FAMILY – Divorce – Vexatious litigant
Best interests of children – Former wife conducting herself in a manner that maximises harm to children – Continuously instituting fresh litigation or unmeritoriously opposing justified legal proceedings against her – Disregards settlement agreements and court orders – Unfounded criminal complaints of alleged sexual and physical abuse of children – Every indication that she will persist in her strategy – Declared a vexatious litigant – Vexatious Proceedings Act 3 of 1956, s 2(1)(b).
Facts: The first applicant and the respondent were married in 2004 and the marriage was dissolved in 2017. The minor children are presently 13 and 12 years of age. Whilst initially primary residency was awarded to the respondent, this was subsequently altered as a result of various court applications between the parties, and pursuant to several forensic assessments being conducted, amidst allegations by the respondent of sexual abuse of the minor children. The first applicant now holds primary residence of both the minor children. The second applicant is the current wife of the first applicant.
Application: The parties have been embroiled in a multiplicity of court matters to date. The first and second applicants now seek an order declaring the respondent a vexatious litigant as contemplated in terms of section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956.
Discussion: The respondent continuously conducts herself in a manner that maximises harm to the children and obstructs the primary residence of the first applicant. She does so with impunity, whilst continuously instituting fresh litigation or unmeritoriously opposing justified legal proceedings against her. The respondent repeatedly disregards settlement agreements and court orders, and accuses all professionals engaged in attempting to assist the minor children of bias. Unfounded criminal complaints of alleged sexual and physical abuse of the children, and of kidnapping, are repeatedly laid by the respondent against the first and second applicants.
Findings: The first and second applicant have been forced, in order to protect themselves and the minor children, to incur great expense over the past several years for legal and other professional services. It is clear that the respondent continues unabated in her conduct of engaging in continued litigation against the first and second applicants. There remains every indication that the respondent will persist in her strategy on an indefinite basis, unless some measure is taken to bring this conduct to an end. It is in the best interests of the minor children that this must be done. The purpose of section 2(1)(b) of the Act, in protecting innocent persons, must also serve the minor children’s best interests in this matter.
* Note the comments at para  on how it has become commonplace for certain divorced parties, often encouraged by their legal representatives, to continue the acrimonious conduct experienced during the divorce proceedings, well after the marriage has come to an end.
Order: The respondent is declared a vexatious litigant and no legal proceedings shall be instituted by the respondent against the first or second applicants or any related party in any court without the leave of this court or any judge of this court. This order is to be brought to the attention of the police in the event that the respondent lays further criminal charges against the first or second applicants. The respondent is ordered to pay the costs of this application.
CRIMINAL – Inquest – Murder
Arrested for purpose of interrogation – Death of detainee under suspicious circumstances – Evidential considerations – Bodily injuries consistent with assault and torture – Security branch officers involved kidnapping and torture responsible for murder – Recommendation for certain charges be considered by NPA against parties involved – Inquests Act 58 of 1959.
Facts: The late Dr Hoosen, who was 26 years old, died at the hands of the Security Branch in the police cells at Brighton Beach Police Station, Durban in 1977 allegedly from suicide by hanging. The Truth and Reconciliation Commission concluded that it was likely that Hoosen died under torture. Hoosen was forced off the road and arrested by Du Toit, Taylor, MacPherson, Schrewds, Benjamin and Gopal. According to Gopal the apprehension of Hoosen amounted to a kidnapping.
Inquest: The formal stage of the re-opened inquest into the death of Dr Hoosen, who allegedly died from suicide by hanging which cause is found to be inconsistent with the bodily injuries sustained whilst in police custody.
Discussion: Hoosen was handcuffed and placed into Du Toit’s vehicle. Hoosen was not informed of any charges against him and was not given any procedural warnings. According to Gopal, the purpose of the interrogation was to firstly find out who the two Muslim men were that attended Hoosen’s lectures, and secondly to find out more about the training he had received in India. Taylor initiated the assault by slapping and punching Hoosen, with open palm slaps, kicks on his kidney, along his back and front, and on his legs and thighs. The punches became more violent through the course of the day. The Security Branch had no evidence that would secure a charge. Meyer claimed he noticed that something was abnormal about the scene. According to him, Hoosen was laying on the floor on his back, his lower body was naked, with something attached to his neck and tied around the bars of the safety gate. The bodily injuries discovered post death were not consistent with suicide by hanging and looked more like torture.
Findings: The cause of death of Dr Hoosen is attributable to either of two possibilities. Hoosen died following a cardiac incident while under torture. Alternatively, Hoosen died from a cardiac incident caused by ligature constriction applied by the Security Branch members either while less conscious, unconscious or debilitated after torture. The Security Branch officers primarily responsible for torturing and murdering Hoosen are Captain Lodewikus du Toit and Lieutenant Taylor. Those who played various other roles in the interrogation, torture and cover-up must also be held responsible for acts connected to Hoosen’s murder. It is recommended that certain charges be considered by the National Prosecuting Authority against the surviving members of the Security Branch, Derek Hugh Naude and Johannes Meyer and Matheevathinee Benjamin.
CRIMINAL – Private prosecution – Abuse of process
Zuma seeking leave to appeal full court judgment finding summonses and private prosecution unlawful – Issue of security deposit discussed – Court in Part A did not condoned the late payment of security – Section 9 requires compliance at the time of issuing the summons by the Registrar and the full court found in its judgment that this was not done – Court is not persuaded that Mr Zuma meets the test for leave to appeal – Application dismissed – Criminal Procedure Act 51 of 1977, s 9.
Facts: Mr Zuma issues summons against the President (Mr Ramaphosa) instituting a private prosecution and attached two nolle prosequi certificates. In an earlier judgment the full court declared the summonses unlawful, invalid and set aside. Mr Zuma’s private prosecution of Mr Ramaphosa instituted under the summonses was found to be unlawful and unconstitutional and was set aside and interdicted.
Application for leave to appeal: Having considered Mr Zuma’s elaborate grounds for appeal, the court is not persuaded that Mr Zuma meets the test for leave to appeal. However, the court deems it necessary to address two issues for the benefit of the Supreme Court of Appeal if Mr Zuma successfully petitions it.
Security deposit: The court had considered whether Mr Zuma complied with section 9 of the Criminal Procedure Act 51 of 1977 for the payment of a security deposit and found that he failed to do so. Mr Zuma contradicted his purported exemption from paying security by paying it and contended that his late payment of security was condoned by the court in Part A. Yet his first defence to the allegation that he failed to pay the security deposit was that he has sufficiently and substantially complied with section 9. Section 9 requires compliance at the time of issuing the summons by the Registrar. As this court found in its judgment, this was not done.
Condonation for failure to pay security: This court had invited Mr Zuma’s current attorney of record to furnish it with proof that the court in Part A condoned the late payment of security. The contention that this court ignored an order for condonation granted by the court in Part A was persisted with in argument notwithstanding that the presiding judge in Part A, Sutherland DJP had clarified that the Part A court did not grant condonation. Notwithstanding his client’s persistence with the relevant ground of appeal, Mr Zuma’s current attorney of record had an ethical duty to disclose to this court that Sutherland DJP did not acquiesce his request to modify the order granted by the court in Part A to reflect that it granted condonation because it had not granted it. By not making such disclosure, Mr Zuma’s current attorney of record failed in that duty. See further at para .
Order: The application is dismissed with costs.
ISMAIL J, BAQWA J and MODIBA J
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