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[2022] ZAECMHC 16
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MEC for Health, Eastern Cape and Another v Melane (2017/2015) [2022] ZAECMHC 16 (14 June 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
GOOSEN
J:
[1]
This judgment deals with two separate applications for leave to
appeal.
The main application, in respect of which judgment was
delivered on 22 March 2022, also concerned two separate but
interrelated
applications. A single hearing was held and a single
judgment was prepared, for reasons of convenience. The same applies
in this
instance. I shall, however, deal with the two applications
for leave, under separate headings.
[2]
The parties shall be referred to throughout as follows:
(a)
Mrs Melane, who is the plaintiff in the main action, the applicant in
the first application for leave to appeal and the respondent in the
second application for leave to appeal, shall be referred to
as ‘the
plaintiff’.
(b)
The MEC for the Department of Health, who is the defendant in the
main
action, the respondent in the first application for leave to
appeal and a respondent in the second application for leave, shall
be
referred to as ‘the MEC’.
(c)
The Special Investigating Unit, which is the applicant in the second
application
for leave to appeal and is not a party to the main
action, shall be referred to as ‘the SIU’.
The
application for leave to appeal by the Plaintiff
[3]
The plaintiff seeks leave to appeal against the whole of the judgment
and the order set out in paragraph 1 of the order of this court.
Insofar as paragraph 3 is contingent upon paragraph 1, its fate
is
determined by the outcome of the appeal against paragraph 1. The
effect of the order is to rescind orders granted in favour
of the
plaintiff and against the MEC in the main action.
[4]
The plaintiff opposes the granting of leave to appeal against
paragraph
2 of the order at the instance of the SIU. In the first
application the plaintiff was represented by Mr
Katz
SC and Mr
Mdeyide
. In the second application, dealt with hereunder, the
plaintiff was represented by Mr
Dugmore
SC and Mr
Sambudla
.
[5]
The plaintiff’s
application was premised upon s 17 (1) (a) (i) and (ii) of the
Superior
Courts Act
[1]
.
In relation to the existence of reasonable prospects of success as
required by s 17 (1) (a) (i) several grounds are advanced.
Upon close
examination they may be addressed under the following essential
grounds:
a)
that the court erred in finding that there existed fatal
irregularities in relation
either to the affidavit filed in support
of the application to strike the defence or procedural irregularities
in the process by
which the orders, set aside, were sought;
b)
that the court erred in
its articulation of the principles applicable to rescission of
judgments in conflict with those affirmed
in
Zuma
v The 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
[2]
(hereafter ‘the Zuma’ matter) and failed to exercise a
discretion in relation to the rescission application of the
plaintiff; and
c)
that the court erred in
mero motu
rescinding the order
imposing liability on the MEC when such rescission was not sought by
the MEC and in circumstances in which
the MEC conceded liability to
the plaintiff.
[6]
In relation to the existence of compelling circumstances as envisaged
by s 17 (1) (a) (ii) of the
Superior Courts Act
, the plaintiff
advanced four bases. Firstly, it was contended that the matter is of
considerable importance, not only to the plaintiff
but to all users
of public health care facilities in the Eastern Cape. It is also of
significance inasmuch as it deals with the
need for organs of state
to comply with the rules of court and court orders.
[7]
Secondly, the matter
implicates the constitutional imperative that the best interests of
the child are paramount. Thirdly, it was
contended that the court had
failed to exercise any discretion in deciding to rescind the orders.
This, overlaps with a ground
advanced under the rubric of s 17 (1)
(a) (i
).
Finally, it was contended that the court had failed to consider the
need for a just and equitable remedy pursuant to s 172 (1)
(b) of the
Constitution
[3]
. The
consideration of such remedy was required in the circumstances of the
case. The failure to do so means that the interests
of justice
dictate that leave to appeal be granted.
[8]
A key aspect upon which the application hinges concerns the findings
in
relation to the affidavits and the procedural questions. These are
dealt with compositely from paragraphs [85] to [94] of the main
judgment. I do not intend to repeat the reasoning there set out. It
suffices to note that the procedural irregularities at issue
concerned two issues, namely the
fact
,
ex facie
the
papers before the court, that the order was granted a day prior to
the date reflected in the notice,
and
that the application to
strike out the defence was prematurely enrolled.
[9]
In this application for leave to appeal, the plaintiff seeks to
suggest
that the order dated 28 August 2017, compelling discovery,
was not granted on that date but was in fact granted on 29 August
2017.
The plaintiff seeks to advance this case solely on the basis of
contentions set out in her notice of appeal and in heads of argument.
There is no evidence to this effect.
[10]
The circumstances in which the MEC raised the procedural and other
irregularities are fully
canvassed in the main judgment. They were
dealt with comprehensively in a supplementary affidavit. The
plaintiff did not, however,
seek to file any answer to the
allegations contained in that supplementary affidavit. The plaintiff
could have done so, and could
thereby have placed evidence before the
court upon which she might have relied. She cannot now seek to do so
by way of argument
alone.
[11]
In any event, the arguments now advanced do not address the findings
in relation to the
affidavit used in support of the order obtained on
28 August 2017, nor do they address the premature enrolment of the
application
heard on 12 September 2017.
[12]
The main judgment proceeds on the basis that the requirements of
Regulation 4 (1) of the
Regulations Governing the Administering of an
Oath or Affirmation are directory and that a court has a discretion
to accept an
affidavit on the basis of substantial compliance with
the Regulations.
[13]
On the face of it, the affidavit does not comply. It was suggested,
in argument, that all
that is lacking is the place of commissioning.
However, the date that is recorded reflects only the year 2014. The
declaration
itself is blank insofar as ‘the manner, place and
date’ of the deposition is concerned.
[14]
The argument now advanced, however, fails to deal with the essence of
this court’s
finding, which is that there is nothing on record
to show that the court which considered the application was called
upon to determine
whether the affidavit substantially complies with
the Regulations.
[15]
In these circumstances this court’s finding as to the existence
of substantive and
procedural irregularities is not reasonably
assailable.
[16]
This brings me to the plaintiff’s argument premised on the
principles enunciated
in the
Zuma
judgment. The
argument was that this court had erred in its statement of the law
relating to rescission of judgments and had failed
to recognise that
a court was vested with a discretion whether or not to rescind a
judgment where the requirements are established.
[17]
In developing the
argument reference was made to the following passage in the
judgment
[4]
:
“
[83]
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; it is not necessary for a
party
to show good cause for the rule to apply.” (footnotes
omitted)
[18]
This passage does not state that there exists no discretion. Nor does
it preclude the existence
of a discretion. It must be read in the
context in which it appears in the judgment. The quoted passage
occurs in a paragraph that
sets out, broadly, the terms of Rule 42
(1) (a). It does so with reference to well-established authority
cited in the footnotes.
There is nothing controversial about the
broad statement the paragraph contains. It must also be read within
the context of the
judgment as a whole.
[19]
In paragraph [91] of the judgment the following is stated:
“
[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.”
[20]
The passage is supported by a footnote which cites the
Zuma
judgment and quotes para [53] of that judgment which reads:
“
[53]
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 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.”
[21]
To suggest, in the light of this, that the court proceeded on the
basis of failing to recognise
the existence of a discretion or to
fail to follow the ‘
Zuma
principle’ is
simply wrong. It is also not correct to suggest that the court failed
to exercise a discretion. The quoted
passage plainly states that it
did.
[22]
In the circumstances the argument advanced by the plaintiff on this
aspect also fails to
establish a reasonable prospect that another
court will come to a different conclusion. The third aspect relied
upon under the
s 17 (1) (a) (i) grounds concerned the decision by the
court,
mero motu
, to rescind the order on the merits of the
claim dated 22 May 2018.
[23]
Mr
Katz
,
for the plaintiff, relied upon
Fischer
and Another v Ramahlele and Others
[5]
where the court said:
“
[13] Turning then
to the nature of civil litigation in our adversarial system, it is
for the parties, either in the pleadings or
affidavits which serve
the function of both pleadings and evidence, to set out and define
the nature of their dispute, and it is
for the court to adjudicate
upon those issues. That is so even where the dispute involves an
issue pertaining to the basic human
rights guaranteed by our
Constitution, for 'it is impermissible for a party to rely on a
constitutional complaint that was not
pleaded'. There are cases where
the parties may expand those issues by the way in which they conduct
the proceedings. There may
also be instances where the court may mero
motu raise a question of law that emerges fully from the evidence and
is necessary for
the decision of the case. That is subject to the
proviso that no prejudice will be caused to any party by its being
decided. Beyond
that it is for the parties to identify the dispute
and for the court to determine that dispute and that dispute alone.
[14] It is not for the
court to raise new issues not traversed in the pleadings or
affidavits, however interesting or important
they may seem to it, and
to insist that the parties deal with them. The parties may have their
own reasons for not raising those
issues. A court may sometimes
suggest a line of argument or an approach to a case that has not
previously occurred to the parties.
However, it is then for the
parties to determine whether they wish to adopt the new point. They
may choose not to do so because
of its implications for the further
conduct of the proceedings, such as an adjournment or the need to
amend pleadings or call additional
evidence. They may feel that their
case is sufficiently strong as it stands to require no
supplementation. They may simply wish
the issues already identified
to be determined because they are relevant to future matters and the
relationship between the parties.
That is for them to decide and not
the court. If they wish to stand by the issues they have formulated,
the court may not raise
new ones or compel them to deal with matters
other than those they have formulated in the pleadings or
affidavits.”
[24]
It was submitted that the order rescinding the order of 22 May 2018
was an instance of
the court impermissibly raising an issue which was
not on the pleadings and was not at issue between the parties.
[25]
I do not agree. First,
the circumstances in
Fischer
are wholly
distinguishable. In that matter the court of first instance had, at a
stage when oral evidence was to be led to determine
a dispute of
fact, raised several legal issues not addressed in the papers before
it and required the parties to address these.
It then decided the
matter on the issues it had raised and not on the basis of the
factual material pleaded by the parties.
[6]
[26]
In this case there was no
disregard of the factual basis upon which the parties prosecuted
their respective cases. In
Member
of the Executive Council, Department of Education, Eastern Cape v
Komani School & Office Suppliers CC t/a Komani Stationers
[7]
the
court emphasized, with reference to
Fischer
,
that:
“
[53] One of the
enduring tenets of judicial adjudication is that courts are enjoined
to decide only the issues placed before them
by the litigants. And
that it is not open to a court to change the factual issues presented
by the parties or introduce new issues.”
[27]
Secondly, the validity,
in law, of the preceding court order, namely the order striking out
the MEC’s defence was squarely
in issue. So too was the
consequent order determining the quantum of damages payable to the
plaintiff. As a matter of law orders
granted consequent upon the
order of 12 September 2017 are necessarily impugned by the contested
status of the order of 12 September
2017. As a matter of law
therefore, the status of the order of 22 May 2018 was a live issue on
the papers. This is the logical
consequence of the principles
enunciated in
Government
of the Republic of South Africa and Others v Von Abo
[8]
and in
Paddock
Motors (Pty) Ltd v Igesund
[9]
.
Neither
Fischer
nor
Komani
Stationers
has qualified or limited
the
Von
Abo
and
Paddock
principles.
[28]
Thirdly, the MEC’s decision, premised upon the evidence
available to her, not to
contest liability cannot infuse an order
which is wrong in law with lawfulness.
[29]
Mr Katz argued that the provision, in Rule 42 (1), which confers upon
a court the power
to
mero motu
rescind or vary an order must
be read with subsection (3). The latter subsection precludes a court
from rescinding or varying any
order unless satisfied that all
parties whose interests may be affected have notice of the order
proposed. This, he submitted,
required that notice of the proposed
setting aside of the order of 22 May 2018 be given to the plaintiff.
[30]
This is, in my view, not an instance where the court acts
mero
motu
outside of the context of an application brought in terms of
the Rule. The parties affected by the order were all properly before
the court and, as already indicated, the status of the order of 22
May 2018 was, by operation of law, squarely in issue in the
application. In the circumstances, the plaintiff’s reliance
upon
Fischer
does not establish a reasonable prospect
of success on appeal.
[31]
This brings me to the plaintiff’s reliance upon s 17 (1) (a)
(ii) of the
Superior Courts Act
. As indicated earlier this
encompasses a few aspects. There can be little doubt that the
plaintiff’s claim against the MEC
is a matter of considerable
importance to her. That, however, is not a basis to grant leave to
appeal. The plaintiff will, in any
event, be able to pursue her
claim. No matter of broad principle, which may guide similarly placed
litigants, arises in this matter.
Nor is the fact that the interests
of a minor child are at issue in the ultimate determination of the
claim decisive.
[32]
Mr Katz sought to suggest, premised upon the notice of application,
that the order referring
the further conduct of the trial action to
case management, would cause a delay. This, it was suggested, would
impinge upon the
best interests of the minor. The contention is
without substance. It is difficult to conceive of why case management
which is directed
to facilitate enrolment of an action, would cause
delays if the parties themselves approach the matter with due
diligence. In any
event, an appeal at this stage could hardly not
give rise to delay in finalising the case in the interests of the
minor child.
[33]
The broader argument for the existence of compelling circumstances
rested upon this court’s
failure to exercise a discretion in
relation to the rescission and the failure to grant an appropriate
remedy in terms of s 172
(1) (b) of the
Constitution
. The
argument proceeds from the premise that, in the first instance,
grounds exist to rescind the orders and, furthermore, that
a
constitutional remedy is appropriate. However, contrary to the
argument on behalf of the plaintiff, the court did exercise a
discretion. It expressly stated this to be so. It held that all of
the circumstances of the case do not warrant a refusal to set
aside
the impugned orders. Having come to this conclusion, the
consideration of a remedy under s 172 (1) (b) of the
Constitution
did not arise.
[34]
It was argued, on behalf of the MEC, that the discretion exercised in
relation to a rescission
of judgment is one in the true sense.
Accordingly, limited scope exists for a court of appeal to interfere.
Whether the discretion
is a narrow or wide one, need not be decided.
That is so because it cannot reasonably be concluded that this court
did not exercise
its discretion judicially or at all. In the
circumstances, even if the discretion is narrowly construed, which is
to be doubted,
there is in my view no reasonable prospect that a
court of appeal would, on this ground, interfere with the order made.
[35]
At the conclusion of the hearing the parties were given an
opportunity to file additional
written submissions to canvas issues
not fully addressed in oral argument. Both the plaintiff and the MEC
filed further submissions.
It is necessary to deal with only one
aspect. Ms
Goedhart
SC, for the MEC, raised the appealability
of an order rescinding a judgment. Since this aspect had not formed
the subject of debate
at the hearing, the plaintiff was given further
opportunity to deal with the issue.
[36]
It was submitted, on behalf of the MEC, that the effect of this
court’s order rescinding
the orders of 28 August 2017, 12
September 2017, 22 May 2018 and 11 February 2019, is to place the
parties in the position they
were in prior to the first order. That
means that the plaintiff’s claim against the MEC remains to be
determined. The setting
aside of the orders does not fully determine
any of her rights. This court’s order is therefore not
dispositive of any issue
in the main action.
[37]
Upon this basis, having
regard to the test for appealability set out in
Zweni
v Minister of Law and Orde
r
[10]
the order of this court is not appealable. Reference was also made to
Crockery
Gladstone Farm v Rainbow Farms (Pty) Ltd
.
[11]
In that matter a judgment by default was granted against
Rainbow
Farms
in
the Limpopo High Court at a stage when the parties were engaged in
settlement negotiations. The fact of these negotiations was
not drawn
to the attention of the trial judge. The trial judge refused a
postponement of the matter and granted judgment against
Rainbow
Farms
.
A subsequent rescission application was dismissed on the basis that
the trial court’s judgment was not a default judgment.
[38]
The matter went on appeal to the full court of the Division. It was
held that had the trial
court been aware of the settlement
negotiations it would not have granted the default judgment. It
accordingly set aside the order
refusing the rescission application.
In a subsequent appeal to the Supreme Court of Appeal, the court
reiterated the test set out
in
Zweni
and held:
“
[5] In this matter
the appellant’s claim remained intact. Nothing has been decided
about it. All that has happened, is that
the respondent has been
afforded an opportunity of answering it. The Full Court’s order
is interlocutory and does not cause
the appellants any irreparable
harm or preclude it from obtaining some relief in the future. It has
no direct effect on the final
issue relating to the purported
termination of the agreement and neither does it dispose of any
portion of the appellant’s
claim. It is accordingly not
appealable and the appeal must be dismissed on this ground alone.”
[39]
The plaintiff argued that the judgment in
Crockery
is
distinguishable on the facts. In the present matter the MEC’s
defence had been struck out and this was followed by an
order
imposing liability and a subsequent order determining the quantum of
damages payable, whereas in the
Crockery
matter this
was not the case.
[40]
I am unable to discern the distinction. The effect of the order
granted by the Full Court
in the
Crockery
matter was to
place the appellant in a position to prosecute its claim without
hindrance. Its rights were not determined. It is
this effect of the
order, which formed the basis upon which it was decided that the
order was not appealable. That is no different,
in my view, to the
position in this instance. The effect of this court’s order is
to place the plaintiff in a position to
prosecute her claim without
hindrance. Her rights have not been determined.
[41]
In the circumstances, I have significant doubts that the order of
this court is indeed
appealable. I accept that the recent
jurisprudence regarding the appealability of orders accords questions
of the interests of
justice a greater determinative role. For this
reason, I shall accept, despite my doubts, that the order is
appealable. I do so
because, as is apparent from the findings set out
above regarding the absence of a basis to grant leave in terms of s
17 (1) (a)
(ii) of the
Superior Courts Act
, there are in fact
no overriding considerations of the interests of justice which would
warrant the granting of leave to appeal.
The
application for leave to appeal by the SIU
[42]
The SIU seeks to appeal paragraph 2 of this court’s order. The
effect would be an
order consonant with paragraph 1 of this court’s
order together with an order granting the SIU leave to intervene in
the
action and to prosecute such defences as it may wish to advance.
[43]
The application for leave to appeal is pursued in terms of Rule 49
(1) (
b
). The grounds of appeal, upon which leave is sought,
comprises some 21 type written pages. The judgment comprises 31
pages. The
notice is divided into 53 paragraphs and subparagraphs.
The document concludes by stating that the SIU reserves its rights to
supplement
the grounds of appeal at the hearing of the matter.
Mercifully, it did not act upon such reservation.
[44]
Although it is possible, upon a reading of the application, to
discern some points which
may constitute grounds for seeking leave,
the document consists primarily of submissions in critique of this
court’s failure
to uphold the SIU application.
[45]
During argument Mr Nankan, who appeared for the SIU, was asked
to explain why the
application for leave to appeal should not, by
reason of established authority in this Division, be dismissed for
non-compliance
with Rule 49 (1) (
b
). He submitted that it
would not be in the interests of justice to do so. This submission
was premised on an acceptance that the
grounds of the application did
not meet the requirements of the Rule.
[46]
Rule 49 (1) (
b
) requires a party seeking leave to appeal to
file, within 15 days of the order sought to be appealed, its
application ‘setting
out the grounds therefor’.
[47]
In
Songono
v Minister of Law and Order
[12]
Leach J (as he then was), considered the impact of Rule 49 (1) (
b
).
The leaned judge considered the similarly worded Rule 49 (3) which
required that the notice of appeal should state whether the
whole or
part of the judgment is appealed against, specify the findings of
fact and/or ruling of law appealed against and the ground
of appeal.
He came to the conclusion that
[13]
:
“
It seems to me
that, by a parity of reasoning, the grounds of appeal required under
Rule 49(1)(b) must similarly be clearly and
succinctly set out in
clear and unambiguous terms so as to enable the Court and the
respondent to be fully and properly informed
of the case which the
applicant seeks to make out and which the respondent is to meet in
opposing the application for leave to
appeal. Just as Rule 49(3) is
peremptory in that regard, Rule 49(1)(b) must also be regarded as
being peremptory.”
[48]
This finding was endorsed
by a full bench of this Division in
Xayimpi
v Chairman Judge White Commission
(formerly
known as Browde Commission)
[14]
.
In that matter the applicant had, instead of a notice setting out the
grounds of appeal, filed a lengthy affidavit. The court
considered
that it was entitled to dismiss the application on that basis. It
nevertheless considered the merits of the application
and refused
leave.
[49]
The approach to the
requirements of Rule 49 (1) (
b
)
has subsequently been followed in several judgments in this Division
and other Divisions, in both civil and criminal cases.
[15]
[50]
In
Hing
and Others v Road Accident Fund
[16]
which relied upon
Songono
[17]
Binns-Ward J observed
[18]
that:
“
The application
for leave to appeal had listed 65 grounds on which the judge
a
quo
was
alleged to have 'erred and misdirected himself'. As the respondent's
counsel justifiably observed, a number of those grounds
were so
vaguely formulated as to be of little or no assistance in
meaningfully defining the bases of the intended appeals. In any
event
it should have been apparent to the appellants that the learned
acting judge could not possibly have intended his words to
be taken
literally
[19]
. The effect of
the notice of application for leave to appeal was to suggest that he
had misdirected himself at every turn in making
any findings adverse
to their claims. In the context of his detailed and fully reasoned
judgment, it could not reasonably have
been assumed by the appellants
or their legal representatives that by granting leave to appeal in
the terms he did, the judge meant
to be understood to be
acknowledging that such wide-ranging error and misdirection on his
part might reasonably be established
on appeal. On the contrary, the
manifestly indiscriminate formulation of the grounds on which the
application for leave to appeal
was brought brings to mind the
observation of a US Appeals Court judge that when he sees 'an
appellant's brief containing seven
to ten points or more, a
presumption arises that there is no merit to any of them'.”
[51]
Ms
Goedhart
drew attention to this ‘presumption’
in the context of the manifest shortcomings of the SIU’s
application for
leave to appeal.
[52]
It is necessary to touch on an amendment to Rule 49 which was
effected after the judgments
in
Songono
and
Xayimpi
referred to above. Rule 49 (3) was substituted by GN R472 of 12 July
2013. The sub-rule in its present form came into effect on
16 August
2013. Prior to its amendment and at the time when
Songono
and
Xayimpi
were decided the sub-rule read as follows:
“
(3) The notice of
appeal shall state whether the whole or part only of the judgment or
order is appealed against and if only part
of such judgment or order
is appealed against, it shall state which part and shall further
specify the finding or fact and/or ruling
of law appealed against and
the grounds upon which the appeal is found.
[53]
It is this sub-rule which was held to be peremptory and, by parity of
reasoning, that Rule
49 (1) (
b
) is peremptory. Sub-rule (4),
prior to the amendment, provided that:
“
A notice of
cross-appeal shall be delivered within ten days after delivery of the
notice of appeal or within such longer period
as may upon good cause
shown be permitted and the provisions of these Rules will regard to
appeals shall
mutatis
mutandis
apply
to cross-appeals.”
[54]
It will immediately be observed that sub-rule (3) in its present
substituted form is identical
in every respect to the erstwhile
sub-rule (4). The present sub-rule (4) reads:
“
Every notice of
appeal and cross-appeal shall state:
(a) what part
of the order is appealed against; and
(b) the
particular respect in which the variation of the judgment or order is
sought.”
[55]
The effect of the
amendment therefore was to deal with the subject matter of the
erstwhile sub-rule (3) in the new sub-rule (4).
The judgments in
Songono
and
Xayimpi
must accordingly be read
in this light. The basis upon which
Songono
held that the erstwhile
sub-rule (3) was peremptory is to be found in the following passage
of the judgment.
[20]
“
Accordingly,
insofar as Rule 49 (3) is concerned, it has been held that grounds of
appeal are bad if they are so widely expressed
that it leaves the
appellant free to canvass every finding of fact and every ruling of
the law made by the court a quo, or if they
specify the findings of
fact or rulings of law appealed against so vaguely as to be of no
value either to the Court or to the respondent,
or if they, in
general, fail to specify clearly and in unambiguous terms exactly
what case the respondent must be prepared to meet
- see, for example,
Harvey
v Brown
1964 (3) SA 381
(E)
at 383;
Kilian
v Geregsbode, Uitenhage
1980
(1) SA 808
(A)
at
815 and Erasmus
Superior
Court Practice
B1-356-357
and the various authorities there cited.”
[56]
This rationale applies, with equal force, to the proper
interpretation of sub-rule (4).
Accordingly, the subsequent amendment
of Rule 49 has not altered the law regarding compliance with its
provisions. The effect is
that where a party fails to comply with the
peremptory requirements of Rule 49 (1) (
b
) inasmuch as they do
not set out the grounds of appeal in clear, unambiguous and succinct
terms, the court hearing the application
may, on that basis, dismiss
the application.
[57]
I have already indicated that the grounds set out in the SIU
application are excessively
lengthy. That is, however, not the only
respect in which they do not meet the requirements. The ‘grounds’
consist,
in large measure, of argument and submissions which impugn
the court’s reasoning. No attempt is made to identify the
factual
findings which the SIU seeks to challenge on appeal nor the
findings of law. At points the ‘grounds’ are
incomprehensible.
[58]
One example will suffice to illustrate the point. The following
passage appears at page
6 of the notice:
“
e) It
was the MEC’s initial failure and election not to rescind the
judgment granted on the issue of liability
and its failure to raise
the public health care defence on the issue of quantum in its
application as a
bona
fide
defence
that had necessitated SIU’s application. The Honourable Court
had erred and ignored this fact in its judgment. Notwithstanding
the
plethora of evidence that has been put forth by the SIU in its
application,
the
MEC did not at any stage indicate that it would be raising the public
health care defence on the issue of quantum in the SIU’s
application or even its own application
.
Hence, the finding that the MEC may raise the public health care
defence in the trial action as referred to at paragraph 103 of
the
judgment, is speculative. Accordingly, the above Honourable Court had
erred in finding that the MEC may raise the public healthcare
defence
and hence, the intervention of the SIU was not necessary at this
stage;
f)
Paragraph 30 of the judgment of the Honourable Court sets out that
the MEC’s defence to the trial
action on the issue of quantum,
wherein the MEC alleges that the amounts of quantum consist of
duplications, inaccuracies and incongruities, so much so that
the default judgment ought to have been refused.
In addition,
the MEC contended in the MEC’s application that the
startling
amounts awarded for future medical expenses is not justifiable with
due regard to previous comparative awards
and in these
circumstances, Mr. Bastile on behalf of the MEC, had raised this as
the only
bona fide
defence to the issue of quantum warranting
the MEC application to rescind the order striking out its defence and
the order granted
on quantum. Hence, no evidence was placed before
the Court by the MEC via Mr. Chronis either in the MEC’s
application or
in the SIU’s application, confirming that the
public health care defence would be raised in the trial action on the
issue
of quantum by the MEC, even after the SIU instituted its
application declaring its desire to raise the public health care
defence,
as a
bona fide
defence in the trial action on the
issue of quantum. Consequently, the above Honourable Court
erred in utilising this as
a basis to deny the Applicant the right to
intervene as a party in the trial action in terms of Rule 12 of the
Rules, in order
to pursue the public health care defence on the issue
of quantum, as found at paragraphs 103 and 112 of its judgment;
g)
Resultantly, there is no evidence put up by the MEC even after the
MEC was in receipt of the SIU’s comprehensive
application
papers setting out and/or alleging that the judgment on liability
would also be rescinded as there is a
bona fide
defence and
further that the public health care defence would be raised,
indicating that it would raise such defences. Accordingly,
the
finding by the above Honourable Court at paragraph 112 of its
judgment that the SIU has not met the requisite threshold for
joinder
and intervention constitutes a material misdirection as it is clear
from the affidavits exchanged between the parties that
the MEC is
not
intent on disputing the issue of liability and raising the public
health care defence. Resultantly and in the circumstances, the
failure by the MEC to raise the aforesaid two (2) defences, would
constitute maladministration, improper and irregular conduct
which as
defined by section 2 (2) of the SIU Act, which as read with the
relevant Proclamations and section 4 (1) (c) (i) and (iii)
as well as
section 5 (5) of the SIU Act, would clothe the SIU with the necessary
locus standi
to intervene in the trial action and raise the
aforesaid defences. Accordingly, the above Honourable Court had erred
in failing
to find that the SIU has the necessary
locus standi
to intervene in the trial action as referred to at paragraphs 104,
105 and 106, of its judgment in the SIU’s application.”
[59]
Paragraph 103 of the judgment contains no finding regarding the MEC
raising a ‘public
health-care defence’. That paragraph of
the judgment describes the
effect
of the rescission of the
order. It says so in so many words, and allows that such defences, if
any, that the MEC may wish to raise
she will be free to raise. It
equally states that inasmuch as the MEC chooses not to raise a
defence on
liability
she will be free to do so.
[60]
The assertion by the SIU that the court erred in failing to find that
the SIU does not
have the
locus standi
to intervene is,
it should be said, an assertion so vague as to be entirely unhelpful.
Not only is it not stated in what respect
or upon what basis the
Court erred, the assertion itself is simply wrong.
[61]
What paragraph 104 of the judgment records is that several judgments
in the Division have
already pronounced upon the SIU’s lack of
locus standi
in circumstances such as the present. It is then
stated that no pronouncement need be made on the correctness or
otherwise of those
judgments since the determination of the SIU’s
application is made upon another basis. Nowhere in its application
for leave
to appeal does the SIU come to grips with the true basis
upon which its application was dismissed.
[62]
It is not for a court to trawl through a notice of appeal to discern
possible grounds of
appeal. In this instance, this is what Mr
Nankan’s plaintive appeal to the interests of justice required.
The Rule exists
not for the purpose of frustrating a would-be
appellant. It exists to ensure that the appellate process is purpose
directed –
to identify errors or misdirections where they occur
and to marshal the judicial resources of a higher court to correct
them. In
the first instance, this requires careful and considered
analysis by the party seeking to determine whether the judgment or
order
is tainted by any errors or misdirections. Secondly, once those
errors or misdirections have been identified and succinctly stated
in
the notice, the Rule serves to afford the respondent an opportunity
to consider whether to abandon or defend the judgment.
[63]
None of these purposes are achieved in the event that an applicant
fails to comply with
its obligations. No reason has been offered to
explain why this was not done. A general appeal to the interests of
justice does
not avail the SIU. To grant leave to appeal means that
the court is satisfied that there is a reasonable prospect that a
court
of appeal would come to a different conclusion. Having
considered the grounds such as they are, none exists. Nor is there
any discernible
compelling reason to grant the SIU such leave.
[64]
As indicated earlier a court is entitled, on the basis of
non-compliance with Rule 49 (1)
(
b
) to dismiss the
application. It need not consider the ‘merits’ of the
application such as may be discernible. In this
instance, I have
indeed considered the merits. The application falls to be dismissed
on both accounts.
[65]
In the main application, the MEC adopted the stance that the costs of
the application to
rescind should be costs in the cause. Insofar as
the SIU application was concerned, the MEC abided. The SIU was
ordered to pay
the plaintiff’s costs of opposition. The
applications for leave stand upon a different footing. The MEC
successfully opposed
the plaintiff’s application. Similarly,
both the plaintiff and the MEC successfully opposed the SIU
application. There is
no reason why the costs in in these
applications should not follow the result.
Order
[66]
In the result, I make the following orders:
1.
The plaintiff’s application for leave to appeal against the
judgment of this court given under case number 2017/2015 on 22
March
2022 is dismissed with costs.
2.
The application by the Special Investigating Unit for leave to
appeal against paragraph 2 of this court’s order under case
number 2017/2015 on 22 March 2022 is dismissed with costs, such costs
to include the costs of two counsel where employed.
G
G GOOSEN
JUDGE
OF THE HIGH COURT
MBENENGE
JP,
I
agree.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
NORMAN
J,
I
agree.
T
V NORMAN
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the MEC
: G
-M Goedhart SC
Instructed
by:
Norton Rose Fulbright SA
Sandton
C/o
Smith Tabata Attorneys
Mthatha
Counsel
for the Applicant
:
A Katz SC
(with him,
A Mdeyide
)
Instructed
by: Sakhela
Inc.
Mthatha
Counsel
for the SIU
:
S
Nankan
(with
him,
S
Zimema
)
Instructed
by:
Bhisho State Attorney
East
London
C/o W T Mnqandi &
Associates
Mthatha
Counsel
for the Respondent
:
A G Dugmore SC
(with
him,
L Sambudla
)
Instructed
by: Sakhela
Inc.
Mthatha
Heard
: 23 May 2022
Delivered
:14 June 2022
[1]
Act
10 of 2013
[2]
2021
(II) BCLR 1263 (CC).
[3]
Act
No. 108 of 1996.
[4]
Main
judgment, para [83].
[5]
2014
(4) SA 614
(SCA) at para [13]- [14].
[6]
Fisher
(
supra
)
at
para [15].
[7]
[2022] ZASCA 13
(26 January 2022) at para [53].
[8]
[2011]
ZASCA 65
;
2011 (5) SA 262
(SCA) at para
[18]
.
[9]
1976
(3) SA 16
(A) at 23F.
[10]
1993
(1) SA 523 (A).
[11]
(529/18)
[2019] ZASCA 61
(20 May 2019) at paras 4 and 5.
[12]
1996
(4) SA 384 (E).
[13]
Songono
(supra)
at 385I-J
[14]
[2006]
2 All SA 442
(E) at 446g.
[15]
S
v Van Heerden
2010
(1) SACR 599
(ECP) at para 4;
S
v McLaggan
2013
(1) SACR 267
(E) at para 6-7;
S
v McKenzie
2003
(2) SACR 620
(C) at 621e.
[16]
2014
(3) SA 350 (WCC).
[17]
Hing
(
supra
)
at fn 3.
[18]
Hing
(
supra
)
at para 4 (353F-H).
[19]
This
is a reference to the judge
a
quo
having
granted leave ‘on the grounds set out in their notice of
appeal’. See
Hing
supra
at
para 2.
[20]
Songono
supra
at
385G.