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[2021] ZAGPJHC 610
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Omar v Amod (7087/2020) [2021] ZAGPJHC 610 (6 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
7087/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
06
SEPTEMBER 2021
In
the matter between:
Omar,
Humaira
Adam
Applicant
Versus
Amod,
Faizaan Ahmed
Mahomed
Respondent
JUDGMENT
MATOJANE
J
[1]
The applicant, Ms Hamaria Amod, brings this
application seeking a declaration that the respondent, her former
husband, is a vexatious
litigant
[2]
The respondent and the applicant were married on 23 March 2013, in
terms of Islamic
laws. The marriage was dissolved by the Jamiatul
Ulama South Africa (Council of MuslimTheologians) on 21 November
2017. One minor
child was born from the marriage.
[3]
I digress to observe that there are many allegations and
counter-allegations advanced
by the parties, some of which, in my
opinion, have no cogency, so without deciding them, I will refer to
some of them briefly:
[4]
In paragraph 20 of the founding affidavit, the applicant sets out a
chronological
list of applications the respondent has launched
against her to date.
“
20.1 January 2016,
the respondent set the law into motion by having my father, Mr. Adam
Omar, arrested in Randburg for alleged damage
to property, which he
later withdrew with no explanation;
20.2 During June 2017 and
at Randburg Police Station, the respondent laid criminal charges
against me, my father and mother, Mrs
Halima Omar ("Halima")
incidental to alleged
crimen injuria
and intimidation. When we
attended the police station in order to file our affidavits, the
charge was for the lack of a better
word "gone".
20.3 A criminal
charge was laid against me for contravention of a court order in
April 2017. On the Sunday he had to pick
up our minor child in terms
of the court order. He came to my parents' house with police
officials. They ordered me to go to the
police station, which I did.
There, I was put in the cells for 10 minutes. An officer by the name
of
ZWANE
then told me I must mediate the issues with the
respondent and I was released without being given any documentation.
20.4 In May 2017 he laid
a charge of contravention of a protection order, the case was not
enrolled and
nolle prosequid
in Randburg court.
20.5 Interim protection
order granted against my sister, Miss. Maaza Omar out of Carolina
Magistrate's Court under application number
92/2018 on 13 July 2018.
The interim order was confirmed in her absence;
20.6 Interim protection
order granted against the respondent out of Vereeniging Magistrate's
Court under application number 865/2017.
The interim order was
confirmed;
20.7 Investigation in
terms of
section 155(2)
of the
Children's Act 38 of 2005
out of
Vereeniging Magistrate's Court under file number: 14/1/4/2 –
62/16. This matter was referred to the office of the
Family Advocate
who compiled a report. Primary care was awarded to me;
20.8 Interim Protection
order granted against me out of Randburg Magistrate's Court under
application number 373/2017. The interim
order was confirmed together
with a cost order. I confirm that I was represented during the
proceedings, but due to circumstances
beyond my control, I had to
appoint a new legal representative who was not allowed a postponement
to appraise himself with the
status of the matter;
20.9 Interim protection
order granted against my mother, Hamila out of Randburg Magistrate's
Court under application number 770/2017.
The interim order was
confirmed together with a cost order;
20.10 A
section 29
notice
against my sister, in terms of the Small Claims Court Act out of the
Carolina Small Claims Court incidental to taxed legal
fees;
20.11 During July 2018 he
laid criminal charges against my sister for alleged assault of the
minor child. The matter was referred
to the Vereeniging Magistrate's
Court where I was ordered to attend the Child Welfare Office to see a
court-appointed social worker.
The social worker submitted a report
and the prosecution issued a
nolle prosequid
certificate; and
20.12 During 12 April
2019 the respondent launched a Review Application to this Honourable
Court incidental to an order obtained
against him in the maintenance
court. The parties settled the dispute (maintenance and all High
Court applications) in terms of
which the respondent pays an amount
of R1850.00 for maintenance and the respondent will not proceed with
his High Court applications.
20.13 I was lastly
informed that he indeed removed the Rule 43 application from the
court roll, but that he obtained a cost order
against me, contrary to
our settlement arrangement.”
[5]
On the other hand, the respondent alleges that he applied for
protection orders when
the applicant and her family intimidated him
when he came to collect the minor child from the applicant. He states
further that
he applied for a protection order from harassment by the
applicant's mother and laid criminal charges against the applicant's
father
for malicious property damage when he entered his premises. He
alleges that he has received anonymous calls threatening to kill
him
if he goes to court for a protection order against the applicant's
mother. He also asserts that the applicant's uncle has threatened
him, saying that he must "watch his steps" and that
something untoward will be done to his legs.
[6]
He maintains that he brought the applications on good cause, and the
applicant has
not sought to review or appeal any of the court orders
he obtained against her or her family.
Analysis
[7]
Section 2(1)(b) of the Vexatious Proceedings Act ("the Act")
seeks to provide
relief to an applicant who is subjected to
harassment and resultant costs arising from persistent unmeritorious
litigation. The
section reads:
"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 other 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 that 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."
[8]
In
Fisheries
Development
Corp v Jorgensen
[1]
it
was held that:
"In
its legal sense, vexatious means frivolous, improper: instituted
without sufficient ground, to serve solely as an annoyance
to the
defendant. Vexatious proceedings would also no doubt include
proceedings which, although properly instituted, are continued
with
the sole purpose of causing annoyance to the defendant, abuse
connotes a misuse, an improper use, a use mala fide, and a use
for an
ulterior motive…"
[9]
It bears mentioning that the right of access to courts is protected
under s34 of the
Constitution
[2]
.
In
Beinash
and Another v Ernst and Young and Others
,
the court considered the constitutionality of s2(1)(b) of the Act.
The court confirmed that:
"the
provision does limit a person's right of access to court. However,
such limitation is reasonable and justifiable. While
the right of
access to court is important, other equally important purposes
justify the limitation created by the Act. These purposes
include the
effective functioning of the courts, the administration of justice,
and the interests of innocent parties subjected
to vexatious
litigation. Such purposes are served by ensuring that the courts are
neither swamped by matters without any merit,
nor abused to victimise
other members of society".
[10]
In order to succeed, the applicant is required to show that she has a
bona fide claim and that
her claim is meritorious
[3]
.
In determining whether the claim is meritorious, the court must, in
my view, look at the whole history of the matter and ask whether
a
reasonable person can reasonably expect to obtain relief under the
circumstances.
[11]
The evidence in this application confirms that the respondent has
resorted to abusing the legal
process to harass, oppress and
embarrass the applicant and her family
[4]
.
[12]
The respondent brings all these applications at no costs to himself
as he represents himself
when he files these applications as such he
is not burdened by the costly litigation expenses. He does not have
to pay attorneys
and the services are for free. The applicant, on the
other must address these claims and spend limited resources defending
herself
and staying away from work to attend the various courts.
[13]
During all these proceedings, the applicant, a candidate attorney,
was an unemployed UNISA student
residing with her parents in
Vereeniging. Despite this knowledge and to make it as difficult as
possible for the applicant to attend
every application and oppose
them, the respondent issued some of the applications in Randburg,
Johannesburg and Carolina magisterial
districts. This has had the
desired effect as adverse orders have been made against the applicant
and her sister, who could not
attend various courts in different
jurisdictions for lack of financial means.
[14]
The applicant explains that she is a small woman that could never
defend herself against physical
attacks directed at her by the
respondent during their short marriage. It is difficult to understand
how the applicant could have
intimidated the respondent to an extend
that he had to have her arrested on two occasions for an alleged
breach of the protection
order. The conclusion is inescapable that
laying criminal charges against the applicant's mother and father and
later withdrawing
those charges confirms the applicant's allegation
that the respondent has embarked on a campaign of vilification and
abuse against
her.
[15]
Vexatious actions include those brought for an improper purpose,
including harassment and oppression
of another person by multifarious
proceedings brought for purposes other than the assertion of
legitimate rights.
[16]
The applicant asserts that the only reason the respondent is
constantly approaching the various
courts for "relief" is
that he is attempting to force her into signing a settlement
agreement wherein she agrees to primary
care of their minor child be
awarded to him. There is merit in this contention. Presently there is
a pending Children's court hearing
where the respondent is seeking
full primary care of the minor child.
[17]
The Family advocate has already compiled a report wherein she
recommended that the applicant
remain a primary caregiver of the
minor child, and provision has been made for visitation rights for
the respondent. The conduct
of the respondent indicates that these
various applications are brought for an improper purpose, namely, to
obtain full primary
care of the minor child and, in the process, to
ruin the applicant financially and psychologically.
[18]
There is every indication that the respondent is likely to persist
with this strategy on an indefinite
basis until he is stopped. It is
time for this to come to an end, as
this
also places a disproportionate burden on the limited resources of the
courts and judicial system.
[19]
I consider that the applicant has been put to unnecessary trouble of
having to bring this application
to bring to an end to the financial
and emotional burden the respondent has visited on her by the various
applications he launched
against her. She ought not to be put out of
pocket for seeking respite from this court. A punitive costs order is
appropriate in
the circumstances of this case.
Order
An
order shall issue as follows:
1.
It is declared that Amod, Faizan Ahmed Mahomed;
a.
may not institute any legal proceedings against the applicant or her
immediate family members
in any court or any inferior court without
the leave of this court.
b.
is ordered to pay the costs on an attorney and client scale.
K
E MATOJANE
JUDGE
OF THE HIGH COURT,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for Applicant:
Advocate WJ Prinsloo
Attorney
for Applicant:
BMH
Attorneys
Counsel
for Respondent:
Advocate L Msomi
Attorney
for Respondent: Dankuru
Attorneys
Date of
Hearing:
02 August 2021
Date of
Judgment:
06 September 2021
[1]
1979
(3) SA 1331
(W) at 1339E-F
[2]
No
108 of 1996
[3]
Beinash
and Another v Ernst & Young and Others (CCT12/98)
[1998] ZACC
19
;
1999 (2) SA 116
(CC);
1999 (2) BCLR 125
(CC) (2 December 1998)
at para 13