South Africa: High Courts - Gauteng

Case Number 13854/2000 (382/97,21139/01,5837/02) (A 1660/95,59216/96)

In the matter between:

RUDOLF SCHELLAUF

First Applicant

TEREZIA SCHELLAUF

Second Applicant

and

THE HONOURABLE MR JUSTICE MYNHARDT First Respondent

THE HONOURABLE MR JUSTICE DANIELS Second Respondent

THE HONOURABLE MR JUSTICE VAN DER MERWE Third Respondent

THE HONOURABLE MR JUSTICE HARTZENBERG Fourth Respondent

ROOTH & WESSELS Affected Party

ATTORNEY A B T VAN DER HOVEN Affected Party

SAVAGE JOOSTE & ADAMS INC Affected Party

E MOELICH N.O., DEPUTY SHERIFF Affected Party

T C SIEBERT N.O., DEPUTY SHERIFF Affected Party

SHAPIRO DE MEYER INC Affected Party

NICHOLLS, CABANIS & ASSOCIATES Affected Party

BOARD OF SHERIFFS Affected Party

JUDGMENT

1

In the abovementioned matter, three groups of parties were represented at the time of the argument of the matter. The first was Mrs Terezia Schellauf, who appeared in person and whose arguments I accept will also be applicable in respect of her husband, the first applicant, whom did not appear.

2

The second group of parties represented were the first and second affected parties namely the attorneys firm Rooth & Wessels, and the attorney ABT van der Hoven, whom were represented by Mr L S de Klerk. The third group of parties were the four judges of this Honourable Court that were cited as the first to fourth respondents whom were represented by Mr S Lebala.

3

Mrs Schellauf brought an application for my recusal which application was refused and dealt with in a separate judgment. I do not intend to deal with that aspect again.

4

The main dispute that I have to resolve is the issue of the Rule 30 notices that were filed on behalf of the affected parties, as well as in respect of the four judges of the Honourable Court. The matter has a long history with a number of applications having taken place prior to this'one, involving the Schellaufs and other parties. I intend to only set out the most important facts that crystallise from the mass of documentation that has been placed before me and the arguments that I heard.

5

On 13 June 2002 the Schellaufs were declared vexatious litigants in terms of section 2(1 )(a) of the Vexatious Proceedings Act 3 of 1956 by an order of His Lordship Mr Justice Van der Merwe in case number 13854/2000. Such declaration was duly gazetted in the Government Gazette and it is common cause between the parties before me, in that the Schellaufs have admitted that such an order was made. The Schellaufs attitude is however that they do not accept the declaration and make the allegation that they were unlawfully declared vexatious litigants without due legal process. The position that I find myself in is that I am not sitting as a Court of Appeal, but I am dealing with the merits of rule 30 applications that have been launched against certain steps that the Schellaufs took subsequent to them having been declared vexatious litigants. I accordingly am not empowered, nor do I

intend to, go behind the Order that His Lordship Mr Justice van der Merwe made in regard to the Schellaufs in declaring them vexatious litigants. I must deal with the matter on the basis that the Schellaufs have been declared such vexatious litigants, and that such declaration has been duly gazetted and is common knowledge to the Schellaufs and the other parties involved in the present litigation. It is not competent for me to comment on any matter that occurred prior to such order having been granted. What however is significant and was impressed upon me by both counsel acting for the affected parties and the respondents was that there was no appeal lodged against the order of his Lordship Mr Justice Van der Merwe and that the order accordingly stands unchallenged at this stage with full legal effect.

I asked Mrs Schellauf why she had not appealed the order in the light of her attitude that the order had been unlawfully granted without due legal process and was informed by her that she does not have any faith in the legal system and does not trust the Supreme Court of Appeal due to the fact that previous matters where she appealed and petitioned, such appeals were dismissed and petitions refused, leaving her to believe that the Supreme Court of Appeal is, for some or other unknown and undeclared reason, biased and set against her. Such an answer is obviously no answer to the question and accordingly the order not having been appealed against stands as I have already indicated. I must accordingly deal with the matter on the basis that the Schellaufs are

declared vexatious litigants.

6

The Schellaufs subsequently to having been declared vexatious litigants brought applications against the respondents to review the decisions of the respondents and to have them set aside. It is against such step that the rule 30 applications have been brought. It is contended on behalf of the respondents and affected parties that it is not competent for the Schellaufs to have launched any proceedings in the High Court without first having complied with the requirements of the Vexations Litigation Act and in particular section 2 thereof in that they first require the approval of a Court before they can institute any legal proceedings. It is common cause that the Schellaufs have not approached the Court for permission to launch the review application that they have launched. The issue of whether or not the declaration of a person as a vexatious litigant is constitutional, in that it might be argued that it does not allow a person to have proper access to the Courts, as required by the Constitution, was dealt with in the matter of Beinash and Another v Ernst & Young and Others, 1999(2) SA 116CC. The Constitutional Court found that the Vexatious Litigation Act is constitutional in that it does not prevent a party from having access to the courts but simply from abusing such access to the courts.

7

The words of Mokgoro J at page 122, par 138 are applicable in dealing with this issue where he stated that:

II The Act requires the fulfilment of two conditions before a vexatious litigant can institute legal proceedings. A judge has to be satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings. In other words the applicant is required to show that he or she has a bona fide claim and that his or her claim is prima facie meritorious".

The Schellaufs have failed to approach a court and request permission to institute the proceedings as already indicated and as such are prohibited from bringing an application to this court until such time as they have complied with the requirements of the Act.

8

In my opinion, the Schellaufs cannot escape the consequences of their failure to properly place themselves before this Honourable Court and that accordingly they are not properly before the Court. I wish to point out at this stage that they have been pertinently warned previously by a judge of this

High Court, His Lordship Mr Justice Mynhardt, the first respondent in the abovementioned matters, when dealing with one of the previous applications that the Schellaufs launched.

9

In my view, the rule 30 applications must succeed on this point alone. I wish however to comment on the second aspect raised by both the affected parties and the respondents and namely whether or not in law it is competent to take a decision of a judge of the High Court on review on the basis that the Schellaufs claim to have done. In the matter of Pretoria Portland Cement CO v Competition Commissioner 2003(2) SA 385 SCA, Schutz JA determined that a decision of a judge cannot be reviewed and stated as follows at page 400 paras 28 and 29 of the report:

lilt is instructive to see how Rose Innes Judicial Review of Administrative Tribunals at 11 handles the matter:

'There is no procedure, other than in the form of an appeal, whereby the proceedings of the Supreme Court may be brought on review. There is no right of review from the decision of a Judge of the Supreme Court, either by statute or at common law. Conceivably, if a Judge in chambers or the Court makes an administrative decision or makes an

administrative order, that is, if the Judge sits as an administrative officer and not as a judicial officer and the proceedings before him are proceedings of an administrative nature and not civil or judicial proceedings, review will lie on proper grounds'

The authority cited for the first instance in the passage (there is no review) is Ex Parte Scott (1909) 26 SC 520. See also Gentiruco AG v Firestone SA (Pty) Ltd 1972(1) SA 589 (A) at 600 E - 603 H especially at 601 E - F, R v Mans (1867) 5 Searle 285, Junker v The Queen (1884) 3 SC 46, Roux J's judgement in this case, referred to above, and JL Taitz, The Inherent Review Jurisdiction of the Supreme Court, a thesis presented to the University of Cape Town for the degree of Doctor of Laws in July 1983."

In my view and on the basis of Schutz's comments and the decision in the Pretoria Portland Cement matter supra, the Schellaufs do not have a right to review the judicial decisions of the four respondents as they have attempted to do in the present matter. In my view, the rule 30 notices are valid in this respect as well and the relief sought should also be granted on this basis.

10

Accordingly, I make an order in the following terms:

1 That the said affected parties' failure to institute the rule 30(1)

application respectively rule 30(2)(b) notice dated 1 October 2003 and delivered 12 October 2003, within a period of 15 days, reckoned as from 2 October 2003 be and is hereby condoned.

2 That the first and second applicants' application for default

judgment directed to the Registrar of the above Honourable Court be set aside as an irregularity;

3 That the applicants pay the costs of the application in respect of

both the affected parties and the four respondents.