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2021
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[2021] ZAGPJHC 621
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Phakathi and Others v Ndlovu and Others (15653/2019) [2021] ZAGPJHC 621 (2 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
15653/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
Date:
2 September
In
the matter between:
KETTIE
PHAKATHI
1
st
Applicant
JAINE
KAROS
2
nd
Applicant
DOCTOR
MOYO
3
rd
Applicant
MONGEZI
MOYO
4
th
Applicant
THEMBELIHLE
NDLOVU
5
th
Applicant
ROBERT
MPEKERE
TLADI
6
th
Applicant
PIET
LIBOHANG
7
th
Applicant
MARIA
MAHLALELA
8
th
Applicant
JACK
LESUDI
9
th
Applicant
EASTLEIGH
COURT HOUSING DEVELOPMENT
10
th
Applicant
And
JABULANI
NDLOVU AND 4
others
Respondents
Coram:
Majavu AJ
Heard
:
10 June 2021
Delivered:
2 September 2021 – This judgment
was handed down electronically by circulation to the parties'
representatives by email, by
being uploaded to the
CaseLines
digital system of the GLD and by release to SAFLII. The date and time
for hand-down is deemed to be 14h00 on 2 September 2021
Summary:
Application for rescission of judgement, respondents in the main
application not properly served, in the result the order
was
erroneously sought and granted, applicants
in casu
brought
themselves within the ambit of rule 42(1)(a) of the uniform rules of
court.
Consequently,
the application for rescission granted and respondents ordered to pay
costs.
ORDER
(a)
The application for decision of judgement is granted.
(b)
The order of Dosio AJ of 2 May 20219 is hereby rescinded and set
aside.
(c)
The applicant shall deliver the answering affidavit in respect of the
main application within fifteen (15) days of the date of this order,
should they be so inclined or advised.
(d)
The respondents are ordered to pay the costs of this application, on
a
party and party scale, including the costs consequent upon the
employment of counsel, the one paying, the others to be absolved.
Majavu
AJ
Introduction
[1]
This is an application for rescission of judgement, against an order
which my brother, Honourable
Dosio AJ handed down on 2 May 2019.
[2]
This matter has a long and unfortunate history, which resulted in the
above-mentioned
order, which was obtained by default and on an urgent
basis against all named persons, who are reflected as the 1
st
to 10
th
applicants.
[3]
The initial application for rescission was enrolled for hearing on 31
July 2019, however,
was removed from the roll on the day, with an
order that the respondents would bear the costs.
[4]
After delayed exchange of pleadings, including heads of argument the
matter was re-enrolled
on 5 May 2021, and yet again, removed from the
roll by notice on 3 May 2021.
[5]
The matter was further re-enrolled for hearing on 7 June 2021.
[6]
I do not deem it necessary to traverse all the interlocutory
applications, as well
as exchanges between the impugned order of 2
May 2019 and the eventual hearing of the rescission application
before me.
[7]
Notwithstanding the delays, I am grateful to both counsels for the
heads of argument
which I have found useful, as well as their oral
submissions.
The
Dosio AJ order
[8]
“
1. Directing that
the application is heard as a matter of urgency in terms of rule 6
(12).
2.
Directing that the 1
st
to 10
th
respondents
restore the electricity to the housing unit of the applicant and
members in the building suffering the same fate.
3.
Interdicting the 1
st
to 10
th
respondents to
desist from forceful illegal collections of monies against the
applicant and others affected members.
4.
Interdicting the 1
st
to 10
th
respondents from
further harassment of the applicant and members residing in the
building against illegal electricity terminations
and illegal
evictions.
5.
Directing the restoration of Gauteng Housing Secondary Co-operative
as a property contracted
agent to continue managing the affairs of
the property.
6.
Directing the Sheriff of the High Court accompanied by the SAPS to do
all to ensure the relief
for that is carried out successfully.
7.
Directing the SAPS to investigate the conduct of the 1
st
to 9
th
respondents regarding the hijacking of the
property.
8.
The applicant and other members a period of not exceeding 30 days to
bring an application
before court for the judicial management of the
property in terms of the Co-operatives Act.
9.
Directing the respondent to pay the costs in the event of opposing
this application.
10.
No order as to costs.” (sic)
[9]
It would appear that the relief sought in respect of paragraph 2 of
the order has
now become moot, as per the concession by the
applicant’s
in casu, in that the electricity supply has
since been restored.
However, the balance of the impugned order
still remains in contention, hence the persistence by the applicant’s
the rescission
application.
Condonation
application by the respondents
[10]
It would appear that the matter was not expeditiously pursued by both
parties beyond what appears
to be an initial application for
rescission launched by the applicant’s and removed from the
roll on 31 July 2019. To the
extent that the respondents were
woefully out of time with the filing of their answering affidavit and
subsequent to heads of argument,
in the interests of justice, I
exercise my discretion in favour of granting such condonation, to
enable me to deal with this matter
definitively, in terms of the
issues before me for determination.
Point
in limine
(by the respondents in this application)
[11]
The respondents take issue with the
locus standi
of the 1
st
applicant, to the extent that he alleges to be the chairperson of the
housing scheme. There can be no merit to the contention that
the
first applicant, or the 2
nd
to the 10
th
applicants for that matter, lack the necessary
locus standi
to
bring this application, when they have been expressly named in the
initial notice of motion, which resulted in the order, which
is the
subject matter of this very application.
[12]
It is trite that any party who is cited in the proceedings is indeed
entitled to participate,
assuming that such proceedings or processes
initiating such proceedings are brought to their attention.
Conversely, in the event
any such party were to discover even after
the fact, that a court may have pronounced or was in the process of
pronouncing about
the matter in which they have a sufficient material
interest, then such party can hardly be said to be non-suited and
accordingly,
is entitled to be heard. This appears to be undoubtedly,
such a case. I therefore find that there is no merit to the point in
limine
and it is accordingly dismissed.
Requirements
for rescission of judgement: Rule 42
[13]
A useful starting point is always the applicable rule, in this case
rule 42 (1) (a), of the Uniform
Rules of Court which states as
follows:
“
(i)
the court may, in addition to any other powers it may have,
mero
motu
or
upon application of any party affected
, rescind or
vary:
(a)
an order or judgement erroneously sought or erroneously granted
in
the absence of any party affected thereby
(emphasis added)
[14]
The prerequisites that the applicants need to satisfy under the
subrule are the following:
(a)
the default judgement must have been erroneously sought or
granted
;(emphasis added)
(b)
such judgement must have been granted in the absence of the
applicants: and
(c)
the applicant’s rights or interests must be affected by the
judgement.
[15]
There can be no doubt that the latter two requirements appear as
reasonably undisputed, and I
accordingly find that they have been
established by the applicants. However, in order to succeed for
rescission under the sub-rule,
the applicants still bear the onus of
establishing that the judgement was erroneously granted.
Meaning
of erroneously granted?
[16]
The meaning of the words “erroneously granted” was
explained in the case of
Bakoven
Ltd v GJ Howes (Pty) Ltd
[1]
were the court held:
“
an order or
judgement is “erroneously granted” when the court commits
an error in the sense of a mistake in a matter
of law appearing on
the proceedings of a record. (The shorter Oxford dictionary). It
follows that the court in deciding whether
a judgement was
“erroneously granted” is, like a court of appeal,
confined to the record of proceedings. In contradiction
to relief in
terms of rule 31 (2) (B) or under common law, the applicant need not
show (good cause) in the sense of an explanation
for his default and
a bona fide defence…”
[17]
In context, the error accompanying the granting of the order is with
reference to specifically, whether
or not the applicants had notice
of the initial application, which resulted in the order handed down
by Dosio AJ. When one evaluates
the explanation given by the
applicant’s (
in casu
) it is not improbable that, in
truth, the process never reached their attention, or that of the
first applicant. All the respondents
do, by way of rebuttal, is a
blanket denial as contained in 12.4 and 12.5 of their answering
affidavit (incorrectly titled replying
affidavit) by simply stating
that the age of the said minors is undisclosed, as well as the fact
that “
they were apparently not in school even though the day
of the service was done during school going time”
(sic).
They further assert that “
no statements were included from
minus to support their case or let alone any other member state in
the building to support the
statement”
(sic). The essence
of the version by the applicants, directly with regard to the
non-service
of the original application, remains largely
unassailed. I accordingly accept it to be true.
[18]
This resulted in the applicants’ default, with reference to
stating their case prior to
the granting of the order sought to be
rescinded. Such default can never be said to be wilful. In fact, I
find that it was not.
[19]
Given the nature of the relief sought, the socio–economic,
property rights implicated,
one cannot imagine that the applicants
would have elected, knowingly, not to participate in the proceedings
even on an urgent basis.
[20]
To the extent that Dosio AJ was given an impression that the
application was duly served when
the applicants (in the main
application) knew that such was not the case, that in my view, is
enough for the applicant’s
(
in casu
) to bring themselves
within the jurisdictional requirements contemplated in rule 42(1)(a).
It is not even expected of them to traverse
their defence on the
merits. This would have been distinguishable if this application was
anchored on common law, which would have
required the applicant to
show good cause
and by implication, to traverse the merits of
their defence, or as would have been the case in terms of rule 31 (2)
(b).
[21]
In spite of what appears to be irrelevant mosaic of issues, in my
view, the central issue for
determination before me is whether or not
the applicants have brought themselves within the ambit of rule 42
(1) (a) in order to
establish, on a balance of probabilities that the
judgement was erroneously sought and/or
granted
in their
absence. If I find the answer to be in the affirmative, then such
resultant judgement falls to be rescinded. If one were
to borrow,
with approval, the words in
Bakoven
(where the court placed
reliance on
Hard Road (Pty) Ltd v Oribi Motors, De Wet and
Tshabalala and Another v Pierre
) decision
supra,
“
once
the applicant can point at an error in the proceedings, he
is
,
without further ado
entitled to rescission”.
(Emphasis added)
[22]
In order to apply the above rationale, an examination of the facts as
contained in the pleadings
is called for. In evaluating the version
of the applicants (
in casu
) with regard to their absence in
the hearing which resulted in the Dosio AJ order, weighed against
that of the respondents (
in casu
), I am indeed satisfied that
the order was indeed granted erroneously. The original application
before Dosio AJ was never brought
to the attention of the applicants
(then respondents). It therefore follows that the applicants
need
not
show “good cause” in the sense of an explanation
for the default judgement and a
bona fide
defence. Having
crossed this jurisdictional hurdle, it therefore follows that the
applicants are entitled to have this order rescinded.
[23]
I also note that the applicants (
in casu
) seem to fudge
issues, both in the founding affidavit, as well as in their heads of
argument, by referring to the requirements
in terms of rule 42 (1)
(a) interchangeably with the test under common law. Given the fact
that I have already found that the applicants
have brought themselves
within the requirements of rule 42, I do not deem it necessary to
deal with the common law requirements.
[24]
For these reasons I make the following order:
Order
(i)
The application for rescission judgement is granted.
(ii)
The order of Dosio AJ of 2 May 20219 is hereby rescinded and set
aside.
(iii)
The applicants shall deliver the answering affidavit in respect of
the main application within
fifteen (15) days of the date of this
order, should they be so inclined or advised.
(iv)
The respondents are ordered to pay the costs of this application, on
a party and party scale,
including the costs consequent upon the
employment of counsel, the one paying, the others to be absolved.
Z
M P MAJAVU
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD
ON:
10 June 2021
JUDGMENT
DATE:
2 September 2021
FOR
THE APPLICANT:
Adv SG Zwane
INSTRUCTED
BY:
Dube N Attorneys.
FOR
THE RESPONDENTS :
Adv Shole
INSTRUCTED
BY:
Mr. Jabulani Ndlovu –in-person
[1]
1990 (2) SA 466
at page 469B