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2023
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[2023] ZAECQBHC 29
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Gcora and Others v Nelson Mandela Bay Municipality and Another (1414/2016; 992/2016) [2023] ZAECQBHC 29 (16 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 1414/2016 and 992/2016
(1) REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED.
In
the matter between:
SIPHO
GCORA
First Applicant
KHUSELWA
GOBO-GCORA
Second
Applicant
GOBO
GCORA CONSTRUCTION AND PROJECT
MANAGEMENT
CC
Third
Applicant
and
NELSON
MANDELA BAY MUNICIPALITY
First
Respondent
PUBLIC
PROTECTOR OF SOUTH AFRICA
Second
Respondent
JUDGMENT
POTGIETER
J
Introduction
[1]
The
fons et origo
of these proceedings are the Public
Protector’s investigation and report dated 29 January 2016
titled “
The Cost of Deviation”
(“the PP
Report”) into the complaint of the third applicant with regard
to a contract to construct houses in Areas
9 & 10 at Kwa-Nobuhle
Township, Kariega (formerly Uitenhage) pursuant to a tender for that
purpose awarded to WK Construction
(Pty) Ltd and WK Pipelines (Pty)
Ltd (“WK”) by the first respondent, the Nelson Mandela
Bay Municipality (“the
Metro”).
[2]
WK had subcontracted the third applicant, a registered Close
Corporation (“the CC”), of which the first and second
applicants were (prior to their final sequestration on 3 December
2013) the sole members, to erect some of the top structures.
An
irresoluble dispute arose between WK and the CC concerning payment
which prompted the said complaint being lodged with the PP.
The
latter directed the Metro, as part of the remedial action ordered in
the report, to make payment of the amount due to the CC.
[3]
The plethora of subsequent litigation instituted by the applicants
against the Metro, more fully dealt with below, was aimed
at the
implementation of this remedial action. In fact, the case being
presented by the applicants in the present proceedings,
some 7 years
after the PP Report was finalised, is effectively still aimed at the
same issue, namely payment by the Metro of the
amount claimed by the
CC.
[4]
The present proceedings, which were preceded by numerous applications
brought by the applicant involving the Metro, concern
three separate
opposed applications, namely-
(a)
the main application by the Metro for an order declaring the
applicants to be vexatious litigants in terms of section 2(1)(b)
of
the Vexatious Proceedings Act
[1]
(“the vexatious proceedings application”);
(b)
an interlocutory application by the Metro for leave to file a
supplementary affidavit in support of the main application; and
(c)
a rule 30 application launched by the first applicant for an order,
inter-alia,
striking out the main application as an irregular
step together with a range of other relief not strictly related to
rule 30 proceedings.
Brief
Background
[5]
It is necessary to set out a brief background encompassing the
litigation history involving the parties in order to place the
present proceedings into context.
(i)The
first application
[6]
The litigation marathon involving the parties commenced with an
application brought by the applicants in April 2016 under case
number
992/2016 against the Metro and the PP to enforce the abovesaid
remedial action in the PP’s Report (“the first
application”). The matter came before Smith J on 12 April 2016
who postponed the application
sine die
and ordered that it be
heard simultaneously with the application to review the PP’s
Report that the Metro intended bringing.
The review application was
subsequently launched on 29 April 2016 under case number 1414/2016.
The PP; the liquidators of the CC;
the trustees of the first and
second applicants’ insolvent estates; the MEC for Human
Settlements in the Eastern Cape provincial
government; as well as WK
were all cited as parties in the review application.
(ii)
The second application
[7]
The review application spurred a rule 30/30A application brought
under the review case number 1414/2016 by the first and second
applicants (purportedly in their personal capacities and on behalf of
the CC) against the Metro, to have the review application
set aside
together with a range of other relief (“the second
application”). The matter was heard by Plasket J (as he
then
was) who dismissed the application on 30 August 2016 and directed
that the section of the judgement dealing with the standing
of the
first and second applicants be brought to the attention of the
Director of Public Prosecutions, Port Elizabeth. The court
found in
the relevant section of the judgement that, given their status as
unrehabilitated insolvents and having been divested
of their members’
interests in the CC, the first and second applicants had neither
personal standing nor standing to have
brought the application on
behalf of the CC. This conduct
prima
facie
constituted a criminal offence in contempt of an earlier order
granted by Chetty J in the matter of
Sholto-Douglas
NO & Others v Gobo Gcora Construction and Project Management CC &
Others
[2]
interdicting the said applicants from authorising the initiation,
pursuit or defence of any legal proceedings of any nature by
the CC.
(iii)
The third application
[8]
The applicants thereafter brought an application under case number
1414/2016 to declare the abovesaid judgement of Plasket J
null and
void and of no force or effect (“the third application”).
This matter was heard by Eksteen J who dismissed
the application on
20 October 2016. The court found that it was not competent for a
single judge to declare the judgement of a
similar court null and
void. The competent relief was for the aggrieved party to appeal
against the impugned judgement of Plasket
J. The court concluded that
Plasket J was correct in finding that the first and second applicants
had no standing to bring the
application before that court. By parity
of reasoning, they similarly had no standing to bring the proceedings
that were being
adjudicated by Eksteen J himself, which conduct was
once again in breach of the order of Chetty J. The court also
referred to a
similar finding by Roberson J in the matter of
Gobo
Gcora Construction and Project Management CC & Others v Cape
Building and Truss Supplies & Another
[3]
.
Eksteen J accordingly referred the matter to the Director of Public
Prosecutions, Eastern Cape.
(iv)
The fourth application
[9]
The applicants brought an application for leave to appeal which was
dismissed by Eksteen J on 10 November 2016 (“the fourth
application”).
(v)
The fifth application
[10]
The applicants then lodged an application for special leave to appeal
on 9 January 2017 in the Supreme Court of Appeal. This
application
was dismissed with costs on 23 March 2017 for a lack of reasonable
prospects of success (“the fifth application”).
(vi)
The sixth application
[11]
A subsequent application for leave to appeal to the Constitutional
Court was dismissed with costs on 5 June 2017 on the ground
that it
bears no prospect of success (“the sixth application”).
(vii)
The seventh application
[12]
The abovesaid first application under case number 992/2016 that was
earlier postponed
sine die
by Smith J was heard by Pickering J
on 14 September 2017 together with the Metro’s review
application under case number 1414/2016
as well as a further
application under the latter case number (“the seventh
application”) brought by the applicants
to dismiss the review
application. Judgement was delivered on 21 September 2017. Pickering
J partly upheld the review and dismissed
both the abovesaid
applications brought by the applicants. Importantly, the finding by
the PP that the CC suffered prejudice due
to the conduct of the Metro
as well as the remedial action aimed at compelling the Metro to pay
the monies due to the CC, were
all set aside. Each party was ordered
to bear its own costs.
[13]
It should be pointed out that the PP conceded at the hearing of the
review application that in the absence of a contractual
nexus between
the Metro and the CC, the findings and remedial action relating to
payment by the Metro of amounts due to the CC
were susceptible to
being set aside. It was specifically pointed out in the judgement of
Pickering J that the averment of the Metro
was not disputed that it
had paid to WK all the monies that were due to it. This quite
logically would have included any amounts
that WK in turn owed to the
CC in respect of the construction of the houses. The upshot of this
was that any loss that the CC may
have suffered was accordingly due
to the failure of WK to pay over to the CC that portion of the funds
received from the Metro,
that was due to the CC.
(viii)
The eighth application
[14]
The applicants brought an application for leave to appeal against the
judgement and order handed down by Pickering J on 21
September 2017
(“the eighth application”). That application was
dismissed on 22 November 2017 on the ground that there
was no
reasonable prospect that another court would come to a different
conclusion. Each party was ordered to pay its own costs.
(ix)
The ninth application
[15]
The applicants brought an application for special leave to appeal in
the Supreme Court of Appeal which was dismissed on 28
March 2018 on
the ground that there was no reasonable prospect of success (“the
ninth application”).
[16]
The applicants did serve an application for leave to appeal to the
Constitutional Court on the Metro, but did not file the
same at the
Constitutional Court. Although the Metro lists this among the
applications that were launched by the applicants, this
abortive
attempt should not in my view be regarded or treated as a completed
application for purposes of deciding the present application.
It
would accordingly be disregarded.
(x)
The tenth application
[17]
The first applicant furthermore launched an application for
declaratory relief related to the review application on the basis
that the Metro breached certain of its constitutional or statutory
obligations and that its officials committed financial misconduct
and
perjury on several occasions (“the tenth application”).
This application was heard by a Full Bench presided over
by the Judge
President together with a contempt of court application launched by
the Metro. The application of the first applicant
was in fact set out
in his answering affidavit to the contempt application, which
affidavit was styled “
answering affidavit and grounds for
counter relief”.
The first applicant was found to have been
in contempt of court and was sentenced to 6 months imprisonment
conditionally suspended
for 5 years and was ordered to pay the costs
of the application as well as all reserved costs. His own application
was dismissed.
In assessing the basis for the counter relief sought
by the first applicant, the Judge President stated in the judgment
that “
Besides making conclusions of law relating to the
violation of certain statutory provisions, the respondent
[first
applicant]
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”.
(xi)
The eleventh and twelfth applications
[18]
The applicants next brought two applications for the rescission of
the abovesaid judgements of Justices Plasket, Eksteen and
Pickering
(“the eleventh and twelfth/rescission applications”). The
two applications were heard simultaneously and
were dealt with in one
judgement (“the rescission judgment”) by Van Zyl DJP. The
judgment was handed down on 16 April
2019. Both applications were
dismissed with costs. The court referred specifically in the
judgement to the issue of the joinder
of the first and second
applicants in the review application where they were not originally
cited as parties (a matter which featured
prominently in some of the
subsequent applications brought by the applicants). The court
indicated with reference to paragraph
[29] of the review judgment
(dealing with joinder) that Pickering J decided to join the
applicants as parties in the exercise of
the court’s common law
discretionary power to effect a joinder on the basis of convenience.
This was the expressed intention
of Pickering J and the hearing
proceeded on that basis with the applicants fully participating as
parties, albeit the eventual
order never expressly recorded the fact
of the joinder. The court found no reason to correct the order in
this respect given that
the applicants were as a fact joined as
parties and that no purpose would be served by such correction.
(xii)
The thirteenth application
[19]
The applicants sought leave to appeal the rescission judgement which
was refused by Van Zyl DJP on 2 July 2019 (“the
thirteenth
application”). There was no appearance on behalf of the Metro
at the hearing and as a result no order was granted
as to costs. The
first and second applicants appeared in person.
(xiii)
The fourteenth application
[20]
The applicants applied to the Supreme Court of Appeal for special
leave to appeal the rescission judgement which application
was
dismissed with costs on 25 November 2019 (“the fourteenth
application”).
(xiv)
The fifteenth application
[21]
The applicants then launched a nullity application in respect of the
judgements of Pickering J and Van Zyl DJP (“the
fifteenth
application”). This application was set down together with the
then pending vexatious proceedings application of
the Metro.
(xv)
The sixteenth application
[22]
The applicants also filed a Rule 30/30A application (“the
sixteenth application”) in respect of the vexatious proceedings
application on the ground that it was irregular for the Metro to rely
on its answering affidavit in the review application as its
founding
affidavit in support of the vexatious proceedings application.
[23]
The fifteenth (nullity) application served before Gqamana J who
dismissed the same with costs on 2 June 2022 (“the nullity
judgment”). The court held that the vexatious proceedings
application was set down prematurely and ordered that it be postponed
and be heard simultaneously with the applicants’ Rule 30/30 A
(sixteenth) application on a later date.
(xvi)
The seventeenth and eighteenth applications
[24]
The applicants subsequently bought an application for leave to appeal
the nullity judgement (“the seventeenth application”)
which was dismissed with costs by Gqamana J on 3 August 2022. They
then brought an application for special leave to appeal the
nullity
judgement (“the eighteenth application”) which is
currently still pending before the Supreme Court of Appeal.
(xvii)
The Metro’s interlocutory application
[25]
The Metro brought an interlocutory application for leave to file a
supplementary affidavit in the vexatious proceedings application
in
order to include references to the abovesaid seventeenth and
eighteenth applications for leave to appeal the nullity judgement.
The latter two applications were brought after the vexatious
proceedings application was launched and were therefore not dealt
with in the latter application. This interlocutory application served
before Kruger AJ on 24 November 2022 who ordered that it
be heard
together with the pending vexatious proceedings and Rule 30/30 A
applications.
(xix)
Ambit of the present proceedings
[26]
As indicated, the present proceedings concern three separate opposed
applications. These applications accordingly serve before
me by
virtue of the orders of Gqamana J in respect of the vexatious
proceedings and Rule 30/30A (sixteenth) applications and of
Kruger AJ
in respect of the Metro’s interlocutory application to file a
supplementary affidavit. I now revert to the present
proceedings.
Appearances
[27]
Mr Gcora, the first applicant, appeared in person on behalf of the
applicants. He filed extensive heads of argument and a bundle
of
unreported authorities. He ably argued the case on behalf of the
applicants.
[28]
Mr Rorke SC, together with Ms Rawjee, appeared on behalf of the
Metro. They previously filed separate heads of argument in
respect of
the Metro’s interlocutory application in anticipation of the
hearing before Kruger AJ on 24 November 2022, which
heads they relied
upon for purposes of the present hearing. They have also filed heads
of argument in the normal course in respect
of the vexatious
proceedings and Rule 30/30A applications.
[29]
It is convenient to deal with the vexatious proceedings and
interlocutory applications first, followed by the Rule 30/30A
application of the applicants.
Vexatious
proceedings and interlocutory applications
[30]
As indicated, the vexatious proceedings application is brought in
terms of section 2(1)(b) of the Vexatious Proceedings Act
[4]
(“the Act”) in order to have the applicants declared to
be vexatious litigants. The general effect of such relief is
to
preclude the affected party from instituting legal proceedings
against any person without the leave of the relevant court where
the
envisaged proceedings are to be instituted. Such leave may only be
granted where such court is satisfied that there are
prima
facie
grounds for the relevant proceedings and that they are not an abuse
of the court’s process.
[31]
The Constitutional Court pointed out in
Beinash
& Another v Ernst & Young and Others
[5]
that the purpose of the Act is to stop the persistent and groundless
institution of legal proceedings by putting in place a screening
mechanism. This is necessary to protect the interests of the victims
of the vexatious litigant who have repeatedly been subjected
to the
costs, harassment and embarrassment of unmeritorious litigation.
Also, to protect the public interest that the functioning
of the
courts and the administration of justice proceed unimpeded by
groundless proceedings. The court concluded that the provisions
of
the Act were not unconstitutional.
[32]
That court also considered the meaning of vexatious litigation in
Lawyers
for Human Rights v Minister in the Presidency & Others
[6]
.
The
court concluded with reference to
Bisset
& Others v Boland Bank Ltd & Others
[7]
that vexatious litigation was “
frivolous,
improper, instituted without sufficient ground, to serve solely as an
annoyance to the defendant”.
The court further held that a frivolous complaint “…
is
one with no serious purpose or value”
and that “
[v]exatious
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”.
[33]
It is necessary to consider the respective cases of the parties in
respect of the vexatious proceedings application against
this
background. The Metro’s interlocutory application will be dealt
with in the course of the evaluation set out below.
(i)Case
of the Metro
[34]
It was submitted on behalf of the Metro that both requirements have
been satisfied for an order in terms of section 2(1)(b)
of the Act,
namely persistency and the absence of reasonable grounds. The
argument ran as follows. The applicants have lodged at
least 17
unsuccessful applications in their feud with the Metro. Their sole
objective being ultimately to obtain payment from the
Metro of monies
allegedly due by WK pursuant to the remedial action in the PP Report.
The claim lacks reasonable grounds in view
of the concession by the
PP that the remedial action was without foundation given the absence
of a contractual nexus between the
Metro and the CC. The review
application of the Metro was upheld as a result and the remedial
action was set aside. The appeal
processes in respect of the review
application have been exhausted and the matter has been finalised.
The objective of the present
of litigation is to impermissibly
resurrect the review application and thereby revive the remedial
action. The presiding judges
as well as the Metro’s legal
representatives and officials have been subjected to harassment and
embarrassment as a result
of the applicants’ unmeritorious
litigation. Furthermore, the ratepayers’ money is being used to
pay for the litigation.
[35]
The Metro is left with no other option than to seek appropriate
relief to stop the plethora of vexatious litigation brought
against
it by the applicants. The Metro therefore seeks an order in terms of
the notice of motion and for costs, including that
consequent upon
the employment of two counsel, to be paid by the applicants.
(ii)
Case of the applicants
[36]
The applicants basically deny having instituted vexatious litigation
in order to harass or embarrass the Metro. It was submitted
on their
behalf that all of the proceedings instituted by them were
well-founded and prompted by unlawful or irregular conduct
on the
part of the Metro and its officials. The various judgements handed
down are inconsistent and even contradictory which entitled
the
applicants to legitimately seek clarification through approaching the
court by means of the various applications. By way of
example, a
question exists whether or not the first and second applicants were
indeed joined in the review application. The statement
by the review
court that all monies owing to WK were paid placing reliance in this
regard on annexure “L” and “M”
to the Metro’s
papers, needs clarification. The finding by the review court that the
procurement process that resulted in
the appointment of WK was
irregular and unlawful, must be clarified. Similarly various
paragraphs in the nullity judgement need
clarification.
[37]
The applicants furthermore list numerous issues arising from and
aspects of the various applications and judgements which in
their
view should be clarified or interpreted in the interests of justice.
It was submitted that they were entitled to such clarification
instead of being muzzled for malicious reasons not disclosed to the
court.
[38]
The applicants therefore seek relief clarifying the issues raised in
its opposing papers and heads of argument and an order
dismissing the
Metro’s application and for mediation of the implications of
the findings at paragraphs 8.1 – 8.1.5;
8.2.2; 8.2.3; 8.3.2 and
8.3.3 of the PP’s Report which findings have not been set
aside. The applicants also persist with
the relief sought in
paragraphs 2.2.1 – 2.2.7; 2.3 and 12 of the first applicant’s
answering affidavit dated 30 August
2022 in the vexatious proceedings
application which relief has not been opposed by the Metro. These
subparagraphs relate to a variety
of matters, including alleged
hearsay and incorrect statements in the Metro’s affidavit in
the review application; contempt
of the PP by failing to implement
the remedial action; violation of Act 95 of 1998 by paying WK an
unregistered homebuilder; perjury
by a Metro official; verification
and/or interpretation of a number of paragraphs in the various court
judgements and the PP report;
and referral of the dispute to a
referee or mediator for resolution.
[39]
The applicants submitted in their heads of argument that the unending
litigation results from the attitude and approach of
the Metro in
treating the applicants as if they were unequal before the law and of
lesser worth than other people and twisting
the law in any way that
benefits it. There is no other appropriate place for the applicants
to report such ill-treatment, except
the courts.
Evaluation
(i)
Vexatious proceedings
[40]
The High Court has always possessed the inherent jurisdiction to
prevent abuse of its own process in the form of frivolous
or
vexatious litigation.
[8]
This
power, however, only extends to preventing the abuse of the court’s
own process in order to protect the applicant before
it. The court
has no inherent power to impose a general prohibition curtailing a
person’s ordinary right of litigation in
respect of all courts
and all parties.
[9]
This
limitation was remedied by the Act which empowers the court to impose
general restrictions on the institution of vexatious
legal
proceedings. It has been held that the provisions of the Act
complement the common law to prevent vexatious litigation.
[10]
[41]
In evaluating the merits of the matter it is instructive also to
refer, (in addition to the authorities already set out in
paragraphs
[31] and [32] above), to the following further enlightening dicta
with regard to proceedings of the present nature.
In
Fisheries
Development Corporation v Jorgensen
[11]
the court stated:
“
Vexatious
proceedings will also no doubt include proceedings which, although
properly instituted, are continued with the sole purpose
of causing
annoyance to the defendant, ‘abuse’ connotes a mis-use,
an improper use, a use mala fide, a use for an ulterior
motive.”
[42]
Innes CJ pointed out in
Corderoy
[12]
that the power to limit the right to litigate on the basis that the
relevant proceedings were vexatious, should be very cautiously
exercised because it affects the elemental right of free access to
the courts which should not be interfered with save in exceptional
and necessary instances. As indicated in
Argus
Printing & Publishing Co Ltd v Anastassiades
[13]
:
“
It
seems clear from these decisions that the elementary right of free
access to the courts should not be interfered with by the
summary
dismissal of an action without hearing evidence, on the ground that
it is vexatious, unless it is manifest that the action
is so
unfounded that it could not possibly be sustained. It must be quite
clear that failure of the action is a foregone conclusion”
[43]
The Constitutional Court held in
Lawyers
for Human Rights
[14]
that whether an application is manifestly inappropriate and vexatious
depends on whether it was so unreasonable or out of line
that it
constitutes an abuse of the process of the court. After reiterating
the statement of Mahomed CJ in
Beinash
[15]
that there cannot be an all-encompassing definition of “
abuse
of process”
the court referred with approval to the following further dictum in
Beinash
[16]
:
“
What
does constitute an abuse of the process of the Court is a matter
which needs to be determined by the circumstances of each
case. …
It can be said in general terms, however, that an abuse of process
takes place where the procedures permitted by
the Rules of the Court
to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective.”
[44]
The court added that ultimately the enquiry on the appropriateness of
the proceedings requires a close and careful examination
of all the
circumstances.
[45]
There is eminent authority for the proposition that proceedings may
be vexatious in effect although not in intent. It was pointed
out in
this regard in
In
re Alluvial Creek Ltd
[17]
that:
“
There
are people who enter into litigation with the most upright purposes
and a most fervent belief in the justice of their cause,
and yet
these proceedings may be regarded as vexatious when they put the
other side to unnecessary trouble and expense with which
the other
side ought not to bear.”
[46]
There are two threshold requirements for relief in terms of section
2(1)(b) of the Act: firstly, that the respondent has persistently
instituted legal proceedings and secondly that such proceedings have
been without reasonable ground.
[18]
[47]
The complaint of the Metro in the present matter relates to the
abovesaid long line of at least 17 unsuccessful applications
(and
attempts to appeal the adverse judgements) brought against it by the
applicants all relating to the remedial action in favour
of the CC
stipulated in the PP’s Report. Effectively, all of this
litigation was aimed at reviving and enforcing that remedial
action
which was, however, reviewed and set aside by Pickering J some six
years ago on 21 September 2017 in the Metro’s review
application. The appeal process in respect of that judgement was
finalised on 28 March 2018 when special leave was refused by the
Supreme Court of Appeal. An attempt to obtain special leave from the
Constitutional Court was initiated but abandoned.
[48]
It follows that any of the numerous subsequent attempts to revive the
remedial action, including the applicants’ approach
to the
present proceedings which clearly has the same objective, lacked any
reasonable ground. The applicants, for example, indicated
in their
papers and during argument in these proceedings that they require
clarification or interpretation of numerous aspects
apparently
arising from the aforesaid judgements. They also propose a settlement
that entails the implementation of the remedial
action that was set
aside. It is readily apparent that these issues raised by the
applicants could very well spawn further rounds
of extensive
litigation by the applicants against the Metro. It is also clear that
the applicants have not accepted that all conceivable
litigation
concerning the relevant remedial action has long since been
exhausted.
[49]
Save for the application to enforce the remedial action which was
still extant at that stage, none of the subsequent applications
was
well-founded. Unsurprisingly, they were all dismissed. The concession
by the PP, which Pickering J found to have been properly
made, that
the remedial action concerning the CC was unfounded in the absence of
a contractual nexus between the Metro and the
CC, effectively put
paid to the further litigation instituted by the applicants. On the
strength of that concession, the review
of the remedial action was a
fait accompli.
Any subsequent attempt by the applicants to
revive the review or the remedial action was without reasonable
ground. The requirement
of section 2(1)(b) of the Act that the
relevant litigation lacked any ground has accordingly been
established.
[50]
It is self-evident that the applicants have persistently instituted
legal proceedings against the Metro in respect of the same
subject
matter. The overwhelming number of unsuccessful applications, at
least 17 in total, undoubtedly evinces the persistency
of the
litigation. This requirement has therefore also been satisfied.
[51]
The relevant litigation is clearly vexatious in effect. The first and
second applicants are unrehabilitated insolvents who
litigated in
person through the first applicant. The CC has been under provisional
liquidation at some stage, although that order
was subsequently
discharged. There is no indication that the CC is possessed of any
significant means. The first and second applicants
are clearly in a
similar financial position. The Metro on the other hand litigated
throughout with the assistance of senior and
junior counsel on
instructions of a local firm of attorneys. The phenomenal costs that
have no doubt been generated by the extensive
level of litigation
referred to earlier, must be covered with public funds generated from
ratepayers. It is a matter of concern
that regardless of various
costs orders granted in its favour, there is no realistic prospect
that the Metro would be able to recover
any costs from the applicants
who undoubtedly are well aware of this fact. For the applicants to
simply forge ahead with a plethora
of unmeritorious litigation under
those circumstances, amount in my view to an abuse of process which
renders the litigation vexatious
also in intent and not merely in
effect.
[52]
In the circumstances, the Metro is entitled to relief that protects
it against the unmerited litigation onslaught unleashed
by the
applicants against it. I am, however, not persuaded that the relief
should reach beyond the present parties or that it should
be general
in effect. I therefore intend tailoring the relief to be granted
accordingly.
[53]
The Metro has only asked for costs in the event of the vexatious
proceedings application being opposed. This has been the case.
The
opposition has been strenuous and extensive as had become the norm.
The Metro is entitled to its costs in the circumstances.
(ii)
Interlocutory application
[54]
It remains for me to deal with the Metro’s interlocutory
application which is also opposed. The real purpose of this
application is to place a supplementary affidavit before the court
cataloguing the further two abortive applications for leave
to appeal
the nullity judgement of Gqamana J (the seventeenth and eighteenth
applications listed above). These applications were
brought by the
first and third applicants subsequent to the vexatious proceedings
application having been launched by the Metro.
The relevant
information was therefore not available when the latter application
was launched and is clearly material and relevant
to that
application. The said two applications are matters of public record
and the information thereanent contained in the supplementary
affidavit cannot be in dispute. This information would facilitate a
full ventilation of the vexatious proceedings application and
ensure
its adjudication upon all the relevant facts. The applicants cannot
be prejudiced in my view by the admission of the further
affidavit.
[55]
The applicants have filed opposing papers in the interlocutory
application, which the Metro does not wish to reply to. The
opposing
papers do not address the merits of the interlocutory application but
instead contains an attack on Mr Ganyaza, the deponent
of the
supplementary affidavit. It questioned his authority to act on behalf
of the Metro. Counsel for the Metro submitted that
the applicants’
bare denial of the authority of Mr Ganyaza was not supported by the
evidence given the resolution which provides
Mr Ganyaza with the
necessary authorisation that is annexed to the affidavit relied upon
by the Metro in the vexatious proceedings
application. As such, the
opposition was frivolous and vexatious and was ultimately aimed at
resurrecting the remedial action in
the PP Report that was set aside
by Pickering J. In my view there is merit in the submission.
[56]
Should leave to file the supplementary affidavit be refused, the
Metro would be prejudiced by not having all the available
and
necessary evidence before the court for the proper consideration of
its vexatious proceedings application. The relevant evidence
is
clearly important for purposes of the latter application in that it
demonstrates that the applications for leave to appeal were
brought
in the face of direct contrary Constitutional Court authority in the
matter of
Ndabeni
[19]
to the effect that the proper process to be followed where a High
Court judgement or order is contested on the basis that it is
a
nullity, is an appeal and not an application for review as resorted
to by the applicants. The latter option is only available
in respect
of Magistrate’s Court orders. The first applicant was well
aware of this authority. This is further indication
that the
applicants continued to engage in frivolous and vexatious litigation
against the Metro.
[57]
It is accordingly in the interests of justice for the supplementary
affidavit to be placed before the court. The Metro is entitled
to the
necessary relief in this regard.
The
applicants’ Rule 30/30 A application
[58]
This application is somewhat confusing and raises various issues that
are unrelated to an application of this nature. Nonetheless,
it
appears that the principal ground for the application is the
applicants’ contention that the Metro is precluded from relying
on its answering affidavit filed on 12 October 2021 in opposition to
the applicants’ nullity application that was decided
by Gqamana
J.
[59]
The stance adopted by the applicants appears to be based on a
misapprehension of the requirements of Rule 6. The contention
of the
applicants is that every application must consist of a notice of
motion and a founding affidavit, at pains of being irregular.
The
notice of motion in the vexatious proceedings application is not
accompanied by a founding affidavit. Instead, it purports
to rely on
an answering affidavit filed in different proceedings which have
since been finalised. As such, the application was
irregular and
falls to be set aside.
[60]
The response of the Metro was that the reliance on the earlier
answering affidavit is established practice based on considerations
of convenience and pragmatism. The purpose is to avoid unnecessary
duplication of relevant information that was already on record.
By
way of illustration, reference was made to the matter of
Mangqo
v MEC for the Department of Social Development, Eastern Cape
[20]
where this practice was accepted by Sangoni J (as he then was).
[61]
There was nothing untoward, in my view, for the Metro to rely on its
said answering affidavit. The vexatious proceedings application
was
enrolled to be heard together with the nullity application. The
answering affidavit in the latter proceedings was already before
the
court that was due to hear both applications. It would have been an
unjustified duplication to produce a founding affidavit
in support of
the vexatious proceedings application, in substantially similar terms
to the answering affidavit in the nullity application
where both
affidavits were to serve before the same court. It was therefore not
irregular for the Metro to have relied on the said
answering
affidavit for the purposes of both opposing the nullity application
and supporting the vexatious proceedings application.
In fact, the
first applicant resorted to a similar procedure in the contempt of
court proceedings before the Full Bench where he
relied on the
answering affidavit in the contempt proceedings for the declaratory
relief that he sought (the tenth application)
in respect of the
review application.
[62]
There is no need in my view to deal with the various other unrelated
sweeping relief being claimed in the present application.
That
includes a striking out of the index filed by the Metro, its heads of
argument and even the address of its senior counsel
in the nullity
application; an order prohibiting the Metro from challenging any
report by a statutory body; that the conduct of
the Metro’s
legal team be reported to the Legal Practice Counsel; and relief
against individual officials of the Metro for
alleged transgressions.
Apart from the fact that such further relief is irrelevant to the
rule 30/30A proceedings, it is not supported
by any evidence.
[63]
It follows that the Rule 30/30A application falls to be dismissed.
Conclusion
[64]
In my view the numerous applications referred to above which were
brought by the applicants against the Metro were all fundamentally
misdirected and unreasonable which fact must count against the
applicants. It justifies the conclusion that the applicants are
vexatious litigants as envisaged in section 2(1)(b) of the Act. In my
view the Metro is entitled to the relief that it seeks in
these
proceedings as more fully set out in the draft order which was handed
up by its counsel at the hearing.
[65]
In the result, the following order shall issue:
(a)
The applicants’ Rule 30 applications are dismissed with costs,
including the
costs of two counsel;
(b)
The first respondent is granted leave to file the supplementary
affidavit of Monde
Ganyaza in the vexatious proceedings application
under case number 1414/2016 and its non-compliance with the Rules in
this regard
is condoned;
(c)
The applicants are declared vexatious litigants pursuant to the
provisions of section
2(1)(b) of the Vexatious Proceedings Act,3 of
1956 (“the Act”);
(d)
The first, second and/or third applicants shall not institute any
legal proceedings
in any Division of the High Court of South Africa
or in any inferior court against the first respondent relating in any
way to
the Public Protector’s Report titled ‘
Costs of
Deviation’,
without the leave of the relevant inferior
court or of the High Court or any judge thereof, as envisaged in
section 2(1)(b) of the
Act;
(e)
The applicants are directed to pay the costs of the vexatious
proceedings application
and the interlocutory application for the
relief set out in paragraph (b) above instituted by the first
respondent, including the
costs of two counsel;
(f)
The Registrar is directed to cause a copy of this order to be
published
in the
Government Gazette,
as contemplated in
section 2(1)(b) of the Act.
D.O.
POTGIETER
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants:
Mr S Gcora,
In
Person, 128 Thriftwood,
Walker
Drive, Sherwood, Gqeberha
For
the Respondents: Adv Rorke SC and
Adv
Rawjee, instructed by Gray Moodliar Inc.,
19
Raleigh Street, Central, Gqeberha
Date
of hearing: 13
April 2023
Date
of delivery of judgment: 16 May 2023
[1]
3 of 1956
[2]
ECP 27 June 2014 case no 1970/14
[3]
Case no 2699/2011 dated 8 September 2016
[4]
Section 2 reads as follows in relevant part:
"2(1)(b)
If, on an application made by any person against whom legal
proceedings have been instituted by any other person
or who had
reason to believe that the institution of legal proceedings against
him is contemplated by any other person, the court
is satisfied that
the said person has persistently and without any reasonable grounds
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 that person
or giving him an opportunity of
being heard, order that no legal proceedings shall be instituted by
him against any person in
any court or any inferior court without
leave of the court, or any judge thereof, or that inferior court, as
the case may be,
and such relief shall not be granted unless the
court or judge or the inferior court, as the case may be, is
satisfied that the
proceedings are not an abuse of the process of
the court and that there is prima facie ground for the proceedings.
(c) an order under
paragraph (b) may be issued for an indefinite period or for such
period as the court may determine, and the
court may at any time, on
good cause shown, rescind or vary any order so issued.
…
(3)
The registrar of the court in which an order under subsection(1) is
made, shall cause a copy thereof to be published as soon
as possible
in the Gazette.
(4)
Any person against whom an order has been made under subsection(1)
who institutes any legal proceedings against any person
in any court
or any inferior court without the leave of that court or a judge
thereof or that inferior court, shall be guilty
of contempt of court
and liable upon conviction to a fine not exceeding £100 or to
imprisonment for a period not exceeding
six months."
[5]
1999(2) SA 116 (CC) at para [15] (“
Ernst
& Young”
).
[6]
2017(1) SA 645 (CC) para [19] (“
Lawyers
for Human Rights
”).
[7]
1991(4) SA 603(D) at 608D-F
[8]
Western
Assurance v Caldwell’s Trustees
1918
AD 262
at 271
;
Corderoy v Union Government (“Corderoy”)
1918
AD 512
at 517
.
[9]
Corderoy
(fn 8); In re Anastassiades
1955(2)
SA 220 (W) at 225H
.
[10]
ABSA
Bank Ltd v Dlamini
2008(2)
SA 262 (D)
.
[11]
1979(3) SA 1331(W) at 1339
[12]
supra fn 8
[13]
1954(1) SA 72 (C) at 74A.
[14]
supra fn 6 paras [20] and [21].
[15]
Beinash
v Wigley
1997(3) SA721 (SCA) at 734F-G.
[16]
Id at 734D-G
[17]
1929 CPD 532
at 535; See also
NS
v JN
[2022]
JOL 55352
(SCA) para [21]
[18]
Ernst
& Young fn 5 para [15];
Cohen
v Cohen
2003(1) SA 103 (C) at para [17]
[19]
Municipal
Manager: OR Tambo District Municipality & Another v Ndabeni
2022(10)
BCLR 1254 (CC) at para [23].
[20]
[2012] JOL 29647
(ECM) para [3]