Litigants who defame judges, launching scurrilous and unfounded attacks on their integrity to further their own ends, must expect to pay punitive costs, the Constitutional Court has ruled. The matter before the court was an attempt to appeal a ruling in the Mpumalanga High Court involving the warring Mawewe tribal community.
In March last year, Evah Mkhatshwa, the mother of government-recognised chieftain Khulile Mkhatshwa, and the tribal authority went to court, securing an “Anton Piller” order to seize and preserve documentation in the hands of the Mawewe Communal Property Association, which administers vast tracts of agricultural land restored to the community in 2010.
Anton Piller orders are similar to private search warrants. They permit the search of documents to preserve important evidence for litigation. They are always brought without notice to the other side and are usually held in camera to maintain confidentiality until the order has been acted on.
Mkhatshwa, in her application, made allegations of corruption, theft and fraud and accused the association of failing to register and restore certain farms to the tribe. The matter was allocated to acting judge Henk Roelofse who, on the direction of Judge President Francis Legodi, heard the matter “in camera” (a proceeding with restricted access).
But the association took umbrage with it being “in camera” and its chairperson, Siphiwe Mkhatshwa, in a flurry of court action in which he failed to secure leave to appeal against the order, accused both judges of acting improperly. In a unanimous decision, the Constitutional Court ruled that there were no prospects of success on appeal.
In a judgment penned by Justice Sisi Khampepe, the court hit back at the association and its lawyers – including senior counsel – for persisting with the repeated “troubling” allegations of serious and grave misconduct against the judges, “callously defaming them”.
The association accused the Judge President of exercising undue and improper influence over Roelofse, who consequently failed to act impartially.
“They make these submissions not as a mere passing remark, but as a basis for their appeal. This continued after the Judge President wrote to their attorneys “clearly and unequivocally addressing and disposing of all the accusations” and inviting them to retract them. Ought to have known better,” said Khampepe.
Even after the Constitutional Court called for written submissions in relation to the issue of costs, the association stuck to its guns, saying their argument was cogent.
Khampepe said, “They chose to sail a sinking ship into deeper litigious waters, relying on unsubstantiated and scandalous accusations as a rudder. For good reason, it is common practice to grant Anton Piller orders in camera. They are either being wilfully ignorant of this practice, or they are attempting to turn a sow’s ear into a silk purse.”
She said while courts and judicial officers were by no means immune to public criticism and accountability, it was not open to litigants to level unfounded and scurrilous attacks against them to further their own needs.