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[2021] ZAMPMBHC 45
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Nkosi and Others v Endlovini Communal Property Association and Another In re: Endlovini Communal Property Association v Nkosi and Others (1626/2020) [2021] ZAMPMBHC 45 (5 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE NUMBER: 1626/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
05.10.2021
In
the rescission application between:-
SIMON
DUNCAN
NKOSI
First Applicant
THOBELA
AMOSI
NKOSI
Second Applicant
MANDLAMA
MAVUSO
Third Applicant
MOSES
NDLOVU
Fourth Applicant
TIMOTHY
FANIE
SHABANGU
Fifth Applicant
ESAAU
SAM
NKOSI
Sixth Applicant
THE MEMBERS OF THE FORMER
ENDLOVINI TAKS TEAM
THAT ACTED AS THE
STEERING COMMITTEE FOR THE
APPLICANTS
Seventh Applicant
THE MEMBERS OF THE FARM
HERMANSBURG 450
GT
LANDGROEP (INCLUDING ALL PERSONS WHO ACT
FOR
OR THROUGH THE LANDGROEP)
Eighth Applicant
and
ENDLOVINI
COMMUNAL PROPERTY ASSOCIATION
First Respondent
THE
STATION COMMANDER: SAPS MBOMBELA
Second Respondent
In
re
:
In
the main application between:-
ENDLOVINI
COMMUNAL PROPERTY ASSOCIATION
Applicant
and
SIMON
DUNCAN
NKOSI
First Respondent
THOBELA
AMOSI
NKOSI
Second Respondent
MANDLAMA
MAVUSO
Third Respondent
MOSES
NDLOVU
Fourth Respondent
TIMOTHY
FANIE
SHABANGU
Fifth Respondent
ESAAU
SAM
NKOSI
Sixth Respondent
THE MEMBERS OF THE FORMER
ENDLOVINI TAKS TEAM
THAT ACTED AS THE
STEERING COMMITTEE FOR
THE
APPLICANTS
Seventh Respondent
THE MEMBERS OF THE FARM
HERMANSBURG 450
GT
LANDGROEP (INCLUDING ALL PERSONS WHO ACT
FOR
OR THROUGH THE LANDGROEP)
Eighth Respondent
THE
STATION COMMANDER: SAPS MBOMBELA
Ninth Respondent
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
This is an application wherein the applicants (respondents in the
main action, and herein after referred to as “
the
applicants
”) seek a rescission of the order granted on 10
March 2021. In aforesaid order the rule
nisi
issued on 18
August 2020 by Mashile J, extended on 19 November 2020 by Musa AJ,
and further extended on 4 March 2021 to 10 March
2021, was confirmed.
This order stated that it was granted as the applicants herein failed
to file their opposing papers in the
main application.
BACKGROUND
[2]
The applicants allege that pursuant to the rule
nisi
being
extended by Mashile J, Musa AJ further extended the rule
nisi
to
4 March 2021 in order to give the applicants an opportunity to file
their answering affidavit. On 4 March 2021 the answering
affidavit
was served on the respondents’ legal representative, however
the answering affidavit was not filed at court. On
4 March 2021 the
applicants were advised that the matter was stood down from 4 March
2021 until 10 March 2021, pending the delivery
of the court order
dated 18 August 2020 and the transcribed record of the previous
proceedings of the matter.
[3]
On 8 March 2021 the applicants’ answering affidavit was filed
at court.
[4]
On 9 March 2021 the respondents’ legal representative made
the
transcription of the hearing of 18 August 2020 available to the
Registrar and further enquired from the Registrar as to whether
the
applicants and the applicants’ legal representative remained
excused for 10 March 2021.
[5]
The applicants’ legal representative addressed a similar e-mail
to the Registrar, enquiring as to appearances of legal
representatives and whether there was a facility for virtual
appearances.
This e-mail was sent shortly after 08h00 on 10 March
2021. Without replying to either of the aforementioned emails, the
Registrar
sent the order of 10 March 2020 to the parties, which read
as follows:-
“
1
.
The respondents failed to file opposing papers.
2.
The rule nisi issued on 18 March 2020 by Mashile J and
extended on 19 November 2020 by Musa AJ to 4 March 2021 and further
extended
on 4 March 2021 to 10 March 2021 is hereby
confirmed.
3.
The respondents to pay the cost of this application
jointly and severally
the one paying the other to be
absolved
.”
[6]
It is on this basis that the applicants launched the current
application
submitting that the order was erroneously granted in
their absence, after the court found that the applicants’
answering
affidavit was not filed.
[7]
The facts leading up to this rescission application are largely
common cause between the parties. In opposition to the rescission
application the respondents allege that the applicants have been
dilatory in filing their answering affidavit, notwithstanding being
granted various opportunities to do so. According to the respondents
on 18 November 2020 Moosa AJ “
threw the
applicants
a life line
” and granted them an indulgence to file their
answering papers. It bears mention that during this period the
applicants changed
attorneys of record. The respondents admit that
the answering affidavit was served on them as alleged by the
applicants, but contend
that said answering affidavit was not
properly commissioned and therefore does not constitute an affidavit,
nor was it accompanied
by a substantive application for condonation
for the late filing thereof.
[8]
It is further contended on behalf of the respondents that as the
applicants failed to file a properly commissioned affidavit and
condonation application, the court cannot “
..‘see’
those papers just as it cannot ‘see’ an unrobed counsel
in court session
”.
[9]
Ex facie
the applicants’ answering affidavit, and in
respect of the commissioning thereof, each page contains an initial
and the last
page contains a signature by the deponent as well as the
Commissioner of Oath’s certificate. What has not been completed
was the date and place where the deponent signed and took the
declaration.
[10]
The commissioning of affidavits are governed by the Regulations
under
GNR. 1258 of 21 July 1972 made in terms of Section 10 of the Justices
of the Peace and Commissioners of Oaths Act 16 of 1963.
In terms of
Regulation 4 a Commissioner of Oath shall certify that the deponent
has acknowledge that he or she knows and understands
the content of
the declaration and shall state the manner, place and date of taking
the declaration. The Commissioner of Oath shall
further sign the
declaration and print his or her full name and business address below
his or her signature, and state his or her
designation and the area
for which he or she holds his or her appointment, or the office held
by him or her, if he or she holds
his or her appointment
ex
officio
.
[11]
Against aforementioned, the applicants’ answering affidavit
falls short of the place and date of taking the declaration.
[12]
That being
said, a court has a discretion whether to have regard to the
affidavit, notwithstanding the non-compliance with the commissioning.
In the matter of
Dawood
v Mahomed
[1]
it was explained that in deciding whether the
non-compliance
in respect of the commissioning of an affidavit is of such a nature
that the court should refuse to entertain the
affidavit, one has to
have regard to the nature and purpose of the requirements which have
not been complied with. Said reasons
for the requirements, more
particularly the business address to be indicated, facilitate the
task of anyone who might thereafter
wish to locate the said
Commissioner for any purpose connected to
the
affidavit and its execution.
[13]
An affidavit falling short of the regulations are therefore not
automatically of no consequence. The court to whom should an
affidavit is submitted will be faced with the decision of
entertaining
same or not.
[14]
Further, from the answering affidavit it appears that although a
substantive application for condonation in the form of a notice of
motion and founding affidavit had not been filed, the answering
affidavit (at paragraphs 139 to 156 thereof) deals with the issue of
condonation. Herein various facts are set out in ostensible
support
for condoning the late filing of the answering affidavit.
[15]
It is therefore not technically correct as submitted by the
respondents
that no condonation application has been made. It has
become practice to deal with the issue of condonation in the
answering affidavit
itself instead of filing a separate substantive
application for condonation for the late filing of a document. During
argument
the court was not referred to any authority contradicting or
challenging the correctness of the inclusion of condonation within
an
affidavit.
[16]
As held in
Kgomo
and Another v Standard Bank of South Africa
[2]
with reference
to
Colyn
v
Tiger
Food
Industries
Ltd
t/a
Meadow
Feed
Mills
(Cape)
[3]
and
Lodhi 2 Properties Investments CC and Another v Bondev Developments
(Pty) Ltd
,
[4]
the following principles govern rescissions under Rule 42(1)(a):-
(a)
The rule must be understood against its common law background.
(b)
The basic principle at common law is that once a judgment has been
granted, the judge becomes
functus officio
, but subject to
certain exceptions of which Rule 42(1)(a) is one.
(c)
The rule caters for a mistake in the proceedings.
(d)
The mistake may either be one which appears on the record of
proceedings,
or one which subsequently becomes apparent from the
information made available in an application for a rescission of
judgment.
(e)
A judgment cannot be said to have been granted erroneously in light
of a subsequent disclosed defence, which was not known or raised at
the time of the default judgment.
(f)
The error may arise either in the process of seeking the judgment
on
the part of the applicant for default judgment, or in the process of
granting the default judgment on the part of the court.
(g)
The applicant for a rescission is not required to show, over and
above the error, that there is good cause for the rescission, as
contemplated in Rule 31(2)(b).
[17]
Therefore
the only thing which is necessary to be shown by the applicants is
that the prior order was erroneously sought or erroneously
granted in
the absence of a party affected thereby. Once the court holds that an
order or judgment was erroneously sought or granted,
it should
without further enquiry rescind
or
vary
the
order,
and
it
is
not
necessary
for
a
party
to
show
good
cause for
the sub-rule to apply.
[5]
[18]
In deciding
whether a judgment was erroneously granted, a court is not confined
to the record of proceedings.
[6]
An order or judgment is erroneously granted if there was an
irregularity in the proceedings, or if it was not legally competent
for the court to have made such an order.
[7]
[19]
It is trite
that an application in terms of Rule 42 needs to be launched within a
reasonable
time. For a judgment or order to be erroneously sought and granted,
there needs to exist, at the time of its issue, an
unknown fact which
would have precluded the granting of the judgment, and which would
have induced, if aware of it, a basis not
to grant the judgment.
[8]
[20]
From a plain reading of the order granted on 10 March 2021 it appears
that the court dealt with the matter in the manner that it did, as no
answering affidavit was filed by the applicants. This was
then also
the reason for the first paragraph of the order.
[21]
The argument raised by respondents that the court may very well
have
been aware of the answering affidavit, but did not “
see it
”
due to the fact that it was not accompanied by a condonation
application and was non-compliant in respect of the requirements
of
the commissioning thereof, does not hold water when compared to the
plain wording of the order sought to be rescinded.
[22]
Being alive to the fact that a judgment cannot be said to have been
granted erroneously in light of a subsequent disclosed defence, which
was not known or raised at the time of the default judgment,
the
matter at hand is distinguishable on the fact that the court clearly
was unaware of the answering affidavit being filed on
8 March 2021.
In the event that the court had regard to the answering affidavit,
but considered same not to be filed on the grounds
argued for by the
respondents to any other ground for that matter, same would have been
have been reflected in the order.
[23]
The circumstances of the matter is exacerbated by the fact that
the
matter was dealt with without appearances from the parties’
legal representatives and without oral argument. The court,
only
having regard to that which was filed in the court file, considered
the matter on the papers alone. It follows that had the
court been
aware of the answering affidavit having been filed, the court would
not have granted the order or in the present form.
Even if I am wrong
in this respect, I am of the view that had the parties appeared, and
it was during said appearance brought to
the court’s attention
that the answering affidavit was served on 4 March 2021 and filed in
court on 8 March 2021, the court
would, at the very least, not have
granted paragraph 1 of the order.
[24]
In the circumstances the default judgment stands to be rescinded.
[25]
Cost is ultimately in the discretion of the court. The general rule
is that cost follows the event, and that the successful party should
be awarded his or her costs.
[26]
In the matter at hand I am of the view that it would not be just
to
award costs to the applicants. Having regard to the circumstances and
the necessity of this rescission application, it is clear
that the
applicants, although in my view entitled to the order, did not act as
diligently as one would have expected of a party
who professes to be
serious about opposing the rule
nisi
which was granted. Had
the applicants filed the answering affidavit prior to the hearing of
4 March 2021 as it was supposed to,
alternatively ensured that it was
brought to the attention of the court, this application could have
been avoided. Equally so the
application could have been avoided if
the respondents approached the issue differently and having found
that the defences raised
were meritless they similarly are not
entitled to costs.
[27]
Consequentially the following order is made:-
1.
The order dated 10 March 2021 is hereby rescinded and set aside.
2.
The rule nisi granted and extended to 10 March 2021 is hereby
extended to 3 March
2022;
3.
The parties are ordered to co-operate with one another, complete a
Form B and
file same with the registrar to secure the hearing date
per 3 above.
4.
Each party to pay its own costs.
GREYLING-COETZER AJ
DATE
OF HEARING:
31
August 2021
DATE
OF JUDGMENT:
5 October
2021
FOR
THE APPLICANTS:
Adv Khumalo
Instructed by Dlamini
Legal Inc Attorneys
E-mail:
nduduzi@dlaminilegal.co.za
Ref: Lit/21/Endlovini
c/o T Mabunda Attorneys
Ref: N0002/TM/2021
FOR
THE RESPONDENTS:
Adv Janse van Vuuren
Instructed by Richard
Spoor Inc Attorneys
E-mail:
george@rsinc.co.za
Ref:
Spoor/Kahn/Endlovini CPA
c/o Cochrane Attorneys
Ref: RSI/Kahn
[1]
1979 (2) SA 361
(D) at 367C to F
[2]
2016 (2) SA 184 (GP)
[3]
2003 (6) SA 1 (SCA)
[4]
2007 (6) SA 87 (SCA)
[5]
Rossitter v Nedbank Ltd (Unreported) SCA case number 96/2014 (dated
1 December 2015) at par [16]
[6]
Lodhi (supra) at 93C to H
[7]
National Pride Trading 452 (Pty) Ltd v Media 24 Ltd
2010 (6) SA 587
(ECP) at 593F to 594I and Promedia Drukkers & Uitgewers (Edms)
Bpk v Kaimowitz and Others
1996 (4) SA 411
(C) at 417G to H
[8]
Occupiers, Berea v De Wet N.O. and Another
2017 (5) SA 346
(CC) at
366E to 367A