Papane v Van Tonder and Others (6066/2008) [2009] ZAFSHC 50 (9 April 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 50
|

|

Papane v Van Tonder and Others (6066/2008) [2009] ZAFSHC 50 (9 April 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 6066/2008
In
the case between:
ISRAEL SABATA
PAPANE
Plaintiff
and
GEDIONE VAN
TONDER
1
st
Defendant
HADIFELE MOFOKENG
2
nd
Defendant
PAUL TATI
3
rd
Defendant
SOUTH AFRICAN
BROADCASTING
4
th
Defendant
CORPORATION
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
22 JANUARY 2009
_____________________________________________________
DELIVERED ON:
9 APRIL 2009
_____________________________________________________
[1] The matter came to
this court by way of action proceedings. The plaintiff sued the four
defendants for the payment of R4,5m
and ancillary relief he sought as
compensation for damages. The cause of action, according to the
particulars of claim, was breach
of contract of service. The
plaintiff initiated the action on the 22
nd
September 2008.
[2] The action was
defended by all the defendants. Apart from the substantive plea on
the merits the defendants raised two special
pleas. On the strength
of such special pleas the defendant prayed that the plaintiff’s
action be dismissed with costs.
[3] Besides the special
pleas, the defendant also pleaded on the merits. In their main plea,
they admitted that the plaintiff was
once in the employ of the 4
th
defendant but denied the allegation that his dismissal constituted
breach of the terms of his contract of employment. They averred
that
the termination of his contract of employment was lawful because he
had committed a workplace transaction for which he was
charged,
disciplined, found guilty and dismissed.
[4] Both of the special
pleas of the defendants were filed simultaneously with their
substantive plea on the 31 October 2008. Subsequent
to this the
plaintiff brought two applications against the defendant. One for
default judgment and the other for the striking
out, in turn the
fourth defendant also brought an application to have the plaintiff
declared vexatious litigant.
[5] I would like to
record the historical background of the matter in this court for the
sake of expediency, not that it is really
necessary to do so.
5.01 On 22 September 2008
plaintiff’s summons was issued.
5.02 On 27 October 2008
defendant’s notice of intention to defend was filed.
5.03 On 27 October 2008
plaintiff applied for default judgment - registrar made an order
i.t.o. Rule 31(5)(v).
5.04 On 31 October 2008
the plea of the defendant filed.
5.05 On 7
th
November 2008 plaintiff’s notice of motion filed - authority of
defendants’ attorneys challenged.
5.06 On 12 November 2008
defendants filed notice of motion in term of section 2, Act No. 3 of
1956.
5.07 On 14 November 2008
attorneys for the defendants filed special power of attorney.
5.08 On 18 November 2008
plaintiff filed notice of bar in terms of Rule 26.
5.09 On 18 November 2008
plaintiff filed notice of opposition – Section 2, Act No. 3 of
1956.
5.10 On 18 November 2008
defendants answering affidavit filed in connection with Rule 26.
5.11 On 18 December 2008
plaintiff’s notice of set-down filed in connection with default
judgment - Rule 31(5)(a).
5.12 On 31 December 2008
plaintiff’s index filed, Rule 58.
5.13 On 8
th
January 2009 plaintiff’s default judgment application removed from
the roll – Cillié J.
5.14 On 9
th
January 2009 plaintiff’s answering affidavit was served.
5.15 On 9
th
January 2009 plaintiff’s notice of set-down was filed - default
judgement - Rule 31(1) application referred to the opposed motion

court – Moloi AJ.
5.16 On 16
th
January 2009 defendants’ notice of set-down filed in connection
with the vexatious application.
5.17 On 15
th
January 2009 plaintiff’s applications postponed – 21 January
2009, Moloi AJ.
5.18 On 16
th
January 2009 defendants filed an index of the record.
5.19 On 19
th
January 2009 plaintiff’s written complaint about the indexing
received.
5.20 On 19
th
January 2009 plaintiff filed his own index.
5.21 On 20
th
January 2009 defendants’ heads of argument filed.
[6] On Thursday the 22
nd
January 2009 the matter served before me. The plaintiff had no legal
representative. He appeared in person. On behalf of the
defendants
appeared Mr. Lengane. There were three applications before the
court, two by the plaintiffs and one by the fourth defendant.
First
was the plaintiff’s application to strike out the notice of
intention to defend as well as the plea and second was the

plaintiff’s request for default judgment against the defendants.
Third was the application of the 4
th
defendant to have the plaintiff declared a vexatious litigant and
other ancillary relief.
[7] As regards the
plaintiff’s application for default judgment the sheriff served the
summons upon the first defendant on the
8
th
October 2008. Precisely when it was served on the rest of the
defendant does not appear. On the 27 October 2008 after the expiry

of the 10 day period of
dies
injuciae,
the
defendants filed a notice of the intention to defend the action.
[8] On the very same day,
in other words 27 October 2008, the plaintiff filed his application
for judgment by default. Still on
that selfsame day the plaintiff
appeared before the assistant registrar, Ms Ria Chetty, where he
sought instant justice. It would
seem she declined to instantly
grant default judgment in favour of the plaintiff. Instead she
directed in terms Rules 31(5)(vi)
that the application for default be
enrolled for hearing in an open court. This was not immediately done
by the plaintiff. A
few days after the registrar’s direction the
defendants filed their plea.
[9] On the 18
th
December 2008 the plaintiff set the application for default judgment
down. He did not serve the notice of set-down on the defendants.

Subsequently the plaintiff’s application for default judgment
served before Cillié J on the 8
th
January 2009. On that day it was removed from the roll. It appears
to me that Cillié J required that the defendants should
be
served and notified of the plaintiff’s application for default
judgment.
[10] The next day, on the
9 January 2009 the plaintiff served and filed the require notice of
set-down for hearing of his application
for default judgment. The
matter served before Moloi AJ on the 15 January 2009 in the unopposed
motion court. He postponed the
plaintiff’s application for hearing
in the opposed motion court. The defendants were apparently
represented and there were clear
indications that they were seriously
determined to oppose the grant of default judgment against them.
[11] On Thursday, the
22
nd
January 2009 the plaintiff’s application for default judgment was
argued before me. The crux of the plaintiff’s case was seeing
that
the defendants had failed to deliver their notice of intention to
defend within 10 days after the service of the summons,
the plaintiff
was entitled to proceed further against them. He contended that
their belated notice should simply be ignored.
[12] The plaintiff’s
contention has no substance. It is apparent that he did not read the
whole of the relevant rule. The defendant
in every civil action must
be allowed at least 10 days after the sheriff has served the summons
within which to deliver a notice
of intention to defend – Rule
19(1). But that is not where it all ends. Rule 19(5) takes the
matter further. It reads as
follows:
“
(5) Notwithstanding the provisions
of subrules (1) and (2) a notice of intention to defend may be
delivered even after expiration
of the period specified in the
summons or the period specified in subrule (2), before default
judgment has been granted: Provided
that the plaintiff shall be
entitled to costs if the notice of intention to defend was delivered
after the plaintiff had lodged
the application for judgment by
default.”
[13] Now, in the instant
case the defendants’ notice of intention and the plaintiff’s
application for default judgment were
both filed on one and the same
day, viz 27 October 2008. The defendants’ notice was apparently
served on the plaintiff at 14h26,
therefore it must have been filed
soon afterwards. It does not appear at what time the plaintiff’s
application was filed. But
whether the plaintiff’s application was
filed before or after the defendant’s notice is of no substantive
significance. What
is of importance is that even if the defendant’s
notice was filed after the plaintiff had already lodged his
application for
default judgment the defendant’s notice would
prevail over the plaintiff’s application. The plaintiff would
merely be entitled
to claim the wasted costs from the defendant.
[14] Let me assume for
the sake of argument in favour of the plaintiff that the defendants
did not file any notice of intention.
Even if that was the real
scenario I would still not grant default judgment. The situation as
on the 27 October 2008 would have
been governed by Rule 31(2)(a)
since the plaintiff’s action was based on an illiquid claim, in
other words, damages. If the
defendants have not filed notice of
intention to defend any non-trial judgment such as default judgment
has to be formally enrolled.
Even when the defendant has failed to
deliver notice of intention and it is not necessary for the notice of
setdown to be served,
it is still necessary to file such notice of
setdown - Rule 31(4).
[15] The practical
importance of this rule lies in the obvious fact that the registrar
has an important administrative obligation
to regulate, not only the
functioning of the courts, but that of its supporting structures to
ensure operational efficiency. The
smooth functioning of the court
can be seriously undermined if lawyers or litigants were allowed to
knock at the door of the registrar’s
office at any time without
prior formal notice with instant demands or requests for the grant of
default judgment. This is precisely
what happened here. No less
than five days notice has to be given to the registrar for such
purposes.
[16] Where as in this
case, the application for default judgment concerns an illiquid
claim, the court and not the registrar first
has to hear oral
evidence in order to decide whether to grant such judgment or not.
The procedure followed by the plaintiff was
therefore irregular. Be
that as it may, I did not find it necessary to afford the plaintiff
an opportunity to give any evidence
on oath. Doing so would have
served no useful purpose in the circumstances.
[17] There are a few
other worrying features, about the plaintiff’s application for
default judgment. For instance the given
address of the second,
third and 4
th
defendants were all in Johannesburg. Yet there was no proof of
service upon any of them when the plaintiff filed his application
for
default judgment on the 27 October 2008. Only the third defendant
was properly served with the summons on the 8
th
October 2008. Elsewhere in the fourth defendant’s papers an
averment was made that the second and the third defendants were
no
longer in the employ of the fourth defendant. The plaintiff’s
assertion that the defendant (not defendants) having being
duly
served with the summons on the 8
th
October 2008 is only true in respect of the first defendant. Since
the plaintiff has no proof of service in respect of the last
three
defendants he cannot assert, as he does, that the time for the
defendants to enter appearance to defend expired on the 21
October
2008. Similarly the plaintiff cannot, for the same reason, assert
that the defendants had failed to enter an appearance
to defend when
there is no proof that they were ever served with the summons in the
first place.
[18] In the summons the
plaintiff instructed the sheriff that the first defendant was an
employee of the third defendant but in
the particulars of claim he
described the same person as an employee of the fourth defendant. In
the light of all these discrepancies
no court would have granted
default judgment in favour of the plaintiff. The fact of the matter
is that the defendants filed their
notice before default judgment was
properly enrolled.
[19] There is yet one
more aspect I have to comment on about the plaintiff’s particulars
of claim. No where in this important
founding pleading does the
plaintiff say a word about the damages he has suffered. The amount
claimed appears for the first time
from nowhere in the section of the
prayers at the very end of the particulars of claim. It follows from
this alone that the plaintiff’s
summons was fatally defective.
Certainly no default judgment could be granted on such defective
summons. It was not open for
the plaintiff to contend in his
argument that such defect was cured by several annexures to his
application for default judgment.
In my view even if it could be
done in that way, there was absolutely nothing in any of those
annexures to redeem the plaintiff’s
application for default
judgment. I would therefore dismiss the plaintiff’s application
for default judgment with costs.
[20] As regards the
plaintiff’s application to strike out the notice of intention to
defend much of my comments in connection
with the default judgment
especially those as set out in paragraphs 17 and 19 apply equally
well here. In my view it cannot be
contended with conviction that
the second, third and fourth defendant were out of time when they
together with the first defendant
filed their joint notice of
intention to defend. However, in this regard the thrust of the
plaintiff’s case is not so much the
alleged lateness of such notice
but rather the alleged lack of authority on the part of Maserumule
Attorneys and of cause Honey
Attorneys to act on behalf of the
defendant. As already pointed out the plaintiff raised this
objection for the first time on
the 7 November 2008, vide paragraph
4.05
supra
.
[21] It is not peremptory
for the defendant’s attorneys to file together with the defendant’s
notice of intention to defend
proof that they have been duly
authorised to act on behalf of the defendant in a given case. It is
only when the plaintiff’s
questions their mandate that they become
obliged to deliver written proof of their mandate. This is precisely
what the attorneys
for the defendants did in this case. They
delivered the requisite notice, vide paragraph 5.02
supra
.
The plaintiff challenged their mandate – vide paragraph 5.05
supra.
They then served and filed the special power of attorney to proof
their mandate – vide paragraph 5.07
supra.
[22] Once again it can be
seen that the plaintiff failed to follow the correct procedure. He
was obliged to give the defendants
no less than 5 days notice to
deliver written proof that they have appointed Maserumule
Incorporated Attorneys to represent them
in these proceedings. The
plaintiff had no automatic right to approach the court by way of an
application to strike out the defendant’s
notice of intention to
defend and the plea on the ground that no written proof of such
representative authority was annexed to
such notice.
[23] For the reasons
enumerated above I am inclined to dismiss the plaintiff’s
application to strike out with costs. On the facts
no court will
grant such an application. About that I am certain. The notice of
the defendants stands. So does their plea.
[24] As regards the
defendant’s notice of motion it would be premature to dwell on the
merits as set out in the plea. I shall
confine this judgment to the
special pleas they raised. The one was
res
iudicata
the other was prescription.
[25] In the first place
the special plea of jurisdiction of
res
iudicata
.
At paragraph 10 of the particulars of claim the plaintiff alleged:
“
10.
The plaintiff was found guilty by the
third defendant for refusing to work
night
shift
and his service
contract was terminated on the 22
nd
September
1999
by the third defendant on a
false
pretext
that the
plaintiff’s service contract was terminated by Ms.
Cecilia
Khuz
wayo as she then was
(
SENIOR GENERAL MANAGER
HUMAN RESOURCES
) Annexure
“B” is hereto.”
[26] At paragraph one of
the plea the defendants admitted part of the aforegoing allegation
but averred that the same issue had
previously been raised between
the same parties, adjudicated and finalised. I deemed it important
to incorporate paragraph 1 of
the defendant’s plea as is.
“
1.
Res
Judicata
The plaintiff’s action arises out
of the termination of his employment contract by the 4
th
Defendant on or about 22 September 1999.
In May 2000, the Plaintiff
challenged the termination of his employment contract by the 4
th
Defendant by referring a dispute to the CCMA in terms of
section
191
of the
Labour Relations Act, 66 of 1995
, as amended (“the
LRA”), under case no FS 16219.
On 13 December 2002, the CCMA
decided that the termination of Plaintiff’s employment contract
by the 4
th
Defendant was procedurally and substantively fair.
In 2003, the Plaintiff instituted an
application in the Labour Court to review and set aside the award
issued by the CCMA on
13 December 2002. On 14 October 2004, the
Labour Court dismissed the Plaintiff’s review application and
upheld the decision
of the CCMA.
The Plaintiff appealed against the
judgment of the Labour Court to the Labour Appeal Court. On 20
March 2007, the Labour Appeal
Court also found the termination of
the Plaintiff’s employment contract to have been fair and
dismissed the appeal.
On 30 July 2007 the Plaintiff
applied for leave to appeal to the Supreme Court of Appeal. On 20
November 2007 the Supreme Court
of Appeal refused the Plaintiff
leave to appeal.
On 03 December 2007 the Plaintiff
applied to the Constitutional Court for leave to appeal against the
judgment of the Labour
Appeal Court. On 18 February 2008, the
Constitutional Court dismissed the application for leave to appeal.
During February or March 2008 the
Plaintiff applied to the Constitutional Court for the rescission of
its decision to dismiss
his application for leave to appeal. On 22
May 2008, the Constitutional Court dismissed his application for
rescission.
The case between the Plaintiff and
the Defendant herein has already been decided by the CCMA and by
the other courts as stated
above.
In the premises, the Plaintiff’s
claim should be dismissed with costs.”
[27] As can be seen or
ascertained through the history of the court records as conveniently
summed up in paragraph 5
supra
the plaintiff did not replicate instead he took a number of steps
that had nothing or very little to do with the essence of the
plea.
[28] The fourth defendant
went a step further and filed an application in terms of section 2 of
the Vexatious Proceedings Act, No.
3 of 1956 – vide paragraph 5.06
supra
.
It seeks an order declaring the plaintiff a vexatious litigant and
restraining him from instituting any future legal proceedings
against
the fourth defendant without the leave of the court concerned. The
fourth defendant also seeks an order setting aside
these current
proceedings.
[29] The fourth
defendant’s application is opposed – vide paragraph 5.09
supra
.
The grounds of the plaintiff’s opposition are very difficult to
ascertain. His answering affidavit which he wrongly labelled
as a
replying affidavit is riddled with all sorts of allegations, caselaw,
legal rules, legal principles, constitutional provisions,

insinuations and outright accusations against whosoever crossed his
path in the corridors of justice throughout his litigious journey

over the past ten long years.
[30] The only meaningful
point he made was his argument that the 4
th
defendant’s deponent was not duly authorised to represent the 4
th
defendant. Indeed there was no specific resolution annexed to the
founding affidavit authorizing Mr T Mathibe to act on behalf
of the
4
th
defendant. However, his averment that he was the general manager in
the litigation department was not attacked. I am of the view
that
generally in the commercial world general managers do have such
general representative powers to defend actions against their

employers. Moreover, during the past ten years the 4
th
defendant has consistently defended on various platforms, all sorts
of actions instituted by the plaintiff. Therefore, it is unthinkable

that this particular action would go undefended.
[31] By virtue of my
discretionary powers, I condoned the omission by the 4
th
defendant in much the same way as I have condoned the plaintiff’s
failure to file written heads of argument. It was in the interest
of
justice to deal with the substance rather than the form of this
controversy that has besieged the counts for a decade. The

circumstances of this case are such that I could have heard this
application only because it was quite decisive and desposive of
the
entire matter. But I allowed the plaintiff to have his day in court.
[32] The fourth
defendant’s deponent, Mr Thabang Mathibe, the general manager in
the litigation department sketched the following
chronological
background of the fourth defendant’s legal battles with the
plaintiff.
“
7. The Respondent was employed by
the Applicant as a Production Assistant on 01 June 1989. He was
charged and dismissed by the
Applicant on 22 September 1999 after he
was found guilty of a serious misconduct of refusing to work night
shifts. The Respondent
was contractually bound to shifts and in
breach when refusing to work night shift.
8. After his dismissal, the Respondent
referred an unfair dismissal dispute to the CCMA in terms of the
Labour Relations Act, 66 of 1995
, as amended (“the LRA”). The
dispute was arbitrated under the case number
FS16219
IN 2002. The CCMA issued an arbitration award on 13 Desember 2002 in
which the dismissal of the Respondent was found to have been
both
procedurally and substantively fair. The said award is attached
hereto marked “
P 1
”.
9. The Respondent was not satisfied
with the findings and decision of the CCMA and launched review
proceedings to the Labour Court.
The Labour Court upheld the CCMA
decision and dismissed the review application on 14 October 2004. A
copy of the judgment of
the Labour Court in this regard is attached
hereto marked “
P2
”.
10. The Respondent appealed against
the judgment of the Labour Court to the Labour Appeal Court. His
appeal was dismissed on 20
March 2007. The judgment of the Labour
Appeal Court is attached hereto marked “
P3
”.
11. He was again not satisfied with
the judgment of the Labour Appeal Court and launched an application
to rescind same. On 29
June 2007, the rescission application was
dismissed by the Labour Appeal Court as it was irregular. A copy of
the Labour Appeal
Court judgment in this regard is attached hereto
marked “
P4
”.
12. On 30 July 2007 the Respondent
approached the Supreme Court of Appeal seeking leave to appeal
against the judgment of the Labour
Appeal Court regarding his
dismissal by the Applicant.
13. Despite the Applicant having
delivered opposing papers to the application for leave to appeal, the
Respondent brought an application
for default judgment. The
applications for leave to appeal and default judgment were both
dismissed with costs by die Supreme
Court of Appeal on 20 November
2007. A copy of the court order in this regard is attached hereto
marked “
P5
”.
14. On 03 December 2007, the
Respondent approached the Constitutional Court seeking leave to
appeal against the judgment of the
Labour Appeal court that upheld
the CCMA award. A copy of the Respondent’s application for leave
to appeal to the Constitutional
Court is attached hereto Marked “
P6
”.
15. The Constitutional Court dismissed
the Respondent’s application on 18 February 2008. A copy of the
court order regarding
same is attached hereto marked “
P7
”.
16. During February or March 2008, the
Respondent launched an application to the Constitutional Court
seeking to rescind its judgment
dismissing his application for leave
to appeal. The Constitutional Court dismissed the rescission
application on 22 May 2008.
A copy of the Court order in this regard
is attached hereto marked “
P8
”.”
[33] Neither in his
answering affidavit nor in his legal argument could the plaintiff
persuasively dispute the aforegoing hard facts
other than to hold the
decisions of all those legal forums in contempt. He accused,
ridiculed and insulted the judges’ right
from the top of judicial
hierarchy – Judge Langa CJ down to the very first rung – Moloi AJ
and many other judges between the
two extremes – vide paragraph
5.19
supra
.
[34] Mr Lengane contented
on behalf of the fourth defendant that the plaintiff has not only
being unduly persistent in instituting
a plethora of legal
proceedings against the fourth defendant, but that he was now
persecuting his client concerning the same cause
of action, a
creature long dead and buried. In spite of been unsuccessful at each
and every stage along the way, he kept on bouncing
back although the
proceedings he brought were found groundless and devoid of any
prospects of success let alone genuine merits
for eventual victory.
[35] I am persuaded by Mr
Lengane’s submission. Despite the fact that various forums have
found that the respondent’s complaint
against the applicant was
groundless, the respondent has once again instituted an action in
this court to determine the same issue
upon which various forums have
already pronounced. At the hearing of this current application the
question in the case in respect
of this first special plea was
whether or not the issue raised in the summons had already been
previously raised and decided as
between these same parties. I am of
the firm view that it was, and because it was, the matter is in legal
parlace,
res
judicata
.
Accordingly I find that the special plea of
res
judicata
is a conclusive answer to the plaintiff’s summons and declaration.
I would, therefore, set the current proceedings aside.
[36] The plaintiff, the
first, second and third defendants were at all times material to this
course of action fellow employees.
They were all in the employ of
the fourth defendant. The three defendants were closely involved in
the workplace disciplinary
hearing where the plaintiff was accused of
misconduct. Seemingly the first, second and third defendants acted
as the prosecutor,
complainant and the chair respectively. Therefore
it is quite clear that the real parties in this whole case are the
plaintiff
and the fourth defendant. Throughout the entire history of
this dispute which stretches back to the 22 September 1999, the
parties
are the same and the plaintiff in the current action seeks
precisely the same order as in the original proceedings, that is to
say an order declaring the determination of his contract of
employment unlawful coupled with a claim for compensation.
[37] In the second place
the fourth defendant pleaded that the plaintiff’s claim had become
prescribed. The averments pertinent
to this plea were the following:
“
2.
PRESCRIPTION
The 4
th
Defendant terminated the Plaintiff’s contract of employment on 22
September 1999.
In his Particulars of Claim, the
Plaintiff alleges that the Defendants breached his contract of
service by terminating it on
22 September 1999.
The summons was issued on 22
September 2008.
In terms of
section 11(d)
of the
Prescription Act 68 of 1969
, Plaintiff’s claim prescribed on or
about 23 September 2002.
2.5 The Defendants accordingly pray
that the Plaintiff’s claim be dismissed with costs.”
[38] The plaintiff failed
to deal with the special plea in his answering affidavit. However,
during argument he contended, rather
strangely, that his claim had
not prescribed. He advanced an absurd argument that his course of
action are aroused not on the
27 September 1999 when his contract of
employment was terminated but on the 20
th
March 2007 approximately 7,5 years later when the Labour Appeal Court
dismissed his appeal. I have no hesitation in upholding
Mr Lengane’s
submission that the matter is not only
res
judicata
but that it has also become prescribed.
[39] A number of forums
have consistently found against the plaintiff. Without any
exception, they all came to one and the same
conclusion that his
claim against the fourth defendant was groundless. All this
unfavourable decisions notwithstanding, the plaintiff
has gone back
to rewind the clock. He has now taken a detour this way – to
institute in this court an old action afresh to determine
the same
expired issue upon which so many other forums have already pronounced
their decisions.
There is substance in
the submission that the action which the plaintiff brought to this
court epitomizes the sort of an abuse
of the court process against
which the court must invoke its inherent powers to protect itself,
our formal law system and the proper
administration of justice.
[40] I am persuaded that
the facts as set out in the applicant’s founding affidavits
(defendants) read together with the tone
of the respondent’s
answering affidavit (plaintiff) clearly demonstrate the respondent’s
sole intention to harass, annoy and
financially prejudice the
applicant, his former employer. The endless, persistent and
groundless acts of harassment, annoyance
and prejudice depict the
respondent as a classical example of a vexatious litigant. See
COHEN
v COHEN & ANOTHER
2003 (1) SA 103
(C) paragraph 14,
ABSA
BANK LIMITED v DLAMINI
[2007] ZAGPHC 241
;
[2008] 2 ALL SA 405
(T) paragraphs 19 – 20,
AFRICAN
FARMS AND TOWNSHIPS LTD v CAPE TOWN MUNICIPALITY
[1963] 3 ALL SA 20
(AD).
Any litigation more
frivolous, improper and abusive than this particular litigation
appears rare to find.
[41] The applicant
reasonably apprehends that the respondent would probably not abide by
the decision of this court. His track
record speaks for itself. The
fearful belief of the applicant that the respondent will probably
institute fresh proceedings elsewhere
in the future is not without
substance. Such likelihood is more probable than not. The
respondent’s vexatious appetite for
persistent, frivolous and
abusive litigation is highly implicated. The purpose of
section 2
,
Vexatious Proceedings Acts, No. 3 of 1956 is designed to eradicate
such persistent abuse of the court process.
[42] The purpose of this
legislation is not to deny a litigant the right of access to court
services. To screen and not to bar
a vexatious litigant, who has
persistently and without any reasonable ground instituted hopeless
proceedings, is the prime evil
the legislation was enacted to
achieve. Such relative screening, as opposed to absolute barring,
constitutes justifiable limitation
of a vexatious person’s right of
access to the civil justice system.
[43] This screening
mechanism is necessary to protect two important interests. Firstly
the particular individual interests of the
victim of vexatious
litigation who has repeatedly been subjected to endless and senseless
acts of harassment, embarrassment and
financial prejudice occasioned
by unmeritorious litigation. Secondly the general public interest in
the effective functioning
of the courts and in the proper
administration of justice unimpeded by the groundless and vexatious
proceedings that fruitlessly
clog the civil justice system. See
BEIMASH
& ANOTHER /v ERNEST & YOUNG AND OTHERS
1999 (2) SA 116
(CC) at para 15.
[44] In the circumstances
I am inclined to restrain the respondent from instituting future
proceedings against the applicant without
the leave of the court or
forum concerned first being had and obtained.
[45] Accordingly I make
the following orders as regards action proceedings:
45.1 The plaintiff’s
application for judgment by default is dismissed with costs.
45.2 The plaintiff’s
application to strike out is likewise dismissed with costs.
45.3 The defendant’s
special pleas are upheld with costs.
45.4 The plaintiff’s
action is dismissed with costs.
[46] Accordingly, I make
the following orders as regards motion proceedings:
45.1 The respondents, in
other words, the plaintiff is declared a vexatious litigant.
45.2 The current
proceedings are hereby nullified and set aside.
45.3 The respondent, in
other words the plaintiff, is restrained from instituting future
proceedings against the applicant, in other
words, the fourth
defendant, in any court, tribunal or forum whatsoever without the
leave of such court, tribunal or forum first
being had and obtained.
45.4 The respondent is
ordered to pay the applicant’s costs relating to the vexatious
application.
______________
M. H. RAMPAI, J
On behalf of
plaintiff/respondent: Mr. P. I Papane
In person
BLOEMFONTEIN
On behalf of
defendant/applicant: Adv. M. Lengane
Instructed by:
Maserumule Inc.
JOHANNESBURG
Honey Attorneys
BLOEMFONTEIN
/em