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[2022] ZAMPMBHC 5
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Value Pools (Pty) Ltd v Community Property Co (Pty) Ltd (496/2020) [2022] ZAMPMBHC 5 (25 January 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 496/2020
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED.
25/1/2022
In
the matter between:-
VALUE
POOLS (PTY) LTD t/a GOOD PRICE 4
U
Applicant
and
COMMUNITY
PROPERTY CO (PTY)
LTD
Respondent
In
re
:-
COMMUNITY
PROPERTY CO (PTY)
LTD
Applicant
and
VALUE
POOLS (PTY) LTD t/a GOOD PRICE 4
U
Respondent
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
In this matter the applicant (the
respondent in the ejectment application and herein referred to as
“Value Pools”) applies
for rescission of an order by the
late Sigogo AJ, granted on 7 September 2020 (“the ejectment
order”). In terms of
the ejectment order the court evicted
Value Pools from the commercial premises known as Shop 4 (Portion 3
of Erf 2276, KaNyamazane-A
Township) situated at Chris Hani Street,
KaNyamazane, Mpumalanga (“the premises”).
[2]
The respondent (the applicant in the
ejectment application and herein referred to as “Community
Property Co”) launched
the ejectment application, which gave
rise to these proceedings. At the time Community Property Co was the
registered owner of
the premises.
BACKGROUND
[3]
The facts are largely common cause.
[4]
The ejectment application was served on
Value Pools on 25 February 2020 at both the premises and at Value
Pools’ chosen
domicilium
-address.
[5]
On 27 February 2020 Value Pools delivered a
notice of intention to oppose but failed to file an opposing
affidavit as envisaged
in Rule 6(5). The
dies
to do so having expired on 19 March 2020.
Per the notice of motion, the matter would be
enrolled for hearing on an unopposed basis on 17 April 2020, in the
event that the
matter was not opposed.
[6]
On
26 March 2020 the National Lockdown was imposed, the effect of this
being that per the issued directives of this Division, unopposed
matters set down on 17 April 2020 would be re-enrolled for hearing on
22 May 2020.
[1]
[7]
By 13 May 2020, two months after expiry of
the
dies
,
Community Property
Co still did not receive
an opposing affidavit. Community Property Co caused a notice of set
down to be served on Value Pools, informing
them that the matter was
enrolled for 22 May 2022,on the unopposed roll.
[8]
On the eve of the unopposed hearing, Value
Pools wrote to Community Property Co wherein it advised that it noted
that the matter
had been enrolled on the unopposed roll, however the
matter is opposed as a notice of intention to opposed had been filed.
Value
Pools explained that consultations with counsel, in order to
finalise its opposing affidavit, could not take place due to the
lockdown.
Community Property Co was requested to remove the matter
from the unopposed roll and to place it on the case management roll.
In
response, Community Property Co advised that the matter will not
be removed from the unopposed roll, as the
dies
for delivering an opposing affidavit had lapsed
prior to the onset of the lockdown. The matter therefor being
unopposed.
[9]
On 22 May 2020, and in the absence of the
parties, in keeping with the directives in respect of unopposed
motions during said period
of the lockdown, the matter came before
Kgoele J. It was ordered that the matter is opposed, and as such
postponed to a date on
the case management roll which would be
arranged with the registrar.
[10]
According to the respondent no case
management hearings were held from the onset of the lockdown. The
case management procedures
were resumed on 14 October 2020 under
Covid-19 Directive No 8.
[11]
Still
not having received any opposing affidavit, Community Property Co
elected, to again proceed with the matter on an unopposed
basis. On 4
August 2020
[2]
they again serve
a notice of set down for hearing of the matter on the unopposed roll
for 7 September 2020 on Value Pools. Value
Pools did not respond
hereto.
[12]
On 31 August 2020 Community Property Co
served an index and practice note on Value Pools. No communication
was received from Value
Pools in response. Value Pools failed to
appear on the 7
th
of September 2020 and the ejectment order (now sought be rescinded)
was granted during a virtual hearing.
[13]
On 28 September 2020 the ejectment order
was served on Value Pools. No communication was received from Value
Pools. On 6 October
2020 a warrant of ejectment was delivered to the
Sheriff for execution on.
[14]
On 2 November 2020 this rescission
application was served on Community Property Co.
CASE FOR AND
AGAINST RESCISSION
[15]
This
rescission application is founded on Rule 42(1)(a) of the Uniform
Rules of Court, in that it is alleged that the ejectment
order had
been erroneously sought and granted in Value Pools’ absence. In
substantiation it has been alleged that after service
of the
ejectment application, Value Pools filed its notice of intention to
oppose. This, according to Value Pools, ought to have
triggered
paragraph 7.2 of the practice directives
[3]
,
which hold that every opposed motion shall be case managed upon
delivery of a notice to oppose or any time thereafter, and that
a
Form B shall be completed by the parties or their legal
representatives during the judicial case management hearing.
[16]
With
reference to paragraph 7.4 of said directive, the registrar, within 5
(five) days upon the filing of a notice to oppose, enrolls
the matter
on the case management roll at 08h45 on any court day before any
judge available. Any party shall be entitled to place
the matter on
the case management roll upon the delivery of a notice to oppose, or
at any stage of litigation.
[4]
[17]
During
the case management conference, the date of the hearing and time
frames for the filing of an answering affidavit, replying
affidavit
and written heads of argument shall be determined and set by the
parties or their legal representatives.
[5]
[18]
It
was stated on the founding affidavit that “
no
matter shall be enrolled for hearing unless it has gone through the
judicial case management
”
process,
and the date of hearing was determined during the judicial case
management conference.
[6]
[19]
It is contended by Value Pools that contra
the aforesaid provisions, and the fact that it filed a notice of
intention to oppose,
Community Property Co elected to set the matter
down on the unopposed roll of 22 May 2020. Even after the order of 22
May 2020
(referring the matter for case management), Value Pools
failed to do so. According to Value Pools, Community Property Co
ought
to have employed paragraph 4 of Covid-19 Practice Directive No
6, dated 3 June 2020, which provides that the parties or their legal
representatives shall jointly complete a Form B, and thereafter file
the form with the registrar when a set of court papers is
handed over
to the registrar by an applicant in terms of paragraph 15 of Covid-19
Practice Directive 5A.
[20]
Value Pools argued that in disregard for
aforesaid, Community Property Co again elected to serve a notice of
set down on Value Pools
on 31 July 2020, enrolling the matter on the
unopposed roll of 7 September 2020. It is on this basis that it is
argued that the
ejectment order was erroneously sought and granted,
as:-
“
the
matter is opposed and the matter should have been enrolled for case
management, although the applicant did not file its answering
affidavit…. The time frames for the filing of an answering
affidavit, replying affidavit and written heads of argument shall
be
determined and set by the parties or parties’ legal
representatives during case management conference.
”
[21]
In justification it was contended on behalf
of Community Property Co that Value Pools was obliged to deliver its
answering affidavit
within 15 (fifteen) days from 27 February 2020 as
dictated by Rule 6(5)(d)(ii). Therefore, the
dies
having expired on 18 March 2020, the matter is
unopposed, and the respondent was entitled to proceed on said basis.
[22]
It was argued by Community Property Co that
the Form B, as contained in the court’s directives, cannot be
seen to replace
the Uniform Rules of Court. Further, that during the
period 27 March 2020 to 14 October 2020, there was no case management
conducted
in this Division.
[23]
Community Property Co contends that the
ejectment order was not erroneously sought or granted, as Value Pools
was well aware of
the hearing date on the unopposed roll, but
nevertheless decided not to appear. It did so in circumstances where
it was informed
that Community Property Co considers the matter to be
unopposed in the absence of an opposing affidavit being filed.
[24]
Value Pools was therefore aware of the date
of hearing, the relief which would be sought and the potential
consequence should the
relief be granted. Notwithstanding, Value
Pools still elected to not appear at the hearing. Or for that fact
engage Community Property
Co.
[25]
Community Property Co argued that the late
Sigogo AJ was fully aware of all the pertinent facts underpinning
such ejectment application,
as specifically dealt with in the
practice note. Copies of the e-mail exchanges between the parties’
attorneys were also
placed before the late Sigogo AJ.
THE APPLICABLE
PRINCIPLES
[26]
Under
Rule 42(1) as well as the common law, a court’s power to
rescind a final order is limited. This is so as a rescission
may only
be granted in circumstances where the common law or the rules of
court specifically permit it.
[7]
[27]
In
the present matter, Value Pools elected to confine its application to
Rule 42(1). As held by the Supreme Court of Appeal in the
matter of
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[8]
:-
“
Rule
42 is confined by its wording and context to the rescission or
variation of an ambiguous order or an order containing a patent
error
or omission (Rule 42(1)(b)); or an order resulting from a mistake
common to the parties (Rule 42(1)(c)); or 'an order erroneously
sought or erroneously granted in the absence of a party affected
thereby' (Rule 42(1)(a)). … The trend of the Courts over
the
years is not to give a more extended application to the Rule to
include all kinds of mistakes or irregularities.”
[28]
It
is important to bear in mind that the purpose of Rule 42(1) is “
to
correct expeditiously an obviously wrong judgment or order
”,
[9]
and that the power to grant rescission under Rule 42(1) is
discretionary.
[10]
[29]
For a party to successfully rely on Rule
42(1)(a) it needs to prove (1) that an order was granted in its
absence and (2) that such
order was either erroneously sought or
erroneously granted.
[30]
Rule 6(5)(d)(ii) provides as follows:-
“
Any
person opposing the grant of an order sought in the notice of motion
must:
(i)
within the time stated in the said
notice, give applicant notice, in writing, that he or she intends to
oppose the application …
(ii)
within fifteen days of notifying the
applicant of his or her intention to oppose the application, deliver
his or her answering affidavit,
if any, together with any relevant
document; and…
”
[31]
The
rule further provides that where no answering affidavit, or notice in
terms of sub-section (iii) of paragraph (d) is delivered
within the
period referred to in sub-paragraph (ii) of paragraph (d), an
applicant may within 5 (five) days of the expiry thereof,
apply to
the registrar to allocate a date for the hearing of the
application.
[11]
[32]
In terms of the practice directive the
following is relevant:-
“
7.
ENROLMENT AND MANAGEMENT OF OPPOSED MATTERS
7.1
No opposed matter shall be enrolled for hearing unless it has gone
through the judicial case management process
and the date of hearing
was determined during judicial case management conference.
7.2
Every opposed motion matter shall be case managed upon delivery of
notice to oppose or any time thereafter
and Form B shall be completed
by the parties or their legal representatives during the judicial
case management conference.
7.3
Any party shall be entitled to approach the registrar to place the
matter on the case management roll upon
delivery of notice to oppose
or at any stage of litigation.
7.4
The registrar shall within five days upon the filing of notice to
oppose or any time thereafter, enrol such
a matter on the case
management roll at 08h45 on any court date before any judge
available, and the file or files shall be properly
indexed and
paginated by the applicant at least two clear court days before the
date of the judicial case management conference…
7.6
During the case management conference the date of hearing and the
time frames for the filing of answering
affidavit, replying affidavit
and written heads of argument shall be determined and set by the
parties or parties’ legal
representatives…”
“
8.
UNOPPOSED MOTIONS
…
8.6
Should any unopposed application become opposed, it shall not be
removed from the unopposed motion role. Instead,
it shall be case
managed to the date in question and enrolled on the opposed motion
roll by completion of Form B.”
“
IN
THE ABSENCE OF ANY PARTY AFFECTED THEREBY
”
[33]
Notwithstanding it requiring address, Value
Pools, in the papers before court, fails to deal with its absence.
Value Pools confirms
however that it received a notice of set down
dated 31 July 2020. This set down indicating the matter to be
enrolled for hearing
on 7 September 2020. But, Value Pools fails to
state what it did in response hereto.
[34]
It is so that a respondent would ordinarily
not appear at a unopposed hearing. But the same cannot be said of a
respondent who has
or seriously intends to oppose an application.
Even more so when such respondent have been made aware of the fact
that the applicant
intends to proceed on an unopposed basis,
notwithstanding the filing of a notice of intention to oppose 7
months earlier.
[35]
Absent any facts set out by the applicant
in respect of its absence, the only conclusion to be drawn is that it
sat back, waiting
for the outcome in contemplation of a rescission
application. That begs the question, whether such absenteeism was
calculated,
thereby pre-empting the right to rescission.
[36]
It
Lodhi
2 Properties Investment CC and Another v Bondev Development (Pty)
Ltd
[12]
it was held that
“
when
notice of proceedings to a party is required and judgment is granted
against such party in the absence without notice of the
proceedings
having been given to him, such judgment is granted erroneously
.”
[37]
This is however distinguishable from the
matter at hand, as on the common cause facts. Value Pools was given
approximately a month’s
notice that Community Property Co was
intending to proceed to set the matter down on the unopposed roll and
seek an order in the
terms prayed for
[38]
Value Pools was given notice of the
proceedings launched, it knew of the relief sought, it was informed
of the hearing date and
was aware that the court was competent to
grant the relief, if the court was satisfied. Having the requisite
notice and knowledge,
Value Pools elected not to participate.
[39]
In
Zuma v
Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
including
Organs of State and Others
2021 (11)
BCLR 1263
CC at par [61] it was held:-
“
Our
jurisprudence is clear: Where a litigant, given notice of the case
against them and given sufficient opportunity to participate,
elects
to be absent, this absence does not fall within the scope of the
requirement of Rule 42(1)(a).”
ERRONEOUSLY
SOUGHT OR GRANTED
[40]
Value Pools further argue that there is a
direct conflict between the Rules of Court and Practice Directives.
Its contended that
the ejectment order was erroneously granted, as
Community Property Co was obliged to follow the practice directives.
In this respect
the matter was to be case managed upon a notice of
intention to oppose being filed, and it was therefore opposed.
[41]
Acutely aware of the provisions of the
Practice Directive, I cannot agree with the conclusion that a matter
is opposed by the mere
fact that a notice of intention to oppose has
been filed. The very wording of this notice speaks to the contrary.
The effect of
a “
notice of
intention
to oppose
” is to inform the
applicant that the respondent intends to oppose and that an opposing
affidavit is imminent.
[42]
Practically put, a notice of intention to
oppose informs the applicant of the intention and precludes the
applicant from proceeding
with the matter on an unopposed basis for
the period allowed (being 15 days) within which the respondent must
prepare and deliver
its opposing affidavit. Should a respondent fail
to take this opportunity, the matter can simply not continue to enjoy
the status
of an opposed matter and the applicant may seek set-down
as envisages in Rule 6(5)(f)(i).
[43]
Therefore,
as much as the practice directives directs how opposed and unopposed
applications ought to be enrolled, it does not expressly
state that a
matter wherein a notice of intention to oppose had been filed, is an
opposed matter. It merely sets out that where
such a notice is filed,
the process of case management is to commence. The directive, as
essential as it is in respect of the daily
functioning of the court,
does not diminish or give cause to avoid and ignore the Rules of
court. Rules of court has obligatory
force.
[13]
[44]
The practice directives facilitate what the
Rules of the court provide, and therefore cannot be interpreted to
overrule or place
obstacles in the way of a litigant who operate in
terms of the Rules of court. As held in the matter of
National
Director of Public Prosecutions (
ex
parte
application)
(case number 905/2017) [2018] ZASCA (86) (31 May 2018) at 31,
practice directives cannot be applied to restrict or undermine the
Rules of Court. It needs to co-exist and the directives needs to be
interpreted and applied together with that prescribed by the
Rules of
court.
[45]
There is in my view no contradiction
present between Rule 6(5)(d) and that held in the practice directive
in respect of opposed
and unopposed matters. Where the directive
indicates that a matter needs to be case managed after a notice of
intention to oppose
has been filed it does not give a proverbial
stick to a dilatory litigant to beat an applicant with. It
is
focused at
effective enrolment of an
opposed matter by employing case management while the time periods
set out in the rules run. This is so
in order to create a situation
where both parties agree, record their compliance, date on which so
complied or will comply, and
facilitate the exchange of further
documents, to ensure the matter is ready when enrolled for hearing.
[46]
Similarly the practice directive provision
that parties will agree on dates to exchange affidavits, cannot be
said to overrule that
directed under Rule 6(5)(d). But it does not do
so. Rule 27 empowers parties to agree on extension or abridging time
periods prescribed
by the rules. Therefore absent an agreement a
litigant is bound by the prescribed period or obliged to seek
condonation from court.
[47]
Differently put, the directive simply says
litigants are free to agree on when affidavits and heads of arguments
are to be exchange.
But if you don’t agree for whatever reason
you are bound to the prescribed time periods or seek condonation from
court. This
is perfectly in line with the Rules of Court.
[48]
But even assuming that Community Property
Co was to enrol the matter on the opposed roll, does that entitle
Value Pools to sit back
and pre-empt its right of rescission? Such a
conclusion is untenable. When Value Pools were advised that Community
Property Co
does not regard the matter opposed and intended to
proceed with the matter on an unopposed basis, it could and should
have taken
up the opportunity to persuade the court otherwise. The
obvious reason for its failure is that it had no intention of filing
an
opposing affidavit.
[49]
Can it notwithstanding above be said that
there existed, at the time of the issue of the order, a fact of which
the court was unaware,
which would have precluded the granting of the
ejectment and which would have induced the court, if aware of it, not
to grant the
ejectment order. No, a mere perusal of the application
papers which served before the late Sigogo AJ, together with the
practice
note, clearly tells a story of full disclosure. In the
practice note the history is dealt with, and the court’s
attention
is specifically drawn to the fact that the previous order
was made, the matter not going through case management as Value Pools
had still not filed an opposing affidavit, and the status of the
matter therefore remaining unopposed. In addition, the correspondence
exchanged between the parties were made available to the court. Armed
with this, the court, satisfied, granted the ejectment.
[50]
In
Trans
Africa Insurance Co Ltd v Maluleke
1956
(2) SA 273
(A), which was quoted with approval in
Life
Health Group (Pty) Ltd v Mdladla and Others
(42156/2013) [2014] ZAGP JHC 20 (10 February 2014), the court stated
the following:-
“
No
doubt parties and their legal advisors should not be encouraged to
become slack in the observance of the rules, which are an
important
element in the machinery of the administration of justice. But on the
other hand technical objections to less than perfect
procedural steps
should not be omitted, in the absence of prejudice to interfere with
the expeditions and if possible, inexpensive
decision of cases on the
real merits
.”
[51]
As much as Value Pools would argue that it
was prejudiced by the ejectment order, same is ill-fated when regard
is had to the fact
that it had knowledge of the hearing and wilfully
elected to absent itself. Value Pools explained to Community Property
Co why
its opposing affidavit was not filed during May 2020, and yet
as at September 2020, some 6 (six) months later, it still failed to
file its opposing affidavit. Then notwithstanding again being invited
to participate
should
it no agree with the process followed by Community Property Co, it
decides not to.
[52]
Practice directives
are invaluable, but they cannot be utilised as armour against
litigants who act squarely within the ambit of
the Rules of Court.
The rules and practice directives ought to be employed in unison and
with the common goal of ensuring effective
and efficient access to
justice.
[53]
Value Pools attempts
to utilise the process of case management to frustrate, justify its
inaction and none compliance with the rules.
In the founding
affidavit in support of the rescission application, it is stated that
no matter shall be enrolled for hearing unless
it has gone through
judicial case management. It does so with reference to paragraph 7.1
of the practice directive. This is clearly
a misstating of the
provision, as paragraph 7.1 explicitly deals with opposed motions and
not all matters.
[54]
Value Pools’
reliance on Community Property Co’s failure to set the matter
down for case management, is further contrived
when regard is had to
the fact that any party is entitled to set a matter down on the case
management roll. This is not a function
exclusively reserved for
Community Property Co. Therefore, should Value Pools have been
serious about the case management and enrolment
of the matter on the
opposed roll, it would have taken the lead not only by setting the
matter down, alternatively facilitating
the completion of a joint
Form B in line with the lockdown measures, but by filing its opposing
affidavit. It had 7 months to do
so from the date of the delivery of
the notice of intention to oppose and would have been the most
effective way to ward off a
default judgment.
CONCLUSION
[55]
In my view the
narration of reasons on which Value Pools attempts to persuade the
court that the ejectment order was erroneously
sought and granted in
its absence, does not disclose a procedural irregularity or mistake
in respect of the issuing of the ejectment
order. It is therefore not
possible to conclude that the ejectment order was erroneously sought
by Community Property Co or erroneously
granted by the late Sigogo
AJ. In the absence of any answering affidavit by Value Pools, there
was simply no good reason precluding
the late Sigogo AJ from granting
the ejectment order.
[56]
As held by Kampepe J
in the
Zuma
matter (
supra
),
it cannot be accepted that litigants are allowed to butcher, of their
own will, judicial process which in all other respects
have been
carried out with the utmost degree of regularity, only to then,
ipso
facto
(by
that same act) plead the “absent victim”.
ORDER
[57]
Consequentially the following order is
made:-
1.
The application is dismissed with costs.
GREYLING-COETZER
AJ
DATE
OF HEARING:
26 October 2021
DATE
OF JUDGMENT:
25 January 2022
FOR
THE APPLICANT:
Advocate Kruger
Instructed by J
Terblanche Attorneys Inc
E-mail:
admin@jtattorneys.co.za
Ref: J Terblanche/293
FOR
THE RESPONDENT:
Advocate Kasa
Instructed by Fairbridges
Werthein Becker Attorneys
E-mail:
mgebhard@dtsnp.co.za
Ref: S Townsend/mg/C2/20
(FA I6/30]
c/o Du Toit Smuts &
Partners
E-mail:
kmich@fairbridges.co.za
Ref: KM/mj/CAP145/004
[1]
Alert Level 3
Covid-19 Directive 6
[2]
According
to the applicant the notice was dated 31 July 2020
[3]
Dated
9 January 2020
[4]
Paragraph 7.3
[5]
Paragraph 7.7
[6]
Paragraph 7.1
[7]
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A) at 550H
[8]
2003 (6) SA 1
(SCA) at par [6] to [7]
[9]
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471E-F
[10]
Tshivhase
Royal Council and Another v Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 862G
[11]
Rule 6(5)(f)(i)
[12]
2007
(6) SA 87 (SCA)
[13]
The
National Director of Public Prosecutions (
ex
parte
application)
(case
number 669/2020)
[2021] ZASCA 142
(7 October 2021) at 19