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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:  23630/17

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

RNS INVESTMENTS AND ANOTHER

and

EPHRAIM MATHOLE

JUDGMENT

WANLESSA J

INTRODUCTION

[1] In this matter the First Applicant is RNS  INVESTMENTS  (PTY) LIMITED and the Second Applicant is NAZBRO PROPERTIES (PTY) LIMITED (hereafter  referred to as "the Applicants"). The Respondent is EPHRAIM MATHOLE, an adult male (hereafter referred to as "the Respondent").

[2]         The Applicants seek the following relief against the Respondent, namely:-

1.    That the Respondent  be declared to be a vexatious litigant in terms of Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (hereafter  referred to as "the Act");

2.    That no legal proceedings shall be instituted by the Respondent against any person in any court or any inferior court without the 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 

3.    That the Respondent be held in contempt of the court order granted by his Lordship Mr Justice Mabuse on the 24th of March 2016;

4.    That an appropriate sanction or penalty be determined and imposed upon the Respondent by the above Honourable Court for the Respondent's contempt of the said order of his Lordship Mr Justice Mabuse;

5.    That the costs of this application be paid by the Respondent on a scale as between attorney and client.[1]

[3]    On the 18th of April 2017 this Court granted an Order, ex parte, granting the Applicants leave, inter alia, to serve this application upon the Respondent by way of substituted service. A copy of that Order is Annexure "A" to the AFFIDAVIT CONFIRMING COMPLIANCE WITH THE EX PARTE COURT ORDER DATED THE 18TH OF APRIL 2017 and deposed to by one NAUSHINA MAHOMED ABOO. The Applicants duly complied with the terms of that Order, as set out in the aforesaid affidavit. Prior thereto and on or about the 101h of April 2017 the Respondent had served and filed a NOTICE OF INTENTION TO OPPOSE THE ABOVE APPLICATION which is Annexure "C" to the affidavit of Aboo and, also, at pages 112 and 113 of the application papers.

[4]    Having entered an appearance the Respondent has declined to serve and file an Answering Affidavit. Rather, in response to the relief sought by the Applicants the Respondent served and filed a document entitled "SPECIAL PLEA OR NOTICE OF POINT IN LIMlNE AS PER RULE 6(5)(D)(III)". A copy of this document, also dated the 101h of April 2017, may be found at pages 114 to 116 inclusive of the application papers. The matter was first set down for hearing on the unopposed roll on the 14th of June 2017 by way of a NOTICE OF SET DOWN dated the 6th of June 2017, a copy of which is at pages I 08 and I 09 of the application papers. Thereafter, the matter was set down for hearing on the opposed roll on the 20ih of November 2017 by way of a Notice dated the 18th of October 2017 (at pages 117 and 118 of the application papers).Presumably, the matter did not proceed on the 20th of November 2017 or it would not have been on the opposed roll for the week commencing on the 16th of April 2018. Curiously, no Notice of Set Down for that week could be located in the court file whilst preparing this judgment. Also, there is no proof of service in respect thereof in either the affidavit of Aboo or the application papers. On each occasion when the matter was set down for hearing on the opposed roll the Applicants, as they were entitled to do, set the matter down for hearing in light of the failure of the Respondent to file an Answering Affidavit within the prescribed time limits of Rule 6 and, consequently, without the Applicants filing a Replying Affidavit.

[5]     As interesting as the history of this matter may (or may not) be, it has no real bearing whatsoever on either the procedural or substantive issues which it is necessary for this Court to decide. This is so, in light of, inter alia, the further facts pertaining thereto and as set out hereunder.

[6]     The matter, having been set down for hearing on the opposed roll during the week commencing Monday the 16th of April 2018 was allocated to be heard on Wednesday the 18th of April 2018 at 14h00. As is the practice in this  Division   the  entire roll  for the week was circulated to  the " professions", being the professions of Advocates and Attorneys in the province of Gauteng. In light of, inter alia, the fact that the Respondent is not represented by attorneys in these proceedings, the attorneys representing the Applicants sent a letter (undated) to the Respondent, via email, on Friday the 13th of April at 12h02. A copy of that letter was handed in to the Court at the hearing on Wednesday the 18th of April 2018.ln that letter the Respondent was advised of the date and time that the matter had been set down for hearing and was also provided with a copy of the opposed roll for the week commencing the 16th of April 2018. Further, the Respondent was requested to acknowledge receipt of the said letter. At the hearing thereof the Court was advised by Counsel for the Applicants that the Respondent had declined to do  so.

[7]      The week prior to that commencing on the 16th of April 2018 fell  within  the recess period. During that week and, more particularly, on the 11th of April 2018, the Respondent filed a document, dated the 10th of April 2018 and entitled "NOTICE OF REMOVAL OF THE MATTER ON THE OPPOSED ROLL OF 16 APRIL 2018" with the Registrar of this Court. Prior thereto, this document was sent, by the  Respondent,  to  the Applicants' attorneys, via facsimile, on the 10th of April 2018 .Finally, the aforesaid document was filed by the Respondent, once again, with the Registrar of this Court on the l 61h of April  2018.

[8]    As is apparent from the heading of this document, it purports to be a Notice removing the matter from the opposed roll where it had been set down by the Applicants and was to be heard on the  18^th of April 2018 at 14h00.

The contents of the said Notice deserve particular attention. Firstly, it is stated therein that " .....the above matter has been removed from the court roll of the 16-April-2018 at 10h00 by judge Rabie office on the reasons that the matter has not been placed on the roll of the 16-April-2018 by any of the parties as per rule 6(5)(f) or rule 29(2)(a)(b) of the court rules and the respondent and others will not attend court on 16-April, may be the matter has been erroneously, mistakenly and falsely placed on the court roll of the 16-April-2018 without notice and compliance with all procedural requirements of enrolments" .

Secondly, the Notice states that " .....judgement or orders  have  been granted in the same matter under case no: 82060/2015 on the 06 and 08 December 2017 by judge Tuckter of the above court".

Finally, it is stated therein ".....that the office of the chief registrar, Mr Sipho Mniki has launched investigations into the illegal enrolment of the l 6-April-2018 as well as abuse of the court resources such opening four case numbers in the same set of fact which case numbers are as follows: case no: 94600/2015, case no: 82060/2015, case no: 97476/2016 and case no: 23630/2017" .

[9]     From the contents of the Respondent's Notice, it is clear that:-

(a)      It is alleged that there is already an Order in place, granted by Rabie J, removing the matter from the opposed roll of the week commencing the 16th of April 2018;

(b)     The Respondent (or any other party) will not attend court on the  16th of April 2018;

(c)     It is alleged that "judgment or orders" have been granted pertaining to the same issues as dealt  with  in the present application under a different case number, being case number 82060/2015, by Tuchten J·

(d)      There is allegedly an investigation under way by the Registrar of this Court into the alleged institution of four different " cases" under four different case numbers, allegedly dealing with the same set of facts.

[10] In the first instance, there is no provision in the Uniform Rules of Court or in the Practice Directives governing the practice in this Division, for the filing of a Notice whereby a matter is unilaterally and without the consent of the other party or parties, simply removed from the roll. Secondly, the contents of any Notice, with particular reference to the contents of this Notice, do not, by their very nature and in light of the fact that the averments set out therein are not, at the very least, made under oath, constitute evidence before this Court. Even if this Court was entitled to take cognisance thereof, there is little or no weight that this Court could place thereon. This is in light of the fact, inter alia, that the bald averments pertaining to, inter alia, previous Orders allegedly granted by this Court removing the matter from the roll and dealing with the issues of the Respondent's contempt and the Respondent being declared a vexatious Iitigant, together with averments that an investigation is allegedly under way by the Registrar of this Court into the alleged institution of four different "cases" under four different case numbers , allegedly dealing with the same set of facts, remain precisely that, namely "bald averments". This is so, since same are unsubstantiated in any manner whatsoever by either documentary or viva voce evidence in support thereof. On the other hand, what the Notice itself and the contents thereof do show, is that the Respondent was clearly aware that the matter had been set down for hearing on the opposed roll during the week commencing the 16th of April 2018.

[11]      On the 18th of April 2018 and at 14h00 when the matter was called the Applicants were represented by Counsel. Counsel advised this Court that the Applicants were of the view that the matter should not be removed from the roll but should proceed. There was no appearance by or on behalf of the Respondent. For the reasons set out above the Court was satisfied that the matter was properly before it and the matter proceeded in the Respondent's absence. After hearing argument on behalf of the Applicants the Court reserved judgment and the matter was postponed sine die.

[12]    At this stage, it is worthy to note that the purported removal of matters from the roll without the consent of the other party, appears to be the modus operandi of the Respondent. This is so, since in the matter of Ephraim Mathole & Others v Governing Body of the CCMA and Others, an unreported decision of Tlhotlhalemaje J in the Labour Court of  South Africa (Johannesburg) under case number J 2722/2017, at paragraphs [21] to [25] inclusive of the judgment, the learned Judge notes that the present Respondent instituted an urgent application (as Applicant) in that court against certain Respondents under case number J 1465/2017 and set the matter down for hearing on the 4th of August 2017. On the evening of the 3rd of August 2017 the Respondent filed a notice of removal of the urgent application from the roll on the basis that the parties had allegedly signed a settlement agreement to resolve the dispute. It appears that the Respondents in the urgent application had opposed same and had taken exception to the notice of removal of the matter and had indicated to the present Respondent that he should attend the court proceedings as scheduled.

As noted in paragraph [24] of the judgment the Respondent did not attend the hearing of the urgent application he had set down. The application was then dismissed by Prinsloo J.

At paragraph [25] of the aforesaid judgment the learned Judge held the following:-

"Even if there was any merit in any contention that he had removed the matter from the roll, this was no justification to be absent from court. His contention was that he did not " bother" to attend the court as the matter was properly removed from the roll. It is unheard of for a party to bring others to court and simply not show up at proceedings on the basis that a matter was removed from the roll on short notice and without a tender of costs. Such conduct constitutes utter abuse of the court process, especially the court's continuously over­ burdened urgent roll."

This Court not only aligns itself with the aforesaid findings of the Court in Ephraim Mathole & Others v Governing Body of the CCMA and Others (supra) but is also of the opinion that these findings are even more applicable in the present case where the Respondent is not dominus litis but is the Respondent in the application.

For, inter alia, the aforegoing reasons, this Court was satisfied that the application should proceed in the Respondent's absence. Having had some time to reflect upon that decision, judgment in the matter being reserved, this Court is , once again, fully satisfied that the decision was the correct one.

THE APPLICATION TO HAVE THE RESPONDENT DECLARED A VEXATIOUS LITIGANT

[13]      Prior to dealing with the history of the litigation that has ensued between the parties, it is important to note that prior to the hearing the Applicants filed a number of bundles of documents pertaining thereto. These bundles have been marked A to F respectively and contain, inter alia, court orders; written judgments (Bundle A) and application papers (Bundles B to F inclusive).The aforesaid bundles were made available by the Applicants to the Respondent in terms of the Order granted by this Court on the 18th of April 2017 under case number 23630/2017 read with the affidavit of Aboo, referred to earlier in this judgment.

[14]      The Applicants submit that over a period of approximately one and a half years the Respondent has instituted and prosecuted " a torrent of litigation" against the Applicants. Applications instituted by the Respondent and the necessary applications instituted by the Applicants in response thereto, are the following:-

14.1     A rescission application, instituted during December 2015[2] which the Applicants submit the sole purpose of which was to delay execution [3] of the order granted by Tuchten Jon the 11th of December 2015.[4] This application is yet to be finalised.[5]

14.2      The first urgent application, instituted during February 2016.[6] This application was heard on no less than three occasions. The interim relief obtained by the Respondent was ultimately set aside by Louw Jon the 1l1h of February 2017.[7]

14.3    The second urgent application which was instituted by the Respondent during March 2016.[8] This application was also heard on no less than three occasions, culminating in a hearing before Mabuse Jon the 23rd of March 2016.[9]

14.4       The third urgent application, instituted by the Respondent on the 22nd of April 2016 following the finalisation of the second urgent application by Mabuse J. In this third urgent application the Respondent once again sought to stay the execution of the order granted by Tuchten Jon the 11th of December 2015. The application was heard on two occasions the first being on a Saturday morning.

The third urgent application was ultimately dismissed with costs on the scale of attorney and client, including the costs of two Counsel.[10]

[15]     In addition to the aforegoing the following was brought to the attention of this Court by the Applicants.

15.1 During June 2016 the Respondent attempted to revive the rescission application some six months after it had first been instituted and to prosecute same on an unopposed basis. This was, as correctly pointed out by the Applicants, despite the fact that the Applicants had delivered a Notice in terms of Rule 6(5)(d)(iii).This gave rise to the Applicants being forced to institute a further application in terms of Rule 30, [11] an opposed hearing[12] and a further condonation application having to be instituted by the Applicants.[13]

15.2 During September 2017 the Respondent instituted a separate application to strike out the aforesaid condonation application (the second striking out application) . [14] This culminated in a further opposed hearing before Maluleke J where the condonation application was granted and the Respondent ordered to pay the costs.[15]

15.3 Finally, during September 2017 the Respondent sought to revive an application for review instituted some years prior by the Applicants by instituting an application "to dismiss the purported and fraudulent review case". [16] This was done, despite the fact that the review application  has not, to date, been opposed by the Respondent.

[16]      Not surprisingly, it was submitted, on behalf of the Applicants, that the Applicants had suffered significant financial losses and other prejudices as a result of the Respondent's past conduct. It was further submitted that the mountain of litigation referred to above had not been based on any reasonable grounds. In support of this submission, it was pointed out by the Applicants' Counsel that, apart from the interim relief granted during the first two urgent applications, which interim relief was later set aside, the Respondent had failed to achieve any success therein whatsoever, alternatively, had failed to prosecute any of the applications instituted by him to finality. Arising therefrom, it was submitted by the Applicants that the sole purpose of the litigation instituted by the Respondent was designed to harass the Applicants and was therefore vexatious. In further support of this contention, it was also submitted that the Respondent's statements made during the course of the litigation which had ensued between the parties are not only evidence of his vexatious attitude but also clearly show that he has had no regard of the rights of the Applicants. Also, it was submitted, on behalf of the Applicants, that the numerous applications instituted by the Respondent are demeaning and insulting of the Applicants and this Court and, as such, constitute a clear abuse of process. Finally, it was submitted  that this Court has  previously, by means of the order of

Mabuse J [17] attempted to put an end to the Respondent's vexatious abuse of process which (as evidenced by the relief sought that the Respondent be held to be in contempt of that order) has been unsuccessful. In the premises, it is submitted that the only available solution (in addition to holding the Respondent to be in contempt of court), is to declare the Respondent to be a vexatious litigant within the meaning of the Act.

[17]      As dealt with earlier in this judgment the Respondent has declined to file an Answering Affidavit to deal with the averments as set out in the Applicants' Founding Affidavit and, as dealt with in some detail, above. Rather, he has contented himself with the filing of a Notice in terms of Rule 6(5)(d)(iii). [18]

This Rule reads as follows:-

"Any person opposing the grant of an order sought in the notice of motion shall if he intends to raise any question of law only deliver notice of his intention to do so, within the time stated in the preceding sub-paragraph, setting forth such question."

[18]      So, clearly what is contemplated by the aforesaid Rule is that a respondent, where that respondent wishes to rely solely on a point of law in opposition to the relief sought by an applicant as contained in the notice of motion , may file a notice advising both the applicant and the court that he intends to do so and setting out, in the said notice, the principles of law applicable thereto. It must follow therefrom that, due to the very fact that this is a notice and not an Answering Affidavit (which is dealt with in a separate rule), it cannot carry any evidential weight at the hearing of the opposed application. This must be so, since anything stated therein, insofar as these averments relate to facts, are not confirmed under oath. Hence, unless the applicant should concede any facts set out therein, this Court is unable to take cognisance thereof.

[19]       The relief sought by the Applicants is in terms of Section 2(1)(b) of the Act which reads as follows:-

"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 the 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."

[20]         The leading authority in respect of Section 2 of the Act is that of ABSA Bank Limited v Dlamini [2007] ZAGPHC 241; 2008 (2) SA 262 (TPD). At paragraph [23] of the judgment, Rabie J held the following:-

"The purpose of the Act is to put a stop to persistent and ungrounded institution of legal proceedings. The Act does so by allowing a court to screen a "person (who) has persistently and without any reasonable ground instituted legal proceedings in any court or inferior court". The purpose of this screening mechanism is, in the words of Mokgoro J in the Beinash matter (supra),[19] ' to protect, firstly, the interests of the victims of the vexatious litigant who have repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation, and, secondly, to protect the public interest that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings'. The provisions of the Act consequently complement the common law to prevent vexatious litigation and an abuse of process."

[21]     There are numerous facts in ABSA Bank limited v Dlamini (supra) that are remarkably similar to the facts of the present matter. The dicta of Rabie J in paragraph (32] of the said judgment are not only constructive but also highly relevant to this Court reaching a decision in the present matter. These are the following , namely:-

" . .. .. .. .. The only manner by which the institution of future vexatious proceedings can be prevented, is to rely on the provisions of the Act;

the only manner to stay, strike out or otherwise deal with vexatious proceedings which have already been instituted, or to deal with any process or action or inaction leading up to, or during or subsequent to any legal proceeding or proceedings already instituted, and which constitutes an abuse of process, or generally brings the administration of justice into dispute, shall be done in terms of the applicable common­ law principles and the court's inherent power to apply  same".

[22]    Arising therefrom, it is appropriate, at this stage, to examine the order granted by Mabuse J on the 24th of March 2016[20] and the written judgment handed down on the 2nd of December 2016 by way of providing reasons for the granting of the aforesaid order.[21] The order (which is the same order giving rise to the Applicants seeking the relief that the Respondent be held in contempt of court) reads as follows:-

"1. The forms and service as prescribed by the uniform rules of court are dispensed with and this matter is heard as one of urgency in terms of rule 6(12).

2.    The 197th applicant is interdicted and restrained from making any utterances, transmitting any email or in any other way publishing any statements of or pertaining to the first and second respondents or its legal representatives which states or implies that:

2.1 the first and second respondent are engaged in criminal activities;

2.2 the first respondent is not the owner of the immovable property known as RNS House and situate at 125 Madiba Street, Pretoria, Gauteng;

2.3 the first and second respondent's legal representatives are unethical, unprofessional or have conducted themselves in an unlawful manner.

3.   The 179th applicant is interdicted and restrained form making any utterance, transmitting any email or in any other way publishing any statement of or pertaining to the judges of the Gauteng Division of the High Court of South Africa which states or implies that they are corrupt, biased or dishonest or in breach of their oath of office.

4.    The registrar is authorised to issue a warrant of ejectment pursuant to Tuchten J's order of 11 December 2015 and the third respondent is directed to execute that order forthwith and with such assistance from the South African Police Services as may be necessary in the circumstances.

5.    The costs of the application and counter application are to be paid by the 179th applicant on the scale as between attorney and client.

6.    The 179th applicant should not commence any litigation before he has paid all the taxed costs in respect of the cost orders against him."

[23]       In paragraph  [24] of the written judgment (at pages 40 and 41 of  Bundle

A)      Mabuse J held, inter alia, the following:-

"The court was satisfied that Mathole had not made a good case for the relie f that he sought and furthermore, that his application amounted to an abuse of the processes of the Court. Such an abuse, in my view, deserved to be met with a punitive order of costs. Mathole was an avid and prolific litigant. He seemed to enjoy launching Court applications against other people despite the fact that such applications lacked merits. This is proved by the launching of the current application, while he should have been aware that it lacked merits and his application for rescission of the order granted by Tuchten J. It was only proper that he be prevented from doing so by an order of costs..... .. ....In terms of the authorities the conduct which is vexatious and an abuse of the process of the Court may form the basis for an order of costs that such costs should be paid on an attorney and client scale.. ... .. .. .. .. .. .. .In my view, these proceedings were vexatious. The application itself was unfortunately ill-advised and misconceived.   Accordingly, it was only proper to  dismiss the application with costs to be paid by the applicant on the scale of attorney and client".

Further, in paragraph [25] of the aforesaid judgment, Mabuse J noted the following:-

" Mathole had also embarked on making spurious, disparaging and unfounded remarks or allegations about the sheriff, the respondents, the respondents' attorney and about members of the Bench of this Division. He seemed to do it with some measure   of impumty. . .. .. .. .. .. .. ."

The learned Judge then proceeded to set out extracts from numerous emails sent by the Respondent to various persons which clearly illustrated the above.  Finally,  it was noted, in paragraph (26] of the same judgment,  that it was following the aforegoing emails that the Respondents in that application (the Applicants in the present application) instituted the counter-application which gave rise to the granting of the order on the 24ht of March 2016.

[24]         As pointed out on behalf of the Applicants the manner and form in which relief was granted to the Applicants in the said order was clearly an attempt, by both the Applicants and the Court, to deter the Respondent from persistently and without any reasonable ground, instituting legal proceedings which are vexatious and an abuse of the processes of the Court. In doing so the order was an attempt to protect the Respondents; the Respondents' legal representatives and the Judges of the Gauteng Division of the High Court of South Africa from the Respondent making spurious, disparaging and unfounded remarks or allegations about them.

[25] With regard to the Respondent's past and ongoing conduct, it is clear from the undisputed facts of the present matter that, in the words of Mabuse J, he is ".....an avid and prolific litigant". It is abundantly clear that the Respondent will not stop his legal actions, applications and other legal processes unless and until he obtains that which he thinks is due to him from the Applicants (ABSA Bank Limited v Dlamini (supra) at paragraph [87]).This is so, despite any of the applications or legal processes instituted by the Respondent having any merit or lawful basis therefor. Indeed, this fact has already been accepted and held to be true, as set out the judgment of Mabuse J (supra).Moreover, the actions of the Respondent in the present application by attempting to remove the matter from the roll unilaterally and by way of notice rather than a substantive application and failing to attend court when the matter was to be heard, thereby acting to the potential prejudice (financial and otherwise) that could have been suffered by the Applicants had this Court not held that the matter should proceed, cannot, for obvious reasons, be ignored.

[26]       Coupled to these facts, is the conduct of the Respondent both before and

h

after the hearing of the application on the l 81   of April 2018 when judgment in this matter was reserved. This conduct is, once again, evidenced by numerous emails sent by the Respondent to, inter alia, various court officials,  which were also copied to, inter alia, other court officials; the Applicants' attorneys; "Fraud Hotline"; "Ethics Hotline" and Simone Bhana (the Judge's clerk for this Court).[22]

[27]      In the first instance the fact that the Respondent is hell-bent on continually litigating against, inter alia, the Applicants, is supported by the Respondent himself, where, in an email dated the 19th of April 2018, he states, in the final paragraph thereof, the following:-

"I. will not lose hope and I will fight the legal battle until sun set in that

I do not doubt in my ability that I am legal person".

In the same email the Respondent avers:-

" I will be all documentary evidence showing that the above attorney called Nushina Mohamed Aboo and his counterpart advocate Felt has been obtaining judgement or orders by improper means such as fraud and corruption in my absence contained in the judgement of the 11-December-2015 , judgement of the 12-February-2016, judgement of the 29-August-2017 and judgement of the 232-November -2017 and I am busy with the National Prosecuting Authority to lay a criminal charge of Fraud and corruption as well as criminal charge of money laundering in that... .. ... ..and the above applicants called RNS INVESTMENT and NAZBRO PROPERTIES wanted to defeat the ends of justice by.........".

During the course of a lengthy email dated the 26th of March 2018 (well before the present matter was to be heard), bearing the heading "MY MEETING WITH YOURSELF CHIEF REGISTRAR OF THE HIGH COURT PRETORIA REGARDING FRAUDULENT AND ILLEGAL ENROLMENT OF CASE N0:23630-2017 IN THE COURT ROLL OF THE 16-APRIL-2017 WITHOUT COMPLYING WITH THE DIRECTIVE AND RULE 6(5)9F) OR RULE 29(2)(A)(B)OF THE UNlFORM COURT RULES OR SUPERIOR COURT PRACTICE  ACT 10 OF 2013" ( which shows that there can be no doubt that the Respondent was well aware that the matter had been set down for hearing during the week commencing the 16th of April 2018) the Respondent avers, inter alia, the following, namely:-

" My meeting with yourself today the 26-March-2018 that I must write an email of this kind in order to take the matter for investigation that the above attorney called Nushina Mohamed Aboo of the NM ABOO ATTORNEYS  abused  the above court by.........".

The Respondent also stated the following:-

"Judge Tuckter did not hesitate......and fraudulent  consented order.. .. ..was obtained....without my knowledge and consent......that the fraudulent consented order was obtained by improper way and fraud in my absence without agreeing...... but eviction that took place on the 22-April-2016, judge Pretorius refused to stop which there was serious sign of racisms and assisting this people to run away from justice.".

Moreover, it was averred by the Respondent:-

"Case no; 23630-2017 was abandoned in that they did not complied with the order granted by Justice Sibeko and rule 47(3) application was illegally and fraudulent enrolled . .. ......".

Also, in the very same email the Respondent proceeds to say:-

".....and there was some acts of trying to bribe the judge to grant rule 47(3) application that will enable them to stop me from interfering in the illegal or fraudulent activities in the high court as per PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT 12 OF 2004. Another application and illegal or fraudulent enrolment took place on the 23-November-2017.. .. ... .."

Finally, insofar as this particular email is concerned, it was averred by the Respondent that:-

"The 1st and 2nd respondent called RNS Investment and Nazbro Properties represented by Advocate Felgate instructed by Nushina Mohamed Aboo of NM ABOO ATTORNEY failed to comply with the draft order.... .. and that is why case no:23630/2017 was improperly  and  illegally place on the roll of the 16-Apri)- 2018..... .. ..".

Shortly thereafter, on the 281h of March 2018 the Respondent sent a further email. In this email he averred, inter alia, the following:-

"Secondly this matter is in the hands of the Pretoria Central Police Station and the National Prosecuting Authority (NPA) . .. .. ....pretoria magistrate court prosecutor Marianna Suzan Nel took decision that the docket no:188/02/2016 and docket no:07/03/2016 should be closed and new one docket to be called fraud and corruption be opened for the prosecution of the attorney called Nushina Mohamed Aboo of the NM ABOO ATTORNEYS and one called Shaheer Noormohamed of the NAZBRO PROPERTIES, company responsible of collecting rent illegally  in the RNS  House situated  in 125  madiba  street as  well as·illegal eviction . . . . .. . . .. ."

On the 11th of April 2018, a matter of days before the week commencing on the 16th of April 2018 the Respondent wrote yet another email. In this email he refers to one "Bastita" who is apparently a court official dealing with the opposed motion roll and avers the following, namely:-

"Another worst part is that Bastita is having personal interests in the matter no: 23630/2017 in that yesterday the 10-April-2018 Bastita confessed and admitted in front of me that certain people phoned him after service of my notice of removal to investigate whether judge Rabie office did ever withdraws the matter and he (Bastita) will communicate with judge Rabie today the 1l-April-2018 to find out whether the matter was removed or not."

The following is also stated in this email:-

"Advise us on the necessary documentation evidence we have in my possession in the illegal enrolment that took place in the high court on more than three occasions... .. ..".

On the 2nd of May 2018, in another email, the Respondent avers:-

" .. .. .. .but the biggest problem in the above court is the official or employees of the court such as Bastita."

In the same email the Respondent also states:-

"I brought the notice of removal to remove the matter from the court roll of the 16-April-2017 but was further enrolled again on the court roll of the l 8-April-208 where the matter was heard between three o'clock (15h00p.m) and four o'clock aternoon (16HOOp.m) in an empty court 8C which shows beyond reasonable doubt that there was hidden agenda."

On the 5th of June 2018, in a further email, the Respondent states:-

"The former chief registrar was hundred percent (100%) satisfied after the reading order granted on the 08-December-2017 that the application  heard  on  the 18-April-2018  was a serious abuse and corruption in the court but said to me that he (former registrar) cannot interfere with the judiciary but he will wait the file from the judge Wanless to proceed with the investration administratively speaking."

The last paragraph of this email reads:-

"That is the crux of the matter and I am awaiting investigations to produce documentation to prove corruption in the court building administratively speaking."

The final email sent by the Respondent in this matter and in the Court' s possession (there  may or may not have  been  further emails written and disseminated  by  the  Respondent)  is dated  the 61 of June  2018 and is addressed to the court manager, Jeanette Ngobeni. In this email, it is averred:-

"The case is twofold here which is administrative corruption by Mr Daswa and Bastita and corruption by judge Wanless hearing a matter on the 18-April-2018 without the matter be properly enrolled. We are vigorous and eagerly waiting a reserved judgement or order to challenge with the applicable legislation and judicial conduct committee of the judicial service commission. Administrative corruption by Mr Daswa and Bastita is the duty of the court to investigate and take action against those responsible for receiving moneys from the other parties in to prejudice."

After admitting that he received an email from the Applicants' attorneys on the 13th of April 2018 notifying him that the matter had been enrolled for hearing on the 18th of April 2018 at 14h00 the Respondent, in the last paragraph of this email, states the following:-

"I am waiting a proper investigation by the court senior employees such as chief registrar and court manager because I had concrete evidence that Mr Daswa and Bastita are behind this corruption of illegal or unlawful enrolment and had been receiving moneys from the others parties to prejudice the others".

[28]    As set out above, the Notice filed by the Respondent in terms of Rule 6(5)(d)(iii) is precisely that. No more, no less. The purpose thereof is to advise the other party and the Court that the party filing the Notice intends to raise a point of law which will be argued at the hearing of the application. The contents of the Notice filed by the Respondent in the present matter do not comply with the provisions of the aforesaid Rule. No point of law is raised therein. Rather, the contents thereof, as submitted by Applicants' Counsel, appear, in the main, to relate to the merits of the Respondent's previous applications instituted against the Applicants. In addition thereto and despite the Respondent's "undertaking" that "The  respondent  will avail himself to court on the28-april-2017 to present the above special plea or point in limine as per rule 6(5)(d)(iii) of the uniform court rule" the Respondent elected not to appear at Court when the matter was finally set down for hearing on the 18th of April 2018 despite the fact that he has admitted he was aware thereof. Apart from failing to appear in person or to be represented at the hearing by an appointed legal representative the Respondent failed to comply with the relevant practice directive and failed to file either a practice note or Heads of Argument dealing with the "special plea or point in liinine "as purportedly raised by the Respondent in the said Notice. Since it was not competent for the Respondent to unilaterally remove the matter from the court roll, without the consent of the Applicants or by leave of this Court, the Court was entitled, as it did, to hear the application and determine same in the absence of the Respondent. In light of the fact that the Respondent had elected not to file an Answering Affidavit; not to appear at the hearing of the application and that neither the Notice in terms of Rule 6(5)(d)(iii) nor the Notice of Removal carried any evidential weight, it was left to this Court to determine the merits of the application on the undisputed facts as set out in the Applicants' Founding Affidavit[23] and as set out earlier in this judgment

[29]    From those facts, it is clear that the Respondent has, for a significant period of time, persistently "exhibited a contemptuous disregard of the court, its officials and its orders".[24] Considering that the period of time during which the Respondent has been litigating against the Applicants is, objectively speaking, not a particularly lengthy one, he may nevertheless be classified as a "prodigio us litigant". In this regard, it is common cause that the Respondent has instituted at least seven applications which have, in tum, given rise to at least three further applications.

[30]         This plethora of proceedings instituted by the Respondent have now "reached the stage where they are clearly intended to harass the victims (the Applicants)".The  Respondent is clearly " utilising the court, its processes and its officials in his vendetta" against the Applicants.[25] Even  if it cannot be said that the amount of litigation is vexatious then the same cannot be said in respect of the nature thereof. Not only have all of the applications instituted by the Respondent been doomed to failure from the start, with no reasonable prospects of success, but they have (supplemented by, inter alia, the email correspondence referred to above and to later in this judgment) contained abusive statements concerning, inter alia, the Applicants; the Applicants' legal representatives; the court officials  and this Court. These actions not only constitute a clear abuse of the court's process but are indicative of the vexatious attitude exhibited by the Respondent throughout. This has resulted in the Applicants incurring great legal costs in "defending themselves against this torrent of abuse". [26] Further, it would seem that the prospects of recovering these costs from the Respondent are not good.

[31]    Moreover, the submission made on behalf of the Applicants that the order granted by Mabuse J on the 24th of March 2016[27] sought to put an end to the Respondent's vexatious abuse of process and that this has proven to be unsuccessful, deserves serious consideration. Pursuant to the granting of the aforesaid order the Respondent persisted with his litigious ways, instituting no less than four applications, as dealt with earlier in this judgment. Further, these applications must, once again, be seen in the context of both the various emails relied upon by the Applicants and written by the Respondent during or about the period 4 April 2016 to 14 October  2016[28] and the emails referred  to earlier in this judgment. All of the aforesaid emails consist of injurious statements made by the Respondent, directed at, inter alia, the Applicants; the Applicants' legal representatives; various court officials and certain Judges of this Division . As such, they are clear evidence of the vexatious attitude of the Respondent in his institution of these applications and his continual abuse of the court processes.

[32]   In the premises, the relief sought by the Applicants that the Respondent be declared to be a vexatious litigant, together with the other relief as set out in paragraph 2 of the Applicants' Notice of Motion, not only falls squarely within the meaning and purpose of the Act but is the only relief which will ensure that the Respondent desist in the institution of legal proceedings against the Applicants. It follows from the aforegoing that the Applicants have discharged the onus of proof incumbent upon them to prove, on a balance of probabilities, that the Respondent has persistently and without any reasonable ground, instituted legal proceedings against the Applicants. Hence, in principle, the Applicants are entitled to the relief sought in paragraphs 1 and 2 of the Applicants' Notice of Motion.

[33]    In that regard, it should be noted that in paragraph 2 of their Notice of Motion the Applicants seek an order that, inter alia, " ... no legal proceedings  shall be instituted by the Respondent against any person. .. . ...". Thus the relief sought by the Applicants extends beyond, and is wider than, that merely prohibiting the Respondent from instituting legal proceedings against the Applicants. Of course, the granting of this relief is always subject to the safeguards as set out in the Act and echoed in the relief sought by the Applicants, namely, that the aforesaid prohibition is subject to the fact that the Respondent is still entitled, with "the leave of the court, or any judge thereof, or that inferior court" to institute such legal proceedings.

The word any in section 2(1)(b) of the Act is in reference to the person instituting an application in terms of this section of the Act. This is abundantly clear from the wording of the aforesaid section in the context and purpose of the Act. As set out above the word any in paragraph 2 of the Applicants' Notice of Motion has a different meaning. This was either an intentional act on behalf of the Applicants or a simple error. The question then arises as to whether or not it is competent for this Court, in granting the Applicants the relief as sought, to extend same to the institution of future legal proceedings by the Respondent against any person or in respect of the Applicants only.

Having regard to the past actions of the Respondent and the clear evidence that the Respondent is not adverse to instituting legal proceedings, without any merit whatsoever, against parties other than the Applicants (See Ephraim Mathole & Others v Governing Body of the CCMA and Others (supra)) it would be tempting for this Court to assume that it was the intention of the legislature that a vexatious litigant could be prohibited against instituting future legal proceedings against any person and grant an order against the Respondent, prohibiting him from doing so. This is particularly so where an argument in support thereof could possibly be sustained on the basis that the legislature, when enacting these provisions, contemplated the wide ranging effect thereof and, as a consequence thereof, provided the safeguards referred to above.

Turning once again to the wording of section 2(l)(b) of the Act, it is imperative to note the following:-

"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 the 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 primafacie ground for the proceedings."

It is clear therefrom that this section deals specifically with the institution of an application by the person who is either already the victim of vexatious proceedings by the vexatious litigant or who has reason to believe that he will soon become a victim thereof. If this is correct then it must follow therefrom that the relief granted to an Applicant ("any person") under this section of the Act must be limited to that person. There is nothing in this section that would allow a court to grant relief to a party on the basis that this party sought to protect another party or the public in general.

This is clearly illustrated by the distinct provisions of sections 2(1)(a) and 2(1)(b) of the Act. Section 2(1)(a) of the Act reads as follows:-

"If, on an application made by the State Attorney or any person acting under his written authority, the court is satisfied that any 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 the 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."

As is clear therefrom the applicant in proceedings for a person to be declared a vexatious litigant under section 2(1)(a) of the Act is the "State Attorney or any person acting under his written authority" . In such a case the applicant clearly does not act in his personal capacity but in the interests of the public at large. Hence the relief sought is not restricted to a single applicant or various named applicants . It therefore follows that, in these instances, the court may grant relief in the wider sense and bar a vexatious litigant from instituting legal proceedings against any person without first obtaining the necessary leave. If there was no distinction between sections 2(1)(a) and 2(1)(b) of the Act then the legislature would not have enacted two separate sections but would have combined both of the aforesaid sections into one.

Further, the argument in support of giving the relief sought in terms of section 2(1)(b) of the Act a wider meaning on the basis that the legislature had provided certain safeguards in respect thereof, whilst at first glance attractive, cannot be upheld, for, inter alia, the following reasons. Firstly, as already set out above, the legislature clearly envisaged (and catered for) two very  different scenarios . It therefore enacted two separate sections with the identical safeguards in each. Second ly, it would be improper to elevate these safeguards (as important as they may be) to something which they are not. Undeniably , they are extremely important to ensure that the rights of a Respondent to approach the courts for legitimate relief (constitutionally or otherwise) is not unduly restricted or even taken away. However, they are just that. Safeguards enacted in the wisdom of the legislature and for a  very specific purpose cannot be used as tools for interpretation. This would not be in accordance with the body of our common law in respect of the interpretation of statutes.

In light of the aforegoing, it would be improper for this Court to grant to the Applicants the relief sought and as set out in paragraph 2 of the Applicants' Notice of Motion. The order granted by this Court at the end of this judgment will accordingly reflect that the relief granted in favour of the Applicants against the Respondent as prayed in paragraph 2 of the Notice of Motion will apply to the Applicants only and not to "any person".

THE APPLICATION THAT THE RESPONDENT BE HELD IN CONTEMPT OF THE ORDER GRANTED BY THIS COURT ON THE 24^th OF MARCH 2016

[34]      It is a crime to unlawfully and intentionally disobey a court order.[29] This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court.[30] The offence has in general terms received a constitutional "stamp of approval" [31], since the rule of law-a founding value of the Constitution- "requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained"[32]

[35]     The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed "deliberately and mala fide".[33] Hence, the offence is not committed by mere disregard of a court order but by the deliberate and intentional violation of the court's dignity, repute or authority that this evinces.[34]

[36]      An Applicant who seeks an order declaring a party to be in contempt of a court order (civil contempt) must, ifhe seeks to have the court impose upon that party committal to prison (a criminal sanction) prove (a) the existence of a court order; (b) service or notice thereof; (c) non-compliance with the terms of the order; and (d) wilfulness and mala fides beyond reasonable doubt. But the Respondent bears an evidentiary burden in relation to (d) to adduce evidence to rebut the inference that his non-compliance was wilful and mala fide.[35]

[37]    It can safely be accepted that the requirements as set out in (a) and (b) have been satisfied in the present matter. In this regard, it is common cause that Mabuse J granted the order which may be found at pages 43 to 45 inclusive of the application papers. Further, not only was the order handed down in the Respondent' s presence but he has repeatedly referred to it in application papers filed by him pursuant to the granting thereof.[36] With regard to the Respondent's non-compliance with the said order, reference has already been made earlier in this judgment to the various emails sent by the Respondent, copies of which are Annexure "FA 6" to the Applicants' Founding Affidavit in the present application.[37] These emails are littered with injurious statements pertaining to the Applicants; their legal representatives; court officials and Judges of this Division. This judgment will not be burdened by setting out extracts from those emails herein. Suffice it to say the contents thereof are in flagrant disregard of the order  of Mabuse J with particular reference to paragraphs 2 and 3 thereof.[38] In addition thereto the Respondent has continued to breach the same paragraphs of that order by making injurious statements as contemplated therein in Notices and affidavits filed by the Respondent during the course of his continual litigation against the Applicants. [39] This conduct is clear from the contents of, inter alia, the third  the Respondent[40] the Notice in terms of Rule 6(5)(d)(iii) in the present application [41] and the various interlocutory applications between the parties. [42]As already dealt with in this judgment the Respondent's Notice in terms of Rule 6(5)(d)(iii) in the present application does not constitute evidence before this Court in opposition to the relief sought by the Applicants. The only real purpose served by the said Notice is to perpetuate the Respondent's abhorrent conduct as he continues his tirade against, inter alia, the Applicants and Judges of this Division in breach of the order of Mabuse J. In addition to the aforegoing the Respondent's conduct isclearly evidenced by the various emails sent by him pursuant to the hearing of this application, extracts from which are set out earlier in this judgment. [43] Finally, it would seem that the Respondent has continued to institute legal proceedings in breach of paragraph 6 of the order of Mabuse J since he has disregarded all cost orders made against him by this Court.[44]

[38]     In opposing this application the Respondent elected not to file an Answering Affidavit. As such, he has failed to place before this Court any evidence whatsoever to rebut the inference that his non-compliance was wilful and mala fide. This non-compliance is, for the reasons set out above, clear. Furthermore, from the facts set out herein and from the very nature of that non-compliance,  there can be no reasonable doubt that the Respondent  is in wilful and ma/a fide contempt of the order of Mabuse J granted on the 24th of March 2016.[45]

[39]     The final issue which requires this Court's adjudication is the appropriate sanction or penalty that should be imposed upon the Respondent by the Court arising from the Respondent's contempt of the aforesaid order. On behalf of the Applicants, it was submitted that the Respondent's contempt is so serious that his intentional violation thereof is an attempt to deeply undermine the dignity and authority of this Court in order to demonstrate that the orders of this Court should not be obeyed.[46] In light thereof the Applicants submit that the Respondent should be sentenced to direct imprisonment the length or term of which being a matter within  this Court's discretion.

[40]     In the matters of Matjhabeng Local Municipality v Eskom Holdings Limited; Mkhonto & Others v Compensation Solutions (Pty) Limited under case numbers CCT 217I15 and CCT 99/16 the Constitutional Court had reason to set out the relevant principles of our law on contempt of court. At paragraph [47] of the unanimous judgment delivered on the 26th of September 2017 the Court held that section 165 of the Constitution vouchsafes judicial authority. This section must be read with the supremacy clause (Section 2) of the Constitution. It provides that courts are vested with judicial authority and that no person or organ of state may interfere with the functioning of the courts. Further, in paragraph [48] of the judgment the Court held that in order to ensure the courts' authority is effective, section 165(5) of the Constitution makes orders of court binding on "all persons to whom and organs of state to which it applies". The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority.[47] Discernibly, continual non-compliance with court orders imperils judicial authority.

[41]     Most importantly, at paragraph [49] of the judgment it was held:-

"Although our courts have dealt with the law of contempt over the years, the approach on certain aspects regarding this form of crime remains unclear. A formulation of a coherent approach is thus necessary. This is particularly so because a certain means of enforcement for non-compliance, including committal to prison, may violate certain rights of the alleged contemnor, including the right to freedom and security of the person in terms of section 12 of the Constitution, which includes the right "not to be deprived of freedom arbitrarily or without just cause "and the right "not to be detained without trial" .

Also, at paragraph (50] the Constitutional Court held the following:-

"It is important to note that it 'is a crime unlawfully and intentionally  to disobey a court order'.[48]  The crime of contempt of court is said to be a  'blunt instrument'.[49] Because of this, 'wilful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence'.[50] Simply put, all contempt of court, even civil contempt, may be punishable as a crime. The clarification is important because it dispels any notion that the distinction between civil and criminal contempt of court is that the latter is a crime, and the former is  not."

The Court went on to hold, at paragraph [52] of the judgment the following, namely:-

" Although contempt is part of a broader offence, it can take many forms, even though its essence ' lies in violating the dignity, repute, or authority of the Court'.[51] Traditionally, contempt of court has been divided into two categories according to whether the contempt is criminal or civil in nature. These types of contempt are distinguished on the basis of the conduct of the contemnor. Criminal contempt brings the moral authority of the judicial process into disrepute and as such covers a multiplicity of conduct interfering in matters of justice pending before a court. It thereby creates serious risk of prejudice to the fair trial of particular proceedings. This was the case in Mamabolo, which involved publication of scandalous remarks against a judicial officer."

At paragraph [54], it was held, inter alia:-

"In some instances, the disregard of a court order may justify committal, as a sanction for past non-compliance. This is necessary because breaching a court order, wilfully and with mala fides, undermines the authority of the courts and thereby adversely affects the broader public interest. In the pertinent words of Cameron JA (as he then was) for the majority ir1 Fakie:

"While the litigant seeking enforcement has a manifest private interest in securing compliance, the court grants enforcement also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law." [52]

In paragraph [55] the Court made reference to the decision of the Supreme Court of Appeal in the matter of SA Fakie N.O. v CCII Systems (Pty) Limited (supra) where the Auditor-General had partly  failed to comply with an order of the Pretoria High Court and was held in contempt of court. In that matter he was sentenced to imprisonment, wholly suspended. It was held by the Constitutional Court in Matjhabeng Local Municipality v  Eskom Holdings Limited; Mkhonto & Others v Compensation Solutions (Pty) Limited (supra)at paragraph [55) that the aforegoing "is an example of the use of committal as a remedy and effective sanction for contempt of court".

In paragraph [56] of the same judgment the Court noted that the common law  drew a sharp distinction between orders ad solvendam pecuniam, which related to the payment of money and orders ad factum praestandum which called upon a person to perform a certain act or refrain from specified action. It was further noted by the Court that failure to comply with the order to pay money was not regarded as contempt of court, whereas disobedience of the latter order was.[53]

Finally, in paragraph [57] of the judgment the Constitutional Court cited, with approval, the decision of Mfeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk HC) where Jafta J (as he then was), at 451D-E, endorsed the long line of judicial authority that an order must be ad factum praestandum before the Court can enforce it by means of committal. The Constitutional Court also approved with the endorsement by Jafta J (at 456B-C) that "the objective of declaratory relief for contempt, for instance, is to vindicate the rule of law rather than to " punish the transgressor" . However, it was once again pointed out by the Constitutional Court that this did not mean " that a civil remedy of committal may not be imposed against a contemnor for contempt of court because, as pointed out in Fakie, "disregard sullies the authority of the courts and detracts from the rule of law".[54]

[42]      Applying these principles to the matter at hand, it is clear that this Court, in finding the Respondent to be in contempt of the order of Mabuse J on the 241 of March 2016, may order the committal of the Respondent to prison. In this .regard the aforesaid order, with particular reference to paragraphs 2, 3 and 6 thereof, is an order adfactum praestandum, as it calls upon the Respondent to refrain from specified action. It is further clear that the Respondent's actions in contempt of that order were a persistent and venomous attack on the dignity, repute and authority of this Court. As such, these actions were a wilful and unlawful attempt by the Respondent to sully the authority of the Court and to detract from the rule of law. Having regard to, inter alia, the broader public interest that the orders of courts be obeyed and the particular facts of the present matter, there can be no doubt that an appropriate sanction would be for this Court to order the committal of the Respondent to prison.

[43]      However, it is also incumbent upon this Court, in deciding upon an appropriate sanction in this matter, to take into account the Respondent's rights entrenched in the Constitution and asset out above. Moreover, whilst the actions of the Respondent in the past are surely deserving of the imposition of a strict sanction by this Court, it must be borne in mind that the contempt of the Respondent has been proven in respect of the order granted by Mabuse J and not any other orders of this Court. Also, this Court considers the fact that in addition to the sentence to be imposed upon the Respondent in respect of his contempt, he will now face the reality of being declared to be a vexatious litigant with the restrictions accompanied therewith . So, whilst that portion of the order to be made in this matter by this Court may, strictly speaking, be considered to be separate from that pertaining to the Respondent's contempt, it must nevertheless be borne in mind when considering a suitable sanction in respect of the latter. Lastly, this court should not lose sight of the fact that the penalty to be imposed upon the Respondent should be to vindicate the rule of law rather than to "punish the transgressor".

[44]      Having regard to all of the aforegoing, it is the opinion of this Court that an appropriate sanction in the present matter would be that the Respondent be committed to a period of imprisonment for one year but that this imprisonment be wholly suspended on the grounds that the Respondent is not, at any stage pursuant to the granting of this order, found, once again, to be in contempt of the order granted by Mabuse Jon the 24th of March 2016 under case number 82060/2015.In this way, not only is the rule of law protected but the personal liberty and freedom of the Respondent is (at least for the present moment)preserved. In this regard the Respondent should consider himself fortunate that he is not to be incarcerated from the date of this order. Following thereon, he is strongly advised to ensure that he makes every effort in the future not to breach any of the provisions of the order of Mabuse J. In the event of a further breach of that order, giving rise to the Respondent being held, once again, to be in contempt thereof, it is (without detracting from the discretion of another court to impose what that court may consider to be an appropriate sanction) highly unlikely that the Respondent will not be committed directly to prison.

[45]     Prior to granting the final order, it is appropriate to deal with one other aspect. It is this. For the proper enforcement of the order below, it is imperative that not only should the appropriate court officials be made aware of this order but, also, all the Judges of this Division. For that reason, paragraph 6 of the order has been formulated to deal therewith. In addition thereto, this judgment will be marked as one which may be of interest to other judges to assist in bringing the order to their attention.

THE ORDER

[46]    The following order is granted, namely:-

1.    The Respondent is declared to  be a  vexatious  litigant  in terms  of section 2( l )(b) of the Vexatious Proceedings Act, No. 3 of 1956(as amended);

2.    No legal proceedings shall be instituted by the Respondent against RNS INVESTMENTS (PTY) LIMITED and NAZBRO PROPERTIES (PTY) LIMITED in any court or any inferior court without the 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 are prima facie ground for the proceedings;

3.    The Respondent is held to be in contempt of the court order granted by Mabuse J on the 24th of March 2016 under case number 82060/2015;

4.    The respondent is committed to prison for a period of one year which  is wholly suspended provided that the Respondent  is not  held to be  in contempt of the order granted by Mabuse J on the 24th of March 2016 at any stage after the date upon which this order, under case number  23630/2017, is granted;

5.    The Respondent is ordered to pay the costs incurred by the Applicants in the institution of this application, on the scale of attorney and client;

6.    The Registrar of this Court is requested to provide each Judge in this Division with a copy of this Order.

BC WANLESS

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

Heard on:                                                 18 April 2018

For the First and Second Applicants:       Adv N. Felgate

Instructed by:      NM Aboo Attorneys

303 Office Tower, 3rd Floor

Killarney Mall

60 Riviera Road

Killarney

Johannesburg

011 4864005

Ref: 1119/NMA

info@nmaa.co.za

Adv N. Felgate

C/0 Wiese & Wiese Attorneys

748 Stanza Bopape

Corner Stanza Bopape & Beckett Streets

Arcadia

Pretoria

012 3431268

liesl@wieseattorneys.co.za

For the Respondent:          In person

matholeephra im @gmail.com

mathoIeephraim@we bmai I.co.za

Date of Judgment:              23 August 2018

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