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[2022] ZAECMKHC 106
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Minister of Police v Magqaza obo Cwati and Others (1869/2021) [2022] ZAECMKHC 106 (6 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No: 1869/2021
In
the matter between:
THE
MINISTER OF POLICE
Applicant
And
NOKUTHULA
MAGQAZA obo THEMBELANI CWATI
First Respondent
XOLANI
HANISE
Second Respondent
MNCEDISI
NQIWA
Third Respondent
THE
SHERIFF OF THE HIGH COURT FOR THE
DISTRICT
OF ZWELITSHA
Fourth Respondent
JUDGMENT
BESHE
J:
[1]
The matter was on the roll on
the 11 August 2022 for the hearing of an application for
rescission
of three orders that were issued by the Mthatha High Court. The
parties agreed that the court should first determine
whether the
Makhanda High Court had the jurisdiction to hear the matter.
Secondly, whether the matter was not
lis pendens
before the
Mthatha High Court. Counsel expressed the view that these objections
are dispositive of the matter, at least before
the Makhanda High
Court.
[2]
A reading of the papers reveals
that the orders sought to be rescinded were made on the11
February
2020, 30 November 2020 and 15 April 2021 respectively. The orders
were issued in respect of an action for damages that
was instituted
by the first respondent against the applicant for the recovery of
damages that he allegedly suffered as a result
of being shot at by
members of the South African Police Services in October 2001. The
first order declared the applicant to be
liable to compensate the
first respondent with such amount of damages as may be proved in due
course. The order of the 30 November
2020 is
inter alia
to the
effect that:
1.
The determination of the general damages is separated from the
determination of other heads; and
2.
The applicant in this matter is to pay the first respondent
R2 100 000.00 as and for general damages.
Finally,
the order of the 15 April 2021 directed the applicant to pay to the
first respondent certain amounts of money as interim
payments in
terms of
Rule 34A
of the
Uniform Rules
of this court.
[3]
The jurisdiction of this court
to hear the rescission application is impugned, as I understand
the
first respondent’s case, on the basis that the matter belongs
in the Mthatha Court. In the same heads of argument, it
is submitted
that the courts that granted the judgment are
fuctus officio
and
that this is an attempt to appeal the three decisions under the guise
of a rescission application/s. In argument, it was submitted
that the
Mthatha High Court is seized with the matter. This submission also
ties in with the
lis pendens
objection. Furthermore, that
those decisions can only be rescinded by the Mthatha High Court.
These submissions appear to be contradictory,
in that it was
submitted that the courts that issued the orders are
fuctus
officio
, and in the same breath it is submitted that the matter
is pending before the Mthatha High Court (
lis pendens
). During
argument, it was submitted on behalf of the first respondent that a
judgment can only be rescinded by a judge in the same
division as the
court that rendered the judgment. In this case, that division being
Mthatha High Court, so the argument went.
[4]
The dismissal of the application
based on the two objections is opposed on the basis
inter alia
that there are no proceedings in respect of the present cause of
action that are pending before the Mthatha High Court. Secondly,
on
the basis that this court enjoys concurrent jurisdiction with local
divisions within the Eastern Cape.
[5]
The applicant is seeking the
rescission of the three judgments. That, in my view, is applicant’s
cause of action / application.
[6]
It is trite that the defence of
lis pendens
consists of four requirements:
(i)
Pending litigation
(ii)
Between the same parties
(iii)
Based on the same cause of action; and
(iv)
in respect of the same subject matter.
In
Hassan
and Another v Berrage N.O.
[1]
the requirement for the pleas of
lis
pendens
was expressed as follows:
“
Fundamental
to the plea of
lis alibi pendens
is the requirement that the
same plaintiff has instituted action against the defendant for the
same thing arising out of the same
cause.”
The
parties in both proceedings may be the same but the causes of action
are different in my view. What served before the Mthatha
High Court
was the quantification of first respondent’s damages. Before
this court is an application for the rescission of
judgment granted
by the High Court in Mthatha. It was intimated that another reason
that informed the launching of this application,
the rescission
application in this court, is that the motor vehicles belonging to
the applicant that were attached as a result
of the Mthatha
judgment/s were attached by the Sheriff whose offices are in King
William’s Town and therefore outside the
territorial
jurisdiction of the Mthatha High Court. The suspension of the writ of
execution which forms Part A of this application
was granted by the
Makhanda High Court pending the finalisation of the rescission
application/s.
[7]
In my view, there is therefore
no merit in the
lis pendens
point raised by the first
respondent. It would have been different had the applicant launched
the same application before the Mthatha
High Court, and same had not
been finalised.
[8]
Regarding the lack of
jurisdiction objection:
Section 6
of the
Superior Courts
Act 10 of 2013
stipulates how the High Court of South Africa is
constituted.
Section (1)
provides that the High Court of South
Africa consists of the following divisions:
“
(a)
Eastern Cape Division, with its main seat in Grahamstown (now
Makhanda).
(b)
… … .
(c)
… … .
(d)
… … .
(e)
… … .
(f)
… … .
(g)
… … .
(h)
… … .
(i)
… … .”
Section
6
(4)
of the Act provides that:
“
If
a Division has one or more local seats‒
(a)
the main seat of the Division has concurrent appeal jurisdiction over
the area of jurisdiction
of any local seat of the division.”
Moreover,
a Full Court that was constituted to consider this question of
jurisdiction in the matter of
Thembani
Wholesalers (Pty) Ltd v September
,
[2]
the court held that the Eastern Cape Division, Grahamstown (now
Makhanda) being the main seat of the Eastern Cape High Court and
has
jurisdiction over the entire Eastern Cape Province. The Local
divisions at Bhisho, Mthatha and Port Elizabeth (now Gqeberha)
have
concurrent jurisdiction over their respective areas. Litigants may
choose to proceed in Makhanda rather than in a local division
with
jurisdiction. The change of names of court seats in the Eastern Cape
Division of the High Court of South Africa as per Judge
President’s
directive of 7 September 2022, in my view does not change the
position. The appellation of courts in this division
is now the
following:
1.
The main seat of the Eastern Cape Division shall retain the
appellation: “
EASTERN CAPE DIVISION, MAKHANDA”
and
the local seats shall be identified as follows:
(a)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION,
BHISHO)
(b)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION,
GQEBERHA)
(c)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION,
MTHATHA)
The
Makhanda High Court remains the main seat of Eastern Cape Division of
the High Court of South Africa.
[9]
For these reasons, both
objections raised by the respondent fall to be overruled.
[10]
Accordingly, the first respondent’s points
in limine
, namely
lis pendens
and lack of jurisdiction
are dismissed with costs.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Adv: S H Cole SC
and Adv:
Somandi
Instructed
by
:
J A LE ROUX ATTORNEYS
C/o
WHEELDON RUSHMERE & COLE INC.
119
High Street
MAKHANDA
Ref:
SA/Farenchia/S24059
Tel.:
046 – 622 7005
For
the Respondents :
Adv: B Dyke SC
Instructed
by
:
MESSRS MAKANGELA
MTUNGANI INC.
C/o
WHITESIDES ATTORNEYSTHE STATE ATTORNEY
53
African Street
MAKHANDA
Ref.:
Mr Barrow
Tel.:
046 – 622 7117
Date
Heard
: 11 August 2022
Date
Reserved
:
11 August 2022
Date
Delivered
:
6 December 2022
[1]
2012
(6) SA 329
SCA at paragraph 19 F.
[2]
2014
(5) SA 51
(ECG). See headnote.