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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: 5031/2020

In the matter between: -

F R M                                                                                                                       Applicant

and

CHARMAINE VAN DER MERWE N.O.                                                         1^st Respondent

PSW MYBURGH N.O.                                                                                  2^nd Respondent

SONIKA STEYN N.O.                                                                                   3^rd Respondent

T M                                                                                                                 4^th Respondent

CORAM:                                C. J. MUSI, JP

 

HEARD ON:                          29 APRIL 2021

 

DELIVERED ON:                 17 JUNE 2021

[1]     This is a horrendous application. Its bizarreness is accentuated by the fact that the applicant is a Senior Legal Practitioner. The applicant, who appeared on his own behalf, approached this court seeking a breathtakingly shocking order. The order sought, which I reproduce without emendation, reads as follows:

‘1.      It is declared that the order of Molahlehi J made on 2 December 2019 refusing to postpone the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 is bad in law.

2.       It is declared that the order of Molahlehi J made on 4 December 2019 standing the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 down to 4 December 2019 is bad in law.

3.       It is declared that the order of Molahlehi J made on 11 December 2019 refusing to postpone the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 is bad in law.

4.       It is declared that the order of Molahlehi J made on 2 December 2019 refusing to postpone the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 is bad in law.

5.       It is declared that the order of Molahlehi J made on 11 December 2019 refusing to postpone the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 is bad in law.

6.       It is declared that the order of Molahlehi J made on 11 December 2019 refusing the application for leave to appeal against his decisions refusing to postpone the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 is bad in law.

7.       The order of Molahlehi J dismissing the application of the applicant for the joinder of Cummins (SA) is bad in law.

8.       It is declared that the order of Molahlehi J made on 12 December 2019 refusing to stay the application that was brought by the applicant in the Gauteng Local Division under case number 27028/2019 until the finalisation of the applicant’s appeal against the orders that Molahlehi J made on 2, 4 and 11 December is bad in law.

9.       It is declared that the order of Molahlehi J made on 12 December 2019 under case number 27028/2019 of the Gauteng Local Division refusing the applicant’s application in terms of section 18(3) of the Superior Courts Act, 2013 is bad in law.

10.     It is declared that the order of Molahlehi J made on 12 December 2019 under case 27028/2019 of the Gauteng Local Division denying the applicant his automatic right of appeal in terms of section 18(4) of the Superior Courts Act, 2013, is incompetent, null and void.

11.     The conduct of Molahlehi J as outlined in prayers 1 to 10 hereof violated the rights of the applicant in terms of section 34 and/or section 35 of the Constitution.

12.     The failure by Molahlehi J to timeously hear the applicant’s application for leave to appeal against his judgement and orders which he made under case number 27028/2019 of the Gauteng Local Division violated the applicant’s rights in terms of the Uniform Rules of Court.

13.     The failure by Molahlehi J to timeously hear the applicant’s application for leave to appeal against his judgement and orders which he made under case number 27028/2019 of the Gauteng Local Division violated the applicant’s right to a fair trial in terms of section 34 of the Constitution.

14.     The proceedings before Molahlehi J and his conduct in their fullness and entirety are a travesty of justice and resulted in a mistrial.

15.     The refusal by the first and second respondents to issue the applicant’s application to the Supreme Court of Appeal for leave to appeal against the judgement of Molahlehi J was ultra vires.

16.     The refusal by the first and second respondents to issue the applicant’s application to the Supreme Court of Appeal for leave to appeal against the judgement of Molahlehi J is bad in law.

17.     The refusal by the first and second respondents to issue the applicant’s application to the Supreme Court of Appeal for leave to appeal against the judgement of Molahlehi J violated the applicant’s right to a fair trial in terms of section 34 of the Constitution.

18.     The refusal by the first and second respondents to issue the applicant’s application to the Supreme Court of Appeal for leave to appeal against the judgement of Molahlehi J is a travesty of justice and resulted in a mistrial.

19.     The action of Molahehi J, the first respondent and the second respondent have brought the administration of justice in disrepute.

20.     All of the aforesaid orders of Molahlehi J shall have no legal effect.’

[2]     The applicant and the fourth respondent were intimate partners. Two children were born from the relationship. The fourth respondent’s employer Cummins South Africa (Pty) Ltd deployed her to the United States of America for a period of two years. She intended taking their two children, one a major and the other minor, with her to United States of America. The applicant objected to her taking the children with her. He launched an urgent application in the South Gauteng High Court, Johannesburg (High Court) to interdict her from leaving with the children without his consent.

[3]      His application with regard to the major child was dismissed by Wanless AJ. The application with regard to the minor child was referred to the family advocate to prepare a report to assist the court in adjudicating the dispute. The fourth respondent was interdicted from leaving with the minor child pending the aforementioned report.

[4]      The applicant was dissatisfied with the order and filed an application for leave to appeal. The application was however not heard and he approached the Supreme Court of Appeal seeking an order that Wanless AJ be deemed to have dismissed his application for leave to appeal. The Supreme Court of Appeal dismissed his application.

[5]      After the Family Advocate’s report was finalized, the matter was set down and heard by Molahlehi J. The applicant was not satisfied with its contents and sought a postponement in order to properly challenge some of the assumptions and findings in the report. He wanted to call expert witnesses. He also filed a counter application to the effect that the agreement between the fourth respondent and her employer was not in the best interests of the child and violated s28(2) of the Constitution of South Africa, 1996.[1] He launched a counter application. He also sought to join the fourth respondent’s employer in the counter application. His application for postponement and the counter application were dismissed. Aggrieved by this order, he filed an application for leave to appeal, which was refused.

[6]      He then filed an application in terms of s18(3) of the Superior Courts Act, 10 of 2013 (Act), to suspend the order refusing his application for postponement.[2] That application was also refused. He filed an application in terms of s18(4)(ii) of the Act.[3] According to the applicant, the learned Judge refused to give him an opportunity to file a notice of appeal.

[7]      On 10 December 2019 the applicant filed an application for leave to appeal against the refusal of his application for postponement. On 17 December 2019 he filed two applications, first an application for leave to appeal against Molahlehi J’s order on the merits, and, second a request for the reasons for the order. When the applicant filed the application for leave to appeal the registrar could not allocate the file. According to the applicant, he handed the application over to Molahlehi J’s clerk on the same day.

[8]      Since the reasons for the judgment were not forthcoming, he approached the Acting Judge President (ADJP) to direct Molahlehi J, to urgently hear the application for leave to appeal. The ADJP responded on 10 February 2020, indicating that he has forwarded the correspondence to Molahlehi J.

[9]      Molahlehi J gave reasons for his orders in a judgment signed on 16 April 2020, but seemingly delivered on 17 April 2020.

[10]   On 23 June 2020 the applicant attempted to lodge an application at the Supreme Court of Appeal wherein he, amongst others, sought an order that Molahlehi J be deemed to have refused his application for leave to appeal against the judgment delivered on 17 April 2020. The second respondent refused to accept the documents because they were defective as an application for leave to appeal and or an order refusing such application did not form part of the application.

[11]    The second respondent approached the Senior Registrar at the High Court and requested him to ascertain whether an application for leave to appeal was filed and if so what happened to it. On 7 July 2020 the latter responded that an application for leave to appeal was ‘never heard and there was no judgment or order in respect of same’. The Senior Registrar further stated the following:

‘an investigation was immediately launched and the office was not able to trace any record of said application for leave to appeal.

No record from any party inquiring about the delay of the application could either be found.

A copy of the application for leave to appeal was requested from Wakaba & Partners Inc (Applicant’s attorneys) on 30 June 2020 and a copy of the judgment on 2 July and forwarded to the Hon. Justice Molahlehi (sic).

We await a reply from the Hon. Justice Molahlehi regarding the way forward.’

[12]    On 13 July 2020 the applicant supplied the second respondent with the application for leave to appeal. On 15 July 2020 the second respondent sought guidance from the President of the Supreme Court of Appeal. He wrote the following:

‘Dear Judge

Kindly find attached two applications similar in nature but from different Judges of the High Court.

The issue in this matter seems to be a Hague Convention related as it is about an order to prohibit the mother of the child to accompany her to the USA. Applicant did not apply unsuccessfully for leave to appeal in the High Court. In case 341/2020 applicant alleges that Justice Wanless deemed to have refused leave to appeal and 5 August 2019. He alleges that the reason is that the Judges delays to sign the segment that had been transcribed and it prevents him from applying for leave to appeal. A rule nisi was ordered that precluded him from taking it on appeal. They did attempt an application for leave to appeal but couldn’t do it. This application was accepted by the SCA and it is vehemently opposed by the respondents.

Now a second attempt to file a similar application is presently before me and again it is apparently against Judge Molahlehi did not entertain his application. The senior Registrar has issued a letter that an application for leave to appeal was never heard.

The record of such an application could not be found.

It does not seem proper to issue yet another application based on circumstances where another judge should be deemed to have refused an application where there is no trace that it was ever issued.

Guidance from you is requested.’

[13]   On 17 July 2020 the President agreed with the second respondent and pointed out that the rules are clear, he had no authority to accept the application papers under the circumstances.

[14]    On 14 September 2020 the applicant brought his unsuccessful attempts to have his application issued by the first and second respondents to the attention of the Court Manager of the Supreme Court of Appeal. The Court Manager requested the first respondent’s comments. The first respondent explained the history of the failed attempts at lodging the application at the Supreme Court of Appeal.

[15]    On 22 October 2020 the applicant’s attorney wrote to the Court Manager stating inter alia that:

‘1.   …

2.  We wish to place it on record that despite numerous inquiries directed to you, you have failed to meaningfully respond to our request and that to date there is no formal response from the President regarding our request.

3.  In light of the above, we request you to furnish us with a letter or other suitable instrument or document signed by the President stating that she agrees that the registrar may not issue our plans application for leave to appeal which is in the Office of the Registrar…’

[16]    The second respondent brought the request for an instrument to the attention of the President who responded as follows:

‘I see that I responded to your query on 17 July already and agreed with your take on the matter.

I see that Gauteng Senior registrar Coetzee indicated on 7 July that he awaited Judge Molahlehi’s response following transmission to him of a copy of the application for leave to appeal obtained from the applicant’s attorneys. But nowhere in Coetzee’s letter is it confirmed that the application was filed in his court.

Only because the matter involved a minor child, I have sent a query to JP Mlambo find out precisely what is going on with the matter and he has undertaken to investigate immediately and revert back to me. Let us wait for his response.

As for the demand for an instrument from me, you will have to point out SCA rule 4(5) with these attorneys and that all communication with Judges is conducted only through you. But we will deal with that once we hear from the JP.’

[17]    On the same day (28 October 2020) the President wrote to the Judge President, setting out a short history of the matter and requested him to investigate the matter. She further pointed out that the basis for the enquiry is that ‘the applicant’s attorney insists on the SCA dealing with the proposed petition on the basis that Judge Molahlehi has neglected to deal with the matter and thus constructively refused leave to appeal against his judgment’.

[18]    The Judge President alerted Molahlehi J. According to Ms Thomas of the Civil Appeals Section at the High Court, there was confusion because there was an application for leave to appeal that was heard by Molahlehi J, during December 2019. That application was for leave to appeal by the applicant against the refusal of the application for postponement.

[19]    The second respondent constantly corresponded with Ms Thomas about the matter. Molahlehi J also tried to get the parties to argue the application for leave to appeal. On 22 January 2021 Ms Thomas informed the second respondent that according to the Judge’s Clerk the matter is not proceeding. She further informed him that the Judge was prepared to hear the matter and that she is unsure whether the Attorneys withdrew the application.

[20]    The second respondent still wanted to know whether the application was heard and, if so, whether the order was at hand.

[21]    I turn to deal with the case or rather lack of a case against Molahlehi J. The applicant, a senior legal practitioner, sought far reaching orders against a Judge without citing the Judge. He sought incompetent orders against the Judge. He effectively wanted me to review an order of a Judge. Something which I may not do. He wanted to appeal orders of a Judge of another High Court in this Court. Something which may also not be done. The case against Molahlehi J, does not get out of the starting blocks for the simple reason that this Court does not have jurisdiction to hear the matter.

[22]    That said, I now consider the application against the respondents. There are procedural issues and substantive issues to consider. I will first have regard to the procedural issues.

[23]    First, the applicant cited the third and fourth respondents without any of them having any interest in this litigation, let alone a direct or substantial interest. A clear case of a material misjoinder. He admitted this during argument. He did not serve the papers on the fourth respondent, because she had already left these shores when this application was launched.

[25]   The first respondent is cited as an adult female Chief Registrar of the Supreme Court of Appeal employed as such at the corner of Elizabeth and President Brand Streets, Bloemfontein and cited herein in her official capacity. (My underlining). The second and third respondents are also cited in their official capacities.

[26]    The applicant has not cited the executive authority of the department as a nominal respondent. Sections 1 and 2(1) of the State Liability Act[4] states:

‘(1) Any claim against the state which would, if that claim had arisen against a person, be the ground of an action in any competent court, shall be cognizable by such court, whether the claim arises out of any contract lawfully entered into on behalf of the state or out of any wrong committed by any servant of the state acting in his capacity and within the scope of his authority as such servant.

2(1)   In any action or other proceedings instituted by virtue of the provisions of section 1, the executive authority of the department concerned must be cited as nominal defendant or respondent.’ (My emphasis).

[27]    Regardless of the peremptory requirements in s 2(1) the applicant did not cite the executive authority of the Office of the Chief Justice. This is another instance of a material non-joinder by the applicant.

[28]    Even when these points were correctly taken by the first three respondents the applicant did not even attempt to rectify these procedural hurdles. Ordinarily the material instances of non-joinder would be fatal. I have however decided to deal with the merits of this matter in order to bring it to finality.

[29]    The applicant’s case against the first and second respondents (hereinafter respondents) is that by refusing to issue his application for leave to appeal they acted ultra vires; they violated his right to a fair trial; that their decision was bad in law and that their decision resulted in a mistrial.

[30]    I have decided not to disaggregate his case, for the following reasons. Essentially he relies on a violation of his right to a fair trial (access to justice) in terms of section 34 of the Constitution. I assume that by invoking the American parlance of a mistrial he means that their conduct resulted in an unfair trial. If their decision was bad in law or ultra vires it would also implicate the right to a fair trial.  

[31]    He made plain that he did not want their decision to be reviewed and set aside but he wanted a declaratory order to the effect that their decision violated his constitutional right.

[32]    Section 34 of the Constitution reads as follows:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or,

where appropriate, another independent and impartial tribunal or forum.’

[33]      It has been said that:

‘The right to a fair and public hearing in civil matters requires the rules of civil procedure to be in line with the constitutional right.  These rights include the impartial composition and functioning of the courts in civil proceedings, the equality of parties in civil proceedings, the parties’ entitlement to information concerning the hearing and concerning the opposition’s case, every party’s opportunity to be heard and to adduce evidence, the furnishing by the courts of the reasons for their decisions, and the parties’ right to appeal.  In addition, delay or failure by a court to deliver judgment is unfair and may frustrate the right of an applicant to apply to a higher court for leave to appeal.  In De Beer v North Central Local Council and South Central Local Council it was held that since procedures that would render the hearing unfair are inconsistent with the Constitution, courts must interpret legislation and rules of court, where it is reasonably possible to do so, in a way that would render proceedings fair.  In short, rules of court would be unconstitutional, should the provisions thereof permit unfairness of a hearing.’[5]  

[34]    It is not in dispute that there was an act of refusal. It is not in dispute that the respondents were exercising a public power or performing a public function in terms of legislation.[6]

[35]    In determining whether the refusal was wrongful, I must consider different factors. One of those factors is that organs of state must be accountable. In Metrorail[7] it was said that:

‘The principle of accountability, therefore, may not always give rise to a legal duty whether in private or public law. In determining whether a legal duty exists whether in private or public law, careful analysis of the relevant constitutional provisions, any relevant statutory duties and the relevant context will be required. It will be necessary too to take account of other constitutional norms, important and relevant ones being the principle of effectiveness85 and the need to be responsive to people’s needs.’[8]

[36]    This principle was forcefully expressed in PRASA[9] where it was said that:

‘The State and its organs exist to give practical expression to the constitutional rights of citizens. They bear the obligation to ensure that the aspirations held out by the Bill of Rights are realised. That is an immense responsibility that must be matched by the seriousness with which endeavours to discharge them are undertaken. To this end, the State, its organs and functionaries cannot be allowed to adopt a lackadaisical attitude, at the expense of the interests of the public, without consequences.’[10]

[37]    State functionaries have a duty to act reasonably when they exercise their constitutional duty to protect and promote the rights of citizens. When it is alleged that a state functionary or an aggregate of state functionaries violated a constitutional right reasonable conduct would displace wrongfulness. Did the respondents act unreasonably in this matter?

[38]    The respondents acted in terms of the Superior Courts Act[11] and the Rules Regulating the Conduct of Proceedings in the Supreme Court of Appeal (Rules).  The applicant did not contend that the Rules are unconstitutional. It must therefore be accepted that the Rules are constitutional and reasonable for the attainment of the right entrenched in s 34 of the Constitution.

[39]    Rule 4(1)(a) reads as follows:

‘The registrar may refuse to accept any document tendered for lodging if, in the registrar’s opinion, it does not comply with these rules: Provided that if proper copies of the rejected documents are resubmitted within 10 days of rejection such lodging shall not be deemed untimely.’

[40]    Rule 6 provides:

‘(1)   In every matter where leave to appeal is by law required of the Court, an application therefor shall be lodged in triplicate with the registrar within the time limits prescribed by that law.

Annexures required

(2)     Every such application shall be accompanied by?—

(a)   a copy of the order of the court a quo appealed against;

(b)   where leave to appeal has been refused by that court, a copy of that order;

(c)   a copy of the judgment delivered by the court a quo; and

(d)   where leave to appeal has been refused by that court, a copy of the judgment refusing such leave:

Provided that the registrar may, on written request, extend the period for the filing of a copy of the judgment or judgments for a period not exceeding one month.’

[41]    Rule 11(1) states:

‘(1)    The President or the Court may of own accord, on request or application?—

(a)   extend or reduce any time period prescribed in these rules and may condone non-compliance with these rules;

(b)   give such directions in matters of practice, procedure and the disposal of any appeal, application or interlocutory matter as the President or the Court may consider just and expedient.’

[42]    It is clear from the correspondence that the respondents refused to issue the application because at the time, based on the information received from the High Court, there was no application for leave to appeal that was filed at the High Court. There was also no order dismissing the application for leave to appeal because the application for leave to appeal was not heard by Molahlehi J.

[43]    Molahlehi J gave the reasons for his orders on the merits on 17 April 2020. No application for leave to appeal against that judgment could initially be found at the High Court. On 23 June 2020 the applicant filed an application for leave to appeal at the SCA on the basis that Molahlehi J, constructively refused to hear his application for leave to appeal.

[44]    The respondents refused to issue the application because as the second respondent puts it in his letter to the applicant’s attorney dated 3 August 2020:

‘The issue was that this was not a matter where there was a decision on the merits or if the judge can be accused of delaying the process that it could be taken as a constructive refusal (sic)… Since there is confirmation that such an application was never issued, it cannot be said that such as case was heard and dismissed or a delay such as would qualify a condition equal to a dismissal of an application (sic).

The application is thus not accepted.’

[45]    The upshot of all this is that the respondents acted squarely within the legal framework. The refusal was predicated on several bases, first there was no application for leave to appeal the High Court, second, the judgment refusing leave to appeal did not form part of the application, third, the second respondent was of the view that the time period between 17 April 2020 and 23 June 2020 was too short to qualify as a constructive dismissal.

[46]    When there was still a dispute between the respondents and the applicant the second respondent escalated the matter to the President, who agreed with him. When the pressure from the applicant did not relent, he approached the President for a second time. The President then decided to assist because the interest of a minor child was at stake. She took the unusual step of contacting the JP of the High Court and requested him to investigate the matter. The JP, in turn, contacted Molahlehi J. All this was done in order to assist the applicant.

[47]    Molahlehi J was always prepared to hear the application. He tried to get the parties to argue the matter, to no avail.

[48]    The most unfortunate part of this matter is that whilst everyone from the President, the JP, Molahlehi J, the respondents and their counterpart at the High Court tried to assist the applicant, he had inappropriate motives. I say this because on 2 July 2020, whilst everyone was running around trying to help him, the applicant’s attorney wrote to the Senior Registrar of the High Court informing him that the applicant does not intent to have the application for leave to appeal heard by Molahlehi J because he made an election to proceed in terms of New Clicks[12]. This was repeated on 6 July 2020.  

[49]    When I asked him, during argument, why he elected to follow that path. He informed me that ‘he knew that Molahlehi J would dismiss his application because it was moot as the child had already left’.

[50]    It is clear that the respondents acted reasonably and therefore lawfully. They acted within the scope of their powers. They did not violate any of the applicant’s constitutional rights, specifically his right in terms of s 34 of the Constitution. In fact, they tried everything to assist him.

[51]    The applicant conducted these proceeds in a cavalier manner. He had no regard to and showed utter disdain for the rules and procedures of Court. Molahlehi J ordered him to pay costs on the attorney and client scale. The SCA also ordered him to pay Cummins SA’s costs on the attorney and client scale[13].

[52]    This case is also of the kind that screams out for a costs order on the higher scale. The Biowatch[14] principle should not apply in this case because there was a deliberate, sustained and egregious abuse of the Court process. A Judge was scandalized and his character attacked. When all attempts were made to have Molahlehi J hear the application for leave to appeal, the applicant abandoned it but still wanted to argue that there was a constructive refusal of his application for leave to appeal.

[53]    I make the following order:

1.         The application is dismissed.

2.         The applicant is ordered to pay the first, second and third respondents’ costs on the attorney and client scale.

___________________

C.J. MUSI, JP

Appearances:

For the Applicant:                Adv. F.R. M

In Person      

For the Respondents:         Adv. K Nhlapo

Instructed by State Attorney

Bloemfontein

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