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delivery of judgment in the High Court: case number 2026 – 081278. The Judge
President referred the request for determination.
[2] Section 47 provides that a judge may not be cited without the consent of the head
of the court. The provision exists to safeguard judicial independence and to
prevent judges from being unnecessarily drawn into litigation arising from the
exercise of their judicial functions.1
[3] The Applicants instituted proceedings in this Division under case number
2026 – 081278. The matter was set down for hearing before Dlamini J in open
court on 21 April 2026. The Applicants were duly notified of the hearing and its
modalities. The Applicants indicated that legal representation would attend.
However, neither they nor any representative appeared when the matter was
called, nor during the week in which the matter stood enrolled. In addition, there
was non -compliance with procedural requirements, including the absence of
properly filed documents before the Court. The matter was accordingly removed
from the roll for non-appearance and non-compliance.
[4] Removal from the roll entails that the matter is not adjudicated on the merits and
no judgment is reserved or pending. The Applicants contend that their matter
was fully placed before the Court, that judgment was reserved, and that there
has been an ongoing failure to deliver judgment in violation of section 34 of the
Constitution. On that basis, they seek to cite Dlamini J in Constitutional Court
proceedings to compel delivery of judgment.
[5] Section 47 of the Superior Courts Act limits the citation of judicial officers absent
consent. The provision reflects the broader constitutional principle that judicial
independence must be protected from unwarranted interference. 2 Courts have
repeatedly emphasised that judicial officers should not be cited in proceedings
arising from their judicial functions unless a proper and compelling basis exists.
arising from their judicial functions unless a proper and compelling basis exists.
The decision whether to grant consent is discretionary and must be exercised on
a proper factual foundation and rational basis.
1 Freedom Under Law v Motata [2021] ZAGPPHC 14 at para 26.
2 Van Rooyen and Others v The State [2002] ZACC 8; 2002 (5) SA 246 (CC) ; 2002 (8) BCLR
810 (CC) paras 19–20.
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3
[6] The Applicants’ case rests on the premise that their matter was heard and that
judgment has been reserved. That premise is incorrect. The uncontested record
establishes that the matter was removed from the roll for non -appearance and
non-compliance. There was accordingly no hearing on the merits. It follows that
there is no pending judgment and no delay attributable to the presiding Judge. A
court determines only disputes properly before it. Judges are required to confine
themselves to the issues before th e court. 3 It therefore follows that w here
proceedings are not properly constituted or pursued, no adjudicative obligation
arises.
[7] The Applicants’ reliance on section 34 is therefore misplaced. The right of access
to courts guarantees a fair hearing of disputes properly brought but does not
arise in the absence of such a process. Nor does section 34 extend to compel
the delivery of a judgment where no hearing has occurred and no decision has
been reserved. The proposed citation of Dlamini J is thus unsupported by any
factual or legal basis. The application is, in substance, misconceived. Courts
possess an inherent power to prevent misuse of their processes, including
attempts to pursue proceedings founded on incorrect factual premises. 4 To
permit the citation of a Judge in these circumstances would undermine judicial
independence and expose judicial officers to unwarranted litigation.
[8] The Applicants have failed to establish any factual or legal basis warranting the
grant of consent in terms of section 47. The proposed citation of Dlamini J lacks
merit and constitutes an impermissible attempt to draw a judicial officer into
proceedings unjustifiably.
[9] In the premises, the following order is made:
Order
1. The request for consent in terms of section 47 of the Superior Courts Act 10 of
2013 to cite the Honourable Dlamini J is refused.
3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at
para 15.
para 15.
4 Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 734 E–G; see also Hudson v
Hudson 1927 AD 259 at 267.