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[2019] ZAECPEHC 27
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Gobo Gcora Construction & Project and Others v Nelson Mandela Bay Municipality and Another ; Nelson Mandela Bay Municipality v Public Protector of the Republic of South Africa and Others (992/16; 1414/2016) [2019] ZAECPEHC 27; [2019] 3 All SA 172 (ECP) (16 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: 992/16
Reportable
Yes
In
the matter between:
GOBO
GCORA CONSTRUCTION &
PROJECT 1
ST
Applicant
MANAGEMENT
CC
SIPHO
GCORA 2
ND
Applicant
KHUSELWA
GOBO-GCORA 3
RD
Applicant
And
NELSON
MANDELA BAY
MUNICIPALITY Respondent
THE
PUBLIC PROTECTOR OF THE
REPUBLIC Interested
Party
OF
SOUTH AFRICA
And
Case
No: 1414/2016
NELSON
MANDELA BAY
MUNICIPALITY Applicant
And
THE
PUBLIC PROTECTOR OF THE REPUBLIC
1
ST
Respondent
OF
SOUTH AFRICA
GOBO
GCORA CONSTRUCTION & PROJECT
2
ND
Respondent
MANAGEMENT
CC
THE
MEMBER OF THE EXECUTIVE COUNCIL
5
TH
Respondent
FOR
HUMAN SETTLEMENTS, EASTERN CAPE
PROVINCIAL
GOVERNMENT
W
K CONSTRUCTION SA (PTY)
LTD
6
TH
Respondent
W
K PIPELINES (PTY)
LTD 7
TH
Respondent
JUDGMENT
VAN
ZYL DJP:
1)
This judgment deals with two applications for the
rescission and setting aside of three judgments of this Court.
The two applications
were heard simultaneously and may conveniently
be dealt with in one judgment.
2)
The judgments which are the subject matter of the
rescission applications were granted in two separate but interrelated
cases under
case numbers 992/2016 and 1414/2016 (collectively
referred to as the “
main application(s)”
and individually as “
the
application to compel”
and “
the
application for review”
respectively).
At the heart of the main applications lies a report of the Public
Protector and a directive made by her that
the Nelson Mandela Bay
Municipality (the Metro) must take specified remedial action, inter
alia, in favour of a close corporation
called Gobo-Gcora Construction
and Project Management CC (the close corporation).
3)
In the first of the two main applications (case
number 992/2016), the close corporation and its members sought to
compel the Metro
to comply with, and to implement the directive of
the Public Protector. The Metro responded by launching an
application (under
case number 1414/2016) for a review of the
decision of the Public Protector. The review application brought
forth two applications
under the same case number. In the first
application the close corporation and its members, in terms of court
rule 30/30A,
asked that the review application be set aside,
alternatively, be struck out. The matter came before Plasket J
who dismissed
the application with costs.
4)
That was followed by a second application before
Eksteen J under the same case number for a declaratory order that the
judgment
of Plasket J be declared null and void and of no force and
effect. Eksteen J similarly dismissed the application.
The
main applications ultimately served before Pickering J who upheld
the review application and set the remedial action ordered in
favour
of the close corporation aside. The result of that order was
that the application of the close corporation to compel
compliance
with the remedial action directed the Public Protector was also
dismissed.
5)
The background to the Public Protector’s
report and the litigation that flowed therefrom was comprehensively
dealt with by
Pickering J in his judgment. I accordingly do not
intend to deal therewith in much detail in this judgment. What
follows
is a summary of what is relevant in the context of the issues
raised in the rescission applications.
6)
The report and the directive issued by the public
protector arose from tenders awarded by the Metro to two companies
for the installation
of services and the construction of houses in
Uitenhage. The two companies, namely “
W
K”
Construction SA (Pty) Ltd and W K
Pipelines (Pty) Ltd (collectively called W K) in turn appointed the
close corporation as a subcontractor
to construct the houses for the
project. The relationship between W K and the close corporation
was created and regulated
by a contract entered into by them.
The Metro was not a party to that agreement.
7)
In the course of time various disputes developed
between the close corporation and W K about the non-payment of
remuneration for
work performed. The close corporation
unsuccessfully attempted to recover monies from W K and the Metro
that it alleged were
owing to it. In December 2013 the estates
of the two members of the close corporation Mr Sipho Gcora and Mrs
Khuselwa Gobo-Gcora,
were sequestrated, and the close corporation was
placed under provisional liquidation in February 2016. The
latter order
was later discharged in July 2016.
8)
The close corporation sought the assistance of
the public protector who conducted an investigation. The
declared focus of
the investigation was “
whether
or not the municipality was responsible for any improper conduct or
maladministration.”
The main
findings of the public protector were
inter
alia
that the tender for the building of the
houses was irregularly awarded, and that the project was improperly
and insufficiently
funded, with the result that the close corporation
“
who is a small business person,
suffered enormous prejudice in that it was left out of pocket after
using its own money to fill
the gap arising from the municipality’s
funding shortfall after the latter wrongly used for internal
purposes, the grant
meant for the top structure construction.”
9)
In her report the public protector found that the
prejudice suffered by the close corporation was “
exacerbated
by the fact that it has taken five years for the municipality to
accept it’s wrongdoing and agree to remedy the
injustice
suffered by the complainant.”
This finding was based on a letter which the acting municipal manager
of the Metro wrote to the public protector in December
2015 wherein
he said that the Metro intended to “
address
the oral administration,”
and to
“
remedy the prejudice suffered by the
complainant”
.
10)
The Metro did not act on its declared intention
in the letter. In the proceedings that followed, the acting
municipal manager
explained this by saying that he commenced his
duties some two weeks before he wrote the letter, and at a time when
he was not
fully informed of the matter. It was only after he
had met with officials from the Human Settlement Directorate in the
Metro
for purposes of discussing the implementation of the remedial
action ordered by the public protector, that it became apparent that
the public protector’s report required further investigation,
and that its lawfulness may have to be challenged in legal
proceedings. According to the acting municipal manager his
letter dated 14 December 2015 did not, and could not constitute
a
waiver of the Metro’s right and entitlement to launch the
proposed proceedings to review the public protector’s report.
11)
In March 2016 the close corporation and its two
members in their personal and representative capacities launched an
application
under case number 992/2016 wherein they sought to compel
the Metro to comply with the remedial action ordered by the public
protector.
The application was heard by Smith J in April 2016,
who 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 date 29 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
intergovernmental relations as enshrined in section 41 of the
Constitution, in pursuing
the review referred to more fully above.
6.
That the costs occasioned in the application thus far be reserved.”
12)
Two weeks later the Metro launched its review
application under case number 1414/2016 as envisaged in paragraph 2
of the agreed
order. The respondents were the public protector,
the three joint liquidators of the close corporation, the MEC of the
Department
of Human Settlements of the Eastern Cape Government, and
the two companies to whom the tenders were awarded.
Subsequently,
and following the discharge of the order placing the
corporation under provisional liquidation, the close corporation was
substituted
for the three liquidators.
13)
In response to the review application, the close
corporation, Mr Gcora and Mrs Gobo-Gcora launched a separate
application under
the same case number as the review application in
which they sought the following relief in terms of Court Rule 30/30
A:
“
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 1414/2016 is in contempt of
the order
dated 12 April 2016 and 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 it 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 ‘costs of
deviation’ as it opted to waste all the time if had to engage
the public
protector.
6.
That the Nelson Mandela Bay Municipality is in contempt of the public
protector.”
14)
As stated, this application was heard by Plasket
J who dismissed it with costs. He found that Mr Gcora and Mrs
Gobo-Gcora
had no standing to represent the close corporation or to
be parties in their personal capacities. This finding was based
on the provisions of
sections 20
(1) (a) and
23
of the
Insolvency Act
24 of 1936
. The learned judge found that the effect of their
sequestration was that they were divested of their estates, including
their
members interest in the close corporation, and that their
capacity to institute legal proceedings in their own names was
limited
by
section 23.
Plasket J further found that Mr Gcora
and Mrs Gobo-Gcora attempt to represent the close corporation in the
proceedings before
him constituted a breach of, and was in contempt
of an order made by Chetty J in Sholto-Douglas N O and Others v
Gobo-Gcora Construction
and Project Management CC and Others
[2014]
Jol 31988
(ECP), that they be interdicted from:
“
1.1
authorising the initiation, pursuit or defence of any legal
proceedings of any nature by the first respondent
[the close
corporation];
1.2
directly an/or indirectly participating in the management of the
business of the first respondent
in contravention of section 47 (1)
(b) (i) of the Close Corporation Act 69 of 1984.”
15)
In his judgment Eksteen J pointed to a similar
order that was made by Roberson J in the matter of Gobo-Gcora
Construction and project
Management CC and Others v Cape Building and
Truss Supplies and Another (unreported case number 2699/2011, ECP,
dated 8 September
2016). The orders were granted on the
application of litigants in civil cases wherein Mr Gcora and Mrs
Gobo-Gcora purported
to litigate on behalf of the close corporation
whilst they were unrehabilitated insolvents.
16)
Plasket J then proceeded to deal with the merits
of the application which was founded on the contention that the Metro
had failed
to comply with the order of Smith J, thereby rendering the
review application an irregular proceeding. The submission was
twofold, firstly, that the review application was not instituted
before the end of April 2016 as directed, and secondly, that the
Metro failed to comply with its obligations in terms of section 41 of
the Constitution as contemplated in paragraph 5 of the order
of Smith
J.
17)
Section 41 is concerned with intergovernmental
relations and disputes. Section 41 (3) provides:
“
An organ of state
involved in an intergovernmental dispute must make every reasonable
effort to settle the dispute by means of mechanisms
and procedures
provided for that purpose, and must exhaust all other remedies before
it approaches a court to resolve the dispute.”
Plasket
J found no merit in the objections raised. The application
papers were issued by the Registrar before the end of April
2016, and
he held that the fact that it was only served on the respondents
thereafter did not render it an irregular proceeding
for want of
compliance with Smith J’s order, as no time was prescribed in
paragraph 4 for the service of the papers.
18)
With regard to the second objection raised,
Plasket J’s finding was in essence that it was not possible for
the Metro, in
fact and in law, to comply with the directive in
paragraph 5 of Smith J’s order. The reason was that when
the Metro
wrote to the public protector to request a meeting with
her, she responded through her attorneys’s that she was
functus
officio
, that she cannot change her decision,
and that in the circumstances no purpose would be served by having a
meeting as requested
by the Metro. The public protector further
stated in her letter, correctly according to Plasket J, that section
41 of the
Constitution could not find application, in that chapter 9
institutions, of which the public protector is one, were not organs
of state as envisaged in section 41. Further, that
section 2
(2) (e) of the
Inter-Governmental Relations Framework Act 13 of 2005
,
which gives effect to
section 41
, provided expressly that it does not
apply to chapter 9 institutions.
19)
Plasket J, as a consequence dismissed the
application with costs. The unsuccessful applicants then
brought an application
before Eksteen J, again under the same case
number, for a declaratory order that the judgment of Plasket J was
null and void and
of no force and effect. It was argued that
the orders of judges Chetty and Plasket and their findings with
regard to the
locus standi
of
Mr Gcora and Mrs Gobo-Gcora to act in their personal capacities, or
in a representative capacity on behalf of the close corporation,
were
interlocutory in nature, and as a result capable of reconsideration.
Eksteen J rejected this argument finding that the
orders were
correctly granted, that they were final in nature and therefore not
capable of variation, and that what the applicants
were in effect
asking for was that the judgment be declared void because they
considered it to have been incorrectly decided.
This meant,
according to Eksteen J, that the appropriate remedy available to them
was to lodge an appeal.
20)
That is what they did. They applied for
leave to appeal which Eksteen J refused. Not satisfied with
this outcome, the
applicants then unsuccessfully sought special leave
to appeal the judgments, first from the Supreme Court of Appeal, and
thereafter
from the Constitutional Court. They also
subsequently sought leave to appeal the earlier judgment of Plasket J
which application
was similarly dismissed.
21)
That then brings me to the judgment of Pickering
J. In accordance with the agreement of the parties and the
order of Smith
J, the learned judge was asked to decide both the
application to compel compliance with the public protector’s
directive
for remedial action, and the Metro’s application to
review and set that directive aside. The two applications were
heard simultaneously and dealt with in one judgment. In the
application to compel, the close corporation and its two members
were
the first, second and third applicants respectively. The Metro
was the respondent and the public protector was cited
as an
“
interested party”
.
The parties in the review application were the entities referred to
in paragraph [12] above.
22)
For the obvious reason that if the review
application was to succeed the application to compel would fall away,
the focus of the
hearing before Pickering J was the lawfulness or
otherwise of the public protector’s report. In that
context the learned
judge considered and dealt with two aspects of
the report, namely the lawfulness of her directive that the Metro
must compensate
the close corporation, and her finding that the award
of the tender to W K was unlawful. At the hearing of the matter
the
public protector conceded that her directive that the close
corporation must be compensated by the Metro could not stand.
Pickering J found that the concession was correctly made. The
reason for that finding was that there existed no contractual
nexus
between the Metro and the close corporation, and that the approach
reflected in the remedial action would force the Metro
to pay money
to the close corporation, a sub-contractor, in circumstances where
the fault, if any, for the sub-contractor not receiving
payment lay
with the principal contractor and not the Metro.
23)
The public protector was accordingly found to
have acted
ultra vires
her powers in section 181(2) of the Constitution, which in turn meant
that the remedial action relating to the close corporation
had to be
set aside. In respect of the lawfulness of the award of the
tenders to W K, Pickering J confirmed the remedial
action ordered by
the public protector and her finding that the award was unlawful.
The basis of the finding was that because
W K carried on the business
of a homebuilder as envisaged in
section 10
of the
Housing Consumers
Protection Measures Act 95 of 1998
it had to be registered as a home
builder in terms of the Act. Its failure to do so accordingly
meant that W K acted in breach
of section 10 (7) of that Act when it
contracted with the close corporation for the construction for the
houses in compliance with
its obligations in terms of tender contract
awarded to it by Metro. Section 10 (7) reads as follows:
“
A home builder
registered in terms of subsection 6(b) shall be obliged, for purposes
of the physical construction of homes, to appoint
a home builder in
terms of subsection 6(a).”
See
(Hubbard v Cool Ideas 1186 CC
[2013] JOL 30478
(SCA) and Cool Ideas
1186 CC v Hubbard and Another
[2014] JOL 31868
(CC).
As
before, the applicants sought leave to appeal the judgment of
Pickering J. When he refused leave they proceeded to seek
special leave from the Supreme Court of Appeal. That
application was also dismissed whereafter they filed an application
for leave to appeal to the Constitutional Court. That
application appears to have been abandoned as the applicants instead
chose to launch the present application to rescind the judgment of
Pickering J.
24)
Can the judgments be rescinded? The power
of a court to set aside its own orders is very limited. The
general
principle is that once a court has duly pronounced a final
judgment or order the matter is
res judicata,
and it has itself no authority to correct, alter or supplement it.
(Herbstein and Van Winsen The Civil Practice of the Supreme
Court of
South Africa 5
th
ed vol 1 at page 926 and the authorities referred to). The
reason is that it is
functus
officio
, that is, “
its
jurisdiction in the case having been fully and finally exercised, its
authority over the subject matter has ceased”
(Firestone
South Africa (Pty) Ltd v Gentiruco
1977 (4) SA 298
(A) at 306 F-G).
The Constitutional Court explained the rationale for this principle
as follows in Zondi v MEC Traditional
and Local Government Affairs
2006 (3) SA 1
(CC) at para [28]:
“
Under common law
the general rule is that a Judge has no authority to amend his or her
own final order. The rationale for
this principle is twofold.
In the first place a Judge who has given a final order is
functus
officio.
Once a Judge has fully
exercised his or her jurisdiction, his or her authority over the
subject matter ceases. The other equally
important
consideration is the public interest in bringing litigation to
finality. The parties must be assured that once
an order of
Court has been made, it is final and they can arrange their affairs
in accordance with that order.”
25)
There are certain exceptions to the general
principle. A court may in certain circumscribed circumstances
set aside its own
judgment. This may in appropriate cases be
achieved by invoking the court’s common law powers, or the
rules of court.
(Colyn v Tiger Food Industries Ltd t/a Meadow
Feed Mills (Cape)
2003 (6) SA 1
(SCA). A judgment entered by
default may be set aside in terms of the common law and rule 31 (2)
(b) where the party in default
can show sufficient cause (De Wet and
Others v Western Bank Ltd). A second exception to the general
rule that a judgment
may not be changed after its pronouncement, is
when the order granted, through some mistake, does not express the
true intention
of the court, or where the order is ambiguous, as the
court inadvertently omitted to include some ancillary relief.
In terms
of the common law the court has the inherent power in such
circumstances to correct its own judgment. (Estate Garlick v
Commissioner
of Inland Revenue
1934 AD 499
and Firestone South Africa
(Pty) Ltd v Gentiruco
1977 (4) SA 298).
26)
In defended cases where judgment has been granted
after evidence had been adduced on the merits of the dispute, and
both parties
have been heard, the test is more stringent and the
judgement is capable of rescission on very limited grounds.
(Childerly Estate
Stores & Standard Bank of SA Ltd
1924 OPD 163
;
De Wet and Others v Western Bank Ltd
1979 (2) SA 1031
(A), and more
recently, Moraitis Investments v Montic Dairy
2017 (5) SA 508
(SCA)). A judgment induced by fraud can be set aside at the
instance of the innocent party, and on the ground, in what has
been
described as “
relatively rare and
exceptional”
cases where the court gave
the judgment in error, if the error is found to be just (
justus
).
As stated in the Childerly judgment, (at 168) this ground is not of
general application, and most of the cases under the
common law
falling in this category are nowadays obsolete and inapplicable.
27)
Rule 42 of the rules of court also provides for
the rescission and variation of an order or judgment. In terms
of rule 42
the High Court may, in addition to any other powers it may
have,
mero moto
or
upon application of any party affected, rescind or vary an order or
judgment “
erroneously sought or
erroneously granted in the absence of any party affected thereby”
.
(rule 42 (1) (a)); or, “
in which
there is an ambiguity or patent error or omission”
(rule 42 (1) (b)), or was “
granted as a
result of a mistake common to the parties.”
(rule 42 (1) (c)). The purpose of the rule is “
to
correct expeditiously an obviously wrong judgment or order.”
(Bakoven Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471 E-F).
28)
It is on the provisions of rule 42, that the
applicants in the present matter chose to base their applications for
rescission.
I shall assume in favour of the applicants that
they are “
affected”
parties as envisaged in the rule (United Watch & Diamond Co v
Disa Hotels
1972 (4) SA 409
(C) at 414 F) and their applications for
rescission were launched timeously (First National Bank of SA Ltd v
Van Rensburg
1994 (1) SA 677
(T) at 681 D – E). At the
hearing of the matter Mr Gcora, who appeared in person on behalf of
the applicants, conceded,
quite correctly in my view, that rule 42
(1) (a) could not find application by reason of the fact that none of
the judgments were
granted in the absence of the applicants as
contemplated therein. In all three of the judgments, the orders
were made on
a contested basis after the matters were set down for
hearing and the parties have filed their affidavits in support or in
opposition
to the relief claimed. The orders were accordingly
based on the evidence placed before the court by the parties by way
of
affidavit, and granted after argument had been advanced by them.
29)
The applicants instead chose to place reliance
upon paragraphs (b) and (c) of rule 42 (1). Mr Gcora’s
submission was
in essence that the orders in the three judgments were
erroneously and mistakenly granted in the sense that the court in
each instance
made a mistake on a matter of law appearing from the
record of the proceedings. In support of this contention the
applicants
formulated several grounds in the affidavits filed in
support of the applications, supported by submissions contained in
extensive
heads of argument and other material that Mr Gcora placed
before me at the hearing of the matter. In his very able and
comprehensive
address he expanded on those submissions. I do
not intend to burden this judgment by verbatim, reciting the grounds
relied
upon in the material placed before me. It is not
necessary to do so. What follows is therefore nothing more than
a
summary of the main grounds raised, and is not intended to be
exhaustive.
30)
In respect of the judgments of judges Plasket and
Eksteen the submissions were that:
(a)
the finding of Pickering J, and concession to that effect made by the
Metro that Mr Gcora
and Mrs Gobo-Gcora should be joined as
respondents in the review application meant that the finding by
Plasket J that they lacked
locus standi
in
the rule 30/30A application, was wrong.
(b)
the order of Smith J was a valid and binding order that had to be
complied with until set
aside. There accordingly existed no
legal basis for ignoring or condoning non-compliance with the order
as the judgment of
Plasket J purported to do.
31)
The errors said to exist in the judgment of
Pickering J were
inter alia
that:
(a)
despite the learned judge stating in his reasons for the judgment
that Mr Gcora and Mrs
Gobo-Gcora were to be joined as respondents in
the review application, he failed to give effect thereto in the order
that he ultimately
made, and the relief granted therein. This
meant that they were never joined as parties despite the fact that
they possessed
the necessary standing.
(b)
the public protector herself considered the standing of the close
corporation at the time
of her investigation of the complaint and
decided that she had the authority to do so.
(c)
the finding that the public protector acted
ultra
vires
her powers when she directed that the
Metro must compensate the close corporation was erroneously made:
(i)
without reference to the Public Protector’s Act 23 of 1994
which Act was
intended to, and gave effect to the provisions in
section 182 (1) of the Constitution for the regulation of the powers
of the office
of the public protector.
(ii)
the public protector’s report envisaged further investigations
to be conducted
which meant that the report was not final, thereby
rendering the review application premature.
(iii)
the unreported judgment relied upon by Pickering J in paragraph [30]
of his judgment was
not a final judgment as it was subject to an
appeal that was pending. It could accordingly not provide
authority for the
finding that the public protector lacked the
authority to order remedial action in favour of the close
corporation.
(iv)
the fact that there was an absence of a contractual relationship
between the Metro and
the close corporation had no relevance to the
authority of the public protector to direct the Metro to pay
compensation.
The reasoning was that the maladministration
investigated by the public protector, and found by her to have
existed, prejudicially
affected the close corporation. Further,
that the public protector was a public functionary who performed her
functions in
terms of legislation outside the sphere of the private
law. The lack of a contractual nexus was therefore irrelevant
to the
performance by her of her functions.
(d)
The judgment was further said to be erroneous in that:
(i)
the finding that remedial action ordered in favour of the close
corporation
was severable from the rest of the public protector’s
report was wrong in that the finding that there was maladministration
could only be given effect to by upholding the report as a whole.
(ii)
the judgment failed give effect to the provisions of the Housing
Consumers Protection
Act 95 of 1998.
(iii)
the effect of the judgment was that there was a failure to grant
appropriate relief in
the face of a finding of the existence of
maladministration, and the improper performance of an administrative
function.
(iv)
the Metro was bound by its undertaking to comply with the remedial
action, which undertaking
stood until set aside.
(v)
the findings do not account for certain concessions made by the
Metro;
(vi)
findings were made based on the incorrect belief that certain facts
existed, such as the existence
of a valid contract between the Metro
and W K, and also that the Metro was entitled to ignore the
public protector’s
remedial action without it first approaching
a court for appropriate relief. The latter ground was based on
the proposition
that the Metro could not simply ignore the public
protector’s report, and that the launching of the review
application did
not relieve it from complying with it.
(vii)
the Metro, in pursuing legal proceedings to review the decision of
the public protector acted
in breach of its obligation as a public
functionary to prevent and act upon maladministration, and further to
act in accordance
with its duty towards its rate payers.
32)
The question of what constitutes an error or a
mistake for purposes of rule 42 must be approached against the
background of the
principle that a judgment is, in the interests of
certainty, final and that the court does not have the general
authority to correct,
alter, or supplement its own judgment.
Rule 42 has been introduced to cater for a mistake, and is for the
most part a restatement
of the common law. It does not,
according to Jones AJA in Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) (at para [6]), purport
to amend or extend the common law which provides the proper context
for its interpretation.
Further, and in view of the fact that
it is a rule of court, its ambit is entirely procedural.
33)
An error as envisaged in rule 42 (1) (b) has been
held to be confined to a “
patent error
or omission”
which has the result that
the judgment or order does not reflect the intention of the judicial
officer pronouncing it. (First
Consolidated Leasing Corporation
Ltd v McMullin
1975 (3) SA 606
(T) at 608, Seatle v Protea Assurance
Co Ltd
1984 (2) SA 537
(C) at 541, and Herbstein v Van Winsen 5
th
Ed Vol 1 at page 934). This is consistent with the common law
powers of a court to clarify or correct its judgment so as
to give
effect to its true intention. (Firestone South Africa (Pty) Ltd
v Gentiruco).
34)
The ambiguous language or the patent error or
omission in the order must be attributable to the court itself, and
relief will only
be granted where the terms of the judgment do not
reflect the true intention of the court (First National Bank of South
Africa
Ltd v Jurgens and Others
1993 (1) SA 245
(W) at 246 F-G).
In Seatle v Protea Assurance Co Ltd
1984 (2) SA 537
(C) at 541 C-D
the court emphasized, quite correctly, that it is irrelevant whether
the reasoning of the court was sound or unsound.
The rule is
not aimed at correcting a judgment that is wrong because the court
arrived at a wrong decision on the facts or the
law.
Accordingly, if the order reflects a considered decision of the
presiding officer, and the intention was to make the
order as it is
formulated in the judgment, a rescission thereof in terms of rule 42
(1) (b) is not possible on the basis that the
reasoning and the
findings which underlie the order were unsound or wrong. The
appropriate remedy in such an instance is
to appeal the judgment.
35)
On a reading of the three judgments it is evident
that they reflect the intention of the court, and were made upon a
consideration
of the evidentiary material placed before it.
What the applicants contended were errors or mistakes in the
judgments are
nothing more than errors or mistakes in the reasoning
of the court, or put differently, that the court made the orders
based on
incorrect findings of fact and/or law. This type of
error is not what rule 42 (1) (b) envisages to be an ambiguity,
patent
error or omission in the order. What the applicants are
seeking is a correction of what they considered to be a wrong
decision
on the merits, and the errors or mistakes the court is said
to have committed, are in effect nothing more than an attempt at an
appeal in the guise of a rescission application. A civil appeal
is an appeal in the strict sense, that is, a rehearing of
the matter
on the merits, but limited to the evidence or material on which the
decision was given, and the only question is whether
the decision was
right or wrong (National Union of Textile Workers v Textile Workers’
Industrial Union (SA);
1988 1 SA 925
(A) at 937 E – F).
36)
The only aspect that requires consideration in
the context of rule 42 (1) (b) is the issue relating to the
locus
standi
of the applicants. The
proposition was that the finding of Pickering J that Mr Gcora and Ms
Gobo-Gcora should be joined as
parties to the review application had
two consequences. The first was that it meant that the finding
of Plasket J that they
lacked the necessary standing in the rule
30/30A application was wrong, and the order was consequently granted
in error, and thereby,
by necessary implication, also the judgment of
Eksteen J. The second consequence was that the failure of
Pickering J to follow
through on his finding that Mr Gcora and Mrs
Gobo-Gcora must be joined as respondents by failing to include an
order to that effect
in the relief which he granted at the conclusion
of the judgment, was on error as envisaged in the rule 42 (1) (b)
that provides
a basis for the setting aside of the judgment.
37)
The submission has no merit. It is apparent
from a reading of the judgment of Plasket J that the lack of
locus
standi
was not the only reason why he
dismissed the application. Further, the submission not only
wrongly conflate the issues arising
in the rule 30/30A and the review
applications with regard to the standing of Mr Gcora and Ms
Gobo-Gcora, it also does not give
effect to the intention of the
learned judge as expressed in his judgment. It conflates the
issues regarding standing raised
in the two applications because
Plasket J was asked to determine the
locus
standi
of Mr Gcora and Mrs Gobo-Gcora as
applicants in the context of (a), proceedings to set aside the review
application in which application
were neither parties, nor did they
ask to be joined as parties thereto, and (b), their status as
unrehabilitated insolvents who
have been divested of their members
interest in the close corporation.
38)
In paragraph [29] of the judgment Pickering J
dealt with the joinder of Mr Gcora and Mrs Gobo-Gcora in the
following manner:
“
In the broader
interest of justice I considered it appropriate that he and Mrs.
Gobo-Gcora be joined as respondent in case no 1414/2016,
despite
their failure to have applied for such joinder at an earlier stage of
the proceedings; that regard therefore be had
to the affidavits
filed by them prior to their joinder; and that Mr. Gcora be
permitted to address me on the various applications
filed by him,
Mrs. Gobo-Gcora and the CC as well as on the merits of the review
application.”
On
a reading of this paragraph it is clear that the issue of joinder was
not determined with reference to the status of Mr Gcora
and Ms
Gobo-Gcora as unrehabilitated insolvents, and/or that they had a
direct and substantial interest in any orders that the
court might
make in the review application. The decision was rather made in
the exercise of the court’s discretionary
power in terms of the
common law to allow someone to be joined as a party on the basis of
convenience, or as Pickering J put it,
in “
the
broader interest of justice.”
(Herbstein v Van Winsen at page 209).
39)
What is further evident from a reading of
paragraph [29] and the remainder of Pickering J’s judgment is
that it was the expressed
intention of the learned judge to join Mr
Gcora and Mrs Gobo-Gcora as respondents, and that the hearing of the
matter proceeded
on that basis with the two of them fully
participating in the proceedings as parties thereto. In
interpreting a judgment,
the intention of the court must be
ascertained primarily from the language of the judgment or order, as
construed according to
the usual well known rules relating to
documents. Importantly, “
As in the
case of any document, the judgment or order and the court’s
reasons for giving it must be read as a whole to ascertain
its
intention.”
(Van Rensburg
NNO v Naidoo NNO
2011 (4) SA 149
(SCA) at para [42] and Administrator
Cape and Another v Ntslwaqela and Others
1990 (1) SA 755
(A) at 715 F
– H).
40)
If there was any error in the judgment of
Pickering J, then it was that the relief granted by the learned judge
in his order did
not give effect to, or reflect his expressed
intention, not only in his reasons, but also in his subsequent
conduct to allow Mr
Gcora and Mrs Gobo-Gcora to participate in the
hearing of the matter. The result of this is that the order may
be corrected
so as to reflect the intention of Pickering J as
envisaged by rule 42 (1) (b), as opposed to rescind the whole of the
judgment
as the applicants are asking me to do. The granting of
an order in terms of rule 42 is discretionary, (Tshvihase Royal
Council
V Tshivhase; Tshivhase v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A)
at 826 J to 863 A), and I do not find it necessary to make any
correction to the order of Pickering J, as there can be no doubt
that
Mr Gcora and Mrs Gobo-Gcora were as a fact joined as parties to the
review application, and no purposes will be served by
such an order.
41)
That leaves rule 42 (1) (c). It
contemplates a common mistake by the parties. A common mistake
occurs when the parties
are
ad idem,
that is, they are of one mind and share the same mistake. There
must further be a causative link between the mistake and
the granting
of the order. This requires that the mistake must “
relate
to and be based on something relevant to the question to be decided
by the court at that time.”
(Tshivhase
Royal Council v Tshivhase: Tshivhase v Tshivhase at 863 A –
D).
42)
Rule 42 (1) (c) clearly cannot find application
to the facts of the present matter. It was not the applicant’s
case
that the judgments were granted as a result of a mistake common
to the parties. As stated, the grounds relied upon for the
relief claimed are that the judgments were wrong because of mistakes
in the court’s reasoning and its findings on the facts
and the
law.
43)
The applicants have all but exhausted their
remedy to appeal the three judgments, and rule 42 cannot in the
circumstances provide
them with a further remedy. Accordingly,
and for the aforegoing reasons, both the applications for rescission
are dismissed
with costs.
__________________
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT
Counsel
for the Applicants: Mr
Gcora (In person)
Counsel
for the Respondents: Adv. Buchanan
SC
Instructed
by:
Gray Moodliar
Inc
Date
Heard:
14 February 2019
Judgment
Delivered:
16
April 2019