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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

 

IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

                                                                                                 CASE NO. EL 537/2020

                                                                                                        Reportable 

In the matter between:

N[…] P[…]                                                                                Applicant   

And

L[…] P[…] P[…]                                                                       Respondent   

JUDGMENT

MBENENGE JP:

Introduction

[1]        This is an application in terms of section 47(1) of the Superior Courts Act 10 of 2013 for leave to sue the respondent for a protection order in terms of the Domestic Violence Act 116 of 1998[1] and for the applicant’s spousal maintenance, and that of the parties’ minor offspring.  Section 47(1) reads:

“Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court and no subpoena in respect of civil proceedings may be served on any judge of a superior court, except with the consent of the head of that court. . .”

[2]        The respondent retired from active service as a judge during 2016.  According to the papers, the applicant and the respondent were married to each other by civil rites, in community of property, on 17 August 2005.  The marriage produced a girl child and a boy child, born on 19 September 2004 and 22 June 2007, respectively.

[3]        Currently, the applicant and the respondent are estranged from one another.  The applicant resides in Gonubie, East London, in the parties’ matrimonial home, whilst the respondent stays in Port Edward, KwaZulu-Natal.  Since the announcement of the national lockdown, he has been staying there for some time.  Pending before the Regional Court, East London, is an action, brought by the respondent against the applicant in October 2019, for the annulment of the parties’ marriage.  The action is being defended by the applicant.  Around the same period, the applicant obtained an interim protection order against the respondent.  The order was, however, discharged on the return date, 12 December 2019, the Magistrate concerned having been of the view that the applicant had not obtained the consent of the Judge President before suing the applicant.  I shall deal with the substantive issue regarding section 47 later in this judgment.

Background

[4]        Resulting from the discharge of the interim protection order, on 4 February 2020, the applicant caused to be penned, through her attorneys of record, a letter whereby my consent “in order to lodge [an] application [for a protection order at the East London Magistrate’s Court]” was being sought.  Paragraph 2 of the letter captures the essence of the request.  It is worded:

“2.        Judge P[…] issued summons against his wife in October 2019.  Mrs P[…] reports that this was followed by various acts of intensified domestic violence acts including but not limited to threats of unlawful eviction from the matrimonial home, refusal of her husband to maintain her and to supply adequate household necessities and school requirements of their 2 minor children, aged 12 and 15 years old, damaging the door and the lock to her bedroom resulting in her opening a criminal case against him on 13 February 2020, per case No. 49/01/20.”

[5]        The receipt of the letter triggered the invocation of the traditional process explained by Ngoepe JP in N v Lukoto[2] as follows:

“. . . Normally, it is the Judge President who would receive such an application, and consider it in Chambers.  This mechanism would quietly dispose of patently frivolous claims which might unjustifiably damage the reputation of a Judge.  Where there appears to be at least an arguable case, the Judge President would approach the Judge concerned.  In appropriate circumstances, the Judge President might even urge the judge to oblige; for example, where there is a clear debt against the Judge.  The Judge President would impress on the Judge concerned that those who are the ultimate enforcers of the law must themselves make every endeavour to observe it; also of importance is to avoid the appearance of a Judge as litigant in court, particularly in the lower courts.  Where there seems to be an arguable case against the Judge the latter remains recalcitrant, the Judge President would give the Judge the opportunity to oppose the application for leave to sue him/her.  The matter may then be disposed of in Chambers or in an open court, depending on the intensity of the opposition.”

[6]        On 10 February 2020, I wrote to the applicant’s attorneys, acknowledging receipt of her request, assuring her that the matter was receiving attention and pointing out that “[t]he intention [was] to give Judge P[…] a hearing, as it would not be proper to take a decision (not on the merits) without affording him the opportunity to make representation in relation to the invocation of section 47 . . .”

[7]        On 11 February 2020 the applicant’s attorneys wrote me another letter worded:

“1.        We have been instructed by Mrs N[…] P[…], the wife of Judge P[…] to lodge an application in the regional court in East London in terms of rule 58(I) of the Magistrates’ Courts Rules in respect of the following orders pending the final determination of the divorce proceedings instituted by the Judge in the East London Regional Court under case No. EC/EL/RC762/19:

1.1 an order directing the Judge to pay interim maintenance for Mrs P[…] and their 2 minor children, Y[…] S[…] who is 15 years old and P[…] L[…] who is 12 years old;

1.2 an order directing the Judge to pay for the school requirements of Y[…] and P[…];

1.3 an order directing that the Judge contribute towards the legal costs of this application and those of the application for a protection order in terms of the Domestic Violence Act 116 of 1998.”

[8]        Both letters were forwarded to the respondent, on 13 February 2020, with an invitation that he makes representations.

[9]        Through his attorneys of record, the respondent made written representations.  The representations were embodied in a letter that I received on 20 February 2020.  The respondent raised a preliminary point that the request constituted “mere barebones with no factual matrix to support them.”  On the merits, the respondent, inter alia, stated:

“. . .The applicant is not employed and refuses to work.  How did these children manage to grow up without food and why did the applicant not approach court then for maintenance?  How did they progress at school to be in the present grades?  Who paid their school fees and other school dues?  The applicant knew that this information is pertinent to the application but she decided to withhold it.  The only inference is that she knows that the application is not genuine, is frivolous and seeks to tarnish the reputation of Judge P[…].  Why?  Because she has no answer to the summons seeking nullity of the marriage on the ground of non-discloser that she had not divorced the first and third husband before Judge P[…].  Clearly, the application is a mere smoke screen used as a subterfuge to revenge against Judge P[…] for removing her from the marriage. . . .The applicant is folding arms and enjoying fruits of labour of Judge P[…].  Now, she has all the temerity to ask for maintenance for herself and children when they are sufficiently supported.”

[10]      I immediately forwarded the respondent’s response to the applicant’s attorneys, whilst at the same time inviting the applicant to favour me with her reply, if any, by 24 February 2020.  The applicant’s attorneys responded on 28 February 2020, stating that she would be back at her office on 3 March 2020.  She sought an indulgence to furnish me with a reply on 4 March 2020.  The reply was indeed received on the promised day; therein, mention was made that the facts were, by and large, common cause; the applicant had stated what acts of domestic violence had been committed and why she is in need of maintenance.  It was furthermore mentioned that the applicant was of the view that the request met the requisite threshold.  Annexed to the reply was an excerpt from the relevant magistrate’s court proceedings revealing that the applicant’s quest to sue the respondent was thwarted when, on 12 December 2019, the Magistrate, East London dismissed the applicant’s suit for lack of compliance with section 47 of the Superior Courts Act.

[11]      Thereafter, having invited the parties to decide on whether they wished to make oral submissions or written submissions, the parties, presumably hit by the lockdown, resurfaced on 25 April 2020, on which date the applicant’s attorney copied my secretary a letter she had written to the respondent’s attorney, worded thus:

“RE: LOCKDOWN DIRECTIVES REGARDING CORONA VIRUS

In view of the above difficulties currently prevailing, I request the Judge President to allow us to submit written as against oral submissions as initially requested.  The response was that we discuss and agree on a date to make the written submissions.

Mrs Malgas advised me that she tried to reach you on your cell phone yesterday 24 April [2020], without success.  I also tried to reach you in vain.

Kindly advised whether the 28th April [2020] will be a suitable date for you to make the written submissions, if not kindly propose a suitable date.”

The parties eventually adopted the stance that the correspondence already exchanged between them sufficed to enable me to decide on the matter.

[12]      Upon considering the documents, I penned a letter to the respondent’s attorneys, on 20 May 2020, which reads:

1.    I refer to the request made by P N Letlaka and Co. on behalf of Mrs N[…] P[…] to lodge an application against Judge P[…] in terms of rule 58(1) of the Magistrates’ Courts Rules of Court for interim maintenance and other relief ancillary thereto.

2.    The request is said to be in terms of section 47(1) of the Superior Courts Act 10 of 2013, which makes it incumbent on any person bent on instituting civil proceedings by way of summons or notice of motion against any judge to seek the consent of the head of court.

3.    Much as Judge P[…] is no longer a judge in active service, having gone on retirement some time ago, a case might be made that he is, for all intents and purposes, a judge within the meaning and contemplation of section 47 (1) of the Superior Courts Act. I say this because one might contend that a judge holds office until the judge is discharged from active service in terms of an Act of Parliament (section 176 of the Constitution) - an argument which is not, for present purposes, relevant.

4.    From a reading of the letter underpinning the request and the correspondence exchanged between the parties’ attorneys, there does appear to me to be, at the very least, an arguable case against Judge P[…].  This is especially so if one has regard to the fact that the contemplated proceedings relate to a pending action, and involve children.

5.    In light of the view I take of the matter, it is incumbent on me to approach Judge P[…] and urge him to accede to the consent sought.  That step is, notwithstanding the stance adopted in the correspondence currently serving before me, crucial.  It would not be prudent to expose a judge (even one no longer in active service) to a formal application for consent, without a nudge being made for him to put his house in order.

6.    In these circumstances, you are requested to convey to Judge P[…] my desire to meet with him for the purpose of urging him to accede to the consent sought.  Should your instruction be that the judge is unwilling to accede to the consent, kindly advise me so, to enable me to advise P N Letlaka & Co. attorneys to lodge a formal application for consent, without ado.

7.    I shall be obliged if your response to this letter could reach my desk via my secretary, Ms Malgas, by noon tomorrow, Thursday, 21 May 2020.”

A copy of the letter was, for the sake of transparency, transmitted to the applicant’s attorneys, for their information.  I interpose here to mention that, even at that early stage, the matter of whether section 47(1) of the Superior Courts Act finds application in the case of a retired judge greatly exercised my mind, hence I couched paragraph 3 of the letter the way I did.

[13]      In a response that ensued, I was informed that the respondent had been locked down in KwaZulu-Natal and that “if a permit by [my] office could be dispatched to his secretary he could travel [on the same day] so that he could meet [me on the following day].”

[14]      On the following day (21 May 2020), I caused a letter to be written to the respondent’s attorneys wherein I stated that it was not necessary that the proposed meeting take place in my office; a telephonic conference sufficed.  To that end, I requested the respondent’s attorney to furnish me with the respondent’s cell phone numbers, which came to pass on 22 May 2020.

[15]      On the same day (22 May 2020), duly mandated thereto by me, my secretary sent an email to the respondent informing him that in terms of the applicable regulatory framework I am empowered to issue permits only to judges for purposes of performing duties as part of an essential service,[3] and not otherwise.  Later that day, I contacted the respondent telephonically, urging him to consider acceding to the applicant’s quest for consent to sue him.  My stance was informed principally by two factors, namely that the respondent is already a plaintiff in pending action proceedings involving himself and the applicant, and that the matter involved minor children.  I informed the respondent as much.  He said he could accede to the applicant’s quest purely as a mark of respect for me, and not otherwise; he persisted in his stance that the intended suit was frivolous.  As a result of that stance, I did not press further with my request.  We parted on the understanding that the applicant would be best advised to resort to a formal application which would thereby afford the parties the opportunity to ventilate themselves, under oath.

[16]      Resulting from the above, and on the same day (22 May 2020), I caused my secretary to write a letter to the applicant’s attorneys pointing out that the next prudent step would be the lodging of a formal application for consent on the basis of which I would pronounce on the matter.  I had become convinced that there would be intense opposition and that, therefore, the matter had better serve in open court.  This approach is in line with that followed by Mlambo JP in Engelbrecht[4], where it was held:

“[6]       I considered the correspondence from Engelbrecht and from the judge and advised Engelbrecht’s attorneys that I was disinclined to grant consent based on the correspondence at my disposal.  I advised that should Engelbrecht be so inclined he was at liberty to pursue the matter formally through a court process where both parties would be afforded the opportunity to file affidavits and advance submissions.  I indicated that I would thereafter consider the matter and dispose of it as I saw fit.”

For the sake of transparency, a copy of the letter was transmitted to the respondent’s attorney, at 16:31.

The application

[17]      The instant application was eventually duly lodged on 02 June 2020.  The applicant seeks, by way of urgency, an order that consent be granted to her “to institute civil proceedings [for a protection order and for maintenance] against the respondent in a court of law with jurisdiction to adjudicate upon such proceedings, whether by way of summons, notice of motion or other appropriate manner.”

[18]      The respondent thereupon caused to be delivered a notice to oppose and an affidavit solely contending that the application lacks urgency.  On the date set for moving the application (9 June 2020), the respondent’s attorney, Mr Mgxaji, mandated thereto by the respondent, applied, from the Bar, for my recusal on the basis that I had previously indicated that the case was fairly arguable.  The recusal application was refused on the ground that it did not meet the threshold[5].  By its nature, and as already pointed out, the invocation of section 47(1) involves a measure of interaction between a Judge President and the Judge concerned, in the event of the Judge President being of the view that there is, at least, an arguable case.

The applicant’s case

[19]      The applicant has alleged that she had, prior to the marriage, been gainfully employed and involved in a business undertaking as a member of a Close Corporation. The income derived from her employment and the business venture assisted in the home upkeep.  She says, due to the respondent’s inconsiderate disposition towards her, she stopped running the Close Corporation and became a housewife.

[20]      There are two incidents that the applicant refers to in support of her allegation of physical abuse meted out by the respondent on her.  The one took place in 2012 during which she says she was badly assaulted, so much so that she had to consult Dr Hanah in Gonubie.  The other is said to have occurred in 2017, on which occasion she sustained injuries to her face.  She went to report the assault at Gonubie police station.  In no time, the respondent joined her there.  In the course of that, they ended up being addressed by the Station Commander.  As a result of that, she did not press for assault charges against the respondent.

[21]      Then came 3 October 2019, when the applicant obtained an interim protection order against the respondent.  It is not clear from the applicant’s version as to what precipitated the grant of the interim protection order.  She has alleged that after obtaining the order, the respondent sent her a text message on her cell phone, giving her an ultimatum to vacate the matrimonial home on pain of being evicted therefrom by force, were she to resist.  He did not offer her any alternative accommodation.  She took refuge in the interim protection order and continued staying in the matrimonial home.  She was informed by “the investigating officer” that her application for a protection order was dismissed on 12 December 2019.

[22]      After the respondent had launched proceedings for the annulment of the marriage, the applicant entered an appearance to defend the action.  This, says the applicant, agitated the respondent.  He became abusive towards her and the children.  He also ceased sleeping in the common bedroom and slept in the guest room.  He no longer partook of food prepared by her, preferring to eat food prepared by their daughter.  At some point, he picked up a quarrel with his daughter and stopped supplying her with her school necessities, basic necessities of life, transportation and sport uniform, paying only for her school fees.  Ultimately, the respondent left for Port Edward.  Prior to the lockdown, he intermittently returned to Gonubie, but would occupy the guest room.  To date, the guest room remains locked.  She has no access thereto.  Ever since his departure, the respondent has been sending them money that does not suffice for the sustenance of the family, considerably compromising their standard of living.

[23]      The applicant also makes reference to allegations of psychological and emotional abuse on the part of the respondent.  For instance, she says:

“The respondent constantly undermines our self-esteem and self-worth, by making degrading comments about myself and the children.  For instance he will call the children ‘nonentities, gold-diggers, pigs etc.’ he makes demeaning remarks to the children about me with the sole purpose of affecting the children’s opinion of me telling them that my intention is to steal his estate . . .

Respondent does not expect or encourage the children to freely express their views when talking to him.  When they do express their sentiment to him, he labels that as lack of respect, which invariably ends up with derogatory insults to the children.  He would make utterances that he is disowning them for lack of respect and stripping them with the small amounts of money that he is supporting them with until he decides to send them money at his preferred time not when they are in need of the money for basic necessities.”

The respondent’s case

[24]      In his opposing affidavit the respondent contends that the maintenance that the applicant is laying claim to is not only the subject of pending annulment proceedings, but that she has no right to being maintained because the marriage from which the obligation to maintain her springs is void ab initio.  He further alleges that the applicant is temperamentally aggressive and extremely sensitive.  On occasion, she has assaulted their son and once broke the toilet lid in the course of engaging physically with him.  When remonstrated with she would aggressively turn towards the respondent and hurl insults at him.

[25]      According to the respondent, the marriage was beset by upheavals soon after the knot had been tied.  Instances of how the applicant misbehaved towards him and other family members are cited.  The applicant has, on many occasions, acted irrationally towards him.  He cites, inter alia, an instance when the two of them had been travelling by car.  The applicant, all of a sudden, grabbed the steering wheel of the car, resulting in the car swerving to the extreme left side of the road.  The applicant could not explain this despicable behaviour.  He believes that she has no value for his life and is after his estate because as a surviving spouse she stands to benefit when he dies.  The nullity action deprives her of that expectation, hence she is desperately engaged in every effort to tarnish his reputation.  She has, according to the respondent, also accused his “elder children” born pre-maritally to the applicant, of practising witchcraft, and their mother of being a concubine.

[26]      Otherwise, the essence of the opposition is captured in the respondent’s opposing affidavit as follows:

“The applicant is controverting the abuse, physically and emotionally, she had meted out to me for all these years as being … a victim of abuse.  I never abused the applicant but instead she did.  I have treated her well at all material times and she has always commended me as the best husband.  She is now creating all this mess about me because she probably did not expect that I would be tired of her abuse and take her out of the marriage, otherwise I am innocent.”

[27]      The respondent claims to have, at all relevant times, supported the applicant with every necessity of life.  The story about him not maintaining his children is a fabrication.  He has been sending no less than R5 000 a month to which must be added R3 500 towards pre-paid electricity and other unspecified amounts towards the bond repayment, clothing, transport fees and gardening.  The respondent alleges that he has not lowered the standard of living of his children.  He also contends that it is incumbent on the applicant to join the labour force and also contribute towards the maintenance.

[28]      Attempts he made for them to receive counselling from a Johannesburg based pastor, says the respondent, proved futile, with the applicant even vilifying the pastor and referring to him as a satanist.  This, according to the respondent, caused “the present circumstances which led to the nullity action and these proceedings.”

[29]      Ever since the respondent left the matrimonial home, he lives alone under horrible conditions with no electricity because the house he occupies in Port Edward is still under renovation.  He cannot travel to the Eastern Cape to consult his doctor to issue him with a new script for chronic medication.  He laments that the applicant lives comfortably in a house whose building she never contributed to; she is fabricating lies against him so as to receive the protection of the law.  She deprives him of enjoyment of a good life for which he has worked hard.  He further states that the matrimonial home is his house and nobody has the right to preclude him from occupying it as and when he wants to.  He says he will break any obstruction that blocks his entrance into the house, especially deliberate obstruction.  He explains how it came about that he had to break open the security gate.  He says when he was at some point about to leave the premises, the gate could not open and he broke it because it was getting late and he was under pressure to leave.  There was no risk of security compromise because the door is lockable and the remote-operated gate is further locked with a padlock.

[30]      The respondent gives an account in relation to the visitation at Gonubie Police Station.  He says the applicant went to lay a charge of malicious damage to property, and not otherwise.  The breaking of a door by its owner does not constitute an act of domestic violence.  He is not surprised that the Public Prosecutor declined to prosecute him for malicious injury to property.

[31]      Apropos the school transport, the respondent contends that the confusion that resulted in the alleged non-payment was caused by the applicant.  She had contracted a Mrs Margolius to transport their child.  Whilst that arrangement subsisted the applicant also contracted with a Mrs Vanessa Snyman for the same transport without informing him.

[32]      I tried as best as I could to traverse the factual matrix of the case, in the hope that I have not, in so doing, gone overboard.

Issues for determination

[33]      At the hearing of this matter, Mr Mgxaji, quite correctly in my view, did not persist in the contention that the application lacked urgency.  Indeed, both complaints relating to abuse and for the maintenance of minor children fall to be dealt with as expeditiously as possible.  It is not in dispute that the proceedings the applicant intends launching against the respondent are civil proceedings within the meaning and contemplation of section 47(1).

[34]      Against the background presented above, it becomes necessary to tabulate the issues that fall to be determined in this application, namely-

(a)       whether good cause justifying the grant of consent has been           demonstrated;

(b)       whether, upon its proper interpretation, section 47(1) applies to a judge who is no longer in active service; and

(c)        what order should be made.

Has good cause been shown?

[35]      The court has to determine whether good cause has been shown in an application to institute proceedings against a judge[6].  What constitutes “good cause” will depend on the facts and circumstances of each case[7].  The approach of the courts has always been to refrain from adopting an exhaustive definition of “good cause” in order not to abridge or fetter in any way the wide discretion implied by these words[8].  Relying on Torwood Properties (Pty) Ltd v South African Reserve Bank[9] the Court, in Engelbrecht, went further to mention that in the context of an application for consent to sue a judge the court has to consider whether on the facts before it an arguable case calling for an answer by the judge is made out and whether it is fair, just and equitable between the parties to grant or refuse consent[10].

[36]      The relief that the applicant intends seeking against the respondent is two-pronged.  First, it is for protection against domestic violence allegedly meted out by the respondent and, second, for her maintenance and that of the parties’ minor children.

[37]      On the papers serving before me, there is a dispute of fact in relation to whether or not the applicant has been subjected to domestic violence by the respondent.  The applicant claims she has been the subject of abusive conduct, whilst the respondent denies that and, instead, contends that he is the one who has, all the past years, been suffering at the hands of the applicant.  My task is to consider whether the proceedings for which consent to litigate is sought contains a justiciable issue[11].  Indubitably, in the context of a marriage, the version of the applicant is not a far-fetched or fanciful one.  The dispute between the parties contains a justiciable issue.  The same conclusion goes for the dispute of fact relating to whether or not the respondent has shunned his responsibility to maintain his children.

[38]      The marriage between the applicant and the respondent is extant; it has not yet been annulled.  One of the invariable consequences of the marriage is the duty on the part of the respondent to maintain not only his children but, in the circumstances of this case, the applicant, as well[12].  The applicant is perfectly entitled to seek maintenance even for herself, pending the finalisation of the annulment proceedings.  It is hard to fathom how, in those circumstances, the applicant may be referred to as being bent on launching a frivolous claim for her maintenance.  In the letter of 11 February 2020 referred to in paragraph 7 above, mention is made of a quest, on the part of the applicant, to launch proceedings pedente lite for her maintenance and that of the parties’ offspring.  Rule 58(1) of the Magistrate’s Court Rules, which permits that, is akin to rule 43 of the Uniform Rules.  The applicant’s notice of motion is, however, worded differently; it makes no reference to pending proceedings.  In any event, and purely for the sake of caution and completeness, it is worth stating that where a judge (retired or otherwise) has instituted action against a party, that party does not require the consent of the Judge President to institute a counter- claim or any interlocutory application pending the finalisation of the suit.

[39]      But for the interpretation of section 47(1), which is what I cross to deal with shortly, I would not have hesitated to grant the applicant the leave to sue she is seeking, even ex abudanti cautela.

The interpretation of section 47(1)

[40]      When the matter was being heard, I mero motu raised the question whether, properly construed, section 47(1) applies to a retired judge.  Put differently, whether the consent of a Judge President is required before civil proceedings by way of summons or notice of motion may be instituted against a retired judge.

[41]      It is indeed so that the section refers to “any judge”, and does not draw a distinction between one who is retired and one who is still in active service.

[42]      “Judge” is also not defined in the Superior Courts Act (the Act).  It therefore becomes necessary to consider the section both purposively and contextually.  In Secretary for Inland Revenue v Sturrock Sugar Farm (Pty) Ltd[13] Ogilvie Tompson JA put the principle for the judiciary to apply beyond doubt, when he stated:

“Even where the language is unambiguous, the purpose of the Act and other wider contextual considerations may be invoked in aid of a proper construction.”

In keeping with this principle, the South African courts have, where the scope of a provision in a statute appeared to be wide, restricted the ambit or extended same in order to give effect to the manifest purpose of the Act.

[43]      The courts have also had to look at the preamble of the Act or at other express indications in the Act as to the object that has to be achieved or studied the various sections wherein the purpose may be found[14].  For this reason, words have been construed as strictly limited to the immediate objects of the Act.

[44]      The oft-quoted dissenting judgement of Schreiner JA in Jaga v Dönges, N.O. and another[15] also cited with approval by Ngcobo J in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others[16] eloquently articulates the importance of context in statutory interpretation this way:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.  But it may be useful to stress two points in relation to the application of this principle.  The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted.  Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”[17]

[45]      According to its long title, the Act makes provision for “the administration of the judicial functions of all courts.”  Section 2 of the Act sets out the objects and interpretation of the Act.  Section 2(1)(c) also states the objects of the Act as being to make provision for “the administration of the judicial functions of all courts.”  When one considers the Act in its entirety, one finds that it is about the governance and running of courts.  Central to the Act are the functions of the heads of court, including the Chief Justice.  No stretch of imagination is required for one to conclude that, within the scheme of the entire Act, retired judges do not feature in the running of the courts.

[46]      On at least two previous occasions, the courts have had the opportunity to deal with the purpose of section 47 of the Act.  In Soller[18] an application to declare section 25(1) of the (now repealed) Supreme Court Act 59 of 1959 unconstitutional, it was held:

“. . . The oath which Judges take upon assumption of office requires of them to adjudicate matters fearlessly.  This they can only do if protected against non-meritorious actions.  Judges should not, in the execution of their judicial functions, be inhibited by fear of being dragged to court unnecessarily over their judgments.  Such a threat could have a chilling effect on the execution of their duties. . . .Furthermore, Judges should rather spend time hearing matters than defending themselves against endless unfounded civil claims. . . .”

(Own emphasis).

[46]      The same approach was adopted in Engelbrecht[19], where the court stated:

“. . . In essence the section seeks to insulate judges to unwarranted and ill-conceived legal proceedings aimed at them.  The need to protect judges from unwarranted litigation is not difficult to fathom.  The core function of judges is the adjudication of disputes involving competing interests daily. . . . ”

(Emphasis supplied).

[47]      Clearly, the comments highlighted above are apposite in the situation of a judge in active service, and not one who no longer discharges judicial functions.  This conclusion is fortified by the wording of section 47(2) of the Act, which reads:

“Where the issuing of a summons or subpoena against a judge to appear in a civil action has been consented to, the date upon which such judge must attend court must be determined in consultation with the relevant head of court.”

[48]      It must thus be concluded that, besides offering protection to judges against unmeritorious claims arising from the execution of their judicial functions, the section is aimed primarily at protecting judges against improper interruptions of the courts’ functioning.  A suggestion that section 47(1) applies to retired judges effectively renders nugatory the provisions of section 47(2), the wording of which is plain.  Read in the context contended for, the interpretation accords with the provisions of section 9(4)(a) of the Act which gives responsibility to the head of court “to ensure that sufficient judges of that court are available to conduct the business of the court at all times that the court is open for business.”

It is also not conceivable that a head of court would, when assigning cases and other judicial duties to judges in her/his division or determining the sitting schedules and places of sittings for judges[20], be disrupted in the event of not being consulted for a date of hearing of proceedings against a retired judge.  This is especially so in the case of proceedings before the Magistrate’s court.

[49]      For all these reasons, section 47(1) must be read to refer to judges who are in active service.  The qualified immunity provided by the section does not apply to a retired judge, unless the intended proceedings arise from the execution of judicial functions by such judge at a time when she/he had been called upon to act as such or to finalise matters allocated to her/him during active service.  None of those exceptional scenarios arises here.

[50]      Therefore, the applicant does not need my consent in order to sue the respondent.

[51]      Before concluding, it behoves me to caution that this judgment should in no way be construed as suggesting that once a judge retires from active service, she/he loses the status of judge.  Context is everything.  For instance, whilst judges hold office until they are discharged from active service[21], those who may be called upon to perform judicial duties (as acting judges) remain under a duty to act honourably and in a manner befitting their status[22].  All activities of a judge no longer on active service must be compatible with her/his status as a retired judge[23].  A judge discharged from active service must not accept any appointment that is likely to affect or be seen to affect the independence of the judiciary, or which could undermine the separation of powers or the status of the judiciary and must not receive any income incompatible with judicial office; act as an advocate, attorney or legal adviser; and be involved in any undertaking, business, fundraising or other activity that is incompatible with the status of a judge[24].  The honour and dignity that attends upon judgeship follows one for life.

What order should be made?

[52]      Both Mr Louw, counsel for the applicant, and Mr Mgxaji, were in agreement that in the event of it being found that section 47(1) does not apply to retired judges, the application ought not to be dismissed.  I agree.  It is necessary, in the circumstances of this case, to issue an order that will ward off any confusion in relation to the interpretation of the section.  This court has the power to supervise the manner in which lower courts discharge their functions[25].  That role can be fulfilled with an order of a declaratory nature being granted, coupled with an order directing that the matter be dealt with on an expedited basis.

[53]      The question of costs remains.  This is a family dispute involving minor children.  If one has regard to the fact that the issue that has effectively disposed of this matter was not raised by any of the parties, none of the parties may be said to have been successful.  In any event, considerations of equity and the circumstances of this case justify a no order of costs.

[54]      I make the following order:

1.    The applicant does not need the consent of the head of this court before instituting civil proceedings against the respondent for-

(a)   a protection order in terms of the Domestic Violence Act 116 of 1998; and

(b)   the applicant’s maintenance and that of the minor children born of the marriage between the applicant and the respondent.

2.    The Registrar of this Court is directed to bring this order to the attention of the Chief Magistrate (Cluster A) for her to ensure that the matter is placed before a Judicial Officer and dealt with on an expedited basis.

3.    There shall be no order of costs.

________________

S M MBENENGE

JUDGE PRESIDENT OF THE HIGH COURT

Counsel for the applicant               :           S S W Louw

Attorney for the applicant               :           Letlaka & Co. Attorneys

                                                                   East London

Attorney for the respondent           :           S L Mgxaji

Instructed by                                   :           Mgxaji Inc.

Mthatha

C/o Nomjana Attorneys

East London

Date application heard                   :           23 June 2020

Date judgment delivered                :           02 July 2020

(by electronic mail in terms of paragraph 68 of the Eastern Cape National State of Disaster Management Directions)

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