Mthenjwa v Steyn and Another (9028/17) [2017] ZAWCHC 161 (30 November 2017)

Mthenjwa v Steyn and Another (9028/17) [2017] ZAWCHC 161 (30 November 2017)

The application was fatally defective because the applicant failed to comply with section 47(1) of the Superior Courts Act by not seeking the consent of the Head of Court before instituting proceedings against the first respondent, a judge. The statutory requirement is peremptory and serves both procedural and substantive purposes, including screening out frivolous claims and protecting judicial independence. The applicant's constitutional challenge to section 47(1) was rejected, as the section does not unreasonably limit the right of access to court but rather ensures that only meritorious claims proceed. Furthermore, the applicant failed to establish good cause for leave to institute...

Citation
[2017] ZAWCHC 161
Parties
Applicant: Sepheka Mthenjwa; Respondent: Elize Steyn; Respondent: National Minister of Justice
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 November 2017
Case Number
9028/17
Procedural Posture
Leave to Appeal / Application for Leave to Institute Proceedings Against a Judge Under S 47(1) of the Superior Courts Act
Outcome
Application dismissed with costs.
Judges
L P Tlaletsi
Legal Topics
Superior Courts Act Section 47, Leave to Sue Judge, Constitutional Right of Access to Court, Qualified Privilege of Judges
Civil Procedure Constitutional Law Superior Courts Act Section 47 Leave to Sue Judge Constitutional Right of Access to Court Qualified Privilege of Judges

Case Brief

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Parties

Sepheka Mthenjwa

Applicant

Elize Steyn

Respondent

National Minister of Justice

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Institute Proceedings Against a Judge Under S 47(1) of the Superior Courts Act

Legal Issues

  1. 1 Whether the applicant complied with section 47(1) of the Superior Courts Act by obtaining the consent of the Head of Court before instituting proceedings against a judge.
  2. 2 Whether section 47(1) unconstitutionally limits the applicant's right of access to court under section 34 of the Constitution.
  3. 3 Whether the applicant established good cause for leave to institute proceedings against the first respondent.

Ratio Decidendi

The application was fatally defective because the applicant failed to comply with section 47(1) of the Superior Courts Act by not seeking the consent of the Head of Court before instituting proceedings against the first respondent, a judge. The statutory requirement is peremptory and serves both procedural and substantive purposes, including screening out frivolous claims and protecting judicial independence. The applicant's constitutional challenge to section 47(1) was rejected, as the section does not unreasonably limit the right of access to court but rather ensures that only meritorious claims proceed. Furthermore, the applicant failed to establish good cause for leave to institute...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs, such costs to include those consequent upon the employment of two counsel.