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[2020] ZAGPPHC 70
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Monama and Another v Nedbank Limited (41092/16) [2020] ZAGPPHC 70 (24 February 2020)
SAFLII
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Certain
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES /
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE NO:
41092/16
24/2/2020
In the matter
between:-
LLENGA
PAULUS MONAMA
First Applicant
(Identity
Number: [….])
ANNA
MAPULA
MONAMA
Second
Applicant
(Identity
Number: [….])
And
NEDBANK
LIMITED
Respondent
JUDGMENT
RANCHOD,
J
Introduction
[1]
This is an opposed application for the rescission of a judgment
granted on 05 December
2018 when the applicants’ application
for leave to appeal was dismissed with costs by Deputy Judge
President Ledwaba.
[2]
The application is ostensibly brought in terms of Rule 42(1)(a) of
the Uniform Rules
of Court on the basis that the judgment was
erroneously sought and erroneously granted in the absence of the
applicants.
Background
facts
[3]
The applicants were the defendants in an action instituted by the
respondent (Nedbank)
in 2016 on the basis that the applicants were in
breach of a loan agreement concluded between the parties on 10
November 2003.
The loan was secured by a covering mortgage bond over
the applicants’ immovable property which was duly registered in
the
office of the Registrar of Deeds at Pretoria on 19 December 2003.
Nedbank claimed payment of R281 304.36 together with interest,
an order that the mortgaged property be declared executable, a writ
of execution be authorised and costs on the attorney and client
scale.
[4]
The applicants’ entered appearance to defend whereafter Nedbank
applied for
summary judgment which was granted by Maluleke AJ on 14
October 2016. It appears to be common cause that the learned acting
judge
did not furnish reasons for the judgment.
[5]
More than six months later an application for leave to appeal the
judgment of Maluleke
AJ was launched by the applicants. Answering and
replying affidavits were respectively filed by June 2018 and 08 May
2017. Nedbank
says as the applicants did nothing thereafter to have
the application heard, its attorneys approached the Deputy Judge
President
(the DJP) for the application to be heard.
[6]
The DJP’s office informed the parties by an email dated 03
December 2018 that
the application would be heard on 05 December 2018
by the DJP himself.
[7]
Nedbank’s attorneys served a notice of set down on the
applicants’ attorneys
by email on 04 December 2018. On the same
day its attorneys received a notice of appointment of the applicants’
current attorneys
of record the previous attorneys seemingly having
withdrawn as such. The email dated 03 December 2018 of the DJP had
been sent
to the applicants’ previous attorneys, being ML
Kekana.
[8]
A Mr David Blaauw from Nedbank’s attorneys telephoned
applicants’ new
attorneys of record to ensure that they are
aware of the hearing of the application for leave to appeal and to
enquire whether
they are in possession of the reasons for
judgment.
[1]
The deponent to the answering affidavit says ‘BM Mudzuli
confirmed that they are aware of the hearing of the application
for
leave to appeal.’
[2]
[9]
In the founding affidavit the first applicant says he had been
telephonically informed
‘on or about’ 03 December 2018 by
his former attorney of record, Mr L Kekana that the application for
leave to appeal
had been set down for hearing on 05 December 2018.
[10]
The first applicant says his current attorneys of record briefed an
Advocate Simon Simani to
attend to the hearing of the application and
has attached a confirmatory affidavit from the said advocate, being
annexure “LPM3”
to the founding affidavit.
[11]
First applicant says advocate Simani came to this court on 05
December 2018 but did not find
the matter on any roll displayed at
the court for that day. After searching for about thirty minutes at
various offices in the
court building Mr Simani believed that the
matter was not on the roll. The next day attorney Mudzuli made
enquiries at the Judge
President’s clerk’s office with
one Gift who did not find the matter on the lists she had. He made
further enquiries
during December 2018 and January 2019 and
eventually found the court file on 07 February 2019 when he
discovered that the application
for leave to appeal was dismissed on
05 December 2018 because there was no appearance by the applicants.
Mr Mudzuli was told by
the DJP’s clerk that the application was
heard in chambers.
[12]
In the circumstances, say the applicants, their default on 05
December 2018 was due to the matter
not being on any roll for that
day and it was heard in chambers by the DJP.
[13]
Nedbank confirms that the application for leave to appeal was not on
the daily roll of the court.
However, it says, there were two other
applications for leave to appeal before the DJP at the allocated time
for 14h00 and its
counsel decided to be in court at the time in case
the applicants’ application was called. The application was
called and
dismissed with costs.
[14]
The question that arises is whether the applicants, through their
attorneys and counsel had made
sufficient attempts on 05 December
2018 to see whether the matter was indeed going to be heard by the
DJP in light of the fact
their attorney had been informed of the
hearing by the first applicant himself as well as Mr Blaauw of
Nedbank’s attorneys.
[15]
The explanation about Mr Simani’s attempts to find out if the
matter was indeed on the
roll raises several concerns. Firstly, the
daily roll had on it two other applications for leave to appeal
before the DJP and which
were to be heard at 14h00 in Court 2C on 05
December 2018. One would imagine that it was a simple matter to
present oneself in
that court (as did Nedbank’s counsel) at the
stated time and raise the issue of the matter not being on the roll
before the
DJP. Mr Simani have found that the matter was indeed to be
heard that afternoon. Mr Simani and applicants’ attorneys could
have contacted Nedbank’s counsel and attorneys respectively to
ascertain if they know whether and when and where it was to
be heard.
[16]
The applicants say their attorney was informed by the DJP’s
clerk that the matter would
be heard in chambers. No confirmatory
affidavit has been filed from the clerk that she had indeed told him
so. It seems to me to
be improbable that she would say it would be
heard in chambers when she in all probability would have been aware
of the two similar
applications being heard in open court and bearing
in mind the DJP’s email to the parties.
[17]
Rule 42(1)(a) provides:
‘
(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.
’
[18]
Generally speaking a judgment is erroneously granted if there existed
at the time of its issue
a fact of which the court was unaware, which
would have precluded the granting of the judgment and which would
have induced the
court, if aware of it, not to grant the judgment.
[3]
[19]
An order or judgment is also erroneously granted if there was an
irregularity in the proceedings,
[4]
or if it was not legally competent for the court to have made such an
order.
[5]
[20]
The applicants contend that the word ‘erroneously’ covers
a matter such as this where,
allegedly, merely for want of appearance
on their behalf the application for leave to appeal was dismissed.
[6]
[21]
The applicants rely solely on the allegations made by Mr Simani who
deposed to an affidavit in
support of the applicants’ case.
[7]
[22]
It bears mentioning that Mr Simani is no longer involved in this
matter on behalf of the applicants
as a different counsel Mr RN
Rathidili drafted and signed the heads of arguments filed on their
behalf and argued the matter before
me.
[23]
During arguments counsel for the applicants submitted that the DJP
did not furnish reasons for
dismissing the application for leave to
appeal so it was erroneously sought or granted. Also, it was granted
in the absence of
the applicants. In any event, so it was submitted,
at common law the court has unlimited powers to rescind a judgment if
it finds
that the merits were not adjudicated upon.
[24]
Summary judgment in this matter was granted on 14 October 2016 by
Maluleke AJ without having
furnished reasons for the judgment. The
order was for payment of a monetary amount, interest and costs. A
prayer for the immovable
property to be declared specially executable
and a writ of execution be issued was postponed
sine die.
[25]
At a later stage the postponed prayer was granted. The applicants
applied for leave to appeal
but it was dismissed.
[26]
The applicants applied for leave to appeal against the summary
judgment only about 8 months later
on 11 May 2017 but without
attaching the reasons for judgment. The reasons for judgment were
also not filed before the matter was
heard by the DJP on 5 December
2018. They also failed to attach it to their founding affidavit or to
the replying affidavit in
this application for rescission before me
although they make specific reference to paragraph 2.10.3 of the
written reasons (dated
30 March 2017) in the latter affidavit. When
preparing to write this judgment I deemed it necessary to have sight
of the reasons
for judgment of Maluleke AJ. The applicants’
attorney was approached by my registrar and he immediately provided a
copy.
Attached to the written reasons was a copy of the first page of
trailing emails exchanged between the first applicant and a member
of
the staff of this court. The first applicant was notified on 4 April
2017 that the reasons for judgment were ready to be uplifted
from the
court. It is safe to assume that the first applicant uplifted them
shortly after 4 April 2017. Why they were not provided
to the court
by the applicants remains a mystery as no explanation was provided
for this failure to do so. It should be noted that
the first
applicant stated he was an attorney and it was also so noted by
Maluleke AJ. He should be aware of the consequences of
what appears
to be a deliberate decision not to file the written reasons from the
time the application for leave to appeal against
the summary judgment
was filed to the time when the matter was heard by the DJP and he
persisted in this course even up to this
application for rescission
was heard.
[27]
The applicants have also persistently not complied with the time
frames set out in the Uniform
Rules and have thereafter filed
applications for condonation. The application for reasons for
judgment was also filed outside of
the time limit of ten days
prescribed in Rule 49(1)(c) and an application for condonation was
filed. Maluleke AJ stated in paragraph
5.4 of the reasons:
‘
Consequently,
I am not inclined to condone the Respondents’ [here the
applicants] non-compliance with the Rules. The request
for reasons is
out of time.’
[28]
However, the learned judge then went ahead and provided the reasons
anyway.
[29]
On each occasion after launching their several applications the
applicants failed to take further
steps to bring them to finality and
it was the bank that then took steps to do so. The bank’s
counsel submitted that this
can be gleaned from the number of times
the applicants take a legal step but then do not pursue it to
conclusion. It was the bank
that set down the applicants’
application for leave to appeal the summary judgment to be heard. It
was the bank’s attorneys
who addressed a letter to the DJP on
08 November 2018 for the application for leave to appeal to be
allocated a date on which it
should be heard. As I said, the DJP
informed the parties that he will himself hear the matter on 05
December 2018 and in fact did
so. A transcript of the proceedings of
that afternoon was obtained by the bank’s attorneys and handed
in to the court. It
was again the bank that set down the application
by the applicants for rescission of the order of the DJP when the
applicants failed
to do so.
[30]
In view of the applicants’ submissions that the DJP did not
furnish reasons for his dismissal
of the application for leave to
appeal it is necessary to quote the transcript of the proceedings in
full:
‘
PROCEEDINGS
HELD ON 05 DECEMBER 2018
[14:23]
COURT:
…
file
an application for leave to appeal. There is no appearance on behalf
of the applicants today, they did not pursue the said
application for
leave to appeal. And it is clear from the record and from the
submissions made by the counsel representing Nedbank
that there are
no reasons for judgment, so in my view this application before me it
is irregular and it is an abuse of the process,
so that the
respondent should not proceed with their judgment that had been
granted in his favour. There is also confirmation from
Digital Audio
Recording Transcription that there was no judgment it is only a order
I fail to understand as to how could the applications
proceed to file an application
for leave to appeal without first obtaining reasons from the acting
judge who made an order on this
matter. In my view this application
before me it is irregular and it is an abuse of court process, it is
just made with the aim
to frustrate. The respondent Nedbank Limited
to proceed with the judgment that was granted in his favour. I
therefor make the following
order –
the application for
leave to appeal is dismissed with costs
.’
[31]
It is immediately apparent that the DJP considered the record before
him and made several findings.
It was found,
inter alia,
that
the applicants had failed to obtain and file Maluleke AJ’s
reasons for granting summary judgment, hence the application
was
irregular. The learned DJP also stated that the applicants were
abusing the process of court and frustrating or delaying the
bank
from pursuing the judgment obtained in its favour.
[32]
It is important to note that the applicants and their erstwhile and
current attorneys were aware
of the application before the DJP. Mr
Simani’s explanation – which I deal with below –
about why he was not present
when the matter was heard are not
convincing at all.
[33]
It is also important to note that the immovable property was sold in
execution on 17 May 2019.
An order rescinding the summary judgment
would ordinarily and in all probability be academic and of no avail
to the applicants.
However, the crux of their defence is that the
bank unlawfully or irregularly debited legal costs to their mortgage
bond account
even before summons was issued without having them
taxed. This was first brought to the bank’s attention by the
first applicant
in response to the letter it sent to the applicants
in terms of
section 129
of the
National Credit Act 34 of 2005
. A
further issue raised by the applicants (albeit in the rescission
application) is that whereas the bank obtained summary judgment
for
R281 304.36 together with interest at the rate of 9.75% per annum
from 1 April 2016, in its answering affidavit in this rescission
application the deponent states:
’
31.
The current outstanding balance due to the Respondent has increased
to R616 321.47 . . . (almost
three times more than the judgment
amount), and the amount in arrears currently stands at R427 409.87 .
. ..’
There is no
explanation as to how the amount increased almost threefold. The bank
itself purchased the attached immovable property
at the
sale-in-execution and it is not apparent from the papers before me
whether that has been accounted for.
[34]
A strict technical approach about the application of the Rules of
court in this instance would
to my mind, go contrary to the
provisions of section 173 of the Constitution of the Republic of
South Africa, 1996 which provides:
‘
Inherent
power
173.
The Constitutional Court
the
Supreme Court of Appeal and the High Court of South Africa each has
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.’
[35]
In
Eke v Parsons
[8]
the Constitutional Court (per Madlanga J) held:
‘
39.
. . . Without doubt, rules governing the court process cannot be
disregarded. They serve an undeniably
important purpose. That,
however, does not mean that courts should be detained by the rules to
a point where they are hamstrung
in the performance of the core
function of dispensing justice. Put differently, rules should not be
observed for their own sake.
Where the interests of justice so
dictate, courts may depart from a strict observance of the rules.
That, even where one of the
litigants is insistent that there be
adherence to the rules. (Footnote omitted) Not surprisingly, courts
have often said “[i]t
is trite that the rules exist for the
courts, and not the courts for the rules”. (Footnote omitted)
40.
Under our constitutional dispensation, the object of court rules is
twofold. The first is
to ensure a fair trial or hearing. (Footnote
omitted) The second is to “secure the inexpensive and
expeditious completion
of litigation and… to further the
administration of justice”. (Footnote omitted) I have already
touched on the inherent
jurisdiction vested in the superior courts in
South Africa. (Footnote omitted)In terms of this power, the High
Court has always
been able to regulate its own proceedings for a
number of reasons, (Footnote omitted) including catering for
circumstances not
adequately covered by the Uniform Rules, (footnote
omitted) and generally ensuring the efficient administration of the
courts’
judicial functions. (Footnote omitted)
[36]
I am of the view that despite the shortcomings and failures of the
applicants it would be in
the interest of justice that they be
provided an opportunity to present their case in the application for
leave to appeal the judgment
and order granted by Maluleke AJ.
Without deciding the issue I will only go so far as to say that the
applicants may well have
prospects of success.
[37]
An issue that deserves comment relates to Advocate Simon Simani
himself. He provided a confirmatory
affidavit to the applicants
verifying his attempts to determine where the application was going
to be heard. In the affidavit he
gives his full name as well as his
identity number and states that he is an ‘Advocate of the High
Court presently carrying
on business at Number 4, 2
nd
Street, Protea Glen Building, Orange Grove.’
[38]
Mr David Blaauw of Nedbank’s attorneys says he could not find
Mr Simani’s name on
the roll of advocates so he contacted the
Legal Practice Council (LPC) on 16 May 2019 and spoke to a lady
called ‘Akhone’.
He says the LPC also searched their
records both with reference to Mr Simani’s name and his
identity number and could find
no record indicating that Mr Simani is
an admitted advocate.
[39]
In the answering affidavit Mr Simani was challenged to produce the
Court Order showing his admission
as an adv ocate. None was
forthcoming g in the replying affidavit nor in any other manner. The
deponent to the answering affidavit
requests that this court instruct
the LPC as well as the National Prosecuting Authority to ‘investigate
and prosecute Simani
since he is clearly conducting a fraud on this
Honourable Court.’ A serious allegation indeed.
[40]
In the replying affidavit the applicants’ response to the
allegations by Nedbank about
Mr Simani is set out in paragraph 68 –
73.
[41]
The applicants say the allegations made against Mr Simani are
‘immaterial’ to their
application. That in my view cannot
be. If it is indeed so that Mr Simani is not a qualified legal
practitioner then it is a material
issue which inevitably must be
investigated. The applicants say they deny the allegations in total.
The applicants’ further
state:
’
69.
The allegations that Advocate Simani’s name could not be found
on the advocate’s roll
do not dispute our allegations are that
a Counsel was briefed to attend to our matter on 05 December 2018.
These allegations only
relate to his registration compliance with the
professional body.’
[42]
The applicants seem to miss the point. The issue is not whether Mr
Simani has complied with registration
with a professional body but
whether he is admitted as an advocate by the High Court or not.
RANCHOD, J
JUDGE OF THE HIGH COURT
Appearances:
Appearance for
applicants:
Adv RN Rathidili
Instructed by BM Mudzuli Attorneys
2
nd
Floor Sammy Marks Square
330 Helen Joseph Street
Pretoria
Appearance for
respondent:
Adv AP Ellis
Instructed by Bezuidenhout Van Zyl &
Associates Inc
c/o Petzer, Du Toit & Ramulifho Attorneys
Hatfield Bridge Office Park
c/o
Church and Richard Streets Hatfield
Pretoria
[1]
Answering affidavit p.70 of paginated bundle at
para 20.
[2]
Answering affidavit p.70 of paginated bundle at
para 21.
[3]
Nyingwa v Moolman NO
1993 (2) SA 508
(Tk) at
510D-G; Naidoo v Matlala NO
2012 (1) SA 143
(GNP) at 153C; Rossitter
v Nedbank Ltd (unreported, SCA case no 96/2014 dated 1 December
2015) at paragraph [16]; Thomani v Seboka
NO
2017 (1) SA 51
(GP) at
58C-E; Occupiers, Berea v De Wet NO
2017 (5) SA 36
(CC) at
366E-367A.
[4]
De Wet v Western Bank Ltd
1979 (2) SA 1031
(A) at
1038D; Tshabalala v Peer 1979 () SA 27 (T) at 30H-31A. See also Wahl
v Prinswil Beleggings (Edms) Bpk
1984 (1) SA 457
(T) at 461D;
Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
1996 (4) SA
411
(C) at 417H-I; National Pride Trading 452 (Pty) Ltd v Media 24
Ltd
2010 (6) SA 587
(ECP) at 593F-594I.
[5]
Athmaram v Singh
1989 (3) SA 953
(D) at 956D and
956I; Promedia Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
1996
(4) SA 411
(C) at 417G-H. In First National Bank of South Africa Ltd
v Jurgens
1993 (1) SA 245
(W) it is stated (at 247D), without
reference to any authority, that she subrule only has operation
where the applicant has sought
an order different from that to which
it was entitled under its cause of action as pleaded.
[6]
Para 18 of the founding affidavit at paginated
p14.
[7]
Affidavit at paginated pages 26-27.
[8]
[2015] ZACC 30.