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[2016] ZAGPPHC 607
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Engelbrecht v Khumalo, In re: Tarloy Properties (Pty) Ltd v Engelbrecht (2013/73273) [2016] ZAGPPHC 607; 2016 (4) SA 564 (GP) (18 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2013/73273
18/3/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
ENGELBRECHT:
PETRUS HENDRIK
STEPHANUS Applicant
And
KHUMALO,
NOMSA
VICTORIA Respondent
In
re
TARLOY
PROPERTIES (PTY)
LTD Applicant
And
PETRUS
HENDRIK STEPHANUS
ENGELBRECHT Respondent
JUDGMENT
MLAMBO
JP
[1]
The applicant (Engelbrecht) seeks my consent to issue a notice in
terms of Rule 13(1)(a)
[1]
of the
Uniform Rules of Court against the respondent, a Judge of this
Division. The consent is sought in terms of Section 47 (1)
of the
Superior Courts Act
[2]
. The
Section provides -
"Notwithstanding
any other law, no civil proceedings by way of summons or notice of
motion may be instituted against any judge
of a Superior Court, and
no subpoena in respect of civil proceedings may be served on any
judge of a Superior Court, except with
the consent of the head of
that court or, in the case of a head of court or the Chief Justice,
with the consent of the Chief Justice
or the President of the Supreme
Court of Appeal, as the case may be.
"
[2]
The language of the section is clear that no civil legal process can
be issued against a Judge unless this has been permitted
by the Head
of the Court in which the Judge serves. Section 47(1) applies to
civil proceedings by way of summons or notice of motion
intended to
be instituted against a Judge in the Judge's personal and/or judicial
capacities.
[3]
As the Head of
Court in question it is incumbent on me to consider the application
and make the appropriate ruling.
[3]
Section 47(1) is the mechanism through which the institution of legal
proceedings against Judges is regulated and plays what
I regard as a
gate keeping role. In essence the section seeks to insulate Judges
from unwarranted and ill-conceived legal proceedings
aimed at them.
The need to protect Judges from unwanted litigation is not difficult
to fathom. The core function of Judges is the
adjudication of
disputes involving competing interests daily. The judgements they
hand down as well as the statements they make
in court and in their
judgements invariably displease some litigants and sometimes their
legal representatives.
[4]
It is integral to the adjudication function of Judges that they
should be free from any fear of repercussions for doing their
work.
It is necessary therefore that Judges be protected from the ever
present threat of legal proceedings directed at them arising
from the
execution of their official responsibilities. This is necessary to
ensure that they adjudicate disputes unhindered and
that they do so
"without fear, favour or prejudice"
[4]
.
This was aptly stated by Ngoepe JP in
Soller
v President of the Republic of South Africa
[5]
as
follows -
"The oath which
Judges take upon assumption of office requires of them to adjudicate
matters fearlessly. This they can only
do if protected against non
meritorious actions. Judges should not, in the execution of their
judicial functions, be inhibited
by fear of being dragged to Court
unnecessarily over their judgments. Such a threat could have a
chilling effect on the execution
of their duties. Furthermore, Judges
should rather spend time hearing matters than defending themselves
against endless unfounded
civil claims. The very nature of the duty
of a Judge is such that it would open them to such litigation: a
Judge's task is to resolve
disputes, inevitably leaving one person or
the other dissatisfied; moreover they are, in the process, required
to make findings
on the credibility, honesty and integrity of
witnesses and litigants and to justify those findings'
[6]
.
[5]
I should further point out that section 47 (1) is not only concerned
with legal proceedings targeting what Judges do in their
judicial
capacities. The provision has been interpreted expansively to also
cover actions arising from their personal interactions.
Also covered
is litigation arising from incidents that occurred before their
elevation to judicial office. See
N
v Lukoto
[7]
in this
regard, where Ngoepe JP discussed the procedure to be followed when a
request for consent was lodged. In essence the person
seeking consent
writes to the Head of the court concerned. On receipt of the request
the Head of Court discusses the matter with
the Judge concerned and
may thereafter either grant the consent requested or direct that a
formal process be followed involving
the filing and service of an
application accompanied by the necessary affidavits. The Head of
Court will then hear argument and
thereafter dispose of the matter as
he deems fit.
[8]
[6]
I followed a similar approach in this matter. I considered the
correspondence from Engelbrecht and from the Judge and advised
Engelbrecht's attorneys that I was disinclined to grant consent based
on the correspondence at my disposal. I advised that should
Engelbrecht be so inclined he was at liberty to pursue the matter
formally through a court process where both parties would be
afforded
the opportunity to file affidavits and advance submissions. I
indicated that I would thereafter consider the matter and
dispose of
it as I saw fit. Engelbrecht served and filed the necessary
application accompanied by an affidavit but the Judge elected
not to
file opposing papers. She was however represented at the hearing by
an attorney who advanced oral submissions in addition
to the written
argument filed.
[7]
I stated earlier that section 47(1) plays a gate keeping function and
as such does not provide a complete bar against the institution
of
legal proceedings against Judges, hence the requirement of consent.
The approach of the courts is to determine whether good
cause has
been shown in the application or request to institute the intended
legal proceedings against the Judge concerned. The
cases I have
considered dealing with good cause are clear that the good cause test
is not all-embracing but is case specific
[9]
.
This entails a balanced and common sense appraisal of the individual
facts and circumstances of the matter
[10]
.
[8]
In
Torwood
Properties (Pty) l td vs SA Reserve Bank
[11]
it was
stated:
"The
overriding consideration is that the matter rests in the judicial
discretion of the court,
which
discretion is to be exercised having regard to all the circumstances
of the case."
In
Soller
(supra)
at
para 9 Ngoepe JP noted that the existence of good cause depended on
the facts and circumstances of each case. See also
Executive
Officer of the Financial Services Board v Dynamic Wealth ltd and
Others
[12]
where
the SCA stated:
"
Ultimately, what will constitute good cause in any particular case
will depend upon the facts of that case."
[13]
The
test is no different regarding matters where consent is sought, as is
the case in this matter, to institute legal proceedings
against a
Judge. In this context a court would consider whether on the facts
before it an arguable case calling for an answer,
by the Judge, is
made out and whether it is fair
[14]
,
just and equitable
[15]
between
the parties to grant or refuse consent. Simply put the issue is
whether the proceedings, for which consent to litigate
against a
Judge is sought, contains a justiciable issue.
[9]
I now turn to the facts of the case before me. I indicated earlier
that Engelbrecht seeks consent to issue a third party notice
in terms
of Rule 13 (1) (a) against the Judge. The third party notice relates
to certain proceedings (the Main Application) in
which he is sued by
Tarloy Properties (Pty) Ltd, for an amount of R9, 673, 758, 91. The
claim arises from a lease agreement concluded
in 2008 by Engelbrecht,
the Judge (before her elevation to judicial office) and one other
being co-directors of a company as lessees,
on the one hand and
Tarloy Properties, as the lessor, on the other. Some two years i.e.
in 2010, Engelbrecht concluded a sale of
shares agreement with the
Judge and the other director in terms of which he resigned as
director of the company and sold his entire
shareholding in the
company. The Judge bought a major portion of these shares. All ties
Engelbrecht had with the company were severed
upon the signing of
this sale of shares agreement and he thereafter had no further
interest nor any dealings with the company.
At that time the company
was in occupation of the leased premises and was complying with the
terms of the lease agreement in terms
of rentals and other necessary
charges.
[10]
The following year, i.e. after Engelbrecht's departure from the
company and specifically from 1 February to 30 November 2011
Tarloy
alleges that no rental payments were made by the company in terms of
the lease agreement. It also appears common cause that
around July
2011 the company vacated the leased premises. Thereafter Tarloy
instituted proceedings against Engelbrecht for payment
of the amount
mentioned in para 9 above. This claim is for the unpaid rentals as
well as for other charges in terms of the lease.
For its claim,
Tarloy relies on a suretyship agreement concluded pursuant to and
contained in the lease agreement, signed by Engelbrecht.
In the
suretyship agreement Engelbrecht bound himself jointly and severally
in solidum,
as surety and co-principal debtor, for the due and
punctual payment and performance by the company of all debts and
other obligations
due and owing to Tarloy Properties arising from the
lease agreement.
[11]
Engelbrecht does not deny signing the suretyship but asserts that he
was indemnified by the Judge and the other director as
the remaining
directors of the company, in the sale of shares agreement against
such claims. In this regard it is common cause
that the sale of
shares agreement contains an indemnity clause to the effect that:
"
The purchasers
[the Judge and other director]
indemnify the
seller
[Engelbrecht]
against any claims arising from
whatsoever cause in respect of any obligations of the company
incurred after the effective date
and arising from contracts
concluded or actions taken by the remaining directors of the company
after the effective date."
The effective date is 31 August
2010.
[12]
Engelbrecht submits that it is only fair and just that the Judge
should also be part of the litigation he is facing. He submits
that
the default in fulfilling the obligations of the company arising from
the lease agreement took place subsequent to his resignation
as a
director and after divesting himself of his entire shareholding in
the company. He further submits that on the basis of the
indemnity
clause signed by the remaining directors of the company, he should
not be facing the litigation alone. In fact he makes
the forthright
submission that when he concluded the sale of shares agreement and
specifically the indemnity clause, he intended
thereby to be
indemnified against all claims brought against the company and which
arose subsequent to his departure from the company.
[13]
The factual matrix I have recounted above is sufficient in my view to
come to a decision regarding the application
in casu.
I don't
find it necessary to traverse all the facts in greater detail than I
have done. It appears to me that the equities cry out
for a proper
ventilation of all the facts surrounding the suretyship agreement,
the alleged breach of the lease agreement as well
as the impact of
the indemnity contained in the sale of shares agreement. That is not
my task. Mine is to determine if Engelbrecht
has established that
there is a justiciable issue calling for an answer from the Judge in
the intended joinder proceedings. In
other words has he demonstrated
the requisite good cause necessary for me to issue the consent he
seeks?
[14]
The argument advanced on behalf of the Judge, opposing the granting
of consent, is that Engelbrecht has jumped the gun by seeking
to join
the Judge at this stage. The argument is that as surety he should
exercise his options in defending the current suit and
can then
consider involving the Judge if he either pays or loses in court. It
was argued that there is, at this stage, simply no
lis
between
Engelbrecht and the Judge. I don't agree.
[14]
It appears to me that it would be fair, just and equitable that
consent be granted. Clearly Engelbrecht has made out an arguable
case
requiring an answer from the Judge about her own liability in the
main application. The application is not vexatious as it
is based on
facts on which a justiciable claim is set out. Good cause has in my
view been demonstrated justifying the granting
of consent.
[14]
I'm fortified in my view by the remarks made in
Beinash
andAnother v Emst and Young and Others
[16]
,
where Justice Mokgoro writing for a unanimous court, emphasised that
the right of access to courts is of importance in ensuring
the
adjudication of justiciable disputes. She further made the point that
access to courts was to be protected for
bona
fide
litigants.
In my view, Engelbrecht has raised a justiciable issue and a court
will have to apply its mind seriously to the issue
whether the Judge
should be joined in the main application.
[15]
By granting consent, as I'm inclined to do, does not mean that the
Judge is joined in the main application. The application
before me is
a precursor to the proceedings to be instituted in accordance with
the provisions of Rule 13(1) (a). The Judge will
have the opportunity
to oppose the joinder application and make appropriate submissions in
that regard. It is the court hearing
the joinder application that
will traverse all the facts and the law in greater detail and come
with a ruling whether Engelbrecht
should face the claim on his own
and/or with the Judge.
Order
1. In the circumstances
the following order is issued:
1.
The applicant is hereby granted leave in terms of
section 47(1)
of
the
Superior Courts Act 10 of 2013
to issue legal process against the
respondent relating to the main application in this matter under case
number 2013/73273.
2.
There is no order as to costs
___________________________
D
MLAMBO
JUDGE
PRESIDENT
GAUTENG
DIVISION OF THE HIGH COURT
OF
SOUTH AFRICA
Attorney
for Applicant
: Ben McDonald Attorneys
Attorney
for Respondent
: Norman Berger
Attorneys
Attorney
for Applicant in the Main Application: Schindlers Attorneys
Date
of application
: 2 DECEMBER 2015
Date
of judgment
: 18 MARCH 2016
[1]
Rule 13
(1) (a) reads:
(1)
Where a party in any action claims -
(a) as against any other
person not a party to the action (in this rule called a 'third
party') that such party is entitled, in
respect of any relief
claimed against him, to a contribution or indemnification from such
third party, or
(b) ....
such
party may issue a notice, hereinafter referred to as a third party
notice, as near as may be in accordance with Form 7 of
the First
Schedule, which notice shall be served by the sheriff.
[2]
Act 10 of 2013.
[3]
S47 (1) has replaced s25 (1) of the Supreme Court Act 59 of 1959 as
well as
s5
of the
Constitutional Court Complementary Act 13 of 1995
which were repealed by the
Superior Courts Act in
which
s47
(1) is
found.
[4]
S165 (2) of the Constitution of the Republic of South Africa, 1996.
[5]
2005 (3) SA 567 (T).
[6]
At para [14].
[7]
2007 (3) SA 569
(T). In that case, the applicant sought leave in
terms of s25 (1) to sue the respondent, a judge of the Venda High
Court, for
the maintenance of a 14 year-old boy, whose paternity the
Judge was disputing. The dispute had arisen prior to the appointment
of the Judge to the bench.
[8]
In para [4].
[9]
In
Loubser
v Loubser
[1958] 4 All SA 355
(C) the court noted the undesirability and
difficulty of formulating an all-embracing judicial definition of
good cause [pg 358].
[10]
Soller
( supra) at para [9].
[11]
1996 (1) SA 215
(W) at 228B.
[12]
[2012] 1 All SA 135
SCA.
[13]
At 139 para [4].
[14]
Torwood
(supra) at 228.
[15]
In
Dumah
v Klerksdorp Town Council
[1951] 4 All SA 365
(T) the court was requested to decide what
constituted "good cause·for a stay of execution. In the
Judge's opinion,
good cause was any fact or circumstance that would
make it just or equitable as between the parties that execution
should be
stayed at 368.
[16]
1999 (2) SA 116
CC