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[2023] ZAECELLC 12
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Kosani v Buffalo City Metropolitan Municipality and Others (EL2227/2022) [2023] ZAECELLC 12 (14 March 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
Case No: EL2227/2022
In the matter between:
MAWETHU
KOSANI APPLICANT
and
BUFFALO CITY
METROPOLITAN FIRST
RESPONDENT
MUNICIPALITY
THE SPEAKER, BUFFALO
CITY SECOND
RESPONDENT
METROPOLITAN
MUNICIPALITY
CITY MANAGER, BUFFALO
CITY THIRD
RESPONDENT
METROPOLITAN
MUNICIPALITY
HEAD OF DEPARTMENT,
PUBLIC FOURTH
RESPONDENT
SAFETY AND EMERGENCY
SERVICES
BUFFALO CITY
METROPOLITAN
MUNICIPALITY
PROVINCIAL
COMMISSIONER, SOUTH FIFTH RESPONDENT
AFRICAN POLICE
SERVICE,
EASTERN CAPE
LWAZI
NKOSANA SIXTH
RESPONDENT
JUDGMENT
MBENENGE JP:
[1]
On 15 December 2022, by virtue of a rule
nisi
returnable on 19
January 2023, the first to fourth respondents (the respondents) were
called upon to show cause, if any, why they
should not reinstate the
security protection that had been granted to the applicant and which
was subsequently withdrawn on 01
December 2022, and to do whatever is
necessary within their available resources to protect and guarantee
the physical safety of
the applicant. The order was made to operate
as interim relief pending the finalisation of Part B of the
application.
[2]
The launch of these proceedings was a sequel to a death threat
allegedly received by the applicant after he
had participated, in his
capacity as Democratic Alliance councillor, in proceedings of the
Buffalo City Metropolitan Municipal
Council, on 24 August 2022.
[3]
On the return day (19 January 2023), the applicant appeared in person
and the respondents were legally represented.
[4]
It is common cause that the applicant was not ready to argue the
matter, but the respondents were. According
to the applicant, he was
desirous of having the matter postponed so as to secure legal
representation and have his rights redressed.
His erstwhile attorneys
withdrew due to “
a misunderstanding regarding the payment of
their legal fees
.” The court encouraged the parties to
discuss the future conduct of the case and reach agreement in
relation thereto.
[5]
After the discussions had been held, the applicant acquiesced to an
order discharging the rule
nis
i and postponing the matter,
sine die
, for the purposes of dealing with Part B of the
application.
[6]
The applicant now seeks an order reviving the rule
nisi
,
alternatively varying the order by substituting same with one
extending the rule
nisi
pending the outcome of Part B. In the
further alternative, the applicant seeks an order reinstating the
security protection previously
granted to him on terms not less
favourable than those which existed prior to the impugned withdrawal.
[7]
In support of the application, the applicant states:
“
When
we held discussions outside the courtroom with the 1
st
to
the 4
th
respondents’ legal representatives, I was
given no options and a postponement was categorically refused. I felt
under pressure
and very nervous as this was the first time I had to
appear in person before a presiding officer. As a result, I
acquiesced to
an order that the Rule Nisi be discharged and that the
matter be postponed
sine die
for the purposes of dealing with
Part B of my application.”
He says, as a lay person
lacking appreciation for court rules and procedures, in acceding to
the impugned order, he did not envisage
that the order would
effectively result in him losing protection. Hence, when he left the
court premises after the order had been
granted, he was still in the
company of his protectors.
[8]
In the view of the applicant, the order is liable to be rescinded
because it is the product of undue influence
or pressure meted out to
him by the respondents’ legal team during the negotiations
preceding the grant of the order.
[9]
On the other hand, the respondents, in pursuit of their opposition to
the application, contend that during
the negotiations the applicant
was given an option to either proceed and move for a postponement
application or to consent to the
discharge of the rule
nisi
.
There was no undue influence or pressure put on the applicant.
[10]
The relevant portion of the affidavit further reads:
“
26.7
During the settlement talks, the applicant requested time to speak to
someone to receive advice over the phone. The applicant
was asked who
he was talking to, and he refused to give the name. This happened
when the applicant suggested that the parties should
expedite the
review proceedings by writing a letter to the Judge President. The
applicant was informed that the step would be premature
to expedite
the review when the review record was not out, and the applicant had
not supplemented his founding papers. In any event,
the matter before
court was Part A and not Part B. It was evident that the applicant
was getting legal advice over the phone.
26.8
The applicant was informed of the consequences of proceeding with a
postponement in light of the fact that he brought
the urgent
application against the municipality and that the municipality was
incurring costs for his protection.
26.9
The applicant was encouraged to ponder about his invidious position.
26.10
The applicant contacted his advisor telephonically again, the
applicant returned and informed the municipality’s
legal
representatives that he consent to the discharge of the rule nisi
with costs.
26.11
Thereafter a draft order was prepared and taken back to the judge in
Chambers. The contents of the draft order were
explained to the
applicant.
26.12
Mr Bangani informed me that he is surprised and perplexed that the
applicant is blaming the municipality’s legal
representatives
for his choice.”
[11]
Much as a consent order following upon a settlement has the same
standing and qualities as any other court order and
is
res
judicata
as
between the parties regarding the matters covered,
[1]
in this matter it would be overly simplistic of me and not in the
interest of justice to gloss over the paramount question –
did
the parties’ minds meet regarding the consequence of the
discharge of the rule
nisi
?
This is a troubling aspect of the case, which, in my view, deserves
of being enquired into even before a determination is made
with
regard to the relief the applicant might be entitled to.
[12]
The alleged agreement to discharge the rule
nisi
underlies the
order sought to be rescinded. According to the respondents, a
compromise was reached; it is thus not available to
this court to
revisit the impugned order.
[13]
The enquiry does not end there. A compromise may be set aside if it
was obtained fraudulently
[2]
or
on the grounds of mistake, provided that the order vitiated consent
and did not merely relate to the motive of the parties or
to the
merits of the true dispute, which was the purpose of the parties to
compromise.
[3]
The same goes for
undue pressure or influence.
[14]
The dispute of fact between the parties as to how the negotiations
were conducted renders it well-nigh impossible for
me to decide the
matter on the papers.
[15]
Accordingly, the following order is made:
1.
The application is referred for the hearing of oral evidence
for a determination of –
1.1
whether the applicant was unduly influenced to consent to the
order discharging the rule
nisi
granted on 15
December 2022;
1.2
what relief should be granted; and
1.3
what cost order should be made.
2.
The Registrar is directed to enrol this matter on an expedited
basis.
3.
The provisions of rules 35, 36, 37 and 37A shall forthwith
apply to this application.
4.
Costs are reserved for determination by the court hearing oral
evidence.
S M MBENENGE
JUDGE PRESIDENT OF THE
HIGH COURT
Appearances:
Counsel for the applicant
:
D
Skoti
Instructed
by : Lwazi
Dekeda Inc.
East
London
Counsel for the
respondents :
A
Mafu
Instructed
by :
Bangani Attorneys
East
London
Heard
on : 09
February 2023
Delivered on
: 14
March 2023
[1]
Moraitis
Investments (Pty) Ltd v Montic Diary (Pty) Ltd and Others
[2017]
3 AllSA 485
(SCA),
2017 (5) SA 508
(SCA), para 10.
[2]
Rowe v
Rowe
[1997] ZASCA 54
;
[1997] 3 AllSA 503
(A),
1997 (4) SA 160
(SCA);
Botha
v Road Accident Fund
2017 (2) SA 50 (SCA).
[3]
Gollach
v Comperts (1967) (Pty) Ltd v Universal Mills and Produce Co (Pty)
Ltd
1978 (1) SA 914
(A);
Wilson
Bayly Holmes (Pty) Ltd v Maeyane
(1995)
2 AllSA 173
(T),
1995 (4) SA 340
(T).