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[2022] ZAFSHC 215
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Mangolele and Others v S and Others In re Mangolele v S and Others (3373/2022) [2022] ZAFSHC 215 (29 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 3373/2022
In
the matter of:
LIEUTENANT
COMMANDER
SYLVESTER
VULANI
'MADALA'MANGOLELE
1st
Applicant
THE
MANGOLELE
FAMILY
2nd
Applicant
PETRUS
PHAKAMILE SITHO
3
rd
Applicant
and
THE
STATE
1st
Respondent
INCUMBENT
PRESIDENT
MATAMELA
CYRIL RAMAPHOSA
2nd
Respondent
INCUMBENT
SPEAKER
OF
PARLIAMENT
NOSIVIWE
NOLUTHANDO MAPISA-NQAKULA
3rd
Respondent
INCUMBENT
CHIEF JUSTICE
RAYMOND
MNYAEZELI MLUNGISI ZONDO
4th
Respondent
GOVERNMENT
EMPLOYEE PENSION FUND
5th
Respondent
In
re:
LIEUTENANT
COMMANDER
SYLVESTER
VULANI
'MADALA'MANGOLELE
Plaintiff
and
THE
STATE
1st
Defendant
INCUMBENT
PRESIDENT
MATAMELA
CYRIL RAMAPHOSA
2nd
Defendant
MINISTER
OF
DEFENCE
3rd
Defendant
CHIEF
OF
THE
SOUTH
AFRICAN
NAVY
4th
Defendant
MR
MARCEL DE
WIT
5th
Defendant
MINISTER
OF
POLICE
6th
Defendant
JUDGMENTBY
MOLITSOANE,
J
HEARD
ON: 25
AUGUST 2022
DELIVERED
ON:
The judgment was handed down
electronically by
circulation
to the parties' legal representatives by email and released to
SAFLII. The date and time for hand down is deemed to
be 29 August
2022 at 11:00.
[1]
The applicants seek various orders on
various causes of actions which are not clear from the pleadings. The
relief is sought against
various respondents which includes the
President, the Speaker of Parliament and the Chief Justice. The court
file also reveals
that in these motion proceedings,
the applicants
also caused subpoenas to be issued
against the President.
[2]
It is not clear from the record how
service of this application was effected. The Applicants gave the
email numbers of the
respondents
and it appears that service was in all probability effected
by
email.
No
affidavit
confirming
the
service
of
the
application and the subpoenas was filed. There are no returns of
services
and
I
take
it
that
the sheriff
of
this
Court
did
not serve
both the
application and the subpoenas. That
notwithstanding,
only
the Second Respondent opposes this application.
[3]
Proper reading of the application
reveals that the purpose of this application is to either appeal or
rescind in terms of Uniform
Rule 42 the order granted by the Western
Cape Division of the High Court under case number 15141/ 2018. In
that case the applicant
was declared a vexatious litigant in terms of
section 2(1)(b) and (c) of the Vexatious Proceedings Act 3 of
1956(the Act).
[4]
In my view failure to comply with the
order of the Western Cape is dispositive of this application. The
court in
that
case ordered thus:
1.
"In terms
of
section
2(1)(b)
&
(c)
of
the
Vexatious
Proceedings
Act 3 of 1956 (the Act), and for
an indefinite period, no legal proceedings shall be instituted by the
first respondent against
any person in any court or any inferior
court without the leave of this
court, or any Judge thereof
or
that
inferior
court,
as the case
may
be ('leave’).
2.
Such leave shall not be granted
unless the Court or Judge of the inferior court, as the case may be,
is satisfied that the proceedings
are not an abuse
of the process
of Court and that
there
is prima facie ground for the
proceedings and the First Respondent has provided security for the
Applicant's costs.
3.
Such leave shall not be granted
unless the Court or Judge of the inferior court, as the case may be,
is satisfied that First Respondent
has satisfied the judgment cost
under case numbers 11025/2018, 12095/ 18 and 13505/18.
4.
[5]
The
order
above
requires pertinent
jurisdictional
facts to
be
present before the First Applicant can
institute proceedings against any one or entity. It is unnecessary to
repeat what was required
of the Applicant to do before instituting
these proceedings. The First Applicant has not complied with a single
requirement of
the said order. There is no evidence before me that
the First Applicant has sought and was granted leave by that court to
institute
these proceedings. During submissions before me, upon being
probed about
whether
there
was
compliance with
the
order of
the
Western
Cape, the applicant simply informed me that he would not comply with
an unlawful order. Unfortunately for the First Applicant
the order
has not been set aside. There is no evidence that it was appealed
against. In submissions it appears contended that he
filed an appeal
to the Supreme Court of Appeal. There is no evidence before me that
he applied for leave and was granted same to
appeal the judgment
before filing with the
SCA.
Whether
the First Applicant agrees or disagrees with the order, it remains
valid and ought to be complied with unless it has been
set aside.
Failure to comply with the order is fatal to this application.
[6]
Section 4 of the Act criminalises the
act of anyone who has been declared a vexatious litigant and
institutes proceedings without
leave of the court. A person who
contravenes this section may be convicted of contempt of court and
may be
sentence
to
both a
fine and imprisonment not exceeding six
months. It is important that the applicant be made aware of this
provisions lest he persists
with applications
of this nature notwithstanding the order
in the Western Cape.
[7]
Over and above the failure to obtain
permission to institute these proceedings, this court lacks
jurisdiction to adjudicate an appeal
or rescission of a judgment
which emanate from the order handed down in
the Western Cape. Division of the High
Court. It is a court of equal standing with this Court. The First
Applicant does not enjoy
automatic right to appeal the order granted
against him. Even if this application was brought in terms of Uniform
Rule 42 as indicated
in the papers before me, this court would still
lack jurisdiction. I have read the papers and the heading indicates
that this application
was issued as an Appeal number 3373/2022 in
this court. The pleadings on the other hand suggest that it is the
rescission brought
in terms of Uniform Rule 42 as I indicated above.
In submissions before me the First Applicant contended that it was an
interdict
brought on an ex parte basis. No case was made to bring
this application on an ex parte basis. Any way one looks at it, will
not
clothe this court with jurisdiction.
[8]
Section
34
of
the
Constitution provides as follows:
"Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court,
or where appropriate another independent and impartial tribunal or
forum."
[9]
While
section 34 guarantees the right of the applicants' access to courts,
it has to be borne in mind that, on the other hand, section
173 of
the Constitution also provides that this court has the inherent power
to protect and regulate its process. The court in
the Western Cape
was
alive
to
the
rights
of
the
First
Applicant
to
have
access
to the courts. The court did not close the door for him to have
access
to
the courts but was clear in its intention to curb the abuse of the
court processes. It is apposite to refer to
Beinash
v Wixley
[1]
where
the court said the following:
"There
can be no doubt that every court is entitled to protect itself and
others against an abuse of its process.
[10]
The way the application(s) has(have)
been drawn clearly shows wanton disregard of the processes of the
court and appears to be an
abuse of the processes of the court. The
First Applicant seeks various orders, eighteen in number. The orders
sought bear no sense
and are not supported by any shred of evidence.
Upon reading the founding affidavit one is left wondering what the
case is all
about. The voluminous affidavits do not speak to the
relief sought. It is this kind of the application the court in the
Western
Cape intended to curb. Clearly The First Applicant has no
regard to the court processes. He has not sought permission of the
court
to institute these proceedings. He has not satisfied this court
that he has paid the cost orders in three case numbers as ordered.
He
has not provided security for costs in these proceedings as ordered.
The bottom line is that the First Applicant has no locus
standi to
bring this application.
[11]
The remaining applicants are in the same
boat with the First Applicant. They were not parties in the Western
Cape. They were not
properly joined in these proceedings. Their
applications also have no merits whatsoever and cannot succeed.
[12]
It
is
unfortunate that the
parties would choose to
haul the
parties to court without even knowing
what their causes of action is. During submissions it became clear
that what the Second Respondent
actually
want
was
for the
President
to appear
before
court to
enable him (the Second Applicant) to
cross examine him about alleged utterances attributed to the
President regarding farm killings.
It seems that he
only wanted to show that the alleged
utterances were not
true.
Once
that
interrogation has
taken
place, there
is
indication of
what he
hopes to achieve with it or what its
intended goal is. This cannot be allowed. The Third Applicant only
wanted the Court to allow
the First Applicant access to his children.
All these necessitated the opposition of the proceedings. I can find
no reason not
order punitive costs against all three Applicants. I
order as follows
ORDER
1.
The
applications are
dismissed;
2.
The
applicants
are
ordered, jointly
and
severally, the
one
to
pay and the others to be absolved, to pay the costs of the second
responded.
P.E
MOLITSOANE, J
On
Behalf
of
the
Applicants:
All 3 in person
Instructed
by:
On
Behalf
of
the
Second
Respondent:
Adv.
Ngubeni
Instructed
by:
The
State Attorney
Bloemfontein
[1]
1997(3} SA 721 {SCA) at 773 D