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Absa Bank Limited v Dlamini (41460/07) [2007] ZAGPHC 241; 2008 (2) SA 262 (T); [2008] 2 All SA 405 (T) (23 October 2007)

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

REPORTABLE Case No: 41460/07

In the matter between: DATE: 23/10/2007


ABSA BANK LIMITED Applicant


and


DUMISA MBUSI DLAMINI Respondent

J U D G E M E N T

CORAM: RABIE J


INTRODUCTION

  1. The applicant, ABSA Bank Limited, applied on a semi-urgent basis for an interdict pendente lite against the respondent, Mr Dumisa Mbusi Dlamini. The matter was heard over two days and Mr Dlamini represented himself.


  1. The relief sought by the applicant may be summarised as follows:

An order staying all proceedings instituted by the respondent in this court:

      1. in his personal capacity; or

      1. in any representative capacity in terms whereof he purports to represent any legal entity whatsoever; and in particular

      1. in terms whereof he purports to represent Boerdery CC, Registration No. 87/08027/23 (in liquidation) (“Kleindoornkop”); Geelspruit Boere (Pty) Limited (“Geelspruit”); Richtershoek Boerdery (Pty) Limited (“Richtershoek”); Marina Lodge (Pty) Limited (“Marina”);

in any application or action or court proceeding which include but are not limited to 25 applications enumerated in the Notice of Motion.


An order interdicting and restraining the respondent and all who purport to act on his behalf from launching and/or instituting and/or issuing and/or pursuing any further actions and/or applications, notices in terms of such actions and/or applications, subpoenas in respect of such applications and/or actions, any warrants of execution whatsoever and/or any other legal process against the applicant, any Judge of this court and/or the Registrar of this court.

An order directing that the relief as set out above, operate pendente lite, the lisbeing the final determination of an action, alternatively an application, to be instituted by the applicant against the respondent within 20 (twenty) court days from date of granting of this order, for relief in terms of section 2 of the Vexatious Proceedings Act, Act 3 of 1965 (as amended) in terms whereof the applicant will seek an order against the respondent that he shall not, for an indefinite period of time, institute any legal proceedings against the applicant in any court or inferior court without the leave of the court or any Judge thereof or presiding officer of that inferior court, as the case may be, or such other relief as the applicant may be advised to seek.


An order directing that should the applicant fail to institute such proceedings within the time period set out in the previous paragraph, then the orders sought in paragraphs [2.1] and [2.2] above would automatically lapse and be of no further force and effect.


An order directing that the costs of this application be costs in the action and/or application contemplated in paragraph [2.3] above and further directing that should the applicant not institute the proceedings timeously or at all, that the applicant should pay the costs of this application.


  1. On two or three occasions shortly prior to the hearing of the matter, the Registrar of this court brought bundles of documents to me in my chambers, apparently at the insistence of the respondent. At the commencement of the hearing the respondent handed up further documents to me and I accordingly asked the parties to identify the matters before the court which I had to adjudicate.


  1. According to advocate Robinson SC, who appeared for the applicant, assisted by advocate Amm, the only matter that was properly before me, was the aforesaid application under case number 41460/07.


  1. According to the respondent I had to adjudicate the following matters: firstly, a Rule 7(1) application of which only a notice in this regard, dated 9 October 2007, had been filed. This was one of the documents which found its way to my chambers shortly before the hearing. I shall refer to this issue below. Secondly, a Rule 35(12) application of which only a notice in this regard, dated 20 September 2007, had been filed. This was also one of the documents which found its way to my chambers shortly before the hearing and I shall also refer to this issue below. Thirdly, the aforesaid application with number 41460/07. Fourthly, the application with case number 40185/07. In that application Mr Dlamini and 19 other applicants sought interdictory and mandatory relief against The Minister of Justice, the Chief Justice of South Africa, the Deputy Chief Justice of South Africa, the Judges President of the High Court of the Transvaal provincial division, the Natal provincial division and the Cape provincial division, the Deputy Judge President of the Transvaal provincial division, The Judicial Services Commissioner, Absa Bank Ltd and its chairperson, Lowndes Dlamini Attorneys, (the attorneys of Absa Bank), and advocate Robinson SC. This matter was set down by the respondent on the unopposed motion court roll of the 23rd of October 2007, which lies in the future. This matter was, according to advocate Robinson, opposed, but the court file and only the founding papers consisting of an affidavit of eight pages, of which only the last four related to the merits of that application, and annexures totalling 320 pages, and heads of argument by Mr Dlamini, had been placed before me. This application also arrived at my Chambers shortly before the hearing of the matter. I shall refer to this application below.


  1. At the commencement of the hearing the respondent handed up further documents. They were the following: A bundle in a blue file cover commencing with a letter dated 13 August 2007 addressed to the Judge President and Deputy Judge President of this division with the heading “Criminal Charges against Absa Bank Ltd Legal Teams in Cases .... SAPS Sunnyside”. Four case numbers were referred to in this heading which is not necessary to repeat. Then followed an affidavit by the respondent and further annexures thereto. There was no index and the documents were not paginated but I estimate them to be in the region of 150 pages. In the aforesaid letter, the respondent referred to criminal charges that had been registered against certain senior members of the Cape Town and Johannesburg Bars, an attorney’s firm and other entities and persons. According to the letter the charges relate to “their criminal conduct in their handling of the above cases in the courts of the Transvaal Provincial Division”. Eventually, the respondent did not refer to this file during the course of the hearing and I need not refer further thereto.


  1. The respondent further handed up an affidavit with annexures totalling 57 pages which is the answering affidavit by the respondent in case number 1399/03. The next bundle handed up by the respondent was one totalling approximately 60 pages which appears to be an affidavit filed on behalf of Absa Bank, as intervening party, also in case number 1399/03. These two sets of documents were also not referred to by the respondent during the course of his argument.


  1. During the course of his argument the respondent also handed up three other documents. The first was the heads of argument on behalf of the intervening creditor in case number 1399/03. The second was the Notice of Application for Leave to Intervene in case number 1399/03 and the third document, on the face of it, emanated from an entity by the name of “Companies and Intellectual Property Registration Office”. I shall refer to this document again below.


  1. Advocate Robinson objected to all the above that had been placed before me and insisted that it was only the applicant’s application in case number 41460/07 which I could consider and which I had to adjudicate. I shall turn my attention firstly to case number 41460/07 and then refer to these other matters.


FINAL RELIEF/INTERIM RELIEF

  1. During the course of the argument on behalf of the applicant, advocate Robinson SC submitted that this court should issue a final interdict against the respondent. The requisites for a final interdict and an interim interdict are trite. (Cf LAWSA Volume 11, 1st Re-issue, para 307 et seq). As far as a final interdict is concerned, the requirements are a clear right; an injury actually committed or reasonably apprehended; and an absence of similar or adequate protection by any other ordinary remedy. As far as an interim interdict is concerned, the requirements are a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is finally granted; that the balance of convenience favours the applicant for the granting of the interim interdict; and that the applicant has no other satisfactory and adequate remedy.


  1. It was submitted on behalf of the applicant that the applicant has complied with all the requisites of a final interdict and has in particular proved a clear right in respect of the relief sought and that, consequently, this court should grant final relief against the respondent.


  1. In my view this request cannot be granted even if I were to be satisfied that all the requirements for final relief had been met. In the Notice of Motion the respondent was notified that only interim relief will be sought against him in the present application and that if the applicant is successful in this application, another court would in future, on application or by way of action, finally adjudicate the question whether an order should be made in terms of section 2 of the Vexatious Proceedings Act, Act 3 of 1965 (as amended), or any other order envisaged in such proceedings whereby his rights to litigate or otherwise use legal process, would be curtailed.


  1. As a general proposition it may very well be that a respondent, faced with an application merely seeking interim relief, might decide, for whatever reason, not to oppose the application or not to present all the available facts or arguments to the court, but to wait for the return day or the anticipated further process, before doing so. To grant final relief in an application where no notice thereof had been given but merely notice that interim relief would be sought, is potentially prejudicial and should not be done. At no stage did the applicant apply for a formal amendment of the Notice of Motion in this regard.


  1. The fact that it may be said, as was submitted on behalf of the applicant, that the respondent in casu approached the matter during argument as if final relief had been asked against him, that he had argued the matter fully and that he would consequently not be prejudiced by a final order being granted against him if such a case had been made out, does not detract from the aforesaid principle. If anything, the fact that the respondent is a lay litigant who may not fully appreciate the finer nuances of litigation, and possibly did not fully appreciate the difference between the two types of relief and the differences in the two types of legal process, emphasises this view.


  1. I shall consequently approach this matter as an application for interim relief as set out in the Notice of Motion.


PRIMA FACIE RIGHT:

THE VEXATIOUS PROCEEDINGS ACT, ACT 3 OF 1965 (AS AMENDED) AND THE COMMON LAW:

  1. It is clear from the Notice of Motion that the applicant, inter alia, envisages future proceedings by which the respondent is to be declared a vexatious litigant in terms of the provisions of section 2 of the Vexatious Proceedings Act, Act 3 of 1965 (as amended), (“the Act”), as well as orders interdicting and restraining the respondent and others to proceed with existing applications and actions or to act in any way whatsoever in respect of such existing applications or actions. The aim of the present application is to regulate the interim period pending the finalisation of the aforesaid proceedings. More particularly it is, inter alia, aimed at staying all proceedings that had been instituted as well as interdicting and restraining the respondent in this interim period from instituting new applications or actions or acting in any way pursuant to existing applications, actions or orders of court.


  1. In order to establish whether the applicant has made out a case for interim relief it is necessary to consider the legal principles applicable to a situation such as the present.


  1. Section 2(1)(b) of the Act provides as follows:

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 other 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 that 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.”


  1. The Constitutional Court in Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) per the honourable Makgoro J found the aforesaid provision of the Act to be constitutional. In the course of her judgment Makgoro J, at p121E, referred to the judgment of In re Anastassiades 1955(2) SA 220 (W), where the honourable Ramsbottom J (as he than was) had occasion to deal with the conduct of an unrehabilitated insolvent, Anastassiades, who “harassed” parties by instituting a plethora of actions against them, most whereof simply had no prospect of success. After considering the matter and despite having been urged to grant an order restraining Anastassiades from such conduct, Ramsbottom J held, after consideration of the relevant authorities and in the absence of statutory power, that the South African courts do not possess the inherent power to impose such a general prohibition. The South African common law merely affords the court the inherent power to stop frivolous and vexatious proceedings, for they amount to an abuse of its process. See in this regard Corderoy v Union Government 1918 AD 512 at 517 where the honourable Innes CJ added the following:

Now these orders were made, not under statutory authority, but under the inherent powers of the Courts. And I am satisfied that the same jurisdiction is inherent in our Courts. Where there has been persistent and repeated litigation between the same parties on the same cause of action, and in respect of the same subject matter, a defendant should not be driven to file repeated pleas of res judicata, or make a succession of applications to stay proceedings where prior costs have not been paid. I think he is entitled to more effectual protection against long continued unsuccessful onslaughts in respect of the same dispute. Such protection could only take the form of a general order curtailing in some respects the plaintiff's ordinary right of litigation in that matter. Such an order I think the Cape Provincial Division had the jurisdiction to make.”


  1. Consequently, the inherent jurisdiction of South African courts only extend to the prevention of abuse of its own process without being concerned with the process of other courts; only protects the parties to the litigation with which the court is dealing and is not concerned with other parties who are not before it; and does not extend beyond the immediate requirements of the particular case before it.


  1. The inadequacy of the inherent power of the High Court in terms of the common law was particularly glaring in the matter of In re Anastassiades (supra), where Anastassiades, as unrehabilitated insolvent with no prospect of paying any costs orders, persistently instituted unmeritorious actions against innocent victims. These actions were clearly intended to harass the victims in order to extort money from them and he had every intention to proceed therewith against all and sundry. Anastassiades further prepared his own pleadings, which were generally unintelligible and incomprehensible and without any prospect of establishing a legitimate cause of action, thereby causing the victim of such litigation enormous prejudice in defending itself against such a torrent of abuse. However, without statutory authority the court could not make an order putting a stop to the antics of Anastassiades on the basis of common law principles alone.


  1. Very shortly after the Anastassiades judgment and as a direct result thereof (and on 6 February 1956) the Act was assented to and commenced on 17 February 1956.


  1. The purpose of the Act is to put a stop to persistent and ungrounded institution of legal proceedings. The Act does so by allowing a court to screen a “person (who) has persistently and without any reasonable ground instituted legal proceedings in any Court or inferior court”. The purpose of this screening mechanism is, in the words of Mokgoro J in the Beinash matter (supra), to protect, firstly, the interests of the victims of the vexatious litigant who have repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation, and, secondly, to protect the public interest that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings”. The provisions of the Act consequently complement the common law to prevent vexatious litigation and an abuse of process.


  1. An analysis of the Act and the aforesaid authorities (and the authorities mentioned therein) seems to enforce of the view that: (a) the court has no inherent jurisdiction at common law to prevent the future institution of vexatious proceedings; and (b) the provisions of the Act only aim to protect a person or persons against the institution of future vexatious proceedings in any court or inferior court and does not relate to any proceedings already instituted. Consequently the Act does not afford protection against vexatious proceedings, or an abuse of process in respect of legal proceedings, which have already been instituted. The provisions of the Act consequently do not, inter alia, allow for vexatious proceedings which have already been instituted, to be stayed or struck out nor to prevent or terminate legal processes which emanated or might emanate from such proceedings.


  1. The only protection for a litigant against a vexatious proceeding or proceedings, or an abuse of a process or processes concerning a legal proceeding or proceedings which had already been instituted, has to be derived from the common law. By a “process concerning a legal proceeding” I have in mind procedures such as, inter alia, those permitted by the Rules of Court to facilitate the conduct of all types of litigation, including all steps relating to the execution of a judgment, and all matters ancillary to the legal process, as well as the machinery devised to generally assist with the proper administration of justice.


  1. In Cohen v Cohen and Another 2003(1) SA 103 (CPD) the honourable Griesel J, with reference to the Beinash matter, held at para [14] at p108 that at common law the courts enjoyed an inherent power to strike out claims that were vexatious, holding that that meant claims that were “frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the defendant”. The findings in the Cohen matter find application after such proceedings had been instituted.


  1. In Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D&CLD) the honourable Booysen J also found that the court has the inherent discretion to strike out or stay existing proceedings that are vexatious. In this regard the following was said at 608E-H:

The court has an inherent power to strike out claims which are vexatious. (Western Assurance Co v Colderwall’s Trustee 1918 AD 262 at 271; African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 565D.)

Vexatious in this context means ‘frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the defendant.

(Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWF Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W))

This power to strike out is one which must be exercised with very great caution, and only in a clear case. The reason is that the courts of law are open to all, and it is only in very exceptional circum­stances that the doors will be closed upon anyone who desires to prosecute an action. (Western Assurance Co case supra at 273; Fisheries Development case supra at 1338G)

Whilst an action which is obviously unsustainable is vexatious, this must appear as a certainty and not merely on a preponderance of probability. (Ravden v Beeten 1935 CPD 269 at 276; Burmham v Fakheer 1938 NPD 63; African Farms case supra at 565D-E)”


  1. In Western Assurance Co v Colderwall’s Trustee 1918 AD 262 at 273 the honourable Innes CJ stated the following:

Every Court has an inherent right to prevent an abuse of its process in the form of frivolous or vexatious litigation. (Reichel v Magrath, 14 A.C. 665)”


  1. In Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) the court did not concern itself with the provisions of the Act as the issue to be decided related to legal proceedings which had already been instituted. In that matter the appellant caused a subpoena to be issued in the court a quo requiring the respondent to produce certain documents which were said to be relevant in a certain proceedings then pending between the appellant and certain other parties. The respondent was not cited as a party to those proceedings. The respondent applied for the subpoena to be set aside on the basis that it constituted an abuse of the process of the court.


  1. At p734, the honourable Mahomed CJ stated that there could not be an all encompassing definition of the concept of “abuse of process” but that it could be said in general terms “that an abuse of process takes place where the procedures permitted by the Rules of Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective.”


  1. In regard to the inherent power of the court in this regard, the honourable Mahomed CJ said the following at p734D:

There can be no doubt that every Court is entitled to protect itself and others against an abuse of its processes. Where it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it is quite entitled to set it aside. As was said by De Villiers JA in Hudson v Hudson and Another 1927 AD 259 at 268:

'When . . . the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.'

What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all encompassing definition of the concept of 'abuse of process'. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective. (Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W) at 820A  B; Taitz The Inherent Jurisdiction of the Supreme Court (1985) at 16.) A subpoena duces tecum must have a legitimate purpose. (The unreported judgment of Marais J in the WLD Wachsberger v Wachsberger on 8 May 1990 in case No 8963/90 and the unreported judgment of Plewman J in the WLD on 6 October 1993 in the case of Lincoln v Lappeman Diamond Cutting Works (Pty) Ltd 17411/93.)

Ordinarily, a litigant is of course entitled to obtain the production of any document relevant to his or her case in the pursuit of the truth, unless the disclosure of the document is protected by law. The process of a subpoena is designed precisely to protect that right. The ends of justice would be prejudiced if that right was impeded. For this reason the Court must be cautious in exercising its power to set aside a subpoena on the grounds that it constitutes an abuse of process. It is a power which will be exercised in rare cases, but once it is clear that the subpoena in issue in any particular matter constitutes an abuse of the process, the Court will not hesitate to say so and to protect both the Court and the parties affected thereby from such abuse. (Sher and Others v Sadowitz 1970 (1) SA 193 (C) ; S v Matisonn 1981 (3) SA 302 (A) .)”


  1. Consequently, in summary, the following appears to be the position: The only manner by which the institution of future vexatious proceedings can be prevented, is to rely on the provisions of the Act; the only manner to stay, strike out or otherwise deal with vexatious proceedings which have already been instituted, or to deal with any process or action or inaction leading up to, or during or subsequent to any legal proceeding or proceedings already instituted, and which constitutes an abuse of process, or generally brings the administration of justice into disrepute, shall be done in terms of the applicable common law principles and the court’s inherent power to apply same.


  1. In the present matter before this court the applicant, inter alia, sought an order against the respondent preventing him from issuing and/or pursuing warrants of execution against the applicant on the strength of a settlement agreement and an interim order made by the court almost a decade ago and which had been overtaken by further events. Stricto sensu the issuing of a warrant of execution cannot be classified as the institution of legal proceedings but rather as a step in the execution of a judgment. As such, the provisions of the Act cannot assist the applicant in order to avoid being harassed by the issuing of further similar warrants of execution.


  1. As stated above, this court has the inherent power to interdict a respondent from issuing and/or pursuing warrants of execution if, by doing so, the respondent would be abusing the process of this court. On behalf of the applicant it was submitted that there are two further grounds upon which an applicant’s right to prevent the issuing of further spurious warrants of execution or the continuance of the execution of spurious warrants of execution, is based. The first is as an adjunct to the principles pertaining to vexatious proceedings on the basis that this is but a further step in such proceedings. The second is the ordinary principle that a party is entitled to ask the court for relief to prevent and unlawful injury committed or to be committed upon it.

  1. In respect of the first ground, it is to be noted that the concept “legal proceedings” which may be prohibited, is not defined in the Act. It would be a matter of interpretation of section 2 of the Act to establish finally whether the legislator included such further processes pertaining to legal proceedings already instituted, in its reference to “legal proceedings” which may be prohibited. I have indicated above that I do not hold the view that section 2 of the Act allows for this interpretation. However, I have not been fully addressed on this issue and as it is in any event not necessary for purposes of the present application to do so, I make no definitive finding in regard to this issue.


  1. In respect of the second ground it would seem that in the right set of facts, an applicant may very well be able to tie this string to his bow as well. However, it is similarly not necessary for me to decide this issue for purposes of the present application and I consequently decline to do so.


  1. Consequently, in order to obtain the relief set out in the Notice of Motion (as amended), the applicant has to show, apart from the other requirements for interim relief, that it has a prima facie right in terms of section 2(1)(b) of the Act as well as a prima facie right in terms of the common law in respect of legal proceedings which have already been instituted by the respondent and in respect of other processes which have been instituted or may be instituted in the future by the respondent in respect of legal proceedings already instituted. In order to the adjudicate this as well as the other relevant issues, I shall now turn to the facts of this particular case.


THE FACTS OF THE MATTER:

The Period 1992 to 1999:

  1. During the 1990's, the respondent had interests in a vast number of enterprises both in Swaziland and in South Africa. Many of the enterprises related to farming operations in South Africa. During or about October 1992, the respondent concluded an agreement of sale in terms of which he acquired the member’s interest in Kleindoornkop CC. At that stage a banker/client relationship came into existence between the applicant and the respondent, which ultimately resulted in the applicant affording the respondent certain loan facilities in his personal capacity as well as in his representative capacity as the member of Kleindoornkop.


  1. The relationship eventually broke down and led to litigation that commenced between the parties in 1998. During that year a number of applications and actions were instituted between the applicant and the respondent. It is not necessary to refer to all the legal proceedings between the applicant and the respondent and Kleindoornkop during that year and the following years up to the present. I shall merely refer to some of the salient features of this plethora of litigation between the parties.


  1. The litigation during 1998 culminated in the provisional order obtained by the applicant before the honourable Mr Justice de Villiers on 13 August 1998 in case number 18225/98. This order, inter alia, related to the payment of the respondent’s debt to the applicant and more particularly how the proceeds from the sale of sugar cane which the respondent produced, should be used in order to reduce the debt. In broad terms the order provided for all the proceeds to be paid to the applicant from which the applicant was entitled to retain an amount which is the lesser of 50% of the monthly proceeds from these sales or the sum total of the instalment on the term loan agreement between the applicant and the respondent and the monthly interest accruing to the respondent’s current banking account with the applicant. The balance of the proceeds was to be paid by the applicant to the respondent into an account to be nominated by the respondent, and the applicant had to account in writing to the respondent on a monthly basis in this regard. It was further ordered that the order shall operate until final determination or settlement of the actions instituted by the respondent against the applicant under case number 13850/98 and by the applicant against the respondent under case number 18836/98.


  1. The case with number 18836/98, referred to in the aforesaid order, was an action instituted by the applicant against the respondent and Kleindoornkop for, inter alia, payment of the amounts of money, almost R12,5 million in aggregate, forming the subject matter of the overdraft facilities and the term loan.


  1. The parties, i.e., the applicant, the respondent and Kleindoornkop, settled case number 18836/98 in terms of a written agreement of settlement which was made an order of court by the honourable Stafford DJP on the 17th of May 1999. At that point the amount due by the applicant and Kleindoornkop had increased to approximately R13,5 million. The agreement of settlement also pertained to and settled an action under case number 13650/98 which Kleindoornkop had instituted against the applicant for, inter alia, a declaratory order ordering the applicant to credit certain amounts towards the account of Kleindoornkop. It should be mentioned that the respondent’s liability, inter alia, arose from the fact that he also stood surety for the obligations of Kleindoornkop towards the applicant.


  1. The aforesaid settlement agreement also settled an application by the applicant for the perfection of a notarial bond; an application by the respondent for the cancellation of a bond; and an application by the respondent for an order declaring the cession of a certain sugar quota to the applicant, to be unenforceable and invalid. What is of particular importance is that the order of Stafford DJP superseded and replaced the order of de Villiers J of 13 August 1998 including case number 13650/98 which related to the amounts with which the applicant allegedly had to credit the account of Kleindoornkop.


  1. In this agreement of settlement which was made an order of court, the applicant and Kleindoornkop admitted that they were indebted to the applicant in an amount of R13 298 677,98 plus interest thereon at the applicant’s prime rate of interest plus 2% per annum calculated from the 2nd May 1999 to date of payment, with the interest to be calculated and capitalised monthly. Paragraph 3 of the settlement agreement provided that the aforesaid amount plus interest shall be repaid by the applicant and Kleindoornkop in 180 monthly instalments of R243 447,23 each. The plaintiff and Kleindoornkop supplied security for the aforesaid indebtedness and the particulars thereof were also noted in the agreement. In paragraph 7 of the agreement it was noted that additional security was to be given in the form of a cession of the right to receive the proceeds of cut sugar cane. To this end the respondent and Kleindoornkop, inter alia, ceded their right, title and interest in respect of payment for sugar cane, to the applicant. They further authorised the applicant to receive payments for such deliveries of sugar cane from which amounts the aforesaid monthly instalments would be credited to the account. The balance, if any, would be paid into a banking account to be nominated by the respondent.


  1. In paragraph 15 of the agreement the parties agreed that that agreement constituted a novation in respect of the cheque account and the term loan account of Kleindoornkop. The settlement agreement constituted 15 pages and it is not necessary to refer to the balance of the provisions thereof.


The year 2001:

  1. Thereafter a period of relative peace elapsed but during June 2001 the litigation between the parties flared up again. It commenced with the action instituted by Kleindoornkop and the respondent against the applicant in this court during June 2001 under case number 16178/2001.


  1. The particulars of claim indicate that Kleindoornkop sought judgment against the applicant for amounts of R12 768 472.57; R5 181 732.83; R4 866 394.86; and R24 070 368.00. The respondent himself sought judgment for the amount of R80 million. What is important in respect of this action is that the causes of action related to the same current account and loan account mentioned in the settlement agreement which was made an order of court by Stafford DJP (“the order by Stafford DJP”), the alleged unauthorised debiting of these accounts and the failure to make the necessary credits to these accounts. It also related to an attack on the cessions which served as security and also contained a claim for damages which allegedly resulted from the alleged unlawful conduct of the applicant. All the causes of action supporting the aforesaid claims were related to the period prior to the settlement agreement and order by Stafford DJP on 17 May 1999.


  1. In launching the aforesaid action, the respondent and Kleindoornkop, on whose behalf the respondent at all times acted, consequently, simply ignored the existence of the settlement agreement as well as the order of Stafford DJP made two years earlier. There can be no doubt that the order of Stafford DJP was a complete bar to the institution by the respondent of this action during June 2001 under case number 16178/2001. (As the respondent always cited Kleindoornkop in the further proceedings against the applicant, I shall henceforth, for purposes of convenience, merely refer to the respondent as the litigating party unless it is necessary to mention Kleindoornkop by name).


  1. A few days later, on 6 July 2001, the respondent instituted an action under case number 17282/01 against the applicant in terms whereof the respondent sought an order setting aside the settlement agreement as being null and void. According to the respondent he had been forced into signing the agreement and had done so under duress. The respondent then launched further applications, inter alia, to remove the matter from the roll and thereafter to postpone the matter. These applications were all dismissed by the court and when the main matter eventually came before the honourable de Vos J on 12 August 2002, she granted an order of absolution from the instance with costs against the claims of the respondent.


  1. Apart from the above action which culminated before de Vos J in August 2002, the respondent and/or Kleindoornkop instituted approximately 10 applications and actions respectively during the year 2001. These applications, some on an urgent basis, and actions all pertained to the view held by the respondent that the applicant owed him money from the time prior to the order of Stafford DJP. I do not propose to set out the details of these proceedings. The details have been referred to in the founding affidavit filed on behalf of the applicant and I shall merely refer to certain of the salient features thereof.


  1. In one matter an urgent application was launched to direct the applicant to render a full and detailed statement of account, supported by vouchers and other documentation, in respect of sugar cane which had been delivered. This matter was struck off the role due to lack of urgency. In another action Kleindoornkop sought judgment against the applicant in the total amount of R101 166 161,68. In another action an order was sought declaring that Kleindoornkop was not indebted to the applicant in any amount secured by the bonds therein referred to. In another urgent application the applicants sought payment of the amount of R19 118 966,70. In yet another action Kleindoornkop sought judgment against the applicant for the amount of R7,9 billion. In another urgent application the respondent sought judgment against the applicant for the amount of R6 666 161,68. In another action against the Commissioner of the South African Revenue Services, the respondent sought payment from the Commissioner of several million Rand. In another application brought on an urgent basis against the applicant, the respondent sought an order directing the applicant to pay the amount of R327 550,71. This matter, under case number 29828/2001, came before the honourable de Villiers J on 12 November 2001. The application was dismissed and during the course thereof the learned judge commented as follows:

Mnr Terblanche het dit nie gemeld nie, en hy vra ook nie regshulp in dié verband nie, maar dit skyn vir my asof die applikante dalk sou kon kwalifiseer vir ‘n bevel teen hulle in terme van die Wet wat voorsiening maak vir die bestryding van Kwelsugtige Gedinge. Ek wil dus ‘n ernstige waarskuwing tot die eerste en tweede applikante rig dat indien hulle weer hofverrigtinge sou loots, daardie hof wel deur hulle teenparty gevra sou kon word om stappe te doen ingevolge gemelde Wet om die applikante tot kwelsugtige gedingvoerders te verklaar.”


  1. The applicant opposed all the aforesaid matters and, inter alia, in the matter where the respondent claimed R7,9 billion, had the matter set aside in terms of Rule 30 of the Uniform Rules of Court. It is not necessary to refer to the details of the aforesaid claims and demands by the respondent and suffice it to say that they all related to disputes in respect of the respondent’s accounts prior to the order of Stafford DJP, and the disputes relating to the respondent’s accounts, and more particularly the applicant’s actions pertaining to the account of the respondent after the order of Stafford DJP.


  1. The respondent held the view that he never owed the money reflected in the settlement agreement which was made an order of court by Stafford DJP and that he had signed that agreement under duress. He furthermore held the view that subsequent to the settlement agreement and order of Stafford DJP, the applicant had in any event not acted as it was supposed to do in terms of that order. He accused the applicant of not making the correct payments into his account, of making unauthorised payments to other parties, and of other such unlawful actions.


  1. All the actions and applications were aimed at, firstly, setting aside the order of Stafford DJP and having the respondent’s financial obligations prior thereto, investigated and, secondly, to have the accounting by the applicant and the payments in terms thereof, subsequent to the order, investigated and adjudicated. Unfortunately, despite the extent of the documentation filed in this application, it is not possible to establish what exactly happened to all the legal proceedings that were instituted and why they did not come to fruition. Some matters did, for example the ones before de Vos J and de Villiers J referred to above. Those matters clearly related to only some of the issues between the parties. I repeat that I am not, in this application, in a position to say exactly what the outcome of all these matters were but I do not think, for reasons that will appear later, that this inability affects the outcome of the present application. There must also, in any event, be serious doubt as to whether those actions and applications can be resurrected after such a long time and after the events that had taken place since then.


The year 2002:

  1. However, to return to the chronology of events. During the year 2002 the respondent changed his approach. Instead of instituting further applications and actions, inter alia, to set aside the original agreement of settlement and the order of Stafford DJP, or, to at least proceed with those that had already been instituted, the respondent caused a warrant of execution to be issued against the applicant in an amount of R11 942 958.66 “minus the instalments payable by the defendants amounting in total to the sum of R5 276 796-97, both sums calculated up to the 30th June 2001, and in terms of the settlement agreement made an order of the court on the 17th May 1999 ”.


  1. The reference to the court order of 17 May 1999, is a reference to the aforesaid order of Stafford DJP. It is thus clear that the respondent no longer attacked the judgment of Stafford DJP which made the settlement agreement an order of court, as he had attempted to do before and in respect of which there were probably still actions and applications pending, but now in fact relied upon that order. However, it is equally clear that the respondent’s reliance on the settlement agreement and the order of Stafford DJP for the issuing of the aforesaid and other warrants of execution, was totally misplaced. The order did not contain a judgment in the respondent’s favour which allowed for a warrant of execution of this kind.


  1. However, relying upon this warrant of execution the respondent, firstly, attempted to procure its execution against the Gezina branch of the applicant, and when that attempt was thwarted by a request for security in terms of the Rules of Court, the respondent simply sidestepped the requirement of security and redirected the warrant to the sheriff of Malelane and instructed him to execute the warrant. By doing so, the respondent effectively caused the closure of the Malelane branch of the applicant and caused the applicant tremendous embarrassment and financial loss. In this regard it was submitted on behalf of the applicant that the respondent’s conduct was unlawful, opportunistic, vexatious and “borderline fraudulent”. The actions of the respondent was clearly an abuse of the process of this court. The aforesaid warrant was set aside by the honourable Jordaan J in this court on 15 August 2002.


The year 2003:

  1. During the year 2003 the respondent instituted some 18 proceedings in this court against the applicant, its officials and even its legal advisers. I shall refer to some of these applications. An application was launched for an order that the aforesaid settlement agreement “be set aside and cancelled”. A further application was for the review of the aforesaid order of Stafford DJP. A further application purported to review the consent order made by de Villiers J in 1998. There were also the following applications: An urgent application for an order against senior counsel practising in this division that he be directed to produce documents allegedly in his possession for inspection. An application against the applicant and its former Chief Executive seeking identical relief. An application against a local firm of attorneys seeking identical the relief. An application against the applicant and its Chief Executive also seeking discovery. Another five applications seeking discovery from some of the aforesaid persons and entities in respect of a number of entries in the respondent’s account.


  1. By this time the respondent had obtained a report compiled by a certain Mr Haroon Minty, which he used to support his contention that the applicant owed him approximately R100 million up until October 2001. This amount increased as time went by but it is not necessary to refer to the details of the allegations in this regard. Obviously spurred on by the report of Mr Minty, and during August 2003, the respondent instituted three separate proceedings to direct the respondents to, inter alia, fully reply to the aforesaid report by Minty and to provide a full and complete internal audited report by the applicant’s audit department in answer to the report of Minty. During October 2003 another urgent application was launched seeking an order declaring two of the executives of the applicant to be in contempt of the order of de Villiers J dated 13 August 1998. It would be recalled that that order was of an interim nature and was in any event supplanted by the order of Stafford DJP on 17 May 1999. When this application came before the honourable Bosielo J on 21 October 2005, the application was dismissed with costs.


  1. The aforesaid conduct of the respondent resulted in the applicant, the aforesaid firm of attorneys and senior counsel as well as two other parties which had been cited by the respondent in a number of the aforesaid applications, launching an application against the respondent for, inter alia, the following the relief:

2. That the 12 urgent applications brought by the respondents against the applicants, as is evident from schedule “A” hereto, in terms of the provisions of rule 30 of the Uniform Rules of Court, be set aside as being irregular proceedings, be set aside as being vexatious proceedings in terms of the inherent capacity of the above Honourable Court.”


  1. The matter came before the honourable Bertelsman J on 21 August 2003 who granted the relief in favour of the applicants in that application including an order setting aside the review applications against the orders of de Villiers J and Stafford DJP as well as an order directing the respondent to give security for costs in respect of the 12 actions listed in schedule “A” to the order of court and staying such actions until the orders for security had been complied with.


  1. It was submitted on behalf of the applicant in the present application before this court, that the vexatious and contemptuous conduct of the respondent appears from his conduct in all these matters. It was further submitted that these applications were completely without merit and that often the respondent would simply not appear on the nominated day for appearance, resulting in the dismissal of the particular application. It was submitted that the respondent showed contemptuous disregard of the court, the judges, its officials and of the rights of the applicant and its senior executives and that he caused direct and financial prejudice, harassment and embarrassment to the applicant and its senior officials. It was furthermore submitted that the respondent “clogged” up the court rolls by wasting valuable time of court officials and judges who have important and always pressing work to attend to.


THE SEQUESTRATION OF THE RESPONDENT’S ESTATE:

  1. A further event that transpired during the year 2003 is the sequestration of the respondent at the instance of Sakkie die Israeliet (Pty)Ltd, a company completely unassociated with the applicant. This company obtained judgment against the respondent personally in this court on 6 August 2001 for payment of an amount of R859 657.14, together with interest and costs. This judgement formed the basis of the application for the respondent’s sequestration.


  1. The events leading up to the sequestration, including the dismissal by Bertelsmann J on 25 June 2003 of an application by the respondent for a postponement, are fully described in the founding affidavit. On 14 August 2003 the respondent was finally sequestrated by an order of this court. Thereafter the respondent brought an application for leave to appeal against the final order of sequestration. After a number of postponements the application for leave to appeal was not proceeded with by the respondent. The net result was that during November 2003 the sequestration of the estate of the respondent had become final and the insolvency process continued thereafter. Although it would appear that the respondent presently suggests that there had been no judgment debt against him, he does not dispute that he had been sequestrated. During February 2006 the respondent brought another application as a matter of urgency seeking to set aside the sequestration order of 14 August 2003. I shall refer to this application below.


THE LIQUIDATION OF KLEINDOORNKOP:

  1. Roughly about the same time during June 2003 the liquidation of Kleindoornkop took place in circumstances which are also fully described in the founding affidavit. The provisional order of liquidation was at the instance of the applicant and based upon the aforesaid settlement agreement. The liquidation order of Kleindoornkop was made final in February 2004. It may be added that Kleindoornkop was earlier provisionally liquidated at the instance of Sakkie die Israeliet (Pty)Ltd but that due to some or other procedural error by that company, the details whereof are not clear, the order was set aside by the honourable de Vos J. The earlier liquidation by Sakkie die Israeliet (Pty)Ltd took place some 18 months prior to the liquidation at the instance of the applicant and these two events were completely unrelated.


THE LOCUS STANDI OF THE RESPONDENT:

  1. The respondent’s sequestration divested him of any and all legal authority and power he might have possessed to represent himself as well as the corporations and/or entities that he now purports to represent. This notwithstan­ding, the respondent, in the plethora of actions referred to hereinafter, continuously and unmeritoriously suggested that the company that had been liquidated is not Kleindoornkop but a different Kleindoornkop and that De Vos J had set aside whatever liquidation there might have been of Kleindoornkop on 25 July 2002. The two events are completely unrelated and it was submitted on behalf of the applicant that the continued attempts and reliance by the respondent upon the order of De Vos J of 25 July 2002, is nothing but disingenuous and vexatious. It would seem that this submission is correct.


  1. The respondent’s persistence to purport to act on behalf of Kleindoornkop (in liquidation), without the permission of its duly appointed liquidators, resulted in the liquidators launching an application before this court for an order interdicting and restraining the respondent from initiating any proceedings on behalf of Kleindoorn­kop. The respondent opposed that application. I am not aware of the outcome of that application, if there had been one yet.




The years 2006 and 2007:

THE ATTEMPTS TO SET ASIDE THE SEQUESTRATION:

  1. Things quietened down after the liquidation of Kleindoornkop and the sequestration of the respondent until February 2006 when the respondent, under case number 1399/03, launched his first application to set aside his sequestration order of 14 August 2003, some three years after the granting of the provisional order and after abandoning the application for leave to appeal the sequestration order. The matter became opposed and the applicant applied for and obtained leave to intervene in such proceedings. The matter was enrolled for hearing on the opposed role of 23 May 2007. In the meantime, but almost a year after the institution of the first application, and unbeknown to the applicant, the respondent instituted a second and new and independent application to set aside the order of sequestration. This application was brought under the same case number and enrolled for hearing on 24 April 2007. In this new application the respondent cited Sakkie die Israeliet (Pty)Ltd and the Master of the High Court as the respondents but did not cite the applicant and neither did he serve the application on the applicant or on any of the other respondents in the first application.


  1. The only reason why this second application came to the knowledge of the applicant was because, from an early time, the attorneys for the trustees of the respondent had arranged with numerous junior counsel who appeared regularly in the unopposed motion courts in Pretoria, to watch the motion court rolls, including the roll of the urgent motion court, and to inform them if there was any application on the roll involving the respondent, Kleindoornkop or any of the legal entities that the respondent purports to represent. As a result of this precautionary measure in the form of a general watching brief, the attorneys were advised of the aforesaid second application and senior counsel was instructed to oppose this unopposed application to set aside the sequestration order. Ultimately the matter was postponed to 23 May 2007 as that was the date on which the respondent’s first application had been enrolled for.


  1. For purposes of chronology I wish to briefly refer to another matter which occurred at this time. On 25 April 2007 the respondent also instituted contempt of court proceedings against the trustees, the applicant, the Swaziland Development and Savings Bank and the South African Revenue Services for not complying with notices in terms of Rule 35(12) and 30A(1) of the Uniform Rules of Court granted by this court on 17 May 2006. He also moved for an order incarcerating the members of the Boards of Directors of the different respondents and an order that they, as well as their family members, be fined an amount of R500 000,00 each. The respondent endeavoured to enroll this matter for hearing without notice to the applicant and when he ultimately succeeded in getting it on the roll for 8 August 2007, the matter was postponed to 10 August 2007 for hearing simultaneously with the hearing of oral evidence in respect of the application to set aside the sequestration. On that day, the applicant was presented by senior and junior counsel and the applicant, as he always did, appeared in person. The other parties were also represented by counsel. The matter was to be heard by the honourable Phelane AJ, together with other matters that had been referred to him. I shall further refer to those events below.


  1. The basis of the respondent’s complaint and the reason why he sought an order setting aside his sequestration order, was an allegation that the founding affidavit in the sequestration application brought by Sakkie die Israeliet (Pty)Ltd, deposed to by a certain Mr I. Knafu, was a forgery and also that Mr Knafu had never authorised those proceedings. This contention was based upon an affidavit procured by the respondent from Knafu wherein he disputed his signature to the founding affidavit and also denied that he had authorised the institution of the sequestration proceedings.


  1. On 23 May 2007 Bosielo J granted leave to the applicant to intervene in that application and after hearing argument, referred the matter for oral evidence. Subsequent thereto the respondent also cited the Swaziland Development and Savings Bank and the South African Revenue Services as additional respondents.


  1. These matters, i.e., the contempt application as well as the two applications for the rescission of the sequestration order, ultimately came before the honourable Phelane AJ. The respondent called Knafu as a witness and he, inter alia, conceded under cross-examination that he was the sole director of Sakkie die Israeliet (Pty)Ltd, that he had signed the founding affidavit in the sequestration proceedings and that he had authorised such proceedings. The document which Knafu had alleged contained a forged signature of himself, turned out to be a completely different document which had nothing to do with the claim against, or the sequestration of, the respondent. It was consequently clear that the respondent’s reliance on allegations of fraud and forgery in respect of his sequestration, was completely groundless.


  1. On 17 August 2007, Phelane J dismissed the respondent’s first application to set aside the sequestration order. He also dismissed the second application on the ground of the principle of lis pendens. He also dismissed the respondent’s application for contempt of court proceedings.


  1. As a result of these events, there can be no doubt that by reason of the respondent’s status as an unrehabilitated insolvent (since as far back as August 2003), he has no locus standi to represent his estate and/or Kleindoornkop.


THE WARRANTS ISSUED BY THE RESPONDENT:

  1. Despite the findings of Phalane J, which are binding upon the respondent, he still relies upon the contention that his sequestration was a fraudulent event, and still relies on the original affidavit of Knafu, which had been found to contain wrong and irrelevant allegations. He consequently ignores the evidence of Knafu as well as the judgment and order of Phalane J referred to above.


  1. Also during 2007 the respondent caused three warrants of execution to be issued by the offices of the Registrar of this court against the applicant based upon the order of De Villiers J in 1998. It would be recalled that the order by de Villiers J had been superseded by the settlement agreement and order of Stafford DJP in 1999 and that that order, (and the order of de Villiers J, for that matter), did not constitute a judgment debt against the applicant upon which a warrant of execution could be issued. These warrants were similar to the one referred to above which caused so much trouble and embarrassment and loss to the applicant in 2002 and which had been set aside by the honourable Jordaan J on 15 August 2002. In these new warrants the Sheriff was instructed to seek payment from the applicant in the amounts of R2 956 737,00; R2 975 585,00; and R6 666 161,68, respectively, totalling an amount of R12 598 483,68.


  1. The applicant was forced to approach this court on an urgent basis in respect of the three 2007 warrants and its application resulted, firstly, in a rule nisi staying the three writs and interdicting the respondent from issuing further writs pending the return day of the order. In addition an order was granted for substituted service of such order. On the return day, 22 May 2007, a final order was granted by the honourable Hartzenberg J setting aside the warrants of execution coupled with final interdictory relief in the following terms:

The respondent is interdicted and restrained from causing the issue of writs of execution on behalf Kleindoornkop Boerdery CC (in liquidation) (Registration No. 1987/008027/23).”


  1. The judgement by Hartzenberg J, of setting aside the warrants of execution, is still valid to the present day. On behalf of the applicant it was submitted that the implicit finding of that judgment and order was that the warrants should never have been issued and that that finding constitutes grounds for the relief sought by the applicant in the present application in respect of the issuing of such/similar warrants. There is certainly merit in this submission. The warrants of execution were clearly an abuse of the process of this court.


  1. The order of Hartzenberg J resulted in a series of urgent applications enrolled by the respondent during June and July 2007, which were fully described in the founding affidavit. These applications were all unsuccessful. Ultimately, the matter came before the honourable Mr Justice Southwood on 24 July 2007 who struck the matter from the roll with costs. Respondent, once again, showed his total disregard for the court by simply not appearing at the hearing, despite being specifically warned to be present when the matter was to be dealt with.


  1. Undeterred by the interdict of Hartzenberg J, and in flagrant contempt of the court, the respondent on 11 July 2007 once again caused three warrants of execution, this time totalling R94.8 million in aggregate, to be sued out of the office of the Registrar of this court against the applicant. He again purported to act on behalf of Kleindoornkop. These warrants were again issued with reference to the order of de Villiers J of 13 August 1998.


  1. In this instance the respondent was assisted by a certain Mr E. van der Merwe who acts as the agent of the respondent. Van der Merwe instructed the Sheriff to “execute the writ against the movable goods of ABSA Bank Limited as per writ of execution at the address 160 Main Street, ABSA Towers, Johannesburg, by remove and take in possession of the movable goods to a place of safety” (sic). The aforesaid address is that of the head office of the applicant. The warrants furthermore directed the Sheriff to execute them “at any other of its branches situated countrywide”.


  1. In the founding affidavit of the applicant in the present application it was stated that the issuing of these warrants and the Sheriff’s attempts to execute them on 14 July 2007, received widespread national print and internet media attention. During the course of that day clients of the applicant attended at its branches and enquired whether or not their money was “safe”. One client in particular sought to withdraw a R2,2 million investment held with the applicant at its Eastgate branch.


  1. As could be expected, the conduct of the respondent, once again, necessitated the launch of an urgent application by the applicant. On Monday evening, 16 July at 18h00 the honourable Malopa J granted an order against the respondent in terms whereof the writs were stayed and the respondent, including his agents, were interdicted and restrained from taking any further steps in furtherance of the execution of the writs and from issuing any further writs (whether directly or indirectly on behalf of Kleindoornkop or in respect of any claims which Kleindoornkop might have against the applicant).


  1. As would be clear by now, these warrants: were issued on behalf of Kleindoornkop, which had been finally liquidated; were issued at the instance of the respondent which is an unrehabilitated insolvent; were issued without the permission of the duly appointed liquidators of Kleindoornkop; and were issued in direct contravention of the order of Hartzenberg J. In addition these warrants were issued in respect of an interim court order which does not contain a judgment against the applicant and which order had subsequently been supplanted by the settlement agreement which was made an order of court and which order similarly does not contain a judgment against the applicant for which a warrant can be issued. Furthermore, a similar warrant was set aside by Jordaan J in 2002.


  1. In this last-mentioned urgent application by the applicant, the respondent’s agents, Neil van der Merwe CC t/a EL Business Solutions and EL van der Merwe, were also cited as respondents. The reason being that Mr van Der Merwe and his close corporation purportedly act on behalf of the respondent by means of a special power of attorney granted to them by the respondent. Prior to the launching of the urgent application the attorneys acting on behalf of the applicant sought an undertaking from Mr van der Merwe, as the respondent’s representative, to stay the execution of the warrants. His response was that the warrants would only be withdrawn on receipt of full payment of the amounts claimed, i.e., amounts in excess of R94 million.


RESPONDENT’S ONGOING CONDUCT:

  1. It is clear from the actions of the respondent and his representatives that the respondent will not stop his legal actions, applications and other legal processes unless and until he has been paid what he thinks is due to him. The respondent is clearly not deterred by the fact that he and Doornkop had been declared insolvent and have no locus standi, nor by the fact that he is acting in contravention of orders of this court or that the issues upon which he bases his actions have been finally adjudicated by this court.


  1. Apart from having failed to obtain money from the applicant by means of six writs of execution issued during the course of this year alone, the respondent, during the period 20 July 2007 to date of the institution of the present application, i.e., 28 August 2007, has initiated 23 applications against the applicant in terms whereof a variety of relief, including judgment in the amount of R320 million, is sought.


  1. In every single one of these matters the respondent purports to represent himself as well as the legal entities therein referred to despite the fact: that he had been finally sequestrated some three years ago during 2004; that Phalane J had finally dismissed his two applications to set aside his sequestration application; that Kleindoornkop had been liquidated during 2003 and that the winding-up process is all but complete; that the claims for payment of amounts of money relate to issues which had been settled almost a decade ago and on claims that the applicant had failed to comply with previous court orders. It is not necessary for purposes of this application to refer to the details of this plethora of matters.


  1. Approximately 13 dates have been allocated for the hearing of some of these matters on the opposed roll, but what is of more importance is that a substantial number of the dates in respect of the opposed matters have been procured by the respondent after Phelane J confirmed the dismissal of the application by the respondent to set aside his sequestration. The respondent is completely undeterred by any order of this court. For example, on 16 August 2007, and in respect of two applications aimed at the payment of money judgments against the applicant, and despite this service of a Notice of Intention to Oppose on behalf of the applicant and the filing of answering affidavits, the respondent, purportedly acting on behalf of Kleindoornkop, persisted with seeking money judgments against the applicant in the amount of R24 million and R20 million respectively on the unopposed motion court roll. The respondent sought to move the applications on the unopposed motion court roll despite the filing of a preliminary opposing affidavit on behalf of the applicant consisting of approximately 500 pages.


OTHER CONDUCT OF THE RESPONDENT:

  1. In the founding affidavit the applicant referred to the conduct of the respondent and his representatives within the confines of the court building. This relates, inter alia, to the disappearance of court documents, improper conduct in court and other improper conduct. I do not think it is necessary to refer to all the detail in this regard. There is however one letter signed by Mr Tiveni Nkosi, who is apparently the son of the respondent and who is apparently assisting him in his legal matters, which is dated 23 August 2007 and was addressed to the applicant’s attorneys and copied to the honourable Judge President of this division, the Deputy Judge President of this division and the Chief Registrar of this division. This is a long letter of three pages which, apart from being threatening, can only be described as contemptuous, offensive, insulting and abusive in the extreme. The last paragraph of this letter is worth quoting as I regard it as relevant to the issues under consideration in this application and as it seems to sum up a new direction embarked upon by the respondent and a new dimension he has unfortunately brought to the dispute, as is evidenced by the rest of the letter. It reads thus:

You go on marketing yourself before the Highest Court Officials by making VAGUE, BORING very STUPID requests without following basic steps in addressing your complaint. You letter reads like a letter addressed in the days of APARTHEID”(sic)


  1. The applicant also referred to the hearing before Phelane J when, during the course of the evidence of the respondent, the respondent turned to the senior counsel acting on behalf of the applicant and advised him that he had laid a criminal charge against him. In this regard the applicant further submitted that it is without doubt apparent that the respondent’s conduct has become increasingly irrational, that his conduct is unpredictable and totally vexatious and that his focus in this litigation is as much upon the legal representatives representing the applicant as upon his perceived causes of action.


  1. The applicant furthermore referred to the attitude adopted by the respondent during the hearing before Phelane J when he threaten the honourable judge with an appeal during the course of the hearing, when he refused to acknowledge the presence of the representatives acting on behalf of the applicant and refused to accept documents despite the honourable Judge requesting him to accept documents handed to him by the applicant’s legal representatives. Also that he continuously walked in and out of the court at whim during the course of argument and during the course of evidence. The applicant further stated that when it became apparent to the respondent that the presiding Judge was intent on dealing with the matter and disposing thereof, the respondent endeavoured to file for a postponement right at the end of the matter when all the evidence had already been led and argument was in process. When it became apparent that the presiding Judge would not grant a postponement of all three of the applications that were being dealt with, the respondent then simply stated that he was withdrawing the applications. The presiding Judge refused to permit the respondent to withdraw the applications.


  1. The applicant further stated that during the course of the hearing before Phelane J, the respondent indicated that he had prepared four subpoenas against the judges of the above court, including the Deputy Judge President. At that point the respondent had not applied to the Honourable Judge President for leave to do so nor, according to the applicant, was there any basis in fact or in law for seeking such leave, as apparently was found by Phelane J.


THE RESPONDENT’S ANSWERING AFFIDAVIT:

  1. In the present application the respondent served an answering affidavit on the applicant which, together with annexures, consisted of 139 pages. These answering papers were indexed and paginated by the applicant together with the founding and replying papers which all constituted the court file. However, at some point, the respondent filed answering papers in bound form in the court file, but this time the answering affidavit and annexures consisted of 314 pages.


  1. When I confronted the respondent about this discrepancy, and how this situation came about, he gave, as far as I am concerned, an unintelligible explanation. At some point he blamed the applicant for this state of affairs and more particularly of being responsible for removing documents from the court file. In the short time available, counsel for the applicant perused the bundle of 314 pages and, in reply, directed my attention to documents dated after the date of the stamp of the Registrar of this court which was put on the front page of the answering affidavit when it was filed at court. From this it is clear that, by some means, the respondent, or someone on his behalf, uplifted the answering papers after they had been filed and had added substantially to it. This was furthermore done without any notice to the applicant.


  1. I have had regard to all the documents filed by the respondent despite the submission on behalf of the applicant that I should concern myself only with the answering papers which were filed initially.


  1. The answering affidavit consists of some 12 pages. The balance of the bundle consisted of annexures which were not indexed and, for the most, not referred to in the answering affidavit. The answering affidavit mentions some of the legal proceedings between the parties. It refers, inter alia, to the settlement agreement which was made an order of court in 1999 and in that regard it is merely stated that the respondent signed that agreement “under duress”. The respondent then referred to clause 7.1.2 of the settlement agreement which related to the authority of the applicant to receive payments from sugar mills directly and from which monthly instalments could be deducted and the balance that had to be paid over to the respondent. The respondent then stated that the applicant failed to give effect to this clause. He then further referred to certain cases between him and the applicant which he said emanated from the manner in which his accounts were managed by the applicant. The respondent then stated that none of these cases had ever reached the stage of a full blown trial or argument on the merits in court.


  1. In paragraph 6 of his answering affidavit the respondent accused the applicant of, inter alia, failing to deposit money into his account which was due to him, acting without his mandate and to his detriment and generally acting fraudulently in respect of his accounts. He then stated that the spate of cases instituted thereafter pertained to the recovering of monies in compliance with the settlement agreement which was made an order of court. He further stated that the applicant had never denied owing the monies to Kleindoornkop as reflected in (what seems to be) the report by Mr Minti.


  1. In paragraph 10 the respondent referred to his sequestration which he described as a “fraudulent sequestration application”. In this regard he, inter alia, referred to the affidavit by Knafu in which he says that his signature had been forged. I have dealt with this issue above and with the judgment of this court after hearing evidence on the matter. The respondent did not, however, refer to those facts in his affidavit. The respondent further made hay of the fact that in one of the matters there was a judgment against a “Dumisa M. Dhlamini” and that since he is “Dumisa M. Dlamini”, that judgment does not refer to him. The respondent referred in support of this contention to what the honourable Ellis AJ allegedly had said in this particular matter. I am satisfied by what the applicant had put up in reply, that no such support exists.


  1. The respondent concluded, in paragraph 10.12, that “(w)herefore there is now no judgment debt against me. Therefore there is no basis for the fraudulent sequestration. Further there had been no documents to prove any claims in my estate”.


  1. In paragraph 11 the respondent dealt with the liquidation of Kleindoornkop. However, the respondent only refers to the liquidation of 12 June 2002. That liquidation, as was indicated above, was set aside by de Vos J on 25 July 2002. The respondent consequently holds the view that Kleindoornkop had not been liquidated and that he is the sole member of that close corporation. The respondent did not refer in his answering affidavit to the subsequent liquidation of Kleindoornkop at the instance of the applicant.


  1. In paragraph 12 of his answering affidavit the respondent referred to a notice in terms of Rule 35(12) of the Uniform Rules of Court which he issued against the trustees and the proved creditors on 13 April 2006 in case number 1399/03 which he referred to as “the fraudulent sequestration matter”. He further stated that he requested statements and documentation, that the fraud and forgery perpetrated in that matter had been reported to the Judge President and the Master of the High Court and that the South African Police Services were investigating the matter.


  1. Paragraph 13 of the answering affidavit also relates to the request for documentation from the trustees, the attorneys and other institutions. The respondent also alleged that the Swaziland Development and Savings Bank is indebted to him in an amount exceeding R46 million. I must admit that I find this paragraph, as most of the others, quite unintelligible.


  1. In paragraph 14 to 16 the respondent merely noted that all the disputes between him and the applicant relate to the payment of money and that he had never received the money which the applicant said that he had received and that the applicant had refused to produce the documents to prove that the money had actually been lent and advanced to him. He then stated that “it is imperative to note that all the over cases instituted in 1998 to date, between the applicants respondents and Kleindoornkop Boerdery CC 1987/008027/23 have never reached a stage of a full trial.” (sic) The respondent then referred to a list of all the cases currently pending before this court. That list is, however, not part of the annexures to the answering affidavit.


  1. In paragraph 17 the respondent accused the applicant of disrupting the respondent’s matters in the past “by removing cases which had be set down and/or removing cases without the respondent and Kleindoornkop Boerdery CC’s mandate.” A letter that the respondent referred to in this regard is dated 6 October 2003. It is not necessary to refer to the contents thereof.


  1. In paragraphs 18 the respondent accused the applicant of having total disregard for court orders as well as the rules of this court. In this regard he stated the following:

18.1 The applicants do not file any pleadings when it suits them. In fact they disrupt the proceedings by standing up in court when the matter is heard and proceed to make submissions. Their counsel disrupted the court proceedings in case 1399/03 heard on the 24 April 2007.

18.2 Whereafter the court order issued on the 24 April 2007 was forged and ABSA Bank was cited as the intervening creditor.” (Sic)


  1. The last paragraph, paragraph 20 of the answering affidavit, is the only paragraph which dealt with the founding affidavit filed on behalf of the applicant. However, only six brief statements were made. The respondent stated that the applicant constantly prevented his matters from being properly adjudicated to finality in the High Court; that the applicant owed the respondent and Kleindoornkop in excess of R160 million excluding interest and that he has audited reports which were never disputed and/or challenged by the applicant; that the respondent and/or Kleindoornkop never actually received and/or utilised the moneys allegedly loaned and advanced by the applicant; that Kleindoornkop was used to create an impression that the applicant had loaned and advanced certain monies to it; that the applicant must produce tangible proof to unequivocally prove that the respondent and Kleindoornkop actually received all the sums of monies allegedly loaned and advanced by the applicant; that the respondent only requires that his matters must be heard by the court and that out of all the numerous cases, not one matter has reached the stage of trial or was argued on the merits.


  1. In the last unnumbered paragraph of the affidavit it was submitted that the application be dismissed with costs and it was stated that the applicants have grossly abused this court and other law enforcement agencies.


RESPONDENT’S ADDRESS:

  1. During the hearing of this matter Mr Dlamini, the respondent, addressed the court in person. At the start of the hearing the respondent directed my attention to two notices which he had served on the applicants. The one is in terms of rule 7(1) and the other in terms of rule 35(12) of the Uniform Rules of Court. I shall deal with these issues later.


  1. At the commencement of the hearing and also during the course of the argument on the merits of the application, the respondent handed up further documents to which the representatives of the applicant objected. I have referred to these documents above. These documents are not relevant to the present application except for one which seems to indicate that Kleindoornkop is not in liquidation and is still operating. I do not know the origin of this document which, according to its contents, is clearly in conflict with the court orders which were properly placed before this court. This document does not constitute evidence and I have, in any event, serious doubts about the authenticity thereof. For example, a stamp on the document which purports to be a stamp from the Registrar of Companies and of Close Corporations, contains two serious spelling mistakes. Although it is not necessary for purposes of the present application to make any finding in respect of this document, this issue will probably not end here.


  1. The respondent delivered a long address to the court. He took me through the history of events and accused the applicant of defrauding him. He said that they never accounted to him and never paid him the money to which he was entitled. In regard to the second settlement agreement of 1999, presumably the one made an order of court by Stafford DJP, he blamed his attorneys by name who failed, inter alia, to secure senior counsel’s presence at court. At this point advocate Robinson SC objected to the respondent addressing issues which were not contained in the papers before the court and to the evidence which the respondent was giving from the bar.


  1. The respondent continued to take me through the history of events and submitted that he had complied with the court orders but that the applicant had failed to do so. He submitted that the applicant had been in contempt of the court’s orders all along and that this lead to the destruction of the empire that he had built. The respondent referred to certain of the annexures to the answering affidavit which he submitted supported his contentions that the applicant had failed to transfer money to him as they were supposed to do. The respondent referred in particular to the statement by Mr Minty who investigated his financial position vis-a-vis the applicant. According to Mr Minty the applicant owed the respondent in excess of R100 million up and until 31 October 2001. At present, according to the respondent, the applicant owes him approximately R160 million and he said that Mr Minty has the documentation to prove this. In fact, he had forwarded these documents to the applicant and neither the applicant nor its auditors had challenged this report.


  1. From the report of Mr Minty, who is apparently an accountant and tax consultant from Nelspruit, which was annexed to the answering papers, it appears that the bulk, if not all, of the money allegedly owed to the respondent by the applicant, emanates from the alleged actions of the applicant prior to 1998. The report by Mr Minty merely contain statements to this effect and there is no manner by which the veracity thereof can be tested. It also does not deal with the agreements reached between the respondent and the applicant during 1998 and 1999.


  1. The respondent also referred to a memorandum dated 14 May 2002 which was drafted by junior counsel for the attention of senior counsel. In this memorandum junior counsel set out the history of events as he saw it as well as the allegations of the respondent in respect of his disputes with the applicant. According to the respondent, this memorandum demonstrates the unfair and unlawful manner with which the applicant had dealt with him. This memorandum, however, merely contains some of the factual allegations and conclusions of the respondent. It is by no means an analysis of the real factual position and it does not purport to prove or support the factual allegations of the respondent. It obviously also does not constitute evidence. I might be wrong, but it would seem that this memorandum probably prompted the spate of legal proceedings during 2003 which, inter alia, attempted to set aside the order of Stafford DJP in 1999 and to revive the disputes between the applicant and the respondent and Kleindoornkop relating to their accounts.


  1. The respondent reiterated that no case had been brought to finality and that, consequently, it is the same as if he had “brought nothing to the court”. To stop him from proceeding would cause him to lose billions of Rand.


  1. The respondent also referred to a remark made by the honourable Visser J in one of the earlier applications and submitted that the present application against him, consequently, “was born from the bench”. It was as a result of this fact, according to the respondent, that he launched an application against the Minister of Justice, the Chief Justice of South Africa, the Judges President of a number of divisions of the High Court, and others, interdicting them from preventing him from bringing his matters to court. The respondent was referring to matter number 40185/2007 to which I have referred to above as one of the matters which the respondent wished to have me adjudicate. I shall refer to this matter again below.


  1. The respondent referred to the number of documents or pages of documents to support his contention that the applicant, the liquidators, the attorneys and all others who acted against him, were and are still acting fraudulently, are using forgeries and are generally acting unlawfully. He also speaks of a “forgery inside the court” and of court orders used against him that were forgeries.


  1. I have listened carefully to the respondent and I have looked at the documentation that he referred to and also to those that he did not refer to but that were attached to his answering papers. I have also studied the papers in the respondent’s application against the Minister of Justice and others. I must also add that much of what the applicant has placed before me are not referred to in this judgment. It is simply impossible to do so in a matter of this magnitude but that does not mean that I have not considered all the evidence and other allegations that have been placed before me.

CONCLUSION:

  1. Having regard to the evidence placed before me and the submissions made on behalf of the parties, I can come to no other conclusion than that the applicant has made out a proper and sufficient case for the relief claimed in the Notice of Motion. The applicant needed to merely show a prima facie right to the relief it is claiming. In my view the applicant has shown much more.


  1. Throughout the years, the respondent exhibited a contemptuous disregard of the court, its officials and its orders. He persistently instituted legal proceedings against the applicant and, what is more, for the most these matters related to issues which had been settled and in respect of which orders had been made. He simply disregarded such orders. Attempts to set aside orders, which attempts had been found by the court to be groundless, did not stop the respondent from instituting similar proceedings again. During 2007 the respondent has initiated approximately 40 different legal proceedings against the applicant, including applications, urgent applicants, six warrants of execution, contempt applications, applications for judgment, applications for access to information according to the Promotion of Access to Information Act and finally an application for interdictory relief against the respondent, its legal advisors, judges – not only of this court but of other courts, including the Honourable Chief Justice and the Honourable Minister of Justice. Everyone of these matter which had come before the court had been unsuccessful. It was submitted on behalf of the applicant that whenever a matter comes before court, and for reasons that are self-evident, the respondent’s contentions are rejected, his applications either dismissed or removed or struck from the role for non-compliance with the provisions of the rules of court and/or the practice directives of this court, but most importantly, simply because they are all without any merit whatsoever.


  1. I wish to touch upon an aspect which I have mentioned before. The respondent persists with the attitude that he had been defrauded and that he had generally been the victim of unlawful conduct, both by the applicant and by his own legal advisers. According to the respondent he didn’t owe any money to the applicant prior to 1999 and that, as a result of the applicant’s unlawful conduct since that time, the applicant presently owes him millions or even billions of Rand. The respondent persists with the attitude that he had never been given a hearing and that no court had ever properly adjudicated the disputes between him and the applicant.


  1. I have referred above to the salient features of the litigation history between the parties. I have also stated that it was impossible for me, on the evidence before me, to establish what had actually happened to many of the legal proceedings that had been instituted in order to have these very disputes adjudicated. In this regard I can say two things on the evidence before me. Firstly, some of the disputes have in fact been adjudicated, but the respondent prefers to ignore the orders that had been made against him. Secondly, even if some of them issues had not been brought to finality, this court is not in a position to do so as was requested by the respondent. In fact, whether it would be possible to revive any outstanding matter, is a question which I cannot answer at this point on the evidence before me. In this regard I should point out that it appears that many judges have tried to convince the respondent to obtain legal advice and court orders had even been made to assist him in this regard. The respondent, however, disregarded and refused this advice and assistance. He also prepares his own pleadings which are generally unintelligible and which do not address the real issues at hand and do not place the necessary facts before the court. As such his pleadings, at least the ones I have seen, generally do not establish a legitimate cause of action.


  1. Whatever the merits may be in respect of any of the allegations of the respondent, the fact remains that the respondent is presently an unrehabilitated insolvent and that Kleindoornkop has also been liquidated. As such, the respondent simply does not have the locus standi to pursue any claim against the applicant, either in his personal capacity or in his representative capacity and Kleindoornkop also lacks the ability to pursue any claim on the say-so of the respondent. For the same reason they lack the locus standi to issue or pursue any legal process of whatsoever nature.


  1. The respondent’s attempts to appeal or set aside the insolvency orders, all failed. Yet, the respondent proceeded to institute legal proceedings as if nothing happened. The respondent had been made aware of the fact that he does not have the authority to litigate as before, but he presses on regardless. The plethora and multiplicity of legal proceedings instituted by the respondent, have, for the most, been shown to be without any merit whatsoever. Those that have not been finally adjudicated appear to suffer from the same fate. In this regard it is not even necessary to refer to the factual merits of these legal proceedings. The mere fact that the respondent does not have the required locus standi, means that none of these proceedings have any prospect of success and neither would any further proceedings which the respondent might institute in future, in whatever capacity.


  1. The plethora of proceedings instituted by the respondent have now reached the stage where they are clearly intended to harass the victims in order to extort money from them. He is clearly utilising the court, its processes and its officials in his vendetta against the applicant. The respondent has over and over been made aware of the court orders against him, but most importantly, of his lack of locus standi. Yet, the respondent ignores all this. His actions clearly constitute an abuse of the process of this court and it furthermore causes the applicant and the other victims of these actions enormous prejudice in defending themselves against such a torrent of abuse. The respondent steadfastly insists that he had been defrauded and it is clear that nothing will steer him from the course that he has set for himself, not even orders of this court. One of many examples in this regard is that he continued to issue writs of execution in the face of the clear interdict of Hartzenberg J. These actions of the respondent constitute vexatiousness and in this regard he should be stopped.


  1. A further difficulty in the litigation of the respondent is that all the costs orders that have been made by this court against him, could not be enforced for the reason that he is an unrehabilitated insolvent and, in any event, because he avoids payment thereof. In this regard it may be mentioned that the respondent refuses to inform the applicant of the address where he resides or work so that legal process could be served on him. When I asked the respondent during his address about this issue, the respondent avoided the issue by saying that the applicant can serve their documents on the address that he had given them. However, that address is the business address of a so-called internet café in Sunnyside, Pretoria. The respondent was quick to add that the address, and the authority of the owner of that business to receive documents on his behalf, in any event only holds good in respect of existing matters where he had specifically given such permission to the applicant. It therefore comes as no surprise that in one matter this court had made an order for substituted service. The respondent may possibly be entitled to withhold his physical address from someone like the applicant, although I do not wish to express a view on this, but with the history between these two parties, this conduct by the respondent is plainly aimed to obstruct and harass.


  1. Although I have referred to all types of proceedings above, I should possibly referred to the issue of warrants of execution in more direct terms. Regarding the issue of warrants of execution I agree that the applicant has shown that it is entitled to the relief sought and that it is indeed imperative that this court comes to the assistance of the applicant to prevent the issuing of further unlawful warrants of execution, particularly where such warrants are authorised by the Registrar of this court.


  1. Regarding the requirements of a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is finally granted and that the balance of convenience should favour the applicant and that the applicant has no other satisfactory and adequate remedy, I am satisfied that the applicant has more than adequately made out a case in this regard. No more is needed than what has already been stated above apart from stating that the injury to the applicant is very real and is ongoing. The applicant also has no adequate alternative remedy. A claim for financial losses would be futile. The harassment in the form of vexatious proceedings and the abuse of other legal proceedings can only be prevented by the type of order envisaged in this application. I am furthermore satisfied that unless this court makes such an order, the actions of the respondent will continue as before. I am also of the view that it is not only the applicant that is the victim of the respondent’s conduct but that the court and its officials have also become the victims and targets of the respondent. This court will not close its doors to a litigant lightly, but a time does come when the conduct of a litigant is so contemptuous that the court will bar a litigant access to the court or otherwise “screen” the litigant’s case before allowing it to proceed. In my view the applicant has made out a case for the relief sought in this regard and in my view the order by this court should also relate to matters in other divisions of this court. It would seem that the respondent has been litigating and proposes to litigate in other divisions of this court as well. This is, at least, evident from the application under case number 40185/07.


The Application under case number 40185/07:

  1. I have mentioned that this application was placed before me by the respondent for adjudication together with the present application of the applicants. Although this application of the respondent had been placed on the unopposed roll for later this month, I am of the view that I should accede to the request by the respondent and dispose of this application in these proceedings as it constitute nothing more than the counter side of the present application. In fact, it appears from the respondent’s own statements that this application was prompted by the fact that he knew that the applicant would launch, or is in the process of launching, the present application.


  1. Regarding the merits of his application, the respondent, inter alia, referred to a remark made by the honourable Visser J in one of the earlier applications and submitted that the present application by the applicant against him, consequently, “was born from the bench”. It was as a result of that fact, according to the respondent, that he launched his application against the Minister of Justice, the Chief Justice of South Africa, the Judges President of a number of divisions of the High Court, and others, interdicting them from preventing him from bringing his matters to court. The relief is aimed at, inter alia, interdicting and restraining the respondents from allowing an application in terms of the Act against a number of entities, and from preventing them to have a fair public hearing before a court, and declaring himself and the other entities cited as applicants, to have the right to have any dispute resolved before a court of law.


  1. Regarding the reference to the alleged remark by the honourable Visser AJ, the applicant showed that the Judge merely enquired whether he can mero motu apply the Act in respect of vexatious proceedings, but that after address by counsel, the matter was left at that. It was further pointed out that by then the applicant had already commenced with the preparation for the present application. Consequently, so it was submitted on behalf of the applicant, the application against the Minister of Justice and others, were totally misconceived and should be dismissed with costs.

  1. The respondent made a number of submissions to support his contention that the judges of this division are responsible for the applicant’s present application, and he also submitted that the applicant “is in partnership with the courts”, but it is clear that the applicant either does not understand, or does not want to understand, what actually occurred during the court proceedings that he referred to.


  1. The affidavit supporting the respondent’s application, contained very little else than had been stated in the answering affidavit of the present application and that had been restated during the respondent’s address in court. He, inter alia, again referred to the signing of the settlement agreement in 1999 which he alleged had been signed under duress. He accused his legal representatives of treachery and trickery by negotiating a settlement agreement without his knowledge. He further stated that it is imperative that the court affords him the opportunity to have his matters heard and that the purpose of the application is to stop an injustice.


  1. I am satisfied that there is no merit whatsoever in the respondent’s application and that it should be dismissed with costs. Insofar as it may be necessary for purposes of the taxation of costs, not much time was spent on this application as a separate application. I would estimate that approximately 30 minutes of the hearing had been spent in referring to this application.

The “application” in terms of Rule 7(1):

  1. In a Notice in Terms of Rule 7(1) dated the ninth of October 2007 and bearing the stamp of the Registrar of this court dated 10 October 2007, the respondent notified the applicant that it “brings into question the authority of the Deponent Glen Anthony Cooper whom deposed an affidavit on behalf of the applicant. The respondent further brings into question the authority of the attorneys acting on behalf of the applicant Lowndes Dlamini Attorneys whom purport to act on behalf of the applicant”. The notice further required Mr Cooper to produce a duly authorised power of attorney on behalf of the applicant and a number of other people. The notice also required the applicant to produce a duly signed resolution and power of attorney by all the judges in the Transvaal provincial division, Natal provincial division and Cape provincial division “authorising him to interdict the respondent on their behalf”. The applicant was further required to produce a duly signed resolution and power of attorney to act on behalf of all Registrars of this court “authorising him to depose to the application on their behalf in view of the prayers sought in the applicant’s notice of motion”. Certain other demands were also made.


  1. This Notice is clearly an abuse of the process of this court. Firstly, it was served on the applicant at 16:00 on the afternoon before the commencement of this hearing. Secondly, the authority of Mr Cooper to act on behalf of the applicant and to appoint their legal representatives, was never in issue and the necessary averments and proof thereof, are contained in the founding papers. Ex abundanti cautela advocate Robinson handed up a power of attorney covering all necessary aspects.


  1. Secondly, the respondent’s demand for the resolutions and powers of attorney relating to the judges of the different divisions and the registrar of this court, evinces a total misconception of the relief sought in the applicant’s application.


  1. Consequently, apart from not constituting an “application” as the respondent would have it, the Notice should be set aside as an irregular proceeding and/or an abuse of the process of this court. I shall deal with the issue of costs below.


The “application” in terms of Rule 35(12):

  1. In a Notice in Terms of Rule 35(12) dated the 14 September 2007, filed at the registrar on 25 September 2007 and served on the applicant’s correspondent attorneys on the same date, the respondent required the applicant to produce a plethora of documents.


  1. The respondent’s attitude was that this notice should be complied with before the matter could continue. I indicated that I would hear submissions in this regard together with the submissions on the main application and make a ruling thereon as part of the judgment.


  1. On behalf of the applicant this Notice was attacked on a number of grounds. In the main it was submitted that this Notice is an abuse of the process of court and entrenches the need for the granting of the relief sought in the main application.


  1. The first ground of attack related to the timing of the notice. In this regard it was shown that the notice was only served after the respondent had filed his answering affidavit and that he had consequently dealt with the application without these documents. The respondent therefore did not require the documents for purposes of filing his answering affidavit nor for “the specific purpose of considering his position”. (Cf Unilever Plc & Another v Polagric (Pty)Ltd 2001(2) SA 329 at 336 I). Accordingly, so it was submitted, the respondent had abandoned any rights which he may have had in terms of Rule 35(12), which rights were, in any event, not conceded. I agree with this contention.


  1. The second ground of attack related to the documents themselves. Rule 35(12) only entitles a litigant to call for documents which are referred to in an affidavit. However, none of the documents sought in the aforesaid Notice, were referred to in the applicant’s founding affidavit. It is therefore clear that, for this reason alone, the Notice is an abuse and that the applicant was not obliged to furnish the documents sought therein.


  1. The second ground of attack related to the relevance of the particular documents sought. Subrules (1), (3) and (11) of Rule 35 specifically refer to the issue of relevance whereas subrule (12) contains no such limitation. However, this does not mean that relevance is not an issue. In Gorfinkel v Gross, Hendler & Frank 1987 (3) SA 766 (C) at p773H the honourable Friedman J stated the following:

It is nevertheless to my mind necessarily implicit in Rule 35(12) that there should be some limitation on the wide language used. One such limitation is that a party cannot be compelled under Rule 35(12) to produce a document which is privileged. ... With regard to relevance there must also, in my view, be some limitation read into Rule 35(12). To construe the Rule as having no limitation with regard to relevance could lead to absurdity. It would be absurd to suggest that the Rule should be so construed that reference to a document would compel its production despite the fact that the document has no relevance to any of the issues in the case.”


  1. It is not necessary, in my view, to discussed the aforesaid principles any further. The documents sought by the respondent have no relevance whatsoever to the issues in dispute and to the relief sought by the applicant. The documents sought, relate to the facts of each and every financial transaction between the parties since 1993 to date. Original documents of accounts, cheques, statements, minutes of meetings, agreements, et cetera, were sought. I would imagine that the documentation envisaged in this Notice would run into a few thousand pages but that many, if not most of these documents, probably no longer exist or never existed at all.


  1. This total lack of relevance to the present proceedings constitute an abuse and the applicant is not obliged to furnish the documents sought therein.


  1. The applicant also attacked the Notice against the background of the fact that two similar, if not identical, requests have already been filed by the respondent in other and different proceedings. In this regard it was submitted that the respondent is opportunistically and improperly searching for an avenue to obtain discovery of documents in circumstances where he is not entitled thereto. Apart from this it was submitted that this process is fatally defective in that the respondent, as an unrehabilitated insolvent, is seeking discovery of documents of an entity, Kleindoornkop, which he simply has no capacity to the present, which is not a party in these proceedings and which is in any event finally wound up. It is not necessary for me to make a comparison with the requests in other legal proceedings but I agree with the statement in regard to the locus standi of the respondent.


  1. Consequently, I am of the view that this Notice should also be set aside as an irregular proceeding and/or an abuse of the process of this court.


  1. As far as costs of both Notices are concerned, it was submitted on behalf of the applicant that costs should follow the result and that the respondent must pay the costs de bonis propriis despite the fact that the respondent is not possessed of any assets whatsoever in his sequestrated estate with which to meet such adverse order for costs. It was further submitted that the costs order should include the costs of two counsel.


  1. I agree with this submission. I have already found that the respondent, despite having been made aware of the fact that his conduct constitutes an abuse and is vexatious, continues to harass the applicant and others with never ending and unmeritorious legal processes causing them enormous embarrassment and prejudice in defending themselves against such a torrent of abuse. The respondent furthermore seems to place “ facts” before the court in a very selective manner. This has the potential of causing a court hearing a matter to come to a wrong and potentially prejudicial decision. Defendants and applicants are consequently forced to, at great expense, patrol the courts and study the rolls of the courts so as to prevent such a situation from arising.


  1. Insofar as it may be necessary for purposes of the taxation of costs, I would estimate that approximately 20 minutes of the hearing had been spent in respect of the argument relating to the Rule 7(1) Notice and approximately 40 minutes in respect of the argument relating to the Rule 35(12) Notice.

  1. In the result I make the following order:


  1. An order is made staying all proceedings instituted by the respondent in this court:

    1. in his personal capacity; or

    2. in any representative capacity in terms whereof he purports to represent any legal entity whatsoever; and in particular

    3. in terms whereof he purports to represent Boerdery CC, Registration No. 87/08027/23 (in liquidation) (“Kleindoornkop”); Geelspruit Boere (Pty) Limited (“Geelspruit”); Richtershoek Boerdery (Pty) Limited (“Richtershoek”); Marina Lodge (Pty) Limited (“Marina”);


including but not limited to the following matters:


The application by Kleindoornkop against the applicant under case number 18225/98 set down on the opposed roll for 12 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 18836/98 set down on the opposed roll for 18 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 15751/07 set down for hearing on the opposed roll for 21 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 33030/07, enrolled for hearing on the opposed roll on 31 October 2007;


    1. The application by Kleindoornkop against the applicant under case number 33077/07;


    1. The application by the respondent against the applicant under case number 33245/07, enrolled for hearing on opposed roll of 8 November 2007;


    1. The application by the respondent and Kleindoornkop against the applicant under case number 36772/07;


    1. The application by the respondent and Kleindoornkop and the applicant under case number 33240/07, enrolled for hearing on the opposed roll of 5 February 2008;


    1. The application by Kleindoornkop against the applicant under case number 35163/07, enrolled for hearing on the opposed roll on 6 November 2007;


    1. The application by the respondent and Kleindoornkop against the applicant under case number 37050/07;


    1. The application by Kleindoornkop against the applicant under case number 35162/07, enrolled for hearing on 14 February 2008;


    1. The application by the respondent against the applicant under case number 33243/07;


    1. The application by Kleindoornkop, Geelspruit, Richtershoek and the respondent against the applicant under case number 35161/07;


    1. The application by Geelspruit against the applicant under case number 33241/07;


    1. The application by Richtershoek against the applicant under case number 35358/07;


    1. The application by Richtershoek against the applicant under case number 33242/2007;


    1. The application by the respondent against the applicant under case number 36865/2007;


    1. The application by Kleindoornkop against the applicant under case number 18225/98;


    1. The application by Marina and the respondent against the applicant under case number 36866/07;


    1. The application by the respondent against the applicant under case number 35359/07;


    1. The application by the respondent against the applicant under case number 33244/07;


    1. The application by Kleindoornkop against the applicant under case number 18836/98;


    1. The application by Geelspruit against the applicant under case number 35160/07;


    1. The application by Kleindoornkop against the applicant under case number 15751/07 (and against Messrs JH Botha and PJ Hefferman);


    1. The application by Kleindoornkop against the applicant and others under case number 12429/07


(hereinafter referred to as “the actions and/or applications”).


  1. An order is made interdicting and restraining the respondent and all who purport to act on his behalf from launching and/or instituting and/or issuing and/or pursuing any further or existing actions and/or applications, notices in terms of such actions and/or applications, subpoenas in respect of such actions and/or applications, any warrants of execution whatsoever and/or any other legal process against the applicant, any Judge of this court or any other court and/or the Registrar of this court or any other court or inferior court or presiding officer of such court.


  1. An order is made directing that the relief as set out above, operate pendente lite, the lis being the final determination of an action, alternatively an application, to be instituted by the applicant against the respondent and/or other relevant party within 20 (twenty) court days from date of granting of this order, for relief in terms of section 2 of the Vexatious Proceedings Act, Act 3 of 1965 (as amended) in terms whereof the applicant will seek an order against the respondent that he shall not, for an indefinite period of time, institute any legal proceedings against the applicant in any court or inferior court without the leave of the court or any Judge thereof or presiding officer of that inferior court, as the case may be, and/or for such other relief as the applicant may be advised to seek.


  1. An order is made that should the applicant fail to institute such proceedings within the time period set out in the previous paragraph, then the orders sought in paragraphs 1 and 2 above shall automatically lapse and be of no further force and effect.


  1. An order is made that the costs of this application (case number 41460/07) shall be costs in the action and/or application contemplated in paragraph 3 above and it is further ordered that should the applicant not institute the proceedings timeously or at all, that the applicant shall pay the costs of this application.


  1. It is further ordered that for purposes of service upon the respondent of the proceedings mentioned above, the applicant shall be entitled to serve such proceedings on the respondent at the following address:

Awa and Sons Internet Café, Central Corner, 84 Esselen Street (Corner Celliers Street), Sunnyside, Pretoria.”


  1. The application under case number 40185/07 is dismissed with costs which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 30 minutes of court time had been spent on this issue.


  1. The Notice in Terms of Rule 7(1) dated the 9th October 2007 filed on behalf of the respondent is hereby set aside and it is further ordered that the costs relating to the aforesaid Notice, as well as the costs relating to the opposition thereof including the costs of the hearing relating to this issue, shall be paid by the respondent de bonis propriis, which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 20 minutes of court time had been spent on this issue.


  1. The Notice in Terms of Rule 35(12) dated the 14th September 2007 filed on behalf of the respondent is hereby set aside and it is further ordered that the costs relating to the aforesaid Notice, as well as the costs relating to the opposition thereof including the costs of the hearing relating to this issue, shall be paid by the respondent de bonis propriis, which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 40 minutes of court time had been spent on this issue.



CASE NO: 41460/07

HEARD ON: 11 AND 12 OCTOBER 2007

FOR THE APPLICANT: ADV ROBINSON SC

ADV AMM

INSTRUCTED BY: LOWNDES DLAMINI ATTORNEYS

C/O ADAMS AND ADAMS


FOR THE RESPONDENT: MR DM DLAMINI (RESPONDENT IN PERSON)


DATE OF JUDGEMENT: 23 OCTOBER 2007
















23 October 2007

Coram: Rabie J


The following order is made:

  1. An order is made staying all proceedings instituted by the respondent in this court:

    1. in his personal capacity; or

    2. in any representative capacity in terms whereof he purports to represent any legal entity whatsoever; and in particular

    3. in terms whereof he purports to represent Kleindoornkop Boerdery CC, Registration No. 87/08027/23 (in liquidation) (“Kleindoornkop”); Geelspruit Boere (Pty) Limited (“Geelspruit”); Richtershoek Boerdery (Pty) Limited (“Richtershoek”); Marina Lodge (Pty) Limited (“Marina”);


including but not limited to the following matters:


The application by Kleindoornkop against the applicant under case number 18225/98 set down on the opposed roll for 12 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 18836/98 set down on the opposed roll for 18 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 15751/07 set down for hearing on the opposed roll for 21 September 2007;


    1. The application by Kleindoornkop against the applicant under case number 33030/07, enrolled for hearing on the opposed roll on 31 October 2007;


    1. The application by Kleindoornkop against the applicant under case number 33077/07;


    1. The application by the respondent against the applicant under case number 33245/07, enrolled for hearing on opposed roll of 8 November 2007;


    1. The application by the respondent and Kleindoornkop against the applicant under case number 36772/07;


    1. The application by the respondent and Kleindoornkop and the applicant under case number 33240/07, enrolled for hearing on the opposed roll of 5 February 2008;


    1. The application by Kleindoornkop against the applicant under case number 35163/07, enrolled for hearing on the opposed roll on 6 November 2007;


    1. The application by the respondent and Kleindoornkop against the applicant under case number 37050/07;


    1. The application by Kleindoornkop against the applicant under case number 35162/07, enrolled for hearing on 14 February 2008;


    1. The application by the respondent against the applicant under case number 33243/07;


    1. The application by Kleindoornkop, Geelspruit, Richtershoek and the respondent against the applicant under case number 35161/07;


    1. The application by Geelspruit against the applicant under case number 33241/07;


    1. The application by Richtershoek against the applicant under case number 35358/07;


    1. The application by Richtershoek against the applicant under case number 33242/2007;


    1. The application by the respondent against the applicant under case number 36865/2007;


    1. The application by Kleindoornkop against the applicant under case number 18225/98;


    1. The application by Marina and the respondent against the applicant under case number 36866/07;


    1. The application by the respondent against the applicant under case number 35359/07;


    1. The application by the respondent against the applicant under case number 33244/07;


    1. The application by Kleindoornkop against the applicant under case number 18836/98;


    1. The application by Geelspruit against the applicant under case number 35160/07;


    1. The application by Kleindoornkop against the applicant under case number 15751/07 (and against Messrs JH Botha and PJ Hefferman);


    1. The application by Kleindoornkop against the applicant and others under case number 12429/07


(hereinafter referred to as “the actions and/or applications”).


  1. An order is made interdicting and restraining the respondent and all who purport to act on his behalf from launching and/or instituting and/or issuing and/or pursuing any further or existing actions and/or applications, notices in terms of such actions and/or applications, subpoenas in respect of such actions and/or applications, any warrants of execution whatsoever and/or any other legal process against the applicant, any Judge of this court or any other court and/or the Registrar of this court or any other court or inferior court or presiding officer of such court.


  1. An order is made directing that the relief as set out above, operate pendente lite, the lis being the final determination of an action, alternatively an application, to be instituted by the applicant against the respondent and/or other relevant party within 20 (twenty) court days from date of granting of this order, for relief in terms of section 2 of the Vexatious Proceedings Act, Act 3 of 1965 (as amended) in terms whereof the applicant will seek an order against the respondent that he shall not, for an indefinite period of time, institute any legal proceedings against the applicant in any court or inferior court without the leave of the court or any Judge thereof or presiding officer of that inferior court, as the case may be, and/or for such other relief as the applicant may be advised to seek.


  1. An order is made that should the applicant fail to institute such proceedings within the time period set out in the previous paragraph, then the orders sought in paragraphs 1 and 2 above shall automatically lapse and be of no further force and effect.


  1. An order is made that the costs of this application (case number 41460/07) shall be costs in the action and/or application contemplated in paragraph 3 above and it is further ordered that should the applicant not institute the proceedings timeously or at all, that the applicant shall pay the costs of this application.


  1. It is further ordered that for purposes of service upon the respondent of the proceedings mentioned above, the applicant shall be entitled to serve such proceedings on the respondent at the following address:

Awa and Sons Internet Café, Central Corner, 84 Esselen Street (Corner Celliers Street), Sunnyside, Pretoria.”


  1. The application under case number 40185/07 is dismissed with costs which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 30 minutes of court time had been spent on this issue.


  1. The Notice in Terms of Rule 7(1) dated the 9th October 2007 filed on behalf of the respondent is hereby set aside and it is further ordered that the costs relating to the aforesaid Notice, as well as the costs relating to the opposition thereof including the costs of the hearing relating to this issue, shall be paid by the respondent de bonis propriis, which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 20 minutes of court time had been spent on this issue.


  1. The Notice in Terms of Rule 35(12) dated the 14th September 2007 filed on behalf of the respondent is hereby set aside and it is further ordered that the costs relating to the aforesaid Notice, as well as the costs relating to the opposition thereof including the costs of the hearing relating to this issue, shall be paid by the respondent de bonis propriis, which costs shall include the costs of two counsel. For purposes of taxing the costs pertaining to the hearing relating to this issue, it is noted that a time period of 40 minutes of court time had been spent on this issue.