IN THE HIGH COURT OF SOUTH AFRICA [WESTERN CAPE HIGH COURT, CAPE TOWN]
Case No: 10061/08
In the matter between:

and

THE HONOURABLE JUDGE PRESIDENT

JUDGMENT DELIVERED: 19 MARCH 2009 MAJIEDT, J:

[1] The Applicant, a law professor at the University of Florida, United States of America, seeks leave to sue the Respondent, the Judge President of this Division, for damages in the amount of six million rand. Mr. Albertus SC appeared for the Applicant and Mr. Pincus SC, assisted by Mr. Van Reenen, for the Respondent.

[2] Leave to sue is sought in accordance with sec 25 (1) of the Supreme Court Act 59 of 1959 ("the Act"). That provision reads as follows:

"25 No process to be issued against Judge except with consent of court
(1) Notwithstanding anything to the contrary in any law contained, no summons or subpoena against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall in any civil action be issued out of any court except with the consent of that court: Provided that no such summons or subpoena shall be issued out of an inferior court unless the provincial division which has jurisdiction to hear and determine an appeal in a civil action from such inferior court, has consented to the issuing thereof".

[4] Most of the background facts are common cause and they can be concisely summarised as follows:

4.2.	The Applicant's acting stint terminated on 7 December 2006 and he returned to the United States during January 2007.
4.3.	In the course of delivering judgment in the said, criminal appeal on 2 March 2007, the Respondent made the following remarks therein:

"After argument in Court judgment was reserved on the dear understanding that Nagan AJ was going to write the judgment, which is in accordance with the practice in this Division, it will be remembered that I gave judgment in the other appeal when we sat with Nagan AJ. Nagan AJ has subsequently left this country for Florida, I think, in the United States. Clearly this Court owes judgment to the parties. Attempts to get hold of Nagan AJ have been unsuccessful. In fact, there were other matters in respect of which he did not write judgments. Other colleagues have had to write judgments for him".

[5] There is a measure of disagreement between the parties on some of the less salient facts. This divergence has no impact at all in reaching a decision in this application. Where the parties are poles apart, is on the law. With regard to the merits of the prospective damages claim for defamation, I need only make a very limited finding on the legal issues at this juncture. In the event that I should grant the application, it will be for the trial court to adjudicate fully all the legal issues ventilated by the parties.

[6]    What needs to be decided at this stage of the proceedings is simply whether good cause exists to sue the Respondent;

[9], 572 B-C. This will depend on the facts and circumstances of
each particular case:

[8]    Our courts have, understandably, been loath to define "good cause".

"The question whether 'good cause'...has been shown to exist is dependent on the exercise by the Court of a judicial discretion on the basis of all the circumstances of a particular case so as to achieve fairness between the parties". 

[11] In the present matter the Respondent is sought to be held liable for remarks uttered in the course and scope of his judicial functions. The Applicant avers malice on the part of the Respondent on the grounds that:
(a) the matter raised was not germane to the merits of the criminal appeal on which judgment was delivered; and
(b) there was no reasonable foundation at all for the said remarks.

[12] In his papers Respondent denies that the said remarks are defamatory and, if found to be defamatory, the Respondent further denies that they were made maliciously or that they had not been germane to the judgment. He also issued an apology if the remarks were found to be defamatory.

[13] As I have stated, Mr. Pincus did not address me at all on the merits of the application, electing to leave that for me to decide. He restricted himself to arguing the costs aspect only. His contention is that the Respondent had been compelled to come to Court (notwithstanding his stance not to oppose and to abide) since the Applicant had, in his replying affidavit, asked for a costs order against the Respondent.

[15] I need to say something briefly about the prelude to this application:

15.1 A letter of demand was issued to the Respondent on 31 August 2007. In the letter, an application to court for permission to sue was foreshadowed in the event that the demand for payment (for damages for defamation) was not met.

15.2. No response was forthcoming on this demand and a further letter was issued by the Applicant's attorneys on 3 January 2008, seeking leave from the Respondent to institute action against him. A draft consent for signature by the Respondent was appended to this letter.
15.3. On 6 March 2008 the Respondents' attorneys responded by denying all Applicant's allegations and by threatening to seek security for costs from the Plaintiff since they claimed that he was a peregrinus embarking on vexatious litigation against the Respondent.
15.4. The Applicant's attorneys then gave formal notice of their intention to proceed with this application, by letter dated 24 June 2008.

[17] It is trite that costs is a discretionary matter which entails acting fairly towards the parties. Of cardinal importance is to determine the reasonableness of the conduct of the parties. Was the Respondent entitled to come to Court to resist a claim for a costs order against him as foreshadowed in the Applicant's replying affidavit? Did the Applicant act reasonably in replying to all the averments regarding the merits of his proposed damages claim as set forth in the Respondent's answering affidavit?

[18] In essence the conundrum really arises from the Respondent's answering affidavit and what Mr. Albertus, correctly in my view, describes as the Respondent's "ambivalent stance". While stating that he does not oppose the application and that he would abide the decision of this Court, the Respondent proceeds to deal extensively with the merits of the proposed action, thereby taking issue with the Applicant on many of the legal aspects. Mr. Albertus submitted that, as it were, the Respondent was attempting to straddle two chairs and that the Applicant could not leave these materially relevant allegations unanswered. Mr. Pincus, on the other hand, has referred to these matters (and to the notice of opposition) as "red herrings". In his submission no adverse consequences would have ensued had Applicant elected to merely persist in the averments contained in his founding affidavit by way of a letter or short replying affidavit. I am not sure that Mr. Pincus is right on this score. One can well imagine a scenario where the Applicant will be questioned on such a stratagem at the trial. Be that as it may and in any event, what is the reasonable litigant to make of a notice of opposition, followed by an answering affidavit which challenges many of the important legal submissions made by Applicant and which is, according to the Applicant, at variance on the facts, some of which may well be important? I do not view the Applicant's conduct as unreasonable at all. Surely to sit back and do nothing is to run the risk of being exposed to cross-examination later at the trial concerning his inaction.

"The Second Defendant, instead of allowing the Plaintiff and the First Defendant to settle this issue between themselves took upon himself the burden of showing that the Plaintiff's contention was wrong".

[21]  In summary therefore:

21. 2 In the exercise of my discretion, I have decided to have the costs of this application stand over for determination at the trial.
[22]	I issue the following order:

22.2.	Costs of this application will stand over for determination at the trial.

					JUDGE