About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 29
|
|
King Sabata Dalindyebo Local Municipality v Zwelitsha (CA78/2022) [2023] ZAECMHC 29 (13 June 2023)
FLYNOTES:
CIVIL PROCEDURE –
Notice of set down –
Matter
not opposed
–
Default judgment obtained after matter set down
without notice – Municipality not given notice of the
“stated
day” on which the relief would be sought
against it should it fail to give notice of opposition –
Court a quo
erred in finding that the omission of a stated day in
the notice of motion had no “external effect” –
Omission
of a stated day constituted a procedural irregularity –
Uniform Rule 6(5)(b)(iii) and Eastern Cape Rule 23(m).
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION: MTHATHA)
CASE
NO: CA78/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In the matter between:
KING
SABATA DALINDYEBO LOCAL MUNICIPALITY
Appellant
and
BEKENTLA
ZWELITSHA
Respondent
JUDGMENT
POTGIETER J
Introduction
[1] This is an appeal
against the refusal by Matebese AJ (“the court
a quo”)
on 3 February 2022 of an application for rescission of a default
judgement granted against the appellant (“the Municipality”)
on 17 November 2020 by Dukada AJ.
[2]
The court a quo granted leave to appeal on 31 May 2022 to the Full
Court in respect of a limited issue only relating to conflicting
judgements in respect of Rule 23(m) of the
Rules
Regulating the Conduct of the Proceedings of the Eastern Cape
Division of the High Court of South Africa
(“Eastern
Cape Rules”). The Supreme Court of Appeal (“SCA”)
subsequently granted leave to appeal on 11 August
2022 to the Full
Court against the entire order of the court a quo.
Brief Background
[3] The background
briefly is that the respondent was employed on 23 May 2005 by the
Municipality as an Inspector in the Department
of Safety and Security
at its Mthatha offices. During June 2006 he was appointed as the
Acting Assistant Security Manager with
effect from 1 June 2006. It
was agreed that he would receive an acting allowance representing the
difference between his normal
salary and the commencing salary of an
Assistant Security Manager. This allowance was paid intermittently
and was completely stopped
during August 2019. As a result, the
respondent launched proceedings for the reinstatement of the
allowance. The papers were served
on the Municipality who failed to
give notice of opposition. The matter was then set down without any
notice to the Municipality
and the relief being sought was granted by
default to the respondent by Dukada AJ on 17 November 2020 as
indicated. The costs of
the application, which were granted in favour
of the respondent, were taxed and recovered from the Municipality.
The latter brought
a rescission application in respect of the order
of Dukada AJ approximately at the same time that the respondent took
steps to
obtain a contempt of court order in respect of the remaining
relief granted by Dukada AJ which the Municipality had failed to
comply
with. As indicated, the rescission application was dismissed
by Matebese AJ which in turn spawned the present appeal.
Merits
[4]
There are various grounds set out in the notice of appeal for the
Municipality’s contention that the default judgement
was
erroneously sought or granted as contemplated in rule 42(1)(a)
[1]
.
However, the matter can be disposed of on a limited issue relating to
the setting down of the default judgement before Dukada
AJ arising
from non-compliance with the provisions of Uniform Rule 6(5)(b)(iii)
and Eastern Cape Rule 23(m). I proceed to deal
with that issue.
(i)
Non-compliance with rule 6(5)(b)(iii)
[5]
The notice of motion in respect whereof default judgement was granted
was defective in the following respects. It failed to
comply with
rule 6(5)(a) which requires that applications must be brought on
notice of motion as near as may be in accordance with
Form 2(a) of
the First Schedule of the Uniform Rules. The cause of such
non-compliance is the failure to give effect to the requirement
of
rule 6(5)(b)(iii) that the applicant ‘
must
further state that if no … notification
[to
oppose]
is given the application will be
set down for hearing on
a
stated day
, not being less than
10 days after service on the said respondent of the said notice’
(emphasis added)
.
The Municipality was therefore not given notice of
the ‘
stated day’
on which the relief would be sought against it
should it fail to give notice of opposition. This much is common
cause between the
parties. The actual issue is the effect of such
non-compliance.
[6]
The notice of motion complied in the remaining respects with Form
2(a). It accordingly was not required to nor did it state
the hearing
date at the commencement of the notice as applies in the case of
ex parte
applications
in terms of rule 6(4)(a) read with Form 2. The upshot of all this was
that the notice of motion did not provide any
date on which the
application would be moved. The Municipality was thus not notified
when the matter would be heard in court. The
respondent did prepare a
notice of set down that contained the date of the hearing, but it was
not served on the Municipality.
I will revert to the latter issue.
[7] The court a quo held
that the non-compliance with rule 6(5)(b)(iii) was inconsequential
and that the respondent was entitled
in the circumstances to set the
matter down and to obtain judgement without notice to the
Municipality. It held as follows in this
regard:
“
[24]
… In my view the present non-compliance, complained about by
the applicant, falls in the category that can be condoned
by a court.
It is not visited with a nullity. That is clear from the purpose of
the rule which, in the core, is to afford the respondent
an
opportunity to oppose the application by filing a notice to oppose
within the prescribed time and by filing an opposing or answering
affidavit, where so advised. This is to honour the age old audi
principle.
[25] However, once a
respondent, like the applicant in casu, has elected not to file a
notice to oppose that clearly signals an
intention not to oppose the
matter. The failure to indicate a date on which the matter will be
heard in the notice of motion
has no external effect
. It does
not deprive him of any procedural right. His election not to oppose
the matter remains binding on him irrespective.
[26] I accordingly
disagree with the applicant’s argument that the provision of
the rule is peremptory such that non-compliance
results in a nullity.
I also disagree with the argument that the failure constitutes an
irregularity that would entitle the applicant
to rescission under
rule 42 of the Uniform rules of court.
[27] In my view the
respondent was procedurally entitled to set down the matter in the
manner he did. He was therefore procedurally
entitled to the
judgement or order which he obtained by default on 17 November 2020.
The applicant, who had not filed any notice
to oppose after having
been afforded fifteen days to do so, was not procedurally entitled to
be served with a notice of set down
by the respondent.
[28] It is trite that
a judgement to which a party is procedurally entitled cannot be
considered to have been granted erroneously
by reason of facts of
which the judge who granted the judgement, as he was entitled to do,
was unaware.”
(emphasis supplied)
[8] Mr Kunju SC, who
appeared on behalf of the Municipality together with Ms Gqetywa,
submitted that the court a quo erred in finding
that the respondent’s
non-compliance with rule 6(5)(b)(iii) was inconsequential and had no
external effect. He submitted
that the rule gives effect to the fair
trial rights enshrined in the Bill of Rights and was enacted for the
benefit of respondents
in motion proceedings. The relevant provision
of the rule was not complied with by the respondent which amounted in
this instance
to a breach of the Municipality’s fair trial
rights.
[9]
Mr Zono, who appeared on behalf of the respondent, submitted that the
Municipality was given due notice of the application by
means of the
service of the papers upon it. The Municipality elected not to
exercise its right to oppose the application and is
now raising
purely technical objections motivated by opportunism. Given the fact
that the application was not opposed the respondent
was entitled to
set the matter down in terms of rule 6(5)(c) without notice to the
Municipality. The court order was served on
the Municipality and it
partly complied with the order by paying the respondent’s taxed
costs. The rescission application
was prompted by a contempt of court
application launched by the respondent in respect of the
Municipality’s failure to comply
with the rest of the relief
granted in favour of the respondent. In the present matter, the
respondent complied with the requirement
of fairness by affording the
Municipality the requisite period to oppose the application, which it
elected not to do. The omission
of a ‘
stated
day’
for hearing the matter if it
is unopposed was not fatal where the Municipality was afforded
sufficient opportunity to oppose the
application. The purpose of rule
6(5)(b)(iii) was to afford the respondent an opportunity to oppose
the application by filing the
notice of opposition and answering
affidavit, which was substantially complied with. In the
circumstances, the respondent was procedurally
entitled to set the
matter down in terms of rule 6(5)(c) and to obtain default judgement
against the Municipality.
Discussion
[10]
It is trite that in interpreting rule 6(5((b)(iii) the court should
be mindful that ‘ …
[w]hatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the materials known to
those
responsible for its production’.
[2]
It
is readily apparent that the relevant provisions of the rule are
peremptory and have been enacted for the benefit of the respondent
in
motion proceedings. The purpose is to notify the respondent when the
application would be heard in line with the requirement
of fairness
which encapsulates the well-established
audi
alteram partem
rule
and the right of access to courts as entrenched in section 34 of the
Bill of Rights.
[11] Form 2(a)
incorporates the provisions of rule 6(5)(b)(iii). It contains the
following concluding paragraph: ‘
If no such notice of
intention to oppose is given, the application will be made on the
___________ at _____________ (time)’.
The text of rule
6(5)(b)(iii) and the prescribed form thus both require that a date
should be provided on which the application
would be heard if no
notice of opposition is given.
[12]
The requirement of a ‘
stated
day’
as
contained in rule 6(5)(b)(iii) was considered by the Gauteng
Division, Johannesburg, albeit in the context of an eviction
application,
in the matter of
Meme-Akpta
[3]
where
the notice of motion omitted the inclusion of a stated day for the
hearing, if the matter was unopposed. The court held as
follows in
this regard:
‘
This
omission is, without more, fatal to the application and it should not
be entertained. Indeed the registrar is not empowered
to issue such
an application in the absence of a stated date for appearance on the
notice of motion. This notwithstanding, the
unopposed motion Court is
often faced with such inchoate process. The notice of motion is then
followed by a notice of set down
which is apparently meant to cure
this illegality. What is envisaged is that a respondent may be faced
with notice of process but
given no means to appear and deal with
it.’
[4]
[13] That court
furthermore held that the delivery of a notice of set down does not
cure the defect in question. This issue, however,
does not arise in
the present matter where the notice of set down was not delivered to
the Municipality.
[14]
The same issue was considered by the Gauteng Division, Pretoria in
Auswell
Mashaba
[5]
where
it was held as follows:
“
[15]
Rule 6(5)(b)(iii) ensures that a respondent is given notice of when
relief is being sought against them. Requiring notice of
a stated day
is not a formalistic application of procedural rules. The rule,
whilst procedural in nature, protects a fundamental
principle of
fairness – that generally a person be afforded an opportunity
to be heard before a court grants any relief against
it. In this
case, the respondents were not provided adequate notice as they were
not informed of the day on which relief would
be sought against them.
[16] One can imagine
an argument that it is the respondent’s inaction that paved the
applicant’s path to seek relief
in the unopposed court.
However, our courts have held that ‘if the notice of motion is
defective, it makes no difference
that the respondents did not
respond’.
[17] The applicant’s
contention is that there is no requirement to provide a notice of set
down in the context of default
applications. This misses the point.
The concern is not the failure to provide a notice of set down. The
concern is the failure
to provide a stated day on which relief would
be sought in the notice of motion. …
[18]
The procedural requirement of notice safeguard
(sic)
the fundamental principle of audi alteram
partem. The notice requirement ensures that the respondent is aware
of proceedings and
provided a true opportunity to be heard. The
notice requirement has not been met and consequently the principle of
audi breached.”
[15]
I agree with the general import of the conclusion in both
Meme-Akpta
and
Auswell
Mashaba
that
the omission in a Form 2(a) notice of motion of a stated day for the
hearing if the application is unopposed, amounts to a
material defect
and violates the requirement of fairness and the
audi
alteram partem
principle.
As indicated by the Supreme Court of Appeal in
DF
Scott
[6]
‘
[r]ules
of court are designed to ensure a fair hearing and should be
interpreted in such a way as to advance, and not reduce, the
scope of
the entrenched fair trial right’.
[16]
In
Mukaddam
[7]
the
Constitutional Court stated that:
‘
However,
a litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable
the court to
adjudicate a dispute. In the main these procedures are contained in
the rules of each court. The Uniform Rules regulate
form and process
of the high courts. The Supreme Court of Appeal and this court have
their own rules.
These
rules confer procedural rights on litigants
and
also help in creating certainty in procedures to be followed if
relief of a particular kind is sought.’
(emphasis added)
[17]
The SCA held as follows in
Eke
[8]
:
‘
[39]
Without doubt, rules governing the court process cannot be
disregarded. They serve an undeniably important purpose.
…
[40]
Under our constitutional dispensation, the object of court rules is …
to ensure a fair trial or hearing.’
[18]
The following dicta of the Constitutional Court in
Social
Justice Coalition
[9]
are
also apposite:
‘
[51]
The right to access to court is more than simply the right to
approach a court and initiate a case in support of a justiciable
dispute. The object of going to court is to secure a decision on a
dispute and the language of section 34 expressly extends to
the right
to have a dispute decided. Similarly, the process by which a decision
is reached is also covered by the right in its
reference to a ‘fair
hearing’. Put differently, section 34 is a right that
guarantees access to court to have a dispute
decided in a fair public
hearing.
…
[54] The rules of
Court provide both details of substance and of procedure that govern
the litigation of disputes and it would be
fair to say that those
rules seek to broadly achieve the fair and efficient management of
the litigation process. Fairness is ensured
by allowing the proper
participation of parties and the full ventilation of issues …’
[19]
It is not necessary in the present matter to finally decide (as the
court in
Meme-Akpta
seemingly
did
)
whether
the omission of a stated day rendered the notice of motion a nullity
or whether the defect could have been cured by the
delivery of a
notice of set down to the Municipality. I do, however, agree with the
conclusion in
Meme-Akpta
that
this omission was ‘
fatal’
to the application in that the request for default
judgement should not have been entertained or been granted in the
circumstances
in the absence of the said material defect having been
cured.
[20] The court a quo
erred, in my view, in finding that the omission of a stated day in
the notice of motion had no ‘
external effect’
. On
the contrary, the fair trial rights of the Municipality were clearly
breached in the circumstances. The purpose of requiring
notification
of a stated day for the hearing, if the matter is not opposed, is to
inform the respondent when the application would
serve before the
court. The purpose of the rule is not limited only to allowing a
respondent an opportunity to oppose the application
by filing a
notice of opposition or an answering affidavit as the court a quo
erroneously found. The respondent must be informed
of the date of the
hearing. The obvious benefit is that the respondent can still appear
on that date to seek an opportunity to
oppose or to present a
defence, despite having, for whatever reason, missed the deadlines
stipulated in the notice of motion. This
serves to promote the
objectives of fairness and the
audi alteram partem
principle.
The omission of a stated day accordingly constituted a procedural
irregularity for the purposes of rule 42(1)(a).
(ii)
Eastern Cape Rule 23(m)
[21]
Mr Kunju furthermore contended that the delivery of the notice of set
down only to the Registrar constituted a breach of Eastern
Cape Rule
23(m)
[10]
which resulted in a
material irregularity. During argument, Mr Zono on the other hand
submitted that Rule 23(m) only covers those
institutions envisaged in
section 1(2)
of the
State Liability Act, 20 of 1957
, that are
represented by the State Attorney. This excludes municipalities. The
latter are creatures of statute. Section 115(3)
of the Local
Government: Municipal Systems Act, 32 of 2000 (“the Systems
Act”) requires that all legal process be served
on the
municipal manager. The Municipality accordingly falls outside the
scope of Rule 23(m).
[22] The court a quo
considered this issue and held that the purpose of Rule 23(m) was to
extend the right in question only to state
organs and entities that
are represented by the State Attorney. This does not apply to
municipalities. The court thus came to the
conclusion, without any
elaboration, that it would result in an absurdity to extend the
provisions of Rule 23(m) to the Municipality.
[23]
At the hearing of the application for leave to appeal, the attention
of the court
a
quo
was
drawn to the decision in
Umzimbuvu
Local Municipality
[11]
where
Norman J found that municipalities, as organs of state, are included
in Rule 23(m).
[12]
This
judgment was handed down on 29 March 2022, after the delivery of the
judgment of the court
a
quo
on
3 February 2022. The court
a
quo
nonetheless
quite correctly considered the judgment and dealt with it in its own
judgment on the application for leave to appeal.
The court
a
quo
disagreed
with the conclusion of Norman J. It held that municipalities are not
government departments as envisaged in the
State Liability Act. The
latter Act requires that legal process involving such departments be
served on the office of the State Attorney. The court
a
quo
furthermore
expressed the view that it serves no purpose and is not sensible to
insist on the service of a notice of set down on
the State Attorney
whose office does not represent municipalities in litigation. It
would therefore be absurd to ascribe such an
interpretation to Rule
23(m) given that municipalities do not get represented or served at
the State Attorney.
[24]
In my view, the court a quo erred in its interpretation of Rule
23(m). Municipalities are undoubtedly organs of state as defined
in
section 239 of the Constitution
[13]
as well as in section 1 of Act 40 of 2002
[14]
.
As such they form part of the State. I am in full agreement with the
reasoning of Norman J in this regard in
Umzimbuvu
Local Municipality.
[15]
[25] The clear purpose of
Rule 23(m) is to alert State litigants to pending applications for
default judgement in order to afford
them an opportunity to protect
their interests. There is no reason in principle or logic nor is
there any conceivable considerations
of policy why municipalities
being part of the State, should be deprived of this benefit. It does
not follow expressly or by necessary
implication from the text of the
rule. In fact, it could be expected that if the intention was to
single out municipalities as
the only state organs not entitled to
the benefit, this much would have been expressly stated in the rule.
The exclusion of municipalities
also does not follow by necessary
implication from the reference in the rule to the State Attorney. The
intention in this regard
clearly was to require that notice be given
to a representative of the relevant State organ in the context of
pending litigation.
The inclusion of municipalities therefore
coincides with the purpose of Rule 23(m).
[26]
Section 115(3) of the Systems Act identifies the municipal manager as
the official on whom legal process should be served.
Rule 23(m),
being subordinate legislation with similar status to the Uniform
Rules
[16]
, should be
interpreted consistently with the applicable statutory provision.
Accordingly, in the case of municipalities, Rule 23(m)
would be
substantially complied with if the notice of set down is served on
the municipal manager. In cases where the municipality
might be
represented by the State Attorney (which, although not statutorily
prohibited,
[17]
currently does
not readily occur in practice) service on the latter would naturally
be sufficient. It might be necessary, in the
interests of the proper
administration of justice, for consideration to be given to amending
the rule in order to avoid anomalies
such as have arisen in the
present matter. Nonetheless, in order to give the necessary guidance,
it is in the interests of justice
that the above interpretation of
the rule in so far as municipalities are concerned, be reflected in
the order granted in this
matter.
[27] It follows that the
provisions of Rule 23(m) were binding on the respondent who was
obliged to serve the relevant notice of
set down on the Municipality.
His failure to do so, constituted a procedural irregularity as
envisaged in Rule 42(1)(a) which precluded
the granting of default
judgement against the Municipality.
Conclusion
[28]
For the reasons set out above, default judgement was therefore
erroneously sought or granted against the Municipality as
contemplated
in Rule 42(1)(a)
[18]
.
As the SCA indicated
‘
[w]here
notice of proceedings to a party is required and judgment is granted
against such party in his absence without notice of
the proceedings
having been given to him such judgment is granted erroneously’.
[19]
The
default judgment should thus have been rescinded by the court a quo.
In view of this conclusion, it is not necessary to deal
with any of
the other grounds relied upon by the Municipality for such relief.
[29] There is no merit in
my view in any of the other defences raised by the respondent. It
needs to be pointed out in this regard
that the Municipality has
clearly not acquiesced in the judgement by having paid the taxed
costs as contended by the respondent.
The municipal manager indicated
in the replying affidavit that he was unaware of such payment.
Furthermore, that the Municipality’s
accounts section that made
the payment would not have known that the matter was under challenge.
He expressly indicated that the
Municipality has not acquiesced in
the judgement and that the payment would be recovered from the
respondent. He also stated in
the founding affidavit that he became
aware of the matter for the first time in December 2020 when the
relevant court order was
brought to his attention. The attorneys of
the Municipality investigated the matter in January 2021 and the
rescission application
was launched at the beginning of March 2021.
These averments were not disputed in the respondent’s answering
affidavit. Furthermore,
none of the substantive relief granted was
ever implemented by the Municipality. The defence of acquiescence is
accordingly not
supported by the facts.
[30] Finally, while Rule
31(4) does not require that a notice of set down be given where no
notice of opposition is delivered, it
is of no assistance to the
respondent in the present matter where Rule 23(m) applies and
expressly requires that such notice be
given.
[31] In the
circumstances, the appeal should succeed. In my view the employment
of two counsel by the Municipality was not warranted.
In fact, the
appeal was ably argued by the respondent’s attorney himself.
The costs of two counsel are therefore not justified.
[32] In the result the
following order shall issue:
(a)
The appeal is upheld with costs;
(b)
The order of the court a quo issued on 3 February
2022 is set aside and substituted with the following order-
“
1.
The order granted in this matter on 17 November 2020 is hereby
rescinded and set aside;
2.
The respondent is ordered to pay the costs of the application.”
(c)
It is declared that in the case of applications
for default judgement against a municipality as envisaged in Eastern
Cape Rule 23(m),
the applicant is required to serve the notice of set
down on the Municipal Manager or a person in attendance at the
Municipal Manager’s
office, alternatively on the State Attorney
in cases where the latter is the attorney of record for the
municipality.
D.O. POTGIETER
JUDGE OF THE HIGH
COURT
I agree:
N.G. BESHE
JUDGE OF THE HIGH
COURT
I agree:
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
APPEARANCE
For
the appellant:
Adv
V Kunju SC and Adv C Gqetywa
Instructed
by:
Jolwana
Mgidlana Inc,
Mthatha
For
the respondent:
Mr
Zono
Instructed
by:
Zono
and Associates,
Mthatha
Date
of hearing:
04/24/23
Date
of delivery of judgment:
06/13/23
[1]
The rule provides
that:
‘
(1) 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:
(a)
an order or judgment erroneously sought or granted in the absence
of any party affected thereby.’
[2]
Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012(4) SA 593
(SCA) at para [18].
[3]
Meme-Akpta &
Another v The Unlawful Occupiers of ERF 1168, City and Surban, 44
Nuggett Street,
Johannesburg &
Another
(38141/2019)
[2022] ZAGPJHC 482 (26 July 2022)
[4]
at para [18]
[5]
Auswell
Mashaba v The Judicial Commission of Enquiry into Allegations of
State Capture, Corruption and
Fraud in the
Public Sector, Including Organs of State & Others
Case No.
14261/2021 dated 16 July 2022
(unreported)
[6]
DF Scott (EP)
(Pty) Ltd v Golden Valley Supermarket
2002(6) SA 297
(SCA) paragraph [9].
[7]
Mukaddam v
Pioneer Foods (Pty) Ltd
2013(5) SA 89
(CC) at para [31]
[8]
Eke v Parsons
2016(3)
SA 37 (CC) at paras [39]-[40];
Arendsnes
Sweefspoor CC v Botha
2013(5)
SA
399
(SCA) at para [19].
[9]
Social
Justice Coalition & Others v Minister of Police & Others
2022(10)
BCLR 1267 (CC)
.
[10]
The rule is to
the following effect:
‘
In all cases
in which judgment by default is sought against the State (which will
include applications
where the State has
failed to timeously file either a notice of opposition or its
opposing papers) a notice
of set down is
to be served on the State attorney at least five days before the
hearing’.
[11]
Umzimbuvu
Local Municipality v Price Waterhouse Coopers Inc
Case No.
2913/2020 Eastern Cape
Division,
Grahamstown dated 29 March 2022 (unreported)
[12]
The court stated
at para 32: ‘
I
am of the view that because municipalities are included in Act 40 of
2002
as
beneficiaries of the notice to be issued before an action is brought
against them, that being a
procedural
issue, there is no logical reason to exclude them when a similar
protection (that of service of
the notice of
set down) is extended to the state by rule 23(m). … I have no
doubt that if the intention was
to exclude
municipalities (as an organ of state) from the provisions of rule
23(m) that would have been
expressed in
the rule itself. I accordingly find that the municipality as an
organ of state is included in the
rule and
failure to serve on it of the notice of set down constitutes a
procedural error as envisaged in rule 42(1)(a).’
[13]
In terms of the
definition organ of state means ‘
any
department of state or administration in the national,
provincial or
local sphere of government’.
[14]
The Act titled
Institution
of Legal Proceedings against certain Organs of State Act
defines an organ
of state as ‘
(b)
a municipality contemplated in section 151 of the Constitution’.
[15]
Supra fn 12.
[16]
National Pride
Trading 452 (Pty) Ltd v Media 24 Ltd
2010(6) SA 587
(ECP) at para [31].
[17]
Umzimbuvu
Local Municipality
supra
fn 11 at para [31].
[18]
National Pride
Trading
supra
fn 16 at para [33].
[19]
Lodhi 2
Properties Investments CC & Another v Bondev Developments (Pty)
Ltd
2007(6)
SA 87 (SCA)
at
para [24].