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[2021] ZAGPPHC 326
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Polokwane 28 Joint Venture and Others v Development Bank of Southern Africa (A369/19; A372/19) [2021] ZAGPPHC 326 (31 May 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO.:
A369/19 & A372/19
In the matter
between:
POLOKWANE 28 JOINT VENTURE
MATOME MAPONYA INVESTMENTS
THE TRUSTEES FOR THE TIME BEING OF THE RASADRI BELEGGINGSTRUST
First appellant
Second appellant
Third appellant
and
DEVELOPMENT
BANK OF SOUTHERN AFRICA LIMITED
Respondent
JUDGMENT
van der Westhuizen, J
(Hughes, J. and Manamela, AJ., concurring)
[1] This is an appeal to
the Full Court of this Division in respect of a judgment by
a single
judge, sitting as a court of first instance in an opposed
application, leave to appeal having been granted by the court
a
quo
.
[2] Central to the appeal
are the orders granted by the court
a quo
in what could best
be described as a comedy of errors in the adjudicating upon the
application by the court
a quo
and to which the parties were
not blameless themselves. Furthermore, in the appeal itself, the
parties were adamant to perpetuate
the comedy in seeking the
respective particular relief they sought, whilst not addressing the
true issue that gave rise to the
appeal in the first instance.
[3] From a clear and
purposive reading of the appeal record, it is gleaned that the
procedure followed by the court
a quo
, when hearing the
application before it, was non-procedural and inappropriate for what
follows.
[4] The respondent (the
applicant in the court
a quo
) launched an application for
re-payment of an amount that was lent and advanced to the first
appellant, the Joint Venture (the
first respondent in the court
a
quo
). The second and third appellants (first and second
respondents in the court
a quo
) were the partners of the first
appellant.
[5] In response to the said
application, the first and second appellants filed a notice
in terms
of the provisions of Rule 6(5)(d)(iii) of the Uniform Rules of Court.
That sub-rule provides:
“
Any
person opposing the grant of an order sought in the notice of motion
must-
(i)
…
;
(ii)
…
;
(iii)
If
he or she intends to raise any question of law only he or she must
deliver notice of his or her intention to do so, within the
stated in
the preceding paragraph, setting forth such question.”
[6] No answering affidavits
were filed in the prescribed time period by any of the appellants
in
response to the founding affidavit. The first and second appellants
merely filed the Rule 6(5)(d)(iii) notice. Following on
the receipt
of the notice in respect of the point of law taken, the respondent
filed a supplementary affidavit in response to the
said point of law
taken.
[7] Shortly before the
hearing of the matter in the court
a quo
, the third appellant
filed an answering affidavit in response to the founding affidavit.
This was several months after the launch
of the said application for
re-payment of the monies lent and advanced. The third appellant’s
answering affidavit was accompanied
by a conditional application for
the condoning of the late filing of the said answering affidavit, as
well as an application for
the postponement of the hearing of the
application for re-payment of the amount lent and advanced.
[8] When the matter was
called in the court
a quo
, and during the opening address on
behalf of the respondent, the applicant in the court
a quo
,
made the submission that the main application was ripe for hearing,
but that there were two applications by the third respondent
that
required consideration. The court
a quo
indicated that it was
not aware of the belated application for postponement by the third
respondent. It was further brought to
the court
a quo
’s
attention that the first and second appellants wished to address the
court on certain issues. Counsel for the first
and second
appellants raised the issue that the status of the so-called
supplementary affidavit by the respondent required consideration
and
a ruling to be pronounced on the status thereof, before the first and
second appellants were to respond thereto. On behalf
of the third
appellant the court was referred to the application for postponement
and to the conditional application for the condoning
of the late
filing of the answering affidavit by the third appellant.
[9] The court
a quo
clearly indicated that it wished to consider the application for
postponement. The court
a quo
further accepted from the bar,
heads of argument prepared by the respondent in respect of the third
appellant’s application
for postponement and adjourned to
consider those papers. When the court resumed, it proceeded to
pronounce upon its ruling on the
application for postponement without
hearing any argument on behalf of the third appellant, or any of the
other parties, on the
application for postponement. In its ruling it
merely referred to the respondent’s heads of argument on that
issue. The court
a quo
then proceeded to dismiss the
application for a postponement summarily.
[10] When counsel for the respondent
enquired as to whether the ruling in respect of the third appellant’s
application for leave to file an answering affidavit was included in
the ruling, the court
a quo
summarily, and without providing
any reasons therefor, dismissed that application as well. The court
a
quo
then addressed counsel for the respondent in respect of its
supplementary affidavit and indicated its view on whether the
respondent
needed that affidavit, as it was of the view that it did
not take what was contained in the founding affidavit any further.
Furthermore,
the first and second appellants were not granted an
opportunity to argue the points of law in respect of the main
application,
nor the application for leave to file an answering
affidavit in respect of the supplementary affidavit by the
respondent.
[11] Counsel for the respondent
commenced to address the court
a quo
on the merits of the main
application when counsel for the third appellant interjected and drew
the court’s attention to
the fact that the third appellant was
not granted the opportunity of addressing that court on the merits of
the application for
a postponement, nor of the issue for leave to
file an answering affidavit to the founding affidavit. The approach
by the court
a quo
to that point of order is startling. The
court
a quo
’s retort was merely “
[t]hen
consider what I have said up to now is a
prima facie
view. If you want to argue it, please do”.
The content and
context of that passage is the crux of this appeal.
[12] The court
a quo
did not
recall its earlier ruling. It merely granted the third appellant an
opportunity to argue the postponement application,
if it so wished.
The court
a quo
’s indication of its
prima facie
view is of no consequence. From the content and context of the afore
quoted passage the following flows: it has already pronounced
upon
the application; it would entertain argument thereon, if so insisted
upon; it gave no indication that it would reconsider
the already
pronounced finding. At best the court
a quo
gratuitously
afforded the third appellant the opportunity to address that court on
the issue of the postponement, if it so wished.
That approach does
not translate into a recalling of the order already granted, neither
that a reconsideration of the granted order
would follow. The “
prima
facie
view” was clearly a final view on the part of the
court
a quo
, clearly cast in stone, hence no recalling of the
order granted.
[13] When the court
a quo
pronounced upon the application for postponement immediately when the
hearing resumed, and only considered the heads of argument
by the
applicant in the court
a quo
on that issue, and without hearing argument by the third appellant,
the court
a quo
was
functus officio
.
[1]
None of the acknowledged exceptions to the general rule of a final
pronouncement apply in the present instance. Furthermore, what
transpired after the court
a quo
was called to order, clearly indicates that that court at no stage
considered to recall the granted order, whether in terms of
the
provisions of Rule 42 of the Uniform Rules of Court, or the common
law, or as an extended exception to the general rule of
being
functus
officio
. The travesty of justice was
merely perpetuated when the court
a quo
gratuitously granted the third appellant the opportunity to argue its
application for a postponement, if it so wished. The order
stood
until set aside or rescinded, or for that matter recalled.
[2]
The receiving of argument on behalf to the first and second
appellants after the fact, is further of no consequence.
[14] It follows that the appeal stands
to succeed.
[15] As recorded earlier, the comedy of
errors was perpetuated in this court in that the appellants
sought
that once the appeal succeeds, this court should grant the relief
sought before the court
a quo
. The fallacy of that approach
lies in the trite principle that this court, sitting as a court of
appeal, cannot grant orders as
a court of first instance, in
particular where the merits of the application for a postponement and
the application for leave to
file an answering affidavit have not
been adjudicated upon by a court sitting as a court of first
instance. Nor where the merits
of the Rule 6(5)(d)(iii) were not
considered. The only order that this court of appeal may grant is one
of upholding the appeal,
setting aside the orders granted by the
court
a quo
and remitting the matter back to the court of
first instance, preferably to a different constituted court, to hear
the matters
de novo
.
[16] There remains the issue of costs.
No cogent reasons were advanced why the general rule that
costs
follow the event should not apply.
The following order is granted:
1.
The
appeal is upheld;
2.
The
orders of the court
a
quo
are set aside;
3.
The
matter is referred back to the court of first instance, differently
constituted, to hear the matter
de
novo
;
4.
The
respondent is to pay the costs of the appeal, such costs to include
the costs of two counsel, where applicable.
C J VAN DER
WESTHUIZEN
JUDGE OF THE
HIGH COURT
Date of
Hearing:
19 May 2021
On behalf of
the First and Second Appellants:
R J Groenewald
Instructed
by:
Geyser
Attorneys Inc.
On behalf of
the Third Appellant:
J
G Bergentuin SC
B H Steyn
Instructed
by:
Bernard van der Hoven Attorneys
On behalf of
Respondent:
B M Gilbert
I Phalane
Instructed
by:
Strauss
Daly Inc.
Judgment delivered
on:
31 May 2021
[1]
Firestone South Africa (Pty) Lt v Gentiruco
A.G.
1977(4) SA 298 (AD) at 306F-H
[2]
Oudekraal Estates (Pty) Ltd v City of Cape
Town
2004(6) SA 222 (SCA)