Martin v Minister of Correctional Services and Another (30162/2016; 30664/2016; 30665/2016) [2016] ZAGPJHC 362 (12 September 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NOs: 30162/2016

30664/2016

30665/2016

Reportable: No

Of interest to other judges: Yes

Revised.

In the matter between:

HUMPHREY MANDLA MARTIN Applicant

Versus

MINISTER OF CORRECTIONAL SERVICES

COMMISSIONER OF CORRECTIONAL SERVICES Respondent

JUDGMENT

MATOJANE J

Introduction

[1] The Applicant, an awaiting trial prisoner, applied on urgent basis, in three separate applications, for an interdict against the Respondents. The Applicant represented himself. As I will show below all these applications are an abuse of the process of this court and serves solely as an annoyance to the Respondents.

[2] The relief sought by Applicant may be summarised as follows:

1. Under case number 16/30664

“An order compelling respondents to provide the Applicant with a copy of medical files in terms of Act 2 of 2000, sec 18(1);

That Second and Third Respondent transport Applicant to BARA to collect the said medical file copies;

That the Respondents are interdicted from harassing Applicant, threatening are intimidating him in anyway;

The Respondents to jointly and severally bear costs if they oppose the application”

2. Under case number 16/30162

“An order that Respondents give back all legal, case laws and documents siphoned - stolen from Applicant during searches, this contempt of Masipa J Order (sic)

That the Respondents not further abuse, harass and/or threaten the Applicant unnecessarily.

That the Respondents jointly and severally bear the costs of this application if opposed

That the Respondents to provide the court with 6365 copy as proof that I did lodge complaint about my stolen documents”

3. Under case number 16/30665

“That the Respondents are directed and ordered to provide Applicant with a proper diet as prescribed by a dietician, even when going to or coming from court;

That to the Respondents provide Applicant with proper wheelchair with proper foot rest pedals and pushing handles;

That the Respondents provides the court with all relevant 6 365 complaints registered pertaining to this court action, as proof that I did lodge complaints, Ref. no 64,78,81,90,138,139,147 of 6365 Book.

[3] On 6 October 2016 I stood down the first two applications that were before me to the 8 September 2016 and advised Applicant to approach the office of pro deo for assistance. Applicant used the opportunity to prepare and launch the third application for the 7 September 2016 also on urgent basis.

[4] Advocate Naseera Ali for the Respondents informed the court that Applicant has persistently and without reasonable ground instituted similar applications in the urgent court and such applications are still pending. I set out below the sequence of applications that Applicant has brought to court on urgent basis in the period 14 July 2016 to 6 September 2016.

Sequence of litigation

[5] On 14 July 2016 under case number 23966/2016, Applicant applied on an urgent basis for an order compelling Respondents to implement the recommendations of the medical doctors housed at Baragwanath hospital. The recommendations were in respect of the doctor’s letters dated 16, 18 and 30 May 2016. The respondents were to be ordered to furnish copies of diet change as prescribed by the dietician.

[7] The matter appeared on the urgent roll before Masipa J on 14 July 2016. The learned judge made the following order: -

a. the Respondents will take care of Applicant’s laundry. All other issues in the Notice of Motion which have not been resolved are postponed to Tuesday, 19 July 2016 at 10:00 on the urgent roll.

b. the Respondents to file their answering affidavits by Friday 15 July at 14h00.

c. Applicant if he so wishes to file his replying affidavit on Monday 18 July

2016. The Respondents are ordered to assist Applicant by permitting family members to enter Medium A so as to serve and file Applicants replying affidavit.

[8] Respondents filed their answering affidavits as directed. The matter was placed on the urgent roll on Tuesday, 19 July 2016.

Mokgoatlheng J postponed the matter to the normal roll for the 22 August 2016 as Applicant had to file his replying affidavit.

[9] Instead of filing a replying affidavit, Applicant set the matter down again on the urgent roll to be heard on 2 August 2016 seeking same prayers as above. Murphy J considered the submissions made by counsel for the Respondents and held that the order of Mokgoatlheng J that the matter be heard on 22 August 2016 stand. The matter was struck from the roll.

[10] On 23 August 2016 under case number 28552/2016 Applicant brought an urgent application before Nicholls J seeking the same prayers.

The Judge held that the matter was not urgent and moved the matter to the normal roll.

[11] On 30 August 2016 under case number 28988/2016 Applicant brought another urgent application. A draft order was made an order of court in terms whereof Applicant was to see a dietician at Baragwanath Hospital on Friday, 2 September 2016.

[12] On 31st August 2016 under case number 29762/2016 Applicant brought an urgent application before Carelse J. seeking an order directing respondents to

“provide him with library services, which shall include a computer, printer and relevant updated information from case laws to any other relevant reading material as envisage in section 35(2) of the Constitution and Section 18 of Act 111 of Department of Correctional Services;

The provision of copier services to ease access for facilities and opportunities stated section 17 of Act 111 of DCS of 1998”.

[14] The court removed the matter from the urgent roll and Respondent was ordered to file its Answering Affidavit on or before the 12th September 2016. The Applicant was to file his Replying Affidavit on or before 26th September 2016.

[13] Instead of waiting for the answering affidavit to be filed as ordered on 6 September 2016 Applicant brought the two urgent applications that are before me and the following day on the 7 September 2016 Applicant brought the third urgent application. I have decided to consolidate the three applications and write one judgment as they all relate to the same underlying course of conduct which characterises the history of all urgent applications that has been brought by the Applicant.

The facts of the matter

[14] Applicant is an awaiting trial prisoner. He is housed at Medium A where all awaiting prisoners are housed. Medium A is designed to accommodate between 2 500 to 3 000. Presently the prison population at Medium A consists of 4 139 awaiting trial prisoners.

[15] Applicant testified that he was refused bail on the 29 June 2016 because he could not prove exceptional circumstances to be released on bail on a charge of robbery. He told his then legal representative from Legal Aid South Africa of his medical condition and that he wanted to subpoena officials of correctional services to come and testify for him. According to him he was denied bail because he could not produce medical records. He made an application for a copy of his medical file in prison and was told to pay R300.00. He says the matter is urgent as he wants to personally make a renewed application for bail on new facts, based on his medical records. He ask the court to order respondents to transport him to Baragwanath hospital to fetch his medical records.

[16] He states in his founding affidavit that he suffers from neurological pain and as result he is unable to walk. His pain is worsened by cold weather and Respondents have refused to provide him with a heater despite a recommendation by a doctor. He states that the wheelchair he is using is not proper, a piece of cloth is used to rest his feet which has increased his pain and is causing damage to his shoes. He fears that this will lead to deep vein thrombosis. He alleges that Respondents are denying him food to harass him so that he could withdraw the actions he has instituted against them. Applicant refers to a series of case law and alleges that Respondents actions are in violation of his rights in terms of sections 32, 33, 195 and 237 of the Constitution.

[17] The request for Respondents to be ordered to transport Applicant to Baragwanath hospital to collect clinical records has no merit in law and in fact and is not urgent. Applicant has been provided with the documents he asked for. Pursuant to an order of Masipa J, and on 19 July 2016 First Respondent attached to its answering affidavit the following documents: -

a. A copy of hospital clinical records

b. A letter dated 18 May 2016 confirming that Applicant consulted with a psychiatrist.

c. A letter dated 30 May 2016 by a treating physician stating that Applicant needs a balanced exercise plan in order to manage his weight and neuropathic pain.

d. A letter dated 19 April 2016 from a dietician at Baragwanath Hospital stating that Applicant suffers from constipation and recommending a low salt high fibre diet.

e. A copy of a diet changes as prescribed by the dietician

[18] Regarding his request to be provided with a wheelchair with proper foot rest pedals and pushing handles, First Respondent explains in its answering affidavit that pending confirmation of Applicant’s disability status by medical specialists, it acceded to his demand that he be transported to various courts and hospital on a wheelchair despite him not been disabled. He was walking normally when he came to prison and despite consulting doctors regularly no doctor has recommended that he use a wheelchair. It is his decision that he must be provided with a wheelchair of his choice.

[19] According to a letter dated 18 May 2016 which was provided to the Applicant, he told the treating physician that his pains worsen during cold weather and for this the doctor recommended that Applicant be provided with a heater in his cell. First Respondent has advised Applicant to request his family to provide him with a heater as the purchase of a heater was not budgeted for. This issue was dealt with in the G365 complaints register where Applicant was in agreement with the respondents.

[20] Applicant’s request for a wheelchair with specifications of his choice and a heater is not urgent and is made with no sufficient grounds. At most this matter can only be decided in the ordinary motion court as directed by the various courts.

[21] First Respondent explained to Applicant in the answering affidavit that it is not in possession of the letter from the doctor dated 16 May 2016 and despite diligent search at the hospital, the said letter cannot be found. Respondent later discovered that Applicant consulted with a psychiatrist who found that Applicant did not suffer from any mental illness and recommended that Applicant consult with the psychologist at Medium A. An appointment with a psychologist was scheduled for 19 May 2016. Applicant was not available to consult with the psychologist as he had to attend court on that day. First Respondent has undertaken to liaise with a psychologist to determine when a consultation may be scheduled for the Applicant.

[20] The request for the court to be provided “with all relevant 6 365 complaints registered pertaining to this court action” is not urgent and serve solely as an annoyance to the Respondents.

[21] The request for a proper diet as prescribed by a dietician is not urgent and in terms of Masipa J order all other issues, including the request for a proper diet, which were not resolved were postponed to the 19 July 2016 on the urgent roll and then to the ordinary opposed motion roll and Applicant has failed to file replying affidavits. He has instead decided to bring the similar application before me on urgent basis.

[22] According to a letter from a doctor at Baragwanath Hospital dated 30 May 2016, Applicant needs a balanced exercise plan in order to manage his weight and neuropathic pain. The doctor recommended that Applicant take swimming lessons. First Respondent Informed Applicant that it is not in a position to provide him with swimming lessons. Despite raising numerous complaints in the G365 complaints book, Applicant never raised a complaint of the Respondents not assisting him with the exercise plan. This complaint is not urgent and Applicant does not allege that respondents are refusing to assist him to establish an exercise regime.

[23] It is clear from Applicant’s actions that he will not stop bringing urgent applications despite various courts having referred his applicantions to ordinary motion courts for adjudication. He is clearly utilising the court, its processes and its officials in his fights with prison authorities and nothing will steer him from the course he has set for himself. He remains impervious to court orders and there is every reason to believe that he will continue doing so.

[24] There can be no doubt that every court is entitled to protect itself and others against an abuse of its processes. As was said in Beinash v Wixley[1]

"When ... the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse."

What does constitute an abuse of the process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of "abuse of process".

[25] It follows that a court has an inherent power to put an end to persistent and ungrounded institution of legal proceedings[2]. Such power has to be exercised with very great caution and only in clear cases as courts are open to all, and it is only in exceptional

circumstances that the doors will be closed upon anyone who desires to prosecute an action[3].

[26] In the present matter the state has had to instruct counsel to defend groundless and vexatious proceedings on seven occasions at a huge cost to the state in circumstances were the functioning of the court is being clogged unnecessarily.

[26] Applicant has argued that he has a right in terms of section 34 of the Constitution to approach the court on urgent basis as he is an indigent person who is incarcerated and who is acting in person. Section 34 of the Constitution provides:

“Everyone has the right to have any dispute that can be resolved by application of law decided in a fair public hearing before a court of law, or where appropriate, another independent and impartial tribunal or forum”

[27] Applicant has two huddles to overcome. The first is that the right of access to courts under Section 34 is for the adjudication of bona fide disputes and not for ulterior purposes. Secondly, for purposes of section 36 (1) (d) of the Constitution is not unjustifiable in an open and democratic society which is committed to human dignity, equality and freedom for the court to protect its processes and the administration of justice against unsustainable and vexatious litigation.

Conclusion

[28] Having regard to the evidence placed before me and the submissions made by the parties and the court’s inherent duty to protect its processes, I come to the conclusion that Applicant has not made out a proper and sufficient case for the relief claimed in the three applications before me. The Applicant needed to merely show a prima facie right to the relief he is claiming. The claims fall to be dismissed and I make the following order

Order

[29] 1. An order is made dismissing the all proceedings instituted by the Applicant under the following case numbers:

a. 30162/2016

b. 30664/2016

c. 30665/2016

2. An order is made that no legal proceedings shall be instituted by the Applicant, and all who purport to act on his behalf, before this court against the Respondents in any Provincial or Local Division of the High Court of South Africa without leave of any judge of the High Court

________________

KE MATOJANE

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Counsel For The Applicant: In Person

Counsel for the Respondent: Nassem Ali

Instructed By: State Attorney

Date of Hearing: 06 September 2016

Date of Judgment: 13 September 2016

[1] [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 734

[2] Cohen v Cohen and Another 2003 (1) SA 103 (CPD). S v Sitebe 1965 (2) SA 908(N)911B-C

[3] Western Assurance Co. v Colderwall’s Trustee 1918 AD 262 at 271.