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[2022] ZANCHC 63
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Waste Re (Pty) Ltd and Another v Recycling and Economic Development Initiative of South Africa NPC (1078/2019) [2022] ZANCHC 63 (30 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
Number: 1078/2019
Heard
:
26 February 2021
Date
delivered: 30 September 2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Regional Magistrates:
YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:-
WASTE
RE (PTY) LTD [formerly Waste Beneficiation (Pty) Ltd
(Reg.
No: 2014/234102/07)
First
Applicant
KHOTHATSO
CHRISTOPHER MOLOI
Second
Applicant
and
RECYCLING
AND ECONOMIC DEVELOPMENT INITIATIVE OF
SOUTH
AFRICA
NPC
Respondent
Coram:
Eillert, AJ
JUDGMENT
Eillert,
AJ
[1]
This is a judgment in respect of two applications brought by Waste Re
(Pty) Limited
[previously known as Waste Beneficiation (Pty) Ltd] and
Mr Khothatso Christopher Moloi, the Applicants, against the Recycling
and
Economic Development Initiative of South Africa NPC, the
Respondent. The Applicants issued the first application on 18
May
2020. The relief claimed therein pertains to an order of
this Court made by O'Brien, AJ under case number 1078/2019 on 17
May
2019. I will refer to this application herein as "
the
interlocutory application
".
The Applicants issued the second application on 3 July 2020.
The relief claimed therein is for rescission of
an order made by
Makoti, AJ, also under case number 1078/2019 on 8 May 2020. I
will refer to this application herein as
"the
rescission application"
.
[2]
Where it is necessary in this judgment to distinguish between the
Applicants, I will
refer to the First Applicant as
"Waste
Beneficiation"
,
and to the Second Applicant as
"Moloi"
.
The Respondent will be referred to as
"Redisa"
.
[3]
The Applicants initially only enrolled the rescission application for
argument.
Following a request by Redisa's attorneys that the
interlocutory application also be enrolled for hearing on the same
day as the
rescission application, I issued a directive that this be
done, and Redisa's attorneys delivered a Notice of Setdown also
enrolling
the interlocutory application. It was further
necessary for me to make a ruling during the hearing that the
interlocutory
application had been properly enrolled after Mr Sebola,
on behalf of the Applicants, disputed that this was the case.
[4]
The orders referred to in paragraph 1 above were made in the course
of an application
brought by Redisa against the Applicants and
further Respondents on 15 May 2019. I will refer to this
application herein
as
"the
main application"
.
[5]
The background facts to the main application were quite extensively
set out in the
written judgment handed down by Vuma, AJ in the main
application on 6 December 2019. I will not repeat them in
detail here,
save to provide a summary of the pertinent facts for
purposes of clarity.
[6]
Redisa was brought into being by what was termed as the "Redisa
Plan".
The Redisa Plan envisaged the establishment
of a tyre waste recycling scheme which would have entailed the
creation and management
of a national network for collecting tyres,
storing them, and delivering them to recyclers for processing.
From 2013 Redisa
worked on a Mining Stockpile Plan to assist in the
abatement and recycling of the historic stockpiles of tyres that have
accumulated
on mines throughout South Africa. It was during the
implementation of this plan that Waste Beneficiation was formed.
Eventually a pilot project was launched at Anglo American's
Mogalakwena Mine in Limpopo. Waste Beneficiation was appointed
to manage the operations at the Mine and Redisa identified Moloi as
the potential operator of the business. Redisa acquired
the
necessary equipment for use in a mobile downsizing and recycling
plant, which equipment, according to Redisa, was valued at
approximately R50 million. Redisa and Waste Beneficiation,
represented by Moloi, engaged in negotiations to
inter
alia
make
it possible for Redisa to avail the equipment to Waste Beneficiation,
which negotiations included draft service level agreements
being
provided to Waste Beneficiation. The negotiations around the
detailed terms of the service level agreement were protracted,
but
the parties agreed to an interim working relationship pending its
finalisation, and Waste Beneficiation commenced with operations
in
the first part of 2017. However, on 1
June 2017 Redisa was provisionally wound up
ex
parte
by
the Minister of Environmental Affairs. The provisional order of
liquidation of Redisa would later, on 24 January 2019,
be set aside
by the Supreme Court of Appeal (
"the
SCA"
).
One result of the provisional winding up of Redisa was that the
service level agreement between it and Waste Beneficiation
was never
signed. During the process of the provisional winding up of
Redisa, the equipment, except for a Toyota Land Cruiser
which Redisa
made available to Moloi for business purposes, remained at the
Mogalakwena Mine. Following the discharge of
the provisional
order, Redisa wanted to revive the recycling project, but the Mine
was unwilling to do so and requested Redisa
to make arrangements for
the removal of the equipment from the Mine. To this end, a site
visit was arranged to take place
on 16 May 2019 to finalise a
de-commissioning and removal plan for the equipment.
Unbeknownst to Redisa however, Waste Beneficiation
caused the
equipment to be removed from the Mine on 9 May 2019. Redisa
succeeded in tracing the equipment to a property in
Postmasburg, and
it appeared that the equipment was being set up to operate on such
property.
[7]
It is against this background that Redisa launched the main
application on 15 May
2019 for interdictory relief against the
Applicants. Part A of the main application was brought on an
urgent and
ex
parte
basis
and was aimed at the attachment and preservation of the equipment,
pending the adjudication of Part B of the main application,
in which
vindicatory relief was claimed.
[8]
On 17 May 2019 O'Brien, AJ issued an order in favour of Redisa in
respect of Part
A of the main application, the relevant provisions
whereof stipulated as follows:
"1.
That pending the outcome of the relief sought in Part B of the Notice
of Motion:
1.1
That any and
all machinery, vehicles and/or equipment, as described in the list
hereto marked Annexure A to this Notice of Motion
("the
Equipment") located on the premises of First and/or Second
Respondent, corner of 1 Mangaan Road and Erts Street,
Industrial
Area, Postmasburg, Northern Cape Province (or wherever it may be
located) be immediately attached and secured by the
Sheriff of this
honourable Court within whose jurisdiction any part of such Equipment
may be located;
1.2
That the
Equipment not be used for any purpose whatsoever pending the outcome
of the relief sought in Part B of this Notice of Motion;
1.3
That all
ignition keys and/or remote control devices enabling the Equipment to
be started and/or operated be taken into custody
by the Sheriff.
2.
…
3.
…
4.
That leave is granted to the Applicant (
Redisa
)
to approach this honourable Court on the same papers, duly
supplemented, for the relief set out under Part B below."
[9]
The Applicants delivered a notice of intention to oppose the main
application on 7
of June 2019. Thereafter, although the parties
filed further affidavits, no steps were taken by any of the parties,
least
of all by Waste Beneficiation, to revisit the granting of the
interim order issued on 17 May 2019 in respect of Part A of the main
application.
[10]
Part B of the main application was subsequently enrolled for hearing
on 13 September 2019 in
accordance with a directive issued by the
Judge President of this Court. On 13 September 2019 the parties
presented extensive
arguments to Vuma, AJ with regard to Part B of
the main application, and no argument was presented on Part A
thereof. Thereafter
Vuma, AJ reserved her judgment.
[11]
On 6 December 2019 Vuma, AJ delivered her judgment in respect of Part
B of the main application.
In paragraph [34] of her judgment,
Vuma, AJ found that the Applicants (then Respondents) failed to make
out a case that Waste Beneficiation
is the owner of the equipment,
and that Redisa's application must succeed with costs.
Notwithstanding this finding, Vuma,
AJ
inter
alia
made
the following order:
"1.
A rule nisi is issued calling upon the Respondents, or any other
party with legitimate interest
therein, opposing this application to
show cause, if any, on such date as may be determined by this
honourable Court why –
1.1
the equipment should not be returned to the Applicant; .."
The
order dated 6 December 2019 therefore did not include a specific
return date, but stipulated that the return date was still
to be
determined by the Court.
[12]
On 30 December 2019 Waste Beneficiation filed an application for
leave to appeal against the
judgment and order granted by Vuma, AJ on
6 December 2019. The application for leave to appeal was in due
course set down
for hearing on 14 February 2020. Having heard
the parties, Vuma, AJ delivered an
ex-tempore
judgment
dismissing the application for leave to appeal. Thereafter, and
still during the hearing, Vuma, AJ proceeded to deal
with her order
of 6 December 2019. The record of what exactly transpired has
been transcribed and forms part of the typed
record before this
Court. In the presence of Mr Maluleke for the Applicants and Mr
Cooper for Redisa, Vuma, AJ determined
the return date for her order
of 6 December 2019 to be 14 April 2020. Subsequent to the
proceedings of 14 February 2020,
the court order issued by the
Registrar in respect thereof included a second paragraph stipulating
that the return date of the
rule
nisi
was
extended to 14 April 2020, with the proviso that any interlocutory
application was to be brought before or on 30 March 2020.
[13]
The Applicants were dissatisfied with the dismissal of the
application for leave to appeal and
filed a petition for leave to
appeal to the SCA on 13 March 2020.
[14]
As is well-known, on 26 March 2020 South Africa entered a period of
what was termed as a nationwide
"hard lockdown" which was
initially determined to last for a period of 21 days. On 25
March 2020 the Judge President
of this Court issued Directive 1 of
2020, which was an urgent directive to regulate the operations and
judicial functions of this
Court during the lockdown. I quote
the relevant and important provisions of the Directive for purposes
of this judgment:
"1.
…
2.
The Directive is in respect of the operations and judicial functions
of the Northern Cape
Division during the Nationwide Lockdown for the
period of 21 (twenty one) days with effect from midnight of Thursday
26 March 2020
declared in terms of the
Disaster Management Act, 2002
,
in order to, inter alia, prevent and curb the spread of the COVID-19
throughout the Republic, and it will also apply during any
extended
Lockdown period that may be declared in terms of the said Act.
3.
The Northern Cape Division shall remain open during the period of the
Lockdown, subject to
the restrictions provided for hereunder:
3.1
There shall be no Motion Court sitting during the period of the
Lockdown.
3.2
…
3.3
…
3.3.1
…
3.3.2
…
4.
All matters already enrolled on the days on which the Motion Court
would have been held shall
be postponed to a date beyond the period
of the Lockdown and further:
4.1
Postponements shall be done in chambers by the Judge on duty or any
other Judge designated by the Judge President
for that purpose.
4.2
The parties involved in such matters shall not be required to attend
Court on those days.
4.3
Where applicable the rule nisi issued in the matter shall be extended
to the postponed date."
[15]
On 14 April 2020, being the return day determined by Vuma, AJ on
14
February 2020, Redisa's application came before Mamosebo, J in
chambers. The learned Judge ordered that the matter be
postponed
and the rule
nisi
extended
8 May 2020 in compliance with paragraph 4.1 of the Judge President's
Directive.
[16]
As we further know, the nationwide hard lockdown came to an end on 30
April 2020. This
Court thereafter recommenced with court
hearings in open court, with the application of the necessary
Covid-19 protocols.
[17]
On 8 May 2020 Part B of the main application was heard in Motion
Court by Makoti, AJ. There
was no appearance on behalf of the
Applicants at this hearing, but counsel moved the application on
behalf of Redisa. On
this day, Makoti, AJ confirmed the order
of 6 December 2019 in respect of Part B of the main application.
[18]
The Applicants proceeded to deliver the interlocutory application on
18
May 2020.
[19]
On 30 June 2020 Waste Beneficiation's application to the SCA for
leave to appeal the judgment
of Vuma, AJ and order of 6 December 2019
was dismissed on the grounds of there being no reasonable prospect of
success in an appeal
and there being no other compelling reason why
an appeal should be heard.
[20]
On 3 July 2020 the Applicants proceeded to deliver the Rescission
Application.
THE
RESCISSION APPLICATION
[21]
The basis on which the Applicants submitted that the order of 8 May
2020 should be rescinded
and set aside was only made clear in the
Applicants' Heads of Argument. The Applicants submitted therein
that the order of
8 May 2020 falls to be rescinded in terms of
Uniform
Rule 42(1)(a)
and/or on common law grounds.
[22]
Uniform
Rule 42(1)(a)
caters for the rescission or variation of an
order or judgment erroneously sought or erroneously granted in the
absence of any
party affected thereby
[1]
.
[23]
The meaning of the phrase "
erroneously
sought or erroneously granted
"
has been considered in numerous cases to date. In
Stander
vs ABSA Bank
1997(4)
SA 873 (E) at 882 E – F Nepgen, J held that:
"It
seems to me that the very reference to 'absence of any party
affected' is an indication that what was intended was that
such
party, who was not present when the order or judgment was granted,
and who was therefore not in a position to place facts
before the
court which would have or could have persuaded it not to grant such
order or judgment, is afforded the opportunity to
approach the court
in order to have such order or judgment rescinded or varied on the
basis of facts, of which the court would
initially have been unaware,
which would justify this being done."
In
Nyingwa
vs Moolman
1993(2) SA 508 (Tk) at 510 White, J held that:
"It
therefore seems that a judgment has been erroneously granted if there
existed at the time of its issue a fact of which
the Judge was
unaware, which would have precluded the granting of the judgment and
which would have induced the Judge, if he had
been aware of it, not
to grant the judgment."
The
SCA in
Colyn
vs Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
2003
(6) SA 1
(SCA), referring to
De
Wet and Others vs Western Bank Limited
1979(2) SA 1031 (A), made it clear that Uniform
Rule 42(1)
does not
cover all kinds of mistakes or irregularities. In order to
qualify as a mistake or irregularity which would justify
the
rescission of the judgment or order under the rule, the mistake or
irregularity must be of a procedural nature that can be
ascribed to
either the other party or the Court.
[24]
In oral argument, Mr Sebola on behalf of the Applicants confined
himself to two grounds upon
which he contended that the order
of 8 May 2020 was erroneously
sought or erroneously granted.
This was a sensible approach, as
the extensive contentions set out by the Applicants in their Heads of
Argument were all in actual
fact founded upon the two propositions
advanced by Mr Sebola and, whatever my finding on the two
propositions, would be dispositive
of the Rescission Application. I
proceed to deal with the Applicants' two main contentions in turn.
WHETHER
THE ORDER OF 6 DECEMBER 2019 WAS A RULE
NISI
[25]
The Applicants submitted firstly that Vuma, JA did not issue a rule
nisi on 6 December 2019.
They contend that the order made was
the order that Redisa had prayed for in Part B of the main
application and that the order
was of a final nature.
[26]
This first proposition by the Applicants is difficult to comprehend
in light of the parts of
the judgment and order that I have quoted in
paragraph 11 above. I am left to assume or speculate that the
implication of
this submission, if upheld, would be that all orders
subsequent to 6 December 2019 would thereby be invalidated, as the
Applicants
did not make the implication of their contention clear.
Whilst it is correct that the order that Vuma, AJ granted on 6
December
2019 was in the exact same terms prayed for by Redisa in
Part B of the main application, the ordinary and clear meaning of the
terms of Vuma, AJ's judgment and order indicate that the learned
Judge meant to, and in fact did, issue a rule nisi on 6 December
2019.
[27]
This is not the first occasion on which the Applicants have advanced
the contention that the
order of 6 December 2019 was a final order.
This was the central issue on which the Applicants' application for
leave to
appeal turned. It is evident from the
ex-tempore
judgment
of Vuma, AJ in the application for leave to appeal that the order of
the 6 December 2019 was a rule
nisi
[2]
,
and because the order was not of a final nature, the Applicants'
application for leave to appeal was dismissed. The SCA
dismissed the Applicants' subsequent application for leave to appeal
on the grounds that there was no reasonable prospect of success
in
the appeal and no other compelling reason as to why an appeal should
be heard.
[28]
It was stated in
Fischer
vs Fischer
1965(4) SA 645 (W)
[3]
that a
rule
nisi
is
a court order which is given a determined period of validity.
[4]
[29]
In
National
Director of Public Prosecutions vs Mohamed N.O.
2003 (4) SA 1
(CC) the Constitutional Court
inter
alia
dealt
with the historical development of rules nisi and stated that:
"…
the rule may be defined as an order by a court issued at the instance
of the applicant and calling upon another party
to show cause before
the court on a particular day why the relief applied for should not
be granted."
[5]
The
Uniform Rules of Court do not provide substantively for the granting
of a rule nisi, but the practice of doing so is firmly
embedded in
our procedural law.
[6]
[30]
The rule
nisi
issued
by Vuma, AJ on 6 December 2019 provided that the return date of such
order was to be determined subsequently by the court.
I am of
the view that this aspect did not affect either the essential nature
or validity of the order made on 6 December 2019,
such order being a
rule
nisi
.
The Applicants' first contention that the order made on 6 December
2019 was of a final nature therefore cannot stand.
WHETHER
THE APPLICATION FOR LEAVE TO APPEAL AUTOMATICALLY SUSPENDED THE
FURTHER PROCEEDINGS
[31]
I now turn to the Applicants' second contention regarding the
suggested suspension of proceedings.
The Applicants submitted
that in light of the appeal process initiated by them:
(a)
the legal effect of the automatic suspension of the operation and
execution of Vuma, AJ's judgment and
order was also suspended pending
a decision on the appeal process;
(b)
that on 14 February 2020 Vuma, AJ had no jurisdiction to determine
the return date (i.e. 14 April 2020)
and to direct that her order of
6 December 2019 be a rule
nisi
which
has to be heard on 14 April 2020, after dismissing an application for
leave to appeal which was later followed by one at the
SCA;
(c)
that on 14 April 2020 Mamosebo, J lacked jurisdiction to postpone the
matter and to extend the purported
rule
nisi
to
the 8 May 2020; and
(d)
that on 8 May 2020 Makoti, AJ had no jurisdiction to confirm the
purported rule
nisi
.
[32]
Section 18 of the Superior Courts Act, 10 of 2013 ("
the
Act
")
deals with the suspension of a decision of Court pending an appeal.
Subsections (1) and (2) of Section 18 stipulates
as follows:
"(1)
Subject to sub-sections (2) and (3), and unless the Court under
exceptional circumstances orders otherwise,
the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended
pending the decision of
the application or appeal.
(2)
Subject to sub-section (3), unless the Court under exceptional
circumstances orders otherwise, the operation
and execution of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an
application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal."
[33]
Section 18(1) of the Act was clearly made subject to Section 18(2)
thereof. In terms of
Section 18(2) of the Act, an interlocutory
order, not having the effect of a final judgment, which is the
subject of an application
for leave to appeal, is not suspended
pending the decision of the application for leave to appeal, unless
the Court under exceptional
circumstances orders otherwise.
[34]
The Applicants did not approach this Court at any stage for an order
that, pending the outcome
of the application for leave to appeal, the
operation and execution of Vuma, AJ's order of 6 December 2019 ought
to be suspended.
I have already found that such order was a
rule
nisi
,
an interlocutory order and not a final order. It follows that
Section 18(2) of the Act must prevail, and therefore that
Vuma, AJ's
order of 6 December 2020 was not suspended pending the outcome of the
Applicants' application for leave to appeal to
the SCA. This
being the case, it also follows that the Court on the subsequent
occasions of 14 February 2020, 14 April 2020
and 8 May 2020 had the
necessary jurisdiction to make the orders that it did.
[35]
In the circumstances the Applicants did not establish a case in terms
of Uniform Rule 42(1)(a),
as the order confirming Part B of the main
application on 8 May 2020 was not erroneously sought or erroneously
granted and Redisa
was procedurally entitled to such order.
RESCISSION
IN TERMS OF THE COMMON LAW
[36]
Next, I need to consider whether the Applicants have made out a case,
under the common law, for
rescission of the order of 8 May 2020.
[37]
In 1997 the erstwhile Appellate Division in
De
Wet
supra
at
1042 F – H held that under the common law a court is empowered
to rescind judgments obtained on default of appearance,
on sufficient
cause shown. The power is entrusted to the discretion of the
court. Under the common law the courts laid
down certain
general principles to guide them in the exercise of their
discretion. The exercise of the court’s discretionary
power, broadly speaking, appears to have been influenced by
considerations of justice and fairness, having regard to all the
facts
and circumstances of the particular case.
[38]
The manner in which a Court ought to approach the requirement of
"good cause" (which
has been used interchangeably with the
term “sufficient cause” in case law) was succinctly
stated in
Colyn
supra
at
paragraph [11] as follows:
"In
order to succeed an applicant for rescission of a judgment taken
against him by default must show good cause (De Wet and
Others vs
Western Bank Ltd (supra)). The authorities emphasised that it
is unwise to give a precise meaning to the term 'good
cause' as
Smallberger, J put it in HDS Construction (Pty) Ltd vs Wait
:
‘
When
dealing with words such as 'good cause' and 'sufficient cause' in
other Rules and enactments the Appellate Division has refrained
from
attempting an exhaustive definition of the meaning in order not to
abridge or fetter in any way the wide discretion implied
by these
words (Cairns' Executors vs Gaarn
1912 AD 181
at 186; Silber vs Ozon
Wholesalers (Pty) Ltd 1954(2) SA 345 (A) at 352 – 3). The
Court's discretion must be exercised
after a proper consideration of
all the relevant circumstances.'
With
that as the underlying approach the courts generally expect an
applicant to show good cause (a)by giving a reasonable explanation
of
his default; (b)by showing that his application is made bona fide;
and (c)by showing that he has a bona fide defense to the
plaintiff's
claim which prima facie has some prospect of success (Grant vs
Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd vs Wait
(supra),
Chetty vs Law Society, Transvaal.)"
Most
recently, the Constitutional Court in
Zuma
vs Secretary of the Judicial Commission of Enquiry into Allegations
of State Capture, Corruption and Fraud in the Public Sector
including
Organs of State and Others
[2021]
ZACC 28
, reaffirming the Court's earlier decision in
Government
of the Republic of Zimbabwe vs Fick
2013(10)
BCLR 1103 (CC), held at paragraph [71] that –
"The
requirements for rescission of a default judgment are two-fold.
First, the applicant must furnish a reasonable and
satisfactory
explanation for its default. Second, it must show that on the merits
it has a bona fide defense which prima facie
carry some prospect of
success. Proof of these requirements is taken as showing that there
is sufficient cause for an order to
be rescinded. A failure to
meet one of them may result in refusal of the request to rescind."
[39]
At this juncture I must remark that whilst the Applicants in their
papers dealt extensively with
their explanation for the default of
appearance on 8 May 2022, very little regard was paid to the
requirement that the Applicants
had to show that, on the merits, they
have a
bona
fide
defense,
which
prima
facie
carries
some prospect of success. I will deal with this aspect in more
detail below.
THE
APPLICANTS' EXPLANATION FOR THEIR DEFAULT
[40]
The explanation given by the Applicants as to why they were in
default of appearance on 8 May
2020 is as follows: Soon after
the lockdown had commenced on 26 March 2020 the Applicants'
instructing attorney, Ms Rabyanyana,
phoned the Registrar to enquire
whether the matter would be heard on 14 April 2020. The
Registrar's response was that because
of the lockdown the matter
would not proceed and that she would send Ms Rabyanyane the Judge
President's directive saying that
all matters already enrolled on the
days on which the Motion Court would have been held should be
postponed. According to
the Applicants, the Registrar added
that the parties would in due course be given a notice of setdown
with a new hearing date beyond
the period of the lockdown. The
Applicants however did not receive any notice of setdown with a new
hearing date. On
30 April 2020 the Acting Registrar e-mailed a
copy of the Judge President's directive to Ms Rabyanyana. Upon
the announcement
of the nationwide lockdown, the correspondent
attorneys of the Applicants in Kimberley informed their instructing
attorneys that
they were closing their offices for the lockdown and
that its staff members were returning to their respective home
provinces outside
of the Northern Cape. On 29 and 30 April 2020
Redisa's attorneys and the Applicants' attorneys respectively
addressed correspondence
to the Judge President of this Court
regarding the further prosecution of Part B of the main application.
It is not necessary
to refer to the contents of this correspondence,
save to remark that the letter of Redisa's attorneys incorrectly
stated that the
matter had been postponed
sine
die
on
14 April 2020, and that in their founding affidavit the Applicants
leveled blame at Redisa's attorneys for not informing either
of the
Applicants' firms of attorneys about a postponement order having been
made on or before 14
February 2020, or providing them with any copy of any postponement
ruling or order having been made on or before 14
April 2020. The Applicants state that no postponement ruling or
order has ever been given to either their correspondent or
instructing attorneys. It was only when Redisa's attorneys
delivered their answering affidavit in the interlocutory application
on 18 June 2020 that the Applicants' attorneys became aware of the
final order of 8 May 2020, as
a copy of
such order was annexed thereto. The Applicants therefore state
that they were not in willful default on 8
May 2020 because they were not notified of such hearing. They
were also not aware that Redisa's representatives would be
in motion
court on 8 May 2020 to move for the confirmation of Part B of the
main application.
[41]
The Applicants' explanation for the default was strenuously countered
by Redisa's representatives.
They stated that the matter is a
long running matter in respect of which a rule
nisi
had
already been granted and that all the parties were accordingly
anticipating the allocation of a return date for a final order
to be
granted. Although they had no knowledge of the Applicants’
averments regarding a supposedly forthcoming notice
of setdown, they
stated that the Acting Registrar received a telephone call shortly
after 14 April 2020 (the exact date cannot
be recalled) from a
representative of the Applicants' attorneys who specifically enquired
as to the date to which the matter had
been postponed. They
argue that this is consistent with the fact that the Applicants and
Redisa were anticipating the allocation
of a return date. The
Acting Registrar advised the person making the enquiry that an order
had been granted and that same
was made available to the Applicants'
correspondent attorneys as shortly after the postponement order of 14
April 2020 the Acting
Registrar placed a copy of the order in the
pigeonhole of the Applicants' correspondent attorneys. Redisa's
attorneys received
a copy of the order on 4 May 2020. In
addition, on 30 April 2020 Ms Rabyanyana sent an e-mail to the
Registrar, for attention
of the Assistant Registrar, requesting the
Registrar to e-mail the Applicants' attorneys "
the
postponement order for the mentioned case
".
The Assistant Registrar responded to this e-mail later the same day
and sent a copy of the order of 14 April 2020
to the Applicants'
attorneys by e-mail. Redisa's averments set out above were
supported by confirmatory affidavits by the
then Acting Registrar and
the Assistant Registrar. Redisa contends that the Applicants'
failure to appear in Court on 8 May
2020 was entirely of their own
volition and constituted willful and deliberate default of the order
of 14 April 2020.
[42]
In their replying affidavit, the Applicants admit that Ms Rabyanyana
had phoned the Assistant
Registrar on 30 April 2020, albeit to ask
her to e-mail a copy of the "
sine
die
"
postponement order, if any, as a result of what was conveyed in the
letter of Redisa's attorneys of 29 April 2020.
In response, the
Assistant Registrar asked Ms Rabyanyana to e-mail her request so that
the Assistant Registrar could verify the
claim, and if true, she
would e-mail Ms Rabyanyana the
sine
die
postponement
order. Ms Rabyanyana then e-mailed her request to the Assistant
Registrar. However, Ms Rabyanyana thereafter
obtained an
opinion from counsel that asking for a copy of a
sine
die
postponement
order was an academic exercise in light of the written confirmation
from Redisa's attorneys, as officers of the court,
in their letter of
29 April 2020 that the matter had been postponed
sine
die
,
and that Ms Rabyanyana should rather send the letter of 30 April 2020
to the Judge President. The Applicants further explained
that
Ms Rabyanyana did not receive the Assistant Registrar's e-mail of 30
April 2020 with the attached order of 14 April 2020.
Having
received Redisa's answering affidavit in the rescission application
on 13 August 2020, to which a copy of the Assistant
Registrar's
e-mail was attached, Ms Rabyanyana did a diligent search of all her
e-mails, including her junk e-mail folder and therein
found the
Assistant Registrar's e-mail marked as spam. Furthermore,
regarding the issue of the court order of 14 April 2020
being made
available to the Applicants' correspondent attorneys' by placing same
in their pigeonhole at the High Court on 4 May
2020, the Applicants
stated that a certain Mr Zamuxoli Zama Kose of the correspondent
attorneys' office did not see, and could
not have seen, the order of
14 April 2020 as, on 4 May 2020, he was at home in the Eastern Cape
after the announcement of the nationwide
lockdown which commenced on
26 March 2020.
[43]
In evaluating the versions of the parties set out above, I am bound
to apply the test enunciated
in
Stellenbosch
Farmers' Winery Ltd vs Stellenvale Winery (Pty) Ltd
1957(4) SA 234 (C), as refined in
Placon-Evans
Paints Ltd vs Van Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A)
[7]
, namely:
that I may accept those facts averred in the Applicants' affidavit
which have been admitted by the Respondent, together
with the facts
alleged by the Respondent, provided that the Respondent has raised a
real, genuine or
bona
fide
dispute
of fact, and unless the Respondent's version is so far-fetched or
clearly untenable that I would be justified in rejecting
same merely
on the papers. I have no reason to reject Redisa's version
in
casu
.
I must therefore find that the Applicants' attorneys (at least
initially), was also anticipating the allocation of the return
date,
that the Applicants' attorneys were advised in a phone call shortly
after 14 April 2020 that an order had been granted and
could be
obtained from the Applicants' correspondent attorneys, that on 30
April 2020 Ms Rabyanyana had made an enquiry via e-mail
regarding
"the postponement order", and that the court order of 14
April 2020 was placed in the Respondent attorneys'
pigeonhole on 4
May 2020.
[44]
To this must be added that there are deficiencies in the Applicants'
explanation that cannot
be overlooked. It appears that the
Applicants' instructing attorneys did nothing from 14 April 2020
until 30 April 2022 to
obtain a copy of the order of 14 April 2020,
knowing that the correspondent attorneys' offices had been closed.
The attorneys
further did nothing from 30 April 2020 until 18 June
2020 to obtain a copy of the order. Although I do not know what
the
cause of the incorrect statement in the letter of Redisa's
attorneys was, this letter was written before the court order of 14
April 2020 had become available. The Applicants' attorneys did
not have a lesser duty than Redisa's attorneys to ascertain
what the
outcome of the proceedings on 14 April 2020 was. In fact, one
would expect that such duty would be meticulously
carried out in
order to represent their clients in a diligent and professional
manner. I have no basis to reject the excuse
that the
Applicants' attorneys relied on counsel's opinion that obtaining a
copy of the order was not necessary, but one would
expect a higher
degree of diligence and professionalism from the Applicants'
attorneys under the circumstances. In this light,
this excuse
would seem to be slightly opportunistic. The court was further
provided with scant facts regarding the Applicants'
correspondent
attorneys, which only gives rise to unanswered questions such as
inter
alia
,
given that the nationwide hard lockdown came to an end on 30 April
2020, when did the firm re-open and when did the staff return
to
office? The Applicants stated that the correspondent attorneys
had staff members (plural). Why do the Applicants
only furnish
an explanation involving Mr Kose not seeing or being able to see the
court order of 14 April 2020? Were the
other staff members
available from 4 May 2020? When did Mr Kose actually return to
office? Nothing is stated in the
last-mentioned respect.
[45]
I therefore cannot find that the Applicants have provided a
reasonable and sufficient explanation
for their default in appearing
on 8 May 2020.
THE
REQUIREMENT OF A
BONA
FIDE
DEFENSE
WHICH
PRIMA
FACIE
CARRIES
SOME PROSPECT OF SUCCESS
[46]
It has long been the law that the inadequacy of an applicant's
explanation may well justify a
refusal of the application for
rescission on such account alone, unless perhaps the weak explanation
is canceled out by the applicant
being able to give a
bona
fide
defense
which does not have a mere prospect, but a good prospect, of
success.
[8]
[47]
As referred to above, Mr Sebola, at the hearing, did not present any
argument on whether the
Applicants have a
bona
fide
defense.
It is Mr Van Niekerk, on behalf of Redisa, who touched on the subject
of whether the Applicants have a reasonable
prospect of success on
the merits. The crux of the matter before Vuma, AJ was whether
it was established that Redisa was
the owner of the equipment.
The question was thoroughly and cogently dealt with by Vuma, AJ in
her judgment of 6 December
2019. The Applicants did not file
any further affidavits which might have disturbed any of the findings
made by Vuma, AJ
in her judgment. In my respectful view,
Makoti, AJ was fully justified, considering the merits of the matter,
in confirming
the
rule
nisi
on
8 May 2020.
[48]
The Applicants did, in their founding affidavit however, attempt to
add a further string to their
bow by contending that they may still
be able to show cause why the equipment should not be returned to
Redisa. They aver
that the existing business relationship
between Redisa and Waste Beneficiation was never terminated in law or
otherwise, or alternatively,
because the equipment is Waste
Beneficiation's Capital Expenditure (CAPEX) and that such Capex has,
since 2014, never been lawfully
terminated by Redisa.
[49]
The last-mentioned contention above concerning Waste Beneficiation's
Capex was thoroughly dealt
with by Vuma, AJ in her judgment and I
cannot fault her findings on the issue. The first-mentioned
contention was only raised for
the first time in the Applicants'
founding affidavit in the rescission application. It was not
argued before me by any of
the parties, and in the circumstances I
cannot make any finding in respect thereof. In fact, I decline
to do so.
[50]
To the extent necessary, I would in any event have found that the
Applicants have not shown that
on the merits they have a
bona
fide
defense
which
prima
facie
carries
some prospects of success.
THE
INTERLOCUTORY APPLICATION
[51]
It was contended on behalf of the Applicants at the hearing that the
interlocutory application
has become academic, as the relief obtained
in Part A of the main application dealt with an interim situation
during the time that
ownership of the equipment was in dispute.
[52]
Mr Van Niekerk also submitted that the interlocutory application had
become moot, as the interim
order of 19 August 2019 ceased to exist
on confirmation of Part B of the main application and that the
interim order could only
have been reconsidered whilst it was in
existence.
[53]
The Constitutional Court in
Van Wyk vs Unitas Hospital and Another
2008(2) SA 472 (CC) at [29] held it to be axiomatic that mootness
does not constitute an absolute bar to the justiciability of
an
issue, and that the Court has a discretion on whether or not to hear
a matter. The test that should be applied is whether
it is in
the interest of justice to do so. One relevant factor to
consider is whether the court order will have some practical
effect
on the parties or on others. Another is whether it will be in
the public interest to hear the case because it will
benefit the
public or achieve legal certainty.
[54]
The parties are
ad
idem
that
the interlocutory application has become academic or moot. I
add that there are no considerations present in this matter
which
would deem it to be in the interest of justice to adjudicate the
interlocutory application.
CONCLUSION
AND COSTS
[55]
The result is that both the rescission and the interlocutory
applications should be dismissed.
This leaves the question of
costs. It is trite that the general rule regarding costs is
that the unsuccessful party pays
the costs of the successful party on
the party and party scale. It may however be, by reason of
special considerations, that
a court may consider it just, by means
of an order of attorney and client costs, to ensure more effectually
than it can do by means
of a judgment for party and party costs that
the unsuccessful party will not be out of pocket in respect of the
expense caused
to him by the litigation.
[9]
[56]
Mr Van Niekerk submitted that the Applicants' conduct may be
characterized as frivolous and vexatious,
as well as reckless and in
total disregard of the rights of others. He contends that the
Applicants were opportunistic and
reckless in trying to convince the
Court in the main application that Waste Beneficiation was the owner
of the equipment in the
face of correspondence on its own behalf from
which it was clear that the Applicants knew all along that Waste
Beneficiation had
no claim to ownership. The Applicants have
persisted with this attempt even after the judgment of 6 December
2019 had found
it to be devoid of any substance. Similar to
what happened in the main application, the Applicants approached this
Court
in the rescission application without full disclosure of all
relevant facts.
[57]
As the then Appellate Court stated in
City
Council of Johannesburg vs Television & Electronical Distributors
(Pty) Ltd and Another
1997 (1) SA 157
(A) at page 177, in appropriate circumstances the
conduct of a litigant may be adjudged as "vexatious" within
the extended
meaning that has been placed upon this term, as in when
such conduct has resulted in "
unnecessary
trouble and expense which the other side ought not to bear
".
The Court however also cautioned that one must guard against
censuring a party by way of a special costs order when
with the
benefit of hindsight a course of action taken by a litigant turns out
to have been a lost cause.
[58]
In the rescission application, the grounds for the Applicants' attack
on procedural grounds can
at best be described as wafer thin, and the
contention regarding the supposed suspension of the main application
due to the pending
appeal proceedings, devoid of any merit.
This tends to support Redisa's submission that the Applicants' motive
was to delay
and frustrate Redisa in the absence of its rights of
ownership.
[59]
The interlocutory application has its own unique features. The
Applicants could have, and
probably should have, withdrawn the
application during June 2020 already. They did not do so and
thereby compelled Redisa
to oppose the application, with the
concomitant expenditure of time and costs. The Applicants kept
the interlocutory application
in abeyance, making it necessary for
Redisa to take steps to obtain the directive that the interlocutory
application be heard simultaneously
with the rescission application.
This naturally also caused the wastage of the court's time and scarce
judicial resources
to consider and address the application.
Even so, Mr Sebola still attempted to argue at the hearing that the
interlocutory
application was not properly enrolled and should not be
adjudicated. These constitute appropriate circumstances for me
to
mark my disapproval of the Applicants' conduct in the
interlocutory application.
[60]
I am persuaded that the Applicants’conduct in both the
rescission application and the interlocutory
application falls within
the extended meaning that has been placed on the term “
vexatious
”
,
and that Redisa was thereby put to unnecessary trouble and expense
which it ought not to bear. In both applications a punitive
cost
order is called for.
[61]
I must lastly convey that it was my intention to deliver this
judgment without delay. However,
due to circumstances beyond my
control, the judgment has taken much more time than was anticipated.
I sincerely regret the
delay.
In
the premise the following order is made:
1.
The Applicants' application dated 11 May 2020 against the order of
this Court
under case number 1078/2019, issued on 17 May 2019, is
hereby dismissed
2.
The Applicants' application dated 30 June 2020 for rescission of the
order of
this Court under case number 1078/2019 issued on 8 May 2020,
is likewise hereby dismissed.
3.
The Applicants are ordered to pay the costs of the Respondent in both
the abovementioned
applications on the attorney and client scale.
EILLERT,
A
ACTING
JUDGE
NORTHERN
CAPE HIGH COURT
KIMBERLEY
Obo
Applicants:
Adv. Sebola
Oio: AA
Solwandle Attorneys Inc.
Instructed
by MMamhlola
Rabyanyana Att.
Obo
Respondent:
Adv. J.G. van Niekerk
SC
Oio:
Duncan & Rothman Inc.
Instructed
by Cliffe
Dekker Hofmeyr Inc.
[1]
Rule
42(1)(a) stipulates that:
"The Court may, in addition to any other powers it may have
mero moto or upon the application of any party affected, rescind
or
vary –
(a)
an order or judgment erroneously sought or erroneously granted in
the absence of any party affected
thereby; …"
[2]
See ex tempore judgment of Vuma, AJ, Index: Application for
Rescission of Final Order, P. 27, Lines 4, 9 –
11; P. 29
,
Lines 7 and
10; P. 30
, Lines 15 to
17; Page 31
, Lines 21 – 25;
and Page 33, Lines 13 to 18
[3]
At 645 E
[4]
This is translation from the Afrikaans, which reads "'n Bevel
nisi is immers 'n Hofbevel waaraan 'n vasgestelde geldigheidsduur
verleen is."
[5]
At paragraph [28]
[6]
Safcor
Forwarding Johannesburg (Pty) Ltd vs National Transport
Commission
1982(3) SA 654 (A), endorsed in
NDPP
vs Mohamed, supra
[7]
At pages 634 - 635
[8]
Chetty vs Law Society, Transvaal (supra); Melane vs Santam Insurance
Co Ltd 1962(4) SA 531 (A); and Colyn (supra)
[9]
Nel vs Waterberg Landbouwers Koöperatiewe Vereniging
1946 AD
597