IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
NOT REPORTABLE
Case No.: 1414/2016 & 992/20 16
In the matter between:
SIPHO GCORA First Applicant
GOB O-GCORA CONSTRUCTION AND
PROJECT MANAGEMENT CC Second Applicant
and
THE NELSON MANDELA BAY MUNICIPALITY First Respondent
MEC FOR THE DEPARTMENT OF
EASTERN CAPE HUMAN SETTLEMENTS Second Respondent
and
SIPHO GCORA First Applicant
GOB O-GCORA CONSTRUCTION AND
PROJECT MANAGEMENT CC Second Applicant
and
THE NELSON MANDELA BAY MUNICIPALITY First Respondent
PUBLIC PROTECTOR SA Second Respondent
JUDGMENT
EKSTEEN ADJP:
[1] There are two applications before me for leave to appeal (the applications)
arising from rulings that I made on 5 February 2025 relating to requests for leave to
institute legal proceedings (the requests) pursuant to the applicants being declared
vexatiou s litigants in terms of section 2(1)(b) of the Vexatious Proceedings Act, 3 of 195
(the Act). I shall deal with these respective requests and rulings below.
[2] The underlying dispute between the parties has a long and unpleasant history
that culminated on 1 6 May 2023 in an order issued in this court under case no.
1414/2016 and 992/2016. The material portion of the order for purposes of these
proceedings was:
‘(c) The applicants be declared vexatious litigants pursuant to the
provisions of s 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956
“the Act”;
(d) the first, second and/or third applicants shall not institute any legal
proceedings in any Division of the High Court of South Africa …
against the first respondent relating in any w ay to the Public
Protector’s report titled “Costs Deviation”, without the leave … of the
High Court or any Judge thereof as envisaged in s 2(1)(b) of the Act .’1
The order in paragraph (d) mirrors s 2 (1)(b) of the Act.
[3] The applicants were represented by Ms Olowookorun in the applications for
leave to appeal in which they cited the NMBM as a respondent . On 7 February 2025
they lodged an application for leave to appeal against the first ruling2 and delivered a
copy thereof on Pagdens Attorneys, as representative for the NMBM. Pagdens
Attorneys entered an appearance to oppose the application on the same day , and Mr
Rorke and Ms Rawjee appeared on behalf of the NMBM at the hearing. The applicant s,
simultaneously, lodged an application for leave to appeal against the second ruling and
cited the NMBM as a respondent in those proceedings , too . McWilliams & Elliot
Attorneys entered an appearance to oppose this application and Mr Ronaasen and Mr
Cetyw ayo appeared on their instruction.
The legal framework
[4] Before I turn to the facts of the applica tions it is necessary to consider the nature
of the proceedings in issue . In Beinash3 the Constitutional Court was required to
consider the constitutionality of the Act. They held that s 2(1)(b) does indeed limit the
protection of the right of access to courts set out in s 34 of the Constitution , but they
considered that the limitation was reasonable and ju stifiable and therefore
constitutionally compliant.4
[5] In arriving at the conclusion, the Constitutional Court considered the purpose and
the effect of the provision. They said that the purpose is to ‘put a stop to persistent and
1 The first and second applicants in the said application were Sipho Gcora and Kuselwa Gobo -Gcora,
respectively and the third applicant was Gobo -Gcora Construction and Project Management CC. The first
respondent was the Nelson Mandela Bay Municipality.
2 The ruling relates to the first request that is more fully set out below.
3 Beinash and Another v Young and Others 1999 (2) BCLR 125 (CC).
4 Beinash para 16.
ungrounded institution of legal proceedings ’5 and explained that the Act does so by
allowing the court to screen (as opposed to absolutely bar) a ‘person who has
persistently and without reasonable ground instituted legal proceedings in any court’.
They further explained that this was necessary to p rotect at least two important
interests. These are , first, the interests of the victim of the vexatious litigant who has
repeatedly been subjected to the costs, harassment and embarrassment of
unmeritorious litigation; and , second, the public interest th at the functioning of the
courts and the administration of justice proceed unimpeded by the clog of groundless
proceedings.6
[6] The Act requires the fulfilment of two conditions before a vexatious litigant may
institute legal proc eedings . A judge has ‘to b e satisfied that the proceedings are not an
abuse of the process of the court and that there is prima facie ground for the
proceedings.’ In other words, the applicant is required to show that he or she has a
bona fide claim and that his or her claim is pr ima facie meritorious. The Constitutional
Court recognised that an order under s 2(1)(b) may well be far -reaching , but they
considered that it was not immutable because there is an escape from the restricti on as
soon as a prima facie case is made in circu mstances where a judge is satisfied that the
proceedings so instituted will not constitute an abuse of the process of the court.7 They
said that it was not unreasonable to require of the potential litigant to discharge an
evidentiary burden . This is because it is justifiable , when confronted by a person who
has ‘used the procedure ordinarily permitted by the rules of the court to facilitate the
pursuit of the truth for a purpose extraneous to that objective’8. Having demonstrated a
propensit y to abuse the process of the courts it can hardly lie in the mouth of a
vexatious litigant to complain that they are required first to demonstrate their bona fides.
In this respect the restriction is precisely tailored to meet the legitimate purpose.9
5 Beinash para 15.
6 Beinash para 15.
7 Beinash para 19.
8 Beinash para 20.
9 Beinash para 20.
[7] What emerges from all of this is , as I have said, that the aspirant litigant bears an
evidential burden to satisfy a judge that they have a bona fide claim and that the claim is
prima facie meritorious .10 Ordinarily an evidential burden is discharged by p resenting
evidence on oath. Section 2(1)(b) of the Act provides for an application to seek leave
from the court or from a judge in chambers. The section contemplates an application
properly made , ex parte, supported by an affidavit demonstrating a bona fide claim and
the merit of the proposed proceedings . Whether the claim is bona fide or not depends
upon the merits of th e claim , as raised in the affidavit.11 It will be sufficient if an
applicant swears to a cause of action, valid in law, in a ma nner which is not inherently or
seriously unconvincing,12 or, put differently , if his affidavit shows that there is a
reasonable possibility that the cause of action which he advances may succeed on
trial.13 Where it is apparent from the affidavit that the applicant is not bona fide he will
not obtain leave to institute proceedings, because in such a case his claim, too, cannot
be bona fide.
[8] The application may be presented before a judge in chambers. The judge
merely considers whether the facts alleged in the affidavit constitutes a cause of action ,
which is good in law , and whether the claim appears to be bona fide. In order to enable
him to do so he must be a pprised of the facts upon which the applicant intends to rely
with sufficient particularity and completeness to be able to hold that if these statements
of fact are found at the trial to be correct, judgment should be given in his favour. The
ruling of the judge in chambers does not decide any issue between the parties , it does
not constitute a judgment , and the process does not envisage an engagement with the
proposed defendants. If leave is granted the defendants will have the opportunity to be
heard and to present their case at the trial. In respect of each of the requ ests in this
10 Beinash para 13.
11 See, in respect of a ‘bona fide defence’, Silver leaf Pastry and Confection ery Co. (Pty) Ltd v Joubert and
Another NNO 1972 (1) SA 125 (C) at 129; and He & She Investments (Pty) Ltd v Brand NO and Others
2019 (5) SA 492 (WCC) at 497B.
12 See Breitenbach v Fait SA (Edms) Bpk 1976 (2) SA 226 (T); Standard Bank of SA Ltd v Friedman
1999 (2) SA 456 (C) at 462G; confirmed in Friedman v Standard Bank of SA Ltd 1999 (4) SA 928 (SCA)
at 938D -H.
13 See, inter alia, Shepstone v She pstone 1974 (2) SA 462 (N) at 467; Citibank NA, South Africa Branch
v Paul NO and Another 2003 (4) SA 180 (T) at 200J -201A; and He & She Investments at 497B -C.
matter the applicants have issued no court process, and the requests were not
supported by affidavit , nor ha s the cause of action, or the relief which they intend to
seek in the proposed proceedings been formulated. Rather, the applicants submitted
an informal request to me, supported by legal argument signed by Mr Gcora. The
evidential burden to establish the bona fides of the applicants and the ir claims cannot
be discharged in this manner and the merit of the claim cannot be properly assess ed
when the cause of action has not been identified and the relief sought has not been
clearly formulated . In view of the form in which the requests have been presented,
unsupported by a process o r evidence, I directed the registrar to record the rulings in
the chamber book. Suffice it to say that for these reasons alone the requests could not
succeed and I do not consider that there is a reasonable prospect that another court
would come to a different conclusion in this regard.
[9] Nevertheless, I have accepted the requests and I have considered them on their
merit , to the extent that it is possible to do , on what was presented. As I have said , I
was not satisfied that the proposed proceedings are not an abuse of the process of the
court or that the re is prima facie ground for such proceedings. I , accordingly, refused
leave.
[10] That brings me to the applications for leave to appeal. I have referred earlier to
the Constitutional Court’s explanation of the purpose of the Act , which is to put a stop t o
persistent and ungrounded institution of legal proceedings. The object is to protect the
victims of vexatious litigation against repeatedly being subjected to the costs,
harassment and embarrassment of the litigation , and the functioning of the courts . I
have explained that the ruling by a judge in chambers does not constitute a judgment,14
or a decision of a court, as envisaged in s 16 of the Superior Court Act .15 The rulings do
not determine any issue between the parties and I entertain signif icant doubt about the
appealability of the rulings. As adumbrated earlier, the applications cited the NMBM as
respondent and they were served on the respective attorneys for the NMBM , who
14 See Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532F -533F.
15 Superior Court Act 10 of 2013.
entered appearance to oppose the applications. If applications for leave to appeal,
appeal s, and further appeals , involving the proposed defendants, were permitted it
could serve only to increase the victimization of the opposing parties , who would b e
exposed to ongoing litigation about litigation , before the litigation even commences , with
all the concomitant cost implications, harassment and embarrassment , and the
functioning of the courts would be further clogged with groundless proceedings. Such a
course would defeat the very purpose of the Act.
[11] Nevertheless, b y virtue of the conclusion to which I have come , I shall assume, in
favour of the applicants, without making any finding in that regard, that the rulings of this
nature are appealable. I shall accordingly address the applications for leave to appeal
on their merit below.
The history
[12] As adumbrated earlier , the matter has a lengthy and unpleasant history that is
extensively traversed in various judgments, in particular the judgments of Pickering J16,
Van Zyl DJP17 and Potgieter J18, to which I shall revert. I do not intend to deal herein
with all the litigation between the parties, and I deal only with e vents that I have
consider ed to be material for purposes of these proceedings as they are recorded in the
various judgments . The dispute finds its origin in two tenders awarded by the Nelson
Mandela Bay Municipality (the NMBM) to two separate companies, namely , WK
Construction SA (Pty) Ltd , and WK Pipelines (Pty) Ltd (collectively referred to as WK).
The tender awards related to the installation of serv ices and the construction of houses
in KwaNob uhle in areas 9 and 10. The main contract s that were concluded between
the NMBM, as employer , and WK, as contractors , provided for the appointment by WK
of subcontractors under certain conditions in each case. Clause 6.4 of the applicable
16 Gobo -Gcora Construction and Project Management CC and Others v Nelson Mandela Bay Municipality
and Others (Case No. 992/2016) (delivered on 21 September 2017).
17 Case No. 992/2016 (delivered 16 April 2019).
18 Case No. 1414/2016 and 992/2016 (delivered 16 May 2023).
General Conditions of Contract regulated the relationship betw een the parties, and it
read:
‘Any … appointment of a subcontractor in accordance with Clause 6.3 shall
not imply a contract between the employer and the subcontractor, or a
responsibility or a liability on the part of the employer to the subcontractor
and shall not relieve the contractor from any liability or obligation under the
contract , and he shall be liable for the acts, defaults and neglects of any
subcontractor ….’19
[13] WK appointed Goba -Gcora Construction and Project Management CC ( the close
corpo ration ) as a subcontractor to construct houses on the project. The relationship
between WK and the close corporation was created and regulated by a separate
contract entered into by them. The NMBM was not a party to that agreement.20
[14] In due course var ious disputes arose between the close corporation and WK
relating to payment for work performed by the close corporation in terms of the
subcontract with WK . It attempted, unsuccessfully, to recover mon ey directly from the
NMBM in respect thereof. In December 2013 the estates of Mr Sipho Gcora and Ms
Kuselwa Gobo -Gcora , the sole members of the close corporation, were sequestrated
and the close corporation was placed under provisional liquidation in 2016. The latter
order was later discharged in Ju ly 2016.
[15] In the interim, the close corporation turned to the public protector for assistance.
The public protector embarked upon an investigation . Her main findings were that the
tender by the NMBM for the building of houses was irregularly awarded to t he main
contractor21, WK, and that the project was improperly and insufficiently funded, with the
19 Quoted at para 4 of the judgment of Pickering J.
20 Clause 6. 6 of the General Conditions of Contract, annexed to the applicants’ second request, confers
on the employer an entitle ment to make payment directly to a subcontractor under certain circumscribed
circumstances, but it creates no obligation for any contractor , nor any rights for a subcontractor.
21 The main contractor, WK , was not registered as a ‘home builder’ as defined in the Housing Consumers
Protection Act, 95 of 1998, and should therefore have been disqualified.
result that the close corporation ‘who is a small business person, suffered enormous
prejudice in that it was left out of pocket after using its own money to fill the gap arising
from the municipality’s funding shortfall , after the latter had wrongly used , for internal
purposes, the grant meant for the top structure of construction ’. The material portion of
the remedial action directed by the public protector was as follows:
‘9.1.1 In consultation with the complainant22, to reconcile payments made to
the complainant for the top structure and pay the complainant the
deficit, with interest within 30 days thereof.
9.1.2 To audit works done as per the drawings of the houses that would
have given rise to adjustment in the bill of quantities, and pay the
complainant accordingly those relating to the construction of the top
structure.
9.1.3 To issue a written apology to the complainant and its directors. (sic) ’
[16] Thus, in March 2016, the applicants and Ms K uselwa Gobo -Gcora launched an
application (the enforcement application) under case no. 9 92/2016 , wherein they sought
to compel the NMBM to comply with the remedial action ordered by the public protector.
In response , the NMBM said that it intended to launch a review application (the review
application) to set aside the report of the public protector . The matter came before
Smith J , who directed that the two applications should be heard simultaneously and he
put the NMBM to terms to issue its intended review proceedings. This they duly did
under case no. 1414/2016. The review application was la unched on 29 April 2016,
while the close corporation was under provisional sequestration. Accordingly, the
NMBM cited the public protector, the liquidators of the close corporation and the
trustees of the insolvent estates of Mr Gcora and Ms Gobo -Gcora, a s respondents.
[17] The launching of the review application prompted the applicants and Ms Gobo -
Gcora to launch a separate application in terms of rule 30 and 30A of the Uniform Rules
of Court, under the same case n umber, 1414/2016 , in which they sought an order that
22 The complainant was the close corporation.
the review application be set aside, alternatively , struck out. This application (the
striking out application) came before Plasket J , who dismissed the application with
costs. In arriving at this conclusion Plasket J first considered the procedural objection.
He found that the applicants and Ms Gobo -Gcora did not have standing , first because
they were not parties to the application and had not made application to be joined , and
further, that they could not be parties in their personal capacity , by virtue of sections
20(1)(a) and 23 of the Insolvency Act, 24 of 1936. However, notwithstanding this
finding, he proceeded to consider the merits of the application . The application was
founded on two legal contentions, first ly, that it was not timeously instituted , as directed
by Smith J , and, secondly, that the NMBM had failed to comply with its obligations in
terms of s 41 of the Constitution .23 Plasket J found no merit in these objections , and, as
I have said, he dismissed the application on its merits, with costs. This is the first o f the
cost orders that form the subject of the request to institute interdict proceedings to which
I shall revert.
[18] Displeased with the result , the applicants and Ms Gobo -Gcora proceeded to
bring a further application , again under the same case number (1414/2016) , for a
declaratory order that the judgment of Plasket J was null and void and of no force and
effect. The application (the nullity application) served before me. I considered that the
reasoning and order of Plasket J was sound , and that the orders made were final in
nature and were valid and binding on the parties. Accordingly, I dismissed the
application, with costs. This cost order, too, is subject of the request to institute interdict
proceedings. What the applicants were in effect asking for in the nullity application was
that the striking out judgment be declared void , because they considered it to be
incorrectly decided. I found that the appropriate remedy in those circumstances , would
have been to seek leave to appeal against the striking out judgment.
23 Section 41 is concerned with intergovernmental relations and disputes. Section 41(3) provides: ‘An
organ of state in volved in an intergovernmental dispute must make any reasonable effort to settle the
dispute by means of mechanisms and procedures provided for that purpose, and must exhaust all other
remedies before it approaches a court to resolve the dispute’.
[19] The applicants and Ms Gobo -Gcora were not content . They sought leave to
appeal against the nullity judgment , which I duly considered , and dismissed with costs .
Thereafter they proceeded, unsuccessfully, to seek leave to appeal to the Supreme
Court of Appeal . When this application failed a petition was directed to the
Constitutional Court, again without success. Undeterred by these setbacks , they then ,
belate dly, sought leave to appeal against the striking out judgment , which Plasket J
dismissed with costs. They elected not to pursue this application any further.
[20] As adumbrated earlier , Smith J had directed that the enforcement application and
the review appl ication should be heard simultaneously. They came before Pickering J
who dealt with the two matters together in one judgment. In the review application the
public protector acknowledged that her directive that the close corporation must be
compensated by the NMBM could not stand , because there existed no contractual
nexus between the NMBM and the close corporation , and because her directive would
compel the NMBM to pay money to the close corporation, a subcontractor, in
circumstances where the fault, if a ny, for the subcontractor not receiving payment lay
with the principal contractor, WK. Accordingly, the remedial action in favour of the close
corporation , as directed by the public protector , was found to have been ultra vires her
powers in s 181(2) of the Constitution and the review application was upheld to that
extent. In consequence of the finding in the review application the enforcement
application was dismissed, with costs.
[21] In the review application Mr Gcora , and Ms Go bo-Gcora , who were still
unrehabilitated insolvent s, filed affidavits , and sought to appear to present argument.
Mr Gcora asked that he and Ms Gobo -Gcora be joined as parties to the proceedings,
and affidavits were filed to address this issue. Ms Roberts , who represented the NMBM
at the time, deposed to an affidavit in this regard, in which she acknowledged that her
earlier perception relating to M r Gcora and Ms Gobo -Gcora’s interest in the proceedings
may have been incorrect. Mr Gcora has annexed select ive portions of this affidavit to
his request for leave to institute interdict proceedings. Suffice it , for present purpose s,
to note that the affidavit recorded that the NMBM would abide the decision of the court
in respect of the joinder . Pickering J c onsidered that it was in the broader interests of
justice that Mr Gcora and Ms Gobo -Gcora be joined as respondents , despite their
failure to have applied for such joinder at an earlier stage in the proceedings. He ,
accordingly , permitted them to participate in the hearing and had regard to the affidavits
filed by them prior to their joinder. I shall revert to these findings.
[22] Again, as in the previous matters, the applicants and Ms Gobo -Gcora were
unpersuaded by the judgment of Pickering J , and they sought leave to appeal. When
the application for leave to appeal was dismissed they proceeded to seek special leave
from the Supreme Court of Appeal. This, too, was refused, which prompted them to
serve an application for leave t o appeal to the Constitutional Court. The latter
application was later abandoned as they consciously chose, instead, to seek rescission
of the review judgment .
[23] The application for rescission (the rescission application) came before Van Zyl
DJP, who dismissed the application , on 16 April 2019 , with costs. In the rescission
application Mr Gcora had argued that the finding of Pickering J , in the review
application , that he and Ms Gobo -Gcora should be joined as parties to the application
had the consequ ence that the finding of Plasket J in the striking out application , that
they lacked the necessary locus standi , was wrong, and the order was consequently
granted in error, and there fore, by necessary implication, that the judgment in the nullity
application was also wrong. Van Zyl DJP dealt extensively with this argument. He
quoted the findings of Pickering J24 and proceeded to find:
‘On a reading of this paragraph it is clear that the issue of joinder was not
determined with reference to the status of Mr Gcora and Ms Gobo -Gcora as
unrehabilitated insolvents, and/or that they had a direct and substantial
24 Paragr aphs 29 in the review judgment reads: ‘In the broader interests of justice I considered it
appropriate that he and Ms Gobo -Gcora be joined as respondents in case no 1414 /2016, despite their
failure to have applied for such joinder at an earlier stage of the proceedings; that regard therefore be had
to the affidavits filed by them prior to their joinder; and that Mr. Gcora be permitted to address me on the
various applications filed by him, Ms Gobo -Gcora and the CC as well as on the merits of the review
application. ’
interest in any orders that the court might make in the review application.
The decision was rather made in the exercise of the court’s discr etionary
power in terms of the common law to allow someone to be joined as a party
on the basis of convenience, or as Pickering J put it, in “the broader interest
of justice”.’
Accordingly, Pickering J did not find that Mr Gcora and Ms Gobo -Gcora were nec essary
parties to the litigation.
[24] When the rescission application was dismissed an application for leave to appeal
was launched. It, too, was dismissed by Van Zyl DJP, which, in turn, gave rise to an
unsuccessful application to the Supreme Court of Appeal for special leave. Thereafter ,
a further application followed, in which the applicants sought declaratory relief that both
the judgment of Pickering J , in the review application , and the judgment of Van Zyl DJP,
in the rescission application , ‘should be confirmed a nullity’ (the second nullity
application), together wi th certain ancillary and alternative relief. The second nullity
application came before Gqamana J who dismissed the application with costs on 2 June
2022. They sought leave to appeal against the judgment of Gqamana J , which was
dismissed, with costs, on 3 August 2022, and a n unsuccessful application for special
leave to appeal to the Supreme Court of Appeal followed. These events culminated in
the order by Potgieter J on 16 May 2023 that declared the applicants vexatious litigants.
[25] However, in the inte rim, on 28 March 2023, Ms Roberts of Gray Moodliar
Attorneys, who had at all material times represented the NMBM in all these matters,
forwarded a letter to the applicants, to which she attached the allocatur for the taxed
costs that are challenged in the first request. She demanded payment of these costs.
The demand prompted the applicants and Ms Gobo -Gcora to launch a further
application (the allocatur application)25 in which they sought to set aside the allocatur.
The application was opposed. The allocatur application was unresolved at the time
25 The allocatur application was launched under case number 941/2023.
when Potgieter J declared the applicants vexatious litigants, however, as the application
had been launched prior to the o rder it remained unaffected.26
[26] As I have said, the NMBM had been represented at all material times by Gray
Moodliar Attorneys. During July 2024 Gray Moodliar Attorneys merged with Pagdens
Attorneys and the merged firm continued to practice under the na me and style of
Pagdens Attorneys: Incorporating Gray Moodliar (Pagdens). On 29 July 2024 the
erstwhile Acting City Manager issued a ‘ Resolution’ to Pagdens that recognised the
merger of the firms and purported to authorise Pagdens to continue to represe nt the
NMBM in legal proceedings against the applicants which had commenced before the
said date. Accordingly, Ms Roberts, for Pagdens, continued to represent the NMBM in
the allocatur application.
[27] The allocatur application was set down for argument on 7 November 20024 and
the notice of set down, reflecting Pagdens as the representatives of the NMBM, w as
issued on 7 October 2024. On 17 October 2024, in compliance with the Eastern Cape
Practice Directive paragraph 15A ,27 Ms Roberts filed the NMBM’s practice note for the
hearing, in the name of Pagdens. A supplementary practice note was filed on 30
October 2025, again in the name of Pagdens , and they represented the NMBM at the
hearing on 7 November 2024. I shall revert to these events.
[28] Save for the ongoing allocatur application, relating to the same cost orders
referred to in the first request, all was qui et after the order of Potgieter J, until January
2025 , when a flurry of requests were submitted , pursuant to the order granted by
Potgieter J , to institute legal proceedings . Three requests were received. One was
26 Judgment in the allocatur application is currently pending.
27 Paragraph 15A of the Eastern Cape Practice Directives provides :
‘(a) The parties to an opposed motion shall not later than 8 days before the hearing of the matter file a
Practice Note which shall set out -
(i) the names to the parties to the application, the case number and its number on the roll ;
(ii) the name of each part y’s legal representative appeari ng, who m they represent and their
cellular and landline numbers;
(iii) a description of the nature of the dispute;
(iv) the issue(s) to be decided;
(v) …’
referred to Gqamana J for his consideration and I considered the other two. I was
unpersuaded that the intended proceedings were not an abuse of th e process of court
or that there were prima facie grounds for such proceedings. Hence, the applications
for leave to appeal.
The first request for leave to institute proceedings
[29] The first request was formulated thus:
‘Request to make an application for an interdict against the municipality from
seeking any costs against us relating to the judgment of Honourable Justices
Plasket and Eksteen in view of paragraph 29 of the Honourable Pickering J
judgment dated 21 September 2017 under the sam e case number and the
affidavit of Mr (sic) Roberts under the same case number.’28
As I have said, the request was not supported by evidence on oath and the proposed
interdict was not formulated, but I shall assume that it is intended to seek an order tha t
the NMBM be interdicted from executing in terms of the cost orders made in the striking
out application, and the nullity application, or the further cost orders made in respect of
the various applications for leave to appeal against these judgments.
[30] In order to succeed in the proposed interdict proceedings, the applicants would
be required to establish:
(i) A clear right;
(ii) an injury actually committed or reasonably apprehended or an actual or
threatened invasion of that right; and
(iii) the absence of similar protection by any other ordinary or suitable legal
remedy.
28 The first request is referenced under case number 1414/2016.
[31] Neither of the cost orders , in the striking out application or the nullity application ,
have been set aside and they both remain in full force and effect. The legal validity of
the striking out application was challenged in the nullity application and all avenues of
appeal against that judgment have been exhausted. The NMBM is entitled to execute
in terms thereof.29 The first request was predicated on the findings of Pickering J at
paragraph 29 of the review judgment.30 But his findings in this paragraph are largely
irrelevant to the orders made by Plasket J, in the striking out application, because he did
not dismiss the application onl y on th e basis of the applicants’ standing . He considered
the merits of the application and held that the application was ill -founded. Thus, he
found , effectively , that even if the applicants did have locus standi and were joined, the
application was to be dismissed as it lacked merit. Accordingly, the fact that Pickering J
granted the applicants leave to join in the review application has no bearing on the
correctness of the orders made by Plasket J in the striking out application. As Van Zyl
DJP expl ained, Pickering J did not find that they were necessary parties to the litigation
and his finding does not establish a non -joinder in either the striking out application or
the nullity application.
[32] That brings me to the content of the application for lea ve to appeal. The notice in
the application for leave to appeal constitutes only argument. The ‘grounds of appeal’
make no reference at all to paragraph 29 of the judgment of Pickering J in the review
application. The thrust of the argument now was dire cted only at the merits of the
striking out application, and it was contended that the notice of motion in the review
application had been fatally defective because it did not contain a prayer that the
conduct of the public protector was invalid for being inconsistent with the Constitution.31
Accordingly, it was argued that the striking out application ought to have been upheld,
with the result that the judgment in the striking out application, and the nullity
application, are nullities for want of c ompliance with a mandatory constitutional
requirement .
29 See MEC for Economic Affairs , Environment and Tourism v Krui zenga and Another 2008 (6) SA 264
(Ck) at 288B -D; E - F; and G -H 18 9A; and Department of Transport and Others v Tasima (Pty) Ltd 2017
(2) SA 622 (CC) at para 190 and 191.
30 The paragraph is quoted in full in fn 24 above .
31 See s 172(1)(a) of the Constitution.
[33] The difficulty with this argument is that the review application did not serve before
Plasket J in the striking out application. What was before him was an application
launched by the applicants herein, and Ms Gobo -Gcora , who had sought to prevent the
review application from being heard. In application proceedings the affidavits fulfil the
role that is played by both pleadings and evidence in action proceedings. The applicant
is required , in his fou nding papers , to make out the case that he intends to advance.
The purpose is to define the issues so as to inform the other side of the case that it is
required to meet.32 It is not only for the benefit of the other side, but for the court, and
any subs equent court of appeal, whose duty it is to adjudicate on those disputes and
only those disputes.33
[34] As I have said, the applicant s in the striking out application raised two grounds
that they relied on. The respondents were called upon to meet the case advanced.
Plasket J adjudicated the matter on that basis, and all the costs incurred in the striking
out application arose as a result of those two disputes raised by the applicants. Section
172(1)(a) of the Constitution was not raised as an issue i n either the striking out
application or the nullity application . Nor did the applicants rely on the section in their
various applications for leave to appeal. It simply had no bearing on the cost order that
are now contested.
[35] The history of the matter i s set out earlier. An application for leave to appeal
against the judgment in the striking out application was refused and not pursued further.
The judgment was challenged, unsuccessfully, in the nullity application , and all
channels of appeal against th at judgment have been exhausted. These matters have
now been litigated to finality. In Minister of Justice v Ntuli34, Chaskalson P emphasised:
32 South African Police Service v Solidarity obo Barnard 2014 (10) BCLR 1195 (CC).
33 Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC); Fischer and Another v Ramahlele
and Others 2014 (4) SA 614 (S CA) para 13; and Barkhuizen v Napier 2007 (7) BCLR 691 (CC) para 39.
34 1997 (3) SA 772 (CC) at para 29 .
‘The principle of finality in litigation which underlies the common law rules for
the variation of judgments and orders is clearly relevant to Constitutional
matters. There must be an end to litigation … .’
The end has been reached in both the striking out application and the nullity application.
[36] I have given careful consideration to all the argument s raised before me and , for
the reasons set out in my ruling and in this judgment, the proposed interdict
proceedings , in my view, constitute an abuse of the process of court and have no
prospect of success . Accordingly, even if the rulings were appealable, the applicants
have demonstrated no clear right to found an interdict, and I do not consider that there
is a reasonable prospect that another court would come to a different conclusion in
respect of the prop osed interdict proceedings . I turn to the second request .
The second request for leave to institute proceedings
[37] The second request was formulated as follows:
‘Request for permission to institute enforcement proceedings relating to
mediation outcomes i n KwaNobuhle area 9 and 10 housing projects and to
compel the second respondent to release funds for work done, which it has
withheld.’35
[38] Neither the cause of action nor the relief that applicants intend to seek have been
properly explained in the request. However, as far as it may be gleaned from the
material presented with the second request, it seems to me that the proposed litigation
seeks payment of the same money referred to in paragraph 9.1.1 and 9.1.2 of the public
protector’s original remedial action36, just under a different guise. I do not intend to deal
herein with all the arguments raised in the application for leave to appeal and I shall
35 The second request reflects no case number of this court, but is referenced under ‘CCT case number
CCT 249/2024.’
36 See para 1 5 above.
confine myself to those that I consider to be material . As adumbrated earlier , clause 6.3
of the main contract provided that the appointment of a subcontractor shall not imply a
contract between the employer and the subcontractor, or responsibility or liability on the
part of the employer to the subcontractor. It was the obligation of the contract or, WK, to
perform in terms of the contract and i t was liable for the acts, defaults or neglects of any
subcontractor. During the course of the performance of the contract dispute s arose
between WK and the NMBM relating to amounts due by WK to the close corporation , for
work performed by it in terms of the subcontract . The disputes were referred to a
mediator in terms of clause 58 of the main contract37 for mediation between the NMBM
and WK38. The close corporation was not a party to the mediation and the jurisdiction of
the mediator extend ed only to disputes between WK and the NMB M, as circumscribed
in clause 58 of the main contract39. In respect of some of the payments that WK had
claimed in the mediation from the NMBM it had submitted the invoices , together with the
motivation in support o f the claims, that it had received from the close corporation in
order to establish its entitlement to payment from WK . Accordingly, it presented the
claims that had been made by the close corporation against WK in order to justify WK’s
claims against the NMBM.
[39] In respect of this approach the mediator commented:
‘The contractor WK has submitted claims A -G. These are claims which he
has submitted, quite properly, on behalf of his subcontractor GGC (the close
corporation), as if he were claimin g himself. This is quite normal procedure.
There is no other way to deal with the matter.’40
37 The relevant portion of the main contract was annexed to the request.
38 Clause 58, which provides for mediation, is an integral part of the main c ontract. It stipulates that it is
severable from the remainder of the contract and remains valid and binding on the parties to the contract
even where it may be found that the contract is void or voidable.
39 Clause 58 of the main contract is annexed to the second request.
40 Mediator’s opinion dated 4 August 2011.
He also expressed his opinion in respect of the validity and extent of these claims , and
where he upheld claims, he considered that they were payable to WK , based on the
claims made by the subcontractor against WK.
[40] Thus, in arriving at his conclusions the mediator noted:
‘The Contract is between the NMBM and WK. There are no third parties to
the Contract. A subcontract agreement exists between WK and Gobo -Gcora
construction (GGC), which is of no concern to the NMBM or the Mediator. …
As far as the Mediator is concerned the NMBM is a Developer who has
contracted WK to construct services and build h ouses for it. How the
Developer financed or intended to finance the Contract is not the concern of
WK or the Mediator unless the Contract specifically makes it a concern,
which as far as the Mediator can see it does not.’41
[41] Later, the mediator reiterated his opinion in respect of the invoicing methodology
and motivation when considering, inter alia, a claim for additional expenses due to price
increases as a result of delays in handing over possession of the site. He recorded:
‘What contract the Contractor had with the subcontractor, Gobo -Gcora
Construction, is not know n to the Mediator, nor is he or the employer
concerned with what is a private subcontract outside of the scope of the
Contract. If the Contractor has not passed the Contract Price Adjustment …
on to his subcontractor then that’s a matter between the Contractor and the
subcontractor and beyond the jurisdiction of the Mediator .’42
41 Mediator’s opinion dated 4 August 2011 at p1.
42 Mediator’s opinion dated 17 October 2011.
[42] In each case where the mediator expressed an opinion that a particular claim
submitted ‘on behalf of’ the close corporation was payable he found it to be payable to
the contractor ,43 not to the subcontractor.
[43] The mediation in respect of area 9 was completed in November 2011 and the
mediator’s written opinion is dated 7 December 2011. In support of the settlement
agreement reached the applicants have annexed a letter directed to the close
corporation on 12 January 2012 by Manong and Associates (Pty) Ltd (Consulting Civil,
Structural and Developmental Engineers). The letter records that the final agreement
had been reached and it concludes by recording:
‘Please note t hat because WK Construction was the main contractor,
payment will be made to them. You thus need to liaise with WK Construction
for payment of what is due to you.’
[44] The mediation in respect of area 10 was completed and agreement reached on
19 January 2012 . On the same day the project engineer addressed WK to record the
agreement that the NMBM were in agreement with the mediator’s opinions number 2
and 3 ‘as presented by him’ and have agreed to settle all claims specifically dealt with
by opinions 2 and 3 , in full and final settlement of all claims on this project.
[45] On the same day, a separate agreement , that is annexed to the second request,
was concluded between WK and the close corporation in respect of area 10. The
agreement was headed ‘Mediation Agreement’ and recorded:
‘Subsequent to our meeting of this morning attended by the employer and the
engineer we record the agreements reached at the meeting:
1. With respect to all the mediator’s opinions given on area 10;
43 Mediator’s opinion; (i) dated 17 October 2011 – Claim B, Claim C; (ii) dated 26 October 2011 – Claim
A, Claim C, Claim 2 (extras for Blockwork); and (iii) dated 7 December 2011 – Claim 3.
1.1 The employer (NMBM) accepted all the mediator's opinions as
given. The contractor (WK) accepted all the mediator's
opinions as given.
2. We further record that prior to the above acceptances GGC (the close
corporation) had reservations on three of the mediator’s opinions given
with respect to claims entered by GGC via WK.
2.1 After private discussion between WK and GGC consensus
was reached on the three opinions on which GGC had
reservations: …’
[46] The mediation agreement was signed on behalf of WK and by Mr Gcora and Ms
Gobo -Gcora on behalf of the close corporation. The NMBM was not a party to the
agreement.
[47] Thus, the opinion of the mediator favoured the close corporation, but neither the
opinion, nor the acceptance thereof, created any liability on the part of NMBM to the
close corporation, nor did it create rights in favour of the close corporation. The rights
and obligations of the respective parties were re gulated by the terms of their respective
contracts.
[48] That brings me to the findings of Pickering J in the review application , to which I
have referred in my ruling. Pickering J had emphasised that there was no contractual
nexus between the applicants and NMBM and he noted that if any amounts were due
to the close corporation it was the fault of WK , with whom the close corporation
enjoyed privity of contract. This was the ratio for the judgment in the review application
and for the concession made by the public protector. It follows that the applicants
could also not obtain any rights against the NMBM from the mediation between WK
and the NMBM, conducted in terms of the main co ntract. As I have said, the
settlement agreements accepted the opinions of the mediator ‘as presented by him’.
His opinions, as presented, found certain payments were due to the contractor, WK,
not to the close corporation. In the review application Pic kering J recorded the
undisputed evidence before him that the NMBM had paid to WK all money due to it.
Accordingly, they had honoured all their obligations arising from the mediation.
[49] In his heads of argument in the application for leave to appeal Mr Gco ra
submitted that I ha d erred in relying on the se findings of Pickering J because, so the
argument went, the Constitutional Court had already disposed of the issue of a contract
in cases arising out of state subsidies. He referred me to KwaZulu -Natal Join t Liaison
Committee v Member of the Executive Council, Department of Education, KwaZulu -
Natal and others (Centre for Child Law as amicus curiae) .44 But I do not think the case
is authority for the argument. In Joint Liaison Committee the MEC had issued a notice
to independent schools advising them of the approximate funding levels that would be
provided to them as subsidies for 2009/2010. They had accordingly relied on the
expectation in arranging their financial affairs for the said period. In May 2009, after
the first payment was already due , they were advised to expect a cut in subsidy, but
not exceeding 30% of their current subsidy allocation . The applicant in that case, an
association of independent schools, then sought to enforce what it called ‘promises’
made to them, notwithstanding that there had been no bilateral contract. The
Constitutional Court held that the particular setting in wh ich the undertaking had been
given to them indicated that it was a promise seriously given, in the expectation that it
would be relied upon, and that payment in terms thereof would be forthcoming. That is
a far cry from the facts set out in this case. He re, there is no nexus between the
NMBM, or the MEC for Human Settlement s, and the applicants. There has been no
allegation of any undertaking , or promise, given to the applicants by either of them , nor
that the close corporation had placed any reliance on such an undertaking . In this
case, at best, the MEC had given an undertaking to the NMBM upon which the NMBM
was entitled to rely. There is no suggestion of any undertaking given by the NMBM to
44 2013(6) BCLR 615 (CC) at para 48 .
the applicants. On the contrary, the express terms of the main contract stipulated that
it incurred no liability to the close corporation.
[50] As the history demonstrates, it was held in the review, and admitted by the public
protector, that the applicants had its contract with WK and had to look to them to
recover what was due to it. That, as I have said, was the ratio of the judgment and the
concession by the public protector. All appeal channels in respect of the judgment of
Pickering J have been exhausted. Attempts to rescind the judgment or to nullify it have
failed , and there is no such attempt pending. The proposed litigation is simply another
attempt, under a different guise, to recover the same money from the municipality
which the judgments have held that they are not entitled to. On the undisputed
evidence in the review application, all that became due to WK pursuant to the
mediation was paid.
[51] As adumbrated earlier, the relief that the applicants would seek in the proposed
litigation has not been formulated and I am unable to discern what the intended cause
of action would be. It cannot be a contractual claim , as the close corporation were not
party to the main cont ract. Ms Olowookorun was unable to direct me to any apparent
cause of action that could be gleaned from the request submitted , but she a rgued that
a new contract was created between the close corporation , WK, and the NMBM by the
acceptance of the mediator’s opinions. The argument is not born out by the
documentation. The terms of the respective settlement agreement s have been
discussed earlier. I do not consider that there is a reasonable prospect that anot her
court would come to a different conclusion.
[52] I concluded in my ruling that the contractual issue was dispositive of the request,
but even if I had erred in respect of the contract, I con sidered that any claims to which
the close corporation may have b ecome entitled to as a result of the mediation , have ,
prima facie, since become prescribed. By virtue of the conclusion that I came to in
respect of the contractual relationship, it is not strictly necessary to address this issue
further. However, Ms Olowookorun , in the application for leave to appeal, has
contended that I may have erred in coming to that conclusion. In doing so she has
referred me to the provisions of the Prescription Act.45 Section 17(1) thereof provides
that a court shall not of its own motion take notice of prescription. The provision is not
contentious, but, as I have said, where a judge in chambers considers a request in
terms of the Act he does not sit as a court. He is not adjudicating a dispute between
two parties. He is required to assess whether the vexatious litigant has discharged the
evidential burden to establish that he has a bona fide claim and whether there are ,
prima facie, grounds for the proposed litiga tion. The latter requires an assessment of
whether the litigation has any reasonable prospect of success. Where a complete
defence to the claim is readily available to the proposed defendants , I consider that it
must come into play in this assessment.
[53] Ms Olowookorun further contended that construction claims do not prescribe until
and unless a final account , or a final payment certificate , has been issued. She has
referred me in this regard , amongst others, to the decision of the Supreme Court of
Appeal in Martin Harris & Seuns Ovs (Edms) Bpk v Qwa Qwa Regeringsdiens; Qwa
Qwa Regeringsdiens v Martin Harris & Seuns Ovs (Edms) Bpk 2000 (3) SA 339 (SCA) .
[54] When prescription commences to run in a contractual matter depends upon the
terms of the contract. Martin Harris & Seuns was decided on the terms of the particular
contract. However, it is generally correct that construction contracts , by their nature,
are said to be entire contract s. A contract is said to be an entire contract when the
complete fulfilment of the promise by either party is a condition precedent to the right to
call for the fulfilment of any part of the promise by the other party. Thus, in a
construction contract, where the contract provides for interim payment s, upon paymen t
certificates being issued by the engineer, such payments usually cons titute advances
on the contract price. The contract price becomes payable when the final payment
certificate has been issued in terms of the contract . The difficulty for the applicants in
the present matter is that they were not parties to the contract. Their rights , if any,
arise from a different agreement with WK. T hus, even if the mediation process had
45 Section 17(1) of the Prescr iption Act, 68 of 1969.
established rights of action against the NMBM, which it did not do, it could relate only
to the particular claims considered by the mediator in respect of work performed on
behalf of WK, in terms of the subcontract, prior to the settlement on 19 January 2012 .
Accordingly, having given careful consideration to these submiss ions I remain
unpersuaded that the intended litigation is not an abuse of the court process or that
there is any reasonable p ossibility of ultimate success.
[55] There remains one aspect arising from the application for leave to appeal that
requires attention. It was argued that I had omitted to make a ruling in respect of the
relief sought against the MEC for the Department of Eastern Cape, Human
Settlements. There are two responses to the attack. First, the order of Potgieter J
relates only to litigation against the NMBM and the applicants do not require le ave to
litigate against the provincial government. Second, on a reading of the request for
leave to insti tute proceedings the relief sought against the MEC is entirely dependent
on the applicants obtaining leave to litigate against the NMBM. I am unable to find any
allegation in the request , or the argument in support thereof , that suggests any
independent c ause of action against the MEC. There is no contract with the MEC, and,
as I have said there is no allegation of any undertaking or promise made by the
department to the applicants. What the MEC had approved was funding to the NMBM
to pay for the housing project. That creates no nexus with the applicants. The
applicants suggested in the second request that they would be entitled to payment
directly from the MEC, if successful in the proposed litigation, by virtue of s 38(1)(f) of
the Public Finance Manag ement Act, 1 of 1999. But the submission is unsound.
Section 38(1)(f) provides for the accounting officer of the department to settle all
contractual obligations and pay all money owing, including intergovernmental claims. It
had no contract with the ap plicants, nor was any money owing to the applicants by it.
At best they may have been bound to the NMBM in terms of its undertaking to them.
But that cannot assist the applicants. Accordingly, in my view, the applications for leave
to appeal must be dis missed.
Costs
[56] As recorded earlier, the NMBM was cited as a respondent in both applications
and they entered an appearance to oppose the applications for leave to appeal. In
view of the longstanding propensity of the applicants to litigate , repeatedly , in respect
of the same issue , over and over again, I consider that it was a prudent step for them
to have taken and that they should not be out of pocket as a result of their endeavours
to protect their interests. However, I do not consider th at the applications justified the
employment of two counsel.
[57] In respect of the first request a further issue has arisen that may have an effect
only on the cost order. On 29 January 2025 Mr Gcora delivered a notice in terms of
rule 7 of the Uniform Rules of Court to challenge the authority of Pagdens to act in
case number 1414/2016 and 992/2016. It is not entirely clear what the challenge was
directed at as there was no litigation pending under either of these case numbers at the
time. As I have said, the allocatur application was the only live dispute at the time and
it was launched under a separate case number. Nevertheless, following the
application for leave to a ppeal, on 7 February 2025 Pagdens entered an appearance to
oppose the application. Ms Olowookorun directed a letter to Pagdens on 20 March
2020 requesting Pagdens to provide them with a copy of the authority to represent the
NMBM. Ms Roberts responded on the same day. She annexed the resolution to
which I have referred earlier, together with a further resolution received from the then
City Manager dated 29 November 2024. She then recorded:
‘Without prejudice to our rights to contend that your Rule 7 No tice is late and
requires the leave of the Court before it can be formerly serv ed and filed, in
order to avoid any dispute, we enclose the Acting City Manager’s Resolution
dated 29 July 2024 and 29 November 2024.’
[58] Ms Olowookorun did not accept that the resolutions were adequate to establish
the authority of Pagdens and argument was addressed to me from the bar on this issue.
On the view that I have taken of the matter it is not necessary to resolve this dispute.
[59] The anterior question is whether the challenge has been properly made in terms
of the provisions of the rule. Rule 7(1) of the Uniform Rules provides that the authority
of anyone acting on behalf of a party may, within 10 days after it has come to the notice
of a party that such person is so acting, or with the leave of the court on good cause
shown at any time before judgment, be disputed, whereafter such pe rson may no longer
act unless he has satisfied the court that he is authorised so to act, and to enable him to
do so the court may postpone the hearing of the action or application.
[60] The effect of the rule is that a litigant seeking to challenge the author ity of any
person acting on behalf of a party is entitled , as of right, to deliver his notice within 10
days of becoming aware of the representation. In the event that a litigant has failed to
deliver the notice within the stipulated period they may never theless, with leave of the
court and on good cause shown, be permitted to do so at any later stage prior to
judgment. In Janse van Rensburg46 a Full Court in the Western Cape explained that the
subrule demands that the challenge be made within 10 days , because a delay in
challenging the authority is ‘ inimical to the efficient administration of justice’ , and that
such challenges to the authority of an attorney to represent a litigant, ‘if they are to be
raised at all, should be raised promptly and at the earliest opportunity’ .
[61] Accordingly , it was incumbent upon the applicant to deliver their challenge to the
authority within 10 days of becoming aware of Pagdens acting in the litigation in respect
of the cost orders. The history of the matter demonstrate s that Pagdens have been so
acting since July 2024. The applicants have not explained when they became aware of
the fact that Pagdens were acting on behalf of the NMBM nor have they given any
explanation for delay in bringing their challenge , but, at best for the applicants, the
notice of set down in the allocatur application was delivered on 7 October 202 4. The
notices filed by Pagdens and the date of the hearing are set out earlier. The rule 7(1)
46 Janse van Rensburg v Obiang and Another (unreported, WCC case number A338/2018, delivered on
10 May 2019 at para 17).
notice was delivered on 29 January 2025, more than 3 months after receipt of the notice
of set down in the allocatur application .
[62] Having been alerted to the terms of the rule the applicants ma de no attempt to
apply for condonation for the late filing of the notice nor did they apply for leave, on
good cause, to bring a late challenge. 47
[63] In the result, the applications for leave to appeal in respect of bo th the rulings are
dismissed with costs , such costs to be limited to the costs of one counsel to be taxed
on scale B.
J W EKSTEEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
Appearances:
For Applicants: Ms Olowookorun
Instructed by: Bukky Olowookorun Attorneys
GQEBERHA
For Respondents
in the interdict
application: Adv Rorke SC and Adv Rawjee
Instructed by: Pagdens Attorneys
GQEBERHA
47 See Kaap-Vaal Trust (Pty) Ltd v Speedy Brick & Sand CC (unreported, GP case number 2314 3/2020
dated 18 October 2021) at para s 17 – 20.
For Respondents
in the enforcement
application : Adv Ronaasen SC and Adv Cetywayo
Instructed by: Mc Williams & Elliot
GQBERHA
Date Heard: 24 March 2025
Date Delivered: 01 April 2025