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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

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

Case no. 1776/01

Date heard: 17/4/14

Date delivered: 15/5/14

Not reportable

In the matter between:

XOLILE SPEELMAN …..................................................................................................... Applicant

and

MAUD-ESTHER FUNDISWA DADA …................................................................First respondent

KHAYA MBEKENI …..........................................................................................Second respondent

VIOLA MBEKENI..................................................................................................Third respondent

PIET MEYER ….................................................................................................. Fourth respondent

RENé VILJOEN........................................................................................................ Fifth respondent

DEON MATTHEE....................................................................................................Sixth respondent

Application to review decision of magistrate and other relief – application procedurally defective – case not made out for any of the relief claimed – application dismissed with costs.

JUDGMENT

PLASKET J

[1] By summons dated 5 October 2007 and issued out of the Magistrate’s Court, Graaff-Reinet, Ms Maud-Esther Dada (the first respondent) sued Mr Xolile Speelman (the applicant) for damages arising from a defamatory statement that she alleged he published about her. The trial was heard by magistrate Deon Matthee (the sixth respondent). He duly delivered a judgment in which he found that Speelman had defamed Dada. He made an order in which he awarded Dada damages of R5 000, interest on that amount, costs of suit and directed him to apologise to Dada.

[2] That judgment set in motion a chain of events that has culminated in this judgment. Speelman, it would appear, refused to accept the correctness of the judgment. His attempts to appeal against it came to naught. He laid complaints to a number of official bodies against virtually everyone involved in the case. Those too came to naught. He even had a question asked about the matter in the Eastern Cape Provincial Legislature. He also filed voluminous papers in this court concerning a wide range of grievances, all of which stem from his dissatisfaction with the outcome of the defamation matter.

[3] What this court has before it – to put is as generously as possible – is a complaint that the magistrate acted irregularly in the defamation matter as well as a range of other issues. This matter has been struck off the roll or postponed on a number of occasions because the papers were not in order and the procedure followed by Speelman was defective.

[4] That is still the case. It seemed to me, however, that the papers were not going to be improved in order to achieve the standard or the degree of clarity that one would want and that the matter had to be brought to finality, one way or the other. As I was willing to treat the matter as including an application in terms of rule 53 of the uniform rules – a review of the magistrate’s decision – I arranged for my brother Brooks AJ to sit with me, as required by rule 19(b)(ii) of the Joint Rules of Practice for the High Courts of the Eastern Cape Province.

[5] Speelman indicated, when the matter was called, that he wished the matter to be dealt with. Mr Wolmarans, who appeared for the magistrate and Ms René Viljoen (the fifth respondent), was similarly willing to have the matter finalised. (It would appear that Viljoen is the court manager of the Magistrate’s Court, Graaff-Reinet, but why she has been cited as a respondent is not apparent to me.) I understand why Dada has been cited as a respondent but I am mystified as to why her son, daughter and attorney were dragged into this matter. In order to finalise the matter, we were prepared to condone the absence of an index, proper pagination, heads of argument and various other problems.

[6] The papers comprise of what I will describe as five bundles headed ‘Notice of Motion’, ‘Notice of Motion’, ‘Judgement’, ‘Notice to Respond’ and ‘Affidavit’.  Various documents are attached to the primary document of each bundle – letters, often of a complaint of some sort, and responses thereto; parts of the record of proceedings; copies of section of statutes and regulations; the code of judicial conduct; a question to and reply from the MEC for Education in the Provincial Legislature concerning the matter; a protection order successfully applied for by Dada against Speelman and an unsuccessful application by him for its variation.

[7] In addition, a number of loose documents are in the file.  They include the record of the proceedings in the defamation matter (parts of which are to be found in the bundles); the record of the proceedings in motion court on 13 June 2013, when this matter was removed from the roll; a few letters; and copies of the judgment in the defamation matter and the particulars of claim, both annotated in red ink by Speelman.

[8] I shall endeavour to deal with this matter as follows. First, I shall sketch the background to this application. Secondly, I shall set out the terms of the two documents called notices of motion and the one entitled ‘affidavit’. Thirdly, I shall determine whether Speelman has made out a case for the review of the magistrate’s decision, or any other relief. Finally, I shall make an order that I consider to be appropriate.

The background

[9] The facts giving rise to the defamation action are largely common cause. Dada’s son, Okaya Mbekeni (the second respondent) lived in England. He informed Dada that he wished to help a deserving person in South Africa to work in England for a period so as to gain experience in the tourism industry.

[10] Dada identified Speelman as a suitable candidate. Mbekeni transferred R23 558 into Dada’s account. It was meant to cover the costs of getting Speelman to England. On Mbekeni’s instructions, Dada took Speelman to First National Bank in Graaff-Reinet where an account was opened in his name, but Dada was given authorization to operate the account. She transferred R21 000 from her account into this account. According to the evidence of Dada, an application was made to the British Embassy for a visa for Speelman. He apparently did not qualify for a visa for the purposes of spending a working holiday in England. As a result, the trip fell through.

[11] Dada became aware of the fact that Speelman was making allegations about her that she considered to be false and injurious. As a result, a meeting was arranged at the church that both attended to resolve the problem. At the meeting, however, Speelman accused Dada of fraud. He took minutes of the meeting (which he appears to have distributed widely around Graaff-Reinet) in which he recorded his utterances as follows:

‘I therefore want to say Bishop, my mother, and this meeting, I want to face the consequences that I say now Dada family gained the money so Mrs Dada has done fraud and misused my documents as she even lies to the Bishop of money returned which she can’t prove. So you have frauded and if I must be punished for that let it be.’

[12] He also repeated the allegation that Dada had committed fraud to her superior in the Department of Education, in which she worked as a school inspector.

[13] Dada’s evidence in the trial was that her son had approached her concerning the scheme to assist a deserving candidate to travel to England and work there for a period, and that the money involved was his money: he transferred £1 700 from his account into her account, which converted to R23 558. Of this R21 000 was transferred by her into Speelman’s First National Bank account.

[14] It is not in dispute that Speelman published the defamatory matter at both the meeting and in the letter to Dada’s superior. He made it clear, however, that the opening of the account in his name by Dada could not have had a prejudicial impact on him: he already had a Standard Bank account and he understood that the money that Dada transferred was not his.

[15] What emerges from his evidence is that when the plans for him to travel to England collapsed he was, understandably, disappointed. It also caused him embarrassment because he had ‘bragged to so many people’ about the opportunity he had got to travel overseas. Towards the end of his examination in chief, he admitted to writing letters to various people about what had happened, including to Dada’s superior, and that he had done so in order to ‘redeem’ his ‘honour’.

[16] He demonstrated when cross-examined that he knew exactly what message his allegations were meant to convey. Fraud, he said, meant ‘a dishonest trick’, a ‘breach of confidence against some dishonest advantage, duplicity, cheat, falsehood’. He conceded that by acting fraudulently, a person acts ‘falsely’ and is dishonest.

[17] In the magistrate’s judgment, he made the point that most of the facts were common cause, including the publication of the defamatory matter at the meeting and in the letter to Dada’s superior. He rejected Speelman’s defence of fair comment, making the following findings in the course of concluding that Speelman was liable for defaming Dada:

‘1. The defendant published words that alleged that the plaintiff was a fraud and committed the offence of fraud. It is also common cause that publication as required by law took place. (See Exhibit E+F)

2. In applying the reasonable man test with regard to wrongfulness, the court finds that the statements regarding the defendant being a fraud and having committed fraud did not only have the potential to harm her reputation, but in actual fact did harm her reputation. The words therefore were prima facie wrongful.

3. The defence of fair comment raised by the defendant did not meet the prerequisites as set out in our law:

(a) The defamatory remarks do not amount to comment. The defendant stated as a fact that the actions of the plaintiff were fraudulent and that she committed the offence of fraud; to such a nature that he stated that “if I must be punished for that, let be it”. If his statement was intended as mere comment, why did he expect punishment?

(b) The comment was unfair and contra bonos mores. The facts on which the comment is based on the face value thereof give rise to suspicion, but in spite of the plaintiff’s explanation to the defendant on the meeting of 10/07/07, he decided to reject her explanation and make the dreaded statement. The comments in the context of the meeting still had an amount of fairness to it, when the defendant however made the second publication on 23/08/07, he went too far.

(c) It cannot be found that the facts were in the public interest.

4. That the defendant had the necessary animus iniuriandi in this matter. When publication took place especially towards the head of the plaintiff’s department, the defendant went too far. It is evident that he went on a bragging spree when the plaintiff asked him to go and work in England. When this did not realise he made it his business to get the plaintiff back for his hurt feelings. His comments were made with the intent to injure the plaintiff; and his own words “if I must be punished for that let be it”.

The allegations that he was unaware of the wrongfulness of his actions because he was bona fide in thinking that his actions were lawful cannot be justified.’

The notices of motion

[18] From correspondence attached to the various bundles, it appears that Speelman has, in a fashion, attempted to take the magistrate’s judgment on appeal. That matter was brought out of time and was struck off the roll on three occasions as a result of him not appearing. The appeal has now, I assume, been abandoned.

[19] Alongside the judicial process, in the form of the appeal and now this matter, Speelman has waged a vendetta against Dada. At an early stage, he informed the now defunct Scorpions that she had committed an offence. The Scorpions investigated her, subpoenaed her bank records, examined her bank accounts and reported back to Speelman that there was not any evidence of wrongdoing on her part. (This emerged during the course of his evidence in the defamation action.) He later laid a charge of perjury against her, and took this issue up with the Department of Education. The Director of Public Prosecutions in the Eastern Cape, in Grahamstown, declined to prosecute and gave him full and detailed reasons for the decision. He took the matter on appeal to the National Director of Public Prosecutions who confirmed the decision taken in Grahamstown.

[20] He laid complaints against Matthee to the Magistrates Commission. In its response, he was told:

‘In so far as the particular magistrate acted within his judicial capacity, his/her judgment can only be contested within the framework of the court system.

The appropriate course would have been to take the matter on review/appeal to a court of Higher jurisdiction. It is noted that you however elected not to follow this route.

We regret to inform you that the Commission cannot take the matter any further and have closed its file in this regard.’

He also appears to have complained to the Magistrates Commission about administrative members of staff of the Graaff-Reinet Magistrate’s Court but was told that the Commission had no jurisdiction.

[21] He has laid complaints against two attorneys with the Law Society of South Africa. These were unsuccessful. He has referred some or other grievance to the Public Protector.

[22] From the bundle headed ‘affidavit’, it seems he now also has grievances against the Minister of Police, the National Director of Public Prosecutions, the Department of Justice and Constitutional Development Superior Court Efficiency Services, the Department of Education, the Eastern Cape Provincial Legislature and the ‘Public Protector Officers’.

[23] It is necessary to set out these complaints in full. He stated:

‘17. Based on the above: I would like to assure the court that:

i. From the Minister of Police there is no longer a challenge, dispute and opposition to my submission that the SAPS failed the rule of law and thus have acted unconstitutionally, mala fide and unlawfully in perjury Cas178/10/2012; Cas116/10/2013; Cas193/10/2013 and Cas374/10/2013. [G1-G6]

ii. The NDPP Mr Mxolisi Nxasana does no longer challenge, dispute and oppose my submission that together with his Chapter 9 Institution he has acted unconstitutionally, mala fide and unlawfully to violate and contravene Section 179(5)(c) and (d)(i) and other SA legislations as the rule of law may deem henceforth I beg for Just Administrative Action in terms of Sec 33. [Page 1-7 Notice to respond + 20 Annexes].

iii. The Department of Justice and Constitutional Development Superior Court Efficiency Services as was led by Mr Albert Matseba who called me and others: - their Graaff-Reinet Chief Magistrates and all other Magistrates with the Magistrates Commission acted improper, unconstitutionally, mala fide and unlawfully. AND no longer challenge the Defeating the Cause of Justice Cas 374/10/2013 by this department EC officials.

iv. The Department of Education MEC and HOD acted improper, unconstitutionally, mala fide and unlawfully to hide and conceal the crimes of bogus England visa recruitment, false claims, crimen injuria and other crimes that were undertaken by its Inspector Ms Dada/Gala in her offices during working hours while there is the Public Service Regulation which has Code of Conduct. AND to allow that my Triplets daughters should be traumatised in their school multi-racial school by allowing one of them to be FAILED while she has passed and to allow that their school discount-fee should be molested.

v. The Eastern Cape Provincial Legislature acted improper, unconstitutionally, mala fide and unlawfully to put in place its Senior Lawyer Mr Innocent Netshitumbu to handle my many submissions in violation and contravention to its mission and vision and moreover its legislation Evidence and Information before the ECPL Act, 2007 and the pre-warning that “…we will make sure that you do not win…”

vi. The Public Protector Officers still, to date act improper, unconstitutionally, mala fide and unlawfully by hiding my case from Adv Thuli Madonsela who had attempted to intervene.’

[24] This is an appropriate time to deal with these complaints. I have no idea what is meant by them but I assume that because the institutions and functionaries that are the target of Speelman’s ire took decisions that he did not like, he wants declaratory orders that they have variously undermined the rule of law, acted improperly, mala fide, unconstitutionally and unlawfully. To the extent that he wants orders against them, I refuse to make such orders for the following reasons: first, no proper evidence is placed before this court to establish a right to declaratory orders that any of these institutions and functionaries acted improperly, mala fide, unconstitutionally and unlawfully in relation to Speelman (or his daughters in the case of the Department of Education); secondly, these institutions and functionaries were never joined as respondents in this matter; thirdly, Speelman’s papers were never served on them as required by the rules.

[25] I turn now to the two notices of motion. I shall cite the greater part of the first in full. It states:

‘I, the undersigned;

i) XOLILE SPEELMAN, ID Number […], do make an oath that I am an applicant, an adult male person who resides in Graaff-Reinet; 1836 Chris Hani Village.

ii) On the 07^th February 2012 the EC Judge President had instructed me inter alia that: “You are at liberty to place the matter before court again for a judicial decision if you still want to pursue it” [A]

iii) I attempted to do so on the 23^rd August 2012 where it was ruled I go to appeal at Graaff-Reinet Magistrates Court which has sent me back again to the High Court on the 26^th March 2013 [B1 + B2] that it cannot grant me a Leave to Appeal for late filling.  Lateness was beyond my abilities but I have acted during the 20 days duration and was not successful due to the fact that; to that Graaff-Reinet Magistrates Court appearance I was represented of which the following obstruction, barriers and hindrances had blocked:

a) Soon after trial, my legal representative ordered me that he will withhold the file up until I finish paying him off all the outstanding amount of legal fees and by thus was such file withheld for 3 consecutive months and was released when I have reached the amount of R11 300 as was calculated by that legal representative clerk who got a go ahead from that legal representative that she can give me the file back because it was December 2009 already when firms and companies and businesses will close.

b) However, [C1 – C6]; D, E, F & G as dates confirm respectively – are my attempts to still proving my actions within that 20 days time duration but still finances and costs were the obstruction, barriers and hindrances.

c) The Legal Aid SA [H1 &  H2] which answered me in November 2009 had unfortunately denied me legal assistance as I had just begun in the fixed term employment at the EC Provincial Legislature.

d) On basis of the abovementioned submissions; if I am required to further explain and exhibit what I have done between 2010 till now – I will gladly do so openly. I just want to prove to the SA Rule of law my valid commitments and honour to the 20 days period I have done and can prove the latter evidence to be exhibits with financial implications beyond my abilities and social and economical means – by this I now explain my next and latest appearance at the High Court. 

iv) On the 13^th June 2013 I have appeared in High Court for the application to set aside civil case 1021/07 judgment.

v) It was ruled, inter alia that, although High Court cannot give me legal advice but through the Superior Court Practice Rule 53 that I should direct an application to Graaff-Reinet Magistrate Court so that it reviews its decision and I now do so in accordance to such ruling by the Honourable judge:

INTRODUCTION

An England Visa Recruitments to help needy children was launched in the State’s Offices roundabout April 2007 at the Education Dept in Graaff- Reinet by Inspector of Education ms Maud-Esther Fundiswa Dada/Gala and Anglican Minister’s wife helped by her children Mr Khaya Mbekeni and Ms Viola Mbekeni.  In this England Visa application which took 2 days; the application’s response (a brochure copy) which they maintain is a declaration from Pretoria is undisputed and unchallenged denied by the Pretoria British High Commission to be a non-existent application.  I have then uttered fraud and irregularities as there was a R3000 + R21 000 which they registered in my name informing that it comes from United Kingdom Agents for visa costs.  To this uttering the plaintiffs sued me R50 000 in civil case 1021/07 for alleged damages on letters dated 10/07/07 St Philips Church and 23/08/07 DoE.  They forced me to court so that I defend myself to those claims.

RELIEF SOUGHT IN TERMS OF THE SUPERIOR COURT PRACTICE RULE 53

TAKE NOTICE that as an applicant, I intend to make application to this Honourable Court on a date and at the time to be determined by the Clerk of Graaff-Reinet Magistrates Court for an order in the following terms that I rely on that:

1.  Reviewing and setting aside the judgment orders that have been laid by Magistrate Deon F. Matthee on grounds of errors, mistakes and for being inconsistent with inter alia the RSA endorsed by Parliament legislations.

2.  Reviewing and setting aside the particulars of claims [I1 + I2] that were made by the respondents on grounds of false claims and perjury as confirmed by [I3 – I6] that is stipulated by Section 319 of the Criminal Procudure Act of 1977 as a “Charge for giving false evidence” [I7] and be called “thief” [I8] while there’s no proof with also inter alia the inconsistency to following the RSA endorsed by Parliament legislation: viz

(i) The RSA Constitution 1996 (Act 108 of 1996) – Highest Law.

(ii)  Magistrates Act 1993, (Act 90 of 1993) Regulations.

(iii) Code of Judicial Conduct adopted in terms of section 12 of the Judicial Service Commission Act, 1994 (ACT NO. 9 OF 1994).

(iv) Code of Conduct for the Public Service Regulations, 2001 (Proclamation no 441 of 2001), Chapter 2. 

(v) Prevention and Combating of Corrupt Activities Act 2004.

(vi) Promotion of Equality and Prevention of Unfair Discrimination Act 2000).

3. Reviewing and setting aside the judgment orders by advancing the Promotion of Administrative Justice Act (PAJA), upon which the review of all administrative action must be based as a codification and concretization of the Rights contained in Section 33 of the Constitution of the RSA, 1996 –

JUST ADMINISTRATIVE ACTION

1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

3) National legislation must be enacted to give effect to these rights, and must-

- provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;

- impose a duty on the state to give effect on the rights in subsection (1) and (2); and

- promote an efficient administration.

4.  Reviewing and setting aside the judgement orders that have been laid by Magistrate Deon F. Matthee on grounds of the fact that in order to arrive in judgement all of the four respondents to the case I allege and can prove that they have committed perjury henceforth I have registered the case as number 178/10/2012 at the South African Police.

5.  Reviewing and setting aside the perjury committed and that the Graaff-Reinet Magistrates Court is pleaded to act constitutionally as directed by Code of Judicial Conduct adopted in terms of section 12 of the Judicial Service Commission Act, 1994 (ACT NO. 9 OF 1994) Article 16 Section 1; Reporting Inappropriate Conduct that:

A judge with clear and reliable evidence of serious professional misconduct or gross incompetence on the part of a legal practitioner or public prosecutor must inform the relevant professional body or a Director of Public Prosecutions of such misconduct or professional incompetence. [J1 + J2]

6. Reviewing and setting aside the judgement orders that have been laid by Magistrate Deon F. Matthee on grounds of the fact the prime respondent number 1; being South African Public Servant (Inspector of Education) she has contravened and violated the Code of Conduct for the Public Service Regulations, 2001 (Proclamation no 441 of 2001), Chapter 2, that has effect from 01^st May 2001.  She has also broken, contravened and violated the values and principles that are governing the SA public administration by launching falsely proven England visa in States office as she testified before the Rule of Law that: “...And then we were down there in our old offices...” [K1] Page 3 line 16 but then the answer [K2 – K3] to that recruitment was the unknown and denied brochure [K4] by the British High Commissioner – [K5 - K9] which such act dishonoured and betrayed the SA Public Service Code of Conduct as confirmed by [K10 – K12].  So she used her office to the detriment of the public.

7.  Reviewing and setting aside the judgement orders that have been laid by Magistrate Deon F. Matthee on grounds of the fact the lawyer Mr Piet Meyer has used his profession to the detriment of the public also, the same way the Inspector of Education did; by this he has broken the Ethics of Legal Profession. Whilst the Inspector of Education’s children as South Africans, put the name of SA in disrepute by utilizing and abusing the British material as recorded and filed at the British High Commissioner for illegality being SA citizens. 

8.  Reviewing and setting aside the judgement orders that have been laid by Magistrate Deon F. Matthee on grounds of the fact the particulars of claims by the respondents all of such claims are undisputed and undeniably non-existent as the lawyer Mr Piet Meyer has misled and deceived the court from the onset in his page 1  introduction that:

“MR MEYER: As the Court pleases.  Your Worship all the necessary legal documents have been filed with the Court (indistinct)(door slammed) and all the other necessary documents.  If the Court is satisfied with that Your Worship, it is a claim for defamation for certain allegations the defendant made in written documents to people about the plaintiff and for that matter I will call the plaintiff as a witness before the Court”

This introduction of Mr Piet Meyer has misled and undermined the SA Rule of Law as Mr Piet Meyer had used his legal profession in illegality and in bad faith because it can be proven that no legal document was ever filed: (indistinct)(door slammed) was after he chased my Mother away as if he chased a dog – so that my Mother must not come and listen to the testimony denying her unconstitutionally the Sec 34 ACCESS TO COURT- so he abused his legal profession by violating SA’s Constitution.

9. Reviewing and setting aside the issues of 2^nd and 3^rd Respondents about England Visa for “needy children” to come and work in UK because there has never been work nor was there ever a truthful England Visa. [K1]

10. Reviewing and setting aside the issues of all the Respondents because it is proven that no money was ever used towards the England Visa as the Respondents claim but such money which they have said in recruitment it is from the UK Agents for the England visa, was utilized by them in their own agenda as FNB receipts prove also that no R3000 was forfeited as testified in page 10 – it was paid into the bank account of the Inspector of Education and Anglican Ministers’ wife and that no application was sent by the couriers but a flyer was driven by these couriers. [L1 – L4]

11. I request a Court Order that: all four respondents should apologise to the British High Commissioner for using its material to deceiving the public.

12. I request a Court Order that: the Inspector of Education and Anglican Minister’s Wife should submit a written and signed apology to the HOD of Department of Education for abusing the Department’s Offices to deceiving the public;

13. I request a Court Order that: the Inspector of Education and Anglican Minister’s Wife should submit a written and signed apology to the St Philips Anglican Church for using its name illegally to obtain a R50 000.

14. I request a Court Order that: Mr Piet Meyer should apologise to the SA Law Society about abusing his legal profession in false charges and in perjury and also apologise to the SA Rule of Law respectively.

15. I request a Court Order that: the Inspector of Education and Anglican Minister’s Wife, Mr Piet Meyer, Mr Khaya Mbekeni and Ms Viola Mbekeni should submit such apologies to the SA newspapers so as to make the public aware of their false recruitment a perjury.

16. I request a Court Order that: the respondents amend and pay all the damages and financial recoveries that I had to suffer and have lost in pursuit of the truth ever since April 2007 till now under their false charges, claims and perjury till now.  And that they should be ordered; that they must all be jointly responsible to also pay the costs of this application in a way and manner that: indeed the Bill of Rights “Just Administrative Action” get the constitutional honour and respect it deserves.

17. I request a Court Order that of granting me as the applicant, such further and/or alternative relief as the Court deems fit.’

[26] The second document entitled ‘notice of motion’ adds to the 17 orders that are sought. These additional prayers read as follows:

’18. Reviewing and setting aside the response which has been furnished to the EC Province Department of Education by the Graaff-Reinet Education District Director because this response lacks truth, is just a say of mouth but with now proof and has been provided to the MEC & HOD in a falsified and dishonest manner hence it cannot be proven or oppose my allegation by document.

19. I request a Court Order that that the respondents should admit by being faithful to the law to agree that there is no visa, no church and DoE claims.

20. Reviewing and setting aside the response which has been furnished to the EC Province Department of Education by the Graaff-Reinet Education District Director because WHILE I CAN PROVE BY DOCUMENT, the response is false and has ONLY VERBAL attempts to protect the falsified Particulars of Claim by the respondents and protect the fraud allegations and perjury registered criminal case 178/10/2012 against the respondents as contained.

. . .

20. I submit that the HOD and MEC of EC Department of Education are supposed to ensure and maintain the efficiency management of its administration and of course promoting the Just Administrative Action by adhering to the legislative provisions to suspend the public officer concerned; Inspector of Education and Anglican Minister’s Wife Ms Maud-Esther Fundiswa Dada/Gala who is prime; pending the results of the unfinished civil case 1021/07 and the criminal case of perjury 178/10/2012 because I allege that she is harmful to the public.

21. I request a Court Order that perjury charges should proceed.

22. The awareness of the Department concerning about the Derek Light Attorneys letter dated 05^th September 2012 [Q1] versus a so-called “…stop his personal vendetta and continued harassment/false accusations/defamation against Mrs Dada/Gala…” – is just a threat to me because, in the street when I came across Mr Piet Meyer (lawyer) he has also threatened me about a so-called Contempt to Court which I do not know what is it he is waiting for if he has the legality to that. There are also similar threats [Q2] which have never ever had any practicality and implementation.

23. I ask the court should review and put it straight that it is their falsified acts that have defamed themselves NOT ME. Why did they initially lied and have lodged false claims?

. . .’

[27] I turn now to a consideration of whether Speelman has made out a case for any of the relief that he claims.

Speelman’s entitlement to relief?

[28] For purposes of deciding whether Speelman is entitled to any of the relief he has claimed, I shall place the relief into categories. Prayers 1, 3, 4, 6, 7 and 8 concern the review of the magistrate’s decision. Prayers 2, 9, 10, 11, 12, 13, 14, 15 and 16 concern orders directed at Dada, her two children and her attorney. Prayers 5 and 21 concern a charge of perjury. Prayers 18 and 20 concern orders directed at the provincial Department of Education. Prayer 19 is directed at all of the respondents. Prayer 22 concerns a letter written by Derek Light Attorneys. Prayer 23 concerns an order to ‘put straight’ what Speelman claims to be false claims made by the respondents. I shall deal with the review of the magistrate’s decision when I have dealt with all of the other prayers.

[29] Much as one sympathises with the predicament of lay persons who are forced by circumstance to represent themselves in court, it is necessary for the orderly conduct of the business of the courts to require a minimum level of compliance with procedural prescripts. Judges should, and in my experience generally do, go out of their way to assist unrepresented litigants and also allow them a fair measure of leeway as far as non-compliance with the rules of procedure are concerned. But certain procedural irregularities cannot be overlooked no matter how indulgent one may want to be in order to assist an unrepresented litigant.

[30] In this matter, there has been no proper service on any of the respondents in the sense that there are no returns of service to prove that the sheriff served the papers in accordance with rule 4 of the uniform rules.[1] The problem is compounded by the fact that the second respondent, Dada’s son, apparently lives abroad and the leave of the court was necessary in order to serve on him.[2]  These defects, on their own, are fatal to the relief claimed against the first to fourth respondents. Despite that, and for the sake of completeness, I shall also deal with the merits of the relief claimed against them.

[31] Even though there are no returns of service in respect of the fifth and sixth respondents, the fact that they were represented in the proceedings means that they must have acquired some form of notice and they are not prejudiced by any defect in service on them. Mr Wolmarans, who appeared for them, did not take the point of faulty service. All of that said, however, no relief whatsoever is claimed against Viljoen and I have no idea why she has been cited as a respondent. She simply has no case to answer.

[32] I shall commence with the relief claimed against the Department of Education. First, the Department has never been joined as a respondent. Secondly, no proper service in terms of the rules has been effected on it. Thirdly, Speelman’s case against it simply has no merit. As I understand it, the relief claimed in prayers 18 and 20 is directed at reviewing and setting aside the information provided to the MEC for Education so that he could answer the question asked of him in the legislature. Speelman is not entitled to the relief that he has claimed for a number of reasons: (a) the provision of the information does not affect his rights; (b) he was not prejudiced thereby; (c) from the information on record in this matter, the reply to the question  appears to be true in all material respects; and (d) I do not understand how a court can review and set aside the providing of information to the MEC for Education. As a result, no case is made out for the relief envisaged by prayers 18 and 20.

[33] In prayer 19, Speelman seeks an order that ‘the respondents should admit by being faithful to the law to agree that there is no visa, no church and the DoE claims’. I have no idea what is meant by this. It is simply nonsense. As such, I have no intention of granting an order in those terms.

[34] I deal now with prayers 5 and 21, both of which deal with the perjury charge that Speelman laid against Dada and which the Director of Public Prosecutions in Grahamstown and National Director of Public Prosecutions decided not to pursue. The first problem is that the National Director of Public Prosecutions has not been joined as a respondent and the second is that no proper service has been effected on him. Thirdly, prayer 5, which talks of ‘[r]eviewing and setting aside the perjury committed . . .’, is simply a meaningless and unintelligible jumble of words which is incapable of being made into a court order. Fourthly, if consideration is had to the reasons advanced for not pursuing this charge, furnished by Advocate Henning to Speelman, it is clear that the decision was rational, and hence not liable to be set aside on review.[3] As a result, there is no basis upon which this court could order that, in the words of prayer 21, ‘perjury charges should proceed’.

[35] Prayers 2, 9, 10, 11, 12, 13, 14, 15 and 16 concern the first to fourth respondents in one way or another. As with all of the other relief claimed, the first insurmountable problem that Speelman faces is the lack of proper service on the first to fourth respondents. Although that puts an end to the relief he has claimed against them, I shall proceed to deal with the merits, nonetheless. 

[36] Prayer 2 seeks the review and setting aside of the particulars of claim in the defamation matter. This is not legally possible because Dada’s particulars of claim is a pleading. It is not subject to review because no exercise of public power is involved and only the exercise of public power, such as the exercise of judicial power by a magistrate, is subject to being reviewed and set aside.[4] If Speelman considered the particulars of claim to have been defective in some way, he had to do something about that prior to or, at best, during, the trial. Prayer 2 is not competent and so cannot be granted.

[37] The same principle applies to prayers 9 and 10, in which Speelman seeks the review and setting aside of ‘the issues of 2^nd and 3^rd Respondents about England visa for “needy children” to come and work in UK . . .’ and ‘the issues of all of the Respondents because it is proven that no money was ever used towards the England visa. . .’. Both are meaningless but even if some meaning could be attributed to them, they do not involve the exercise of public power and are thus not subject to review by a court.

[38] In prayer 11 Speelman seeks an order directing the first to fourth respondents to apologise to the British High Commissioner. Speelman has no legitimate, legally recognised interest in an order directing someone to apologise to a third party. Precisely the same considerations apply to prayers 12, 13, 14 and 15. In prayer 16, Speelman seeks an order that the respondents ‘amend and pay all the damages and financial recoveries that I have suffered and have lost in pursuit of the truth . . .’. He has not quantified his damages. Nor has he proved an entitlement to damages. As far as costs are concerned, they will follow the result: the successful party or parties will be entitled to costs. (There is no need for me to deal with prayer 17, a prayer for further or alternative relief, as none is asked for.)

[39] Prayer 22 refers to a letter written by Derek Light Attorneys. This prayer is meaningless and Derek Light Attorneys is not a party to these proceedings, never having been joined and the papers never having been served on it. Similarly, prayer 23 – that the court should ‘review and put it straight that it is their falsified acts that have defamed themselves NOT ME’ – is meaningless and cannot be granted for that reason alone.

[40] All that is left are the prayers for the review and setting aside of the judgment in the defamation matter. Those are prayers 1, 3, 4, 6, 7 and 8. Prayer 3 can be disposed of without further ado. It seeks the review and setting aside of the judgment on the basis of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA) and on the assumption that the magistrate had acted administratively. That is incorrect. The PAJA has no application when a judicial officer acts in a judicial capacity as happened in this case.[5]

[41] The basis for the review of the magistrate’s decision is s 24(1) of the now repealed Supreme Court Act 59 of 1959[6] and not the PAJA.[7] Section 24(1) provides:

‘The grounds upon which the proceedings of any inferior court may be brought under review before a provincial division, or before a local division having review jurisdiction, are-

(a) absence of jurisdiction on the part of the court;

(b) interest in the cause, bias, malice or the commission of an offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004, on the part of the presiding judicial officer;

(c) gross irregularity in the proceedings; and

(d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.’

[42] Before proceeding to consider whether Speelman has established any basis for the review and setting aside of the magistrate’s order, it is necessary to say something of the nature and purpose of review. Whereas appeals are concerned with whether a decision of a lower court is correct or incorrect, review is concerned with whether it was regular or irregular.[8] So for instance, an incorrect factual finding may be corrected on appeal[9] but such an error cannot be corrected on review unless it is attributable (by means of proper proof) to one or more of the grounds of review set out in s 24(1).[10] 

[43] The grounds put up by Speelman are that: (a) the magistrate committed ‘errors’ and ‘mistakes’ and the judgment is ‘inconsistent with inter alia the RSA endorsed by Parliament legislations’; (b) Speelman can prove the first to fourth respondents committed perjury; (c) Dada violated the code of conduct for public servants; (d) Meyer, her attorney, ‘used his profession to the detriment of the public’, he acted unethically and Dada’s children ‘put the name of SA into disrepute’; and (e) the particulars of claim and Meyer misled the magistrate.

[44] From the grounds of review relied upon by Speelman, none relate to absence of jurisdiction (s 24(1)(a)), interest in the cause, bias, malice or corruption on the part of the magistrate (s 24(1)(b)) or the admission by the magistrate of inadmissible or incompetent evidence or the rejection by him of admissible or competent evidence (s 24(1)(d)). The only possible basis upon which Speelman may succeed is thus s 24(1)(c) – that the magistrate committed a gross irregularity in the proceedings.

[45] I shall begin with prayer 4. Whether Speelman can prove that the first to fourth respondents committed perjury is entirely irrelevant to these proceedings. Dada’s children did not give evidence and neither did Meyer so whether any of them committed perjury could not have had any bearing on the magistrate’s decision. Dada gave evidence in the trial, as did Speelman. Whether Dada lied about the reason for the trip to England falling through was not relevant to the decision the court was required to make. It dealt with the issue by saying:

‘Eventually it came to light that the attempt to send the defendant to England was a failure and then the incidents occurred that gave rise to this action.’

[46] The focus of the trial was, quite correctly, Speelman’s conduct. It was common cause that he published the defamatory statements about Dada. He also accepted that the money that had been placed in the account that had been opened by Dada in his name was not his money. As a result, whatever the reason for the trip to England falling through, Dada was entitled to take back the money. She was also entitled to spend it as she wished. He therefore knew that she had not committed fraud and, irrespective of whether she lied about the visa application, he had no justification for accusing her of fraud. As a result, his dubious claim that he can prove that the first to fourth respondents committed perjury does not establish an irregularity in the proceedings.

[47] Whether Dada violated the code of conduct for public servants is likewise irrelevant as far as the regularity of the magistrate’s decision is concerned. It was never, as far as I can see from the record, ever raised as an issue in the trial and if it had been, it would have been irrelevant. This, even if Speelman’s assertion had any merit, does not establish a gross irregularity in the proceedings on the part of the magistrate. That accounts for prayer 6.

[48] Prayer 7 relies upon Meyer having allegedly used ‘his profession to the detriment of the public’ and having acted unethically and Dada’s children having brought the name of the country into disrepute. These assertions simply have no connection to or relevance to the regularity of the proceedings and the accusations made against Meyer are scurrilous. The same is true of the accusation that Meyer misled the magistrate in prayer 8. There is nothing in the record that can support such an allegation and the quote from the record that Speelman relies on for this assertion shows that he is, at best, misguided in this respect.

[49] Finally, reliance is placed on the magistrate having committed errors and mistakes and acting inconsistently with unidentified legislation. There is simply no merit or truth in these submissions. The magistrate’s judgment, if anything, is overly indulgent of Speelman. There is most certainly no evidence of any irregularity in the proceedings. That being so, no case has been made out by Speelman for the review and setting aside of the magistrate’s decision in the defamation matter.

[50] It is necessary to say something of the way in which Speelman conducted this case. As I have shown, his case was fatally defective procedurally and, substantively, lacked any merit whatsoever. He appears to have taken the view that any decision that was not to his liking was actuated by bad faith and was improperly taken. He has levelled that type of accusation at the magistrate who presided in the defamation trial, at the Department of Education because of the answer given about the trial in the provincial legislature, the National Director of Public Prosecution for deciding not to pursue the perjury charge he laid against Dada, and members of the office of the Public Protector for a reason that is far from clear to me.

[51] Accusations of so serious a nature made against public officials are not to be made lightly. In this case, they have been made with no factual basis whatsoever. In making these allegations in the cavalier and ill-considered way that he has, Speelman has acted vexatiously.

[52] It is clear too that he has waged a personal vendetta against Dada for some years now, and that he has now included in his vendetta her children and her attorney. His conduct, as against them, is also vexatious.

The order

[53] From what I have said above, it will be apparent that Speelman has not made out a case in any manner or form for any relief, whether in the first ‘notice of motion’, the second ‘notice of motion’ or the bundle headed ‘affidavit’.

[54] I make the following order.

(a) The application is dismissed.

(b) The applicant is directed to pay the costs of the fifth and sixth respondents.

_______________

C Plasket

Judge of the High Court

I agree.

_______________

R Brooks

Acting Judge of the High Court

APPEARANCES

Applicant: In person

Fifth and sixth respondents: M Wolmarans of NN Dullabh and Co, Grahamstown

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