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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 54483/13

In the matter between:

MATANE EDWIN MPHAHLELE                                                                                Plaintiff

and

JOHANNES BOSHOFF N.O.                                                                      First Defendant

JOHANNA JACOBA BOSHOFF N.O                                      Second Defendant

MARINUS JOHANNES HESSELINK N.O                                   Third Defendant

JACOBUS ALBERTUS DU PLESSIS N.O                                Fourth Defendant

(in their capacities as trustees for the time being of

the KOPANO TRUST with master’s reference

number IT1174/2030)

COENRAAD BOSHOFF                                                                Fifth Defendant

JOHANNES BOSHOFF                                                               Sixth Defendant

TENSION OVERHEAD ELECTRIFICATION                          Seventh Defendant

(PTY) LTD T/A TRACTIONEL ENTERPRISE

AFRICA HERITAGE INVESTMENTS (PTY) LTD                      Eighth Defendant

(IN LIQUIDATION)      

THE COMMISSIONER, COMPANIES AND

INTELLECTUAL PROPERTY COMMISSION,

DEPARTMENT OF TRADE AND INDUSTRY                              Ninth Defendant

MUTUMWA DZIVA MAWERE                                                     Tenth Defendant

PARMANATHAN MARIEMUTHU                                           Eleventh Defendant

NOBUHLE GLORIA MTHETHWA                                            Twelfth Defendant

ABSA BANK LIMITED                                                         Thirteenth Defendant

JUDGMENT

Baqwa J

[1] This is an action by the plaintiff (the applicant) against the defendants (the respondents)  wherein the applicant seeks to be declared the majority shareholder in a company known as Tension Overhead Electrification, the seventh defendant in this matter.

[2] The case is being jointly heard together with three applications (case numbers 68077/13; 69663/13 and 75157/13) in which the plaintiff is the applicant and the defendants are the respondents. For purposes of this judgment the parties are referred to as “applicant” and “respondents”.

[3] The origin of the joint proceedings can be traced back to the order handed down by Justice Mbha on 2 November 2011 at the South Gauteng High Court under case number 2011/8084 as follows:

“Case no.:  2011/8084

                                                                                                       P/H no.:    0

            JOHANNESBURG, 02 NOVEMBER 2011

            BEFORE HONOURABLE JUDGE MBHA

           

In the matter between:-

AFRICA HERITAGE INVESTMENTS (PTY) LTD                Applicant

(IN LIQUIDATION)

and

TENSION OVERHEAD ELECTRIFICATION                       First Respondent

(PTY) LTD t/a TRACTIONEL ENTERPRISE

JOHANNES BOSHOFF N.O.                                                  Second Respondent

JOHANNA JACOBA BOSHOFF N.O                                 Third Respondent

MARINUS JOHANNES HESSELINK N.O                          Fourth Respondent

JACOBUS ALBERTUS DU PLESSIS N.O                         Fifth Respondent

(in their capacities as trustees for the time being of

the KOPANO TRUST with master’s reference

number IT1174/2030)

MATANE EDWIN MPHAHLELE                                          Sixth Respondent

HAVING read the documents filed of record and having considered the matter:-

BY AGREEMENT BETWEEN THE PARTIES, THE COURT GRANTS AN ORDER:-

 

1.    As concerns the Applicant’s application:-

1.1        Directing the Second to Fifth Respondents to transfer or cause to be 

Transferred to Africa Heritage Investmentsa (Pty) Limited (in liquidation) (“AHI”) the 31 shares that AHI held in the First Respondent as at date of liquidation with immediate effect.

1.2       Directing the Second to Fifth Respondents to provide the Applicant’s

Attorneys of record with a copy of the signed share transfer forms in terms

of which the shares were transferred to AHI in 1 above, and the original share certificate within ten (10) days of this order.

1.3       Directing the First Respondent to amend the register of members’ share accounts so as to reflect AHI as a registered member within thirty (30) days of this Order.

1.4        Directing the First Respondent to advise its auditors that AHI holds 31 shares in the First Respondent and will be reflected in the register of members’ share accounts within ten (10) days of this Order.

1.5       Directing that in the event that the First to Fifth Respondents fail to comply with the above orders that the Sheriff of the High Court may execute any documents necessary to give effect to the above orders.

2.    As concerns the Sixth Respondent’s counter application:-

2.1       the counter-application is referred to trial and transferred to the North Gauteng High Court, Pretoria for simultaneous adjudication with the action under case number 55009/10, set down for trial on 29^th February 2012;

2.2       The Sixth Respondent’s affidavit dated 25^th July 2011 shall stand as simple summons and the Sixth Respondent will file a declaration within ten (10) days from the date of allocation of a case number;

2.3       The Applicant and First to Fifth Respondents, as Defendants, will file their pleas within ten (10) days thereafter;

2.4       Costs of the counter-application are reserved.”

[4] Subsequent to the above order the matter proceeded before De Klerk AJ who handed down judgment at the North Gauteng High Court on 30 June 2012 as follows:

“In the result there will be an order of absolution from the instance as follows:

1.    The order of the Court on the seperated issue is one of absolution from the instance with costs.

Then the following order is granted in matter number 55009/2010.

(i)            It is declared that the Directors of Tension are:

(a)  Johannes Boshoff

(b)  Coenraad Johan Boshoff

(c)  Nabuthle Gloria Mtetwa

(d)  Parmanatin Marlmunto

(ii)           It is declared that:

(a)  The 1^st defendant is not a shareholder of Tension

(b)  The 1^st defendant is not a director of Tenion

(c)  The 1^st defendant, not being a shareholder of Tension, was and is not entitled to convene a general meeting of the shareholders of Tension

(d)  The content of Annexure H, to these particulars of claim, save for the reference to Section 213 of the Companies Act, is false and fraudulent;

(e)  Annexure ‘i’ constitutes a fraud;

(f)    Annexure ‘i’ and the appointment of the first to fourth defendants and Oswaldo Brakini as Directors of Tension and of the 8^th defendant as company secretar, is nul and void;

(g)  Annexure K constitutes a fraud;

(h)  The meeting purportedly held on 10 July 2010, and the decisions purportedly taken at same, are nul and void.

(i)    That the 1^st to 4^th defendants are interdicted from:

(a)  Purporting to perform any act(s) as directors, company secretaries or share holders of Tension.

(b)  Calling the holding of shareholders meetings, directors meetings, meetings with creditors, meetings with parties with whom Tension has contracts (including but not limited to Bombella Electrical and Mechanical Works (Pty) Limited, and Bombella Concession Company (Pty) Limited and the acting and/or meeting with Tension’s Bankers (which is the fifthe defendant), or any other financial institution, relating to Tensions banking facilities.

(iii)          That the 1^st defendant be interdicted from effecting any changes to the authorised signatories and the banking account(s) of Tnsion held at the 1^st defendant and from allowing anyone or more law of the 1^st, 2^nd, 3^rd and 4^th defendants, or anyone acting in their behalf, to transact in such account(s);

(iv)         That the 9^th defendant be directed to restore the status quo in its records of Tension’s Directors, and Company Secretary as at 20 June 2010.

(v)          That the 1^st, 2^nd, 3^rd and 4^th defendants and all such other defendants who may oppose the granting of the relief sought herein, be directed to pay the costs of this action, including the costs previously reserved, by His Lordship Mr Justice Preller and Her Ladyship Mrs Justice Tolmay on the  attorney and own client’s scale including the cost of two counsel, jointly and severally, the one paying the other to be absolved, and

(vi)         That the costs of the hearing be paid by the 1^st Defendant, such costs to include the costs of Senior/Junior Counsel.

Furthermore, the matter instituted under case number 66760/2011 is dismissed with costs.

(vii)        The 1^st defendant is also ordered to pay the costs of the 6^th defendant in case number 66760/2011. Such costs to include the reserved costs of the counter application, in the South Gauteng High Court under case number 8084/2011.”

[5] The applicant sought to appeal against the above order of Justice De Klerk. During the application for leave, the applicant sought the recusal of Justice De Klerk who postponed the matter for consideration by another judge. The application was subsequently heard by Van der Byl, AJ who dismissed the application for leave to appeal on 8 October 2012.

[6] The plaintiff further pursued the application for leave at the Supreme Court of Appeal and ultimately before the Constitutional Court which also dismissed his application in an order handed down on 1 August 2013 as follows:

“The Constitutional Court has considered the application for leave to appeal. It was concluded that the application should be dismissed as it bears no prospects of success.

Order:

1.    The application for leave to appeal is dismissed with costs.”  

[7] The applicant then brought the three applications referred to above which have been referred to as the “suspending application”, the “varying application” and the “warrant application”.

[8] The warrant application (68077/13) was launched on 30 October 2013 to declare null and void a warrant of execution issued by the respondents to recover taxed costs exceeding R800 000.00 arising from prior litigation. This includes a counter application launched by the respondents seeking an order to declare the applicant a vexatious litigant in terms of the Vexatious Proceedings Act No. 3 of 1956.

[9] The suspending application (75157/13) seeks to suspend the execution of the judgment under case number 55009/10 and to stay the warrant of execution referred to in the warrant application.

[10] The variation application (69663/13) seeks an order for a variation of the judgment and order granted against the application and others in favour of the respondents under case number 55009/10 and 6676/11.

[11] During the case management process which preceded this hearing it was agreed between the parties that all applications mentioned above would be dealt with in a combined hearing for the convenience of the parties and to curtail costs.

[12] At the commencement of these proceedings I requested the parties to address the Court in regard to the points of law raised in limine by the respondents, namely, the special pleas of res judicata and issue estoppel. I further requested the parties to address me regarding the vexatious litigant counter-application lodged by the respondents.

[13] During the submissions by the parties it transpired that the applicant was raising Rule 42 (2) which formed the basis of his variation application as his reply to the special plea of res judicata and/or issue estoppel. For this reason I allowed the parties to address me regarding the variation application.

The Law

The Exceptio Rei Judicatae Vel Litis Finitae

[14] The principle of res judicata was pronounced upon in the matter of National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor. Distributors (Pty) Ltd 2001 (2) SA 232 (SCA) when Olivier JA stated:

“[2] The requirements for a successful reliance on the exceptio were, and still are: idem actor, idem reus, eadem res and eadem causa petendi. This means that the exceptio can be raised by a defendant in a later suit against a plaintiff who is “demanding the same thing on the same ground” (per Steyn CJ in African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 562 A); or which comes to the same thing, “on the same cause for the same relief” (per Van Winsen AJA in Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472 A - B; see also the discussion in Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 664 C - E); or which also comes to the same thing, whether the “same issue” had been adjudicated upon (see Horowitz v Brock and Others 1988 (2) SA 160 (A) at 179 A - H).

[3] The fundamental question in the appeal is whether the same issue is involved in the two actions: in other words, is the same thing demanded on the same ground, or, which comes to the same, is the same relief claimed on the same cause, or, to put it more succinctly, has the same issue now before the court been finally disposed of in the first action?”

Issue Estoppel

[15] In the alternative, the defendants have raised the special plea of issue estoppel which emanates from English law. The concept was discussed and elucidated in the case of Smith v Porritt and Others 2008 (6) SA 303 SCA. In the headnote at page 304 the following is stated:

“The ambit of the exceptio rei judicata has over the years been extended by the relaxation in appropriate cases of the common-law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of the requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem questio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact of law was an essential element of the judgment on which reliance is placed. Where the issue of res judicata is raised in the absence of a commonality of cause of action and relief claimed it has become commonplace to adopt the terminology of English law and to speak of issue estoppel. But this is not to be construed as implying an abandonment of the principles of the common law in favour of those of English law; the defence remains one of res judicata. The recognition of the defence in such cases will, however, require careful scrutiny. Each case will depend on its own facts and any extension of the defence will be on a case-by-case basis. Relevant considerations will include questions of equity and fairness, not only to the parties themselves but also to others. It should be borne in mind that, unless carefully circumscribed, the defence of the res judicata is capable of producing great hardship and even injustice to individuals. (Paragraph [10] at 307 J – 308 E).”   

Discussion

[16] In the present case, it is quite apparent from the papers before me that the applicant’s claim relates to the same subject matter (eadem res) and the same cause of action (eadem petendi causa) as those determined in the judgments of De Klerk AJ and Van der Byl AJ. The applicant confirmed this fact in his address when he stated unequivocally that he is seeking an order:

(a)  declaring him to be a sixty per cent (60%) shareholder of the seventh defendant, and

(b)  that he be registered as such in the Companies Register in terms of the Companies Act 71 of 2008.   

[17] These matters were specifically dealt with by De Klerk AJ in the following terms:

“It is declared that:

(a)  The 1^st defendant is not a shareholder of Tension.

(b)  The 1^st defendant is not a director of Tension.

(c)  The 1^st defendant, not being a shareholder of Tension, was and is not entitled to convene a general meeting of the shareholders of Tension.”

[18] It is common cause that the applicant was the 1^st defendant and that the company referred to as Tension is the 7^th defendant in the present action. As stated above it is also common cause that leave to appeal against the judgment was refused by the court a quo, the SCA and the Constitutional Court. The judgment therefore stands and has not been set aside. In the circumstances, the defendants are justified in raising both special pleas, namely res judicata and issue estoppel.

The Varying Application

[19] The applicant seeks to use Rule 42 of the Uniform Rules of Court to vary the order of De Klerk AJ. If successful, the outcome would be the setting aside of the said judgment and substituting in its place the order sought by the applicant.  

[20] The substituted order sought by the applicant in his Notice of Motion (case number: 69663/13) is as follows:

“IT IS ORDERED

1.    THAT the matter is dismissed with costs in terms of the principle of ex turpi causa non uritur actio, in that the 1^st to 12^th plaintiffs in order to prove their case against defendants filed fraudulent documents to mislead the Court.

2.    It is ordered that the following forged documents:

(a)  the share certificate purportedly of the first defedant signed by the 10^th and 11^th plaintiffs in the Plaintiffs Trial Bundle Volume 1, page 077 constitute fraud and perjury;

(b)  the cancelled share certificate purportedly of the first defendant signed by the 10^th and 11^th plaintiffs in the Plaintiffs Trial Bundle Volume 1, page 078 constitute fraud and perjury;

(c)   the share certificate signed by the 10^th and 11^th plaintiffs in the Plaintiffs Trial Bundle Volume 1, page 075 constitute fraud and perjury;

(d)  the cancelled share certificate signed by the 10^th and 11^th plaintiffs in the Plaintiffs Trial Bundle Volume 1, page 076 constitute fraud and perjury;

(e)  The CM 42 form signed by the 10^th plaintiff in the Plaintiffs Trial Bundle Volume 1, page 335 constitute fraud and perjury;

(f)    The CM 42 form signed by the 10^th plaintiff in the Plaintiffs Trial Bundle Volume 1, page 073 constitute fraud and perjury;

(g)  The CM 42 form signed by the 10^th plaintiff in the Plaintiffs Trial Bundle, page 128 constitute fraud and perjury;

(h)  The CM 42 form signed by the 10^th plaintiff in the Plaintiffs Trial Bundle, page 134 constitute fraud and perjury;

(i)    The resolution in the Plaintiffs Trial Bundle, Volume 1 page 124 constitute fraud and perjury;

(j)    The resolution in the Plaintiffs Trial Bundle, Volume 1 page 127 constitute fraud and perjury;

(k)  The resolution in the Plaintiffs Trial Bundle, Volume 1 page 133 constitute fraud and perjury;

(l)    The agreement in the Plaintiffs Trial Bundle, Volume 1 page 125 and 126 constitute fraud and perjury;

(m) The agreement in the Plaintiffs Trial Bundle, Volume 1 page 122 and 123 constitute fraud and perjury;

(n)  The agreement in the Plaintiffs Trial Bundle, Volume 1 page 131 and 132 constitute fraud and perjury;

3.    It is ordered that:

(a)  It is ordered that forged typed Combined share register of the 12^th plaintiff constitute fraud and perjury in the Plaintiffs Trial Bundle page 491 to 502 constitute fraud and perjury.

4.    It is ordered that the following forged entries in the handwritten combined share register in the Plaintiffs Trial Bundle, Volume 4 page 921 and 922 constitute fraud and perjury:

(a)  special resolution of the 12^th plaintiff that the Kopano Trust will transfer 18 shares to the first defendant at R1.5 million on the 30 May 2003;

(b)   special resolution of the 12^th plaintiff that the Kopano Trust will transfer 3 shares to the TAE Development Trust at R250 000 on the 30 May 2003;

(c)  special resolution of the 12^th plaintiff that the Kopano Trust will transfer 6 shares to the TAE Employee and Management Trust at R500 000 on the 30 May 2003;

(d)  special resolution of the 12^th plaintiff that TAE Employee and Management Trust will transfer 6 shares to Kopano Trust @ R500 000 on the 5^th November 2004;

(e)  special resolution of the 12^th plaintiff that TAE Development Trust will transfer 6 shares to Kopano Trust @ R250 000 on the 5^th November 2004;

(f)    special resolution of the 12^th plaintiff that the first defendant will sell shares to Africa Heritage @ R1500 000;

5.    It is ordered that the following forged entries in the handwritten combined share register of the 12^th plaintiff, in the Plaintiffs Trial Bundle page 932 and 932 constitute fraud and perjury:

(a)  cancellation of TAE Employee and Management Trust as member of the 12^th plaintiff;

(b)  cancellation of TAE Development Trust as member of the 12^th plaintiff;

(c)  cancellation of the first defendant as member of the 12^th plaintiff;

6.    It is ordered that the following forged minutes of purported Annual General Meetings of the 12^th plaintiff presented to Registrar of Companies and filed with Court in the Plaintiffs Trial Bundle on page 732 to 737, constitute fraud and perjury:

(a)  minutes of 2004;

(b)  minutes of 2005;

(c)  minutes of 2006;

(d)  minutes of 2007;

(e)  minutes of 2008; and

(f)    minutes of 2009.

7.    It is ordered that the forged agreement of Africa Resources Limited (registered number 144429, registered in British Virgin Islands and Africa Heritage Investments (Pty) Ltd in the Plaintiffs Trial Bundle Volume 1 page 188, 190, 192, 194, and 196, constitute fraud and perjury.

8.     It is ordered that the forged memorandum of deposit and charge of Africa Resources Limited (registered number 144429, registered in British Virgin Islands) and Africa Heritage Investments (Pty) Ltd in the Plaintiffs Trial Bundle Volume 1 page 199 to 206, constitute fraud and perjury.

9.    It is ordered that a document showing that Africa Resources Limited is the owner 31 ordinary shares in the 12^th plaintiff in the form of berer warrants filed with the Court in the Plaintiffs Trial Bundle, Volume 1 page 208 constitute fraud and perjury.

10.  It is ordered that the document entitled schedule 3 stating that AHI has deposited with ARL (creditor) to hold for the benefit of itself 51.66% of issued share capital of the 12^th plaintiff of the Plaintiffs Trial Bundle, Volume 1 page 209, constitute fraud and perjury.

11.  It is ordered that the sale of shares agreement entered into between Kopano Trust, Africa Heritage Investments (Pty) Ltd of the 8 November 2004 is invalid.

12.  It is ordered that the forged documents filed by the 1^st to the 12^th plaintiffs constitute an offence in terms of section 294 of the Companies Act, Act 61 of 1973.

13.  It is ordered that the forged entries in the handwritten combined share register  of the 12^th plaintiff filed by the 1^st to the 12^th plaintiff with the Court constituted offence in terms of section 250 (1) of the Companies Act, Act 61 of 1973.

14.  IT IS ORDERED THAT:

(a)  the share certificate of 30 May 2003 signed by the 10^th and 11^th plaintiffs, with SARSrevenue stamp of 5c and stamped by the Auditors of the 12^th plaintiff in favour of the first defendant in the First Defendant Trial Bundle page 1 is valid and in compliance with section 94 of the Companies Act, Act 61 of 1973;

(b)  the shareholders agreement betweent the first defendant, Kopano Trust, TAE Development Trust, TAE Employee and Management Trust and the 12^th plaintiff of the 30 May 2003 is vaid;

(c)  sale of shares agreement entered into between the first deendant, Kopano Trust and of the 2^nd June 2003 in the Plaintiffa Trial Bundle page 312 to 327 is valid;

(d)  the cesion and pledge agreement between the first defendant, Kopano Trust and 12^th plaintiff of the 2^nd of June 2003 is valid; and

(e)  the agreement entered into between the first defendant, Kopano Trust, Africa Heritage Investment and the 12^th plaintiff of the 8 November 2004 is valid.

15.  IT IS ORDERED THAT:

a.   the decision of the Departmment of the Department of Trade and Industry as in

the letter sent to the 12^th plaintiff and the first defendant of the 14^th July 2009 on page 253 and 254 of the Plaintiffs Trial Bundle, Volume 1 is valid;

b.   The Notice to hold an Annual General Meeting of the 12^th plaintiff called by the Registrar of Companies of 14^th December 2009 is in compliance with section 179 (4) of the Companies Act, Act 61 of 1973 on page 481 of the Plaintiffs Trial Bundle, Volume 1 is valid; and

c.   The minutes of the Annual General Meeting of the 12^th plaintiff called by the Registrar of Companies on page 484 of the Plaintiffs Trial Bundle, Volume 1 is valid.

16.  IT IS ORDERED THAT:

a)    the first defendant is the shareholder of the 12^th plaintiff;

b)    the first defendant is a director of the 12^th plaintiff;

c)    the first defendant as a shareholder of the 12^th plaintiff was entitled to convene a general meeting of shareholders of the 12^th plaintiff;

d)    the content of annexure “H” including reference to section 213 of the Companies Act, Act 61 of 1973 is valid;

e)    Annexure “I” is valid;

f)     Annexure “I” on appointment of directors of the 12^th plaintiff is valid;

g)    Appointment of the 8^th defendant as company secretary is null and void;

h)    Annexure “K” is valid;

i)     The Notice of the Board Meeting of the 12^th plaintiff of 10 July 2010 is valid;

j)     The Board of directors meeting of the 12^th plaintiff of 26th July 2010 is valid; and

k)    The resolutions passed in the meeting of the Board of Directors of the 12^th plaintiff of the 26^th July 2010 are valid.

17.  IT IS ORDERED THAT Nobuhle Gloria Mthethwa and Parmanathan and Mariemuthu are interdicted from

a)    Performing any act as director of the 12^th plaintiff or shareholders representatives of Africa Heritage Investments (Pty) Ltd as it is in Liquidation.

18.  IT IS ORDERED THAT as shareholder and director of the 12^th plaintiff, the first defendant has the rights to call shareholders meeting and directors meeting in terms of the Companies Act, Act 61 of 1973, and interacting with the 12^th plaintiff’s banker and any other financial instittion relating to the 12^th plaintiff’s banking facilitites.

19.  IT IS ORDERED THAT the Registrar of Companies be directed to resore the 1^st to the 4^th defendant as directors of the 12^th plaintiff.

20.  IT IS ORDERED THAT ABSA Bank be directed to restore the 1^st to the 4^th defendants as signatories to the bank account of the 12^th plaintiff.

20.  IT IS ORDERED THAT:

a)    The 11^th plaintiff be referred to the Law Society of Northern Provinces in terms  of section 22 of the Attorneys Act of 1979 for serious misconduct of forging documents used in court to mislead Court;

b)    1^st to 12^th plaintiffs to be referred to the Director on National Prosecuting Authority for perjury and contravention of section 294 of the Companies Act, Act 61 of 1973; and

c)    The 10^th and 11^th plaintiffs be referred to the National Prosecuting authority fraud.

21.  IT IS ORDERED THAT:

d)    the 1^st to 12^th plaintiffs’ attorneys Brooks and Brand be referred to the Law Society Northern Provinces in terms  of section 22 of the Attorneys Act of 1979 for serious misconduct of using fraudulent documents in court to mislead Court.

22.  IT IS ORDERED THAT:

a)    the 1^st to 12^th plaintiffs be ordered to pay the cost of this action, including costs previously reserved by His Lordship Jordaan J, His Lordship Preller J, and Her Lady Tolmay J on attorney and own client scale, including cost of counsel, joint and severally the one paying the other to be absolved.

b)    the 1^st to 12^th plaintiffs pay cost of suit under case 2011/8084 reserved by His Lordship Mbha J in South Gauteng High Court on attorney and own client scale, including cost of counsel, joint and severally the one paying the other to be absolved.

c)    That the costs of the hearing be cost paid by the 1^st to 12^th, such costs including cost of counsel.”

[21] Rule 42 provides as follows:

“42 Variation and Rescission of Orders

(1)  The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

(a)  An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

(b)  an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

(c)  an order or judgment granted as the result of a mistake common to the parties.

(2)  Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation sought.

(3)  The court shall not make any order rescinding or varying any order or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed.”

[22] “The general well-established rule is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it – it becomes functus officio. The inherent jurisdiction of the High Courts does not include the right to interfere with the principle of finality of judgment, other than in the circumstances specifically provided for in the rules or the common law.”

See Erasmus, Superior Court Practice B1 – 306 G and De Wet v Western Bank Ltd 1977 (4) SA 770 (7) at 708 H – 781 A; Swart v ABSA Bank Ltd 2009 (5) SA 219 (c) at 221 B – D and 223 A – B.

[23] Rule 42 enables a court to vary orders or judgments where minor errors have occurred. Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA 466 E at 471 E – F; Mostert N. O. v Old Mutual Life Assurance Co. S Ltd 2002 (1) SA 82 A at 86 D.

[24] The applicant, quite erroneously, seeks to effect an alteration of a judgment of the High Court and achieve a result that could only be brought about by an appeal to a Higher Court through the use of the provisions of Rule 42. This is a significant misdirection or misunderstanding of the law which becomes even more surprising when considering that the applicant is an advocate (though not in practice). He brings this application in the face of a refusal of an application for leave to appeal even by both the Supreme Court of Appeal and the Constitutional Court. I will say more in this regard when I consider the application to declare the applicant as a vexatious litigant.

[25] The application is, as submitted by Mr Steyn, counsel for the respondents/defendants, bad in law and ought to be dismissed with costs.

The Counter Application

[26] The respondents have by way of Counter Application sought an order that the   applicant be declared a vexatious litigant in terms of the provisions of the Vexatious Proceedings Act No. 3 of 1956 for an indefinite period. They also seek an order banning him from instituting and/or proceeding with any further or existing proceedings against any one or more of the respondents without leave of this court or any Judge thereof. They also seek a punitive costs order.

[27] The applicant has been involved with the respondents in a business relationship which appears to have been centred in and around the activities  of the seventh respondent, a company known as Tension Overhead Electrification (Pty) Limited t/a Tractionel Enterprise.

[28] The sixth respondent who has deposed to an affidavit in support of the vexatious litigant application is the managing director of the seventh respondent.

[29] The business relationship between the applicant and respondents appears tohave soured during or about the year 2010 when allegations and counter- allegations began to fly between them about unsavoury or inappropriate behaviour regarding the ownership /management and/or control of the seventh respondent. This in turn, resulted in a raft of court actions instituted by both parties in the South and North Gauteng High Courts which have beenreferred to above.  

[30] The actions inter partes have culminated in the applications which are being dealt with in these proceedings.

[31] The applicant has opposed this application (vexatious litigant) on the basis that the applications he has instituted in this court have been so instituted in the exercise of his constitutional right of access to justice.

[32] Section 2 (1) (b) and (c) of the Vexatious Proceeding Act No. 3 of 1956 provides as follows:

“(b) If on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without leave of the court, or any Judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or Judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.

(c)    An order under paragraph (a) or (b) may be issued for an indefinite period or for

such period as the court may determine, and the court may at any time, on good cause show, rescind or vary any order so issued”

[33] The sojourns into court by the parties prior to the judgment of De Klerk AJ may be taken as having been par for the course for parties who were involved in a relationship in the hurly-burly of business. Business battles are often fought in the legal terrain and in courts.

[34] Whatever disputes they may have had were however seemingly legally resolved or settled in the judgment of De Klerk AJ. The applicant was at liberty to take the matter for further consideration in the higher courts. He indeed attempted to do so through his applications for leave to appeal. The SCA and the Constitutional Court confirmed the judgment of De Klerk AJ by dismissing the applicant’s application for leave with costs.

[35] Despite the pronouncement by all the courts, the applicant persisted by instituting the 2013 action and the three application dealt with herein.

[36] In this judgment I have quoted the order sought by the applicant in the varying application in full in order to demonstrate the applicant’s folly in bringing the said application. It defies logic that an advocate admitted by this court could so misconstrue the Rules of this court and so totally misunderstand the applicable processes as to bring such a lengthy application, waste the courts time and put the respondents to such considerable costs to defend an action that is instituted not only without reasonable cause but is devoid of all merit.

[37] The 2013 action and the three applications instituted by the applicant do in my view constitute vexatious proceedings. This court has had to contend with a total of about twenty files and the three applications consisting of not less than two hundred pages each. These proceedings have been brought about without the applicant paying any of the costs ordered by this court, the SCA and the Constitutional Court in prior proceedings. All things considered, it would seem that the presumed knowledge of the law on the applicant’s part will not deter him from instituting further court actions to the detriment of the respondents.

[38] In the circumstances I find that the applicant ought to be declared a vexatious

litigant. I do not however consider that he ought to be so declared for an indefinite period. He may have overreached himself in an attempt to exercise his right of access to justice. I consider it appropriate to declare him a vexatious litigant for a period of five (5) years.

[39] In the result the following order is made:

39.1       The First to Seventh and Twelfth Defendants’ special plea of Res Judicata is upheld;

39.2       The Plaintiff’s claims are dismissed;

39.3       The Applicant’s applications in case numbers: 

39.3.1 68077/2013;

39.3.2  69663/2013; and

39.3.3  75157/2013

are dismissed;

39.4       Mr Matane Edwin Mphahlele:

39.4.1   is declared a vexatious litigant in terms of the provisions of the Vexatious Proceedings Act, No. 3 of 1956 for a period of five (5) years;

39.4.2    may not, institute and/or proceed with any further or existing proceedings against any one or more of the First to Seventh or Twelfth Defendants in case number 54483/2013 without the leave of this Court, or any Judge thereof; and

39.4.3    is directed to pay the costs of the action under case number 54483/2013 as well as the applications under case numbers 68077/2013, 69663/2013 75157/2013 and the counter application to declare him a vexatious litigant under case number 68077/2013 on the scale as between attorney and own client.

___________________________

S. A. M. BAQWA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Heard on:                                           24 and 25 August 2015

Delivered on:                                     28 August 2015

 

For the Applicant:                              Mr Mphahlele

Instructed by:                         

           

For the First Respondent:                Adv. J. W. Steyn

Instructed by:                                  Brooks & Brand Inc.

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