About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1197
|
|
Nedbank Limited v Chiura and Another (74492/2016) [2016] ZAGPPHC 1197 (3 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 3 November 2016
Case
number: 74492/2016
REPORTABLE:
Yes
OF
INTEREST TO OTHER JUDGES: Yes
REVISED
17/11/2016
In
the matter between:
NEDBANK
LIMITED
Applicant
and
SHEPARD
TENDAYI
CHIURA
First Respondent
ESTER
CHIURA
Second Respondent
JUDGMENT
BRENNER
AJ
1.
This application involves a claim to declare the first and second
respondents, Messrs Shepard and Estaer Chiura ("the Chiuras'),
vexatious litigants in terms of the Vexatious Proceedings Act, 3 of
1956, ("the Vexatious Proceedings Act"), and ancillary
relief. The ancillary relief includes an order that the Chiuras do
not have locus standi in the existing litigation, and that they
are
in contempt of an order of Court granted by Mr Justice Vorster J on
14 October 2014.
2.
As pertinently summarised by Counsel for the applicant, Nedbank
Limited ("Nedbank"), the crisp issues are whether:
i. Nedbank has made out a
case for relief under the Vexatious Proceedings Act;
ii.
The Chiuras have locus standi in certain interrelated litigation,
dealt with below;
iii.
The Chiuras are in contempt of the order of the Honourable Mr Justice
Vorster AJ;
iv.
Nedbank is entitled to interdictory relief against the Chiuras in the
interrelated litigation.
3.
It is contended by Nedbank, as summarised at paragraph 5 of the heads
of argument of Advocate KW Luderitz SC:
"The Chiuras have
launched
a
torrent of litigation against Nedbank without any
consideration for its rights, the rights of its attorneys, the judges
of his division,
the rules of court, the procedures, practice
directives, applicable legal principles and the numerous warnings
that have been given
to the Chiuras to obtain legal representation.'
4.
The disputes amongst the relevant parties find their provenance in
litigation which commenced almost nine years ago, in 2007.
I will
summarise the litany of events which culminated in this application,
and several other cases. These form the subject-matter
of two further
matters heard simultaneously with this application on 2
November 2016, for which judgment which will be given
contemporaneously with this judgment.
5.
To obviate prolixity and needless repetition, certain facts mentioned
in this judgment will not be repeated in the other interrelated
matters under case numbers
7580/2007, 1730/2013, 20740/2013
and
96723/2015
.
6.
When the matters were argued before me, all parties concurred that it
was convenient for me to hear argument on all matters under
the above
case numbers, in unison with this application under case number
74492/2016.
This judgment should accordingly be read
conjunctively with my judgments in all of the other, interrelated
cases.
7.
In the main, the facts adumbrated below are proven, unchallenged
facts, (corroborated in large part by supporting documents),
the
veracity of which are either uncontested by the Chiuras, or are not
the subject-matter of genuine, bona fide dispute.
8.
I interpose to mention that the detail provided in the founding
affidavit in this application was of great use to me in providing
a
salient chronology of the sequence of events over the past nine
years. In the main, the substance of the founding affidavit in
casu
remained undisputed by the Chiuras in their seven page answering
affidavit. I will traverse this in greater detail below.
9.
On 17 October 2005, the Chiuras, who appear to have been married out
of community of property, acquired certain immovable property
situate
at erf 2106 Dainfern Extension 19 Township, Gauteng ("the
property"). The full purchase price of R2 350 000,00
was
financed by Nedbank. In 2005, the property was registered in their
names simultaneously with the mortgage bond in favour of
Nedbank.
10.
After the Chiuras had defaulted on the payment of the requisite
instalments on the bond, Summons was issued under case number
7580/2007
.
Default judgment was granted on 29
March 2007 for payment of R2 401 460,05 plus mora interest and costs.
Additionally, the property
was declared specially executable ("the
Nedbank judgment"). The property was sold in execution to Shlomo
and Miriam Mishan
("the Mishans") at a public sale in
execution on 28 July 2009, for a price of R1 450 000,00. The property
was registered
in their names on 28 September 2009.
11.
According to the Chiuras, they first learnt of the default judgment
when they received the notice of sale in execution circa
July 2009.
They vacated the property in November 2009.
12.
On 6 May 2009, the Mishans sold the property to a company cited as
Joyspring Trade & Investment 11 (Pty) Ltd ("Joyspring")
for a price of R3 325 000,00, and registration of transfer occurred
in 2010. It should be observed that the property was sold for
R975
000,00 more than the price paid by the Chiuras in 2005.
13.
It should be noted, however, that the sale took place four years
afterwards, and the Mishans contended that they had effected
substantial improvements to the property before the sale to
Joyspring. I have also taken judicial notice of the known fact that
prices obtained in forced sales are frequently lower than their
market value. It is also not extraordinary for a property to be
sold
for a price which is lower than the bond.
14.
Joyspring acquired the property with finance from Absa Bank Limited
("Absa"), and a bond in Absa's favour was registered
with
the transfer in 2010.
15.
On 20 July 2011, four years after the Nedbank judgment (which
occurred on 29 March 2007), the Chiuras launched a rescission
application to set aside the judgment, and the ensuing sale in
execution on 28 July 2009, this under case number
1730/2013
("the rescission application"). On 1 October 2012,
they withdrew the rescission application. It appears that this case
number has continued to be perpetuated in subsequent litigation.
Nothing turns on this, as its aim was identical in terms to what
is
sought in the rescission applications dealt with under case numbers
7580/2007,
and
20740/2013.
16.
But thereafter, it was reinstated and heard before the Honourable Mr
Justice Tuchten, J under case number
7580/2007
("the
Tuchten order"). Tuchten J held the view that the advertisement
of the property prior to the sale in execution to
the Mishans did not
adequately describe the property. In terms of the Tuchten order,
dated 24 January 2013:
i. The sale in execution
to the Mishans was set aside;
ii.
The transfers of the property to the Mishans and Joyspring were set
aside and declared as invalid;
iii.
The Registrar of Deeds was directed to cancel the above transfers and
all mortgage bonds accompanying such transfers, and to
reinstate the
transfer to the Chiuras with the Nedbank bond;
iv.
The Nedbank judgment remained intact, there being no merit in the
claim for the rescission of the default judgment against the
Chiuras,
finding that the papers to substantiate the rescission of the
judgment were "substantially false".
17.
Erroneously, Absa was not joined as a party to the rescission
application before Tuchten J. It is trite that Absa's interests
were
deleteriously affected by the Tuchten order.
18.
Accordingly, on 9 April 2013, under case number
20740/2013,
Absa launched an application to set aside Tuchten's order,
presumably under rule 42(1)(1) of the Uniform Rules of Court.
19.
The application was heard before the Honourable Mr Justice van der
Byl AJ on 20 April 2013. On 2 May 2013, van der Byl AJ set
aside
Tuchten's order ("the Van der Byl order").
20.
On 2 July 2013, the Chiura's brought an urgent application to rescind
the Van der Byl order, and to implement the Tuchten order.
The
application was enrolled for 9 July 2013. Ms Amelia Costa ("Costa")
of Absa and Mr Allan Lowndes ("Lowndes")
of Nedbank's
attorneys warned the Chiuras, via correspondence, in advance, that
their application was legally unsustainable.
21.
On 9 July 2013, the Honourable Ms Justice Tlhapi J struck the
application from the roll for want of urgency, with costs against
the
Chiuras. ("the Tlhapi order").
22.
On 25 July 2013, the Chiuras brought another urgent application
enrolled for 30 July 2013, to which they had supplemented certain
papers which, in their view, rendered the matter urgent. They
attached accounts and written demands from the City of Johannesburg
and correspondence which they had addressed to senior directors and
executives of Absa.
23.
When the application came before the Honourable Ms Justice Mphahlele
J, she was unconvinced by the supplementary papers and
proceeded to
dismiss the application, with costs against the Chiuras on the
attorney and client scale ("the Mphahlele order").
24.
Mphahlele J warned the Chiura's, at page 18 line 17, to
"never
again abuse the
process
of this court."
At page 17
line 4 of the transcript of proceedings, Mphahlele commented:
"People who come
to this court and abuse the
process,
we award punitive
costs
against them because we discourage people from approaching this
court because this court we operate under pressure, we get papers
and
we have to read and address everyone and if we find amongst those
files that there
is a
person who
is
abusing the
process
we award punitive
costs.
You did not have
a
reason
to run to this court."
25.
The costs for the above two applications were taxed by Nedbank and
warrants of execution were issued but the costs were not
recovered,
nor was payment tendered. Nor, indeed, had the Chiuras tendered to
pay the amount owing to Nedbank under the original
bond. The Chiuras
have never produced any documents to prove any payment on the bond
since the default judgment was granted on
29 March 2007.
26.
On 12 September 2013, the Chiuras launched another application, under
case number
20740/2013,
in which they sought to
"appeal" the judgment of Van der Byl and to reinstate the
Tuchten order. The application was brought
in the ordinary course
according to the notice of motion. In wanton disregard of the rules
of Court, however, the Chiuras prematurely
enrolled the application
for hearing on 14 October 2013, which coincided with the first court
day after the final date for service
of the answering affidavits.
Nedbank had, in the interim, served a notice to oppose and answering
affidavits. Lowndes again communicated
with Mr Chiura to propose that
the application should be removed from the roll, as the replying
affidavits had not been served
and the matter was not ripe for
hearing. To no avail.
27.
Later in September 2013, the Chiuras served a "supplementary
claim for damages" in this application.
28.
On 14 October 2013, the application was heard before the Honourable
Mr Justice Vorster AJ who ordered that the matter should
be struck
from the roll, with costs against the Chiuras on the attorney and
client scale. A further order was granted to prohibit
the Chiuras
from enrolling the matter again before all costs, including those of
14 October 2013, had been paid by them. By this
stage, there were
three costs orders against them ("the Vorster order").
29.
The relief which the Chiuras' sought before Messrs Justices Tlhapi,
Mphahlele and Vorster was substantially the same, namely,
to set
aside the van der Byl order and reinstate the Tuchten order.
30.
On 5 May 2014, undeterred, the Chiuras applied for leave to appeal
against the orders of van der Byl, Tlhapi, Mphahlele and
Vorster. It
is common cause that, by this time, the periods for applying for
leave to appeal, with condonation, against the van
der Byl order, the
Mphahlele order, and the Vorster order, had expired. Further advance
warnings were sent to them by Costs on
behalf of Absa, Nedbank,
Joyspring, and several attorneys, to inform them that their actions
were irregular and vexatious. The
warning was unheeded.
31.
On 26 June 2014, yet another application for leave to appeal, with
condonation, was served, this against the Vorster order.
32.
On 7 July 2014, a third application for leave to appeal, with
condonation, was served, to apply for leave to appeal the Van
der
Byl, Tlhapi, Mphahlele and Vorster orders.
33.
On 11 November 2014, the Honourable Mr Justice Kollapen J heard
further applications, including the application by the Chiuras,
an
application by Nedbank for security for costs in respect of the three
applications for leave to appeal on 5 May 2014, 6 June
2014 and 7
July 2014.
34.
Nedbank also sought an order setting aside the three applications for
leave to appeal as irregular in terms of rule 30(1) and
30(A), or an
order for security for the costs in respect of the Chiura's three
applications for leave. This time around, the Chiuras
cited twelve
respondents, namely: Absa, Nedbank, Shlomo Mishan, Miriam Mishan, the
Sheriff of Halfway House, the Registrar of deeds,
Pretoria,
Joyspring, Richard Ngwenya and partners, Webber Wentzel Attorneys,
Dainfern Valley Homeowners Association, the City of
Johannesburg and
Eskom. Three case numbers were allocated to the overall matter,
namely:
7580/2007, 1730/2013
and
20740/2013.
35.
On 29 November 2014, the property was sold to Chimedza Zvikomborero
and Mudzinganyama Chamurwa for R4,5 million. The transfer
was
registered much later, on 20 May 2016. Simultaneously with the
transfer, a bond for R3,6 million was registered in favour of
the
Standard Bank.
36.
The judgment of Kollapen J was given on 11 December 2014. At
paragraph 8 page 8 of his judgment, Kollapen J remarked:
"It
is
clear
that the applicants intended to bring leave to appeal applications in
respect of all of the four orders to which reference
has
been
made. That the applicants did
so
inelegantly and in
a
manner not contemplated by the Rules
is
hardly in doubt."
37.
In the result, Kollapen J granted an order to allow the Chiuras to
amend their application for leave to appeal to accord with
the Rules
of this Court, this to occur within ten days of the date of his
order. The application for an order for security for
costs under Rule
47(3) was dismissed, and there was no order as to costs ("the
Kollapen order").
38.
On 15 December 2014, an amended application for leave to appeal
against the van der Byl order was served. Despite the latitude
afforded to the Chiuras under the Kollapen order, to amend their
application so as to provide grounds for appeal, the Chiuras chose
to
ignore same, with a cavalier disregard of the requirements for
applications for leave to appeal.
39.
This application was enrolled before the Honourable Mr Justice
Ledwaba, DJP, on 18 February 2015, because Vorster AJ was unavailable
to hear same. The matter was postponed for one week because Mrs
Chiura was not present in Court.
40.
The matter was heard before Ledwaba DJP on 18 February 2015. He was
prepared to overlook the Chiuras' failure to explain their
failure to
timeously launch the application, mainly against the judgment of van
der Byl AJ. Ledwaba DJP stated that, when he first
postponed the
application, he had informed Mr Chiura that, due to the complexities
and the deficiencies of their application he
recommended that they
should secure legal representation.
41.
He pointed out, as had Kollapen J, that the Nedbank order had not
been rescinded. He repeated the encouragement by Kollapen
J that the
Chiuras should obtain legal advice, since, according to Kollapen J,
their remedy may "lie elsewhere". Ledwaba
DJP found that
there were no reasonable prospects that another Court may find that
Absa was not entitled to rescind Tuchten's order.
He dismissed the
application for leave to appeal, with costs, in a fully reasoned
judgment, dated 8 May 2015.
42.
Hereafter, it was open to the Chiuras to apply for leave to appeal to
the Supreme Court of Appeal under sections 17(2)(b) of
the Superior
Court Act, 1O of 2013 ("the SC Act"). To the date of my
order, this had not occurred.
43.
On 3 June 2015, the Chiuras served another document, this time styled
"Notice of intention to appeal against the Judgment of
Honourable Ledwaba against refusal of leave to appeal."
In
reply, Nedbank's attorneys proposed to them in a letter that they
should petition the Supreme Court of Appeal if they wished
to
challenge Ledwaba's judgment.
44.
Another notice to appeal Ledwaba's judgment was served on 3 November
2015. Nedbank's attorneys again invited the Chiuras to
apply for
leave to the Supreme Court of Appeal, and that they should withdraw
this notice. The Chiuras did not persist with these
applications.
45.
Instead, further proceedings, ancillary in nature to the Nedbank
order, were prosecuted by the Chiuras. On 3 December 2015,
an action
was instituted out of this Court, under case number
96723/2015
,
citing Nedbank, the Minister of Justice, the Registrar of Deeds,
the Rules Board and the Chairman of the Rules Board as first to
fifth
defendants. The following relief was sought, namely:
i. Payment of the sum of
R55 761 077,74 for compensation from Nedbank;
ii. A declarator that
rule 46(1) and (12) of the Uniform Rules of Court be declared
unconstitutional;
iii. Rescission of the
default judgment granted on 29 March 2007 1n Nedbank's favour;
iv. an order to eject all
current occupants from the property, to enable the Chiuras to resume
occupation.
46.
On 8 December 2015, the Chiuras purported to amend their Summons
without due regard to the requirements of rule 28.
47.
Nedbank was afforded ten court days within which to enter an
appearance to defend, taking into account
dies non
between 16
December 2015 and 15 January 2016. The last day for service of the
appearance to defend was therefore 19 January 2016.
48.
On 29 February 2016, following service of the appearance to defend on
18 January 2016, the Chiuras applied for summary judgment.
The
application was late, the supporting affidavit did not make the
requisite allegations as provided by rule 32, and the damages
claim
of some R55 million was unliquidated and summary judgment could
therefore not be sought for same. Nevertheless, Nedbank served
an
affidavit resisting summary judgment.
49.
On 3 March 2016, Nedbank served its special pleas and plea in the
action.
50.
On 8 March 2016, the Honourable Mr Justice Moseamo J refused the
summary judgment application and granted Nedbank leave to defend,
with costs in the cause of the main action.
51.
On 30 March 2016, despite the above, the Chiuras served an
application for default judgment in the action, in wilful disregard
of the fact that an appearance to defend and the six special pleas
and plea had already been served. The application was enrolled
on the
unopposed roll on 12 April 2016. On 4 April 2016, prior to the
hearing, Lowndes warned the Chiuras that their application
lacked
merit and that Nedbank would seek its dismissal and a punitive award
of costs.
52.
On 30 March 2016, the Chiuras launched a further application in the
action styled "Amended Notice of Application for Default
Judgment" in which they sought:
i.
The reversal of the van der Byl order, including the costs order;
ii.
The implementation of the Tuchten order;
iii.
The writing off of the costs orders granted under the Thlapi,
Mphahlele, Vorster and Ledwaba orders.
53.
When the application was heard on 12 April 2016, before Ms Justice
Tolmay J, she postponed same to the opposed roll on 29 August
2016,
granting costs against the Chiuras on the attorney and client scale.
She informed the Chiuras that she was of the prima facie
view that
the application was without merit and urged the Chiuras to secure
legal representation.
54.
In the interim, there was a significant development. On 30 March
2016, Nedbank issued a warrant of execution under case number
20740/2013
,
in terms of rule 45(8), against the
"incorporeal movable property" of Mr and Mrs Chiura, being
the first and second respondents,
Mr and Mrs Chiura, namely, the
right, title and interest of the Chiuras in and to the following:
i. The action instituted
by the said respondents out of the High Court of South Africa,
Gauteng Division, Pretoria, under case number
96723/2015;
ii.
The application instituted by the said respondents out of the High
Court of South Africa, Gauteng Division, Pretoria, under
case number
758
0/2007
;
iii.
The claims of the said respondents as is more fully set out, inter
alia, in the notice of motion and founding affidavit dated
June 2013
and 29 June 2013 respectively, under case number
20740/2013
out
of the High Court of South Africa, Gauteng Division, Pretoria.
55.
In essence, therefore, the March 2016 warrant was issued to attach
the Chiura's claims:
i. against Nedbank in the
action for, inter alia, compensation of some R55 million and
ancillary relief (case
96723/2015)
;
ii.
to the setting aside of the Ledwaba order dismissing leave to appeal
against van der Byl's order, which had in turn set aside
Tuchten's
order rescinding the sale in execution of the property and all
transactions subsequent thereto: (case numbers
7580/2007
and
20740/2013)
.
56.
The above is referred to below as "the March 2016 warrant".
The basis of the warrant of execution comprised of three
claims for
legal costs which had been taxed against the Chiuras under case
number
20740/2013
,
for the sums of R98 680,67,
R48 044,96 and R48 890,82 respectively, totalling R195 616,45 in the
aggregate. Attempts to recover
payment via the attachment of movables
at the residence of the Chiuras had proved an exercise in futility.
57.
On 21 November 2013, and 26 November 2013, nulla bona returns of
service were rendered by the sheriff in respect of both Mr
and Mrs
Chiura, at their residence at 83 The Willows, Ruimsig, Roodepoort.
They were each personally present when this occurred.
Mr Chiura even
signed a document to confirm this fact.
58.
Moreover, the Chiuras have persistently and contemptuously ignored
the express prohibition in the Vorster order dated 14 October
2013
that the Chiuras could not enrol the matter again before all costs,
including those of 14 October 2013, had been paid by them.
59.
On 9 May 2016, Absa launched a counter-application in the application
under case numbers
7580/2007, 1730/2013
and
20740/2013
for an order to declare the Chiuras vexatious litigants under
section 2(1)(b) of the VP Act.
60.
On 26 May 2016, a meeting occurred at the Chambers of Mr Justice
Ledwaba DJP. It was attended by the Chiuras, and Nedbank's
and Absa's
attorneys. Ledwaba DJP explained to the Chiuras what court process
entailed and advised them that Nedbank and Absa would
not countenance
their unabated disregard of the rules of Court. They were again
informed that the only mechanism by which Ledwaba's
order could be
taken on further appeal was by further application to the SCA. They
were entreated to obtain the services of legal
representatives.
61.
Reverting to the March 2016 warrant, this called on the sheriff of
the High Court to notify all interested parties, including
the
Registrar of this Court, the Registrar of Deeds, the Minister of
Justice, the Chairman of the Rules Board, and Shepherd and
Ester
Chiura. Finally, a disclaimer is made that any such attachment was
not to be construed as an admission of the veracity of
such claims.
62.
Following due service of the warrant of execution on all parties, and
the attachment of the rights forming the subject-matter
thereof, a
public sale in execution was advertised for 11hOO on 28 July 2016.
The advert appeared in two newspapers. At this juncture,
the Chiuras
had engaged Khoza Attorneys to act for them. Mr Khoza requested the
postponement of the sale, which was declined by
Lowndes.
63.
On 11 July 2016, Khoza attorneys wrote to Absa's attorneys, Clyde and
Co, to inform Absa that its clients had confirmed that
"they
will not be proceeding further with any legal action against Absa".
64.
0n 21 July 2016, despite advance notice of the sale at least ten
court days beforehand, the Chiuras brought an urgent application
under case number
57340/2016,
enrolled for hearing on
27 July 2016, to stay the warrant of execution, pending the outcome
of their application to set aside the
Ledwaba order. The application
was opposed.
65.
On 27 July 2016, before the Honourable Mr Justice Ranchod J, advocate
Katz van Zyl, on brief for the Chiuras, withdrew the application
and
tendered costs on the attorney and client scale.
66.
At 09h53 on the morning of the auction, being 28 July 2016, the
Chiuras launched yet another urgent applicaton to stop the sale.
The
application was served by email. Counsel was briefed by Nedbank and
attended Court where he spoke with the registrar of Ranchod
J, to be
told that the Chiuras denied that they had agreed to withdraw the
previous application but that they wished to re-enrol
the application
for 2 August 2016.
67.
The auction proceeded on 28 July 2016, and the incorporeal rights as
identified in the warrant of execution were duly auctioned
and sold
to Nedbank for R6 840,00, Nedbank not being the only bidder.
Lowndes addressed a letter to the Judges in the urgent
Court for that
week, copied to the Chiuras, to apprise them of this fact. It was
established by Counsel for Nedbank on 2 August
2016 that the second
application had not been re- enrolled.
68.
As pertinently pointed out by Nedbank, the restoration of the Chiuras
to the status quo at the date of the Tuchten order would
secure no
beneficial relief. This because the default judgment still stood,
with the result that the quantum of Nedbank's claim
against them
would have escalated to about R5 million. Not only had there been no
tender to pay any costs orders, there was never
any tender by them to
pay the judgment debt.
69.
The default judgment was granted on 29 March 2007. On their version,
the Chiuras only moved out of the property in November
2009, two
years and eight months later. I find no suggestion in the papers that
the Chiuras made any payments towards the bond
during this period.
70.
On 4 August 2016, Nedbank proceeded to remove the applications
enrolled for hearing on 29 August 2016, under case numbers
96723/2015, 20740/2013,
and
7580/2007.
On
the same date, a notice of withdrawal of the action under case number
96723/2015
,and
a notice of withdrawal of the
application under case number
20740/2013
and a notice
of withdrawal of the application under case number
7580/2007
were served, all on behalf of the Chiuras, whose claims under
these cases had been acquired by Nedbank.
71.
On 16 August 2016, the Chiuras proceeded to attempt to involve
Ledwaba DJP in the dispute. A document titled "Index to
Bundle
of relevant documentation to prove infringement" was served on
his Registrar. The Chiuras had failed to understand
that they had no
locus standi in the relevant cases, and made accusations of
dishonesty and collusion against Nedbank. The aforegoing
action
resulted in the Registrar of this Court becoming embroiled in a
dispute as to whether Nedbank had the legal right to remove
the
matters from the roll and to withdraw them. Correspondence was
exchanged.
72.
In the result, on 20 September 2016, the Chiuras proceeded to serve a
notice of set down for the matters under case number
20740/2013
and
96723/2015
hearing on 31 October 2016. They
were allocated for hearing on 3 November 2016. It is apparent
therefrom, therefore, that the Chiuras
still considered Absa as part
of the overall equation, in a volte face from the agreement
previously reached with Absa.
73.
In support of Nedbank's application against the Chiuras in casu,
Nedbank advanced the following facts, inter alia:
i. Nedbank had been
exposed to a "torrent of litigation" since 2013, spending
in excess of R1 million in legal fees, incurred
as a result of the
Chiuras' abuse, harassment and capriciousness;
ii.
Nedbank had suffered patent prejudice because of this;
iii.
The Chiuras had been represented by about 13 legal representatives;
iv.
The Chiuras had been warned to obtain legal representation by various
Judges of this Court;
v.
The Chiuras had threatened parties to the litigation, had made
defamatory attacks on Judges, had attempted to prefer criminal
charges against Nedbank officials;
vi.
The Chiuras had made vicious allegations of, inter alia, fraud, in
letters to journalists, the CEO of Nedbank, the Judge President,
the
Deputy Judge President, the Judicial Service Commission, the Public
Protector, the Constitutional Court and the Law Society;
indeed,
Lowndes had been reported to the Law Society;
vii.
In a letter of demand to the Chairman and CEO of Nedbank, demand was
made for payment of damages of R238 976,86;
viii.
The Chiura's continuing litigation, amounting to eleven applications
in toto, was frivolous, improper, harassing, baseless
and unfounded,
and in flagrant disregard of the Court, its process, the Uniform
rules of Court.
74.
In Nedbank's founding affidavit, the following pertinent comments are
made at paragraph 189 page 63:
"I
am advised further that the public interest requires that the
functioning of the courts and the administration of justice
proceed
unimpeded by the clog of groundless proceedings initiated by the
Chiuras."
75.
And at paragraph 194 page 66:
''There is no end in
sight to the unabated barrage of baseless applications and actions
that Nedbank is forced to defend and incur
costs (and time) in
so
doing."
76.
And finally, at paragraph 197 page 67:
"Furthermore,
even where punitive costs orders have been awarded against the
Chiuras, none of the respondents have been able
to recover any of the
money spent opposing the Chiuras' applications."
77.
The Chiuras' seven page answering affidavit omits to traverse in
terms every allegation raised in Nedbank's founding affidavit.
They
simply make bare denials:
"We
as the Applicants deny all allegations and contents in the Founding
Affidavit of Elizabeth Barnes because the allegations
are far from
the truth, baseless, that's why they don't want it to go to Court."
78.
The gravamen of the answer is the following. The Chiuras rely
implicitly on the terms of the Tuchten order and the judgment
of
Kollapen J. Mr Chiura on behalf of the Chiuras attempts to re-argue
the merits of the Tuchten order, the fact that the sale
was "without
reserve" and the comment by Kollapen J that
"it can
hardly be said that the sale for R1,4 million represented the market
price of the property."
In his view, Kollapen's judgment
makes it
"untenable"
to accept the judgment of
Ledwaba DJP that there are no prospects of success
79.
Moreover, Kollapen J's judgment refutes Nedbank's right to declare
the Chiura's vexatious litigants. The Van der Byl order,
in his
opinion, was incompetent because Tuchten was functus officio and
Tuchten J was unaware of the Absa bond. Cognisance is not
taken by
the Chiuras of rule 42(1)(a) which provides for the rescission of an
order granted in the absence of an interested party,
which Absa
certainly was.
80.
In conclusion, the Chiuras make the following allegations concerning
Nedbank's conduct, namely, inter alia:
i. Giving orders about
pending court cases to court staff;
ii.
Not adhering to agreed dates and the disappearance of court files;
iii.
Not recognising the bill of rights in the Constitution;
iv.
Intimidating and colluding with legal representatives engaged by the
Applicants thus obstructing justice;
v.
Buying their rights to cases; their understanding being that "a
case number cannot be ceded, sold or forfeited";
vi.
They have never refused to pay costs; they have simply suggested that
the costs should be deducted from the damages suffered
by them.
81.
The above, then, are the salient facts germane to this application,
and indeed, in several respects, to the other cases which
were argued
before me.
82.
Counsel for Nedbank produced detailed heads of argument and argued
the issues before me.
83.
Mr Chiura, confirming that he acted for himself and his wife, Mrs
Chiura, who was present in Court, produced a document entitled
"Arguments for rescission and damages summons for 3
November''.
84.
The document was intended to support his argument against the orders
sought by Nedbank and Absa against him and to support the
Chiuras'
applications for default judgment in the damages action and the
rescission of the Ledwaba order, which, in effect, was
a rescission
of the van der Byl order. The document was read by Mr Chiura to the
Court for the most part, and I have had the benefit
of analysing it
at length.
85.
Mr Chiura apologised to the Court for being unrepresented despite
being advised to secure representation. He blamed this on
legal
representatives who were either "intimidated or chose to collude
with the respondent..." The document constitutes
a reiteration
of the alleged correctness of the Tuchten order and the Kollapen
judgment.
86.
The Chiuras' argument rested on the fact that Tuchten J found the
sale in execution to be invalid and that Kollapen J had found
that
the conduct of the Chiuras could not be said to be
"vexatious,
reckless or an abuse of the process of this Court."
The
Chiuras accused the respondents' attempt to
"use
technicalities to avoid the actual issues at hand."
This
statement is paradoxical because the "technicalities" which
are the real subject-matter at issue were the legitimate
complaints
by Nedbank that the Chiuras were consistently ignoring the Rules of
Court and abusing its process.
87.
In the document, the Chiuras mention that the Law Society is
investigating the conduct of one Munya Dwanzura who allegedly
influenced the deeds office to transfer the property "illegally"
to Joyspring, that the Law Society was investigating
Nedbank's
lawyer, Lowndes. All other attorneys and Counsel engaged by the
Chiuras, including B Mlalazi, R Baloyi, E Dagada, Katz
van Zyl and
Khoza attorneys, had either acted negligently or had not taken proper
instructions from them. The Chiuras had lost
all trust in legal
representation.
88.
Mr Luderitz placed on record that a vast number of the allegations in
the Chiuras' document were unsubstantiated, false and
defamatory, and
he reserved the rights of Nedbank.
89.
Concerning the bare, unsubstantiated denials contained in the
Chiuras' answering affidavit, I concur with the stance adopted
by the
Court in
Wightman t/a JW Construction v Headfour (Pty) Ltd and
another 2008(3) SA 371 (SCA).
at paragraph 13:
"A real, genuine
and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise
the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed. There will of course be instances
where
a
bare
denial meets the requirements because there is no other way open to
the disputing party and nothing more can therefore be expected
of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party and no basis
is
laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on
a
bare or ambiguous denial the
court will generally have difficulty in finding that the test is
satisfied. I say "generally"
because factual averments
seldom stand apart from
a
broader factual matrix of
circumstances all of which needs to be borne in mind when arriving at
a
decision. A litigant may not necessarily recognise or
understand the nuances of
a
bare or general denial as against
a
real attempt to grapple with all relevant factual
a/legations made by the other party. But when he signs the answering
affidavit,
he commits himself to its contents, inadequate as they may
be, and will only in exceptional circumstances be permitted to
disavow
them.
90.
In the final analysis, no real, genuine, bona fide dispute of fact on
any material matter was raised by the Chiuras in their
answering
affidavit. Little, if any, probative value can be attached to their
version which, in substance, does not constitute
a defence to any of
the relief sought against them.
91.
At the outset, I am constrained to express my view on the merits of
the Van der Byl order. In my view, the rescission of the
Tuchten
order was sound, this because Absa was patently an interested party
to the proceedings, and should have been joined and
was indeed
prejudicially affected by the Tuchten order. I refer to
Bowring
NO v Vrededorp Properties CC and another
2007 (5) SA 391
SCA at
paragraph 21.
92.
I will firstly deal with the interdictory relief against the Chiuras
to prevent them from pursuing the cases in respect of which
their
claims were acquired by Nedbank. This is related to the relief to
declare that they have no locus standi in respect of the
claims in
the matters with case numbers 7580/2007, 20740/2013 and 96723/2015.
93.
Counsel for Nedbank drew attention to a plethora of cases on the
attachment of incorporeal rights. The locus standi of the Chiuras
is
an obvious corollary to this issue, since their claims in the damages
action and the two interrelated applications to set aside
the Ledwaba
order were attached and sold in execution to Nedbank, resulting in
Nedbank assuming jurisdiction and locus standi over
these claims.
94.
Rule 45(8) of the Uniform rules provides that incorporeal property,
whether movable or immovable, can be attached without a
prior court
order.
95.
In
Marais v Aldridge and others
1976 (1) SA 746
Tat 750,
the
Court made it very plain that rights in and to an action are
susceptible to attachment:
"The right, title
and interest of the litigant in an action constitutes incorporeal
property which is liable to attachment
at the instance of the
judgment creditor and to be sold in execution to realise money to
satisfy the creditor's claim."
96.
The motivation of the purchaser of such an interest is irrelevant at
law. In
Madden v BP Southern Africa (Pty) Ltd
1967 (2) SA 326
Nat 328:
"It matters not
that the purchaser will utilise the right acquired to frustrate the
right of the judgment debtor to continue
with the action. It is part
of the price which the judgment debtor who cannot pay his creditor in
any other way has to pay in order
to put the judgment creditor in
possession of funds which will go towards satisfying his claim."
97.
Finally, in
Brummer v Gorfil Brothers Investments (Pty) Ltd and
another
1999 (3) SA 389
SCA at 415 G to Hand 417 G to H:
"a
defendant who
used
a
statutory procedure, namely the attachment and sale on
the open market of
a
claim, to bring to an end an action
against him which he regarded as vexatious did not have an
objectionable or improper intention";
"If anyone was to
blame, it was the appellant himself It was he who had...run up the
costs, which he then failed to settle.
His claim against the fifth
respondent was an asset in his estate."
98.
Based on the established facts, and the prevailing law, the Chiuras
lacked locus standi to prosecute any claims under case numbers
96723/2015, 20740/2013,
and
7580/2007.
Nedbank
has proved on a balance of probabilities that it has a clear right to
a final interdict, injuries actually committed and/or
reasonably
apprehended, and the absence of similar protection by any other
remedy.
99.
A further issue is whether the Chiuras may be found guilty of
contempt of the Vorster order. A leading case on contempt of Court
is
F
a
kie NO v CC11
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
SCA,
which spelt out the requirements for an
order for contempt of court. The three requisites, summarised, are:
(1) the existence of
the order; (2) service or notice of the order on
the respondents and (3), non-compliance.
100.
The judgment quoted the following instructive passage from
F
a
kie
at paragraph 23 p 338:
"23
....
Once
the three requisites mentioned have been proved, in the absence of
evidence raising
a
reasonable doubt as to whether the accused
acted wilfully and
mala
fide, all the requisites of the
offence will have been established. What is changed is that the
accused no longer bears
a
legal burden to disprove wilfulness
and
mala
fides on
a
balance of probabilities but to
avoid conviction need only lead evidence that establishes
a
reasonable doubt."
101.
Reading from the headnote in
Fakie
,
at paragraph
A to B at page 327:
In particular, the
applicant (in contempt proceedings) had to prove the requisites of
contempt (the order, service or notice, non-compliance
and wilfulness
and
ma/a
tides) beyond
a
reasonable doubt. But, once
the applicant had proved the order, service or notice and
non-compliance, the respondent bore an evidentiary
burden in relation
to wilfulness and
ma/a
tides: Should he fail to advance
evidence that established
a
reasonable doubt as to whether his
non-compliance was wilful and
ma/a
fide, the applicant would
have proved contempt beyond
a
reasonable doubt. A declarator
and other appropriate remedies remained available to the applicant on
proof on
a
balance of probabilities.
102.
And at paragraph A to B page 332 of
Fakie
:
"It is a crime
unlawfully and intentionally to disobey a court order. This type of
contempt of court is part of a broader offence,
which can take many
forms, but the essence of which lies in violating the dignity, repute
or authority of the court. The offence
has, in general terms,
received a constitutional 'stamp of approval' since the rule of law -
a founding value of the Constitution
- requires that the dignity and
authority of the courts. as well as their capacity to carry out their
functions should always be
maintained.
(my
emphasis)
103.
Plainly, on their own admission, the Chiuras were well aware of the
Vorster order and its implications and elected to ignore
it, wilfully
so. The Chiuras have not discharged their evidentiary burden of
proving a reasonable doubt that their non-compliance
was wilful and
mala fide. They have not alleged that they have complied with the
order nor have they substantiated any such compliance.
They are in
contempt of the Vorster order.
104.
Of further importance is whether Nedbank has the legal right to
declare the Chiuras vexatious litigants within the meaning
of section
2(1)(b) and (c) of the Vexatious Proceedings Act. It reads:
"(b) If, on any
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 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.
(c) An order under
paragraph (a) or (b) may be issued for an indefinite period or for
such period as the court may determine, and
the court may at any
time, on good cause shown, rescind or vary any order so issued."
105.
A conspectus of the facts outlined above, fortified by the Chiura's
own version in their answering affidavit, makes it quite
plain that
Nedbank exhausted all avenues available to it to come to an
accommodation with the Chiuras to resolve matters.
106.
They went so far as to guide them in the right direction by
suggesting the best expedient available to them: that they pursue
their legal rights and the process of this Court by applying for
further leave to appeal the Ledwaba order directly to the SCA.
This
advice was ignored with brazen impunity, and instead, a litany of
unfounded and vexatious applications have been brought,
at great
expense, inconvenience and prejudice to Nedbank, with little or no
prospect of recovering any legal costs from the Chiuras.
The Chiuras
must bear the consequences for their untenable disrespect of the
rules of this Court.
107.
This is a situation in which the employment of the Vexatious
Proceedings Act is the only practical and viable remedy at Nedbank's
disposal to put an end to the frivolous torrent of litigation which
appears to have had no end in sight, and which was bringing
the
process of this Court into unwarranted disrepute.
108.
Counsel for Nedbank, Mr KW Luderitz SC, referred me to a miscellany
of case law on the subject. An important case appears to
be that of
Beinash v Ernst and Young
1999 (2) SA 116
CC at paragraph 15:
(the case dealt with the constitutionality of the Vexatious
Proceedings Act):
"In order to
evaluate the constitutionality of the impugned section, it is
necessary to have regard to the purpose of the Act.
This purpose is
'to put
a
stop to persistent and ungrounded institution of
legal proceedings.' The Act does so by allowing
a
court to
screen (as opposed to absolutely bar)
a
'person (who) has
persistently and without any reasonable ground instituted legal
proceedings in any Court or inferior court.' This
screening mechanism
is necessary to protect at least two important interests. These are
the interests of the victims of the vexatious
litigant who have
repeatedly been subjected to the costs, harassment and embarrassment
of unmeritorious litigation; and the public
interest that the
functioning of the courts and the administration of justice proceed
unimpeded by the clog of groundless proceedings."
109.
Judgment was accordingly granted on 3 November 2016 as follows: an
order was granted in terms of prayers 1 (including(a), (b),
and (c)),
2, 3, 4, 5 (including 5.1 and 5.2), 6 and 7 of the notice of motion
dated 22 September 2016 annexed hereto and marked
“X”.
____________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
17
November 2016
Appearances
Counsel
for Applicant: Adv KW Luderitz SC
Instructed
by: Attorneys Lowndes Dlamini
For
the first and Second Respondents:Shepard and Ester Chiura
Instructed
by: Personally represented
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
PRETORIA
03 November 2016 CASE NO: 74492/16
BEFORE
THE HONOURABLE ACTING JUSTICE BRENNER
In
the matter between:
NEDBANK
Applicant
and
SHEPARD
TENDAYI CHIURA
First
Respondent
ESTER
CHIURA
Second
Respondent
HAVING
HEARD counsel(s) and having read the documents filed of record:
IT
IS ORDERED
That
an order is granted in terms of prayers 1, (a), (b), (c), 2, 3, 4, 5,
5.1, 5.2, 6 and 7 of the Notice of Motion dated 22 September
2016
marked
"X".
BY
THE COURT
Att:
Lowndes Dlamini
HIGH
COURT TYPIST: BvZ
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no:74492/16
Date:
3/11/2016
In
the matter between:
NEDBANK
LIMITED
Applicant
and
SHEPARD
TENDAYI
First
Respondent
ESTER
CHIURA
Second
Respondent
NOTICE
OF MOTION
TAKE
NOTICE
that the above named applicant,
NEDBANK LIMITED
("Nedbank"),
intends to make application to the above
Honourable Court for an order in the following terms:
1.
An order interdicting and restraining the first and second
respondents (collectively
"the respondents")
from
persisting and proceeding with the following applications and action:
(a) the action instituted
by the respondents out of the High Court of South Africa, Gauteng
Division, Pretoria under case number
96723/2015 (and the ancillary
applications launched under the same case number);
(b) the application
instituted by the respondents out of the High Court of South Africa,
Gauteng Division, Pretoria under case number
7580/2007; and
(c) the claim(s) of the
respondents as are more fully set out, inter alia, in the notice of
motion and founding affidavit dated
June 2013 and 29 June 2013
respectively, under case number 20740/2013 out of the High Court of
South Africa, Gauteng Division,
Pretoria
("the existing
litigation")
2.
An order declaring that the respondents do not have
locus
standi
in the existing
litigation and that all rights in and to the existing litigation now
vest with Nedbank.
3. An order declaring the
respondents to be in contempt of the order by the Honourable Acting
Justice Vorster dated the 14 October
2013
4. An order declaring the
respondents to be vexatious litigants in terms
of the provisions of Section 2 of the Vexatious Proceedings
Act, 3 of 1956 (as amended).
5. An order interdicting
and restraining the respondents from instituting any new proceedings
(applications or actions) against
the applicant [or acting in any way
pursuant to the existing litigation] in any Court or inferior Court,
as the case may be, until
and only in the event that:
5.1
the balance of all prior costs orders obtained by the
applicant against the respondents have been paid in full including;
5.2
the respondents have first
obtained the leave of a judge of this court on application and on
notice to the applicant, to proceed
with the institution of any such
proceedings.
6.
That any orders issued pursuant to prayers 1, 2, 3, 4 and 5 shall
endure indefinitely until, and unless, set aside by an order
of a
competent court, alternatively, that such order shall endure for such
finite period of time as this court deems meet.
7.
That the first and second respondent be ordered to pay the costs of
the application, on the scale as between attorney and client,
jointly
and severally, the one paying for the other to be absolved.
8. Further and/or
alternative relief.
KINDLY
TAKE FURTHER NOTICE
that the attached affidavit of
ELIZABETH
BARNES
and the annexures thereto will be used in support hereof.
KINDLY TAKE FURTHER
NOTICE
that the applicants have appointed attorneys
LOWNDES
DLAMINI,
at the address set out below as the address at which
they will accept notice and service of all process, notices and
documents in
these proceedings.
KINDLY
TAKE FURTHER NOTICE
that if you intend opposing this application
and/or the relief sought you are required to:
(a)
Within 5 days after
receipt of this notice of motion give the intervening applicant
notice of your intention to oppose the relief
sought in the notice of
motion;
(b)
in the aforesaid notice of opposition, appoint an address in
accordance with the requirements of Uniform Rule 6(5)(d)(i); and
(c)
file your answering affidavit(s), if any, within 15 days after
you have given notice of your intention to oppose the application
(if
any).
KINDLY TAKE FURTHER
NOTICE
that should such notice of intention to oppose not be
given, then the application will proceed on an unopposed basis on a
date to
be allocated by the Registrar of the High Court.
KINDLY
ENROL THE MATTER ACCORDINGLY
DATED
at
SANDTON
on this 22
nd
day of September 2016
____________________
LOWNDES DLAMINI
Attorneys
for Applicant
56
Wierda Road East, Wierda Valley
SANDTON
Tel:
011 292 5777
Ref:
A Lowndes/mm/ 11697
Email:
allanpa@lown es.co.za
c/o
Riaan Bosch Attorneys
Suite
5 Monpark Building
76
Skilpad Avenue
Monument
Park
Pretoria
Ref:
Mr Riaan Bosch
TO:
THE
REGISTRAR OF THE ABOVE
HONOURABLE
COURT:
PRETORIA
AND
TO:
SHEPARD
TENDAYI CHIURA
First
Respondent
[...]
5th
Road
Northwold
Randburg
PER
SHERIFF
AND
TO:
ESTER CHIURA
Second Respondent
[...]
5th Road
Northwold
Randburg