Crawford-Browne v Manuel and Another (7390/2008) [2008] ZAWCHC 29 (2 June 2008)

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[2008] ZAWCHC 29
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Crawford-Browne v Manuel and Another (7390/2008) [2008] ZAWCHC 29 (2 June 2008)

IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
CASE NO.
7390/2008
In the matter between:
TERRY
CRAWFORD-BROWNE APPLICANT
And
TREVOR ANDREW MANUEL 1
ST
RESPONDENT
MARIA DA CONCEICO
RAMOS 2
ND
RESPONDENT
JUDGMENT
DELIVERED ON 02 JUNE 2008
DLODLO,
J
[1] The Applicant seeks an order directing the
Respondents to comply with an Order by Judges Blignault and Davis
given on 26 March
2003 under case number 5129/2002 (“the March 2003
Order”), in terms of which it was ordered that discovery be made,
within ten
(10) days, of documents containing the advice of the
International Offers Negotiating Team and Financial Working Group
(“the IONT
documents”) in respect of the Strategic Armaments
Acquisition Programme (“the arms deal”). Prayers 2 and 3 of the
Notice of
Motion seek an order that the Respondents be found to be in
contempt of the March 2003 Order, and an appropriate sanction in
respect
of such contempt.
[2] The Applicant is a retired international banker
previously employed by Nedbank. He was appointed by Archbishop
Desmond Tutu in
1994 to represent the Anglican Church at the Cameron
Commission of Inquiry into Amscor. In 1996 the Applicant was
appointed by Archbishop
Njongonkulu Ndungane to represent the
Anglican Church at the Defence Review conducted in Parliament during
1996 to 1998. It is in
the latter capacity that (according to the
Applicant) he gained experience and knowledge of the so-called “arms
deal” scandal.
The Applicant authored the book entitled “EYE ON
THE MONEY”. The First Respondent is the Minister of Finance (a
senior member
of the National Executive Committee) who was a member
of the cabinet’s sub-committee established to negotiate the arms
deal and
whose responsibilities in that instance (as I gather from
the Founding Papers) were the affordability and financing
arrangements
for the arms deal. The Second Respondent is a former
Director-General of the National Treasury. The Applicant appeared in
person
whilst Mr Pincus SC (assisted by Mr Goldberg) appeared for
both Respondents.
BACKGROUND
[3] The present application has its roots in an
application launched out of this Court by the Applicant and ECAAR
South Africa as
the two (2) Applicants, on 21 November 2001 under
case number 9987/2001 (“the main Review Application”) against
inter alia
the
President of the Republic of South Africa (as the First Respondent),
The First Respondent in this application (as the Second
Respondent)
and the National Government of the Republic of South Africa (as the
Third Respondent). In the main Review Application,
the Applicants
sought
inter alia
to
review and set aside the First Respondent’s (Second Respondent in
the main Review Application) decision, as the Minister of
Finance, to
enter into loan agreements relating to the arms deal and to declare
the arms deal null and void.
[4] The Second Respondent (in the present application),
in her capacity as Director General of the Treasury, deposed to the
Answering
Affidavits on behalf of the three (3) Respondents in the
main Review Application. Prior to the filing of his Replying
Affidavit in
the main Review Application, Applicants launched an
application (“the discovery application”) in terms of Rule 35
(12), for an
order compelling First and Third Respondents to make
discovery of certain documents referred to in the Answering
Affidavits filed
in the main Review Application. Included in the
documents sought were the International Offers Negotiating Team and
Financial Working
Group documents referred to in the discovery
application as the “eighth category of documents”. While the
discovery application
was brought under a different case number to
the main Review Application, the discovery application was
interlocutory to the main
Review Application. The discovery
application was opposed by First and Third Respondents.
[5] After argument, Judgment was handed down by
Blignault and Davis JJ and the March 2003 Order was granted. In terms
of this order,
First to Third Respondents were directed to make
discovery of the International offers Negotiating Team and Financial
Working Group
documents. It is the March 2003 Order which forms the
subject matter of prayer 1 of the Applicant’s Notice of Motion in
the present
application and in respect of which the Applicant now
alleges that the Respondents are in contempt of Court.
[6] Thereafter, the Second Respondent, on behalf of the
First to Third Respondents, filed an Affidavit in compliance with the
March
2003 Order. In such Affidavit of compliance, the Second
Respondent stated, in respect of the March 2003 Order, that:
“
In compliance with that Order, I produce on behalf
of the National Government Respondents the documents annexed hereto
marked “MRX”
and “MRY” respectively. I confirm that these
documents are the documents containing the advice of the
International Offers Negotiating
Team and the Financial Working Group
that were referred to in paragraph 36 of my Answering Affidavit in
the main application.”
It is clear that the point being made by the Second
Respondent was that she had deposed to the Answering Affidavit
wherein she referred
to the said advice given and the documents
containing the said advice; and she accordingly knew what documents
she had been referring
to in such Affidavit; and “MRX” and “MRY”
constituted such documents.
[7] The Affidavit of compliance was filed at Court and
sealed, pending an application (“the confidentiality application”)
launched
subsequently by the Respondents in the main Review
Application for an order directing that the March 2003 Order be
supplemented by
directions ensuring the confidentiality and
protection of the documents disclosed and produced. The
confidentiality application was
opposed by the Applicants to the main
Review Application but was eventually resolved by agreement between
the parties, which agreement
was incorporated in an Order of Court
dated 8 September 2003. In terms of this order, the confidentiality
application was withdrawn
by the Respondents and the applicants
provided various undertakings relating to the protection and
confidentiality of the discovered
documents. The documents were then
handed to the Applicants.
[8] Thereafter and on 12 September 2003, the Applicants
launched yet a further application
inter alia
for an Order declaring that the documents which formed the subject
matter of the March 2003 Order “were constituted by the whole
International Offers Negotiating Team and Financial Working Group’s
research, investigation and advice” and compelling discovery
thereof in terms of Rule 35 (7) (“the Rule 35 (7) application”).
In this application, Applicants alleged that First to Third
Respondents had failed to comply with the March 2003 Order and that
the compliance Affidavit did not in fact constitute compliance.
The
Rule 35 (7) application was opposed by the Respondents and the Second
Respondent in the present application (in her capacity
as
Director-General of the National Treasury) and again on behalf of
First and Third Respondent in the main Review Application, deposed
to
an Answering Affidavit.
[9] In this Answering Affidavit, the Second Respondent
stated that (through the Affidavit of compliance already filed),
there had
been full compliance with the March 2003 Order. Further,
the Applicant was provided with the document entitled ‘Affordability
Report’
which dealt extensively with the matters, which Applicants
had contended, ought to have been part of the documents referred to
in
the 26 March 2003 Court Order. There were no further interlocutory
applications relating to discovery and the main Review Application
was then argued. In the result the main Review Application was
dismissed with costs. Subsequent applications by the Applicants for
leave to appeal against the dismissal of the main Review Application,
both to the court
a quo
and the Supreme Court of Appeal were dismissed.
[10] On 11 February 2008, and under case number
2471/2008, the First Respondent launched an application in this Court
against the
Applicant (as Respondent) wherein he sought an interim
interdict restraining the Applicant from
inter
alia
publishing any matter in which it is
alleged that he is corrupt or has committed the crime of corruption
or any other criminal conduct
in connection with the arms deal,
pending an action for a final interdict. This application was opposed
by the Applicant. On 6 March
2008, Judge Le Grange handed down
Judgment in this matter and in terms of which the Applicant was
restrained in the terms sought
and referred to above. It was further
ordered that the First Respondent launch an action for a final
interdict within 20 days. The
First Respondent (as Plaintiff)
instituted the said action on 28 March 2008 under case number
5156/2008. The Applicant has filed
a notice of intention to defend
and was due to file his plea in the action by 14 May 2008.
THE ISSUES
[11] The issue which must be determined is whether or
not the First and Second Respondents complied with the March 2003
Order. If
answer to the aforegoing is in the negative, that is, if
this Court reaches a conclusion that the March 2003 Order was not
complied
with, then the next enquiry becomes whether or not the
Respondents have rendered themselves guilty of contempt of Court. In
view
of the nature of this application, I am of the view that it
remains prudent to summarize the contents of the Affidavits.
[12]
THE FOUNDING AFFIDAVIT
was deposed to by the Applicant himself. He prefixed the Founding
Affidavit by stating that he is the Defendant in case number
5156/2008
wherein summons were issued against him by the First
Respondent on 25 March 2008. The latter seeks a final interdict
restraining
the Applicant from publishing any matter alleging
corruption against him and/or that the first Respondent committed the
crime of
corruption or any other criminal conduct in connection with
the arms deal. The Applicant (“Mr Crawford-Browne”) averred in
this
Affidavit that he intended to file a plea and a counterclaim and
that consequently this application is urgent in that it is material
to his intention. Confirming that the Second Respondent deposed to an
Affidavit in the Review Application referred to above Mr
Crawford-Browne
proceeded to quote what she had stated in paragraph
53, namely:
“
the loan agreement he signed are self-standing
loan agreements with binding force and not dependent on any other
agreement entered
into by government”.
The above statement was attacked by Mr Crawford-Browne
and labelled as patently false tantamounting to insisting that a
mortgage has
nothing to do with the purchase of a house. According to
Mr Crawford-Browne, the First Respondent’s legal counsel verified
before
Blignault and Davis JJ that these documents were authentic.
Judges were, according to Mr Crawford-Browne, referred to
“Representation, covenant and Default
clauses” and it was confirmed that their terms were “potentially
catastrophic for South
Africa.”
The Judges
made an order for discovery in 2003. In Mr Crawford-Browne’s view
the Judges considered and rejected arguments by the
Second Respondent
on behalf of the First Respondent that it was not in the public
interest to reveal how the Government conducts
its financial
business.
[13] Mr Crawford-Browne referred to
“an
Affidavit of compliance”
subsequently
filed in the Review Application and bitterly complained that he was
barred from viewing the documents and his legal
advisers were neither
to copy them or communicate the contents thereof to Mr
Crawford-Browne. He stated that he, however, subsequently
came to
realize that these were not the International Offers Negotiating Team
and Financial Working Group papers ordered by the Court.
According to
him these were in fact the executive summary of the arms deal
affordability study which had been appended to Mr Crawford-Browne’s
own application made in 2001 to have the arms deal loan agreement set
aside.
[14] According to Mr Crawford-Browne, the Second
Respondent, in contempt of Court and with deliberate intent to
frustrate the Court’s
ruling, had returned his own documents to his
legal advisers instructing that they were neither to copy nor
communicate its contents
to Mr Crawford-Browne. Mr Crawford-Browne
made two applications for an order that the First and Second
Respondents were in contempt
of Court. It was, according to Mr
Crawford-Browne, as a result of his second application that
eventually the full arms deal affordability
study of two hundred and
twenty four (224) pages that went to cabinet in August 1999 was
produced. In his view this still fell far
short of the documents of
which discovery had been ordered by the Court.
[15] Elucidating further on these documents Mr
Crawford-Browne stipulated that the International Offers Negotiating
Team (IONT) papers
are referred to in chapter eight (8) of the Joint
Investigation Report into the Strategic Defence Procurement Packages
(the JIT report)
and these are listed in paragraph 8.3.2 as
inter
alia
:
minutes of the meetings held by IONT; minutes of
meetings held by the Ministers; Committee, the report submitted by
the Affordability
Team of the IONT; minutes of cabinet meetings; the
terms of reference of IONT; reports by IONT to the Ministers’
Committee; the
special review of the SDP by the Auditor-General. In
apparently a further endeavour to facilitate the Court’s
understanding, Mr
Crawford-Browne explained that the Financial
Working Group papers are referred to in chapter nine (9) of the JIT
report regarding
the costs to the State and the financial and fiscal
implications of the strategic defence packages.
[16] Mr Crawford-Browne remarked that by the end of 2003
he was mentally and financially exhausted by what he termed, the
Respondents’
unlawful behaviour and could not continue his efforts
to obtain discovery of the documents to which he was entitled. He
mentioned
that as a direct result of that mental and financial
exhaustion, his application to have the arms loan agreements set
aside, failed.
An order of costs made against him resulted in two (2)
unsuccessful applications to sequestrate him. Emphasizing the
importance of
the documents called for in the 2003 Order Mr
Crawford-Browne referred to statements made by Archbishops Tutu and
Njongonkulu Ndungane
respectively wherein they called for the
judicial investigation of the whole arms deal saga. Through Campaign
Against Arms Trade
(CAAT) in London, Mr Crawford-Browne had asked the
British Government to investigate. He was, however, infuriated by the
response
from Britain that it was not illegal to bribe foreigners and
they consequently refused to investigate. He proceeded to quote from
a book written by Andrew Feinstein (the former ANC MP) entitled
“After the Party”
where an allegation is contained that certain members of the African
National Congress are quoted as having admitted some wrongdoings
in
the arms deal saga.
[17] Mr Crawford-Browne stated that he proceeded against
the First Respondent because the latter is not only the Minister of
Finance
and a senior member of the ANC’s National Executive
Committee, but because of his capacity as Minister of Finance, he
bears a particular
Constitutional responsibility to ensure that
public administration meets the criteria set out in section 195 of
the Constitution.
In Mr Crawford-Browne’s assertion, the first
Respondent’s loyalties to his colleagues in the ANC and the Party
itself, clouded
his greater responsibilities to the people and the
citizenry of South Africa. Mr Crawford-Browne referred to the recent
Judgment
by Lord Moses and Mr Justice Sullivan in Britain the final
paragraph of which reads:
“
The
Court has a responsibility to secure the rule of law. No one, whether
within this country or outside is entitled to interfere
with the
course of our justice. It is the failure of Government and the
defendant (the Director of the Serious Fraud Office) to bear
that
essential principle in mind that justifies the intervention of this
Court. But we intervene in fulfillment of our responsibility
to
protect the independence of the Director and our criminal justice
from threat. On 11 December 2006, the Prime Minister said that
this
was the clearest case for intervention in the public interest he had
seen. We agree.”
Given the
above quoted Judgment in London on 10 April 2008, argued Mr
Crawford-Browne further, the documents which were the subject
matter
of the March 2003 order and which were unlawfully withheld from him,
have now assumed new and vital importance necessitating
this urgent
application for
“a writ of mandamus”
.
[18] Mr Crawford-Browne submitted that as the former
British Prime Minister and Attorney-General abused their powers of
public office,
similarly the First and Second Respondents abused
their powers. In Mr Crawford-Browne’s assertion the International
Offers Negotiating
Team (IONT) and Financial Working Group papers
will lay a trail for forensic auditors and financial investigators to
track BAE’s
bribery payments that were landed through Red Diamond
Trading Company registered in the British Virgin Islands, and other
front companies
that are maintained by BAE for such purposes.
[19]
THE ANSWERING AFFIDAVIT
was deposed to by Minister Trevor Andrew Manuel (“Minister
Manuel”), the First Respondent in the present proceedings. Minister
Manuel as a point of departure stated categorically that the present
application is procedurally defective and in his view, no case
is
made out at all on the merits and the application constitutes an
abuse of process. He remarked that most of the allegations made
by
the Applicant in the present application are either irrelevant to the
relief sought or scandalous and vexatious and fall to be
struck out.
In Minister Manuel’s view, what appears from the Applicant’s
Affidavit is that the latter has used the mechanism
of the Court
process (through the present application) to perpetuate his “crusade”
in respect of the arms deal and against Minister
Manuel in
particular. Minister Manuel dealt at some length with the background
which is made up of facts and circumstances that are
common cause.
This will not be repeated in this summary because I have already set
out the background to the present application
earlier on in this
Judgment.
[20] However, Minister Manuel invited my attention as to
how the March 2003 Order was worded, particularly the reasons why the
Applicant
sought those documents. Blignault J quoted from the
Applicant’s Affidavit wherein he stated:
“
31. The documents are relevant and essential
because-
the documents referred to in the opposing affidavit
and in subparagraphs (1) to (5) and in (7) to (9) above are
necessary to enable
the Applicants to reply to the contention in
the opposing affidavit that the Minister of Finance did not sign
international guarantees
(“the guarantees”) on or about 24
January 2001. The question whether the agreements which were signed
are guarantees are
questions of substance and cannot be responded
to without discovery of these documents;
The documents referred to in opposing affidavit and
subparagraphs (6) to (9) above are required to enable Applicants to
assess
whether to amend their Notice of Motion in the main case or,
alternatively, file a Replying Affidavit and to assist in arranging
for an expeditious hearing.”
Minister Manuel contended that what is readily apparent
from the above is that the Applicant stated that the documents
requested,
were required by him in relation to the conduct of the
main Review Application. The March 2003 Order was therefore made for
that
purpose and clearly interlocutory to the main Review
Application, he argued.
[21] Minister Manuel concluded that it was readily
apparent from the above quoted text that the Applicant stated that
the documents
were required by him in relation to the conduct of the
main Review Application. In Minister Manuel’s understanding the
March 2003
Order was therefore made for that purpose. He stated
categorically that on 9 April 2003, the Second Respondent, on behalf
of the
First to the Third Respondents in the discovery application,
filed an Affidavit in compliance with the March 2003 Order. He
referred
me to the copy of the said Affidavit now annexed to the
Answering Affidavit and marked as annexure “TAM2”. According to
Minister
Manuel, as a result of such Affidavit of compliance, he was
satisfied and he bona fide believed that the documents provided
therein
were in full compliance with the March 2003 Order. Minister
Manuel invited my attention particularly to the following statement
made
by the Second Respondent in that Affidavit of compliance:
“
In
compliance with that order, I produce on behalf of the Respondents
the documents annexed hereto marked “MRX” and MRY”
respectively.
I confirm that these are the documents containing the
advice of the International Offers Negotiating Team (IONT) and the
Financial
Working Group that were referred to in paragraph 36 of my
Answering Affidavit in the main application.”
[22] According to Minister Manuel the Affidavit of
compliance (Annexure “TAM2”) was filed at Court but sealed
pending an application
launched subsequently by the Respondents in
the main Review Application for an order directing that the March
2003 Order be supplemented
by directions ensuring the confidentiality
and protection of the documents disclosed and produced. According to
Minister Manuel the
confidentiality application was opposed but was
resolved by agreement between the parties and this agreement was
incorporated in
an Order of Court on 8 September 2003. The copy of
this latter Order is attached to the Answering papers and is marked
“TAM3”
and my attention is invited thereto. In terms of this
Order the confidentiality application was withdrawn and the
Applicants provided
various undertakings relating to the protection
and confidentiality of the discovered documents.
[23] The Applicants in the main Review Application
(according to Minister Manuel) launched an application
inter
alia
for an order declaring that the
documents which formed the subject matter of the March 2003 Order
“were constituted by the whole
IONT and Financial Working Group’s
research, investigation and advise” and compelling discovery
thereof in terms of Rule 35 (7)
(“the Rule 35 (7) application”).
In that application, explained Minister Manuel further, the
Applicants alleged that the First
to the Third Respondents had failed
to comply with the March 2003 Order and that the compliance Affidavit
did not in fact constitute
compliance. In the Founding Affidavit to
that application, the Applicant stated the following:
“
It
is respectfully submitted that First to Third Respondents have
deliberately frustrated the Court Order of 26 March 2003 by failing
to discover the ‘voluminous affordability assessment document,
which is the IONT and Financial Working Group’s report”.
[24] The Rule 35 (7) application, according to Minister
Manuel, was opposed by the Respondents and on 28 October 2003, the
Second
Respondent in the present application (in her capacity as
Director-General of the National Treasury) and on behalf of the First
to
Third Respondents in the main Review Application, deposed to an
Answering Affidavit, copy of which is attached to the present
Answering
papers as “TAM4”. Minister Manuel drew my attention to
various allegations made by the Second Respondent in the said
Affidavit,
inter alia
the followng:
“
In compliance with that Order, I produced on
behalf of the National Government Respondents the documents annexed
hereto marked “MRX”
and “MRY” respectively. I confirm that
these are the documents containing the advice of the International
Offers Negotiating
Team and the Financial Working Group that were
referred to in paragraph 36 of my Answering Affidavit in the main
application.”
“
12. …it is clear that I dispute that the
documents I referred to in paragraph 36 of the main affidavit are the
documents referred
to by the applicants. I further state as already
stated that “MRX” and “MRY” are the documents I referred to.
I therefore contend that by making available “MRX”
and “MRY” I am in full compliance with the orders of Judges
Davis and
Blignaut.”
“
Consequently,
the National Government Respondents offer the document entitled
‘Affordability Report” which deals extensively with
the matters,
which applicants contend, ought to be part of the documents referred
to (in) the 26 March 2003 court order.”
[25] Minister Manuel concluded that to the extent that
there had not yet been compliance with the March 2003 Order, (an
averment which
he denied) the provisions of the above quoted document
rendered the First to the Third Respondents fully compliant with the
March
2003 Order. Minister Manuel hastened to add that on 17 November
2003, the Rule 35 (7) application was resolved by agreement between
the parties on the basis that the Applicants would use the
documentation provided, for no purpose other than for the main Review
Application. Minister Manuel brought it to my attention that the main
Review Application was argued and Judgment was handed down
by
Blignault and Yekiso JJ on 4 March 2004. The main Review Application
was dismissed with costs. I have been supplied with the copy
of the
order dismissing the main Review Application as same is attached to
the Answering Affidavit as “TAM5”. My attention was
particularly
invited to the following portion of the Judgment dismissing the main
Review Application:
“
After receipt of respondents answering affidavits
and before filing their replying affidavits, applicants brought an
application in
terms of rule 35(12) in which they sought discovery of
various categories of documents referred to in respondent’s
answering affidavits.
The eighth category of documents was
subsequently produced by first, second and third respondents.”
The eighth category of documents was the IONT documents
detailed above, Minister Manuel clarified. Minister Manuel explained
that
the Applicants then exhausted the remedies available to them in
that they unsuccessfully applied for leave to appeal. They
subsequently
petitioned the Supreme Court of Appeal. The petition was
also not successful.
[26] Minister Manuel stated that it is true that on 23
June 2005, he launched an application to sequestrate the Applicant in
that
the latter failed to pay the costs awarded against him in the
main Review Application. The sequestration application was resisted
successfully by the Applicant. Minister Manuel mentioned how, on 11
February 2008, he launched an application in this Court wherein
he
sought an interim interdict restraining the Applicant from
inter
alia
publishing any matter in which it is
alleged that Minister Manuel is corrupt or have committed the crime
of corruption or any other
criminal conduct in connection with the
arms deal, pending an action for a final interdict. The interdict
application was opposed
by the Applicant. That matter was, however,
disposed of on 6 March 2008 when Le Grange J handed down Judgment in
favour of Minister
Manuel. According to that Judgment, Minister
Manuel was ordered to institute an action for a final order within
twenty (20) days.
It is this action which Minister Manuel has
instituted under case number5156/2008. The Applicant is resisting
that action. This is
evidenced by his filing an appearance to defend
and the present application in respect of which he alleges he wants
certain information
which he would use in preparing a plea in the
pending matter.
[27] Dealing with the question of urgency, Minister
Manuel brought the Court’s attention to the fact that the March
2003 Order was
made five (5) years ago. It comes as something
difficult to understand to him why after so long and in his own
words:
“
if
the Applicant genuinely harboured under the impression that discovery
in compliance with the aforesaid order had not yet been made,
he
provides no explanation for his inactivity for 5 years.”
He
contended that the matter is not, in his view, urgent. According to
Minister Manuel and according to the March 2003 Order, it was
the
First to the Third Respondents in the main Review Application who
were required to make discovery of the IONT documents. No order
was
made against the Second Respondent at all, understandably, because
she was not a party to that application. Minister Manuel reiterated
that the Second Respondent was simply the deponent to the Answering
Affidavit filed on behalf of the First to the Third Respondents
in
the main Review Application in her then capacity as Director-General
of the National Treasury (she no longer holds that position).
Concluding on this aspect, Minister Manuel emphasized as follows:
“
As
there was no order made against Second Respondent, there is no basis
upon which the applicant can seek compliance by Second Respondent
with the March 2003 Order, nor is there a basis upon which she can be
in contempt of a Court Order which was not made against her”
.
[28] In Minister Manuel’s view, it is readily apparent
that the Applicant seeks the relief he does in the present
application for
an ulterior purpose. Responding to the averment by
the Applicant that the present urgent application is material to his
intentions
to file his plea and counterclaim in the action instituted
by Minister Manuel, the latter stated that the March 2003 Order and
the
compliance or otherwise is irrelevant to the Applicant’s plea
and counterclaim in the action. He described the present application
as misconceived and labelled same as an abuse of process. Minister
Manuel dealt exhaustively with the content of paragraph 42 of
the
Founding Affidavit wherein the Applicant
inter
alia
averred that
“the
(IONT documents) will lay a trail for forensic auditors and financial
investigators to track BAE’s bribery payments that
were laundered
through Red Diamond Trading Company registered in the British Virgin
Islands, and other front companies that are maintained
by BAE for
such purposes.”
Minister Manuel responded
as follows,
inter alia
:
“
What
is apparent from the above paragraph is that the Applicant seeks the
relief sought in the present application in order to assist
him in
his continued crusade in respect of the arms deal. Quite plainly, the
relief sought has nothing at all to do with the main
review
application. I state that the threat of contempt must be seen as one
in terrorrem against me. That Applicant has not sought
to have the
respondents in the main review application declared to be in contempt
of the March 2003 Order for approximately 5 years
since the Order was
made would suggest strongly that even Applicant believes that there
is no merit in such an application.”
[29] In any event, Minister Manuel is of the opinion
that no case is made out for contempt of Court. On the merits of the
application,
Minister Manuel maintained that the March 2003 Order was
complied with. Reiterating that the Second Respondent filed an
Affidavit
in compliance with the aforementioned Order on 9 April
2003, he stated categorically that such Affidavit did indeed comply
with the
said Order. In any event, he certainly held the
bona
fide
and reasonable belief that such
Affidavit constituted compliance. Moreover, explained Minister
Manuel, on 28 October 2003, the Second
Respondent filed a further
Affidavit wherein she provided the Applicants with the Affordability
Report, specifically sought by them
as constituting compliance with
the Order.
[30] He emphatically denied that the documents provided
fell short of that which had been ordered in terms of the March 2003
Order
or that such order had been frustrated by either himself or the
Second Respondent. Responding to paragraph 18 of the Founding
Affidavit,
Minister Manuel averred that the true reason why the
Applicant did not continue his efforts to obtain further discovery
was that
there had been full compliance with the March 2003 Order. In
Minister Manuel’s view, the main Review Application failed because
it was simply devoid of any merit. In the last regard he referred the
Court to the Judgment in the main Review Application by Blignault
and
Yekiso JJ. In Minister Manuel’s view, regard being had to paragraph
24 of the Founding Affidavit, it is the Applicant who is
in contempt
of the order made by Le Grange J on 6 March 2008. Referring to the
London Judgment relied on by the Applicant Minister
Manuel stated
that such Judgment has no bearing whatsoever on the relief sought in
the present application. In any event, Minister
Manuel stated that
the fact that the Applicant may wish to arrange for a forensic audit
and investigation provides no basis whatsoever
for the relief claimed
in the present application. In Minister Manuel’s view the
Applicant’s preparedness to concede that these
documents are
required for purposes of a forensic audit and investigation, suggests
that, on the Applicant’s own version, that
the present application
constitutes an abuse of process. Minister Manuel called upon the
Court to have regard to the content of the
Founding Affidavit, the
vexatiousness on the part of the Applicant, the abuse of the process
of Court and the ulterior motive for
the launch of the application
when the Court considers the question of costs. He argued for a
punitive costs order i.e. on the scale
as between attorney and own
client including costs occasioned by the employment of two (2)
counsel.
[31]
THE REPLYING AFFIDAVIT
was deposed to by the Applicant himself (Mr Crawford-Browne). Mr
Crawford-Browne emphasized in reply that the full documentation
is
required and is material to him in that he intends to use same for
purposes of plea and counterclaim in case number 5156/2008.
They have
also become even more material, submitted Mr Crawford-Browne, in the
light of what he termed
“landmark Judgment
on 10 April 2008 in the London Court regarding the British Serious
Fraud investigation into bribes paid by BAE
to Saudi Prince Bandar.”
Mr Crawford-Browne mentioned and emphasized in reply
that the affordability study that went to Cabinet in August 1999
confirmed that
the arms deal was a highly risky proposition that
could lead the Government into mounting economic, fiscal and
financial difficulties.
He reiterated that the discovery of these
documents, albeit five (5) years late, but in the aftermath of that
landmark Judgment referred
to above, will lay a trail for forensic
auditors and financial investigators to track those bribes. Mr
Crawford-Browne contended
that the First Respondent, being
responsible for the affordability and financing of the arms deal, was
repeatedly warned during 1999
of allegations regarding bribes paid by
BAE to South African politicians. In Mr Crawford-Browne’s view,
despite the warning and
in violation of the prevention of organized
Crime Act (1998) the First Respondent deliberately and unlawfully
“turned a blind eye”
to those allegations.
[32] Responding on why the documents are sought five (5)
years after discovery was ordered by the Court in March 2003 Mr
Crawford-Browne
gave a two-fold answer. The first leg of the answer
he gave is that he was mentally and financially exhausted by what he
called the
“tricks” he had suffered during 2003 at the hands of
the First and Second Respondents. The second leg of his answer is
that the
requirement for the documents is occasioned by the Judgment
in London on 10 April 2008.
IN LIMINE
[33] A point
in limine
was taken by Mr Pincus SC on behalf of the First and Second
Respondents. Mr Pincus correctly submitted that a party bringing an
application
as one of urgency is enjoined by Rule 6 (12) (b) of the
Uniform Rules of Court to clearly and explicitly set out the grounds
and
circumstances which render the matter urgent and why the party
would be unable to be afforded substantial redress at a hearing in
due course. It appears from the Answering Affidavits that the
Respondents’ contention is that there has been full compliance with
the March 2003 Order. It is contended on behalf of the Respondents
that even if there had been no compliance yet of the March 2003
Order, such order was made more than five (5) years ago. The relevant
Respondents’ Affidavit in compliance with the March 2003
Order was
filed on 9 April 2003, also more than five (5) years ago, and the
Affordability Report sough by Applicant was provided
to him on 28
October 2003, almost five (5) years ago.
[34] Mr Pincus SC submitted that if Applicant genuinely
laboured under the impression that discovery in compliance with the
aforesaid
Order had not yet been made, he has provided no explanation
for his inactivity for five (5) years. There exists no valid reason
for
why this would now be ordered as a matter of urgency and most
importantly, why he allowed the main Review Application to be argued
while he allegedly remained dissatisfied with the discovery of
documents. Similarly, he further submitted that, if First to Third
Respondents (in the main Review Application) were in contempt of
Court by virtue of their failure to comply with the March 2003 Order,
First to Third Respondents would then have in fact been in contempt
for the same for a five (5) year period with no attempt made
by the
Applicant to action this alleged contempt. The Applicant sought to
explain his inactivity in reply by alleging that the reason
for
seeking the present relief after five (5) years is that:
He was mentally and financially exhausted; and
The requirement for the documents is occasioned by the
Judgment in London on 10 April 2008 regarding the investigations
into bribes
paid by BAE.
[35] Mr Pincus SC submitted that the first reason is no
reason at all in that it fails to explain inactivity for five (5)
years. The
second reason provided related to nothing material,
relevant or having any bearing on any issue between the Applicant and
the Respondents.
This led Mr Pincus SC to submit that the inescapable
inference to be drawn is that the London Court Judgment has simply
provided
the Applicant with a renewed vigour to continue what counsel
termed, his crusade in respect of the arms deal. In his view, there
is no connection between the London Judgment and the relief sought in
the present application.
[36] In what appears to be the Applicant’s
justification for launching this matter as one of urgency, the
Applicant seems to suggest
that he seeks the relief in the present
application to assist himself in the presentation of his plea and
counterclaim in the action,
which he has to file shortly. Mr Pincus
SC submitted that the action referred to has no bearing on and is not
relevant to the relief
sought in the present application. Indeed the
action is completely different and it involves many different parties
and different
issues. I agree with Mr Pincus SC’s submission that
the Applicant has created his own urgency and has been dilatory in
enforcing
any rights he may have had in connection with the March
2003 Order. Litigants must note that in instances where urgency is
“self-created”
as a consequence of a party’s dilatory conduct,
a Court will ordinarily be slow and loathe to coming to that party’s
assistance
in having a matter heard as one of urgency. Under such
circumstances the delaying party will forfeit the right to approach
the Court
as a matter of urgency.
See:
Twentieth Century Fox
Corporation and Another v Anthony Black Films (Pty) Ltd
1982 (3) SA 586
(W).
[37] I am of the view that a very strong case for lack
of urgency in this matter has been made out. But the question of
urgency at
the present moment has become academic. The merits have
been exhaustively dealt with. It is only best that the matter be
decided
on merits. Cameron JA in
Commissioner,
SARS v Hawker Air Services (Pty) Ltd
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA), faced with submission regarding urgency at
that stage gave the following guiding formulation:
“In
this Court, the respondents persisted in submitting that the
application was not urgent when it was brought in December 2003,
but
even if that were so, there is nothing now to be made of that. I have
already pointed out that lack of urgency will entitle a
High Court in
the exercise of its discretion to refuse to enrol a matter where the
ordinary forms and procedures have not been followed.
But that is not
what occurred. Patel J traversed the full ambit of the merits of the
relief that was sought, and far from striking
the matter from the
roll for want of such compliance, dismissed it. Whether or not it was
urgent in December 2003 is immaterial to
the question now before us,
which is whether the application
ought to have been dismissed
.”
(emphasis added)
MISJOINDER
[38] The inclusion of a party who is not a necessary
party will be bad for misjoinder unless it can be justified on the
ground of
convenience or in terms of the rules of Court. See:
Herbstein & Van Winsen, The Civil Practice
of the Supreme Court of South Africa
at page
199.
In these proceedings, the Second Respondent is not a
necessary party in relation to the relief sought by the Applicant.
Further, no
basis is provided for the joinder of the Second
Respondent on the basis of convenience.
[39] As appears from the Notice of Motion, the Applicant
seeks compliance by both Respondents with the March 2003 Order and
further
seeks an Order that both Respondents be declared to be in
contempt of Court for want of compliance with the aforesaid Order. A
consideration
of the March 2003 Order reveals that it was First to
Third Respondents in the main Review Application who were required to
make discovery
of the IONT documents. No order was made against the
Second Respondent. She was not a party to that application. The
Second Respondent
was simply the deponent to the Answering Affidavit,
on behalf of First to Third Respondents in the main Review
Application and the
Affidavits filed by her were filed in her
capacity as Director-General of the National Treasury, which position
I am told she no
longer holds. As there was no Order made against
Second Respondent, there appears to be no basis upon which the
Applicant can seek
compliance by Second Respondent with the March
2003 Order, nor is there a basis upon which she can be in contempt of
a Court Order
which was not made against her. It therefore comes as
no surprise that it is submitted that Second Respondent is misjoined
in these
proceedings. I hold that in this regard there was
misjoinder. The Second Respondent should never have been party to
these proceedings.
CONSIDERATION OF THE MERITS
[40] The First Respondent appears to have complied with
the March 2003 Order on 9 April 2003 when the Second Respondent
deposed to
the Affidavit of compliance. The Second Respondent also
deposed to an Answering Affidavit in the Rule 35 (7) application
wherein
the document entitled “Affordability Report” was also
provided to the Applicant. Even if the Affidavit of compliance was
not
accepted as providing sufficient compliance of the March 2003
Order, but the second Affidavit that resulted in the production of
“Affordability Report’, certainly must have been accepted as
providing full compliance with the Order.
[41] The March 2003 Order, being an Order for the making
of discovery in terms of Rule 35 (12), was an interlocutory order to
the
main Review Application. The Order was made in order to assist
the Applicants in preparing their Replying Papers in the main Review
Application. In this regard, in the Judgment handed down in the
discovery application, Judge Blignault referred to the Applicants’
reasons for seeking discovery of the documents sought and quoted from
the Applicant’s Affidavit. What is readily apparent from
that
quotation is that the Applicant himself stated that the documents
requested, were required by him in relation to the conduct
of the
main Review Application. The March 2003 Order was therefore made for
that purpose and clearly interlocutory to the main Review
Application. The main Review Application was dismissed and all other
avenues open to the Applicants in that regard exhausted. As
a matter
of course therefore, once the main Review Application was finalized,
any interlocutory order made in respect of that application
would
similarly have come to an end. There would, in my view, simply be
neither basis nor reason for any enforcement of such an interlocutory
order in fact or law.
[42] It comes as no surprise that the Applicant does not
state in his Founding Affidavit that he requires compliance with the
March
2003 Order in order to properly deal with the main Review
Application because that application was finalized almost four (4)
years
ago. In Mr Pincus SC’s submission the Applicant belatedly
seeks compliance with the Order for what Mr Pincus SC described as
“an
ulterior purpose”. It is clear that the Applicant has asked
this Court to compel compliance with a discovery order, not for the
hearing in that matter, but for other irrelevant purposes. Mr Pincus
SC submitted that such request constitutes an abuse of the process.
Neither of the reasons provided by the Applicant are a sound basis
for the enforcement of the Order. The enforcement of interlocutory
orders is not available to assist the Applicant in a completely
separate action to which he is a party. What constitutes an abuse
of
the process of the Court is a matter, which needs to be determined by
the circumstances of each case. There can be no all-encompassing
definition of the concept of ‘abuse of process’. It can be said
in general terms, however, that an abuse of process takes place
where
the procedures permitted by the Rules of the Court to facilitate the
pursuit of the truth are used for a purpose extraneous
to that
objective.
See:
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734 and cases cited therein.
RULE 35 (14)
[43] If the documents were indeed required by the
Applicant to enable him to properly plead to the First Respondent’s
action for
a final interdict, then the Applicant has employed the
incorrect procedure and should have employed the mechanism provided
by Rule
35 (14) of the Uniform Rules of Court. Rule 35 (14) provides
that:
“
After
appearance to defend has been entered, any party to any action may,
for purposes of pleading, require any other party to make
available
for inspection within five days a clearly specified document or tape
recording in his possession which is relevant to a
reasonably
anticipated issue in the action and to allow a copy or transcription
to be made thereof”
Having regard, however, to the provisions of Rule 35
(14), even a reliance on that rule would be misconceived. The First
Respondent’s
cause of action against the Applicant in the action is
one for a final interdict, restraining the Applicant from defaming
him by
publishing any matter in which it is alleged that he is
corrupt or has committed the crime of corruption or any other
criminal conduct
in connection with the arms deal. The Applicant
states that the discovery of the documents will
“lay
a trail for forensic auditors and financial investigators to track
bribes paid by BAE to South African politicians”
.
He alleges that First Respondent was aware of allegations relating to
these bribes and turned a “blind eye”.
[44] From the aforegoing, it is apparent that the
defence that the Applicant will seek to rely on in the action is that
the defamatory
comments made by him, which form the subject matter of
the action, are true and in the public interest and that his
continuing to
make these statements would be justified on the same
basis. The Applicant is able to raise this defence without a need to
receive
documents at this stage. I agree with Mr Pincus SC that what
the Applicant seeks to do, through the present application, is not to
have documents made available to him in order that he is able to
plead properly (because he is able to do so without the documents),
but rather to be provided with the documents at this stage in order
to buttress the defence to be raised.
[45] This is demonstrated by the Applicant himself where
he states:
“
The
full documentation is now required and is material to defending Case
No. 5156/08.”
Sight
must not be lost of the principle that the test is whether the
documents in question are essential, not merely useful, in order
to
enable the party to plead.
See:
Cullinan Holdings Ltd v Mamelodi Stadsraad
1992 (1) SA 645
(T) at 647F;
MV Urgup v
Wester Bank Carriers (Australia) (Pty) Ltd
1999 (3) SA 500
(C) at 515C-I.
Van
Dijhorst J in
Cullinan Holdings Ltd v
Mamelodi Stadsraad
supra
explained this principle eloquently when he
stated the following:
“
Die
eerste vereiste is dat die aangevraagde dokument ‘vir doeleindes
van pleit’ benodig word. Uit die eedsverklaring van Nel is
dit
duidelik dat die verweerder sy verwere duidelik kon formuleer sonder
die vermelde dokumente. Die dokumente is nie noodsaaklik
ten einde te
kan pleit nie. Die feit dat dit nuttig kan wees indien die opsteller
van die pleitstuk dit beskikbaar het, is nie die
toets nie. Om
hierdie rede alleen al moet die aansoek onder Reël 30 faal.”
See: 647F of the report.
Thring J
of this Division drove almost a similar point home in
MV
Urgup owners
of the
MV
Urgup v Wester Bulk Carriers (Australia)
supra
at page 515C when he gave an exposition in
this regard as follows:
“
As
to the alternative relief claimed by the respondents which, as I have
said, would in effect be an order in terms of Uniform Rules
35 (3) or
(14) compelling the applicant to make available for inspection and
copying the documents listed in Annexure A to the notice
of motion,
this may be dealt with fairly shortly. These subrules are both
intended to cater for the situation where a party knows
or, at the
very least, believes that there are documents (or tape recordings) in
his opponent’s possession or under his control
which may be
relevant to the issues and which he is able to specify with some
degree of precision. In the case of Rule 35 (3) the
intention is to
supplement discovery which has already taken place but which is
alleged to be inadequate. Rules 35 (3) or (14) do
not afford a
litigant a licence to fish in the hope of catching something useful.”
Judge
Thring proceeded to quote from
Cullinan
Holdings Ltd v Mamelodi Stadsraad
supra
at page 647H-G and 648F-G, where Van Dijhorst J expressed himself
thus:
“
Dit
was nie die bedoeling met die invoeging van Reël 35 (14) in 1987 om
‘n onbeperkte of wye reg tot blootlegging voor sluiting
van
pleitstukke in te voer nie. Soos Reël 35 (12) die geleentheid skep
om voor sluiting van pleitstukke insae te verkry in ‘n
dokument of
bandopname waarna in die teenparty se pleitstukke of eedsverklarings
verwys word, so skep Reël 35 (14) ‘n geleentheid
ten aansien van
dokumente of bandopnames waarvan die applikant kennis dra, maar wat
nie vermeld word in stukke dan geliasseer nie.
Myns
insiens skep Reël 35 (14) nie ‘n metode waardeur ‘n gedingsparty
deur gebruikmaking van generiese omskrywings ‘n net kan
knoop
waarmee vir halfbekende dokumente gevis kan word nie. Dit is ‘n
remedie wat vir besondere omstandighede geskep is. Dit vereis
die
oproep van ‘n spesifieke dokument waarvan die applikant kennis dra
en wat hy presies kan omskryf. Slegs dan kan hy deur gebruikmaking
van Reël 35 (14) die normale blootlegging van Reël 35 (1)
vooruitloop.”
[46] It needs to be emphasizes that the document must be
essentially required for a “reasonably anticipated issue” in the
trial.
In this regard, the Applicant has failed to set out why it is
essential that he has the documents, before pleading, as opposed to
obtaining them for the support of any defence at the trial, and he
has further failed to identify the issue for which he requires
the
documents. In due course, the Applicant will be in a position to
request pre-trial discovery in relation to any issue relevant
to the
trial in the action. Should the discovery be lacking, the Applicant
will be in a position to utilize the procedures provided
for in Rule
35. However, no provision is made for discovery before pleadings have
closed. That is what in essence is sought by the
Applicant in the
present application. In the case of
Ingledew
v Financial Services Board: In Re Financial Services Board v Van Der
Merwe and Another
[2003] ZACC 8
;
2003 (4) SA 584
(CC),
the Constitutional Court had reason to consider the provisions of
Rule 35 (14) in circumstances where a party had contended
that such
documentation was required by him for purposes of pleading. The Court
a quo
had held that he
was able to plead without such information and that his claim,
insofar as it was based on Rule 35 (14), had to be
dismissed. In the
Constitutional Court, it was stated (at 595):
“
In
the first place, we are concerned with an order made at a very early
stage of pleading, a stage prior to the delivery of a plea.
It is
patently clear from the record that the applicant is able to
formulate and articulate his defences, in particular, if regard
is
had to the nature of the allegations against him. The matter must
therefore be approached on the footing that even if the applicant
were to be refused the information sought, he would be able to plead.
The order made by the High Court does not prejudice the applicant
in
any way in the future conduct of the case.”
The
present matter is no different. The documents sought by the Applicant
are not essential and not necessary for him to formulate
his plea. On
this basis even reliance on rule 35 (14) would be untenable.
CONTEMPT OF COURT
[47] The leading case on contempt of court is the recent
case of
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at 344 para 42
(Cameron JA). In terms of this judgment, in order to prove contempt
of court, the party alleging contempt of
court must now prove all the
elements of contempt beyond a reasonable doubt. These elements are:
The Order made;
Service of the Order;
Breach of the Order;
That the Order was breached deliberately; and
That the Order was breached
mala
fide
.
The
Fakie NO
case
supra
held
further at page 344 para 42 that the party accused of contempt of
court bears only an evidentiary burden in respect of the last
two (2)
elements referred to above. The party alleging the contempt bears the
overall onus to prove all the elements according to
the criminal
standard of “beyond reasonable doubt”. The difficulty associated
with establishing contempt of court is demonstrated
in the following
dictum from the
Fakie NO
case, wherein Cameron JA stated at page 333 paras 9 and 10:
“
The test for when disobedience of a civil order
constitutes contempt has come to be stated as whether the breach was
committed ‘deliberately
and mala fide’. A deliberate disregard is
not enough, since the non-complier may genuinely, albeit mistakenly,
believe him or herself
entitled to act in the way claimed to
constitute the contempt. In such a case, good faith avoids the
infraction. Even a refusal to
comply that is objectively unreasonable
may be bona fide (though unreasonableness could evidence lack of good
faith).
These requirements – that the refusal to obey
should be both willful and mala fide, and that unreasonable
non-compliance
,
provided
it is bona fide, does not constitute contempt – accord with the
broader definition of the crime, of which non-compliance
with civil
orders is a manifestation. They show that the offence is committed
not by mere disregard of a court order, but by the
deliberate and
intentional violation of the court’s dignity, repute or authority
that this evinces. Honest belief that non-compliance
is justified or
proper is incompatible with that intent.”
[48] It must further be considered that in seeking the
Respondents’ committal for contempt of court, the Applicant seeks
final relief
in motion proceedings. Therefore the well-known rule
enunciated in the
Plascon-Evans
case applies. The rule is formulated as follows:
“
Where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant’s affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order.
Where the allegations or denials of the respondent
are so far-fetched or clearly untenable the Court is justified in
rejecting them
merely on the papers.”
See:
Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634-635.
The First
Respondent’s primary defence to the contempt application is that
there has been full compliance with the March 2003 Order
and as such
there has been no breach thereof. The Affidavit of compliance
contained the documents sought by the Applicant. The First
Respondent
stated that he “was satisfied and bona fide believed that the
documents provided therein were in full compliance with
the March
2003 Order.”
[49] Being dissatisfied with the documents provided by
the Respondents in the main Review Application, referred to
supra
the Applicant launched an application in terms of Rule 35 (7). In his
Founding Affidavit in that application, he stated:
“
It is respectfully submitted that First to Third
Respondents have deliberately frustrated the Court Order of 26 March
2003 by failing
to discover the ‘voluminous Affordability
Assessment document’, which is the IONT and Financial Working
Group’s report.”
In answer to this application, the Second Respondent
deposed to an Affidavit in which she stated repeatedly that the
documents provided
under cover of the compliance Affidavit
constituted compliance with the March 2003 Order. Despite this
belief, the Second Respondent
provided to the Applicant the very
Affordability Report that the Applicant had identified and referred
to as being the document required
in order for there to be compliance
with the March 2003 Order. In regard to the supply of this document,
the First Respondent stated
that “to the extent that there had not
yet been compliance with the March 2003 Order, the provision of this
document rendered the
Respondents fully compliant with the Order.”
[50] That there was in fact compliance is supported by a
number of compelling factors. The following testifies to this truth:
The Rule 35 (7) application was resolved by agreement
on the basis that the documents provided would be used only for the
main Review
Application. No further discovery applications were
launched by the Applicant, no further arguments were advanced that
there had
not been compliance with the March 2003 Order and the main
Review Application was thereafter argued.
Blignault and Yekiso JJ, hearing the main Review
Application, were clearly of the view that there had been compliance
with the March
2003 Order. In this regard Mr Pincus SC submitted
that the findings by the aforementioned Judges is strongly
indicative of the
fact that the Applicants’ counsel did not
contend at the hearing of the main Review Application that there had
not been compliance
with the March 2003 Order and if such contention
was made, it must have been rejected by the Judges.
In papers filed by and on the Applicant’s behalf in
sequestration proceedings against him, the Applicant referred to the
documents
provided to him. Rather than alleging that the First
Respondent was in contempt of Court for failing to comply with the
March 2003
Order, the Applicant indicated that the documents
provided demonstrated that for which the documents were ultimately
sought.
The passage of five (5) years, without any indication
from the Applicant that there had not been compliance with the March
2003
Order, is in itself indicative of the fact that there had been
compliance with the Order.
[51] In any event, if it was the case that there was no
compliance with the March 2003 Order, the papers revealed that the
First Respondent
genuinely and
bona fide
believed that there had been such compliance. On this basis any
possible non-compliance by the First Respondent with the March 2003
Order could not have been deliberate and/or
mala
fide
rendering the Applicant unable to prove
these elements of contempt of court beyond a reasonable doubt. That
the aforesaid belief
held by the First Respondent was a reasonable
one is supported by
inter alia
the fact that Blignault and Yekiso JJ shared his view, when hearing
the main Review Application. The submission by Mr Pincus SC,
is that
the fact that it has taken the Applicant approximately five (5) years
to seek the First Respondent’s committal for contempt
of court in
relation to the March 2003 Order should not be underscored. This
delay is very significant because it strongly indicates
the fact that
there was full compliance with the Order. In Mr Pincus SC’s
submission it demonstrates emphatically that the Applicant
is
actuated by malice in the present application, that the Applicant has
an ulterior motive in seeking a committal for contempt at
this stage
and that the Applicant is abusing the process of Court. An important
consideration in respect of an application for contempt
of Court is
that it is well established law that Courts are reluctant to go
behind a discovery Affidavit, which is
prima
facie
taken to be conclusive. See:
Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others
1999 (2) SA 279
(T) at 317.
In
Marais v Lombard
1958 (4) SA 224
(E) at 227G it was held that:
“
When a party making discovery has sworn an
affidavit as to the irrelevancy of certain documents, the Court will
not reject that affidavit
unless a probability is shown to exist that
the deponent is either mistaken or false in his assertion.”
Similarly, this approach was endorsed and adopted in
Richardson’s Woolwasheries Ltd v Minister
of Agriculture
1971 (4) SA 62
(E) as
applicable to possession as opposed to relevance of a document in
issue.
[52] In
Continental Ore
Construction v Highveld Steel and Vanadium Corporation Ltd
1974
(4) SA 589(W)
at 579E-H, the following significant formulation
appears:
“
It has further been held in a series of cases
before the enactment of the present Rules that when a party to an
action refuses to
make discovery to produce for inspection any
documents on the ground that they are not relevant to the dispute,
the Court is not
entitled to go behind the oath of that party unless
reasonably satisfied that the denial of relevance is incorrect.”
Whilst it is true that this Court has a broad “public
interest” in obedience to its orders, very little interest can
remain when
the order to which the alleged contempt relates has its
origin in an order made five (5) years ago and made interlocutory to
a main
Review Application which has been disposed of. In my view,
regard being had to the above, the Applicant is unable to discharge
the
onerous burden of establishing the First Respondent’s contempt
of Court.
APPLICATION TO STRIKE OUT
[53] Mr Pincus SC brought an application to strike out
certain paragraphs, sentences and/or words contained in the
Applicant’s Founding
Affidavit and Replying Affidavit on the basis
that such paragraphs, sentences and/or words were either irrelevant
and constituted
hearsay or they were scandalous and vexatious etc. Mr
Crawford-Browne’s response was merely that if his Affidavit is
flawed all
he could do was to beg the Court’s indulgence and that
all he was doing or attempting to do was to hold the Minister to
account.
I intend to quote some of the portions of the Founding
papers with which Mr Pincus SC is concerned.
“…
he
is corrupt or has committed the crime of corruption or any other
criminal conduct in connection with the arms deal.
(Last
sentence of paragraph 8 of founding Affidavit.
“…
fraudulently
concocted
…”
(Line 2 of paragraph 12 of Founding Affidavit).
“
Notwithstanding
her instruction…my senior counsel pleaded to me that he could not
understand it without my expertise.”
(Last
sentence of paragraph 14).
“
His
summons against me is but another instance of his vindictive
behaviour. …it is illustrative of the extreme lengths to which
the
executive branch of government and the African National Congress
(ANC) will go in their efforts to squelch investigation into
the
arms deal scandal.”
(Last
two sentences of paragraph 19 of Founding Affidavit).
“
The
logical conclusion is that the First Respondent and other members of
the ANC’s NEC know that Modise and the ANC itself were
receiving
bribes, and were engaged in massive cover-up operations. That makes
the First Respondent and his colleagues not only
complicit in
corruption, but active accessories to it…”
(Paragraph
24 of the Founding Affidavit)
“…
the
First Respondent was either negligently incompetent or corrupt or
both.”
(Portion of
paragraph 26 of Founding Affidavit).
“
It
thereby confirms that the Second Respondent willfully and
deliberately misled the Court and myself
...”
(Paragraph 15 of Replying Affidavit).
“…
I
was mentally and financially exhausted by “dirty tricks” I had
suffered during 2003 by the First and Second Respondents.”
(Third sentence of paragraph 20 of Replying Affidavit).
[54] Above quoted extracts are truly irrelevant and
constitute hearsay. Some of the quoted extracts are most certainly
seriously scandalous
of not only the First Respondent, but also of
persons who are not party to this litigation and therefore not before
this Court to
defend themselves. During the arguments I indeed warned
Mr Crawford-Browne against serious scandalous and vexatious
utterances against
persons who are not before Court and who, in the
nature of things, cannot therefore defend themselves. The warning
came forth even
before the application to strike out was heard.
Importantly, Mr Crawford-Browne’s application to this Court is for
an Order that
the two (2) Respondents comply with the March 2003
Order and that they be declared in contempt of court. It is clear
that the extracts
I have isolated above could in no way contribute to
the success of this application. They are irrelevant and there is no
rationale
in including them in the Founding papers. Removal of these
quoted questionable sentences, words and/or paragraphs, does not in
the
slightest degree, affect Mr Crawford-Browne’s application as it
stands. I thus have no difficulty in striking out as I hereby do,
the
above offending parts of the Founding papers. I will, however, be
slow in ordering a litigant who clearly prepared these papers
himself
and who appeared before me in person to pay costs. It suffices that
Mr Crawford-Browne will be well advised that in future
he needs to
strive to avoid irrelevant hearsay and scandalous/vexatious
statements in his papers. Such statements do more harm than
good to a
litigant’s case. I make no order as to costs in relation to the
application to strike out.
COSTS
[55] Mr Pincus SC in his submissions in this regard
asked this Court to give a punitive costs order against the
Applicant. He enumerated
reasons that justified such an order.
Amongst such reasons Mr Pincus SC stated that in seeking an
interlocutory order in circumstances
where the main Review
Application was finalized in 2004, the Applicant has abused the
process of Court. According to Mr Pincus SC,
in waiting approximately
four (4) years to bring an application for contempt of court, the
Applicant has again abused the process
of court. The general rule is
that a successful party is entitled to recover his costs from the
unsuccessful party. However, the
Court remains vested with a
discretion when it comes to the question of costs. I do not differ
from the view expressed by Mr Pincus
SC regarding the conduct of the
Applicant. But, I also hold a view that the Applicant is also
probably ill-advised and ill-informed
about what obtains in our
Courts. I hold the view that it would meet the dictates of justice if
costs awarded are not on the punitive
scale prayed for on behalf of
the Respondents.
ORDER
[56] In the circumstances I make the following order:
The application is dismissed with costs which costs are
to include those costs occasioned by the employment of two (2)
counsel.
_________________
DLODLO,
J