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[2020] ZAGPJHC 188
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Assetline South Africa (Pty) Ltd v Manhattan Delux Properties (Pty) Ltd and Others (22939/20) [2020] ZAGPJHC 188 (18 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 22939/20
18/8/2020
In
the matter between:
ASSETLINE
SOUTH AFRICA (PTY) LTD
Applicant
(Respondent in application for leave to appeal)
and
MANHATTAN
DELUX PROPERTIES (PTY) LTD
First
respondent (First applicant in application for leave to appeal)
MICHAEL
DENENGA
Second
respondent (Second applicant in application for leave to appeal)
ESDON
DOKO HATIRARAMI MATIENGA
Third
respondent (Third applicant in application for leave to appeal)
J U D G M E N T
KEIGHTLEY,
J
:
INTRODUCTION
1.
This is a judgment in an application for leave to appeal brought by
Manhattan Delux Properties (Pty) Ltd, Mr Denenga, and Mr
Matienga.
They were the respondents in the application (the main application)
brought by Assetline South Africa (Pty) Ltd. I shall
continue to
refer to the parties as they were cited in the main application.
2.
In the main application the applicant sought a money judgment and an
order declaring certain immovable property owned by the
first
respondent to be specially executable. The matter came before me in
opposed motion court on 22 April 2020. The respondents
filed an
application for my recusal shortly before the hearing date. At the
hearing, they also brought an application for the postponement
of the
main application from the Bar.
3.
I made a ruling dismissing the application for my recusal with costs,
and another dismissing the application for a postponement
with costs.
I gave ex tempore reasons for my rulings on the record before
commencing to hear argument in the main application.
I handed down a
written judgment in the main application on 10 May 2020. I granted
the orders prayed for in the main application,
for the reasons set
out fully in my written judgment.
PRELIMINARY
ISSUE RAISED BY THE RESPONDENTS: THE ALLEGATION THAT I CONSIDERED AND
DETERMINED THE CONSOLIDATION APPLICATION
4.
One of the themes running through the application for leave to appeal
is that I committed an appealable form of misconduct by
making a
determination on what is referred to as the consolidation
application. This is an application that was instituted by the
respondents prior to the hearing of the main application. In the
consolidation application the respondents seek to consolidate
the
main application with a separate matter between the respondents and
one Ms Vanmali. The applicant has opposed the consolidation
application. It has yet to be set down for hearing, and has never
served before me. I have never been required to make, nor have
I made
any determination in the consolidation application.
5.
The respondents raised the issue of the consolidation application in
their application for my recusal at the main hearing. They
also
raised it in their application for a postponement of the matter. It
features in many of the grounds for leave to appeal.
6.
It is simply not so, as the respondents allege, that I misconducted
myself in making a determination on the consolidation application.
7.
I had to consider the fact that there was a pending consolidation
application for purposes of both the recusal application, and
the
postponement. This was because the application for my recusal was
based on the fact that some weeks prior to the main application,
when
I was sitting in the unopposed motion court, one of the matters that
served before me was an application by the applicant
(the heads
application) to compel the respondents to file their heads of
argument in the main application. The latter had been
set down for a
few weeks hence, and the respondents had not yet filed their heads.
8.
The respondents opposed the heads application on the premise that
they did not have to file heads of argument because the pending
consolidation application automatically had the effect of staying all
related proceedings, including the main application. I should
add
that the consolidation application was filed at the eleventh hour. In
the heads application I rejected the respondents’
defence, and
directed
them
to file their heads of argument.
9.
When, by coincidence, some weeks later the main application was
allocated to me by the senior Judge on the opposed motion roll,
the
respondents sought my recusal because of my prior involvement in the
matter. For this reason, the fact that there was a pending
consolidation application (which was not, however, before me) was
relevant to the recusal application.
10.
The same fact was relevant to the postponement application. This is
because the reason given for the postponement was that the
respondents would be prejudiced if the main application was heard and
determined before the consolidation application was finalised.
Once
again, in making a ruling on whether or not to grant the postponement
application, I had to consider the fact that there was
a pending
consolidation application. The nature of that application was
relevant to the exercise of my discretion as to whether
to grant a
postponement.
11.
The respondents suggest that I misconducted myself because, while I
stated that I would not make a determination on the consolidation
application, in effect I did so. There is no merit in this
submission.
12.
First, as I have indicated, the nature of the respondents’ case
in the recusal and postponement applications put the existence
of the
consolidation application squarely before me as a factor in the range
of factors I had to consider in reaching a decision
in those
applications.
13.
Second, this does not mean, however, that I made any determination on
whether the consolidation ultimately should succeed. That
is for
another court to decide through the exercise of that court’s
own discretion. The reasons for my decisions in all three
matters are
not binding on any Judge who may subsequently hear the consolidation
application. They will exercise their own discretion
and make their
own determination on whether that application should be granted.
14.
There is thus no substance in the preliminary issue raised by the
respondents.
GROUNDS
OF APPEAL: THE MAIN APPLICATION
15.
The respondents note ten grounds of appeal in their Notice of
Application for leave to appeal. In their written heads of argument,
and in oral argument, these became twelve grounds. I will consider
the matter based on the grounds of appeal outlined in the Notice.
16.
The eighth ground of appeal is against the dismissal of the recusal
application. I deal with this ground separately later in
this
judgment.
17.
At the outset, I record that some of the grounds of appeal are
directed at my reasoning process. Where this is so, I do not
intend
to deal with them as separate grounds of appeal. In most cases, they
can be linked to one or another of the substantive
grounds of appeal.
First
ground of appeal
18.
The respondents say that they wish to present new evidence to an
appeal court which will show that the respondents’ debt
is in
fact only R3,4 million. Further, that the loan agreement was
nullified by the absence of insurance. The respondents say that
this
evidence came to light when they were studying the judgment and
preparing for the application for leave to appeal. They say
that the
new evidence will show that I erred in dismissing the defences raised
at the hearing.
19.
It is trite that an appeal court will only allow new evidence in
special circumstances because it is in the public interest
that there
be finality in proceedings:
“
It is an
inevitable rule in all courts, and one founded upon the clearest
principles of reason and justice, that if evidence, which
either was
in the possession of parties at the time of a trial, or by proper
diligence might have been obtained, is either not
produced or has not
been procured, and the case id decided adversely to the side to which
the evidence was available, no opportunity
for producing that
evidence ought to be given by granting a new trial.”
[1]
20.
In order
for an appeal court to consider the admission of new evidence, there
should be a reasonably sufficient explanation why
the evidence sought
was not led at the trial or hearing. There should also be a
prima
facie
likelihood
of the truth of the evidence; and the evidence should be materially
relevant to the outcome. Non- fulfilment of any of
these requirements
would normally be fatal. Each case should be considered on its
particular merits. There may be rare instances
where a court will be
more disposed to grant the relief for some special reason.
[2]
21.
All I have before me is a statement made in the Notice of application
for leave to appeal, and in the heads of argument, that
new evidence
exists. No affidavit has been placed before me to indicate what the
nature of the evidence is; or who is intended
to depose to the
evidence.
22.
Further, there is no explanation as to why the evidence could not
have been secured and presented at the hearing of the matter.
The
respondents do not say why they were unable, until now, to gather the
alleged new evidence to show that the quantum claimed
is incorrect.
The same holds true for the alleged evidence about the absence of
insurance. The respondents did not take issue with
the legality of
the agreement in opposing the main application. This seems to be an
attempt to open up an entirely new defence
to the claim. It was not
raised before, and I am not told why it could not have been raised
before.
23.
In the absence of these explanations, there cannot be any substance
or merit in this ground of appeal.
Second
ground of appeal
24.
At the hearing of the application for leave to appeal, Mr Kufa, for
the respondents, explained that the second ground of appeal
is
directed at the costs order I granted in favour of Mr Greenberg, the
applicant’s attorney of record. The respondents say
that I
ought to have found that there was collusion between Assetline and Ms
Vanmali, and that this was manifest in both of them
instructing Mr
Greenberg as their attorney. They say I ought to have found that they
were prejudiced by Mr Greenberg’s conduct.
25.
I dealt with this issue in my written judgment in paragraphs 25-30.
As I noted in my judgment, serious allegations were made
against Mr
Greenberg without evidence to substantiate them. He was threatened
with a
de bonis propriis
costs order against him. What is
more, these allegations were made in circumstances where, on the
admission of the respondent, they
did not constitute a defence to the
application. It was in those circumstances that I found that Mr
Greenberg was entitled to have
retained counsel to represent him in
the proceedings, and to be awarded the costs of such representation
on an attorney and client
basis.
26.
The question of costs lies in the discretion of the court hearing the
application. It is a true discretion, meaning that while
a court on
appeal may interfere, it will not readily do so. In their application
for leave to appeal the respondents repeat their
allegations of
collusion and conflict of interest. These allegations again remain
unsubstantiated, and do not advance the respondents’
defence.
27.
In my view
there is no reasonable prospect that an appeal court would find that
the exercise my discretion in awarding Mr Greenberg
costs was based
on a misdirection, or an irregularity, or in the absence of grounds
on which a court, acting reasonably, could
have granted that
order.
[3]
Third
ground of appeal: Rule 46
28.
The third ground of appeal is that I erred in rejecting the defence
that the applicant had failed to comply with the requirements
of Rule
46.
29.
As to the requirements of Rule 46, I rejected the respondents’
defence that the applicant was not entitled to be granted
an order
declaring the immovable property to be specially executable without
it first having executed against movable property.
30.
I deal with
this in my judgment in paragraph 10. At the hearing of the
application for leave to appeal I was directed to the judgment
in the
matter of
Nkola
v Argent Steel Group (Pty) Ltd
.
[4]
The respondents contended that this judgment was authority for its
submission that Rules 46(1)(a)(i) and (ii) must be read
conjunctively.
But that is not what the judgment says. The SCA held
as follows:
“
What the sub-rule
requires, as a result of these decisions, is that in all cases were a
debtor’s home is in issue, a court
must look at the
circumstances of the debtor and exercise a discretion. … The
proviso (in Rule 46(1)(a)(ii)) reflects the
principle that a poor
person who runs the risk of losing a home should not be placed in
jeopardy with a proper consideration of
his or her circumstances. …
The fact that one of the houses was his (the debtor’s) and his
family’s primary
residence … is of no consequence: he
had the means to avert the execution of the judgment debt and chose
not to pay his
admitted liability. There is no justification in this
matter to read the requirements of rule 46(1)(a) conjunctively. ‘Or’
need not be read as ‘and’ save where a debtor is
indigent, has insufficient assets to satisfy the debt and is at risk
of losing his or her primary residence.”
31.
It is clear from this judgment that the two sub-rules are not, as a
matter of course, to be read conjunctively. It may be necessary,
in
the proper exercise of a court’s discretion to grant
foreclosure in respect of a primary residence of a debtor, to read
the two conjunctively. However, this applies where it is necessary to
do so to ensure that any foreclosure order will not unjustifiably
undermine the debtor’s right to housing.
32.
In the present case, as I indicated in my judgment, there was no
evidence to establishing that it was necessary to read the
two
sub-rules conjunctively. The third respondent is not indigent.
Further, as I discuss further below, there is no evidence that
he
will be rendered homeless by the foreclosure against the first
respondent’s property.
33.
For these reasons, I find that there is reasonable no prospect that
another court would find differently on this issue.
Third,
fourth, fifth, sixth and ninth grounds of appeal: Rule 46A
34.
I have grouped the above grounds of appeal together because they are
all in some way or another directed at my concluding that
the
applicant was entitled to an order declaring the immovable property
specially executable. In essence, the submission is that
I erred in
concluding that the applicant had complied with the requirements of
Rule 46A, and in my finding that an order of executability
was
appropriate under that Rule.
35.
I dealt with this issue in paragraphs 11 to 18 of my written
judgment. I first dealt with the issue of whether Rule 46A was
even
applicable, given that the registered owner of the immovable property
was the first respondent, a corporate entity. I questioned
whether it
was applicable, and I questioned whether there was evidence before
the court to show that the immovable property was
the third
respondent’s primary residence. Nonetheless, I went on to
consider whether the requirements of Rule 46A had been
met on the
assumption that the rule applied. I pointed out that this was the
approach that had been adopted by the applicant in
its application.
It was on this basis that I ultimately decided that the applicant was
entitled to an order of executability, taking
into the consideration
the requirements of Rule 46A.
36.
At the
hearing of the application for leave to the applicant referred me to
the cases of
Absa
Bank v Mokebe and related cases
[5]
,
and
Standard
Bank of South Africa Ltd v Hendricks and another and related cases
[6]
as
authority for the principle that Rule 46A only "concerns and
applies to those properties which are primary homes of debtors
who
are individual consumers and natural persons”.
37.
Quite apart from this authority, even if Rule 46A was applicable in
this matter, as I have indicated, this was fully dealt with
in my
written judgment. Even if one were to overlook the basic principle of
corporate personality, and treat the property as if
it were that of
the third respondent, there remain questions around whether it is
indeed his primary residence. The applicant provided
evidence to the
effect that the third respondent has provided a residential address
in London, and that he has extensive ties to
the United Kingdom and
Zimbabwe. No evidence was provided by the second respondent himself
to refute this. In any event, my judgment
covered the possibility
that the property might be his primary residence. Regardless of who
the property belongs to, and whether
or not it is the second
respondent’s primary residence, all bases were covered by the
applicant in its application, and by
me in my judgment.
38.
I gave due consideration to the issues required to be considered
before an order of executability is granted. There was no
substantiated evidence the third respondent is indigent and that he
will be rendered homeless by the order. The third respondent
provided
no information to the court to indicate that this was the case. As
stated in my judgment:
“
On the contrary,
what the court does know from the papers is that the loan was
advanced to Manhattan for purposes of a business
venture: it was not
to provide funding to purchase the property. From the text messages
exchanged between Mr Matienga and Mr Katz,
Mr Matienga holds himself
out to be an international businessman involved in various ventures
across international jurisdictions.
At one stage, he claimed that he
had access to funding in Dubai (although it has to be said that this
did not result in Manhattan
actually meeting its obligations under
the loan agreement). He also appears (from the text messages) to be a
co-owner of another
property in Johannesburg valued by him at the
time to be worth R9 million. Mr Matienga was also willing to sell the
property to
a private buyer before getting cold feet and refusing to
sign the transfer documents. This fact also appears from the text
messages
exchanged between the parties. In short, these facts do not
describe the profile of a debtor who would be rendered homeless by an
order of execution.”
39.
The respondents do not say how I erred in reaching this conclusion. I
can see no reasonable prospect of another court finding
differently.
40.
As far as I can make out, the sixth ground of appeal seeks to imply
that I erred in failing to protect the private law interests
of the
first respondent by granting the foreclosure order. While the first
respondent has an interest as owner in the property,
so too does the
applicant. It is the registered holder of a mortgage bond over the
property. As such, and as is trite in our law,
it has a real right in
that property. Our law permits a bondholder to have the property
declared specially executable. Under our
constitutional dispensation,
this right is tempered to some extent in order to protect indigent
homeowners from being rendered
homeless as a result of the
foreclosure process. Through this, the private interests of the
homeowner, and of the mortgage bond
holder are balanced. I am
unpersuaded that there is any reasonable prospect that another court
would find that the balance was
incorrectly struck by me in this
case.
41.
The fifth ground of appeal appears to relate to the exercise of my
discretion to not place a reserve price on the execution
of the
property. It is said that I should have found that Ms Vanmali
intended to buy the property “for a song”. It
is for the
execution creditor to determine who the property should be sold in
execution. The normal course is to instruct the Sheriff
to conduct a
public auction. The effect of the order of executability does not
mean that the property will be sold to Ms Vanmali
for R3,4 million.
The respondents assume that this will be the case, but this is an
incorrect assumption. There is no merit in
this ground of appeal.
Eighth
ground of appeal
42.
The respondents call this a constitutional ground of appeal. They say
that:
“
The procedure
employed by the Learned Judge to refuse the fact that a consolidation
application was pending and place the matter
before her into hiatus,
it is respectfully submitted does not pass constitutional muster.”
And
further:
“
whether the
hearing of a matter takes precedence despite a consolidation
application having been filed, has not been the subject
for judicial
consideration by the South African Courts with the result that there
are compelling reasons why the appeal should
be heard as understood
in the meaning of section 17 (1)(a)(ii) of the Superior Courts Act 10
of 2013”.
43.
The respondents contend that this is an issue of national importance
and that for this reason, it is imperative that a court
of appeal
should consider the issue.
44.
As I have already discussed, the issue of the pending consolidation
application was raised by the respondents at the hearing
in support
of their postponement application, and in relation to the recusal
application. It also tangentially featured in the
lis alibi
pendens
defence raised by them. For reasons given
ex tempore
,
I declined to postpone the main application pending the finalisation
of the consolidation application. This would have caused
a
considerable delay in the finalisation of the matter, and would not
have served the interests of justice.
45.
As to the
lis alibi pendens
defence, the respondents’
case was that Ms Vanmali’s application was a replication of the
main application, and that
I should therefore pend the main
application until after the two applications could be consolidated
and heard together. I considered
the requirements for the defence of
lis alibi pendens
, and found that they had not been met. The
main application was not a replication of Ms Vanmali’s
application. The two applications
did not share the same cause of
action. In the circumstances, I was not called upon to exercise my
discretion under that defence,
to suspend the hearing of the main
application.
46.
The respondents sought to argue that there ought in law to be a basic
principle that once an application for consolidation of
two cases is
filed, no further separate proceedings should be permitted to take
place until the consolidation is finalised and
both matters are
disposed of together. Rule 11 permits the consolidation of different
matters if this is convenient. However, it
does not provide that the
effect of a consolidation application is to stay all proceedings in
the matters pending consolidation.
The respondents suggest that this
is a lacuna in our law, and that it is a matter of national and
constitutional importance that
the issue should be brought to the
attention of an appeal court by granting leave to appeal in this
matter.
47.
As I have indicated, the consolidation application was not before me,
and I was not required to apply Rule 11. Whether or not
there is a
lacuna in Rule 11 which is unconstitutional was not an issue I was
asked to determine. In my view, it is therefore not
an issue that
arises for consideration by a court of appeal in this case.
48.
The issues that a court of appeal would have to consider in this case
is whether or not I erred in my rejection of the
lis alibi pendens
defence, which defence involved argument on the fact that there
was a pending consolidation application; and whether or not I
misdirected
myself in refusing the postponement application. In the
latter regard, the refusal of a postponement application is not
normally
appealable, being as it is interlocutory in nature. However,
even assuming that it was, the consolidation issue is one of the
factors
that was brought to my attention and to which I applied my
mind in exercising my discretion. It was not the only consideration,
but it was one of the many that I considered.
49.
In my view, it is only in these respects that the effect of a
consolidation application is at all relevant to an appeal in this
case. In fact, the manner in which the consolidation was raised
before me, tends to show that there is not, in fact, a lacuna in
the
law. Where there is a pending application for consolidation a party
has many avenues of recourse available to them under our
existing law
as it stands. She may apply for a postponement (as the respondents
did in this case); she may apply for a stay; or
she may raise the
lis
alibi pendens
defence (again as the applicant did in this case)
in an appropriate case.
50.
In all of these remedies, the court has a discretion to grant an
order that has the effect of holding matters in abeyance until
consolidation has taken place and the matters are heard together.
Such orders are made by courts under our existing law as it stands
when it is appropriate to do so. The fact that the respondents did
not succeed in obtaining such an order before me is not indicative
of
a pressing lacuna in our law of a constitutional nature. They did not
succeed on the application of existing principles of law.
If they
were to succeed on appeal, it would be because another court found
that I erred in applying the existing law. A court on
appeal would
not have to consider any lacuna in our law in order to make that
determination, as suggested by the respondents. Any
appeal would
simply be on the basis of the application of existing rules and
principles to the facts of the case.
51.
For all of these reasons, I find that there is no reasonable prospect
that another court would find that I erred or misdirected
myself in
failing to give proper consideration to the fact that there was a
pending consolidation application in rejecting the
lis alibi
pendens
defence, and in refusing the application for a
postponement. Nor am I persuaded that an appeal should be granted on
the basis that
this would be in the interests of justice.
GROUNDS
OF APPEAL: THE RECUSAL APPLICATION
52.
The tenth ground of appeal is directed at the refusal of the recusal
application. The respondents say in this regard that:
“
The tenth ground
of appeal is the Learned Judge ought to have recused herself as she
had heard the application to compel the submission
of heads of
argument by the Respondents:
1.10.1. The Learned Judge
acted in a grossly biased manner and thus denied the Respondents the
attainment of justice by refusing
to recuse herself;
1.10.2. The Learned Judge
ought to not have deferred to the opinion of the counsel of ASSETLINE
to proceed with the matter;
1.10.3. The Learned Judge
had initially adopted a consonant approach of vacating the hearing of
the matter but was persuaded by
the counsel for ASSETLINE to hear the
matter;
1.10.4. The Learned
Judges failure to decide effectively on her own renders her
impartiality circumspect and thus reasonable apprehension
of bias
remained alive; 1.10.5.The Learned Judge failed to percolate that she
had intimated that at the hearing of the application
to compel heads
that she had given an ex tempore judgement wherein she indicated that
consolidation application will always be
considered in due course;
1.10.6.The Learned
Judge's sentiments were of such a nature to contaminate the
expectation of fair and unbiased decision given the
fact that she
went against the grain of her own expressions on the 17th day of
March 2020…”
53.
And further, with reference to s165 and the Preamble to the
Constitution, they say that:
“…
it is
inherently inappropriate for a court of law, as the court a quo, the
constitutionally designated primary protector of personal
rights and
freedoms, to pursue such a course of conduct of punishing the
Respondents for raising their hands in unison that the
conduct of Mr
Greenberg be probed and deserved judicial censure and for trying to
persuade the Court to hear the consolidation
application first…”
54.
The recusal application was premised on the fact that I had heard the
application against the respondents to compel their filing
of heads
of argument in unopposed motion court. The respondents’
complaint was that the consolidation application was a pertinent
issue raised at that hearing. It was also going to be a pertinent
issue raised at the hearing in the main application. They said
that I
had refused to consider the consolidation application as a factor in
the unopposed motion court, and had instead granted
an order
compelling them to file their heads of argument and to pay costs on
an attorney and client scale. The respondents submitted
that given
what had transpired in unopposed motion court, their expectation was
that once again I would not be willing to consider
the consolidation
application as a factor, thus rendering me biased for purposes of the
main application.
55.
The test
for recusal, as set out in
Coop
and others v South African Broadcasting Corporation and Others
[7]
,
is comprised of the following components:
“
First, the test is
whether the reasonable objective and informed person would on the
correct facts reasonably apprehend that the
Judge will not be
impartial.”
[8]
“
Secondly, the test
is an objective one. The requirement is described... as one of
‘double reasonableness’. Not only
must the person
apprehending the bias be a reasonable person in the position of the
applicant for recusal but the apprehension
must also be reasonable.
Moreover, apprehension that the Judge may be biased is not enough.
What is required is an apprehension,
based on reasonable grounds,
that the Judge will not be impartial.”
[9]
“
Thirdly, there is
a built-in presumption that, particularly since Judges are bound by a
solemn oath of office to administer justice
without fear or favour,
they will be impartial in adjudicating disputes. As a consequence the
applicant bears the onus of rebutting
the weighty presumption of
judicial impartiality.... (T)he purpose of formulating the test as
one of ‘double reasonableness’
is to emphasise the weight
of the burden resting on the applicant for recusal.”
[10]
“
Fourthly, what is
required of a Judge is judicial impartiality and not complete
neutrality. It is accepted that Judges are human
and that they bring
their life experiences to the Bench. They are not expected to divorce
themselves from these experiences and
to become judicial stereotypes.
What Judges are required to be is impartial, that is, to approach the
matter with a mind open to
persuasion by the evidence and the
submissions of counsel.”
[11]
56.
It is not a
ground for recusal that a Judge expressed an opinion at a previous
stage in the same case which was based on the hearing
of the case
itself, or in another case between the same parties.
[12]
Further:
“
When in any case a
judge finds upon the law or evidence he is discharging a duty and
there can never be a suggestion that merely
because such a finding is
adverse to one of the parties the Court is biased or hostile to that
party. The fact that findings are
made in judicial proceedings,
published ex cathedra, in the discharge of a duty rebuts any
presumption of malice or ill-feeling."
[13]
57.
As I indicated in the
ex tempore
reasons for my dismissal of
the recusal application, in unopposed motion court, the respondents
argued that they should not be ordered
to file their heads of
argument in the main application because the effect of the recently
filed consolidation application was
to put an automatic halt on the
main application. I rejected this argument, and ordered that they
file their heads. I suggested
to the respondents that if they felt it
was relevant, they could deal with the issue in their heads of
argument.
58.
This decision was based on a simple application of the rules set out
in the Practice Directives of this Division. They permit
a party to
apply to compel the filing of heads of argument by the other party if
they have not been filed timeously. The main application
had been
enrolled for hearing on the opposed motion court roll some weeks
hence, and the respondents had not filed their heads.
That was the
situation before me. I took the view that the consolidation
application (which had been filed only the day before
the unopposed
motion court hearing) did not alter the applicant’s entitlement
to an order compelling the respondents to file
their heads of
argument.
59.
I made a procedural legal decision based on the facts and rules
applicable. The fact that I found against the respondents does
not
amount to bias. The test is not a subjective one, but an objective
one.
60.
At the commencement of the hearing in the main application, the
respondents’ counsel reminded me of what had transpired
in the
unopposed motion court some weeks before. He indicated that this
formed the basis for the recusal application. I suggested
to the
parties that it may be pragmatic for the matter to be heard by one of
the other Judges assigned to the opposed motion court
roll. I
recalled that I had made an attorney and client costs order against
the respondents and that the interchange with counsel
for the
respondents had been robust. I thought it might obviate the need for
a recusal application if a Judge without any history
in the matter
could hear the main application.
61.
However, after taking an instruction from his attorney, counsel for
the applicant indicated that they were not agreeable to
this
suggestion, and that the recusal application should be heard and a
ruling made. Once this was communicated to me, I proceeded
to hear
the recusal application. Counsel for both the respondent and the
applicant addressed me, and I was referred to the relevant
authorities. Ultimately, I ruled in favour of the applicant and
refused the recusal application for reasons stated
ex tempore
.
This does not, contrary to the respondents’ suggestion, amount
to deferring to the opinion of counsel for the applicant.
It is a
normal function of our adversarial system that invariably a Judge
will have to decide to accept the submissions made by
counsel
representing the one party over those of counsel representing the
other party. It is not evidence of bias.
62.
I am unpersuaded that on an application of the principles governing
recusal there is a reasonable prospect that another court
would find
that I erred in not recusing myself from the main application.
CONCLUSION
AND ORDER
63.
In summary, I find that none of the grounds of appeal advanced have
merit.
64.
I make the following order:
“
The application
for leave to appeal is dismissed with costs.”
____________________
R
M KEIGHTLEY
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
Date
Heard (by videolink): 08 JULY 2020 (with further written submissions
being presented subsequently)
Date
of Judgment: 19 AUGUST 2020
Counsel
for the applicant: JM Hoffman
Instructed
by: Swartz Weil Van der Merwe Greenberg Inc
Counsel
for respondent: M Kufa; M Moropene
Instructed
by: Machaba Attorneys
[1]
Sheddon v Patrick and Attorney-General
(1869) 22 LT 631
at 634
[2]
Van Loggerenberg et al Erasmus Superior Court Practice Vol 1 A2-70
(Original Service 2015) (“Erasmus”)
[3]
Erasmus, and the cases cited in n4, A2-86
[4]
2019 (2) SA 216
(SCA) at paras 15 & 17
[5]
2018 (6) SA 492
(GJ) at para 59
[6]
2019 SA 620 (WCC)
[7]
2006 (2) SA 212
(W) at 213 C
[8]
Para 19. See also President of the Republic of South Africa v South
African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at 177B-E
[9]
Para 20
[10]
Para 21
[11]
Para 22
[12]
Berman v Wigoder 1949 (2) SA 252 (C)
[13]
Law Society v Steyn 1923 SWA 59 at 60-1