drunk when he wrote the letter.”
[16]
The respondent addressed a further email to the same parties on 28
December 2017 at 8:45am in which he said:
[16.1]
“
I have
appeared before Pickering J 2 times before the review application, I
could not gather that he is a racist judge. And
my heart is
sore about what he has done to his name. But surely someone did
something that led him to misconducting himself.
This is bad
for the judiciary. What did you do to this judge? Why are
you corrupting the judges, Trollip and Metler?”;
[16.2]
“
You need to
sort this mess you have done, … I know whites are corrupt”;
[16.3]
“
I know in the
NMBM from the cleaner to the ED, they steal and lie, now the CM
ordinarily before he himself decides to be corrupt
and dishonest, he
is surrounded by thieves and liars.”
[17]
On the same day (28 December 2017) and at 9:56am, the respondent sent
another email to the parties detailed above and Mr Mmusi
Maimane, the
leader of the official opposition in Parliament, the Democratic
Alliance, its Federal Council chairperson, Mr James
Selfe and
elsabeo@da.org.za
wherein he referred to them as “
a
bunch of incompetent, corrupt and racist criminals
.”
[18]
The respondent sent a third email on the same day at 6:41pm,
addressed to the “
Councillors of the Coalition Government
”
– although the recipients are reflected as “
undisclosed
”
– making reference to Pickering J in the subject line (copied
to the Manager and Ms Roberts) and wherein he stated:
[18.1]
“
Only an
incompetent and compromised City Manager can do this madness”;
[18.2]
“
The High
Court set aside the findings of the Public Protector in paragraphs
8.2.1 and 8.3.1. This was interesting as these
were not the
only findings, was the judge drunk or what?”;
[18.3]
“…
we
obviously approached the police regarding this perjury that has been
committed by Calvin Brummer in his affidavit, and we do
not recognise
the judgment as it is influenced by lies by the judge, …and
Calvin Brummer.”
[19]
On 1 January 2018 at 9:39pm, the respondent sent an email to,
inter
alia
, the Executive Mayor, Mr Maimane and the Manager in which he
made the following remarks:
“
This fellow
[the Manager] needs to be investigated for this gross misconduct
instead of being protected by Trollip.
I have so much
evidence about how bad this guy is. Either you hold him
accountable or the mayor must fall.”
[20]
At 14:07 on the same day (01 January 2018), the respondent addressed
an e-mail to undisclosed recipients, which was received
by at least
both Ms Roberts and the Manager, wherein he made the made the
following remarks:
[20.1]
“…
it
accepted DA’s evidence without any explanation – this is
what I am objecting against in Pickering J’s judgment
–
this is a sign that the DA has an improper and cosy relationship with
certain members of the judiciary and certain Judges
are busy with
political games which support whites and oppression and persecution
of Africans. This is wrong and it must
be defeated, racist and
political Judges must resign and join the politics of the DA openly
not hiding in Court resources.”;
[20.2]
“…
white
people are the most corrupt people in the World. AND IT IS MY
DUTY TO EXPOSE THEM – EVEN SOME WHITE JUDGES ARE
VERY
CORRUPT.”;
[20.3]
“…
I am
perturbed by the corrupt judgment of Pickering J.”
[21]
On 4 January 2018 at 1:07pm, the respondent addressed another email
to,
inter alia
, the Executive Mayor and the Manager saying:
[21.1]
“…
and
how subcontractor issues have been dealt with before by courts that
are not insane and racist”…;
[21.2]
“…
do
not be misled by that foolish corrupt Brummer”; and
[21.3]
“
I will not
explain the authorities, you have lawyers you are paying, they must
start being honest, they are not half the Advocate
Madonsela is.”
[22]
The respondent addressed a further email to the Councillors of the
Coalition Government on 05 January 2018 at 11:55am in which
he
stated:
[22.1]
“
it is very
clear that Eastern Cape lawyers are dishonest, corrupt and
incompetent or not understand how the Constitution affects
all the
other law,”
[22.2]
“
it is crazy
for a lawyer not to see that what he tells you is against the
Constitution, that person is not a lawyer, that is just
a fool;”;
[22.3]
“…
the
PP has power to investigate the NMBM, and if she finds improper
conduct she has power to take appropriate remedial action –
no
law or judge can take that power away, it is conferred by supreme
law, only a bribed judge can attempt to do that.”
[23]
On the following day, 6 January 2018, at 7:24pm, the respondent
addressed another email to,
inter
alia
,
the Executive Mayor, councillors, officers of the DA and the Manager
headed “
WHAT
HAPPENS WITH UNLAWFUL TENDER AWARDS WHERE JUDGES DO NOT TAKE BRIBES
”
and
wherein he made the following threat:
“
Spend another
cent defending corruption at your peril. Your conduct is evil
from any front, political, legal and morally.
But let (sic) see
how far you can stretch without sinking with this Titanic.”
[24]
On 9 January 2018 at 6:19am, the respondent addressed yet another
email to “
undisclosed recipients
” but received,
inter alia
, by the Manager and in which he said:
“
Despite
Metler’s and Trollip’s efforts, the findings have not
been reviewed. The findings have not been set aside,
the
remedial action has not been reviewed, therefore the review
application was a gross waste of state resources as the NMBM is
back
to square one. The judge did his best to help Metler and
Trollip, but he failed to review, then set aside the findings,
he
also failed to review, set aside the remedial action and then propose
a just and equitable remedy.”
[25]
In an email dated 9 January 2018, and sent on that day at 19:31, to
Mr Maimane and Mr Selfe, the respondent remarked:
“
This is
exactly the fate that has been suffered by Pickering J’s
judgment – it is null and void, and we have not accepted
it as a judgment as he has lied on several occasions.”
[26]
On 10 January 2018 at 11:39am, the respondent addressed a further
email to the Executive Mayor, to unidentified recipients,
which was
also received by the Manager, in which he made the following remarks:
[26.1]
“…
Pickering
J effectively authorised payment to WK, but the two apex courts said
a court cannot do that – then we have to agree,
there is no
judgment from Pickering J, he acted at a personal capacity not a
judicial capacity – I do not recognise a judgment
from a
criminal, and the 3 other judges, when they issued the judgments
ordering payment to WK, they could not be regarded as judges,
they
issued illegal orders and criminal orders – they should be in
prison together with Warren Parker, Greg Parker, Johann
Huisamen,
Sarah Roberts, Philip Zulch, Reza Boltman, Greg Cummings and whatever
advocate supported Sarah, they should be in prison,
they are nothing
but criminals”;
[26.2]
“
I have
advised you that the Municipal Officials need to approach SAPS and
sign an admission of guilty over their conduct.
These officials
are guilty of criminal conduct and you cannot ignore this. You
(sic) ignorance of this makes [you] guilty
as well.”
[26.3]
According to the
content of the letter, it was copied to “The Law Society, the
GCB, the PE Society of Advocates, the Chief
Justice, the Minister of
Justice, the Presidency, the AG, the JSC, SALGA, the JP for Eastern
Cape Division of High Court, the Minister
of Police and I will
forward it to any other office I believe deserves to know about it.”
[27]
On 14 January 2018 at 2:30pm, the respondent addressed a further
email to the Head of the Judiciary, Chief Justice Mogoeng
Mogoeng,
and copied to the Manager in which he remarked:
[27.1]
“…
how
dangerous Pickering J is in the image of the judiciary”;
[27.2]
“
an objective
and impartial judge would have noticed that there are other grounds
apart from contractual nexus that give rise to
an employer having to
pay a subcontractor”;
[27.3]
“
The judgment
of Pickering J is illegal and unconstitutional, and he should be held
accountable for this judgment”;
[27.4]
“…
we do
not want to judged (sic) based on judges that undermine decisions of
the Constitutional Court and the Supreme Court of Appeal….We
ask you Sir to protect us against this oppression and racism through
available systems within the management of judicial affairs”;
[27.5]
“…
we
cannot allow illegal judgments to stand in our way”;
[27.6]
“
The suffering
of my children, my elderly mother, my wife and my derailed career
does not give me enough time to go through an appeal
process
properly, especially because there is nothing to appeal, I do not
have to recognise a racial and unlawful judgment”;
[27.7]
“
The Eastern
Cape High Court cannot be allowed to pretend to be a court of higher
status that (sic) the CC and the SCA. This
is racism I reject”;
and
[27.8]
“
I have every
reason to believe that certain judges in our courts are settling
certain scores using judicial officer and we are victims
of certain
unspoken racial tensions within the judiciary. I urge you Sir,
to establish a mechanism for urgently investigating
this despicable
conduct.”
[28]
The respondent addressed a further email on 18 January 2018 at 6:53am
to,
inter alia
, the Manager and the Executive Mayor wherein he
made the following remarks:
[28.1]
“
the judgment
of Pickering is null and void”;
[28.2]
“
the judge
simply embarrassed himself and the entire legal profession and
judiciary”;
[28.3]
“
we know
judges are not scrupulous people hence I am promoting ADR”;
[28.4]
“
I am warning
you about the lawyers you are using they are lying to you not that I
trust attorneys and SC”; and
[28.5]
“
The NMBM and
Pickering J failed dismal (sic) to set aside Madonsela’s
report…”
[29]
On the same day, 18 January 2018, the respondent addressed an email
to,
inter alia
, Mr Maimane wherein he said the Public
Protector’s report had not been reviewed and set aside at all.
[30]
On the following day, 19 January 2018, the respondent addressed a
further email to,
inter alia
, Mr Maimane in which he
threatened to have the Municipality’s “
lawyers locked
up
.” He further remarked that the judgments of the
Port Elizabeth High Court should not be relied upon.
The
applicant’s case
[31]
The applicant laments, in pursuit of the declaratory relief, that
these communications have brought the judicial process into
disrepute
and detracts from the rule of law; the respondent should be held to
be in contempt of court and punished in a fitting
manner.
[32]
Insofar as the interdictory relief, it is contended that the
requisites for the grant of an interdict have been fulfilled and
that
there is no alternative remedy at the applicant’s disposal.
The
respondent’s case
[33]
Besides raising preliminary issues,
[5]
in his opposing affidavit the respondent contends that he is not
liable to be found guilty of contemptuous behaviour because he
“
neither
disobeyed any court order nor any court proceedings
”.
Apropos the interdict, the respondent contends that, because he had
made undertakings to the applicant that he would
not be communicating
with it any further, there is nothing remaining for him to be
precluded from doing.
[34]
In addition, the respondent has this to say in his opposing
affidavit:
“
10.2.2.7
The
application is an attempt by the Applicant to prevent its hypocrisy
from being known as it advises the public that it stands
for a
corrupt free society, good governance, while as a matter of fact it
spends public funds protecting maladministration and
illegalities.
10.2.2.8 The
application is an attempt by the Applicant to use court resources to
only act against some, whilst protecting some,
I say so because it is
a matter of public record that the Municipality has launched an
application in this court seeking relief
for recovery of certain
funds spent in pursuit of what it submits is an illegal contract,
while on the other hand, it is defending
its conduct which has been
confirmed by the above Honourable Court and the former Public
Protector to be misconduct, maladministration,
unlawful, violation of
the section 195 of the Constitution and violation of section 217 of
the Constitution. I refer to Annexure
D and the review
application under case number 1414/2016 read with Annexure C in the
founding papers.
10.2.2.9 In essence,
the Applicant seeks an order that will ensure that its hypocrisy is
protected.
10.3 There is
nowhere in its papers where the Applicant has stablished by any facts
any incident where I have prepared and printed
any defamatory
material and made it available to public, there is nowhere. The
word public means “concerning people
in general”.
10.4 I have of cause
reported certain irregularities and conduct that is precluded by law
which relates to how the Applicant has
put the name of judiciary and
public administration in doubt and in disrepute.
10.5 Those
irregularities have been reported to relevant people such as the
Executive Mayor of the Applicant, council members of
the Applicant,
Members of the Democratic Alliance which is the party that has been
in the forefront or presented itself to be in
the forefront regarding
fighting against illegalities, maladministration, violation of the
rule of law and corruption in state
affairs.
10.6 Due to the
offices and interest these persons I have chosen, represent in our
society they are not general public, they are
relevant persons who
should be made aware of the very same conduct they have assured South
Africans that they will fight it wherever
it surfaces, and some of
these persons are under obligation in terms of the law to fight those
irregularities hence they have been
advised of these irregularities.
10.7 There is
therefore no basis for the relief sought by the Applicant, the
application should be dismissed and the City Manager
of the Applicant
should be held personally responsible for the legal fees he paid to
counsel for the Applicant for pursuing this
futile application, which
itself will only cause further harm to the image of our judiciary and
public administration over and
above the issues I deal with here
under.”
The
counter-application
[35]
In his counter-application the respondent has averred that the
statements made by the Manager in support of the applicant’s
review application in previous related proceedings, insofar as these
relate to payment certificates not revealing what amount was
paid for
houses and for internal services, had been false, with the result
that the applicant should be found to have deliberately
committed
financial misconduct in terms of the MFMA.
[36]
After the applicant had delivered its replying affidavit, the
respondent delivered, amongst others, an “
additional
affidavit
” wherein he states,
inter alia,
that the
comments he previously made about the court and the applicant
(including its officials) were made “
foolishly and without
proper application of mind”
. He further states that
the statements were “
inappropriate, unfortunate and
embarrassing
”. He tenders an apology, adding that he
“
acted out of frustration and pain
”. He
specifically apologizes to Pickering J and claims to lack sufficient
words to express his embarrassment towards
the judge. In the same
affidavit he seeks to justify his conduct in certain respects.
Issues
for determination
[37]
The preliminary issues referred to in paragraph [33] above were,
correctly so in my view, not persisted in when the matter
was being
heard. This leaves the Court having to determine the following
issues:
(a)
whether-
(i)
the statements made by the respondent of and concerning the court and
the applicant and its officials are offensive and render
the
respondent liable to be found guilty of contemptuous behaviour; and
(ii)
a case has been made out for restraining the respondent from making
the impugned statements;
(b)
whether the counter-application passes muster; and
(c)
what costs order should be made.
Contemptuous
behaviour
[38]
The respondent’s concession that he made the impugned
statements without reflection and his regret at having made same,
do
not, in the circumstances of this case, translate into an unequivocal
admission of guilt on his part;
he
seeks to justify his conduct and contends that he never breached any
court order and is thus not liable to be declared to be
in contempt
of court.
Annexed
to the affidavit embodying the apology is a letter written on a
“
without
prejudice
”
basis. The letter does not admit guilt or liability to the Manager
for any harm that the statements may have caused to him
or any other
person. Therefore, a pronouncement regarding what these statements
constitute is still required.
[39]
It is indubitably so that the remarks made by the respondent
adumbrated above constitute contemptuous conduct; they constitute
unlawful disdain, in the extreme, for judicial authority. The
remarks render nugatory the provisions of section 165 of the
Constitution which effectively vouchsafes judicial authority and the
supremacy clause of the Constitution which accords judicial
authority
on the courts and precludes any person or organ of state from
interfering with the functioning of the courts.
[6]
[40]
The remarks in question are a classic example of contempt
ex
facie curiae,
particularly scandalizing the court, which is clearly covered by the
following definition by C R Snyman:
[7]
“
Contempt
of court consists in unlawfully and intentionally violating the
dignity, repute or authority of a judicial body, or a judicial
officer in his judicial capacity…”
[41]
The question as to why there is such an offence as scandalising the
court at all in this day and age of constitutional democracy
was
answered by Kriegler J in
S
v Mamambolo (E TV & Others Intervening)
[8]
as
follows:
“
The
answer is both simple and subtle. It is, simply, because the
constitutional position of the judiciary is different, really
fundamentally different. In our constitutional order the
judiciary is an independent pillar of state, constitutionally
mandated
to exercise the judicial authority of the state fearlessly
and impartially. Under the doctrine of separation of powers it
stands on an equal footing with the executive and the legislative
pillars of state; but in terms of political, financial or military
power it cannot hope to compete. It is in these terms by far
the weakest of the three pillars; yet its manifest independence
and
authority are essential. Having no constituency, no purse and
no sword, the judiciary must rely on moral authority.
Without
such authority it cannot perform its vital function as the
interpreter of the Constitution, the arbiter in disputes between
organs of state and, ultimately, as the watchdog over the
Constitution and its Bill of Rights — even against the State.”
[42]
I am satisfied that the respondent has been proven with the requisite
degree to be in contempt of court
ex facie curiae
resulting
from his contumacious conduct and the contemptuous remarks he made.
Sanction
[43]
It now remains to consider an appropriate sanction. This is
done not with a view to protecting the dignity of the judicial
officers scandalized, but the integrity of the administration of
justice.
[9]
The following
remarks by Gubbay CJ in
In
re
Chinamasa
[10]
are apposite:
“
The
recognition given to this form of contempt is not to protect the
tender and hurt feelings of the judge or to grant him any additional
protection against defamation other than that available to any person
by way of a civil action for damages. Rather it is
to protect
public confidence in the administration of justice, without which the
standard of conduct of all those who may have
business before the
courts is likely to be weakened, if not destroyed.”
[44]
It is a matter of concern that, despite having been cautioned against
levelling serious allegations against members of the
bench by
Pickering J, the respondent persisted in his wanton attacks, heedless
of the cautioning. The apology tendered by the respondent
and his
explanation for why he behaved in an unbecoming fashion, count in his
favour. When the matter was heard the respondent
evinced
contriteness, and addressed the court as follows:
“
If it pleases
the Court I would like to address the issues before the Court to the
best of my ability. First of all, and with the
greatest respect, I
wish to put it to the Court that I am here today because I respect
the law of the country, I respect the authority
of this Court. I have
not been forced to be here today when I became medically fit to be
here. I am here because I respect that
this Court is got authority
over everyone in the region. I am here exactly because I fully
acknowledge and respect the authority
of the Court, but this is a
very difficult situation. In the papers I have tried to point out
certain difficult periods in my life.
In front of me I have got a
report from doctors that confirms that I am suffering from stress…
In my entire life I
have never intended to be involved in criminal conduct. As a result I
have spent every day I have had in my
life trying to better myself by
studying. As a result I have managed to have a formal qualification
in Civil Engineering from the
Nelson Mandela Bay University. As a
result of that qualification and further studies I did with
association of arbitrators of South
Africa, and the experience I have
gathered starting from the mediation proceedings I participated in
these projects. I have been
able to play a different role in the
industry in the form of assisting SMME’s with their dispute
resolution mechanisms. And
as we speak I have over 108 SMME’s I
have represented. Their matters are being considered, their arguments
have closed, but
obviously not in court because I do that in terms of
the ADR… If I can be incarcerated sir a lot of people are
going to
suffer. It is not a matter of trying to influence the Court,
my family has been depending on me and entirely on me. And I think
part of the damage I have been watching happening to my family must
have… driven me to lose control and say things I would
not
have said if I had appropriate support… ”
[45]
In all the circumstances of this case, taking into account the
mitigating and aggravating circumstances, and regard being had
to the
triad,
[11]
a non-custodial
sentence seems just and equitable.
Interdict
[46]
There is no doubt that the applicant has a clear right not to have it
and its officials and agents persistently and gratuitously
defamed in
the manner revealed by the impugned communications. Consequent upon
the contumacious conduct of the respondent, the
applicant, its
employees and agents have been proven to have been interfered with
and harmed. It affords cold comfort for
the respondent to
merely say he will not repeat the remarks. The applicant’s
assertions that harm might ensue even in due
course are, in my view,
well-grounded. I am also satisfied that in the circumstances of this
case there is no other satisfactory
remedy available to the
applicant.
Counter-relief
[47]
The affidavit filed in opposition to the application is styled
“
answering affidavit and grounds for counter relief”
.
The respondent seems to point to certain irregularities
allegedly committed by the applicant which the court did not pick
up
on previous occasions. Besides making conclusions of law relating to
the violation of certain statutory provisions, the respondent
has not
placed any credible, admissible or relevant evidence in support of
the counter-relief he is seeking. The averments made
in the
supporting affidavit do not disclose a cause of action.
[48]
Regard being had to the fact that the respondent was, on a previous
occasion, found to lack the requisite
locus standi
, the
capacity in which the respondent seeks the relief is not discernible.
The issue relating to sections 10 and 21 of the Housing
Consumers
Protection Act 95 of 1998 is sufficiently traversed in the judgment
by Pickering J and has thus become
sub judice
.
[49]
There are, in my view, no bases upon which this court can exercise
its discretion in favour of granting the declaratory relief
being
sought by the respondent.
Costs
[50]
The applicant has been successful in his quest for declaratory and
interdictory relief, and in resisting the grant of the declaratory
relief sought by the respondent. Insofar as it could be
contended that there should, on the basis of the
Biowatch
rule,
[12]
be no order of costs
in the counter-application, this is not an appropriate case for the
invocation of the rule. To begin with,
the principle enunciated in
the
Biowatch
case does not apply without exception. In
Affordable
Medicines Trust v Minister of Health
[13]
Ngcobo
J (as he then was) laid down the exception to the rule as follows:
“
There may be
circumstances that justify departure from this rule such as where the
litigation is frivolous or vexatious. There may
be conduct on the
part of the litigant that deserves censure by the court to order an
unsuccessful litigant to pay costs.”
[51]
Exceptions to the
Biowatch
rule were defined as follows in
Lawyers
for Human Rights v Minister of Home Affairs
:
[14]
“
What is
‘
vexatious
’?
In
Bisset
the court said this was litigation that was ‘
frivolous,
improper, instituted without sufficient ground, to serve solely as an
annoyance to the defendant
’
[a]nd frivolous complaint? That is one with so serious purpose or
value. Vexatious litigation is initiated without probable
cause by
one who is not acting in good faith and is doing so for the purpose
of annoying or embarrassing an opponent. Legal action
that is not
likely to lead to any procedural result is vexatious.”
[52]
The principle enunciated in
Affordable Medicines
and
Lawyers
for Human Rights
applies with equal force in this matter. As
already stated, the respondent’s papers do not disclose a cause
of action. The
mere reference to the provisions of the Constitution
without substantiation does not bring a case within the purview of
the
Biowatch
rule. In my view, costs should follow the
result.
Order
[53]
I therefore grant the following order:
(a)
The respondent is declared to be in contempt of court and is hereby
sentenced to undergo 6 months’ imprisonment, the whole
of which
is suspended for 5 years on condition that he is not found guilty of
contempt of court, committed during the period of
suspension.
(b)
The respondent is restrained and interdicted from, in any manner
whatsoever, defaming or making derogatory remarks of and concerning
the applicant, its official and legal representatives.
(c)
The respondent’s counter application is dismissed with costs.
(d)
The respondent is directed to pay the costs of the application,
including all reserved costs of 26 April 2018.
________________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
I
agree
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree
L
NTSEPE
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the applicant:
S C Rorke SC
(with him
A
Rawjee
)
Instructed
by: Gray Moodliar Inc. Attorneys
Port
Elizabeth
The
respondent:
In
person
Date
heard: 7 June 2018
Date
judgment delivered: 10 July 2018
[1]
These being sections 165(4), 195
and 181(3) of the Constitution, Act 108 of 1996 and sections 10 and
21 of the Housing Consumers
Protection Measure Act 95 of 1988.
[2]
56 of 2003 (the MFMA).
[3]
The respondent and his wife will
hereinafter be referred to jointly as the Gcoras.
[4]
Leave to appeal against
the judgment of Eksteen J both to the Supreme Court of Appeal and
the Constitutional Court were refused
by those courts; leave to
appeal against the earlier judgment of Plasket J to the Supreme
Court of Appeal was refused by Plasket
J; Pickering J also refused
the Gcoras leave to appeal against his judgment to the Supreme Court
of Appeal.
[5]
Lack of urgency; lack of
jurisdiction by reason thereof that the entire Division is affected
by the application and that, therefore,
none of the judges in this
Division should hear the matter;
sub-judice
and
lis pendens
,
because there are pending applications for leave to appeal in
related proceedings.
[6]
Also see
article 9(b)(iii) of the Code of Judicial Conduct adopted in terms
of
section 12
of the
Judicial Service Commission Act 9 of 1994
which
makes it incumbent on judicial officers to be courteous to the
parties, and to require them to act likewise.
[7]
Criminal Law (5
th
Ed) p325
[8]
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at para
[16]
[9]
Mamabolo
case(
Supra
)
para [25]
[10]
2001(2) SA 902 (ZS); 2000 [12]
BCLR 1294 at 1311 C-D
[11]
The interests of society,
the nature and seriousness of the crime and the personal
circumstances of the offender (
S
v Zinn
1969 (2) SA
537 (A))
[12]
A term that has been developed
from
Biowatch Trust v
Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
requiring that an unsuccessful party in proceedings against the
State be spared from paying the State’s costs in
constitutional matters.
[13]
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6)
BCLR 529
(CC) at para
[138]
[14]
2017 (5) SA 480
(CC);
2017 (10)
BCLR 1242
(CC)