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BUSISA JIYA Eighth Respondent
PEARL ZAMBANE Ninth Respondent
BOITUMELO SEDUPANE Tenth Respondent
FHOLISANI MUFAMADI Eleventh Respondent
REFILWE BUTHELEZI Twelfth Respondent
ELIAS MONAGE Thirteenth Respondent
JUDGMENT
Mahomed J
INTRODUCTION
[1] This is an application for security for costs in terms of Uniform Rule 47 (3) of the
Uniform Rules of Court, the applicant contended that the respondent is vexatious
in his litigation and is abusing the court process . The respondent has launched
a second recis sion application on the same basis, which the according to the
applicant is badly conceived and has no prospects of success. Furthermore, t he
applicant prays for an order that the recission application be stayed until he pays
security for the its legal cos ts.
BACKGROUND
[2] The applicant is a public entity, who employed the respondent in a managerial
position in its legal department.
[3] The respondent brought an application in terms of the Promotion of Access to
Information Act 2 of 2000 (“the PAIA application) , to review and set aside the
applicant’s refusal to grant him access to a forensic report it commissioned (“the
PWC report”). The application was heard by van der Schyff J, the court
dismissed his review application when it refused to condone the inor dinate delay
in filing of his papers . The applicants were granted costs. On 23 March 2020,
the learned judge dismissed the respondent’s leave to appeal application with
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costs. On 24 August 2021, 18 months after that judgment was delivered, he
brought a r ecission application, (“the first recission application”) on grounds that
the court was influenced by applicant’s failure to disclose to the court that the
report he sought was finalised. In his founding papers for recission , he stated
that he learnt that the report was finalised as at the date of the hearing of the
review application. The further evidence is that the respondent withdrew this
application but failed to tender the costs. Thereafter he sought to amend the
notice of motion in this withdrawn application, an objection was raised, he failed
to rectify the irregularity and was met with a R30 application, which was
successful and Bokako AJ awarded the applicant the costs in this application.
[4] In December 2023, more than three years after the jud gment by van der Schyff,
the applicant launched a second recission application on the same grounds as
the first recission application, only this time he cited several additional
respondents, without any indication as to their interest in this matter. The
applicants requested him to file security for costs, which he ignored and the
applicants were therefore forced to bring this application.
Application in terms of Rule 47(3)
[5] The applicants seek an amount of R500 000 as security and counsel submitted
that this court must grant this application as the respondent will not stop, he
draws the applicant into litigation, he ignored court orders, he and his attorneys
ignored the appli cant’s correspondences, he avoids the sheriff who reported that
he was unable to serve the warrant of execution at the given address because
the respondent was unknown at the address. Baloyi SC appeared for the
applicants and submitted that the respondent pursues his litigation simply to
annoy the applicant, his former employer , she submitted that there are no
prospects of success in the recission application because van der Schyff J
dismissed the application for the reason that the respondent failed to pr ovide a
reasonable explanation for his long delay, 3 years in launching the application.1
Counsel directed the court to paragraphs 48 and 50 in the judgment and
submitted that the court was clear, he was not prevented from pursing his
1 Judgment CL 0002 -12 para 48
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application to acce ss to the report. Advocate Mabuza in reply referred the court
to paragraph 6 of the judgment2, where the court noted that the respondent
conceded that he could use the leaked report to pursue the relief he seeks. It is
uncertain as to why the respondent in casu, persists with his argument that h is
rights in terms of s 32 of the Constitution were violated .3
In Limine
[6] The first two points in limine related to the applicant’s late filing of its application
before this court. Baloyi SC submitted that the ru le does not refer to a time for
filing of the application but provides that should the party who is requested to file
security fail to do so, the applicant must in 10 days thereafter file a notice of
application. She submitted the applicant’s delay of 17 days is negligible and
cannot be viewed as unduly late or prejudicial, counsel argued the applicant
need not have to apply for condonation . The respondent argued in limine that
the applicant filed a notice for security in the first recission application an has
done nothing in that regard, since its withdrawal, and has therefore waived its
rights to claim security off him. Baloyi SC denied that the respondent waived its
security for costs, and contended that the notice issued in regard to the first
applic ation, has not been withdrawn and argued that that recission application
has nothing to do with the application before this court, the respondent conflates
the two applications, is opportunistic, simply to muddy the waters. It was
submitted that the respon dent must know this, he is legally trained, the second
application has a new case number. It was argued that the waiver point is
misguided and no facts are before this court to make out a case for a waiver , the
attempts to negotiate had failed and the not ice for security is not withdrawn or
waived. In the fourth point in limine, the respondent questioned the authority of
the deponent in this application. Counsel referred the court to the judgment in
Eskom v Soweto City Council4, where the court confirmed that if the authority of
the attorney to act is not challenged, the point on authority is meritless. Also see
Ganes and Another v Telcom Namibia Limited5 where the court held that the
2 CL 0002 -3
3 Act 108 of 1996
4 1992(2) SA 703 (W) at 705 D -H,
5 2004 (3) SA 615 (SCA) at 705 A -D
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deponent to the affidavit does not have to b e authorised but that the “institution
of the motion and its prosecution that has to be authorised.” I agree with the
submissions made, the delay is negligible and could not have prejudiced the
respondent. The points in limine are dismissed, as regards th e authority of the
deponent, this court shares the view by Fleming J, supra, who stated, “ I find
regularity of arguments about the authority of a deponent to be ‘unnecessary and
wasteful.’ ” It is noteworthy that the respondent failed to challenge the
arguments by the applicant on any of the points he raised in limine.
[7] Baloyi SC contended that despite demand the respondent refuses to furnish the
applicant with security for its costs. Counsel submitted that the applicant, a public
entity, relies on publi c funds to litigate in this matter. The court was reminded that
although the respondent represents himself, he has attorneys, who accept
pleadings and correspondence on his behalf, and therefore it is not unreasonable
to conclude that he is legally represe nted throughout in this matter. It was
contended that the respondent is evasive, the applicants have not been able to
execute any of their cost orders. The sheriff tried to serve a warrant at the
address he provided in his papers and was advised that he was unknown at the
address. Furthermore, his attorneys were advised of the sheriff’s report, they
were requested to advise the applicant of their client’s correct address. No
response was forthcoming. In reply, Advocate Mabuza referred me to the
applic ants reply6 where the respondent was invited to submit his address even
before this hearing and submitted that even to the date of this hearing the
applicant does not have any other address for the respondent.
[8] The respondent, Mr Lekalakala, denied th at his second application for recission
of the judgment is vexatious, he insists he is bona fides and he has good
prospects of success. He submitted that the court in its judgment identified a
legally sound basis for his recission. In his view, the condon ation and the fraud
are interrelated, they cannot be separated, he referred the court to paragraphs
47 to 50 of the judgment, for context. He submitted that he was late because he
was being strung alone by the applicants regarding the existence of a final report.
He argued that the applicants are abusing the court process, when they insisted
6 CL 001 - 226
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on pursuing their Rule 30 application. The applicant could have agreed to his
amendment to his notice of motion in his first recission application and the matter
would have proceeded, he contended they were obstructive in withholding
information or failing to disclose that the report was finalised, which delayed his
launching his application, within reasonable time. The respondent denied that
he was being evasive and contended that as a whist blower he is concerned for
his safety and has warned his family not to entertain strangers, he did not know
that the sheriff visited his home and insisted that he owned and lived at the
address at the time the papers were drafted but has subsequently sold that home
and moved. He undertook to provide the applicants with full and complete details
after this hearing. The respondent submitted that the court must do a balancing
act and in doing so, must consider the importance of the m atter to the parties.
He argued that he played a principal role in the investigation and the report will
enable him to demonstrate that he was constructively dismissed from the
applicants employ . The applicant on the other hand is frustrated in its effor ts to
recover its costs, it is a public entity which relies on public funds.
JUDGMENT
[9] Counsel for the applicant argued that the respondent has instituted action
proceedings against the applicant on the same grounds as the motions and in
which he relies on a report he has in his possession to pursue his claims, nothing
prevents him from using the same report to clear his name in the recission . In
paragraph 7 above I set out the respondent ’s attitude to the litigation of the
recission app lications. I am often intrigued by a party who blatantly ignores,
orders of court and then turns to the very court for assistance to uphold his
constitutional rights. The evidence before me is that to date the applicants have
no address to execute their cost orders. There is no reasonable explanation as
to why his attorneys of record failed to respond to the applicant ’s request for a
proper/correct address for their client, they were alerted to the sheriff ’s report and
a further request for and address was made when the replying papers were
served. If a party demands a right to a hearing, then surely, he must be traceable ,
reachable, contactable . If one has regard to the number of judgments granted
by default, because parties are no longer at their chos en domicilum address,
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they have only themselves to blame. It is common cause that the applicant does
not have his address, because at the hearing of this matter, the respondent
“volunteered ” to inform them of his address after the hearing of this matter . It is
reasonable to conclude that the respondent did not want to be traced, his
attorney ’s must have known of his safety concerns as well as his whereabouts,
they simply gave the applicants a run around. It is noteworthy that the respondent
did not at tempt to collect the court process from the sheriff, nor have his attorneys
engaged with the applicants in regard to payment of the taxed bill of costs. I am
of the view that the applicant ’s fears for recovery of their costs in the future are
not unfound ed.
[10] The Vexatious Proceedings Act 3 of 1956 provides relief for an applicant who
can demonstrate that a respondent has persistently instituted legal proceedings
without reasonable grounds. The Act also ensures that the functioning of the
court is not impe ded by groundless and unmeritorious proceedings. The
respondent insists that he has good prospects of success for is recission
application on grounds which were clearly not the reason for the dismissal of his
application. I am not persuaded by Mr Leka lakala’s contention that the
condonation and the fraud are interlinked and therefore his claim has merit. The
court dismissed his application because he failed to provide a reasonable
explanation for his undue delay, if they were interlinked as he alleges, i t did not
assist him before van de Schyff J, and it is no longer open to him to have a rerun
in that regard.
[11] In Beinash and Another v Ernest and Young and Others7, the court considered
the constitutionality of s2(1)(b) of the Vexatious Proceedings Act 3 of 1956 and
found, “the provision does limit a person ’s right of access to court, however such
limitation is reasonable and justifiable, juxtaposed against the effective
functioning of the courts, the administration of justice, and the interest of innocent
parties who are subjected to vexatious litigation. The limitation in terms of s 36
of the Constitution is justified to protect and secure the right of access for parties
with meritorious claims.
7 1999 (2) SA116 CC
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[12] I find the application must succeed, one must have regard to the effect of the
respondent’s and his attorney’s behaviour on the applicants and their rights , they
are dragged into court on the same meritless basis, the applicants are unable to
execute cost orders they have been granted and are still to be drawn into further
action proceedings without any hope of ever recovering their costs. The action
proceedings are for the same reli ef, and each time the applicant has to outlay
costs for legal representation, whilst the respondent , allegedly represents
himself.
[13] Baloyi SC submitted that an amount of R300 000 would be fair but agreed that
the amount for security is in the court’s discretion.
[14] Counsel for the applicant addressed the court on punitive costs de boni propriis
although not included in their papers . Sh e submitted that such an order is
appropriate and referred the court to the judgment by Wilson J, in which the
attorneys for the respondents were called to make submissions as to why such
an order should not be granted given their behaviour. I was keen to f ollow the
route however, I am not inclined to further delay the finalisation of this dispute,
considering the pending action proceedings.
[15] As I mentioned earlier the attorneys silence , their lack of cooperation and their
position, “in the background”, is gamesmanship that unfairly impinges on the
applicant ’s rights to finalisation of matters. I am of the view that costs on a
punitive scale are appropriate.
ORDER
[16] I therefore, make the following order:
1. The respondent is to pay R300 000 as security for the costs of the applicant in
the form of a bank guarantee.
2. The respondent ’s recission application, under case no. 19753/2019 is stayed
pending the furnishing of the guarantee.
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For the Applicant:
For the Respondent: MS Baloyi SC and V Mabuza instructed
by Diale Mogashoa Attorneys
Mr LH Lekalakal a- self represented,
attorney’s on record MWIM &
Associates Inc.