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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

 

(1)          REPORTABLE: NO

(2)          OF INTEREST OTHER JUDGES: YES

(3)          REVISED.

14/11/2019

 

CASE NO: 76579/2019

DATE: 2019-10-18

In the matter between

ALUTHA SONGELWA                                                                      Applicant

And

 

THE PRESIDENT & 9 OTHERS                                                       Respondents

J U D G M E N T

DAVIS, J: This is the fifth application launched at the 20 instance of one Sylvester Vulani Mangolele, two of which applications were applications for leave to appeal.

The latest of these applications were set down by Mr Mangolele to be heard today, Friday, 18 October 2019, at 14h00. It is now 15h30 on the Friday afternoon at the end of an urgent roll. Mr Mangolele is in default of appearance.

For the sake of good order and also to assist other judges who might tater have to hear further applications herein and also for the sake of Mr Mangolele and the nominal applicant I deem it appropriate to give an ex tempore judgment which is as follows:

Mr Mangolele was a commander in the South African Navy. He asserts that there are certain disputes regarding his position as such although in his initial application earlier this week he claimed reinstatement as a naval officer and that such 10 commission be afforded him at a formal parade to be held by the Chief of the Navy.

The litigation launched by Mr Mangolele has a long and chequered history, one part of which ended in the Constitutional Court in case CC T 254/2018. That court on 7 November 2018 refused Mr Mangolele's application for leave to appeal inter alia on the basis that it bears no prospect of success. The respondents in that application were the Presidency, the Minister of Defence and Minister of Police.

The same court in CC T 192/2019 in another application launched by Mr Mangolele, styling himself as the defender and protector of the Republic of South Africa and in which the Presidency, the Minister of Defence, the Minister of Police were again respondents, refused Mr Mangolele direct access to that court.

Subsequent and ancillary litigation between Mr Mangotefe and again the Minister of Defence resulted in the Western Cape Division of the High Court in case number 15141/2018 declaring on 14 September 2018 that Mr Mangolele was a vexatious litigant in terms of the provisions of the Vexatious Proceedings Act 3 of 1956. He was prohibited from proceeding with litigation without leave of that court. Last week, so I have been informed, Mr Mangolele launched an urgent application in this court which was twice struck off the roll for lack of urgency.

Early in this week Mr Mangolele launched another urgent application, this time in the name of his nine months old girl child. She is living in Khayelitsha in Cape Town. Speaking for her in his affidavit he inter alia claimed again against the President of the Republic, the Minister of Defence, the National Treasury, the National Prosecuting Authority, the Minister of Justice, the Deputy Chief of the Navy and various others admirals of the navy and the Minister of Police, far reaching relief which, as stated in a judgment of myself earlier this week, included reinstatement as a commissioned officer byway of a parade, the furnishing of an executive range Lexus at state expense, pending which return he claimed the use of another Lexus of which he alleges the State President has the keys, various orders against the Military Court regarding return to him of his laptop which he alleges with its information has R40 billion in value, the return of a cellular phone with similar allegations of R80 million in value, the provision of a full military uniform and the like.

That application was struck off the roll by Kollapen, J due to a tack of urgency. Kollapen, J also refused the application for leave to appeal against that order.

Subsequently and before me on 16 October 2019 Mr Mangolele, acting as if speaking for the nine months old girl child, sought re-enrolment of that application and sought certain parental rights regarding the minor child.

I had the matter stand down until the next day and reliant on an affidavit of the mother of the girl child which was then handed up by Mr Mangolele, granted him rights of contact to that child. The remainder of the relief was, in pursuance of the order of Kollapen, J, again struck off the roll. I also refused an application for leave to appeal against such striking off insofar as such a ruling may be appealable.

Thereafter on the same day Mr Mangolele again approached Kollapen, J and his application, and enrolment of his application was refused. The remainder of the relief was 20 yet again struck by Kollapen, J.

Today a new notice of motion again surfaced pleading enrolment on 18 October 2019 at 14h00 of a re-enrolment of the previous application. In addition thereto relief is claimed pending a final decision of a certain case number alleged to be awaiting a hearing by a full bench. What was termed a "just and equitable interlocutory order" was claimed again in the form of a protection order against alleged harassment in terms of Section 2(1) of the Protection from Harassment Act,

I have read this application, I have read the whole of the founding affidavit thereto, yet again deposed by Mr Mangolele speaking as if he is the girl child. There is not a shred of evidence in that affidavit indicating any harassment of the girl child or of the applicant justifying an order in the broad terms which he claims.

It again appears to be a rehashing of the previous litigation to which I have been referring to but only in the vaguest possible sense. The affidavit is only three and a half pages long. In it scurrilous allegations are made of courts, including this court, as allegedly being corrupt, acting in collusion with the respondents and acting in an unjust fashion. There are similar scurrilous and insulting terminology used in respect of the Constitutional Court and the orders to which I had referred.

The manner in which this affidavit has been formulated amounts to a contempt of court. As Mr Mangolele had chosen not to appear I will not pursue the issue of contempt of court in his absence.

What is of importance, however, is that in terms of Section 173 of the Constitution this court has the inherent power to protect and regulate its own process. ft also has the power to protect an abuse of its process.

In Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC) the Constitutional Court inter alia found as follows:

"Our Constitution guarantees everyone the right of access to courts which are independent of other arms of government. But the guarantees in section 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised.

A litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute."

In Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) the late then Mahomed, CJ inter alia said the following at 734 D to F:

"There can be no doubt that every court is entitled to protect itself and others against an abuse of its processes. Where it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it is quite entitled to set it aside. As was said by De Villiers, JA in Hudson v Hudson and Another 1927 AD 259 at 268:

'When the Court finds an attempt made to use for ulterior purposes machinery devised for better administration of justice, it is the duty of the Court to prevent such abuse. "'

In the matter before me and which served before this court numerous times this week it is clear that Mr Mangoleie is abusing the persona of his nine month old girl child to pursue his own interests. He is also abusing the process available even in urgent courts to protect the best interests of a child and to allow parents to exercise their rights to that child, to pursue his own agenda against various defendants not in the 10 least the President of the Republic, the Minister of Defence and the Chief of the Navy.

In the affidavit in which he speaks for his girl child he concludes as follows:

"My father's primary job is to defend the Constitution both as a citizen and a volunteer. How does he get to do that if his matters are struck off the roll every single time? Why does my father not get a fair trial for the past three years as if he is stupid and has no absolute right to self        representation? Why so much discrimination against him as if he is not part of everyone in law?"

As has been explained on numerous occasions by various judges to Mr Mangolele, if he wants a proper ventilation of his actions against the respondents which he had currently cited he should do so not in an urgent court and not in an improper fashion but by way of a proper application or, better even, an action whereby all the various disputes of facts can be raised and where he can present oral evidence and also test the oral evidence of the other parties by a way of cross-examination.

Whatever complaints he now raises by a way of his daughter is of his own making.

I find that the current application launched on a Friday on an urgent basis in circumstances as set out above with two hours' notice to the respondents with the ulterior motive or purpose of abusing the rights of contact to a child in order to obtain other relief, amounts to an abuse of process of this court which, in the order of good administration of justice, should not be tolerated.

The order is therefore as follows:

The application is dismissed.

 

 

 

DAVIS, J

JUDGE OF THE HIGH COURT

DATE : 18/10/2019

 

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