Soller v President of the Republic of South Africa and Others (30663/04) [2005] ZAGPHC 13; 2005 (3) SA 567 (T) (2 February 2005)

reportableIN THE HIGH COURT OF SOUTH AFRICAlie(TRANSVAAL PROVINCIAL DIVISION)DATE: 2 February 2005CASE NO:30663/2004In the matter between:PETER CLIVE SOLLERAPPLICANTversusTHE HONOURABLE STATE PRESIDENT OF THE REPUBLICOF SOUTH AFRICA 1STRESPONDENTANDTHE HONOURABLEMINISTER OF JUSTICE AND CONSTITUTIONALDEVELOPMENT2NDRESPONDENTANDTHE HONOURABLE JUSTICE E BERTELSMANN3RI>RESPONDENTlUDGMENTNGOER, lP[1] Theapplicant, a former attorney of this court, issued summons against aserving judge of this Division, BertelsmannJ(the judge), claiming damages for-2-defamation. The State Attorney, acting for the judge, drew the applicant'sattention to the provisions of section 25(1) of the Supreme Court Act 59 of1959, which reads as follows~"25(1)Notwithstanding anything to the contrary in any law contained, no summons or subpoena against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall-in any civil action be issued out of any court except with the consent of that court: Provided that no such summons or subpoena shallbe issued out of an inferior court unless the provincial division which has jurisdiction to hear and determine an appeal in a civil action from such inferior court, has consented to the issuing thereof. "It was common cause that the applicant had no such leaveJnor had he applied for any. In fact the summons had been sued out of the Witwatersrand Local Division, Johannesburg, despite the fact that the alleged defamatory statements were part of a judgment which was given in a matter in the Transvaal Provincial Division, Pretoria.>""'If-3-[2] After the applicant's attention was drawn to the provisions of the section,he launched an application, again in the Witwatersrand Local Division, praying an order in the following terms~"(l)Granting the Applicant leave to institute an action in this Honourable Court against the third Respondent (the judge) for the payment of Three Million five hundred thousand Randin respect of general damages arising from written statementsmade by the third Respondent of and concerning the Applicantwhich the Applicant avers are defamatory and injurious of him and negate his fundamental right of dignity afforded to him in accordance with the Constitution of the Republic of SouthAfrica.(2) In the event of such permission as aforesaid not being granted thatthis Honourable Court make a declaration declaring that section 25(1) of the Supreme Court Act 59 of 1959 be declared to be invalid on the ground that such Section is inconsistent with the Constitution of the Republic of South Africa on the grounds that such Section is fundamentally discriminatory and offend the rights of citizens of the Republic of South Africa to proper and effective access to a Court of law and to a fairTria1.H-4-[3] The President, The Minister of Justice and Constitutional Development andthe judge concerned, were cited as first to third respondents respectively. Thefirst two opposed the application, whereas the judge indicated that he wouldabide the decision of the court.[4] When the application was argued before me in the Witwatersrand local Division, the respondents took the point that that court had no jurisdiction.Eventually, the parties agreed that thematter would be transferred to theTransvaal Provincial Division; this was done, and it came to be heardbyme atthiscourt.Iwillfirstdeal with the request for leave to sue beforeconsideringthe attack on the validity of the section.Application in terms of section 25(1) of Act 59 of 1959 for leave tosue a Judge[5] In his application for leave to sue the judge, the applicant contends thatthe judge attacked his character in an unjustified and gratuitous manner.Before dealing withthe applicant's casein greater detail, it is necessary to givea brief history of the matter.[6]In 2001 the law Society for the Northern Provinces (the law Society)launched in this court an application (case no 992/01) against the applicant forthe removal of his name from the roll of attorneys. The statements which the-5-applicant says are defamatory of him are part of the reasons contained in thejudgment in that matter. The remedies sought by the Law Society and especiallythe grounds relied upon, are relevant to the application presently before me. For this reason, they need to be briefly stated. The judgment complained of set out a number of factual findings. The applicant had"1.deliberately lied to (the] court in the application to interdicttheapplicants (Law Society's) Annual General Meeting;2.failed to deal with this charge of dishonesty on three separatesubsequent occasions although given the opportunity to do so;3.made grossly contemptuous remarks of the members of the Bench of the Cape of Good Hope Provincial Division;4.made completely unsubstantiated charges of attempted murder against the former Judge President of that division;5.made serious defamatory allegations of and concerning another Judge, a former president of the applicant and a senior official of the Legal Aid Board in regard to their alleged involvement in studying child pornography;6.made further contemptuous remarks of SouthwoodJon facts which can by no stretch of the imagination justify this action;7.written agrossly offensive letter to the president of theapplicant;-6-8.employed, and continues to employ, a person who has beensuspended from practice in a professional capacity;9.failed to purgehiscontempt of the Judges of the Cape Provincial Division, although invited to do so;10.aided and abetted a client to disobey a courtorderand commita crime;11.advanced fanciful theories about international conspiracies on the flimsiest of grounds and thereby demonstrated that he no longer possesses the clarity of mind and detachment which isrequired from anofficerof thiscourt."The judgment continued:"All the above findings are based, as I have already said, upon common cause facts as they appear on the papers, or as they emerge incontrovertibly from the respondent's affidavits, heads of argument or the respondent's address to the Court. None require further evidence and none could be changed by any facts which have not yet been brought to the Court's notice. Issues which are not crystal clear on the papers have not been taken into consideration." This passage disposes of the applicant's contention..~,~,-7-that the judge wrongly made findings on papers despite a dispute offact.[7]One ofthe issues the court had to decide was put as follows in thejudgment:"1.Whether the respondent is a fit and proper person to be allowedto continue in practice as an attorney of this court, which involvesan inquiry into the question whether the applicant has proved itsallegations of misconduct andincompetence against therespondent."It is clear from the aforegoing that the adjudication of the Law Society'sapplication had required a serious inquiry into the character of Mr Soller (theapplicant before me). After argument dosed, the two judges reservedjudgment. The judge later wrote and handed down a full judgment; De Villiers ], agreed with it. On the basis of the facts which, as already said, were eithercommon cause or could not be controverted, the judgment came to thefollowing conclusion:"The respondent is visibly tormented by his personal conviction that.these powerful entities are conspiring against him. However sad-8-this situation may be, it does not detract from the fact that therespondent has seen fit to attack all the Judges of an entire Division of the High Court of SouthAfrica in the mostill-tempered and unrestrained fashion possible, and has hurled accusations of gross misconduct at other persons and entities without any evidence that could pass muster at all. Regardless of the respondent's personal pain, his actions, deplorable in themselves, clearly evidence his utter inability to consider these matters objectively and dispassionately. Whatever his personal feelings, as an officer of the court he musthaveappreciated that his contemptuous actions towards thejudiciary constituted a very serious professional transgressions. His insistence that his accusations, grotesque as they are, are the truth, not only adds insult to injury, but demonstrates clearly that the respondent does not have, or does no longer have, the ability to reflect maturely upon matters uponwhichheisengaged as an attorney. His uncritical assertion ofhis own convictions as the absolute truth demonstrates that he is a danger not only to himself, but also to his clients and the public at large. The transgressions I have described are serious. The mindset which produced them renders the respondent unfit to practice(sic)as an attorney of this-,court".-9-[8] It was after reading the above judgment that the applicant came to theconclusion that he was being defamed. In his particulars of claim to the summons, the applicant cites the following portions of the judgment which he says are particularly defamatory of him:"The conduct of the Present litigationThe respondent suffers from a severe disability to separate the grain from the chaff. This is demonstrated in striking fashion by way in which he conducted the present litigation. Technicaldefences were raised against the application which had no hopeof success. On the merits, reams of paper were filed which bore no, or only passing relevance to the issues at hand. In particular, the filing of hundreds of examples of computer printouts from the internet, allegedly demonstrating that childpornography sites had been accessed, was clearly unnecessary,irrelevant and vexatious. His affidavit and some of the letters that respondent haswritten are couched in a garrulous, rambling and loquacious style, often missing the point at issue altogether. The respondentisclearly unable to identify issues, concentrate thereupon and deal with them appropriately.The Conclusion-10-The above facts prove that the respondent is not only unfit topractice,(sic)but also that he is no longer able to practice(sic).He has developed unfortunate deficiencies in his character1which have made him prone to serial unprofessional conduct. He is also afflicted by serious shortcomings in his personality resulting in a lack of insight, detachment, objectivity and professional judgment. The respondent cannot continue to practice(sic)-he has become a danger to society and an embarrassment to his profession".(9] For leave to be granted in terms of the section, "good cause" must be shown,Superior Court Practice! (Erasmus,pAl-76).Whether or not good cause has been shown, will depend on the facts and circumstances of each case.It is of course common cause that the words were uttered, and published, by the judge. The words, ordinarily speaking, would be defamatory. The question is whether, given the context in which they were uttered of the applicant, the applicant has shown good cause for the purpose of obtaining the leave required. It is trite law that a judge enjoys at least a qualified privilege when executing judicial functions. After examining authorities regarding the position of non-judicial officers (eg counsel, witnesses etc) Joubert JA says the following:"~-11-"As regards the legal position of a judicial officer I must stress the factthat the law requires of him to be 'capable of doing as part of his duty everything which makes for the tracking down of the truth and the.administration of justice' The nature of his judicial duties aresuch that a judicial officer is more often than not active in a sphere where the performance of his judicial duties exposes him to the risk of injuring a person in his reputation. It is for this very reason that there is according to our common law a rebutable presumption that a judicial officer, who defames someone in the exercise of his judicial authority, does so lawfully within the limits of his authority."[MayvUdwin1981 (1) SA 1(A)19C-FY".The application must be considered against this background.[10] A complainant must show malice on thepart of the judicial officer. InMay'scase,supra,the following appears: "Of course, the irrelevance of the defamatory matter to the proceedingsor the absence of some reasonable foundation for it, may, depending upon the circumstances of the particular case, be indicative of malice on the part of a judicial officer." [p20 D]To establish this,one must consider the nature of the case that was before the judge. As said earlier, the judge was adjudicating in an application that hadbeen broughtbytheLawSociety of the NorthernProvinces for the removal of-12-the applicant's name from the roll of attorneys on the ground that he was nolonger a fit and proper person. To substantiate its case, the Law Society made,asithad to in such a case, allegations which constituted an attack on the.character of the applicant. In determining the relevance of the judge's remarks and indeed the entire context in which these remarks were made, one musttherefore bear in mind the nature of the application by the Law Society, theallegations made by the Law Society against the applicant and, veryimportantly, the findings and rulings the judge had to make. It becomes clearat once, that it was inevitable for the judge to look into the very character ofthe applicant; he could not have resolved the dispute without doing so. In theprocess of so doing,the judge had to make either positive or negative findingson the applicant's character. In my view, the remarks were relevant andmaterial to the case before the judge and there can be no question of malice.That the applicant is unable to separate the grain from the chaff, was againdemonstrated in a striking fashion before me. He raided the whole world,apparently through the internet, for any document commenting on judges, andirrespective of the relevance thereof to the issues before me, dumped volumesof materials on me.[ll]Itis clear from the papers that,as it is often the case in matters of thatnature. no punches were pulled in the Law Society's application. The judge'sjudgment was, and had to be, as robust. I therefore do not agree that the.-13-remarks were too gratuitous, let alone irrelevant or malicious. There is afurther consideration in this particular case: when it comes to determiningwhether or not a person is fit and proper to remain an officer of this court, it isthe final responsibility of the court to so decide and in doingSO,the court is enjoined to consider the matter thoroughly and fully motivate whatever':~.conclusion it reaches. Only people of suitable character and integrity shouldremain on the roll of attorneys. The statements made by the judge were withinhis judicial privilege; there was therefore noanimus injuriandias his intentions\were limited to resolving the matter before him. The applicant has thereforenot made out a case for the !eave sought. I have throughout been mindful ofthe fact that no more than aprima faciecase is required at this stage, asopposed to proving a case on a balance of probabilities.Application to declare section 25(1) of Act 59 of 1959 unconstitutional[12]The applicant contends that in protecting the judges, the section violatesrules of natural justice; secondly, that the section is founded on discrimination,in favour of judges, giving them special protection which other people do notenjoy. The total sum of the applicant's submission is that the section violates acomplainant's right" enshrined in section 34 of the Constitution. The sectionreads:-14-"34. Everyone has the right to have any dispute that can be resolvedby the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."[13] InBeinash and Another v Ernst&Young and Others,1999 2 SA 116(CC) the Constitutional Court considered the validity of section2(1)(b)of the Vexations Proceedings Act, of 1956. In terms of that section, a person may be barred from instituting legal proceedings against another person unless it be by prior leave of the court, which leave may not be granted unless the Court"issatisfied that the proceedings are not an abuse of the process of the court and that there isprima facieground for the proceedings." The applicant had been slapped with this bar in the High Court. The applicants argued in the Constitutional Court, that their right enshrined in section 34 of the Constitution to approach acourthad been infringed. After a careful consideration of the purpose of the section the court found that, although the applicant's right was indeed being infringed, the infringement was justified; Mokgoro J expressed herself as follows (p 123 para 17)."The right of access to courts protected under section 34 is of cardinal importance for the adjudication of justiciable disputes. When regard is had to the nature of the right in terms of 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there can surely be no dispute that the right of access tocourt is by nature a right that requires active protection. However, a restriction of access in the case of a vexations litigant is in fact indispensable to protect and secure the right of access for thosewith meritorious disputes. Indeed, as the respondents argued, theCourt Is under a constitutional duty to protectbona fidelitigants, the processes of the Courts and theadministration of justice against vexatious proceedings. Section 165(3) of the Constitution requires that '(n)o person or organ of State may interfere with thefunctioning of the courts'. The vexatious litigant is one whomanipulates the functioning of the courts so as to achieve a purpose other than that for which the courts are designed. This limitation serves an important purpose relevant to section 36(1)(b). It would surely be difficult to anticipate the litigiousstrategies upon which a determined and inventive litigator might embark. Thus there is a requirement for special authorisation for any proposed litigation."[14] It is true that section 25(1) of Act 59 of 1959 places a hurdle in the way of a prospective litigant, namely, that leave first be applied for and obtained. Isthe section justified? Broadly,the purpose thereof is to ensure the independence of the Judiciary. The oath which judges take upon assumptionof office requires of them to adjudicate matters fearlessly. This they can only.--16-do if protected against non-meritorious actions. Judges should not, in theexecution of their judicial functions, be inhibited by fear of being dragged tocourt unnecessarilyover theirjudgments. Such a threat could have a chillingeffect on the execution of their duties (cfMay'scase,supra,page 19 H). Furthermore, judges should rather spent time hearing matters, than defendingthemselves against endless unfounded civil claims. The very nature of the dutyof a judge is such that it would open them to such litigation: a judge's task is toresolve disputes, inevitably leaving one person or the other dissatisfied;moreover they are, in the process, required to make findings on the credibility,honestyand integrity of witnesses and litigants and to justify those findings.[15] Some of the people not sufficiently acquainted with the execution ofjudicial functions, may tend to think that judges are not accountable for theirdecisions. Nothing is further from the truth. Judges are expected to justifyevery decision they take: they must givefull reasons therefor. Surely,thatisbeing accountable; not only to the litigants, but to the public at large. The latter are entitled to know why and how a particular decision was arrived atand if they so wish, make informed criticism of the judgment includingquestioning its correctness. For them to be able to do so a judge owes themthe reasonsfor his/her decision. How then,would judges be able to accountfor their adverse findings on the character of litigants or witnesses withoutexposing themselves to an avalanche of non-meritorious civil actions by-17-disgruntled litigants if there were to be no sifting mechanism? Were they,under those circumstances, nonetheless stoically continue to do theirwork as they should, they could findthemselves spending more timeincourt asdefendants than as adjudicators of disputes. The administration of justice would be hampered, and genuine litigants would be seriously prejudiced.[16] The section does not completely take away the right to sue except in instances where the claim has no merits; but, a question may be asked, who on earth has a "right" to prosecute a frivolous or non-meritorious claim?Furthermore, where leave has been refused, an applicant can appeal.[17] It is true that the section also applies in instances where the judge is to be sued in respect of personal matters, such as for a debt owing. Even in such a case, the section would not be an obstacle: the preliminary investigation would be done andifthere is aprima faciecase, leave to sue the judge wouldbe granted; if wrongly refused, the decision would be appealed against. The considerations set out above justify the retention of the general mechanism as contained in the section, namely, that in all instances, leave be first sought.[l8]There is one other point raised by the applicant which is worth mentioning. He argued that the authority to grant leave should reside in a Judge Presidentwhere, asin casu,a judge of the High Court is sought to be sued. He"""-18-contrasted the situation with that of a Constitutional Court judge, where leavecan only be grantedbythe head of that court (the Chief Justice). He arguesthat inasmuch as an acting judge is competent to consider and decline such anapplication, the section is bad. His motivation is that an acting judge, who maybe a practising advocate soon to return to practice, would not be inclined togrant such leave against, say, a very senior judge before whom the advocatemight still have to appear. I do not agree. An acting judge also takes the oathof office and would surely act in accordance therewith. Moreover, thedefinition of "judge" includes an acting judge (section 1 of the Judges'Remuneration and Conditions of EmploymentAct,2001).Asuggestion that ajudge may be inhibited from granting leave against a more senior colleaguefails to appreciate the nature of a judicial office and the force of the oath thatprecedes the assumption of that office.[19]For the reasons given above] the application to declare section25(1)ofAct 59 of 1959 unconstitutional cannot succeed.[20]There is the issue of costs relating to the application which the applicantlaunched in the WitwatersrandLocal Division. The respondents had arguedthat that court did not have jurisdiction.Byagreement the matter wastransferred to this court; costs were reserved. Isee no reason why the-19-applicant should not be made to pay the costs of that application including thecosts of 15 November 2004 when the question of jurisdiction was argued.The following order is made:(a) The application is dismissed with costs;(b) The applicant is also ordered to pay the costs of 15 November 2004 inthe Witwatersrand LocalDivisionlwhich costs are to be taxed by theRegistrar of the Transvaal Provincial Division.BM NGOEPEJUDGE PRESIDENT OF THEHIGH COURTOF.SOUTH AFRICATRANSVAALPROVINCIAL DIVISIONHeard on:29 November 2004For the appellant:In PersonFor the respondents:Adv de WetInstructed by:The State Attorney Pretoria

reportable

IN THE HIGH COURT OF SOUTH AFRICA

lie

(TRANSVAAL PROVINCIAL DIVISION)

DATE

: 2 February 2005

CASE NO

:

30663/2004

In the matter between:

PETER CLIVE SOLLER

APPLI

CANT

versus

T

HE HONOURABLE STATE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA 1

ST

RESPONDENT

AND

THE HONOURABLE

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT

2

ND

THE HONOURABLE JUSTICE E BERTELSMANN

3RI>

lUDGMENT

NGOER, lP

[1] The

applicant, a former attorney of this court, issued summons against a

serving judge of this Division, Bertelsmann

J

(the judge), claiming damages for

defamation. The State Attorney, acting for the judge, drew the applicant's

attention to the provisions of section 25(1) of the Supreme Court Act 59 of

1959, which reads as follows~

"25(1)Notwithstanding anything to the contrary in any law contained, no summons or subpoena against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall-in any civil action be issued out of any court except with the consent of that court: Provided that no such summons or subpoena shallbe issued out of an inferior court unless the provincial division which has jurisdiction to hear and determine an appeal in a civil action from such inferior court, has consented to the issuing thereof. "

"

25(1)

Notwithstanding anything to the contrary in any law contained, no summons or subpoena against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall-in any civil action be issued out of any court except with the consent of that court: Provided that n

o such summons or subpoena shall

be issued out of an inferior court unless the provincial division which has jurisdiction to hear and determine an appeal in a civil action from such inferior court, has consented to the issuing thereof. "

It was common cause that the applicant had no such leaveJnor had he applied for any. In fact the summons had been sued out of the Witwatersrand Local Division, Johannesburg, despite the fact that the alleged defamatory statements were part of a judgment which was given in a matter in the Transvaal Provincial Division, Pretoria.

I

t was common cause that the applicant had no such l

eave

nor had he applied for any. In fact the summons had been sued out of the Witwatersrand Local Division, Johannesburg, despite the fact that the alleged defamatory statements were part of a judgment which was given in a matter in the Transvaal Provincial Division, Pretoria.

>""'If

-3-

[2] After the applicant's attention was drawn to the provisions of the section,

he launched an application, again in the Witwatersrand Local Division, praying an order in the following terms~

"(l)Granting the Applicant leave to institute an action in this Honourable Court against the third Respondent (the judge) for the payment of Three Million five hundred thousand Randin respect of general damages arising from written statementsmade by the third Respondent of and concerning the Applicantwhich the Applicant avers are defamatory and injurious of him and negate his fundamental right of dignity afforded to him in accordance with the Constitution of the Republic of SouthAfrica.(2) In the event of such permission as aforesaid not being granted thatthis Honourable Court make a declaration declaring that section 25(1) of the Supreme Court Act 59 of 1959 be declared to be invalid on the ground that such Section is inconsistent with the Constitution of the Republic of South Africa on the grounds that such Section is fundamentally discriminatory and offend the rights of citizens of the Republic of South Africa to proper and effective access to a Court of law and to a fairTria1.H

"(

l)

Granting the Applicant leave to institute an action in this Honourable Court against the third Respondent (the judge) for the payment of Three Mill

ion five hundred thousand Rand

in respect of general damages arising from written statements

made by the third Respondent of and concerning the Applicant

which the Applicant avers are defamatory and injurious of him and negate his fundamental right of dignity afforded to him in accordance with the Constitution of the Republic of South

Africa.

(2) In the event of such permission as aforesaid not being granted that

this Honourable Court make a decl

aration declaring that section 25(1) of the Supreme Court Act 59 of 1959 be declared to be invalid on the ground that such Section is inconsistent with the Constitution of the Republic of South Africa on the grounds that such Section is fundamentally discriminatory and offend the rights of citizens of the Republic of South Africa to proper and effective acces

s to a Court of law and to a fai

r

Tria1.

H

-4-

[3] The President, The Minister of Justice and Constitutional Development and

the judge concerned, were cited as first to third respondents respectively. The

first t

wo opposed the applic

ation, whereas the judge indicated that he would

abide the decision of the court.

[4] When the application was argued before me in the Witwatersrand local Division, the respondents took the point that that court had no jurisdiction.

Eventual

ly, the parties agreed that the

matter would be transferred to the

Transvaal Provincial Division; this was done, and it came to be heard

by

me at

this

court.

will

first

deal with the request for leave to sue before

conside

ring

the attack on the validity of the section.

Application in terms of section 25(1) of Act 59 of 1959 for leave to

sue a Judge

[5] In his appli

cation for leave to sue the judge, the applicant contends that

the judge attacked his character in an unjustified and gratuitous manner.

Before dealing with

the appl

icant's case

in greater detail, it is necessary to give

a brief history of the matter.

[6]

In 2001 the law Society for the Northern Provinces (the law Society)

launched in this co

urt an application (case no 992/

01) against the applicant for

the removal of his name from the roll of attorneys. The statements which the

-5-

applicant says are defamatory of him are part of the reasons contained in the

judgment in that matter. The remedies sought by the Law Society and especiallythe grounds relied upon, are relevant to the application presently before me. For this reason, they need to be briefly stated. The judgment complained of set out a number of factual findings. The applicant had

judgment in that matt

er. The remedies sought by the Law Society and especiall

y

the grounds relied upon, are rel

evant to the ap

plication presently before me. F

or this reason, they need to be briefly stated. The judgment complained of set out a number of factual findings. The applicant had

"1.

deliberately lied to (the] court in the application to interdict

the

applicants (L

aw Society's) Annual General Meeting;

2.

failed to deal with this charge of dishonesty on three separate

s

ubsequent occasions although given the opportunity to do so;

3.

made grossly contemptuous remarks of the members of the Bench of the Cape of Good Hope Provincial Division;

4.

made completely unsubstantiated charges of attempted murder against the former Judge President of that division;

5.

made serious defamatory allegations of and concerning another Judge, a former president of the applicant and a senior official of the Legal Aid Board in regard to their alleged involvement in studying child pornography;6.

made serious defamatory all

egations of and concerning another Judge, a former president of the applicant and a senior official of the Legal Aid Board in regard to their alleged involvement in studying child pornography;

6.

made further contemptuous remarks of Southwood

on facts which can by no stretch of the imagination justify this action;

7.

written a

grossl

y offensive letter to the president of the

applicant;

8.

employed, and continues to employ, a person who has been

suspended from practice in a professional capacity;

9.

failed to purge

his

contempt of the Judges of the Cape Provincial Division, although invited to do so;

10.

aided and abetted a cl

ient to disobey a court

order

and commit

a crime;

11.

advanced fanciful theories about international conspiracies on the flimsiest of grounds and thereby demonstrated that he no longer possesses the clarity of mind and detachment which isrequired from anofficerof thiscourt."

advanced fanciful theories about international conspiracies on the flimsiest of grounds and thereby demonstrated that he no longer possesses the clarity of mind and detachment which is

required from an

officer

of this

court."

The judgment continued:

"All the above findings are based, as I have already said, upon common cause facts as they appear on the papers, or as they emerge incontrovertibly from the respondent's affidavits, heads of argument or the respondent's address to the Court. None require further evidence and none could be changed by any facts which have not yet been brought to the Court's notice. Issues which are not crystal clear on the papers have not been taken into consideration." This passage disposes of the applicant's contention

..

~

,~

,

-7-

that the judge wrongly made findings on papers despite a dispute of

fact.

[

7]

One of

the issues the court had to deci

de was put as follows in the

judgment:

Whether the respondent is a fit and proper person to be allowed

to continue in practice as an attorney of this court, which involves

an inquiry into the question whether the applicant has proved its

allegations of misconduct and

incom

petence against the

respondent."

It is clear from the aforegoing that the adjudication of the Law Society's

application had required a serious inqu

iry into the character of Mr Soll

er (the

applicant before me). After argument dosed, the two judges reserved

judgment. The judge later wrote and handed down a full judgment; De Villiers ], agreed with it. On the basis of the facts which, as already said, were either

common cause or could not be controverted, the judgment came to the

following conclusion:

"The respondent is visibly tormented by his personal conviction that

.

these power

ful entities are conspiring agai

nst him. However sad

-8-

this situation may be, it does not detract from the fact that the

respondent has seen fit to attack all the Judges of an entire Division of the High Court of SouthAfrica in the mostill-tempered and unrestrained fashion possible, and has hurled accusations of gross misconduct at other persons and entities without any evidence that could pass muster at all. Regardless of the respondent's personal pain, his actions, deplorable in themselves, clearly evidence his utter inability to consider these matters objectively and dispassionately. Whatever his personal feelings, as an officer of the court he musthaveappreciated that his contemptuous actions towards thejudiciary constituted a very serious professional transgressions. His insistence that his accusations, grotesque as they are, are the truth, not only adds insult to injury, but demonstrates clearly that the respondent does not have, or does no longer have, the ability to reflect maturely upon matters uponwhichheisengaged as an attorney. His uncritical assertion ofhis own convictions as the absolute truth demonstrates that he is a danger not only to himself, but also to his clients and the public at large. The transgressions I have described are serious. The mindset which produced them renders the respondent unfit to practice(sic)as an attorney of this

respondent has seen fit to attack all the Judges of an entire Division of the High Court of South

Africa i

n the most

ill-

tempered and unrestrained fashion possible, and has hurled accusations of gross misconduct at other persons and entities without any evidence that could pass muster at all. Regardless of the respondent's personal pain, his actions, deplorable in themselves, clearly evidence his utter inability to consider these matters objectively and dispassionately. Whatever his personal feelings, as an officer of the court he must

have

appreciated that his contemptuous actions towards the

judiciary constituted a very serious professional transgressions. His insistence that his accusations, grotesque as they are, are the truth, not only adds insult to injury, but demonstrates clearly that the respondent does not have, or does no longer have, the ability to reflect maturely upon matters upon

which

he

is

engaged as an attorney. His uncritical assertion of

his own convictions as the absol

ute truth demonstrates that he is a danger not only to himself, but also to his clients and the public at large. The transgressions I have described are serious. The mindset which produced them renders the respondent unfit to practice

(sic)

as an attorney of this

-

court".

-9-

[8] It was after reading the above judgment that the applicant came to the

conclusion that he was being defamed. In his particulars of claim to the summons, the applicant cites the following portions of the judgment which he says are particularly defamatory of him:

conclusion that he was being defamed. In his particulars o

f claim to the summons, the applicant cites the foll

owing p

ortions of the judgment whi

ch he says are particularly defamatory of him:

The conduct of the Present litig

ation

The respondent suffers from a severe disability to separate the grain from the chaff. This is demonstrated in striking fashion by way in which he conducted the present litigation. Technicaldefences were raised against the application which had no hopeof success. On the merits, reams of paper were filed which bore no, or only passing relevance to the issues at hand. In particular, the filing of hundreds of examples of computer printouts from the internet, allegedly demonstrating that childpornography sites had been accessed, was clearly unnecessary,irrelevant and vexatious. His affidavit and some of the letters that respondent haswritten are couched in a garrulous, rambling and loquacious style, often missing the point at issue altogether. The respondentisclearly unable to identify issues, concentrate thereupon and deal with them appropriately.

The respondent suffers from a severe disability to separate the grain from the chaff. This is demonstra

ted in striking fashion by way i

n which he conducted the present litigation. Technical

defences were raised against the appli

cation which had no hope

of success. On the merits, reams of paper were filed which bore no, or only passing relevance to the issues at hand. In particular, the filing of hundreds of examples of computer printouts from the internet, allegedly demonstrating that child

pornography sites had been accessed, was cl

early unnecessary,

i

rrelevant and vexatious. His affidavit and some of the letters that respondent has

written are couched in a garrul

ous, rambling and loquacious style, often missing the point at issue altogether. The respondent

clearly unable to identify issues, concentrate thereupon and deal with them appropriately.

The Conclusion

-10-

practice,(sic)but also that he is no longer able to practice(sic).He has developed unfortunate deficiencies in his character1which have made him prone to serial unprofessional conduct. He is also afflicted by serious shortcomings in his personality resulting in a lack of insight, detachment, objectivity and professional judgment. The respondent cannot continue to practice(sic)-he has become a danger to society and an embarrassment to his profession".

(sic).

1

(9] For leave to be granted in terms of the section, "good cause" must be shown,Superior Court Practice! (Erasmus,pAl-76).Whether or not good cause has been shown, will depend on the facts and circumstances of each case.It is of course common cause that the words were uttered, and published, by the judge. The words, ordinarily speaking, would be defamatory. The question is whether, given the context in which they were uttered of the applicant, the applicant has shown good cause for the purpose of obtaining the leave required. It is trite law that a judge enjoys at least a qualified privilege when executing judicial functions. After examining authorities regarding the position of non-judicial officers (eg counsel, witnesses etc) Joubert JA says the following:

Superior Court Pract

ice! (Erasmus,

Al-76).

"~

-11-

"As regards the legal position of a judicial officer I must stress the fact

that the law requires of him to be 'capable of doing as part of his duty everything which makes for the tracking down of the truth and the

.administration of justice' The nature of his judicial duties are

such that a judicial officer is more often than not active in a sphere where the performance of his judicial duties exposes him to the risk of injuring a person in his reputation. It is for this very reason that there is according to our common law a rebutable p

resumption that a judicial offic

er, who defames someone in the exercise of his judicial authority, does so lawfully within the limits of his authority.

"[May

v

Udwin

1981 (1) SA 1

(A)

19C-FY".

The application must be cons

idered against this background.

[10] A complainant must show malice on thepart of the judicial officer. InMay'scase,supra,the following appears: "Of course, the irrelevance of the defamatory matter to the proceedingsor the absence of some reasonable foundation for it, may, depending upon the circumstances of the particular case, be indicative of malice on the part of a judicial officer." [p20 D]To establish this,one must consider the nature of the case that was before the judge. As said earlier, the judge was adjudicating in an application that hadbeen broughtbytheLawSociety of the NorthernProvinces for the removal of

[10] A complainant must show malice on the

part of the judicial officer

. In

May

'

case,

supra,

the following appears: "Of course, the irrelevance of the defamatory matter to the proceedings

or the absence of some reasonabl

e foundation for it, may, depending upon the circumstances of the particular case, be indicative of malic

e on the part of a judicial officer." [p20 D]

To establish this,

one must consider the nature of the case that was before the judge. As said earlier, the judge was adjudicating in an application that had

been brought

L

aw

S

ociety of the Northern

Provinces for the removal of

-12-

the applicant's name from the roll of attorneys on the ground that he was no

longer a fit and proper person. To substantiate its case, the Law Society made,

as

it

had to in such a case, all

egations which constituted an attack on the

.character of the applicant. In determining the relevance of the judge's remarks and indeed the entire context in which these remarks were made, one must

therefore bear i

n mind the nature of the application by the Law Society, the

allegations made by the L

aw S

ociety against the applicant an

d, very

importantly, the findings and rulings the judge had to make. It becomes clear

at once, that it was inevitable for the judge to look into the very character of

the applicant; he could not have resolved the dispute without doing so. In the

process of so doing,

the judge had to make either pos

itive or negative findings

on the applicant's character. In my view, the remarks were relevant and

material to the case before the judge and there can be no question of malice.

That the applicant is unable to separate the grain from the chaff, was again

demonstrated in a striki

ng fashion bef

ore me. He raided the whole world,

apparently through the internet, for any document commenting on judges, and

irrespective of the relevance thereof to the issues before me, dumped volumes

of materials on me.

[ll]

It

is clear from the papers that,

as it is often the case in matters of that

nature. no punches were pulled in the L

aw Society's application. The judge's

judgment was, and had to be, as robust. I therefore do not agree that the

-13-

remarks were too gratuitous, let alone irrelevant or malicious. There is a

further consideration in this particular case: when it comes to determining

whether or not a person is f

it and proper to remain an officer of this court, it i

the final responsibility of the court to so decide and in doingSO,the court is enjoined to consider the matter thoroughly and fully motivate whatever

the final responsibility of the court to so decide and in doing

SO,

the court is enjoined to consider the matter thoroughly and fully motivate whatever

':~.

conclusion it reaches. Only people of suitable character and integrity should

remain on the roll of attorneys. The statements made by the judge were within

his judicial privilege; there was therefore no

animus injuriandi

as his intentions

\

were limited to resolving the matter before him. The applicant has therefore

not made out a case for the !eave sought. I have throughout been mindful of

the fact that no more than a

prima facie

case is required at this stage, as

opposed to proving a case on a balance of probabilities.

Application to declare section 25(1) of Act 59 of 1959 unconstitutional

12]

The applicant contends that in protecting the judges, the section violates

rules of natural justice; secondly, that the section is founded on discrimination,

in favour of judges, giving them special protection which other people do not

enjoy. The total sum of the applicant's submission is that the section violates a

complainant's right" enshrined in section 34 of the Constitution. The section

reads:

-14-

by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

[13] InBeinash and Another v Ernst&Young and Others,1999 2 SA 116(CC) the Constitutional Court considered the validity of section2(1)(b)of the Vexations Proceedings Act, of 1956. In terms of that section, a person may be barred from instituting legal proceedings against another person unless it be by prior leave of the court, which leave may not be granted unless the Court"issatisfied that the proceedings are not an abuse of the process of the court and that there isprima facieground for the proceedings." The applicant had been slapped with this bar in the High Court. The applicants argued in the Constitutional Court, that their right enshrined in section 34 of the Constitution to approach acourthad been infringed. After a careful consideration of the purpose of the section the court found that, although the applicant's right was indeed being infringed, the infringement was justified; Mokgoro J expressed herself as follows (p 123 para 17).

Beinash and Another v Ernst

&

Young and Others,

1999 2 SA 116

2(1)(b)

"is

court

"The right of access to courts protected under section 34 is of cardinal importance for the adjudication of justiciable disputes. When regard is had to the nature of the right in terms of section

,.1

-15-

36(1)(a), there can surely be no dispute that the right of access to

court is by nature a right that requires active protection. However, a restriction of access in the case of a vexations litigant is in fact indispensable to protect and secure the right of access for thosewith meritorious disputes. Indeed, as the respondents argued, theCourt Is under a constitutional duty to protectbona fidelitigants, the processes of the Courts and theadministration of justice against vexatious proceedings. Section 165(3) of the Constitution requires that '(n)o person or organ of State may interfere with thefunctioning of the courts'. The vexatious litigant is one whomanipulates the functioning of the courts so as to achieve a purpose other than that for which the courts are designed. This limitation serves an important purpose relevant to section 36(1)(b). It would surely be difficult to anticipate the litigiousstrategies upon which a determined and inventive litigator might embark. Thus there is a requirement for special authorisation for any proposed litigation."

court is by nature a right that requires active protection. However, a restriction of access in the case of a vexations litigant is in fact indispensable to protect and secure the right of access for those

with meritorious disputes. Indeed, as the respondents argued, the

Court Is under a constitutional duty to protect

bona fide

litigants, the processes of the Courts and the

administration of justice again

st vexatious proceedings. Section 165(3) of the Constitution requires that '(n)o person or organ of State may interfere with the

functioning of the courts'. The vexatious litigant is one who

manipulates the functioning of the courts so as to achieve a purpose other than that for which the courts are designed. This limitation serves an important purpose relevant to section 36(1)(b). It would surely be difficult to anticipate the litigious

strategies upon which a determined and inventive litigator migh

t embark. Thus there is a requirement for special authorisation for any proposed litigation.

[14] It is true that section 25(1) of Act 59 of 1959 places a hurdle in the way of a prospective litigant, namely, that leave first be applied for and obtained. Isthe section justified? Broadly,the purpose thereof is to ensure the independence of the Judiciary. The oath which judges take upon assumptionof office requires of them to adjudicate matters fearlessly. This they can only

[14] It is true that section 25(1) of Act 59 of 1959 places a hurdle in the way of a prospective litigant, namely, that leave first be applied for and obtained. Is

the section justified? Broadly,

the purpose thereof is to ensure the independence of the Judiciary. The oath which judges take upon assumption

of office requi

res of them to adjudicate matters fearlessly. This they can only

.-

-16-

do if protected against non-meritorious actions. Judges should not, in the

execution of their judicial functions, be inhibited by fear of being dragged to

court unn

ecessarily

over their

judgments. Such a threat could have a chilling

effect on the execution of their duties (cfMay'scase,supra,page 19 H). Furthermore, judges should rather spent time hearing matters, than defending

effect on the execution of their duties (cf

May's

page 19 H). Furthermore, judges should rather spent time hearing matters, than defending

themselves against endless unfounded civil claims. The very nature of the duty

of a judge is such that it would open them to such litigation: a judge's task is to

resolve disputes, inevitably leaving one person or the other dissatisfied;

moreover they are, in the process, required to make findings on the credibility,

honesty

and integrity of witnesses and li

tigants and to justify those findings.

[15] Some of the people not sufficiently acquainted with the execution of

judicial functions, may tend to think that judges are not accountable for their

decisions. Nothing is further from the truth. Judges are expected to justify

every decision they take: they must givefull reasons therefor. Surely,thatisbeing accountable; not only to the litigants, but to the public at large. The latter are entitled to know why and how a particular decision was arrived at

every decision they take: they must give

full reasons therefor. Surely,

that

be

ing accountable; not only to the litigants, but to the public at large. The latter are entitled to know why and how a particular decision was arrived at

and if they so wish, make informed criticism of the judgment including

questioning its correctness. For them to be able to do so a judge owes them

the reasons

for his/her decision. How then,

would judges be able to account

for their adverse findings on the character of litigants or witnesses without

exposing themselves to an avalanche of non-meritorious civil actions by

-17-

disgruntled litigants if there were to be no sifting mechanism? Were they,

under those circumstances, nonetheless stoically continue to do theirwork as they should, they could findthemselves spending more timeincourt asdefendants than as adjudicators of disputes. The administration of justice would be hampered, and genuine litigants would be seriously prejudiced.

under those circumstances, nonetheless stoically continue to do their

work as they should, they could find

themselves spending more time

in

court as

defend

ants than as adjudicators of dis

putes. The administration of justice would be hampered, and genuine litigants would be seriously prejudiced.

[16] The section does not completely take away the right to sue except in instances where the claim has no merits; but, a question may be asked, who on earth has a "right" to prosecute a frivolous or non-meritorious claim?Furthermore, where leave has been refused, an applicant can appeal.

[16] The section does not completely take away the right to sue except in instances where the claim has no merits; but, a question may be asked, who on earth has a "right" to prosecute a frivolous or non-meritorious claim?

F

urthermore, where leave has been refused, an applicant can appeal.

[17] It is true that the section also applies in instances where the judge is to be sued in respect of personal matters, such as for a debt owing. Even in such a case, the section would not be an obstacle: the preliminary investigation would be done andifthere is aprima faciecase, leave to sue the judge wouldbe granted; if wrongly refused, the decision would be appealed against. The considerations set out above justify the retention of the general mechanism as contained in the section, namely, that in all instances, leave be first sought.

[17] It is true that the section also applies in instances where the judge is to be sued in respect of personal matters, such as for a debt owing. Even in such a case, the section would not be an obstacle: the preliminary inv

estigation w

ould be done and

if

there is a

c

a

se, leave to sue the judge would

be granted; if wrongly refused, the decision would be appealed against. The considerations set out above justify the retention of the general mechanism as contained in the section, namely, that in all instances, leave be first sought.

[l8]There is one other point raised by the applicant which is worth mentioning. He argued that the authority to grant leave should reside in a Judge Presidentwhere, asin casu,a judge of the High Court is sought to be sued. He

[l8

]

There is one other point raised by the applicant which is worth mentioning. He argued that the authority to grant leave should reside in a Judge President

where, as

in casu,

a judge of the High Court is sought to be sued. He

"""

-18-

contrasted the situation with that of a Constitutional Court judge, where leave

can only be granted

the head of that court (the Chief Justice). He argues

that in

asmuch as an acting judge is competent to consider and decline such an

application, the section is bad. His motivation is that an acting judge, who may

be a practising advocate soon to return to practice, would not be inclined to

grant such leave against, say, a very senior judge before whom the advocate

might still have to appear. I d

o not ag

ree. An acting judge also takes t

he oath

of office and would surely act in accordance therewith. Moreover, the

definition of "j

udge" includes an acting judge (section 1 of the Judges'

Remuneration and Conditions of Employment

Act,

2001).

A

suggesti

on that a

judge may be inhibited from granting leave against a more senior colleague

fails to appreciat

e the nature of a judicial offic

e and the force of the oath that

precedes the assumption of that office.

[19]

For the rea

sons given above] the application to declare section

of

Act 59 of 1959 unconstitutional cannot succeed.

[20]

There is the issue of costs relating to the application which the applicant

launched in the Witwatersrand

ocal Division. The respondents had argued

that that court did not have jurisdiction.

By

agreement the matter was

transferred to this court; costs were reserved

. I

see no reason why the

-19-

applicant should not be made to pay the costs of that application including the

costs of 15 November 2004 when the question of jurisdiction was argued.

The foll

owing order is made:

(a) The application i

s dismissed with costs;

(b) The applicant is also ordered to pay the costs of 15 November 2004 in

the Witwatersrand Local

Division

l

which costs are to be taxed by the

Regi

strar of the Transvaal Provincial Division.

BM NGOEP

E

JUDGE PRESIDENT OF THE

HIGH COURT

OF.

SOUTH AFRICA

TRANSVAAL

PROVINCIAL DIVIS

ION

Heard on:

29 November 2004

For the appellant:

In Person

For the respondents:

Adv de Wet

Instructed by:

The State Attorney Pretoria