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[2016] ZAECPEHC 84
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Gcora and Others v Nelson Mandela Municipality and Another (1414/2016) [2016] ZAECPEHC 84 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 1414/2016
Date Heard: 13
October 2016
Date Delivered: 20
October 2016
In
the matter between:
SIPHO
GCORA
First
Applicant
KHUSELWA
GOBO-GCORA
Second
Applicant
GOBO
GCORA CONSTRUCTION AND
PROJECT
MANAGEMENT
CC
Third
Applicant
and
NELSON
MANDELA MUNICIPALITY
First Respondent
PUBLIC
PROTECTOR OF SOUTH AFRICA
Second
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The
applicants seek a declaratory order that a judgment delivered by
Plasket J on 30 August 2016 be declared null
and
void and of no force or effect.
[2]
The first
respondent filed answering papers together with a notice in terms of
Rule 6(5)(d)(iii) of the Uniform Rules of Court.
In the notice
the first respondent stated its intention to raise a question of
law. The question of law raised is simply
whether I, sitting as
a single Judge, have the power in law to declare the judgment of
Plasket J to be null and void and of no
force or effect. In his
answering papers the first respondent further challenged the
applicants’ standing in these
proceedings.
Background
[3]
The first
and second applicants were the members of the third applicant, a
close corporation. Various disputes arose between
the
applicants and the first respondent. The applicants referred
these issues to the Public Protector for investigation and
in due
course the Public Protector found in favour of the third applicant in
a report entitled “Cost of Deviation”.
She ordered the
first respondent to take certain remedial action in favour of the
third applicant.
[4]
It is
common cause that the estates of the first and second applicants
were, in the interim, finally sequestrated on 3 December
2013.
Much was made in the papers in the present matter of the
sequestration order and the applicants raised numerous arguments
in
respect of the question whether the order should have been granted at
all. As a fact, however, the order remains in place.
It
has not been set aside and trustees have been duly appointed to the
estates of the first and second applicants. It appears
to be
common cause that no application has ever been made to appeal against
the sequestration order. The effect thereof is
that the
personal estates of the first and second applicants vest in the hands
of their trustee and their members interests in
the third applicant,
being part of their estates, similarly vests in the hands of their
trustee
(section 20(1)(a)
of the
Insolvency Act, 24 of 1936
).
[5]
The third
applicant too was placed under provisional liquidation, however, that
order was later discharged.
[6]
Upon
publication of the report of the Public Protector, to which I have
referred earlier, the first respondent did not immediately
give
effect to the findings of the Public Protector and accordingly the
applicants launched an application to enforce compliance
on the part
of the first respondent with the order of the Public Protector.
The first respondent, on the other hand, resolved
to seek a judicial
review of the report of the Public Protector.
[7]
The
applicants’ application was due to be heard by Smith J on 12
April 2016, however, at the hearing the parties reached agreement
in
respect of the further conduct of the matter. Smith J
accordingly made the following order by agreement:
“
1.
That the application brought by Applicants under case number 992/2016
is postponed
sine die
.
2.
That the aforesaid application is to be heard simultaneously with the
application
for review to be brought by the Nelson Mandela Bay
Municipality (the Respondent in this application).
3.
That the Nelson Mandela Bay Municipality is directed to institute its
proposed
application to review and set aside the Remedial Action
contained in the report of the Public Protector dated 29
th
January 2016 by no later than the end of April 2016.
4.
That the Nelson Mandela Bay Municipality is directed to serve such
application
upon the Applicants in this application, the liquidators
of the First Applicant and the Public Protector.
5.
That the Nelson Mandela Bay Municipality is directed to comply with
its obligations
to promote co-operative governance and
inter-governmental relations as enshrined in Section 41 of the
Constitution, in pursuing
the review application referred to more
fully above.
6.
That the costs occasioned in this application thus far be reserved.”
[8]
The first
respondent duly launched its review application on 29 April 2016.
It cited as respondents the Public Protector,
the liquidators of Gobo
Gcora Construction and Project Management CC, it being under
provisional winding-up at the time, and the
trustees of both of the
first and second applicants in the present application. The
first and second applicants in the present
application were not
personally cited as parties in the review application.
[9]
The
launching of the review application prompted the first and second
applicants herein to bring an application in terms of the
provisions
of Rule 30/30A of the Uniform Rules of Court. The Rule 30/30A
application sought the following relief:
‘
1.
The review application under case number 1414/2016 be set aside;
2.
Alternatively the review application be struck out;
3.
Declaring that the Applicant under case number 1414/2016 is in
contempt of the
order dated 12 April 2016 under case number 992/2016.
4.
That the Applicant under case number 1414/2016 is acting in violation
of s 41
of the Constitution by approaching the above Honourable Court
without raising the issues its wants the above Honourable Court to
hear, with the Public Protector first;
5.
That the Nelson Mandela Bay Municipality be ordered to comply with
the Remedial
Action of the Public Protector in “cost of
deviation” as it opted to waste all the time it had to engage
the Public
Protector;
6.
That the Nelson Mandela Bay Municipality is [in] contempt of the
Public Protector.’
[10]
Plasket J
was called upon to adjudicate on the Rule 30/30A application.
He delivered a reasoned judgment and dismissed the
application.
It is the dismissal of the Rule 30/30A application which prompts the
present application.
Question
of law raised
[11]
On behalf
of the respondent Mr
Rorke
SC
argues that the applicants have misconstrued their remedy. He
suggests that in the event that the applicants are unhappy
with the
judgment delivered by Plasket J their relief lies in an appeal
against the judgment. This prompted extensive argument
in
respect of the appealability of the order.
[12]
Mr
Gcora
,
who appeared in person, submitted extensive heads of argument setting
out a considerable volume of material. Mr
Gcora
argues that the judgment of Plasket J is not appealable because it
was not final and definitive of the rights of the parties and
accordingly it does not constitute a judgment or order. He has
referred to an extensive volume of authority commencing with
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) where Harms AJA (as he then was), carefully
analysed the provisions of section 20 of the Supreme Court Act and
distinguished
between judgments and orders, on the one hand, and
other decisions of the court. Mr
Gcora’s
extensive research correctly sets out the position explained in the
Zweni
judgment
and numerous judgments which followed upon it.
[13]
Zweni
,
however, deals with the provisions of section 20 of the Supreme Court
Act of 1959.
[14]
The
judgment in
Zweni
was not unanimously accepted as inflexible. In
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(SCA) Hefer JA considered the appealability of a
refusal by a presiding judge to recuse himself during proceedings.
At 10E-F
he concluded:
“
On
the other hand, because it is not definitive of the rights about
which the parties are contending in the main proceedings
and
does not dispose of any of the relief claimed in respect thereof, it
does not conform to the norms in the cited passage from
the judgment
in
Zweni's
case and thus seems to lack the requirements for a 'judgment or
order'. However, the passage in question does not purport to
be exhaustive
or to cast the relevant principles in stone. It
does not deal with a situation where the decision, without actually
defining the
parties' rights or disposing of any of the relief
claimed in respect thereof, yet has a very definite bearing on these
matters.”
[15]
At
approximately the same time Nugent J in
Liberty
Life Association of Africa Ltd v Niselow
(1996) 17 ILJ 673 (LAC) at 676H considered that the question was not
whether a decision was appealable but rather when it was,
that is
whether a particular decision was appealable immediately and in
isolation before the proceedings had run their full course.
[16]
This
reasoning of Nugent J was cited with approval in the Supreme Court of
Appeal in
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA). In
Beinash
Mohamed CJ went on at p. 730B-E to state:
“
This
problem often arises when one or other party seeks to appeal against
some preliminary or interlocutory decision which is made
by a court
before it has arrived at a final conclusion on the merits of the
dispute between the parties. The approach of the Court
in such
circumstances is a flexible approach. In the words of Harms AJA
in
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A)
at 531J--532A:
'The
emphasis is now rather on whether an appeal will necessarily lead to
a more expeditious and cost-effective final determination
of the main
dispute between the parties and, as such, will decisively contribute
to its final solution.'
What the Court
does is to have regard to all the relevant factors impacting on
this issue. It asks whether the decision sought
to be corrected
would, if decided in a particular way, be decisive of the case as a
whole or a substantial portion of the relief
claimed, or whether such
decision anticipates an issue to be determined in the main
proceedings. The objective is to ascertain
what course would best
'bring about the just and expeditious decision of the major
substantive dispute between the parties'.”
[17]
Later,
in
National
Director of Public Prosecutions v King
2010 (2) SACR 146
(SCA) Nugent JA, in a separate judgment which does
not conflict with the main judgment, and with reference to his
earlier judgment
in
Liberty
Life Association
supra
at 676H stated at 166f-167a:
“
I
observed that, when the question arises whether an order is
appealable, what is most often being asked is not whether the order
is capable of being corrected, but rather whether it should be
corrected in isolation and before the proceedings have run their
full
course. I said that two competing principles come into play when that
question is asked. On the one hand justice would seem
to require
that every decision of a lower court should be capable not only of
being corrected, but also of being corrected
forthwith and before it
has any consequences, while on the other hand the delay and
inconvenience that might result if every decision
is subject to
appeal as and when it is made might itself defeat the attainment of
justice.
…
I pointed out in
Liberty
Life
that while the
classification of the order might at one time have been considered to
be determinative of whether it was susceptible
to an appeal
the approach that has been taken by the courts in more recent times
has been increasingly flexible and
pragmatic. It has been directed
more to doing what is appropriate in the particular circumstances
than to elevating the distinction,
between orders that are appealable
and those that are not, to one of principle.”
[18]
Against
this background the
Superior Courts Act, 10 of 2013
came into effect
on 23 August 2013.
Section 16(1)(a)
, in contrast to the Supreme
Court Act of 1959 now provides:
“
(1) Subject to section 15 (1),
the Constitution and any other law-
(a)
an
appeal against any decision of a Division as a court of first
instance lies, upon leave having been granted-
(i) if the court
consisted of a single judge, either to the Supreme Court of Appeal or
to a full court of that
Division, depending on the direction issued
in terms of section 17 (6); or
(ii) if the court consisted
of more than one judge, to the Supreme Court of Appeal;”
[19]
It is
apparent from the aforegoing that the scope for appeal under the
Superior Courts Act is
considerably wider than it was under the
Supreme Court Act. Under the
Superior Courts Act any
decision
of a court of first instance is appealable, with leave. What is
clearly apparent from the relief sought in the
Rule 30/30A
application is that a successful appeal against the judgment of
Plasket J would bring an expeditious conclusion to the litigation
relating to the review application. In these circumstances I
consider that the judgment is appealable, provided leave is
obtained. The result is, I think, that there is merit in Mr
Rorke’s
submission that the applicants have misconstrued their remedy.
If the applicants are of the view that Plasket J erred in
the
conclusion to which he came they ought to seek leave to appeal.
[20]
Reverting
to the question raised in the
Rule 6(5)(d)(ii)
, I have not
encountered any decision where a single judge has declared the
judgment of another judge of equal standing to be null
and void and
neither party were able to refer me to any authority where it has
occurred before. There is no precedent for
such relief in our
common law.
[21]
It is not
in dispute that the High Court has inherent jurisdiction to regulate
its own process and to develop the common law (see
section 172 of the
Constitution). A court will however be slow to exercise its
inherent jurisdiction in order to follow procedures
which are not
provided for in the ordinary law of procedure (compare
Krygkor
Pensioenfonds v Smith
[1993] ZASCA 47
;
1993 (3) SA 459
(A) at 469G-J). Moreover I do not consider that it
would serve the interests of justice to permit a practice to arise
where one
judge, sitting alone, sets aside the judgment of another
purely on the basis that it is considered to be wrong. Such a
practise
would plunge the litigation process into chaos and no
finality would then even be reached. For this reason alone I
think
the application should be dismissed.
[22]
Mr
Gcora
,
however, argues that the order made by Plasket J, is purely
interlocutory (compare
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A)) and therefore at common law it is susceptible to
reconsideration at any time (compare
Zondi
v MEC, Traditional and Local Government Affairs and Others
2006 (3) SA 1
(CC) at p. 13 para [30] to p. 14 para [34].
In the circumstances he argues that I am at liberty to set aside the
judgment
of Plasket J.
[23]
In
Zondi
the Constitutional Court concluded at p. 14 para [34] as follows:
“
What
emerges from our pre-constitutional era jurisprudence is that the
general rule that an order once made is unalterable was departed
from
when it was in the interests of justice to do so and where there was
a need to adapt the common law to changing circumstances
and to meet
modern exigencies.”
[24]
Whilst
the court undoubtedly has the competence to alter a purely
interlocutory order in appropriate circumstances it will not do
so
lightly. (See
Bell
v Bell
1908 TS 887
at 894; and
Sandell
and Others v Jacobs and Another
1970 (4) SA 630
(SWA) at 634D-E.)
[25]
Courts
have done so where there have been changed circumstances (compare
Meyer
v Meyer
1948 (1) SA 484
(T) and
Sandell
and Others
supra
).
They have also done so in regulating their own process where the
orders relate purely to procedural matters or to execution
of
judgment (compare
South
Cape Corporation (Pty) Ltd v Engineering Management Service (Pty) Ltd
1977 (3) SA 534
(A) at 550H and
Duncan
NO v Minister of Law and Order
1985 (4) SA 1
(T) at 3A) or where the court had inadvertently omitted
to issue an order which had been fully dealt with in the judgment and
sought
by the parties (compare
West
Rand Estates Limited v New Zealand Insurance Company Limited
1926
AD 173).
[26]
The
present matter is not such a case. It is apparent from the
papers that the applicants seek not only a reconsideration
of the
order but seek also to strike down the reasoning of Plasket J.
Various specific paragraphs in the judgment are attacked
for being
wrong, or not in accordance with law. Simply put the applicants
ask that the judgment be declared null and void
because they consider
that it was incorrectly decided. I do not consider that there
is any precedent in the common law for
such a procedure nor, as
stated earlier, would it be in the interests of justice to extend
such a remedy. In any event, I
consider that the matter was
correctly decided on the merits. The application must therefore
fail on the merits.
Locus
standi
[27]
As
recorded earlier the Public Protector issued an order that the first
respondent give effect to certain specified remedial action.
It
is apparent from the history of the litigation set out earlier that
the first and second applicants litigate herein in their
personal
capacities and on behalf of the third applicant. As set out
earlier the members’ interest in the third applicant
vests in
their respective trustees.
[28]
Following
upon the final order of sequestration issued in December 2013 the
applicants embroiled themselves in a number of civil
actions.
This prompted an application by the trustees of Penny Pinchers Port
Alfred Building Materials Trust to launch an
application against the
present applicants to prevent them from litigating on behalf of third
applicant whilst they are unrehabilitated
insolvents. The
matter came before Chetty J who made the following order:
“
1.
The Second and Third Respondents are hereby interdicted and
restrained from:
1.1
Authorising the initiation, pursuit or defence of any legal
proceedings of any nature by
the first respondent;
1.2
Directly and/or indirectly participating in the management of the
business of the first
respondent in contravention of section
47(1)(b)(i) of the Closed Corporation Act 69 of 1984;
2.
…”
(The
first respondent in the application before Chetty J was the third
applicant in the present application and the second and third
respondents were the first and second applicants in the present
application.) The first and second applicants therefore do
not
have
locus
standi
to litigate on behalf of or in the interest of the third respondent.
[29]
Plasket
J considered their
locus
standi
in view of the provisions of the
Insolvency Act. He
concluded:
“
[18]
The result is that Mr Gcora and Ms Gobo-Gcora have been divested of
their member’s
interests and have no standing to represent the
close corporation. As they are not vested with the capacity to
sue in their
own names in terms of any of the subsections of
s 23
,
they have no standing in their personal capacities.”
(The
reference to
section 23
is reference to
section 23
of the
Insolvency
Act, 24 of 1936
.)
[30]
He
found the first and second applicants to be in breach of para 1.1 of
the order made by Chetty J and accordingly referred the
matter to the
Director Public Prosecutions for consideration.
[31]
A
similar order was made by Roberson J in the matters of
Gobo-Gcora
Construction and Project Management CC, Sipho Gcora and Khuselwa
Gobo-Gcora v Cape Building and Truss Supplies and The
Sheriff of the
High Court
(case
number 2699/2011) on 8 September 2016.
[32]
Before
me Mr
Gcora
argues that the order made by Chetty J was an interim order only.
He is clearly wrong. The order made by Chetty J is,
in my view,
clear and unambiguous and is not made pending the occurrence of any
future event. It persists for as long as
the first and second
respondents are unrehabilitated insolvents. Assuming that it
was intended to be interim Mr
Gcora
was unable to suggest when it had lapsed.
[33]
Mr
Gcora
has further referred me to the judgment in the Supreme Court of
Appeal in
Esorfranki
Pipelines v Mopani District Municipality
(40/13
[2014] ZASCA 21
(28 March 2014)). He contends that on
the strength of this decision he and second applicant do have the
necessary standing
irrespective of
section 23
of the
Insolvency Act.
[34
]
Esorfranki
supra
concerned a review of tender proceedings under the Promotion of
Administrative Justice Act, 3 of 2000 (PAJA). An objection
was
taken to the
locus
standi
of the second appellant,
Cycad
Pipelines (Pty) Ltd
.
The foundation for the objection was that the bid specifications
required a tenderer to have a contractor grading designation
of 8CEPE
which
Cycad
did not have. It was accordingly argued that
Cycad
could not have submitted a tender capable of acceptance and could
therefore not proceed to contest the award in litigation.
[35]
The
Supreme Court of Appeal held that
Cycad
does have
locus
standi
as it sought to vindicate a constitutional right of just
administrative action given expression to in PAJA. It was held
that its standing is therefore to be determined in terms of section
38 of the Constitution which provision is read into PAJA.
(See
Esorfranki
supra
para
[16].) The present application is not brought in terms of the
provisions of PAJA. Although the applicants raise
a number of
underlying constitutional issues the present application is not
directed at enforcing rights under the Bill of Rights
in the
Constitution. Section 38 of the Constitution finds no
application in this matter. I do not consider that the
judgment
in
Esorfranki
advances the applicants’ position.
[36]
In
all the circumstances I consider that Plasket J was correct in
concluding that the applicants had no standing to bring the
application
before him and, by parity of reasoning, they have no
standing to bring the present application. The present
application too
is in breach of paragraph 1.1 of the order made by
Chetty J.
[37]
In
the result, I make the following order:
1.
The application is dismissed with costs.
2.
It is declared that the second applicant is in breach of paragraph
1.1 of the
order of Chetty J dated 27 June 2014 in case number
1970/2014.
3.
The Registrar is directed to forward a copy of this order to the
Director of
Public Prosecutions, Eastern Cape.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicants: Mr Gcora,
in person
For
Respondents: Adv S Rorke, SC instructed by Gray
Moodliar Attorneys, Port Elizabeth