MEC, Department of Co-Operative Governance and Traditional Affairs v Maphanga
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MEC, Department of Co-Operative Governance and Traditional Affairs v Maphanga
2021 (4) SA 131 (SCA)
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Citation |
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Case No |
652/2018 |
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Court |
Supreme Court of Appeal |
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Judge |
Maya P, Wallis JA, Mbha JA, Dambuza JA and Weiner AJA |
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Heard |
November 18, 2019 |
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Judgment |
November 18, 2019 |
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Counsel |
DP Crampton for the appellant. |
Flynote : Sleutelwoorde
Court — Abuse of process — Vexatious proceedings — Common law and Act — Requirements for order prohibiting institution of proceedings under Act — Court's inherent common-law power to stop proceedings constituting abuse of its process — Legal proceedings vexatious and abuse of process if obviously unsustainable as certainty — Stringent onus on applicant seeking such relief — Vexatious Proceedings Act 3 of 1956, s 2(1)(b).
Headnote : Kopnota
The appellant MEC's application for an order that the respondent, Mr Maphanga, not be permitted to institute proceedings against her, her department or any past or present member of the public service (except with leave of the court), was dismissed in the Pietermaritzburg High Court. The MEC argued that s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 [*] or, alternatively, the common law, entitled her to the relief claimed. She also sought declaratory relief stating that all Mr Maphanga's claims arising from his employment in the public service had been finally determined and had prescribed.
It appeared that Mr Maphanga had brought two sets of legal proceedings against the applicant arising from his broad dissatisfaction with the MEC's department and its predecessors. These included review and appeal proceedings launched in the Labour Courts; a delictual action in the High Court for damages relating to the sale in execution of his property (in which he alleged that the Department was involved); and a complaint in the General Public Service Sectoral Bargaining Council concerning severance pay from the Department. The High Court ruled that the MEC had failed to establish vexatious conduct on the part of Mr Maphanga, either under the Act or the common law. It also refused to grant the declaratory order.
2021 (4) SA p132
In an appeal to the Supreme Court of Appeal, the MEC argued that the High Court (i) had overlooked, for the purposes of s 2(1)(b), that Mr Maphanga had instituted five different legal proceedings, including the disputes referred to the Bargaining Council, against her; and (ii) had misconstrued the powers and discretion conferred on courts by the common law (as codified in s 173 of the Constitution) to address abuses of court process. During the hearing of the appeal reliance on s 2(1)(b) was, however, abandoned, with the matter proceeding on the court's common-law jurisdiction.
Held
While it was true that the MEC could not rely on s 2(1)(b) (see below), this did not entitle her to directly invoke the Constitution to enforce her rights without first relying on the Act (see [10]). Section 2(1)(b) was enacted to end persistent and ungrounded litigation in the courts, so that the first question was whether the procedures employed by Mr Maphanga were instituted in courts (see [12] – [13]). While the Bargaining Council was not a court for the purposes of the Act, the Labour Courts and High Court were, so the issue became whether the proceedings there were persistent and without reasonable cause (see [18] – [19]). The Labour Court proceedings multiplied merely because Mr Maphanga failed to correctly identify the correct forum in which to vindicate his claim while the High Court proceedings were based on an entirely different cause of action, so that it could not be said that there was a persistent or repetitive institution of proceedings by Mr Maphanga (see [21]). Nor could it be said that the High Court or Labour Court proceedings were instituted without reasonable grounds (see [22] – [23]). The MEC therefore failed to establish a right to relief under s 2(1)(b).
To succeed in an application under the court's inherent power to stop frivolous and vexatious proceedings it had to be shown that the respondent had habitually and persistently instituted vexatious legal proceedings without reasonable grounds. Proceedings were vexatious and an abuse of process if they were obviously unsustainable as a certainty and not merely on a preponderance of probability, and this requirement applied to all litigation that amounted to an abuse of process (see [25]). Courts had to proceed cautiously and could only in clear cases make orders prohibiting proceedings between the same parties on the same cause of action and on the same subject-matter. Orders had to be crafted to meet only the immediate requirements of the particular case and there was no power to impose a general prohibition that would curtail plaintiff's right to litigate. The MEC's contention, that there were no limits on the kinds of order that could be granted in terms of the court's common-law powers, was wrong (see [27]).
Since it could not be said that Mr Maphanga had habitually and persistently instituted legal proceedings against the MEC or that any of his claims were obviously unsustainable, no case had been made out under the common law either (see [28]).
The declaratory relief was correctly refused by the High Court. It was impossible to say that Mr Maphanga's claims had all prescribed or to decide whether they had been resolved (see [30]). Appeal dismissed.
Cases cited
Absa Bank Ltd v Dlamini 2008 (2) SA 262 (T): referred to
African Farms and Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A): applied
Assign Services (Pty) Ltd v National Union of Metal Workers of South Africa and Others 2018 (5) SA 323 (CC): referred to
2021 (4) SA p133
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to
Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) (1999 (2) BCLR 125; [1998] ZACC 19): applied
Corderoy v Union Government (Minister of Finance) 1918 AD 512: applied
Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W): referred to
Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman's Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC) (2018 (5) BCLR 527; [2018] 6 BLLR 531; [2018] ZACC 7): referred to
In re Anastassiades 1955 (2) SA 220 (W): applied
Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC) (1998 (7) BCLR 855; [1998] ZACC 9): referred to
My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (2015 (12) BCLR 1407; [2015] ZACC 31): referred to
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and Others 2018 (1) SA 38 (CC) ((2017) 38 ILJ 527; 2017 (4) BCLR 473; [2016] ZACC 49): referred to
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied
National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A) ((1994) 15 ILJ 1257): referred to
Petz Products (Pty) Ltd v Commercial Electrical Contractors (Pty) Ltd 1990 (4) SA 196 (C): referred to
R v Maseti and Others 1958 (4) SA 52 (E): referred to
Regering van die Republiek van Suid-Afrika v Disotto en Andere 1998 (1) SA 728 (SCA): dictum at 735D – E applied
S v Sitebe 1965 (2) SA 908 (N): referred to
Setlogelo v Setlogelo 1914 AD 221: applied
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) ((2007) 28 ILJ 2405; 2008 (2) BCLR 158; [2007] 12 BLLR 1097; [2007] ZACC 22): referred to
South African Railways & Harbours v Sceuble 1976 (3) SA 791 (A): referred to
South African Technical Officials' Association v President of the Industrial Court and Others 1985 (1) SA 597 (A): applied
Western Assurance Co v Caldwell's Trustee 1918 AD 262: dictum at 271 applied.
Legislation cited
The Vexatious Proceedings Act 3 of 1956, s 2(1)(b): see Juta's Statutes of South Africa 2019/20 vol 1 at 2-83.
Case Information
DP Crampton for the appellant.
No appearance for the respondent.
Order
The appeal is dismissed with costs.
The cross-appeal is struck from the roll.
2021 (4) SA p134
Judgment
Maya P (Wallis JA, Mbha JA, Dambuza JA and Weiner AJA concurring):
[1] This is an appeal against a decision of the KwaZulu-Natal Division of the High Court, Pietermaritzburg (Gorven J). The court a quo dismissed the bulk of relief sought in an application launched by the Member of the Executive Council for the Department of Co-operative Governance and Traditional Affairs, KwaZulu-Natal (the MEC), against the respondent, Mr Jabulani Crosby Maphanga. The main relief was sought under s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (the Act), alternatively, the common law. The appeal is brought with the leave of the court a quo. Mr Maphanga also filed a cross-appeal without first seeking leave therefor.
[2] The matter has a long and unhappy history for Mr Maphanga, which stretches back to the dawn of democracy. This appeal is the latest step in his attempts to resolve a dispute which started between him and his erstwhile employer, the appellant's department, in 1998. Before 1994 Mr Maphanga was employed by the Natal Provincial Administration. Following the amalgamation and rationalisation process in terms of which the provincial administrations of the former TBVC homelands were incorporated into the structures of the new democratic government, Mr Maphanga was absorbed into the Department of Local Government and Housing. According to him, the problems began...
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