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[2023] ZAKZPHC 75
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Maughan v Zuma and Another; Downer v Zuma and Another (12770/22P; 13062/22P) [2023] ZAKZPHC 75 (3 August 2023)
FLYNOTES:
CRIMINAL – Private prosecution –
Abuse of
process
– Orders setting aside summonses and
interdicting private prosecution – Mr Zuma seeking to appeal
orders
– Whether orders not to be suspended pending appeal –
Applicants have shown exceptional circumstances, that they
will
suffer irreparable harm if the order is not made and that Mr Zuma
will not suffer irreparable harm if the order is made
–
Operation of orders not suspended pending applications for leave
to appeal or appeals –
Superior Courts Act 10 of 2013
,
s
18(3).
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 12770/22P
In
the matter between:
KARYN
MAUGHAN
Applicant
and
JACOB
GEDLEYIHLEKISA ZUMA
First Respondent
WILLIAM
JOHN DOWNER
Second Respondent
and
CASE
NO.13062/22P
In
the matter between:
WILLIAM
JOHN DOWNER
Applicant
and
JACOB
GEDLEYIHLEKISA ZUMA
First Respondent
KARYN
MAUGHAN
Second Respondent
ORDER
1.
The applications under Case Nos 12770/22P and 13062/22P are enrolled
as urgent applications, and the forms and service
provided for in the
Uniform rules of Court are dispensed with, and non-compliance
therewith condoned, to the extent necessary.
A:
Case No: 12770/22P
1.
The operation and execution of paragraphs
A1 and A2 of the orders of
the Full Bench given under case number 12770/22P on 7 June 2023 shall
not be suspended pending the final
determination of any applications
for leave to appeal or appeals against the order.
2.
The First Respondent is directed to
pay the costs occasioned by the
unsuccessful opposition to this application on an attorney and own
client scale such costs are
to include the costs of two counsel.
B:
Case No: 13062/22P
1.
The operation of the orders made by this Court in paragraphs
B1 and B2 of its judgment delivered on 7 June 2023 remain in force
and such orders are not suspended pending the final determination of
any application for leave to appeal or any appeals.
2.
For the duration of this order:
2.1
The First Respondent's private prosecution of the applicant
is
suspended;
2.2.
Mr Andrew Breitenbach SC may resume his role as a member of
the prosecution team in the criminal prosecution of the first
respondent;
2.3.
The First Respondent may not pursue any private prosecution of
the Applicant on substantially the same charges as those advanced
in
the summons in the private prosecution set aside.
3.
The First Respondent is directed to pay the costs occasioned
by the unsuccessful opposition to this application, including the
costs
of two counsel on the scale as between attorney and client.
JUDGMENT
THE
COURT (KRUGER J, HENRIQUES Jet MASIPA J)
Introduction
[1]
In both Case No's 12770/22P and 13062/22P,
the Applicants (Maughan
and Downer) seek orders in terms of s18(3) of the Superior Courts Act
10 of 2013 ('the Act') to the effect
that the judgment of this court
of 7 June 2023 shall not be suspended pending the final determination
of any applications for leave
to appeal or appeals against the order.
In addition, thereto, in Case No. 13062/22P the Applicant, William
John Downer ('Downer')
seeks the following relief:
'3.
For the duration of this order:
3.1
The First Respondent's private prosecution of the Applicant is
suspended.
3.2
Mr Andrew Breitenbach SC may resume his role as a member of the
prosecution team in
the criminal prosecution of the First Respondent.
3.3
The First Respondent may not pursue any private prosecution of the
Applicant on substantially the same
charges as those advanced in the
summons set aside.'
[2]
Both Applicants also seek costs on the attorney
and client scale in
the event of the applications being unsuccessfully opposed. The First
Respondent, Jacob Gedleyihlekisa Zuma
('Zuma'), has opposed both
applications.
The
relevant facts which preceded the applications
[3]
On 7th June 2023 this court granted the following
orders:
'A:
Case No: 12770/22P
1.
The summons issued out of the KwaZulu-Natal Division of the
High Court, Pietermaritzburg on 5 September 2022, under case number
CC52/2022P, for the purpose of instituting a private prosecution
against the Applicant by the Respondent is set aside.
2.
The Respondent is interdicted and restrained from
reinstituting, proceeding with, or from taking any further steps
pursuant to,
the private prosecution referred to in paragraph 1.
3.
The costs of this application are to be paid by the Respondent
on an attorney and own client scale, such costs to include the costs
of two counsel where so employed.
B:
Case No: 13062/22P
1
The summons, by which the Respondent instituted a private
prosecution of the Applicant in this court in Case CC52/2022P, is set
aside.
2
The Respondent is interdicted from pursuing any private
prosecution of the Applicant on substantially the same charges as
those
advanced in the summons set aside.
3
The Respondent is ordered to pay the Applicant's costs on the
scale as between attorney and own client, such costs to include the
costs of two counsel where so employed.'
[4]
In summary this court found that:
4.1
the First Respondent did not have a
no/le prosequi
certificate to authorise the institution of a private prosecution
against Ms Maughan as required under s 7(2)(a) of the CPA;
4.2
the First Respondent lacked standing to institute a private
prosecution against
Maughan
under s 7(1)(a) of the CPA as he did not have "a substantial and
peculiar interest" arising from "injury"
suffered as a
result of Ms Maughan obtaining and publishing the contents of a
letter by Brigadier (Dr) Mdutywa;
4.3
the First Respondent's institution of a private prosecution
was an abuse of court process, pursued without merit and for an
ulterior
purpose;
4.4.
the
points in /imine
raised by the First Respondent of a lack
of jurisdiction/prematurity, urgency, the state attorney's authority
to act for Downer
and the non-joinder of Maughan were without merit
and dismissed.
[5]
Subsequent to the delivery of the written judgment on 7 June 2023, at
11h25 on the
same day, the JG Zuma Foundation published a statement
on Twitter in which it indicated that the First Respondent was to
appeal
the judgment of the Full Court. This prompted Maughan's
attorneys on 14 June 2023 to address a letter to the First
Respondent's
attorneys requesting them to confirm whether or not they
did not intend to seek leave to appeal and in the absence of advice
to
the contrary, assumed that the First Respondent did intend to
appeal.
[6]
The letter requested an undertaking from the First Respondent that
pending the finalisation
of all appeal processes the First Respondent
would not take steps pursuant to the summons in the private
prosecution, which was
set aside and that Maughan would not be
required to attend the criminal court on 4 August 2023 or any other
future postponed date.
To avoid a court appearance the parties could
agree on joint correspondence to the Judge President requesting
directives embodying
that agreement.
[7]
A response was submitted by the First Respondent's attorneys on 19
June 2023 in which they confirmed
the First Respondent's instructions
to proceed and lodge the application for leave to appeal and also did
not provide the undertaking
as requested. It was for these reasons
that the application was instituted by Ms Maughan on 23 June 2023.
[8]
Downer's attorneys had written to the First
Respondent's attorneys on
17 April 2023 for their consent to allow Breitenbach to assist the
NPA in doing all things necessary
in relation to the First
Respondent's application for the removal of Downer as lead prosecutor
in the criminal prosecution. A response
was requested by 26 April
2023. A response was forthcoming on 3 May 2023 declining the request.
Downer instituted this application
on 20 June 2023. The First
Respondent's application for leave to appeal was filed in court on 28
June 2023.
[9]
Against that background, the First Respondent
raised,
in limine,
the fact that the applications were not urgent, were premature
and should therefore be struck from the roll.
[10]
Section 18 applications
are by their very nature urgent. This is borne out by the provisions
of s 18(4) which provides that an appeal
must be dealt with on an
extremely urgent basis - see
Trendy
Greenies (Pty) Ltd tla Sorbet George v De Bruyn and Others
[1]
The First Respondent has
submitted that the applications are not urgent and will not prevent
the Applicants from appearing in court
on the 4
th
August 2023. The
underlying reason for this submission is that in the event this court
finds in favour of the Applicants, the First
Respondent will
immediately invoke his right of automatic appeal in terms of s 18(4)
of the Act. This is contemptuous as it is
pre-empting the judgment
and reasoning of the judgment. However, as the s18 applications are
inherently urgent, we are of the view
that there is no merit in the
First Respondent's point
in
limine.
[11]
The first respondent also
submitted that the s 18(3) applications are premature as they were
instituted prior to the application
for leave to appeal being filed.
This submission is not correct. An application for leave to implement
and execute an order can
be brought prior to an application for leave
to appeal being lodged. It can be instituted in circumstances where
there has been
an indication of an intent to lodge an application for
leave to appeal or in circumstances where one is reasonably
anticipated.
This was confirmed by the Supreme Court of Appeal in
Ntlemeza
v Helen Suzman Foundation and Another
[2]
.
The
legal position
[12]
The relief sought by the Applicants is in terms of s18(3)
of the Superior Courts Act 10 of 2013 ('the Act').
This section
provides:
'18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless
the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an
application for
leave to appeal or of an appeal, is suspended pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances
orders
otherwise, the operation and execution of a decision that is an
interlocutory order not having the effect of a final judgment,
which
is the subject of an application for leave to appeal or of an appeal,
is not suspended pending the decision of the application
or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if
the
party who applied to the court to order otherwise, in addition proves
on a balance of probabilities that he or she will suffer
irreparable
harm if the court does not so order and that the other party will not
suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)-
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest
court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme
urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject
of an application for leave to appeal or of an appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged
with the registrar in terms of the rules.'
[13]
The sole purpose behind a section 18(3) order is to regulate the
interim position between the parties pending the finalisation
of all
appeal processes. This was confirmed by the Constitutional Court in
the various applications involving
Tasima
which
came before our various courts.
[3]
The Constitutional Court in
Department
of Transport and others v Tasima (Pty) Ltd; Tasima (Pty) Ltd and
others v Road Traffic Management Corporation and others
[4]
held the following:
'[54]
Accordingly, the sole purpose of the
Sasson 1 order relative to
section 18(3) was to
regulate the interim position between the litigants from the time
when that order was made until the final
determination of the
underlying dispute between the parties by this Court.
[55]
At the hearing of this case, counsel for Tasima
conceded that the
Sasson 1
order
had its origin in the various High Court orders going back to the
order of Mabuse J. Moreover, this order was, in part, granted
in
terms of
section 18(3)
of the
Superior Courts Act which
meant that it
could only subsist for so long as the judgment of this Court in
Tasima 1 was still pending.
[56]
Thus, an order made under
section 18(3)
, as already indicated above,
serves to regulate the interim position between the litigants from
the time when such an order is
made until the final judgment on
appeal is handed down.'
[14]
Section 18 of the Act
introduces a new test where one seeks to execute an order pending the
appeal processes being finalised. Consequently,
authorities that
predate the enactment of the section have been overtaken. The test to
be applied in applications of such a nature
was initially stated as
follows by Sutherland J in
lncubeta
Holdings (Pty) Ltd and another v Ellis and another
[5]
as follows:
'It
seems to me that there is indeed a new dimension introduced to the
test by the
provisions
of s 18. The test is twofold. The requirements are:
•
First, whether or
not 'exceptional circumstances' exist; and
•
Second, proof on a
balance of probabilities by the applicant of -
o
the presence of irreparable harm to the applicant/victor, who
wants to put into operation and execute the order; and
o
the absence of irreparable harm to the respondent/loser, who
seeks leave to appeal.'
[15]
Two distinct findings of
fact must now be made rather than a weighing up consideration to
discern a preponderance of equities. The
discretion in the sense
articulated in
South
Cape Corporation (Pty) Ltd v Engineering Management Services
[6]
is now absent. The
three-fold statutory test in
lncubeta
has
been endorsed by the Supreme Court of appeal in
University
of the Free State v Afriforum and Another
[7]
,
Ntlemeza v Helen Suzman Foundation and Another
[8]
,
Premier for the Province of Gauteng and others v Democratic Alliance
and others
[9]
and
Knoop
NO and another v Gupta (Execution)
[10]
.
[16]
Both Applicants bear the onus to prove the three statutory
requirements
in terms of s 18(1) and (3) of the Act in order to
succeed in their applications for the implementation of the orders
granted.
Exceptional
Circumstances
[17]
A number of decisions
which have dealt with the interpretation of s 18 specifically examine
what is meant by the words 'exceptional
circumstances' as it appears
in the section. Most of the authorities commence with the test for
exceptional circumstances enunciated
by Thring J in the decision
in
MV AIS Mamas Seatrans Maritime v Owners, MV AIS Mamas, and
Another
[11]
where he provided a
summation of the meaning of the phrase as follows:
'What
does emerge from an examination of the authorities, however, seems to
me to be the following:
1.
What is ordinarily contemplated
by the words "exceptional
circumstances" is somewhat out of the ordinary and of an unusual
nature; something which is
excepted in the sense that the general
does not apply to it; something in common, rare or different;
"besonder", "seldsaam",
"uitsonderlik",
or "in hoe mate ongewoon".
2.
To be exceptional the circumstances
concerned must arise out of, or
be incidental to, the particular case."
3.
Whether or not exceptional circumstances
exist is not a decision
which depends upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact
which the Court must
decide accordingly.
4.
Depending on the context in which it
is used, the word "exceptional"
has two shades of meaning: the primary meaning is unusual or
different; the secondary
meaning is markedly unusual or specially
different.
5.
Where, in a statute, it is directed
that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to
the intention of the Legislature
by applying a strict rather than a liberal meaning to the phrase, and
by carefully examining any
circumstances relied on as allegedly being
exceptional.'
[18]
In
Jncubeta
Sutherland
J sounded a caution of using the definition enunciated by Thring J as
he was doing so in the context of the provisions
of s 5 of the
Admiralty Regulation Act 105 of 1983. He cautioned that one must
interpret a provision in the context of a specific
statute.
[12]
[19]
After examining a number
of authorities Sutherland J concludes that exceptional circumstances
may not be definable and may be difficult
to articulate but whether
or not such circumstances exist in a given case is not a product of
the exercise of a court's discretion
but rather a finding of
fact
[13]
. In addition, he
opines that 'Exceptionality must be fact-specific. The circumstances
which are or may be "exceptional"
must be derived from the
actual predicaments in which the given litigants find
themselves.'
[14]
In relation
to the second leg of the test in s 18 he indicates that s 18(3)
requires a different approach. The proper meaning of
that subsection
is that if the loser, who seeks leave to appeal, will suffer
irreparable harm, the order must remain stayed, even
if stay will
cause the victor irreparable harm too. In addition, if the loser will
not suffer irreparable harm, the victor must
nevertheless show
irreparable harm to itself. Two distinct findings of fact must now be
made, rather than a weighing-up to discern
a 'preponderance of
equities'. The discretion is absent in the sense articulated in
South
Cape.
[15]
[20]
In S
v
Liesching
&
Others
[16]
,
it was held at paragraph 39:
'The
phrase "exceptional circumstances" is not defined in the
Superior Court's Act. Although guidance on the meaning of
the term
may be sought from case law, our courts have shown a reluctance to
lay down a general rule. This is because the phrase
is sufficiently
flexible to be considered on a case-by- case basis, since
circumstances that may be regarded as "ordinary"
in one
case may be treated as "exceptional" in another.'
[21]
In
Knoop
NO and Another v Gupta (Execution)
[17]
,
the
court held:
'...
in the context of section 18(3) the exceptional circumstances must be
something that is sufficiently out of the ordinary and
of an unusual
nature to warrant a departure from the ordinary rule that the effect
of an application for leave to appeal or an
appeal is to suspend the
operation of the judgment appealed from. It is a deviation from the
norm. The exceptional circumstances
must arise from the facts and
circumstances of the particular case.'
[22]
In proving exceptional circumstances, Downer contends that a
suspension
of the main court orders, which were granted to prevent a
glaring abuse of process, will be negated. The private prosecution
was
instituted in bad faith with ulterior motives to delay and
obstruct Downer in performing his duties and to also have him removed
as the First Respondent's prosecutor. Therefore, allowing the private
prosecution to proceed whilst the First Respondent pursues
his appeal
would, in the face of the main judgment, perpetuate the harm caused
to the legal process. He contends that this private
prosecution was
unique in our law since it was initiated by an accused against his
prosecutor and was a disguised attempt to retaliate.
If such conduct
was allowed to continue, despite the main judgment having found it to
be an abuse, it would be an invitation to
other well sourced accused
persons to engage in the same conduct which will result in prejudice
to the administration of justice.
[23]
In the main judgment we noted that the private prosecution
was
instituted for an improper purpose and was used as a basis for the
First Respondent to seek the removal of Downer as a prosecutor
in his
criminal trial. Accordingly, that private prosecution served as a
precursor to the recusal application now brought before
the criminal
court and set down for hearing on the 15th and 16th August 2023. The
findings of this court in the main judgment were
aimed at bringing an
end to the abuse inherent in the private prosecution which abuse
would continue if the execution order sought
is not granted.
[24]
Ms Maughan contends that the continued operation
of the summons
against her permits the First Respondent to continue to violate her
freedom of expression and the general public's
corresponding right to
freedom of the press. It has been submitted on her behalf that the
private prosecution is in itself an exceptional
circumstance. It
deals with the private prosecution of a journalist who is doing her
job; a prosecution by a former president;
and a prosecution which has
been declared as an abuse. All these factors reinforce the submission
that this is an exceptional case.
[25]
In response, the First Respondent avers that the
only exceptional
circumstance is that all are not equal before the law. The First
Respondent contends that whenever he challenges
the constitutionality
of his prosecution or the prosecutor's title to prosecute, it is
labelled as 'Stalingrad'. However, when
the Applicants do exactly the
same, it is labelled as an exercise of their constitutional rights.
[26]
This argument by the First Respondent is flawed
in two respects.
Firstly, as regards Stalingrad, this was said to be the First
Respondent's defence strategy by his former legal
representative. The
First Respondent has, to date, never disavowed this defence strategy
despite being afforded several opportunities
to do so. We have
already alluded to the fact that the private prosecution served as a
precursor to an application for the recusal
of Downer as the
prosecutor in the main trial. This, in our view, clearly evidences
the Stalingrad strategy. Secondly, it is noted
that the Applicants
are not challenging the constitutionality of the private prosecution
but are merely exercising their common
law rights not to be subjected
to an unlawful prosecution which is an abuse of process.
Irreparable
Harm
[27]
It has been submitted on behalf of Downer that if the
order of this
court is not put into operation, Downer and the State stand to suffer
the following irreparable harm:
(a)
a further delay in the start of the First Respondent's criminal
trial, further prolonging
the case;
(b)
it would compromise the public confidence in the administration of
justice;
(c)
it would cause prejudice to the administration of justice as trial
preparations
and arrangements have been repeatedly disrupted and
wasted;
(d)
the prejudice which will affect the witnesses adversely due to the
effluxion
of time;
(e)
the financial prejudice to the NPA and the South African's tax payers
due to the costs incurred in defending the First Respondent's
repeated applications.
[28]
The irreparable harm to Downer is that he is scheduled to appear
in
the criminal court for a private prosecution on the 4th August 2023
and thereafter, despite this court declaring the private
prosecution
to be unlawful and setting it aside. There is also potential harm to
Mr Breitenbach, a member of the prosecution team,
who has been
implicated in the unfounded charges of disclosure of confidential
information and named as a witness in the private
prosecution.
[29]
The First Respondent has not challenged Downer's assertions
of
irreparable harm. Instead, the First Respondent has raised irrelevant
considerations that Mr Downer is biased and unable to
conduct a fair
trial. However, this issue is not before us and is to be considered
by the court on the 15
th
and 16
th
August 2023
when the recusal application will be heard.
[30]
Ms Maughan contends that her continued prosecution and associated
need for her to appear in the criminal court in respect of an
unlawful private prosecution is likely to be prolonged whilst the
First Respondent exhausts every possible process available to him.
The irreparable harm which she will suffer if the main judgment
remains suspended pending the First Respondent's appeals relates to
the prolonged infringement of her constitutional rights to
freedom of
movement and infringes on her personal liberty without any lawful
basis. Her continued appearance as a criminal accused
is therefore
patently harmful to her, especially in view of the associated social
media abuse. This abuse has not been denied by
the First Respondent.
[31]
Other factors raised by Ms Maughan relate to her personal
safety. She
avers that the attacks against her, particularly on social media,
intensify each time she appears in court as a litigant.
It has been
submitted that the continued existence of the unlawful summons causes
irreparable harm to the administration of justice
and allowing them
to stand will be seen as a court unwittingly facilitating ongoing
abuse of its processes. The harm she will suffer
should the relief
she seeks not be granted, cannot be remedied and is therefore
irreparable.
[32]
What of the harm to the First Respondent? The only harm
or prejudice
likely to be suffered by the First Respondent has been postulated as
being that he would be prosecuted by a person
who was himself subject
to prosecution and who might be convicted. However, as stated
earlier, this issue is not before this court.
Apart from this
averment, there is no other allegation of any harm which would befall
the First Respondent should this court not
grant the orders that the
Applicants seek, nor were any advanced at the hearing of the
applications. The only impact on the First
Respondent would be that
pending the appeal processes, he would be precluded from furthering
the private prosecution. However,
should he be successful in his
appeal, the private prosecution will resume and there is clearly no
prejudice or irreparable harm
to the First Respondent.
Prospects
of Success
[33]
Mr
Mpofu
SC, on
behalf of the First Respondent, submitted that the Applicants not
only bore the onus in terms of the three-fold statutory
test but also
had an onus to discharge in respect of the prospects of success on
appeal. In addition, he has submitted that the
Applicants were
required to specifically plead prospects of success in their founding
papers and relied on an unreported judgment
of the Gauteng Division,
Pretoria, delivered on 17 December 2019 in
Bila
Civil Contractors (Pty) Ltd v Samancor Chrome Ltci
[18]
.
[34]
The only onus which the
Applicants have to discharge is the three-fold statutory onus imposed
by s 18. There is no onus in the traditional
sense for the Applicants
to discharge in respect of prospects of success on appeal. In
Knoop
NO and Another v Gupta (Execution)
[19]
the prospects of success
on appeal was held to be one of the considerations for the court in
exercising its discretion in terms
of s 18. The court would consider
the prospects of success once the Applicant had satisfied the
three-fold statutory test imposed
ins 18.
[35]
Secondly, as correctly pointed out by Mr
Bud/ender
G
SC
for
Downer, the reliance on the
Bila
judgment is misplaced as it
was decided prior to the decision in
Knoop.
We accordingly
disagree with the submissions by Mr
Mpofu
SC that there is an
onus on the Applicants to show prospects of success on appeal which
ought to have been specifically pleaded.
[36]
Much time at the hearing of the application was spent
by Mr
Mpofu
SC on the prospects of success on appeal. It is common cause that
an application for leave to appeal is pending before the court
and is
yet to be enrolled. Much of Mr
Mpofu
SC's submissions in this
regard related to the alleged factual misdirections made by this
court as well as the aspect of subsidiarity
and the courts alleged
failure to deal with this. This court still has to determine the
existence or otherwise of such prospects
of success on appeal when it
considers the application for leave to appeal. It is accordingly
undesirable at this juncture that
these prospects be explored in
detail. Purely at the level that it has been submitted that this
court failed to deal with the aspect
of subsidiarity, it is noted
that in the main application before us, this was labelled as a
jurisdictional or prematurity aspect.
A mere perusal of the judgment
will show that it was dealt with in some detail. If indeed the main
thrust of the First Respondent's
application for leave to appeal is
the failure of the court to deal with the subsidiary aspect, then
prospects of success are indeed
slim.
[37]
We are accordingly satisfied that the Applicants have
discharged the
onus in terms of the three-fold statutory test imposed by s 18 of the
Act. The Applicants have shown exceptional
circumstances; that they
will suffer irreparable harm if the order is not made and finally
that the First Respondent will not suffer
irreparable harm if the
order is made.
Costs
[38]
The basic law regarding
costs was summarised aptly by the Constitutional Court in
Ferreira
v Levin N.
0.
and
others; Vryenhoek and others v Powell N.
O.
and
others
[20]
as
follows:
"The
Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the
first being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer,
and the second that the
successful party should, as a general rule, have his or her costs.
Even the second principle is subject
to the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or
her costs.
Without
attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of their costs can depend
on
circumstances such as for example, the conduct of the parties, the
conduct of their legal representatives, whether a party achieves
technical success only, the nature of litigants and the nature of the
proceedings."
[39]
These trite principles have consistently been followed by our courts.
Both Applicants seek a punitive costs order on an attorney client
scale. There are no reasons advanced by the First Respondent
to
deviate from these sound principles save for the submissions that
this court's judgement was a nullity, these applications were
futile
to begin with and any costs order granted will be suspended by a s
18(4) appeal.
[40]
Firstly this court's judgment is not a nullity. Until such time
as
the judgment is set aside on appeal the orders made remain in place,
it is merely the operation and execution thereof that has
been
suspended by the application for leave to appeal. The acceptance of
the submissions that s 18(3) applications are futile would
defeat the
very purpose for which they were enacted.
[41]
The basis for the punitive costs orders has been the fact that a
timeous and reasonable undertaking was requested pending the outcome
of all appeal processes. This in our view was an eminently
reasonable
request. Given that the First Respondent indicated an intention to
exercise his right of appeal, there could be no prejudice
to him let
alone the administration of justice had the First Respondent
consented to such a request. It would have obviated the
need for
these applications and further legal expenses being incurred. A costs
order on an attorney client scale including the
costs of two counsel
is thus justified.
[42]
We accordingly grant the following orders:
1.
The
applications under Case Nos 12770/22P and 13062/22P are enrolled as
urgent applications, and the forms and service provided
for in the
Uniform rules of Court are dispensed with, and non-compliance
therewith condoned, to the extent necessary.
A: Case No:
12770/22P
1.
The
operation and execution of paragraphs A1 and A2 of the orders of the
Full Bench given under case number 12770/22P on 7 June
2023 shall not
be suspended pending the final determination of any applications for
leave to appeal or appeals against the order.
2.
The First Respondent is directed to pay the costs occasioned
by the
unsuccessful
opposition to this application on an attorney and own client scale
such costs are to include the costs of two counsel.
B: Case No:
13062/22P
1.
The operation of the orders made by this Court in paragraphs B1 and
B2 of its judgment delivered
on 7 June 2023 remain in force and such
orders are not suspended pending the final determination of any
application for leave to
appeal or any appeals.
2.
For the duration of this order:
2.1.
the First Respondent's private prosecution of the applicant is
suspended;
2.2.
Andrew Breitenbach SC may resume his role as a member of the
prosecution team in the criminal
prosecution of the first respondent;
2.3.
the First Respondent may not pursue any private prosecution of the
Applicant
on substantially the same charges as those advanced in the
summons in the private prosecution set aside.
3.
The First Respondent is directed to pay the costs occasioned by the
unsuccessful opposition to this application, including the costs of
two counsel on the scale as between attorney and client.
KRUGER
J
HENRIQUES
J
MASIPA
J
CASE
INFORMATION
Date
of Set Down
28 July 2023
Date
of Judgment
3 August 2023
APPEARANCES
Applicant
KAREN
MAUGHAN
Counsel
for the Applicant
Steven
Budlender SC
Janice
Bleazard
Attorney
for the Applicant
WILLEM
DE KLERK ATTORNEYS
Le
Val (North Block, South Wing) 45 Jan Smuts Avenue
(Cnr
the Valley Road) Westcliff Johannesburg
Tel:
011 486 0242
I
3
Fax:
086 610 4240
Email:
willem@wdklaw.co.za
charl@wdklaw.co.za
tshegok@wdklaw.co.za
Ref:
W de Klerk
C/O
VIV GREENE ATTORNEYS
132
Roberts Road Pietermaritzburg
Tel:
033 342 2766
Email:
viv@vglaw.co.za
zonke@vglaw.co.za
Ref:
MAT3783
Applicant
WILLIAM
JOHN DOWNER
Counsel
for the Applicant
Geoff
Budlender SC
Hephzibah
Rajah
Attorney
for the Applicant
STATE
ATTORNEY KWAZULU-NATAL
6
th
Floor, Metlife Building
391
Anton Lembede Street, Durban
c/o
OPP KZN
288
Pietermaritz Street
Pietermaritzburg
Email:
ManoPillay@justice.gov.za
Ref:
Kelvin Singh
First
Respondent
JACOB
GEDLEYIHLEKISA ZUMA
Counsel
for the First Respondent :
Dali
Mpofu SC
Thabani
Masuku SC
Attorneys
for the First Respondent
NTANGA
NKUHLU INC
Unit
24, Wild Fig Business Park
1492
Cranberry Street
Honeydew
Tel:
010 595 1055
Mobile:
072 137 7104
Email:
mongezi@ntanga.co.za
Ref:
M Ntanga/20021/21
c/o
Pranesh lndrajith Attorneys
41
Lahore Road Pietermaritzburg
Tel:
033 3871410
Email:
mail@pi-attorneys.co.za
reception@pi-attorneys.co.za
Ref:
Pavi lndrajith
[1]
Trendy Greenies (Pty) Ltd tla Sorbet George v De Bruyn and Others
(2021) 42 ILJ 1771 (LC) at para
[2]
Ntlemeza
v Helen Suzman Foundation and Another
2017(5)
SA 402 (SCA) at paragraph 27
[3]
Tasima
(Pty) Ltd v Department of Transport
2016
JDR 4674 (GP),
Tasima
(Pty) Ltd v Department of Transport and others
[2016]
1 All SA 465 (SCA).
[4]
Department
of Transport and others v Tasima (Pty) Ltd; Tasima (Pty) Ltd and
others v Road Traffic Management Corporation and others
2018
(9) BCLR 1067
CC at paras 54 - 56
[5]
lncubeta
Holdings (Pty) Ltd and another v Ellis and another
2014
(3) SA 189
(GJ) at 16
[6]
South
Cape Corporation Pty Ltd v Engineering Management Services Pty Ltd
1977
(3) SA 534 (A)
[7]
University
of the Free
State
v
Afriforum and Another
2018(3)
SA 428 (SCA) at paragraphs 5 -6
[8]
Ntlemeza
v Helen Suzman Foundation and Another2017(5)
SA
402 (SCA) at paragraphs 19-22
[9]
Premier for the Province of Gauteng and others v Democratic Alliance
and others
[2021] 1 All SA 60
(SCA) at paragraph 9
[10]
Knoop
NO and another v Gupta (Execution)
2021
(3) SA 135
(SCA) at paragraph 45
[11]
MV AIS Mamas Seatrans Maritime v Owners, MV A/S Mamas, and Another
2002 (6) SA 150
(C) at 156I-157C
[12]
lncubeta
Holdings (Pty) Ltd and another v Ellis and another supra
at
paragraph 20
[13]
lncubeta Holdings (Pty) Ltd and another v Ellis and another supra at
paragraph 18
[14]
lncubeta Holdings (Pty) Ltd and another v Ellis and another supra at
paragraph 22
[15]
Incubeta Holdings (Pty) Ltd and another v Ellis and another supra at
paragraph 24
[16]
S
v
Liesching
&
Others
2019
(4) SA 219 (CC)
[17]
Knoop
NO and Another v Gupta (Execution)
2021
(3) SA 135 (SCA)
[18]
Bila Civil Contractors (Pty) Ltd v Samancor Chrome Ltd [2019]
ZAGPPHC 1051
[19]
Knoop
NO and Another v Gupta (Execution)
2021
(3) SA 135
(SCA)
[20]
[1996] ZACC 27
;
1996 (2) SA 621
CC at paragraph 3