Mkhatshwa and Others v Mkhatshwa and Others

The applicants, including Mr Siphiwe Happy Mkhatshwa (Chairperson of the Mawewe Communal Property Association - MCPA), and other MCPA executive committee members, contested orders granted by the High Court in March 2020. The first respondent, Ms Evah Simangele Mkhatshwa (Acting Chieftainess of the Mawewe Tribe), and the second respondent, the Mawewe Tribal Authority, had sought and obtained an Anton Piller order and temporary interdict from the High Court, heard in camera on the directive of the Judge President. The relief was based on allegations of corruption, theft and fraud within the MCPA and failure to register and restore certain farms to the Mawewe Tribe. The High Court temporarily dissolved the MCPA Committee and appointed three persons to investigate and report back. The applicants' reconsideration application was dismissed, as was their application for leave to appeal in both the High Court and Supreme Court of Appeal. The applicants then approached the Constitutional Court, making serious allegations of impropriety and bias against the presiding Judge (Roelofse AJ) and the Judge President, claiming the in camera hearing was inappropriate and that the Judge had failed to act independently.

• Whether leave to appeal should be granted against the High Court's orders granting an Anton Piller order and temporary interdict
• Whether the application raised constitutional issues warranting consideration
• Whether punitive costs should be awarded against applicants who made unfounded allegations of judicial impropriety and bias
• Whether the Biowatch principle should shield applicants from costs

1. Leave to appeal is refused. 2. The applicants must pay the costs of the first and second respondents in this Court on an attorney and client scale.

Punitive costs on an attorney and client scale are warranted in exceptional circumstances where a litigant has conducted itself in a clear and indubitably vexatious and reprehensible manner. Such circumstances arise when litigants persist with unfounded and scurrilous allegations against judicial officers, particularly when those allegations have been formally addressed and refuted, and when such allegations form a basis for the litigation itself. The Biowatch principle does not apply to frivolous and vexatious litigation, nor does it generally apply to disputes between private parties where no constitutional rights are genuinely being asserted against an organ of state. The practice of hearing Anton Piller order applications in camera is proper and does not constitute judicial impropriety.

The Court expressed disappointment that experienced legal professionals, including senior counsel, allowed their client to pursue such unmeritorious allegations. Khampepe J noted that when a party "lowers its ethical and professional standards in pursuit of a cause", punitive costs must naturally follow. The Court emphasized that litigants must not take for granted this Court's limited judicial resources and must approach it with bona fide, genuine cases. The judgment stressed that the judiciary, unlike other branches of government, must rely solely on public trust and support to fulfil its functions, and any conduct that undermines and erodes the authority and integrity of the judiciary must be prevented. The Court observed that while the interpretation of section 13 of the Communal Property Associations Act may invoke constitutional issues, the genesis of this application was merely a dispute about the validity of an Anton Piller order, and the applicants' attempt to characterize it as constitutional was an attempt to bring the matter under a broad blanket of constitutional rights to rely on the Biowatch principle.

This case is significant for establishing clear principles regarding punitive costs in the context of vexatious litigation and unfounded attacks on judicial officers. It reinforces that litigants who make scurrilous and baseless allegations against judges, particularly when persisting with such allegations despite formal refutation, can expect punitive costs orders. The judgment emphasizes the importance of protecting judicial integrity and the proper functioning of the judiciary, which relies on public trust. It also clarifies the limited application of the Biowatch principle, confirming it does not apply to frivolous litigation or disputes between private parties. The case serves as a warning to litigants and their legal representatives about the consequences of approaching courts with unmeritorious cases that include unjustifiable attacks on judicial officers.