Sibanyoni v Executive Mayor of Nkangala District Municipality and Others (3542/2020) [2022] ZAMPMHC 24 (11 November 2022)

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MIDDELBURG LOCAL SEAT)

CASE NO:3542/2020

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

11/11/2022

In the matter between:

ZENANI FRANCE SIBANYONI APPLICANT

AND

EXECUTIVE MAYOR OF NKANGALA FIRST

RESPONDENT

DISTRICT MUNICIPALITY

MUNICIPAL MANAGER NKANGALA SECOND

RESPONDENT

STANFORD MOFORE N.O.

THIRD RESPONDENT

ESKOM KUSILE POWER STATION

FOURTH RESPONDENT

ENGEN OIL FIFTH

RESPONDENT

JUDGMENT

LANGA J:

Introduction

[1] This is an application for judicial review ostensibly brought in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000, (PAJA), for the judicial review and also for relief in terms of the National Environmental Management: Air Quality Act, Act 39 of 2004 (“NEMA: QA”).

[2] The application apparently results from the issuing of an environmental or Atmospheric Emission Licence by the Nkangala Municipality to Eskom’s Kusile Power Station in terms of section 42 and 43 of NEMA:QA. The applicant launched the present application on 17 November 2020 and challenges the alleged administrative decisions purportedly made on 14 November 2018 by the Municipality Respondents, namely the Executive Mayor of the Nkangala District Municipality, (“first respondent”), the Municipal Manager, Nkangala Municipality, (“second respondent”) and Stanford Mofore, an Atmospheric Emissions Licencing Officer, Nkangala District Municipality, (“third respondent”). The fourth respondent is Eskom Kusile Power Station while the fifth respondent is Engen Oil.

[3] All the respondents opposed the application and the first to third respondents also launched a counter-claim against the applicant in terms of the Vexatious Proceedings Act, Act 3 of 1956. In their submissions and arguments all the respondents raised the issue of condonation amongst other issues and argued that this application was brought out of time and not in compliance with the requirements of PAJA.

Relief sought by the applicant

[4] The relief sought by the applicant in a convoluted 11-page notice of motion can best be summarized as follows:

Prayer 1.1

An order to review, set aside, alternatively vary, and further alternatively, declare invalid the decision of the third respondent, the Municipal Manager of Nkangala Municipality, dated 14 November 2018 granting atmospheric emission licences to the fourth and fifth respondents, Eskom Kusile Power station and Engen Oil, respectively;

Prayer 1.2

In this alternative prayer the applicant seeks several orders including the granting of a mandamus against the first, second and third respondents to vary their decision granting the atmospheric emissions licences to the fourth and fifth respondents. He further seeks an order that the fourth and fifth respondents, create and finance what he refers to as the Internal Pollution Risk Funds in terms of sections 39, 41, 45 and 46 of the NEMA: QA and sections 24(b) and 27 (2) of the Constitution. The applicant further seeks in this prayer an order that Kusile and Engen contribute 1% of their gross profits to the fund on a monthly basis in order to finance mobile health clinics for the employees of Kusile and Engen who are allegedly ill due to air pollution caused by Kusile and Engen. He also seeks as relief that Engen provide him with the financial statements of the said risk fund on a monthly basis.

Prayer 1.3

In this prayer the applicant repeats the relief in prayer 1.2 that a mandamus be granted against Kusile and Engen to formulate the Internal Risk Fund in terms of sections 39, 41, 45 and 46 of the NEMA: QA and sections 24(b) and 27 (2) of the Constitution and that they be ordered to make contributions to the fund.

Prayer 1.4

In this prayer the applicant seeks supervisory orders against the respondents and an order against Engen to file monthly affidavits with the Registrar of the High Court in order to ensure that the orders sought are timeously and expeditiously implemented;

Prayers 1.5 and 1.6

In these prayers he seeks a declarator declaring him the owner of the deeds of trust formulating the said internal air pollution risk funds, alternatively, declaring him to be the intellectual property owner of the idea of formulating internal air pollution risk funds.

Prayers 1.7 and 1.8

The relief sought in these prayers is an order declaring him entitled to acquire to acquire 1% gross proceeds flowing from internal air pollution risk funds, alternatively declaring him entitled to acquire monthly reasonable and/or royalties flowing from the said funds.

Prayer 1.9

Lastly the applicant prays for costs of the application if opposed.

Facts

[5] It is common cause that on 15 March 2017 the second respondent granted Engen Oil the Atmospheric Licence and which was subsequently renewed on 21 June 2018 by the second respondent. It is evident from the papers that on 31 May 2018, prior to the renewal of the said licence, the applicant requested the Municipality in writing to attach certain conditions to the renewal of the licence. These included a condition that Engen Witbank terminal be required to formulate the Engen Witbank Terminal Petrol Air Pollution Trust Fund.

[6] The Municipality however, proceeded to renew the licence on 21 June 2018 without attaching any conditions. On 19 October 2018 the applicant again requested the Municipality to attach conditions to the renewal of Engen’s licence. On 14 November 2018 the Municipal Manager wrote a letter to the applicant informing him that his proposed conditions were ultra vires the NEMA: QA and could therefore not be incorporated into the renewal of the licence as he proposed. It was only after he received this letter from the Municipal Manager that the applicant decided to go to court.

[7] Although in his notice of motion the applicant avers that the impugned decision was taken on 14 November 2018 it is, however, clear that this is wrong as the decision he purports to be challenging, the renewal of the licence, was made on 21 June 2018 and not on 14 November 2018 as alleged in his notice of motion. In fact, from the papers no administrative decision appears to have been taken on 14 November 2018 as will be clear from the ensuing paragraphs. Therefore, based on the papers there is no administrative act capable of judicial review under prayer 1.1 of the notice of motion. I however deal with this issue as well as the application for condonation and prospects of success on the merits fully below. I thereafter deal with the applicant’s assertion that he is litigating in the public interest under section 38 (1) (c) of the Constitution. Lastly, I deal with the counter claim by the first to third respondents as well as the costs.

Condonation application by the applicant

[8] The applicant seeks condonation for launching his application for judicial review only on 17 November 2020. In terms of the provisions of section 7(1) of PAJA any person who is unhappy with an administrative decision can challenge the decision in court within 180 days (6 months) of the final decision or the internal appeal having been decided. It is common cause that this application was brought way out of time even if the calculation of the days prescribed in the above section is based on the applicant’s own version that the impugned decision was taken on 14 November 2018. It is however, not in dispute that the applicant only launched his application in this court on 17 November 2020, more than two years late. Although he states in his papers and the notice of motion that the impugned decision was taken on 14 November 2020, this is however, clearly incorrect as the decision granting the emission licence was made 15 March 2017 and the extension of the licence granted on 21 June 2018 as stated above.

[9] Although the applicant argued that he was not deliberately late in bringing this application, this averment is not supported by the facts. The applicant’s defence that he erroneously first approached the Pretoria High Court within the prescribed time is incorrect. According to the undisputed facts he approached the Pretoria High Court in April 2019, 10 months late according to the correct calculations and 5 months based on his calculations. So even if the calculations are based on the first application he was still out of time.

[10] Notwithstanding this reason, the applicant however, did not lodge his application in the Middelburg High Court even after the matter was removed then from the Pretoria High Court roll for lack of jurisdiction. The applicant decided instead to directly approach the Constitutional Court instead of approaching the correct court which by then he was aware of.

[11] Unsurprisingly he was denied direct access by the Constitutional Court on 12 February 2020. Subsequent to that unsuccessful application in the Constitutional Court, the applicant once again did not launch his application in this court. Instead the applicant decided to approach the Judicial Services Commission with a complaint against the Chief Justice and 8 Constitutional Court judges, apparently as a result of the dismissal of his application for direct access. As a result, the applicant eventually only brought the application in this court on 17 November 2020 even though direct access to the Constitutional Court was denied 9 months earlier on 12 February 2020. Therefore, even if the date of 12 February 2020 is used in the calculation of the period prescribed in Section 7(1) of PAJA, the applicant would still have brought this application more than 8 months late.

[12] It is trite that an applicant asking for condonation must show good cause for his non-compliance with the rules. Condonation is not there for the taking but must be fully and properly motivated. In an application for condonation the court essentially exercises a judicial discretion upon a consideration of all the relevant facts. Factors such as the degree of non-compliance, the explanation for the delay, the prospects of success, the importance of the case, the nature of the relief, the interests in finality, the convenience of the court, the avoidance of unnecessary delay in the administration of justice and the degree of negligence of the persons responsible for non-compliance are taken into account. These factors are interrelated. For example, good prospects of success may compensate for a bad explanation for the delay. It is trite that where an applicant fails to give a satisfactory explanation the court will normally refuse to grant the application for condonation and the position is the same where it is found that there has been a reckless or intentional disregard of the rules of court.

[13] In Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited (95/2016) [2017] ZASCA 88 (6 June 2017) at par [26] the Supreme Court of Appeal pointed out that a litigant “…should, whenever he realises that he has not complied with a rule of this court, apply for condonation without delay. A full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.” (my emphasis).

[14] It goes without saying that the applicant must therefore give a satisfactory explain for the delay so as to enable the court to understand how the delay came about. A full and reasonable explanation, which covers the entire period of delay, must be given. If there has been a long delay, the court should require the party in default to satisfy the court that the relief sought should be granted, especially in a case where the applicant is the dominus litis as is the case in casu. It is therefore not sufficient for the applicant to only show that condonation will not result in prejudice to the other party.

[15] In this matter the explanation given by the applicant is not satisfactory at all. The reasons advanced for the late filing of the application fall far short of making out a case for the granting of the application for condonation. In fact, it is clear from the facts that the delay was self-created. For instance, despite having failed in the Pretoria High Court due to lack of jurisdiction and notwithstanding having been informed of the correct forum as he confirmed, the applicant still decided to approach the Constitutional Court for direct access instead of approaching this Court for relief in circumstances where he was aware which court has jurisdiction to hear the matter. To make matters worse, having failed to obtain direct access in February 2020, the applicant still did not approach the correct forum but instead decided to lodge a complaint with the JSC against the Constitutional Court Justices for apparently refusing him direct access.

[16] Despite having knowledge of the correct forum the applicant decided to go on a frolic of his own running from court to court and other tribunals. The applicant could not even explain why he did not lodge his application in this court from the 12 February 2020 when the Constitutional Court turned down his application for direct access up until November 2020 save to say that he took the matter to the Judicial Service Commission. It took more than 8 months to launch the application after his failure in the Constitutional Court and this is a long delay.

[17] I find that the delay in this matter, at least from October 2019, was not caused by ignorance which the applicant claims but was a result of a reckless if not intentional disregard of the rules of court. In addition, the applicant did not make any attempt to have the period extended by a court in the interest of justice as provided for section 9 of PAJA. The failure by the applicant to properly explain the delay in this matter is inexcusable. I therefore find that on account of the failure to explain the delay, the applicant’s application for condonation should be dismissed. In the light of this finding alone, the main application stands to fail. This notwithstanding, I have however, also considered it prudent to consider the merits of the matter as well as the prospects of success.

The merits

[18] It is trite that in considering the application for condonation the courts will also consider the prospects of success in the main case. As stated in paragraph 8 above good prospects of success on appeal or in the case may compensate for a bad explanation for the delay. I have therefore also considered the prospects of the application on the merits.

Ad prayer 1.1

[19] It must be stated from the onset that prayer 1.1 of the applicants notice of motion is prima facie fatally defective as it refers to the review and setting aside of a non-existent decision purportedly taken on 14 November 2018. As stated in the preceding paragraphs, from the papers it appears that the decision which the applicant purports to challenge is respect of the renewal of the atmospheric emission licence which was granted to the fifth respondent (“Engen Oil”) on 15 March 2017.

[20] Although it is alleged in the notice of motion that the administrative decision was made on 21 June 2018, it is however, evident from the papers that the renewal of this licence was granted on 21 June 2018 and not on 14 November 2018 as alleged in the notice of motion. It must be stated that the document dated 14 November 2018 is only a letter of response from the Municipality explaining to the applicant inter alia that his proposal for certain conditions to be included in the renewal could not be acceded to as the Municipality oes not have the authority to include any socio economic conditions as part of the renewal of the license as that is not stipulated in the NEMA:QA. This letter therefore and obviously does not constitute any administrative decision capable of a challenge under PAJA.

[21] Although in this letter the Municipality refers to the applicant’s letter dated 31 May 2018 as an appeal, this is also incorrect. The letter preceded the impugned renewal and therefore could not have been an appeal against the renewal before it was made. It must also be pointed out that the letter of 31 May 2018 was in response to the published invitation for comments and concerns in respect of the envisaged licence renewal. What is interesting is that the applicant stated in this email that they do not have any problems with the renewal application being granted if it is compliant with applicable and pertinent legislation. That is when he slipped in a request that a condition be made to the licence that the Witbank Engen terminal be required to formulate the Engen Witbank Terminal Petrol Air Pollution Trust Fund.

[22] As correctly stated in the letter dated 14 November 2018 by the Municipality, this condition is beyond the powers of the Municipality as a licencing authority. In terms of the NEMA:QA the Municipality can only impose conditions in respect of odour and noise. In the light of the above it is clear that no administrative decision was taken on 14 November 2018 as neither the granting of the Atmospheric Licence nor the renewal thereof was made on this date. The letter of 14 November 2018 contains no decision which constitutes an administrative act capable of review under prayer 1.1 of the notice of motion as stated above. This alone renders the notice of motion fatally defective.

[23] It must further be stressed that the prayers 1.2 and 1.3 involve the attaching of additional conditions or requirements to the licence renewal. A licence renewal can only be made in terms of sections 46 (1) (c) read with section 46 (2) (a) of the NEMA:QA. Section 46 (1) (c) provides that a licencing authority may, by notice to the holder of an atmospheric emission licence, vary the licence if it is necessary or desirable to accommodate demands brought about by the impact on socio-economic circumstances and it is in the public interest to meet these demands. The applicant has failed to establish that the risk fund in question is necessary or desirable to accommodate the demands brought about by the impact on socio economic circumstances and further that it is in the public interest to meet those demands as the legislation requires. In fact, it is clear from his papers and averments that the proposed condition is for the applicant’s personal gain as will be shown later in this judgment.

[24] Nevertheless, apart from the fact that NEMA:QA does not permit the imposition of conditions proposed by the applicant as stated above, the applicant in his quest to establish that the fourth and fifth respondents were causing pollution, he also failed to allege admissible facts about the alleged pollution. In his founding affidavit the applicant relies on unsubstantiated news reports and opinion pieces which do not constitute evidence. There is consequently no factual basis for the contention that the applicant’s proposed risk fund is necessary or desirable as a result of any impact on socio-economic circumstances. The applicant further fails to establish that such a fund is in the public interest. On the basis of the above, prayer 1.1 of the application stands to be dismissed with costs.

Ad prayer 1.2

[25] In prayer 1.2 the applicant seeks a mandamus ordering the first to third respondents to review their own decision. It must be stated from the onset that this this prayer is destined to fail. It ought to be dismissed as the applicant does not seek a review of the decision complained of by the court but he seeks a mandamus to order the respondents to review their own decision. This prayer is inconsistent with section 8 of PAJA as it seeks to order the

respondents how to review and vary their decision while giving them no discretion.

[26] Furthermore, in his quest to obtain an interdict the applicant has not established the requirement laid down in Setlogelo v Setlogelo 1914 AD 221. He has failed to establish that he has a clear right, that there is a reasonable apprehension of harm and that he has no alternative remedy. The prayer does not satisfy the requirements for a mandamus which are an injury committed or reasonably apprehended as well as the absence of any other remedy. The applicant has therefore failed to advance evidence that the fourth and/or fifth respondents exceeded lawful atmospheric emission limits or that they caused any harm to the communities around. This is an essential element for the applicant to prove in order to obtain the relief prayed for.

[27] As regards the requirement of alternative remedy or lack thereof, section 7 (2) of PAJA imposes a duty on the aggrieved party to exhaust all the internal remedies before approaching court in terms of PAJA. It is important to note that although after the renewal of the licence 21 June 2018 the applicant had the option in terms of section 62 of the Local Government Municipal Systems Act, Act 32 of 2000 (“MPRA”) to appeal that decision, the applicant did not appeal. Instead the applicant decided on 19 October 2018 to write another email letter insisting on the insertion of conditions to the renewal of the fifth respondent’s licence. There is no doubt that the applicant was aware of the appeal option as he had already appealed the decision in respect of the renewal of the fourth respondent’s license. However, up to now the applicant never appealed this decision in respect of the fifth respondent. The applicant therefore failed to exhaust all the available internal remedies as correctly pointed out by the fifth respondent. Based on this point alone, the application should fail, at least in so far as it relates to the fifth respondent.

[28] Concerning the prayer for the creation of a risk fund, this is not only meritless but it is also not a competent order as such a condition cannot be made in terms of NEMA:QA. As stated above, sections 46 (1) (c) and 46 (2) deal with conditions relating to noise and odour and the prayer cannot therefore succeed and it too stands to be dismissed.

Ad prayer 1.3

[29] In prayer 1.2, the relief sought is a mandamus ordering the fourth and fifth respondents to formulate the so-called “Internal Risk Fund” in terms of sections 39, 41, 45 and 46 of the NEMA:QA and sections 24 (b) and 27 (2) of the Constitution. The applicant further seeks in this prayer an order that these respondents be compelled to make contributions to that fund and to provide monthly reports to him. This is however, not one of the conditions of the licence(s) granted to the respondents. There is therefore no basis in fact or law on which the fourth and fifth respondents can be ordered to contribute to this fund and further provide monthly reports to the applicant. This prayer like prayers 1.1 and 1.3 also stands to be dismissed.

Ad prayer 1.4

[30] In prayer 1.4 the applicant seeks supervisory orders against the respondents to file monthly affidavits with the High Court Registrar to ensure that the orders sought are timeously and expeditiously implemented. This prayer is, however, not supported by any fact or evidence. In Pheko and Others v Ekurhuleni Metropolitan Municipality and Others (No3) [2016] ZACC the Constitutional Court stated the following regarding supervisory orders.

“Supervisory orders arising from structural interdicts ensure that courts play an active monitoring role in the enforcement of orders. In an appropriate case, this guarantees commitment to the constitutional values of accountability, responsiveness and openness by all concerned, in a system of democratic governance. By granting the structural interdict a court secures a response in the form of reports and thereby prevents a failure to comply with the positive obligations imposed by its order. Generally, the court’s role continues until the remedy it has ordered in a matter has been fulfilled.”

[31] It is trite therefore that an order of this nature can be considered where the applicant seek compliance with a court order or failure to comply with a court order, which is not the case in casu. In any event the dismissal of prayers 1.1, 1.2 and 1.3 on which this prayer is dependent, also means that it too cannot be survive and ought to therefore meet the same fate. However, an order such as the one in prayer 1.4 can also be considered where it is necessary to express and clarify an unclear mandatory order made in general terms. See Agri Eastern Cape and Others v MEC for the Department of Roads and Public Works and Others [2017] 2 All SA 406 ECG. In this case the applicant simply asks the court to make this order without any motivation therefor and this prayer must therefore be dismissed as it has no merits.

Prayers 1.5

[32] In this prayer the applicant seeks a declarator that he is the owner of the deed of trust formulating the said internal air pollution risk funds. In support thereof he attached documents titled “Eskom Kusile Power Station Air Pollution Risk Fund Deed of Trust” and “Engen Witbank Terminal Petrol Air Pollution Trust Fund: Deed of Trust”.

[33] The applicant seems to be relying on the Copyright Act 98 of 1978, (“Copyright Act”) which he contends applies to the purported deeds. It must however be borne in mind that in terms of Section 1 of Copyright Act, literary work, includes, irrespective of literary quality and in whatever mode or form expressed-

(a) novels, stories and poetical works;

(b) dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts;

(c) textbooks, treatises, histories, biographies, essays and articles;

(d) encyclopaedias and dictionaries;

(e) letters, reports and memoranda;

(j) lectures, addresses and sermons; and

(g) written tables and compilations.

[34] Based on the definition of literary work, it is, patently clear that the Copyright Act does not apply to any of the two documents or deeds, as the applicant refers to them as none of them falls under any of the above categories. They are not literary works and Sections 2 (1) and 6 the Copyright Act therefore does not apply to them. They are furthermore not original works by the applicant and he therefore has no entitlement to be declared the owner of thereof under the Copyright Act. Consequently, reliance by the applicant on the Copyright Act is fatally flawed and this prayer too ought to be dismissed.

Prayer 1.6

[35] In the alternative to prayer 1.5, the applicant seeks in prayer 1.6 an order declaring him the intellectual property owner of the idea of formulating internal air pollution risk funds. The applicant has not laid any basis for the assertion that he is the intellectual property owner of the idea formulating the risk funds, the mobile clinics. There is furthermore no evidence that the idea is protected under the Copyright Act, Trademark Act 194 of 1993 or the Designs Act 195 of 1993. The applicant cannot therefore enjoy any legal protection in respect of this idea. In addition, the applicant has not established

that the ideas are original. However, taking into account that he has published the deeds of trust and the idea of mobile clinics in this application, it can longer be argued that they are protected as he has placed them in the public domain. In any event the idea of mobile clinics is not novel and has been used for years. In addition, this prayer is also dependent of prayers 1.2 and 1.3 which I have found to be without merit. It therefore also stands suffer the same fate as prayers 1.2 and 1.3.

[36] In these prayers the applicant seeks what appears to the main motivation for the establishment of the risk funds. He seeks an order entitling him to payment of either 1% of the gross reasonable monthly payment from the said Internal Air Risk Pollution Funds to be funded by the fourth and fifth respondents. The prayers are ostensibly based on section 24 (1) of the Copyright Act which provides for action by the owner of copyright for damages, alternatively, an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned.

[37] There is however, no evidence on record that either the fourth or fifth respondents have infringed any of the applicant’s alleged copyrights. The applicant has proved no damages or that he is entitled to any reasonable royalty. Although the applicant has purported to act in the public interest it is nonetheless, clear from this prayer that he wants to personally financially benefit from these Funds. I revert to this aspect of personal financial benefit when I deal with costs in the ensuing paragraphs. It must nevertheless be stated that these prayers are in any event also dependent of prayers 1.2, 1.3, 1.5 and 1.6 which as I stated above, stand be dismissed. Likewise, the prayers 1.7 and 1.8 are both baseless and fall to be dismissed.

Counter application by the first, second and third respondents

[38] I now turn to the counter-claim brought by the Municipality respondents in terms of the Vexatious Proceedings Act, Act 3 of 1956. The parties are for convenience referred to in the main application. The first to third respondents seek to have the applicant declared a vexatious litigant as provided for in section 2 (1) (b) of the Act which provides as follows:

“If on application made by any person against whom legal proceedings have been instituted by any 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 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.”

History of the litigation

[39] The applicants in the counter-application seek to prevent the respondent from instituting any legal proceedings in any high court or lower court without leave of the court. The application is based on the applications brought by the applicant against the Respondent Municipality in respect of the same matter forming the subject matter of this litigation.

[40] A brief chronological history of the litigation is necessary here. The first case launched by the applicant was a review application under case 29366/2019 in the North Gauteng High Court. The case was subsequently withdrawn after the respondent was warned that the application was excipiable as the court had no jurisdiction. Subsequent to the withdrawal the applicant launched another application in the Constitutional Court under case CC258/2019 on the same grounds as the matter in the Pretoria High Court. The applicant was denied direct access to the Constitutional Court on 05 February 2020. On 21 October 2020 the respondent launched another application in this court under Case 3169/2020. After he was informed by the applicant’s attorneys that his application was an abuse of the court process and that he must withdraw and tender costs the applicant withdrew the application under Case 3169/2020. However, a few days later on 24 November 2020 the applicant launched the same application again, this time under the current Case 3542/2020. On 24 November 2020 the applicant’s attorneys informed him that the applicant intended launching an application against him in terms of section 2 (1) (b) of the Act.

[41] The respondents contended that the applicant’s application in this matter is an abuse of court process and that he has endlessly since 2018 been harassing the respondents with vexatious and unmeritorious applications with impunity knowing that he has no funds or assets with which he can be made to pay the costs of the respondents. The respondents contended that the only remedy is to seek an order declaring him a vexatious litigant and that he not be allowed to institute any action in this court or lower court without the permission of the court or the judge as the case may be. In support of the counter-claim the respondents referred the court to the matter of Beinash and Another v Ernst and Young and Others CCT12/98 [1998] ZACC 19; 1999 (2) SA 116 (CC); 1999 (2) BCLR 125 (CC) (2 December 1998) in which the Constitutional Court also considered an application of this nature.

[42] In his papers the applicant does not deal at all with these serious allegations made against him in the counter-application regarding the alleged vexatious litigation. He simply baldly denied that he is a vexatious litigant as alleged and contended that he was challenging the unlawful, unreasonable and unconstitutional administrative decision of the first, second and third respondent. He averred further that the respondents have violated the statutory and constitutional rights of the applicant and the residents of Nkangala District Municipality.

[43] The applicant further alleged that he has exhausted all the captured, jealous and unjust state avenues prior to approaching this court. He contended that the first, second and third fourth respondents are conflicted as they owe the fourth respondent for the electricity bill.

[44] In challenging the application the applicant does not pertinently deal with the issue of persistent litigation. The applicant however, raised two points in limine and asked for the counter-application to be dismissed. Firstly, he contended that the Municipality filed the counter-application after the close of the pleadings without applying to court for leave to file. Secondly, he contended that the counter-application was served on 08 January 2021 and that this was a day on which no legal documents could be filed or served. It is not clear why the applicant makes this latter contention as the 08 January 2021 falls on a Friday which is a normal weekday. There is therefore no merit in the argument and the second point in limine stands to be dismissed. The third contention is that the counter-application should be dismissed on the basis that the Municipality failed to dispatch “any relevant record of proceedings, emails, documents and reasons thereof related to the main application third respondent’s administrative decision under review to the Registrar of the above Honourable court within 15 days after the receipt of the notice of application, founding affidavit, rule 61a notice, Form 27 as well as annexures and to notify the applicant that has been done.” It is not clear what this argument is all about and this contention stands to be dismissed too.

[45] In dealing with the merits of the counter application the applicant referred to various sections of the Constitution including section 24, 27 dealing with the environmental and health rights respectively. He suggested in his argument that the funds which are envisaged in the risk funds are aimed at ensuring that the constitutional right to health are realised for those people who are ill due to the air pollution generated by the fourth and fifth respondents. He argued further that section 24 of the Constitution places a responsibility on these respondents to create the funds as proposed by the applicant. The applicant then went on a rant complaining about potholes, sewage leaks and cholera, undrinkable tap water, unemployment and many other issues.

[46] Furthermore, the applicant contended that it is a constitutional delinquency for the respondents to fail to comply with sections 24 and 27 and suggested that it is likewise a delinquency for the court to pass a judgment in favour of the respondents in this smatter. He argued further that the respondents cannot rely on the benefits of section 36 of the Constitution.

[47] The applicant then contended further that the application to declare him a vexatious litigant unfairly and unreasonably discourages his active citizenship and must therefore be dismissed with costs. He contended that he is not a vexatious litigant as he apparently had a right to apply for direct access to the Constitutional Court and if unsuccessful, to approach this court. The applicant also alleges that the counter-application is brought mala fide. Although he has not brought an application to declare the respondents to be vexatious litigants, the applicant nevertheless asks for an order to declare them as such.

[48] After considering the matter I find that there is merit in the counter-application for the granting of an order in terms of section 2 (1) (b) of the Vexatious Proceedings Act 3 of 1956 particularly if the following are considered. It is evident from the facts of this matter that the applicant Mr Sibanyoni has persistently and without any reasonable ground instituted legal proceedings against the respondents, in particular the Municipal respondents. It is important to highlight the following events. In a period of 3 years and after he was ostensibly aggrieved by the dismissal of his appeal in respect the renewal of atmospheric licences granted to Eskom’s Kusile Power Station, Mr Sibanyoni instituted the same proceeding in different courts 4 times without just cause. The first was a review application launched April 2019 in the North Gauteng High Court under

case 293666/19 which he withdrew after he was informed of the jurisdictional problems. Instead of launching the application in the correct court, which by then he was aware of, the applicant decided to approach the Constitutional Court directly under case CCT258/19. After his application for direct access was dismissed on 5 October 2020 by the Constitutional Court he brought the same application in this court. When he was informed by letter that his application constituted abuse of court process the applicant again withdrew his application. However, a few days later he launched it again under a different case number and this is the application now before court.

[49] It is necessary to mention that after he was denied direct access by the Constitutional, the applicant approached the Judicial Service Commission apparently complaining about the denial of direct access by the Constitutional court. So in effect Mr Sibanyoni has, since 2018, brought 5 applications on the same matter in different forums. The above events constitute the nub of the Municipality’s case for the declaration of Mr Sibanyoni as a vexatious litigant.

[50] The applicant has failed to challenge the allegations that his actions constitute an abuse of the court process. He could not advance good grounds for the string of cases that he brought against the respondents. I find that the applicant’s conduct is not only the abuse of court process but it was clearly also aimed at profiteering and for his personal financial benefit. It is clear that personal benefit played a pivotal role in these applications. Should the application for the establishment of the funds and the payment of the applicant therefrom be approved as per prayers above, the applicant would be in a good financial position. I accordingly find that Mr Sibanyoni’s conduct amounted to an abuse of the court process. It clearly constitutes vexatious litigation and I therefore make a finding that he is a vexatious litigant.

[51] declaring one a vexatious litigant of course comes with serious negative implications inter alia that the person may not exercise his right of access to the courts as he would under normal circumstances. While one is mindful of this right of access to courts and therefore to justice, it is, however, necessary for the court to intervene in order to protect the victims of this abuse of court process who have been repeatedly harassed and caused to spend money as a result of the unmeritorious litigation by the applicant. Although declaring him a vexatious litigant prima facie amount to a limitation of his right of access to courts, it is however, a justified limitation permissible in terms of section 36 of the Constitution.

[52] The courts have stated that in appropriate cases this right can be limited but that this limitation can be evaded by persuading a court or judge that the proceedings instituted or to be instituted will not constitute an abuse of the process of the court. In addition, the person can still appeal if not satisfied with the decision of the court or judge refusing him permission to institute legal proceedings. The following remarks by the Constitutional Court in Beinash above, are apposite respect of this matter:

[18] When one considers, for purposes of section 36(1)(c), the extent of the restriction permitted by the Act, it seems clear that the restriction itself can only occur through an order of court. The order is then confined to the specific person or persons at whom it is directed; it has no direct effect on the public generally. An order restricting a litigant is only made in circumstances where the court is satisfied that the malfeasant has “persistently and without reasonable grounds instituted legal proceedings”. If a judge does not make the order in a judicially permissible manner, then there is always the right to appeal.

[19] While such an order may well be far-reaching in relation to that person, it is not immutable. There is escape from the restriction as soon as a prima facie case is made in circumstances where the judge is satisfied that the proceedings so instituted will not constitute an abuse of the process of the court.16 When we measure the way in which this escape-hatch is opened, in relation to the purpose of the restriction, for the purposes of section 36(1)(d), it is clear that it is not as onerous as the applicants contend, nor unjustifiable in an open and democratic

society which is committed to human dignity, equality and freedom. The applicant’s right of access to courts is regulated and not prohibited. The more remote the proposed litigation is from the causes of action giving rise to the order or the persons or institutions in whose favour it was granted, the easier it will be to prove bona fides and the less chance there is of the public interest being harmed. The closer the proposed litigation is to the abovementioned causes of action, or persons, the more difficult it will be to prove bona fides, and rightly so, because the greater will be the possibility that the public interest may be harmed. The procedure which the section contemplates therefore allows for a flexible proportionality balancing to be done, which is in harmony with the analysis adopted by this Court, and ensures the achievement of the snuggest fit to protect the interests of both applicant and the public.”

[53] In this matter I am satisfied that applicant has abused the court process by persistently and without reasonable grounds instituting legal proceedings against the respondents.

I find that a case has been made out for the granting of the relief sought in the counter-application. In order to stop Mr Sibanyoni’s persistent and ungrounded litigation against the respondents, an order interdicting the applicant in terms of Section 2 (1) (b) of the Act 3 of 1956 falls to be granted.

Costs

[54] In prayer 1.9 of the notice of motion the applicant asks for costs against any party who opposes the application. The applicant further referred to Biowatch Trust v Genetic Resources and Others 2009 (6) SA 232 (CC) and contended that a costs order will not be justified against him as he is acting in the public interest. He relied on the principle that a private litigant pursuing constitutional rights should not be mulcted with costs even if they are unsuccessful in their litigation especially where they are litigating against the state.

[55] From his submissions the applicant appears to be well versed with legal position regarding costs as well as the exceptions to the Biowatch principle. He referred court to the case of Affordable Medicines Trust and Others v Minister of Health and Another (CCT27/04) 2005 ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005). He vigorously and at length argued why he does not fall into any of the categories of exceptions under the

Biowatch principle.

[56] In the Affordable Medicines, supra, the Constitutional Court stated the following in respect of costs:

“The award of costs is a matter which is within the discretion of the court considering the issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations. One such consideration is the general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this is that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But this is not an inflexible

rule. There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the court which may influence the court to order an unsuccessful

litigant to pay costs, the ultimate goal is to do what is just having regard to the facts and the circumstances of the case.”

[57] In Motsepe v Commissioner for Inland Revenue [1997] ZACC 3; 1997 (2) SA 898 (CC) the Constitutional Court also warned against the granting of costs against the litigants who seek to enforce their constitutional

rights against the state but also stated the following at par 30.

“This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this court, no matter how spurious the grounds for doing so may be or how remote the possibility that this court will grant them access. This can neither be in the interest of the administration of justice nor fair to those who are forced to approach such attacks.”

[58] Although it is common cause that the applicant was aware that a costs order may be obtained against him as he was so warned by the fourth respondent, he nonetheless persisted with his application despite the knowledge. In determining whether a punitive costs order should be imposed, regard must be had also to the fact that the applicant clearly wanted to personally benefit from this exercise under the pretext that he was acting in the public interest.

[59] While the applicant may escape a costs order in respect of the first, second, third and fifth respondents who are government respondents, the same however, cannot be said in respect of the fourth respondent which is a private company. The Biowatch principle is not of application in the case of the fourth respondent. A costs order should therefore be made in favour of the fourth respondent.

[60] While the applicant purported to litigate in the public interest under section 38 (c) of the Constitution, it is however clear that he aimed at enriching himself by requesting the court to order the creation of trusts of which he would be a trustee for a reward. However, given the manner in which the applicant litigated and the fact that it was for personal gain, I find that not only the fourth respondent is entitled to costs but all the respondents are entitled to costs.

Order

[60] In the result I make the following order:

1. The main application by the applicant (Mr F Sibanyoni) is dismissed with costs. The applicant to pay the costs of all the respondents and such costs to include the costs attendant to the employment of two counsels where so employed;

2. The counter-claim by the Municipality respondents is granted with costs, and such costs to include costs attendant to the employment of two counsels where so employed;

3. The following order is made against the applicant Mr Sibanyoni in terms of the Vexatious Proceedings Act, Act 3 of 1956:

3.1 In terms of Section (2) (1) (b) of the Vexatious Proceedings Act, Act 3 of 1956 the applicant Mr ZF Sibanyoni is hereby declared a vexatious litigant;

3.2 No legal proceedings shall be instituted by the applicant against the first to third respondents in any Provincial or Local Division of the High Court of South Africa or any inferior court, without the leave of that court, or any Judge of the High Court, as the case may be;

3.3 That the Registrar of the Court shall cause a copy of the order to be published in the Government Gazette.

MBG LANGA

JUDGE OF THE HIGH COURT

MIDDELBURG LOCAL SEAT

Date of hearing:

26 May 2022

Date of delivered:

14 November 2022

Appearances:

For the Applicant:

In person

For the 1st to 3rd Respondents: Advocate

MH Mbatha

with Advocate Phama

Instructed by:

Nkgadima

& Associates

Attorneys Inc. Middelburg.

For the Fourth Respondent:

Advocate P Jara, Sandton

For the Fifth Respondent:

Advocate

A Kemack SC

with Advocate K Mashishi

Instructed by:

Mathopo

Moshimane

Mulangaphuma t/a DM5 Inc.