IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no:23230/23
In the matter between:
ECONOMIC FREEDOM FIGHTERS First applicant
JULIUS SELLO MALEMA, MP Second applicant
NYIKO FLOYD SHIVAMBU, MP Third applicant
MBUYISENI QUINTIN NDLOZI, MP Fourth applicant
MARSHALL MZINGISI DLAMINI, MP Fifth applicant
VUYANI PAMBO, MP Sixth applicant
SINAWO PAMBO. MP Seventh applicant
and
THE CHAIRPERSON OF THE POWERS &
PRIVILEGES COMMITTEE First respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY Second respondent
THE SECRETARY TO PARLIAMENT Third respondent
THE INITIATOR N.O. Fourth respondent
THE MINISTER OF JUSTICE & CORRECTIONAL SERVICES Fifth respondent
THE CHAIRPERSON, NATIONAL COUNCIL OF PROVINCES Sixth respondent
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JUDGMENT DELIVERED (VIA EMAIL) ON 8 FEBRUARY 2024
______________________________________________________________________
SHER, J (SAVAGE J et MANGCU-LOCKWOOD J concurring):
1. We have before us an application for an interim interdict , alternatively a so-called
‘suspension order’, pending the finalisation of an application for declarators that
National Assembly R ule 214 and the S chedule thereto ( which deal with the
procedure which is to be followed by Parliament in the investigation and
determination of allegations of misconduct and contempt by members thereof ),
and certain proceedings in which second to seventh applicants (‘the applicants’)
were found to be in contempt of Parliament , are unlawful and unconstitutional ;
together with certain ancillary relief.
2. Second to seventh applicants are members of the 1
st applicant party and serve
as its elect ed representatives in the National Assembly. At the occasion of the
State of the N ation Address (‘SONA’) by the P resident at a joint sitting of the
National Assembly and the National Council of P rovinces on 9 February 2023,
they allegedly advanced towards him in a threatening manner and disrupted the
proceedings in a manner which was against the dignity, decorum, and good
order of the House.
3. On 7 November 2023 they were notified that they were to be disciplined for these
acts, by way of a charge of contempt of Parliament, in respect of which
proceedings were to be held between 20- 22 November 2023 before the Powers
and Privileges Committee (‘the Committee’), a Standing Committee established
in terms of the P owers, Privileges and I mmunities of Parliament and Provincial
Legislatures Act.
1
4. T he applicants duly appeared before the Committee on 20 November, assisted
by counsel, at which time they made application for a postponement on various
grounds, which was refused, whereupon the applicants intimated they were not
1 Act 4 of 2004.
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prepared to subject themselves to the process and they absented themselves,
together with their legal representatives.
5. The initiator then tendered evidence, in their absence, and thereafter submitted
that the C ommittee should find the applicants guilty as charged. As to the
sanction that was to be imposed, he requested that they should be ordered to
tender an apology to the P resident, the House, and the people of South Africa
and should be suspended from the House for a period of 10 days from 6 to 16
February 2024. In motivating for those particular dates, the initiator said this
would ensure that the applicants wo uld not be able to attend SONA 2024 and
disrupt its proceedings , given what they had done the year before. After due
consideration the Committee returned a finding of guilty as charged and in lieu of
the sanction which was to be im posed recommended not only the apology
requested but, in addition, that the applicants should be suspended for a period
of 1 month, with effect from 1 February 2024. On 1 December the C ommittee
tendered its report to the H ouse. After deliberation, on 5 December 2023 the
House resolved to accept the report and its findings , as well as the sanctions
which were recommended.
6. Although it was clearly of importance for any challenge to this decision to be
launched expeditiously, given that it was the end of the year and Parliament and
the Court were heading into the holiday recess period which extends from
December into January, the applicants only launched an application on 20
December 2023, in terms of which they set the matter down for hearing on a
‘semi-urgent’ basis on 18 January 2024. The timetable which the applicants set
for the filing of papers required the respondents to file their answering affidavits
by Friday, 8 January 2024. The notice of motion made no provision for dates for
the filing of the applicants’ replying affidavit and the parties’ heads of argument.
7. In the notice of motion the applicants indicated that they would be seeking a
range of orders declaring the Rules of Parliament and the proceedings whereby
they were held to be in contempt , as well as the sanctions which were imposed
upon them, to be unconstitutional and unlawful. Curiously, the applicants did not
seek to urgently obtain an order for prior, interim relief interdicting the
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implementation of the decision of the House pending the outcome of the
substantive, declaratory relief which they sought , either separately by way of a
second application or, as is common practice, in the application itself as a
preliminary step. Instead, they claimed interim relief as an alternative to the final,
declaratory relief which was sought. Importantly also, the interim relief was
framed in the form of an interdict which would suspend the operation of the
sanctions which were imposed, which was to be in place pending the ‘finalization’
of the application. Thus, as I understand it , what was sought was an alternative
order for an interim interdict which was to endure ( only) until the application itself
had been determined by the Court before which it was brought.
8. The respondents filed their answering affidavits on Monday, 11 January 2024, a
day later than they had been called upon to do. Some 6 days later, o n 17
January 2024, the applicants took the view that the matter was not ready to be
heard the following day . At that stage their replying affidavit and the parties’
heads of argument w ere still outstanding. Consequently, the judge who was
allocated to hear the matter (Cloete J) was requested to postpone it , by
agreement, for hearing on 29 January 2024, in terms of an order which made
provision for the filing of the outstanding replying affidavit by 19 January 2024
and the applicants’ heads of argument by 22 January 2024.
9. Notwithstanding the agreed terms of the order neither the replying affidavit nor
the heads of argument were filed timeously, in accordance therewith. The
replying affidavit was only filed on 25 January 2024. It appears that the delay was
occasioned by the unfortunate passing of a family member of one of the
applicants’ three counsel. But no explanation was tendered for the failure to file
heads of argument by 22 January 2024.
10. On 23 January 2024 the parties were notified by the Acting Judge-President that
a full bench had been constituted to hear the matter. At a case management
meeting which was convened by the senior judge on the panel (Erasmus J) on
25 January 2024 it was noted that the order of Cloete J had not been properly
complied with by the applicants, and the matter was in danger of not being heard
on the 29
th. By that stage the papers were already in excess of 1000 pages and
5
Erasmus J pointed out that the C ourt could hardly be expected to read the entire
record and the authorities which had been provided , and to hand down a
judgment within 2 days of the matter being heard. Consequently, the parties were
adjured to ensure that the heads were filed on time, in order that the Court could
be properly prepared. By close of business on Friday 26 January the heads of
argument had still not been filed. They were uploaded electronically to a
‘dropbox’ facility shortly before midnight but were not filed with the C ourt before
the matter was heard on the Monday following.
11. It is not surprising that, as a result of these circumstances, after having heard
argument on this aspect Erasmus J and Cloete J were of the view that the matter
was not ripe for hearing and struck it off the roll with costs. In doing so Erasmus J
made pointed remarks in his judgment about the applicants’ failure to ensure that
the matter was properly before the Court so that it could be heard.
12. The applicants were nonplussed by this and simply re- enrolled the matter two
days later, setting it down for hearing for the second time, on 6 February 2024
i.e. on 3 (court) days’ notice. By that time they had filed their heads of argument
but had not filed an application for condonation in respect thereof, as they had
been urged to do by Erasmus J on 25 January 2024. As at the date when the
matter was heard before us no formal application for condonation had yet been
filed, but an attempt was made 2 at providing an explanation for the applicants’
non-compliance, in terms whereby it was averred that there had been an
‘ambiguity as to the time deadline’ by which the heads had to be filed, which had
stemmed from a ‘ bona fide error.’ Given the clear terms of the order of Cloete J
the explanation is not acceptable.
13. In re-enrolling the matter, the applicants presented an amended notice of motion
in which the relief they sought was now divided into 2 parts: in Part A they sought
urgent interim relief in the form of an interdict suspending the decision of the
House to adopt the report of the Committee and the sanction and penalties which
had been proposed therein. In the alternative, an order was sought suspending
the operation of the report as adopted, including the sanctions and penalties. The
2 In the supplementary founding affidavit.
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relief which was sought in the amended notice of motion clearly differed
substantially in form, if not in substance, from the relief which had been sought
only as an alternative, in the original notice of motion. The terms of the amended
notice of motion now required a separate, preliminary hearing to be held for
urgent, interdictory relief and in the alternative thereto, for an order suspending
the operation of the report of the Committee and the sanctions which had been
imposed in terms thereof. Nonsensical ly, although the matter was re- enrolled
for hearing on 6 February 2024 the amended notice of motion sought to afford
the respondents 10 days to file a notice to oppose, if any, and a further 15 days
thereafter to file their answering affidavits.
14. In support of the amended relief which was sought the applicants filed a
supplementary founding affidavit, to which were attached several annexures
which included several judgments, which totalled 100 pages plus.
15. The respondents gave notice that they intended to oppose the matter in its
amended format. They contended that in its revised form the application was
irregular and a further abuse of process. In their view , the applicants were not at
liberty to simply file an amended notice of motion in which they re- worked the
relief which they sought , in a manner which changed the nature thereof
fundamentally, from the relief which was initially sought . They contended that the
applicants should have given notice of their intention to amend the notice of
motion, thereby affording the respondent s an opportunity to object thereto,
whereafter the C ourt could determine whether to grant the amendment which
was sought or not. In addition, they contended that setting the matter down as
one of extreme urgency on 3 days’ notice was in itself an egregious abuse of
process and placed them and the C ourt in an untenable position. In the
circumstances, the manner in which the matter had been put before the C ourt for
a 2
nd time warranted, at best, that it be struck from the roll for a second time, or at
worst, that it be dismissed out of hand, with a punitive order for costs. In
response the applicants filed a supplementary replying affidavit in which they
glibly asserted that the application which was before the C ourt was no more than
a ‘repackaging’ of the one which had been originally brought. They contended
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that, inasmuch as the papers were in order and the matter was ready to be heard
a day after it had been struck, they were entitled to re-enrol it again for hearing.
16. In my view , these assertions are somewhat facile. The application which is
before us is undoubtedly a different one from that which served before the full
court on 29 January 2024. W hat the applicants did was to shoehorn an
application for urgent relief before a second Court because of the difficulties in
which they found themselves , as a result of their initial failure to have applied
timeously for the necessary interim relief , in the manner in which it is usually
done.
17. The applicants surely realized already at the beginning of December 2023 that,
unless they made application to obtain an appropriate order urgently, well before
the end of January 2024, they would be suspended, with the accompanying loss
of pay and benefits that would bring. In this regard, in para 21.5 of the founding
affidavit 2nd applicant noted that if the application could not be heard on a date
before 1 February 2024 the applicants w ould ask for an interim order for the
suspension of the coming into operation of the sanctions which had been
imposed, until the matter could be heard. Despite this statement no attempt was
made before the end of January, to obtain such relief.
18. It must have similarly been clear to the applicants and their legal representatives
on 18 January 2024 that a postponement to the end of January would place the
obtaining of the necessary interim relief at risk, yet they again did not take
adequate and effective steps to hav e that aspect of the application adjudicated
upon first. Instead, they were content to let the matter go before the full court on
29 January 2024 on the basis that it was to be argued on the substantive merits
thereof, with the protection they required by way of an interim order to be argued
as an alternative thereto. This was ir responsible. In addition, to compound
matters the applicants failed to ensure that the requisite procedural steps were
complied with timeously , in accordance with the timetable which they set , in
terms of the order which they obtained for the postponement. This added to the
risk that they would not be able to obtain interim protection by the time 1
February 2024 arrived.
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19. It was only when the applicants were tossed out of Court on 29 January 2024, for
their failure to ensure that the matter was in order , that they then urgently set
about attempting to r ight a situation which had already gone terribly wrong. And
in trying to do so they forced an impossibly tight schedule and timeline on
Parliament and its legal representatives and another panel of 3 judges, some of
whom were on duty in the motion and urgent Court. In the circumstances the
applicants only have themselves to blame for the predicament they find
themselves in. The urgency which was attendant on the matter being heard for a
second time was one created by the applicants’ laxity and their failure to obtain a
prior, interim order and to comply with the terms of the order which was granted
at their instance on 18 January 2024.
20. In my view, the applicants c ould not, in such circumstances, reasonably come to
Court for a second time and expect to be heard on an extremely urgent basis,
when they we re the source and cause of why it had become so urgent. As was
the case with the first Court, expecting a second full Court to force reams of
paper down its throat over a weekend and to digest the contents thereof so that
the matter could be heard and judgment handed down in the space of a day or
two thereafter, was also wholly unreasonable.
21. In my view , these circumstances on their own clearly warrant the application
being struck from the roll for a 2
nd time, with a punitive costs order. But, given the
importance of the issues involved and the need to do justice to the parties , and
the fact that striking the matter from the roll w ill not provide a solution to the
immediate dispute ( given that the applicants are seemingly not dissuaded from
approaching the Court at short notice and could do so again) , in my view we
should proceed to consider the merits of the application.
22. In this regard, and by way of a preliminary remark , in OUTA 3 the Constitutional
Court warned that C ourts are not to grant temporary restraining orders against
the exercise of statutory power by organs of state, save in exceptional
circumstances and when a strong case for the relief which is sought has been
made out. The reason for this caution is that the C onstitution requires not only
3 National Treasury & Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 223 (CC) para 44.
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that the C ourts are to ensure that all branches of government act within the
confines of the law, but also that, when doing so, they do not overreach and
encroach on the domain of the other branches. Thus , a temporary restraint
against the exercise of state power, before the adjudication of the substantive
merits of a dispute, must be granted only in the ‘clearest’ of cases and after due
and careful consideration of any possible harm to the separation of powers. 4 To
this end the C ourt is required to carefully consider whether the terms of the
restraining order which is proposed would ‘trespass unduly’ upon the terrain of
the affected branch of state, before the final determination of the main application
or action concerned.5
23. That then, is the framework against which the application and the relief which is
sought must be considered. As far as the specific requirements which are
necessary for obtaining the relief which is claimed, as was confirmed in OUTA
the well-established common law requirements for an interim interdict apply. In
this regard it is trite that the applicants were therefore required to show that 1)
they had a prima fac ie right (albeit one which wa s open to doubt) which 2) if not
protected by means of the order which was sought, would suffer irreparable harm
3) that the balance of convenience favour ed the grant of the relief sought and 4)
that they had no other reasonable, satisfactory alternative remedy. In my view,
the applicants failed to make out a case in respect of each of these requirements.
24. In their founding affidavit the applicants launched a broad and far -ranging attack
on the proceedings which took place before the C ommittee and the Rules which
governed them. They contended that the proceedings were capricious and
irrational, and the outcome thereof was not justified by the evidence, and the
conduct with which they were charged constituted no more than the exercise of
their right to legitimate political protest and expression. The applicants contended
further that the Rules which governed the proceedings were unlawful and
unconstitutional in that they 1) failed to allow for the proceedings to be conducted
by an independent and impartial decision -maker as opposed to a committee
4 Id, para 47.
5 Para 26.
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which was subject to the whims and predilections of majoritarianism 2) did not
contain ‘sufficient guidelines ’ in respect of the production of e vidence, the
standard of proof, and the imposition of an appropriate sanction and 3) failed to
provide a ‘time-bar’ for the institution of proceedings against errant MPs.
25. The respondent s contend that there is no merit in the challenge, either as to
substance, or as to the procedure which was followed in the case of the
applicants. They point out that the A ct contains detailed provisions 6 which
regulate and govern disciplinary proceedings which are held in terms thereof,
including provisions pertaining to the summonsing of witnesses and their
examination, and the admission of documentary and other evidence. They point
out that in terms of the Constitution 7 and the Act, 8 Parliament is entitled to
regulate its processes and procedures and to set rules for this purpose, and the
fact that the representation of parties on Standing or ad hoc Committees is
determined on a basis which may be proportional to their representation in
Parliament does not render the proceedings of such committees open to an
attack on the grounds of bias.
26. For the purposes of this judgment, it is not necessary for us to comment on the
substantive merits of the attack which the applicants have launched, or their
prospects of success. That is something for the Court which is required to deal
with Part B of the application. We are simply required to determine whether the
applicants have made out a proper case for the interim relief which they seek , on
the premise that there may possibl y be merit in one or more of the grounds of
complaint which have been raised.
27. In their founding affidavit the applicants did not identify any constitutional or other
prima facie right (at least not by name) which required protection, such that if an
interim order was not granted to protect it, irreparable harm might ensue. They
alluded to voters suffering a loss of the ‘full benefits’ of their political rights in
terms of s 19 of the Constitution, because of the applicants ’ exclusion from
Parliament.
6 In sections 14-16.
7 Section 57.
8 Sections 12-13.
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28. In the supplementary founding affidavit, the sole right that was said to have been
infringed was that of audi alteram partem i.e. the right to be heard which, it was
averred, had been denied the applicants when the Committee had failed to afford
them an opportunity to place mitigating factors before it, contrary to clause 9 of
the Schedule. Consequently, so the applicants alleged, their constitutional rights
in terms of s 33 (fair and just administrative action) and s 34 (access to court)
had been breached. But, insofar as this alleged infringement goes (the
respondents contend that there was no breach of the audi principle because
clause 8 of the Schedule provides that where a member fails to attend a
disciplinary hearing or to remain in attendance, the proceedings may continue in
his/her absence), although this might give rise to a claim for the review and
setting aside of the disciplinary proceedings, it surely does not qualify as the
necessary prima facie right which requires protection by way of an interim
interdict. If such a right was infringed, this occurred once in November 2023, and
the applicants have effectively now been under suspension from 1 February
2024, and there is no suggestion that any audi right of theirs may again be
infringed in the future, unless the interim relief requested is granted.
29. During argument the applicant’s counsel contended that there was a ‘bundle’ of
constitutional rights which had prima facie been infringed, including rights of
equality (in terms of s 9 of the Constitution) and the rule of law (s 1(1)(c)) and fair
and just administrative action (s 33) and access to Court (s 34) . In response the
respondents’ counsel pointed out that not only had no case had been made out,
in the papers, for the breach of any of such rights but, in any event , they could
not be called up in aid of the applicants’ case: in this regard s 1( 1)(c) merely
entrenched the principle of legality , the right to equality had never been
implicated in the applicants’ papers, s 33 did not apply as the conduct of
Parliament did not constitute administrative action and s 34 had not been
breached in any way , as the proceedings of the C ommittee were being
challenged in a fair and public hearing in a C ourt of law. Respondents’ counsel
submitted further that, insofar as the applicants m ight seek to contend (although
this had not been expressly pleaded) , that it was their constitutional right s to
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freedom of political expression ( s 16) and to assembly and protest ( s 17) that
were in issue, these were not boundless and were limited by, and subject to, the
strictures of s 57 of the Constitution which provides that the National Assembly
may determine and control its proceedings and procedures, in terms of rules and
orders it has made for this purpose.
30. I share the same difficulties that the respondents ’ counsel had in relation to
whether the applicants properly and adequately set out a case for the
infringement of any specific right, which requires protection, on a prima fac ie
basis, as they were required to do. In my view the applicants failed to meet this
requirement. But even if I were to be wrong on this aspect, in my view they
similarly failed to make out a case in respect of the remaining requirements. In
this regard, as far as irreparable harm is concerned in both their founding and
supplementary founding affidavits the applicant s simply contended that without
an interim order they would suffer irreparable harm as they would have been
punished by a process ‘which they could never undo’ as they would have lost a
month’s salary and would have been deprived of an opportunity to attend SONA
and to put questions to the P resident in the question and answer session which
will follow a few days thereafter . They pointed out these occasions would
probably be the last time that the P resident addressed Parliament and could be
held accountable before the election.
31. The respondents disputed that there would be any meaningful loss of the political
right of expression and the right to hold the President accountable, were the
suspension to remain in place, as the 6 applicants only represent approximately
14% of the first applicant ’s complement of MP’s, as it has 44 elected
representatives in Parliament , and they will be in a position to further both the
party’s and the applicants ’ interests in the forthcoming proceedings. In this
regard i n a further affidavit which was admitted, by agreement , the
respondents referred to a statement which the second applicant ( who is the
party’s Commander-in-Chief) made to the media on 4 February 2024, in which he
said that the MPs who were not on suspension would attend Parliamentary
proceedings and would represent those who were not.
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32. As to the complaint that the applicants would suffer financial loss were the
suspension not to be uplifted, in the very same paragraph in which this averment
is made the applicants concede that , were the principal relief which they seek to
be granted in the main application, they would be reimbursed for their salaries .
Their gripe was really that there was no ‘basis’ for why they should be without a
month’s salary at this time of the year, when tuition fees were due and owing.
33. In the circumstances, on the applicants’ own version there is no question of
irreparable harm or loss being suffered. I n the event that the principal application
were to succeed any financial prejudice which the applicants may have suffered
in lieu of the docking of their salaries would have to be redressed, and insofar as
the applicants may have been compelled to tender any apology, it could be
withdrawn.
34. As far as the balance of convenience is concerned the applicants simply
contended that it was in their favour because, if they did not obtain an interim
order they would have suffered irreparable harm and would have been punished
by a process they could never undo. The respondents contended that the
balance of convenience was tilted strongly in their direction. They point ed out
that, were the Court to grant an order uplifting the applicants’ suspension it would
effectively render the sanction which was imposed nugatory, as it had specifically
been intended by Parliament that the applicants were to be suspended for the
month of February, so that they could not attend SONA. Were the C ourt to uplift
the suspension it would render the sanction worthless and possibly incapable of
implementation at a later date, given that some of the applicants might not return
to Parliament after the election. Thus, by granting an order in the terms sought by
the applicants the C ourt would effectively be granting them final relief which
would never be capable of being undone. In my view there is considerable force
in these submissions.
35. Parliament’s choice of a suspension for the month of February was not
coincidental or arbitrary , but a deliberate and conscious one. It specifically
intended that the applicants should be suspended for the month of February so
they would not be able to attend SONA, both as punishment for their behaviour
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at the previous year’s SONA and to prevent them from possibly causing a similar
disruption at this year’s one.
36. In the decision which was handed down by this Court (per Adhikari AJ) in Peters
9 on 29 January 2024, an interim interdict restraining the Speaker from
implementing a resolution by the House, which was adopted on 28 November
2023, that the Deputy Minister of Small Business Development be suspended for
the whole of the first term was refused, on the basis that to grant it would render
the sanction nugatory, given Parliament’s stated intentions when imposing it. The
same considerations apply in this matter.
37. Finally inasmuch as the sanctions which were imposed on the applicants would
be reversed were the applicants to succeed on the merits of their application in
terms of Part B at a later date, and as a result the applicants would be
recompensed for their loss of salary and would be at liberty to withdraw any
apology they had been compelled to tender, the proceedings in terms of Part B
will afford them redress in due course and constitute a satisfactory, alternative
remedy which is available to them.
38. In the circumstances , going back to the principles which were set out in OUTA
this is not an instance where the applicants have made out a strong and clear
case for the grant of a temporary restraining order against Parliament and there
are no exceptional circumstances which warrant such an order being granted,
and were such an order to be granted it would trench on the terrain of Parliament
and breach the separation of powers.
39. As far as the alternative order which was proposed is concerned i.e. for a
suspension of the implementation of the report of the C ommittee and the
sanctions which were adopted by Parliament in terms thereof, on the basis of s
172 (1)(b) of the Constitution, on the grounds that that it is just and equitable, for
which the applicants sought to rely on the decision of the Constitutional Court in
Gordhan,
10 in my view, this is not an instance where such an order can and
should be granted.
9 Peters v The Speaker of the National Assembly & Ors (WCD 662/2014]
10 Economic Freedom Fighters v Gordhan & Ors 2020 (6) SA 325 (CC).
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40. Whilst the ambit and scope of such a remedy has not been clearly defined or
delineated by the C ourts, it can hardly be just and equitable to grant an order
suspending the operation of a decision of Parliament, when the applicants have
not shown the infringement of any prima facie right and will not suffer any real
prejudice or harm were it not to be granted, least of all of an irreparable nature,
and when granting such an order it will trench on the separation of powers and
the duty which the Court has to pay due and proper respect to Parliament ’s
competence to regulate its process and affairs, including the disciplining of its
members. Unlike in Gordhan, were such an order to be granted in this matter it
would cause prejudice to the organ of state.
41. For the aforegoing reasons the application for interim relief in terms of Part A of
the amended notice of motion must fail. As far as costs are concerned, the
respondents submitted that , given the applicants’ conduct this is an instance
where an order for party -and-party costs would not be fair or sufficient, and they
should not be out of pocket for any of the legal expenses that they have had to
incur, and an order for costs on the scale as between attorney -client is
warranted. I agree. As was previously pointed out , the manner in which the
application came to be brought before the Court, on an extremely urgent basis, in
circumstances where the urgency was occasioned by the applicants’ abject
failure to comply with their obligations in terms of orders which were granted at
their instance, in itself warranted that it should be struck off the roll for a second
time, which in itself would have attracted an attorney-client award for costs. But,
aside from the abuse of process the matter is compounded by the fac t that the
application itself was fundamentally defective, insofar as the basic and essential
requirements for the grant of the relief which was claimed is concerned. Thus,
the respondents were required to come to Court urgently, on a repeat occasion,
to oppose a matter that was not only an abuse of process but also hopeless.
Instead of taking the opportunity, after the matter had been struck from the roll, to
re-consider their position afresh, with due regard for their prospects of
succeeding in obtaining interim relief on papers that were clearly inadequate, the
applicants simply proceeded recklessly to re-enrol it again, after performing some
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minor cosmetic surgery to it . In such circumstances it would, in my view, not be
fair or appropriate for the respondents to have to bear any costs and a special
costs order is necessary, as a mark of the Court’s displeasure.
42. In the result, the following Order is made:
The application for interim relief in terms of Part A of the amended notice of
motion is dismissed with costs on the scale as between attorney and client ,
including the costs of two counsel where so employed.
M SHER
Judge of the High Court
I agree, and it is so ordered.
K SAVAGE
Judge of the High Court
I agree.
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N MANGCU-LOCKWOOD
Judge of the High Court
Appearances:
Applicants’ counsel: K Premhid, T Masvikwa & J Naidoo
Appellant’s attorneys: I Levitt Attorneys (Sandton)
Respondents’ counsel: A Nacerodien and M Bishop
Respondents’ attorneys: State Attorney (Cape Town)