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[2022] ZAECMHC 4
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MEC for Health; Eastern Cape v Melane; Special Investigating Unit v MEC for Health and Another (2017/2015) [2022] ZAECMHC 4 (15 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 2017/2015
Reportable
In
the matter between:
MEC
FOR HEALTH, EASTERN CAPE
Applicant
and
KHUMBULELA
MELANE
Respondent
and
SPECIAL
INVESTIGATING UNIT
Applicant
and
MEC
FOR HEALTH, EASTERN CAPE
1
st
Respondent
KHUMBULELA
MELANE
2
nd
Respondent
JUDGMENT
MBENENGE
JP:
Introduction
[1]
At the heart of these proceedings is a quest to rescind orders
granted on diverse
occasions in favour of Ms Khumbulela Melane in her
personal capacity and representative capacity as mother and guardian
of
L
against the Member of the Executive Council responsible for Health in
the Eastern Cape Provincial government sued in a nominal
capacity.
[1]
[2]
There are, in essence, two applications, one brought by the MEC and
the other by the
Special Investigating Unit (the SIU),
[2]
against Ms Melane.
[3]
Additionally, there are proceedings ancillary to the applications,
about which more
will be said at relevant points in the course of
this judgment.
The
parties
[4]
In the first application, the applicant is the MEC and the respondent
is Ms Melane.
In the second application, the applicant is the SIU,
and the first and second respondents are the MEC and Ms Melane,
respectively.
[5]
For the sake of convenience, the parties shall henceforth be referred
to as cited
in the main action,
[3]
and the SIU shall continue being referred to as such.
Background
[6]
In light of the manifold issues falling to be determined in this
application, the
setting out of the relevant background facts, in
some detail, is necessary.
The main action
[7]
The history of this case dates as far back as July 2015, when Ms
Melane launched an
action seeking to recover, from the defendant, R12
240 000, as and for damages allegedly suffered consequent upon
the labour
to deliver
L
and as the result of which
L
sustained severe brain damage.
[4]
It is alleged that this, in turn, resulted in
L
suffering from permanent spastic palsy complicated by epilepsy, which
arose from the negligent conduct of employees of the Eastern
Cape
Provincial Department of Health
[5]
at the All Saints and Nelson Mandela Hospitals.
[8]
On 29 September 2015, the defendant, through the Mthatha State
Attorney’s Office,
delivered a plea signed,
inter alia
,
by counsel in private practice placing in dispute both liability and
quantum
. The plea constituted a bare denial, but no moment of
this was made by the plaintiff.
[9]
Upon the closure of the pleadings, on 06 October 2015, the
plaintiff’s attorneys
of record delivered a notice in terms of
rule 35 of the Uniform Rules of Court (the Rules),
[6]
requiring the defendant to make discovery.
[10]
The defendant did not give heed to the rule 35 notice.
[7]
Not even letters subsequently written demanding discovery on
pain of an order compelling discovery yielded any positive result.
[11]
By notice dated “
09
June 2014
”
[8]
served on the state attorney on 23 August 2017, the defendant was
notified that the plaintiff would, on 29 August 2017, seek an
order
compelling discovery.
[12]
The order compelling the defendant to make discovery “
within
five (5) days of
[the]
order
” was, however, obtained
on 28 August 2017.
[13]
The state attorney was notified of the order on 31 August 2017.
[14]
By notice served on the state attorney on 06 September 2017, the
defendant was notified that
an application to strike out the
defendant’s defence would be made on 12 September 2017. The
affidavit filed in support of
the application is signed by the
plaintiff but does not state the place and the date on which it was
attested.
[15]
By order dated 12 September 2017, the defendant’s defence in
the main action was struck
out. There was no appearance for the
defendant on that occasion.
[16]
Despite the order, on 15 September 2017, the defendant served the
state attorney with the long-sought
discovery affidavit and medical
records relating to the treatment of the plaintiff. These documents
were served under cover of
evenly dated letter, worded:
“
As
discussed kindly find attached a copy of the defendant’s
discovery affidavit. Please note that we will file same on Monday,
18
September 2017.
We
would like to highlight that this matter was previously handled by Mr
Mlola who has since resigned and the matter was then allocated
to [Mr
Nondlazi] last month (August) hence the delay in serving and filing
our discovery affidavits. In the circumstances, we propose
that [the]
court order dated 12 September 2017 (striking out the defendant’s
defence) be abandoned.”
[17]
The main action had, meanwhile, been set down for hearing on 20
September 2017, on which date,
and at the instance of the defendant,
it was postponed to afford the defendant’s camp time to
consider the order of 12 September
2017 and, if so advised, launch an
application to rescind the order.
[18]
On 23 January 2018, after notifying the defendant of her intention to
amend the particulars of
claim by increasing the quantum of damages
claimed to R28 200 000, the plaintiff set down the main
action for hearing
on 22 May 2018.
[9]
[19]
On two occasions,
[10]
the
defendant’s camp tried unsuccessfully to refer
L
for
examination by the defendant’s experts.
[20]
Then came 22 May 2018. On that day, the plaintiff’s counsel
sought to lead evidence in
respect of the merits based on affidavits
deposed to by the plaintiff and her expert witness, Professor Van
Toorn.
[21]
The defendant was represented by counsel, professing to attend court
on a “
watching brief
” basis. In part, the relevant
portion of the transcript reads:
“
Court
:
Can I
just enquire, Mr Qitsi, on what bases are you here?
Mr
Qitsi
:
M’Lord I’m here because I find it when I’m here
that there was
a default judgment, I was not aware of that, I was
misled by those who instructed me, but I am informed that the . . .
defence
was struck off and we didn’t received it.
Court
:
Yes.
Mr
Qitsi
:
So I am here on those bases, M’Lord, there is nothing I will
say in this
application.
Court
:
So one can say it is really a watching brief?
Mr
Qitsi
:
Yes.”
[22]
Pursuant to an
ex tempore
judgment, based on affidavit
evidence, the court granted an order holding the defendant liable for
all proven damages suffered by
the plaintiff arising from the
negligent treatment of the plaintiff and
L
and postponed the
issue of
quantum
for later determination.
[23]
A further notice, intended to amend the particulars of claim by
increasing the
quantum
from R28 200 000 to
R40 200 000, was delivered on 07 September 2018.
[24]
After embarking on extensive preparation, the plaintiff set down the
matter for hearing on
quantum
on 11 February 2019.
[25]
On 28 January 2019, the Norton Rose Fulbright South Africa/Smith
Tabata Inc. consortium delivered
a notice of acting “
as
correspondent attorneys
” in this matter, having been
instructed to “
assist the state attorney in these matters
.”
It is not in dispute that this instruction was informed by the fact
that the state attorney was suffering beneath the load,
and lacked
the capacity to handle the deluge of medical negligence cases
flooding the High Court in the Eastern Cape.
[26]
On 08 February 2019, the defendant, through its correspondent
attorneys, served postponement
application papers contending, in the
main, that the defendant’s team was not ready to run the trial
as “
neither counsel, nor
. . .
the
[d]
efendant’s
new attorneys of record
[were]
fully briefed with a full
set of the papers
.” The application was opposed.
[27]
On the hearing date (11 February 2019), the application for
postponement was refused. The defendant’s counsel nevertheless
remained during the hearing on a “
watching
brief
”
basis. On the strength of affidavit evidence, the court granted
judgment on
quantum
in favour of the plaintiff.
[11]
The rescission
proceedings
[28]
On 15 July 2019 the defendant launched an application
[12]
seeking, in the main, an order -
(a)
rescinding and setting aside the order
granted on 12 September 2017 striking out the defendant’s
defence in the main action;
(b)
reinstating the defendant’s plea in
the main action; and
(c)
rescinding and setting aside the order on
quantum
granted on 11 February 2019.
[29]
The affidavit filed in support of the application is deposed to by Mr
Zekhaya Bastile, a senior
legal administration officer in the employ
of the Department, allegedly duly authorised thereto “
on
behalf of the
[defendant].”
[30]
The mainstay of the defendant’s case is that the judgment
obtained on 11 February 2019
was predicated on affidavits which
contained patent deficiencies warranting some degree of scrutiny in
an opposed motion and, given
the nature of the matter, the
quantum
involved and the wider impact of the award, ought to have been
brought to the attention of the court prior to it granting the
impugned
order. The affidavit on the strength of which the order was
granted, deposed to by the plaintiff who lacked the knowledge of the
steps taken to procure expert summaries and the steps taken by her
legal representative, constituted inadmissible hearsay evidence,
in
that the allegations were not confirmed by her attorney. The amounts
on
quantum
consist of duplications, inaccuracies and
incongruities so much so that the default judgment ought to have been
refused; the startling
amounts awarded for future medical expenses is
not justifiable with due regard to previous comparative awards. In
these circumstances,
contends Mr Bastile, the defendant has a
bona
fide
defence to the
quantum
awarded to the plaintiff in
her representative capacity.
[31]
The explanation tendered for the defendant’s default relative
to the order of 28 August
2017 is that Mr Nondlazi became seized of
the matter at a late stage, after the departure of a colleague who
had previously handled
the matter.
[32]
There being no facts at its disposal to enable it to contest
liability, the defendant is not
bent on rescinding and setting aside
the order of 22 May 2018 on liability.
[33]
In so far as it may be contended that there was a delay in launching
the rescission application
and in delivering the replying affidavit,
condonation therefor is also being sought.
[34]
In support of the application to condone the delay in launching the
rescission application, it has
been alleged that Norton Rose was not
aware that the defendant’s defence had been struck out until so
advised by Mr Sakhela
on 08 February 2019 after the affidavit in
support of the relevant application for postponement had been
prepared. The application
was brought as soon as possible after 11
February 2019, still with an incomplete file.
[35]
The following excerpt from Mr Bastile’s affidavit captures the
essence of the defendant’s
explanation for the laches in
launching the rescission application:
“
It
was only after the appointment of the consortium on 28 January 2019
and the lapse of several months during which Norton Rose
persisted
with efforts to piece together a discernible record, obtaining the
advice of senior counsel and finally obtaining the
order of 11
February 2019 on 11 June 2019, that the defendant was in a position
to proceed with this application.
The
application has been launched at the earliest possible time after 11
February [2019], bearing in mind that the defendant still
does not
have all the relevant documents pertaining to the conduct of this
matter nor a complete court file in its possession.
The defendant has
had to proceed with what it now has at its disposal. Should further
documents become available prior to the hearing
of this application,
the defendant reserves the right to amplify this affidavit to the
extent necessary.”
[36]
The plaintiff delivered notice to oppose the MEC application on 30
July 2019.
[37]
Meanwhile, the SIU launched its rescission application
[13]
on 28 July 2020. The application embodies structured relief sought in
two parts (Part A
[14]
and B).
In essence, the SIU seeks an order rescinding and setting aside all
the orders granted in favour of the plaintiff in the
main action as
also an order granting it leave to intervene and be joined as the
second defendant in the main action.
[38]
The deponent to the affidavit filed in support of the SIU application
is Mr Bongani Tshuku, a
project manager stationed in Pretoria. The
SIU, having been mandated thereto, conducted investigations into
serious allegations
of corruption and maladministration in,
inter
alia
, the Office of the State Attorney, Mthatha regarding medical
negligence cases involving the Department. According to Mr Tshuku,
such investigations yielded cogent and irrefutable evidence of
maladministration in how the Department and its legal team, including
the state attorney, handled the main action.
[39]
According to the SIU, the maladministration consisted principally in
-
(a)
the failure to heed the plaintiff’s
discovery notice and, subsequent thereto, the order compelling such
discovery, resulting
in the defence of the defendant being struck out
on an unopposed basis;
(b)
not
taking steps to avoid judgment on liability and on
quantum
being taken by default, in instances where a plethora of
defences,
[15]
including the
public health defence,
[16]
which could and should have been raised at pleading stage and pursued
at trial stage; and
(c)
the failure to apply for the rescission of
the impugned orders at the earliest available opportunity in
circumstances where that
could and should have been done.
[40]
In granting the impugned orders, contends the SIU, the court was
unaware of the
bona fide
defences set out above and
maladministration of the main action by the state attorney at both
liability and
quantum
stages. It is further contended that the
SIU neither has control over nor the power to dictate to the
Department’s attorneys
as to how to litigate its rescission
application, hence it is compelled to litigate in its own capacity as
authorised by the SIU
Act to protect the interest of the Department.
Upon joining as the second defendant in the main action, the SIU
seeks “
to participate therein and to produce the necessary
evidence which would demonstrate a bona fide defence to both issues
of quantum
and liability to prevent potential losses from being
suffered by the
[Department].”
[41]
It is not in dispute that the parties to the MEC application had
reached an agreement that the
plaintiff could hold in abeyance the
delivery of her affidavit in opposition thereto pending settlement
negotiations “
resulting in tacit abandonment of the strict
procedures of
[r]
ule 6
.” The negotiations yielded
nought. Against this background, the plaintiff’s answering
affidavit in the MEC application
was served more than a year after
the launch of the application on 20 August 2020, with a request for
condonation for such late
delivery.
[42]
The deponent to the answering affidavit is Mr Ngqiqo Sakhela, the
plaintiff’s attorney
who has, at all times relevant hereto,
been handling this litigious matter. The authority of Mr Bastile to
depose to the affidavit
in support of the MEC application on behalf
of the defendant is disputed on the ground that he lacks personal
knowledge of the
facts testified to by him. The stance of the
plaintiff on the merits is, in a nutshell, that -
(a)
the defendant is, by reason of the defence
having been struck out, and absent the purging of her shortcomings
and the resurrection
of her defence, precluded from participating in
the main action;
(b)
the defendant has acquiesced in the
impugned judgments and their legal effect with the result that she is
precluded from seeking
to undo the orders;
(c)
the order striking out the defendant’s
defence and its legal effects are
res
judicata
;
(d)
the defendant has not established any
procedural irregularity warranting interference by way of rescission
or at all; and
(e)
no
bona fide
defence to the main action has been established.
[43]
In her affidavit filed in opposition to the SIU application,
delivered on 21 October 2020, the
plaintiff adopted the same stance
advanced in opposition to the MEC application. The testimony of Mr
Tshuku in the affidavit filed
in support of the SIU application is
challenged on the basis that it constitutes inadmissible hearsay
evidence and opinion evidence
of an expert nature; there are no
supporting affidavits by persons with the relevant expertise. The
delay in filing the affidavit,
which the court is asked to condone,
is said to have been caused “
by the out of court settlement
negotiations which started after the service of the defendant’s
rescission application was
instituted, the need to first draft a
comprehensive answering affidavit in opposition to the defendant’s
application for
rescission so as to avoid an unnecessary duplication
of work and costs in circumstances where the plaintiff is
impecunious, a decision
to engage the services of a new senior
counsel to advise and act in the present application brought by the
SIU, and the additional
time the new senior counsel required to
become conversant with all the relevant facts and documents
.”
[44]
By notice dated 03 November 2020, the defendant, in pursuit of its
opposition to the MEC application,
required the plaintiff to produce
for inspection-
(a)
the affidavit in support of the application
culminating in the grant of the order of 28 August 2017, the relevant
notice of set
down and proof of service of the relevant application
papers on the state attorney;
(b)
the affidavit in support of the application
resulting in the grant of the order of 12 September 2017, the
relevant notice of set
down and proof of service of the relevant
application papers on the state attorney;
(c)
the filing sheets and proof of service on
the state attorney of all the plaintiff’s rule 36 (9) (a) and
(b) notices;
(d)
the files in other similar action
proceedings and in relation to which it is contended the defendant
has not paid in terms of judgments
granted in favour of the various
plaintiffs in the actions;
(e)
proof of service of the amended pages
pertaining to the amendment of the particulars of claim increasing
the
quantum
from R12 240 000 to R28 200 000; and
(f)
proof of service of the amended pages
pertaining to the amendment of the claim from R28 200 000
to R40 200 000.
[45]
On 09 July 2021, the plaintiff set down the MEC application for
hearing on 16 September 2021.
[46]
On 30 August 2021, the defendant served the plaintiff with a notice
of application for postponement
of the MEC application premised on
the ground that the application should await the finalization of the
SIU application, in keeping
with an agreement allegedly concluded by
the parties.
[47]
The plaintiff opposed the postponement application. The existence of
the agreement to first dispose
of the SIU application was disputed,
the contention being that there existed no reason to hold the MEC
application hostage to the
SIU application, which related to much of
the same matter.
[48]
The replying affidavit in the SIU application was delivered just over
a year after the answering
affidavit had been filed, on 07 September
2021. The affidavit is replete with legal arguments and quotations
from statutory provisions.
It is lengthy, with the deponent thereto
seeking to justify the prolixity by stating that the issues for
determination are complex
and that “
the information
contained
[therein]
is necessary to enable the court to come
to a fair and just conclusion in the case
.” Condonation for
the late delivery of the affidavit is sought principally on the
ground that the proceedings were hampered
by the Corona-virus
pandemic and resulting lockdown levels which rendered it well-nigh
impossible for the SIU to consult meaningfully
with the relevant
witnesses who eventually filed reports and confirmatory affidavits.
[49]
The delivery of the SIU’s replying affidavit attracted an
application by the plaintiff
to strike out averments construed as
constituting new matter in reply which ought to have been contained
in the founding affidavit.
The plaintiff also filed an affidavit
resisting the SIU’s request for condonation of the late
delivery of the replying affidavit.
[50]
The MEC and SIU applications, and the defendant’s postponement
application were enrolled
for hearing on 16 September 2021. On that
day, the applications were postponed and the parties placed on terms
regarding the delivery
of outstanding papers. Costs occasioned by the
postponement were reserved for determination by the court hearing the
applications.
Most significantly, the court recorded that-
“
3.
The parties agree that the matters
warrant a hearing in the fourth term of 2021 if possible, and
agree
to make representations to the Judge President of the Eastern Cape
Division of the High Court for a mutually convenient date
upon which
the matters can be heard, for a minimum of three days.
4.
The parties agree that a full bench . . . hear the matter, subject to
the Directive
of the Judge President.”
[51]
On 04 October 2021, the parties’ attorneys in the MEC and SIU
applications filed a joint
practice note which, in part, reads:
“
WHEREAS
this joint practice note is presented to the Judge President by the
parties with common understanding of the nature and complexity
of the
issues involved in these matters and the fact that the matters
warrant a hearing in the fourth term of 2021 by the full
bench and
the application for postponement of the application for rescission of
the judgment in favour of Khumbulela Melane be
heard by a single
judge, a full bench not being warranted be heard before the SIU
application against Khumbulela Melane and obviously
the application
of the rescission of judgment in favour of Khumbulela Melane.
WHEREAS
the MEC is not a party to the application by the
SIU against Khumbulela Melane second respondent/ defendant and is
disputing that
the rescission application brought by the MEC against
Khumbulela Melane is to be heard before the outcome of dispute
between the
SIU and Khumbulela Melane and in the circumstances has
brought an application to postpone her application for rescission of
judgment
in favour of Khumbulela Melane.”
[52]
Pursuant to the practice note, on 18 November 2021, the parties’
legal representatives
attended a case flow management conference at
my chambers. Amidst representations by the defendant’s counsel,
Mr
Van der Linde
, that the MEC application be postponed and
the SIU application be heard first, a directive was issued that both
rescission applications
and any postponement application that the
defendant might pursue be heard by a full court on 18 to 20 January
2022. The parties
were urged to deliver all outstanding papers to
ensure that on the hearing dates nothing would be outstanding.
[53]
Upon availing the documents requested by the defendant in terms of
items 1, 2, 5 and 6 of its
rule 35(12) notice to Norton Rose, on 13
December 2021, the defendant delivered a supplementary founding
affidavit on 21 December
2021. The affidavit sets out irregularities
that beset -
(a)
the setting down of the application to
compel discovery;
(b)
the inadequate
dies
afforded the defendant to comply with the order compelling discovery;
and
(c)
the
affidavit filed in support of the application to strike out the
defendant’s defence.
More about this later
[54]
The defendant also delivered a notice to amend her notice of
application for postponement so
as to read-
“
1.
that the agreement between the parties that the rescission
application previously set down on the opposed motion court roll of
Thursday 16 September 2021 be postponed and be held in abeyance
pending the outcome of the SIU application be upheld;
2. that [the] application
be postponed and held in abeyance accordingly.”
[55]
The replying affidavit in the MEC application was delivered on 11
January 2022. Condonation
for the late delivery of the
affidavit is sought in the affidavit itself. The delay is said to
have resulted from intervening events
giving rise to the view by the
defendant’s camp that the MEC application would be held in
abeyance pending the final determination
of the SIU application,
which was overtaken by the directive that the applications proceed on
18 to 20 January 2022 and that all
outstanding documents be filed.
[56]
The proposed amendment to the postponement application notice was
objected to by the plaintiff,
and this resulted in the defendant
giving notice that, on the hearing date, she would seek the leave of
court for the amendment
to be effected.
[57]
The defendant intends abiding the decision of the court in the SIU
application. Norton Rose has,
however, caused to be filed an
affidavit disavowing any malfeasance on its part in the handling of
the case since entering the
fray of the contest.
The
hearing
[58]
At the hearing, before this court, constituted in terms of
section 14
(1)
(a)
of the
Superior Courts Act 10 of 2013
, there were three
applications, namely:
(a)
the application for a stay of the MEC application;
(b)
the application for rescission by the
MEC; and
(c)
the application for intervention and
for rescission by the SIU.
Application for a stay
of the MEC application
[59]
The application to postpone and/or hold in abeyance the MEC
application, including the application
for the amendment of the
notice to postpone the MEC application, was dealt with first. On
behalf of the defendant, it was contended
that the parties had
previously agreed to hold in abeyance the MEC application pending the
finalisation of the SIU application
and that the agreement should be
given effect to. The plaintiff contended otherwise, pointing to
dilatoriness on the part of the
defendant whilst at the same time
disputing the existence of the agreement.
[60]
After hearing argument, the following order was issued:
“
The
application to amend the notice of motion in the postponement
application and to postpone the MEC’s rescission application
pending the finalisation of the SIU’s application is refused
with costs. Such costs to include those consequent upon the
engagement of two counsel. The reasons for this order shall be
furnished in the main judgment in case number 2017/2015.”
[61]
Here are the reasons for the order.
[62]
To begin with, the principles applicable to an application for the
grant of a postponement are
of relevance in determining the issues at
hand. First, the court has a discretion as to whether an application
for a postponement
should be granted or refused.
[17]
Add to this the cardinal rule that an application for a postponement
must always be
bona
fide
and not used simply as a tactical manoeuvre for the purpose of
obtaining an advantage to which the applicant is not legitimately
entitled.
[18]
[63]
The proceedings sought to be stayed were launched on 11 February
2019, and relate to a minor
child of which this court is the upper
guardian.
[64]
The existence of the agreement relied on by the defendant is hotly
contested. This was the case
even on two previous occasions. On one
such occasion, the defendant was advised as follows:
“
We
maintain that the MEC application for rescission is a separate
independent application and should be heard separately from the
SIU
application. The MEC has filed a notice to abide the SIU application
and cannot thereafter wait for the SIU’s application
to be
heard first so that her application can be heard only if the SIU’s
application is unsuccessful.”
[19]
[65]
This court was of the view that the agreement on which the
postponement application was predicated
was simply one of
convenience. Mr
Van der Linde
was hard put to explain why, in
light of the directive issued on 18 November 2021, the SIU and MEC
applications should not, for
practical reasons, be heard all at once.
[66]
In any event, even if the parties had reached an agreement as
alleged, the court has a discretion
to refuse a postponement even
when the parties have agreed to postpone the matter.
[20]
[67]
The SIU and MEC applications are inextricably bound up with each
other and need to be considered
against the general history of the
case. As at the hearing date, all papers had been filed and the
parties were all ready and rearing
to argue the merits of both
applications, having previously delivered heads of argument.
Similarly, the court had read the voluminous
papers in both
applications.
[68]
In an instance such as this one, one may do no better than refer to
MEC
for Health, Eastern Cape and Another v Kirland investments (Pty)
Ltd
.
[21]
In that case Cameron J (for the majority of the Constitutional Court)
held:
“
On
the contrary, there is a higher duty on the state to respect the law
to fulfil procedural requirements and to tread respectfully
when
dealing with rights. Government is not an indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom
the
courts must extend a procedure-circumventing lifeline. It is the
Constitution’s primary agent. It must do right, and
it must do
it properly.”
These
remarks apply with equal force in this matter.
[69]
It is as well for us to remind ourselves of the following remarks by
Lord Woolf:
[22]
“
Without
effective control . . . the adversarial process is likely to
encourage an adversarial culture and to degenerate into an
environment in which the litigation process is too often seen as a
battlefield . . . In this environment, questions of expense,
delay,
compromise and fairness may have only low priority. The consequence
is that expense is often excessive, disproportionate
and
unpredictable; and delay is frequently unreasonable.”
But
for the directive issued on 18 November 2021, these proceedings
would, in all probability, still be far from finalisation.
[70]
The court could not discern any advantage such as, for instance, the
saving of costs, in the
approach contended for by the defendant.
Postponing the case with a view to giving effect to the alleged
agreement would have elevated
form over substance and not serve the
interests of justice. Nor could the court find justification on
principle for granting the
postponement.
[71]
Whatever agreement there might have been, it was subsumed on 18
November 2021 when the directive
that all three applications would be
heard by this court on 18 to 20 January 2022 was issued.
[72]
It is against this background that a more pragmatic approach was
adopted and both rescission
applications were heard all at once.
[73]
Costs were sought against the defendant on the punitive attorney and
client scale. Cognisance
should, however, be taken of the fact that
this litigation was conducted by the parties in a dilatory and clumsy
manner. The parties
and their legal representatives shunned their
responsibility to prepare properly, comply with all rules of court,
and act professionally
in expediting the matter towards hearing and
adjudication.
[23]
None of the
parties is blameless on this score. The plaintiff delayed unduly in
responding to the defendant’s rule 35 (12)
notice, but then
again nothing prevented the defendant from invoking the provisions of
rule 30A
[24]
when the
plaintiff was being dilatory in giving heed to the notice. The
court was of the view that where, as here, the parties
contributed to
the delays, a punitive attorney and client costs award was not
warranted, hence it granted the cost order it did.
Late delivery of
affidavits
[74]
As mentioned in the foregoing background, in some instances it took
approximately a year for
the parties concerned to deliver the
outstanding affidavits. They unduly allowed each other latitude to
deliver papers out of time
and arrogated to themselves the right to
“
tacit abandonment of the strict procedures of rule 6
.”
[75]
This approach falls foul of the principle enunciated in
Waltloo
Meat and Chicken SA (Pty) Lty v Silvy Luis (Pty) Ltd and Others.
[25]
In that case Poswa J stated that the view held by some that
insistence on compliance with adherence to time limits provided in
the rules is formalistic, is incorrect; such time limits are, no
doubt, based on considerations of fairness and the avoidance of
litigation by ambush. The court further held that it could not have
regard to affidavits and annexures thereto delivered out of
time
without condonation therefor having been sought and obtained, as the
court could not have regard to information not properly
placed before
it. It remains the discretion of the court whether or not to have it
admitted as evidence by granting an application
for condonation of
such late delivery.
[26]
[76]
Only the defendant sought, by way of substantive application,
condonation for the late delivery
of her replying affidavit and the
supplementary founding affidavit. The other parties adopted a
lackadaisical attitude and contented
themselves with merely stating,
in the relevant affidavits, that condonation for the late delivery is
being sought, without the
launch of a substantive application, which
is what rule 27 contemplates.
[77]
The defendant has made out a good case for the condonation she is
seeking. Only once some of
the documents sought in the rule 35 (12)
notice had been availed, was the defendant better placed to deliver
her replying affidavit
and supplement her cause of action by way of a
supplementary affidavit. The request for the acceptance by the court
of the supplementary
founding affidavit was not opposed. The
plaintiff also did not place any evidence before the court to refute
the alleged irregularities.
The reason for this is not far to seek -
the allegations made therein are self-evident.
[78]
Having regard to the merits of the matter seen as a whole and the
fact that none of the parties
stands to thereby suffer any prejudice,
it would be in the interests of justice to condone the late delivery
of answering and replying
affidavits, and for the court to accept the
defendant’s supplementary founding affidavit.
[79]
This brings us to a consideration of the issues falling to be
determined in these proceedings.
Authority to depose to
affidavits
[80]
The authority of certain deponents to affidavits filed in these
proceedings was disputed; the
authority of Mr Bastile to depose to
the affidavit in support of the MEC application is disputed, and so
is the authority of Mr
Sakhela to depose to the answering affidavit
in the SIU application.
[81]
This contention ought not to detain us any further. It is trite law
that the deponent to an affidavit
in motion proceedings need not be
authorised by the party concerned to depose to the affidavit.
[27]
For this reason, the applications will be disposed of on the strength
of credible admissible evidence embodied in all affidavits
filed of
record. The MEC application, having been the first to be launched,
will be dealt with first.
The MEC application
[82]
The MEC application is founded on rule 42 (1) (a) or the common law.
In my view, the invocation
of the rule effectively disposes of the
application with the result that nothing more need be said about the
common law. The rule
gives the court a discretion to rescind or vary
an order or judgment erroneously sought or erroneously granted in the
absence of
any party affected thereby at the instance of,
inter
alia
, the party affected by such order or judgment.
[83]
It has been held that the purpose of rule 42 (1)(a) is to
correct expeditiously an obviously
wrong judgment or order,
[28]
so much so that a dilatory litigant may be non-suited on the ground
that the application was launched after the lapse of a reasonable
time.
[29]
Once the court holds
that an order was erroneously sought or granted in the absence of any
party affected thereby, it should without
further enquiry rescind or
vary the order;
[30]
it is not
necessary for a party to show good cause for the rule to apply.
[31]
[84]
It is trite law that an order or judgment is erroneously granted if
there was an irregularity
in the relevant proceedings.
[32]
[85]
At this juncture, two orders come to the fore namely, the order of 28
August 2017 compelling
the defendant to make discovery and the one
dated 12 September 2017 striking out the defendant’s defence.
It is common cause
that on both occasions, the defendant was absent
in court. The circumstances under which the orders were sought and
obtained require
close scrutiny.
[86]
The facts on which the resolution of the MEC application turn speak
for themselves. In the first
place, whereas the plaintiff had
notified the defendant that it would seek an order compelling
discovery on 29 August 2017, the
order was sought and obtained the
day before, on 28 August 2017. Second, the defendant was not afforded
the requisite five days
period within which to comply with the order
compelling discovery; the order directing compliance was served on
the defendant’s
attorneys on 31 August 2017, yet the
application to strike out was delivered on 6 September 2017, and not
on 7 September 2017.
Also, the affidavit filed in support of the
application to strike out bears no date and place of attestation
thereon.
[87]
There can be no doubt that a litigant who, having notified the other
that relief will be sought
on a specified date, proceeds to obtain
the order on another day is committing an irregularity. In the same
vein, it is irregular
for a court to grant an order on a day that is
different from that specified in the relevant notice. This is akin to
a situation
where a litigant seeks a judgment against the other
before expiry of the
dies
induciae
.
[33]
In that situation, as here, the court lacks the power to condone the
irregularity. In any event, there is nothing to show that
attention
was paid to the discrepancy on the dates. The same shortcoming
bedevils the service of the order compelling discovery.
[88]
What of the shortcoming in the affidavit filed in support of the
application to strike out? Regulation
4 (1) of the Regulations
Governing the Administering of an Oath or Affirmation
[34]
provides:
“
Below
the deponent’s signature or mark the commissioner of oath shall
certify that the deponent has acknowledged that he knows
and
understands the contents of the declaration and he shall state the
manner, place and date of taking the declaration.”
[89]
The provisions of rule 4 (1) are directory. The court has a
discretion to refuse to receive an
affidavit attested otherwise than
in accordance with the Regulations depending upon whether substantial
compliance with them has
been proven or not.
[35]
[90]
However, where, as here, condonation is required, an explanation for
that non-compliance must
be provided on affidavit so as to enable the
court to exercise its discretion in favour of or against granting
such an indulgence.
[36]
There
is nothing to show that condonation was applied for and granted when
the application to strike out was moved. The ineluctable
conclusion
is, therefore, that the affidavit on the strength of which the order
of 12 September 2017 was granted was not properly
commissioned, which
renders the affidavit fatally defective and the resulting proceedings
irregular.
[91]
In light of the procedural irregularities mentioned above, the orders
of 28 August 2017 and 12
September 2017 were erroneously sought and
erroneously granted within the meaning and contemplation of rule 42
(1)(a). There is
also nothing, from the facts of this matter, that
precludes the court from exercising its discretion against rescinding
the impugned
orders.
[37]
[92]
The following remarks by Mpati P in
Government
of the Republic of South Africa and Others v Von Abo
[38]
are apposite in this instance:
“
[18]
However, it matters not whether the first order was appealable or
whether the appeal had been perempted. As a matter of logic
the
second order arose from the first order and has no independent
existence separate from the first order. As the second order
was
given in consequence of the first order, and would not nor could have
been given if it were not for the first order, it
follows that
if the first order is wrong in law, the second order is legally
untenable. Whether the appellants were ill-advised
not to appeal
against the first order, but rather to try and comply with it, should
not have the unacceptable result that this
court is held to a mistake
of law by one of the parties. I can put it no better than Jansen JA
in
Paddock
Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A)
at 23F:
'(I)t would create an
intolerable position if a Court were to be precluded from giving the
right decision on accepted facts, merely
because a party failed to
raise a legal point, as a result of an error of law on his part. . .
.;’
[19]
In
Paddock
the principle of the court not being
bound by what is legally untenable was applied in the narrower
context of a legally wrong
concession by one of the parties during
proceedings, but the principle is equally valid in the present
context. It would be similarly
intolerable if, in the current
situation, this court would be precluded from investigating the legal
soundness of the first order,
as a result of the incorrect advice
followed by the appellants or an incorrect concession made by them.”
[93]
In light of the shortcoming besetting the order of 28 August 2017
referred to above (the initial
order), the subsequent orders given in
consequence of the initial order could not have been issued had it
not been for the initial
order. The order of 12 September 2017 is, in
any event, in and by itself, and for the aforementioned reasons,
similarly irregular.
As a result, the subsequent orders granted
on the basis that the defendant’s defence had been struck out
namely,
the orders on the merits and on
quantum
granted on 22
May 2018 and 11 February 2019, respectively, also fall to be
rescinded; they arose from the orders that preceded them
which have
no separate independent existence from the initial and/or subsequent
order.
[94]
In her heads of argument, Ms
Goedhart
, who appeared for the
defendant in the MEC application, contended that “[i]
t
follows that the subsequent orders granted on the basis that the
defendant was not before court as its defence had been struck
out
also fall to be rescinded
.” At the hearing she, however,
adopted a benevolent approach and contended that the order on the
merits need not be rescinded.
This concession is, in light of the
trite legal position referred to above, nothing to go by as it is, in
any event, not binding
on this court.
[95]
The conclusion reached on the MEC application renders it unnecessary
for this court to consider
whether the orders of 22 May 2018 and 11
February 2019 were granted in the absence of the defendant within the
meaning and contemplation
of rule 42 (1) (a). It suffices to mention
that there is merit in the contention raised by Ms
Goedhart
that
the appearance of counsel on a “
watching
brief
”
basis for a client that has been barred is inconsequential because
the rule is not meant to cover litigants who, upon being
afforded due
process, elect to be absent.
[39]
The SIU application
[96]
Very belatedly,
[40]
the SIU,
without seeking to condone the launch of its rescission application
after the lapse of a reasonable period, has sought
to join the
instant proceedings and launch a separate application to rescind the
order obtained by the plaintiff against the defendant
and to
intervene as a further defendant in the main action.
[97]
The conclusion reached on the MEC application has paved the way for
the resumption of the main
action from the stage where pleadings have
closed.
[98]
This leaves the issue for determination in the SIU application being
whether, in light of the
conclusion reached on the MEC application,
the SIU is entitled to -
(a)
rescind and set aside all orders granted in favour of the plaintiff
in the main action;
and
(b)
intervene and be joined as the second defendant in the main action.
[99]
The SIU application is premised on the ground that the impugned
orders were products of maladministration
and irregular and improper
conduct on the part of the Department’s officials
alternatively, its legal representatives in
the main action. More
pertinently, the SIU’s lamentation is that the Department and
its legal team (the Mthatha State Attorney)
were not vigilant in
defending the main action;
bona fide
defences available to the
defendant which could and should have been raised were not called to
aid.
[100]
Because the defendant did not seek to rescind the order on liability,
whereas the SIU does, argues
the SIU, the issues requiring
determination are different in the MEC and SIU applications. Were the
SIU rescission application
to be granted, the SIU would, upon being
joined as the second defendant, enter the fray of the main action and
raise the
bona fide
defences.
[101]
The case of the SIU is also captured in the SIU’s founding
affidavit as follows:
“
In
view of the fact that the [SIU] has no control over [the defendant]
and cannot dictate to it or [its present attorneys of record]
as to
how to litigate its rescission application, it has been compelled to
litigate in its own capacity as authorised by the preamble
to…
and section 4 (1) (c) (i) of the [SIU Act] in order to protect the
interest of the [defendant] and it has hence instituted
this action.”
[102]
To begin with, at the instance of the defendant, the orders granted
in favour of the plaintiff, including that
on liability, have been
proven to be irregular and thus liable to be set aside. The corollary
of this is that the main action will
resume from the stage where
pleadings closed.
[103]
The commencement
de novo
of the main action entails a
re-opening of the case in its entirety. Nothing will prevent the
defendant, if so advised, from augmenting
its plea to include the
so-called public health defence or any other defence not called to
aid by the defendant’s initial
legal team or the relevant
departmental officials. This is especially so if one has regard to
the fact that a fresh legal team
has been engaged to represent the
defendant. Nor, as far as this court is concerned, would the
defendant, having signalled acceptance
of the order on liability, be
precluded from conceding such liability on whatever legally
recognised legal basis. It would otherwise
be speculative of this
court to predict what defences may or may not be raised once the main
action resumes.
[104]
The
locus
standi
of the SIU to intervene as a litigant and/or rescind orders on the
basis that the Department concerned and/or the Office of the
State
Attorney was/were remiss and did not act in the interest of the State
has been the subject of pronouncement in this Division
on no less
than three occasions.
[41]
A
reading of the relevant pronouncements points to one thing namely,
that the SIU Act and the Proclamation issued thereunder do
not, upon
a proper interpretation, clothe the SIU with the
locus
standi
to
intervene and re-open cases fully canvassed in a court of law; the
remedy lies in recovering damages from the errant state attorney
or
relevant departmental official. In light of the view the court takes
of this matter, it is not necessary to pronounce on the
correctness
or otherwise of these judgments and to decide the question whether
the SIU has the
locus
standi
to seek an order rescinding and setting aside an order on the ground
that it is the product of maladministration in circumstances
such as
the present.
[105]
As a matter of logic, and even accepting that the SIU has the
requisite
locus standi,
it is not available to the SIU to
litigate over an issue that no longer exists. The defendant has
secured an order rescinding and
setting aside the impugned orders,
with the result that nothing, as between the SIU and the plaintiff,
remains to be rescinded.
[106]
I am mindful of the close connection between
locus
standi
and
ripeness or mootness and that
locus
standi
has
unfortunately sometimes been characterised as an issue of ripeness or
mootness.
[42]
In my view, a
less confusing approach that recognises the difference between these
notions is preferred.
[107]
The enquiry into whether the person who has claimed the relief has
the right and interest to do so or is the correct
person before court
denotes
locus
standi
in
the strict and true sense of the word. That scenario is, in my view,
different from the one where, as here, the enquiry is moot
because
the judgment of the court can have no practical effect, usually
because the dispute has been resolved or because an event
has
occurred that renders consideration of the matter academic.
[43]
The SIU application is disposed of on the basis that the issue
between the SIU and the plaintiff is of no practical relevance,
hence
on this requirement, the SIU application does not pass muster.
[108]
In so far as the SIU seeks to intervene in the main action, it is
incumbent on it to establish that it has a direct
and substantial
interest in the subject matter of the case between the plaintiff and
the defendant.
[44]
[109]
In this regard rule 12
[45]
is
of significance. It reads:
“
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action, may notice to all parties, at any
stage of
the proceedings apply for leave to intervene as a plaintiff or
defendant. The court may upon such application makes such
order,
including any order as costs, and give such directions as to the
further procedure in the action as to it may seem meet.”
[110]
The grant of leave to intervene as a co-defendant is in the
discretion of the court, which is signified by the
use of “
may
”
in rule 12.
[111]
The test applied regarding whether a person can seek to intervene is
to ask whether that person could have been
sued as a party. Joinder
is competent on the basis,
inter
alia,
that the party whose joinder is in question has a direct and
substantial interest in the subject matter of the proceedings. It
is
not sufficient for a party seeking intervention to merely allege an
interest in the action; such party must give
prima
facie
proof
of the interest and right to intervene.
[46]
It is also required of an applicant to make the application seriously
and not frivolously.
[47]
[112]
Has the SIU met the requisite threshold? I think not. There is, at
this stage, no conceivable basis for believing
that the main action
will be beset by maladministration. It can, at this stage, not be
said that the SIU has a right that is likely
to be adversely affected
by the order sought
[48]
entitling it to intervene in the main action. On this requirement,
too, the SIU application must fail.
Conclusion
[113]
In sum, the defendant’s quest to have the orders granted in
favour of the plaintiff in the main action has
yielded the intended
results. Even though the defendant had signalled acceptance of the
order on liability, that order, too, has,
by operation of law, to be
rescinded as it cannot stand if the order in consequence of which it
was granted is set aside. Resultantly,
the SIU’s quest to
rescind the orders has been rendered redundant
[114]
One last item bears mentioning. This case has stagnated, with the
parties not doing much to bring it closer to
the finish line. It
requires constant judicial case management. This will be catered for
in the order that follows.
Costs
[115]
Generally, costs follow the event. At the hearing, the defendant
maintained that, in the event of success in the
MEC application,
costs ought to be in the cause. That stance will be revered. The MEC
elected to abide the decision of the court
in the SIU application.
Only the plaintiff opposed that application. There is no reason why
the SIU should not be liable for the
plaintiff’s costs of
opposition in the SIU application.
Order
[116]
The order that I grant is the following:
1.
The application launched by the Member of the Executive Council for
the Department of Health, Eastern
Cape Provincial Government (the
MEC) against Ms Khumbulela Melane (Ms Melane) under Case No.
2017/2015 (the main action) succeeds,
to the following extent:
1.1
the orders granted in the main action in favour of the plaintiff
against the MEC on 28 August
2017, 12 September 2017, 22 May 2018 and
11 February 2019 are hereby rescinded and set aside in their
entirety;
1.2
the plea of the MEC as defendant in the main action is hereby
reinstated; and
1.3
the costs of this application shall be in the cause.
2.
The application launched by the Special Investigating Unit (the SIU)
against
the MEC and Ms Melane under Case No. 2017/2015 is refused,
with the SIU to pay the costs occasioned by Ms Melane’s
opposition
of the application.
3.
The parties’ legal representatives in the main action are
directed to avail
themselves before Van Zyl DJP for a case management
conference convened for the purpose of determining the future conduct
of the
main action. The time, venue and mode of the conference shall
be determined by the DJP in consultation with the parties’
legal representatives.
S M MBENENGE
JUDGE PRESIDENT OF THE
HIGH COURT
GOOSEN J:
I agree.
G GOOSEN
JUDGE OF THE HIGH
COURT
NORMAN J:
I
agree.
T
V NORMAN
JUDGE
OF THE HIGH COURT
Counsel for the MEC
(application to stay proceedings):
H
J Van de Linde SC
Instructed
by:
Norton Rose Fulbright SA
Sandton
C/o
Smith Tabata Attorneys
Mthatha
Counsel
for the MEC (rescission application):
G-M Goedhart SC
Instructed
by:
Norton Rose Fulbright SA
Sandton
C/o
SmithTabata Attorneys
Mthatha
Counsel
for the respondent (MEC application):
A Katz SC
(with
him,
A Mdeyide
)
Instructed
by: Sakhela
Inc.
Mthatha
Counsel
for the SIU (rescission application):
S Nankan
(with
him,
S Zimema
)
Instructed
by: Bisho
State Attorney
East
London
C/o W
T Mnqandi & Assoc
Mthatha
Counsel
for the respondent (SIU rescission application):
A
G Dugmore SC
(with
him,
L Sambudla
)
Instructed
by:
Sakhela Inc.
Mthatha
Heard
on: 18,19
and 20 January 2022
Delivered
on:
22 March 2022
[1]
Otherwise hereinafter referred to as the MEC.
[2]
Established in terms of section 2 of the Special Investigating Units
and Special Tribunals Act 74 of 1996 (the SIU Act).
[3]
Ms Melane shall be referred to as the plaintiff, whilst the MEC
shall be referred to as the defendant.
[4]
The main action.
[5]
The Department.
[6]
The notice incorporates notices in terms of sub-rules 35 (1), 35
(6), 35 (8), 35(10), and 35 (12), all at once.
[7]
The initial one was served on 06 October 2015 and the subsequent one
on 23 November 2016 after the state attorney had intimated
that the
initial one could not be traced.
[8]
Sic.
[9]
The amendment was perfected on 16 May 2018.
[10]
23 February 2018 and 12 March 2018.
[11]
Payment of R34 233 344 to the plaintiff in her
representative capacity as mother and natural guardian of
L
;
R2 567 501 for the establishment etc of the trust for the
benefit of
L
;
and R375 000 to the plaintiff in her personal capacity.
[12]
Otherwise also conveniently referred to as “
the
MEC application.
”
[13]
Otherwise also conveniently referred to as “
the
SIU application
.”
[14]
In the main, Part A is a quest for interdictory relief restraining
payment of and staying the execution of monetary payments
awarded to
the plaintiff on 11 February 2019 pending the finalisation of the
rescission application.
[15]
Some of which are that the plaintiff had not satisfied the American
College of Obstetrician and Gynaecologists (ACOG) and American
Academy of Paediatricians (AAP) criteria for intrapartum asphyxia to
be sufficient to cause neonatal encephalopathy and consequent
cerebral palsy; the failure to raise the fact that L’s Apgar
scores at five and ten minutes were not less than three and
five
which indicated that L was not terribly asphyxiated at birth, which
could not have been possible if L suffered intrapartum
asphyxia as
contended for by the plaintiff; that L’s Apgar scores at five
and ten minutes were 6/10 and 6/10 indicative
of the fact that L was
not terribly asphyxiated at birth and certainly not indicative that
L’s set of circumstances certify
the ACOG and the AAP criteria
for intrapartum asphyxia to be sufficient to cause L’s
cerebral palsy, which requires that
L’s Apgar score must be
less than six beyond five minutes.
[16]
The upshot of which is that Nelson Mandela Hospital is an
institution of excellence which can provide for future medical care,
treatment, therapies, assertive devices and appliances in respect of
L at no cost, which would be a reasonable standard similar
to that
in the private sector and which would drastically reduce the
quantum
of damages.
[17]
Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NMS) at 314 – 315; also see
Persadh
v General Motor SA (Pty) Ltd
2006
(1) SA 455
(SE) at 459 E – G.
[18]
Myburgh
Transport
case
supra
315 E.
[19]
Extract from a letter dated 08 November 2022.
[20]
National
Police Service Union v Minister of Safety and Security
2000 (4) SA 1110
(CC) at 1112 E.
[21]
(CCT 77/13)
[2014 ZACC 6
;
2014 (5) BCLR 547
(CC);
2014 (3) SA 481
(CC) (25 March 2014); also see
State
Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd
[2016] ZASCA 143
;
[2016] 4 All SA 842
(SCA);
2017 (2) SA 63
(SCA)
(30 September 2016) and
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
1999 (3) SA 173
(C) at 181 F – H, where it was held:
“
The
date for this hearing had been arranged between the parties early
this year in consultation with the Judge President. That
special
arrangement has, without explanation, been ignored . . . By
attempting to postpone this matter and thus cause further
delay, the
applicants might suffer an extended period of anxiety. There was
reason which could be justified on principle for
granting the
postponement and accordingly it was refused.”
[22]
Access to Justice, Interim Report (Lord Chancellors Department, June
1995); Access to Justice, Final Report (London: HMSO, 1996),
paras 4
and 5 of the Interim Report, Chapter 3.
[23]
Cf
rule
37A (2) (c).
[24]
The rule provides:
“
(1)
Where a party fails to comply with these rules or with a request
made
or notice given pursuant thereto, . . . any other party may
notify the defaulting party that or she intends, after the lapse of
ten days from the date of delivery of such notification, to apply
for an order -
(a)
that
such rule, notice, request, order or direction be complied with; or
(b)
that the
claim or defence be struck out.
(2)
Where a party fails to comply within the period of ten days
contemplated
in sub rule (1), application may or notice be made to
the court and the court may make such order thereon as it deems
fit.”
[25]
2008 (5) SA 461 (TPD).
[26]
Waltloo,
supra
paras
28 - 30 at 472 D / 473 E.
[27]
Ganes &
Another v Telecom Namibia Ltd
(608/2002)
[2003] ZASCA 123
;
[2004] 2 All SA 609
(SCA) (25 November
2003).
[28]
Bakoven
Ltd v G J Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471 E - F
[29]
First
National Bank of Southern Africa Ltd v Van Rensburg NO
;
in re
First
National Bank of Southern Africa Ltd v Jurgens
1994
(1) SA 677
(T) at 681 B - G.
[30]
Naidoo
v Somai
2011 (1) SA 219
(KZD) at 220 F - G; also see
Rossitter
and Others v Nedbank
(96/2014) ZASCA 196 (1 December 2015).
[31]
Bakoven
,
supra
,
471H; also see
Mutweba
v Mutweba
2001 (2) SA 193
(Tk) at 199 I - J;
National
Pride Trading 452 (Pty) Ltd v Media 24 Ltd
2010 (6) SA 587
(ECP) at 597 I - 598 B.
[32]
De Wet
v Western Bank Ltd
1979 (2) (SA) 1031 (A) at 1038 D;
National
Pride
case,
supra
,
593 F- 594 I.
[33]
Goosen
v Mthethwa
(LCC 27 R/ 2010)
[2010] ZALCC 22
(18 August 2010).
[34]
Published under GNR1258 in GG 3619 of 21 July 1972.
[35]
Ladybrand
Hotels v Stellenbosch Farmers
1974 (1) SA 490 (O).
[36]
Oosthuizen
v Steyn
2021 (4) SA 307
(GP), para 32.
[37]
Compare
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), para 53, where it was held:
“
It
should be pointed out that once an applicant has met the
requirements for rescission, a court is merely endowed with a
discretion
to rescind its own order. The precise wording of rule 42,
after all, postulates that a court ‘
may
’, not
‘
must
’, rescind or vary its order - the rule is
merely an ‘
empowering section and does not compel the
court
’ to set aside or rescind anything. This discretion
must be exercised judicially.”
[38]
2011 (5) SA 262
(SCA); [2011] 3 All SA (SCA)
[2011] ZASCA 65
; 283/10
(4 April 2011) para 18.
[39]
Cf
Zuma,
para
56, where it was held:
“
Mr
Zuma alleges that this court granted the order in his absence as he
did not participate in the contempt proceedings. This cannot
be
disputed: Mr Zuma did not participate in the proceedings and was
physically absent both when the matter was heard and when
judgment
was handed down. However, the words “granted in the absence of
any party affected thereby ….” exist
to protect
litigants whose absence was precluded, not those whose absence was
elected. Those words do not create a ground of
rescission for
litigants who, afforded procedurally regular judicial process, opt
to be absence.”
[40]
The SIU application was launched on 30 July 2020, the last of the
orders sought to be rescinded having been granted on 11 February
2019, resulting in a delay of just over 18 months.
[41]
Special
Investigating Unit v MEC for Health, Province of the Eastern Cape
and Another
(694/14)
[2020]ZAECMHC 57;
[2020] JOL 49113
(ECM);
2021 (1) SACR 645
(ECM) (1
December 2020);
Special
Investigating Unit v MEC for Health, Province of the Eastern Cape
(3658/2016)[2021]
ZAECMHC 32 (30 August 2021); and
Special
Investigating Unit v HT Belladona Projects (Pty) Ltd
(unreported
decision by Rugunanan J delivered on 18 January 2022)
[42]
Cabinet
of the Transitional Government for the Territory of South West
Africa v Eins
1988
(3) SA 369 (A).
[43]
JT
Publishing (Pty) Ltd v Minister of Safety and Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC) (para 17);
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) (para 21).
[44]
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner
2017 (5) SA 1
(CC) at 4 (G) - 5 (A)
[45]
Of the Rules.
[46]
Elliot
v Bax
:
In re
Bax
v African Life Assurance Society Ltd
1923 WLD 228
, at 231, followed in
Ex
parte
Marshall: In re
Insolvent
Estate Brown
1951
(2) SA 129
(N
).
[47]
Ex
parte Moosa
:
In re
Hassim
v Harop- Allin
1974
(4) SA 412
(T);
[1974] 3 All SA 604
(T);
Minister
of Local Government and Land Tenure v Sizwe Development
:
In re
Sizwe
Development v Flagstaff Municipality
1991 (1) SA 677
(Tk) at 676H -J - 679 A.
[48]
SA
Riding.