IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN DURBAN)
Case no: D 601/2023
Not Reportable
In the matter between:
AMA MUGAM GOVENDER A pplicant/Respondent
and
THE KWAZULU NATAL OFFICE OF THE PREMIER Applicant / Respondent
Heard: 6 December 2024
Judgment delivered: 20 February 2025 (Electronically)
JUDGMENT
WHITCHER J
Introduction
[1] Two applications serve before me, a contempt application filed by Mr
Govender (Govender) on 27 November 2024, and an application to declare
Govender a vexatious litigant as contemplated in section 2 (1)(b) of the Vexatious
Proceedings Act, 3 of 1956, which application was filed by the KwaZulu- Natal Office
of the Premier (the K OTP) on 13 March 2024.
Relevant background facts
[2] On 16 August 2023, the General Public Service Sector Bargaining Council
issued an arbitration award. In terms of the award, it was found that the KOTP had
unfairly dismissed Govender and the KOTP was obliged to reinstate him and pay
him backpay in the amount of R 9 449 977.48 (less any lawful deductions ).
[3] On 19 October 2023, the K OTP filed to have the award reviewed and set
aside.
[4] On 8 November 2023, following attachment proceedings initiated by
Govender and an urgent application by the KOTP to interdict same, the Court issued
an order crafted by the parties .
[5] In terms of the order , the o peration of the arbitration award was suspended
pending the determination of the payment of security by the KOTP; Govender was
restrained from removing the attached property of the KOTP pending the finalization
of the review proceedings; Govender had to file an opposing affida vit by 22
November 2023 and the KOTP a replying affidavit by 6 December 2023 .
[6] Four important facts arise from this order :
(i) Evidently, t he KOTP did furnish security in terms of section 145(7) of
the LRA to suspend the operation of the award. Presumably, that is why the
KOTP agreed to pay the costs of the execution incurred by Govender.
(ii) Govender filed his opposing affidavit as ordered but the K OTP did not
file a replying affidavit .
(iii) The order did not have a return date and there is no sign in the
application before me that the KOTP made any effort to have the security
issue enrolled and finalized. In fact , by the time the review was heard almost
10 months later, the matter of their failure to furnish security had not been
resolved. They left that important matter to languish.
[7] On 7 February 2024, Govender filed a contempt of court application calling
upon the K OTP to show cause on 16 February 2024 why it should not be held in
contempt of court for failing to comply with the above court order.
[8] On 16 February 2024, following discussions with the legal representatives of
the KOTP a nd the court, Go vender withdrew the contempt application, but withdrew
it ‘without prejudice ’ to any right he may have to reinstate it.
[9] On 4 March 2024, Govender essentially reinstated that contempt application.
[10] In response, on 13 March 2024, the KOTP filed their application to have
Govender declared a vexatious litigator as contemplated in section 2(1)(b) of the
Vexatious Proceedings Act, 3 of 1956.
[11] The above contempt application was dismissed (ex tempore) on 15 March
2024. Why it was dismissed is not explained by the K OTP.
[12] On 16 July 2024, Farrell AJ dismissed the review application with costs.
Written reasons were delivered on 5 September 2024.
[13] On 19 September 2024, the KOTP filed for leave to appeal the whole of the
judgment of Farrell AJ , and, on 4 October 2024, they filed their submissions in
support of the application.
[14] On 27 November 2024, Govender filed the contempt application that serves
before me.
The contempt application
[15] In terms of this application, Govender seeks to hold the KOTP and the
Premier in contempt for failing to comply with arbitration award issued on 16 August
2023.
[16] Given the KOTP’s application for leave to appeal and when the application
and the required submissions were filed, the contempt application falls to be
dismissed with costs. Cost s, because the contempt application was filed long after
the aforementioned filings and, on 15 October 2024, the K OTP pertinently r eminded
Govender that they had filed all the necessary papers in their application for leave to
appeal and pertinently warned him against his threat to bri ng this contempt
application. However, for reasons explained further on, I shall not make a cost order
against Govender. The application to declare Govender a vexatious litigant
[17] In this application, filed on 13 March 2024, the KOTP seeks an order in the
following terms:
(i) declaring [Govender] a vexatious litigant as contemplated in section
2(1)(b) of the Vexatious Proceedings Act, 3 of 1956;
(ii) declaring that no legal proceedings shall be instituted by [Govender]
against [the OTP] without the leave of this Court, or any Judge of this Court,
as the case may be, and such leave shall not be granted unless the Court or the Judge, as the case may be, is satisfied that the proceedings [Govender] wishes to institute, are not an abuse of the process of the Court and that there is a prima facie ground for the intended proceedings;
(iii) costs of the application on a scale as between attorney and client.
[18] Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 provides that:
“If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons,
the court may, after hearing that person or giving him an opportunity of being
heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may
be, is satisfied that the proceedings are not an abuse of the process of the
court and that there is prima facie ground for the proceedings.”
[19] The SCA in MEC for the Department of Co- operative Governance and
Traditional Affairs v Maphanga
1 held as follows :
It is clear from the ordinary wording of this provision that it brings within its purview actual or prospective litigation brought or threatened by a person
who has persistently, and without any reasonable ground, instituted legal
proceedings …The purpose of the provision is ‘to put a stop to persistent and
ungrounded institution of legal proceedings … in the Courts’ i .e. to ‘put a stop
to the making of unjustified claims … So, an applicant who seeks the
protection of the provisions must establish, first, that the respondent has in the past instituted legal proceedings in a court against
her…persi stently and without reasonable cause. Secondly, she must
prove that further litigation has been brought against her or is
reasonably contemplated.
2 [Emphasis added]
[20] On the meaning of the word “ persistent ” in this context , the SCA agreed with
the court a quo’s interpretation:
Due account must be given to the language, context and purpose of the legislation. Although constitutionally valid, the legislation must nonetheless be accorded a narrow construction as it interferes with a protected right and restricts the right of access to courts, to avoid undue limitation of the right …
The meaning envisaged in the present context must be a ‘recurring’ or ‘constantly repeated or continuous’ institution of legal proceedings in a court.
1 (652/2018) [2019] ZASCA 147 (15 November 2019) .
2 Paragraph 12.
[21] Notably, the relief provided for in section 2(1)(b) of the Act is prospective in
nature. It seeks to protect a person against the institution of future persistent and
ungrounded legal proceedings. The Act does not afford protection against existing
vexatious proceedings, or an abuse of process in respect of legal proceedings that have already been instituted. As pointed out by the S CA:
“…Secondly, she must prove that further litigation has been brought against
her or is reasonably contemplated. ”
[22] The SCA also cautioned that:
A court must, in granting this type of relief, proceed very cautiously and only in a clear case, make a general order prohibiting proceedings between the same parties on the same cause of action and in respect of the same subject matter where there has been repeated and persistent litigation, and craft such order to meet only the immediate requirements of the particular case. The stringent onus on the applicant who seeks the relief and the need for the court’s caution in exercising this power obviously arise from the fact that the relief curtails a litigant’s access to court.
3
[23] Is Govender a vexatious litigant? Did he harass the KO TP with persistent
legal proceedings that had no reasonable grounds? The answer is a clear No.
[24] A proper consideration of all his legal proceedings , save for the last one,
indicates that in his own lay manner he had attempted to enforce his award when he
had every right to do so given the KOTP’s failure to furnish security and thereby
suspend the operation of the award. The fact that the KOTP agreed to pay the costs
of execution incurred by him speaks for itself.
[25] It is also evident that the contempt applications filed by Govender on 7
February and 4 March 2024 which triggered the KO TP ‘vexatious’ claim related to
the court order of 8 November 2023 was essentially an attempt by him to secure
compliance with the court order and finalise the issue of security . Yes, the KOTP
3 Paragraph 26.
was not obliged in law to file a replying affidavit, but as stated above, they had been
obliged to take steps to have the matter finalised, which they never did.
[26] Accordingly, it cannot be found that prior to the 13 March 2024, Govender had
persistently and without reasonable grounds instituted legal proceedings against the KOTP.
[27] Ultimately, the application to declare Govender a vexatious litigant itself was
brought in bad faith, hence my decision not to make a cost order against Govender.
Order
1. The contempt application filed by Govender on 27 November 2024 is
dismissed. 2. The application to declare Govender a vexatious litigant is dismissed.
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For Mr Govender :
In person For the KwaZulu -Natal Office of the Premier:
MTK Moerane SC, with SM Luthuli, instructed by the State Attorney, KwaZulu -Natal