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[2024] ZAECMHC 10
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Mangqobe and Others v Mangqobe N.O (3027/2021) [2024] ZAECMHC 10 (23 January 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 3027/2021
In
the matter between:
ANDISIWE
MANGQOBE
1
st
Applicant
CWENGA
MANGQOBE
2
nd
Applicant
VIWE
MANGQOBE
3
rd
Applicant
And
NOMTHANDAZO
PATIENCE MANGQOBE N.O
Respondent
JUDGMENT
JOLWANA J:
Introduction.
[1] In this application
the applicants seek an order for the rescission of a court order
which was granted by agreement between
the parties. Their
intention is to have the merits of the application in respect of the
proceedings leading to the granting
of that court order reopened.
The said court order was taken in opposed motion proceedings in which
both, the then applicant,
who is now the respondent in the rescission
application and the then respondents, who are now the applicants were
represented by
counsel and possibly by their attorneys or legal
representatives from the offices of their respective attorneys of
record, as is
the convention. The order sought to be rescinded
was granted by this Court on 20 October 2022. The proceedings
in respect
of which that order was granted (the main application)
were instituted by the respondent. That matter was opposed by
the
applicants until it was ripe for argument. However, the
applicants experienced some difficulties in paying the fees of their
attorneys of record as a result of which they withdrew as their
attorneys of record in the main application.
The parties.
[2] The three applicants
are siblings and children of the late Mvuyo Goodwin Mangqobe (the
deceased) who died on 18 December 2009
and his second wife, Pearl
Theodora Nomphelo Mangqobe (the second wife) who died on 26 June
2021. I will refer to the parties
as they are in this
application even when reference is made to the main application for
consistency and to avoid any confusion
that may be caused by
reference to the same litigant differently. The first applicant
who is championing this application
also on behalf of the second and
third applicants will be referred to simply as Andisiwe.
The applicants’
case.
[3] In a surprisingly
terse founding affidavit Andisiwe’s account in respect of the
events leading to the granting of the
order sought to be rescinded is
mainly the following. On 19 July 2022 she visited an attorney
known by her friend, Mr Qotoyi
of Mbulelo Qotoyi Attorneys to help
them apply for the postponement of the main application which was
going to be heard on 20 October
2022. The said postponement was
necessitated by the withdrawal of their attorneys of record.
During their consultation
she informed Mr Qotoyi that the matter was
known better by their erstwhile attorney, Mr Mantyi of Mantyi
Attorneys who had previously
represented their mother and had drafted
all the papers in respect of the main application. She
therefore wanted Mr Qotoyi
to just apply for the postponement of the
matter to a future date.
[4] On 21 October 2022
Andisiwe called Mr Qotoyi to find out about the date to which the
matter was postponed on 20 October 2022.
However, she could not
get through to him. She tried again on 24 October 2022 but that
attempt to call Mr Qotoyi was also
unsuccessful.
[5]
On 26 October 2022 the applicants were served with a court order
dated 20 October 2022 in which on reading it, it appeared that
their
counsel, Mr Mhambi, whom they did not even know, had agreed to the
granting of that order which was, as a result taken by
agreement.
This was a shocking development to her as it appeared that their
counsel had, contrary to the postponement instructions
she had given
to their attorney, Mr Qotoyi, consented to the said order instead of
having the matter postponed to a future date.
The reason she
had asked Mr Qotoyi to postpone the matter was so that they could pay
Mr Mantyi’s fees so that he, and not
Mr Qotoyi, could deal with
the matter to finality. For the reasons stated above the
applicants seek an order for the rescission
or variation of the order
dated 20 October 2022 in terms of
r
ule
42(1) of the Uniform Rules of Court.
[1]
In
the alternative, they seek the setting aside of the said court order
in terms of common law.
[6] Andisiwe contends
that the property at the centre of the main application, described as
lot No.5[...]6, Hadini Location in the
district of Libode, was
acquired by the deceased for their mother, the second wife. Her
late sister, Yvonne and her child
Mila were buried there because it
was their home before they got a new site. She was also born
there. It is their property
as they inherited it from their
late mother. She attached tax receipts in respect of what is
referred to therein as the local
tax reflecting the inscriptions
“second wife” and “first wife”. She
contends that the inscription
“second wife” refers to her
late mother and it is evidence of the tax that was paid for the
property in question for
her late mother. She says that in 1981
their current homestead, lot No. 5[...]2 was not yet acquired by
their mother.
The property in question, lot 5[...]6 does not
belong to her father’s estate, the deceased but to her late
mother.
It has a ten
-
year long
lease entered into between her late mother and Messrs Rehman and
Asghar who are running a brickyard business on the property.
That lease is due to expire in August 2028 having been entered into
on 1 September 2018.
[7] She contends that she
and her co-applicants never consented or agreed to the order and
therefore it must be set aside.
She argues that it can be set
aside just like a contract where the other party did not agree to the
terms he signed for as there
would not have been a meeting of the
minds. It was a mistaken belief that they consented to the
order when they never did.
Their attorney, Mr Qotoyi and
counsel, had no authority to consent to that court order being
granted without them having agreed
to it. It was taken without
agreement or consent from them, and they would not have agreed to it
as it would have meant agreeing
to losing their only source of
income. The order was granted in error or without their
authority and the consent to the order
was against their
instructions. In the final analysis she contends that if
consent orders are taken without authority, that
establishes a good
cause for the setting aside of the order so taken.
The respondent’s
case.
[8] The respondent’s
answering affidavit is deposed to by the respondent’s attorney,
Ms Nyathela. She gives a
detailed factual background to how the
order sought to be rescinded got to be taken by agreement. That
factual background
is the following. The main application
papers were issued on 01 July 2021 (presumably on an urgent basis)
and an order was
granted on the same day with a return date.
The notice to oppose, the notice of anticipation and the applicants’
answering
affidavit were filed on 9 July 2021 which led to the said
order being reconsidered on 23 July 2021. The replying
affidavit
was filed on 5 August 2021. On 7 September 2021 the
rule
nisi
was extended to 28 September 2021. On 28
September 2021 the matter was postponed to 9 November 2021 with
stipulated time
frames for the filing of the parties’
respective heads of argument. On 9 November 2021 the matter was
postponed to
16 November 2021 and on 16 November 2021 the matter was
again postponed to 22 April 2022 for argument with the rule
nisi
being extended on each occasion.
[9] On the date of the
hearing being the 22 April 2022 the applicants’ current
attorneys of record who were the applicants’
attorneys even
then, Mantyi Attorneys withdrew as the applicants’ attorneys of
record. That withdrawal resulted in
the matter being postponed
to the 20 October 2022 for hearing with the rule
nisi
being
extended accordingly. The respondent’s attorneys
instructed sheriff to serve a notice of set down, notifying
the
applicants that the main application would be heard on 20 October
2022. The court order dated 22 April 2022 postponing
the matter
to the 20 October 2022 was simultaneously served on the applicants by
the sheriff on 22 June 2022. On the eve
of the hearing of the
main application which was the 19 October 2022 Mbulelo Qotoyi
Attorneys served the respondent’s attorneys
with their notice
of acting on behalf of the applicants.
[10] On 20 October 2022,
just before the hearing of the matter commenced, counsel for the
applicants, Mr Mhambi, indicated to Mr
Mapekula, counsel for the
respondent, that he intended to apply for the postponement of the
matter to a future date. Mr Mapekula
indicated that his
instructions were to oppose any contemplated application for
postponement and that the matter should proceed.
He had even
already prepared comprehensive heads of argument in opposition to any
contemplated application for postponement which
were handed to Mr
Mhambi. Furthermore, there was no substantive application for
the intended postponement application.
When the matter was
called the presiding judge was not prepared to entertain the
postponement application, absent a substantive
application. Mr
Mhambi then applied for the matter to stand down. The matter
was indeed stood down by the court.
[11] While the matter was
standing down Mr Mhambi made numerous calls, presumably to the
attorney of record for the applicants,
Mr Qotoyi. After some
time, he advised the respondent’s legal representatives that
his instructions were to settle
the matter. A draft order was
prepared and went through the process of correction until there was
agreement on it with Mr
Mhambi being happy with the final version
thereof. That is the draft order that was handed up to the
court which reflected
that it was being taken by agreement between
the parties. Therefore, the court order dated 20 October 2022
was taken by agreement
between the parties with both parties being
legally represented by their respective counsel.
[12] Ms Nyathela further
makes the following contentions. Mr Mantyi, the applicants’
current attorney of record was
aware that this matter was set down
for hearing on 22 April 2022 when he decided to withdraw as the
applicants’ attorney
of record on the date of the hearing.
His last-minute withdrawal was not done in accordance with the
rules. From the
22 June 2022 when the applicants were served
with the court order dated 22 April 2022 postponing the matter they
became aware that
the main application would be heard on 20 October
2022. They were also served with a notice of set down
indicating that the
matter was being set down for hearing on 20
October 2022. Between Mr Mantyi’s last minute withdrawal
on 22 April 2022
and the 20 October 2022, the applicants could have
prepared for the hearing. They did not do so. Having been
made aware
of the impending hearing date, the applicants did not file
a substantive application for postponement if they genuinely desired,
on good grounds, to have the matter postponed.
[13] In addition to all
the above, the applicants’ counsel agreed to the order being
taken by agreement between the parties.
That resulted in the
court order that they now want to have rescinded. She further
contends that on the applicants’
own showing, their attorneys,
Mbulelo Qotoyi Attorneys, were instructed as far back as the 19 July
2022 to apply for the postponement
of the matter from the 20 October
2022 to a future date. However, they only filed their notice of
acting on 19 October 2022
which was the day before the matter was to
be heard on 20 October 2022. There is no explanation from
Mbulelo Qotoyi Attorneys
about how it came to be that they did
nothing from the 19 July 2022 when they were given instructions and
only filed their notice
of acting on 19 October 2022. This is
the same thing that Mr Mantyi did on 22 April 2022 who, a few minutes
before the matter
was to be heard, withdrew as the applicants’
attorney of record. This has not been explained by the
applicants or Mr
Mantyi who has now resurfaced as the current
attorney of record for the applicants.
[14] It is further
contended that the applicants say that they instructed Mr Qotoyi on
19 July 2022 to assist them in getting the
matter postponed from the
20 October 2022 to a later date. There is no explanation by the
applicants or Mr Qotoyi why a substantive
application for
postponement was not prepared between the 19 July 2022 and the date
of the hearing. It is similarly not explained
why three months
before the hearing date the applicants would be instructing Mr Qotoyi
to apply for the postponement of the matter
instead of preparing for
the hearing. Mr Qotoyi only served his notice of acting in the
afternoon on 19 October 2022 despite,
on applicants’ own
version, having been instructed to deal with the matter or apply for
its postponement on 19 July 2022.
This is also not explained.
[15] Mr Mantyi who had
initially withdrawn as an attorney of record for the applicants,
issued the rescission application and served
it upon the respondent’s
attorneys of record on 02 November 2022 effectively getting back on
board as the applicants’
attorney of record shortly after the
20 October 2022. In this regard Ms Nyathela contends that these
changes in legal representation
were themselves suspicious.
When Mr Mantyi seemingly got back on board, Mbulelo Qotoyi Attorneys
had not filed a notice of
withdrawal as the applicants’
attorneys of record.
[16] In dealing with and
responding directly to the founding affidavit, Ms Nyathela asserted
that Andisiwe who deposed to the founding
affidavit has no knowledge
of what happened in court on 20 October 2022. In the absence of
a confirmatory affidavit from
Mr Mhambi who was present in court and
personally dealt with the matter, her evidence was hearsay.
Furthermore, there was
no confirmatory affidavit from Mr Qotoyi who
would have given instructions to Mr Mhambi concerning the order being
taken by agreement.
There was also no confirmatory affidavit
from Mr Mantyi himself. Therefore, anything said about them by
Andisiwe was all
hearsay.
[17] It is further
contended that this application does not meet the requirements of a
rescission, a variation application in terms
of in
r
ule
42(1) or a rescission application in terms of the common law.
This is so because there is no procedural error, irregularity
or
legal error relied upon to show that the respondent was not entitled
to that order. The applicants are not even raising
an issue
relating to the wording or even the contents of the order which
requires its variation or amendment.
[18] The respondent filed
a confirmatory affidavit in which she confirms that the applicants’
mother was indeed the deceased’s
second wife. She
contends that the estate of the second wife is not the subject of
these proceedings as the property never
belonged to her. It
belongs to herself. The respondent refers to the main
application in which she suggests that in
that application she gave
the following background. She got married to the deceased on 14
January 1965 at Mthatha.
In 1974 the deceased asked for another
piece of land from the local chief for business purposes. The
deceased was awarded
the property in issue being site No.5[...]6,
Hadini Location, Ngolo Administrative Area in Libode. The
deceased used this
property for business ventures like his
agricultural activities, and agricultural equipment which he used to
generate income.
The deceased died on 18 December 2009.
[19] It was after the
deceased’s death that the applicants and their mother started
claiming ownership of the property saying
that it belonged to their
mother. Because of the dispute relating to the ownership of the
property, she referred the dispute
to the local chief for his
determination. The chief called her and her children, the
applicants, and their mother to a meeting
at his place on a date she
cannot remember in 2010. All of them attended that meeting at
the chief’s place. The
second wife and her children who
are the applicants, the respondent and her children, the chief and
his advisors were in attendance.
The matter was discussed
pursuant to which the chief found in her favour. The chief
thereupon ruled that he was awarding
that site to her and that she
should pay R750.00 which she did. The chief wrote a letter in
confirmation of his determination
that the site was awarded to the
respondent. That determination has never been challenged or set
aside in any form and therefore
remains extant.
[20] The chief’s
letter is stamped with a rubber stamp reflecting chief M. Ndamase and
is addressed to whom it may concern
reads:
“
This
serves to confirm that Mvuyo Goodwill Mangqobe ID 3[….]passed
away on 18 December 2009 was allocated a site at Zitatele
A/A
(Hadini) (Sun-city) Libode. Now the site has been allocated to
his wife Mangqobe Nomthandazo Patience ID No. 4[…],
under the
jurisdiction of the chief Ndamase Mongezi ID No. 7[…].
The imbuso has been paid
R750.00.”
[21] The respondent
contends that she is therefore the owner of the said property.
The respondent further contends that anything
said about Mr Mantyi,
Mr Qotoyi, Mr Mhambi and the first applicant’s unnamed friend
is all hearsay in the absence of confirmatory
affidavits from them.
Therefore, the whole application is based on hearsay evidence as both
Mr Qotoyi and applicants’
counsel, Mr Mhambi have not filed any
affidavit explaining what happened in court leading to the granting
of the order by agreement.
The applicants would have known that
if the application for postponement was not granted the respondent
would be entitled to apply
for the final relief. Therefore, the
main application was, in any event going to proceed in the event of
the application
for postponement being refused.
[22] Therefore, the
applicants have not made out a case for the relief sought, the
granting of the application for rescission.
The order sought to
be rescinded which, if the application is granted, will inevitably
lead to the re-opening of the merits of
the case in circumstances in
which the order was taken by agreement. The applicants now want
to re-open the case and are
raising new defences that were not raised
in the main application. The property was never acquired for
the applicants’
mother by the deceased. Even if it was
the case that the property was acquired for their mother, which is
denied, the applicants
lacked
locus standi
as only the
executor or executrix of their late mother’s estate would have
locus standi
to institute this application in that event.
[23] The applicants’
assertion that it was a mistaken belief that they consented to the
order and that therefore the order
was granted without their
authority is bad in law. The order was not granted by mistake
or error or without authority.
The applicants are, in any
event, not entitled to rely on the mistakes of their own legal
representatives. When the order
was granted, it was not granted
in default of the applicants as they were represented by counsel in
court. Therefore, they
have failed to show good cause for the
granting of the rescission application and the order having been
taken by agreement, is
not rescindable. Finally, the respondent
contends that the interests of justice require that the relief sought
by the applicants
be dismissed with costs on an attorney and client
scale.
The applicants’
replying affidavit.
[24] The applicants’
replying affidavit does not add much to what the applicants say in
the founding affidavit other than
maintaining their main contention
that they never agreed to the order being taken by agreement.
They further allege that
Mr Mhambi was forced to agree to the order.
The basis on which the applicants make the contention that their
counsel, Mr
Mhambi was forced to agree to the order is not explained
in the replying affidavit. Andisiwe further says that she was
never
called by Mr Qotoyi or Mr Mhambi and that she never instructed
either of them to take that order by consent.
[25] She also says that
it was a mistake on her part that Mr Qotoyi was instructed on 19 July
2022. He was, instead, instructed
on 19 October 2022.
Andisiwe concludes by saying that it was not necessary to get
confirmatory affidavits from Mr Qotoyi,
Mr Mhambi and their now
current attorney of record, Mr Mantyi. Finally, the applicants
deny that they attended any meeting
with the chief and further
contend that if such a meeting did take place it was illegal as a
chief is not entitled to distribute
an estate.
The analysis.
[26] I consider it
necessary to give a retrospection of some of the events leading up to
the date on which the court order was taken
even at the risk of being
repetitious, as I may, for clarity regrettably have to do so a few
times hereinbelow. The respondent’s
attorney has deposed
to the answering affidavit and to the extent necessary, there is a
confirmatory affidavit deposed to by the
respondent. In her
affidavit Ms Nyathela as would have been observed above gives some
revealing details about what happened
during the months preceding the
20 October 2022 and on that date.
[27]
The said details include the fact that Mr Mantyi was, throughout, the
applicants’ attorney of record. On 22 April
2022 which
was the date for the hearing of the main application, Mr Mantyi
withdrew from further representing the applicants.
He did so
unprocedurally and contrary to the provisions of
r
ule
16
[2]
of the Uniform Rules of
Court. It is worth emphasizing that the only person who could
explain why he withdrew just before
the matter was called is Mr
Mantyi himself. However, he has not taken the court into his
confidence in this regard. Rule
16 has been amplified by
r
ule
7 of the Joint Rules of Practice, for the High Courts of the Eastern
Cape Province (the Joint Rules) as follows:
“
7
Withdrawal of Attorneys
(a)
Uniform Rule 16(4)(a) provides that an attorney
ceasing to act for a party must forthwith give notice thereof to such
party, to
the registrar
,
and to all other parties. An attorney so
ceasing to act should state in writing exactly what steps he has
taken to advise
his former client of that fact, and whether he can
say that his former client has received such notification and is
aware of his
rights and obligations and of the possible consequences
if he fails further to comply with the requirements of the rule.
(b)
Where a date of hearing has already been allocated
at the time the attorney withdraws, the notice of withdrawal should
state whether
and in what manner the client has been informed of the
date of hearing.
(c)
As
an officer of the court, it is a matter of an attorney’s duty
not to withdraw at so late a stage that a matter which has
been set
down for hearing cannot proceed on the allocated date.
[3]
In the
event of the late withdrawal of an attorney occasioning a
postponement, the judge may require the attorney concerned to explain
on affidavit why he or she did not withdraw earlier and, if no
satisfactory explanation is forthcoming, the attorney may be ordered
to pay any wasted costs occasioned by the late withdrawal
de
bonis propriis
.”
[28] Mr Mantyi withdrew
as the applicants’ attorney of record on the date scheduled for
the hearing of the matter on 22 April
2022. This was done in
total disregard of the provisions of
r
ule
7 of the Joint Rules. As a result, the court was forced to
postpone the matter in the interests of justice. The
respondent’s attorneys caused a notice of set down to be served
upon the applicants setting the matter down for the 20 October
2022
together with the court order dated 22 April 2022 postponing the
matter to the 20 October 2022. The service thereof
was effected
on the applicants on 22 June 2022. Therefore, from that date
the applicants were aware that the matter would
be heard on 20
October 2022. However, nothing happened until the 19 October
2022 when Mbulelo Qotoyi Attorneys filed a notice
of acting as the
applicants’ attorneys of record.
[29] In the founding
affidavit Andisiwe says that she instructed Mr Qotoyi on 19 July
2022. However, in her replying affidavit
there is an attempt to
change that date calling it a typographical error. She says
that she actually instructed Mr Qotoyi
on 19 October 2022 which was
the day before the matter was to be heard. How this
typographical error occurred is however
not explained. Mr
Qotoyi has also not filed a confirmatory affidavit confirming the
date on which he was instructed in the
matter and what his mandate
was.
[30] Absent an
explanation about how that error occurred, the conclusion that this
change in dates is done possibly disingenuously
in an attempt to deal
with the respondent’s assertion that it has not been explained
why since the service of the notice
of set down and the court order
postponing the matter to the 20 October 2022, no substantive
application was made for the desired
postponement becomes at least
plausible. It bears remembering that the applicants’ case
in the founding affidavit is
that she had instructed Mr Qotoyi on 19
July 2022 to get the matter further postponed from the 20 October
2022 to a future date.
Mr Qotoyi’s notice of acting was
served at 14:48 on respondent’s attorneys on 19 October 2022.
However, there
is no attempt to explain why from the 22 June 2022
when they were served with the notice of set down and the court order
issued
on 22 April 2022 postponing the matter to the 20 October 2022,
they did nothing at all about the impending date some four months
ahead of time.
[31] With no substantive
application for postponement having been filed or prepared, counsel
for the applicants appeared in court
on 20 October 2022 and sought to
have the matter postponed. Even if it were to be accepted that
Andisiwe instructed Mr Qotoyi
on 19 October 2022, and not on 19 July
2022 it remains shrouded in obscurity why even at that late hour, a
substantive application
for postponement was not prepared and filed
or made ready to be handed up even in court during the hearing of the
matter.
When it became clear to counsel for the applicants that
the postponement application without a substantive application was
not
going to be entertained by the court, he asked for the matter to
stand down. The court granted this indulgence.
Ms
Nyathela’s account is that while the matter was standing down,
counsel for the applicants, Mr Mhambi made numerous calls.
I
can only assume that he was making the calls to his instructing
attorney, Mr Qotoyi. Eventually, Mr Mhambi advised the respondent’s
legal representatives that his instructions were to settle the
matter. That led to the preparation of a draft order.
The
draft order went through various corrections until Mr Mhambi was
happy with it. It was then presented to the court in
terms of
which the order was being taken by agreement. This version is
not gainsaid at all.
[32] In making out their
case that the order was not taken by agreement the applicants said
nothing about what transpired in court.
This is despite the
fact that on the day the court order was taken, they were legally
represented by a firm of attorneys.
Furthermore, counsel had
been secured to attend court and did in fact attend court and placed
himself on record on their behalf.
The respondent’s
attorney’s account of what transpired in court is stated from
paragraphs 9.10 to 9.14 of the answering
affidavit in quite some
detail. Andisiwe curtly responds to it as follows:
“
AD
PARAGRAPH 9.10 – 9.14
I am not aware of the
contents of these paragraphs. I must state categorically that I
was never called either by Mr Qotoyi
or Mr Mhambi. Mr Qotoyi
never informed me of any problems and I could not get hold of him on
his cell that day and the days
that followed until I was served with
a court order which is the subject of these proceedings.”
[33] Andisiwe’s
direct answer to all the allegations about what took place in court
is a very short sentence of exactly ten
words, “
I am not
aware of the contents of these paragraphs
”. Very
surprisingly, there are no affidavits whatsoever from Mr Qotoyi and
Mr Mhambi giving the applicants’ version
of what happened in
court as they were not personally present. Assuming that for
some reason, it did not occur to the applicants
to obtain affidavit
s
from Mr Qotoyi and Mr Mhambi, when the issue was raised very strongly
in the answering affidavit, I find it bewildering that that
issue is
not addressed in the replying affidavit. There is no
explanation for the failure to file these affidavits from the
applicants’ legal representatives who dealt with the matter on
that day. The importance of the applicants’ response
to
the allegations about what transpired in court is that they do not
deny Ms Nyathela’s allegations. They are merely
saying
that they are not aware of them.
[34] Understood in its
proper context, the applicants’ explicit attitude is simply
this. Because the applicants say
that Mr Qotoyi and Mr Mhambi
had no mandate to settle the matter Andisiwe’s word in that
regard suffices. It is not
even a case of Mr Qotoyi not being
available or Mr Mhambi or both not being available. I must say
that I am dumbfounded by
this approach. Were it to be accepted,
it would make a dangerous and slippery precedent which would make all
the court orders
which are taken by consent daily in our courts
across the country by the litigants’ legal representatives
vulnerable.
Such orders would clearly be subject to the whims
of the litigants who could change their minds if they decide to do so
or even
change their legal representatives to achieve the desired
outcome. On the applicants’ approach courts would just
have
to accept that. I do not think that that proposition is
sound nor is it the correct legal position. It is also contrary
to our jurisprudence on consent orders as I understand it.
[35] If Mr Mhambi had
been asked one can only assume that he would have explained what
happened in court on that day. He probably
would have explained
what he did after it became clear that his instructions to postpone
the matter without a substantive application
was not going to be
entertained by the court. Did he call his instructing attorney?
If he did, what did his instructing attorney
say to him regarding how
the matter should be dealt with? Did he execute those
instructions? Under what circumstances
did he advise the court
that he had instructions to settle the matter. Who gave him
those instructions? Did he make
an error of judgment, or did he
understand his instructions genuinely to be that he should take an
order by consent? If it
was the case that he had misunderstood
his instructions, under what circumstances did any alleged confusion
occur? There
are so many possibilities and questions which only
Mr Mhambi would have been able to answer.
[36] The applicants
elected not to get any information from Mr Mhambi. I am simply
unable to understand how the application
to rescind an order of court
which was taken by consent is even conceptually plausible as a sound
proposition without an explanation
from the person who took the
order. This is because the person who evidently agreed to that
order, Mr Mhambi and informed
the court on behalf of the applicants
that he had such instructions has not been asked for an explanation
by the applicants.
I cannot think of any reason why it would be
unconscionable for Mr Mhambi to take instructions even telephonically
to settle the
matter in the manner in which he evidently did.
[37]
Concerning a legal practitioner conscionably settling a matter on
behalf of his client, as Mr Mhambi did in this case, something
similar even though with a totally different factual matrix, happened
in
Mathimba
[4]
in this very Division where Lowe J writing for the full court said:
“
I
can think of no reason why it would be unconscionable for the parties
to negotiate on the amount claimed, agree on the amount
to be paid,
as well as costs, and decide to exclude interest in the agreement.
If, during
the
negotiations,
Mr West had intended to raise interest, he would have done so and
ensured that it formed part of the agreement.”
[38] What is
unconscionable is Mr Mhambi, without instructions from his
instructing attorney, Mr Qotoyi, telling the court that
his
instructions were to settle the matter and going ahead to do so when
no such instructions were given to him, as the applicants
want me to
accept. Mr Mhambi had a number of options, most important of
which would be to play open cards with the court
by candidly telling
the court that during the time that the matter was standing down he
had tried to call his instructing attorney
but was unsuccessful - if
that was the case. The extreme of, for no apparent reason, just
misleading the court by telling
the court that he had been instructed
to settle the matter when that did not happen is preposterous.
Is an order taken by
consent rescindable?
[39]
It is indeed so that an order taken by agreement can be rescinded or
set aside. There is no doubt about that. However,
in my
view, that should only be done in the clearest of cases where it is
manifestly in the interests of justice to do so based
on the facts of
that particular matter. Were that not to be the case our
judicial system and the principle of finality would
be constantly
thrown into unimaginable state of chaos and confusion with the courts
themselves being used at times for nefarious
reasons of subverting
justice itself. This could include the setting aside of an
order taken by consent being sought on the
basis of, for instance,
one of the litigants having second thoughts about a settlement
consequent upon having been given what he
or she believes is a better
legal advice or his or her circumstances having changed. This
is clearly untenable and has to
be prevented at all costs by ensuring
that a good factual and legal basis is set out before a court decides
to set aside any court
order, especially one taken by agreement.
It surely cannot be there for the mere asking. Our courts have
recognised
the profoundness of this principle and have been very
consistent in upholding it. Not so long ago the Supreme Court
of Appeal
had occasion to re-emphasize these very fundamental
principles of our law in
Moraitis
[5]
.
[40] In that matter
Wallis JA expressed himself as follows:
“
The
approach differs depending on whether the judgment is a default
judgment or one given in the course of contested proceedings.
In the former case it may be rescinded in terms of either rule
31(2)(
b
)
or rule 42 of the Uniform Rules, or under the common law on good
cause shown. In contested proceedings the test is more
stringent. A judgment can be rescinded at the instance of an
innocent party if it were induced by fraud on the part of the
successful litigant or fraud to which the successful litigant was
party. As the cases show, it is only where the fraud –
usually in the form of perjured evidence or concealed documents –
can be brought home to the successful party that
restitutio
in integrum
is
granted and the judgment is set aside. The mere fact that a
wrong judgment has been given on the basis of perjured evidence
is
not sufficient basis for setting aside the judgment. That is a
clear indication that, once a judgment has been given,
it is not
lightly set aside, and De Villiers JA said as much in
Schierhout
.
Apart
from fraud the only other basis recognised in our case law as
empowering a court to set aside its own order is justus error.
In
Childerley
,
where this was discussed in detail, De Villiers JP said that
‘non-fraudulent misrepresentation is not a ground for setting
aside a judgment’ and that its only relevance might be to
explain how an alleged error came about. Although a
non-fraudulent
misrepresentation, if material, might provide a ground
for avoiding a contract, it does not provide a ground for rescission
of
a judgment. The scope for error as a ground for vitiating a
contract is narrow and the position is the same in regard to setting
aside a court order. Cases of justus error were said to be
‘relatively rare and exceptional’.
Childerley
was
considered and discussed by this court in
De
Wet
without
any suggestion that the principles it laid down were incorrect.
The same issue arose
indirectly before this court in
Gollach & Gomperts
.
I say indirectly because the case was not concerned with a judgment,
but with the avoidance of an agreement of compromise
(a
transactio
)
on the basis of non-disclosure. The judgment repays careful
consideration. The general principles were stated as follows:
‘
A
transactio
,
whether extra-judicial or embodied in an order of Court, has the
effect of
res
judicata
.
… It is obvious that, like any other contract (and like any
order of Court), a
transactio
may
be set aside on the ground that it was fraudulently obtained.
There is authority to the effect that it may also
be set aside on the
ground of mistake, where the error is
justus
.’
The judgment then
referred to
Childerley
and the refusal to accept that a
judgment could be set aside on the grounds of justus error induced by
a non-fraudulent misrepresentation.
It continued as follows:
‘
The
matter then before the Court was an action to set aside a judgment
delivered in a defended case. Concerning judgment entered
by
consent, the learned Judge–President accepted that they could,
“under certain circumstances”, be set aside
“on the
ground of just error”. It appears to me that a
transactio
is
most closely equivalent to a consent judgment …
Such
a judgment could be successfully attacked on the very grounds which
would justify rescission of the agreement to consent to
judgment
.
I am not aware of any reason why
justus
error
should
not be a good ground for setting aside such a consent judgment, and
therefore also an agreement of compromise, provided that
such error
vitiated true consent and did not merely relate to motive or to the
merits of a dispute which it was the very purpose
of the parties to
compromise.’
Is Rule 42 applicable?
[41] As indicated
earlier, the applicants rely on
r
ule 42
of the Uniform Rules of Court or the common law. It bears
emphasizing that there are specific grounds on which a court
may
rescind or vary an order or judgment in terms of
r
ule
42. To the extent that the applicants rely on this rule there
are a number of problems in that reliance as I demonstrate
below.
Chief among those is the fact that
r
ule
42(1)(
a
) does not feature at
all. This is because on the day the order was granted by
agreement the applicants’ attorney had
filed a notice of acting
the day before. Secondly, the applicants’ attorney had
briefed counsel who indeed appeared
on their behalf. Therefore,
the issue of the order having been granted in the absence of the
applicants does not arise.
Thirdly, it has not been shown that
the order was erroneously sought or erroneously granted.
[42] Rule 42(1)(
b
)
also does not feature at all. This is because no ambiguity or
patent error or omission has been shown to exist in the order
of the
20 October 2022. In fact, the applicants are not seeking the
correction of any error or ambiguity. The last
issue is
r
ule
42(1)(
c
) which similarly does not
feature at all. There is no mistake of any kind, let alone one
common to the parties which led
to the order being sought and
granted. None has been pleaded in any event. I am thus
not persuaded that the jurisdictional
factors provided for in rule 42
have been shown to exist.
Has a case been made
for rescission under common law?
[43] There is also an
indication that the applicants seek the setting aside of the court
order relying on common law. Other than
mentioning common law as an
alternative basis, the actual basis on which the court order is
sought to be vitiated is not pleaded.
Instead of properly
pleading whatever good cause sought to be relied upon, there is
instead, a bald reference to a good cause in
the founding affidavit.
This is seemingly based on other bald averments about the applicants
allegedly not having agreed
to the order by agreement or their legal
representatives having no authority to agree to it. Regardless,
whatever the true
basis is, it has not been properly pleaded or
pleaded with any degree of cogency to make it capable of any legal
comprehension
or plausibility. Our law on pleadings has been
stated and restated since time immemorial. It needs no further
restatement
or elaboration: It is that a litigant must stand
and fall by his or her pleaded case.
Conclusion.
[44] In this case the
applicants have not properly pleaded any cogent and legally
sustainable basis on which the court order dated
20 October 2022
could be set aside. It follows that the application for
rescission, variation or the setting aside of the
court order dated
20 October 2022 must fail. The legal representative of the
respondent has asked for the dismissal of the
application with costs
on an attorney and client scale. It is so that the applicants’
papers leave much to be desired.
I am not satisfied though that
this is such a case as would warrant the applicants being mulcted
with costs on a punitive scale
as between attorney and client.
The results.
[45] In the result the
following order shall issue:
1. The application for
the rescission, variation or the setting aside of the court order
dated 20 October 2022 is dismissed.
2. The applicants are
ordered to pay the costs of this application, the one paying the
other to be absolved on a party and party
scale.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the applicants
:
M. Mantyi
Instructed
by
:
Mantyi Attorneys
Mthatha
Counsel
for the respondent
:
N. Sakhela
Instructed
by
:
Sakhela Inc.
Mthatha
Date
heard
:
03 November 2023
Date
delivered
:
23 January 2024
[1]
Rule
42 reads:
(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
a
ffected
thereby;
(b)
An order or judgment in which there is ambiguity,
or a patent error or
omission, but only to the extent of such ambiguity, error or
omission;
(c)
An order or judgment granted as the result of a
mistake common to the parties.
(2)
Any party desiring any relief under this rule
shall make an application therefor upon notice to all parties whose
interests maybe
affected by any variation sought.
(3)
The court shall not make any order rescinding or
varying any order or judgment unless satisfied that all parties
whose interests
may be affected have notice of the order proposed.
[2]
Rule
16 (4) reads:
(a)
Where an attorney acting in any
proceedings for a party ceases so to act,
such
attorney
shall forthwith deliver
notice thereof to such party, the registrar and all other parties:
Provided that notice to the party for
whom
such
attorney
acted may be given by
facsimile or
electronic mail in accordance with the provisions of rule 4A.
(b)
The party formerly
represented must within 10 days after the notice of withdrawal
notify the registrar and all other parties of
a new address for
service as contemplated in sub-rule [
sic
]
(2) whereafter all subsequent documents in the proceedings for
service on such party shall be served on such party in accordance
with the rules relating to service: Provided that the party whose
attorney has withdrawn and who has failed to provide an address
within the said period of 10 days shall be liable for the payment of
the costs occasioned by subsequent service on such party
in terms of
the rules relating to service, unless the court orders otherwise.
(c)
The notice to the registrar shall state the names
and addresses of the parties notified and the date on which and the
manner in
which the notice was sent to them.
(d)
The notice to the party formerly represented
shall inform the said party of the provisions of paragraph (b).
[3]
My
emphasis and underlining.
[4]
Mathimba
v Nonxuba
2019
(1) SA 550
at 570 E–F.
[5]
Moraitis
Investments
(Pty)
Ltd
v
Montic
Dairy
(Pty) Ltd
2017
(5) SA 508
(SCA) at page
s
514-5[...]6.