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[2024] ZAECBHC 6
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MEC for the Department of Public Works and Others v Ikamva Architects (Pty) Ltd (596/2008) [2024] ZAECBHC 6 (25 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No: 596/2008
In
the matter between:
MEC
FOR THE DEPARTMENT OF PUBLIC WORKS
First
Applicant
MEC
FOR THE DEPARTMENT OF HEALTH
Second
Applicant
MEC
FOR FINANCE, EASTERN CAPE
Third
Applicant
and
IKAMVA
ARCHITECTS (PTY) LTD
Respondent
JUDGMENT
BANDS
J:
[1]
As the platitude goes, all good things must come to an
end.
Contextually -
interest rei publicae ut sit finis litium
(it
is in the public interest that litigation be brought to finality).
[2]
This is an application for the rescission of two orders of
this court, formulated as a constitutional challenge, granted some
twelve
and eight years ago on 10 November 2011 by Majiki AJ (as she
then was) and on 1 December 2015 by Malusi AJ (as he then was).
[3]
To say that the parties have been involved in a long and
arduous, protracted legal battle is understated. The litigation
between
the parties, culminating in the present application, has
endured for some 15 years, resulting in more judgments than the
number
of years spanned, having served before numerous judges in this
division; the Supreme Court of Appeal; and the Constitutional Court.
It has come at an inordinate and unnecessary cost to the public
purse.
[4]
Whilst this
is the first occasion that a direct challenge has been brought
against the order of Majiki AJ by the applicants;
[1]
they unsuccessfully sought a rescission of the order of Malusi AJ in
2017, relying on the provisions of rule 31(2)(b) of the Uniform
Rules
of Court and the common law; alternatively, the court’s
inherent jurisdiction to control its own affairs. The
applicants, in their current application, once again seek to rescind
the order of Malusi AJ, this time in accordance with rule
42(1)(a),
some 6 years after their first failed attempt. Insofar as the
applicants seek a rescission of the order of Majiki
AJ, reliance in
placed on the provisions of rule 42(1)(a); alternatively, the common
law.
[5]
The respondent,
[2]
in opposing the application, contends that the applicants seek to
render nugatory the aforesaid orders of court, as well as all
of the
subsequent decisions which, in turn, were determined on their back,
including two from the Supreme Court of Appeal and one
determinative
order of the Constitutional Court (two at the time of penning this
judgment), which rendered the prior orders not,
in law, susceptible
to rescission. For this reason, the respondent contends that
the applicants are unprocedurally and impermissibly
endeavouring to
constitute this court as an appeal court over all these prior courts.
For reasons which shall become apparent
later in this judgment,
not only do I agree with the respondent’s assessment of the
matter, but I am also, in any event,
of the view that the applicants
have failed to meet the jurisdictional requirements entitling them to
the rescission of either
of the judgments in question.
[6]
The timeline
relevant to the launch of these proceedings, including the extent of
the applicants’ delay, is informed by the
lengthy and complex
history of the litigation between the parties. This requires
consideration in some detail.
Litigation
history and the timeline relevant to the rescission proceedings
[7]
The history of the
litigation can be gleaned from the papers before court, read together
with the prior judgments leading up to
the present proceedings, to
which I was referred in the papers as well as during argument.
I can do no better than to cite
the origin of the matter as expressed
by Gorven JA, writing for the Supreme Court of Appeal, in
MEC
for the Department of Public Works, Eastern Cape and Another v
Ikamva Architects CC
at paragraphs [5]
and [6] as follows:
[3]
“
[5]
In order to give perspective to this matter, it is necessary to deal
in some detail with the history of the litigation
leading to this
point. Suffice to say, it has travelled a long and winding road. On 3
September 2003, the Department of Works
offered to appoint
Ikamva ‘as Consulting Architects/Principal Agent’ for the
project described as ‘Frere Hospital
(East London): Maintenance
(Various): Masterplan, Upgrade’. The appointment was accepted
on 15 September 2003 (the contract).
The contract did not fare
well. On 23 March 2007, the Department of Works appointed Coega
Development Corporation (Coega)
as implementing agent for the Frere
Upgrade Project. Coega in turn appointed architects to do essentially
the same work as Ikamva
had been appointed to do. Through a series of
events, which need not be detailed, an opinion was sought as to the
legality of the
appointment of Ikamva to the contract. The Department
was advised that the appointment contravened the provisions of, inter
alia,
s 217 of the Constitution and the contract was accordingly
invalid. As a result, on 9 July 2007 the Department wrote
to Ikamva. It indicated that it had received legal advice and stated:
‘
The
procurement of the services of your firm was unlawful since, during
the appointment process, there was a failure to act in accordance
with a system that is fair, equitable, transparent, competitive and
cost-effective, as required by the Provisions of the Constitution
and
the
Preferential
Procurement Policy Framework Act, 2000
, and the Regulations
promulgated in terms thereof.
Since
the aforesaid appointment of your firm is invalid, I advise that the
Department will henceforth not honour its obligations
in terms of the
aforesaid invalid appointment.’
[6] That
letter caused Ikamva to accept the repudiation, to cancel the
contract and, on 7 August 2008,
to sue the Departments for
damages incurred as a result of the cancellation. The action was
defended and the Departments pleaded
the invalidity mentioned above.
The Departments were called upon to make discovery of relevant
documents in terms of Uniform
Rule
35(1).
When
they failed to do so, Ikamva applied for an order directing them to
do so within ten days on pain of having their defences
struck
out. They then discovered. On 12 October 2010, Ikamva
delivered a notice in terms of
Rule 35(3)
requiring
further and better discovery by way of making additional listed
documents available for inspection and copying. This notice
was
ignored. On 26 September 2011, Ikamva applied for an order
compelling compliance with the
Rule 35(3)
notice…”
[8]
It is those proceedings that served before Majiki AJ,
giving rise to
the order of court on 10 November 2011, which the applicants seek to
rescind. The order, which was granted
unopposed, reads as
follows:
“
The
Defendants be granted a period of ten (10) days from date of service
hereof to reply to the Plaintiff’s Notice in terms
of
Rule
35(3)
dated 12 October 2010, failing which the Defendant’s
defence will be struck out and the Plaintiff will apply for judgment
against the Defendants based on the same papers, amplified if
necessary
.”
[9]
Given the applicants’ failure to comply with the
order of
Majiki AJ and on the strength of its wording, the respondent applied
for default judgment. The proceedings served
before Dukada J,
who refused to grant the relief sought, holding that on a proper
interpretation of Majiki AJ’s order, the
respondent had to
first apply to strike out the applicants’ defence prior to
seeking default judgment.
[10]
Aggrieved by this outcome, the respondent successfully appealed to
the full
court, which, in a judgment penned by Plasket J (as he then
was), set aside the order of the court a
quo
on 22 August
2014. The court, departing from convention, gave guidance to
the applicants on the way forward at paragraph
[31] of its judgment,
as follows:
“…
the
fact that in this case the defendants’ defence has been struck
out does not mean that nothing can be done by them.
They can,
even at this late stage, still comply with the order, give a full
explanation of their default and apply for their defence
to be
reinstated.
Rule 27
allows for this, even after the expiry of
the ten day period stipulated in the order
.”
[11]
I interpose to mention that in addition to this guidance, the full
court, already
at that stage, some eight years prior to the launch of
the present proceedings, expressed doubts as to competency of the
order
granted by Majiki AJ:
“
[29]
In my view, certainty and fairness dictate that the proper approach
when a party does not comply with
any of his or her obligations in
terms of
rules 35(1)
to (6) is to apply to compel compliance in terms
of
rule 35(7)
and that contemplates the striking out of a defence,
not automatically on non-compliance, but on application on the same
papers,
amplified if necessary. It is only when the court has had the
opportunity to decide that grounds exist for the striking out of the
defence that an application for default judgment may be made.
[30]
In the light of
rule 35(7)
– a purpose-made procedure to compel
discovery – I have my doubts that an order striking out a
defence automatically
is competent but I express no firm view on
that. If it is, then, in my view, it is the type of order that should
be reserved for
only the most unusual of cases, and then it would be
expected of an applicant that he or she place facts before the court
to justify
the making of such an order.
”
[12]
I highlight this
for the simple reason that the applicants, in attempting to justify
their delay in launching these proceedings,
contend that they were
alerted to this aspect for the first time during the latter part of
2021 when the full court, in subsequent
adjunct proceedings,
[4]
to which I return, queried the validity of the order of Majiki AJ.
A summary of the applicants’ principal submissions
regarding
the above can best be illustrated with reference to paragraphs [146]
to [148] of their founding affidavit:
“
146.
While the applicants were alerted to the potential invalidity of the
automatic striking out order arising
from the full court’s
issuing its directives on 18 May 2021, requesting inter alia the
parties to address this issue, it
was the Full Court’s judgment
which clarified for the applicants, that an application under
Rule 42
to rescind the automatic striking out order, was a competent and
legitimate course to follow.
147.
In a nutshell, it was the judgment of the full court which
highlighted for the applicants the appropriateness
of them relying on
Rule 42
for the relief sought in this application.
148.
Judgment of the full court was delivered on 15 March 2022. The
applicants thereafter requested
their legal team to prepare a
memorandum of advice to enable them to carefully consider the
implications of the full court judgment
and to advise on any
appropriate steps to be taken.
”
[13]
Notably, on a reading of the full court’s
judgment
(per van Zyl DJP), the full court utilised, as its starting
point, the
obiter dictum
of Plasket J. Perhaps even more
significant is that the applicants themselves rely on the judgment of
Plasket J in the development
of their argument regarding the
invalidity of the order of Majiki AJ.
[14]
I return to the timeline of events.
[15]
Notwithstanding
the guidance of the full court, as per Plasket J, the applicants,
some five months later in January 2015, launched
an application to
condone their non-compliance with the order of Majiki AJ and the
reinstatement of their defences, without first
having complied with
the order or providing an explanation for their default.
Unsurprisingly, the application, which served
before Lowe J,
was withdrawn on the date of hearing (by agreement between the
parties), with the issue of costs being left for
the court to
determine. The applicants, in recounting the events leading up
to the withdrawal of their application, are less
than candid with
this court. Firstly, the applicants disavow any knowledge as to
the reason for their election to withdraw
the application; and
secondly, they persistently contend that there had been compliance
with the order of Majiki AJ “
by
no later than 23 October 2012
”
.
[5]
That the above allegations are false is evident from paragraphs [8]
to [10] of the judgment of Lowe J, which the applicants
attached to
their founding affidavit:
“
[8]
… it is clear that the applicants demonstrated substantial
contumacy (in the face
of a court order) of an egregious nature.
To compound this, it would appear from the founding affidavit in the
condonation
application that there are indeed yet further documents
available (in possession of applicants), being particularly a batch
of
documents produced on 12 December 2014 relating to payments made
to the respondent in respect of the hospital development of the
master plan and maintenance.
[9]
Whilst counsel for applicants argues that arising from considerable
staff changes
those original role players in the matter were no
longer in the employ of applicants, making it difficult to source
documents,
this can be no answer to applicants’ failure
referred to above.
[10]
Indeed in this particular matter relevant to the application for
condonation, it appears from
the papers, and indeed is evidenced by
applicants’ withdrawal thereof, that there was no merit
therein, and that respondent
has been put to considerable unnecessary
expense in this regard.
”
[16]
The applicants’ withdrawal of the proceedings before Lowe J in
June 2015,
regard being had to the prevailing circumstances at the
time, amounts to an abandonment of their attempt to reintroduce a
defence.
[17]
The respondent, thereafter (as it was entitled to), applied for
default judgment
for damages in the sum of R41,031,279.58 on 1
December 2015, which Malusi AJ granted – this being the second
order forming
the subject matter of the present proceedings.
Despite the applicants’ defence having been struck out, by
operation
of the order of Majiki AJ, the applicants’ legal
representative was present in court when the matter was dealt with.
[18]
This is significant - but not for the reason alluded to by the
applicants.
I deal with this aspect when dealing with the
rescission of the order of Majiki AJ.
[19]
An application for leave to appeal the order of Malusi AJ was filed
conditionally
on 21 February 2016 whilst awaiting reasons for the
order. It was thereafter supplemented on 9 May 2016.
Following
argument on 16 July 2016, leave to appeal was refused by
Malusi AJ on 2 August 2016.
[20]
In the interim, the applicants applied to rescind the default
judgment on the
legal basis set out in paragraph [4] above, citing
certain alleged irregularities; misdirections; and mistakes on behalf
of Malusi
AJ when granting default judgment. The application,
which was issued during June 2016, was eventually heard on 18 May
2017.
[21]
The application served before Hartle J. I must mention (for
reasons which
shall become apparent momentarily) that the applicants,
in order to obviate any concerns relating to the
in duplum
rule,
and more particularly, to ameliorate any prejudice to the respondent
given the passage of time since the granting of the default
judgment,
agreed to an order declaring that the
in duplum
rule would not
apply to the judgment debt, which debt they accepted would be payable
in the event that they were unsuccessful in
the rescission
proceedings. This was recorded by Hartle J at paragraph [21] of
her judgment:
“…
they
agreed (which agreement was embodied in the order which I made), in
the event of them not succeeding in respect of …
the
rescission, that they would pay interest to the respondent at the
legal rate on the sum owing in terms of the order as from
the due
date to date of payment, even thought the accrued interest at that
stage already exceeded the capital amount outstanding.
”
[22]
The application for rescission was dismissed. With leave of the
court,
the applicants appealed the dismissal of their application to
the full court, which refused the appeal. Still dissatisfied,
the applicants sought leave to appeal the order of Hartle J from the
Supreme Court of Appeal and thereafter the Constitutional
Court, both
of which applications were refused.
[23]
It is unquestionable that the application for rescission of the order
of Malusi
AJ had, at that stage, been disposed of definitively.
This notwithstanding, and antithetical to their stance in relation to
the payment of the judgment debt (together with interest as agreed)
in the event of an unsuccessful outcome, no payment was forthcoming.
[24]
Having exhausted
the aforesaid remedies and faced with a writ of execution, the
applicants once again sought to circumvent the judgment
of Malusi AJ,
this time by launching self-review proceedings to
inter
alia
challenge
the appointment of the respondent as consulting architects/principal
agent, citing various alleged procurement failures
(“
the
self-review
”
).
The self-review served before Beshe J in December 2019. The
applicants were transparent as to their objective and
recorded in
their replying papers that “
the
Departments are resisting payment by way of self-review.
”
[6]
[25]
This too is evident from the relief sought in those proceedings,
which was
fashioned as follows:
“
1.
The decision of the Department
of Public Works of 29 August 2002 to appoint Ikamva Architects
CC
(the respondent) . . . is reviewed and set aside;
2.
The decision of the then
Head of Department of the Department of Public Works of 3 September
2002 to contract with the respondent . . . is reviewed and set aside;
3.
The contract concluded
between the Department of Public Works and Ikamva Architects
CC in
September 2003 . . . is declared void ab initio;
4.
The respondent is entitled
to no further payments under the contract referred to in
paragraph 3
above and in terms of the default order of Malusi AJ on 1 December
2015…;
5.
Hearsay evidence contained
in the founding and supplementary affidavits of Sabelo
Mgujulwa of 2
and 25 September 2019 respectively is hereby admitted into
evidence in terms of section 3(c) of the Law
of Evidence
Amendment Act, to the extent that it is necessary;
6.
The respondent is ordered
to pay the costs of the application, only in the event of
its
opposition.
”
[26]
It is irrefutable
that the “
the
object of the relief sought in prayers 1-3 of the notice of motion
was the relief under paragraph 4
”
,
[7]
being the avoidance of payment.
[27]
An order to stay the execution of the writ pending the outcome of the
self-review
proceedings was issued on 17 September 2019 by agreement
between the parties.
[28]
The self-review was dismissed on 16 February 2021. The
respondent, once
more, took steps to execute the default judgment,
which had been granted more than five years prior. This
precipitated a
further urgent application to stay the execution of
the judgment on 5 March 2021. The application was struck from
the roll
by Lowe J for lack of urgency and a further writ was issued
on 10 March 2021 in respect of the second applicant’s bank
account.
This was met with, yet another urgent application
launched by the applicants, this time seeking to set aside the
notices of attachment,
dated 11 March 2011; the writ of attachment,
dated 10 March 2021; and the subsequent attachment in respect of the
second respondent’s
account on 11 March 2021. The
application was postponed on various occasions, in part for the
purposes of the Judge President
to assemble a full court to hear the
application as it, in his view, involved an important issue, namely
the constitutionality
of attaching an organ of State’s bank
account, which had been left unresolved by the Constitutional Court.
[29]
As foreshadowed in paragraph [12] above, the full court, in dealing
with the
stay of execution of Malusi AJ’s order, requested the
parties to provide argument on: (i) the validity of the order of
Majiki
AJ; and (ii) to what extent the invalidity thereof (if found
to be invalid) would affect the order of Malusi AJ, which was granted
in consequence of the striking out order.
[30]
Prior to the hearing of the urgent application, the applicants’
application
for leave to appeal the dismissal of the self-review was
refused by Beshe J on 30 April 2021. The applicants thereafter
sought
leave to appeal from the Supreme Court of Appeal.
[31]
On 17 March 2022,
the full court granted an order staying the further execution of the
writs of attachment, including the removal
of the attached movables,
pending the final determination of the application for leave to
appeal the order of Beshe J, including
any consequent appeal/s.
The court, in dealing with the validity of the order of Majiki AJ,
found that whilst the order striking
out the respondents’
defence was granted erroneously as envisaged by Uniform Rule
42(1)(a), such order does not fall within
the category of orders
which, on the face of it, can be regarded as a nullity. It is
this finding that the applicants contend
crystallised the issues for
determination for the first time between the parties, resulting in
the present proceedings. Despite
the applicants’ success
in obtaining a stay of execution, they applied for leave to appeal
the full court’s findings
in respect of the validity of the
order of Majiki AJ,
[8]
to the
Supreme Court of Appeal,
[9]
which leave was granted on 23 August 2022.
[32]
The present rescission proceedings were launched on 15 September
2022.
[33]
The application for leave to appeal against the dismissal of the
self-review
proceedings was referred for oral argument by the Supreme
Court of appeal in terms of section 17(2)(d) of the Superior Courts
Act,
which proceeded on 21 November 2022. The application was
dismissed on 20 December 2022 as per the unanimous judgment of Gorven
JA, to which I have referred. Again, the applicant’s
applied for leave to appeal from the Constitutional Court, which
application was refused on 23 May 2023, definitively disposing of the
self-review proceedings.
[34]
Whilst the applicants, in the present proceedings, abjure
the relevance
of the self-review, I cannot agree. Certain
aspects of the self-review, including the findings of the Supreme
Court of Appeal,
are fundamentally significant.
[35]
Exactly one year (to the day) after having been granted leave to
appeal the
full court’s findings regarding the validity of the
order of Majiki AJ, the appeal was argued before the Supreme Court of
Appeal on 23 August 2023. Judgment is yet to be delivered.
[36]
I accordingly give
judgment being mindful that the order I intend issuing may ultimately
be rendered moot should the court uphold
the applicants’
appeal.
[10]
Conversely,
should the applicants be unsuccessful in their appeal, my intended
order shall remain binding on the parties,
subject to any further
appeal proceedings.
Issues
for determination
[37]
As foreshadowed above, the applicants seek a rescission of the orders
forming
the subject matter of this application on the grounds that
the orders were erroneously granted in their absence. In
respect
of the order of Majiki AJ, they rely on rule 42(1)(a);
alternatively the common law. Apropos the order of Malusi AJ,
reliance
is placed solely on rule 42(1)(a).
[38]
Whilst the applicants contend that the orders of Majiki AJ and Malusi
AJ fall
to be rescinded on their own accord, the main thrust of their
argument, properly considered, is that the striking out order of
Majiki AJ provided the legal basis upon which Malusi AJ subsequently
granted default judgment. Accordingly, in the event of
a
finding by this court that the order of Majiki AJ falls to be
rescinded on the basis that it was erroneously granted, it follows
that the order of Malusi AJ so too should be rescinded.
Requirements
for rescission
[39]
Prior to turning to the requirements for rescission it is worth
restating the
well-established rule that once a court has duly
pronounced a final judgment or order, it has no authority to set it
aside.
The reasons for this are self-evident. Firstly, a
court becomes
functus officio.
Secondly, it is in the
public interest that litigation be brought to finality.
Rescission proceedings arising from rule 31(2)(b);
rule 42(1)(a); and
in terms of the common law are accordingly recognised exceptions to
this general rule.
[40]
The granting of
recission is a discretionary remedy. Before a court can
exercise its discretion to rescind an order, whether
it be under rule
42(1)(a) or in terms of the common law, a litigant must meet the
jurisdictional requirements for rescission.
[11]
Put differently, even if the jurisdictional requirements are met, the
court is not compelled to grant the rescission but
is merely endowed
with a discretion to do so. Such discretion must be exercised
judicially. In this regard, the Constitutional
Court in
Zuma
(
supra
),
in approving the principles set out in
Chetty
(
supra
)
stated as follows:
[12]
“‘
broadly
speaking, the exercise of a court’s discretion [is] influenced
by considerations of fairness and justice, having regard
to all the
facts and circumstances of the particular case.’. One of
the most important factors to be taken into account
in the exercise
of discretion, so the court in Chetty found at 760H and 761E, was
whether the applicant has demonstrated ‘a
determined effort to
lay his case before the court and not an intention to abandon it’
for ‘if it appears that [an
applicant’s] default was
wilful or due to gross negligence, the court should not come to his
assistance’. And,
as stated in Naidoo and another v
Matlala NO and others
2012 (1) SA 143
(GNP)… at para [4], a
court will not exercise its discretion in favour of a rescission
application if undesirable consequence
would follow.
”
[41]
I now turn to the respective orders of court and deal, in turn, with
the requirements
for rescission under rule 42(1)(a) and the common
law, where applicable.
Order
of Majiki AJ - Uniform Rule 42(1)(a)
[42]
In terms of rule 42(1)(a), 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 an order or judgment erroneously
sought or erroneously granted in
the absence of any party affected
thereby. It is not disputed that the applicants are affected
parties falling within the
ambit of the rule.
[43]
An applicant who seeks to rely on rule 42(1)(a) has the onus of
proving the
existence of both requirements enumerated therein;
namely, that: (i) the order sought to be rescinded was granted in
his/her absence;
and (ii) it was erroneously sought or erroneously
granted. It is of no assistance to an applicant if he/she is
only able
to discharge the onus in respect of one of these two
requirements.
“
[G]ranted
in the absence of any party affected thereby”
[44]
This requirement
does not create a ground of rescission for litigants who opt to be
absent despite having been afforded procedurally
regular judicial
process. Simply put, it exists to protect litigants whose
presence was precluded and not those who elected
to be absent.
[13]
[45]
The Constitutional Court in
Zuma
, in considering this aspect,
stated as follows at paragraph [60]:
“…
the
issue of presence or absence has little to do with actual, or
physical, presence and everything to do with ensuring that proper
procedure is followed so that a party can be present, and so that a
party, in the event that they are precluded from participating,
physically or otherwise, may be entitled to rescission in the event
that an error is committed.
I
accept this. I do not, however, accept that litigants can be
allowed to butcher, of their own will, judicial process which
in all
other respects has been carried out with the utmost degree of
regularity, only to then, ipso facto (by that same
act),
plead the “absent victim”. If everything turned on
actual presence, it would be entirely too easy for litigants
to
render void every judgment and order ever to be granted, by merely
electing absentia (absence).
”
[46]
The Court went on to state, at paragraph [61] of its judgment:
“…
Our
jurisprudence is clear: where a litigant, given notice of the case
against them and given sufficient opportunities to participate,
elects to be absent, this absence does not fall within the scope of
the requirement of rule 42(1)(a). And, it certainly
cannot
have the effect of turning the order granted in absentia, into
one erroneously granted
.”
[47]
Whilst the order of Majiki AJ was granted in the physical absence of
the applicants,
it is common cause that they were aware of the
application which gave rise to the order from as early as 30
September 2011, and
that a notice of set down for 27 October 2011 was
served on the offices of the state attorney, representing all three
applicants,
on 14 October 2011. On the date of hearing, the
application was postponed to 10 November 2011. That a further
notice
of set down in respect of the postponed hearing date was
served on 7 November 2011, three court days prior to 10 November
2011,
is of no consequence. On 10 November 2011, some six weeks
following service of the application, Majiki AJ granted the order
which the applicants seek to rescind.
[48]
In the papers before me, the applicants’ deponent, who has been
their
attorney of record throughout the preceding litigation, after
setting out the common cause facts regarding the events recorded in
paragraph [47] above, offers no more than the following tenuous
explanation for the matter having proceeded unopposed:
“
32.
… On Monday 7 November 2011, a notice of set down for 10
November 2011 (later that week,
Thursday) was served on Shared Legal
Services, which is the office of the Premier. The notice of set
down afforded the applicants
two business days (08 – 09
November) to appear at court. Shared Legal Services, despatched
the papers to the office
of the State Attorney on 7 November 2011
(the day it was received). The notice of set down having come
to my attention, I
informed the respective legal advisors at the
applicant departments that the matter was set down for hearing on 10
November 2011.
33.
I, however, did not get any instructions from the respective legal
advisors at the applicant
departments before 10 November 2011.
34.
On 10 November 2011, in an unopposed application before Majiki AJ,
the Court granted an
order in the following terms:
“…”
35.
A copy of the Majiki AJ order is annexed as “B” hereto.
This order was
not served on the applicants until Friday 30 March
2012 (four months later).
36.
However, at the time the order was served on the State Attorney on 30
March 2012, the applicants
were not in possession of the information
and documentation to which the order pertained, and therefore were
unable to provide
those documents to the respondent, despite their
best efforts, within the 10 (ten) day timeframe.
”
[49]
Given the applicants’ obvious (and admitted) knowledge of the
proceedings
for weeks prior to the initial date of hearing, 27
October 2011, including knowledge of such date, their reliance on the
alleged
short service of the subsequent notice of set down is
opportunistic. The applicants had undoubtably been afforded
procedurally
regular judicial process and had every opportunity to be
present in court on 27 October 2011 (on which date the application
was
postponed to 10 November 2011), having already received notice of
the application and set down. They were in no way precluded
from participating in the proceedings, physically or otherwise.
[50]
Explanations as to: (i) what attempts were made by the applicants’
legal
representative to obtain instructions during the period of 30
September 2011 to 7 November 2011; (ii) why the applicants had failed
to oppose the application during the aforesaid period; (iii) and why
their legal representative elected not to attend court on
the date of
hearing to oppose the application; alternatively, to seek a
postponement of the matter had he or the applicants required
more
time, are glaringly absent on the papers before me.
[51]
Implicit in the above is that the decisions: (i) not to oppose the
application;
and (ii) to not attend court on the date of hearing,
were deliberate.
[52]
A further aspect under this sub-heading requires comment. In
addition
to the issue of short service, the applicants go to great
lengths to place reliance on the parties’ initial
misunderstanding
as to the effect of the order of Majiki AJ (this
being the automatic striking out of the applicants’ defence),
to prove that
the order was granted in their absence. The main
thrust of the argument is apparent from paragraph 162 of the
applicants’
founding affidavit which states that:
“
As already set
forth earlier herein, the State Attorney, the applicants, and the
respondent’s attorneys, assumed that the
order handed down by
Majiki AJ did not automatically strike out the applicants’
defence and that a further legal process
was required
.”
[53]
Whilst that may be so, what the applicants do not state is that it
was for
this reason that they elected not to oppose the initial
proceedings before Majiki AJ, allowing the application to proceed
(and
the order to be granted) unopposed in their absence.
Moreover, they do not contend that had they been aware of the true
nature
of the relief sought at the relevant time, they would have
opposed the proceedings and ensured their presence in court on the
day
in question. It is further significant that since the
granting of full court’s judgment by Plasket J, in August 2014,
in which the nature of the order was settled, the applicants have
taken no steps up until now to seek a rescission.
[54]
Accordingly, despite the applicants’ vociferous assertions to
the contrary,
there is no basis upon which I can find that they were
absent in the sense envisaged by rule 42(1)(a). This alone
signals
the end of the matter for the applicants insofar as they seek
relief in terms of 42(1)(a) of the rules.
[55]
However, given the circumstances of this matter and more
particularly, the
history of the litigation between the parties, I
find myself constrained to consider a number of further aspects.
“
Erroneously
granted”
[56]
An applicant seeking to prove this requirement must show that
the order
they seek to rescind was granted erroneously because:
“…
there
existed at the time of its issue a fact which the Judge was unaware,
which would have precluded the granting of the judgment
and which
would have induced the Judge, if aware of it, not to grant the
judgment.
”
[14]
[57]
This aspect was dealt with by the full court in the urgent
application to stay
the execution of Malusi AJ’s order, to
which I have referred. The basis for such finding appears from
paragraphs [18]
to [21] of the judgment:
“
[18] It
must be accepted that the Majiki J order was erroneous on the basis
that it followed a one- as opposed to two-stage procedure. Uniform
Rule 35(7) does not contemplate the striking out of a defence
automatically but rather on application on the same papers, amplified
if necessary. As noted by Plasket J, it is only when a court
has had
the opportunity to decide that grounds exist for the striking out of
a defence that an application for default judgment
may be made. The
dismissal of a claim or the striking of a defence is a drastic
remedy, and the power to grant such a remedy is
discretionary, a
discretion that must be exercised judicially. The power to
strike out a defence is derived from the Uniform
Rules. The
interpretation and application of a court rule often requires a
consideration of the provisions of the Constitution. Section
34
is relevant in this respect, providing that everyone has the right to
have a dispute that can be resolved by the application
of law decided
by a court or tribunal in a fair public hearing. The striking out of
a plaintiff’s claim or a defendant’s
defence has a
far-reaching impact on this right. It has the potential to deprive a
litigant of a fair trial, bringing an end to
a claim or defence. In
the case of a defendant, the usual effect of a striking out is to
prevent the presentation of a defence
so that judgment will be
entered for the plaintiff, subject to any further order of court.
[19] By
following a one-step process, the court did not have the opportunity
to consider whether it had been proved that the party concerned had
failed to comply with the rule in question. There was then
no option
to remedy the breach by giving the party the opportunity to comply.
The consequence was that the court did not have the
opportunity to
exercise its discretion in determining what, if any, procedural
consequence should follow because the party had
failed to remedy the
breach. This was a discretion to be exercised judicially on the facts
before court and bearing in mind that
striking out should normally be
a last resort, considering that it has the potential to deprive a
litigant of an entrenched right
to a fair trial. A virtue of the
Uniform Rules is that it provides for flexible remedies for breaches
of the Rules, giving
the court the opportunity to make the sanction
fit the breach. Importantly, the discretion should only be
exercised after
the defendant has been given an opportunity to be
heard in compliance with the audi alteram partem rule.
[20] This
did not happen in the present matter. The defence was struck out in
the absence of the Departments and without:
(a) The
applicant requesting the striking out having placed any facts before
the
court justifying the granting of such a far-reaching
order;
(b) The
Departments having first been placed in a position to either seek
condonation
for their failure to comply with the order to compel, or
to convince the court not to strike out their defence and to make an
alternative
order that would ensure compliance with the order to
compel discovery without the drastic step of striking out their
defence.
(c) The
court having been placed in a position to exercise its discretion
judicially,
as envisaged by Uniform Rule 35(7), and to make an
informed decision.
[21] The
order striking out the Departments’ defence was therefore
granted
erroneously as envisaged in Uniform Rule 42(1)(a). Uniform
Rule 42 provides for the rescission and variation of an order or
judgment.
In terms of this rule, the High Court has a discretion, in
addition to any other powers it may have, to mero motu or
upon application of any party affected, rescind or vary an order or
judgment ‘erroneously sought or erroneously granted in
the
absence of any party affected thereby’.
”
[58]
The parties are conflicted as to whether the above was part of the
full court’s
ratio decidendi
or whether the comments
were merely
obiter.
The significance of the distinction
being axiomatic. However, given that I am in agreement with the
full court that
the order striking out the applicants’ defence
was erroneously granted, for the reasons stated, it is unnecessary
for me
to resolve this impasse. This finding is however cold
comfort for the applicants given their failure to prove that the
order
was granted in their absence.
Order
of Majiki AJ – Common Law
[59]
In the
alternative, the applicants seek the rescission of the order of
Majiki AJ in terms of the common law. In order to succeed,
the
applicants bear the onus of establishing that there is “sufficient”
or “good cause” to warrant the
rescission. Whether
or not “sufficient” or “good cause” has been
established depends on whether the
applicants have: (i) furnished a
reasonable and satisfactory explanation for their default of
appearance; and (ii) shown that on
the merits that they have a
bona
fide
defence,
which
prima
facie
carries
some prospect of success.
[15]
[60]
It is well
established that the above test is dual in nature. In other
words, it is conjunctive and not disjunctive.
What this means
is that an acceptable explanation of the default must co-exist with
evidence of reasonable prospects of success
on the merits.
[16]
Accordingly, it is not sufficient if only one of the two requirements
is met.
[17]
As set out
in Chetty (supra):
“
It is not
sufficient if only one of these two requirements is met; for obvious
reasons a party showing no prospect of success on
the merits will
fail in an application for rescission of a default judgment against
him, no matter how reasonable and convincing
the explanation of his
default. An ordered judicial process would be negated if, on the
other hand, a party who could offer no
explanation of his default
other than his disdain for the Rules was nevertheless permitted to
have a judgment against him rescinded
on the ground that he had
reasonable prospects of success on the merits
.”
[61]
Having already found, in paragraph [51] of this judgment, that the
applicants’
decisions not to oppose the application; and to not
attend court on the date of hearing, were deliberate (for the reasons
stated)
– it follows that the applicants have failed to provide
a plausible or acceptable explanation for their default.
Without
wishing to belabour the point, which I have already dealt
with in some detail above, this puts an end to the applicants’
common law enquiry, and it is unnecessary for me to make a finding
on, or to consider, the applicants’ prospects of success.
[62]
The effect of my above findings is two-fold. Firstly, the
applicants
have failed to establish the requirements for a rescission
of the order of Majiki AJ, which order accordingly stands.
Secondly,
the only way in which the order of Malusi AJ can be
rescinded is if the applicants have established the requirements for
a rescission
in terms of rule 41(1)(a) in respect of the order itself
- they cannot rely on what they anticipated would be a domino effect,
ultimately resulting in the rescission of the order.
Order
of Malusi AJ - Uniform Rule 42(1)(a)
[63]
I have dealt with the jurisdictional requirements for a recission in
terms
of rule 42(1)(a) already.
“
[G]ranted
in the absence of any party affected thereby”
[64]
There can be no question that the applicants received due and
effective notice
of the proceedings – this much is
self-evident.
[65]
It is difficult to understand on what basis the applicants contend
that the
order of Malusi AJ falls to be rescinded, should I decline
to rescind the order of Majiki AJ (which I now have). I say
this
for the following reason.
[66]
In short, the applicants argue that their default was not wilful or
deliberate,
which is evidenced by the fact that their counsel was
present in court on the day on which the order of Malusi AJ was
granted.
Their absence, being “
absent in the legal
sense
” given Malusi AJ’s view that the applicants’
counsel was not permitted to participate in the proceedings by reason
of the applicants’ defence having been struck out.
[67]
Let me first state that the decision of Malusi AJ was, in the
circumstances,
patently correct. Secondly, and somewhat
disingenuously, what the applicants do not disclose is the limited
basis upon which
their counsel attempted to appear on the day in
question. The following exchange is apparent from the record of
proceedings:
“
MR
NYANGIWE
:
M’Lord insofar as the default judgment this is a two pronged
approach, it is an application
for a default judgment based on the
quantum and then they are seeking damages arising from the quantum.
M’Lord the
defendant is not participating as to determining the
merits, that has been done and dusted, but it is only insofar as the
issue
of quantum is concerned, which in fact we invite the court to
hear the defendant in that regard.
…
MR NYANGIWE
:
The issue M’Lord as I have said is discretion and in fact
insofar as the participation insofar as determination of the amount
that has to be awarded then that part M’Lord, my submission is
then there is nothing [inaudible]… it is not an issue
to
determine liability, it is not an issue to determine the liability
that one is done and dusted, we had enough of that.
…
COURT
:
What did you mean when you said it is done and dusted, because when
you say it is done and dusted I thought any of the previous
judges
that dealt with this matter has given judgment on the merits and what
is outstanding is quantum that is the impression I
had.
MR NYANGIWE
:
All I mean M’Lord is insofar as that is concerned the defendant
did not come out and say [inaudible] that is in that particular
defence, insofar as the merits are concerned [interrupted].
COURT
:
Why can’t, why can’t the defendant do that?
MR NYANGIWE
:
Because the defence has been struck out.
”
[68]
Ex facie
the transcript, at no stage during the proceedings
before Malusi AJ did the applicants: (i) challenge the striking out
order; (ii)
attempt to apply for condonation and the reinstatement of
their defences; or (iii) make submissions in respect of their
purported
defence on the merits, which issues they inarguably
accepted had already been disposed of.
[69]
The applicants had no entitlement to participate in the proceedings
before
Malusi AJ. They had, at that stage, been given ample
opportunity to participate but instead elected to abandon their
application
for condonation and the reinstatement of their defence,
which served before Lowe J. Insofar as they were in any manner
precluded
from participating in the proceedings, this was of their
own doing. It ill behoves the applicants to now contend that
they
are the absent victims. Any finding in favour of the
applicants in this respect would amount to an absurdity in the
context
of these proceedings.
[70]
In such circumstances, the applicants could never be found to be
absent in
the sense articulated in
Zuma
(
supra
) and
accordingly the application for rescission of the order of Malusi AJ
must fail without the need to first consider the further
requirement
under rule 42(1)(a).
[71]
I must add that even if the applicants had managed to prove the
existence of
the necessary requirements for the rescission of either
or both of the orders in question, this would not have been
sufficient
for the granting of the relief sought. The reason
for this is two-fold. Firstly, the applicants have failed to
demonstrate
a determined effort to lay their case before the court -
to the contrary, they have shown a strong intention to abandon it.
Secondly, given the circumstances of this matter, I am of the view
that considerations of fairness and justice militate against
the
granting of rescission.
[72]
I deal with these further aspects in turn.
Acquiescence
in the orders of court
[73]
The applicants
contend that they have, at no stage, acquiesced in the orders that
they seek to challenge, citing as proof of this
proposition, their
continuous endeavours to challenge the order of Malusi AJ, in one
form or another. To my mind, it is clear
that the applicants’
efforts show no more than their persistent and contrived actions to
render nugatory, the order of Malusi
AJ, which constitutes a valid,
binding, enforceable, extant order
[18]
(in addition to the numerous judgments and orders granted
thereafter), with the sole purpose of escaping liability for the
payment
of the judgment debt, together with interest thereon.
[74]
It is
impermissible to belatedly attack a judgment in circumstances such as
the present, where the applicants have, by their conduct,
demonstrated an acquiescence in the orders granted against them.
[19]
The applicants repeatedly gloss over their conduct from which
their acquiescence is clear.
[75]
The applicants have been aware of order of Majiki AJ since 2011 and
yet elected
not to challenge the order by way of appeal or rescission
prior to launch of the present proceedings. Thereafter, the
applicants
permitted the matter to proceed before Dukada J without
challenging the existence or validity of the order.
Notwithstanding
that Plasket J, as long ago as August 2014, expressed
doubts as to the competency of the order, the applicants again
elected not
to challenge the order. They thereafter brought and
abandoned an application for condonation and the reinstatement of
their
defences. When the matter proceeded before Malusi AJ, the
applicants irrevocably confirmed that they had abandoned any
challenge
to the order of Majiki AJ as can be seen from the
transcript of proceedings.
[76]
In the rescission proceedings before Hartle J, the applicants
unambiguously
placed on record, their acceptance that the judgment
debt would be payable in the event of their lack of success in the
rescission
proceedings.
[77]
Significantly, the applicants thereafter, in their papers filed in
support
of the self-review, conceded the definitive disposal of the
rescission application. More importantly, the applicants’
acceptance of the validity of the default judgment was recorded by
Gorven JA at paragraph [9] of his judgment, in the following
terms:
“
It must be
clearly stated at the outset that, during argument, any contention
that the default judgment was anything other than
competent, valid
and binding was expressly abandoned. As such, this application for
leave to appeal must be determined on that
basis and on that basis
alone.
”
[78]
The applicants’ acceptance of the default judgment as
competent, valid
and binding is further demonstrated by the content
of paragraph [120] of their founding affidavit and paragraph [111] of
their
replying affidavit filed in the self-review, which respectively
read as follows:
“
120.
Ikamva can suffer no prejudice other than the issue of finality.
It will get interest on the money
if successful (and the Departments
have agreed to the payment of interest to ensure that the respondent
is not prejudiced by the
in duplum cap).”
“
111.
On 25 September 2019 the Eastern Cape Provincial Exco resolved that
Provincial Treasury must take steps to
comply with the terms of the
court order should the review application be unsuccessful.
”
[79]
Thereafter, on 15 March 2021, the then MEC for Finance for the
Eastern Cape
Provincial Government, granted an indemnity in terms of
section 66(2)(b) of the Public Finance Management Act in respect of
the
self-review which provided that the Province of the Eastern Cape
shall, in circumstances where an appeal of the review application
is
unsuccessful and where the applicants are liable to pay the judgment
debt and interest thereon, pay to the respondent the sum
of one
hundred and twenty million rand (R120,000,000.00) upon finalisation
of the case in favour of the respondent.
[80]
The applicants have, at least since August 2014, been aware of (or
ought to
have known) the legal basis upon which this application was
brought. As intimated above, the comments of the full court, by
Van Zyl DJP, upon which the applicants purportedly rely for the
launching of this application, are merely an extrapolation of the
comments of Plasket J, made some 10 years ago.
[81]
It is irrefutable that the applicants have unequivocally and
expressly, as
well as by their conduct, conveyed their intention to
be bound by the orders in question. This belated challenge,
contextually,
is not merely too late to be meaningful in any respect,
but it is opportunistic in the extreme.
Considerations
of fairness and justice and the finality of litigation
[82]
The binding nature
and the importance of giving effect to final orders (and judgments)
of court is a central pillar of our Constitution
and of the rule of
law. This sentiment has repeatedly been expressed by the
Constitutional Court, for example in
Municipal
Manager O.R. Tambo District Municipality and Another v Ndabeni
,
[20]
wherein the court quoted from its prior decision
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[21]
as follows:
“
If the
impression were to be created that court orders are not binding, or
can be flouted with impunity, the future of the judiciary,
and the
rule of law, would indeed be bleak.
”
[83]
More pertinently, contextually, Gorven JA, writing for the Supreme
Court of
Appeal in the self-review proceedings, in considering
whether it would be just and equitable to grant the relief sought in
paragraph
4 of the applicants’ notice of motion (ie that the
respondent is entitled to no further payments under the contract and
in
terms of the default order of Malusi AJ on 1 December 2015),
stated as follows at paragraph [35] of the court’s judgment:
“
In
prayer 4, the Departments attempted to enlist the assistance of the
court in their efforts to undermine ‘the dignity and
authority
of the courts’ by rendering nugatory a perfectly valid,
binding, enforceable, extant judgment. In my view,
this can and
should not be countenanced. I am fortified in this conclusion by what
was said in Bengwenyama to the effect
that, in arriving at
a just and equitable order under s 172(1)(b) of the
Constitution, ‘[t]he rule of law must
never be relinquished . .
. ’. It seems to me that the relief sought strikes at the very
heart of the Constitution and the
rule of law. In these circumstances
it cannot be just and equitable to grant prayer 4 of the notice of
motion.
”
[84]
Albeit that the above comments were made in the context of review
proceedings;
that the relief sought strikes at the heart of the
Constitution and the rule of law, is of equal relevance in the
context of the
present rescission proceedings and I accordingly align
myself therewith. There is a strong public interest in both
certainty
and finality, hence the requirement that applications for
rescission are required to be brought either within specific time
periods
(as is required by rule 31(2)(b)); alternatively, within a
“
reasonable time
” where such application is
brought on the grounds relied upon herein.
[85]
What is meant by
the phrase “
reasonable
time
”
was
considered in the context of review proceedings by the Supreme Court
of Appeal in
Altech
Radio Holdings (Pty) Limited and Others v City of Tshwane
Metropolitan Municipality.
[22]
Such time period is reckoned from when the applicants knew or ought
to have known of the grounds upon which reliance is placed.
The
core contention advanced by the applicants is that the delay is
reasonable because: (i) of their persistent challenge regarding
the
respondent’s entitlement to judgment; (ii) of the clarificatory
directives issued by the full court and its subsequent
judgment
“
which
crystalised the issues for determination for the first time between
the parties
”
;
and (iii) they had at no stage been “
advised
to bring an application in terms of Rule 42(1)(a) to set aside the
order of Majiki AJ.
”
I cannot agree
with the aforesaid reasoning.
[86]
I have already dealt with the applicants’ motivation behind
their persistent
challenge. This is of no assistance to the
applicants. Contextually, whether or not the applicants had or
had not previously
been advised to bring rescission proceedings in
terms of rule 42(1)(a) to rescind the order of Majiki AJ, is
singularly irrelevant.
It is simply not open to a litigant to
keep revisiting extant judgments over and over on the basis of newly
obtained legal knowledge.
And perhaps more importantly, as I
have already shown, on a factual level,
the
basis for attacking the order of Majiki AJ, as relied upon by the
applicants, was known; alternatively, ought to have been known,
many
years ago.
[87]
I am further and
in any event, of the view that highly undesirable consequences would
follow should rescission of the orders be
granted at this stage,
being years after their granting and following their unsuccessful
challenge in multiple courts. It
will create legal uncertainty
with potentially chaotic consequences in circumstances where
litigants were entitled to assume that
the party against whom the
order was granted had accepted its finality.
[23]
[88]
Accordingly, even if the applicants had succeeded in proving the
jurisdictional
requirements for rescission, which they did not, I
would in any event have declined to exercise my discretion in favour
of granting
the orders sought.
Conclusion
[89]
In light of the aforesaid, the applicants’ application falls to
be dismissed
with costs. Given the conduct of the applicants, I
am inclined to exercise my discretion in favour of granting a
punitive
cost order as sought by the respondent. I am further
of the view that the employment of two counsel was justified.
[90]
In the circumstances, the following order is issued:
1.
The applicants’ application is dismissed.
2.
The applicants are ordered to pay the respondents costs on a scale as
between attorney and client, including
the costs of two counsel.
I
BANDS
JUDGE
OF THE HIGH COURT
Coram:
Bands
J
Date
heard:
4 May
2023
Further
documentation:
8 May
2023
Date
of judgment:
25
April 2024
Appearances:
For
the applicants:
Adv
MA Albertus SC (together with S Sephton)
Instructed
by:
Gordon
McCune Attorneys
36
Taylor Street
King
Williams Town
Instructed
by: The State Attorney
Old
Spoornet Building
17
Fleet Street
East
London
For
the respondent:
Adv
IJ Smuts SC (together with Adv AG Dugmore SC)
Instructed
by:
Stirk
Yazbek Attorneys
c/o
Squire Smith & Laurie Inc
44
Taylor Street
King
Williams Town
[1]
Save
for a challenge raised by the applicants in an application for leave
to appeal the full court’s finding regarding the
validity of
the order of Majiki AJ, made pursuant to queries raised by the
court,
mero
motu
,
in proceedings dealing with the stay of execution of judgment in
MEC
for The Department of Public Works and Others v Ikamva Architects
and Others
2022
(6) SA 275
(ECB), which presently awaits judgment from the Supreme
Court of Appeal.
[2]
Whilst the respondent was previously cited as Ikamva Architects CC,
such entity was converted to a private company from a close
corporation on 17 November 2022. Ikamva Architects (Pty) Ltd
was thereafter duly substituted as the plaintiff in the main
proceedings (and accordingly as the respondent herein).
[3]
(544/2021)
[2022]
ZASCA 184
(20
December 2022).
[4]
MEC
for The Department of Public Works and Others v Ikamva Architects
and Others
2022
(6) SA 275 (ECB).
[5]
And accordingly, prior to the matter having served before Dukada J
for default judgment – not that this would, in any event,
have
assisted the applicants given the wording of the order issued by
Majiki AJ.
[6]
MEC for
the Department of Public Works, Eastern Cape and Another v Ikamva
Architects CC
2023
(2) SA 514
(SCA) (20 December 2022) at paragraph 17.
[7]
MEC
for the Department of Public Works, Eastern Cape and Another v
Ikamva Architects CC
2023
(2) SA 514 (SCA) (20 December 2022).
[8]
As well as in respect of the court’s findings in respect of
the
State Liability Act, 20 of 1957
.
[9]
The
applicants contend that the full court erred and misdirected itself
in the following respects (regarding the order of Majiki
AJ):
“
1
The Court, with respect, erred in not finding that the order of
Majiki AJ was
a nullity and, in this regard, more particularly erred
in not finding that:
1.1
it cannot be said that Majiki AJ lacked jurisdiction to grant the
order striking out the
Departments’ defence;
1.2
inasmuch as Uniform
Rule 35(7)
gives a Court the authority or power
ro strike out a Defendant’s defence, the incorrect exercise
thereof, does no per se,
render the order of Majiki AJ invalid;
1.3
it cannot be found that Malusi AJ acted outside of his powers in
granting the application for
default judgment.
2
Alternatively to the Court’s finding as set forth in paragraph
1
above, the Court with respect, erred:
2.1
in not rescinding mero motu the order of Majiki AJ in the
proceedings before it, given the
Court’s conclusion that the
order of Majiki AJ had been erroneously granted in the absence of
any party affected thereby
and given the Court’s power to make
such order mero motu;
2.2
in finding against the weight of the
evidence, that it had not been placed in a position to
make an
informed decision as to the exercise of a discretion as envisaged in
Uniform
Rule 42(1)(a).
”
[10]
Which
finding is thereafter not overturned in subsequent appeal
proceedings.
[11]
Minister
for Correctional Services and another v Van Vuuren and another; In
re Van Vuuren v Minister for Correctional Services
and others
2011
(10) BCLR 1051
(CC) at para [7].
Zuma
v Secretary of the Judicial Commission of Inquiry
2021
(11) BCLR 1263
(CC) at para [50].
[12]
At
para [53] read with fn 20.
[13]
Zuma
v Secretary of the Judicial Commission of Inquiry
2021
(11) BCLR 1263
(CC) at para [56].
[14]
Nyingwa
v Moolman NO
1993
(2) SA 508
(Tk) at 510D-G.
Zuma
(
supra
)
at para [62].
[15]
Zuma
(
supra
)
at para [71].
Government
of the Republic of Zimbabwe v Fick and others
[2013]
ZACC 22
,
2013 (5) SA 325
(CC) at para
[85]
.
[16]
Chetty
(
supra
)
765D – E.
[17]
Zuma
(
supra
)
at para [71].
[18]
See
the comments of Gorvan JA at para [35] in the proceedings which
served before the Supreme Court of Appeal (supra).
[19]
Whitehead
and Another v Trustees of the Insolvent Estate of Dennis Charles
Riekert and Others
[2020]
ZASCA 124 at para [22].
[20]
2023 (4) SA 421 (CC).
[21]
2021 (9) BCLR 992 (CC).
[22]
2021 (3) SA 25 (SCA).
[23]
MEC
for The Department of Public Works and Others v Ikamva Architects
and Others
2022
(6) SA 275 (ECB) at para [29].
Department
of Transport and Others v Tasima (Pty) Limited
2017
(2) SA 622 (CC).