Case Summary Written by Fatimah Ansary, Candidate Attorney, checked and released by Elani Vogel, Candidate Attorney
20 April 2022
This case portrays a clear indication of how the Courts will not entertain frivolous and vexatious litigation. The integrity of the Judicial system and its officers will be safeguarded to the extent that justice and reasonableness is required.
Mr Siphiwe Happy Mkhatshwa (the “first applicant”) is the Chairperson and one of the beneficiaries of Mawewe Communal Property Association (the “MCPA”) (the “fourth applicant”), established in terms of the Communal Property Associations Act 28 of 1996 (the “Act”). Isaac Nyomo Ntiwane (the “second applicant”) and Judy Mkhatshwa (the “third applicant”) are members of the Executive Committee of the MCPA (the “committee”).
Ms Evah Simangele Mkhatshwa (the “first respondent”) is the mother of Ms Khulile Nomvula Mkhatshwa, the Chieftainess of the Mawewe Tribe. The first respondent is a member of the Mawewe Traditional Council, one of the beneficiaries of the MCPA and was appointed as the Acting Chieftainess of the Mawewe Tribe while her daughter was a minor. The Mawewe Tribal Authority (the “second respondent”) is recognised in terms of the Traditional Leadership and Governance Framework Act 41 of 2003.
In March 2020, the High Court of South Africa, Mpumalanga Division, Mbombela, had granted an Anton Piller order and a temporary interdict in favour of the first and second respondents who had brought an application alleging corruption, theft and fraud in the MCPA and that the Executive Committee of the MCPA failed to register and restore certain farms to the Mawewe Tribe. The purpose of the application was to remove control from the ‘alleged hijackers’ of the MCPA and to ‘vindicate’ its ‘integrity’.
The respondents urgently sought an Anton Piller order and an interim interdict to preserve the evidence of the MCPA’s operations and to limit the management and running of the MCPA to certain appointees. As directed by the Judge President, the applications were heard in camera. The orders were granted and thus, the Committee was temporarily dissolved and three persons were appointed to take over and conduct an investigation into the MCPA’s affairs and report back to the High Court regarding the allegations.
The applicants then sought leave to appeal against the High Court’s decision, but was dismissed. The Supreme Court of Appeal also dismissed the applicants’ application for leave to appeal due to it having no reasonable prospects of success. As a result, the applicants sought leave to appeal from the Constitutional Court (the “Court”).
The applicants submitted to the Court that the High Court had granted the orders improperly and unlawfully and were sought for illicit purposes. The applicants alleged, as the basis for their appeal, that the Judge President exercised undue and improper influence over Roelofse AJ who thus, did not ‘act independently, impartially and without fear or favour’ when hearing the matter and making its decision. The Judge President sent a letter to the applicants’ legal representatives addressing and disposing of the accusations brought against Roelofse AJ and himself and invited the applicants’ legal representatives to retract the statements that they had made to Roelofse AJ in their correspondence. The Court did not provide any further details as to the communication between the applicants’ legal team, Roelofse AJ, and the Judge President except that it is not clear as to why the applicants would use the allegations as a basis for their appeal. The applicants argued that the alleged unlawful orders, that were granted due to the High Court’s material misdirection, had infringed section 25(1) of the Constitution of the Republic of South Africa, 1996.
The respondents submitted that the applicants’ application is defective on many grounds, which included that the High Court’s orders are not appealable as it is not final in nature.
Due to the merits of the applicants’ application, the Court dismissed the application for leave to appeal based on the fact that there are no reasonable prospects of success. The Court further ordered the applicants to pay the costs of the first and second respondents on an attorney and client scale.
The Court held that the Biowatch principle would not apply here as, although constitutional issues may be invoked, the application began with disputing the validity of the Anton Piller order. The principle from Biowatch Trust v Registrar Genetic Resources  ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC)entails that in constitutional litigation between a private party and the government, if the government loses the case, then the government will pay the other side’s (private party) costs. The Court agreed with the respondents who said that this “constitutes an attempt to bring the matter under a broad blanket of constitutional rights, so as to enable the applicants to then rely on the Biowatch principle”. The Biowatch principle also does not apply to an application which entails ‘frivolous and vexatious litigation’. In addition, the applicants did not assert their constitutional rights against an organ of State, which is required for the Biowatch principle to apply.
The Court had many reasons for its punitive costs order against the applicants. The Court held that punitive costs are awarded sometimes to help the successful party in recovering their expenses that are often substantial. Punitive costs are not awarded just to ‘punish’ the ‘vexatious litigant’.
In Public Protector v South African Reserve Bank  ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC), the Court had affirmed the punitive costs guiding principle that was made clear in Plastic Converters Association of SA on behalf of Members v National Union of Metalworkers of SA  ZALAC 39; (2016) 37 ILJ 2815 (LAC) which stated:
‘‘The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.’’
The Court also relied on Tjiroze v Appeal Board of the Financial Services Board  ZACC 18; 2020 JDR 1413 (CC); 2021 (1) BCLR 59 (CC) where a punitive costs order was also awarded against an applicant, who abused the Court process and defamed a Judicial Officer, and it provided that legal professionals should understand the impact and weight of defamatory remarks against a Judicial Officer.
The Court held that the applicants did not come to the Court with clean hands as they were stubborn in persisting with the serious allegations against Roelofse AJ and the Judge President, although these allegations do not have a factual basis and were addressed by the Judge President himself in a letter. It is disgraceful that these allegations formed the main part of the applicants’ application for leave to appeal to the Court. The Court stated that the applicants “chose to sail a sinking ship into deeper litigious waters, and in the process relied heavily on these unsubstantiated and scandalous accusations as the rudder”. The Court held that the applicants’ actions were prejudicial and vexatious to the respondents who had to incur legal expenses on issues that ‘have no place in this Court’.
The Court was disappointed that the applicants did not make reference to the Judge President’s letter that addressed the accusations. The Court held that there was ‘little room’ to believe that the ‘learned Judges in the High Court’ had acted improperly as it is common practice to grant Anton Piller orders in camera. The applicants continued with their accusations while ignoring the facts, which is attempting to ‘mislead’ the Court. The Court has often awarded punitive costs orders for punishing attempts at misleading the Court. The applicants had ruthlessly defamed the two Judicial Officers as an attempt to build their case. The Court has limited judicial resources that cannot be wasted on litigant’s trying to bring shame, without justification, upon Judicial Officers in order to win their case. The Court made it clear that litigants who use these shameful approaches, as in this matter, must be aware that no mercy will be given regarding costs.
In addition, what was more troubling to the Court was that the applicants’ legal representatives were ‘experienced senior counsel’ who should have known better. This matter was not brought to the Court by a desperate litigant who did not have any representation.
The Court held that, in this matter, it would be only reasonable that punitive costs order be awarded, especially when ‘ethical and professional standards’ are lowered.
The Court emphasised the costly consequences for litigants who use unjustifiable approaches to further their case, as in this matter, by awarding punitive costs orders. It was made clear that the lowering of ethical and professional standards will not be entertained by the Court
Therefore, this case can be seen as a reminder, or even a warning, to all legal practitioners to ensure that the Court process is forever respected and observed with honour.