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2021
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[2021] ZALMPPHC 56
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Madavanhu and Others v 1st Insurance Brokers (Pty) Ltd and Another (7134/2017) [2021] ZALMPPHC 56 (2 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7134/2017
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE:
02 JULY 2021
ADJP
SEMENYA
In
the matter between:
GAYLORD
TAPIWA MADAVANHU:
1
ST
APPLICANT
ABIGAIL
PHELADI MOKABA:
2
ND
APPLICANT
THOKOZILE
PINKIE MOHLARI:
3
RD
APPLICANT
ORACLE
FINANCIAL SERVICES (PTY) LTD:
4
TH
APPLICANT
And
1
ST
INSURANCE BROKERS (PTY) LTD:
1
ST
RESPONDENT
KERSTEL
FINANCIAL SERVICES (PTY) LTD:
2
ND
RESPONDENT
JUDGMENT
SEMENYA
ADJP:
[1]
The applicants, who were the respondents in the main application,
have applied to this court for the reconsideration of the
orders
granted in the main application by M G Phatudi J on the
31 October
2017
. The respondents in this application were the applicants in
the main application. The main application was launched in two parts.
Part A was heard as a matter of urgency and the order was granted in
the interim pending the hearing of Part B. There is a dispute
between
the parties with regard to the issue whether the application was
heard
ex parte
or with notice. I shall deal with this issue
later in this judgment.
[2]
Paragraphs 2 and 3 of the Part A order are relevant to the
determination of the issues in this application. These paragraphs
are
worded as follows:
“
2.
Pending an application for final relief in the ordinary course (Part
B), alternatively the determination (by arbitration or otherwise)
of
any material substantive disputes between the parties, the
respondents are interdicted and restrained from:
…
,
and
3. The respondents are
directed to pay the costs of the application jointly and severally on
the scale as between attorney and own
client.”
[3]
The final relief that was sought in Part B reads as follows:
“
Interdicting
and restraining the respondents for a period of 24 (twenty-four
months from date of the interim order in part A hereof
either alone
or jointly whether as proprietor, partner, director, shareholder,
employee, member, consultant, contractor, financier,
agent,
representative, assistant or otherwise and whether for reward or not
directly or indirectly…”
[4]
Rule 6(12) (c) permits any person against whom an order was granted
in his/her absence in an urgent application to set down
the matter by
notice for reconsideration
of
the order.
Farber
AJ in
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and Others
[1]
as
follows:
“
The
Rule has been widely formulated. It permits an aggrieved person
against whom an order was granted in an urgent application to
have
that order reconsidered, provided only that it was granted in his
absence. The underlying pivot to which the exercise of the
power is
coupled is the absence of the aggrieved party at the time of the
grant of the order. Given this, the dominant purpose
of the rule
seems relatively plain. It affords to an aggrieved party a mechanism
designed to redress imbalances in, and injustices
and oppression
flowing from, an order granted as a matter of urgency in his absence.
In circumstances of urgency where an affected
party is not present,
factors which might conceivably impact on the content and
form of an order
may not be known to either the applicant for urgent relief or the
Judge required to determine it. The order in
question may be either
interim or final in its operation. Reconsideration may involve a
deletion of the order, either in whole
or in part, or the engraftment
of additions thereto.”
[
5]
The respondents contended that the order was not granted in the
absence of the applicants in as they were in court on the date
of the
hearing of the urgent application. It was submitted that Rule 6 (12)
(c) is not applicable in that the absence of the party
is a
determining factor in this sub-Rule. The applicants conceded during
argument that they were indeed in Court but seated in
the gallery and
did not take part in the proceedings. It is further not denied that
the applicants had not yet filed their answering
affidavits at that
stage. The issue whether a party can be regarded as being
present and properly before court where opposing
papers have not been
filed has been decided with as follows
in
Rainbow
Farms (Pty) Ltd v Crockery Gladstone Farm
(HCA15/2017)
[2017] ZALMPPHC 35
(
7
November 2017
)
:
“
[2]
The question to be decided is twofold, namely:
2.1. Whether
the Appellant was in default despite the attendance of its Counsel in
Court when judgment was granted; and
2.2.
Whether the Appellant whose application for rescission of judgment
was dismissed by single Judge of this Division had made
out a case
for the relief sought.
[3]
The judgment sought to be rescinded was granted on 2 August 2016 when
M G Phatudi J refused an adjournment sought by the
Appellant’s
Counsel and granted judgment in the absence of any answering
affidavits by the Appellant and on the Respondent’s
version
alone.
[4]
. . .
[10]
The Court a quo decided that the judgment was not a judgment taken on
default of appearance by the Appellant. It did so
on the basis
that the Appellant’s Counsel was present in Court when the
Order was made. The Court a quo erred in this regard.
This matter was
an application and the presence or absence of a party can only be
determined by whether that party has submitted
affidavits or not. The
presence of the actual party and / or Counsel in Court is irrelevant
to that issue. In the absence of any
affidavits (bearing in mind that
there is no option available for the party to testify at such a
hearing) it is logical to
conclude that that party is in default
of appearance when the Order was made notwithstanding that Counsel
may have been in Court.
[11]
In my view where opposing papers have not been filed there is a
“default” even if the Respondent in the matter
or his
legal representative is present in Court. See:
Morris
v
Autoquip (Pty) Ltd
1985
(4) SA 398
(WLD
);
First
National Bank of SA Ltd v Myburgh and Another
2002
(4) SA 176
(CPD).
[12]
The question of what is meant by “default” was considered
in
Katritsis
v De
Macedo
1966
(1) SA 613
(A).
In
this matter the Appellate Division (as it then was) held that
“default” which then as is the case now is not defined
in
the Rules or the Act, meant a default in relation to filing the
necessary documents required by the Rules in opposition to the
claim.
In casu the judgment was granted in the absence of an opposing
affidavit by the Appellant and was therefore a “default
judgment” even if it was not a default in the sense of the
absence of the party.
[13]
. . .
”
I
am in agreement with the applicants’ contention that it cannot
be said that the order was granted in their presence simply
because
they were physically present in court. It is in any event not in
dispute that the Court did not hear their version for
did not get the
opportunity to present their case. The Rule 6(12) (c) finds
application in this matter
.
[6]
It appears from the papers that the crux of the application for
reconsideration is based on the fact that the order of the
31
October 2017
has lapsed. The applicants argued that a proper
reading of both Parts A and B of the application clearly shows that
the intended
lifespan of 24 months. Their interpretation of the order
was made known to the respondents through a letter addressed to their
attorney, by the applicants’ attorney dated the
11 November
2019
. On paragraph 2.1-2.2 of the attorney for the
respondents’ response it is stated that:
“
2.1The
twenty-four (24) months period claimed for by our client in the
Notice of Motion has now, as you have correctly point out,
lapsed.
2.2
Our client however does not agree that the Interdict was granted for
the twenty- four months’ period was not valid and
enforceable
during that period...”
[7]
It is common cause that Part B was never heard to this day. The fact
of the matter is, had it been timeously heard, and the
interim order
confirmed, it would have already lapsed by now. The intention of the
respondents as stated in Part B of the Notice
of Motion is that the
effectiveness of the interdict was limited to a period of 24 months
only. I therefore agree with the applicants
that the interdict can no
longer be of force and effect. My understanding of the respondents’
letter referred to in paragraph
[6] above that they agree with this
view.
[8]
The main dispute between the parties relates to the question whether
the respondents are entitled to tax the costs of the interim
order
(Part A) despite their failure to proceed to Part B within 24 months.
It is stated in Paragraph 2 of Part A of the Notice
of Motion in the
main application that the relief in Part A is sought “pending
an application for a final relief in the ordinary
course (Part B)”.
As already stated elsewhere above, the respondents stated in
paragraph 1 of Part B that they were praying
for the court to
interdict or restrain the applicants from conducting themselves in
certain specified ways for a period of 24 months.
The applicants
contend that the orders granted on the
31 October 2017
,
inclusive of the cost order, were meant to be of interim force and
effect. The applicants state that the respondents cannot tax
the
costs of an interim order that was granted in their absence and which
was never confirmed. It was further stated that the interim
order has
become moot due to effluxion of time.
[9]
In
Apleni
v Minister of Law and Order and Others Vivier
[2]
JA
stated:
“
The
interim interdicts sought would have been operative for the duration
of the appellants’ detention. In this sense it would
have had
final effect in that nothing which may subsequently have been decided
could detract from the efficacy which the orders
enjoyed while they
were in force. However, on the facts of the present applications the
grant of interim interdicts did not involve
a final determination of
the rights of the parties and did not affect such
determination…although final in effect, the interdicts
sought
were thus certainly not final in substance. The fact that the
determination of the issues would only have taken place after
the
risk of injury had passed was obviously no bar to the granting of the
orders…”
The
applicants stated that the order in Part A, though final in nature,
did not, as in Apleni above, involve a final determination
of the
rights of the parties and did not affect such determination. It is my
view that the respondents were fully aware of this
fact and have for
that reason, set the matter down twice for the hearing of Part B,
which could not proceed at the instance of
the applicants. The
applicants were ordered to pay the costs of the postponement and the
removal of the matter from the roll. The
respondents are of the view
that they are entitled to the costs of Part A on that basis.
[10]
The circumstances under which Part B was postponed are not clear.
That is, it is not clear as to whether the respondents opposed
the
application or not. The respondents stated in the answering affidavit
that nothing prevented the applicants in this application
from
enrolling Part B. The respondents further stated that it is clear
that the applicants failed to do so because they once found
by this
Court to be in contempt of the interim order. It is my view that in
the absence of a final determination of the rights
of the parties
which was supposed to be dealt with in the hearing of Part B, the
entire interim order, including the costs order,
lapsed after the
expiration of a period of 24 months. The respondents are not
permitted to tax in terms of the said court order.
This Court has the
power to reconsider the matter and to set the interim order aside on
the basis that it has lapsed.
[11]
In the result I make the following order:
i. The interim order
granted in Part A by M G Phaduti J on the
31 October 2017
has
lapsed and is consequently set aside;
ii. The respondents are
ordered to pay the costs of this application.
M.V
SEMENYA
ACTING
DEPUTY JUDGE PRESIDENT OF
THE
HIGH COURT; LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS
FOR THE APPLICANT
:
BOSMAN ATTORNEYS
COUNSEL
FOR THE APPLICANT
:
MR. BOSMAN
ATTORNEY
FOR THE RESPONDANT
:
OTTO KRAUSE INC.
COUNSEL
FOR THE RESPONDENT
:
ADV. CB GARVEY
RESERVED
ON
:
10 JUNE 2021
JUDGMENT
DELIVERED ON
:
02 JULY 2021
This
Judgment was delivered electronically through the parties legal
representatives’ email addresses.
[1]
1996(4)
SA 484 (WLD)
[2]
(436/86)
[1987] ZASCA 135
(26 November 1987)