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[2023] ZAKZPHC 141
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Govender v Panday (15672/22P) [2023] ZAKZPHC 141 (23 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No: 15672/22P
In
the matter between:
BENEN-LEE
WALLACE GOVENDER
APPLICANT
and
VISHAM
PANDAY
RESPONDENT
Heard:
10 November 2023
Delivered:
23 November 2023
ORDER
The
application is dismissed with costs, including the costs occasioned
by the appearance in court on 18 January 2023.
JUDGMENT
Mlotshwa
AJ
[1]
The applicant sought interim relief on 18 January 2023 in the
following terms:
‘
1.
That a Rule is issued calling on the Respondent to show cause before
this court sitting
at Pietermaritzburg on day of
2022 at 09h00 or soon thereafter as the matter may be heard why
an
order in the following terms should not be granted:-
(a)
That the Respondent is declared to be a vexatious litigant
in terms
of Section 2(1)(b) of the Vexatious Proceedings Act 1956.
(b)
That the Respondent is interdicted and restrained from instituting
any proceedings (whether civil or criminal) against the Applicant and
any person in any Court without the leave of a judge of the
High
Court.
(c)
That the Respondent pay the costs of this application.
2.
That subparagraphs (a) and (b) of paragraph 1 of this order are to
operate as
interim orders with immediate effect pending the
confirmation or discharge of the rule.
3.
That the Applicant be granted further or alternative relief.’
[2]
Bezuidenhout J, on that day, granted an order by consent of the
parties, containing
the following:
(a)
Adjourning the application
sine
die.
(b)
The applicant to file the replying
affidavit by not later than 1 February 2023.
(c)
The costs occasioned by the appearance
in court for the 18
th
of January 2023 were reserved.
[3]
The application was on the opposed roll on 10 November 2023. The
matter was argued
and an amended draft order was handed up in court,
which read as follows:
‘
1.
That the Respondent is declared to be a vexatious litigant in terms
of Section 2(1)(b)
of the Vexatious Proceedings Act 1956.
2.
That the Respondent is interdicted and restrained from instituting
any proceedings
(whether civil or criminal) against the Applicant and
any person in any Court without the leave of a judge of the High
Court.
3.
That the Registrar is directed to cause a copy of this order to be
published
in the
Government Gazette
in terms of section 2(3)
of the said Act.
4.
That the Respondent pay the costs of this application including the
costs of
the proceedings on 18 January 2023 which were reserved and
all other reserved costs.’
[4]
Significant to this application is section 2(1)
(b)
of the
Vexatious Proceedings Act 3 of 1956 (the Act) that states that:
‘
If,
on an application made by any person against whom legal proceedings
have been instituted by any other person or who has 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 ground instituted legal
proceedings in any court or in any inferior
court, whether against
the same person or against different persons, the court may, after
hearing 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 the leave of
the court, or any judge thereof, or that inferior court, as the case
may be, and such leave shall not
be granted unless the court or judge
or the inferior court, as the case may be, is satisfied that the
proceedings are not an abuse
of the process of the court and that
there is
prima facie
ground
for the proceedings
.’
[5]
In order to determine whether or not the respondent institutes legal
proceedings persistently
and without reasonable grounds,
consideration must be given to annexure “BG2” attached to
the applicant’s founding
affidavit.
[6]
The applicant averred that annexure “BG2” is a summary of
various proceedings
brought by the respondent against various
persons, including the applicant. The purpose of annexure “BG2”
is to set
forth particulars of the cases brought by the respondent of
which the applicant is aware but did not propose to traverse the
details
in such cases to any extent in this application.
[1]
Apparent in annexure “BG2” for context of this
application is the following:
(a)
The applicant refers to two cases in item 1, case number D4530/2022,
an application brought
by the respondent against Lockhat Mayat
Attorneys and the applicant as first and second respondents,
respectively. The respondent
duly complied as directed to institute
an action against Lockhat Mayat Attorneys and the applicant under
case number D5240/2022.
However, the application under D4530/2022 is
still pending. The applicant did not wish to traverse the merits of
the claim as that
would be dealt with by the trial court in due
course.
[2]
(b)
Item 3 reflects case number 7882/18P, an application that was
initiated by the respondent
in the KwaZulu-Natal Division of the High
Court, Pietermaritzburg against Dr Dayanand and the Health
Professions Council of South
Africa. The court dismissed the
respondent’s application with the remark that the respondent
was abusing the court’s
process. The courts, including the
Supreme Court of Appeal and the Constitutional Court refused the
respondent’s leave to
appeal.
(c)
Item 4 sets out case number 5448/18P that is still a pending action
in KwaZulu-Natal
Division of the High Court, Pietermaritzburg. It
involves the respondent in his capacity as executor of the estate of
late Luan
Trevlin Panday against Dr Dayanand and Mrs Dayanand for
payment of R3 475 000.00 for payment of the balance of 205
Kruger
Rands allegedly sold by the late Mr Panday to Dr Dayanand and
his wife.
(d)
Item 5 reflects that case number 6974/18P is a pending application
brought by the respondent
against Dr Dayanand, his wife and Brigadier
Bantam as first, second and third respondents.
(e)
Item 6 states that in case number 7374/18P, is a R1 000 000.00
pending damages
action instituted by the respondent against the
magistrate, Mr Ashin Kumar Singh. A plea and counterclaim are filed
in court but
no plea to counterclaim has been filed.
(f)
Item 7 details case number D5830/2021, which is an unsuccessful
urgent interdict application
brought by the respondent in the
KwaZulu-Natal Local Division of the High Court, Durban against Ms
Aarti Malthoo.
(g)
Item 8 reflects case number D6687/2021, a R402 245.75 action
instituted by the respondent
on 6 August 2021 in the KwaZulu-Natal
Local Division of the High Court, Durban against Ms Malthoo but that
action was either abandoned
or dismissed.
(h)
Item 9 sets out case number D7380/2021, which is a pending action
instituted by the respondent
for payment of monies allegedly loaned
to Ms Malthoo.
(i)
Item 10 details case number D8122/2021 which is a R1 457 579.08
action
by the respondent against Ms Malthoo for payment of Dell
computers allegedly purchased from Ms Malthoo.
(j)
Item 11 describes that case number 2677/22 is an application that was
dismissed
with costs but was brought by the respondent against Mr
Kawlasir and Ms Malthoo.
(k)
Item 12 reflects that case number D3833/2022 is a defamation action
pending in KwaZulu-Natal
Local Division of the High Court, Durban,
instituted by the respondent against Ms Malthoo.
(l)
Item 13 details case number 5674/2022 which is a pending damages
action in the
Durban Magistrates’ Court instituted by the
respondent against Ms Malthoo.
(m)
Item 14 sets out case number D7312/2012 a pending application in the
KwaZulu-Natal Local Division
of the High Court, Durban brought by the
respondent against Ms Malthoo.
(n)
Item 15 is case number 8318/18P a pending interdict application
brought by the respondent
in the KwaZulu-Natal Division of the High
Court, Pietermaritzburg against Dr Reshal Dayanand.
[7]
The applicant averred that there is a criminal case in which the
respondent is the
complainant and the applicant is the suspect. The
matter is currently being investigated by Specialised Commercial Unit
of South
African Police Service. In this regard, Captain Chetty has
obtained a signed warning statement from the applicant.
[3]
The applicant also laid a fraud criminal charge against the
respondent and that matter is also currently under investigation.
[8]
The respondent opposed this application to be declared vexatious
litigant and stated
that the applicant left out in the list of cases
brought by the respondent a matter where the respondent successfully
applied against
the University of KwaZulu-Natal (UKZN), before Chetty
J with an order compelling UKZN to furnish certain information to
respondent.
[4]
The respondent
admitted that there was another application against UKZN in 2022 that
was dismissed on the basis of non-joinder
of parties.
[9]
It was submitted by Mr De Beer SC, on behalf of the applicant, that:
(a)
Annexure “BG2” attached to the applicant’s
affidavit provided a succinct
summary of the proceedings instituted
by the respondent against the applicant and other persons. The
respondent has persistently
and over a long period of time instituted
proceedings against the applicant and other persons as set out in
annexure “BG2”
(b)
The Constitutional Court confirmed in
Beinash
and another v Ernst and Young and others
[5]
that the limitation against vexatious litigation provided for in
terms of section 2(1)
(b)
of the Act is constitutionally justifiable.
(c)
Mr De Beer SC submitted further that the order sought was for an
indefinite period
and if for instance the respondent were to be a
victim of a crime, would have to first obtain leave of the court by
persuading
court that he is rehabilitated from persistently
instituting proceedings that are without reasonable grounds.
[10]
Mr Chetty submitted, on behalf of the respondent, that:
(a)
There is only one application brought by the respondent in which the
applicant is cited
as the respondent, but no relief is sought against
the applicant as an interested party. The applicant has not even
opposed the
application, presumably on the grounds that no relief is
sought against the applicant.
(b)
Omitted from annexure “BG2” is a second pending action
instituted by the respondent
against the applicant in the Durban High
Court case number: 11147/2022 in relation to a loan agreement but the
applicant brought
an application for costs.
(c)
The applicant has also brought three applications against the
respondent, including
application for security for costs and has also
initiated criminal proceedings against the respondent.
[11]
Mokgoro J stated in
Beinash
v Ernst & Young
[6]
that:
‘
The
right of access to courts protected under s 34 of the Constitution is
of cardinal importance for the adjudication of justiciable
disputes.
When regard is had to the nature of the right in terms of s 36(1)
(a)
,
there can surely be no dispute that the right of access to court is
by nature a right that requires active protection. However,
a
restriction of access in the case of a vexatious litigant is in fact
indispensable to protect and secure the right of access
for those
with meritorious disputes
.’
[12]
The first requirement to be satisfied by the applicant, is to
demonstrate ‘persistence’
on the part of the respondent
to institute proceedings. The
Oxford
South African Concise Dictionary
[7]
defines ‘persistent’, the parts relevant for this matter,
as follows:
‘
1
.
persisting or having tendency to persist.
2
. continuing or
recurring, prolonged.’
[13]
Inherent in annexure “BG2” is that the respondent
instituted five legal proceedings
in 2018, four of which are still
pending in courts (5448/2018P, 6974/2018P, 7374/2018 and 8318/2018P),
and one was unsuccessful
(7882/18P). In the unsuccessful matter, the
respondent’s attempt to be granted leave to appeal was refused
by all courts
including the Constitutional Court. The parties
involved in respect of pending legal proceedings, were not joined in
this
application and there is no explanation from them with reasons
why at least they, the other parties, decided not set these matters
down for hearing so that they can be finalised once and for all.
[14]
For two years, 2019 and 2020, the respondent never instituted any
legal proceedings either against
the applicant or any other persons.
[15]
Out of the four matters brought by the respondent in 2021 in annexure
“BG2”, one
was struck off roll (D5830/2021), there is no
indication whether another matter was abandoned or dismissed
(D6687/2020), but the
other two are still pending (D7380/2021 and
D8122/2021). Again, there is no explanation with reasons why these
pending matters
have not been set down for hearing either by the
respondent or other parties involved.
[16]
There is one case (D2677/2022) that was dismissed with costs among
the six instituted by the
respondent in the year 2022 according to
annexure “BG2”, but the other five are still pending
(D4530/2022, D5240/2022,
D3833/2022, 5674/2022 and D7312/2022).
Regrettably, there is no explanation with reasons why any of the
parties have not set the
matters down for hearing in order to have
them finalised.
[17]
Other than stating that the manner in which the legal proceedings are
instituted by the respondent
against the applicant and vice versa
raises concern, it cannot be said that it constitutes persistence if
regard is had to the
lapse between these legal proceedings.
Furthermore, these proceedings appear prima facie justifiable for
enrolment in a court of
law.
[18]
The second requirement to be met by the applicant must at least
demonstrate that these legal
proceedings are without reasonable
grounds. In the absence of an explanation from the parties involved
in the pending matters,
difficulty arises in concluding that the
respondent does not have reasonable grounds, unless one resorts to
speculation.
[19]
Mr De Beer SC and Mr Chetty correctly accepted during their arguments
that it cannot be denied
that all the other parties involved in the
pending legal proceedings do have remedies in law such as punitive
cost orders.
[20]
The Constitutional Court case of
Beinash
on which the
applicant relies, is clearly distinguishable from the current
application. In
Beinash
the respondents had launched, between
7 May 1992 and 12 January 1998, forty five different proceedings, of
which twenty seven had
been unsuccessful and only one, an application
for leave to appeal, had been successful.
[21]
Notwithstanding, the
respondent’s
right to access
the courts, in terms of
section 34 of the Constitution of the Republic of South Africa may be
limited by a law of general
application that is reasonable and
justifiable in an open and democratic society based on dignity,
freedom and equality in terms
of section 36. This application did not
make out a case that such a limitation will be justified.
[22]
Accordingly, the application to have the respondent declared a
vexatious litigant in terms of
section 2(1)
(b)
of the Act
falls to be dismissed.
[23]
In the result, I make the following order:
The
application is dismissed with costs, including the costs occasioned
by the appearance in court on 18 January 2023.
MLOTSHWA
AJ
APPEARANCES
For
the applicant:
A De
Beer SC
Instructed
by:
Siva
Chetty Attorneys
Block
C,
Second
Floor, Suite 10
460
Town Bush Road
Pietermaritzburg
Ref:
Mr SN Chetty/Shalina/G2351
For
the respondent:
Mr KJ
Chetty
Instructed
by:
Gosai
& Company Inc
105
Sixth Avenue
Morningside
Durban
Ref:
Vinay/V Gosai/P452
c/o
Messenger King
c/o N
Nhlapho Attorneys
229
Hoosen Haffajee Street
Pietermaritzburg
Ref:
Deepika Rampersad
[1]
The founding affidavit paras 6(a) and 6(c).
[2]
The founding affidavit para 7.
[3]
The founding affidavit para 22.
[4]
The answering affidavit para 14.
[5]
Beinash
and another v Ernst & Young and others
1999 (2) SA 116
(CC) (
Beinash
).
[6]
Beinash
para
17.
[7]
The Dictionary Unit for South African English (ed)
Oxford
South African Concise Dictionary
2 ed (2010).