THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No.: 652/2018

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS

APPELLANT

and

JABULANI CROSBY MAPHANGA

RESPONDENT

Neutral citation: MEC for the Department of Co-operative Governance and
Traditional Affairs v Maphanga (652/2018) [2019] ZASCA 147 (18 November 2019)

Coram:
Maya P, Wallis, Mbha and Dambuza JJA and Weiner AJA

Heard:

27 August 2019

Delivered:

18 November 2019

Summary:
Procedure – vexatious proceedings – requirements for an order
prohibiting the institution of legal proceedings under s 2(1)(b) of the Vexatious
Proceedings Act 3 of 1956 and s 173 of the Constitution – requirements for the grant
of a final interdict restated.

___________________________________________________________________
ORDER
____________________________________________________________________________________

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Gorven J sitting as a court of first instance):
1 The appeal is dismissed with costs.
2 The cross-appeal is struck from the roll.
_________________________________________________________________

JUDGMENT
__________________________________________________________________

Maya P: (Wallis, Mbha and Dambuza JJA and Weiner AJA concurring)

[1] This is an appeal against a decision of the KwaZulu-Natal Division of the High
Court, Pietermaritzburg (Gorven J). The court a quo dismissed the bulk of relief
sought in an application launched by the Member of the Executive Council for the
Department of Co-operative Governance and Traditional Affairs, KwaZulu-Natal
(MEC), against the respondent, Mr Jabulani Crosby Maphanga. The main relief was
sought under s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (the Act)
alternatively, the common law.  The appeal is brought with the leave of the court a
quo. Mr Maphanga also filed a cross-appeal without first seeking leave therefor.

[2] The matter has a long and unhappy history for Mr Maphanga, which stretches
back to the dawn of democracy. This appeal is the latest step in his attempts to resolve
a dispute which started between him and his erstwhile employer, the appellant’s
department, in 1998. Before 1994, Mr Maphanga was employed by the Natal
Provincial Administration. Following the amalgamation and rationalisation process in
terms of which the provincial administrations of the former TBVC homelands were

incorporated into the structures of the new democratic government, Mr Maphanga was
absorbed into the Department of Local Government and Housing. According to him,
the problems began at that point as he was not afforded a promotion to which he was
entitled and suffered ill-treatment at the hands of the Department.

[3] His foray into litigation started with a claim, which he brought in the Labour
Court, seeking promotion or appointment to certain positions within the Department.
The Labour Court dismissed the claim in November 1998 on the basis that it had no
jurisdiction as the dispute predated the empowering legislation, the Labour Relations
Act 66 of 1995 (the LRA). His subsequent action in the Industrial Court, which was
finalised in August 1999, was unsuccessful. That tribunal took the view that the claim
should have been pursued in the civil courts. Thereafter Mr Maphanga lodged
complaints with various bodies, including the Public Protector, the South African
Human Rights Commission and the City Press newspaper. He also complained in
writing to a Member of Parliament and the Parliamentary Portfolio Committee on
Justice. All these efforts, which ended in 2004, came to naught. In the midst of these
processes, in June 2000, he accepted a voluntary severance package and thus
terminated his employment with the Department.

[4] After a long lull, in May 2013, he referred an unfair labour practice dispute to
the General Public Service Sectoral Bargaining Council (the Bargaining Council) in
respect of the Department’s failure to promote him. These proceedings also failed as
the Council refused to condone the 12-year lapse since he left the Department’s
employ. His attempt to have this decision reviewed by the Labour Court was
dismissed in November 2014. And so was the application for leave to appeal and his
petition to the Labour Appeal Court a year later, after he failed in the Labour Court. In
September 2016 he served application papers on the Department in which he sought
leave to appeal from the Constitutional Court. He has, however, not pursued those
proceedings.

[5] In June 2016, Mr Maphanga delivered a notice of his intention to institute legal
proceedings against the MEC in terms of the Institution of Legal Proceedings against
Certain Organs of State Act 40 of 2002. Thereafter, he launched an action in the
KwaZulu-Natal Division of the High Court, Durban. In that matter, he sought
damages allegedly arising from the wrongful and unlawful sale in execution of his
home by the Department, to settle his taxed costs bill of R41 174, 83, arising from his
losses in the Labour Courts.1 (We were informed at the hearing of the appeal that the
high court had since dismissed the claim with costs.) He further referred a grievance to
a ‘complaints hotline’ assigned to the State President.

[6] Upon receipt of Mr Maphanga’s notice to sue, the MEC approached the court a
quo seeking the following relief:
'1. [T]hat Respondent may not institute legal proceedings, in any high court or inferior court, against
the applicant, her Department or any employee or former employee of the Public Service, unless
Respondent first obtains, pursuant to an application which must be served on Applicant, leave from
such court, which leave:
1.1 shall not be granted unless such court is satisfied that such proceedings are not an abuse of the
process of such court and that there is prima facie ground for such proceedings.
1.2 may be granted on conditions, including a condition that Respondent may not institute any such
proceedings, unless he first pays all moneys owing in respect of all and any costs orders that have
been granted in favour of Applicant against Respondent.
2. Respondent may not institute any proceedings in any court without disclosing to such court a
copy of this order.
3. It is declared that all and any claims that Respondent may have had arising from his employment,
prior to 30 June 2000, in the public service:
3.1. have been finally determined in terms of the applicable labour law; and/or
3.2. have become prescribed in terms of the Prescription Act No. 68 of I969.

1 The MEC denied that the Department was involved in the alleged sale in execution. She relied on the seeming lack of
evidence in this regard and Mr Maphanga’s allegations that his investigations revealed that the property was not sold in
execution but was inherited by a Mr Raphael Maphanga and mysteriously transferred to his mortgagee, Ithala Bank.

4. Respondent is interdicted from defaming, insulting or harassing Applicant and all employees in
her Department in relation to any claims and disputes arising from Respondent's said employment in
the public service.
5. In particular, but without derogating from paragraph 4 above, Respondent is interdicted from
referring to any forum or institution any complaint relating to his said employment in the public
service, unless he first obtains leave from this court.
6. Respondent is ordered to pay the costs of this application on a scale as between attorney and
client.'

[7] The MEC also brought an urgent interlocutory application and obtained interim
relief in respect of prayers 1 to 4 of this Notice of Motion. She also sought the stay of
the proceedings in the high court and the dispute referral to the Bargaining Council
pending the finalisation of the main application. At the conclusion of the proceedings,
in which the MEC sought to have the interim relief made final, the court a quo granted
only the interdict sought in prayer 4, but only partially in respect of the defamation
claim, and dismissed the rest of the application. The court a quo was not satisfied that
the MEC met the requirements of s 2(1)(b) of the Act or the common law as she
claimed.

[8] Mr Maphanga, who represented himself in the appeal and in all the litigation
and disputes between the parties since the beginning, did not appear before us due to
illness. But he indicated that the matter could proceed in his absence and also filed
extensive and useful heads of argument which we considered sufficient for purposes
of the hearing in the view we take of the matter. The appeal therefore proceeded in his
absence.

[9] The MEC initially characterised the main issues regarding the relief sought in
paragraphs 1, 2 and 3 of the Notice of Motion as follows: whether (a) the disputes and
complaints referred to extra-curial and quasi-judicial forums constituted legal

proceedings for the purposes of s 2(1)(b) of the Act; (b) the inherent powers and
discretion of a court to grant a restraint order in terms of s 173 of the Constitution
require a history of persistent vexatious legal proceedings that are ‘obviously
unsustainable’; and  (c) the respondent’s claims in relation to his employment in the
Department have prescribed. The gist of her argument was that the court a quo (a)
overlooked, for purposes of s 2(1)(b), that by March 2017 Mr Maphanga had
instituted five legal proceedings, including the disputes referred to the Bargaining
Council, against the MEC and (b) misconstrued the powers and discretion conferred
on courts by the common law as codified in s 173 of the Constitution to address
abuses of court process.

[10] During the hearing of the appeal, however, reliance on s 2(1)(b) of the Act was
abandoned and the case was solely based on the ‘court’s inherent jurisdiction to
determine its own process under common law as codified in s 173 of the Constitution’.
Reliance was placed on this court’s judgment in Corderoy v Union Government
(Minister of Finance),2 which it was contended the court a quo misunderstood. I must
point out at the outset that in the light of the view I have of the matter, the MEC could
indeed not rely on s 2(1)(b) for reasons which I consider it necessary to set out in the
circumstances of this case. But that did not entitle her to directly invoke the
constitutional provisions to enforce her rights without first relying on the Act,3 which,
as I explain later in the judgment, was enacted to address the common law limits
regarding the court’s jurisdiction to grant curtailment orders against vexatious
proceedings.

[11] Section 2(1)(b) of the Act reads:

2 Corderoy v Union Government (Minister of Finance) 1918 AD 512.
3 See for example, Member of the Executive Council for Development Planning and Local Government, Gauteng v
Democratic Party & others 1998 (4) SA 1157 (CC); 1998 (7) BCLR 855; para 62; Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism & others 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC); paras 21-26;
My Vote Counts NPC v Speaker of the National Assembly & others [2015] ZACC 31; 2016 (1) SA 132 (CC) para 53.

‘If, on an application made by any person against whom legal proceedings have been instituted by
any other person or who has reason to believe that the institution of legal proceedings against him is
contemplated by any other person, the court is satisfied that the said person has persistently and
without any reasonable ground instituted legal proceedings in any court or in any inferior court,
whether against the same person or against different persons, the court may, after hearing that other
person or giving him an opportunity of being heard, order that no legal proceedings shall be
instituted by him against any person in any court or any inferior court without the leave of that court,
or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted
unless the court or Judge or the inferior court, as the case may be, is satisfied that the proceedings
are not an abuse of the process of the court and that there is prima facie ground for the proceedings.’

[12] It is clear from the ordinary wording of this provision that it brings within its
purview actual or prospective litigation4 brought or threatened by a person who has
persistently, and without any reasonable ground, instituted legal proceedings in any
court or inferior court, whether against the same or any other person or persons. The
purpose of the provision is ‘to put a stop to persistent and ungrounded institution of
legal proceedings … in the Courts’ ie to ‘put a stop to the making of unjustified claims
against another or others, to be judged or decided by the Courts’.5 So, an applicant
who seeks the protection of the provisions must establish, first, that the respondent has
in the past instituted legal proceedings in a court against her, or any other person or
persons persistently and without reasonable cause. Secondly, she must prove that
further litigation has been brought against her or is reasonably contemplated.

[13] The question which arises is whether the procedures employed by Mr
Maphanga, flowing from his dissatisfaction with the manner in which the Department
treated him, constituted legal proceedings instituted in a court within the meaning of s
2(1)(b) of the Act.  If they are such legal proceedings it must then be determined

4 See ABSA Bank Ltd v Dlamini 2008 (2) SA 262 (T) para 24.
5 S v Sitebe 1965 (2) SA 908 (N) at 911A-B; Beinash & another v Ernst & Young & others 1999 (2) SA 116 (CC) para
15.

whether they were persistent and without any reasonable ground.

[14] ‘Court’ is defined in s 1 of the Act as ‘any provincial or local division of the
Supreme Court of South Africa’. These definitions and the hierarchy of the South
African courts derive from the Supreme Court Act 59 of 1959 which has since been
repealed by the Superior Courts Act 10 of 2013. In terms of the repealed statute,
‘inferior court’ meant ‘any court (other than a court of a division) which is required to
keep a record of its proceedings, and includes a magistrate or other officer holding a
preparatory examination into an alleged offence’. The Labour Court was not included
in that definition of ‘court’ ‘and inferior court’ as set out in the repealed Act. Neither
was the Industrial Court, which this Court held, in South African Technical Officials’
Association v President of the Industrial Court & others, was neither a Division of the
Supreme Court, as it is not mentioned in the First Schedule of the Supreme Court Act,
nor an inferior court, as it is not required to keep record of its proceedings, but an
administrative body which did not sit as a court of law at all, even when it discharged
functions of a judicial nature.6

[15] The appellations of the courts have, however, changed with the advent of the
Superior Courts Act. Thus the ‘Supreme Court of South Africa’ is now the ‘High
Court of South Africa’ and a ‘Superior Court’ means ‘the Constitutional Court, the
Supreme Court of Appeal, the High Court and any court of a status similar to the High
Court’, such as the Labour Court. The ‘inferior court’ has become a ‘lower court’,
which is defined as ‘a court of a regional division and a magistrate’s court established
in terms of the Magistrates’ Courts Act, 32 of 1944’.7

[16] The changes to the court designations flow from the Constitution which

6  South African Technical Officials’ Association v President of the Industrial Court & others 1985 (1) 597 (A); cited in
Sidumo & another v Rustenberg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) para 82.
7 In terms of s 74 of the Magistrates’ Courts Amendment Act 120 of 1993.

describes the South African judicial system as follows:
‘166 Judicial system
The courts are-
(a)  the Constitutional Court;
(b)  the Supreme Court of Appeal;
(c)  the High Court of South Africa, and any high court of appeal that may be established by an
Act of Parliament to hear appeals from any court of a status similar to the High Court of South
Africa;
(d)  the Magistrates’ Courts; and
(e)  any other court established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Court of South Africa or the Magistrates’
Courts.’(Emphasis added)
However, the Act, which is 63 years old, has not kept abreast with these
developments. Thus, its definition of ‘court’ remains unchanged and still refers to the
‘Supreme Court of South Africa’ which no longer exists. This anomaly requires the
definitions of ‘court’ in the Act and the Superior Courts Act, which are in pari materia
in this regard, to be construed in manner so as to be consonant.8

[17] Evidently, Mr Maphanga’s complaints to the Human Rights Commission, the
Public Protector, the Member of Parliament, the City Press newspaper and the
Parliamentary Portfolio Committee on Justice were not legal proceedings and the
referrals to these bodies did not constitute the institution of legal proceedings in a
court. These forums and the Member of Parliament do not fit in any of the above
definitions and are not ‘courts’ as envisaged by the relevant statutes; old and new.

[18] It must then be determined whether the dispute which was lodged with the
Bargaining Council under the LRA was ‘legal proceedings’ for the purposes of s
2(1)(b) of the Act ie proceedings before a court or inferior court. Section 34 of the

8 Petz Products v Commercial Electrical Contractors 1990 (4) SA 196 at 204H-I; R v Maseti 1958 (4) SA 52 (E) at
53H; Assign Services (Pty) Ltd v National Union of Metal Workers of South Africa & others 2018 (5) SA 323 (CC)
para 107.

Constitution entrenches the right of access to courts by granting the right to have any
dispute that can be resolved by the application of law in a fair public hearing before a
court or, where appropriate, another independent and impartial tribunal or forum. Do
such bargaining councils constitute a court or inferior court for the purposes of the
Act? The answer is No. While they are independent and impartial tribunals for the
purposes of s 34 and resolve labour disputes in a manner similar to courts,9 there is
clear authority that they are not courts. The Constitutional Court in Sidumo,10 held that
the Commission for Conciliation, Mediation and Arbitration was an administrative
tribunal, not a court.  In Myathaza, the same point was made about bargaining
councils.11

[19] It follows that the disputes lodged by Mr Maphanga in the Bargaining Council
enjoy no higher status than those referred to the other extra-curial bodies and were not
legal proceedings instituted in a court or lower court. That leaves the review and
appeal proceedings which he launched in the Labour Courts in 2014, after the
enactment of the Superior Courts Act, and the damages claim concerning the alleged
sale in execution of his house, which he brought in the high court against the MEC. I
include the Labour Court because I accept, for present purposes, that as a matter of
construction of the definition of ‘court’ in the Act, the fact that the Labour Court has a
status equivalent to a high court brings it within the Act’s ambit. So the first
requirement of these provisions is met and it remains to determine whether the
proceedings were persistent and without reasonable cause.

[20] On the question whether there have been persistent proceedings, I agree with
the court a quo’s approach in interpreting the section, and in this particular instance,

9 Myathaza v Johannesburg Metropolitan Bus Services (Soc) Ltd t/a Metrobus & others [2016] ZACC 49; 2017 (4)
BCLR 473 (CC); 2018 (1) SA 38 (CC) para 23; Food and Allied Workers’ Union obo Gaoshubelwe v Pieman’s Pantry
(Pty) Ltd [2018] ZACC 7; 2018 (5) BCLR 527 (CC); [2018] 6 BLLR 531 (CC) para 198.
10 Ibid, fn 6 paras 84-88.
11 Ibid, fn 7.

the word ‘persistent’. Due account must be given to the language, context and purpose
of the legislation.12 Although constitutionally valid,13 the legislation must nonetheless
be accorded a narrow construction as it interferes with a protected right and restricts
the right of access to courts, to avoid undue limitation of the right.14 The word
‘persistent’ has a variety of meanings which include ‘continuous, constantly repeated,
recurring’ and ‘determined, dogged, steadfast, tenacious’.15 The meaning envisaged in
the present context must be a ‘recurring’ or ‘constantly repeated or continuous’
institution of legal proceedings in a court.

[21] As the court a quo rightly found, there has been no multiplicity of proceedings
here and the fact that Mr Maphanga has not had legal representation throughout the
litigation must bear some relevance. When the MEC launched these proceedings there
were only review and appeal proceedings in the Labour Courts following the refusal
of condonation by the Bargaining Council mentioned above. Whilst all these
proceedings concerned the promotion dispute, it is clear that they multiplied merely
because Mr Maphanga, who represented himself, failed to identify the correct forum
in which to vindicate his claim. The proceedings in the high court were based on an
entirely different cause of action as already stated. Similarly the dispute pending in the
Bargaining Council, which concerns severance pay. Lastly, the proceedings that
precipitated the present application were proceedings arising out of an alleged sale in
execution of Maphanga’s house, which was not an attempt to re-litigate his
employment dispute over the failure to promote him. It cannot, by any stretch of the
imagination, be found in these circumstances that there was a persistent or repetitive
institution of legal proceedings in this matter.

12 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para
18.
13 Beinash, fn 5, paras 17-21.
14 Regering van die Republiek van Suid-Afrika v Disotto en andere 1998 (1) SA 728 (SCA) at 735D-E.
15 ‘Shorter Oxford English Dictionary’ 6 ed Vol 2.

[22] Neither can it be found that Maphanga approached the courts without any
reasonable grounds. As I have pointed out, none of the proceedings in the Labour
Courts (and the Industrial Court) were resolved on their merits. An unequivocal
finding that the claims had no reasonable basis cannot be made on the available
record. This is more so considering the strong indications from Mr Maphanga’s
uncontested allegations that he may indeed not have been treated fairly and properly
during the rationalisation process of the civil service and his absorption into the
Department.

[23] The same holds true for the damages claim launched in the high court. It is not
possible to make a conclusive finding that it was instituted without any reasonable
ground. This is so because the MEC, who bore an onus to prove otherwise, could not
deny that the alleged sale in execution may have occurred before she assumed office.
She merely cast doubt on Mr Maphanga’s version based on his allegations about
suspicious information that he claimed to have uncovered. That information did not
detract from his core contention that his house was unlawfully sold in execution. To
my mind, the fact that the claim was subsequently dismissed by the high court does
not change the situation as one does not know the basis on which it was dismissed and
whether or not Mr Maphanga will take it further on appeal. The MEC therefore failed
to establish a right to the relief sought in paragraphs 1 and 2 of her Notice of Motion
under s 2(1)(b) of the Act.

[24] I turn to deal with the MEC’s mainstay argument, that she is entitled to the
relief set out in paragraphs 1 and 2 of her Notice of Motion under the common law as
codified in s 173 of the Constitution. In terms of the latter provisions, ‘[t]he
Constitutional Court, the Supreme Court of Appeal and the High Court of South
Africa each has the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of justice.'

[25] It was firmly established in the South African common law, long before the
advent of the Constitution, that the Supreme Court had the inherent power to regulate
its own process and stop frivolous and vexatious proceedings before it.16 This power
related solely to proceedings in the Supreme Court and not to proceedings in the
inferior courts or other courts or tribunals. The following principles crystallised over
the ages.  It had to be shown that the respondent had ‘habitually and persistently
instituted vexatious legal proceedings without reasonable grounds.17 Legal
proceedings were vexatious and an abuse of the process of court if they were
obviously unsustainable as a certainty and not merely on a preponderance of
probability.18 I must point out at this juncture that this definition applied to all
litigation that amounted to an abuse of court process. The attempt by the MEC’s
counsel to distinguish the cases from which the principle derives on their facts was,
therefore, mistaken.

[26] A court must, in granting this type of relief, proceed very cautiously and only in
a clear case, make a general order prohibiting proceedings between the same parties
on the same cause of action and in respect of the same subject matter where there has
been repeated and persistent litigation, and craft such order to meet only the
immediate requirements of the particular case.19 The stringent onus on the applicant
who seeks the relief and the need for the court’s caution in exercising this power
obviously arise from the fact that the relief curtails a litigant’s access to court.20

[27] The Act has neither repealed nor changed these common law principles. It is
important to note in this regard that, as foreshadowed above, the Act was promulgated

16 Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 271; Corderoy v Union Government (Minister of
Finance) 1918 AD 512; In re Anastassiades 1955 (2) SA 220 (W); African Farms and Townships Ltd v Cape Town
Municipality 1963 (2) SA 555 (A) at 565D-E.
17 Corderoy, ibid, at 519.
18 African Farms, ibid.
17 Corderoy, ibid.
18 Corderoy at 519; Western Assurance Co, at 273; Fisheries Development Corporation of SA Ltd v AWF Investments
(Pty) Ltd & others 1979 (3) SA 1331 (W); s 34 of the Constitution.

in direct response to the decision in the Anastassiades case, which was cited with
approval by the Constitutional Court in Beinash. This decision illustrated the
inadequacies of the common law, in particular that the South African courts had no
power under the common law, to impose a general prohibition that would curtail the
plaintiff’s right to litigate beyond the immediate requirements and the parties in the
particular case. The contention made on the MEC’s behalf that Corderoy ‘did not
attempt to define the limits of the kind of orders that can be granted in terms of a
court’s inherent powers’ or ‘state that other forms of ‘persistent, vexatious conduct
such as are present in this case [which] resulted in extra curial as opposed to judicial
proceedings would’ be excluded, was wrong. The court a quo correctly comprehended
and applied the principles set out in the matter.

[28] The reasons I gave earlier for the finding that the MEC failed to show that Mr
Maphanga persistently instituted legal proceedings against the Department and the
MEC without reasonable grounds under s 2(1)(b) of the Act apply with equal force
here and need not be repeated. Bearing in mind that the provisions relied upon and
Corderoy cover only proceedings in the high court, Mr Maphanga clearly did not
habitually and persistently institute legal proceedings against the MEC and the
Department. Neither was it shown as a certainty that any of his claims were ‘obviously
unsustainable’ in the manner envisaged in African Farms. Accordingly, no case was
made out for the relief sought in paragraphs 1 and 2 of the Notice of Motion under the
common law too.

[29] It remains to deal with the rest of the relief which the court a quo refused to
grant. As indicated above, the MEC also sought far reaching declaratory relief in
paragraph 3 of her Notice of Motion. She asked for an order that all claims arising
from Mr Maphanga’s employment in the public service prior to 30 June 2000 have
been finally determined and have prescribed. It was argued that he had exhausted all
his legal options and that it was inconceivable that he could still have a viable claim

that has not prescribed or became time-barred.

[30] This submission is beset by a number of challenges. The declaratory order
would relate to claims that have not been identified. It is impossible to say in advance
that such claims have prescribed. It is equally impossible to decide whether they have
been resolved in terms of applicable labour law as we do not know what they are.
Another insurmountable challenge for the MEC in this regard is that the high court
and this Court have no jurisdiction to adjudicate claims brought under the LRA.
Needless to say, this Court consequently does not have the power to make the
determination requested by the MEC.

[31] There is no controversy regarding the interdictory relief which the court a quo
granted in accordance with paragraphs 4 of the Notice of Motion. This is so because
the cross-appeal which Mr Maphanga lodged was incurably flawed. As mentioned at
the outset, he did not seek leave to bring the proceedings. Uniform rule 16(1)(a)
requires a substantive application in every matter where leave to appeal is prescribed
by law. The rule applies mutatis mutandis to cross-appeals. Thus, a respondent who
wishes to cross-appeal must obtain leave to cross-appeal.21 Mr Maphanga’s cross-
appeal therefore has no basis and cannot be entertained. This leaves the interdictory
relief intact.

[32] Counsel for the MEC did not press us for the interdict sought in paragraph 5 of
the Notice of Motion, to bar Mr Maphanga from referring any complaint relating to

21  South African Railways & Harbours v Sceuble 1976 (3) SA 791 (A) at 794A-D; National Union of Mineworkers
of South Africa & others v Henred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A) at 475E-G.

his employment in the public service to any forum or institution. This was a prudent
stance as it was not shown how his complaint to the Presidential hotline was injurious
or damaging and amounted to harassment or defamation as alleged. No case was made
out for this relief and it was properly refused.

[33] The prayer for the confirmation of the rule nisi granted on 17 March 2018,
pending the finalisation of the main application, which included the final stay of the
high court and the dispute before the Bargaining Council, must also fail in light of the
dismissal of the proceedings upon which it was predicated. The requisites for a final
interdict – a clear right, an injury actually committed or reasonably apprehended and
an absence of similar or adequate protection by any other ordinary remedy – were not
established.22 The prayer simply had no foundation.

[34] In the result, the following order is made:

1 The appeal is dismissed with costs.
2 The cross-appeal is struck from the roll.

_________________________
MM MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL

22  Setlogelo v Setlogelo 1914 AD 221 at 227.

APPEARANCES:

APPELLANTS:
DP Crampton

Instructed by:
PKX Attorney, Pietermaritzburg

Lovius Block Attorneys, Bloemfontein

RESPONDENT:              No appearance