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[2012] ZAGPPHC 212
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Dlamini and Others v Tim Du Toit Attorneys and Others (24593/11,18836/98,18225/98) [2012] ZAGPPHC 212 (21 September 2012)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA /ES
(REPUBLIC OF SOUTH AFRICA)
DATE: 21/09/2012
IN
THE MATTER BETWEEN
CASE NO: 24593/11
DUMISA
M
DLAMINI
........................................................................................
1ST
APPLICANT
GEELSPRUIT
BOERE (PTY)
LTD
….............................................................
2nd
APPLICANT
RICHTERSHOEK
BOERDERY (PTY)
LTD
...................................................
3rd
APPLICANT
KLEINDOORNKOP
BOERDERY CC 1987/080/27/23
…..........................
4th
APPLICANT
AND
TIM
DU TOIT
ATTORNEYS
…..........................................................................
1ST
RESPONDENT
RIAAN
DU
RANDT
….......................................................................................
2nd
RESPONDENT
P
J
BOTHA
...........................................................................................................
3rd
RESPONDENT
ABSA
BANK
LTD
..............................................................................................
4th
RESPONDENT
BARRY
JOHAN VOS RECOVERY MANAGER ABSA BANK
…................
5th RESPONDENT
IN
THE MATTER BETWEEN
CASE NO: 18836/98
ABSA
BANK
LTD
................................................................................................
PLAINTIFF
AND
KLEINDOORNKOP
BOERDERY CC 1987/080/27/23
….............................
1ST
DEFENDANT
DUMISA
M
DLAMINI
............................................................................................
2nd
DEFENDANT
IN RE:
KLEINDOORNKOP
BOERDERY CC 1987/080/27/23
…..............................
1ST
APPLICANT
DUMISA
M
DLAMINI
.............................................................................................
2nd
APPLICANT
AND
SHERIFF
PRETORIA CENTRAL
THAKA
SEBOKA
...................................................................................................
1ST
RESPONDENT
THE DEPUTY SHERIFF PRETORIA CENTRAL
CHRISTO
JULYAN
................................................................................................
.
2nd RESPONDENT
ABSA
BANK
LTD
...................................................................................................
3rd
RESPONDENT
MARIA
RAMOS CEO ABSA
BANK
.....................................................................
4th
RESPONDENT
MARTHINUS
VAN RENSBURG LEGAL
DIVISION
............................................
5th
RESPONDENT
LOUIS
VON ZEUIER CHIEF FINANCIAL
OFFICER
...........................................
6
th
RESPONDENT
IN
THE MATTER BETWEEN
CASE NO: 18225/98
ABSA
BANK
LTD
....................................................................................................
APPLICANT
AND
KLEINDOORNKOP
BOERDERY CC
1987/080/27/23
.......................................
RESPONDENT
IN
RE:
KLEINDOORNKOP
BOERDERY CC 1987/080/27/23
…................................
1ST
APPLICANT
DUMISA
M
DLAMINI
..............................................................................................
2nd APPLICANT
AND
SHERIFF
PRETORIA CENTRAL
THAKA
SEBOKA
...................................................................................................
1st
RESPONDENT
THE DEPUTY SHERIFF PRETORIAL CENTRAL
CHRISTO
JULYAN
.................................................................................................
2nd
RESPONDENT
IN
THE COUNTER-APPLICATION
CASE NO: 18225/1998,
18836/1998,24593/2011
ABSA
BANK LTD
COUNTER
.............................................................................
APPLICANT
AND
DUMISA
MBUSI
DLAMINI
....................................................................................
1ST
COUNTER RESPONDENT
MINISTER
OF CORRECTIONAL
SERVICES
....................................................
2nd
COUNTER RESPONDENT
MINISTER
OF SAFETY &
SECURITY
..................................................................
3rd
COUNTER RESPONDENT
MINISTER
OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT
....................................................................................................
4th
COUNTER RESPONDENT
MINISTER
OF HOME
AFFAIRS
............................................................................
5th
COUNTER RESPONDENT
TIVENINKOSI
DLAMINI
..........................................................................................
6th
COUNTER RESPONDENT
JUDGMENT
PRINSLOO.
J
[1]
The four matters described in the above heading came before me
between 30 July and 1 August 2012. The four cases were heard
together
by direction of the honourable deputy judge-president. The record
runs into some 1790 pages.
[2]
Mr Amm appeared for Absa Bank Ltd ("Absa"). Mr Goodes
appeared for the Sheriff of Pretoria Central and his Deputy
who
feature as respondents in case no 18836/98 and case no 18225/98. Mr
Cavanagh appeared for the second, third, fourth and fifth
counter-respondents in the counter-application, and the sixth
counter-respondent, MrTiveni Nkosi Dlamini appeared in person. With
his blessing, and without meaning to offend him, and to avoid
confusion, I will refer to him throughout as "Tiveni".
Mr
Dumisa Mbusi Dlamini ("Dlamini"), the first applicant in
the main application (case no 24593/2011) and the driving
force
behind all the litigation featuring in this case, did not attend the
proceedings. He is the father of Tiveni. At the commencement
of the
proceedings I asked Tiveni about the whereabouts of Dlamini, and I
was told that Tiveni did not know where his father was.
As will
appear more fully hereunder, Dlamini was incarcerated twice, at the
instance of Absa, for contempt of court because of
his repeated
disobeyance of court orders issued by a number of judges in this
court over many years in matters mainly connected
with the litigation
which again now came before me. I was informed by Tiveni that his
father was released early, in June 2012,
after his last
incarceration, but his absence during the proceedings before me
remains unexplained.
Some
introductory remarks
[3]
Dlamini has been flooding this court for approximately fifteen years
with a large number of applications, normally litigating
in his
personal capacity and operating from an internet cafe address in
Sunnyside, Pretoria. On his own evidence, Tiveni has been
"assisting"
his father in this litigation for about five years. Tiveni is not
legally qualified but he told me that he
was busy with his law
studies.
[4]
Dlamini has pursued this litigation in his own name, and purportedly
also on behalf of Kleindoornkop Boerdery CC (registration
no
1987/080/27/23) ("Kleindoornkop 1987") and other entities.
[5]
Dlamini has done so notwithstanding the fact that he is an
unrehabilitated insolvent and that Kleindoornkop 1987 has been
finally
wound-up. Two of the other entities purportedly represented
by the insolvent Dlamini, like Richtershoek Boerdery (Pty) Ltd and
Geelspruit Boere (Pty) Ltd (the second and third applicants in the
main application 24593/2011) have also been finally deregistered
by
the Registrar of Companies. This happened as long ago as July 2010.
For good measure, Kleindoornkop 1987 was also deregistered
by the
Registrar in July 2010 even though it was already liquidated long
before that, in February 2004.
[6]
In response to such harassment and in order to protect itself, Absa
(like other targets of Dlamini's litigation such as Standard
Bank and
the liquidators of Kleindoornkop) have sought and obtained court
orders. These orders were aimed at interdicting and restraining
Dlamini's vexatious litigation. Undeterred, and with full knowledge
of such orders, Dlamini has regularly breached such interdictory
orders. He continued to flood Absa (and others) with litigation.
[7]
Consequently, Absa sought and obtained contempt orders against
Dlamini. Dlamini remained undeterred and unblushingly continued
to
litigate.
[8]
In due course, his ongoing contempt resulted in two (separate) orders
for his committal to imprisonment. His subsequent incarceration
(twice) has not dampened his resolve. He continued to litigate from
prison. It is clear from the evidence before me that Tiveni
has
played a major part in ensuring the ongoing processing of vexatious
litigation during his father's temporary absence from open
society
for the reasons mentioned. Dlamini's continued contempt is also
apparent from the details of these cases which came before
me, and
which represent pending or outstanding applications involving mainly
Absa and Dlamini. These pending applications have
been delayed and
frustrated by Dlamini. Despite Absa having given notice of its
intention to oppose Dlamini's applications, Dlamini,
on the
overwhelming probabilities assisted by Tiveni, continued to litigate
from prison. He enrolled a number of his applications
on the
unopposed motion court roll.
[9]
Absa approached the honourable deputy judge-president with its
predicament, and the deputy judge-president directed that all
the
outstanding matters should come before me on the dates mentioned.
[10]
Dlamini's conduct over the years, also in respect of some of the
matters which now again came before me for consideration,
was well
documented in a comprehensive judgment handed down in this division
by RABIE, J and reported as Absa Bank Ltd v Dlamini
[2007] ZAGPHC 241
;
2008 2 SA 262
(TPD). The order of the learned judge is recorded at 300A-302F. The
interim relief granted by the learned judge was made final
by
HARTZENBERG, J in case no 52225/2007 on 7 December 2007. The learned
judge directed that his orders would operate for a period
to be
determined by this court during which period "the respondent
shall not institute any legal proceedings against the applicant
in
any court or inferior court without the written leave of such court
or any judge thereof or presiding officer of such inferior
court, as
the case may be". BASSON, J, on 28 November 2008, and pursuant
to the aforesaid order of HARTZENBERG, J, directed
that the latter
order would remain in operation for three years from December 2007,
so that it lapsed in December 2010. Nothing
turns on this for present
purposes.
[11]
I do not intend embarking upon unnecessary repetition of the
comprehensive and detailed remarks made by RABIE, J in his reported
judgment.
[12]
I add that there are other judgments, dealing with the conduct of
Dlamini and some of the same subjects now again raised before
me,
which form part of the record.
[13]
Finally, during the proceedings before me, I gave a judgment ex
tempore, dealing with a rule 30 application by Tiveni in which
he
claims that the counter-application is an irregular proceeding, as
well as the application by the counter-applicant (Absa) to
join
Tiveni as a sixth counter-respondent and to amend the relief sought
in the counter-application by including interdictory relief
against
Tiveni. I dismissed the rule 30 application and granted the joinder
and the amendment. The text of that judgment has not
yet been
transcribed and I hope to avoid unnecessary overlapping therewith
when dealing with the present judgment.
[14]
I now turn to the various applications which came before me.
The
main application (case no 24593/2011)
[15]
The full citation of the parties appears from the heading of this
judgment.
[16]
The relief sought in the notice of motion by Dlamini and the three
entities he purports to represent, namely Geelspruit Boere
(Pty) Ltd
("Geelspruit"), Richtershoek Boerdery (Pty) Ltd
("Richtershoek") and Kleindoornkop 1987, is short
and
sweet. Paragraph 1 of the notice of motion reads as follows:
"Directing
and ordering that the first to the fifth respondents return the
original title deeds held in name of Geelspruit
Boere (Pty) Ltd under
title T21166/1973, the title T21165/73 in the name of Richtershoek
Boerdery (Pty) Ltd, the titles under T4484/1986
held in the name of
Armstrong Properties and titles T41442/1987 held in the name of
Kleindoornkop Boerdery 1987/080/27/23 as per
schedule A by the fifth
respondent under case 18836/98."
[17]
Quite apart from the merits of the application, which the
respondents, namely Absa's erstwhile attorneys, Absa and an Absa
official strenuously opposed, a number of points in limine was also
offered in opposition to the application. These are the following:
(i)
Dlamini is an unrehabilitated insolvent. He lacks any locus standi in
this main application as well as the two interlocutory
applications
to which I will refer hereafter - see, generally, Herbstein and Van
Winsen The Civil Practice of the High Courts of
South Africa 5th ed
vol 1 pi 71 and further, and the provisions of
sections 20
and
23
of
the
Insolvency Act 24 of 1936
.
[18]
Dlamini's estate was sequestrated by an order of this court on 14
August 2003. His personal estate has been in the hands of
trustees
since 25 June 2003, the date of the provisional sequestration order.
Dlamini
has made various attempts to set aside the sequestration order but
these have failed. The unsuccessful attempts are also
detailed by
RABIE, J in Absa Bank v Dlamini, supra, at 28IE onwards (paragraphs
[68] to [75]).
As
an unrehabilitated insolvent, Dlamini has at all material times been,
and remains, divested of all of the assets which he may
at one time
or another have held. Moreover, he cannot litigate in respect of his
estate or on behalf of incorporated entities such
as the second to
fourth applicant in the main application. In the latter regard, see,
generally, Manong and Associates (Pty) Ltd
v Minister of Public Works
& Another
2010 2 SA 167
(SCA), at 170F-175D. The leave which may,
in a proper case, be sought by a lay litigant to represent a company
or corporation was
not applied for as prescribed in Manong at 174C-E.
[19]
As an unrehabilitated insolvent, Dlamini is also disqualified from
being appointed or acting as a director of a company or
from being
concerned or taking part, directly or indirectly, in the management
of a company - see
section 218(l)(d)(i)
of the previous Companies Act
61 of 1973 and section 69(8)(b)(i) of the new
Companies Act 71 of
2008
.
[20]
Moreover, Dlamini has furthermore not cited, in any of his various
applications, either the trustees of his personal insolvent
estate or
the liquidators of Kleindoornkop 1987. In the result, each of his
applications suffers from a fatal non-joinder.
It
is, in this regard, convenient to quote from a relatively recent (31
March 2011) affidavit deposed to in yet another application
featuring
Dlamini, case no 18759/2011, by one of the trustees of the insolvent
Dlamini estate, Marthinus Jacobus Dewald Breytenbach:
"
1. I am an adult male insolvency practitioner practising as such
under the name and style of Breytenbach Business Management
(Pty) Ltd
3.
The estate of Dumisa Mbusi Dlamini was provisionally sequestrated 25
June 2003 which order was made final on 14 August 2003 ...
4.
I was appointed joint provisional trustee with JHJanse van Rensburg
... B St C Cooper ... and S L Magardie ... on 2 July 2003.
This
appointment was made final by the Master of the High Court on 9
February 2004. The copies of the relevant certificates of
appointment
are attached.
5.
Mr D M Dlamini has to date not applied for rehabilitation and is
therefore still an unrehabilitated insolvent in terms of the
Insolvency Act.
The
joint trustees of Mr Dlamini have not consented to or are not
assisting him in any court applications.
6.
I confirm that Mr Dlamini has brought various court applications
against different parties, all of which were either dismissed
or not
proceeded with, at great expense of the various respondents.
It
should be noticed that orders of costs were issued against Mr Dlamini
in some of these actions, none of which have been satisfied
yet."
(ii)
Kleindoornkop 1987 has been finally wound-up.
[21]
The provisional winding-up order issued by this court was dated 3
December 2003 and the final order was made on 3 February
2004. This
subject was also dealt with in Absa Bank Ltd v Dlamini, supra, at
280H-J.
As
a consequence of its winding-up, the rights and assets (if any) of
Kleindoornkop 1987 fall into the hands of its liquidators.
The
liquidators are not cited as parties in any of Dlamini's
applications.
Dlamini
has no authority or legal standing to pursue litigation on behalf of
Kleindoornkop 1987 without the permission of the duly
authorised
liquidators. The liquidators have also not given any permission to
Dlamini and in fact the liquidators have obtained
an order
interdicting Dlamini from litigating on behalf of Kleindoornkop 1987.
In this regard, the liquidators, Messrs Botha NO,
WoudaNO and LangaNO
obtained, in case no 19693/07 the following order from this court on
30 October 2007:
"1.
The respondent is interdicted and restrained from initiating any
proceedings on behalf of Kleindoornkop Boerdery CC
(1987/008027/23)
(in liquidation).
2.
The respondent is directed to pay the costs of the application on the
scale as between attorney and client."
This
order is still in force. The mere issue of the main application and
also the two interlocutory applications which I will shortly
deal
with, case no 18836/1998 and 18225/1998, constitutes contempt of the
order quoted above and other court orders to which I
will refer. This
contempt, inter alia, forms the subject of the counter-application
which I will shortly refer to, in which Absa
seeks further periods of
imprisonment of Dlamini because of his unrelenting contraventions of
orders of this court.
[22]
Dlamini has also from time to time offered spurious arguments
challenging the validity of his sequestration as well as the
liquidation of Kleindoornkop 1987. Tiveni sought to do the same
during the proceedings before me. Of course, Tiveni had no locus
standi to make the submissions on behalf of Dlamini but I
nevertheless allowed him to speak his mind. The validity of the
sequestration
and the liquidation has been conclusively pronounced
upon by judgments of this court through RABIE, J, supra, LEGODI, J
(whose
judgment forms part of the record) and FOURIE, AJ, whose
judgment also forms part of the record.
In
addition, HARTZENBERG, DJP, as he then was, wrote a lengthy letter to
Dlamini dated 29 February 2008 in which he cautioned him
against his
conduct of litigating in such a vexatious fashion. I only quote part
of the letter:
"I
have studied all these documents and have to advise you as follows:
1. You are an unrehabilitated insolvent. You are not
entitled to
initiate any proceedings in the Transvaal Provincial Division of the
High Court without the assistance of your curator.
It means that you
may not litigate in your own name or in the name of any other entity
like Geelspruit Boere (Pty) Ltd, Richtershoek
Boerdery (Pty) Ltd or
Marina Lodge (Pty) Ltd. These are only examples. You are not entitled
to act unassisted in the name of any
entity."
(iii)
Geelspruit and Richtershoek have been deregistered by the Registrar
of Companies.
[23]
Official CIPRO documentation, forming part of the record, demonstrate
that Geelspruit as well as Richtershoek were finally
deregistered on
16 July 2010. As such, they are legally non-existent and cannot be
represented by Dlamini, quite apart from the
other impediments
Dlamini suffers from as described above. Indeed, it also appears from
the record and official CIPRO documentation
that Kleindoornkop 1987,
for good measure, was also finally deregistered on the same date.
[24]
Against this background, I am of the view that all the arguments
offered in limine are sound, and ought to be upheld, so that
the main
application, for those reasons cannot succeed.
[25]
Moreover, as to the merits of the application, the respondents have
denied on oath that they are in possession of the original
title
deeds mentioned in the notice of motion. The respondents do not know,
according to their affidavits, whether the original
title deeds in
issue still exist and, if so, where they are. A diligent and
extensive search of all the files, records, documents
and archives of
the first respondent's offices and also those of Absa has been done.
The title deeds cannot be located. It was
submitted on behalf of the
first respondent that the original title deeds should, in any event,
be in the possession of Dlamini's
former conveyancing attorneys,
alternatively the relevant trustees of Dlamini's personal estate
and/or the liquidators of the various
entities. Dlamini has proceeded
against the wrong respondents. The second respondent, who is a senior
partner in the first respondent,
states on oath that as far as he
understands the position the title deeds in issue pertain to
properties which have subsequently
been sold and transferred with the
result that the title deeds would have been replaced.
Dlamini
has not filed a replying affidavit. He seeks final relief on motion.
The version of the respondents remains unchallenged
and should be
accepted. In the circumstances, the main application also falls to be
dismissed on its merits, quite apart from the
arguments in limine,
supra. The costs should follow the result. Given the manner in which
Dlamini has launched this application,
in flagrant breach of existing
court orders, he should be ordered to pay the costs de bonis propriis
on a punitive scale. I will
make an appropriate order at the end of
this judgment.
[26]
Finally, and before turning to the next application, it was submitted
on behalf of Absa that this main application is an abuse
in every
respect. It was also brought in breach of, inter alia, the order of
HARTZENBERG, J of 30 October 2007, the contents of
which I have
quoted. The founding papers run to some 380 pages consisting of a
number of documents and affidavits submitted in
an illogical and
inconsequential order. The founding affidavit in certain instances is
incomprehensible. A large number of the
annexures are irrelevant.
This conduct, inter alia, inspired Absa to launch the
counter-application in which further relief is
sought against Dlamini
as a result of his ongoing actions which constitute contempt of
court, as illustrated.
[27]
I now turn to the next application.
Case
no 18836/1998
[28]
The full citation of the parties appears in the heading of this
judgment.
[29]
Dlamini (citing himself as second applicant and Kleindoornkop 1987 as
first applicant) issued two applications, conveniently
to be
described as interlocutory applications, in the course of the trial
action featuring Absa as plaintiff and Kleindoornkop
1987 and Dlamini
as first and second defendants respectively.
As
will be seen from the heading cited above, Dlamini, in the two
interlocutory applications, saw fit to cite the Sheriff of Pretoria
Central and his Deputy as first and second respondents with Absa as
third respondent and, for good measure, three high ranking
Absa
officials, including the CEO Ms Ramos, as fourth, fifth and sixth
respondents.
[30]
Both notices of motion are dated 27 May 2011 and they were both
issued and signed by Dlamini in his personal capacity. They
both bear
the Registrar's stamp of the previous day, 26 May 2011. They both
feature the same parties.
[31
] The relief sought in the two applications is the following:
In
the first notice of motion the first paragraph reads as follows:
"Directing
and ordering that the first respondent to the second respondent
Sheriff Pretoria Court and his Deputy to comply,
execute the writs of
execution under the above case 18836/98 to attach and cause to be
realised the amount owing together with
interest being the sum of R6
666 161,68 together with interest at 15%."
The
writ of execution which is attached to the notice of motion and in
respect of which the execution is sought is dated 19 March
2007 and
also date stamped on the same d*y by the Registrar. It was also
issued by Dlamini in his personal capacity. It goes under
the same
case number with the heading featuring Absa as plaintiff and
Kleindoornkop 1987 as first defendant and Dlamini as second
defendant. The amount in the writ of execution which Dlamini seeks to
realise is the same as the one mentioned in the notice of
motion,
supra, namely R6 666 161,68.
•
Paragraph 1 of the second notice of
motion issued on the same day, as I have pointed out, reads as fo
[lows:
"Directing
and ordering that the first respondent to the second respondent
Sheriff Pretoria Court and his Deputy to comply,
execute the writs of
execution under the above case 18836/98 to attach and cause to be
realised the amount owing together with
interest being the sum of R2
975 585,00 together with interest at 15%.M
The
writ of execution attached to the notice of motion and in respect of
which the relief is sought, is dated 19 March 2007 and
bears the same
date stamp of the Registrar. The amount reflected therein is the same
namely R2 975 585,00. The writ was also issued
by Dlamini in his
personal capacity c/o the Sunnyside internet cafe to which I have
referred.
[32]
On 22 May 2007, this court, through HARTZENBERG, J, in case no
12429/2007, featuring the three liquidators of Kleindoornkop
187 as
the first three applicants, Absa as the fourth applicant and Dlamini
as the respondent, made the following order:
"1.
The writs of execution issued by the Registrar of this honourable
court on 19 March 2007 under case no 18836/98 and case
no 18225/98 is
(sic) declared invalid and set aside.
2.
The respondent is interdicted and restrained from causing the issue
of writs of execution on behalf of Kleindoornkop Boerdery
CC (in
liquidation) (registration no 1987/008027/23).
3.
The respondent is ordered to pay the costs of this application on the
scale as between attorney and client."
[33]
The writs mentioned in paragraph 1 of the order, are those which I
have detailed, and which Dlamini now seeks, in these two
interlocutory applications, to have executed, almost exactly four
years after the order was made declaring the writs invalid and
setting them aside and interdicting Dlamini from issuing such writs
of execution.
[34]
The order of 22 May 2007 is still valid and in force.
[35]
The writ referred to in paragraph 1 of the order, with case no
18225/98, forms the subject of the next application which came
before
me and, as I will point out, the same considerations will apply in
that instance.
[36]
In addition, I have already referred to the order of 30 October 2007,
under yet another case number, 19693/07, featuring the
liquidators of
Kleindoornkop 1987 as the first three applicants and Dlamini as the
respondent, which reads:
"The
respondent is interdicted and restrained from initiating any
proceedings on behalf of Kleindoornkop Boerdery CC (1987/008027/23)
(in liquidation)."
In
that case Dlamini was also ordered to pay the costs on the scale as
between attorney and client. The order of 30 October 2007
is still in
force.
[37]
Quite apart from the aforegoing, there is also the so-called
"Standard Bank order", not featuring Absa but, instead,
Standard Bank, in litigation against Dlamini. It was issued on 14
September 2010 by this court through PRELLER, J under case no
50732/2008.
In
that case Dlamini was also ordered to pay the costs on the attorney
and client scale including the costs of two counsel and part
of the
order reads as follows:
"1.
That save with the prior written permission of the judge-president or
the deputy judge-president of the relevant High Court
(which includes
the relevant High Court with jurisdiction over the area where any
inferior court is situated)
1.1
all proceedings of whatsoever nature that have been instituted by
Dumisa Mbusi Dlamini ('the counter-respondent') in his personal
capacity or in any representative capacity of the High Court of South
Africa (and in any inferior court) are stayed;
1.2
the counter-respondent may not institute legal proceedings in his
personal capacity or in any representative capacity in the
High Court
of South Africa, any inferior court or any other court."
[38]
In my view this order is clearly wide enough also to apply to cases
involving Absa and, in neither of the cases which came
before me,
including the main application
and
the two interlocutory applications, which were all issued after the
order of PRELLER, J, did Dlamini comply with that order
by seeking
prior written permission as therein stipulated before launching his
applications.
[39]
Finally, it was argued before me by counsel for Absa, correctly in my
view, that there is in any event no factual or legal
basis for the
writs which Dlamini sought to have executed under these
circumstances. The subject was dealt with by RABIE, J in
Absa Bank
Ltd v Dlamini, supra, at paragraphs [77] to [86]. The learned judge
found that the writs were issued in respect of an
interim order (case
no 18225/1998) which does not contain a judgment against Absa and
which order had subsequently been supplanted
by a settlement
agreement which was made an order of court under case no 18836/1998
(the case now under discussion) and which order
similarly does not
contain a judgment against Absa in respect of which a warrant can be
issued. The settlement agreement was made
an order of this court by
STAFFORD, DJP, as he then was, on 1 December 1999 and forms part of
the record before me. It features
this particular case now under
consideration (18836/1998) with Absa as plaintiff and Kleindoornkop
1987 and Dlamini as first and
second defendants. In the settlement it
is recorded that the two defendants are liable, jointly and
severally, to Absa in the amount
of some Rl3,298 million with
interest and they admit such indebtedness in a settlement agreement.
The settlement makes provision
for repayment of the debt and interest
by means of 180 monthly instalments of some R243 000,00 each and the
settlement also provides
for security to be furnished in the form of
a series of mortgage bonds over certain property.
[40]
In the result, the writs in issue in this matter, 18836/1998 (and
also in case 18225/1998 which I will deal with hereunder)
were
issued:
1.
on behalf of Kleindoornkop 1987 which has been finally liquidated;
2.
at the instance of Dlamini who is an unrehabilitated insolvent;
3.
without the permission of the duly appointed liquidators of
Kleindoornkop and, for that matter, the trustees of Dlamini's estate;
4.
in direct contravention of the orders of HARTZENBERG, J, supra,
(and, for that matter, the aforementioned order of PRELLER,
J); and
5.
where there is no (money) judgment or debt that warrants and/or
supports the issuing of the writs.
[41]
In view of the above, these two interlocutory applications fall to be
dismissed with costs to be paid by Dlamini de bonis propriis
on a
punitive scale. I will make an appropriate order at the end of this
judgment.
Case
no 18225/1998
[42]
The heading of this case appears from the top of this judgment.
[43]
This is also an interlocutory application featuring Kleindoornkop
1987 and Dlamini as first and second applicants with the
Sheriff
Pretoria Central and his Deputy as first and second respondents.
[44]
As in the case of the two interlocutory applications issued by
Dlamini in case no 18836/1998, the notice of motion in the present
case is also dated 27 May 2011 and also bears the date stamp of 26
May 2011 of the Registrar. It was also issued by Dlamini in
his
personal capacity.
[45]
The first two paragraphs of the notice of motion read as follows:
"1.
Directing and ordering that the first respondent to the second
respondent's Sheriff Pretoria Court and his Deputy comply
with the
notice of attachment under
rule 45(12)
dated 8 January 2009 and pay
to the first applicant the amounts as per the attachment made being
R7 217 225,88. 2. Directing and
ordering that the first respondent to
second respondent the Sheriff Pretoria Central and his Deputy pay to
the first applicant
the interest incurred as from date of the
attachment under
rule 45(12)
being the date of 8 January 2008."
[46]
The writ on which this application is based is attached to the
founding papers and was issued on 19 March 2007 for the amount
of R2
956 737,00 together with interest. This is the writ referred to in
the order of HARTZENBERG, J of 22 May 2005, quoted above
which was
declared invalid and set aside. In that order, the learned judge
specifically referred to the writs issued on 19 March
2007 in this
case and in case 18836/1998 as appears from the contents of the order
which I quoted.
The
vastly increased amount from R2 956 737,00 to some R7,2 million
quoted in the notice of motion appears to be representative
of an
escalation of interest on the original amount. This is evident from a
schedule attached to the writ by Dlamini. The writ
and schedule are
to be found on ppl308 and 1309 of the record.
[47]
As to the reference in the notice of motion to the notice of
attachment under
rule 45(12)
dated 8 January 2009, I was furnished
with an affidavit by the first respondent, the Sheriff of Pretoria
Central, Mr Thaka Seboka,
in which he inter alia states the
following:
"2.
The notice of attachment under
rule 45(12)
dated 8 January 2009,
attached
hereto marked annexure TS1, is incorrect. 3. I further state that no
property was attached by myself against Absa Bank
under the
abovementioned case number and further no property is in my
possession. Once we advised Absa Bank Ltd of the applicant's
intentions to prosecute the writs of execution, we were advised by
Absa Bank's legal representatives that all writs of execution
have
been set aside.
4.
Accordingly no attachment was ever effected and we have no assets in
our possession."
Attached
to this affidavit is the notice of attachment under
rule 45(12)
dated
8 January 2009. This clearly reflects the warrant amount as being R2
956 737,00 which is unquestionably the writ which was
set aside by
HARTZENBERG, J, supra, on 22 May 2007.
[48]
As to Dlamini's lack of locus standi, the fact that the writ has been
set aside and declared invalid, the contemptuous contravention
of
court orders by Dlamini and the fact that there is in any event no
legal basis for a writ to have been issued in the first place,
the
same remarks apply as those I attempted to detail when referring to
case 18836/1998. I do not intend repeating those remarks.
[49]
It follows, from the aforegoing, that this interlocutory application
falls to be dismissed with Dlamini ordered to pay the
costs de bonis
propriis on a punitive scale.
Under
this case number an order was also made, this time by LEGODI, J, on
31 October 2011 granting Absa leave to intervene in the
particular
application and reserving the costs of those proceedings. When making
the appropriate order at the end of this judgment,
I will also order
Dlamini to pay those reserved costs.
The
counter-application launched by Absa collectively under case no
24593/2011, 18836/1998 and 18225/1998
[50]
As a result of Dlamini's continued litigation against Absa Bank, in
breach of various orders of this court, the counter-application
was
brought by Absa in an effort to obtain some protection against this
ongoing harassment. It also appears from the record that
Absa has
spent upwards of R3 million in legal fees to counter and resist this
flood of vexatious and unwarranted litigation launched
by Dlamini
over the years.
[51]
The heading of the counter-application appears from the top of this
judgment. I have already mentioned that, during the hearing
before
me, I handed down an ex tempore judgment joining Tiveni as a sixth
counter-respondent and dismissing his
rule 30
application. As already
mentioned, I also granted an amendment of the relief sought in the
counter-application by introducing provision
for interdictory relief
sought against Tiveni after his joinder. I also granted a costs order
against Tiveni de bonis propriis
with regard to his abortive
rule 30
application and his opposition to the joinder and the amendment.
[52]
The relief now sought against Tiveni in the counter-application as a
result of the joinder and the amendment is the following:
"11A
The sixth counter-respondent is interdicted and restrained from
assisting the first counter-respondent (my note: this,
of course, is
Dlamini) (be it directly and/or indirectly) in breaching, and/or
acting in contempt of (be it directly and/or indirectly),
any order
of court.
1
IB The sixth counter-respondent is interdicted and restrained from
threatening, intimidating and/or harassing (be it directly
and/or
indirectly) the representatives of Absa Bank Ltd."
[53]
There is clear evidence, with reference to the relief sought against
Tiveni, that, over at least five years, he has been aiding
and
abetting his father, Dlamini, in pursuing this campaign of unbridled
contemptuous and vexatious litigation. There is clear
evidence on
oath, which I accept on the probabilities, that Tiveni has been
enrolling applications on the unopposed roll despite
the fact that
Absa had earlier entered an appearance to oppose those applications.
Moreover, there are indications that he has
on occasion removed court
files and issued threats against legal representatives, including,
for example, Mr Cavanagh who appeared
as counsel for the four
ministers cited as second to firth counter-respondents in this
counter-application. Mr Cavanagh filed a
verifying affidavit in this
regard.
Tiveni
filed a lengthy affidavit running into more than 70 pages, and, with
annexures, into some 246 pages. In the affidavit, which
is largely
difficult to understand given the grammatical shortcomings and the
language used, Tiveni makes derogatory statements
about all and
sundry, often accusing them of being liars, and describing court
orders and liquidation proceedings as flowing from
fraudulent
conduct.
Tiveni
says the following in paragraph 14.7 of his affidavit:
"I
never act in abuse of court process, simply because I am never
subject to any order and accordingly am not violating same.
Accordingly I have no business dealing with the counter-applicant or
engaged them in any manner to cause them to launch such an
action
against me."
It
is clear that he adopts the attitude that, because he is never cited
as a party, he cannot be accused of acting in contempt of
any orders.
In my view this remark, in itself, justifies the joinder of Tiveni
given his clear history of assisting his father
in this unlawful and
contemptuous conduct.
[54]
The joinder of the ministers of state as second to fifth
counter-respondents, was inspired by the fact that Absa experienced
a
great deal of difficulty in securing Dlamini's committal to prison
(on two occasions) after this court ordered such committal.
There is
evidence of magistrates and prosecutors refusing to give their
co-operation and there is evidence of Dlamini being released
prematurely without apparent good cause for such release. In the
counter-application, relief is sought against these ministers
to
ensure that their co-operation will be forthcoming in future in the
event of Dlamini being committed to prison again. I add
that the
ministers are not opposing the counter-application.
[55]
As to the existing orders sentencing Dlamini to imprisonment, they
are the following:
1.
On 20 July 2009, under four different case numbers involving
the
Kleindoornkop 1987 liquidators and Absa as applicants and
Dlamini as
respondent, PRELLER, J made the following order:
"1.
That the respondent is sentenced to 120 days imprisonment for
contempt of court.
2.
That the suspended sentence imposed in case no 51375/2007 on
19/11/2007 is brought into operation.
3.
That the respondent is committed to prison for a further period of
twelve months, which is suspended for a period of three years
on
condition that the respondent is not found to be in contempt of an
order of the High Court which contempt is committed during
the period
of suspension."
Dlamini
was also ordered to pay the costs on a punitive scale.
2.
On 14 October 2009 KEMP, AJ made the following order (only the
relevant portions are quoted):
"2.
That the order suspending the order committing the first respondent
to prison and as provided for in the order of his Lordship
Mr Justice
Preller, under case no 52225/2007, dated 29 July 2008 ... be uplifted
and that the first respondent be committed to
imprisonment for a
period of twelve months.
3.
That the first respondent be committed to imprisonment for a further
and additional period of twenty four months plus 3 suspended
for five
years on condition that the first respondent does not commit contempt
of court again (my note: the handwritten phrase
'plus 3' clearly
refers to a three year period. I was asked to make such a finding and
I hereby do so.)
4.
That the periods for which the first respondent is committed to
imprisonment be ordered to run consecutively.
5.
That the third respondent (and his representatives) (my note: this is
the Minister of Safety and Security), pursuant to any order
granted
by the above honourable court in respect of paragraphs 2 and 3 above
be ordered forthwith to take the first respondent
into custody
wherever he may be found and thereafter to deliver the first
respondent to the second respondent (or his representatives)
(my
note: this is the Minister of Correctional Services) as soon as
reasonably possible.
6.
That the second respondent (and his representatives) be ordered to
forthwith take the first respondent into custody and commit
and
detain the first respondent in such prison as the second respondent
may direct and in accordance with
any
orders which may be granted in terms of paragraphs 2, 3 and 4 above.
7.
That the first respondent be detained by the second respondent (and
his representatives) for the period provided for in terms
of
paragraphs 2 and 3 (as read with paragraph 4) above.
8.
That the first and second respondents are directed and authorised to
do all things necessary in order to give effect to any orders
granted
in terms of paragraphs 2 to 7 above and additionally, and if
necessary, to procure the fingerprinting of the first respondent,
by
the use of appropriate force if required, alternatively that the
second respondent be ordered to commit and detain the first
respondent in such prison as the second respondent may direct,
without the necessity of having his fingerprints taken."
[56]
As already indicated, Dlamini was committed on two occasions but,
through lack of co-operation by the ministries and their
officials,
was released prematurely in both instances. The relief sought in a
proposed draft order which I will deal with when
handing down my
order at the end of this judgment, is aimed at preventing a
recurrence of this state of affairs.
[57]
I add that there are clear indications on the papers that Dlamini may
not be lawfully in the country but may be an illegal
visitor. In the
proposed draft Absa also asks for relief in the form of directives to
the ministry of Home Affairs and relevant
officials to investigate
this issue.
[58]
I also point out, without dwelling on the details, that there are
comprehensive submissions made in the affidavits filed on
behalf of
Absa that Dlamini's vexatious conduct extends to other divisions of
the High Court of South Africa. The uncontested details
are spelt out
in pp482 to 485 of the record. Copies of court orders made in those
jurisdictions are attached. It is not necessary
to repeat the
details. In the proposed order provision is made for directives to
the Registrar to notify the Registrars in other
courts of the details
of the order which I am about to make.
[59]
I am satisfied that a proper case has been made out for the relief
sought in the counter-application (subject to certain qualifications
which I propose incorporating in the order that follows hereunder).
The
orders
[60]
I make the following orders:
1.
In case no 24593/2011:
1.1
The application is dismissed.
1.2
The first applicant, D M Dlamini, is ordered to pay the costs de
bonis propriis, on a scale as between attorney and client.
2.
In case 18836/1998:
2.1
The two interlocutory applications are dismissed.
2.2
The second applicant, D M Dlamini, is ordered to pay the costs de
bonis propriis on the scale as between attorney and client.
3.
In case no 18225/1998:
3.1
The interlocutory application is dismissed.
3.2
The second applicant, D M Dlamini, is ordered to pay the costs de
bonis propriis on the scale as between attorney and client,
which
costs will include the costs reserved in terms of the order dated 31
October 2011.
4.In
the counter-application under cases 24593/201L 18836/1998
and
18225/1998:
4.1
The second, third, fourth and fifth respondents are joined in the
counter-application as parties to the proceedings.
4.2
It is declared that the first respondent in the counter-application
(Dumisa Mbusi Dlamini) is in breach of and contempt of the
following
orders issued by this court:
4.2.1
the order under case no 12429/2007 of 22 May 2007;
4.2.2
the order in case no 19693/2007 on 30 October 2007; and
4.2.3
the order in case no 50732/2008 on 14 September 2010.
4.3
In respect of the order under case no 41607/2009 dated 14
October
2009:
4.3.1
it is declared that the reference to number "3" in the
manuscript portion of paragraph 3 of such order is reference
to a
period of "3 (three) years";
4.3.2
the order suspending the order committing the first respondent in the
counter-application ("Dlamini") to prison,
and as provided
for in paragraph 3 of the said order of 14 October 2009 is uplifted
and Dlamini is hereby committed to imprisonment
for a period of three
years.
4.4
Dlamini is committed to imprisonment for a further period of 5 (five)
years.
4.5
The periods of committal referred to in the preceding two
subparagraphs are to run consecutively.
4.6
Dlamini is committed to imprisonment for an additional period of 5
(five) years suspended for a period of 10 (ten) years on
condition
that he is not again found to be in contempt of court during the
period of suspension.
4.7
The second respondent in the counter-application (and his
representatives) are directed and ordered to take all and any steps
as may be necessary and/or required:
4.7.1
to take Dlamini into custody and to commit and detain him in such
prison as the second respondent in the counter application
may direct
and in accordance with the orders granted in 4.3.2 and 4.4 above (as
read with 4.5 above); 4.7.2 to ensure that Dlamini
remains in prison
for the full periods stated above, subject to any orders to the
contrary which may be made by parole authorities
or other authorised
officials or bodies.
4.8
The third respondent in the counter-application (and his or her
representatives) are directed and ordered to take Dlamini into
custody wherever he may be found and thereafter to immediately
deliver him to the second respondent in the counter-application.
4.9
The fourth respondent in the counter-application (and his or her
representatives) are interdicted and restrained from interfering
with, and/or frustrating, any orders of court in respect of the
committal of Dlamini to imprisonment for contempt of court.
4.10
In respect of the fifth respondent in the counter-application:
4.10.1
the fifth respondent in the counter-application is directed and
ordered to forthwith investigate and establish the status
and
legality of the presence and/or residence of Dlamini in the Republic
of South Africa, and in so doing to have regard to, inter
alia,
Diamines contempt of various orders of this court;
4.10.2
the fifth respondent in the counter-application is directed and
ordered to deliver a written report to this court within
sixty days
of the granting of this order detailing all investigations undertaken
and findings made; 4.10.3 in the event of Dlamini
being found to be
illegally in the Republic of South Africa the fifth respondent in the
counter-application is directed and ordered
to take appropriate steps
following such finding.
4.11 Save with the written permission
and/or directives to the contrary, of the Judge-President, or Deputy
Judge-President of the
relevant High Court of South Africa (and which
includes the relevant High Court with jurisdiction over the area
where any inferior
court is situated):
4.11.1
all and any proceedings of whatsoever nature instituted by the first
respondent in the counter-application against whomsoever,
be it in
his personal and/or representative
capacity (and/or directly
and/or indirectly) in any division of the High Court of South Africa
and/or in any inferior court, be
stayed and which proceedings
include, but are not
limited in any respect to:
(a)
the application under case no 24593/2011; and
(b)
all and any interlocutory applications under case no 18836/1998 and
18225/1998;
4.11.2
Dlamini shall not take any further steps whatsoever in respect of any
proceedings referred to in 4.11.1 above
(including
but not limited to the issuing or causing to be issued of any
notices, writs, subpoenas and the execution of such writs
and
subpoenas) without the necessary permission as described in 4.11
above; 4.11.3 Dlamini shall not institute and/or pursue in
any manner
whatsoever any proceedings against anyone whomsoever, be it in his
personal and/or representative capacity (and/or directly
and/or
indirectly) in any division of the High Court of South Africa and/or
any inferior court without the required permission
as described in
4.11 above.
4.12
Any process issued by the Registrar and/or such office at the
instance, request and/or on behalf of Dlamini (and/or any entity
who
he purports to represent) and/or any order and/or writ of execution
granted and/or issued against the applicant (Absa) in the
counter-application in favour of Dlamini (and/or any entity who he
purports to represent) will not be of any force and effect and/or
will not be executable unless signed by the Judge-President, or
Deputy Judge-President of this division.
4.13
The sixth counter-respondent is interdicted and restrained from
assisting Dlamini (be it directly and/or indirectly) in breaching,
and/or acting in contempt of (be it directly and/or indirectly), any
order of court.
4.14
The sixth counter-respondent is interdicted and restrained from
threatening, intimidating and/or harassing (be it directly
and/or
indirectly) the representatives of Absa Bank Ltd.
4.15
Dlamini and the sixth respondent in the counter-application, jointly
and severally, are ordered to pay the costs of this
counter-application,
including the costs flowing from the employment
of two counsel where applicable, de bonis propriis, on the scale as
between attorney
and client.
4.16
The Registrar of this court is requested to dispatch copies of this
order to all the Registrars of all the divisions of the
High Court of
South Africa.
WRC
PRINSLOO
JUDGE OF THE NORTH GAUTENG HIGH COURT
24593-2011
HEARD
ON: 30 JULY TO 1 AUGUST 2012
FOR
ABSA: GWAMM
INSTRUCTED
BY: LOWNDES DLAMINI ATTORNEYS
FOR
THE 2nd TO 5th RESPONDENTS: MR CAVANAGH
INSTRUCTED
BY: STATE ATTORNEY
FOR
THE 1st AND 2nd RESPONDENTS IN INTERLOCUTORY APPLICATIONS: G S GOODES
INSTRUCTED
BY: DE JAGER INC