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[2021] ZALMPPHC 23
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Van Rooyen N.O and Another v Mokwena and Others (2064/2021) [2021] ZALMPPHC 23 (18 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
HEARD IN GAUTENG LOCAL
DIVISION, JOHANNESBURG
REPORTABLE:
YES /
NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
CASE NO:
2064/2021
In
the matter between:
ADRIAAN
WILLEM VAN ROOYEN NO
First
Applicant
MMABATHO
SHIRLEY MOTIMELE NO
Second
Applicant
and
MORAPEDI
ROY MOKWENA
First
Respondent
TUMI
MOKWENA INCORPORATED
Second
Respondent
(
Reg
No.: 2005/008085/21
)
JUDGE
EBERHARD BERTELSMANN
Third
Respondent
(
In
his capacity as the commissioner in
terms
of Section 417 and 418 of the
Companies
Act
)
STHEMBISO
BETHUEL BOSCH NO
Fourth
Respondent
XOLILE
JOHN BOSCH NO
Fifth
Respondent
MASTER
O FTHE HIGH COURT, POLOKWANE
Sixth
Respondent
LEGAL
PRACTICE COUNCIL
Seventh
Respondent
JUDGMENT
MAKUME
J
:
INTRODUCTION
[1]
This matter comes before me as a result of an order granted by my
brother Phathudi
J on the 1
st
April 2021.
[2]
The Applicants seeks an order on an urgent basis setting aside that
order on the basis
of its unconstitutionality and a contravention of
the
Audi Alteram Parterm
Rule Applicants rely in this regard
on the SCA decision in
Knoop vs Gupta Case No 115/202 dated the
19
th
November 2020.
FACTUAL
BACKGROUND
[3]
There is a long history of litigation between the first and second
Respondents on
the one hand and Majola Trust represented in these
proceedings by the fourth and fifth Respondents. In order to
contextualise
the dispute in this matter it is necessary to provide a
short chronology of salient events leading up to the present
proceedings
and what follows is a summary of relevant facts that are
either common cause or are not seriously disputed on the papers.
[4]
During 2019 Majola Trust obtained judgment for payment of an amount
of R1.5 million
against the first Respondent on the basis of a
suretyship that he had executed in favour of that Trust for the
second Respondent’s
indebtedness to the Trust.
[5]
The first Respondent is the sole Director and shareholder of the
second Respondent
which practices as an Incorporated Law Firm.
[6]
On the 19
th
December 2019 before Kgomo J the second
Respondent was placed under Liquidation. What followed
thereafter between December
2019 and December 2020 is a series of
applications interdicting execution of the liquidation order as well
as applications for
rescission of that order.
[7]
The issues were finally settled on the 18
th
December 2020
when Acting Judge Naude dismissed the application for rescission,
discharged the suspension order granted by Phathudi
J on the 6
th
February 2020 and dismissed the application for leave to appeal the
judgment by Kgomo J.
[8]
The judgment by Naude AJ was brought to the attention of the
Respondents during January
2021 or the latest on the 9
th
March 2021. There is evidence however that the first Respondent
knew as far back as December 2020 that his various applications
to
halt execution had been dismissed.
[9]
The Respondents noted an application for leave to appeal the judgment
by Naude AJ.
That application was heard on the 26
th
March 2021 and was dismissed. The Respondents knew about the
date of hearing of that application and chose not to attend
court
even though the Applicants had indicated to them that they will not
grant a postponement. The first Respondent who
is himself a
practicing attorney did not attend court and no reason was furnished.
[10]
On the 30
th
March 2021 at about 09h00am the first and
second Respondents as Applicants filed an urgent application setting
it down for hearing
the following day the 31
st
March 2021
at 10h00am.
[11]
In the application besides seeking audience on an extremely urgent
basis they also sought an
order suspending the operation of the
Liquidation proceedings as well as the sitting of the Insolvency
Enquiry which was set down
to proceed on the 31 March 2021 before the
third Respondent (retired Judge Bertelsman).
[12]
The first and second Applicants supported the fourth and fifth
Respondents filed papers opposing
the granting of the main
application by the first and second Respondents. The third
Respondent filed a notice to abide but
proceeded to hold the Section
417 Insolvency Enquiry on the 31
st
March 2021.
[13]
The application referred to in [12] above is in the papers titled as
“The main Application.”
It is that application that
served before Phathudi J on the 31
st
March 2021 and the
1
st
April 2021. I shall henceforth refer to it in
that title to distinguish it from the present. I shall refer to
the parties
as they are in the current application before me.
[14]
In the hearing of the main application that commenced on the 31
st
March 2021 Applicants as well as the first, second Respondents filed
heads and were all represented by counsel. As indicated
the
third Respondent filed a notice to abide. The fourth and fifth
Respondents did not file any heads whilst the sixth, seventh
and
eighth Respondents did not enter appearance to oppose.
[15]
At the commencement of the hearing on the morning of the 31
st
March 2021 the learned Judge indicated that he had not had sufficient
time to read the voluminous papers placed before him and
stood the
matter down for argument at 14h00 that day. On adjournment he
remarked as follows: “Because the issue is
about urgency isn’t
it” to this counsel for the first and second Respondents
agreed.
[16]
It was during submissions by Advocate Lourens for the first and
second Applicants when the court
said the following:
“
Yes, you know
essentially Mr Lourens I would have loved to hear whether this
application is urgent or not without really getting
into the merits”
[17]
From the record it is evident that Counsel for the first and second
Respondents had said nothing
in their oral submissions about
urgency. Counsel for the fourth and fifth Respondents also made
submissions attacking urgency
only and did not deal with the merits
of the application. The court in fact agreed with counsel when
it indicated that urgency
is indeed “the crux of the matter”
and confirmed that the court will first have to decide on the issue
of urgency before
going into the merits of the application.
[18]
Finally after Counsel for the first and second Respondents had made
his submissions in reply
the court said the following:
“
Well I must
immediately concede that this is a very complex matter involving a
lot of commercial and tactical issues, but that said
the focus of the
day was to consider whether this application has been properly based
on an urgent basis. I think that is
the point of departure.
I will be burning the midnight oil trying to produce something which
will be in the form of ex tempore
judgment on the issue of urgency
alone.”
[19]
The court then adjourned the hearing to the following day being the
1
st
April 2021 and informed all counsel that it is not
necessary for them to appear they could send their local
correspondent attorneys
to come and note judgment.
[20]
On the 1
st
April 2021 judgment was handed down in which
the learned judge not only ruled that the matter was urgent but also
proceeded to
grant all the orders prayed for by the Applicants in the
notice of motion. He granted them relief without having heard
any
of the parties on the merits of the main application.
[21]
In his judgment Phathudi J says the following at page 3–130 on
paginated page 132 at paragraph
20:
“
The only issue I
am called upon to determine is whether the present interim interdict
is urgent or not. The history of the
ongoing in pave between
parties is for now immaterial for purposes of determining the urgency
of the application.”
[22]
The learned Judge went on to refer to previous judgments dealing with
the aspect of urgency like
the well-known Luna Meubels case as well
as that of Salt and Smith and East Rock Trading. At page 137
Phathudi J added that:
“
I have invited
counsel to curtail their argument purely on urgency and not delve
into the merits
per se
”
[23]
Phathudi J concluded by saying the following: “In the
circumstances and for the reasons
set out herein I am fortified that
in my view that the application is sufficiently urgent and this court
should in its discretion
come to the applicant’s rescue.
I therefore pronounce an order as is crafted in a draft order.
[24]
The learned Judge then proceeded to read out that order as proposed
by the Applicants which order
granted them all the prayers on the
merits. This was a grave mistake and should never have been
pronounced. It is what
led to the present urgent application.
[25]
It is clear that the learned Judge unfortunately misdirected himself
as to what he was called
upon to do. This became even more
clearer when he was asked to explain his order by the Judicial
Services Commission during
the recent interviews for vacant
position. He failed even at that level to give an explanation
of how he could have made
that order without affording the Applicants
and other interested parties a hearing.
[26]
In the heads of argument filed in respect of the main application the
Applicants as well as the
fourth and fifth Respondents raised various
points in
limine
for instance that the application does not
comply with the requirements of Section 354 of the 1973 Companies
Act. It was
also contended that the envisaged appeal against
the winding up order has in any case lapsed. All these issues
raised were
never dealt with in the judgment by Phathudi J.
URGENCY
[27]
I am satisfied that the current application seeking to reverse the
order by Phathudi J dated
the 1
st
April 2021 is urgent.
I have no problem in the ruling by Phathudi J that the main
application was urgent he exercised his
judicial discretion as he saw
fit. I will accordingly deal with both the main and the current
applications on that basis
when I determine the various points in
limine
and the substantive defence raised in the main and
current applications.
[28]
Counsel for the first and second Respondents contend that this court
is not empowered to sit
as an appeal against the decision of Phathudi
J who also sat as a single judge and that it is only a full bench of
this Division
that is empowered to interfere with the judgment or
order by Phathudi J. That argument is unsustainable.
[29]
A ruling or order that a matter was urgent is not appealable.
It is common knowledge that
the first paragraph of relief sought in
the first and second Respondents’ notice of motion is for the
enrolment of the application
as an urgent application and for the
dispensing of the forms and services provided for in the rules of
court to the extent necessary.
[30]
The court in
Lubambo v Presbyterian Church of Africa
1994 (3) SA
241
at page 243 A
said the following:
“
An order that a
matter should proceed in terms of Rule 6(12) is in my view clearly
not final nor definitive of the rights of the
parties nor has it the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.
An order that an application
should be heard in terms of Rule 6(12) is analogous to an order
giving direction in regard to evidence
or referring a matter to
trial.”
[31]
Phathudi J should have simply given a ruling on the first prayer and
stopped there and then directed
that the matter be referred to either
a special motion court hearing on the merits. He overstepped
his authority and made
a ruling on what he had himself said he was
not going to entertain on the 31
st
March 2021.
[32]
The ruling on the 1
st
prayer is not appealable accordingly
that issue raised by the first and second Respondents falls to be
dismissed.
CONDUCT
OF THE FIRST RESPONDENT
[33]
A lot has been said about how the first and second Respondents have
been prejudiced in the conduct
of this matter in that they were not
given a copy of the judgment by Naude AJ timeously and secondly that
they were not allowed
an opportunity to amend their application for
leave to appeal the judgment by Naude AJ and lastly that the
application for leave
to appeal was heard and decided in their
absence.
[34]
The first Respondent is a practicing attorney in the Limpopo
Province. It is common knowledge
that according to him he heard
through the media during December 2020 that the application that he
had brought to rescind the judgment
by Kgomo J as well as the other
applications had been dismissed. He is the
dominis litis
and
should have taken steps to get a copy of the written judgment from
the judge through the offices of the Register or even approach
the
Judge President if there was a delay to furnish him with a copy.
He did not do that when in fact judgment was about him
and the second
Respondent. He did not act like a person who has an interest in
the outcome of what he had started.
[35]
When the first and second Respondents were informed about the date of
hearing of the application
for leave to appeal they knew that their
counsel will not be available and also that they needed time to amend
their notice of
appeal. The date had been set by the Presiding
Judge as is the practice in these divisions. The first
Applicant should
have appeared in person before court and move for a
postponement. He did not do that once again showing no interest
in the
outcome. The Respondents cannot now come before this
court and cry foul. They are responsible for the outcome and
have
no one to blame.
IS
THE ORDER OF JDUGMENT BY PHATHUDI J INVALID ON THE BASIS OF A BREACH
OF SECTION 34 OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA ACT
108 OF 1996
[36]
Section 2 read with Section 8 of the Constitution are the starting
point in this regard.
Section 2 reads as follows:
“
This Constitution
is the Supreme Law of the Republic, law and conduct inconsistent with
it is invalid and obligations imposed by
it must be fulfilled.”
Section 8
“
The Bill of Rights
applies to all law and binds the legislature the executive the
judiciary and all organs of state.”
[37]
Section 34 of het Constitution guarantees a fair public hearing
before a court or where appropriate
another independent and impartial
tribunal or forum. The court sitting in adjudication of
the Main application on the
31
st
March 2021 was such a
court falling within the ambit of Section 34 and its conduct falls to
be scrutinised in accordance with the
prescripts of Section 2 and 8
of the Constitution.
[38]
In
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) at paragraph 131
the principle enshrined in Section 34 was expressed as follows:
“
The time honoured
principles that no one shall be the judge in his or her own matter
and that the other side should be heard [
Audi alteram partem
]
aim towards eliminating the proscribed arbitrariness in a way that
gives content to the rule of law. They reach deep down
into the
adjudicating process, attempting to remove bias and ignorance from
it. Everyone has the right to state his or her own
case, not because
his or her version is right and must be accepted but because in
evaluating cogency of any argument, the arbiter
still a fallible
human being must be informed about the points of view of both parties
in order to stand any real chance of coming
up with an objectively
justifiable conclusion that is anything more than a chance.
Absent these central and core notions,
any procedure that touches in
an enduring and far-reaching manner on a vital human interest points
in the direction of a violation.”
[39]
The court
in De Beer NO vs North Central Local Council and Another
[2001] ZACC 9
;
2002 (1) SA 429
(CC)
took the issue further in the following
words at page 439 paragraph 11:
“
This S34 fair
hearing right affirms the rule of law which is a founding value of
our Constitution. The right to a fair hearing
before a court
lies at the heart of the rule of law. A fair hearing before a
court as a pre-requisite to an order being made
against one is
fundamental to a just and credible legal order.”
[40]
None of the parties before Phathudi J were called upon to address the
court on the merits, they
were all directed to deal with the issue of
urgency and urgency only. This much is borne out by the record
itself.
Counsel for the first and second Respondents maintains
that all the parties did address the court on the merits that may
well be
so for it often happens that some aspects of the merits are
closely connected with the issue of urgency.
[41]
What is strange is that in his judgment Phathudi J made reference to
Section 34 of the Constitution
and yet proceeded to deliver an order
which violated the Constitutional rights of the Applicants and the
fourth and fifth Respondents
including the third Respondent who was
not even before court.
[42]
Counsel for the first and second Respondents argue that Phathudi J’s
judgment cannot be
annulled on the basis of the provisions of Section
172 of the Constitution because what we are dealing with in this
instance is
not “a Constitutional matter nor does it concern
any law.” That argument is equally unsustainable when I
requested
counsel to address me on the issue whether the ruling by
Phathudi J should not be described as “conduct” in terms
of
Section 172 (1) (a) of the Constitution I did not get a clear
answer. For completion sake Section 172 (1) (a) of the
Constitution
reads as follows:
“
When deciding a
Constitutional matter within its power a court
a)
Must declare that any law or conduct that is inconsistent with the
constitution is invalid to the extent of
its inconsistency.”
[43]
The conduct by Phathudi J in directing the parties to deal with
urgency only and then give judgment
on the merits is conduct that
falls fould of the entrenched Constitutional right of a fair
hearing. Not only did the court
give an order that it was not
asked to do there is nowhere in the record where the judge has dealt
with issues on the merits.
It is that conduct that must be
declared invalid.
[44]
Applicants as well as the fourth and fifth Respondents referred me to
the matter of
Kurt Robert Knoop NO and Johan Louis Klopper NO vs
Chetali Gupta and Another Case Number 115/2020
. This case
was heard by the Supreme Court of Appeal on the 6
th
Novembe 2020 and judgment handed down on the 19
th
November
2020.
[45]
In that matter two aspects were dealt with firstly at paragraph 33
the court says the following:
“
It follows that
the full courts suspension order purporting to override the
suspension of its execution order was invalid.
It had no power
or authority to make that order. It is inexplicable that it
made the order without being asked to do and
without having heard
argument. The order was void.”
[46]
Similarly in this matter Phathudi J never heard argument on the
merits and he himself prevented
the parties from dealing with the
merits. His order in respect of the rest of the prayers except
the prayer in respect of
urgency are void and fall to be declared
invalid and of no force and effect.
[47]
The second aspect that the Supreme Court of Appeal dealt with in that
matter was by reference
to the case of
Master of the High Court
Northern Gauteng High Court, Pretoria v Motala NO and Others [2011]
ZA
. In that matter the trial court in making an order for
judicial management of a company had named two individuals to assume
the duties of Judicial Managers. This was contrary to the
provisions of Section 429 of the Company’s Act 61 of 1973
which
vests the power to appoint judicial managers on the Master of the
High Court. The Master of the High Court in turn
chose not to
abide by that court order as a result the high court held the master
to be in contempt. The SCA in an appeal
to it set aside the
high court’s order appointing certain persons as judicial
manager on the grounds that, that order was
void from inception
because it directly contradicted the statute.
[48]
The orders by Phathudi J are in contravention of not only the
Audi
alteram partem
rule but in conflict with Section 34 of the
Constitution.
[49]
In my view the conclusion I have arrived at namely that the order by
Phathudi J is invalid is
dispositive of all the other issues. The
issue in respect of the third Respondent was well taken the third
Respondent should never
have been joined in the application this
explains why the first and second Respondents abandoned the costs
orders granted against
the third Respondent in the main
application.
COSTS
[50]
It is trite law that the award of costs is a matter wholly within the
discretion of the court.
The Applicants (Liquidators) as well
as the fourth and fifth Respondents are entitled to costs in this
matter. What is left
is whether such costs should be on a party
and party or on a punitive scale and if so which of the first and
second Respondents
should be mulcted with such costs.
[51]
The main application was launched at the instance of the first
Applicant who wanted to avoid
appearing in the Insolvency Enquiry
hearing set down for the 31
st
March 2021.
[52]
The main application was nothing else but a continuation of the
Stalingrad type of tactics that
the first Applicant embarked on since
the judgment of Kgomo J.
[53]
There was no appeal before the Supreme Court of Appeal when the first
and second Respondents
decided to approach court on an urgent basis.
[54]
In my view it is only fair that the first Respondent must pay costs
of his application.
[55]
In the result the order marked “X” attached herein is
made an order court.
DATED at JOHANNESBURG
this the 18
th
day of MAY 2021.
M A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES:
DATE
OF HEARING
11
MAY 2021
DATE
OF JUDGMENT
18
MAY 2021
FOR
APPLICANTS
Adv
Lourens
INSTRUCTING
ATTORNEYS
Messrs
Roestoff Attorneys
Pretoria
FOR
1
st
& 2
nd
RESPONDENTS
Adv
L Sigogo SC
with
Adv L Khalipha
INSTRUCTING
ATTORNEYS
Letsela
Nkondo Attorneys
Polokwane
FOR
4
th
& 5
th
RESPONDENTS
Adv
M Jacobs
INSTRUCTING
ATTORNEYS
Messers
Becker Attorneys
Polokwane