Case  CCT 271/19
[2020] ZACC 18

Judgement Date:  21 July 2020

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 21 July 2020 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal the judgments and orders of the High Court of South Africa, Gauteng Division, Pretoria (High Court). This is an application that the Constitutional Court would ordinarily have dismissed by simply issuing an order. A judgment was necessitated by the question whether, in dismissing the application, the applicant, Mr Hitjevi Obafemi Tjiroze, should be ordered to pay the costs of the second respondent, the Financial Sector Conduct Authority (FSCA), on an attorney and client scale.

The dispute arose from an error in the FCSA’s notice of intention to oppose, which was filed in review proceedings initiated by Mr Tjiroze in the High Court. The error was in the FSCA’s former name. Mr Tjiroze opposed the FSCA’s interlocutory application to amend this notice by correcting the name, arguing that the notice of intention to oppose be set aside, and the review application (main application) heard unopposed. Senyatsi AJ granted the application for leave to amend, on the basis that Mr Tjiroze had not substantiated his allegation that he would be prejudiced by the amendment. Leave to appeal this decision was refused for lack of prospects of success, and because the impugned order was not a final judgment, and thus not appealable.

Mr Tjiroze thereafter instituted an urgent application in the High Court for the retrospective recusal of Senyatsi AJ and “nullification” of both of the judgments. He averred that Senyatsi AJ had a conflict of interest arising from, amongst others: an alleged prior association with Norton Rose Fulbright, which represented Sanlam in previous CCMA proceedings against him; and an alleged direct family relation between Senyatsi AJ and a Mr Nare Senyatsi, an employee of the FSCA. Mr Tjiroze claimed that the urgency arose from the fact that the taxation of costs was imminent, and would entitle the FSCA to enforce the “fraudulently obtained” orders.

Holland-Muller AJ dismissed the urgent application with costs for lack of urgency. He held that the prayer for recusal was not competent, since Senyatsi AJ had discharged his judicial duties. The relief of nullification was thus not competent. Additionally, the allegations regarding Senyatsi AJ’s association with an employee of the FSCA were vague and unsubstantiated.

Mr Tjiroze then approached the Constitutional Court directly. He argued that his section 34 right to a fair hearing was undermined by alleged collusion between the FSCA and Senyatsi AJ. He further argued that the FSCA’s answering affidavit in the urgent application should not have been considered, as the commissioner of oaths failed to reflect the date, and that application too should have proceeded unopposed. 

The FSCA opposed the application. It argued that, since its unopposed substitution in the main application had rendered the amendment to the notice of intention to oppose irrelevant, the matter was moot. In any event, Senyatsi AJ was not conflicted. It had been almost two decades since Senyatsi AJ was with Norton Rose Fulbright, and Mr Nare Senyatsi had confirmed under oath that he was not directly related to Senyatsi AJ, and did not even know him. Mr Tjiroze had baldly asserted that Mr Nare Senyatsi was lying. Finally, the FSCA argued that punitive costs should be awarded. 

In a replying affidavit filed without the Court’s leave, Mr Tjiroze argued that the FSCA’s opposing affidavit in the Constitutional Court should be disregarded as it was not accompanied by a notice of intention to oppose. He accordingly asked the Constitutional Court to determine the application for leave to appeal on the basis that it was unopposed.

In a unanimous judgment penned by Madlanga J (Mogoeng CJ, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring), the Court dismissed the application for leave to appeal. It held that the Court’s jurisdiction was not engaged, as the dispute was based on the factual question whether Senyatsi AJ was conflicted. The Court found that Mr Tjiroze had also not proffered any exceptional circumstances warranting a direct appeal, and it was thus not in the interests of justice to grant leave to appeal. Additionally, the dispute was moot, as a result of the substitution in the main application.

The Court then considered whether the FSCA was entitled to costs on a punitive scale. It found that Mr Tjiroze had been litigating frivolously and vexatiously at great expense to the FSCA. In doing so, he had defamed a member of the Judiciary and accused individuals of lying under oath without any evidence in substantiation. His refusal to accept a simple amendment to a notice to oppose, which had been reflected incorrectly through undeniable inadvertence, had delayed the finalisation of the main application. And in all three applications, including the one before the Constitutional Court, Mr Tjiroze attempted to attack the FSCA’s opposition on the basis of minor technicalities, in order to have the applications proceed unopposed. In doing so, Mr Tjiroze, who is a lawyer and thus should understand the import of his allegations and the impact of his numerous nonsensical applications, was abusing the court process. The Court concluded that the cumulative effect of all of Mr Tjiroze’s conduct called for a punitive costs order, and ordered Mr Tjiroze to pay the costs of the FSCA on an attorney and client scale.

The Full judgment  here