Brief Summary

Administrative Law — Urgent Applications — Reconsideration of ex parte order — Faraday Taxi Association obtained an urgent order without serving all respondents, leading to a reconsideration application by the Orange Farm United Taxi Association (OFUTA) under Rule 6(12)(c) — Court held that non-disclosure of material facts by the applicant in an ex parte application may lead to the order being set aside, regardless of intent — The court found that the applicant's failure to disclose previous similar applications and the existence of opposing parties warranted reconsideration of the order.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an application for reconsideration in terms of Rule 6(12)(c) of the Uniform Rules of Court of an order granted in urgent proceedings in the absence of certain affected parties. The applicant for reconsideration was the Orange Farm United Taxi Association (OFUTA), cited as the fourth respondent in the original urgent application. The party opposing reconsideration was the Faraday Taxi Association (FTA), the applicant in the original urgent application. The proceedings took place in the Gauteng Local Division, Johannesburg, before Keightley J.

The procedural history was central to the dispute. On 24 December 2021, FTA obtained an urgent order before Crutchfield AJ. It was common cause that the order had been granted without service on certain respondents, including OFUTA. OFUTA thereafter invoked Rule 6(12)(c) and set the matter down for reconsideration in the urgent court. When the reconsideration application came before Keightley J, the court directed that it would initially deal only with OFUTA’s in limine point: that the December order had been obtained through material non-disclosure by FTA. The court indicated that if OFUTA did not succeed on that point, the balance of the reconsideration (including the merits of the original application and OFUTA’s counter-application) could be addressed on the extended return day of the rule, being 25 April 2022.

The general subject-matter of the dispute was therefore not the underlying taxi-association operational conflict as such, but rather the propriety of the urgent process that produced the December order—specifically whether the order should stand given alleged egregious non-disclosure and the resulting deprivation of affected parties’ opportunity to be heard.

Material Facts

A substantial portion of the relevant facts were treated by the court as common cause, including after FTA was afforded an opportunity to file a replying affidavit in the reconsideration proceedings.

Chronologically, the material background began with an earlier urgent application brought by FTA on 22 November 2021 under case number 54425/2021. That application was set down for 30 November 2021 and scheduled for hearing on 3 December 2021. OFUTA was cited in that first urgent application as the fourth respondent and entered opposition by filing a Notice of Intention to Oppose, in which it furnished the identity and full contact details of its attorneys (including email addresses, fax numbers, and cellular phone numbers) for service of process.

In the week before the set-down of the first urgent application, attorneys acting for certain respondents (including OFUTA) corresponded with FTA’s attorneys, raising concerns about alleged flaws in that application. OFUTA’s attorney specifically drew attention to the late service of the application on OFUTA and contended that the matter was not ripe for hearing because OFUTA still intended to finalise its answering papers. FTA nonetheless indicated it intended to proceed. However, on 2 December 2021, FTA filed a Notice of Withdrawal of the first urgent application, accompanied by a tender of wasted costs.

FTA then issued a second urgent application on 14 December 2021 under a new case number, 58879/2021, and set it down for 21 December 2021. The order was ultimately granted on 24 December 2021 by Crutchfield AJ in circumstances where the presiding judge was advised that there had been no service on the respondents. FTA’s attorney filed an affidavit of non-service which formed part of the record before Crutchfield AJ. In that affidavit, the attorney stated that he had instructed the Sheriff to serve the application urgently, that he attended at the Sheriff’s office to collect returns, and that he “attempted to serve” the relevant respondents but their principal places of business were closed.

What the court considered crucial was the further common-cause fact that FTA made no mention, whether in its founding affidavit or in the affidavit of non-service in the second urgent application, of the following matters: that there had been a recent prior urgent application on substantially the same facts and against substantially the same parties; that the prior application had been opposed (including by OFUTA); and that FTA had the full details of OFUTA’s attorneys of record at its disposal and had corresponded with them in the lead-up to the earlier proceedings.

The court treated these omissions as material to how the urgent court would have approached service, the fairness of granting relief in the absence of affected parties, and whether the second urgent application was in substance a revival of the earlier withdrawn proceedings without proper disclosure to the court.

Legal Issues

The central legal questions concerned the proper exercise of the court’s discretion under Rule 6(12)(c). The court was required to determine whether the December urgent order, granted in the absence of OFUTA, should be reconsidered and set aside on the basis that it was obtained through material non-disclosure in circumstances approximating an ex parte application (in the sense that the relief was granted without the affected party being heard and without effective service).

The dispute required the court primarily to evaluate the application of legal principles to largely common-cause facts, coupled with an evaluative assessment of the seriousness and materiality of the non-disclosures and the appropriate procedural consequence. It also involved a discretionary value judgment about remedy (whether the rule nisi should remain pending a return day, or be set aside immediately and in respect of all respondents) and about costs (including whether a punitive scale was warranted).

A further procedural issue arose regarding the nature of Rule 6(12)(c) proceedings, including whether OFUTA’s notice procedure was defective and whether OFUTA had to establish urgency to enrol its reconsideration in the urgent court. These questions were treated as ancillary to the central non-disclosure point.

Court’s Reasoning

The court began by outlining the nature of Rule 6(12)(c) reconsideration. It noted that earlier authority in the Division (specifically Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W)) had suggested that reconsideration occurs on the original application “without reference to anything else”, but that subsequent decisions recognised that a party invoking the Rule may file an affidavit in support of reconsideration, with the opposing party then having the opportunity to reply (with reference to Oosthuizen v Mijs 2009 (6) SA 266 (W) and Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ)). Against this framework, and given the pivotal nature of the non-disclosure complaint, the court afforded FTA the opportunity to deliver a replying affidavit.

The court emphasised that Rule 6(12)(c) is a sui generis procedure and that the court’s discretion under it is wide. It endorsed the approach described in ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W), namely that the Rule’s framers did not attempt to delineate the factors to be considered and intended a broad discretion, with relevant considerations often including the reasons for absence, the nature of the order, how long it has operated, whether injustice resulted, and whether alternative remedies exist. The court also reiterated that the purpose of Rule 6(12)(c) is to provide a mechanism to redress imbalances and injustices associated with urgent orders granted in the absence of affected parties, and that once the jurisdictional facts are present (an urgent order granted in the aggrieved party’s absence), the court is free to reconsider the order in the widest sense.

On the procedural criticisms raised by FTA, the court rejected the contention that OFUTA’s notice of motion was fatally defective because it used a “short form” and did not specify dates for answering affidavits. The court held that, given the sui generis character of Rule 6(12)(c) proceedings and the Rule’s silence on those formalities, OFUTA could not be criticised for the form adopted, and there was no material prejudice because FTA was notified, opposed, and was allowed to file a replying affidavit.

The court likewise rejected FTA’s complaint that OFUTA had not established urgency. It accepted that OFUTA did not seek to make out a conventional urgency case but proceeded on the basis that Rule 6(12)(c) matters may be enrolled in the urgent court as a matter of practice. The court further held that the particular allegation of material non-disclosure justified prompt consideration because, if established, it would be undesirable for an order obtained on that basis to remain in force.

Turning to the merits, the court applied the established principle that in ex parte proceedings (or proceedings effectively resulting in relief without hearing affected parties) an applicant is obliged to observe the utmost good faith and to disclose fully and fairly all material facts, failing which a court may set aside the order on that ground alone, citing Logic v Priest 1926 AD 312. The court also stressed that, regardless of whether non-disclosure is wilful, mala fide, or negligent, a court retains a discretion to set aside an order obtained through such non-disclosure, citing Power NO v Bieber and Others 1955 (1) SA 490 (W).

The court further held that the duty of full and fair disclosure extends to the legal representatives of a party proceeding in such a manner, citing Toto v Special Investigating Unit and Others 2001 (1) SA 673 (E). In addition, it applied the principle articulated in South African Airways SOC Ltd v BDFM Publishers (Pty) Ltd 2016 (2) SA 561 (GJ) that in urgent applications practitioners bear a mandatory professional responsibility to take all reasonable steps to mitigate truncated notice and to ensure effective alerting of opponents, including identifying and utilising attorneys’ known contact details where applicable. Although that passage dealt expressly with extremely short notice, the court treated the underlying principle as extending to urgent applications where there is a prospect that an order may be granted without appearance by affected parties, which was the situation that prevailed before Crutchfield AJ.

Applying those principles, the court concluded that the non-disclosure by FTA and its legal representatives was clear and egregious. It reasoned that the existence of the earlier withdrawn urgent application was inherently material to the urgent court’s assessment of the second application, particularly because the relief sought was substantially the same and because the earlier matter had been opposed. The court considered it especially significant that the second urgent application proceeded on the basis of non-service, because knowledge of a prior contested urgent application would have made service and effective notice to opponents a matter of heightened importance.

The court then characterised the conduct as involving “double non-disclosure”: not only was the earlier urgent application and opposition withheld, but also the fact that FTA had full contact details for OFUTA’s attorneys and did not attempt to alert them by available means such as email or phone. The court held that the urgent court was misled by the omission of these facts, because it created the impression that service by Sheriff and the explanation for non-service were appropriate in a context where the applicant had no readily available means to notify opponents. The court rejected FTA’s submission that it had merely attempted service as prescribed by the Rules, viewing that explanation as inadequate in light of the context and the withheld information. On the court’s assessment, the non-disclosure undermined audi alteram partem in a fundamental way.

Given the seriousness and materiality of the non-disclosure, and the fact that the court itself had been misled, the court concluded that the only suitable remedy was to set aside the rule nisi granted on 24 December 2021 ab initio and in respect of all respondents, with the consequence that the return day fell away. The court expressly held that the availability of a later return-day challenge did not justify keeping the rule alive.

Finally, the court dealt with costs and professional consequences. It held that a punitive costs order on the scale of attorney and client was appropriate, given the egregious nature of the non-disclosure and its implications for the administration of justice. It also directed that the relevant attorney who deposed to the affidavit of non-service and counsel who appeared for FTA report themselves to the Legal Practice Council, provide a copy of the judgment, report potential breaches of professional or ethical rules arising from the judgment, and upload proof of compliance to CaseLines by a specified date.

Outcome and Relief

The court granted OFUTA’s application for reconsideration under Rule 6(12)(c). It set aside in its totality the rule nisi granted by Crutchfield AJ on 24 December 2021, removed the return date from the roll, and ordered FTA to pay the costs of the reconsideration application on an attorney and client scale.

In addition, the court ordered that Mr Munyai (attorney) and Mr Mashavha (advocate), as FTA’s legal representatives, were to provide the Legal Practice Council with a copy of the judgment, report their potential breaches of professional or ethical rules arising from the judgment to the Legal Practice Council, and upload proof of compliance to CaseLines by 19 April 2022.

Cases Cited

Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W)

Oosthuizen v Mijs 2009 (6) SA 266 (W)

ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W)

Industrial Development Corporation of South Africa v Sooliman 2013 (5) SA 603 (GSJ)

Sheriff Pretoria North-East v Flink and Another [2005] 3 All SA 492 (T)

Logic v Priest 1926 AD 312

Power NO v Bieber and Others 1955 (1) SA 490 (W)

Toto v Special Investigating Unit and Others 2001 (1) SA 673 (E)

South African Airways SOC Ltd v BDFM Publishers (Pty) Ltd 2016 (2) SA 561 (GJ)

LA v LW (citation not provided in the judgment)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 6(12)(c)

Held

The court held that the order granted on 24 December 2021 had been obtained in circumstances involving material and egregious non-disclosure by FTA and its legal representatives, including non-disclosure of a recently withdrawn prior urgent application seeking substantially the same relief and non-disclosure of the existence and contact details of OFUTA’s attorneys, which should have been used to alert OFUTA. This conduct undermined the audi alteram partem principle and misled the urgent court.

The court held that, given the seriousness of the non-disclosure and the purpose of Rule 6(12)(c) to redress injustice arising from orders granted in a party’s absence, the appropriate remedy was to set aside the rule nisi ab initio in its totality for all respondents, rather than leaving it to be debated on a later return day. It further held that punitive costs were warranted and that the conduct warranted referral to the Legal Practice Council by the legal representatives involved.

LEGAL PRINCIPLES

Rule 6(12)(c) establishes a sui generis reconsideration mechanism for urgent orders granted in the absence of an affected party. Once the jurisdictional requirements are met—namely that an urgent order was granted in the absence of the aggrieved party—the court enjoys a wide discretion to reconsider the order in the broadest sense, guided by considerations of fairness, injustice, and practical consequences.

In proceedings that result in relief without the participation of affected parties, the applicant bears a duty of utmost good faith and must disclose fully and fairly all material facts. A material non-disclosure may justify setting aside the order on that ground alone, and the court’s discretion to do so exists whether the non-disclosure was deliberate, negligent, or otherwise.

The duty of candour and fairness extends to legal representatives as officers of the court. In urgent proceedings, legal practitioners carry a professional obligation to take all reasonable steps to mitigate truncated notice and to alert opponents, particularly where their identities and attorneys’ contact details are known. Failure to do so may support setting aside the order and may justify punitive costs and professional reporting consequences where the administration of justice has been compromised.

Faraday Taxi Association v Director Registration and Monitoring MEC for Roads and Transport and Others (58879/2021) [2022] ZAGPJHC 213 (5 April 2022)