LEGISLATION – HIGH COURT ACT – PERMISSION TO LITIGATE AGAINST A JUDGE OF THE HIGH COURT. Hendrik Christian t-a Hope Financial Services v Usiku NAHCMD.

The applicant brought an application on notice of motion seeking certain relief against the Honourable Justice Boas Usiku, inter alia, ordering that the respondent judge is guilty of contempt of a Supreme Court judgment, the Legal Practitioners Act, and the judicial oath. The matter was earmarked to appear before court for being inactive for more than six months. The applicant appeared and explained that he was waiting for a reply from Justice Usiku. The court raised the issue, as to whether the applicant has the necessary permission to litigate against a judge of the High Court. Initially the applicant pointed out that these proceedings are raised as motion proceedings and that such permission is only needed when a summons or subpoena is issued against a judge.  The relevant section in the High Court Act, 16 of 1990 reads as follows:

‘No process to be issued against judge except with consent of court

21. 21. (1) Notwithstanding anything to the contrary in any law contained, no summons or subpoena against any judge of the High Court shall in any civil action be issued out of any court except with the consent of the High Court. ‘

Section 1 defines summons as:

‘any summons whereby civil proceedings are commenced and includes any rule nisi or notice of motion the object of which is to require the appearance before the court of any person against whom relief is sought in such proceedings or of any person having an interest in resisting the grant of such relief.’

RAKOW J considered the matter and held that:

1. The word ‘summons’ in s 21 of the High Court Act, means any summons whereby civil proceedings are commenced, and includes any rule nisi or notice of motion
2. the applicant therefore needs permission of a court to institute proceedings against a judge of the High Court.
3. the purpose of the permission requirement is to protect judges against unmeritorious claims arising from execution of their judicial functions and prevention of improper interruptions of their courts’ functioning.
4. the applicant indeed needs permission from the High Court to institute such litigation.

The court ordered that the applicant did not have the necessary permission to proceed with litigation against Justice Usiku and the matter was struck from the roll in terms of Rule 132(10) and regarded as finalized.

Hendrik Christian t-a Hope Financial Services v Usiku (HC-MD-CIV-MOT-GEN-2022-00125) [2023] NAHCMD 56 (16 February 2023)