VICKY DE NYSSCHEN Seventh Respondent
AURENT OOSTHUIZEN (nee’ GREEN) Eighth Respondent
DOROTHEA REGINA DU TOIT Ninth Respondent
CORNE DU TOIT Tenth Respondent
DALEEN PIERINI Eleventh Respondent
JACOBUS CHRISTOFFEL ERASMUS Twelfth Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for hand -down
is deemed to be 21 February 2025 at 14h00 .
JUDGMENT
MFENYANA J
Introduction
[1] This is an application in terms of rule 45A of the Rules of this Court. In Part
A the applicant seeks a stay of an order granted by the learned magistrate
Langa in the Magistrates’ Court , Pretoria on 14 August 2024, and
suspending its operation pending the determination of Part B. In Part B, the
applicant seeks rescission of the same order. The rescission is premised on
the applicant’s contention that the learned m agistrate erred in granting the
order , as there was no compliance with section 47 of the Superior Court s
Act (the Act) which requires any person who wishes to institute legal
proceedings against a judge, to obtain the consent of the Judge President
before instituting such proceedings.
[2] The application was launched on an urgent basis. The applicant’s
submission in this regard is that because the twelfth respondent, who is the
appointed administrator, has started executing his duties in terms of the
impugned order , this constitutes ongoing harm , as the order was motivated
by a material error in law , that the first respondent was not required to
comply with section 47(1) . As such, the applicant contends that she would
not be afforded substantial redress in due course as the twelfth respondent
would have gone far ahead in his duties in terms of the order , which actions
would not be reversible.
Factual matrix
[3] The relevant background to this application is that on 7 December 2023 the
first respondent (as applicant) served an application to place the second
respondent under administration . The application was issued out of the
Pretoria Magistrates’ Court . The applicant (in this application) as well as
the first and third to eleventh respondents are owners of properties in a
sectional title scheme known at Mont Reyn. They together constitute the
second respondent ( the Mont Reyn Body Corporate).
[4] It is common cause that the application in the Magistrates’ Court was only
issued against the Body Corporate and not against any of the owners of
properties in Mont Reyn . The applicant together with nine other property
owners (the third to eleventh respondents in this application) were granted
leave to intervene in the proceedings before the Magistrates’ Court. In these
proceedings, the applicant has cited ten of the property owners as well as
the administrator who was appointed in terms of the court order of 14
August 2024.
[5] The applicant avers that all legal proceedings involving a body corporate
must be issued against the trustees , as a body corporate is not a juristic
person and cannot sue or be sued in its own name , a fact which is
vehemently denied by the first respondent. It is necessary to dispose of this
aspect of the application, this early on. A body corporate is a juristic person
which can sue and be sued in its own name. This is trite law and there are
a number of decisions dealing with the subject. In Harbour Terrace Body
Corporate (SS401/1998) v Minister of Public Works and Others1 the court
stated that:
1 [2016] 3 All SA 766 (WCC) ; see also: Zikalala v Body Corporate of Selma Court and
Another (AR255/2020) [2021] ZAKZPHC 81; 2022 (2) SA 305 (KNP) (23 September 2021) .
The body corporate is a juristic person with perpetual succession capable of
suing and of being sued in its corporate name in respect of any matter in
connection with the land or building(s) for which the owners therein are jointly
liable, any matter arising out of the exercise o f any of its powers or the
performance of any of its duties under the Act, any contract made by it and any
damage to the common property. The body corporate is required to control,
manage and administer the common property for the benefit of all owners and
to properly maintain the common property in a state of good and serviceable
repair.
[6] The applicant avers that as the owner of one of the units in Mont Reyn, s he
is directly and substantially affected by the order sought by the first
respondent (as applicant in the proceedings before the Magistrates’ Court).
It is on that basis that she sought leave to intervene in the proceedings .
[7] On 12 January 2024 the applicant served a notice of her intention to oppose
the application. Thereafter , settlement negotiations ensued between the
parties which yielded no positive results . Leave to intervene was granted
to the applicant as well as nine other members of the Body Corporate,
providing timeframes for filing of answering affidavits. The application was
then set down for hearing on 20 June 2024.
[8] On 30 May 2024 the applicant filed a notice in terms of rule 55 (1) (g) (iii)
of the Magistrates’ Court Rules, raising a point of law t o the effect that
section 47 of the Act had not been complied with. At the hearing of the
matter on 20 June 2024 the court a quo rejected the applicant’s point of law .
Having also refused a request for postponement by the applicant and the
other respondents who had been joined in the matter , the learned
magistrate proceeded to deal with the matter on a default basis , reject ing
the opposing affidavits filed by the applicant and other members of the body
corporate out of time. The court a quo nonetheless postponed the matter in
order to consider a supplementary affidavit filed by the first respondent. On
14 August 2024 the same court granted judgment by default .
[9] When on 23 August 202 4 the twel fth respondent sent an email to all the
property owners informing them of his appointment as an administrator of
the second respondent , the applicant instructed her attorneys to institute
an urgent application to stay the operation of the order. This is that
application.
[10] It is common cause that the applicant is a sitting judge of this Division . It is
for this reason that the parties approached the Deputy Judge President
(DJP) requesting that the matter be presided over by a judge from a Division
of the High Court other than thi s Division. The request was acceded to by
the DJP . The import of this narration is that some time elapsed between the
time of the issuing of the application and the allocation of a date of hearing.
That in my view can be attributed to the obvious administrative
requirements associated with such request, and the fact that an external
judge may not have been readily available. The applicant consented to the
request . As such the applicant submitted that while it persists with urgency
on the basis that the order of the Magistrates’ Court poses continuous harm ,
nothing much turns on it and issues of urgency have become moot. I share
this sentiment.
Discussion
[11] The applicant avers that as the owner of one of the units in Mont Reyn, she
has a clear right in the application brought before the Magistrates’ Court
which ought not to have been proceeded with until the first respondent had
obtained the consent of the Judge President to act against the applicant. To
this, the first respondent contends that the a pplicant was not cited simply
because the body corporate is capable of being cited in its own name. While
this is so, it does not negate the fact that the applicant, as well as nine other
property owners were granted leave to join the proceedings as respondents.
It is at that point that the applicant avers the proceedings ought not to have
continued until the first respondent had sought the consent of the Judge
President. She further contends that she would suffer an injustice if the
order were set into operation .
[12] In order to fully comprehend the essence of the applicant’s argument , it is
necessary to consider the provisions of section 47. It provides:
“47. (1) Notwithstanding any other law, no civil proceedings by way
of summons or notice of motion may be instituted against any judge
of a Superior Court, and no subpoena in respect of civil proceedings
may be served on any judge of a Superior Court, except with t he
consent of the head of that cour t or, in the case of a head of court or
the Chief Justice , with the consent of the Chief Justice or the
President of the Supreme Court of Appeal, as the case may be.”
[13] In the answering affidavit the first respondent argues that it is untenable
that the permission of the Judge President could be required in
circumstances where a juristic person which a judge is a member of , or has
a financial interest in, is sued as this would offend against the principle of
separate juristic personality, in this case, of the body corporate and the
individuals who constitute it. The first respondent further states that he did
not seek any relief against the applicant, but against the body corporate as
this is standard procedure. He challenges the fact that the applicant
advanced no real opposition to the merits of the application before the
Magistrates’ Court and opted to only raise a point of law as she does in the
present application. As such, the factual basis of the applicatio n before the
Magistrates’ Court stand s undisputed, the first respondent further
contends.
[14] Equally undisputed is the fact that there are serious problems with the
administration of the Mont Reyn Body Corporate, which require the
appointment of an administrator, he further contends. Thus, the first
respondent denies that such appointment would prejudice the applicant in
any way, and that her apprehension that the appointment of an
administrator would decrease her prospects of selling her unit is unfounded.
[15] It is necessary to state that while various submissions were made by the
parties in relation to the proceedings before the Magistrates’ Court , what
stands for determination b efore this Court is whether the applicant has
made out a proper case for the suspension of the operation of the order .
This largely depends on whether that order was properly granted. Equally
relevant is whether the order would have a negative effect on the applicant
were it to be executed.
[16] It is so that the applicant assails the very existence of the order based on
the circumstances under which it was granted. Section 47(1) presents no
ambiguity. It sets out in clear terms that any person who intends to institute
civil proceedings against a judge must first obtain authorisation from the
Judge President. The main bone of contention between the parties in this
regard is whether in the peculiar circumstances of this case, the first
respondent was obliged to comply with this provision, having elected not to
institute any proceedings against the applicant, a judge of this Division. The
answer , in my view , lies in the prevision for the provision itself. I should point
out that the finding of the learned magistrate that the requirement as
contained in section 47( 1) does not exist , is misplaced. This is disputed by
the first respondent who avers that no such finding was made by the learned
magistrate. Nothing much turns on this. What matters is that ultimately , the
application proceeded without compliance with the provisions of section
47(1). It is for this reason that the applicant avers that she enjoys good
prospects of success in the rescission application.
[17] In Soller v President of the Republic of South Africa2 Ngoepe JP noted, with
reference to the predecessor3 to the current Superior Courts Act that the
purpose of the provision is to ensure the independence of the judiciary in
circumstances where judges find themselves spending more time in court
as defendants rather than adjudicators of disputes. The learned Judge
President characterized the requirement as a ‘sifting mechanism’ in civil
actions brought against judges. In the same vein , Mlambo JP noted in
Engelbrecht v Khumalo4 that section 47(1) “is the mechanism through
which the institution of legal proceedings against judges is regulated” and
2 2005 (3) SA 567 T.
3 Supreme Court Act 59 of 1959.
4 2016 (4) SA 564 GJ .
plays a gate -keeping role. It is trite that the provision also applies to
counterclaims in actions instituted by judges.
[18] It is worth pointing out that section 47(1) is not merely a procedural
requirement. As Tlaletsi JP observed in Mthenjwa v Steyn and Another5
(Mthenjwa ) the requirement has both procedural and substantive elements
to it. At a procedural level, the inquiry is what procedure should a
prospective litigant wishing to institute legal proceedings against a judge
follow. The substantive aspect relates to the decision to be taken by the
Head of Court once he or she receives a request to give consent for legal
proceedings to be instituted against a Judge in his or her Court.6 There can
be little doubt that the provision is peremptory. In this regard aptly referred
to the provision as ‘peremptory and instructive’. The court in Mthenjwa
found that the application was defective for failure to comply with section
47(1).
[19] What then, where in spite of such gate -keeping apparatus, and by no doing
of the applicant or plaintiff in the matter, the judge is joined to the
proceedings by an order of court pursuant to an application by the judge?
Put crudely, what if the judge invites themselves to the proceedings on
account of a vested interest in the outcome of the matter ?
5 (9028/17) [2017] ZAWCHC 161 (30 November 2017) .
6 Para [5].
[20] It is common cause that the applicant was joined to the proceedings in the
Magistrates ’ Court following her application to join the proceedings. This is
precisely the reason why the first respondent maintains that he had no
responsibility to seek the consent of the Head of Court as the proceedings
he instituted were not aimed at the judge. Is it still the responsibility of the
applicant to seek leave of the Head of Court in order to proceed against the
judge ?
[21] It should be borne in mind that the judge was joined to the proceedings in
the Magistrates’ Court by an order of that court following agreement
between the parties. It does not, in my view, avail the first respondent to
deny that the applicant has a direct and substantial interest in the order
granted by the Magistrates’ Court. That is a foregone conclusion; a matter
to which the first respondent has acquiesced . It is undeniable that property
owners have a financial and personal stake in the decisions and actions
made by the body corporate and that these decisions directly affect how
each unit is used and valued.
[22] It is trite that the provision also applies to counterclaims in actions
instituted by judges. I am not concerned about whether if one considers t he
merits of the matter before the Magistrates’ Court , it was open to that court
to appoint an administrator. That is not a question this Court is seized with.
The question is whether the Magistrates’ Court complied with all the
prescripts of the law for the matter it was faced with. Neither do I consider
it appropriate to delve into aspects of the applicant’s income or her reasons
for wanting to sell her property as suggested by the first respondent.
[23] Of importance is that the first respondent avers that this application is
flawed in that it is based on the incorrect perception that a body corporate
has no separate existence from its members. I have already stated that this
submission by the applicant is incorrect as a body corporate is a persona
iuris, separate from its members. Th is, in my view, does not detract from
the fact that the Magistrates’ Court saw it fit to join the applicant to the
application. Having done so, and at that point, it was imperative that the
authorisation of the Head of Court be obtained.
[24] The first respondent contends that there is no legal obligation to obtain the
consent of the Judge President before instituting proceedings against a
body corporate which a judge is a member of. This contention is in my view,
ill-conceived as it flies in the face of the provisions of section 47(1) and the
wealth of authorities herein stated . He further avers that no order was
granted against the applicant. He challenges the fact that a juristic person
which has a judge as its member or a company which has a judge as a
shareholder cannot be sued . Thus he contends that the applicant, having
elected to be a party to the proceedings, ought to have , herself, sought
consent from the Judge President. I reiterate that the applicant was joined
to the proceedings following her applica tion and agreement between the
parties. Notably, the test for joinder or non - joinder is whether a party has
a direct and substantial interest in the subject -matter. This therefore puts
paid to the question whether the applicant has a direct and substantial
interest in the appointment of an administrator for the body corporate in
which she has an interest, and owns a property in. It does not matter in my
view, whether the said administrator turns the fortunes of the body
corporate around as the first respondent seems to suggest.
[25] Mr Shangisa, counsel on behalf of the applicant referred me to the decision
of this Division in Freedom Under Law v Judge Nkola Motata (FUL)7 to drive
home the point that section 47(1) is “ a mechanism designed for the
protection of judges against non -meritorious lawsuits …” He argued that a
litigant seeking to institute proceedings against a judge must show good
cause – “whether the proceedings, for which consent to litigate against a
Judge is sought, contains justiciable issue.”8
[26] Responding to the contention that the proceedings in the Magistrates’ Court
are not against the judge per se, Mr Shangisa placed further reliance on
FUL that the consent of the Head of Court is required even where a judge
is an interested party , and whether the matter relates to a Judge’s judicial
7 [2021] ZAGPPHC 14 (28 January 2021).
8 Torwood Properties (Pty) Ltd v South African Reserve Bank 1996(1) SA 215 (W).
functions, activities or private affairs. As in FUL, the proceedings in the
Magistrates’ Court do not depend on the participation of the applicant.
However , as Mlambo JP noted in FUL, the consent of the Judge President
is required to cite the judge in the proceedings. Mr Shangisa argued that
the fact that in FUL, the review proceedings were against the JSC which is
a separate entity is significant in rejecting the first respondent’s argument
and in rendering the order of the Magistrates’ Court fatally defective and
that the first respondent is unable to overcome the hurdles as FUL is
instructive in these circumstances . I agree.
[27] In contrast , Mr Davies argued on behalf of the first respondent that the
applicant’s case is chaotic . He referred to what he called an embarrassing
contention that a body corporate has no juristic personality. I have already
made a finding regarding the legal standing of a body corporate in the sense
of it being a person in the eyes of the law , clothed with the power to sue
and be sued in its own name. Mr Davies further submitted that it has never
been required a legal requirement that a member of a body corporate be
cited as having a direct and substantial interest. In my view that ship has
long sailed. The first respondent’s submission overlooks the fact that the
applicant was joined to the proceedings in the Magistrates’ Court, with his
acquiescence. The applicant is cited as a party to the proceedings. There
can be no issue about that.
[28] In his further submission, Mr Davies drew similarities between the present
scenario and shareholders of a company . Inasmuch as a body corporate is
a legal persona sui iuris, it is a mandatory legal entity . Members of a body
corporate do not stand in comparison to shareholders of a company. The
first respondent’s complaint that a party could not be expected to know who
the shareho lders are, does not find application in the facts of this case. The
members of the body corporate are know n, and ought to be known to the
first respondent .
[29] Interestingly, and short of seeking a declaration that section 47 is
unconstitutional, Mr Davies argued that in terms of section 9 of the
Constitution everyone is equal before the law. However when an enquiry
was made by this Court whether the first respondent intended to have the
section declared unconstitutional , Mr Davies ’s response was in the
negative. Indeed, a cursory reading of the provision does not evince a sense
that no proceedings may be instituted against a judge . As I have already
stated, it is a gatekeeping mechanism aimed at filtering proceedings against
judges. I do not understand the provision to even suggest that a judge is
absolved from facing the music of litigation, where such is warra nted. To
the contrary, the requisite section vests the Head of Court with a power to
give consent in circumstances where a litigant requires to sue a judge.
[30] The remainder of the submi ssion s on behalf of the first respondent pertain
to the proceedings before the Magistrates’ Court . Notably, the first
respondent relies on the judgment of the Constitutional Court in Zuma v
The Secretary of the Judicial Co mmission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector Including Organs of
State and Others ( Zuma)9 for the proposition that the applicant was absent
from the proceedings in the Magistrates’ Court and was excluded therefrom
due to her failure to comply.
[31] In all fairness to the first respondent Zuma is only relevant to the rescission
application to be instituted by the applicant. It does not find application to
the stay of the order in terms of Rule 45A which question this Court is seized
with.
[32] It remains for me to deal with the requi sites for an interim interdict10, and
whether the applicant has satisfied the requirements for the relief she seeks
in terms of Rule 45A . As owner of a property at Mont Reyn, the applicant
has a n interest in decisions which affect the ownership of her property, and
this establishes her prima facie right. It was further contended on behalf of
the applicant that the order of the Magistrates’ Court constitutes a flagrant
disregard of the statutory requirements laid down in section 47.
9 (CCT52/21) [2021 ] ZACC 28; 2021 (11) BCLR 1263 (CC) (17 September 2021).
10 Setlogelo v Setlogelo 1914 AD 221.
[33] As regards irreparable harm, the applicant avers that the impugned court
order is a sword looming over the applicant’s head and constitutes on -going
harm, and that the balance of convenience favours the applicant. To my
mind, there is no downplaying the fact that the order was not properly
granted as it was granted in violation of the peremptory provisions of section
47(1).
[34] In view of the aforegoing it is my view that the applicant has satisfied the
requirements for the stay of the operation of the order of the Magistrates’
Court granted on 14 August 2024.
Costs
[35] The applicant sought an order for the costs against the first respondent
which costs include costs of two counsel. The general rule relating to the
costs is that costs follow the result. Re-imbursing a successful party of his
or her out of pocket expenses is a settled principle which brooks no further
ventilation. As re gards the costs of t wo counsel, the general rule is such
costs may only be awarded by the court if the circumstances of the case so
demand. This relates to the complexity of the case and the novelty of issues
involved in a particular case. It is no doubt that the issues involved in this
case as well as the case itself required proper ventilation . The employment
of two counsel therefore cannot be naysaid . It is my view therefore, that the
employment of two counsel in this case was merited.
Appearances
For the App lican t : SL Shangisa SC assisted by S Kunene
instructed by Hlapane Attorneys Inc.
For the first re spondent : SW Davies instructed by Loock Du Pisane
Attorneys Inc.
For the 2nd to 12th respondents : No appearance