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[2003] ZACC 20
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Wallach v Registrar of Deeds (Pretoria) and Others; Wallach v Spilg and Others (CCT33/03; CCT45/03) [2003] ZACC 20; 2004 (3) BCLR 229 (CC) (14 November 2003)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 33/03
PETER
SIEGWART
WALLACH Applicant
versus
THE
REGISTRAR OF DEEDS
(PRETORIA) First
Respondent
THE
MASTER OF THE HIGH
COURT Second
Respondent
MERVYN
ISRAEL
SWARTZ Third
Respondent
MICHAEL
LEO DE
VILLIERS Fourth
Respondent
and
Case
CCT 45/03
PETER
SIEGWART
WALLACH Applicant
versus
BRIAN
SPILG First
Respondent
MERVYN
ISRAEL
SWARTZ Second
Respondent
MICHAEL
LEO DE
VILLIERS Third
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Fourth
Respondent
THE
SOCIETY OF ADVOCATES OF SOUTH AFRICA
(WITWATERSRAND
DIVISION) Fifth
Respondent
Decided
on: 14 November 2003
JUDGMENT
THE
COURT:
[1] It
is appropriate to deal with these two applications, CCT 33/03 (the
first application) and CCT 45/03 (the
second application), in one
judgment.
[2]
In
both cases the applicant, Mr Peter Siegwart Wallach, represents
himself. The first application is one for direct access under
Rule
17
[1]
of the rules of this
Court. First respondent is the Registrar of Deeds (Pretoria) (the
Registrar), second respondent is the Master
of the High Court (the
Master), and the third and fourth respondents are the trustees in the
former sequestrated estate of the
applicant (the trustees).
[3]
The
second application is also one for direct access to this Court. First
respondent is cited as being a senior advocate practising
at the
Johannesburg Bar; second and third respondents are the trustees;
fourth respondent is the Minister of Justice and Constitutional
Development; and the fifth respondent is The Society of Advocates of
South Africa (Wiwatersrand Division). Both applications are
opposed
by the trustees. They will, however, be dealt with summarily under
rule 17(5).
[2]
[4]
Briefly,
the facts are as follows. The estate of the applicant was
sequestrated on 5 October 1990. Ten years later, on 5 October
2000,
he was rehabilitated by the effluxion of time in terms of section
127A
[3]
of the Insolvency Act 24
of 1936 (the
Insolvency Act). Prior
to the sequestration of his
estate, the applicant was the registered owner of certain immovable
property (the immovable property),
a farm on which he now resides.
Upon his rehabilitation, the immovable property remained unrealised
and was still registered in
his name. No caveat had been entered
against it. Subsequently, however, the Master and the trustees caused
an interdict caveat
to be entered by the Registrar against the
property, in terms of the provisions of
section 18B
of the
Insolvency
Act.
[4
]
In May 2002, the
applicant brought an application before Claassen J in the
Johannesburg High Court (the High Court) for an order
removing the
above caveat noted against his immovable property. Claassen J
dismissed his application with costs on 26 September
2002.
[5]
[5] Earlier
this year, the applicant applied for direct access to this Court. He
contended that the order of the
High Court dismissing the above
application in effect violated his right to property under section
25(1) of the Constitution and
unlawfully exposed him to the
application of the
Insolvency Act, thereby
violating his right to the
equal protection of the law under section 9(1) of the Constitution.
[6]
This
application (
Wallach
(1))
was
dealt with summarily by this Court and dismissed
[6]
on the ground that it was not in the interests of justice to grant
it.
[7]
The Court did so for,
amongst others, the following reasons:
(a) “When
the correctness of a judgment is challenged, the remedy is to lodge
an appeal and not
to apply to declare the judgment a nullity. The
appeal must then be pursued through the normal process of an
application to the
High Court for leave to appeal. As appears from
his affidavit, the applicant apparently had lodged such an
application in the High
Court, but suspended it when he launched this
application for direct access. It is our view that it was
inappropriate to have launched
an application for direct access at
this stage.”
(b) “Even
if we were to deal with this application as an application for leave
to appeal directly
to this Court against the order of the High Court
under Rule 18 of the Rules of this Court, the application is
defective: the applicant
has not applied for a Rule 18 certificate as
required and there is no explanation for that failure.”
(c)
“Moreover,
the issue before this Court concerns the proper interpretation and
application of provisions of the
Insolvency Act, a
matter which
should be considered in the first instance by the Supreme Court of
Appeal. Even if the applicant had followed the
correct procedure to
bring this application, the issues concerned do not make it an
appropriate matter for a direct appeal to this
Court.”
[8]
(Footnotes in the text omitted).
[7] While
Wallach (1)
was still pending before this Court, the applicant
applied to the High Court for leave to appeal against its above
judgment, which
application was dismissed on 3 February 2003. A
subsequent application for leave to appeal to the Supreme Court of
Appeal ( the
SCA) was summarily dismissed on 4 June 2003.
The
first application
[8] The
first application, lodged on 22 August 2003, is in part concerned,
once again, with the correctness of
the order of Claassen J in the
High Court and the applicant seeks its review on the basis that his
property rights under section
25(1) of the Constitution have been
infringed - one of the grounds raised in
Wallach (1)
.
[9] In
the first application the applicant, although formulating no
substantive relief in his notice of motion,
seeks the following in
his founding affidavit:
“
. . . [a] direct
access to this Honourable Court to set aside the orders of Claassen J
given on 26 September 2002 and Spilg AJ given
on 8 February 2002 on
the grounds that such orders infringe my rights in terms of section
25(1) of the Constitution by invoking
provisions of the
Insolvency
Act to
arbitrarily deprive me of the property after 5 October 2000;
and/or,
[b] for an order
declaring unconstitutional and invalid
sections 25(1)
proviso,
129(3)(c) and 18B of the
Insolvency Act to
the extent that such
sections purport to deprive a person arbitrarily of immoveable
property registered in his/her name upon the
expiration of a period
of ten years from the date of sequestration of the estate concerned
after rehabilitation by the effluxion
of time has occurred.”
[10]
In
regard to the first ground of relief
[9]
the applicant, despite this Court’s reasons for rejecting the
application in
Wallach
(1)
quoted
in para 6(a) and (b) above, persists in once again bringing an
application for direct access to this Court on the identical
issue.
There are limits to the indulgence that a court can show to a lay
litigant. The limits have clearly been exceeded in the
first
application. There is no other reasonable conclusion but that the
applicant has deliberately chosen to ignore the Court’s
judgment in
Wallach
(1)
.
This is not a matter for direct access but one for appeal. Even if it
were treated as an application for leave to appeal, the
applicant has
ignored the rules relating to such an appeal.
[11] He
has also proffered no satisfactory explanation for the delay in
bringing these proceedings, having regard
to the fact that Claassen J
dismissed his application for leave to appeal on 3 February 2003 and
the SCA on 4 June 2003. The applicant
does state that he only learnt
of the latter fact on 20 August 2003, but does not take this Court
into his confidence as to any
steps taken by him to have the outcome
of his application to the SCA brought to his attention or any
enquiries made by him in this
regard.
[12]
The
applicant also fails to make out any case in respect of the second
ground.
[10]
Given the history
of this matter, it is not appropriate for the applicant to raise, at
this late stage, the constitutional invalidity
of certain provisions
of the
Insolvency Act. This
is particularly the case when regard is
had to the fact that in
Wallach
(1)
the
applicant did rely upon the Constitution’s property clause and
claimed that he had been denied the equal protection of
the law under
section 9(1) of the Constitution. The applicant was alive to and
relied on his constitutional rights at the time
of
Wallach
(1)
. A
litigant cannot, under these circumstances, be permitted to raise
sequentially, and in separate legal proceedings, different
constitutional challenges. There are certainly no exceptional
circumstances in this case that would warrant this. Moreover, the
applicant has not shown that his constitutional challenge to the
affected provisions of the
Insolvency Act carries
any prospects of
success. Even if it did, prospects of success would not necessarily
be decisive in determining what is in the
interests of justice.
[11]
There comes a time when finality must be reached in litigation. That
time has been reached.
[13] Under
these circumstances it is not in the interests of justice to grant
direct access in the first application
in order to have the judgment
and order of Claassen J set aside, nor to attack the constitutional
validity of the provisions of
the
Insolvency Act referred
to.
[14] In
the first application the applicant also seeks, by way of direct
access, to set aside another High Court
order, namely an order
granted on 8 February 2002 by Spilg AJ - the first respondent in the
second application - ejecting the applicant
and his mother from the
immoveable property (the ejectment order). The applicant contends
that this order was made in his absence,
but he does not say whether
or not he had received notice that such an order was being sought on
8 February 2002. According to
the applicant, the order only came to
his attention on 20 June 2002. He further states that he filed a
“preliminary”
application for leave to appeal against the
ejectment order on 7 October 2002. No relevant explanation is
furnished for this delay.
The application for leave to appeal was
dismissed on 4 July 2003. The applicant says that he had received no
notice of the set-down
and that the dismissal of his application only
came to his notice on 19 August 2003.
[15]
The
observations made and conclusions reached in paragraph 10 above,
apply with equal force to the setting aside of the ejectment
order.
There is also no explanation for the delay in bringing the
“preliminary” leave to appeal application in the
High
Court. In considering the interests of justice in direct access
applications, the likelihood of there being conflicts of fact
which
cannot be resolved without hearing
viva
voce
evidence is relevant, for this Court should not act as a court of
first and last instance, nor in normal circumstances as a trier
of
fact in the first instance.
[12]
[16] In
the present case there are material disputes of fact. In their
opposing affidavits the trustees deny that
the applicant was unaware
that the application for his ejectment would be heard on 8 February
2002. They state that on 6 February
2002, when the application by the
applicant and his mother, Mrs RME Wallach (Mrs Wallach) – for
the recusal of the entire
bench of the High Court in Johannesburg –
was dismissed, Spilg AJ specifically informed applicant and Mrs
Wallach that the
ejectment application would proceed on 8 February
2002. On this version, the absence of the applicant and Mrs Wallach
in Court
on the latter date, if indeed they were absent, was the
result of a deliberate decision on their part.
[17] The
unavoidable conclusion reached, is that it is not in the interests of
justice for this Court to consider
the applicant’s attack on
the ejectment order.
The
second application
[18] The
second application is also one for direct access to this Court and
was lodged on 18 September 2003. This
application relates to the
judgment and order of Claassen J referred to in paragraph 4 above.
For the sake of convenience the facts
will be restated briefly. On 8
February 2002 the first respondent, while serving as an acting judge
on the High Court, granted
an order ejecting the applicant from the
immovable property. The applicant says that this order was given in
his absence and that
it only came to his notice on 20 June 2002. He
does not say whether or not he had knowledge that an application for
such an order
would be heard on the day in question. As set out
above, the trustees contend that he did have such knowledge. On 2
October 2002
the applicant filed a “preliminary”
application for leave to appeal against the ejectment order.
Unbeknown to him,
so the applicant contends, the “preliminary”
application for leave to appeal was enrolled for hearing on 4 July
2003
and dismissed in his absence.
[19] In
this regard the trustees produced two letters written by the
registrar of the Acting Deputy Judge President
in Johannesburg,
bearing on this issue. Both appear to have been sent by registered
post to an address which, according to the
trustees, is the only
address at which the applicant and Mrs Wallach are prepared to
receive documents. In fact it is the same
address given by the
applicant in the present case in this Court for the service of
documents. The one letter, dated 20 June 2003,
is addressed to the
applicant and informs him that Spilg AJ (the first respondent) will
hear the application for leave to appeal
on Friday 4 July 2003. The
other letter, dated 7 July 2003, is addressed to Mrs Wallach and
informs her that the applicant’s
application for leave to
appeal will be heard on 15 July 2003. Once again there are serious
conflicts of fact.
[20] On
26 August 2003 the trustees proceeded to execute the ejectment order.
On the same day the applicant brought
an urgent application in the
High Court and Blieden J granted an order which, amongst other things
–
(a) interdicted
the respondents in question, pending the final determination of the
application, from proceeding
further with the ejectment order;
(b) entitled
the applicant and his mother to re-enter the immovable property; and
(c) postponed
the matter to the opposed roll of 30 September 2003, placing the
parties on terms regarding
the filing of affidavits.
[21] On
28 August 2003 the trustees abandoned the order of 4 July 2003 that
had dismissed the “preliminary”
application for leave to
appeal. Before doing so the trustees’ attorney, according to
the applicant, made a “private
arrangement,” without his
knowledge, with the first respondent to re-hear the preliminary
application for leave to appeal
on 5 September 2003. In their
answering affidavits filed in the first application, the trustees in
effect deny this, stating that
the applicant and Mrs Wallach were
aware that their applications for leave to appeal had been set down
for 5 September 2003. They
state that the very reason the
applications were set down on that date was because both the
applicant and Mrs Wallach had contended
that they had not received
notice of the dates on which their applications had been set down
previously. According to the trustees,
the failure of the applicant
and Mrs Wallach to attend the hearing on 5 September 2003 was
“contemptuous”. The applicant’s
main complaint in
this regard is that the first respondent, in making the alleged
private arrangement and in dismissing the application
on 5 September
2003, violated his oath of office and infringed the applicant’s
right to access to the courts under section
34 of the Constitution.
[22] The
second application does not appear to have been served on any of the
respondents.
[23] Here
too the applicant, instead of pursuing his appeal remedies, has come
by way of direct access, squarely
in the face of the law as laid down
in
Wallach (1)
. Even if treated as an application for leave to
appeal, the correct procedural steps have not been taken. In this
application too,
there are serious conflicts of fact, as indicated
above.
[24] The
applicant and his mother should not be seen as naïve or ignorant
when it comes to litigation. The
trustees furnish chapter and verse
in this regard, and say that the applicant and his mother have, since
1991, been involved in
litigation with the trustees directly or
indirectly in more than thirty cases. Throughout they have acted in
concert. With one
exception, when Blieden J granted certain interim
relief to the applicant, all these cases have either been abandoned
by the applicant
and Mrs Wallach or have been decided adversely to
them.
[25] For
all these reasons it is not in the interests of justice to grant
direct access to the applicant. The effect
of this judgment and the
order to be made is that the judgment of Claassen J, referred to in
paragraph 4 above, has become final
and is not subject to any further
attack by the applicant.
Order
[26] The
following orders are made:
1. The
application in case CCT 33/03 is dismissed with costs.
2. The
application in case CCT 45/03 is dismissed with costs.
By
the Court: Chaskalson CJ, Langa DCJ, Ackermann J, Madala J, Mokgoro
J, Moseneke J, Ngcobo J, O’Regan J, Sachs J and Yacoob
J.
[1]
Rule 17 of the Rules of the Constitutional Court provides:
“
Direct access in
the interests of justice
(1) An
application for direct access as contemplated in section 167(6)(a)
of the Constitution
shall be brought on notice of motion which shall
be supported by an affidavit which shall set forth the facts upon
which the
applicant relies for relief.
(2) An
application in terms of subrule (1) shall be lodged with the
registrar and served on
all parties with a direct or substantial
interest in the relief claimed and shall set out –
(a) the
grounds on which it is contended that it is in the interests of
justice that an order
for direct access be granted;
(b) the
nature of the relief sought and the grounds upon which such relief
is based;
(c) whether
the matter can be dealt with by the Court without the hearing of
oral evidence
and, if it cannot,
(d) how
such evidence should be adduced and conflicts of fact resolved.
(3) Any
person or party wishing to oppose the application shall, within 10
days after the lodging
of such application, notify the applicant and
the registrar in writing of his or her intention to oppose.
(4) After
such notice of intention to oppose has been received by the
registrar or where the
time for the lodging of such notice has
expired, the matter shall be disposed of in accordance with
directions given by the President,
which may include –
(a) a
direction calling upon the respondents to make written submissions
to the Court within
a specified time as to whether or not direct
access should be granted; or
(b) a
direction indicating that no written submissions or affidavits need
be filed.
(5) Applications
for direct access may be dealt with summarily, without hearing oral
or written
argument other than that contained in the application
itself: Provided that where the respondent has indicated his or her
intention
to oppose in terms of subrule (3), an application for
direct access shall be granted only after the provisions of subrule
(4)(a)
have been complied with.”
[2]
Id. It should be noted, however, that rule 17(4)(a) affidavits were
called for by the Chief Justice in the directions.
[3]
Section 127A provides as follows:
“
(1) Any
insolvent not rehabilitated by the court within a period of ten
years from the date
of sequestration of his estate, shall be deemed
to be rehabilitated after the expiry of that period unless a court
upon application
by an interested person after notice to the
insolvent orders otherwise prior to the expiration of the said
period of ten years.
(2) If
a court issues an order contemplated in subsection (1), the
registrar shall transmit
a copy of the order to every officer
charged with the registration of title to any immovable property in
the Republic.
(3) Upon
receipt of the order by such officer he shall enter a caveat against
the transfer
of all immovable property or the cancellation or
cession of any bond registered in the name of or belonging to the
insolvent.
(4) The
caveat shall remain in force until the date upon which the insolvent
is rehabilitated.”
[4]
Section 18B provides as follows:
“
(1) A
trustee may, before or after the rehabilitation of an insolvent,
with the written consent of
the Master, by notice to the officer
charged with the registration of title to immovable property in the
Republic, in respect
of immovable property or a bond registered in
the name of the insolvent or of his spouse contemplated in section
21 (13), cause
a caveat to be entered against the transfer of the
immovable property or the cancellation or cession of the bond
referred to
in the notice.
(2) The
notice referred to in subsection (1) shall be accompanied by the
written consent of
the Master contemplated in that subsection and
shall identify sufficiently the person in respect of whom and the
property or
bond in respect of which the caveat is to be entered so
as to enable the officer charged with the registration to enter the
caveat
as contemplated in the said subsection.
(3) The
caveat shall remain in force until the date indicated by the Master
in his consent.”
[5]
Wallach
v Registrar of Deeds, Pretoria and Others
unreported
judgment of the Johannesburg High Court, case no 8855/02.
[6]
In
Wallach
v The High Court of South Africa, Witwatersrand Local Division and
Others
2003 (5) SA 273 (CC).
[7]
Id para 8.
[8]
Id paras 5-7.
[9]
Marked “[a]” and quoted in para 9 above.
[10]
Marked “[b]” and quoted in paragraph 9 above.
[11]
Fraser
v Naude and Others
1998
(11) BCLR 1357
(CC);
1999 (1) SA 1(CC)
at para 7.
[12]
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (4) BCLR 415
(CC);
1998 (2) SA 1143
(CC); paras 7-8.