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[2019] ZAGPPHC 333
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HFS Consulting v L.T.C Harms N.O and Others (98502/2015) [2019] ZAGPPHC 333 (28 June 2019)
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: 98502/2015
28/6/2019
In the matter between:
HFS
CONSULTING
Applicant
and
L.T.C. HARMS N.O.
(DEPUTY
CHAIRPERSON OF THE
APPEAL
BOARD OF THE FINANCIAL
SERVICES
BOARD)
First Respondent
C
DA SILVA N.O.
(DEPUTY
REGISTRAR OF THE
FINANCIAL
SERVICES
PROVIDERS)
Second
Respondent
FINANCIAL
SERVICES
BOARD
Third Respondent
APPEAL
BOARD OF THE
FINANCIAL
SERVICES
BOARD
Fourth Respondent
JUDGMENT
TEFFO,
J:
Introduction
[1]
There
are two applications before me. In the first application which l will
refer to as the main application, HFS Consulting
(“the
applicant”)
seeks to set aside
the ruling of the first respondent dated 2 June 2015 on the basis
that it is unlawful and unconstitutional. It
also seeks ancillary
relief which includes amongst others. an order to compel the second
respondent to provide reasons for certain
decisions. to provide
documentary proof of certain allegations and to do so within 10 (ten)
days from the date of service of the
order. The second application
has been launched by the respondents in the main application. It is
an application for the rescission
of an order that was granted by
this court on 20 November 2017
("the
rescission application'').
[2]
The
applicant in the main application is a consultancy that deals with
financial related issues. Mr H F and Mrs S le Roux are partners
in
the consultancy.
[3]
The
first respondent has been cited in his capacity as the Deputy
Chairperson of the Appeal Board of the Financial Services Board
("FSB").
The
second respondent has been cited in his capacity as the Deputy
Registrar of the Financial Services Providers at the FSB and
the
third respondent is a statutory body established in terms of section
2 of the Financial Services Board Act, 70 of 1990
(“the
FSB Act”)
to oversee the
activities of the financial institutions (other than banks) and, in
particular, to exercise supervision over compliance
with laws
regulating financial institutions and the provision of financial
services. The fourth respondent is a tribunal of the
FSB established
in terms of section 26A of the FSB Act. For convenience's sake the
respondents will be referred to jointly as the
respondents and where
appropriate they will be referred to separately as the first, second,
third and fourth respondents.
[4]
No
relief has been sought against the third and the fourth respondents.
[5]
After
the main application was served on the respondents, a notice of
intention to oppose was filed on behalf of all the respondents.
Subsequently the second respondent filed an answering affidavit. The
first respondent did not file an answering affidavit.
[6]
There were numerous attempts by the applicant to obtain default
judgment against the
first respondent. On the third occasion. counsel
was instructed to oppose the application and it was removed from the
roll. Ultimately
the first respondent filed a notice in terms of Rule
6(5)(d)(iii) of the Uniform Rules of Court. I will deal with the
notice later
in the judgment.
[7]
The
main application was set down for hearing on 17 March 2017. At the
hearing, the court ordered that the matter be removed from
the roll
with costs, including costs of senior counsel on attorney and client
scale. The reason for the court order was, according
to the record,
the fact that the papers were not properly before court in that the
indexes were not properly paginated and the
court and the
respondents' counsel did not have the same bundles of documents. This
aspect will further be dealt with later in
the judgment.
[8]
Subsequent
thereto the applicant in the main application launched an application
to rescind the order of 17 March 2017.
[9]
The
application was served at the offices of the respondents' attorneys
of record on 20 September 2017. No notice of intention to
oppose the
application was filed on behalf of the respondents and the applicant
enrolled the application in the unopposed motion
court on 20 November
2017. The application was heard and the order of 17 March 2017, was
rescinded.
[10] After
obtaining the order, the applicant filed a notice of set down for the
hearing of the main application
dated 21 November 2017 for 5 February
2018 and served it at the offices of the respondents' attorneys. The
set down prompted the
respondents' attorneys to file an application
for the rescission of the order of 20 November 2017 on behalf of the
respondents.
[11] I was
requested by the parties to hear the rescission application first. At
the commencement of the
proceedings I indicated that given the fact
that the two applications were only set down for hearing for two
days, I would hear
all of them first and give judgment later.
[12]
Before I deal with the rescission application, it is prudent to give
the background facts that led
to the main application.
[13] On 20
November 2013 the applicant lodged a complaint with the third
respondent against JOG Trading
(Pty) Ltd (JOG Trading) detailing
certain contraventions which included an illegal insurance business
which was allegedly operated
in collaboration with RMB Structured
Insurance Ltd and RMB Structured Life Limited
("the Insurers"
).
JOG Trading is a furniture retailer and a registered Financial
Services Provider (FSP).
[14] On 14
February 2014 the second respondent declined to pursue the complaint.
A letter was addressed
to the applicant referring it to the previous
similar complaints it had lodged. The second respondent restated his
previous findings
which were included in a letter to the applicant
dated 10 May 2010.
[15] The
applicant then sought to appeal the second respondent's refusal to
provide reasons for not pursuing
the complaint. On 3 April 2014 the
Secretary of the Appeal Board (the Secretary) notified the applicant
that the decision of the
second respondent was not appealable.
[16] On 7
April 2014 the applicant referred the decision of the Secretary to
the Executive Officer of the
third respondent.
[17] Howie
JA, the then Chairperson of the Appeal Board of the FSB, notified the
applicant via the Executive
Officer of the third respondent on 14 May
2014 that the decision by the second respondent was not appealable.
[18]
On 29 September 2014 Howie JA instructed
the Secretary to request submissions from the applicant and the
second respondent regarding
the applicant's right of appeal as an
aggrieved person.
[19]
On 3 November 2014 the applicant lodged
a complaint against Howie JA with the office of the Public Protector.
[20]
Howie JA had retired by then and Harms
JA, the current Deputy Chairperson of the Appeal Board and the Appeal
Panel. issued a ruling
on 2 June 2015 revoking the ruling by Howie
JA. The applicant was advised that an appeal hearing would be
scheduled to deal with
the preliminary points which would relate to
whether the appeals by the applicant are proper appeals.
[21]
The applicant seeks to have this ruling
set aside by means of a review under the Promotion of Administrative
Justice Act, 3 of 2002
(PAJA).
The rescission application
[22] The
parties in this application will for convenience's sake be referred
to as referred to in the main
application. The application was
brought in terms of Rule 42(1)(a) of the Uniform Rules of Court on
the grounds that the order
of 20 November 2017 was erroneously sought
and/or erroneously granted in the absence of the respondents. The
respondents also relied
on common law for the relief sought.
[23]
Although it has always been the stance of the first respondent's
attorney that the application that
was heard on 20 November 2017, was
not served on him and/or the respondents, counsel for the respondents
conceded during argument
that the application could have been served
at his offices. Mr Bloem, the attorney of record of the respondents
stated in his affidavit
in support of the rescission application that
the application was not brought to his attention. It was submitted
that the application
went astray. Consequently, the respondents did
not oppose it and the notice of set down of 20 November 2017 was not
delivered at
the respondents' attorneys' offices.
[24] Mr
Bloem explained in his affidavit that he tried to obtain a copy of
the application that was heard
on 20 November 2017 to not avail
before he filed the application for rescission. He addressed
correspondence to the applicant requesting
it to furnish him with a
copy of the application and he did not receive any response. He also
tried the office of the Registrar
of this Court and he was not
successful. He further stated that at that time he had addressed
correspondence to the first respondent
informing him that he was
waiting for the re-enrolment of the matter by the applicant. He
applied for leave to file a supplementary
affidavit before the
applicant filed its answering affidavit should he be provided with a
copy of the application.
[25]
Unfortunately, the applicant filed its
notice of intention to oppose the application and an answering
affidavit late (on 24 January
2018 and 28 February 2018 respectively
after having been served with the rescission application on 6
December 2017}. Despite the
fact that respondents' attorney of record
requested the applicant to provide it with the copy of the
application which was heard
on 20 November 2016 when it filed its
opposition in the application for rescission, the applicant failed to
do so. No replying
affidavit has been filed. The application only
came to the attention of the respondents' attorney of record on 5
February 2018
when the main application was to be heard. He then made
copies of the application. The respondents were only able to file
their
supplementary founding affidavit on 2 March 2018 together with
an application for leave to file it.
[26]
Although the applicant did not file any
opposing papers to the respondents' application for leave to file a
supplementary founding
affidavit, it opposed the application on the
basis that only three applications are allowed to be filed in terms
of the Rules of
Court and that the filing of the application was an
abuse of the court process. Having considered the application and
after hearing
counsel for the respondents and Ms Le Roux on behalf of
the applicant, I found that it was not in the interest of justice to
allow
the filing of the supplementary founding affidavit. I then
proceeded to hear the application without the supplementary founding
affidavit.
[27]
The respondents contend that after the
order of 17 March 2017 and prior to the order of 20 November 2017,
the applicant did not
address the issues that led to the removal of
the matter from the roll before it re enrolled the matter. The
application of
20 November 2017 constituted an appeal of the order of
17 March 2017. The court on 20 November 2017 was not competent to set
aside
an order that had been executed. The court also substituted the
order of 17 March 2017 with one in terms of which the respondents
have been ordered to pay costs on a scale between attorney and
client. It was submitted that Ms Le Roux who argued the application
on 20 November 2017 misled the court to rescind the order of 17 March
2017
in
that
she did not disclose the correct facts of what transpired
in
court on 17 March 2017. Further to
the above,
it
was
submitted that the applicant should be ordered to pay costs on a
punitive scale on the basis that Ms Le Roux deliberately misled
the
court when she argued the application. She had accused the Judge who
heard the matter on 17 March 2017 of bias and had repeatedly
and in
many ways accused counsel for the respondents and their attorney and
had defamed them in the process. It was submitted that
the deponent
to the founding affidavit in support of the application had perjured
himself. It was further argued that the applicant
should be penalised
for the way it handled the application. In support of his
submissions, counsel for the respondents referred
me to the typed
record of the proceedings that were heard on 17 March 2017
respectively and 20 November 2017 which I will deal
with later in the
judgment.
[28]
In response to the allegations the
applicant contended that the application for rescission does not
disclose a cause of action.
It should be dismissed with costs. It
denied the allegations that the bundle of documents that were before
the court on 20 November
2017 were not proper as alluded to by the
respondents' counsel. The applicant criticised the respondents for
not opposing the application
that was heard on 20 November 2017
despite the fact that the application was served on their attorneys
of record. It was submitted
that the court granted an order after
having satisfied itself that the papers before it had been in order.
It was further submitted
that the application was vexatious.
[29] The
issue for determination is whether the order that was granted on 20
November 2017 in the absence
of the respondents, had been erroneously
sought and granted within the prescripts of Rule 42(1)(a).
[30]
Uniform Rule 42(1)(a) provides:
"The court may, in
addition to any 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."
[31]
The law governing an application for rescission under Uniform Rule
42(1)(a) is trite. The applicant
must show that the default judgment
or order had been erroneously sought or erroneously granted. If the
default judgment was erroneously
sought or granted, a court should,
without more, grant the order for rescission.
[1]
It is not necessary for a party to show good cause under the
subrule.
[2]
Generally a judgment is erroneously granted if there existed at the
time of its issue a fact which the court was unaware of, 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]
[32] On 17
March 2017 the following order was granted:
"The matter be and is
hereby removed from the roll with costs, including
costs
of senior counsel
on the scale between attorney and client."
[33] On 8
May 2017 Judge furnished reasons for the abovementioned order. At
paragraphs 8 to 15 of the reasons,
he explained why he granted the
order. In his view the respondent did not comply with the practice
directives of this Court regarding
the pagination and proper indexing
of the papers. Despite having been properly alerted by the attorneys
of the respondents that
there were numerous problems in the papers,
the applicant failed to reply. He further stated that the respondents
did not receive
a properly indexed and paginated Volume 3 and the
court was not in possession of a properly indexed Volume 5.
[34] In
the application that was heard on 20 November 2017 the following
allegations have been made in the
founding affidavit:
"5.215
During the entire hearing the Honourable Acting Judge failed to
identify
a
single incidence
of an error in indexing or pagination with reference to the court
file. Neither did the Honourable Acting Judge
proffer
a
single such error
to Ms Le Roux for clarification or for correction on the court file.
5.219
Notwithstanding the fact that the Honourable Acting Judge failed
during the hearing to
identify a single index or pagination error
with reference to the court file, failed to stipulate a single such
error to be corrected
by Applicant in order to again enrol the matter
for hearing and which resulted in a court order without legal
certainty,
as
well
as
the fact that the
eventual reasons as provided, related to alleged errors incapable of
being corrected on the court file and, as
a result, the court order
being unenforceable, the Honourable Acting Judge came to the
inexplicable and unwarranted conclusion
that this is a case for a
punitive
costs
order.
5.222
Such conduct gives the unfortunate impression of the court having
selectively denied the
existence of the evidence before the court.
5.224
In view of the said erroneous procedure
as
applied by the
Honourable Acting Judge, the court order
is
subject to an
application for rescission."
[35] Ms Le
Roux conceded during argument that the Judge raised concerns that he
was not in possession of
Volume 5 of the bundle of documents before
him on 17 March 2017. She further conceded that a day prior to the
hearing of the matter,
she went to the Judge's registrar to uplift
the court file. She removed the index with an undertaking to return
it to the Judge's
clerk in the afternoon. The reason for that was to
retype the index. When she returned to the Judge's clerk, he/she
refused to
accept the newly typed index after informing her that the
Judge had taken the file and had left the building. She submitted
that
she had applied for the rescission of the order because she was
under the impression that there had been a procedural mistake. A
lot
had been said about Volume 3 of the papers which I find irrelevant in
that Ms le Roux had ultimately conceded that what she
had submitted
before the court on 20 November 2017 which had resulted in the
rescission of the order of 17 March 2017. was not
what had transpired
in court on that day.
[36]
It is clear from the papers filed and
the record of the proceedings of 17 March 2017 and 20 November 2017
that the court that heard
the application on 20 November 2017 had
been misled about what had transpired in court on 17 March 2017. Had
the correct set of
facts been placed before the court on 20 November
2017, the court would not have rescinded the order that was granted
on 17 March
2017. The court that heard the matter on 20 November 2017
had not been fully informed of what had happened on 17 March 2017. Ms
Le Roux had an obligation to disclose sufficient relevant facts to
the court that heard the matter on 20 November 2017 as the
application was not opposed. The court that heard the application
regarded it as a simple unopposed application while it was not.
[37]
The order of 17 March 2017 had been
rescinded under Uniform Rule 42{1)(a) when there had been
representation on behalf of the applicant
on that day. Uniform Rule
42(1)(a) was therefore not applicable.
[38]
After receiving the court order of 17
March 2017 and the reasons for the order, it was not competent for
the applicant to launch
an application for a rescission of the order.
The applicant had to deal with the concerns which were raised by the
court. re-arrange
the papers and re-enrol the main application for
hearing. The order of 17 March 2017 was not a final order. It was an
interim order
which could not be rescinded.
[39] I am
persuaded that the order of 20 November 2017 was erroneously sought
and granted in the absence
of the respondents It should therefore be
rescinded in terms of Uniform Rule 42(1)(a).
[40]
The respondents had also sought an order
that the notice of set down dated 21 November 2017 be set aside. It
is my view that the
setting aside of the above set down is of no
consequence in that I had been able to hear the main application and
the rescission
application together.
[41]
There was also an application for
striking out certain parts of the applicant's answering affidavit.
Counsel for the respondents
did not pursue the application but
referred the court to the transcribed record of the proceedings of 17
March 2017 and 20 November
2017 and asked for an order that the
applicant should be penalised with a punitive costs order for saying
unpalatable things about
the Judge who granted an order against the
applicant on 17 March 2017 and blaming him for what had transpired in
court on that
day.
[42] It
suffices from the subparagraphs referred to
supra
(at paragraph
[34] of the judgment) that Ms Le Roux who had argued the rescission
application on 20 November 2017 had blamed the
Judge who had granted
the order of 17 March 2017 of what had transpired in court on that
day. The transcribed record of that day
and the reasons that had been
provided for the order, do not support the allegations that had been
made by Ms Le Roux in court
on 20 November 2017. They are also not
supported by the concessions she had made when the rescission
application was argued before
me. In view of the allegations that had
been made by Ms Le Roux in court on 20 November 2017 and the manner
in which the application
had been handled, I am persuaded to order
the respondent to pay costs on a punitive costs order.
The main application
[43] The
applicant contends in her papers that the ruling by the first
respondent was issued without any
legislative empowerment 13
(thirteen) months subsequent to the applicant's notice of appeal. It
was submitted that the ruling denied
the applicant the right to
exhaust the appeal procedures as stipulated in section 7(2)(a) of
PAJA and the right to obtain reasons
from the decision-maker, the
second respondent. The applicant further submitted that the
intervention in the appeal procedures
by the first respondent's
ruling, violated its right to fair administrative procedure in terms
of section 33 of the Constitution.
It therefore did not have any
other alternative but to approach this Court with an application for
an order to declare the ruling
of the first respondent unlawful and
unconstitutional.
[44]
Allegations have been made that the
ruling by the first respondent, prevented the applicant from
utilising the peremptory procedures
stipulated in the Regulations.
Furthermore, that there is no empowerment provided for in the FSB Act
and the Regulations enabling
the first respondent to intervene in the
appeal procedures, and neither is there an inherent jurisdiction in
section 268(1)(a)
6 and 7 of the FSB Act to issue the ruling.
According to the applicant, the ruling provides for the points
in
limine
to be heard by a panel prior
to the internal remedy having been exhausted. These points
in
limine
relate to the applicant's
rights which are whether it has
locus
standi,
whether its request for
reasons is valid and whether it has the right to obtain reasons. It
was submitted that a hearing on these
rights involve a review of an
administrative action for which the Appeal Board is only empowered to
do subsequent to the internal
remedy having been exhausted.
[45]
Further contentions made were that it is
the applicant as the appellant that drives the appeal, that decides
whether it disagrees
with a decision and thus determines whether it
is aggrieved as stipulated in section 26(1) of the FSB Act and not
the Appeal Board.
The Appeal Board is only empowered to issue a
judgment or a ruling in terms of section 26 8(15) of the FSB Act and
that can only
be done subsequent to the internal remedy having been
exhausted.
[46] As
regards the second respondent, it was contended that she had failed
to respond to the applicant's
notice of appeal in terms of Regulation
2.1 dated 28 March 2014 against her decision and provide a decision.
She had kept quiet
for about two years until she was served with the
current application. She had only responded with an answering
affidavit. The
applicant further contended that the second
respondent's decision was that all premiums which had been charged by
JOG Trading,
had been paid over to the insurers. According to it, the
decision that had been taken by the second respondent. was a denial
that
JOG Trading operated an illegal insurance business. It was
submitted that the second respondent had denied the liability of JOG
Trading's financial statements reflecting that all such premiums were
recorded as insurance income but had been unable to provide
documentary evidence to the contrary. The applicant further submitted
that the second respondent failed to comply with her statutory
obligation to provide reasons in terms of Regulation 2(3).
[47] The
Executive Officer of the third respondent (the Executive Officer) had
been criticised for supporting
the decisions of the Secretary and the
second respondent and failing to address the issue of the Secretary's
empowerment to make
the decision as per her letter dated 3 April
2014. It was contended that the second respondent declined to
entertain a valid complaint
which was lodged with the third
respondent
[48]
In the answering affidavit filed by the
second respondent, it was contended that the applicant's appeal
before the FSB Appeal Board
is time barred and the Appeal Board does
not have the power to condone non-compliance thereof. This renders
the current application
moot. It is further contended that the
applicant has launched the main application as a review application
in terms of the Promotion
of Administrative Justice Act, 3 of 2000
(PAJA). The application is time barred in that the court only has the
power to entertain
the application if the period of 180 days
stipulated in section 7(1)(b) of PAJA is extended by means of a
condonation application.
The applicant did not file an application
for condonation.
[49]
According to the second respondent, the
appeal by the applicant is fatally defective and the Appeal Board
should rule on this. It
was contended that the applicant attempts to
circumvent a ruling by the Appeal Board by seeking the relief it
seeks in the current
application.
[50]
It was submitted that the issues for
determination by the Appeal Board in the pending appeal relate to the
provision of reasons
by the Registrar and whether the appeal is valid
or not. They overlap with the relief sought in these proceedings. It
is contended
that the applicant seeks to circumvent the appeal
process by seeking an order from the court to compel the second
respondent to
provide reasons and documents in response to the appeal
under circumstances where the provision of reasons as contemplated in
Regulation
2(3) of the Regulations and documents for the Registrar's
decision are not required.
[51]
The second respondent further contended
that her refusal to further pursue the applicant's complaint was not
a decision as contemplated
in section 39 of the FAIS Act. The
applicant may be a disgruntled person but that does not amount to an
"aggrieved person"
for
purposes of an appeal. An aggrieved person relates to a person who
has a legitimate legal grievance. It was further contended
that the
applicant lacks
locus standi
to
pursue the appeal in that the second respondent's decision has not
adversely affected any rights of the applicant.
The condonation application
[52]
For
conveniences sake the parties in this application have been referred
to as in the main application. As alluded to earlier in
the judgment,
the first respondent did not file an answering affidavit to the main
application. The answering affidavit was only
filed by the second
respondent. The attorneys for the applicant enrolled the main
application against the first respondent for
hearing on 18 August
2016 in the unopposed motion court. The notice of set down was served
on the respondents' attorneys on Friday,
12 August 2016. The
respondents' attorneys served and filed a notice in terms of Rule
6(5)(d)(iii) on the applicant's attorneys
on 17 August 2016. The main
application was therefore postponed
sine
die
on 18 August 2016.
[53] It
was submitted on behalf of the first respondent that the condonation
application was only launched
at the instance of the applicant's
attorneys. It is contended that the notice in terms of Rule
6(5)(d)(iii) was filed as a direct
result of the applicant's
enrolment of the application against the first respondent only, under
circumstances where the whole application
(the main application) is
being opposed and the issues are not divisible. The main application
against the first respondent was
enrolled on short notice and the
first respondent's notice in terms of Rule 6(5)(d)(iii) was served
and filed within two days of
the enrolment of the application. There
was, according to the first respondent, no delay at all.
[54]
Further contentions made were that the opposing affidavit filed by
the second respondent on 11 February
2016 was in opposition of the
entire application and all the relief sought by the applicant. No
replying affidavit had been filed
in the main application. Since May
2016 the parties' legal representatives have been in discussion about
a possible settlement
of the matter. The discussions thereof have
been with the applicant’s erstwhile attorneys of record. Finck
Attorneys. The
applicant's new attorneys of record, Laas Doman
Attorneys, came on record in June 2016 while Finck Attorneys were
still on record.
Finck Attorneys only withdrew as the applicant's
attorney of record in August 2016. The discussions did not involve
the first respondent
as he has no personal interest in the outcome of
litigation save for the issue of costs. No formal steps had been
taken by either
of the parties subsequent to the filing of the
answering affidavit by the second respondent. The notice in terms of
Rule 6(5)(d)(iii)
could not be filed at an earlier stage because all
the issues had been dealt with in the answering affidavit filed by
the second
respondent and the issues are indivisible. The same issues
have to be debated again in the case against the second respondent.
The applicant has therefore not suffered any prejudice.
Opposition of the condonation
application
[55] The
applicant opposes the condonation application for the late filing of
the first respondent's notice
in terms of Rule 6(5)(d)(iii) on the
following grounds: That the main application was served on the first
respondent personally
on 10 December 2015. A notice of intention to
oppose the main application was served and filed on behalf of all the
respondents
on 6 January 2016. No answering affidavit was served and
filed by the respondents and the applicant set the main application
down
for hearing on 28 January 2016 in the unopposed motion court. On
27 January 2016 the respondents' attorneys sought an indulgence
until
29 January 2016 from the applicant's attorneys to file the opposing
papers. The main application was therefore removed from
the roll and
the costs were reserved. The respondents again failed to file their
opposing papers by 29 January 2016 and the main
application was again
set down for hearing on 12 February 2016 in the unopposed motion
court.
[56] On 11
February 2016 an answering affidavit by the second respondent was
served and fifed. The main
application was then removed from the roll
on 12 February 2016.
[57] As a
result of the first respondent's failure to file his opposing papers,
Laas Doman Attorneys, the
applicant's erstwhile attorneys who took
over from Finck Attorneys, served a notice of set down on the
respondents' attorneys on
12 August 2016 stating that the application
against the first respondent was enrolled for hearing on 18 August
2016. A notice in
terms of Rule 6(5)(d)(iii) was served and filed on
17 August 2016 without an application for condonation. By agreement
between
the parties, the application was postponed and costs were
reserved.
[58] The
application for condonation was served on the applicant's erstwhile
attorneys Laas Doman Attorneys
on 30 August 2016.
Degree of lateness
[59]
The applicant contends that the first
respondent had failed to file his opposing papers for a period that
exceeded six months. He
notified the applicant of his intention to
oppose the application on 6 January 2016. He had until 26 January
2016 to file his opposing
papers. The notice
in
terms of Rule 6(5)(d)(iii) was only
served on 17 August 2016 without an application for condonation. The
application for condonation
was eventually served on 30 August 2016
and the period from 26 January 2016 to 17 August 2016 is 29 weeks.
The applicant further
submitted that the affidavit in support of the
condonation application did not stipulate the period of delay.
Explanation for the delay
[60]
The
fact that Mr Bloem deposed to an affidavit in support of the
condonation application, and that the allegations thereof were
not
confirmed by the first respondent was criticised. The applicant
relied on the judgment of Joni and others v Servest (Pty) Ltd
t/a
Fica Quality Cleaning Services
[4]
in support of its contention.
[61] It
was contended that the affidavit of Mr Bloem is replete with
contradictions. According to him there
was no delay in filing the
notice in terms of Rule 6(5)(d)(iii) and as a result the period of
delay was not stipulated. The applicant
submitted that the averments
made on behalf of the first respondent in support of the condonation
application, do not reflect a
bona
fide
application
for condonation. It was contended that the allegations by Mr Bloem
that there was no unreasonable delay in filing the
notice in terms of
Rule 6(5)(d)(iii) on 17 August 2016 are contradictory to his earlier
allegations that there was no delay in
filing the notice.
[62]
The allegations that the Rule
6(5)(d)(iii) notice could not have been filed earlier because the
second respondent's answering affidavit
dealt with the entire
application were denied. It was contended that the first respondent
did not file an affidavit confirming
that the second respondent's
affidavit was also filed on his behalf and it was not mentioned
anywhere in the second respondent's
affidavit that the affidavit was
also deposed on behalf of any other respondent, including the first
respondent. The affidavit
confirms that the second respondent's
involvement originates from her position as Deputy Registrar of the
FSP. A submission was
made that the answering affidavit by the second
respondent, does not reflect any contentions to rebut the applicant's
allegations
in respect of the first respondent's ruling of 2 June
2015. It was further submitted that it would be improper and
impossible for
an employee of the FSB to proffer contentions as to
the validity of a ruling or judgment issued by the Appeal Board,
whose very
purpose and function as an independent and impartial
tribunal is to judicially review administrative actions in terms of
PAJA.
[63]
The applicant contended that the notice
in terms of Rule 6(5)(d)(iii) has the effect that Mr Bloem could not,
at any rate, have
made a contention of reliance on the answering
affidavit of the second respondent. The first respondent had failed
to give notice
of his intention to raise questions of law. He gave
notice on 6 January 2016 to oppose the application and to deliver an
answering
affidavit in terms of Rule 6(5)(d)(i) and (ii).
[64]
It was contended that the allegation by
Mr Bloem that the first respondent would not have opposed the matter
because he has no personal
interest in the outcome thereof, as Deputy
Chair of the Appeal Board, he is never personally involved and does
not oppose matters
or file affidavits, and that had it not been for
the prayer for costs, he would not have opposed the matter, are
direct contradictions
to his notification on 6 January 2016 to oppose
the matter and to file an answering affidavit.
[65]
It was submitted that Mr Bloem's
founding affidavit does not provide any explanation for the first
respondent's failure to file
an answering affidavit as he had
undertaken to do.
[66]
It was contended that Mr Bloem's
affidavit does not support the request for condonation as prayed for
in the application.
Prospects
of success
[67]
The following submissions were made in
this regard: Mr Bloem's affidavit in support of the application for
condonation for the late
filing of the Rule 6(5)(d)(iii) notice, does
not reflect a single contention as to the prospects of success with
regard to the
questions of law referred to in the notice.
The importance of the case
[68] The
applicant contends that Mr Bloem's affidavit does not reflect any
explanation as to the importance
of the case, such as, why the first
respondent regards it as important to have issued a ruling of 2 June
2015, why the first respondent
regards it as important that the court
should find its ruling of 2 June 2015 to be lawful, why the first
respondent regards it
as important for the applicant not to be
allowed to utilise the prescribed appeal procedures. why the first
respondent regards
it as important for second respondent not to be
obliged to provide reasons for her decisions in terms of Regulation
2.3 and thus
section 33 of the Constitution, and why he regards it as
important for the Appeal Board not to be subjected to section 8(1)(d)
of PAJA in judicially reviewing an administrative action, including
the rights of the parties, subsequent to the appeal procedures
having
been exhausted.
Prejudice
[69]
The allegations that the applicant did
not suffer prejudice as a result of the delay by the first respondent
to file opposing papers
are denied. The applicant contends that it
has suffered prejudice as a result of the delay thereof for over a
period of 29 weeks,
which included the repeated enrolment of the
matter in the unopposed motion court for which Mr Bloem failed to
provide any plausible
and reasonable explanation.
[70]
It was further contended that Mr Bloem's
affidavit filed on behalf of the first respondent, does not give any
explanation for any
prejudice that the first respondent may suffer
should the application for condonation not succeed. Instead, the
affidavit states
that the first respondent does not have any interest
in the outcome of the litigation.
The law
The condonation application
[71]
Courts
have a discretion whether or not to grant condonation and the
discretion thereof, must be exercised judicially on a consideration
of the facts of each case.
[5]
In essence, it is a matter of fairness to both parties
[6]
.
[72]
Factors
which the courts have to consider in an application for condonation
are the degree of non-compliance, the explanation for
the delay, the
prospects of success, the importance of the case, the nature of the
relief sought. the other party's interest in
finality, prejudice to
the other side, the convenience of the court, as well as any other
relevant factors.
[73]
In
Ferris v First
Rand Bank Ltd,
[7]
the Constitutional Court held that lateness is not the only
consideration in determining whether an application for condonation
may be granted. It held that the test for condonation is whether it
is in the interest of justice to grant it and in this regard,
the
applicant's prospects of success and the importance of the issue to
be determined are relevant factors.
Analysis
[74]
The main application consists of the
founding affidavit, the answering affidavit by the second respondent,
the notice in terms of
Rule 6(5)(d)(iii) filed by the first
respondent, the condonation application for the late filing of the
Rule 6(5)(d)(iii) notice
and the application to have certain
paragraphs of answering affidavit to the condonation application
struck out.
[75]
Counsel for the respondents has
abandoned the application to strike out certain paragraphs of the
answering affidavit in the condonation
application. I will therefore
first deal with the application for condonation.
The condonation application
[76]
The factors to be considered in an
application for condonation are not individually decisive. They are
interrelated and must be
weighed one against the other.
Degree of lateness
[77]
While the applicant contends that the
notice in terms of Rule 6(5)(d)(iii) was filed 29 weeks late and that
the first respondent
was obliged to file the answering affidavit
subsequent to filing the notice to oppose the main application, the
first respondent
disagrees. He contends that the answering affidavit
filed by the second respondent dealt with the issues at hand. The
issues are
indivisible and the affidavit was filed on behalf of all
the respondents after the notice to oppose was filed on behalf of all
the respondents. It was submitted that the notice in terms of Rule
6(5)(d)(iii) was only filed 2 (two) days after the first respondent's
attorneys were served with a notice of set down for the enrolment of
the application against the first respondent in the unopposed
motion
court at the instance of the applicant's erstwhile attorneys, Laas
Doman Attorneys. It was argued on behalf of the first
respondent that
the notice was not necessary in that the first respondent was not
obliged to file an answering affidavit as alluded
to by the
applicant.
[78]
On page 358 of the bundle of documents.
vol. 4 par 81, Mr H F le Roux concedes that the matter is
indivisible.
[79]
It is clear from the papers filed of
record that the first respondent is the Deputy Chairperson of the
fourth respondent and the
Chairperson of the Appeal Panel which would
still be seized with the appeal the applicant intends pursuing. He
would not, on that
basis, file affidavits in opposition of
applications of this nature as that would be an invitation for him to
descend into the
arena as contended to by the respondents. It is
evident from the papers filed of record that the first respondent was
not involved
in the matter until he issued the ruling. The matter was
dealt with by the second respondent. She was the correct party to
file
an answering affidavit which dealt with the issues at hand. The
issues raised revolve around the same issues that have been raised
by
the second respondent in the main application and applies to all the
respondents. Had the first respondent also filed an answering
affidavit, the issues would have been repeated. The submissions made
lose sight of the roles each of the respondents play in their
different capacities.
[80]
There is therefore, merit in the
submissions made on behalf of the first respondent. The notice in
terms of Rule 6(5)(d)(iii) was
filed on 17 August 2012 without an
application for condonation. The condonation application was filed on
30 August 2012. The delay
thereof was not unreasonably long as
alluded to by the applicant.
Explanation for the delay
[81]
The applicant has not contended that Mr
Bloem was not duly authorised to oppose the main application on
behalf of the respondents
including the first respondent.
[8]
The notice in terms of Rule 6(5)(d)(iii) addressed questions of law.
It had been correctly submitted on behalf of the first respondent
that by virtue of the position he holds at the Appeal Board of the
FSB, the first respondent did not have to file an affidavit
in
opposition of matters of this nature to avoid descending into the
arena. Mr Bloem, his attorney, was the person competent to
depose to
an affidavit in support of the application for condonation. ln my
view, it was not necessary for the first respondent
to confirm the
contents of Mr Bloem's affidavit. The judgment of Joni and others
[9]
Irelied on by the applicant, is distinguishable. It follows that the
applicant's assertion that the first respondent was required
to
confirm Mr Bloem's authority to depose to an affidavit in support of
the condonation application on his behalf, has no merit.
[82] Mr
Bloem explained that the notice in terms of Rule 6(5)(d)(iii) was
filed 2 (two) days after he had
been served with the notice of set
down enrolling the matter in the unopposed motion court on 18 August
2016 . Immediately thereafter,
at the instance of the applicant's
erstwhile attorneys, he filed an application for condonation. He
explained why he did not find
it necessary to file the notice in
terms of Rule 6(5)(d)(iii) earlier in that according to the first
respondent, the affidavit
filed by the second respondent dealt with
all the issues raised in the entire application. The Rule
6(5)(d)(iii) was only filed
after Mr Bloem realised that the
applicant was insistent in obtaining judgment against the first
respondent. It cannot, therefore,
be said that the period of delay
was not stipulated. For the same reason, the allegation that there
has been no explanation why
the first respondent did not file an
answering affidavit, has no merit.
[83]
Issues had been raised that Mr Bloem
made contradictory statements in his affidavit in support of the
application for condonation,
in that while he mentioned that there
was no delay in filing the notice in terms of Rule 6(5)((d)(iii), he
also mentioned that
the delay was not unreasonable. Mr Bloem's
affidavit should be read in context. His explanation is that while
according to the
first respondent, it was not necessary to file the
notice in terms of Rule 6(5)(d)(iii), he filed it eventually due to
the insistence
of the applicant in trying to obtain default judgment
against the first respondent. The notice was filed 2 (two) days after
he
was seNed with the notice of set down of the main application
against the respondent in the unopposed motion. The application for
condonation was filed on 30 August 2016. According to Mr Bloem there
was no delay in filing the notice and if there was a delay,
the delay
was not unreasonably long. I therefore do not find any contradiction
in the statements made.
[84]
The remainder of the issues are a
repetition. The papers filed of record indicate that a notice of
intention to oppose the main
application, was filed on behalf of all
the respondents. The first respondent has never individually
undertaken to file opposing
papers. The issues raised by the second
respondent such as the contention that the main application is time
barred, are applicable
to all the respondents. It is my view that the
reminder of the issues raised by the applicant, do not have any
merit.
Prospects of success
[85]
The notice in terms of Rule 6(5)(d)(iii)
reads:
"Kindly take notice that
the first respondent gives notice of questions of Jaw militating
against the granting of the relief
sought by the applicant.
1.
The
applicant seeks an order that the first respondent's ruling of 2 June
2015 be declared unlawful and unconstitutional and be
set aside. The
relief includes
a
constitutional
issue which requires compliance with Rule 16A. There has been no such
notice.
2.
The
first respondent's ruling
was
to
the effect that:
2.1
He revoked a prior ruling by
Howie JA (acting as Chairperson of the Appeal Board) to the effect
that the applicant's appeal related
to a decision which is not
appealable and that he lacked locus standi;
2.2
The first respondent's ruling
provided the applicant with the opportunity of a hearing on the
preliminary issues relating to the
appealability of the second
respondent's decision and the appellant's locus standi.
2.3
In making the aforesaid ruling
the first respondent acted in terms of sec 268(1)(a),
sec
268(6) and sec 268(7) of the
Financial Services Board Act,
97
of
1990. The ruling is therefore supported by law and does not Jack
legality.
2.4
The applicant's review of the
first respondent's ruling constitutes a review of an administrative
action in terms of the Promotion
of Administrative Justice Act, 3 of
2000 (PAJA), which review had to be brought in terms of sec
7
without delay and not later than 180
days from the date from which the applicant became aware of the
decision. The review is time
barred and no condonation for
non-compliance with the time periods
has
been sought.
2.5
The claim for costs
is
not competent in law. In making the
aforesaid ruling the first respondent
was
exercising statutory powers in terms
of sec 26B(1)(a), (6) and (7) of the Financial Services Board Act, 97
of
1990
in his capacity as Deputy Chair of the Appeal Board. The first
respondent, in making the ruling, falls within the indemnification
in
sec 23 of the FSB Act and no allegations have been made to the
contrary."
[86]
The applicant contended that Mr Bloem's
affidavit in support of the application for condonation, did not
address the prospects of
success with regard to the questions of law
referred to in the notice in terms of Rule 6(5)(d)(iii). On behalf of
the first respondent,
Mr Bloem correctly contended that the success
or otherwise of the legal contents set out in the notice in terms of
Rule 6(5)(d)(iii)
are all matters for legal argument. They cannot be
dealt with in an affidavit but in the heads of argument.
[87]
The applicant has criticised the issuing
of the ruling by the first respondent that it is an unlawful
interference with the appeal,
it has set aside the regulation, it is
an impermissible review, it is an initiation of the appeal by the
first respondent, etc.
According to the applicant, the hearing had to
precede the issuing of the ruling. The applicant contends that the
ruling reflects
a misrepresentation and a unilateral decision by the
first respondent and
mala fides
by
the first respondent. 1n my view, there is no basis for this
criticism.
[88] It
was submitted on behalf of the first respondent that the ruling
issued by him is a practice directive
and that the issuing thereof is
an exercise of a statutory power by the Appeal Board in terms of
section 268(7) to regulate its
own processes and determine the
procedure for hearing the appeal. It is a procedural ruling which is
supported by law and does
not lack legality as contended by the
applicant.
[89]
In terms of the provisions of section
268(7) the Chairperson of a panel subject to this Act, determines the
procedure for hearing
the appeal.
[90]
It was argued on behalf of the first
respondent that the ruling thereof tends to offer an opportunity to
the applicant to be heard.
Without the ruling, there would be no
hearing. lt was pointed out that if the ruling granted by the first
respondent was to be
set aside, Howie J's ruling would stand. As per
Howie J's ruling, the applicant lacks
locus
standi
to appeal. The position would
then be that the applicant would not have an appeal hearing before
the FSB Appeal Board. It will be
without any further remedy in terms
of PAJA as any review in terms thereof, has lapsed. If the applicant
sought to pursue review
proceedings in the High Court, such
proceedings should have been instituted without undue delay and not
later than 180 days after
the decision of the second respondent not
to give reasons to it.
[91]
There is merit in the submissions made
on behalf of the first respondent.
[92]
l find that there are prospects of
success in the application for condonation.
The importance of the case
[93]
The issues raised by the applicant in
this regard are without substance. Without repeating what has been
said above, it is clear
from the submissions made on behalf of the
first respondent that the ruling was issued in order to revive the
appeal by the applicant
before the appeal board. The ruling thereof,
does not lack legality as contended to by the applicant. It was
therefore important
to issue such a ruling.
Prejudice
[94]
The first respondent has explained its
position regarding the matter_ The respondents had long filed their
notice of intention to
oppose the main application. The second
respondent’s affidavit which addresses the allegations made in
the main application,
had been filed as early as 11 February 2016.
The insistence by the applicant to enrol the application against the
first respondent
in the unopposed motion court because of his alleged
failure to file an answering affidavit caused the delay according to
the first
respondent. No replying affidavit had been filed in this
matter. The allegations made by Mr Bloem that after the filing of the
answering affidavit, the attorneys of the respective parties had
discussions about the matter to try and settle it, were not contested
in the answering affidavit. There can be no doubt that no prejudice
has been suffered by the applicant in this regard.
[95]
The first respondent is merely showing
the court that it has always been his intention to oppose the main
application. If this application
is not granted, the applicant will
still persist with the enrolment of the main application in the
unopposed motion court and the
first respondent will suffer prejudice
if an order is granted against him in circumstances where the main
application against all
the respondents is indivisible.
[96]
Under the circumstances I am of the view
that it is in the interest of justice that I should grant condonation
for the late filing
of the notice in terms of Rule 6(5)(d)(iii).
The main application
The Rule 6(5)(d)(iii) notice
[97] The
applicant has filed a Rule 16A notice. Paragraph 1 of the notice has
been addressed.
[98] The
same issue that was raised by the second respondent in her answering
affidavit regarding the fact
that the application by the applicant
was launched more than 180 days after the date of the decision by the
second respondent has
been raised in the Rule 6(5)(d)(iii) notice. It
was argued that no application for condonation has been filed and
that without
an extension of the 180 days in terms of section 9(1)(b)
of PAJA, the court is precluded from entertaining the application.
[99]
Where PAJA is applicable, the common law
delay rule finds its basis in PAJA.
[10]
Section 7(1) of PAJA provides:
"(1)
Any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable
delay and not later than 180 days
after the date
-
(a)
subject
to subsection 2(c), on which any proceedings instituted in terms of
internal remedies as contemplated in subsection 2(a)
have been
concluded; or
(b)
where
no such remedies exist, on which the person concerned
was
informed of the administrative
action, became aware of the action and the reasons for it or might
reasonably have been expected
to have become aware of the action and
the reasons."
[100] Section 9(1)
provides that the period of 180 days referred to in section 7 may be
extended for a fixed period
by agreement between the parties or by a
court on application by the person concerned. ln terms of section
9(2) the court may grant
an application in terms of section 9(1)
where the interests of justice so require. In
OUTA
[11]
the court
referred to the two-stage enquiry at common law and said:
"Up to a point, I think, s
7(1) of PAJA requires the same two-stage approach. The difference
lies, as I see it, in the Legislature's
determination of
a
delay exceeding
180 days
as
per
se unreasonable. Before the effluxion of 180 days, the first enquiry
in applying
s
7(1) is still
whether the delay (if any)
was
unreasonable. But
after the 180 day period the issue of unreasonableness
is
pre-determined by
the Legislature; it is unreasonable per
se.
It follows that
the court is only empowered to entertain the review application if
the interest of justice dictates an extension
in terms of s 9. Absent
such extension the court has no authority to entertain the review
application at all. Whether or not the
decision
was
unlawful no
longer matters.
[101]
In
Aurecon
South Africa (Pty) Ltd v Cape Town City
[12]
the court held
that section 7(1) unambiguously refers to the date on which the
reasons for administrative action became known or
ought reasonably to
have become known to the party seeking its judicial review. The court
further held that the plain wording of
these provisions simply does
not support the meaning ascribed to them by the court
a
quo,
that the
application must be launched within 180 days after the party seeking
review became aware that the administrative action
in issue was
tainted by irregularity.
[102]
The applicant seeks to review and set
aside the ruling issued by the first respondent on 2 June 2015 in
terms of the provisions
of PAJA. The ruling came to the applicant's
attention on 2 June 2015. The application was only issued on 9
December 2015 more than
180 days after the applicant had acquired
knowledge of the ruling of the first respondent. In terms of the
decision of
Aurecon
[13]
the 180 days referred to in section
8(1) of PAJA starts running from the date the party seeking to review
the decisionhad acquired
knowledge of the decision or ought to have
acquired it and not from the date upon which the applicant became
aware of the decision
being tainted There is no agreement between the
parties for the extension of the period of the 180 days as required
by section
9(1) of PAJA and neither is there an application for the
extension. It therefore follows that this Court has no authority to
entertain
the review application at all.
[103]
Counsel for the respondents raised some
concerns regarding certain averments that have been made in the
applicant's answering affidavit
to the first respondent's condonation
application. Initially the first respondent sought to strike out the
paragraphs where the
averments had been made. The application was
abandoned during argument. The paragraphs referred to are the
following:
Par 55.20.2
"On this
basis
alone, the ruling
reflects
a
misrepresentation
and
a
unilateral decision by First
Respondent."
Par 55.21.4
"From this it
is
evident that the
Office of the Public Protector was deliberately brought under the
wrong impression that the ruling was lawful and
enforceable. First
respondent failed to notify said office of his subsequent
clarification of the ruling being simply
a
practice
directive."
Par 55.28
"The ruling and its
procedures are unlawful and reflects on conduct of
a
mala fide nature
and certainly not in compliance of the requirement for impartiality·.
Par 56.25
"The ruling issued by
First Respondent is simply the product of an unlawful conduct
..."
[104]
Submissions were made that the
allegations are vexatious and scandalous. They are without any
factual basis. It was contended that
the first respondent had been
accused of deliberately misleading the Public Protector, being
mala
fide
and that the allegations
thereof are defamatory of the first respondent. On this basis,
counsel for the respondents asked for costs
on a punitive scale.
[105]
This matter was enrolled to be heard for
two days. After having heard arguments on the first day, on the
second day while the matter
was still being argued, Mrs Le Roux
decided no longer to argue the matter further on the basis that she
was anticipating the court's
ruling on the rescission application.
She and Mr Le Roux then walked out of the court room. Mrs Le Roux
indicated that she was
no longer ready to continue to argue the
matter further. The court continued hearing the arguments on behalf
of the respondents.
[106]
This conduct of Ms Le Roux prompted
counsel for the respondents to ask for costs against Mr and Mrs Le
Roux jointly and severally.
[107]
The concerns raised on behalf of the
respondents regarding the averments made in the applicant's answering
affidavit opposing the
first respondent's condonation application
have merit taking into account the serious nature of the allegations
made against the
first respondent. Litigants should refrain from
making allegations of this nature in their papers. I am inclined
under the circumstances
to order the applicant to pay costs of
opposing the condonation application on attorney and client's scale.
[108]
The court takes displeasure at Mrs Le
Roux's conduct for not finalising her argument and leaving the court
room with her husband
while the proceedings were still on. This kind
of conduct should be discouraged. Mrs Le Roux who is not a legal
practitioner, and
has no clue as to how legal proceedings are
conducted, and also lacks the requisite decorum to address the court,
was effectively
disrespectful. The conduct thereof warrants a cost
order against the applicant together with Mr and Mrs Le Roux jointly
and severally,
the one paying the other to be absolved.
[109]
In the result the following order is
made:
1.
The application for the rescission of an
order that was granted by this Court on 20 November 2017 is granted
with costs.
2.
Condonation for the late filing of the
Rule 6(5)(d)(iii) notice by the first respondent is granted with
costs on attorney and client
scale.
3.
The application to review and set aside
the ruling of 2 June 2015 by the first respondent is dismissed.
4.
The applicant together with Mr and Mrs
Le Roux are ordered to pay the costs of the review application
jointly and severally, the
one paying the other to be absolved.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For
the applicant S
le Roux
acting in person
For
the respondents
E C Labuschagne SC
Rooth & Wessels Inc
Heard
on
18 February 2019
Handed
down on
28 June 2019
[1]
Bakoven Ltd v GJ Howes (Pty) Ltd
1992 (2) SA 466
(E) at 471G.
[2]
National Pride Trading 452 ( Ply) Ltd v Media 24 Ltd
2010 (6)
SA (ECP) at 5971-5986
[3]
Erasmus. Superior Court Practice
2 ed (Revision Service 1,
2015) Vol 2 at 01-567. See also
Naidoo v Mat/ala No
2012 (1)
SA 143
(GNP) at 153C.
[4]
(C833/05 (2011) ZALCCT 19 (16 August 2011)
[5]
It is ever the court's duty to do justice between man and man. See
Oriani-Ambrosini MP v Sisulu MP, Speaker of the National Assembly
2013 (1) BCLR 14 (CC)
[6]
Cairn's Executors v Gaam
1912 AD 181.
[7]
2014 (3) SA 39
(CC) at 43G-44A and the cases referred to.
[8]
See
Ganes and Another v Telecom Namibia Limited
2004 (3) SA
615
(SCA) at par (19] where Streicher JA stated
"In
my view it is irrelevant whether Hanke had been authorised to depose
to the founding affidavit. The deponent to an affidavit
in motion
proceedings need not be authorised by the party concerned to depose
to the affidavit It is the institution of the proceedings
and the
prosecution thereof which must be authorised
...
In any
event, Rule 7 provides
a
procedure to be followed by a
respondent who wishes to challenge the authority of an attorney who
instituted motion proceedings
on behalf of an applicant. The
appellants did not avail themselves of the procedure so provided:
See also
Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705C-J,
Unlawful Occupiers. School Site of City of Johannesburg
2005
(4) SA 199
(SCA) at paras [14]-[16]
[9]
Supra
[10]
ee
Opposition to Urban Tolling Alliance v South African
National Roads Agency Limited (OUTA v
SANRAL)
[2013]
4
All
SA 639
(SCA) paras [23] to [26];
Beweging vir
Christelik
Volkseie Onderwys and Others v Minister
of Education and Others
(2012]
2 All SA 462
[11]
OUTA v SANRAL
par (26)
[12]
2016 (2) SA 199
(SCA) par [16] p 207H top 208A
[13]
Aurecon South Africa (Ply) Ltd v Cape Town City
2016 (2) SA
199
(SCA)