CIVIL PROCEDURE – Urgency – Abuse of process
Interim interdict sought prohibiting media house from referring to applicants as members of “Alex Mafia” – Lack of urgency and altering case in reply – Purpose of relief to improperly punish and to make examples of respondents – Multiple other media houses published pieces along same lines – Relief, if granted, would be ineffectual – Principles applicable to judicial prior restraint orders (gagging orders) restated – Matter struck from roll and punitive costs order granted.
Facts: Mr Sithole and Mr Maile (applicants) formed close relationships with Mr Paul Mashatile, the current Deputy President, during the years of the struggle. Their friendships endured into the post-apartheid era and they remain friends, with Mr Mashatile having appointed them to certain positions over the years. They contend that the media is repeating unsubstantiated and unproven allegations about them that identify us them as core members of the so-called “Alex Mafia”.
Application: Urgently seeking to interdict the media house and certain of its editors-in-chief and journalists.
Discussion: The mainstream media references to “Alex Mafia”, the number of Google search results for the term and its origin; the test for urgency; that the appellation was published in 2007 and numerous times thereafter; that for many years, the internet has been replete with references to the applicants as members of the “Alex mafia”; that instead of dealing with the substance of the simple allegation of whether they call themselves the “Alex Mafia” or not, the applicants attack the nature of the evidence as being hearsay; and the contention that the applicants want to amend their notice of motion to abandon the most serious relief, on which their case was founded, and on which their pre-litigation demands were based, to persist only with a ban on the respondents referring to them as “Alex Mafia”.
Findings: The applicants approached the urgent court without having attempted to obtain relief at the Press Council of South Africa, the body recognised by statute as an effective regulator. The application is an abusive attempt by two politically-connected businessmen to gag a targeted newsroom from using a nickname, “Alex Mafia”, by which the applicants are popularly known and called by the public, politicians, political commentators, other newsrooms, and themselves, and have been for at least 16 years. Applicants have abused the court process by claiming urgency where there is none, by materially altering their case in reply, and by seeking relief which will have no purpose other than to improperly punish and make a chilling example of the respondents. While the application does not bear all of the hallmarks of a SLAPP suit it does bear two of them – the ulterior objectives of punishment and deterrence. In any event, it is an abuse of process to bring a civil action or application for any purpose ulterior to the genuine protection or vindication of a right.
Order: The matter is struck off the roll with costs, as between attorney and client, such costs to include the costs of two counsel where so employed.
OPPERMAN J
Sithole v Media 24 (Pty) Ltd [2023] 070374 (GJ)
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PAIA – Civil Aviation Authority – Airplane crash records
Access refused when sought by wife of deceased pilot – Seeking to establish cause of accident – Reasons that records not in possession and due to regulations and aviation convention – International agreement and prejudice to international relations – CAA relying on bald generalised references to exemptions without laying a fundamental basis for reliance thereon – Ordered to make records available – Promotion of Access to Information Act 2 of 2000.
Facts: In 2021 the husband of Ms Leuvennink (applicant) was involved in a fatal accident while piloting an airplane. The Civil Aviation Authority (CAA) investigated the accident and published a final report. The applicant thereafter appointed two experts who agree that the CAA’s report lacked certain relevant information necessary to establish the cause of the accident. One of the experts has advised that he requires certain records from the CAA to enable him to provide a final report and these include pilot recordings, radar plots, weather reports and communication transcripts.
Application: An opposed application for access to records in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). The applicant properly applied for access to these records in terms of PAIA and that access was refused by the deputy information officer of the CAA.
Discussion: How both parties laboured under the incorrect impression that they were in court for a review application; the contention that applicant should have approached the court in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000; that PAIA’s only “ground” for bringing an application is that there was a procedurally compliant request for access, which was refused and that internal remedies have been exhausted; that the principle of subsidiarity places the application squarely within the ambit of PAIA; the reliance of the CAA on the provisions of part 12 of the regulations (SACARS); the evaluation of records refused as not in existence or in possession of the CAA; the refusal in terms of section 41(1)(a)(iii) related to prejudice to international relations; and the refusal related to an international agreement.
Findings: The answering affidavit was wholly insufficient and it contains no information regarding a search done for the records or enquiries made as to the existence of the records. The CAA has provided no information showing how divulging records to enable the applicant to find out the cause of her husband’s death would influence the Republic’s relationships or negotiating powers on a global level. The provisions of PAIA prevail and this court is not bound to the provisions of SACARS or the Convention on International Civil Aviation (insofar as direct incorporation may be argued) where such provisions are materially in conflict with the provisions of PAIA. The CAA has failed to prove that any of the records are exempted from production in terms of PAIA. The CAA made no attempt to comply with its obligations in terms of PAIA and relied on bald generalised references to the exemptions, without laying a fundamental basis for the reliance thereon.
Order: The CAA is ordered to make the listed original records available for inspection by the applicant or her representatives or any experts appointed by her and to furnish clear copies within 15 business days of the order. See para [87] for the list of records. See also the directions should a record not exist.
STRYDOM AJ
Leuvennink v Civil Aviation Authority [2023] ZAGPPHC 633
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CIVIL PROCEDURE – Curator bonis – Release from curatorship
Court a quo releasing patient from curatorship – Award from Road Accident Fund – Whether patient could effectively take charge of her own affairs – Court failed to have regard to Uniform Rule 57(14) and erred in finding that daughter held requisite locus standi and held patient’s best interests at heart – Clear evidence was required that the patient’s circumstances had changed and court’s findings not borne out by the material before it – Appeal succeeding.
Facts: Ms Cornelius (the patient) was seriously injured in a motor vehicle accident in 2008 and a practising advocate was appointed as curator ad litem. The patient succeeded in a claim for general damages against the Road Accident Fund for R2,28 million. In 2017 the court declared the patient incapable of managing her affairs and Mr Van Rensburg (the appellant) was appointed curator bonis. This followed the recommendation of the curator ad litem that the patient was unable to manage her own affairs.
Appeal: Against the judgment of the High Court declaring that the patient is not of unsound mind and is capable of managing her affairs and releasing her from curatorship. The Master was directed to retract the letters of curatorship for the appellant and it was ordered further that the funds held in trust by the appellant were to be transferred to the patient’s bank account. That court found that to keep the patient under curatorship would amount to a grave affront to her dignity, freedom of choice and right to equality.
Discussion: The report of the neuropsychologist and the findings of the psychiatrist on the patient’s abilities; that the respondent in the court a quo was the patient’s daughter; the contention that the patient had sufficiently recovered to effectively take charge of her own affairs; the appellant’s opposition to the application before the court a quo because the patient had not become financially literate and remained incapable of managing her own affairs and that the patient would be placed at risk if the curatorship were to be terminated; and the example given that the patient was unable to read, understand or interpret financial advice and that she had stated that she intended to give away more than R1 million of her funds to family and friends.
Findings: The court a quo failed to have regard to Uniform Rule 57(14) and erred in finding, without more, that the respondent held the requisite locus standi in the matter on the basis of her relationship with the patient and that she held the patient’s best interests at heart. Clear evidence was required that the patient’s circumstances had changed such as to warrant an order releasing her from curatorship. The court a quo’s findings were simply not borne out by the material before the court. The court a quo’s statement that retaining the curatorship was “tantamount to endorsing the unfortunate and unfounded belief that only those who are sufficiently schooled in the Western ways of doing things have an inherent right and can be trusted to properly manage large estates” was unfounded.
Order: The appeal succeeds and the order of the court a quo is replaced with one dismissing the application.
SAVAGE J (LE GRANGE ADJP and CLOETE J concurring)
Van Rensburg NO v Cornelius [2023] ZAWCHC 190
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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