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[2024] ZAECELLC 5
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Nogaga v Magistrate Mjali, District Court Magistrate, East London and Others (EL246/2024) [2024] ZAECELLC 5 (22 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT]
CASE
NO.: EL246/2024
In
the matter between: -
DR
VIWE NOGAGA
APPLICANT
and
MAGISTRATE
Z. MJALI, DISTRICT COURT
MAGISTRATE,
EAST LONDON
1
ST
RESPONDENT
ISIBABALE
TANDOKAZI NOGAGA
2
ND
RESPONDENT
MINISTER
OF JUSTICE & CORRECTIONAL
SERVICES
3
RD
RESPONDENT
JUDGMENT
ZONO
AJ:
[1]
The applicant approached this court and obtained an Order on 14
February 2024 in terms which a
rule nisi
returnable on 05
March 2024 was issued. The
rule nisi
was granted on the
following terms:
“
1.
A rule nisi do hereby issue calling upon the first, second and third
respondents to
show cause, if any, on 05 March 2024 why the following
order should not be made final:
1.1
the applicant’s non-compliance
with the Uniform Rules of Court, the deviation with/from the forms
and service provided for
the rules be condoned and directing that the
matter be heard as an urgent matter as envisaged in Rule 6(12) of
this Court’s
Rules (sic).
1.2
The execution of the garnishee order
granted by the first respondent, Magistrate Z. Mjali on 06 February
2024 to be stayed pending
the outcome of the review proceeding
instituted as Part B of the application.
2.
The relief set out in Prayer 1.2 above shall operate as an interim
interdict
pending the finalisation of Part A and/or Part B of this
application.
3.
Costs be costs in the review.”
[2]
Aggrieved by this aforesaid order, the second respondent delivered a
notice styled “NOTICE IN
TERMS OF RULE 6(8)”. On the
notice, the second respondent requested that the matter be heard on
20 February 2024 at 14:30
pm. In simple terms the second respondent
sought to invoke the provisions of Rule 6(8) of the Uniform Rules.
[3]
Rule 6(8) of the Uniform Rules provides as follows:
“
6. Applications
(8)
Any person against whom an order is granted ex parte may anticipate
the return day upon
delivery of not less than twenty-four hours’
notice.”
[4]
It is common cause that the return day has been fixed. What is in
dispute is whether or not an
Order was granted
ex parte.
[5]
The term “
ex
parte”
by definition refers to proceedings before a court of which the
person against whom the Order as sought was not notified –
the
unilateral nature of such proceedings is their most prominent
feature
[1]
. The subrule comes to
the aid of a person who has been taken by surprise by an Order
granted “
ex
parte”
.
The subrule does not apply where the rule or Order was not obtained
on “
ex
parte”
basis.
[6]
On the court file, I found a directive issued by this court in terms
of practice rule 12(a)(i)
of the Joint Rules of Practice of this
division. The learned Judge directed the applicant to serve and file
the application papers
and the matter was enrolled for hearing on
Wednesday, 14 February 2024 at 09:30 or so soon thereafter. It is
discernible from this
directive that the matter was never intended to
be brought on
ex parte
basis.
[7]
Further perusal of the court file disclosed that there were returns
of service numbered 56, 57,
58 and 59 respectively. Importantly, the
one numbered 57 was a return of service in respect of the second
respondent. Strangely
those returns of service were not in the bundle
that was prepared by the second respondent to serve before court for
determination
of this matter. Page 56 onwards was replaced by second
respondent’s papers.
[8]
I am convinced that the returns of service referred to above were
before court on 14 February
2024 when
rule nisi
was granted.
It is inconceivable that a judge can issue a directive and still
allow its violation with impugnity. I say that because
the learned
judge who issued the directive that papers must be served is the same
judge who heard the matter and granted the
rule nisi
. I was
told from the bar that the matter was heard at 14h30 on that day.
[9]
Paragraph 8 of the applicant’s replying affidavit categorically
states that the returns
of service were filed of record. In paragraph
12 of the opposing affidavit the second respondent confirms that, on
her arrival
at her home at about 16h00 pm her helper gave her the
documents and as she was going through them the Sheriff arrived for
the second
time to serve the Order.
[10]
I therefore find that the application was not an
ex parte
application and the Order was not granted “
ex parte”
.
On this basis alone this application cannot be a entertained. The
second respondent invoked a wrong and inapplicable provision.
The
sole jurisdictional requirement to invoke the court’s power to
exercise its discretion was not satisfied, that is, to
show that the
Order was granted
ex parte
.
[11]
There was also a notice of motion by the second respondent that was
filed on 19 February 2024 which
was served upon the applicant on the
same day. The notice of motion intimated that the second respondent
will, on the return date
of
rule nisi
issued on 14 February
2024 under this case number make an application for an Order in the
following terms:
“
1.
That an Order that was granted on 14 February
2024 under case number EL246/2024 be rescinded and set aside in terms
of section 42(1)(a)
of the Uniform Rules of Court, alternatively
common law.
2.
That applicant and anyone who unsuccessfully opposed this litigation
be ordered
to pay costs of this application; and
3.
Further and/or alternative relief.”
[12]
In this application the second respondent sought to rescind an
interim order granted by this court on 14
February 2024 on urgent
basis. Strangely, this application was supported by opposing
affidavits. This application too, suffered
many deficiencies.
Firstly, as the second respondent sought to be heard on a rescission
application on urgent basis, there was
no certificate of urgency
placed before this court in terms of the Joint Practice Rules of this
division. In this regard, Practice
Rule 12(d)(iii) provides as
follows:
“
The
certificate of urgency will be placed before the judge who will make
a determination solely from that certificate as to whether
or not the
matter is sufficiently urgent to be heard at any time other
than the normal motion court hours.”
No such certificate was
placed before a judge in accordance with this provision.
[13]
The same Rule proceeds to provide as follows:
“
Should
he/she determine that it is sufficiently urgent, he/she will then
give directions as to the time and place, when and where
the
application is to be heard.”
Should
the judge determines that the matter is urgent she/he will determine
the time and place of hearing of that urgent application.
On this
matter no such directions were sought before this matter could be
placed on the roll of urgent matters for hearing. The
second
respondent clearly exercised a power she did not have. For a valid
exercise of power, the power must have a source in law
[2]
.
The Joint Practice Rules have the same force and effect as the
Uniform Rules
[3]
.
[14]
Lastly, Rule 6(12)(b) of the Uniform Rules provides that:
“
(b)
In every affidavit filed in support of any application under
paragraph (a) of this subrule, the applicant
must set forth
explicitly the circumstances which is (sic) averred render (sic) the
matter urgent and the reasons why the applicant
claims that applicant
could not be afforded substantial redress at a hearing in due
course.”
Uniform Rule 6(12)
governs urgent applications. These requirements, too, were not
satisfied by the second respondent. I therefore
find that the
rescission application was improperly before the urgent court.
[15]
On the conspectus of all of the above factors, I find that this court
cannot determine this matter. The matter
will have to be removed from
this roll and remain on the roll of 05 March 2024, which is the
original return date.
[16]
Accordingly, the following Order shall issue:
16.1
This matter is removed from the roll.
16.2
This matter shall remain on the roll of 05 March 2024.
16.3
The second respondent is hereby ordered to pay costs occasioned by
the set down and hearing of this matter on 20
February 2024.
A.S
ZONO
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
FOR THE
APPLICANT
ADV MATOTIE
Instructed by
V. FUNANI INC.
c/o
MS GINYA INC.
Lancester Road
Vincent
REF: Nogaga
TEL: 083 538
8545
FOR THE 2
ND
RESPONDENT
ADV NZUZO
Instructed by
MESSRS MASETI INC.
12 BELL ROAD
Vincent
REF:
PLC/msb/MEL4644
Matter heard on
20 February
2024
Judgment
delivered on
22 February
2024
[1]
See
Simross Vintners
(Pty) Limited v Vermeulen
1978 (1) SA 779
(T) at 782 H;
Sizwe Development v Auditor General, Transkei
1991 (1) SA
291
(Tk) at 292 T.
[2]
AAA
Investments (Proprietary) Limited v Micro Finance Regulatory Council
and Another
[2006] ZACC 9
;
2007
(1) SA 343
CC at para 68;
Lester
& Ndlambi Municipality & Another
2015 (6) SA 283
(SCA) at para 26.
[3]
See
National
Pride Trading 452 v Media 24
2010 (6) SA 587
(ECP).