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2023
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[2023] ZAFSHC 511
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Mangaung Metropolitan Municipality and Another v University of the Free State and Others (3497/2021) [2023] ZAFSHC 511 (27 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3497/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MANGAUNG
METROPOLITAN MUNICIPALITY
1st
Applicant
THE
EXECUTIVE MAYOR OF MANGAUNG MUNICIPALITY
2nd
Applicant
And
UNIVERSITY
OF THE FREE STATE
1st
Respondent
Adv.
PHILLIP MOKOENA SC
2nd
Respondent
Adv.
GCBANI NGANGISA
3rd
Respondent
Adv.
L TLELAI
4th
Respondent
MOROKA
ATTORNEYS INC.
5th
Respondent
Adv.
TANKISO MEA
6th
Respondent
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
7
SEPTEMBER 2023
DELIVERED
ON:
27
DECEMBER 2023
[1]
The First Respondent brought an application on
motion in terms of Uniform Rule 30(1) seeking that the ‘Explanatory
Affidavit
filed by the Sixth Respondent delivered on 22 November 2022
be struck off. The main application is for the rescission of the
order
of review granted by consent between the Applicants and the
First Respondent. In this interlocutory application the parties will
be referred to as in the main application.
[2]
The facts of this application are largely common cause: On 29
November 2017, the First Respondent
instituted a review application
in this court under case number 6266/2017 against the Applicants. On
27 May 2019 the court granted
a review order by agreement in favour
of the First Respondent. During the granting of the review
application the Applicants were
represented by a senior counsel, a
junior counsel an attorney The attorney, (the Third Respondent) was
from the office of the Fourth
Respondent, which was also the
attorneys of record of the Applicants.
[3]
On 30 July 2021 the Applicants launched an application for rescission
of the judgment granted on 27
May 2019. The basis for the rescission
of judgment is that the Applicants contend that the erstwhile legal
representatives of the
Applicants were not authorised to agree to an
order of 27 May 2019 and as such, the said order was erroneously
granted. The
First Respondent opposed the rescission of
judgment, in limine, on the basis that the Applicant’s
erstwhile legal representatives
should have been joined. On the
merits the rescission application was opposed on the basis that the
order of 27 May 2019 was granted
by agreement between the respective
counsels of the parties.
[4]
On 19 May 2019 this court upheld the attack of non-joinder and
ordered that the rescission application
be stayed until such time as
the joinder of the Second to the Sixth Respondent had been effected.
On 22 June 2022 the Applicants
issued an application for the joinder
of the Second to the Sixth Respondent in the rescission application.
On 20 July 2022 the
Fifth Respondent delivered what is termed an
‘Explanatory Affidavit’ with annexures thereto in the
joinder application.
The Explanatory Affidavit deal essentially with
circumstances leading to the conclusion of the agreement which led to
the order
of 27 May 2019. The joinder application was enrolled for
hearing on 11 August 2022. The court granted the joinder application
on
an unopposed basis on the said day. The order reads:
“
In
accordance with Rule 10, Uniform Rules of Court, First, Second,
Third, Fourth and Fifth Respondents be joined as Respondents
in case
3497/2021(main matter) and to file, if necessary and where relevant
affidavits in support and /or opposition and /or reply
to the
respective affidavits and Sixth Respondent and Applicants to
supplement, answer and/ reply if any.”
[5]
Following the granting of the joinder order the First Respondent
launched an application to supplement
its papers by means of the
Explanatory Affidavit referred to in paragraph [4]m above. The
Applicants did not oppose this
application and same was granted on 27
October 2022. The court in granting this order also granted the
following relief:
1.
“…
2.
…
3.
…
4.
The applicants are granted leave to
supplement their replying affidavit in the rescission application
within ten days from delivery
of this order to the applicants’
attorneys in accordance with the uniform rules of court.”
[6]
The Sixth Respondent also delivered an ‘Explanatory Affidavit’
on the First Respondent
on 22 November 2022. The Explanatory
Affidavit deals with facts pertaining to his instructions and his
reliance on his adviser
during his tenure as a Municipal Manager. The
affidavit also purports to set out how the Sixth Respondent could not
have given
the instructions for the agreed order of 27 May 2019. The
First Respondent objected to the filing of this Explanatory affidavit
as an irregular step. A notice was duly issued in terms of Rule 30
calling upon the Sixth Respondent to remove the cause of the
irregularity by withdrawing the affidavit. The Sixth Respondent
elected not to withdraw the affidavit. The First Respondent contends
that it not taken any further step in this cause.
[7]
The First Respondent contends that ‘
the contents of the
Explanatory Affidavit; deposed to by the Sixth Respondent relates to
facts that was(sic) known to the Sixth
Respondent all along and at
the time when he deposed to a confirmatory affidavit in the
rescission application and these facts
and contentions should have
been set out in the affidavits filed in support of the applicants’
rescission application. The First Respondent further contends that
the Rules make no provision for filing of the Explanatory Affidavit.
[8]
On the other hand the Applicants dispute that the Rules make no
provision for the filing
of an Explanatory Affidavit. It is contended
by the deponent on behalf of the Applicants and which contention is
purported to be
confirmed by the Sixth Respondent that the rights /
obligations obtained in the orders of 11 August 2022 and 27 October
2022 are
still available to the Sixth Respondent.
[9]
In my view the issue which calls for determination is whether the
filing of the Explanatory Affidavit
is irregular and has to be struck
out. Allied to this, is the interpretation of the orders of 11 August
2022 and 27 October 2022.
[10]
Rule 6(1)(e) of the Rules provides as follows:
“
(1)
Save where proceedings by way of petition are prescribed by law,
every application shall
be brought on notice of motion supported by
an affidavit as to the facts upon which the applicant relies for
relief.
(2)
…
(3)
…
(4)
…..
(5)
(a) to (c) ….
(d)
Any person opposing the grant of an order sought in the notice of
motion must-
(i)
….
(ii)
within fifteen days of notifying the applicant of his intention to
oppose the application,
deliver his answering affidavit, if any,
together with any relevant documents; and
(iii)
….
(e)
Within 10 days of the service upon him of the affidavit and documents
referred to
in subparagraph (ii) of paragraph (d) of sub rule (5) the
applicant may deliver a replying affidavit. The court may in its
discretion
permit the filling of further affidavits”
[11]
A court has the sole discretion in terms of Rule 6(5) (e) to
allow the filing of further affidavit(s)
after the usual three sets
allowed by the Rules. In
Hano
Trading v JR 209 Investments
[1]
the court held that:
“
[11]
Rule 6(5)(e) establishes clearly that the filing of further
affidavits is only permitted with the indulgence
of the court. A
court, as arbiter, has the sole discretion in this regard where there
is a good reason for doing so.
[12]
This court stated in
James Brown & Hamer (Pty) ltd (Previously
named Gilbert Hamer & Co Ltd) v Simmons NO
1963(4) SA 656 (A)
at 660D-H that:
‘
It is in the
interest of the administration of justice that the well- known and
well established general rules regarding the number
of sets and the
proper sequence of affidavits in motion proceedings should ordinarily
be observed. That is not to say that those
general rules must always
be rigidly applied: some flexibility, controlled by the presiding
Judge exercising his discretion in
relation to the facts of the case
before him, must necessarily also be permitted……”
[13]
It was then later stated by Dlodlo J in
Standard Bank of SA Ltd v
Sewpersadh and Another
2005 (4) SA 148
(C) in paras 12-13:
“
The applicant is
simply not allowed in law to take it upon himself and [to] file an
additional affidavit and put same on record
without even serving the
other party with the said affidavit…….
Clearly a litigant who
wished to file a further affidavit must make formal application for
leave to do so. It cannot simply slip
the affidavit into the Court
file (as it appears to have been the case in the instant matter). I
am of the firm view that this
affidavit falls to be regarded as pro
non scripto’”
[12]
The Fourth and Sixth Respondents filed what they termed Explanatory
Affidavits. The First Respondent, in
order to supplement is papers
approached the court on notice by way of an interlocutory
application. The reason for the application
was, inter alia, to seek
leave to supplement its paper by formally requesting the court to
sanction admission of the said affidavit
into evidence. The
Applicants did not find it necessary to follow the route of the First
Respondent. According to the Applicants
and the Sixth
Respondent, the court in the orders of 11 August 2022 and 27 October
2022 had already sanctioned the filing of this
Explanatory affidavit.
[13]
In interpreting a judgment or order, the approach of a court is the
same as when interpreting a document.
The effect of a judgment or
order is ascertained from reading the court order or judgment as a
whole and giving words their natural
or ordinary meaning.
[2]
[14]
As a starting point it is important to note that the Sixth Respondent
purported to file a confirmatory affidavit,
confirming the facts
contained in the answering affidavit of the Applicants’
attorney of record. The answering/opposing affidavit
of the attorney
was signed and sworn before the commissioner of oaths on 16 February
2023. The confirmatory affidavit was signed
and sworn on 13 February
2023, three days before the answering affidavit was attested to. It
follows that the Sixth Respondent
could not have confirmed the
affidavit when same did not exist. Such confirmatory affidavit must
be seen as pro-non scripto.
[15]
Be that as it may, it is undisputed that the Sixth Respondent did not
seek leave from the court to file the
so-called Explanatory
Affidavit. In as much as the Applicants contend that the Rules make
provision for the filing of the Explanatory
affidavit, this court was
not referred to any authority on the said aspect. This court is also
unaware of any such authority which
allows for the filing of an
Explanatory Affidavit. It is submitted in the Heads of Argument that
the court has a discretion whether
or not to grant the application
even if the irregularity is established. In my view, the discretion
can only be exercised where
there is an application before court for
the exercise of its discretion. Absent any formal application, there
is no discretion
to exercise.
[16]
The Applicants do not seem to have filed any Notice to Oppose. That
was done by the Sixth Respondent. I am
willing to accept that this
notwithstanding, it is clear that the Applicants are desirous to
oppose the relief sought. It is important
to observe that the Sixth
Respondent had filed a supporting affidavit in the rescission
application. It is true what is contended
by the First Respondent
that all the facts which are contained in the Explanatory Affidavit
were known to the Sixth Respondent
when he deposed the supporting
affidavit in opposing the rescission application. The
Sixth Respondent gives no plausible
explanation as to why the
information which was within his knowledge was not set out in his
supporting affidavit.
[17]
His explanation that after going through all the affidavits again,
especially in light of the
Notice of Application by the First
Respondent and the affidavit of Mr Christiaan Rudolph Liebenberg, he
sought legal advice on
the matter. that he was advised to submit an
explanation
[3]
is not good
enough. It is important to note that the lis in this matter is
essentially between the First Applicant and the First
Respondent.
Much as the Sixth Respondent has been joined, it is as a result of
the interest he may have in the outcome of these
proceedings. It is
for this reason that the rescission application is vociferously
pursued by the First Applicant. The orders of
27 May 2019 and 27
October 2022 were not meant to give any party the so-called
proverbial second bite on the cherry. The
two orders did not
give the parties the blanket licence to file any affidavit they wish
to file. The orders were specific that
the Sixth Respondent could
supplement, answer or reply by way of a further affidavit.
[18]
It is clear that the Sixth Respondent sought to bolster or supplement
the affidavit he filed
in opposition of the rescission application.
In
Bangtoo
Bros and Others v National Transport Commission and Others
[4]
,
court held that where supplementary affidavits do not deal with new
matters arising from the reply by an applicant, or new evidence
which
came to the attention of the parties subsequent to their filing of
the affidavits, the party seeking an indulgence must provide
an
explanation which is sufficient to assuage any concern that the
application is mala fide or that failure to have introduced
the
evidence in question is not due to a culpable remissness of such
party. I have already alluded to the fact that the explanation
of the
Sixth Respondent for failing to deal with facts which were known to
him holds no water. The Explanatory affidavit did not
supplement,
answer or offer a reply. Such an affidavit could not be filed without
the permission of the court. Its filing thus
constitutes an irregular
step. I accordingly find that the First Respondent’s
application must succeed.
[19]
With regard to the issue of costs, it is trite that their award lies
in the discretion of the
court. When the Sixth Respondent
decided to oppose this application, he should have known that a cost
order might be made
against him should he be unsuccessful in opposing
the application. The Sixth Respondent and the First Applicant must
surely bear
the costs as unsuccessful parties. I am, however,
of the view that this application did not warrant the employment of
two
counsels. I accordingly make the following orders:
ORDER
1.
The Explanatory Affidavit of the Sixth Respondent, Advocate Tankiso
Mea delivered on 22 November
2022 is struck out;
2.
The First Applicant and the Sixth Respondent are ordered, jointly and
severally, the one
to pay the other to be absolved, to pay the costs
of this application which costs shall include the costs of one
Counsel.
P.
E. MOLITSOANE, J
On
behalf of the First Respondent:
Adv.
DJ van der Walt SC
Appearing
with
Adv.
JS Rautenbach
Instructed
by
Symington
De Kok
BLOEMFONTEIN
Ref
On
behalf of the Applicants
Adv.
AH Burger SC
Instructed
by
State
Attorney
BLOEMFONTEIN
Ref
Gouws
I Leepile obo Minor I 4436144
[1]
[1]
[2012] ZASCA 127(21 September 2012).
[2]
See Firestone South Africa (Pty)Ltd v Genticuro AG 1977(4) SA 298(A)
at 304 D-E.
[3]
FA Annexure CL2 page 18 para 5.
[4]
1973(4) SA 667(N) at 680 B.