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Soller v President of the Republic of South Africa and Others (30663/04) [2005] ZAGPHC 13 (2 February 2005)

reportable
IN THE HIGH COURT OF SOUTH AFRICA lie
(TRANSVAAL PROVINCIAL DIVISION)
DATE: 2 February 2005
CASE NO: 30663/2004
In the matter between:
PETER CLIVE SOLLER
APPLICANT
versus
THE HONOURABLE STATE PRESIDENT OF THE REPUBLIC
         OF SOUTH AFRICA          1ST RESPONDENT
AND
THE HONOURABLE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
2ND RESPONDENT
AND
THE HONOURABLE JUSTICE E BERTELSMANN
3RI> RESPONDENT
lUDGMENT
NGOER, lP
[1] The applicant, a former attorney of this court, issued summons against a
serving judge of this Division, Bertelsmann J (the judge), claiming damages for


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defamation. The State Attorney, acting for the judge, drew the applicant's
attention to the provisions of section 25(1) of the Supreme Court Act 59 of 1959, which reads as follows~

"25(1) Notwithstanding anything to the contrary in any law contained, no summons or subpoena against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall-in any civil action be issued out of any court except with the consent of that court: Provided that no such summons or subpoena shall be issued out of an inferior court unless the provincial division which has jurisdiction to hear and determine an appeal in a civil action from such inferior court, has consented to the issuing thereof. "
It was common cause that the applicant had no such leaveJ nor had he applied for any. In fact the summons had been sued out of the Witwatersrand Local Division, Johannesburg, despite the fact that the alleged defamatory statements were part of a judgment which was given in a matter in the Transvaal Provincial Division, Pretoria.
>""'If


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[2] After the applicant's attention was drawn to the provisions of the section,
he launched an application, again in the Witwatersrand Local Division, praying an order in the following terms~

"(l) Granting the Applicant leave to institute an action in this Honourable Court against the third Respondent (the judge) for the payment of Three Million five hundred thousand Rand in respect of general damages arising from written statements made by the third Respondent of and concerning the Applicant which the Applicant avers are defamatory and injurious of him and negate his fundamental right of dignity afforded to him in accordance with the Constitution of the Republic of South Africa.
(2) In the event of such permission as aforesaid not being granted that this Honourable Court make a declaration declaring that section 25(1) of the Supreme Court Act 59 of 1959 be declared to be invalid on the ground that such Section is inconsistent with the Constitution of the Republic of South Africa on the grounds that such Section is fundamentally discriminatory and offend the rights of citizens of the Republic of South Africa to proper and effective access to a Court of law and to a fair Tria1.H


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[3] The President, The Minister of Justice and Constitutional Development and
the judge concerned, were cited as first to third respondents respectively. The
first two opposed the application, whereas the judge indicated that he would
abide the decision of the court.

[4] When the application was argued before me in the Witwatersrand local Division, the respondents took the point that that court had no jurisdiction.
Eventually, the parties agreed that the matter would be transferred to the
Transvaal Provincial Division; this was done, and it came to be heard by me at
this court. I will first deal with the request for leave to sue before considering
the attack on the validity of the section.
Application in terms of section 25(1) of Act 59 of 1959 for leave to sue a Judge
[5] In his application for leave to sue the judge, the applicant contends that
the judge attacked his character in an unjustified and gratuitous manner.
Before dealing with the applicant's case in greater detail, it is necessary to give
a brief history of the matter.
[6] In 2001 the law Society for the Northern Provinces (the law Society)
launched in this court an application (case no 992/01) against the applicant for

the removal of his name from the roll of attorneys. The statements which the


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applicant says are defamatory of him are part of the reasons contained in the

judgment in that matter. The remedies sought by the Law Society and especially the grounds relied upon, are relevant to the application presently before me. For this reason, they need to be briefly stated. The judgment complained of set out a number of factual findings. The applicant had
"1. deliberately lied to (the] court in the application to interdict the applicants (Law Society's) Annual General Meeting;
2.       failed to deal with this charge of dishonesty on three separate subsequent occasions although given the opportunity to do so;
3.       made grossly contemptuous remarks of the members of the Bench of the Cape of Good Hope Provincial Division;
4.       made completely unsubstantiated charges of attempted murder against the former Judge President of that division;
5.      
made serious defamatory allegations of and concerning another Judge, a former president of the applicant and a senior official of the Legal Aid Board in regard to their alleged involvement in studying child pornography;
6.      
made further contemptuous remarks of Southwood J on facts which can by no stretch of the imagination justify this action;
7.       written a grossly offensive letter to the president of the applicant;


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8.       employed, and continues to employ, a person who has been
suspended from practice in a professional capacity;
9.       failed to purge his contempt of the Judges of the Cape Provincial Division, although invited to do so;
10.      aided and abetted a client to disobey a court order and commit
a crime;
11.     

advanced fanciful theories about international conspiracies on the flimsiest of grounds and thereby demonstrated that he no longer possesses the clarity of mind and detachment which is required from an officer of this court."
The judgment continued:
"All the above findings are based, as I have already said, upon common cause facts as they appear on the papers, or as they emerge incontrovertibly from the respondent's affidavits, heads of argument or the respondent's address to the Court. None require further evidence and none could be changed by any facts which have not yet been brought to the Court's notice. Issues which are not crystal clear on the papers have not been taken into consideration." This passage disposes of the applicant's contention
.. ~
,~ ,


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that the judge wrongly made findings on papers despite a dispute of
fact.
[7] One of the issues the court had to decide was put as follows in the
judgment:
"1. Whether the respondent is a fit and proper person to be allowed
to continue in practice as an attorney of this court, which involves
an inquiry into the question whether the applicant has proved its
allegations of misconduct and incompetence against the
respondent."
It is clear from the aforegoing that the adjudication of the Law Society's
application had required a serious inquiry into the character of Mr Soller (the
applicant before me). After argument dosed, the two judges reserved

judgment. The judge later wrote and handed down a full judgment; De Villiers ], agreed with it. On the basis of the facts which, as already said, were either
common cause or could not be controverted, the judgment came to the
following conclusion:
"The respondent is visibly tormented by his personal conviction that
.
these powerful entities are conspiring against him. However sad


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this situation may be, it does not detract from the fact that the

respondent has seen fit to attack all the Judges of an entire Division of the High Court of South Africa in the most ill-tempered and unrestrained fashion possible, and has hurled accusations of gross misconduct at other persons and entities without any evidence that could pass muster at all. Regardless of the respondent's personal pain, his actions, deplorable in themselves, clearly evidence his utter inability to consider these matters objectively and dispassionately. Whatever his personal feelings, as an officer of the court he must have appreciated that his contemptuous actions towards the judiciary constituted a very serious professional transgressions. His insistence that his accusations, grotesque as they are, are the truth, not only adds insult to injury, but demonstrates clearly that the respondent does not have, or does no longer have, the ability to reflect maturely upon matters upon which he is engaged as an attorney. His uncritical assertion of his own convictions as the absolute truth demonstrates that he is a danger not only to himself, but also to his clients and the public at large. The transgressions I have described are serious. The mindset which produced them renders the respondent unfit to practice (sic) as an attorney of this
- ,
court".


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[8] It was after reading the above judgment that the applicant came to the

conclusion that he was being defamed. In his particulars of claim to the summons, the applicant cites the following portions of the judgment which he says are particularly defamatory of him:
"The conduct of the Present litigation
The respondent suffers from a severe disability to separate the grain from the chaff. This is demonstrated in striking fashion by way in which he conducted the present litigation. Technical defences were raised against the application which had no hope of success. On the merits, reams of paper were filed which bore no, or only passing relevance to the issues at hand. In particular, the filing of hundreds of examples of computer printouts from the internet, allegedly demonstrating that child pornography sites had been accessed, was clearly unnecessary, irrelevant and vexatious. His affidavit and some of the letters that respondent has written are couched in a garrulous, rambling and loquacious style, often missing the point at issue altogether. The respondent is clearly unable to identify issues, concentrate thereupon and deal with them appropriately.
The Conclusion

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The above facts prove that the respondent is not only unfit to

practice, (sic) but also that he is no longer able to practice (sic). He has developed unfortunate deficiencies in his character1 which have made him prone to serial unprofessional conduct. He is also afflicted by serious shortcomings in his personality resulting in a lack of insight, detachment, objectivity and professional judgment. The respondent cannot continue to practice (sic) - he has become a danger to society and an embarrassment to his profession".

(9] For leave to be granted in terms of the section, "good cause" must be shown, Superior Court Practice! (Erasmus, p Al-76). Whether or not good cause has been shown, will depend on the facts and circumstances of each case. It is of course common cause that the words were uttered, and published, by the judge. The words, ordinarily speaking, would be defamatory. The question is whether, given the context in which they were uttered of the applicant, the applicant has shown good cause for the purpose of obtaining the leave required. It is trite law that a judge enjoys at least a qualified privilege when executing judicial functions. After examining authorities regarding the position of non-judicial officers (eg counsel, witnesses etc) Joubert JA says the following:
"~


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"As regards the legal position of a judicial officer I must stress the fact

that the law requires of him to be 'capable of doing as part of his duty everything which makes for the tracking down of the truth and the
         .administration of justice'      The nature of his judicial duties are
such that a judicial officer is more often than not active in a sphere where the performance of his judicial duties exposes him to the risk of injuring a person in his reputation. It is for this very reason that there is according to our common law a rebutable presumption that a judicial officer, who defames someone in the exercise of his judicial authority, does so lawfully within the limits of his authority. "[May v Udwin 1981 (1) SA 1 (A) 19C-FY".
The application must be considered against this background.
[10] A complainant must show malice on the part of the judicial officer. In May's case, supra, the following appears: "Of course, the irrelevance of the defamatory matter to the proceedings or the absence of some reasonable foundation for it, may, depending upon the circumstances of the particular case, be indicative of malice on the part of a judicial officer." [p20 D] To establish this, one must consider the nature of the case that was before the judge. As said earlier, the judge was adjudicating in an application that had been brought by the Law Society of the Northern Provinces for the removal of


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the applicant's name from the roll of attorneys on the ground that he was no
longer a fit and proper person. To substantiate its case, the Law Society made,
as it had to in such a case, allegations which constituted an attack on the

.character of the applicant. In determining the relevance of the judge's remarks and indeed the entire context in which these remarks were made, one must
therefore bear in mind the nature of the application by the Law Society, the
allegations made by the Law Society against the applicant and, very
importantly, the findings and rulings the judge had to make. It becomes clear
at once, that it was inevitable for the judge to look into the very character of
the applicant; he could not have resolved the dispute without doing so. In the
process of so doing, the judge had to make either positive or negative findings
on the applicant's character. In my view, the remarks were relevant and
material to the case before the judge and there can be no question of malice.
That the applicant is unable to separate the grain from the chaff, was again
demonstrated in a striking fashion before me. He raided the whole world,
apparently through the internet, for any document commenting on judges, and
irrespective of the relevance thereof to the issues before me, dumped volumes

of materials on me.
[ll] It is clear from the papers that, as it is often the case in matters of that
nature. no punches were pulled in the Law Society's application. The judge's


judgment was, and had to be, as robust. I therefore do not agree that the
.


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remarks were too gratuitous, let alone irrelevant or malicious. There is a
further consideration in this particular case: when it comes to determining
whether or not a person is fit and proper to remain an officer of this court, it is

the final responsibility of the court to so decide and in doing SO, the court is enjoined to consider the matter thoroughly and fully motivate whatever
':~.
conclusion it reaches. Only people of suitable character and integrity should
remain on the roll of attorneys. The statements made by the judge were within
his judicial privilege; there was therefore no animus injuriandi as his intentions
\
were limited to resolving the matter before him. The applicant has therefore
not made out a case for the !eave sought. I have throughout been mindful of
the fact that no more than a prima facie case is required at this stage, as
opposed to proving a case on a balance of probabilities.
Application to declare section 25(1) of Act 59 of 1959 unconstitutional
[12] The applicant contends that in protecting the judges, the section violates
rules of natural justice; secondly, that the section is founded on discrimination,
in favour of judges, giving them special protection which other people do not
enjoy. The total sum of the applicant's submission is that the section violates a
complainant's right" enshrined in section 34 of the Constitution. The section
reads:


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"34. Everyone has the right to have any dispute that can be resolved

by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."
[13] In Beinash and Another v Ernst & Young and Others, 1999 2 SA 116 (CC) the Constitutional Court considered the validity of section 2(1)(b) of the Vexations Proceedings Act, of 1956. In terms of that section, a person may be barred from instituting legal proceedings against another person unless it be by prior leave of the court, which leave may not be granted unless the Court "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." The applicant had been slapped with this bar in the High Court. The applicants argued in the Constitutional Court, that their right enshrined in section 34 of the Constitution to approach a court had been infringed. After a careful consideration of the purpose of the section the court found that, although the applicant's right was indeed being infringed, the infringement was justified; Mokgoro J expressed herself as follows (p 123 para 17).
"The right of access to courts protected under section 34 is of cardinal importance for the adjudication of justiciable disputes. When regard is had to the nature of the right in terms of section
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,.1


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36(1)(a), there can surely be no dispute that the right of access to

court is by nature a right that requires active protection. However, a restriction of access in the case of a vexations litigant is in fact indispensable to protect and secure the right of access for those with meritorious disputes. Indeed, as the respondents argued, the Court Is under a constitutional duty to protect bona fide litigants, the processes of the Courts and the administration of justice against vexatious proceedings. Section 165(3) of the Constitution requires that '(n)o person or organ of State may interfere with the functioning of the courts'. The vexatious litigant is one who manipulates the functioning of the courts so as to achieve a purpose other than that for which the courts are designed. This limitation serves an important purpose relevant to section 36(1)(b). It would surely be difficult to anticipate the litigious strategies upon which a determined and inventive litigator might embark. Thus there is a requirement for special authorisation for any proposed litigation."
[14] It is true that section 25(1) of Act 59 of 1959 places a hurdle in the way of a prospective litigant, namely, that leave first be applied for and obtained. Is the section justified? Broadly, the purpose thereof is to ensure the independence of the Judiciary. The oath which judges take upon assumption of office requires of them to adjudicate matters fearlessly. This they can only


.-
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do if protected against non-meritorious actions. Judges should not, in the
execution of their judicial functions, be inhibited by fear of being dragged to
court unnecessarily over their judgments. Such a threat could have a chilling

effect on the execution of their duties (cf May's case, supra, page 19 H). Furthermore, judges should rather spent time hearing matters, than defending
themselves against endless unfounded civil claims. The very nature of the duty
of a judge is such that it would open them to such litigation: a judge's task is to
resolve disputes, inevitably leaving one person or the other dissatisfied;
moreover they are, in the process, required to make findings on the credibility,
honesty and integrity of witnesses and litigants and to justify those findings.
[15] Some of the people not sufficiently acquainted with the execution of
judicial functions, may tend to think that judges are not accountable for their
decisions. Nothing is further from the truth. Judges are expected to justify
every decision they take: they must give full reasons therefor. Surely, that is being accountable; not only to the litigants, but to the public at large. The latter are entitled to know why and how a particular decision was arrived at
and if they so wish, make informed criticism of the judgment including
questioning its correctness. For them to be able to do so a judge owes them
the reasons for his/her decision. How then, would judges be able to account
for their adverse findings on the character of litigants or witnesses without
exposing themselves to an avalanche of non-meritorious civil actions by


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disgruntled litigants if there were to be no sifting mechanism? Were they,

under those circumstances, nonetheless stoically continue to do their work as they should, they could find themselves spending more time in court as defendants than as adjudicators of disputes. The administration of justice would be hampered, and genuine litigants would be seriously prejudiced.
[16] The section does not completely take away the right to sue except in instances where the claim has no merits; but, a question may be asked, who on earth has a "right" to prosecute a frivolous or non-meritorious claim? Furthermore, where leave has been refused, an applicant can appeal.
[17] It is true that the section also applies in instances where the judge is to be sued in respect of personal matters, such as for a debt owing. Even in such a case, the section would not be an obstacle: the preliminary investigation would be done and if there is a prima facie case, leave to sue the judge would be granted; if wrongly refused, the decision would be appealed against. The considerations set out above justify the retention of the general mechanism as contained in the section, namely, that in all instances, leave be first sought.
[l8] There is one other point raised by the applicant which is worth mentioning. He argued that the authority to grant leave should reside in a Judge President where, as in casu, a judge of the High Court is sought to be sued. He
"""


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contrasted the situation with that of a Constitutional Court judge, where leave
can only be granted by the head of that court (the Chief Justice). He argues
that inasmuch as an acting judge is competent to consider and decline such an
application, the section is bad. His motivation is that an acting judge, who may
be a practising advocate soon to return to practice, would not be inclined to
grant such leave against, say, a very senior judge before whom the advocate
might still have to appear. I do not agree. An acting judge also takes the oath
of office and would surely act in accordance therewith. Moreover, the
definition of "judge" includes an acting judge (section 1 of the Judges'
Remuneration and Conditions of Employment Act, 2001). A suggestion that a
judge may be inhibited from granting leave against a more senior colleague
fails to appreciate the nature of a judicial office and the force of the oath that
precedes the assumption of that office.
[19] For the reasons given above] the application to declare section 25(1) of
Act 59 of 1959 unconstitutional cannot succeed.
[20] There is the issue of costs relating to the application which the applicant
launched in the Witwatersrand Local Division. The respondents had argued
that that court did not have jurisdiction. By agreement the matter was
transferred to this court; costs were reserved. I see no reason why the


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applicant should not be made to pay the costs of that application including the
costs of 15 November 2004 when the question of jurisdiction was argued.
The following order is made:
         (a)      The application is dismissed with costs;
         (b)      The applicant is also ordered to pay the costs of 15 November 2004 in
the Witwatersrand Local Divisionl which costs are to be taxed by the
Registrar of the Transvaal Provincial Division.

         BM NGOEPE
JUDGE PRESIDENT OF THE
HIGH COURT OF. SOUTH AFRICA TRANSVAAL PROVINCIAL DIVISION
Heard on:
29 November 2004
For the appellant:
In Person
For the respondents:
Adv de Wet
Instructed by:
The State Attorney Pretoria