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[2021] ZAECMHC 16
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Mzilikazi v MEC for Co-Operative Governance and Traditional Affairs and Others (3337/2019) [2021] ZAECMHC 16 (16 April 2021)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case No. 3337/2019
In
the matter between:
NTSIKELELO
MZILIKAZI
Applicant
and
MEC FOR CO-OPERATIVE
GOVERNANCE
AND
TRADITIONAL AFFAIRS
First Respondent
MNCEDISI
MZILIKAZI
Second
Respondent
MCHWEBENI
TRADITIONAL COUNCIL
Third
Respondent
NYANDENI
TRADITIONAL COUNCIL
Fourth
Respondent
THE
PREMIER OF THE EASTERN CAPE
Fifth
Respondent
JUDGMENT IN RESPECT OF
APPLICATION
FOR LEAVE TO APPEAL AGAINST ORDER RESCINDING DEFAULT ORDER GRANTED IN
THE MAIN REVIEW APPLICATION
HARTLE
J
[1]
The applicant (first respondent in the
rescission application) sought leave to appeal against the whole of
my judgment and order
delivered on 10 December 2020 in which I drew
the following conclusions or made the following relevant findings for
present purposes:
1.
that the second respondent had not been
served with the founding papers filed in the review application;
2.
that because he was a vital party to the
review proceedings, he was an “affected party” as
envisaged in Rule 42 (1)
of the Uniform Rules of Court against whom
an order in the review application had been granted in his absence;
3.
that the impugned order in the review
application was “erroneously sought or granted” within
the contemplation of that
sub-rule, because the second respondent had
not been served; and
4.
that the court was authorized by the
provisions of Rule 42 (1)(a) upon the application of the party
affected (or even
mero motu
)
to rescind the impugned order.
[2]
Although I dismissed such an application
for rescission brought by the first respondent for various reasons, I
had regard to the
“application” of the second respondent
and accepted that it afforded a premise to rescind the judgment since
the jurisdictional
facts referred to in sub-rule 1 (a) were in my
view established as a fact on the papers.
[3]
Although the second respondent did not
bring a separate application for rescission (having at first merely
filed a notice to abide
the outcome of the first respondent’s
application for recission), which was thereafter withdrawn, he later
made common cause
with the first respondent’s position and put
his weight behind the application. In a footnote I opined that
he was
properly (although unconventionally) before me as an applicant
for the relief envisaged in Rule 42 (1)(a) as follows:
“
Although
cited as a respondent in the present application, the second
respondent put his full weight behind the relief sought, but
for his
own unique reasons that were expounded upon in an “explanatory”
(sic) and other affidavits. Although the application
was somewhat
unconventional in form, I cannot fault it on substance. It complies
substantially in my view with the provisions of
rule 42 (2) of the
Uniform Rules of court. Further, given the obvious shortcoming
that I allude to in my judgment, I would
have been inclined
mero
motu
to have set the judgment aside in
any event.
”
[4]
Upon concluding that he had the requisite
interest to be before me as an “affected party” and that
the jurisdictional
fact as envisaged in Rule 42 (1)(a) had been
established, I found as a result that I was permitted to rescind the
review order
without further ado, in other words I found that it was
not necessary for the second respondent additionally to have shown
good
cause for the sub-rule to apply.
[5]
In respect of the issue of the second
respondent not having been served, the applicant had been obliged to
deal with this allegation
in reply even
viz-a-viz
the first respondent (even though his application failed), because it
was a common complaint that the second respondent had not
been served
with the papers in the review application. In this respect I
held that:
“
[17]
In this instance although confronted with the allegation that the
second respondent had not been served with
the review application,
the first respondent
[1]
very
glibly dealt with the issue and failed to produce a return of service
which would have evidenced this as a fact and put the
matter beyond
contention. Further, the actual review file was not placed before the
court and the odd documents alluded to by the
parties that were
included as annexures in the present application do not reveal that
the second respondent, a vital party to the
proceedings in the review
application, was copied in as a litigant.”
[6]
The corresponding relevant footnotes from
my judgment are included to elucidate my finding that the second
respondent had not been
served with a copy of the review application:
“
22
The first respondent asserted that the review papers were
served on 26 September 2019 but did not attach the sheriff’s
returns
of service. Elsewhere he made the general allegation
that all the relevant parties were served but did not provide proof.
The review papers were not placed before me, but regard being had to
the few pleadings in the review application that were coincidentally
included as annexures to affidavits filed in the present application,
there is a glaring absence of any indication that the second
respond
was served. The mere say-so of the first respondent, very
generally I might add, does not create a genuine dispute
of fact on
the papers concerning this issue.
23
The first respondent attached a copy of the notice of motion in the
review application, but
sans
the service page (assuming there
is page beyond what constitutes annexure “NVM 1” to the
first respondent’s answering
affidavit). The notice to oppose
filed by the State Attorney for the select few respondents is served
only on the registrar and
the “applicant’s attorneys”
(read first respondent), suggesting that that the second respondent’s
details
may not have been indicated on the Notice of Motion at all.
In annexure “NVM 2” (the Rule 30A notice placing the
applicant
on terms) the details of the second respondent appear, but
there is no indication of service on him. In the urgent application
to strike out only the applicant and the House’s opposition to
the review application, there is also no mention of the second
respondent. It is in my view significant that his opposition
would self-evidently have stood in the way of the order being
granted. Consequently, if such relief was being sought against the
applicant and the House, why not seek the same order against
him?
This suggests to me that his interests were simply glossed over as
insignificant in the whole scheme of things. The second
respondent’s
particulars are also not reflected on the notice of set down of the
proceedings (annexure “NVM 6”)
and when it came to
satisfying this court that it had been properly served, the first
respondent’s attorney only alluded
to how the applicant had
been served.”
[7]
In consequence I found that:
“
[18]
… the order would not have been granted under these
circumstances if the court had been made aware
that the second
respondent had not been served. In the result I conclude that the
order was granted erroneously in the absence
of the second respondent
who has a direct and substantial interest in the review application
and for this reason the order falls
to be rescinded.”
[8]
I further observed that it was unnecessary
for the court to have gone any further to establish whether good
cause had been shown
by the second respondent. This notwithstanding,
I generally touched on his explanation regarding why he had come to
the party late
so to speak:
“
[19]
I need not consider whether good cause has been shown but I accept as
correct the second respondent’s
explanation (nothing having
been said to gainsay this) concerning how it happened that he came to
learn of the order and the steps
he took to try and ameliorate his
position as expeditiously as possible.”
[9]
I emphasize that it was on the basis of my
finding that the second respondent had not been served that I ordered
the applicant to
pay the second respondent’s costs. I set out
my reasons in this respect as follows:
“
[36]
… In the premises, despite partial success in favour of the
applicant by the grant of the order below,
he is to be deprived of
his costs.
[2]
As for the
first respondent, although justified in opposing the matter
vis-á-vis
the applicant’s claims of irregularity, he should not have
resisted the application
vis-à-vis
the
second respondent who was plainly not served with the review
application. The position of the second respondent however
is
that he should be entitled to his costs on the basis of success as
against the first respondent.”
[10]
At the commencement of the hearing of the
present application for leave to appeal, I granted the applicant
condonation for the late
filing of his application. For the record
this was on the basis of the parties’ acceptance that the
applicant had made the
common mistake that litigants seem to make
over the Christmas recess of counting such a period as
dies-non
for purposes of calculating when the next step or pleading is due to
be taken or filed, resulting in the present application having
been
filed out of time.
[11]
The
applicant raised several proposed appeal grounds against my judgment
which I do not intend to repeat here as they appear from
the notice
of application.
[3]
[12]
The respondents opposed the application on
the basis essentially that a successful recission order is generally
not appealable because
it is not final in effect.
[13]
On the simple basis that I adopted an
unconventional approach in accepting that the second respondent was
properly before me as
an “applicant”, I believe that
there is merit in the applicant’s submission that the second
respondent, having
been allowed to “participate” as he
was, may have suffered trial prejudice as a result.
[14]
In
this respect Mr. Mhlana contended, for example, that whereas the
second respondent’s “application” had ostensibly
been brought out of time, without any application to condone it, in
elevating his status to that of an applicant proper in his
own right
(rather than as a mere observer willing to abide the outcome), the
court missed that he had not pertinently applied for
condonation for
the late bringing of his “application” and did not
interrogate this or hold him to account for it as
it would a regular
applicant so to speak. It is so that I dealt with the second
respondent’s delay in coming to the fore
with his complaint
that he had not been served with a copy of the review application
(the error) in very general terms whereas
our courts have held that
it is settled law that even an application in terms of Rule 42 (1)(a)
must be brought within a reasonable
time of establishing the fact of
the error or erroneous state of affairs contemplated by the sub-rule
and that the delay ought
to be fully explained in all the
circumstances.
[4]
[15]
Additionally,
so the argument went, the awkward manner in which the second
respondent interposed his dilemma and his failure to
have followed
recognized procedures in withdrawing his notice to abide and initial
affidavit, and thereafter changing the course
of his direction by
filing a different affidavit, meant that the applicant was
compromised in replying thereto in the ordinary
course. (The
applicant claims that it would have dealt with the second
respondent’s claim that he had not been served
with a copy of
the application by putting up proof of the sheriff’s return of
services which he purported to do only after
the fact and as random
annexures to the application for leave to appeal)
[5]
.
[16]
Mr. Mhlana submitted further that I failed
to properly deal with the applicant’s unopposed application to
strike out the second
respondent’s papers which should have
happened before I heard the recission application. (In this
regard I mention
that I considered it unnecessary to hear the
striking out application which became moot by the second respondent’s
withdrawal
of the impugned affidavit, which I had no regard to in the
ultimate determination of the issues before me. I accept though
that the filing of the affidavit in its place under the peculiar
circumstances may have constituted an irregularity.)
[17]
A
further ground was raised that even assuming that the second
respondent was properly before me, I should not have come to his
assistance since he failed to set out “with sufficient
particularity, a valid a
bona
fide
defence to the main application”. In this respect Mr.
Mhlana relied on the authority of Bayport Securitization RF Ltd
v
Sakata
[6]
in support of his
contention, but I am not convinced that this supports the applicant’s
position
in
casu
.
Bayport
[7]
dealt with the
peremptory provisions of Rule 49 (1), (3) and (8) of the Magistrate’s
Court Rules. Rule 42 of the Uniform
Rules of Court however
caters for a completely different situation in this court and
provides for its own requirements. Rule 42
(1) (a) is a procedural
measure designed to rectify a procedural error. It is a remedy
distinctly different from the relief
allowed under the common law.
The court found in National Pride Trading 452 v Media 24
[8]
that the requirements of Rule 42 are prescribed by the wording of the
rule itself and are not imported from the common-law.
Hence
there is no requirement under Rule 42 (1)(a) that the showing of
“sufficient cause” by such an applicant is a
necessary
requirement.
[18]
This
has been authoritatively settled by the judgment of the Supreme Court
of Appeal in Lodhi 2 Property Investments CC and Another
and Bondev
Developments (Pty) Ltd where that court held that “(t)he
existence or non-existence of a defence on the merits
is an
irrelevant consideration” under the sub-rule.
[9]
[19]
The
approach adopted by this court in National Pride
[10]
has also been endorsed by the Supreme Court of Appeal in the more
recent judgment of Rossiter v Nedbank Limited.
[11]
[20]
In
National Pride Trading 452
[12]
the court explained why it believed that it was also a consideration
of policy why it is not a requirement that an applicant raising
a
procedural irregularity under Rule 42 (1)(a) has to show a
bona
fide
defence under the sub-rule, as follows:
“
[56]
There is, I believe, also a consideration of policy why it is not a
requirement that an applicant has to show a
bona
fide
defence
under Rule 42 (1) (a), and that is this: Any order or judgment made
against a party in his absence due to an error not attributable
to
him, is such a profound intervention in his right to a fair trial and
right to be heard, that, for this reason alone, the judgment
or order
should be set aside without further ado.
[57]
If Jones AJA
[13]
did not
intend to mean that the common law grounds apply to Rule 42, what
then did he intend to convey by saying that the Rule
is “…
a
restatement of the common law …”
?
In my respective view, what he intended to convey was no more than
this: Rule 42 contains a similar remedy to that of the common
law,
namely to restore the parties to their same position before the wrong
order was made.
[58]
The one feature which runs like a golden thread through all the
decided cases on the common law grounds for rescission, is
that its
historical origin lies in the remedy of
restitutio in integrum.
Its aim is to correct an injustice and to place the aggrieved
party in the same position in which he was before the error or fraud
or other form of injustice was committed. Although Rule 42 provides
for a different mechanism, namely to set aside a procedural
irregularity, its aim is the same as that of the common law, namely
to restore the applicant in its previous position before the
irregularity occurred. And it is in this context, against the
background of the common law, that the words of Jones AJA in
Colyn
(
supra
) must be read and understood where he stated (at
7B-C (para 6)):
“…
It
(Rule42 (1)(a)) is, for the most part of any rate, a restatement of
the common law. It does not purport to amend or extend the
common
law, …”
(my emphasis).
[59]
What Jones AJA clearly meant by the above, is that Rule 42, as does
the common law, provides for the remedy of
restitutio in integrum.
It does not purport to amend or to extend the common law, but
merely restate the same defence in procedural form, having as its
only requirement an order or judgment which was (procedurally)
erroneously sought or erroneously granted in the absence of a party
affected thereby. It is a procedural error explaining the absence of
the affected party.”
[21]
In
the result I do not agree with Mr. Mhlana’s submission that I
overlooked or ignored three judgments, of the Supreme Court
of Appeal
and of this Division, in concluding that it had been unnecessary for
the second respondent in the rescission application
to set out his
defence to the review application. To the contrary, the
judgments relied upon by him pertain uniquely to the
requirements for
recission applications in the magistrate’s court.
[14]
The authorities cited in footnotes 10 – 21 of my judgment in my
view continue to remain good law.
[22]
For the rest, it is unnecessary in my view
to pertinently go into the proposed appeal grounds individually.
I am satisfied
that another court may well find that I should not
have entertained the “application” of the second
respondent, but
rather simply have dismissed the first respondent’s
application (with costs going to the applicant as the successful
party
in opposing the application) and thus have brought an end to
the matter. I accept too that by having given the second
respondent
a platform on which to have participated as he did that
the applicant’s fair trial rights may have been compromised,
even
though I remain convinced that a procedural irregularity exists
which warranted a recission of Mjali J’s order.
[23]
Since the costs order I granted against the
applicant
vis-a-vis
the second respondent rests on the same premise that the second
respondent was properly before the court, it follows that another
court may also well find that it was inappropriate to mulct the
applicant with a punitive costs order for opposing what it regarded
as a putative and irregular application for rescission. Another court
may also find that the approach I adopted had the unintended
effect
that the applicant was denied costs that he would otherwise have been
entitled to if I had simply dismissed the first respondent’s
application for recission with costs to follow that result.
[24]
On the issue of appealability I am
satisfied on the basis of the special circumstances pertaining to
this matter and the applicant’s
complaint that his fair trial
rights have been compromised by the alleged flawed or irregular
procedure adopted by this court that
it is manifestly in the
interests of justice to grant him leave to appeal. Further, far
from being a mere interlocutory matter,
the costs order I made (and
did not make according to Mr Mhlana but which ought to have gone in
his client’s favour) are
final in effect and can only remedied
upon appeal.
[25]
In the result I issue the following order:
1.
The applicant is granted leave to the Full
Bench of this Division sitting in Mthatha, or elsewhere as the Judge
President may direct,
to appeal against the order of this court dated
10 December 2020 rescinding the review order of Mjali J dated 4
February 2020 at
the behest of the second respondent, as well as the
adverse costs order(s) granted against him.
2.
The costs of the application will be costs
in the appeal.
________________
B HARTLE
JUDGE
OF THE HIGH COURT
DATE OF APPLICATION:
7 April 2021
DATE OF
JUDGMENT: 16 April
2021*
*Judgment
delivered electronically on this date by email to the parties.
APPEARANCES
:
For the applicant: Mr.
Mhlana instructed by Sicwetsha Attorneys Inc., Mthatha (ref.
NVM/Civil/Sicwetsha-2019).
For the first and
fifth respondents: Mr. Maliwa instructed by The State
Attorney, Mthatha (ref. A6N – Mr. Nqiwa).
For
the second respondent: Mr. Ndamase instructed by Siyabulela Parkie
Attorneys, Mthatha (ref. Mr. Parkie).
[1]
This
is the applicant in the present application for leave to appeal.
[2]
This deprivation of costs was the MEC’s lest there be any
confusion. The effect of this court having found in favour of
the
second respondent though, on the basis of his own unique
application, resulted in the applicant losing out on a costs award
vis-à-vis the first respondent despite him appearing to have
been successful in opposing the MEC’s application for
recission.
[3]
The
fourth ground that the second respondent’s counsel had a
conflict of interest because he himself had participated in
the same
headman-ship dispute in its early stages was fairly abandoned by Mr
Mhlana who appeared for the applicant.
[4]
Minister
of Home Affairs & Others v Zuma, Case No. 3014/2017: Heard on 06
August 2020, delivered on 13 August 2020, paragraph
8, Eastern Cape
Division, Mthatha.
[5]
As an aside I pointed out to Mr Mhlana at the hearing that the
purported returns of service which the applicant sought to introduce
as annexures to the application for leave to appeal had not before
been made available (in other word they were not placed before
the
court when the parties argued the recission application before me),
and additionally appeared to be irregular on the face
of the two
returns. He sought to persuade me however that the applicant would
probably, given the chance and not having been
caught off guard by
the irregularity of the second respondent’s application as it
were, have offered an explanation around
the returns.
[6]
1320/17
[2019] ZASCA 73
(30 May 2019)
[7]
Supra
.
[8]
2010
(6) SA 587
at [54].
[9]
2007
(6) SA 87
(SCA) at para [27]. See also National Pride Trading
452
supra
at para [55].
[10]
Supra
.
[11]
Unreported
judgment of the Supreme Court of Appeal, case no. 96/2014 dated 1
December 2015, at para [16].
[12]
Supra
at
para [56] – [59].
[13]
The court was here referring to the judgment of the SCA in
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003
(6) SA (1) (SCA).
[14]
Bayport Supra was an appeal from an appeal judgment of the Bhisho
High Court which I co-wrote that was overturned on appeal after
special leave was granted to the parties ostensibly in terms of
section 16
(1) (b) of the
Superior Courts Act, No 10 of 2013
. In our
judgment we found that once there is a procedural error in the grant
of a judgment (of the magistrate’s court),
that it is
unnecessary for an applicant to set out a valid and
bona
fide
defence and that we were entitled to invoke the court’s
inherent jurisdiction to rescind the judgment. The SCA found
however that our judgement was at odds with Leo Manufacturing CC v
Robor Industrial (Pty) Ltd
2007 (2) SA 1
(SCA) as well as two
judgments of the ECD in Diniso v African Bank Ltd [2017] ZAECGHC 3
and Smith v Finbond Mutual Bank [2017]
ZAECGHC 4 in which it had
been held that where recission is sought
in
terms of
rule 49
(8)
on the basis that the judgment was void
ab
origine
,
the applicant must still set out a valid and bona fide defence to
the claim. This is however clearly because of the peremptory
nature of the provisions of
rule 49
(3) of the magistrate’s
court (which is a creature of statue) which makes it clear that the
grounds of the defendant’s
defence to the claim must be set
out. Not only are the courts distinctly different (the high
court obviously entertaining
an inherent jurisdiction in respect of
its own process) but so is the procedure set forth in each of the
respective rules.
The procedure in the high court provides as
follows: “
42
Variation and rescission of orders
(1)
The court may, in
addition to any other powers it may have,
mero
motu
or upon the application of any
party affected, rescind or vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
…
;
(c)
…
.;.
(2)
Any party desiring any relief under this rule shall make application
therefor upon notice
to all parties whose interests may be affected
by any variation sought.
(3)
The court shall not make any order rescinding or varying any order
or judgment unless
satisfied that all parties whose interests may be
affected have notice of the order proposed.”