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[2020] ZAECPEHC 41
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Gouws v Taxing Mistress (Port Elizabeth) and Others (3300/2018; 525/2018) [2020] ZAECPEHC 41 (5 November 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE
NO: 3300/2018 & 525/2018
Date
heard: 10/09/2020
Date
delivered: 05/11/2020
In the matter between
JACQUES
GOUWS Applicant
And
THE TAXING MISTRESS
(PORT ELIZABETH) First
Respondent
NATIONAL DIRECTOR OF
PUBLIC PROSECUTION Second
Respondent
THE STATE ATTORNEY
(PORT ELIZABETH) Third
Respondent
Coram: Smith J; Pakati J;
Jolwana J
JUDGMENT
SMITH
J
:
Introduction
1.
The
applicant
launched an application during March 2020 for an order suspending the
taxation of a bill of costs pending a petition for
leave to appeal to
the Supreme Court of Appeal against a judgment of Ah Shene AJ,
delivered on 15 November 2018. That judgment
was in respect of two
applications which had been consolidated and heard together, namely:
case number 3300/2018, in which the
applicant had sought various
orders against the National Prosecuting Authority; and case number
525/2018, in which he sought the
permanent stay of criminal
proceedings against him. Ah Shene AJ struck case number 3300/2018 off
the roll with costs due to lack
of urgency, and dismissed case number
525/2018. No costs order was made in the latter case. His application
for leave to appeal
was dismissed on the 23 April 2019.
2.
The
respondents thereafter caused a notice of taxation to be delivered on
12 March 2020, and on 13 March 2020 the applicant delivered
a notice
to oppose the taxation and also launched these proceedings for the
“provisional or permanent stay of the taxation”.
3.
The
respondents subsequently brought a counter-application for orders
declaring the applicant a vexatious litigant in terms of section
2
(1) of The Vexatious Proceedings Act, 3 of 1956 (the Act), and
declaring him to be in contempt of court. Their answering papers
were
filed out of time and, being satisfied that they had proffered an
acceptable explanation for the late filing, we allowed the
affidavits.
4.
The
application to declare the applicant a vexatious litigant is based on
the contention that various legal proceedings, which he
had
instituted against persons who were connected to cases brought
against him by his former neighbour, one Mr du Preez, are without
any
reasonable grounds and had been instituted solely for the purposes of
intimidating and harassing those respondents.
5.
In
respect of the contempt of court application, the respondents contend
that various statements in the applicant's founding and
replying
affidavits are contemptuous of the judiciary and brings it into
disrepute.
6.
The
applicant appeared in person and Ms Ntsepe appeared for the
respondents.
Contempt
of court
7.
As
is the practice in cases involving allegations of contempt of court,
I shall first deal with that issue before reverting to the
main and
counter-applications.
8.
The
crime of contempt of court consists in unlawfully and intentionally
violating the dignity, repute, or authority of a judicial
body, or
interfering in the administration of justice in a matter pending
before it. (Burchell and Milton:
Principles
of Criminal Law
,
1
st
Ed. at page 672)
9.
The
dignity of the court is entrenched by the Constitution, and in this
regard section 165 (4) provides that, “organs of state,
through
legislative and other measures, must assist and protect the courts to
ensure the independence, impartiality, dignity, accessibility
and
effectiveness of the courts.”
10.
The
interest which is served by punishing the crime of scandalising the
court is not that of the aggrieved member of the court,
but is rather
a public one. In
S
v Mamabolo
[2001] ZACC 17
;
2001
(5) BCLR 449
(CC), at para. 25, Kriegler J said that:
“
The
crucial point is that the crime of scandalising the court is a public
injury. The reason behind it being a crime is not to protect
the
dignity of the individual judicial officer, but to protect the
integrity of the administration of justice. Unless that is assailed,
there can be no valid charge of scandalising the court.”
11.
Although
the constitutional entrenchment of the right to freedom of expression
means that the test for the crime of scandalising
the court is more
exacting and a finding that the crime has been committed will not
likely be made, the test remains whether “ultimately,
the
offending conduct, viewed contextually, really was likely to damage
the administration of justice”. Even though the threshold
for
the test has been raised by the Constitution, there nevertheless
remains “that narrow category of egregious cases where
the
crime in question will still be found to have been committed”.
(S v
Mamabolo
(supra,
at para. 45))
12.
It
is indeed so that the applicant's founding and replying affidavits
are replete with serious, egregious, and scandalous statements
of and
concerning various judges of this division, as well as magistrates
and legal practitioners. In order to avoid further unnecessary
embarrassment to those individuals, I shall refrain from repeating
any of those statements in my judgment and, in addition, intend
to
interdict their publication for any reason other than for the
purposes of
bona
fide
court proceedings. Suffice it to say that the applicant has accused
those individuals of,
inter
alia
,
corruption, dishonesty, sexual deviancy and racism. The allegations
are gratuitously scandalous and without any discernible factual
bases. In addition, there is no conceivable connection to the factual
matrix relevant to the relief sought in the notice of motion.
In
fact, only small portions of the affidavits are devoted to explaining
the factual bases for the relief sought, and the rest
are no more
than gratuitous slander of members of the judiciary and legal
practitioners.
13.
It
was thus hardly surprising that the applicant did not contest the
assertion that the impugned statements had the effect of scandalising
the judiciary. At the hearing of the matter we were at pains to
explain to him the import and grave consequences of those statements.
We also allowed him an opportunity to consider whether he wished to
persist with the accusations or to retract them. After a short
break
(at his request), he proffered an effusive apology and
unconditionally retracted the statements.
14.
There
can be little doubt that this is one of those exceptional cases
contemplated by Kriegler J in
Mamabolo
.
The statements contained in the applicant’s founding and
replying affidavits are incontrovertibly egregious and scandalous.
In
fact it is difficult to conceive of a more flagrant and malicious
attack on the judiciary. The context in which these statements
were
made also manifestly impugn the integrity of the judiciary as an
institution.
15.
Thus
the issues which concerned Kriegler J, in
Mamabolo
,
namely the appropriateness of the summary procedure adopted by the
presiding judge and the fact that the impugned statements had
been
made after the conclusion of the litigation, do not arise in this
matter. Here the issues were raised squarely by the respondents
in
their answering papers, and the applicant consequently had more than
adequate opportunity to place his version before court.
In the event,
and as I have mentioned earlier, the applicant did not contest the
assertion that the statements were contemptuous,
but has retracted
them unconditionally and has expressed his remorse.
16.
In
arriving at an appropriate sentence, we have taken into account,
inter
alia
,
the aforementioned factors. We do, however, also take into account
that there is both a moral and constitutional duty on courts
to
ensure that their dignity and authority, as well as their capacity to
carry out their functions, are always preserved and protected.
(
Coetzee
v Government of the Republic of South Africa
[1995] ZACC 7
;
1995 (4) SA 631
(CC) at para. 61.)
17.
In
Mamabolo
(supra,
at para. 16), Kriegler J remarked that even though the judiciary is
“by far the weakest of the three pillars of government,
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”.
18.
Scandalous
statements of the ilk made by the applicant in his founding and
replying affidavits have the potential seriously to undermine
the
integrity, authority and efficacy of the courts in the eyes of the
public. In the words of Kriegler J:
“
In
the final analysis it is the people who have to believe in the
integrity of their judges. Without such trust, the judiciary cannot
function properly; and where the judiciary cannot function properly
the rule of law must die. Because of the importance of preserving
public trust in the judiciary and because of the reticence required
for it to perform its arbitral role, special safeguards have
been in
existence for many centuries to protect the judiciary against
modification one of the protective devices is to deter disparaging
remarks calculated to bring the judicial process into disrepute.”
(
Sv
Mamabolo
(supra,
at para, 19))
19.
The
respondents agitated for a sentence of five years’
imprisonment, with three years suspended for a period of five years
on certain conditions. I do, however, not believe that any purpose
would be served by sentencing the applicant to a period of direct
imprisonment. In my view, a wholly suspended period of imprisonment
will adequately serve all the elements of an effective and
fair
punishment in the circumstances. And one can only hope that this
sentence will effectively convey to the applicant the serious
nature
of his transgressions and that he will take the admonition to heart,
unlike that silent “host of phantom listeners”
in Walter
de la Mare’s haunting supernatural poem,
The
Listeners
,
who left the frustrated Traveller smiting in vain upon the shut door,
unable to deliver his message. Our message could not be
any clearer
or delivered in a more effective manner.
20.
I
now return to the application for the stay of the taxation.
Stay
of taxation
21.
In
his notice of motion, the applicant seeks an order provisionally
staying the taxation of a bill of costs pending the lodgement
of his
petition for leave to appeal. The petition will be lodged with the
Supreme Court of Appeal, leave to appeal having been
refused by Ah
Shene AJ. Elsewhere in his papers he purports to make out a case for
the permanent stay of taxation. He is of course
not legally entitled
to such relief.
22.
It
is trite that in order to succeed with his application for the stay
of the taxation, the applicant was required to establish,
inter
alia
,
that there are reasonable prospects that leave will be granted and to
provide a reasonable explanation why he still has not filed
his
petition more than a year after his application for leave to appeal
was refused. His papers fell short in both respects. He
has simply
not averred any facts to establish a
prima
facie
right (though open to some doubt), and even on a generous reading of
his averments, it is difficult to understand exactly why he
has not
been able to lodge the petition. He has also made no attempt to
address the other requirements for interim relief, namely
the balance
of convenience and the absence of an alternative remedy.
23.
Other
than launching into a tirade of far-fetched and defamatory statements
against members of the court, the only allegation that
even remotely
seeks to provide an explanation for his failure to submit the
petition is the rather oblique assertion that during
his
incarceration (and for a period of 30 days) he had been tortured,
drugged against his will, deprived of sleep, taunted and
intimidated.
He alleged that this experience has reduced him to a “lobotomized”
state. It is not clear how this experience
had prevented him from
submitting the petition, since according to him it occurred during
the period between 14 April 2019 and
15 May 2019.
24.
Even
assuming that the national lockdown could explain why he was unable
to take any steps from the time that he had lodged this
application -
which was during March 2020 - up until when this matter was heard on
10 September 2020, he still had more than sufficient
opportunity to
lodge the petition.
25.
Even
though allowance has to be made for the fact that the applicant is a
lay person and would accordingly not have been able to
prepare his
papers with the eloquence and erudition expected of legal
practitioners, the nature of the relief he seeks does not
require any
legal knowledge. All that was required of him was to explain the
circumstances which had prevented him from submitting
the petition to
the Supreme Court of Appeal. If he had been able to establish a
compelling reason for the delay, it may well have
compensated for the
failure to establish the more onerous and exacting requirement,
namely the prospects of the Supreme Court of
Appeal granting leave.
But, alas, he has failed in both respects.
26.
Ms
Nstepe has argued that it is manifestly apparent from the fact that
the applicant has still not prepared his petition for submission
to
the Supreme Court of Appeal (more than five months after he launched
the application) that the application is not
bona
fide
and he does in fact not intend to lodge it. This submission is not
without merit. When the matter was argued on 10 September 2020,
we
were at pains to make him understand that, at best for him and even
if he were to succeed with this application, he would still
only be
entitled to an order suspending the taxation pending a ruling on his
petition to the Supreme Court of Appeal. He then requested
that he
should be allowed at least three months within which to submit the
petition. If regard is had to the fact that the matter
was argued on
10 September 2020, by the time that this judgment will be delivered
he would in any event have had at least one and
a half months to
lodge his petition. And Ms Ntsepe has informed the court that the
Taxing Mistress has indicated that the respondents
are unlikely to be
allocated a date for taxation before December 2020. The applicant
will thus in any event have had at least another
three and a half
months within which to submit the petition. This begs the question as
to why he needed the relief in the first
place. In the circumstances,
I am of the view that he has failed to make out a case for the relief
he seeks in the main application,
and that application accordingly
falls to be dismissed, with costs.
Vexatious
proceedings
27.
Section
2 (1) (a) of the Act provides as follows:
(a)
If,
on an application by the state attorney or any person acting under
his written authority, the court is satisfied that any person
has
persistently and without any reasonable ground instituted legal
proceedings in any court or in any inferior court, whether
against
the same person or against different persons, the court may, after
hearing the person or giving them an opportunity of
being heard,
order that no legal proceeding shall be instituted by him against any
person in any court or any inferior court without
the leave of that
court, or any judge thereof, or the 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 there is
prima facie ground for the proceedings.
28.
As
I have mentioned earlier, the application for the applicant to be
declared a vexatious litigant is based on the assertion that
he has
persistently and without any reasonable grounds instituted legal
proceedings against various individuals connected to litigation
between him and his erstwhile neighbour, Mr du Preez. According to
the third respondent, those proceedings were instituted for
no other
purpose than to harass and intimidate those individuals.
29.
In
order to succeed with the application, the third respondent was
required to show that the impugned proceedings amount to an abuse
of
the process of the court and that there were no
prima
facie
grounds for the institution of the proceedings. The Act does not
provide for an absolute bar to the institution of legal proceedings,
but merely a screening mechanism in respect of a person who has
persistently and without any reasonable grounds, instituted legal
proceedings in any court. The screening mechanism is intended to
protect the interests of victims of the vexatious litigation who
have
been “repeatedly subjected to the costs, harassment and
embarrassment of unmeritorious litigation; and the public interest
that the functioning of the courts and the administration of justice
proceed unimpeded by the cloud of groundless proceedings.”
Thus
an applicant's right of access to court is regulated and not
prohibited. (
Beinash
and Another v Ernst & Young and others
1999
(2) SA 116
(CC) par. 13).
30.
The
impugned litigation arose from the acrimonious relationship between
the applicant and Mr du Preez. Mr du Preez had instituted
criminal
charges against him for assault, malicious injury to property (in
respect of which it was alleged he had damaged Mr du
Preez’s
motor vehicle), and contempt of court, which related to the
applicant's alleged contravention of an interdict granted
by this
court. The criminal case was prosecuted in the magistrate's court.
31.
Mr
du Preez also issued summons against the applicant, claiming damages
in respect of an alleged assault and damage to his property.
He had
instructed attorneys Burmeister, De Lange and Soni (BDLS), and in
particular Mr Craig De Lange of that firm, to represent
him.
32.
He
thereafter lodged an application in this court for interdictory
relief against the applicant, which had elicited a similar
application
by the applicant. Those applications were consolidated
and heard by Revelas J who delivered judgment on 11 December 2014,
interdicting
certain conduct by the applicant. It was since the
delivery of that judgment that Revelas J has also been the target of
the applicant’s
contemptuous and scandalous statements.
33.
The
applicant thereafter instituted various legal proceedings against
almost every person who had been remotely linked to the litigation
between him and Mr du Preez. In particular:
a.
in
case 1877/2016 the applicant instituted a claim against Mr du Preez,
claiming the sum of R2m on the ground that he had corruptly
influenced public authorities such as the South African Police
Services; The Prosecuting Authority; the Sheriff of the court, as
well as judges of this court;
b.
in
case number 1893/28 he instituted civil action, claiming an amount of
R400 000 from Ms Kariena van Schalkwyk, an attorney who
was at all
material times employed by BDLS. That claim was on the ground that
the defendant allegedly sanctioned investigations
against the
applicant in connection with allegations of cruelty to animals,
leading to him being arrested;
c.
in
case number 1938/2016 he instituted legal action against BDLS wherein
he claimed damages for pain, humiliation, separating him
from his
children, defrauding him, and sabotaging his divorce action. He also
accused them of causing him “hunger, malnourishment,
pain,
mental anguish, distress, and nervous system shock’;
d.
in
case number 2084/2016 he claimed from BDLS the sum of R1.8m on the
ground that they had “provoked, insulted, intimidated,
blackmailed, extorted, abused, pestered and encroached” upon
his human rights, and “corrupted” the prosecutor
to set
bail conditions. He averred that this was a strategy intended to
prevent him from defending himself;
e.
in
case number 2101/2016 he instituted civil action against Pierre
Kitching Attorneys, a firm of attorneys which had acted on his
behalf
in matters against Mr du Preez. He claimed the sum of R500 000 on the
grounds that they had “incited and manipulated”
him into
selling his vehicle and had paid the money into their trust account;
f.
in
case number 2413/2016 he instituted proceedings against one Stefanus
Vermaak, a member of the South African Police Services who
had
investigated a motor vehicle collision in which the applicant was
involved. He claimed the sum of R1.2m on the grounds that
the
defendant had allegedly spat in his face, thereby causing him, inter
alia, “neuropathic pain and damage, body aches and
chills”.
Apparently, no further steps have been taken by the applicant since
this claim has been instituted;
g.
in
case number 632/2017 he instituted civil proceedings against one Dr
Anthony Ferreira, the medical practitioner who had treated
Mr du
Preez for injuries that he allegedly suffered as a result of the
assault on him by the applicant and had prepared the J88
form. The
applicant claimed R500 000 from this defendant. The defendant filed
an exception to the applicant's claim, which was
upheld, with costs.
The applicant subsequently withdrew the claim during July 2017;
h.
in
case number 944/2017 he instituted action against EC Scratch and
Dent, a vehicle repair shop which had provided a quotation in
respect
of damages to Mr du Preez’s vehicle allegedly caused by the
applicant. He claimed the sum of R400 000 on the ground
that the
defendant had inserted false information on the quote “
as
a tool of blackmail, extortion, intimidation and victimization”
.
He also alleged that the defendant was a friend of du Preez, who was
“an administrative prostitute” and had ensured
that the
defendant was protected from any action by the South African Police
Services and the National Prosecuting Authority;
i.
in
case number 1286/2017 he instituted proceedings against one Charmaine
McCannes, the control prosecutor at the time when the criminal
cases
were instituted against him. He claimed a sum of R350 000 on the
grounds that the defendant had failed “to honestly
and
objectively” study the police dockets in the criminal cases and
that the decision to prosecute was not taken with due
care. He also
alleged that the proceedings were instituted against him at the
behest of Revelas J, who had made a false statement
in order to
motivate for the institution of criminal proceedings. He also alleged
that Revelas J had improperly interfered in the
proceedings, to his
detriment ;
j.
in
case number 1802/2017 he instituted proceedings against Adv. Nicky
Mullins, one of the advocates who had acted on behalf of Mr
du Preez
on the instructions of BDLS. He claimed the sum of R1.2 on the
grounds of the defendant partaking in “the atrocious
miscarriage of justice” against him, and that he acted
maliciously “to the superlative degree” and had caused
him pain and suffering; and
k.
in
case number 31/2018 the applicant instituted application proceedings
seeking an order compelling Magistrate Abigail Beeton to
deliver
judgment in the criminal cases. Magistrate Beeton has since recused
herself from those cases.
34.
The
third respondent contends that the applicant's continuous and
persistent institution of legal proceedings against these and
other
people amount to an abuse of the court's process. They furthermore
contend that it is manifest, ex facie, the court documents
that the
proceedings were instituted in bad faith and without any reasonable
grounds. In addition, they assert that the general
tone of the
pleadings in those matters (which they aver is contemptuous and
scandalising) establishes that the applicant is
mala
fide
and warrant an order declaring him to be a vexatious litigant.
35.
In
all the aforementioned matters, even on a generous interpretation of
their contents, the pleadings do not contain the necessary
averments
to sustain the relief sought by the applicant. Not only do they not
conform to the prescripts of Adjective Law in respect
of their form
and content, but they are also substantively untenable. And what
makes matters worse for the applicant is that the
belligerent and
scandalous language used in those pleadings evinces a thinly
disguised intention to scandalise, harass and defame.
Nary has an
opportunity been lost for the applicant to abuse the pleadings to
scandalise and insult the objects of his rancour.
There can thus be
little doubt that those proceedings were born out of the applicant’s
seething bitterness and misguided
determination to wreak vengeance on
those whom he perceived to have caused him suffering.
36.
The
Shorter Oxford English Dictionary defines the term “vexatious”
as:
“
(1)
causing or tending to cause fixation, annoyance, or distress;
annoying, troublesome. (2) Of an action: instituted without
sufficient
grounds for winning, purely to cause trouble or annoyance
to the defendant.”
37.
In
my view there can be little doubt, even on a generous interpretation
of the pleadings in the aforesaid matters, that they fall
foul of the
abovementioned definition.
38.
I
am accordingly satisfied that the impugned proceedings were not
instituted with the legitimate purpose of pursuing bona fide legal
remedies in respect of injustices suffered by the applicant, but
rather with the sole and malicious intention to defame,
harass
and scandalise those whom he had perceived to be his enemies. And as
Ms Ntsepe has correctly pointed out, the applicant
has been vocal
about his intention to institute future proceedings against other
persons who he believes have caused him harm.
39.
As
I have said earlier, the order sought by the third respondent will
not prevent the applicant from instituting future legal proceedings
in circumstances where a judge in chambers or a magistrate is
convinced that the proceedings to be instituted will not amount to
an
abuse of the process of the court.
Costs
40.
The
respondents have asked for costs to be awarded on a punitive scale in
the main application as well as the counter-applications.
The grounds
for awarding costs on a punitive scale in the contempt of court
proceedings are self-evident. I am, however, not convinced
that there
are sufficient grounds for awarding costs on that scale in respect of
the applications to stay taxation proceedings
and to have the
applicant declared a vexatious litigant.
Order
41.
In
the result the following order issues:
a.
The
late filing of the second and third respondents’ answering
affidavit is condoned.
b.
The
applicant's application for stay of taxation proceedings is
dismissed.
c.
The
applicant is declared to be in contempt of court and is sentenced to
18 months’ imprisonment, wholly suspended for a period
of three
years, on the condition that the applicant is not convicted of
contempt of court committed during the period of suspension.
d.
The
applicant is declared a vexatious litigant in terms of Section 2
(1)(a) of the Vexatious Proceedings Act, 3 of 1956, on the
following
terms:
(i)
The
applicant cannot institute legal proceedings in any court, against
any person without the written leave of the court before
which he
intends to institute legal proceedings.
(ii)
A
written application by the applicant, for leave to institute legal
proceedings, may be granted if a judge or magistrate (as the
case may
be) of the court before which leave is sought is satisfied that the
proceedings intended to be instituted are not an abuse
of the process
of court, and that there are a
prima
facie
grounds for the proceedings.
(iii)
The
Registrar of this court is directed to publish this order in the
Government Gazette in terms of the provisions of Section 2
(3) of the
Vexatious Proceedings Act, 3 of 1956.
(e)
No
person is permitted to copy or distribute, or publish the contents of
the affidavits filed in cases numbers 525/2018 and 3300/2018,
save
for copying or distribution by the parties, for the prosecution of
this matter before this court or any other competent court.
(f)
The
applicant is directed to pay costs as follows:
(i)
The
applicant shall pay the costs in respect of the contempt of court
proceedings on the scale as between attorney and client.
(ii)
The
applicant shall pay the costs relating to the applications for stay
of the taxation and in terms of the Vexatious Proceedings
Act, 3 of
1956, on the party and party scale.
__________________
J.E. SMITH
JUDGE OF THE HIGH
COURT
I agree.
__________________
B.M. PAKATI
JUDGE OF THE HIGH
COURT
I agree.
__________________
M. S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearing on behalf of
the Applicant:
Mr Gouws (In Person)
Applicant
11 Neopolis
Pier Street
South End
Port Elizabeth
Appearing for the
Respondents:
Adv. Ntsepe
Instructed
by:
The State Attorney
Attorney for the
Respondents
29 Western Road
Central
Port Elizabeth