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2024
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[2024] ZAFSHC 105
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Marogoa v Malgas and Others (2155/2022) [2024] ZAFSHC 105 (18 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 2155/2022
In
the matter between:
O.
C. MAROGOA
Applicant
and
NOBELXOLISI
CHRISTINAH MALGAS
1
st
Respondent
THE
MEC: FREE STATE DEPARTMENT OF POLICE,
ROADS
AND TRANSPORT
2
nd
Respondent
THE
REGISTRAR: FREE STATE OPERATING,
LICENSING
AND PERMIT BOARD
3
rd
Respondent
THE
CHAIRPERSON: GREATER BLOEMFONTEIN
TAXI
ASSOCIATION
4
th
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
1 FEBRUARY
2024
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
18 APRIL 2024
[1]
The Applicant makes application for the rescission of an order made
in the unopposed motion Court
by Reinders, J on 27 July 2023. The
said order reads as follows:
“
1.
The 3
rd
and 4
th
Respondents are directed to
comply with Rule 53(1)(b) within ten days after this order has been
served on the Respondents.
2.
The 3
rd
and 4
th
Respondents are directed to pay
costs of this application, jointly and severally, the one paying the
other to be absolved.”
The Applicant featured as
the 4
th
Respondent
in the proceedings before Reinders, J while The Chairperson: Greater
Bloemfontein Taxi Association was cited as the
3
rd
Respondent.
[2]
The Applicant now wants this order against
him to be rescinded. In his Founding Affidavit, he indicates
that the
application is made in terms of Rule 42(1) and/or the common law.
Rule 42(1) inter alia provides that a Court may rescind
an order or
judgement erroneously sought or erroneously granted in the absence of
any party affected thereby. In terms of the common
law, a rescission
may be granted where it is shown that there was fraud, or a justus
error, when new documents have been discovered,
where the judgement
had been granted by default and in absence of a valid agreement
between the parties to support the judgement.
In respect of a
judgement that had been granted by default, an application for
rescission must show a reasonable and acceptable
explanation for the
default, a
bona
fide
motive, and that there is a
bona
fide
defence which
prima
facie
carries some prospect of success.
[1]
[3]
At this point it is apposite to first refer to the background of this
application. The dispute
between the parties emanates from a review
application filed by the 1
st
Respondent in which she sought the review and setting aside of a
decision taken by the Respondents to transfer a permit to the
Applicant herein. In the review papers, the 1
st
Respondent called upon the respondents to despatch within 15 days to
the Registrar the record of the proceedings sought to be set
aside,
together with such reasons they wish to give. This demand was made in
terms of Rule 53(1)(b).
[4]
When no such record or reasons were forthcoming, the 1
st
Respondent filed an application in terms of Rule 30A to compel the
present Applicant and the Greater Bloemfontein Taxi Association
(the
3
rd
and 4
th
Respondents in that application) to
comply with Rule 53(1)(b). This application was filed on 19 June
2023. As we have seen, Reinders,
J granted the application on 27 July
2023.
[5]
The transcribed record of the proceedings before Reinders, J shows
that when the application was
called, only the legal representative
for the Applicant, that is N.C. Malgas, appeared. There was no
appearance for the 3
rd
Respondent and the present
Applicant. The legal representative of the Applicant then informed
the Court that the 4
th
Respondent had only served him with
a notice to oppose the matter that very same morning. He also
referred the Court to the Answering
Affidavit filed by the 4
th
Respondent (present Applicant) earlier. In that affidavit, the 4
th
Respondent indicated that he did not have the required records, he
told the Court. The presiding Judge then responded by saying
“then
they must say so, are you with me, they must then say so, they must
still properly in terms of the rules comply in
the answer”. And
“ja, so I do not accept that from the 4
th
Respondent, I still intend granting the orders unless you do not want
the orders as sought in your notice of motion”.
[6]
It must be clear from this response of the learned Judge that she
held the view that the version
of no record in the 4
th
Respondent’s possession should have been stated in a reply to
the demand in terms of Rule 53(1)(b), and not afterwards in
the Rule
30A application.
[7]
The real question, however, is whether it was competent for the 1
st
Respondent to have called on the Applicant to despatch the record or
reasons for the impugned decision to the Registrar. In this
respect
the provisions of Rule 53(1) are decisive. The Rule provides as
follows: “Save where any law otherwise provides,
all
proceedings to bring under review the decision or proceedings of any
inferior court and of any tribunal, board or officer performing
judicial, quasi-judicial or administrative functions shall be by way
of notice of motion directed and delivered by the party seeking
to
review such decision or proceedings to the magistrate, presiding
officer or chairperson of the court, tribunal or board or to
the
officer, as the case may be, and to all other parties affected –
(a) calling upon such
persons to show cause why such decision or proceedings should not be
reviewed and corrected or set aside,
and
(b) calling upon the
magistrate, presiding officer, chairperson or officer, as the case
may be, to despatch, within 15 days after
receipt of the notice of
motion, to the registrar the record of such proceedings sought to be
corrected or set aside, together
with such reasons as the magistrate,
presiding officer, chairperson or officer, as the case may be, is by
law required or desires
to give or make, and to notify the applicant
that such magistrate, presiding officer, chairperson or officer, as
the case may be,
has done so.
[8]
It is clear that in terms of the Rule, no
other persons apart from those mentioned may be called upon
to
despatch the required record. It is also clear that the Applicant in
the relevant review application was well aware of this
fact, because
the first paragraph of the notice of motion is styled as follows:
“Reviewing and setting aside the decision
by the 1
st
Respondent, the 2
nd
Respondent and the 3
rd
Respondent on or about the 25
th
of February 2009, to transfer to the 4
th
Respondent the Mini Bus permit no: LFSLB 13353.”
[9]
As already indicated, the 4
th
Respondent mentioned in the notice of motion, is the present
Applicant. The Applicant for the review therefore knew that the
present
Applicant was not the decision maker. Unfortunately, and
inexplicably, the Applicant for the review then went on in the notice
of motion to call upon the 1
st
,
2
nd
and 3
rd
Respondents as well as the present Applicant, to despatch the record
within 15 days.
[10] Clearly it was
not competent for the review Applicant to call upon the present
Applicant, who was not the
decision maker, to despatch the record of
the decision. The present Applicant, was under no obligation to
despatch the record,
and it follows that the application to compel
the Applicant in terms of Rule 30A to do so, was equally without any
merit. The court
order of 27 July 2023 was therefore erroneously
sought and granted against the present Applicant, and stand to be
corrected and
set aside.
[2]
The 3
rd
Respondent did not apply for a rescission of the order, that is the
Chairperson: Greater Bloemfontein Taxi Association, and the
order
against it will therefore remain as it is. As for costs, I find no
reason why the only opponent to the rescission application
should not
pay the Applicant’s costs of the application.
The
following orders are made:
1. The application for
rescission of the Court Order under case number 2155/2022 and dated
27 July 2023 succeeds as far as it pertains
to the 4
th
Respondent.
2.
The said Court Order is set aside and substituted by the following:
2.1
The 3
rd
Respondent is directed to comply with Rule
53(1)(b) within ten days after this order has been served on the
Respondent.
2.2
“The 3
rd
Respondent is directed to pay the costs of
this application.”
3.
The 1
st
Respondent in the application for rescission to
pay the costs of the application.
P.
J. LOUBSER, J
For
the Applicant:
Adv.
K.P. Mohono
Instructed
by:
Moletsane
Attorneys, Bloemfontein
For
the 1
st
Respondent:
Adv.
L.B.J. Moeng
Instructed
by:
Holomo
Rapapali Attorneys, Bloemfontein
/roosthuizen
[1]
Chetty
v Law Society, Transvaal
1985 (2) SA 756
at 764 J – 765 C
[2]
See
Stevens v Magistrate and Others 2014(2) SA 150 (GSJ) at paragraphs
21 and 25