About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2023
>>
[2023] ZAECBHC 27
|
|
Ethiopian Chruch of Southern Africa and Others v Hash Tag Management and Others (561/2023) [2023] ZAECBHC 27 (14 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
DIVISION, BISHO)
CASE
NO: 561/2023
In
the matter between:-
ETHIOPIAN
CHRUCH OF SOUTHERN AFRICA
AND
13 OTHERS
Applicants
and
HASH
TAG MANAGEMENT
First
Respondent
FIRST
NATIONAL BANK (VEREENIGING)
Second
Respondent
THE
MANAGER:
FIRST
NATIONAL BANK (VEREENIGING)
Third
Respondent
JUDGMENT
MATEBESE
AJ
[1]
In this matter the applicants approach the court seeking an order in
the following terms:
“
1.
The applicants are hereby granted leave to bring this application as
one of urgency and that all the normal formalities
regarding notice,
service, and time frames applicable thereto be dispensed with.
2.
It is declared that the operation and execution of the judgements
delivered by the Magistrate, Zwelitsha on 17 October
2022 and on 15
June 2023 in the matter between Hash Tag Movement v Johnson Sibonda
Luphuwana and Others previously enrolled in
the Magistrates’
Court for the district of Zwelitsha under case numbers 381/2023 is
suspended pending the outcome of the
appeal lodged in this court on
26 October 2022 and on 15 June 2023 under case numbers CA3/2023 and
CA20/2023.
3.
That during the suspension of the operation of the judgements
referred to in prayer 1(one) (sic) the first and second
respondents
shall not unlawfully interfere with the lawful operation, use and
management of bank account numbers 6[....]9 and 5[....]1
which are
held by the first applicant with the second respondent.
4.
That the respondents be and is hereby ordered to pay the costs of the
application, jointly and severally, the one
paying the others to be
absolved.”
[2]
The application is opposed by the first respondent. The applicants
withdrew the application as against the
second and third respondents.
As a result, the second and third applicants filed a Notice to Abide
the decision of the court.
[3]
The decision to withdraw as against the second and third respondents
sparked some debate in court. Primarily
the debate was from the first
respondent who sought to argue that the withdrawal meant that the
entire case has died or has been
rendered moot by such withdrawal. I
find no merit to the contention or argument. This is so because the
withdrawal or abandonment
of the relief against the second respondent
leaves an order, if granted, that is enforceable against the first
respondent and which
will surely be of practical effect.
[4]
Having said that I now turn to deal with the facts of the matter. I
must mention that the facts hereunder,
at least to the extent they
are material to this matter, are common cause.
Factual
background:
[5]
On 17 October 2022, the first respondent, then applicant, sought and
obtained an order in the Zwelitsha Magistrates
Court against the
second to the fourteenth applicants, then respondents.
[6]
The order is to the effect that:
1.
the second to fourteenth applicants are interdicted and restrained
from operating all church operations for the church;
2.
the second to fourteenth applicants were removed as members of the
Committee of the Church; and
3.
an interim committee is to be appointed to run and oversee the
administration of the Church until a new Executive
Church Council is
appointed.
[7]
On 26 October 2022, the second to fourteenth applicants noted an
appeal against the judgement and order dated
17 October 2022.
[8]
On 4 November 2022 and pursuant to the delivery of the Notice of
Appeal the applicants’ attorney informed
the second respondent
of the appeal against the order of 17 October 2022 and of the fact
that the appeal has the effect of suspending
the operation and
execution of the order pending finalisation of the appeal and
accordingly requested the second respondent to
uplift a debit hold
over the first applicant’s accounts. The second respondent
then, on the strength thereof, uplifted the
debit hold on the
church’s’ accounts.
[9]
On 25 November 2022 the second respondent re-instated the debit hold
on the accounts. This resulted in the
applicants addressing
correspondence to the second respondent demanding the upliftment of
the hold. The second respondent uplifted
the hold on 29 November
2023.
[10]
On 12 December 2022 the first respondent again sought and obtained an
order from the Magistrate Zwelitsha,
inter alia,
in the
following terms:
1.
Interdicting and/or restraining the church and the applicants from
proceeding with the Church’s
conference planned for 14 December
2022.
2.
That the judgement of Zwelitsha Magistrate Court dated 17 October
2022 to remain effective pending
finalization of the Respondent’s
intended appeal.
[11]
On 15 December 2022 the applicants launched an application for
reconsideration of the order dated 12 December 2022. The
application
was opposed and argued on 10 February 2023. Judgement was delivered
on 8 June 2023, dismissing the reconsideration
application.
[12]
It is important to mention that the second respondent, whilst the
reconsideration application was still pending, informed
the
applicants that the debit holds will continue. That, apparently, on
the strength of the Magistrates order dated 12 December
2022.
[13
On 15 June 2023 the applicants launched an appeal against the
judgement and order dated 8 June 2023. Both appeals,
referred to
herein, are still pending before the High Court, Bisho.
[14]
I must mention that the respondents contend that the appeals have
lapsed because they have not been prosecuted timeously
in terms of
the rules. The applicants deny that the appeals have lapsed.
[15]
Counsel for the first respondent conceded during argument that the
fact that the appeals are deemed lapsed does not mean
that they are
non-existent but only that if the applicants still pursue them they
must either apply for their re-instatement or
for condonation. He
conceded that both such applications must be made to the appeal
court.
[16]
After the filing of the appeal against the order of 8 June 2023 the
applicants’ attorneys addressed a letter to
the second
respondent advising them that the judgement and order is the subject
of an appeal and that the execution thereof is,
by law suspended,
pending finalisation of the appeal. The applicants, through their
attorneys, also addressed a letter dated 25
July 2023 to the first
respondent demanding that it withdraws its instruction to the second
respondent for the latter to enforce
a debit hold against the first
applicant’s accounts.
[17]
In response to the letter the first respondent’s attorneys, per
their letter dated 26 July 2023,
inter alia
, stated:
“
You
further advised our client that as long as there are further Appeals,
the judgement is suspended. You are herein referred to
Rule 50 of the
Uniform Rules in this regard…
Please
be advised that our clients are not going to uplift any Debit Hold on
First National Bank….”
[18]
It is clear from the above quoted letter that the first respondent
made it clear on 26 July 2023 that it is not prepared
to instruct the
second respondent to uplift the debit hold. It held the view that to
do so would not accord with rule 50 of the
Uniform rules of court. It
is not clear how the first respondent interpreted the rule but what
is clear though is that it is at
that stage, as the applicants
contend, that it became clear that the parties are not
ad idem
on the effect of the appeal on the judgements and orders by the
Magistrate.
[19]
On 10 August 2023 the applicants instituted these urgent proceedings.
Initially they were intended to be heard on 5 September
2023. For
some reason they were postponed to 12 September 2023.
[20]
In opposition of the relief sought the first respondent, first,
contends that the second to fourteenth applicants lack
the authority
to act on behalf of the first applicant. The first respondent’s
argument departs from an incorrect position
that the appeal dated 26
October 2022 was filed by the second to fourteenth respondents under
the name of the first applicant.
This, as I have stated is factually
incorrect. The first applicant is not a party to the appeal launched
on 26 October 2022. The
second to fourteenth applicants are therefore
not acting on behalf of the first applicant in so far as the said
appeal is concerned.
[21]
The first applicant is a party only to the appeal against the order
dated 8 June 2023. Even in the said appeal the first
applicant is not
represented by the second to fourteenth respondents. It is acting in
its own name and the second to fourteenth
respondents are acting in
their own names. This is the case even in these proceedings. That the
deponent to the affidavit deposes
on behalf of all the applicants
does not and cannot mean he is instituting proceedings on behalf of
the first applicant. He is
merely a witness on behalf of all the
applicants including the first applicant. It is trite that he needs
no authority to testify
on behalf of them.
[22]
Accordingly, this point must fail.
[23]
The second point taken by the first respondent is that this court
lacks the jurisdiction to entertain this matter. It
is contended that
absent an appeal against the Magistrate’s order this court
lacks jurisdiction to suspend the orders. There
is no merit to this
point. First, on the admitted facts there are appeals against the
orders that are pending before this court.
That the first respondent
believes they have lapsed does not change this fact.
[24]
In any event it is incorrect that the appeals have lapsed. Appeals in
the magistrate’s court are noted in terms
of the Magistrates
Court rules and are prosecuted in terms of Uniform rule 50. The
Magistrates court rules provide for the filing
of reasons by the
Magistrate 15 days after the noting of an appeal. The first
respondent failed to factor this time period in its
calculation of
the 60 days for the prosecution of the first appeal. The sixty day
period for the prosecution of the second appeal
has not expired, if
it has started yet.
[25]
Accordingly, there are valid appeals before the Bisho High Court. If
there is any delay resulting in the appeal being
deemed to have
lapsed or necessitating a condonation, that may be done at any time
and must be heard by the appeal court.
[26]
Second the proceedings before this court are interlocutory in nature.
They are proceedings incidental to the appeals
that are pending
before this court. That is clear from the pleadings to which one must
look at to determine jurisdiction.
[1]
Accordingly, these being interlocutory proceedings this court retain
jurisdiction.
[27]
The first respondent also contends that the issue before this court
is
res
judicata,
same, so the argument goes, having
been determined by the Magistrate as per the order dated 12 December
2022.
[28]
When asked if the magistrate has the power, in terms of the
Magistrates Court Act 32 of 1944 to grant the order for execution
pending appeal, counsel for the first respondent was constrained to
concede that no such power exists in the Magistrates Court
Act.
[29]
It is trite that a Magistrate is a creature of statute and he can
only grant orders which are authorised by the Act.
[2]
[30]
Accordingly, to the extent that the Magistrate has no power to grant
the order, which is conceded by the first respondent,
such order is a
nullity.
[3]
It therefore cannot
found a basis for
res
judicata
defence. I therefore find no merit to the first respondent’s
contention.
[31]
The first respondent also contends that the second to fourteenth
applicants lack locus standi to bring these proceedings.
It is trite
that locus standi in the legal sense has two connotations. In the
first one it connotes a right or capacity to litigate.
In the second
it connotes that a person must have a direct and substantial interest
in the order sought in the proceedings. The
applicants have the
capacity to litigate and are affected by the orders sought to be
suspended or declared suspended as they were
sought and granted
against them. The applicants satisfy both requirements. There is
accordingly no merit to this point.
[32]
The last point raised by the first respondent is that the applicants
have failed to satisfy the requirements of rule
6(12) of the Uniform
rules of court. The argument advanced is that the applicants have
delayed in bringing these proceedings and
that in any event the
alleged reasons for urgency are not true in that the overdue amounts
for rates and services are not occasioned
by the debit holds and it
is not true that the first applicant is unable to pay its lecturers
as the lecturers are not receiving
any payments for their work.
[33]
I am of the view that the applicants have set out sufficient facts to
show that the matter is urgent and they have also
set forth
circumstances why they believe they cannot obtain substantial redress
at a hearing in due course. As stated above it
was only on 26 July
2023 that the first respondent made clear that it is not going to
instruct the bank to uplift the debit holds
and when it made it clear
that it has a different understanding of the effect of the appeal on
the order of the Magistrate. This
is what triggered this application
which was instituted on 10 August 2023.
[34]
In any event it is clear to me, from what the first respondent’s
counsel stated during argument, ie that the first respondent
is not
operating the account and has no intention of doing so on its own,
that this frustration meted upon the applicants by the
first
respondent is unwarranted and deserves to be dealt with urgently.
[35]
Accordingly, I am of the view that this matter is urgent enough to
warrant being heard as such in terms of rule 6(12)
of the Uniform
rules.
[36]
Regarding the merits of the matter, it is trite, and was even
conceded by the first respondent’s counsel, that
the filing of
an appeal suspends the operation and execution of the order.
[37]
The argument by the first respondent is that it is the filing of a
valid appeal that suspends the order. In essence it
contends that
only so called valid notices of appeal suspend the execution of the
order.
[38]
However, the first respondent does not state who determines if a
Notice of appeal of an appeal qualifies as a valid appeal
or not. In
my view, the first respondent’s argument means that if a party
is served with a Notice of Appeal and such party
takes the view that
the Notice if defective or the appeal is not valid, then such party
is entitled to execute on the judgement
or order which is the subject
of an appeal.
[39]
I disagree with the first respondent in this regard. If this view was
to be accepted it would surely result in chaos.
It, in fact,
encourages self-help.
[40]
Accordingly, I hold the view that the mere fact of the filing of the
appeal suspends the operation or execution of the
order. Whether the
appeal is valid or has lapsed is for the court to determine. It is
for that reason that the respondent in an
appeal has a right to apply
for dismissal of an appeal or a declaration that an appeal has lapsed
and apply for costs.
[41]
I am therefore satisfied that the applicants have made out a case for
the relief sought in the Notice of Motion.
[42]
I find no reason why the costs of this matter should not follow the
result.
[43]
In the result I make the following order:
1.
The applicant’s non-compliance with the normal rules of
court on bringing this application is condoned and the applicants are
granted leave to bring this application as an urgent application in
terms of rule 6(12) of the Uniform rules of court.
2.
It is declared that the operation and execution of the
judgements delivered by the Magistrate, Zwelitsha on 17 October 2022
and
on 8 June 2023 in the matter between Hash Tag Movement and
Johnson Sibonda Luphuwana and Others under Zwelitsha case number
381/2022
is suspended pending the outcome of the appeal by the
applicants under Bisho case Number CA 3/2023 and Bisho Case Number CA
20/2023.
3.
That during the suspension of the operation and execution of
the judgements and orders, referred to above, the first respondent
shall not, unlawfully interfere with the lawful operation, use and
management of bank account numbers 6[....]9 and 5[....]1 held
by the
first applicant with First National Bank.
4.
That the first respondent shall pay the costs of this
application.
Z.Z.
Matebese
Acting
Judge of the High Court
Appearances:
For
the applicant: Adv
A. Bodlani SC (with Adv L van Vuuren)
Instructed
by: Sakhela
Incorporated
For
the respondents: Adv
M. Sebopa
Instructed
by: Faku
Incorporated Attorneys
Date
Heard: 12
September 2023
Date
delivered: 14
September 2023
[1]
Speaker
of the National assembly v Public Protector and Others
2022 (3) SA 1
(CC) para.30
[2]
Ledla
Structural Development (Pty) Ltd and Others v Special Investigating
Unit
2023 (2) SACR 1
(CC) para.62.
[3]
Siyangena
Technologies (Pty) Ltd v Passenger Rail Agency of South Africa and
Others
2023 (2) SA 51
(SCA) para. 27