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[2019] ZAECPEHC 40
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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 40 (2 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: 992/16
REPORTABLE
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 is an application for leave to appeal
against a judgment of this court under case numbers 992/2016 and
1414/2016 (the rescission
judgment). The judgment dealt with
two applications for the rescission and setting aside of three
judgments of this court
delivered under the same case numbers.
Both rescission applications (the applications) were dismissed with
costs.
2)
The background to the applications was
comprehensively dealt with in the judgment and it is not necessary to
say anything further
with regard thereto. The applications were
based on the provisions of Court Rule 42, more specifically Rules
42(1)(b) and
42(1)(c). This Court found that the grounds relied
upon by the applicants in support of the application do not
constitute
an error as envisaged in sub-paragraphs (1)(b) and (c) of
Rule 42. The grounds relied upon were summarised in paragraphs
30 to 31 of the rescission judgment.
3)
It was found that what the applicants contended
were errors or mistakes in the three judgments, was not what Rule
42(1)(b) and (c)
envisaged to constitute an ambiguity, patent error,
omission, or a mistake common to the parties. Instead, what the
applicant’s
based the rescission applications on were nothing
more than errors or mistakes in the reasoning and the findings of the
court that
delivered the three judgments. The applicants
were accordingly seeking a correction of what they considered to have
been wrong decision(s) on the merits, and that their appropriate
remedy in the circumstances was an appeal, a remedy which they
have
already pursued.
4)
In argument Mr Gcoro, who as before, represented
the applicants, focused his address on the judgment of Pickering J in
the application
for review. His submission was that the learned
judge made an error in law, and that it constituted a
iustus
error that was a ground for setting aside of the judgment in terms of
Rule 42 or the common law. Mr Gcoro in particular relied
on a
decision of the
Constitutional Court in
Occupiers, Berea v de Wet NO and Another
2017
(5) SA 346
(CC) at paras [68] to [78].
5)
The error of law relied upon is based on the
contention, in very broad terms, that the finding of Pickering
J that the Public
Prosecutor acted outside her powers when she made
findings with regard to the relationship between the Metro and the
close corporation,
was wrong in law in that: (a) it is
inconsistent with precedent in relation to the rectification of
maladministration; (b)
did not give effect to the mandate of the
public prosecutor; (c) did not give effect to the finding
of invalidity of
the contract between the Metro and WK; and (d) the
setting aside of the remedial action meant that what was found to be
unlawful,
and to constitute maladministration, was allowed to
continue.
6)
The aforementioned finding of Pickering J was
made on the evidence placed before him, and the arguments raised
thereon. It
was in other words a finding made on the merits of
the matter. The correction of such a finding is the function of
a court
of appeal that in the present matter, declined to do so by
refusing the applicants leave to appeal the judgment of Pickering J.
An incorrect finding of the nature contended by the applicants is not
an error as envisaged in Rule 42 or the common law.
It falls
outside the scope of the provisions of Rule 42 on which the
applicants chose to base the rescission application on.
7)
The judgment in
Occupiers,
Berea v de Wet NO and Another
relied upon is
not authority for the applicants’ submission that, on the
assumption that the
ultra vires
finding was incorrect, it constitutes an error providing a basis for
the rescission of the judgment. In that matter there
were two
categories of applicants. The order made against those
applicants who were absent when the order was granted, was
considered
and set aside in terms of Rule 42(1)(a). For the obvious
reasons mentioned in the rescission judgment, sub-paragraph
(a) did
not find application in the present matter and no reliance was as a
result placed thereon. In respect of the four
applicants in
Occupiers, Berea v de Wet NO and Another
who consented to the judgment, the Court found that their lack of
knowledge vitiated consent. Accordingly, the agreement
that
formed the basis of the granting of the consent judgment was
invalid. The reason for this finding is found in the fact
that
in contract a mistake (
iustus
error) may be a good ground for a party to resile from a contract
(Bradfield Christie’s Law of Contract in South Africa 7
th
ed at page 365 and further).
8)
It is accordingly evident that the present matter
must on the facts be distinguished from the judgment in Occupiers,
Berea v De
Wet. The judgments which form the subject matter of
the rescission application were granted on the evidence placed before
the respective Courts and in the presence of the parties. The
judgments were not consent judgments or granted by default.
I have dealt with the scope of those provisions of Rule 42 on which
the applicants based the rescission application on as they
apply in
the circumstances of this matter, and I remain unconvinced that the
grounds on which the applicant rely constitute a mistake
or an error
as envisaged therein. Rule 42 is not a vehicle to re-litigate a
matter that had been dealt with on the merits.
It cannot be
used to revive failed arguments, and does not prevent a second
opportunity to make a stronger case, or to revisit
issues previously
addressed, or to consider new arguments or supporting facts which
were otherwise available at the time of the
hearing of a matter.
9)
The issues raised in the remainder of the grounds
of appeal have been dealt with in the judgment of this Court.
There is however
one matter raised in the grounds of appeal that
requires comment. It is the suggestion that this Court found
that Rule 42
could not find application by reason of the fact that
the applicants have exhausted their appeal remedies. It is
based on
a misreading of the last paragraph of this Court’s
judgment and does not account for the reasoning in the preceding
paragraphs.
The fact that the applicants have unsuccessfully
pursued their appeal remedy does raise the question whether the
refusal of their
application for leave to appeal the judgment of
Pickering J, leaves them any room at all to contend that the finding
of Pickering
J with regards to the authority of the Public Protector
constituted an error of law. However, the issue of a choice of
remedies
and the implications of the exercise of a choice, was not
raised and therefore not addressed. The finding was simply that
Rule 42 did not find application on the basis contended by the
applicants, and could therefore not provide an additional remedy
for
the relief sought by the applicants.
10)
I accordingly conclude that there are no
reasonable prospects that a court of appeal will come to a different
conclusion on any
of the grounds raised. With regard to the
costs of the application for leave to appeal, there was no appearance
for the respondents,
and an appropriate order would be to make no
costs order.
11)
In the result it is ordered that:
(a)
The application for leave to appeal is dismissed.
(b)
There be no order as to costs.
__________________
D
VAN ZYL
DEPUTY
JUDGE PRESIDENT
Counsel
for the Applicants:
Mr S Gcora and Mrs KGobo-Gcora
(In
person)
Counsel
for the Respondents:
No Appearance
Date
Heard:
27
June 2019
Judgment
Delivered: 2 July
2019