Biowatch principle does not apply to a matter that is not of a constitutional nature

August 1st, 2021

Mkhatshwa and Others v Mkhatshwa and Others (CC) (unreported case no CCT 220/20, 18-6-2021) (Khampepe J (Mogoeng CJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J concurring))

The Constitutional Court (CC) refused leave to appeal in the Mkhatshwa case. The matter was on appeal from the Supreme Court of Appeal (SCA) dismissing an appeal from the Mpumalanga Division of the High Court in Mbombela. The applicants submitted to the CC that the orders granted by the High Court were sought for illicit purposes and were improperly and unlawfully granted. The applicants argued that certain provisions of the Communal Property Associations Act 28 of 1996, as well as s 25(1) of the Constitution, are implicated by the allegedly unlawful orders, which were granted as a result of a material misdirection by the High Court.

The application arose from the orders and judgment of the Mpumalanga Division of the High Court, that was granted in March 2020 in terms of an Anton Piller order and a temporary interdict in favour of the first respondent Evah Simangele Mkhatshwa, the mother of Khulile Nomvula Mkhatshwa, the Chieftainess of the Mawewe Tribe and the second respondent, the Mawewe Tribal Authority, recognised in terms of the Traditional Leadership and Governance Framework Act 41 of 2003. The relief was sought from and granted by the High Court on the basis of an application predicated on allegations of corruption, theft and fraud in the Mawewe Communal Property Association (MCPA), as well as the failure of the Executive Committee of the MCPA to register and restore certain farms to the Mawewe Tribe. The purpose of the application before the High Court was to vindicate the integrity of the MCPA by wresting control away from its alleged hijackers.

In February 2020, the respondents approached the High Court on an urgent basis, seeking an Anton Piller order and an interim interdict. The purpose of the double-pronged relief was to –

  • reserve evidence pertaining to the operations of the MCPA; and
  • limit the management and running of the MCPA to certain appointees.

The applications were heard in camera as directed by the Judge President, and the orders were granted. Consequently, the committee was temporarily dissolved, and three persons were appointed to take control of investigating the affairs of the MCPA, and to report back to the High Court as to the allegations in question.

In response to the orders granted against them, the applicants filed a reconsideration application, which ended up being heard on the return day of the rule nisi. Aggrieved, the applicants sought leave to appeal against the decision of the High Court. The applicants approached the SCA, which dismissed the application for leave to appeal on the basis that it bore no reasonable prospects of success. The CC considered the merits of the application for leave to appeal on the papers alone, and it was satisfied that it must be dismissed on the basis that it bears no reasonable prospect of success. The CC added that ordinarily, the matter would end there, and an order would be issued to that effect. However, the CC said in pursuit of their cause, the applicants repeatedly made certain troubling submissions, which led to this judgment.

The CC pointed out that a recurring theme through the applicants’ submissions is that the presiding officer in the High Court, Roelofse AJ, conducted himself in an improper and biased manner. In particular, the applicants have repeatedly taken issue with the fact that, as expressed by Roelofse AJ in his judgment, the matter was heard ‘in camera in accordance with the Judge President’s directive’. The CC added that the applicants have effectively accused Roelofse AJ, together with the Judge President, of serious and grave misconduct. By way of example, the following submission appeared in the applicants’ founding affidavit:

‘There is evidently no doubt that the interim interdict was heard in camera as a result of the directive of the Judge President. We submit … that this was inappropriate. We submit that Roelofse AJ has failed to act independently and impartially.’

The CC said that it was troubling that the applicants had made these submissions, not as mere passing remarks, but as a basis of their appeal. The CC added that the applicants submit that the impugned orders were granted as a ‘result of this improper influence’ and are accordingly a nullity and stand to be set aside on appeal. The respondents reacted to the accusations by submitting that they are ‘unacceptable, scurrilous and vexatious’ and ‘constitute a basis for ordering costs on a punitive scale in respect of this application’.

The applicants submitted to the CC that their costs should follow the result, but the Biowatch principle (see Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC)) ought to apply if the application failed. The applicant’s argument was made on the basis that the applicants seek to assert their constitutional rights as contemplated by ss 25 and 34 of the Constitution, because the matter involves land restitution and s 13 of the Communal Property Associations Act.

The respondent, on the other hand, argued that the Biowatch principle does not apply to this matter because the application has no impact on the public interest and is clearly not of a constitutional nature, in line with the previous cases wherein this principle has applied. The respondent also emphasise that the Biowatch principle does not ordinarily apply between private parties, and that the applicants’ reprehensible conduct towards the Judge President and Roelofse AJ vitiates any mercy towards them in relation to costs. On the matter of punitive costs, the respondents submit that such an order is appropriate as a result of the ‘deplorable and unacceptable attitude of the applicants towards the courts.’

The CC said although the interpretation of s 13 of the Communal Property Associations Act may invoke constitutional issues, the genesis of the application is a dispute about the validity of an Anton Piller order. The CC pointed out that it was inclined to agree with the respondents’ submission that this ‘constitutes an attempt to bring the matter under a broad blanket of constitutional rights, so as to enable the applicants to then rely on the Biowatch principle.’ The CC said, it is trite that the principle does not apply to frivolous and vexatious litigation, which is plainly what has spurred the application. The CC pointed out that the ease in which the applicants approached the court, callously defaming other members of the judiciary to justify their cause was troublesome.

The CC said that courts and their members are by no means immune to public criticism and accountability to those they serve. However, that does not mean that it is open to a litigant to level unfounded and scurrilous attacks against judicial officers to further their own end. The CC pointed out that it enjoys a sacrosanct power and privilege to uphold the law in furtherance of the constitutional project. The CC added that litigants who resort to the kind of tactics displayed in this matter must beware that they are unlikely to enjoy the CC’s sympathies or be shown mercy in relation to costs.

The following order was made:

‘1. Leave to appeal is refused.

2. The applicants must pay the costs of the first and second respondents in [the CC] on an attorney and client scale.’

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2021 (Aug) DR 35.