IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
STELLENBOSCH UNIVERSITY
and
GRANVILLE COLIN CARLSON
GORINGHAICONA HOME OF COLOURED
Date of hearing: 29 October 2024
Post-hearing note: 29 October 2024
Date of judgment: 22 November 2024
Case No: 12735/2023
Applicant
First Respondent
Second Respondent
JUDGMENT delivered electronically
PANGARKER AJ
Introduction
1. Section 1 (c) of the Constitution of South Africa, 1996, recognises the
supremacy of the rule of law and the Constitution as one of the core values upon which
the Republic of South Africa is founded. At the most basic of levels, it means that each
of us, including organs of State and Traditional leaders, is subject to the rule of law
and the Constitution. In respect of the latter, section 211 recognizes Traditional leaders
insofar as their institution, status and their role of traditional leadership are concerned,
but that their traditional authority and the application of customary law, where
applicable, are similarly subject to the Constitution.
2. In this matter, the applicant (the university) contends that the first respondent
personally and seemingly as a Traditional leader, monarch and/or king and
representative, has acted in a manner which signifies that he has no regard for the
rule of law in that it does not apply to him. I say seemingly because there is no
indication in the first respondent's (Carlson's) answering affidavit that he has been
recognised as a king in terms of section 8 of Chapter 2, Part 2 of the Traditional Khoi
san Leadership Act 19 of 2019. The university has submitted in its papers and during
argument of the contempt of Court application that Carlson is a self-appointed leader
and while I make no specific finding on this aspect because it is ultimately not relevant
to the contempt application, there is certainly no indication that the provisions of
section 8 of the aforementioned Act were complied with, but if so, the answering
affidavit is in any event silent on this aspect.
3. Having set the tone in the preceding paragraphs, the university approaches the
Court to hold Carlson, who also describes himself as His Majesty King Khoekhoe De
Goringhaicona the First, and also as a representative of Goringhaicona Home of
Co/oured1, the second respondent, in contempt of a Court order which declared both
1 Answering affidavit, p124
2
respondents as vexatious litigants. For all intents and purposes, Carlson represents
or is the alter ego of the second respondent.
Chronology and post-hearing developments
4. On 31 August 2023, under the same case number 12735/2023, the university
obtained an order from Nuku J declaring Carlson, Goringhaicona Home of Coloured
and/or any entity that Carlson is associated with, as vexatious litigants in terms of
section 2(1)(b) of the Vexations Proceedings Act 3 of 1956 (the Act). In terms of
paragraph 2 of the Nuku J order, Carlson and the second respondent were barred
from instituting any legal proceedings in any Court against the university without leave
of the High Court or any Judge thereof.
5. The above order was granted in view of Carlson's multiple frivolous and
persistent applications against the university seeking unsubstantiated relief and multi
million Rand claims. Carlson also instituted proceedings against the university in the
Traditional Lore Court of Equity of the Kingdom of Goringhaicona. According to the
history of the vexatious litigation application, Carlson contended that the Lore Court of
Equity granted a judgment against the university. The submission in this application is
that no such body and/or Court exists and if it does, it has no authority nor jurisdiction
over the university.
6. Notwithstanding the granting of the Nuku J order, and subsequent thereto
Carlson caused to be issued out of the Equality Court sitting in this Division, on 10
December 2023, an application under case number EC13/2023. The Equality Court
application was brought against various respondents, namely Cluver Markotter, the
university's legal representatives, the South African government, Stellenbosch
University, the Western Cape Government: Department of Cultural Affairs and Sport,
3
the City of Cape Town, Department of Justice, Department of Police2, National
Prosecuting Authority, Cape Town High Court and Stellenbosch· Magistrates' Court.
The Equality Court application was thus launched more than three months after the
Nuku J order and is currently pending in that Court.
7. On 8 September 2023, the Sheriff for Stellenbosch served a copy of the
vexatious litigant order on Carlson per electronic transmission to his email address as
reflected on the Sheriffs return of service3. In July 2024, the university launched this
contempt application and my understanding is that this date coincides more or less
with when it filed its answering affidavit in the Equality Court application. Carlson
delivered an answering affidavit to the current application.
8. On 7 August 2024, the contempt application was postponed to Fourth Division
for hearing on the semi-urgent roll with a timetable for the delivery of affidavits. Service
of the replying affidavit and updated Index in this application was effected, according
to the Sheriffs returns of service, per electronic transmission on the respondents. By
all accounts, and given the content of the affidavits herein and documents filed of
record, Carlson was aware of the date for the hearing of the opposed contempt
application.
9. When the application was called on 29 October 2024, Carlson was not present
at Court. His name was called outside the Courtroom and the Registrar reported that
he was absent, and there were no appearances on behalf of the respondents.
Counsel for the university then advised that emails were sent to the Acting Judge
President's secretary on 28 October 2024 enquiring about the allocation of this matter.
In reply, the secretary informed the university's legal representatives that the matter
was allocated for hearing on 29 October 2024.
2 Presumably this is a reference to the SAPS or Minister of Police, but it is unclear
3 PH3 to founding affidavit
4
10. Furthermore, email correspondence indicates that Carlson responded to the
legal representatives' enquiry regarding his Court attendance shortly after 22h00 that
evening, indicating his stance, which I summarise as follows: Carlson advised that he
had taken a significant decision in that he would be opening his own Court in South
Africa; that the legal system is plagued by "ongoing injustices and systemic issues"
and that ''we take bold steps towards achieving real justice for a/1"4. He goes further by
stating that his Court would be dedicated to addressing these issues and providing a
"fair and transparent process for all". Carlson signs off the email as HM King Khoekhoe
De Goringhiacona5.
11. However, not content to leave things be after advising the Acting Judge
President's secretary, the Registrars, the acting Court manager, the university's
counsel and his attorney of his plans to open his own Court, Carlson, as if to
foreshadow his later email and conduct, then issued a veiled threat which stated that:
"Also, the House of Carlson have (sic) made contact with the Russian
Parliament in aid of weapons to liberate my people from your law, we have
decided to pick up arms". 6
12. Having heard counsel's submissions and satisfied that Carlson was indeed
aware of the application and the day's proceedings, in fairness and in order to secure
Carlson's attendance at Court on the day, the matter stood down until at least 11 h30
for his attendance at the hearing. The idea was that the Registrar and the university's
legal representatives would contact Carlson with a view to enquiring whether he would
be attending the contempt of Court proceedings. The Registrar communicated with
Carlson per electronic mail at 1 0h30, informing him that the matter stood down for him
to attend Court and enquiring whether he wished the matter to be postponed. He was
4 Carlson email, 28 October 2024
5 I safely accept that "HM" is a reference to "His Majesty"
6 Carlson email, 28 October 2024
5
requested to respond urgently. Subsequently, having received no reply to the email
nor to calls made to Carlson's mobile phone numbers, the matter was recalled at
11 h30 and Carlson was still absent.
13. When the matter was recalled, counsel for the university placed on record that
messages were sent via WhatsApp to Carlson regarding his attendance at Court, but
that all indications were that he had not read the messages at that stage. Counsel
made submissions as to Carlson's non-attendance and having considered same, the
content of the Court file and returns of service, I was indeed satisfied that the
respondents were aware of the application, the Court date and time of hearing.
Furthermore, I accepted the submissions that Carlson was present in Court on 7
August 2024 before Montzinger AJ when the matter was postponed by agreement
between the parties to 29 October 2024. The order granted by Montzinger AJ confirms
that the postponement for hearing was by agreement between the parties.
14. Having satisfied myself of Carlson's knowledge of the application, and hearing
date, and having no postponement application before me, I was advised that the
university elected to proceed with the contempt application in Carlson's absence. The
application was thus duly argued, and in view of a question posed to counsel during
argument, counsel requested an opportunity to provide a brief post-hearing note,
which was duly provided later the same day.
15. After the hearing, the matter stood down to await the post-hearing Note, which
was received later the afternoon. It is at this stage that I was alerted to an email sent
by Carlson at 16h30 in which he responded to the Registrars' email of 1 0h30 that
morning when the matter stood down. The Registrar, the Court and legal
representatives for the university were met with what may only be described as a vile,
verbally abusive, expletive laden and insulting email from Carlson. The email becomes
relevant later in the consideration of the contempt application and to the extent
necessary, I set it out below, though omitting certain vulgar and verbally abusive
6
words and phrases directed at a Judge in this Division and the President of South
Africa:7
"Take your court and shuff (sic) it in your m&%# se p&%% you all corrupt m%$#
se p&%$ your judiciary is a flt.$% fluke and a joke you protect corrupt bastards
you, on my land you f$@& collaberators (sic) of the white bastards.
You tell Judge .... this is King Khoekhoe and tell her I say %$& $#@ %$ tell i
say #@% &%$# so the f%$#@ f&%$ n%$# with a @#$ &$#.
I dispise (sic) you your flt.$@! law".
16. In addition to the expletive-laden and abusive email from Carlson, he also
included another Notice of Motion which purports to be a review brought in terms of
Uniform Rule 53. While most of the relief from paragraphs 2 to 6 on page 2, under the
heading "Relief Sought" is on the face of it incompetent, paragraph 1 seeks a
declaratory order reviewing and setting aside the application under this case number
12735/2023 against HM King Khoekhoe De Goringhaicona. This new, un-issued
Notice of Motion, is brought against the Board of Directors of Stellenbosch University,
Ebosch Heritage Projects, Cluver and Markotter and Stellenbosch University.
17. The post-hearing Note addresses the question posed during the hearing and
also the effect and significance of the 29 October email and the latest Notice of Motion
launched by Carlson. These aspects are considered below in the discussion which
follows.
7 Carlson email, 29 October, 16h30
7
Discussion and findings
18. In its Notice of Motion, the university seeks a declaration that the first
respondent be found in contempt of the Nuku J order; directing him to withdraw his
complaint against it in the Equality Court matter and ordering Carlson to pay costs.
Briefly, the complaint in the Equality Court, brought against several respondents
including the university, deals with a number of grievances. The main complaint
against the university is that it uses the name "Krotoa" on one of its buildings, which
Carlson explains is derived from the Krotoa family of the Khoisan. Briefly, Carlson as
the King of the Krotoa family, explains that he is a descendant of Krotoa of
Goringhiacona, with Traditional reference number CKSM 1/70/20238.
19. Whether Carlson is a Traditional leader or not, or self-proclaimed, is unknown.
Certainly, the university is of the view that he is self-proclaimed and has assumed a
title unto himself. On the one hand, he identifies himself as Granville Colin Carlson,
also known as His Majesty King Khoekhoe, and on the other hand, he states that the
name Granville Colin Carlson is imposed upon him.
20. From the Nuku J order, which was granted pursuant to Carlson's applications
and actions under different case numbers, including legal proceedings demanding
$450 million from the university for trademark infringement, it is apparent that Carlson
and the second respondent were declared vexatious litigants in terms of the Vexatious
Proceedings Act. The application and documents purporting to be founding affidavits
in case number 8116/2023, another of Carlson's matters against the university, were
set aside by Cloete J on 25 August 2023.
8 See Equality Court affidavit
8
21. The university alleges that Carlson did not obtain leave from a Judge of this
Division nor the High Court before instituting such proceedings against the university.
Certainly, from the affidavits filed of record, this averment is not disputed. The
university's further averments and submissions are that Carlson is in contempt of
Court on two bases: firstly, insofar as contravention of section 2(4) of the Vexatious
Proceedings Act is concerned, and secondly, in respect of the ordinary rules of
contempt.
22. Having regard to the facts in this matter, and the chronology of events, Carlson
is indeed in contempt of Court as he instituted the Equality Court application after
being declared a vexatious litigant. Section 2( 1 )(b) of the Act prohibits Carlson and the
second respondent from instituting legal proceedings in any Court, and "any Court"
would include the Equality Court sitting in this Division. Certainly, the evidence points
to the conclusion that Carlson did not obtain leave from a Judge nor from the High
Court to institute the application against the university under case number EC13/2023.
23. At this juncture I must point out that on 30 October, a day after the hearing,
Carlson sent an email to the Chief Registrar and Court administration personnel and
others, which is titled "Letter to AJP in regards to Vexatious Litigant case number
20740/2022 From the Desk of His Majesty King Khoekhoe de Gori". In the email,
Carlson expresses surprise that on his attempt to have the Rule 53 application issued
at the Registrars' office, he was informed that he was declared a vexatious litigant.
Accordingly, he was confused as he had written to the Acting Judge President and
was (according to him) given permission in relation to the Equality Court matter, to
enter the Courtroom.
24. Attached to his email, Carlson addresses correspondence to the Acting Judge
President regarding case number 20740/2022. My research indicates that case
number 20740/2022 refers to a vexatious litigation application before Van Zyl AJ,
9
wherein she granted orders against Carlson in Emam v Carlson9, whereby Carlson
was declared a vexatious litigant and similar orders to those granted by Nuku J under
this case number.
25. The purpose and significance of Carlson's 30 October email is two-fold: firstly,
even though Carlson failed to appear at the contempt hearing on 29 October, he
cannot rely on his correspondence to the Acting Judge President in case number
207 40/2022 as some form of consent or leave from a Judge to institute legal
proceedings against the university. Secondly, it is telling that Carlson was declared a
vexatious litigant twice within the space of four months in 2023.
26. Turning to the ordinary rules of contempt of Court, the university has fulfilled
the requirements or test for contempt. Firstly, it has proved the existence of the order
granted by Nuku J on 31 August 2023. Secondly, the university has proved service of
the above-mentioned order on Carlson, as stated above, on 8 September 2023 and it
has shown that Carlson did not comply with the order in that he in.stituted the Equality
Court application without first obtaining leave of the High Court or a Judge to do so.
27. Having regard to these uncontested facts, and at the risk of repetition, it bears
emphasising that the Nuku J order does not allow Carlson and the second respondent
to institute any legal proceedings in any Court, yet this is exactly what Carlson
proceeded to do. Counsel for the university submitted that section 2(4) of the Act does
not require the recently declared vexatious litigant to have acted in bad faith and I
agree with this submission. Furthermore, section 2(4) simply requires the vexatious
litigant to have launched the proceedings in contravention of the section 2(1 )(b) order
and without leave of the High Court or a Judge.
9 (2023] ZAWCHC 68
10
28. Ultimately, Carlson's right to approach a Court is limited by the procedural
barrier imposed by section 2( 1 )(b) of the Act. In Beinash and Another v Ernst &
Young and Others10, Mokgoro J stated the following when referring to the limitation
of the access to justice right when having regard to section 36 of the Constitution:
'116] The effect of section 2(1)(b) of the Act is to impose a procedural barrier
to litigation on persons who are found to be vexatious litigants. This
serves to restrict the access of such persons to courts. That is its very
purpose. In so doing, it is inconsistent with section 34 of the Constitution
which protects the right of access for everyone and does not contain any
internal limitation of the right. The barrier which may be imposed under
section 2(1 )(b) therefore does limit the right of access to court protected
in section 34 of the Constitution. But in my view such a limitation is
reasonable and justifiable.11 "
29. Furthermore, Beinash makes it clear in paragraph [15] that the screening
mechanism in the Act, namely first seeking leave to institute proceedings, serves to
protect the victim of the vexatious litigant who is repeatedly subjected to unmeritorious
litigation, costs and embarrassment, and the public interest that the Courts and
administration of justice are not hamstrung by "the clog of groundless proceedings"12.
30. Turning to Carlson's answering affidavit, it becomes apparent that he does not
dispute the absence of having first sought leave from a Judge or Court before issuing
the Equality Court application against the university. Thus, on all the uncontested facts
10 [1998] ZACC 19
11 The remainder of paragraph [15], which sets out section 36 of the Constitution, and
footnotes, is excluded
12 Beinash supra, par [15]
11
before the Court, it is apparent that Carlson failed to seek such leave and in instituting
legal proceedings in the Equality Court, he disobeyed the Nuku J order.
31. The Notice of Motion seeks a declaration of contempt and the test in these
circumstances is the civil test, in other words, on a balance of probabilities 13. Once the
university has established the first three requirements, as referred to earlier, the
evidential burden then shifts to Carlson in respect of wilfulness and ma/a fide
conduct 14. In the founding affidavit, the university contends that although it did not seek
the imposition of committal to prison it remains within the Court's discretion to grant
such sanction should the Court believe that the requirements for contempt are
established beyond reasonable doubt, and that such sanction is justified.
32. In the replying affidavit, the university repeats its view that it is open to the Court
to impose a criminal sanction, even though such an order has not specifically been
requested in the Notice of Motion. The motivation for such averment and submission
is that Carlson is clearly guilty of contempt of Court. On this issue, I posed the question
to counsel as to whether this Court could commit Carlson to prison and/or impose a
wholly suspended period of committal to prison in circumstances where such relief
was not requested in its Notice of Motion. This question was thus addressed in the
university's post-hearing Note and I consider it after addressing Carlson's answering
affidavit.
33. Carlson's answering affidavit, stripped of its irrelevant matter, raises what may
charitably be referred to as defences to the contempt application. These defences are
summarised as follows:
13 Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52 par 22
14 Herbstein and Van Winsten The Civil Practice of the High Courts of South Africa, Fifth
Edition, Vol. 2, AC Cilliers, C Loots and HC Nel
12
33.1 a refusal to recognise or "acquiesce" to the High Courts' jurisdiction15;
33.2 the multiplicity of orders sought in a single case; and
33.3 that the matter must be heard by the Constitutional Court.
34. Unsurprisingly, paragraph 6 of the answering affidavit is indicative of Carlson's
view of the rule of law, the authority of the Courts, particularly the Western Cape High
Court, and the administration of justice generally. He states as follows:
"6. It is thus the position of the GORINHAICONA HOME OF COLOURED
AND HM KING KHOEKHOE DE GORINGHAICONA IMPOSED AS
GRANVILLE CARLSON, that it will not acquiesce to the jurisdiction of
the de jure High Court of South Africa (Western Cape Division, Cape
Town) because this will be tantamount to mocking, disobeying, nullifying
and voiding Chapter 12 of the Constitution of the Republic of South
Africa, 1996."
35. It is clear from the Carlson's answering affidavit, that he views the application
as an insult to the role of Traditional leaders and the tenets, strictures and belief
systems institutionalized in customary law16 and for that and other reasons, Carlson
will not "acquiesce" to this Court's jurisdiction. The problem with his stance is that
Carlson conveniently ignores that Chapter 12 of the Constitution, which deals with
Traditional leaders, makes it abundantly clear in section 211 (1 ), that the institution,
status and role of Traditional leadership according to customary law are recognised,
subject to the Constitution17.
15 Paragraph 6, answering affidavit
16 Paragraph 10, answering affidavit
17 My emphasis
13
36. Furthermore, while Carlson seems to believe that Traditional authority can or
may act with impunity, section 211 (2) of the Constitution says the contrary, in that the
observation of a system of customary law may function subject to applicable legislation
and custom. Put simply, Chapter 12 clarifies that Traditional leadership is subject to
the overarching provisions of the Constitution, meaning that a Traditional leadership
issue could be resolved by the Courts, as referred to in section 211(3) of the
Constitution.
37. Furthermore, in terms of section 169{ 1) of the Constitution, the High Court may
decide any constitutional matter and any other matter not assigned to any other Court.
It follows therefore from the provisions of the Constitution, that the High Court would
have jurisdiction in respect of a Traditional leadership or customary law issue.
However, even more significantly in my view, is section 21 of the Superior Courts Act
10 of 2013, which vests the High Court with jurisdiction over all persons residing or
being in and in relation to all causes of action and offences and all other matters of
which it may take cognisance of.
38. Thus, as Carlson lives in Stellenbosch, and the second respondent's address
is also in Stellenbosch, the Western Cape High Court indeed has jurisdiction over
these respondents. In my view, Carlson's belligerent attitude regarding jurisdiction is
ultimately irrelevant given the provisions of section 21 of the Superior Courts Act,
which vests the High Court with jurisdiction over him in this application. His suggested
defence regarding jurisdiction is irrational and unmeritorious, and his statements in his
affidavit and emails are indicative of disrespect and contempt for the High Court and
the rule of law itself.
39. Carlson's understanding of Chapter 12 is incorrect and possibly blinded by a
complete disregard of what the Constitution actually states in respect of the recognition
of customary law and traditional leadership, to suit his own purpose and narrative. If
anything, Chapter 12, read with sections 165, 166 and 169 of the Constitution
14
respectively, allows for a symbiotic relationship between Traditional leadership,
customary law and the South African Courts, including the High Court. Carlson's self
created Lore Court of Equity certainly has no jurisdiction nor authority in this matter,
as envisaged by the legislation I refer to above. Accordingly, this defence is without
merit.
40. In respect of the second defence, the complaint that there is a multiplicity of
Orders sought is similarly without merit. There is nothing procedurally wrong in a
litigant seeking more than one order in a matter and in this matter, the orders sought
are not incompetent. Lastly, Carlson is of the view that this matter and others must be
heard by the Constitutional Court. In this respect, his application to that Court under
Constitutional Court case number CCT226/24, against the university, its attorneys, the
Western Cape Government and the Department of Co-operative Governance and
Traditional Affairs, was refused on 6 September 2024 on the basis that Carlson, in his
many guises or capacities, had made out no case for direct access.
41 . In respect of the above order by the Constitutional Court, it is important to note
that Carlson approached the Constitutional Court after 31 August 202318, after being
declared a vexatious litigant, and without leave of the High Court or a Judge. It also
seems that no leave was granted by any other Court to institute such legal proceedings
against the university but Carlson simply forged ahead nonetheless. While the
contempt application did not initially have as its basis the subsequent application to
the Constitutional Court for direct access, Carlson's persistent actions of instituting
proceedings subsequent to the vexatious litigant order is indicative of his continued
contempt and disobedience in respect of such order. In conclusion on these aspects,
Carlson raises no defences to the contempt application.
18 My emphasis
15
42. This leaves the question posed as to whether this Court, having found Carlson
to be in contempt of the Nuku J Order by issuing the Equality Court application
subsequently, is competent to impose a criminal sanction where it was not specifically
requested in the university's Notice of fvlotion? The submissions are that Carlson was
given notice that the university would seek to request the Court to impose a fine or a
suspended period of imprisonment by way of certain paragraphs in the founding and
replying affidavits19, the Practice Note in the August 2024 proceedings, heads of
argument and the recent Practice Note in these proceedings. It is submitted that a
suspended committal or fine is warranted in that Carlson has wilfully disobeyed the
Nuku J order and acted ma/a tide by instituting further matter(s) without leave of the
High Court or a Judge to do so.
43. The university submits that its failure to expressly seek a criminal sanction for
contempt is not a barrier to the Court granting such Order against Carlson. The
argument relies upon the Constitutional Court judgment of Pheko and Others v
Ekurhuleni Metropolitan Municipality (2)20 which states the following at paragraph
[26] of the judgment:
'126] The starting point is the Constitution. It declares its own supremacy and
this supremacy pervades all Jaw. Section 165 vouchsafes judicial authority. It
provides that courts are vested with judicial authority and that no person or
organ of state may interfere with the functioning of the courts. The Constitution
explicitly enjoins organs of state to assist and protect the courts to ensure their
independence, impartiality, dignity, accessibility and effectiveness. In order to
ensure that the courts' authority is effective, section 165(5) makes an order of
court binding on "all persons to whom and organs of state to which it applies".
These obligations must be fulfilled. It is significant that this subsection
specifically mentions organs of state, for 'Justiciability and powers of
constitutional review make sense only if non-judicial authorities cannot and do
not undo court orders and/or their consequences". These sections, read
alongside the interpretive injunction of the supremacy clause, demonstrate why
19 Par 31 founding affidavit, pl0; par 10 replying affidavit, p132
20 2015 (5) SA 600 (CC) at par [26]
16
continual non-compliance with court orders and decisions would, inevitably,
lead to a situation of constitutional crisis.
11
(Footnotes omitted)
44. It is thus evident that the remedy for contempt of Court exists not only to force
compliance for the civil litigant's benefit, but also to vindicate the Court's judicial
authority. In Fakie NO v CCII Systems (Pty) Ltd21, Farlam JA writing for the Supreme
Court of Appeal stated with reference to contempt of Court that:
"{6] It is a crime unlawfully and intentionally to disobey a court order.
This type of contempt of court is part of a broader offence, which can
take many forms, but the essence of which lies in violating the dignity,
repute or authority of the court. The offence has in general terms
received a constitutional 'stamp of approval', since the rule of law - a
founding value of the Constitution - 'requires that the dignity and
authority of the courts, as well as their capacity to carry out their
functions, should always be maintained'.
11
(Footnotes omitted)
45. In this matter, and from the facts, I am able to find that Carlson has not merely
disregarded the Nuku J order, but has deliberately and intentionally disobeyed the
order by instituting the Equality Court application without first seeking leave of a Judge
or the High Court. Secondly, he thereafter approached the Constitutional Court for
direct access in another matter against the university, also without first seeking leave
as described above. I must pause to point out that the order relates to the university,
as Carlson's opponent in both matters thus leave was first required.
21 2006 [ZASCA] 52 par [6]
17
46. Furthermore, while his disobedience and non-compliance with the order are
evident from the abovementioned actions, Carlson then gives notice in an email of
what little regard he has for the High Court and the legal system as he intends opening
his own Court, that "we" decided to pick up arms and then goes a step further, by
insulting, verbally abusing and attacking a Judge in this Division in a vile and expletive
laden email to all and sundry. In addition to that, Carlson, seemingly unrestrained and
conducting himself as if he is at liberty to do whatever he likes, approaches the
Registrar again, without leave and again in disobedience of the Nuku J order, to review
the current application which is pending.
47. In my view, all of these actions and conduct contribute to showing that Carlson
has indeed acted wilfully and with ma/a fide, unconcerned about the restrictions
imposed upon him by the Nuku J order and is clearly on his own crusade. These are
not the actions and conduct of a person who genuinely, albeit mistakenly, believes
that he is entitled to act as he should and I say so because Carlson clearly knows that
an order was granted declaring him to be a vexatious litigant and he was required to
attend Court but further than that, it is evident from his emails that he also knows that
he, as with all of us, is bound by the rule of law which requires of him to obey Court
orders. As illustrated in this judgment, Carlson simply refuses to obey or comply with
the Court order.
48. Instead, Carlson gives notice that he intends to establish his own Court; fails to
appear at Court on the hearing date, notwithstanding knowledge of the date and
hearing and he contemptuously and in a vulgar and abusive manner shows his utter
disdain for this Court and the rule of law in general. From the above illustration of his
conduct, I am thus satisfied that the university has shown that Carlson has acted
wilfully, and disobediently in relation to the Nuku J order. However, it does not end
there. According to Fakie N02 2, the contemnor has an evidential burden in relation to
wilfulness and ma/a fide. In other words, if the contemnor fails to raise reasonable
doubt in relation to wilfulness and ma/a fide, then the applicant would have succeeded
22 Par [42]
18
in proving contempt beyond reasonable doubt23. From the facts as described in this
matter, and the conduct of Carlson, which has been nothing less than contumacious
disrespect for the rule of law and judicial authority, I am indeed satisfied that the
university has succeeded in establishing Carlson's contempt beyond reasonable
doubt.
49. The question which further arises is whether, in view of the finding of contempt
made beyond reasonable doubt, I may impose a committal order or punitive sanction
even though it is not prayed for in the Notice of Motion? On this question, counsel for
the university has submitted that he could not find cases on point which demonstrate
that an applicant in a contempt application who/which seeks a declaration of contempt
(the civil remedy of enforcement) leaves the imposition of a criminal remedy or
committal to prison in the Court's hands and in fact argues that such penal sanction
should be imposed.
50. At this juncture I must clarify that the draft order handed up for consideration at
the conclusion of the hearing seeks, inter a/ia, an order imposing three months'
imprisonment wholly suspended for five years on certain conditions. The general view,
having regard to various authorities on civil contempt, is that it is undisputed that a
Court has the power to impose a criminal sanction in contempt applications. However,
in this matter the university relies on authorities such as Cape Times Ltd v Union
Trades Directories (Pty) Ltd24 and Fakie NO to contend that any person has the right
to inform the Court that its processes are being abused and the Court, considering the
circumstances, will issue a rule nisi if it deems fit. Secondly, it is submitted that there
is no bar to a litigant bringing to the Court's attention, criminal contempt which is
connected with a breach of an order obtained in civil proceedings.
23 See also Department of Environmental Affairs, Forestry and Fisheries v B Xulu & Partners
Incorporated and Others [2021] 3 All SA 166 (WCC) par 22 -23
24 1956 (1) SA 105 (N)
19
51 Thirdly, the university submits that, with reference to contempt applications, it
may be regarded as an informer and relies upon Secretary of the Judicial
Commission of Inquiry into allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State v Zuma and Others25 to argue that
where a person who approaches a Court does not seek relief to enforce an order but
merely punishment to vindicate the Court's authority, they are treated as an informer
and the Court may act on the informer's information.
52. Counsel argues further that this is a hybrid case because the university
approached the Court seeking the civil remedy, being a declaration of contempt, and
compliance with the vexatious litigant order, however, it is simultaneously the informer,
informing the Court of Carlson's contempt as the matter progressed. It thus argues
that although a declaration of contempt was/is sought, certain facts were not present
when it applied for such relief as per the Notice of Motion but, so the submission goes,
the Court nonetheless has the power to impose a criminal sanction, provided that it
follows a fair process.
53. Having regard to the submissions and request that a suspended punitive
sanction be imposed, I firstly state that this is indeed a matter where, as time has
passed, the conduct of Carlson and his Goringhaicona Home of Coloured, has
become progressively more contemptuous, not only of the Nuku J order but also in
respect of the Courts' authority. Put differently, the contempt of and disobedience to
the Nuku J order is continuous and there seems little or no prospect that the
respondents' conduct will abate. As sketched above, Carlson will not and does not
accept the Courts' jurisdiction and authority over him and thinks nothing of threatening
to take up arms for his cause, to verbally abuse and insult a Judge and the Western
Cape High Court as the relevant judicial authority over him.
25 2021 (5) SA 327 (CC) par 184 (Theron J dissenting)
20
54. Insofar as fair process or procedure is concerned, and having regard to the
university's submissions, Carlson was indeed made aware in the founding and
replying affidavits, the Practice Notes and heads of argument, that the university
motivates for a finding that his contempt is proved beyond reasonable doubt and that
the imposition of a criminal or punitive sanction is left in the Court's hands.
55. Furthermore, opportunities were given to Carlson to attend Court for the
hearing, but he elected or refused to heed the call to attend Court, despite service and
knowledge of the Nuku J order and the contempt application. Aside from these factors,
it is important to stress that this Court's approach in the matter has been to consider
his defences raised in the answering affidavit notwithstanding his absence during the
proceedings and to address the merits and demerits of these defences in this
judgment. Ultimately, I conclude that in relation to Carlson and the second respondent,
a fair process or procedure has ensued in this application.
56. Moving on, the question as to whether the university is an informer which is
entitled to approach the Court and seek a punitive sanction, as described above, is
slightly more nuanced than the university makes out. The university relies upon the
Cape Times Ltd judgment to bring itself within the description of an informer in the
context of contempt applications. Turning to the abovementioned judgment, the appeal
in the then Natal Provincial Division (NPD) addressed a number of interesting aspects
regarding contempt of Court, more specifically locus standi where the punishment
does not seek to coerce compliance with an order.
57. The Court in Cape Times Ltd referred to a judgment of Corinbatore26, where
an advocate who previously represented seamen in an interdict matter, but was not
instructed to represent them in a contempt matter against one McCarthy, approached
26 P124 A-B
21
the Court and placed an affidavit before it27, presenting facts to the Court and held
himself "in submission to pursue such course as to this Honourable Court it may seem
well to direct'128. The advocate had cited no respondents, explained McCarthy's
disobedience to the order and on the information presented to it, the Court issued a
rule nisi calling on McCarthy to indicate why he should not be punished for contempt.
Thus, in Cape Times Ltd, the view was expressed that there was no bar to a party
bringing circumstances constituting criminal contempt connected to breach of an
order which the party obtained in a civil matter.
58. Similarly, in Incorporated Law Society v Sand, Kowarsky & Co.29, Wessels
J held that anyone may approach a Court and indicate that its processes are being
abused, which may result in the Court issuing a rule nisi. This was the approach
according to the common law, and in such circumstances, the university would be in
the position of the original applicant, seeking enforcement of the order and also be an
informer, which alerts the Court to the criminal contempt connected to the
disobedience or breach of the Nuku J order.
59. The question may well be asked about the Courts' approach post-Constitution,
to the informer in civil contempt matters and the answer is found in the minority
judgment by Theron J (Jafta concurring) in the aforementioned Secretary of the
Judicial Commission of Inquiry v Zuma 30. It is well known that Mr Zuma made
certain utterances against the Constitutional Court, regarded as "direct assaults" and
attacks on judicial authority, and a refusal to comply with Court orders and a Summons
issued by the State Capture lnquiry31 . In that contempt of Court ma~er, the majority
declared Mr Zuma in contempt of Court and imposed an unsuspended period of
imprisonment of 15 months. The minority judgment agreed that he was in contempt of
27 Presumably, the affidavit was attached to an application but it is unclear whether this was
in fact so
28 P124 C-D
29 1910 TPD 1295 at 1296
30 Supra
31 Para 1-2
22
Court but questioned the imposition of an unsuspended committal which was not
associated with coercing compliance with the Constitutional Court's order which Mr
Zuma was in contempt of.
60. In her discussion and consideration of the Cape Times judgment, Theron J was
of the view that the issue of punitive committal was not one of standing, as the latter
judgment would have it, but rather that an essential element of civil contempt was
missing where there was no interest in pursuing or seeking enforcement of an order.
At paragraphs [184] and [187] of the Zuma contempt judgment, Theron J stated that:
"[ 184] In later decisions, our courts have taken a more permissive approach to
private parties who act as so-called "informers" by bringing contempt of court to
the attention of a court without seeking coercive or remedial relief. In cases
where a contempt application is brought for the sole purpose of punishing the
respondent, the applicant is "no more than an informer who brings the contempt
to the attention of the court". Though the informer may not seek compliance
with the original order, that does not change the nature and character of the
application, which is "directed towards the protection of the courts, respect
towards the courts and court orders, and the protection of the integrity of the
court system". In Lan, the Court explained that where contempt is followed by
late compliance with the original court order, the commission of the offence of
contempt cannot be ignored and that, 'To]nce the requirements of the offence
have been established to have existed at a certain period in time, and once it is
found that no valid defence has been raised in that regard, a positive finding
should follow". This notwithstanding, I have not found a single case in which a
court has granted punitive relief at the request of an informer. It is only in Lan
that the court granted a warning as a sanction and noted in passing that even if
there has been compliance with the original court order, the court is not
precluded from granting a sanction not aimed at enforcement.
23
[187] To sum up, th~ common law position is that civil proceedings for
contempt of court can serve the object of compelling compliance with a court
order and the object of punishing the respondent. They can be both coercive
and punitive in nature. Under the common law, where an applicant claimed
punitive relief not linked to com pelling com pliance with a court order, the
applicant had no locus standi to claim that relief. In later iudgments, our courts
allowed an applicant with no intention of enforcing a right or a claim to act as
an informer to bring to the attention of the court an alleged violation of a court
order granted in its favour. Notablv, however, a purely punitive committal order
has never been granted in the context of civil contempt proceedings. On the
contrary, the Full Court in Mashiya accepted that the initiating party had
standing to act as an informer but specifically refused to grant the purely
punitive relief sought by him. Underpinning this conclusion is the premise that
where only punitive relief is sought for contempt of court, recourse to a
summary procedure is unjustifiable because, by definition, compliance with a
court order is not capable of being achieved in those proceedings. This
absence of a civil rationale for the summary procedure undercuts the
justification for adopting a procedure which falls short of the protections that
could be afforded an accused person.
(footnotes omitted)
61. In my view, the above paragraphs in the Zuma contemptjudgment are authority
for the view that an informer, post-Constitution, may approach the Court to inform it of
the violation of a Court order granted in its favour and may seek purely punitive relief.
From my reading of Theron J's discussion, it also seems that it is indeed recognised
that the purely punitive order which is sought by the informer may well be used to
encourage compliance with the initial order. However, the misgivings regarding the
constitutionality or otherwise of granting an unsuspended committal or purely punitive
relief, as eventually imposed by the majority judgment in Zuma, were expressed
succinctly by Theron J in its minority judgment. Theron J held the view that the
contemnor faced with a coercive order may well escape the committal by complying
24
with the initial order and thus the limitation of section 35 rights is then tempered32.
Ultimately, the minority judgment rather viewed a suspended punitive order suitable
as the contemnor, if he does not then comply, faces a period of imprisonment33.
62. Having regard to the above, I would agree that the university is in the position
of an informer, but it does not bear all the hallmarks as referred to in the Zuma
contempt matter. To elaborate, the university seeks compliance with the Nuku J order
but also seeks a punitive order in its capacity as informer. It does not seek an
unsuspended committal order. Thus, in my view, the university in the position of
informer and applicant in the initial vexatious litigant order, seeks to enforce its rights
in relation to a coercive remedy and also, by bringing the ongoing contempt committed
by Carlson to the Court's attention, seeks to recover and vindicate the Court's
authority. Having regard to the authorities discussed, I do not see that such an
approach is excluded in contempt of Court proceedings. In my view, the imposition of
a suspended committal order would hopefully bring Carlson to his senses but also
serve to vindicate the Court's authority in view of his continued breaches of the order,
his verbal and abusive attacks on the High Court judiciary, the utter contempt
displayed at the authority of the Court and the refusal to attend the proceedings.
63. This is a case where a committal order was not sought initially, but as the matter
progressed and Carlson's conduct, contemptuous as it is, continued unabated, even
the warning in the affidavits and practice notes that a committal order would be left up
to the Court, did not deter the contemnor. Having considered these aspects and the
submissions in the matter, I hold the view that this Court is not precluded from
imposing a coercive order with a suspended committal order in order to vindicate its
judicial authority and the rule of law. As already discussed above, in reaching this
stage, the process followed in this application has been fair to Carlson and the second
respondent.
32 Par [238]
33 Par [261]
25
64. While I have considered issuing a rule nisi, given Carlson's conduct, flouting
the rule of law and attacks on the Court and judiciary, I also take cognisance that the
legal representatives in this matter have also come under attack and that Carlson has
made it clear in his communications to them and Court administration, that we are
corrupt and racist and as mentioned, there are veiled threats of violence towards the
rule of law. Any invitation for Carlson to return to Court on a further date, to purge his
contempt, given these attacks on the Court and its authority, would most likely lead to
a situation of a further attack, insults and abuse directed at the Court and legal
representatives. In my view, the dignity of the Court cannot be allowed to be violated
by anyone, including Carlson.34
65. Certainly, it seems more than likely that this would be the result, and given
Carlson's refusal to attend and recognise the Court, ultimately the order I grant would
dispense with the need for a further Court appearance. In view of the unauthorised
Equality Court application, issued without first obtaining leave of the Court or a Judge,
the relief in prayers 1 to 3 of the Notice of Motion 3 will be granted, with some
adjustments.
66. Lastly, whether Carlson intends to seek leave of the Court or Judge before
having his Rule 53 application issued, is unclear, but his conduct in approaching the
Registrar to have the application issued is yet another act of breaching the Nuku J
order and wilfully disobeying it. Lastly, to the extent that Carlson displays contempt for
the Court's authority, has created his own Court and does not acquiesce to the Court's
jurisdiction, he nonetheless approaches the Registrar's office to have a Rule 53
application issued which request was correctly refused. In the circumstances, a copy
of the order granted below will be forwarded to the Chief Registrar for her office's
34 Pheko, supra, par [26]
26
attention and to the Chief Magistrate, Cape Town, for the attention of the Stellenbosch
Magistrates' Court35.
Order
67. In the result, I grant the following orders:
1. It is declared that Granville Colin Carlson and/or King Khoekhoe De
Goringhaicona, and Home of Coloured, are in contempt of the order granted by Nuku
Jon 31 August 2023.
2. The first respondent (Carlson) is directed to withdraw his complaint and
application against the University of Stellenbosch (the applicant) in Equality Court case
number EC13/2024, within 10 (ten) Court days of date of this order, failing which, the
application would be deemed to be withdrawn.
3. The first respondent is fined R4000 or 4 months' imprisonment, wholly
suspended for 5 (five) years on condition that: (i) he does not breach the terms of the
order granted by Nuku J on 31 August 2023 again, and (ii) he complies with the terms
of this order.
4. The first respondent is ordered to pay the costs of the application on an attorney
and client scale.
35 Stellenbosch Magistrates' Court is also cited as a respondent in one of Carlson's
applications
27
5. A copy of this judgment shall be forwarded to the Chief Registrar and to the
Chief Magistrate, Cape Town, for their attention.
ACTING JUD E OF THE HIGH COURT
Appearances for applicant: M BISHOP
Instructed by: Cluver Markotter Inc.
P L Hill
Stellenbosch
Appearances for respondents: None (in person)
28