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[2024] ZAFSHC 253
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Mokoena v Magistrate Nekosie and Others (A05/2020) [2024] ZAFSHC 253 (6 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Review
case no:
A05/2020
In
the matter between:
TLADI
JACOB MOKOENA
Applicant
and
MAGISTRATE
NEKOSIE
1
st
Respondent
REGIONAL
COURT PRESIDENT, MS Z MBALO
2
nd
Respondent
THE
MAGISTRATES’ COMMISSION
3
rd
Respondent
THE
PUBLIC PROTECTOR
4
th
Respondent
DPP:
FREE STATE DIVISION, BLOEMFONTEIN
5
th
Respondent
CORAM:
JP DAFFUE J et
TL MANYE AJ
HEARD
ON:
06 MAY 2024
ORDER
GRANTED ON:
06 MAY 2024 (reasons to follow)
REASONS
Introduction
[1]
The applicant, Adv Tladi Jacob Mokoena (Adv Mokoena),
an admitted
advocate of the High Court of South Africa as well as a qualified
chartered accountant, brought a review application
under review case
number A5/2020 which application was issued out of this court on 13
January 2020. On 6 May 2024, four years after
the application was
issued, this matter was heard by myself and Manye AJ.
[2]
Adv Mokoena did not attend the hearing and did not instruct
anybody
to appear on his behalf. Adv RJ Nkhahle of the local Society of
Advocates appeared on behalf of the Director of Public
Prosecutions,
Free State Division, Bloemfontein (the DPP), cited as the fifth
respondent in the application. He submitted that
the matter should be
finalised without a further postponement being granted and that Adv
Mokoena’s review application be
dismissed with costs. The
following order was made:
‘
1. The
application for postponement is dismissed with costs.
2. No order is made
in respect of the National Director of Public Prosecutions’
application filed under the above review
application number A05/2020.
3. All applications
filed by the applicant under review application number A05/2020 are
dismissed with costs.
4. Reasons shall be
provided in due course.
5. This order shall
forthwith be sent by the registrar to the applicant to his email
address, to wit
tl[...]@gmail.com
.’
[3]
In paragraph four of the above order we stipulated that
the reasons
would follow in due course. These are the reasons. Unlike the
approach by Adv Mokoena throughout the course of events
from 2014
onwards, I shall deal with this matter as unemotionally as possible.
[4]
In November 2011 the acting municipal manager of Ngwathe
Municipality
lay criminal charges against Adv Mokoena which led to his prosecution
in the Regional Court, Kroonstad under case
number SH 99/2014. Having
been confronted with criminal prosecution, Adv Mokoena caused his
first review application to be issued
out of the High Court. Several
further applications followed as I shall set out when I summarise the
relevant background facts.
The
parties hereto and the relief sought
[5]
Adv Mokoena sought the following relief which I quote
verbatim
:
‘
1.
Reviewing and setting aside the decision by the First Respondent’s
decision to adjudicate this matter in the Criminal Court
when the
Criminal Court has
NO JURISDICTION IN MATTERS CONCERNING AN
EMPLOYMENT CONTRACT
: SECTION 77(1), SECTION 77(3) AND
SECTION 77(5) OF THE BASIC CONDITONS OF EMPLOYMENT ACT 75 OF 1997
CONFERS EXCLUSIVE JURISDICTION
TO THE LABOUR COURT AND CIVIL COURTS
ON MATTERS CONCERNING AN EMPLOYMENT CONTRACT.
THE
HONOURABLE COURT SHOULD REMOVE THE MATTER FROM THE CRIMINAL COURT AND
TRANSFER THE MATTER TO THE LABOUR COURT AS SECTION 77(5)
IS MANDATORY
2.
Reviewing and setting aside the decision by the First Respondent’s
granting
a warrant of arrest on 21 November 2019 at 09h30.
3.
Reviewing and setting aside the decision by the First Respondent’s
granting
a Contempt of Court Order against the Applicant on 22
November 2019.
4.
Reviewing and setting aside the decision by the Frist Respondent’s
granting
the re – opening of the case under case number:
SH231/11/2019 with CAS No: 34/11/2011,
when the old case under
case number:
SH 99/2014 and CAS No: 34/11/2011
was closed by
the First Respondent before 21 November 2019.
5.
Ordering the Respondents or those of the Respondents that have
opposed the relief
sought herein, to pay costs of this application on
Bonis De Propriis
, jointly and severally, the one paying, the
other to be absolved.’ (my underlining - the bold and/or
capital letters are
that of Adv Mokoena)
It is this review
application which eventually served before me and Manye AJ which we
dismissed on 6 May 2024. The reasons for dismissal
will be dealt with
hereunder. It is emphasised that the essence of the relief sought by
Adv Mokoena and the golden thread running
through his attacks on
various respondents in different applications over the years is the
Regional Court’s alleged lack
of jurisdiction. More about this
later herein.
[6]
In this review application Adv Mokoena cited the presiding
Regional
Magistrate Nekosie as the first respondent, the Regional Court
President, Ms Z Mbalo as the second respondent, the Magistrates’
Commission as the third respondent, the Public Protector as the
fourth respondent and the DPP as the fifth respondent. Only the
DPP
opposed the application.
[7]
During the entire period since his first appearance in
the Regional
Court till the hearing of this application on 6 May 2024, Adv Mokoena
caused the delay of the criminal prosecution
due to several
applications in the civil courts. Adv Mokoena’s submission that
the Regional Court does not have jurisdiction
to adjudicate the
criminal case has already been determined. It is really a case of
res
iudicata
. On 28 October 2016 in case number 1670/2016 Mhlambi AJ
dismissed his review application. The learned judge also dismissed an
application
for leave to appeal. Thereupon Adv Mokoena sought leave
to appeal from the Supreme Court of Appeal who dismissed his
application
on 3 July 2017 under case number 347/2017.
The
events immediately before and on 6 May 2024
[8]
I shall turn to the relevant background facts of this
case under the
next heading. Before then, and in order to put the reader in the
picture, I shall deal with what has happened immediately
before and
during the hearing of the application on 6 May 2024.
[9]
On 4 March 2024 Loubser J and I were to adjudicate Adv
Mokoena’s
review application. The events of that day will be described more
fully hereunder, but it is apposite to quote
our order at this stage,
bearing in mind Adv Mokoena’s email addressed to the State
Attorney which I quote in paragraph 11
hereunder. The order of 4
March 2024, which was sent to Adv Mokoena’s email address,
reads as follows:
‘
1.
The matter is postponed to 6 May 2024 at 09h30.
2.
This is a final postponement.
3.
The applicant, ie Mr Tladi Jacob Mokoena, is ordered to pay the
wasted costs
occasioned by the postponement.
4.
This order shall be served on the applicant at the email address
provided by
him, to with
T[...]@gmail.com
.’
[10]
It should be mentioned that Adv Mokoena did not employ the services
of an attorney
during most of the time and consequently, he
communicated directly per email with the State Attorney as well as
personnel of the
High Court. They used the same method of
communication. Sunday evening, 5 May 2024 at 22h11, my secretary
received an email from
Adv Mokoena which was also carbon-copied to
inter alia
the Judge President’s secretary, the State
Attorney, as well as Adv Nkhahle who has been instructed to appear on
behalf the
DPP. The email is quoted
verbatim
:
‘
Dear All
I am currently suffering
from
PILES AND CANNOT SIT FOR A LONG TIME.
ON WEDNESDAY 08 MAY
2024 I MIGHT HAVE TO GO FOR OPERATION.
As such I am unable to
attend Court and my Doctor has booked me off until 08 May 2024.
Please receive a copy
of the medical certificate
and the matter to be
postponed to 2025 March so that i can deal with my health.
Kind regards
Adv Mokoena
’
[11]
On Monday 6 May 2024 Adv Nkhahle appeared for the DPP as was the case
during
the previous appearances. He vehemently opposed any possible
postponement of the application on instructions of the Office of the
State Attorney and submitted that Adv Mokoena’s review
application should be dismissed with costs. He referred the court
to
an email from Adv Mokoena to Ms Bester of the Office of the State
Attorney, dated 4 March 2024, being the same day that he received
the
email with court order. Ms Bester immediately responded by email and
pointed out that the postponement was final. Both emails
were handed
up from the bar. I quote Adv Mokoena’s email
verbatim
:
‘
Dear Bester
This court Order is
unconstitutional.
I believe that only God
can say that the matter is postponed for the last time. the judges
cannot make such finding. it shows that
they have an interest in the
matter. I have to say that i had asked for them to be recused as they
were not objective
but we will see what
would happen
Kind regards
Adv Mokoena’
[12]
Adv Mokoena failed to file a formal application for postponement and
nobody
was instructed to appear on his behalf on Monday, 6 May 2024.
The irony of his email is inescapable. He sought a postponement to
March 2025, but this is in conflict with the medical certificate
relied upon. In terms thereof he was only booked off on the Saturday,
two days before the hearing, until Wednesday, two days after the
hearing, to wit 8 May 2024. Furthermore, in his email he referred
to
a possible operation on 8 May 2024, an aspect not even mentioned in
the doctor’s certificate.
Material
factual background
[13]
The State Attorney indexed, paginated and bound the relevant
documents, consisting
of 561 pages, in three separate bundles. These
did not include the belated application of Adv Mokoena filed on 13
March 2013, as
well as the answering and replying affidavits thereto.
However, the paginated bundles made my task to summarise the events
in a
chronological order easier.
[14]
Adv Mokoena is not only an admitted advocate, but also a chartered
accountant.
To the best of my knowledge and bearing in mind the
documentation presented to the court, he has never made use of the
services
of either an attorney, or advocate to draft his affidavits
and heads of argument. One notice of motion was drafted by counsel as
will be shown later herein. Adv Mokoena personally appeared before
Mhlambi AJ
ex facie
the transcript of the proceedings in 2016,
as well as before Loubser J and I on 13 March 2023.
[15]
It is now opposite to deal with the history of the litigation which
will be
done in chronological order from the onset to 6 May 2024. Adv
Mokoena initially faced three counts, to wit two fraud counts, the
second with an alternative charge of theft and a third count relating
to transgression of the Municipal Finance Management Act
56 of 2003
in respect of fruitless and wasteful expenditure. Apparently, the
second count of fraud with its alternative of theft
is the only
remaining count as the other two counts have been withdrawn.
According to the second count, Adv Mokoena is guilty of
the crime of
fraud in that between 18 August 2011 and 31 August 2011 he
unlawfully, falsely and with the intend to defraud, pretended
to
Ngwathe Municipality that his salary was R 950 000,
retrospectively from 1 November 2010. Therefore, the municipality
owed him a nett salary amounting to R 146 221.13 as back-pay. He, by
means of a misrepresentation induced the municipality to their
loss
and prejudice that it owed him that amount in back-pay, whilst
knowing that his salary was not R 950 000 per annum, but R
750 000
per annum. The alternative count of theft is on the basis that Adv
Mokoena unlawfully and intentionally stole R 90 673.83
during the
same period, the property of, or in the lawful possession of Ngwathe
Municipality. These offences were allegedly committed
13 years ago.
[16]
Adv Mokoena
was charged in the Regional Court, Kroonstad under case number SH
99/2014. He never pleaded, but eventually brought
his first review
application to this court under case number 1670/2016.
[1]
He sought the following order:
‘
1.
That the criminal court does not have jurisdiction to adjudicate on
Labour Court matters;
2.
That the legislation takes precedence over common law principles, the
Municipal
Finance Management Finance (“MFMA”) is
applicable to matters relating to MFMA, HR Policies and contract of
employment
and common law principles of fraud or theft are not
applicable;
3.
Costs of this Application if opposed.’
[17]
The application was set down for hearing on 27 October 2016. Mhlambi
AJ presided
over the matter. Adv Mokoena represented himself during
oral argument. The learned judge held, quoting him
verbatim
,
‘(i)t is evident that the thrust of this application are the
criminal charges that the applicant is facing and stands arraigned
in
the regional court at Kroonstad and his wish to have these matters
transformed into labour disputes to be heard by the Labour
Courts.’
The learned judge agreed
with the counsel for the DPP and stated ‘that the applicant’s
contention that he was contractually
entitled to a certain amount of
salary and that it therefore constitute a dispute with regard to
salary increases triable in the
Labour Court should not be confused
with the question whether the applicant was entitled to unilaterally
without the necessary
authority to do so and without exhausting legal
processes cause payments to be made to him. This is the crux of the
alleged case
against the applicant and wherein the misrepresentation
lies that caused the alleged loss, the principles of fraud and theft
are
therefore applicable I agree, consequently this
application
is dismissed with costs
.’
[2]
[18]
On 28 October 2016 Mhlambi AJ dismissed Adv Mokoena’s
application for
leave to appeal with costs whereupon he filed an
application for leave to appeal to the Supreme Court of Appeal. This
application
was dismissed by two judges of that court on 3 July 2017
as mentioned above.
[19]
After the dismissal of Adv Mokoena’s application for appeal the
prosecuting
authority decided to charge him again. Obviously, a new
J15 had to be prepared and a new case number allocated, to wit SH
231/11/2019.
I noted that Adv Mokoena made serious submissions about
the new case number and the manner in which this was obtained. It is
unnecessary
to deal with these issues as it should be common cause
that the prosecution had to obtain a new case number. It is apparent
from
the records that the docket, to wit CAS 34/11/2011 remained the
same. This was acknowledged by Adv Mokoena in paragraph 4 of his
notice of motion in the present review application quoted above.
[20]
On 10 November 2019 Adv Mokoena caused another application to be
issued out
of the High Court under case number 5337/2019. In this
instance the National Prosecuting Authority (NPA) was cited as the
only
respondent. In terms thereof he intended to seek the following
orders on 6 February 2020 which I quote
verbatim
:
‘
1.
That an order for a Permanent Stay of Prosecution for the case
involving the Applicant
(CAS NO: 34/11/2011, Case NO: SH 99/2014,
Kroonstad Regional Court) on the ground that only the Labour Court or
the Civil Court
have exclusive jurisdiction to adjudicate matters
concerning Employment Contracts: term of employment contract relating
to increase
of Salary.
2.
That continued prosecution by the Respondent in the Criminal Court
of the matter meant for the Labour Court amount to Malicious
prosecution by the National Prosecution Authority.
3.
That registration of a Fraud case by the South African Police Service
(“SAPS”)
when the matter was meant for the Labour Court
amounted to defamation of character of the Applicant [Adv Mokoena].
4.
Costs of the Application if opposed.’ (my underlining)
This application was set
down for hearing on 6 February 2020. It served before Musi JP who
removed it from the roll, Adv Mokoena
to pay the costs. Adv Mokoena
never prosecuted this application any further. The matter is
therefore not finalised and still pending.
[3]
[21]
Also, in
November 2019, Adv Mokoena caused an application to be issued in the
Regional Court, Kroonstad under case number 231/11/2019
(it being the
criminal case number). As is the case in the aforesaid High Court
application referred to in the previous paragraph
issued in the same
month, he cited the NPA as the only respondent. Adv Mokoena sought an
order that Regional Magistrate Nekosie
(cited as the first respondent
in the present application), Senior Prosecutor, Adv Swanepoel, Senior
Prosecutor Victor J De Bruyn,
Captain Goosen, and Warrant Officer
Mofokeng, be removed from the case with immediate effect and that
internal disciplinary proceedings
as well as criminal charges be
instituted against these persons as well as a female Warrant Officer
Eloff. Furthermore, he sought
an order that the ‘illegal and
unlawful warrant of arrest and conviction on contempt of court’
be reversed and set
aside. Finally, he insisted that the current case
with case numbers SH 99/2014 and SH 231/2019 with CAS number:
34/11/2011 be transferred
to the labour court in terms of
ss 77(1)
,
77
(3) and
77
(5) of the
Basic Conditions of Employment Act 75 of 1997
and that costs be ordered against anybody opposing the application.
This application was opposed by the NPA and answering affidavits
were
filed. In this case Adv Mokoena removed the application from the roll
and did not prosecute this any further.
[4]
[22]
In order to show why he did not attend the court proceedings in the
Regional
Court in November 2019, he attached a medical certificate of
Dr IW Alinnor, the same person who now, nearly five years later,
presented
Adv Mokoena with two further medical certificates in March
2024 and May 2024 respectively. In terms of this certificate, the
doctor
alleged that Adv Mokoena was suffering from a ‘medical
condition’, that he was informed that Adv Mokoena took ill on
19 November 2019, that he was first seen by him on 19 November 2019
and that he was unfit for duty from 19 November 2019 to 23
November
2019.
[23]
On 12
February 2020 Adv Mokoena filed a notice of removal from the roll
[5]
in the Regional Court, Kroonstad, stating the following reasons:
‘
1.
There is a pending review application in terms of Rule 53 of the
Uniform Rules of Court,
with case number A5/2020. This review
application has the effect of finalising the matter and this
application might not be necessary.
A copy of the notice of motion
for the review application is attached hereto as Annexure “A”.
2.
When the review application is granted and this application is
adjudicated might
lead to controversial decisions by the same Court.
3.
The notice of removal is therefore by agreement between parties and
costs reserved.’
[24]
A further notice of motion dated 12 June 2021 without a case number
was found
in the court file. There is no proof that it has been
issued out of this court. This document was drafted by Adv AM Motake
on instructions
of Melato Attorneys. The affidavit of Adv Mokoena
referred to herein is not in the file. This notice of motion is dated
eighteen
months after issuing of the present review application.
Furthermore, several further parties have been cited, to wit the
Department
of Justice, the Judicial Service Commission, the Minister
of Police, the Minister of Justice and Correctional Services and the
National Prosecuting Authority. It provides for certain prayers
in Part A, dealing again with the exclusive jurisdiction of
the
Labour Court to the exclusion of the Regional Court, and Part B,
inter alia
pertaining to the issuing of an alleged unlawful
warrant of arrest by the Regional Court. We were not called upon to
decide this
application which was not properly before us, but merely
attached to the NDPP’s affidavit in support of the application
to
declare Adv Mokoena a vexatious litigant.
[25]
During September 2022 the NDPP decided to apply for an order
declaring Adv
Mokoena a vexatious litigant. The State Attorney
probably believed that it could merely serve and file this
application with all
its attachments without issuing a new
application and obtaining a new case number. As mentioned herein, the
documents attached
to the deponent’s founding affidavit were
properly indexed, paginated and bound in three separate bundles which
provide for
easy reading. But, the NDPP’s ‘application’
could never be adjudicated as it did not comply with any procedural
requirements contained in the Uniform Rules of Court. More about this
later herein. Notwithstanding the procedural irregularities,
Adv
Mokoena filed an answering affidavit to which the NDPP responded in a
replying affidavit. Adv Mokoena raised several points
in limine
.
Those in respect of procedural irregularities are valid. He also
reiterated his stance about the exclusive jurisdiction of the
Labour
Court. This ‘application’ was set down for hearing on 13
March 2023.
[26]
The review application under case number A5/2020 (the present
application before
this court) was initially set down for hearing on
Monday 31 October 2022. Adv Mokoena objected to the compilation of
the bench
and specifically the presence of one of its members. It is
not necessary to delve into the issue, save for stating that the
matter
did not proceed, but was postponed to Monday, 13 March 2023.
[27]
On Friday, 10 March 2023, and under the same case number, Adv Mokoena
drafted
a notice of motion. This new application was only issued on
Monday morning, 13 March 2023. It was served on the State Attorney
and filed with the court just before the hearing was to start. Adv
Mokoena’s supporting founding affidavit consisted of 43
pages
to which he attached a voluminous set of documents. He sought the
following orders:
‘
1.
That the review application on
the issue of lack of jurisdiction
of the Magistrate Court to be adjudicated by the Judge President
of
the Free State High Court.
2.
That the review application on the issue of lack of jurisdiction of
the Magistrate
Court to be adjudicated as
UNOPPOSED REVIEW
APPLICATION AS A RESULT OF THE FIRST, SECOND AND FIFTH RESPONDENTS
FAILING TO SERVE AND FILE THE ANSWERING AFFIDAVITS.
3.
That the review application on the
issue of lack of jurisdiction
of the Magistrate Court
to be adjudicated as
UNOPPOSED REVIEW
APPLICATION AS A RESULT OF THE
FIRST RESPONDENT BEING BOUND
BY
SECTION 110(2)
OF THE
CRIMINAL PROCEDURE ACT 51 OF 1977
– WHICH IS PEREMPTORY THAT IF A MAGISTRATE COURT DOES NOT HAVE
JURISDICTION AND THE
ACCUSED HAS NOT PLEADED
,
THEN THE MAGISTRATE MUST REMOVE THE MATTER TO A COURT WHICH HAS
JURISDICTION:
4.
That the review application on the issue of lack of jurisdiction of
the Magistrate
Court to be adjudicated as
UNOPPOSED REVIEW
APPLICATION AS A RESULT OF THE FIRST RESPONDENT BEING BOUND BY
SECTION 77(1)
,
SECTION 77(3)
AND
SECTION 77(5)
OF THE BASIC
CONDITIONS OF THE EMPLOYEMENT ACT 75 OF 1997 – WHICH IS
PEREMPTORY THAT IF THERE IS A DISPUTE THAT EMANATE FROM
THE
EMPLOYEMENT CONTRACT, ONLY THE LABOUR COURT HAS
ABSOLUTE
JURISDICTION TO ADJUDICATE THE
MATTER
.
5.
That the review application on the issue of lack of jurisdiction of
the Magistrate
Court to be adjudicated as
UNOPPOSED REVIEW
APPLICATION AS A RESULT OF THE FIRST RESPONDENT BEING BOUND BY THE
TWO CASES THAT CONFIRMS THAT ONLY THE LABOUR
COURT HAS
ABSOLUTE
JURISDICTION TO ADJUDICATE THE
MATTER WHERE IS A DISPUTE
THAT EMANATE FROM THE EMPLOYMENT CONTRACT:
A CONSTITUTIONAL CASE
WITH CASE NUMBER
20/18 – SOUTH AFRICA (PTY) LTD
AND THE
SUPREME COURT OF APPEAL CASE WITH CASE NUMBER
1073/2019 –
CHERYLL LEWARNE V FOCHEM INTERNATIONAL (PTY) LTD
.
6.
That the Applicant lodged a complaint with the Judicial Review
Council against
the abuse of power and the court processes by the
legal representatives from the State Attorney, the prosecutors
which
is tolerated and condone by the Judge President of the Free State
High Court
which he was presiding in this matter in one of
the sitting and he is aware of the transgressions of the law by the
prosecutor
in the High Court
.
7.
That the Applicant lodged a complaint with the Judicial Review
Council against
the abuse of power and the court processes by the
legal representatives from the State Attorney, the prosecutors –
the Complaint is more on the unethical conduct of these legal
representatives and the
condonation of these unethical
conduct by the Judge President
.
8.
The State Attorney to pay the costs of the review application on the
scale of
an attorney and own client scale.
9.
Granting the Applicant with further and/or alternative relief this
Honourable
Court may deem fit and/or just.’ (my underlining in
respect of paragraphs 1, 3, 6 and 7 - the other underlining and bold
and/or capital letters are that of Adv Mokoena)
[28]
It is reiterated that Adv Mokoena stated in paragraph 3 of the notice
of motion
filed on 13 March 2023 that he had not yet pleaded in the
Regional Court, but that the Regional Magistrate should have removed
the matter from the roll due to lack of jurisdiction. On that day Adv
Mokoena appeared in court in person. That was his last appearance
in
this court in respect of the present litigation. He submitted that on
31 October 2022 the presiding judges recused themselves
and
therefore, they could not validly postpone the application to 13
March 2023. He also insisted that the NDPP was represented
unlawfully
as she was not before the court. After considering all the
submissions by the parties, Loubser J and I granted the following
order by agreement in an endeavour to obtain finality regarding the
litigation between the various parties:
‘
Having considered
the documents filed of record and having heard Mr TJ Mokoena in
person and the legal practitioner for the National
Director of Public
Prosecutions,
IT IS ORDERED BY
AGREEMENT THAT:
1.
The matters are postponed to 14 August
2023.
2.
The application for review under case number
A05/2020 together with
the application filed this morning by Mr Mokoena under the same case
number as well as the vexatious proceedings
application by the
National Director of Public Prosecutions shall all be heard on the
same day, to wit 14 August 2023.
3.
The answering affidavit of the National Director
of Public
Prosecutions in respect of the new application filed under A05/2020
today, and if so advised in respect of the initial
review
application, shall be filed on/or before 13 April 2023.
4.
Mr Mokoena, the applicant in the review application
and the further
application filed this morning, shall file his replying affidavit
on/or before 2 May 2023.
5.
Heads of argument by Mr Mokoena shall be filed
on/or before 10 June
2023 and the National Director of Public Prosecutions’ heads of
argument shall be filed on/or before
27 June 2023.
6.
Costs shall stand over for later adjudication.’
[29]
On 14 August 2023 Adv Mokoena did not appear. A few minutes before
the hearing
was supposed to start at 09h30, my secretary was
presented with an email obtained from the secretary of the Judge
President, Ms
Mostert. It was received that morning at 09h12,
ie
18 minutes before the start of proceedings. It reads as follows:
‘
Dear Judge
President
I really sick and cannot
attend Court Today. I have a short breath, my voice is gone. My whole
body is in pain. i will go to the
Doctor.
I will submit the medical
certificate some time during the day.
Can you please postpone
the matter to March 2024.
The costs for today i
will pay.
Kind Regards
Adv Mokoena’
The promised medical sick
note never arrived to the best of my knowledge.
[30]
As the National Director of Public Prosecutions was not a party to
the original
review application and its application for vexatious
proceedings was filed under the same case no,
ie
5/2020, she
was ordered by myself and Loubser J to issue a separate application
if it so wished in accordance with the Vexatious
Proceedings Act
before 28 August 2023. For convenience of the reader, I quote the
order granted by myself and Loubser J:
‘
1.
The review application is postponed to Monday, 4 March 2024 due to
the illness of Mr
Mokoena, the applicant, and at his request.
2.
The National Director of Public Prosecutions
shall, if they so wish,
issue its application in terms of the Vexatious Proceedings Act in
accordance with the Uniform Rules of
Court before 28 August 2023 and
proceed to finalisation thereof before the date of hearing in
paragraph 1 above.
3.
Costs shall stand over for later adjudication.’
We postponed the
application as requested by Adv Mokoena and notwithstanding his offer
to pay the wasted costs, we decided that
costs should stand over for
later adjudication.
[31]
The National Prosecuting Authority did not launch separate
proceedings in terms
of the Vexatious Proceedings Act and on 4 March
2024 Loubser and I, to whom the review application was again
allocated, were supposed
to hear the review application. Again, a few
minutes before the hearing was supposed to start, my secretary
received an email from
Adv Mokoena to which he attached a medical
certificate from the same doctor, Dr IW Alinnor. I quote the email:
‘
Dear All
Please receive the
medical certificate.
For the past week my
health has been bad, my eyes have been red i consulted Sandton
Hospital last week and not better.
Please postpone the
matter to
FOURTH QUARTER.
Kind regards
Adv Mokoena’
The certificate stated as
follows:
‘
Name: Tladi Jacob
Mokoena
was examined by me and
that: he
1.
Is suffering from: Medical Condition
2.
I was informed by the patient that he/she took ill on:
2/3/2024
3.
He/she was first seen by me on: 2/3/2024
4.
He/she is unfit for duty from: 2/3/2024
5.
He/she may resume work normal/light duty on: 5/3/2024
6.
The fact that he/she will be absent for more than a week
is due to:
return for review on 4/3/2024’
[32]
Adv Mokoena did not attend the proceedings as was the case on 14
August 2023
and also failed to appoint an attorney or counsel to
appear on his behalf. In a final attempt to accommodate him, we
postponed
the matter to 6 May 2024. The order is quoted above.
The
Stalingrad defence
[33]
The
material facts show that the litigation ensued by Adv Mokoena against
the DPP and other respondents has a ‘long and troubled
history’
spanning over a period of 10 years. I quote the
dictum
by Harms JA in
National
Director of Public Prosecutions v Zuma
[6]
:
‘
[2]
The litigation between the NDPP and Mr Zuma has a long and troubled
history and the law reports are replete with judgments dealing
with
the matter.
It
is accordingly unnecessary to say much by way of introduction and a
brief summary will suffice.’
[34]
Navsa ADP
commented as follows with reference to TS Eliot’s ‘recurrent
end of the unending’ in
Zuma
v Democratic Alliance and Others; Acting National Director of Public
Prosecutions and Another v Democratic Alliance and Another
[7]
and concluded:
‘
This abbreviated
history illustrates that on any reckoning, the scale of litigation,
which is likely unprecedented in the South
African courts,
justifiably attracts the epithet ‘Stalingrad’.’
[35]
Wallis JA
also referred to the Stalingrad defence in
Moyo
v Minister of Justice and Constitutional Development and Others
(Moyo)
[8]
and I quote:
‘
The
term ‘Stalingrad defence’ has become a term of art in the
armoury of criminal defence lawyers. By allowing criminal
trials to
be postponed pending approaches to the civil courts, justice is
delayed and the speedy trials for which the Constitution
provides do
not take place. I need hardly add that this is of particular benefit
to those who are well-resourced and able to secure
the services of
the best lawyers.’
[36]
Ponnan JA,
writing for a unanimous bench of the Supreme Court of Appeal, dealt
with the Stalingrad defence recently in
Jacob
Gedleyihlekisa Zuma v William John Downer and Another
[9]
and eventually found that Mr Zuma’s approach to the civil
litigation was an abuse of process.
[10]
[37]
Having considered the material facts set out herein and the
authorities quoted
above, I am satisfied that Adv Mokoena’s
approach over the years can be characterised as a
Stalingrad
defence. It is immediately accepted that Adv Mokoena’s
litigation has not received the same attention from our courts and
the media as was the case in respect of the litigation by and/or
against Mr Zuma. Fact of the matter is that his matters have been
dragging on in our courts over a period of ten years. It may also be
pointed out that he even filed an application for leave to
appeal
this court’s order of 6 May 2024 whilst these reasons were
still outstanding. This is indicative of his intention
to avoid his
criminal prosecution in the Regional Court.
Legal
principles applicable to applications for postponement
[38]
An
application for postponement is not there for the taking. The usual
requirements applicable to postponements are trite. The following
is
a summary of the authorities and the principles referred to in
Erasmus
[11]
:
a.
the court has a discretion to grant or refuse
postponement which discretion must be exercised in a judicial manner;
b.
the applicant for a postponement seeks an
indulgence and he or she must show good and strong reasons;
c.
the applicant must furnish a full and
satisfactory explanation of the circumstances giving rise to the
application;
d.
the application must be made timeously,
i.e.
as
soon as the circumstances justifying that became known to the
applicant;
e.
the application must always be
bona
fide
and not used simply as a
tactical manoeuvre to gain an advantage;
f.
prejudice shall be considered, especially
whether any prejudice caused by the postponement can be fairly
compensated by an appropriate
order of costs;
g.
the balance of convenience or inconvenience to
both parties should be considered.
[39]
In
Lekolwane
v Minister of Justice and Constitutional Development
(Lekolwane)
[12]
the
Constitutional Court restated the law pertaining to applications for
postponement in the following words:
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect the applicant must ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the court. In exercising
that discretion, this Court takes into
account a number of factors,
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
postponement is full and satisfactory, whether there is prejudice to
any of the parties, whether the
application is opposed and the
broader public interest. All these factors, to the extent
appropriate, together with the prospects
of success on the merits of
the matter, will be weighed by the court to determine whether it is
in the interests of justice to
grant the application.’
The Constitutional Court
added that the broader public interest and the prospects of success
on the merits are also factors to be
considered in granting a
postponement.
[40]
In
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for General Equality as amici curiae)
[13]
the Constitutional Court quoted
Lekolwana
with
approval and added the following further factors:
‘
[11]
… The following factors could non-exhaustively be added
to the above: the reason for the lateness of the application
if not
timeously made; the conduct of counsel; the costs involved in the
postponement; the potential prejudice to other interested
parties;
the consequences of not granting a postponement; and the scope of the
issues that ultimately must be decided. In
balancing these
factors it is of vital importance to keep in mind that –
'(w)hat
is in the interests of justice will . . . be determined not only by
what is in the interests of the parties themselves,
but also by what,
in the opinion of the Court, is in the public interest. The interests
of justice may require that a litigant
be granted more time, but
account will also be taken of the need to have matters before
this Court finalised without undue
delay.'
’
[41]
The reader
is reminded that Adv Mokoena submitted in his email of 4 March 2024
to the State Attorney that our order of even date,
granting a final
postponement, was unconstitutional. He is wrong. The Chief Justice of
the Apex court of this country granted a
final postponement in
Lekolwane
whereupon the Constitutional Court, our Apex court, concluded as
follows:
[14]
‘
In
light of the above, there does not appear to be any good cause shown
for the application for condonation and postponement by
the
applicants. On the contrary, the applicants had foregone
opportunities to have the matter fully ventilated and had been warned
that the previous postponement granted was a final one. To grant yet
another postponement would have constituted a gross abuse
of the
processes of this Court. As such, it could not be considered in the
interests of justice to grant the application. Therefore
the Court
did not grant the request for condonation and postponement.’
[42]
We were satisfied that Adv Mokoena’s request for a postponement
–
not even to mention the request till March 2025 – was
made
mala fide
and clearly a tactical manoeuvre to ensure that
he never has to face criminal prosecution. His action was calculated:
he was not
prepared to adhere to the order of 4 March 2024 which he
regarded as unconstitutional. As advocate he knew what he had to do.
He
failed to prepare a proper application for postponement and to
furnish a satisfactory explanation why he could not arrange for his
case to be argued on his behalf, alternatively for such person to
seek a postponement on proper grounds. On the information before
us,
we were satisfied that the broader public interest demanded that no
further postponement be granted. Finally, the prospects
of success on
the merits weighed heavily against Adv Mokoena.
Evaluation
of the grounds of review
[43]
Before the review application is considered, it is necessary to
record the
following. The NDPP instructed the State Attorney to
approach the court to declare Adv Mokoena a vexatious litigant in
terms of
s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 as
indicated above. An improper process was adopted. The NDPP is cited
as
applicant and Adv Mokoena as respondent in the notice of motion.
There is no reference to any of the other parties.
No case
number has been allocated to this application. The NDPP could and
should have applied for leave to join the proceedings
as a respondent
and thereafter file a counter-application to seek the relief that it
intended to seek, alternatively a separate
application should have
been issued and leave sought that the two applications be heard
together. For these reasons, Loubser J
and I directed the NDPP on 14
August 2023, if it so wish, to issue its application in terms of the
Vexatious Proceedings Act before
24 August 2023 in order to get
finality before 4 March 2024, the date to which the review
application was postponed. She failed
to do so. When this matter was
heard on 6 May 2024, Adv Nkhahle informed us that the NDPP’s
application had not been instituted
yet. Therefore, we made no order
in that regard.
[44]
Adv Mokoena embarked upon a forum shopping process. He continued to
submit
that the dispute is a labour dispute to be adjudicated
exclusively by the Labour Court and that the dispute has nothing to
do with
criminality which should be adjudicated by the Regional
Court. This aspect has been settled earlier by Mhlambi AJ and the
Supreme
Court of Appeal who refused to grant Adv Mokoena leave to
appeal. However, I shall briefly deal with the relevant principles
hereunder.
[45]
Last year Adv Mokoena decided that the Judge President of this
division was
the only judge that could hear and decide his review
application. This is not his prerogative, but also a strange request,
bearing
in mind his allegations pertaining to the Judge President in
paragraphs 6 and 7 of the notice of motion that he filed on 13 March
2023. It is not necessary to deal with the serious allegations
contained in his founding affidavit in support of this application.
Fact of the matter is that Adv Mokoena never applied for the recusal
of Loubser J, myself or Manye AJ. The application has been
allocated
to us and there is no reason why we should not have heard and
adjudicated it.
[46]
Notwithstanding
the dismissal of Adv Mokoena’s first review application by
Mhlambi AJ and his unsuccessful application for
leave to appeal to
the Supreme Court of Appeal, he continued to submit that the Regional
Court did not have jurisdiction as he
had not committed criminal
offences. According to him, the dispute was a mere labour dispute. He
has over the years quoted the
same two cases, to wit the Supreme
Court of Appeal case in
Lewarne
v Fochem International Pty Ltd (Lewarne)
[15]
and the Constitutional Court case in
Amalungelo
Workers’Union and Others v Philip Morris South Africa (Pty)
Limited and Another (Amalungelo).
[16]
Consequently, and based on these authorities, Adv Mokoena has always
maintained that he was entitled to a referral of the matter
to the
Labour Court.
[47]
For the sake of completeness, the two judgments relied upon by Adv
Mokoena
should be put in perspective. Neither of these cases support
Adv Mokoena’s view point. They did not deal with alleged
criminal
offences such as fraud and theft. In
Lewarne
the
appellant, an employee, launched an application in the High Court
claiming payment from her employer in respect of a portion
of her
thirteenth cheque as well as her salary. The High Court dismissed the
application on the basis that the Labour Court had
exclusive
jurisdiction to adjudicate the claim in terms of s 77(1) of the Basic
Conditions of Employment Act 75 of 1997 (BCEA).
On appeal, the
Supreme Court of Appeal held that s 77(3) of the BCEA conferred
concurrent jurisdiction on the civil and the Labour
Courts.
Consequently, the employee’s claim succeeded.
[48]
In
Amalungelo
the union and several of its members claimed
that the employers incorrectly deducted tax from their salaries in
respect of company
cars. Eventually, the Constitutional Court had to
decide whether the Labour Court had jurisdiction to adjudicate the
claim. The
court held that the Labour Court enjoyed exclusive
jurisdiction over all disputes and claims arising from the provisions
of the
BCEA, subject to a few specified exceptions. Consequently, it
held that the Labour Court erred in concluding that it did not have
jurisdiction in respect of one of the claims brought to it and
therefore the matter was remitted to that court.
[49]
Adv Mokoena’s submission that the Labour Court has exclusive
jurisdiction
in casu
is totally wrong. That court has no
jurisdiction to adjudicate alleged criminal offences. His reliance on
s 110(2) of the Criminal
Procedure Act 51 of 1977 (the CPA) is
misplaced and wrong. That section reads as follows:
‘
(2) Where an
accused pleads that the court in question has no jurisdiction and the
plea is upheld, the court shall adjourn the case
to the court having
jurisdiction.’
The wording of the
section is clear. He should have pleaded lack of jurisdiction and
that court should have upheld his plea. This
did not happen. There is
no evidence that he ever pleaded in the Regional Court to the effect
it did not have jurisdiction and
that such plea was indeed upheld as
provided for in s 110(2) of the CPA. In fact, it is his case, relying
on s 110(2), that he
has not pleaded yet, but that the Regional
Magistrate should have removed the case from the roll due to lack of
jurisdiction. This
is the relief that he sought in paragraph 3 of his
latest application issued on 13 March 2023 which I quoted above.
Consequently,
the Regional Court is entitled to hear the case. Adv
Mokoena should, when the charges are put to him, plead thereto in
order for
the criminal prosecution to proceed. The section relied
upon by him is of no assistance. It is in principle intended to
provide
for the scenario where the crime has allegedly been committed
outside the court’s jurisdiction. It should be emphasised that
the Regional Court has jurisdiction over all offences, excluding
treason.
[17]
[50]
Adv Mokoena’s was convicted in the Regional Court for contempt
of court
for failing to appear in that court, but not sentenced yet.
There is ample authority that review or appeal courts should not
interfere
mid-stream with proceedings in a lower court. This court
should not come to his assistance at this stage of that proceedings.
[51]
For these reasons we granted the order contained in paragraph 2
above.
JP
DAFFUE J
I
concur
TL
MANYE AJ
On
behalf of the Applicant:
No
Appearance
On
behalf of the 5
th
Respondent:
Adv
RJ Nkhahle
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
[1]
Record at 27-28.
[2]
Record at 110 -111.
[3]
Record at 17 paras 20-23 of the founding affidavit of Ms N Gcingca.
[4]
Record at 14-16 paras 12-19 of the founding affidavit of Ms N
Gcingca.
[5]
Record at 215-217.
[6]
[2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 2.
[7]
(771/2016, 1170/2016)
[2017] ZASCA 146
;
[2017] 4 All SA 726
(SCA);
2018 (1) SA 200
(SCA);
2018 (1) SACR 123
(SCA) (13 October 2017)
para 8.
[8]
Moyo
v Minister of Justice and Constitutional Development and Others
;
Sonti
v Minister of Justice and Correctional Services and Others
(387/2017; 386/2017) [2018] ZASCA 100; 2018 (8) BCLR 972 (SCA);
[2018] 3 All SA 342 (SCA); 2018 (2) SACR 313 (SCA) (20 June 2018)
para 169.
[9]
(case
no 788/2023)
[2023] ZASCA 132
(13 October 2023).
[10]
Ibid
para
32.
[11]
Van Loggerenberg:
Erasmus
,
Superior Court Practice Vol 2 at D1-553 to D1-555.
[12]
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) at para 17.
[13]
[2007] ZACC 14
;
2007 (5) SA 620
(CC) para 11.
[14]
Lekolwane
loc cit
para 20.
[15]
(1073/18) [2019] ZASCA 114.
[16]
(CCT20/18)
[2019] ZACC 45.
[17]
Section 89
(2) of the
Magistrates’ Courts Act 32 of 1944
.