DIVORCE AND VEXATIOUS LITIGATION
NDC v GC [2022] 14367-2021 (GP)
The applicant and respondent were married in 2001 and had two children. A divorce and a remarriage were followed by a protection order and second divorce proceedings. Following various applications by the respondent, applicant now seeks to have the respondent declared a vexatious litigant and to be ordered to provide security.
Munzhelele J discusses the respondent’s attempts to have the applicant’s rights to the minor child terminated; that the respondent brought urgent reviews of the protection order four times and well knowing that divorce proceedings were still pending, went ahead and obtained another decree of divorce. The court discusses the respondent’s right of access to the courts; the requirements for a person to be declared a vexatious litigant; that the respondent has persistently exploited and abused the court process to achieve improper purposes, and further that the respondent has not been paying his costs orders on all his litigations. The court finds that the applicant should be protected from this abusive litigation aimed at punishing her and depleting her finances.
The respondent is declared a vexatious litigant in terms of s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956. He is ordered to provide security of R120,000 as per the Rule 47 notice.
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MUNICIPALITY – DEBT TO ESKOM
Eskom v Letsemeng Local Municipality [2022] ZASCA 26
In early 2020 Letsemeng Municipality owed Eskom R40 million and based on its ongoing failure to pay, Eskom issued a final notice to interrupt electricity supply. The municipality launched an urgent application in the Free State High Court to interdict Eskom from implementing the interruption. Eskom opposed the application and filed a counter-application in which it sought to compel the municipality to comply with its obligations in terms of the electricity supply agreement. The High Court was of the view that it could not grant Eskom an order for payment as the municipality had no funds with which to satisfy the debt. It was also of the view that Eskom had itself to blame as it could have resorted to a number of alternative legal processes to remedy the default. The High Court granted Letsemeng the interim interdict and dismissed Eskom’s counter-application. Eskom only appeals against the order dismissing its counter-application.
Phatshoane AJA notes that the municipality did not honour any of the acknowledgment of debts and the various payment arrangements it made with Eskom; furthermore, the municipality undertook to pay the amount of its equitable share earmarked for electricity, and then to pay R5 million to Eskom that was advanced to it by the Treasury, but did not do so; and that the municipality’s defence on the merits is no defence at all – that it should not be ordered to pay what it agreed to pay because it was unable, due to its financial weakness, to do so.
The appeal is upheld and the order of the High Court dismissing Eskom’s counter-application is replaced with one directing the municipality to pay all amounts due to Eskom for electricity and the arrear debts.
* Note Schippers JA disagrees in part from para [28] and at [57] notes that the municipality like most municipalities in this country, is in financial crisis. It is unable to comply with an order to settle all arrear amounts and to pay all amounts due to Eskom when they become payable. It is trite that a court will not make an order which will have no practical effect.
* Plasket JA writes from [68] and disagrees with Schippers JA.
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MULTIPLE PLAINTIFFS AND MISJOINDER
Alberts v Minister of Justice [2022] ZASCA 25
A summons was sued out by 138 plaintiffs where they claimed damages from the Minister arising from an alleged assault by Correctional Services officials who are alleged to have used batons, hands and feet to beat, slap and kick the plaintiffs. Different injuries and sequelae are pleaded for each plaintiff and each plaintiff claims R500,000 by way of general damages. The plaintiffs annexed 138 separate sets of particulars of claim to the summons.
The Minister entered a special plea and contended that a summons must have annexed to it “a set of Particulars of Claim”. Because 138 sets of particulars of claim were attached to the summons, the summons was irregular as not complying with form 10 of the Rules; and further that the particulars of claim of the respective plaintiffs do not comply with the requirement in Rule 10(1) that the claims depend upon the determination of substantially the same question of law or fact. The High Court upheld the special plea and dismissed the claims.
Gorven JA finds that manner in which the particulars of claim have been annexed was unwieldy but it was not irregular. An overly formal approach to pleadings has always been discouraged. The court then discusses Rule 10(1) and whether the plaintiffs fall foul of a fatal misjoinder; the meaning of “the determination of substantially the same question of law or fact”; and the question of convenience.
The court finds that the facts concerning each plaintiff are substantially similar, and also on the basis of convenience, the joinder of the plaintiffs in one action is appropriate and inoffensive. The appeal is upheld and the order of the High Court replaced with one dismissing the special plea.
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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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