- The Constitutional Court has dismissed a case of a man who it says abused court proceedings.
- The apex court also said Hitjevi Tjiroze defamed a member of the judiciary.
- Tjiroze approached the Constitutional Court after he lost two of his matters in the high court.
“It seems impolite and harsh to start a judgment by telling a litigant that her or his cause must fail. But, if there ever was a candidate for that kind of opener, this is it.”
An opener unlike any other the Constitutional Court has led a judgment with.
This hard-hitting line was delivered in a written judgment against a man who the court found litigated “frivolously and vexatiously”.
While judgments of the highest court in the land are usually noted for more measured prose, Justice Mbuyiseli Madlanga didn’t hide his disdain for a direct application “so woeful as to cry out for dismissal”.
In fact, Madlanga noted that the matter could have been dealt with “by summarily issuing an order without writing a judgment”.
“This judgment has been necessitated by the question whether the applicant, Mr Hitjevi Obafemi Tjiroze, must pay the costs of the second respondent, the Financial Sector Conduct Authority, on an attorney and client scale.
In a unanimous judgment, Madlanga wrote that Tjiroze, defamed a member of the judiciary, abused court processes and accused some individuals of lying under oath without an “iota of evidence in substantiation”.
Tjiroze had approached the apex court directly after he failed to have his matter against the Financial Sector Conduct Authority (FSCA) heard unopposed in the Gauteng High Court in Pretoria.
At the heart of the matter before the court was a dispute which arose from an error in the FSCA’s notice of intention to oppose Tjiroze’s review application.
The error was in the company’s former name. Instead of referring to itself as the “Registrar of Financial Services Providers”, as it was known then, it wrote “Registrar of Financial Services Board” in its court papers.
According to the judgment penned by Madlanga, when the FSCA brought an application for leave to amend the notice in order to reflect its name correctly, Tjiroze inexplicably opposed the interlocutory application, arguing that the notice of intention to oppose should be set aside, and the main application heard unopposed.
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Acting Judge Marcus Senyatsi granted the FSCA leave to amend the notice of intention to oppose after Tjiroze failed to substantiate a legal basis for the prejudice he claimed he would suffer if leave to amend was granted.
Tjiroze then applied for leave to appeal Senyatsi’s decision which he lost. He then instituted another application to have the judge recused.
Tjiroze also wanted the “nullification” of the judgment granting the amendment and the one refusing leave to appeal.
Tjiroze claimed that the judge had a conflict of interest arising from alleged prior association with Norton Rose Fulbright and an alleged direct family relation between Senyatsi and a Nare Senyatsi, an employee of FSCA, according to the court papers.
“He substantiates the conflict of interest by stating that Norton Rose Fulbright represented Sanlam in CCMA proceedings against the applicant.
“The applicant came out the victor in those proceedings. And he claims that Norton Rose Fulbright was now getting its revenge against him through Senyatsi AJ.”
His application was again dismissed. Tjiroze then took his fight to the Constitutional Court, arguing that his right to a fair hearing had been undermined by collusion between the FSCA and Senyatsi.
Lying
The FSCA argued that Senyatsi was not conflicted and that at the time he determined the amendment application he had not been with Norton Rose Fulbright for about two decades.
The company also said Nare Senyatsi was not directly related to the judge and does not even know him.
“The applicant baldly asserts that Mr Nare Senyatsi was lying.”
But in his application, Tjiroze claimed his right to a fair hearing had been infringed.
He also argued that the matter was of public importance as public trust and confidence in the judiciary would be undermined if the violation of his right to a fair hearing was allowed.
Madlanga said in truth the matter did not engage the court’s jurisdiction and it should be the end of it.
“But – based on the applicant’s appetite for litigating – we cannot put it past him that he may take his fight to a court that does have jurisdiction. So, if there is way of ending this saga, it is best that it be done. Is there?” asked Madlanga.
“To put what I am saying in the preceding paragraph beyond question, the applicant cannot approach any other court pursuing the same causes he is pursuing before this court.
“The applicant has been litigating frivolously and vexatiously at great expense to the second respondent [FSCA].”
Madlanga said in so doing, Tjiroze defamed a member of the judiciary and “gratuitously” accused some individuals of lying under “oath without an iota of evidence in substantiation”.
Nonsensical applications
Mdlanga said at the centre of all this was Tjiroze’s refusal to accept the High Court judge’s order, which allowed an amendment to a notice to oppose his review application, so that the notice could reflect the FSCA’s correct name.
“Crucially, that name had been reflected incorrectly through undeniable inadvertence,” he said.
“Despite an assertion to the contrary by the applicant, the correction of the name did not cause him any prejudice.”
Madlanga said Tjiroze lamentably litigated all the way to the apex court and that called for a “showing of the court’s displeasure”.
He said in all the three applications – including the one before the court – Tjiroze had attempted to attack the FSCA on the basis of minor technicalities.
“This, purely to have the applications proceed unopposed notwithstanding the second respondent’s clear intention to oppose all three applications. In doing so, the applicant is abusing the court process.”
Madlanga said Tjiroze, though self-represented as a legal professional, should understand the importance of his allegations and the impact of his numerous “nonsensical applications”.
“In fact, he states that he does understand the potentially defamatory nature and weight of his allegations against Senyatsi AJ.
“The cumulative effect of all this calls for a punitive costs order.”
