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
(Western Cape Division, Cape Town)
Case no.: 23724/2016
& 11709/2017
In the matter between:
MANFREDI DE FILIPPO
(substituted for GIANCARLO DE FILIPPO) Applicant
and
ALESSANDRA MICILLO Respondent
JUDGMENT DELIVERED ON 16 SEPTEMBER 2024
Delivered electronically via email
VAN ZYL AJ:
Introduction
1. This is an interlocutory application for orders holding the respondent in
contempt of court for the third time in the course of the litigation between the parties,
and declaring her a vexatious litigant under section 2(1)(b) of the Vexatious
Proceedings Act 3 of 1956 (“the Act”) . The applicant also seeks an order directing
the respondent to pay the costs of the postponement on 13 March 2024 of the action
pending between the parties.1
2. The respondent did not deliver an answering affidavit in opposition to the
application, but presented oral evidence at the hearing of the matter. The papers
include extensive correspondence between the parties, a s well as transcripts of
relevant proceedings that took place over the years.
3. I start by referring to the relevant legal principles.
Contempt of court
4. Contempt of court, in the present context, has been defined as “the deliberate,
intentional (i e wilful), disobedience of an order granted by a c ourt of competent
jurisdiction”.2
5. Wilfulness is an essential element of the act or omission alleged to constitute
contempt.3 In addition to the element of wilfulness, there must be an element of mala
fides.4 Once it is shown that the order was grante d (and served on or otherwise
1 The order granting the postponement directed that the costs of the postponement would stand over
for later determination.
2 Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA 517 (C) at 522B–D.
3 Culverwell v Beira 1992 (4) SA 490 (W) at 493D–E.
4 Jayiya v Member of the Executive Council for Welfare, Eastern Cape 2004 (2) SA 611 (SCA) at
621E.
came to the notice of the respondent) and that the respondent had disobeyed or
neglected to comply with it, both wilfulness and mala fides will be inferred. 5 Thus,
once the applicant has proved the order, service or notice, and non-compliance, an
evidentiary burden rests upon the respondent in relation to wilfulness and male fides,
that is, to advance evidence that establishes a reasonable doubt as to whether non -
compliance with the order was wilful and male fide.6
6. Even though the defaulting party may be wilful, such party may still escape
liability if they can show that they were bona fide in their disobedience. Where the
defaulting party has genuinely tried to carry out the order and has failed through no
fault of his or her own, or has been unable but not unwilling (for example, by reason
of poverty), to carry out the order, proceedings for committal will fail.7
7. As far as penalty is concerned, the law postulates that where a respondent
displayed an unacceptable degree of arrogance and perceived inviolability and
disregard for the rule of law, the penalty has to be commensurate with the degree of
contempt, the intention with which it was committed, and the interests affected. It has
to act as a deterrent, and be punitive.8
Vexatious proceedings
8. A High Court has the inherent jurisdiction to prevent vexatious litigation , as
being an abuse of its own process. This power, however, must be exercised with
great caution, and only in a clear case, as the courts of law are open to all.9
9. In the absence of statutory authority, the Court did not originally possess the
5 Townsend-Turner v Morrow 2004 (2) SA 32 (C) at 49C–D.
6 Fakie N.O. v CCII Systems (Pty) Ltd and another 2006 (SCA) at paras [42]-[43].
7 Matjhabeng Local Municipality v Eskom Holdings Ltd and others; Mkhonto and others v
Compensation Solutions (Pty) Ltd 2018 (1) SA 1 (CC) at paras [85]-[88].
8 HL and another v Cathay Pacific Airways Ltd and another [2016] 1 All SA 543 (GJ).
9 Hudson v Hudson 1927 AD 259 at 268.
power to impose a general prohibition preventing the abuse of its process. It could
only do so in respect of a particular matter serving befor e the Court.10 In Corderoy11
the Appellate Division held that when there has been repeated and persistent
litigation between the same parties in the same cause of action and in respect of the
same subject matter, the court can make a general order prohibiting the institution of
such litigation without the leave of the court, but that power extended only to prevent
the abuse of its own process without being concerned with the process of other
courts, and to protect the applicant before it without being concerned about other
parties who were not before it. It was therefore held that, in the absence of statutory
powers, the Courts do not possess the inherent power to impose a general
prohibition curtailing plaintiff's ordinary right of litigation in respect of all courts and all
parties.
10. The promulgation of the Act remedied this situation, and empowered the
Court to impose general restrictions on the institution of vexatious legal proceedings.
11. Section 2 of the Act provides, in relevant part, as follows:
“Powers of court to impose restrictions on the institution of vexatious
legal proceedings
(1) (a) …
(b) If, on an application made by any person against whom legal
proceedings have been instituted by any other person or who has
reason to believe that the institution of legal proceed ings against him is
contemplated by any other person, the court is satisfied that the said
person has persistently and without any reasonable ground instituted
legal proceedings in any court or in any inferior court, whether against
10 Corderoy v Union Government (Minister of Finance) 1918 AD 512.
11 Supra.
the same person or agai nst different persons, the court may, after
hearing that person or giving him an opportunity of being heard, order
that no legal proceedings shall be instituted by him against any person
in any court or any inferior court without the leave of the court, or any
judge thereof, or that inferior court, as the case may be, and such leave
shall not be granted unless the court or judge or the inferior court, as
the case may be, is satisfied that the proceedings are not an abuse of
the process of the court and that there is prima facie ground for the
proceedings.
(c) An order under paragraph … (b) may be issued for an indefinite
period or for such period as the court may determine, and the court
may at any time, on good cause shown, rescind or vary any order so
issued.
(2) …
(3) The registrar of the court in which an order under subsection (1) is
made, shall cause a copy thereof to be published as soon as possible in
the Gazette.
(4) Any person against whom an order has been made under subsection
(1) who institutes any legal proceedings against any person in any court or
any inferior court without the leave of that court or a judge thereof or that
inferior court, shall be guilty of contempt of court and be liable upon conviction
to a fine not exceeding one hundred po unds or to imprisonment for a period
not exceeding six months.”
12. In Fisheries Development Corporation of SA Ltd v Jorgensen and another 12 it
12 1979 (3) SA 1331 (W) at 1339F.
was held that, in its legal sense, “vexatious” means “frivolous, improper, instituted
without proper ground, to ser ve solely as an annoyance …”. The Court proceeded
that “ [v]exatious proceedings would also no doubt include proceedings which,
although properly instituted, are continued with the sole purpose of causing
annoyance to the defendant; ‘abuse’ connotes a mis-use, an improper use, a
use mala fide, a use for an ulterior motive.”
13. In Corderoy supra the Court stated (prior to the promulgation of the Act, but
the principle remains apposite) that the power in question is one which should be
very cautiously exercised because it affects the elemental right of free access to
courts, with which the courts should be slow to interfere except in exceptional and
necessary instances and only in a clear case.13
14. In Golden International Navigation SA v Zeba Maritime Co Ltd 14 this Court
said the following:
“[26] I am mindful of the fact that the court's power to s trike out a claim on the
basis that it is vexatious or an abuse of its process is an exceptional one
which must be exercised with very great caution, and only in a clear case.
However, I respectfully disagree with dicta that go further by requiring that th is
conclusion 'must appear as a certainty and not merely on a preponderance of
probability'. (My emphasis.) This requirement appears to originate from a
dictum in the minority judgment of Holmes JA in the African Farms and
Townships case. The two cases cit ed by the learned judge of appeal in
support of this proposition do not, however, provide such support.
Furthermore, the proposition flies in the face of our rules of evidence, by
which a preponderance of probability in favour of a litigant is sufficient t o
decide any civil case in favour of such litigant. (Even the most serious criminal
charge is decided beyond reasonable doubt, and not with 'certainty'.) I
13 At 517.
14 2008 (3) SA 10 (C) at para [26].
accordingly respectfully decline to follow the authorities that appear to lay
down such a requirement."
15. The Act does not define a vexatious action, but authorises the Court to
prohibit legal proceedings by any person who has persistently and without any
reasonable ground instituted legal proceedings. To obtain relief in terms of section
2(1)(b) of the A ct, the applicant thus has to meet two threshold requirements: firstly,
that the respondent has persistently instituted legal proceedings and, secondly, that
such proceedings have been instituted without reasonable grounds.15
16. In Absa Bank Ltd v Dlamini 16 the Court discusses the principles that find
application in matters of this nature and comes to the following conclusion:
“[32] Consequently, in summary, the following appears to be the position: the
only manner by which the institution of future vexatiou s proceedings can be
prevented is to rely on the provisions of the Act; the only manner to stay,
strike out or otherwise deal with vexatious proceedings which have already
been instituted, or to deal with any process or action or inaction leading up to,
or during or subsequent to, any legal proceeding or proceedings already
instituted, and which constitutes an abuse of process, or generally brings the
administration of justice into disrepute, shall be done in terms of the
applicable common -law principles an d the court's inherent power to apply
same."
17. For the purposes of the Act the element of persistency is a necessary one. 17
In State Attorney v Sitebe18 the Court held that, in considering a general prohibition
on litigation in terms of the Act, the Court w ill consider the general character and
15 Cohen v Cohen 2003 (1) SA 103 (C) at para [17].
16 2008 (2) SA 262 (T) at para [32].
17 Fitchet v Fitchet 1987 (1) SA 450 (E) at 454B.
18 1961 (2) SA 159 (N) at 160H.
result of the action and not merely whether there may not have been possible
causes of action in some of the cases, as well as exceptional circumstances where
the number of occasions is comparatively small.
18. In Heugh v Gubb 19 the Court was hesitant to apply the Act to a litigant who,
through financial stringency, drew his pleadings himself and had had two
summonses set aside as being defective and irregular. The Court did, however, warn
that if a further defective summons were to be issued, the Court might well come to a
different conclusion, particularly if any part of the costs of legal proceedings awarded
to the applicants were to be unpaid.
19. In Caluza v Minister of Justice 20 the Court set aside an action with costs by
reason of non -compliance with the provisions of Rule 47 requiring the furnishing of
security for costs within a reasonable time, and referred the papers in the case to the
Deputy State Attorney with a view to instituting proceedings under the Act.
20. Attempts to have the Act declared unconstitutional have been unsuccessful.
In Beinash v Ernst and Young 21 the Constitutional Court held that the Act achieves
its purpose of putting a stop to the persistent and ungrounded institution of legal
proceedings by allowing a court to screen (as opposed to absolute barring) a person
who has “ persistently and without a ny reasonable ground ” instituted legal
proceedings in any court or inferior court. It also added that the screening
mechanism is necessary to protect two important interests, namely the interest of the
victims of the vexatious litigant who have repeatedly been subject to costs,
harassment and embarrassment of unmeritorious litigation, and the public interest
that the functioning of the courts and the administration of justice should proceed
unimpeded by the clog of groundless proceedings. The Constitutiona l Court also
held that, although the procedural barrier serves to restrict access to courts in the
19 1980 (1) SA 699 (C) at 702H.
20 1969 (1) SA 251 (N) at 255C-H.
21 1999 (2) SA 116 (CC) at paras [17]-[18].
face of the provisions of section 34 of the Constitution of the Republic of South
Africa, 1996, the limitation imposed in justifiable in terms of section 36 of the
Constitution.
21. Against this background, I turn to the facts giving rise to the current dispute.
Summary of the facts
The main action
22. The parties are embroiled in an action which involves an ownership dispute. 22
The applicant, the plaintiff in th e action, has been substituted 23 for the erstwhile
plaintiff, Mr Giancarlo de Filippo (the current plaintiff’s father), who passed away on
9 August 2018.
23. The facts giving rise to the dispute are, briefly, the following: Mr Giancarlo de
Filippo and the respondent24 had a romantic relationship . They lived together from
2009 to 2014, when Mr de Filippo terminated the relationship.
24. While the parties were still together , two immovable properties were
purchased in Cape Town, namely 1 […] C[…] Road, Constantia (“K[…] C[…]”) and
[…] B[…] Avenue, Contantia (“B […]”). The purchase of both properties was funded
by Mr d e Filippo, and acquired in the respondent’s name for reasons that are not
relevant for the purposes of this application.
25. B[…] was sold after the termination of the parties’ relationship. The
respondent retained the proceeds of the sale. She also continued to reside at K […]
C[…] with Mr de Filippo’s consent. She is still residing there.
22 The matter is a contractual one; the parties do not owe each other any maintenance obligation.
23 Under Rule 15(3) of the Uniform Rules of Court.
24 Both Italian citizens.
26. The applicant, as plaintiff, alleges the existence of an oral agreement between
the parties to the effect that Mr d e Filippo had agreed to fund the purchase of the
properties to be registered in the respondent’s name, on condition that they would
eventually be sold and the proceeds paid to Mr d e Filippo. The applicant thus seeks
an order that the proceeds of the B […] property be paid to him, and that the K […]
C[…] property be sold and the proceeds paid to the applicant.
27. The respondent, as defendant in the action, denies the existence of the oral
agreement. She contends that the properties were donated to her.
28. On 25 April 2017 Mr de Filippo obtained an order (“the anti-dissipation order”),
inter alia interdicting the respondent from alienating K[…] C[…], and from disposing
of the proceeds from the sale of B […], pending the outcome of the action. The
action was instituted shortly thereafter.
29. The parties have since been engaged in several interlocutory applications –
the majority brought at the respondent’s behest - which have delayed the
commencement of the trial.
30. Since 2016 , when th e litigation between the parties commenced , attorneys
have come on record for the respondent on eight occasions , and she was, at
different times, represented by at least five advocates, three of whom were senior
counsel.
31. On the last two occasions when the trial was set down (being 12 March 2024
and again on 29 July 2024), the respondent was unrepresented. This caused, on
each occasion, a postponement to assist her in obtaining legal representation, to no
avail.
32. It is as well to deal at this juncture with the reasons proffered by the
respondent for her failure to engage legal representation. In her oral evidence before
this Court in opposition to this application ,25 the respondent explained that she had
approached various attorneys, but that they were not willing to assist her. She
provided a list of the attorneys that she approached, but could not be specific as to
exactly when she asked for assistance from each of them. It transpired that the
respondent had requested those attorneys to assist her on a contingency basis as,
so she stated, she could not afford legal representation.
33. Under cross-examination the respondent admitted that she had in 2019 sold
an apartment i n France, ten kilometers from Monaco, for which Mr Giancarlo de
Filippo had paid €1 455 000,00 in 2009. The latter had purchased the apartment in a
real estate company of which he and the respondent were the only shareholders,
with him holding a usufruct and the respondent the remaining interest, a scheme that
enabled her to reunite the usufruct with the remaining interest upon his death in 2018
and resulting in her becoming the legal owner of the company and its significant
asset. She was at liberty to use or dispose of the apartment as she saw fit.
34. The respondent was adamant that the sale price and the whereabouts of the
proceeds of the sale w ere none of the applicant’s or this Court’s business, and
refused to disclose what she ha d done with the funds. The impression with which
the Court was left was that the respondent was of the view that her overseas funds
were to be left untouched, and that she was unwilling to use them to defend the
action in South Africa. The proceeds are, in her mind, safely out of reach overseas.
35. Taking into account the current exchange rate, and assuming that the
apartment was sold f or the same amount as that for which it had been purchased
(she has not protested that it was sold for less), the probabilities are that the
respondent has access to some R28 million from the sale.
25 As I have mentioned, the respondent failed to deliver an answering affidavit but wished to oppose
the application.
36. The respondent’s evidence also indicated that she did not trust or “like”
lawyers who displayed anything but the fullest confidence in her case. It appeared
that several of the firms that she had consulted conveyed doubts about the merits of
her case to her. This resulted in her not engaging them.
37. According to the respondent, most of her legal representatives had failed her
either because they were in cahoots with the applicant's legal team or intimidated by
the applicant’s senior counsel – allegations without substance that have been
repeated throughout correspondence and affidavits before this Court, as well as
before the Honourable Justice Cloete at the time when the matter was declared trial
ready, and before the Honourable Acting Justice Sidaki whe n the trial was set down
for hearing on 12 March 2024.26
38. It is clear from the record, as well as from the evidence she gave at the
hearing of this application, that the respondent has long since decided that she was
not going to get a fair trial. It seem s that the principal basis for that belief is simply
that the possibility exists of her defence in the action not being upheld.
The rescission applications and the variation application
39. During 2017 the respondent applied for the rescission of the anti -dissipation
order.
40. In a judgment 27 dated 8 September 2017 the Court (the Honourable Acting
Justice Golden presiding) dismissed, with costs, the first rescission application.
41. The Court further declared the respondent to be in contempt of the disclosure
26 Similar allegations were made before the Taxing Master at the taxation in 2024 of various costs
orders that had been granted against the respondent over the preceding years.
27 Unreported judgement under case number 23724/2016, delivered on 8 September 2017.
orders of Baartman J of 25 April 2017 , as well as of a further disclosure order
granted by Golden AJ herself of 31 May 2017, and ordered the respondent to pay a
fine, which order was suspended for a period of two years. Golden AJ ordered the
respondent to pay the costs of the contempt application on the attorney -and-client
scale.
42. The Court ordered the proceeds of the sale of the B […] property to be held in
the trust account of B owman Gilfillan Inc, the respondent's fourth set of attorneys,
pending the finalisation of the action between the parties.
43. In determining the first rescission application, the Court remarked as follows:28
"ft is not in dispute that the Respondent did not comply with the Order granted
by Baartman J on 25 April 2017. In paragraph 8 of her founding affidavit in the
rescission application the respondent alleges that she had received negligent
advice and ineffectual representation from her at torney and advocate which
compromised her constitutional right of access to the court, and that her legal
representatives had prejudiced her constitutional right to privacy, by their
conduct. This, she states, is the basis of her rescission application."
44. The Court held:29
"It is fair to state that the Respondent was trying to avoid compliance with the
25 April 2017 Order, in particular, the obligation to make full disclosure of the
proceeds of the B[…] property sale and the bank account where the pro ceeds
were held. The rescission application was a means to achieve this end.
Given the Respondent's attitude in this matter, her persistent refusal and/or
reluctance to be completely forthright with this Court with regard to the
28 At para [16].
29 At paras [49]-[50].
proceeds of the sale of the B[…] property and her bank accounts, the serious
contradictions in her affidavits, and the timing of the rescission application ,
the application is not, in my view, a bona fide one."
45. On 25 May 2018 the Court (the Honourable Acting Justice Holderness
presiding) dismissed, with costs, the respondent’s subsequent application for the
variation of the antidissipation order.30
46. On 9 February 2024 the respondent instituted another application for the
rescission of the anti-dissipation order, making no ment ion at all in her papers of the
fact and fate of the first rescission application. She asked, too, that the trial be struck
from the roll pending the determination of the second rescission application, and that
the taxation of various costs orders granted against her over the preceding years be
stayed. The application was instituted by way of the long form, just over a month
before the trial was initially set down for hearing in 12 March 2024.
47. On 13 March 2024 the Court, having declined to determine the second
rescission application, postponed the trial because the respondent (who had – as I
have mentioned earlier - by then dispensed with the services of attorneys
representing her on eight occasions) was again unrepresented. The trial was
subsequently set down for hearing on 29 July 2024, together with the pending
interlocutory applications, including this application.
48. The second rescission application was dismissed on 29 July 2024, with costs
on a punitive scale. 31 The application was wholly without merit. It made offensive
allegations, without substantiation, against officers of this Court, and relied on matter
that is res iudicata . It further sought relief that was moot (the taxation process
sought to be stayed had by then been finalized) or not competent (it sought the
removal of the trial from the roll). The second rescission application, like its
30 Unreported judgment under case number 23724/2016, delivered on 25 May 2018.
31 Written reasons were given on 11 September 2024.
predecessor, was not a bona fide one. It was instituted shortly before the
commencement of the trial on 12 March 2024, despite its clear lack of merit, and was
yet another atte mpt to delay the determination of a dispute which has its genesis
almost eight years ago.
Further interlocutory litigation
49. I return to events prior to 2024. Following the dismissal of the variation
application, the respondent gave notice of an intention to amend her plea in the
action. The applicant opposed the amendment on the basis that it would render the
plea excipiable. The amendment was nevertheless allowed on application. A n
application for leave to appeal was dismissed by this Court and, subsequently, by
the Supreme Court of Appeal. However, the applicant’s exception to the amended
plea was upheld by the Honourable Just ice Mangcu-Lockwood on 22 February
2022.32 The Court dismissed, with costs, a special plea of issue estoppel raised by
the respondent.
50. In the same judgment, the Court formally substituted the applicant for Mr
Giancarlo de Filippo , with retrospective·effect from 11 October 2018 (following the
respondent’s allegations that no proper substitution had taken place) ; dismissed an
application by the r espondent in terms of Rule 15 to have the 11 October 2018
substitution of the applicant for Mr Giancarlo de Filippo set aside; and ordered the
respondent to pay the costs of the failed Rule 15 application, as well as of a failed
Rule 30 application, which was an unsuccessful attempt to prevent the taxation of
the cost orders granted against the respondent up to that date.
51. The Court subsequently dismissed, with costs, the respondent's application
for leave to appeal against the order dismissing the special plea of issue estoppel.
The respondent’s subsequent petition for leave to appeal to the Supreme Court of
32 Unreported judgment under case numbers 23724/2016 and 11709/2017, delivered on 22 February
2024.
Appeal suffered the same fate.
Events leading up to the commencement of the trial on 12 March 2024
52. On 3 November 2023 Cloete J issued a certificate of trial readiness . At the
time, the applicant formally placed the following on record: "The Plaintiff records that
he is prejudiced by the Defendant's continuous attempts to delay the finalisation of
this matter. The Defendant records that she does not agree but that she too wishes
the matter to be finalised as quickly as possible. The Acting Deputy Judge President
has thus granted permission for an expedited trial date, preferably in the first term of
2024."
53. The transcript of the proceedings indicates that Cloete J emphatically urged
the respondent to obtain legal representation, and the services of an interpreter,
without delay. The respondent was furthered warned to desist from making
unsubstantiated, offensive allegations against the attorneys and advocates involved
in the matter, whether on her own behalf or on behalf of the applicant.
54. Cloete J directed the applicant to take various steps to ensure that the matter
was ready to commence on the set -down date, and to assist the respondent –
unrepresented at the time – in preparing for trial. The respondent was directed to
supplement the trial bundle in due course, if necessary. The applicant duly complied
with all of these directions.
55. The Registrar allocated 12 March 2024 as the expedited trial date. It soon
became apparent, however, that the respondent was not keen on going to trial. On
12 January 2024 the respondent sent an e-mail to the applicant’s attorneys in which
she stated: "Additionally, I have been tasked with filing a Notice of Motion to request
the set-aside of judgments against me, stemming from the Court Order dated April
25, 2017 obtained by agreement between the parties but without my knowledge and
without my consent. This order was obtained through fraudulent misconduct due to a
serious conflict of in terests on the part of your legal representatives with the
complicity of my own legal representatives and evidences will be attached to my
affidavit in support of the Motion."
56. This was a reference to the second re scission application. I have already
indicated that that application was subsequently dismissed, with costs on a punitive
scale.
57. On 17 January 2024 the applicant’s attorneys replied that they were awaiting
delivery of the second rescission application.
58. On 26 January 2024 they wrote a letter to the respondent in which they
reminded her that the certificate issued by Cloete J recorded that the respondent
wanted the matter "finalised as quickly as possible" and that, at the behest of Cloete
J, the Acting Deputy Judge President gr anted permission for the matter to be set
down on an expedited dat e. The applicant had by that stage complied with his
obligations under the certificate in preparation for trial, and the respondent had to
comply with her obligation of supplementing the tr ial bundle. If it w as the
respondent’s intention to appoint a legal representative to represent her at the trial,
she was urged to do so timeously to ensure that the matter proceed on the allocated
date. The letter concluded as follows: "Should you attemp t to have the trial
postponed because the legal r epresentative(s) that you may wish to appoint did not
have sufficient time to prepare, or for any other reason, this letter will be disclosed to
the Court."
59. The respondent indicated in an e-mail dated 29 January 2024 that she wished
for a swift resolution of the matter "but not necessarily with the trial". As reason for
not wanting to go to trial, she claimed various unidentified previous irregularities,
misconduct on her legal representatives’ and the appl icant’s legal representatives’
-
part, and a gross conflict of interest which allegedly led her seriously to doubt that
she would receive a fair trial . She claimed that there were alternative ways, which
she did not identify, to conclude the matter. She concluded by saying: "I urge you to
reconsider the approach taken in your recent letter and to engage in a more
constructive and fair dialogue. It is in the best interest of all parties involved to
ensure a just and equitable resolution to this matter."33
60. On 5 February 2024 the applicant’s attorneys sent another e -mail to the
respondent in which they said that "(w)e look forward to receiving the supplementary
trial bundle from you by no later than 12 February 2024". She responded on the
same date, claiming (amongst other things) that du ring the pre-trial meeting she had
expressed to the applicant's senior counsel and attorney all her concerns about
facing a trial , and that she had asked the senior counsel whether he was still ready
to go to trial "considering that before that, he had to afford and dealing with all my
allegations", to which he did not answer. On the respondent's version this was
tantamount to attempted blackmail.
61. In response, on 8 February 2024 the applicant’s attorneys noted the
respondent's intention to bring an application "asking to set aside all the proceedings
(trial and taxation)" , and reminded her that in 2017 already she had unsuccessfully
attempted to set aside the anti-dissipation order.
62. In the meantime, a fter numerous postpon ements, the costs orders made by
Golden AJ and Holderness AJ were again set down for taxation on 9 February 2024.
On that day the respondent instituted the second rescission application, which also
sought an order staying the taxation of the costs orders. The applicant’s attorneys
reminded the Taxing Master that the taxation of the applicant's bills of costs had
been dragging on since 2018 and that he had been prejudiced by a delay of about
33 The applicant points out that the respondent’s message could hardly be taken seriously since the
record reflects that the respondent had by that stage rejected numerous settlement proposals made
over the years, and reneged even on her own settlement proposals.
five years:
"Despite this inordinate delay, we have complied with all directions issued by
the various Taxing Masters over the years, including the most recent request
to furnish proof of payments, as confirme d by our cost consultant who
attended the taxation on 19 January 2024. We understand that upon
presentation of the proof of payments, you accepted same as being in order.
In contrast, Ms Micillo had undertaken to deliver a rescission application by 19
January 2024 to rescind the costs orders awarded against her, which she
failed to do.
We were further advised by our cost consultant that a postponement was
granted until tomorrow to allow Ms Micillo to obtain legal representation for
purposes of objecting to the items in our client's bills of costs. It would appear
that Ms Micillo has not done so."
63. On 9 February 2024 the respondent managed to persuade the Taxing Master
to postpone the taxation scheduled for that day and to allow her an opportunity to
lodge th e second rescission application at the Registrar's office. As a result, the
taxation was postponed yet again, to 15 March 2024, when it was finally dealt with.
64. Since by 12 February 2024 the respondent had not supplemented the trial
bundle as ordered by Clo ete J, the applicant’s attorney wrote to the respondent on
15 February 2024 regarding her failure in this regard , and concluded that it was
accepted that she did not intend to supplement the trial bundle. The respondent
wrote back, stating: "…did you note that I filed a Notice of Motion last Friday, e -
mailed to you the same day and delivered to your office last Monday the 12 th of
February? … Said that, the reason why I haven't supplemented your trial bundle has
already been explained by my e-mail to you on the 5th February 2024 …."
65. The applicant's attempts to have the trial commence on 12 March 2024 came
to naught. O n 13 March 2024 Sidaki AJ, having declined to determine the second
rescission application, postponed the trial to 29 July 20 24 for the reason that the
respondent was still unrepresented, even though there was no proper postponement
application before him.
66. The transcript of the proceedings of 12 and 13 March 2024 before Sidaki AJ is
again replete with the respondent’s unsubstantiated and defamatory accusations
against her own and the applicant's legal representatives . It is also foundational to
the application for her to be held in contempt of court. Whilst giving his judgment
postponing the trial, Sidaki AJ expressly directed the respondent to get legal
representation immediately, granting a postponement specifically to give her an
opportunity to do so. He pointed out that the respondent had been cautioned on
various occasions by the applicant’s attorneys to ensure that her legal representation
was ready for trial.
67. Sidaki AJ gave firm directives to the respondent to appoint legal
representatives without delay and to have them liaise with the applicant's legal
representatives to secure the commencement of the trial on 29 July 2024. It is clear
from the transcript of the proceedings that the r espondent understood this . She
confirmed that she understood and that she would give effect to the directives.
Events after 13 March 2024
68. On 14 March 2024, a day after Sidaki AJ postponed the trial, the respondent
sent an e-mail to the Taxing Master in which she requested "a postponement of our
scheduled appointment, which is currently set for tomorrow, March 15, 2024" ,
claiming that the matter regarding her "Notice of Motion to set aside the taxations
due to fraudulent misconduct is still pending and has not yet been discussed and
decided before the court".
69. The Taxing Master nevertheless requested all parties to be present at the
following day's taxation. When it bec ame clear that the taxation would go ahead,
the respondent insisted that the proceedings be recorded. The taxation thus
proceeded in court. The transcript of the proceedings illustrate s that the respondent
again made offensive remarks about the applicant's legal representatives,
notwithstanding Cloete J's warning in this respect.
70. In a letter dated 19 March 2024 the applicant’s attorneys referred the
respondent to their letter of 26 January 2024 , and urged her to appoint a lega l
representative timeously to ensure that the trial could proceed on 29 July 2024. She
was also referred to the directive issued by Sidaki AJ on 13 March 2024 ordering her
to secure legal representation expeditiously. She was reminded that the trial had
been postponed to 29 July 2024, a date to which she had agreed, and that she and
her legal representatives therefore had four months within which to prepare for the
trial. The letter concluded with a request to be informed of the identity of her legal
representatives.
71. On 2 April 2024 the applicant’s attorneys sent an e -mail in which they
reminded the respondent that they were awaiting confirmation of the appointment of
her legal representative.
72. On 18 April 2024 the applicant’s attorneys reminded the respondent that she
had still not responded to the m, and requested her to advise whether she intended
appointing legal representatives. They also said that if she had already appointed
legal representatives, she should provide their particulars.
73. In an e -mail of 18 April 2024 the respondent simply responded by saying: "I
am busy working on it. I will keep you update (sic)."
74. Further correspondence followed between the parties between late April 2024
and early June 2024 in an attempt to meet with the Acting Deputy Judge President to
ensure that there were no problems in the management of the trial . In the course of
the correspondence the applicant’s attorneys commented that if the respondent
failed to appoint legal representatives by a certain date , the a pplicant would lodge
another application for her to be held in contempt.
75. As matters turned out, the parties were not able to meet with the Acting Judge
President. Instead, on 3 June 2024, the applicant’s attorneys received an e -mail
from her Regi strar, Ms Potgieter, which reads as follows: "Please find draft order
attached. The Acting Judge President directed that you obtain a date in July 2024."
76. In an e -mail dated 6 June 2024, which was copied to Ms Potgieter, the
respondent wrote the following:
"I don't understand the draft order that, once again, has been unilaterally
written by your office. I remaind (sic) that Judge Sidaki make (sic) an orde r for
a date for trail (sic) for the 29
th July 2024. He also directed you to provide an
approach for both of us, with the Deputy Judge President or the Judge
President Goliath to discuss several administrative issues . Before trail (sic),
we have to deal with my Notice of Motion in a separate hearing and obviously
before a Trail (sic). Please provide me with explanation on the attached Draft
Order, thank you."
77. Also on 6 June 2024, the applicant’s attorneys responded to the respondent,
informing her that they did not prepare the draft order but that it had been sent to all
the parties by the Office of the Acting Judge President. They also informed Ms
Potgieter that the date of 29 July 2024 had already been allocated for the hearing of
the matter by agreement between the parties and referred her to Sidaki AJ's order.
78. The respondent replied on the same day:
"'You never received a draft order FROM ME!
1- As you know, I have to represent myself
2- My witnesses are in Europe and is necessary for the Court to organise
consequencelly (sic) and other issues have to be discuss (sic) with the JP.
3- Interpreter issue
Is evident that you are doing all is in your power to avoid this as I referred also
to Judge Sidaki . If you don't want to let me approach the JP for evi dent
reasons, another Urgent Rule 37 is required by me. Please reply in terms of
urgency''.
79. The respondent sent an other e-mail to Ms Potgieter in which she again
levelled accusations at the applicant's legal representatives: "I apologise for
disturbing you, but I'm being denied access to justice by the opposing legal team,
and this is not the first time, as detailed in my Notice of Motion. I am attaching all
recent correspondence between the parties and Mr. Booysen, wherein a meeting
with Acting Judge Pre sident Goliath has been requested in agreement between the
parties. As a foreign (sic) (Italian citizen and resident) defendant who is not legally
represented, who lacks a good command of the English language and knowledge of
South African law, this meeting is necessary to resolve administrative issues. I kindly
ask you to consider my request as it is in agreement between the parties.”
80. Ms Potgieter informed the respondent that neither the Acting Judge President
nor any other judge could assist her with leg al advice. She concluded as follows:
"Please apply for legal -aid or brief an attorney to assist you. You may see the Chief
Registrar, Ms David if you so please.”
81. In a letter dated 7 June 2024 the applicant ’s attorneys reminded the
respondent that, at her insistence, they had approached the Acting Judge President
for a meeting with the parties , in response to which she ordered them to proceed
with the trial, and all other applications (including the Respondent's "Notice of
Motion'), on 29 July 2024. They noted with concern that the respondent again
intended to represent herself, and reminded her that before the trial date of 12 March
2024 they had urged her to obtain legal representation on more than one occasion .
They pointed out that, this notwit hstanding, the trial was postponed on 13 March
2024 at her request to enable her to obtain legal representation.
82. The applicant’s attorneys pointed out that Sidaki AJ went so far as to direct
the respondent to obtain legal representation forthwith, but that she had again failed
to do so notwithstanding the fact that she had acknowledged this directive on more
than one occasion. She was, therefore, in contempt of court.
83. By then the respondent’s only re ply to the repeated requests for the
particulars of her legal representatives to enable the applicant to make arrangements
concerning the "administrative issues" referred to by her in her e -mails, was that she
was "working on it".
84. The practice directives require the parties to file a joint early allocation
practice note and since the trial date was only weeks away, this had to be done as
soon as possible . The applicant’s attorneys prepare a note for the respondent’s
consideration. After much to-ing and fro -ing about it, the respondent replied some
days later that:
"I will insert my concerns into the practice note and by then, I will also answer
to your letter of the 7t June 2024 h.14:12.
I asked for a meeting with you due to the fact that after our last Rule 37
meeting before Judge Cloete last November 2023, other matters that I
consider quite 'disturbing' have occurred after our Rule 37 hearing before
Judge Cloete last November 2023, and for this reason, I believe another Rule
37 meeting before a Judge is necessary considering the new facts occ urred
and my consequently new requests needs (sic) to be expose (sic) on the Rule
37. I thought it would be possible to avoid this procedure by approaching the
Deputy Judge President or the Acting Judge President together as directed by
Judge Sidaki .. ... Please let me know in terms of urgency. if you want to
consider my above request which are necessary to ensure that my rights to a
fair trial are respected."
85. On 12 June 2024 the respondent returned the early allocation practice note
prepared by the appli cant’s attorneys to them with her comments. Due to the
argumentative and unhelpful nature of her contributions, the applicant delivered his
own note, and the respondent was advised to deliver her own.
86. When the trial eventually commenced on 29 July 2024, t he respondent was
unrepresented. I have explained earlier that her evidence as to the reasons for her
situation was unsatisfactory.
87. On 29 July 2024 and 30 July 2024 the respondent’s second rescission
application was argued, as well as the present applica tion. Although there was an
attempt at running the trial on 31 July 2024, the respondent sought, and was
granted, a further postponement until 2 September 2024 for the specific purpose of
engaging attorneys. This was done to assist the respondent despite the absence of
a proper application for postponement, and in the face of the prejudice suffered by
the applicant in having to travel back and forth to Italy with no end in sight . The
respondent was warned that no further postponements for that purpose wou ld be
entertained, and that she would have to act expeditiously to ensure that the trial
could finally get off the ground in September 2024.34
Conclusion on contempt and vexatious litigation
88. Against this backdrop, it is clear that the respondent did not comply with either
Cloete J’s or Sidaki AJ's directives in relation to obtaining legal representation. She
also did not use the further opportunity of a one-month postponement granted by this
Court on 31 July 2024 (to 2 September 2024) to obtain legal representation. She
gave no reason for her inactivity other than stating that it was for the same reason as
before – meaning that she could not pay for legal services. That excuse rings
hollow. The respondent cannot cry poverty on the one hand, and on the other refuse
to tell the Court what the status is of the proceeds of the sale of the apartment in
France.
89. The respondent was wilful in her failure to obtain legal representation. Her
oral evi dence revealed, moreover, that she did not g enuinely tr y to carry out the
Court’s directives, in that she persisted in refusing to pay for legal advice despite the
fact that she was on the probabilities able to do so, and further in that she refused to
appoint any legal representative who dared to give her objective advice . She was
not bona fide in such attempts as she did make to obtain representation. I am
therefore of the view that the respondent is in contempt of court for the third time.
90. Despite the admonishments of Cloete J, the respondent seemingly has no
intention of desisting from making vexatious and defamatory allegations directed at
the applicant's legal representatives and her own, which have no foundation in truth .
She does this in correspo ndence, on affidavit, and in court. More important,
34 The circumstances surrounding this postponement is set out in more detail in this Court’ s reasons
for the order granted on the merits of the action.
however, is the fact that every application instituted by her has been unsuccessful 35
and had no reasonable prospects of success, as illustrated by four judgments in this
Court, and the fact that her application and subsequent petition to the Supreme
Court of Appeal for leave to appeal in the issue estoppel matter were refused with
costs. Both elements required by the Act for the declaration of the respondent as a
vexatious litigant, namely persistence and the absence of reasonable grounds, are
present in this matter.
91. The applicant has not only shown that the respondent has in the past
instituted proceedings against him persistently and without reasonable cause, but
also that further vexatious litigation might reasonably be expected. 36 The
respondent clearly held the view that a successful outcome to her second rescission
application would signal an end to the action, which was not the case, because the
commencement of the trial was not dependent upon the existence of the anti -
dissipation order. Despite having been advised of this on various occasions
between 9 February 2024 and 29 July 2024 , the respondent persisted with the
second rescission application.
92. Whilst the respondent bemoans the fact that the litigation between the parties
is dragging on, she is herself to blame for the state of affairs in instituting one
interlocutory a pplication after the other on flimsy ground s, and in engaging in
obstructive conduct in other respects . She complains, moreover, about a lack of
legal representation, but has persisted in the attitude of not wishing to pay for the
services of an attorney, and of not trusting any legal representative who offers advice
that does not accord with her own beliefs in the merits of her case. She has made
offensive allegations of the most serious kind against m ost of the attorneys and
advocates involved in this m atter to date, and it is thus small wonder that she now
35 Save for the amendment to her plea, but which amendment was subsequently successfully
excepted to.
36 See Member of the Executive Council of the Department of Co-operative Governance and
Traditional Affairs v Maphanqa [2020] 1 All SA 52 (SCA).
has to claim that none of the law firms which she has approached is prepared to
represent her.
93. It must be remembered too that the respondent is continuing to reside in a
house in Constantia which is part of the dispute between the parties (each party
claiming that it belongs to him or her) and in respect of which she is not paying
anything.37 She has over the past eight years 38 also been in receipt of a monthly
cash allowance from the proceeds of the sale of the B[…] property (the ownership of
which is also disputed) that are being held in the Bowman Gilfillan trust account, by
virtue of the provisions of the anti-dissipation order.
94. This matter has reached the stage where the respondent is abu sing the
process of this Court. This cannot be allowed to continue. In terms of section
2(1)(c) of the Act, an order under section 2(1)(b) may be given for a specific time
period, or indefinitely. I am of the view that, given the history between the par ties,
the order that I intend to grant should be in place indefinitely, until such time as the
order is varied or rescinded on good cause shown.
The costs of the postponement on 13 March 2024
95. On the facts set out above it is clear that the postponement o f the trial on
13 March 2024 was caused by the respondent’s conduct , in particular her failure to
heed Cloete J’s advice to obtain legal representation, and the institution of the
second rescission application as a mechanism to stall the trial.
96. There is thus no reason why she should not be ordered to pay the wasted
costs incurred as a result thereof. The trial was set down on 12 March 2024 and
finally postponed on 13 March 2024, and the respondent should pay the costs
37 The respondent complains that the house is falling apart, which indicates that she has not been
attending to necessary repairs and maintenance thereof.
38 At least until 2 September 2024, when judgment was granted again her in the trial.
incurred on both days.
Costs of this application
97. The respondent’s failure to comply with the Court’s directives constitutes
blameworthy conduct that justifies a punitive costs order.
98. Her conduct throughout the course of litigation can furthermore be regarded
as objectively vexatious, and warrants an award of costs on the attorney and client
scale.39
Order
99. In the circumstances, the following orders are granted:
99.1 The respondent is to pay the wasted costs incurred on 12 March 2024
and 13 March 2024 , occasioned by the postponement of the trial under case
number 11709/2017 on 13 March 2024.
99.2 The respondent is de clared to be in contempt of court for her failure to
comply with the directives issued by this Court on 13 March 2024 under case
number 11709/2017 that she must appoint legal representation without delay,
and the respondent is ordered to pay a fine of R25 000,00.
99.3 The res pondent is declared a vexatious litigant pursuant to the
provisions of section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (“the
Act”).
39 Johannesburg City Council v Television and Electrical Distributors (Pty) Ltd and another 1997 (1)
SA 157 (A) at 177D : “ … in appropriate circumstances the conduct of a li tigant may be adjudged
‘vexatious’ within the extended meaning that has been placed upon this terms in a number of
decisions, that is, when such conduct has resulted in ‘unnecessary trouble and expense which the
other side ought not to bear (In re Alluvial Creek 1929 CPD 532 at 535).”
99.4 The respondent is not allowed to institute any legal proceedings
against the applicant in any Division of the Hi gh Court of South Africa or in
any inferior court without the leave of the inferior court or of the High Court or
any judge of the High Court, as the case may be, as contemplated in section
2(1)(b) of the Act.
99.5 The Registrar is directed to cause a copy of this order to be published
in the Government Gazette, as contemplated in section 2(3) of the Act.
99.6 The respondent is to pay the costs of this application on the scale as
between attorney and client.
___________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the applicant: J. C. Heunis SC, instructed by Webber Wentzel Attorneys
The respondent in person