CRIMINAL – Private prosecution – Abuse of process
Orders setting aside summonses and interdicting private prosecution – Mr Zuma seeking to appeal orders – Whether orders not to be suspended pending appeal – Applicants have shown exceptional circumstances, that they will suffer irreparable harm if the order is not made and that Mr Zuma will not suffer irreparable harm if the order is made – Operation of orders not suspended pending applications for leave to appeal or appeals – Superior Courts Act 10 of 2013, s 18(3).
Facts: Mr Zuma in his capacity as a private prosecutor caused a summons in a criminal case to be issued and served on Ms Maughan, a senior journalist, and Mr Downer, a Senior Counsel and Senior State Advocate. Ms Maughan has been reporting on the criminal investigation of former President Zuma for almost 20 years. On 7 June 2023 the court granted orders in favour of Ms Maughan and Mr Downer, setting aside Mr Zuma’s summonses and interdicting him from proceeding with the private prosecutions.
Application: Mr Zuma’s attorneys indicated that they would proceed with an appeal and did not give an undertaking that Mr Zuma would not take steps with the private prosecution pending the appeal. Ms Maughan and Mr Downer (applicants) now seek orders in terms of section 18(3) of the Superior Courts Act 10 of 2013 to the effect that the judgment of this court of 7 June 2023 shall not be suspended pending the final determination of any applications for leave to appeal or appeals against the order.
Discussion: That section 18 applications are by their very nature urgent; the three statutory requirements in terms of section 18(1) and (3) of the Act; that Ms Maughan contends that the continued operation of the summons against her permits Mr Zuma to continue to violate her freedom of expression and the general public’s corresponding right to freedom of the press; that the Stalingrad strategy was said to be Mr Zuma’s defence strategy by his former legal representative; the submissions on behalf of Mr Downer that if the order of this court is not put into operation, he and the State stand to suffer irreparable harm ensuing from the further delay in Mr Zuma’s criminal trial; and that there is clearly no prejudice or irreparable harm to Mr Zuma.
Findings: The only onus which the applicants have to discharge is the three-fold statutory onus imposed by section 18. There is no onus in the traditional sense for the applicants to discharge in respect of prospects of success on appeal. The court disagrees with the submissions by Mr Mpofu SC that there is an onus on the applicants to show prospects of success on appeal which ought to have been specifically pleaded. The court is satisfied that the applicants have discharged the onus in terms of the three-fold statutory test imposed by section 18 of the Act. The applicants have shown exceptional circumstances; that they will suffer irreparable harm if the order is not made; and finally that Mr Zuma will not suffer irreparable harm if the order is made.
Order: The operation and execution of the orders of 7 June 2023 shall not be suspended pending the final determination of any applications for leave to appeal or appeals against the order. Mr Zuma is to pay the costs occasioned by the unsuccessful opposition to the applications on an attorney and own client scale such costs are to include the costs of two counsel.
KRUGER J, HENRIQUES J and MASIPA J
MUNICIPALITY – Billing – Dispute
Municipality disconnecting water for school that caters for underprivileged children – Ongoing dispute in relation to prescribed charges – Municipality not providing accounts and in contravention of its obligations in terms of the Local Government: Municipal Systems Act 32 of 2000 read with the relevant bylaws – School setting out basis for interim interdict which is granted in relation to water and electricity – School to pay amount under protest.
Facts: The applicant is a school in an impoverished area catering for the underprivileged children by providing them education. The water to the premises were disconnected so the school does not have water for the children and has to go across the road to obtain water in buckets from the catholic church for purposes of drinking and ablution.
Application: Applicant has attempted to enter into protracted negotiations with the municipality over a period of time particularly because they did not have the monies to litigate in the High Court and now seek urgent relief.
Discussion: That there is an ongoing dispute in relation to prescribed charges, sundry charges that appear nondescript, ancillary charges, legal charges, interest and other charges that the municipality has unilaterally raised on the applicant’s account without any explanation; the conduct of Advocate Sithole who appeared for the municipality; the court’s attempts to get the parties to settle the matter and that in terms of section 173 of the Constitution the Judge can regulate the court process and to do justice between the parties and that justice is codified and imbodied in the bill of rights, which has specific rights for children and rights for water; the attempts at getting the draft settlement order made an order of court; and that the applicant indicated that they had R400,000 rands to pay over immediately under protest.
Findings: The municipality has not produced municipal accounts to the applicant and this in clear contravention of their obligations in terms of the Local Government: Municipal Systems Act 32 of 2000 read with the relevant bylaws. The municipality has no serious desire to collect revenue or to get to the bottom of the applicant’s complaint which they ought to do in terms of their own bylaws. The applicant is left up in the air with no remedy that is efficient and in keeping with our Constitution. The applicants have set out clear basis for interim relief and all the elements of an interim interdict.
Order: The court provides in the draft order, for an interim interdict in relation to water and electricity. The applicant is to issue an action within thirty days, failing which this order shall lapse. The applicant shall also pay up an amount of R400,000 rands within 14 days to the municipality under protest. The separate draft order is made an order of court.
CIVIL PROCEDURE – Commissioner of oaths – Remote commissioning
Knuttel NO v Bhana decided amidst extra-ordinary circumstances of covid pandemic – In this case lack of financial resources and having a sick parent not extra ordinary or exceptional to attract rationale of Knuttel – Founding affidavit non-compliant with the Regulations Governing the Administering of Oaths and Affirmations.
Facts and application: Ms Tinashe (applicant) is a PHD student at the university and seeks to review and set aside the failure to release her thesis results. The university opposes the application on the basis that the applicant has not fully traversed the complete route qualifying her to receive PHD results. The university contends that there are aspects of scholarly dishonesty attendant to her thesis which still need to be determined.
Points in limine: That the founding and replying affidavits are not properly commissioned and are thus non-compliant with regulation 3(1) of the Regulations Governing the Administering of Oath or Affirmation. A further point is that the application has been brought prematurely as internal remedies have not been exhausted.
Discussion: The contention by Ms Tinashe that the founding and replying affidavits, which were signed by the applicant in Zimbabwe and commissioned in South Africa, are sound in law as they were signed in accordance with an exception to the general rule that affidavits must be commissioned in the presence of the deponent. Ms Tinashe relied on the case of Knuttel NO v Bhana  ZAGPJHC 874 that there could be substantial compliance with regulation 3(1) in circumstances where physical presence of the deponent with the commissioner is impossible owing to extra-ordinary circumstances such as Covid. In that matter, a Whatsapp video call between the deponent and the commissioner of oaths was found to constitute substantial compliance with regulation 3(1).
Findings: The court does not agree that Knuttel is now a magic wand or a cure-all vaccine for all situations where deponents are for some reason or another unable to travel to where the commissioner of oaths is such reasons including alleged financial difficulties or any other pressing competing interests. Knuttel was decided amidst extra-ordinary circumstances imposed on our society by an international pandemic. The court does not find that find that the stated causes of Ms Tinashe’s failure to be physically present for the commissioning of the affidavits, being lack of financial resources and having a sick parent to take care of, are anywhere near being extra ordinary or exceptional to attract the rationale of Knuttel. It is unavoidable for the court to uphold the first point in limine as effectively there is no founding affidavit, let alone a replying affidavit before court.
* See paras - on how Ms Tinashe could have obtained a properly commissioned affidavit in Zimbabwe.
Order: The point in limine of the founding affidavit being non-compliant with the Regulations Governing the Administering of Oaths and Affirmations is upheld. The application is dismissed with costs.
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
You can read his full CV and more