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[2019] ZAECPEHC 66
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Zeranza 299 (Pty) Ltd v National Director of Public Prosecutions and Others (538/2019;539/2019) [2019] ZAECPEHC 66 (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case Nos: 538/2019
& 539/2019
In the matter between:
ZERANZA 299 (PTY)
LTD
Applicant
v
NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
First
Respondent
MALCOLM CAMPBELL N.O.
Second
Respondent
NATIONAL
TREASURY
Third
Respondent
Neutral citation
:
Coram
:
Swanepoel AJ
Heard
:
12 September 2019
Judgment
delivered
: 17
September 2019
JUDGMENT
[1]
Before me are two consolidated applications, both arising from a
forfeiture
order which was granted against the applicant. The relief
sought in the two applications are interrelated. In application
538/2019,
the applicant sought interdictory relief that the National
Director of Public Prosecutions (the first respondent) and one
Malcolm
Campbell (an appointed curator and the second respondent), be
restrained and interdicted from proceeding with a public auction of
property situate at 59 Winchester Way, Summerstrand (“
the
property
”). In the application brought by the same
applicant under case number 539/2019, the National Director of Public
Prosecutions
was cited as the first respondent, with National
Treasury – seemingly cited as an interested party –
having delivered
a notice to abide the decision of the court on 27
March 2019. The relief that is sought is as follows:
“
1.
That the forfeiture order granted in case number 3395/18 be
rescinded;
2.
That the applicant be granted leave to enter a late appearance in
terms of section
49 of the Prevention of Organised Crime Act 121 of
1998 (“POCA”);
3.
That the applicant is allowed in terms of section 39 to indicate the
basis of
the defence upon which she (sic) intends to rely in opposing
the forfeiture order or to apply for the exclusion of her interest
from the operation thereof
”.
[2]
Both the interdict application under case number 538/2019 and the
rescission
application under case number 539/2019 are before me. The
interim interdict did result in cancellation of a public auction
which
was scheduled in respect of the property. The costs occasioned
by the cancellation of the public action was reserved on 6 March
2019, together with the costs of the interim interdict itself, which
resulted in an agreed order dated 6 March 2019.
[3]
The applicant seeks to rescind a forfeiture order which was granted
without
opposition on 27 November 2018 under case number 3395/2018
against the property (Winchester Way). This property had been
purchased
on 15 May 2014 for R3 795 000.00 and was
transferred and registered in the applicant’s name on 1 August
2014, without
any mortgage bond having been registered against the
property.
[4]
The applicant seeks leave to enter a late appearance in terms of
section
49 of the Prevention of Organised Crime Act 121 of 1998
(“
POCA
”). No such appearance was timeously entered
and there was also no disclosure of a defence as required by section
39 of POCA.
The basis of the applicant’s defence ought to have
been served and filed by no later than 9 November 1998. The applicant
seeks to have the forfeiture order rescinded in terms of the
provisions of rule 42(1)(a). At the outset, it should be noted that
the basis of the applicant’s defence which had to be disclosed
in terms of section 39(5)(c) of POCA, on which it intends
to rely in
opposing the forfeiture order, namely to disclose its defence on the
merits of that application, hardly received any
attention in the
application before me.
[5]
Instead, the applicant has focused on director Wessels’s own
interpretation
of the jurisdictional requirements that must be
satisfied in order to succeed with an application for rescission in
terms of rule
42(1)(a) of the Uniform Rules of Court. And in this
regard, Ms Bakker asserts that a party need not show good cause. But
this approach
posed a legal catch 22 to the applicant in respect of
the application for leave to oppose the forfeiture order, rendering
the basis
of a defence relevant in terms of section 39(5)(c) of POCA.
[6]
The
forfeiture order which was obtained by the first respondent relates
to alleged unlawful activities in which the applicant and
its sole
director, Andrea Jolene Wessels were involved. The applicant and its
director, together with other accused, presently
face criminal
proceedings at the Port Elizabeth Specialised Commercial Crimes Court
relating to fraud, theft and money laundering
in a total sum in
excess of R11 million. It is alleged that Wessels, the deponent to
the applicant’s affidavits, had utilised
some of these funds
which had been illegally obtained to
inter
alia
acquire a Uitenhage property.
[1]
It is alleged that the further amount in excess of R9 million had
been unlawfully channelled by a former assistant-director in
the
finance department of the Nelson Mandela Metropolitan Municipality,
to a certain close corporation after a submission of a
fictitious
invoice. It is contended that the municipality received no value from
the close corporation concerned. This close corporation
concerned and
its member are yet to face prosecution.
[7]
From the bank account of the aforementioned close corporation, the
State
alleges that funds were transferred to a private company; from
there to a trust account of attorneys and from the trust account
of
attorneys, the funds were utilised to purchase a Summerstrand
property located at 58 Ruben Crescent, Summerstrand, Port Elizabeth.
It is alleged that the Ruben Crescent property in respect of which
transfer and registration had occurred during October 2017,
was also
paid for in cash. No bond is being registered against that property.
A forfeiture order was granted by this court on 30
October 2018 in
respect of the Ruben Crescent, Summerstrand, property. It is alleged
that an amount of R3 795 000.00
was derived from the
aforementioned company’s account and was utilised to purchase
the property to which this application
relates, namely the 59
Winchester Way, Summerstrand property.
[8]
The State contends that neither the applicant nor its sole director,
the
said Wessels, have any members interests or shareholding in
either the company or close corporation concerned and that there was
no lawful
causa
for the transfer of R3 795 000.00
from the account of the aforementioned company concerned, towards the
proceeds of the
property. Consequently, so the State alleges, the
(Winchester Way) property formed part of a money laundering scheme,
constituting
an “
instrumentality of an offence
”,
in turn rendering the property liable to forfeiture to the State.
[9]
The State contends that the property should be sold and that the
proceeds
should then be paid by the appointed
curator
(Campbell) to the parties who suffered the loss. In this instance,
the funds emanated (allegedly) either from Treasury (or the
Department of Finance); the Department of Transport, or from the
Nelson Mandela Bay Municipality. This is the background context
to
the first respondent having first obtained a preservation order, and
thereafter a forfeiture order in terms of POCA.
[10]
It is common cause that neither a preservation order, nor the
forfeiture order pertaining
to the property
in casu
, was
opposed. No entry of appearance in terms of section 39(3) and (5) of
POCA had been delivered at all. The Court accordingly
granted both
orders on an unopposed basis. Wessels contends that she only became
aware of the forfeiture order on 6 February 2019.
She asserts that
her attorney, one Ah Shene-Verdoorn (hereinafter referred to as “
Ah
Shene
”) of Ah Shene Attorneys at 7 Bird Street, Central,
Port Elizabeth did not have authority to have consented to the
granting
of a forfeiture order. Ah Shene’s authority to have
consented to the preservation order is not challenged.
[11]
It is asserted, in paragraph 18 of the interdict application, that
the National Director
of Public Prosecutions (the first respondent)
as well as Ah Shene were under a “
mistaken belief
”
that Ah Shene did have the authority to do so, namely to consent to
the granting of the forfeiture order. It is further
asserted as
follows:
“
Thus the
Honourable Court granting the order was unaware of this serious
mistake that existed at the time of the order
”.
[12]
Wessels further argued that the public auction had to be stayed
because there would allegedly
not have been prejudice for the NDPP.
[13]
The applicant then brought another application, with the heading
“
case number 538 and 539 of 2019
”, which was
served on the State Attorney on 5 June 2019, one day before the
applications were due to be heard by Revelas
J. As a result, the
hearing could not proceed. This application had a founding affidavit
with the description “
in the application by the applicant to
adduce further evidence
”. The import of this application
was clearly aimed at broadening the ambit and scope of the rescission
application. The applicant
had asserted that the circumstances were
“
exceptional
” and somehow sought to contend that
good cause existed for the court to accept a third set of affidavits
in both applications.
The applicant therefore sought to
simultaneously adduce a further supplementary affidavit comprising of
eighteen paragraphs contained
on eight pages,
ex post facto
,
after a forfeiture order had already been granted, without any entry
of appearance having been filed, by way of an affidavit dated
5 June
2019, one day before a scheduled hearing. Clearly, this was a
desperate attempt to bolster the applicant’s weak rescission
application. The concluding paragraph of the proposed affidavit reads
as follows:
“
In the
premises, the applicant humbly request the relief sought in its
notice of motion dated 5 March 2019, to which the contents
of this
affidavit serves to confirm
”.
[14]
On 19 July
2019, the aforementioned application was withdrawn, after an opposing
affidavit was delivered, with the “
wasted
costs
”
being tendered.
[2]
The emphasis
in the opposing papers on the applicant’s and Wessels’s
failure to have disclosed a defence, or at least
a legally valid
causa
for the receipt of R3 795 000.00, no doubt played a
significant role in the withdrawal of the so-called rule 6(5)(e)
application. Having failed to address the detailed factual
allegations, the applicant’s belated attempt to do so by way of
a third set of affidavits, was always ill-conceived. In short, if the
rescission application did not make out a proper case in
respect of
the relief sought in paragraphs 2 and 3 of the notice of motion at
all in the founding papers, a third set of affidavits,
tendered way
out of time, was not going to save the applicant’s bacon.
[15]
In the applicant’s heads of argument in the consolidated matter
before me, counsel
for the applicant describes the application under
case number 538/2019 as “
the urgent application
”
and the application under case number 539/2019 as “
the main
application
”. The urgent application was the interim
interdict application pending the outcome of the rescission
application, whilst
the “
main
” application is the
rescission application. In paragraph 6 of the applicant’s heads
prepared by Adv Bakker, it is unequivocally
asserted that “
the
main application is brought under the provisions of rule 42(1)(a) of
the Rules of Court
”. The heads continue to read that “
Rule
42 caters for mistake. Rule 42(1)(a) generally applies to ex parte
applications or other matters where a party is absent. The
rule
applies when an order was consented to by an attorney without
authority to do so
”.
[16]
It is
inter alia
further asserted that “
the court
considering the rescission is entitled to have regard to facts that
did not appear from the record of proceedings and
of which the court
granting the order was unaware
”. For the last proposition
reliance is placed on the decision of
Stander v Absa Bank Ltd
1997
(4) SA 873
(E)
.
[17]
In paragraph 11 of applicant’s counsel’s heads, reliance
is also placed on
another decision of this division, that of
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E)
at 471. In the
Stander
decision, it was held that
Bakoven
was “
wrongly
decided insofar as it was held that a court, in deciding whether a
judgment was “erroneously granted”, is confined
to the
record of proceedings
”.
[18]
The
applicant’s counsel did not refer the court to the Supreme
Court of Appeal decision in
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007 (6)
SA 87
(SCA)
.
[3]
[19]
In paragraph [24] to [27] of the
Lodhi
decision, Streicher JA,
on behalf of a full bench of the Supreme Court of Appeal, stated as
follows:
“
[24]
I agree that Erasmus J in Bakoven adopted too narrow an
interpretation of the words ‘erroneously
granted’. Where
notice of proceedings to a party is required and judgment is granted
against such party in his absence without
notice of the proceedings
having been given to him such judgment is granted erroneously. That
is so not only if the absence of
proper notice appears from the
record of the proceedings as it exists when judgment is granted but
also if, contrary to what appears
from such record, proper notice of
the proceedings has in fact not been given. That would be the case if
the Sheriff’s return
of service wrongly indicates that the
relevant document has been served as required by the Rules whereas
there has for some or
other reason not been service of the document.
In such a case, the party in whose favour the judgment is given is
not entitled
to judgment because of an error in the proceedings. If,
in these circumstances, judgment is granted in the absence of the
party
concerned the judgment is granted erroneously. See in this
regard Fraind v Nothmann
1991 (3) SA 837
(W) where judgment by
default was granted on the strength of a return of service which
indicated that the summons had been served
at the defendant’s
residential address. In an application for rescission the defendant
alleged that the summons had not been
served on him as the address at
which service had been effected had no longer been his residential
address at the relevant time.
The default judgment was rescinded on
the basis that it had been granted erroneously.
[25]
However, a judgment to which a party is procedurally entitled
cannot be considered to have been granted erroneously by reason of
facts of which the Judge who granted the judgment, as he was entitled
to do, was unaware, as was held ot be the case by Nepgen
J in
Stander
. See in this regard Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) ([2003
2 All SA 113)
in
paras 9-10 in which an application in terms of Rule 42(1)(a) for
rescission of a summary judgment granted in the absence of
the
defendant was refused notwithstanding the fact that it was accepted
that the defendant wanted to defend the application but
did not do so
because the application had not been brought to the attention of his
Bellville attorney.
This Court held that no procedural
irregularity or mistake in respect of the issue of the order had been
committed and that it was
not possible to conclude that the order had
erroneously been sought or had erroneously been granted by the Judge
who granted the
order
.
[26]
Nepgen J found support for his conclusion in Theron NO v United
Democratic Front (Western Cape
Region) and Others
1984 (2) SA 532
(C). In that case an order had been granted against Theron in his
absence after short notice of the application and although no
papers
of any kind had been filed and no papers had been served on him. The
order was nevertheless granted on the basis of an assumption
on the
part of the Judge that Theron had been given sufficient notice and
that he had deliberately decided not to appear at the
hearing of the
application. In the application for rescission Vivier J found, on the
facts placed before him, that these assumptions
were wrong and that
the order had for that reason been granted erroneously. In my view
the judgment cannot be faulted. Regard was
had to evidence external
to the record of proceedings as it existed at the time the order was
granted in order to determine whether
proper notice had not been
given. As a result the UDF was procedurally not entitled to the order
sought when it was granted. The
order was for that reason erroneously
granted.
In Stander the plaintiffs who obtain an order in their
favour were, unlike the UDF in Theron, procedurally entitled to the
order
when it was granted and the fact that it subsequently
transpired that the defendants were not in wilful default cold not
transform
that order, which had validly been obtained, into an
erroneous order
.
[27]
Similarly,
in a case where a plaintiff is procedurally entitled to judgment in
the absence of the defendant the judgment if granted
cannot be said
to have been granted erroneously in the light of a subsequent
disclosed defence
.
A Court which grants a judgment by default like the judgments we are
presently concerned with, does not grant the judgment on
the basis
that the defendant does not have a defence: it grants the judgment on
the basis that the defendant has been notified
of the plaintiff’s
claim as required by the Rules, that the defendant, not having given
notice of an intention to defend,
is not defending the matter and
that the plaintiff is in terms of the Rules entitled to the order
sought.
The
existence or non-existence of a defence on the merits is an
irrelevant consideration and, if subsequently disclosed, cannot
transfer a validly obtained judgment into an erroneous judgment
”.
[4]
[20]
It has therefore been authoritatively held by the Supreme Court of
Appeal that in a case
where a plaintiff is
procedurally entitled
to judgment
in the absence of the defendant, such a judgment
granted cannot be said to have been granted “
erroneously
”
in the light of a subsequently disclosed defence.
[21]
Such a
judgment would have been granted on the basis that the defendant had
been notified of the plaintiff’s claim as required
by the
rules, failed to deliver a notice of intention to defend, and that
the plaintiff was then in terms of the rules entitled
to the order
sought. Importantly, at page 95 F to G of
Lodhi
,
[5]
it was emphasised that “
[T]he
existence or non-existence of a defence on the merits is an
irrelevant consideration and, if subsequently disclosed,
cannot
transform a validly obtained judgment into an erroneous judgment
”.
[22]
In this matter, the court which granted the forfeiture order was
fully justified to have
granted such an order as it did on 27
November 2018. Proper service had been effected on the applicant’s
erstwhile attorneys,
Ah Shene Attorneys, at 7 Bird Street, Central,
Port Elizabeth. The order was not granted erroneously made at all. No
procedural
error whatsoever had occurred.
[23]
Having regard to the
Plascon-Evans
approach applicable in
motion proceedings, Ah Shene in any event torpedoed her erstwhile
client’s case by deposing to an
affidavit in which she rebuts
Wessels’s contentions categorically. In the affidavit of
attorney Ah Shene, she asserts unequivocally
that Wessels, the sole
director of the applicant, had only terminated her firm’s
mandate in relation to criminal proceedings
which had been instituted
against Wessels and the applicant and not in respect of the asset
forfeiture application to which the
rescission application relates.
[24]
Preservation
orders are followed by forfeiture orders. Dr Ndzengu has deposed to
answering affidavits on behalf of the National
Director of Public
Prosecutions. In his affidavit, he asserts that the applicant and
Wessels in particular, did not at any stage
have any
bona
fide
grounds to oppose either the preservation order or the forfeiture
order which was granted in respect of the immovable property.
[6]
It is asserted that attorney Ah Shene had received a mandate not to
oppose either the granting of the preservation order or the
forfeiture order. Ah Shene has, in an confirmatory affidavit,
confirmed all these assertions by Dr Ndzengu.
[25]
Ah Shene states further under oath as an officer of the court, that
the clear instruction
that was given by Wessels to her at the time
when the forfeiture application was applied for, was
not to oppose
same
.
[26]
Paragraphs
21 to 24 of her affidavit
[7]
reads as follows:
“
21.
I deny, as if specifically traversed, any influence that her
instruction to me was only in relation
to the Preservation Order. Her
clear instruction to me was to consent to a Forfeiture Order being
made. In any event, it is impossible
to oppose a Preservation Order.
22.
I deny ever having discussions with Wessels in respect of the
Preservation Order being opposed
only. On 23 October 2018 (i.e. after
the Preservation Order had been granted on 16 October 2018) Wessels
said to me in relation
to the consenting to the Order, that “I
am letting everything go. I want to make right with God (sic)”.
23.
On 24 October 2018, I met with Warren Myburgh (Myburgh), the State
Attorney acting on behalf
of the Respondent and informed him what my
instructions were.
24.
On 25 October 2018, Myburgh wrote to me confirming my advices to him.
This correspondence
is attached to the Applicant’s Founding
Affidavit marked Annexure “AJW3”. The letter of Myburgh,
referred to,
indeed records a discussion between himself and Ah
Shene. This letter reads as follows:
“
I
refer to the above matter and our consultation of 24 October 2018. I
confirm the following:
1.
that my client, the National Director of Public Prosecutions obtained
a Preservation
Order on 16 October 2018 in the Port Elizabeth High
Court;
2.
that your client, Zeranza (Pty) Ltd, will not oppose the granting of
a Forfeiture
Order, to be moved in due course; and
3.
that it will be in order for us to serve the Preservation Order and
Preservation
Application on your offices via the Sheriff of the High
Court.
I trust the above
suffices
”.
[27]
In her affidavit, Ah Shene specifically confirms all the material
assertions made by Dr
Ndzengu and confirmed the correctness of a
letter of Myburgh dated 25 October 2018 (“AJW3” on page
22) recording the
discussion between himself and Ah Shene.
[28]
Ah Shene proceeds further to state in her affidavit that “
[O]n
various occasions towards the end of October 2018, Wessels confirmed
verbally her instructions to me not to oppose the granting
of the
Order
”. At one stage, she even approached Myburgh, on the
instructions of Wessels, seeking authorisation that Wessels and one
Rukaard
Abrahams could continue to occupy the properties at
Winchester Way and 59 Ruben Crescent, Summerstrand until the end of
December
2019. In response to this request, Myburgh suggested that
the court appointed curator had to be approached. Ah Shene makes the
valid point, undermining Wessels’s assertion, that if such an
instruction had been given to her not to consent to the order,
why
would Wessels then have requested her in the first place to have
approached the
curator
to continue to occupy the property
until the end of December 2018?
[29]
In Wessels’s affidavit, she contends that she only obtained a
copy of the papers
in the forfeiture application, as well as the
order, after same had been granted.
[30]
She asserts that on the 6
th
of February 2019, she
contacted Ah Shene “
to express my shock and to enquire about
the situation
”. She states further that she visited Ah
Shene, who had been on sick leave that day, with her son. She asserts
that Ah Shene
had contended at the time that she had “
misunderstood
”
the instructions of Wessels regarding the preservation order and
purportedly apologised. However, Ah Shene’s version
differs
markedly from these allegations. Whilst she admits that she was at
home on the day in question, she contends that Wessels
and Rukaard
had barged into her bedroom while she was lying in bed. She felt
physically afraid. She states, in paragraph 44 of
her affidavit in
the rescission application (record page 69), that “
I deny
having told Wessels that I misunderstood her instructions at my
residence
”.
[31]
In
paragraph 45
[8]
of her
affidavit, she states as follows:
“
45.
After the visit, both Wessels and Rukaard bombarded me with telephone
calls demanding that I admit
to misunderstanding her instructions to
me in relation to the Order. I did not
”.
[32]
Wessels produced an unsigned e-mail from Ah Shene dated 7 February
2019 marked as an annexure
“AJW.SP1”. This e-mail was
attached to a supplementary affidavit of Wessels (record page 30) and
was purportedly addressed
to the applicant’s present attorney
of record, which refers in its heading to the NDPP / Winchester Way /
Zeranza case reads
as follows:
“
The
aforementioned matter refers.
I confirm that a
meeting was held with Mr Warren Myburgh during October 2018 regarding
the aforementioned property.
It has now come to my
attention that I misunderstood my client’s instruction. My
client’s instruction was for my office
to not oppose the
Preservation Application and not to consent to a Forfeiture Oder
(sic).
I trust this will
clarify the situation
”.
[33]
With respect to this particular e-mail, Ah Shene states under oath as
follows (in paragraph
48 of her affidavit, record page 70 of case
number 539/2019):
“
48.
Wessels demanded that I write to her attorneys via e-mail confirming
that I had misunderstood
her instructions. She then left the firm’s
offices but Abrahams stayed behind. I was fearful for my safety and
for Abrahams
to leave. I decided to send the e-mail marked “AJW.SP1”
attached to the Supplementary Affidavit by Wessels 8 March 2019.
The
e-mail was sent with Wessels’s daughter standing over me in an
intimidating manner
”.
[34]
Ah Shene categorically asserts that the assertions of Wessels are
untrue and repeats that
her firm’s mandate had only been
terminated in relation to the criminal proceedings.
[35]
Not only is
the applicant confronted by
Plascon-Evans
,
[9]
but as will be shown below, a case has not been made out establishing
a procedural error of the nature envisaged by rule 42(1)(a)
(in which
regard, see:
National
Pride Trading 452 v Media 24
2010 (6) SA 587
(ECP)
).
[36]
Rule 42(1)(a) reads as follows:
“
42.
Variation and rescission of orders.—
(1)
The court may, in addition to any other powers it may have mero
motu or
upon the application of any party affected, rescind or
vary:
(a)
An order or judgment erroneously
sought or erroneously granted in the absence of any party
affected
thereby;
”.
[37]
The alleged
mistake relates to
aliunde
circumstances of a substantive nature, and not to a procedural error
or oversight as contemplated by rule 42(1)(a). In paragraph
26 of the
founding affidavit,
[10]
the
applicant asserts that the forefeiture order may be rescinded “
under
the provisions of rule 42(1)(a)
”
in that this order was granted erroneously in the absence of the
applicant.
[38]
On these facts, and applying the
Plascon-Evans
rule, it
is clear that the rescission application should fail, and that the
same fate should then befall the interdict application.
[39]
It is equally clear that these fundamental and material factual
disputes were either well-known,
or ought to have been foreseen by
the applicant, prior to the institution of both these applications.
The decision in
Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949 (3) SA 1155
(T)
is an old decision, but is as
relevant today as it was in 1949. Where, at the hearing of an
application, a dispute of fact arises,
the court has a discretion to
either dismiss the application with costs; order oral evidence to be
heard, or order the parties
to go to trial. The applicant’s
counsel now seeks to have the rescission application referred to oral
evidence. The request
should not be acceded to.
[40]
Mr Myburgh is quite correct that the applicant has not made out any
case whatsoever for
the further relief sought in paragraphs 2 and 3
of the notice of motion under case number 539/2019. This was of the
applicant’s
own making, and its defective founding papers could
never be cured by a desperate attempt to introduce a third set of
affidavits,
to somehow
ex post facto
make out a case even post
reply. The substantive and procedural lack of merit in this manoeuvre
fortunately dawned upon the applicant,
resulting in the withdrawal of
such a
rara avis
of an application. The fate of the ancillary
relief was sealed from the outset, given the failure to even raise a
defence at all
in the founding papers.
[41]
I am of the
view that both these applications should be dismissed, not only by
reason of the fact that the applicant should have
realised when
launching the applications that material dispute(s) of fact already
existed, requiring evidence or the use of action
proceedings,
[11]
but because the applications are simply without any merit.
[42]
I am also not at all satisfied that the purported dispute is a
bona
fide
dispute. To the contrary, the lack of candid disclosure of
the perceived defence on the merits (as contemplated by section
39(5)(c)
of POCA) invariably impacts on an assessment of the
questionable
fides
of the deponent Wessels.
[43]
But it is in any event clear from the applicant’s heads of
argument, and from the
formulation of the founding papers in both
applications, that the applicant proceeded from a premise that an
ex
post facto
assertion of an alleged “
misunderstanding
”
between herself and her attorney sufficed to obtain rescission in
terms of rule 42(1)(a). Clearly, the applicant was mistaken.
The
ambit of rule 42(1)(a) applications is misconceived. The
Plascon-Evans
hurdle further poses an insurmountable stumbling
block. Ah Shene denies that there was a misunderstanding. This should
be the end
of the matter, given the nature of motion proceedings.
[44]
Moreover, such an error as alleged by Wessels on tenuous grounds, was
neither a procedural
error, nor a
iustus
or justifiable error.
If anything, it appears to have been an unilateral,
iniustus
error. The respondent(s), especially its representative Myburgh, knew
nothing about any alleged mistake at the time. No knowledge
or causal
contribution can be attributed whatsoever to the DPP. (See generally:
Christie
:
Law of Contract in South Africa
,
Seventh
Edition
, LexisNexis, pages 366 to 375 and the ample authorities
cited). Consent did prevail, as between Myburgh and Ah Shene.
[45]
This aspect would have been relevant if the application had
been brought under the
common law, but it was not so brought. Under
the common law, the courts of Holland were empowered to rescind
judgments obtained
on default of appearance, on sufficient cause
being established. This power was entrusted to the discretion of the
courts. The
discretion extended beyond, and was not limited to, the
grounds provided for in rules 31 and 42(1) and those specifically
mentioned
in
Childerley Estate Stores v Standard Bank of SA Ltd
1924 OPD 163
. See
De Wet & Others v Western Bank Ltd
1979
(2) SA 1031
(AD)
at 1040 – 1042.
[46]
The rescission application was squarely based on rule 42(1)(a) and
was not brought under
the common law (whether in the alternative or
otherwise), which would have required proof of sufficient cause,
which in this case,
would have necessitated a disclosure of a defence
on the merits.
[47]
The dispute was known to have existed prior to the institution of the
proceedings and was
from the outset, incapable of resolution on the
papers. Moreover, some of the authorities on which the
applicant places substantial
reliance, have either been overruled or
criticised by the Supreme Court of Appeal in the decision of
Lodhi
,
which decision was however, not mentioned, which is of concern to
this court.
[48]
Mr Myburgh on behalf of the respondents, emphasises that the
applicant has failed
to disclose any prospects of success on the
merits of opposing the forfeiture order. That submission is relevant
to the ancillary
relief sought in paragraphs 2 and 3 of the notice of
motion, but the primary relief (rescission) required proof that an
erroneous
order or
erroneous
judgment had been
obtained, within the meaning as explained in
Lodhi
. The
applicant has made its bed single: it is a rule 42(1)(a) application.
It must lie in this single bed, which, on the facts,
is not an
accommodating one.
[49]
Mr Myburgh has argued that the rescission application is yet another
attempt to delay the
auction of property acquired from proceeds
which, according to the State, stem from illegal activities. It may
very well be so,
but by reason of my earlier conclusion, I do not
have to make any findings in this regard.
[50]
The application for the rescission of the forfeiture order is
dismissed, with costs. As
a result, the fate of the interdict
application should follow. Insofar as the execution auction was
cancelled as a direct consequence
of the interdict, the wasted costs
occasioned thereby was sought. Such costs were indeed reserved. Adv
Bakker conceded that such
costs should be for the applicant’s
account if the applications are dismissed. I have found that the
applications should
be so dismissed.
[51]
I accordingly make the following order:
(1)
Both applications under case numbers 538/2019 and 539/2019 are
dismissed
with costs.
(2)
The applicant is further liable for the reserved costs of the
interdict
application and for the costs and actual expenditure
incurred in respect of the cancelled public auction pertaining to the
property,
which was scheduled to have taken place on 6 March 2019,
which reserved costs are referred to in the court order which was
granted
by agreement on 6 March 2019.
________________
Swanepoel
AJ
APPEAREANCES
:
FOR
THE APPLICANT: Adv H Bakker, instructed by Greyvensteins
Incorporated
FOR
THE RESPONDENTS:Mr W Myburg, State Attorneys
[1]
In respect of that property, a forfeiture order was granted, despite
opposition by Mageza AJ, on 31 July 2018.
[2]
The notice of
withdrawal is on page 328 of the record under case number
539/2019.
[3]
Only in reply
did applicant’s counsel admit that she “
might
have read the judgment
”,
but did not refer to this Supreme Court of Appeal decision.
[4]
Emphasis
added.
[5]
The
concluding sentence of paragraph [27].
[6]
He may well
be right, but I do not have to make any decision in this regard,
because the applicant has simply not made out a proper case for
rescission in terms of rule 42(1)(a).
[7]
In the
rescission application.
[8]
Also on page
69.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
[10]
Record page 12.
[11]
In which regard,
see
De
Wet v Western Bank
1977 (4) SA 770
(T)
at 776 G.