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[2019] ZAECMHC 2
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ABSA Bank Limited v Reformed Presbyterian Church in South Africa and Another (4858/2017;4700/2017) [2019] ZAECMHC 2 (7 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO’s: 4858/2017 & 4700/2017
In
the matter between:
ABSA
BANK LIMITED
APPLICANT
AND
REFORMED
PRESBYTERIAN CHURCH
IN
SOUTHERN AFRICA
1
ST
RESPONDENT
PANGWA
ATTORNEYS
2
ND
RESPONDENT
JUDGMENT
DAWOOD,
J:
1.
The facts and law pertaining to both case numbers 4700/2017 and
4858/2017 are such that it is convenient to
detail with both matters
contemporaneously in this judgment.
2.
Case number
4700/2017
is:
a)
An application brought by Pangwa Attorney’s against the
Reformed Presbyterian Church in Southern Africa
(herein after
referred to as the Church) and ABSA Bank for the freezing of two of
the Church’s accounts held at the bank.
b)
In this application Pangwa Attorneys only sought costs in the event
of the application being opposed.
c)
An interim order was granted to freeze the aforesaid accounts.
d)
The Bank accordingly froze the Church’s accounts in terms of
the court’s order which appears to
have initially been served
informally by an individual and the formal service via the Sheriff
only followed on the 12
th
October 2017. The bank froze the
account from the date of the informal service.
e)
The Church initially brought a separate application against the bank
for the unfreezing of the accounts, under
case numbers 4858/2017.
f)
The Church thereafter brought an application for the
re-consideration of the order granted herein
and in the
reconsideration application costs was sought against the Bank.
g)
The matter was eventually heard on the 8
th
November 2017
and the following order was made:
“
i)
The reconsideration application is granted with costs.
ii)
The rule nisi discharged and set aside.
iii)
The main application is hereby withdrawn with no order as to
costs.”
h)
This matter had come before Jolwana J and a Mr Matanda was
erroneously reflected as having appeared for both
respondents’
whereas it is common cause that he was only representing Pangwa
Attorneys.
i)
The very nature of a reconsideration application is that it
reconsiders the granting of an order in favour
of one party as
against another party or other parties, in this case being the order
granted by the court in favour of Pangwa Attorneys
against the church
and against the bank.
j)
Even on a consideration of the nature of the relief sought therein it
would have been that the order
that was granted in Pangwa’s
favour against both Respondents that had to be set aside on
reconsideration and was indeed set
aside. It was not an order that
was sought by the Bank but one that was granted against the Bank
requiring it to freeze the account.
It was simply a party that was
obliged to comply with the court order. The cost order accordingly
ought to have been sought against
Pangwa in the circumstances.
k)
The order was silent with regard to against which respondents or
parties costs were granted. It merely states
“
the
reconsideration application is granted with costs.”
l)
There was further an error in that Mr Matenda was reflected as
appearing for both the Respondents and
despite the order not saying
so it would appear that the draft was handed up by consent creating
the impression that both Respondents
had consented to the same.
m)
This clearly was an error as it is readily conceded by Mr Zono that
the Bank was not represented and the order was not
consented to by
it.
3.
In case number
4858/2017
:
a)
The Church had instituted the application against ABSA Bank and
Pangwa attorneys had intervened as second respondent
and opposed, the
application.
b)
The Church had sought an order declaring the freezing of the accounts
unlawful and an order for the immediate
unfreezing of the account.
c)
They further sought an order that the respondent (being ABSA Bank at
that time) pay costs of the application
only in the event of it
opposing the application.
d)
It is common cause that the Bank did
not
oppose the
application and accordingly the Applicant was
not
entitled to
any costs order against it.
e)
However on the 9 November 2017 the following order was taken
by
consent
before Notununu AJ:
(i)
The First Respondent is directed to forthwith unfreeze
applicant’s accounts held under case numbers 9127508403 and
9170069874.
(ii)
The Respondents’ are ordered to pay costs of the
application.”
f)
Mr Matanda was erroneously reflected as appearing for both the
Respondents whereas it is common cause
that he only acted for Pangwa
Attorneys and not the Bank.
g)
It is accordingly common cause that there was no appearance for the
Bank and indeed no opposition by the Bank
and no consent to the
orders sought against the Bank.
h)
The order granted in any event was erroneous in that the applicant
could not have sought a costs order against
the Bank in circumstances
where its entitlement to costs against the Bank was dependant on the
Bank opposing the relief.
i)
There was no opposition by the Bank and indeed no appearance.
j)
This costs order against the Bank was clearly wrongly sought and
wrongly granted in the circumstances
and falls to be set aside or
varied to reflect costs against the party that had consented thereto
being Pangwa Attorneys.
4.
The issues raised in this matter are the same in respect of both
applications.
5.
I do not intend to delve into the issue of urgency as the court
granting the interim order clearly found that
there was urgency.
6.
I am in any event satisfied that urgency was established particularly
having regard to the contents of the
letter dated 4
th
April 2018 wherein it is stated
inter alia
:
“
In
view of the fact that we have neither application nor court order in
our possession stopping it from executing, we are instructing
the
sheriff to urgently attach and remove your client’s assets.”
7.
The first respondent’s Practice Note, in terms of rule 15
A
stated that the issues for determination were:
(i)
Whether or not the proceedings have been duly or properly authorised
regard being had to the fact that the applicant is a juristic person.
(ii)
Whether or not reconsideration application is justified in
circumstances
where the order was granted not on an urgent basis –
rule 6 (12)
(c)
(iii)
Whether or not the
acquiescence
to the execution of the court
order or delay in bringing these proceedings amounted to the
acquiescence to the granting of the
order.
(iv)
Whether or not the applicant’s cause of action is founded on
the rules,
or common law and whether requirements of the dispensation
had been met by the applicant.
8.
I shall briefly deal with the relevant issues raised by the first
respondent as it raises points
in limine
that needs to be
disposed of prior to dealing with the merits.
(A)
Authority
.
a)
The first respondent raised a point in
limine
that the
deponent to the applicant’s affidavit has failed to allege that
he is duly authorised to launch the application
and instead has
merely alleged, “
I am duly authorised to depose
hereto.”
b)
Mr Zono stated that this was pertinently challenged in the answering
affidavit using the following words:
“
There
proceedings are not authorised”.
c)
Mr Zono accordingly alleged that the application falls to be
dismissed as there is no evidence that the deponent was duly
authorised despite this being specifically challenged in the
answering
affidavit.
d)
Mr Zono
referred to the case of
Ganes
and Another v Telecom Namibia Ltd
.
[1]
at paragraph 19 as support for his proposition:
“
There
is no merit in the contention that Oosthuizen AJ erred in finding
that the proceedings were duly authorised. In the founding
affidavit
filed on behalf of the respondent Hanke said that he was duly
authorised to depose to the affidavit.
In
his answering affidavit the first appellant stated that he had no
knowledge as to whether Hanke was duly authorised to depose
to the
founding affidavit on behalf of the respondent, that he did not admit
that Hanke was so authorised and that he put the respondent
to the
proof thereof. 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 the present case the proceedings were instituted and prosecuted by
a firm of attorneys purporting to act on behalf of the respondent.
In
an affidavit filed together with the notice of motion a Mr Kurz
stated that he was a director in the firm of attorneys acting
on
behalf of the respondent and that such firm of attorneys was duly
appointed to represent the respondent. That statement has
not been
challenged by the appellants. It must, therefore, be accepted that
the institution of the proceedings was duly authorised.
In any event,
[
r]ule 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 Eskom v Soweto City Council
1992 (2) SA 703(W)
at 705C-J.)”
(My Emphasis)
e)
He further
referred to the full bench decision in this Division in the matter of
Reformed
Presbyterian Church in Southern Africa v Minister of Police and Two
Others
[2]
.
However, in that case it is noted that was contended by the
respondent was that the Church has so disintegrated that there are
groupings who all claimed to have authority over it. “
Since
the deponent has not attached any constitution of the church, the
court has not been put in a proper position to know as to
who has
authority to institute the proceedings on behalf of the church or
whether there was any resolution by the church to institute
these
proceedings
[3]
.”
(See paragraph 12).
f)
The court accordingly having regard to the facts of that
case found
at paragraph 17:
“
Consequently
there is no need for the deponent to be authorised to depose to an
affidavit in motion proceedings.
However,
the institution thereof must be authorised by the legal entity
purporting to sue. The deponent in casu does not appear
to have been
authorised by the Applicant.”
g)
There were further basis upon which the application was dismissed.
h)
In that case it could not be said that the attorney was duly
authorised to institute the application proceedings as it was not
known as to which faction of the church was actually entitled
to
institute proceedings on behalf of the church in light of the
in-fighting and disputes. It was in the context of that factual
background that that finding was made by the full bench in this
Division with regard to the issue of authority.
i)
There are various cases dealing with the issue of authority.
I shall
simply highlight a few relevant ones for purposes of determining the
issue in casu.
(i)
In
Eskom
v Soweto City Council
[4]
the court held:
“
The
care displayed in the past about proof of authority to bring legal
proceedings appeared to have been inspired by the fear that
a person
might deny that he was a party to the litigation carried on in his
name. The later view, reflected in Rule 7(1) of the
Uniform Rules of
Court, is that,
if the attorney concerned is authorised to
bring an application on behalf of the applicant,
the
application necessarily is that of the applicant. There is
no need for any other person, whether (s)he is a witness or someone
who
becomes involved especially in the context of authority, to be
additionally authorised. It is thus sufficient to know whether or
not
the attorney acts with authority.
Apart from more informal
requests or enquiries, Rule 7(1) provides the machinery for
challenging an attorney's authority to act.
Use should not
be made of heads of argument, textual analysis and submissions about
the adequacy of the words used by a deponent
about his own authority.
In
casu, where an interlocutory application had been delivered under the
name and signature of the respondent's (a local authority)
attorney,
the Court held that,
if the attorney had been authorised to
bring the application on the respondent's behalf, then the
application was that of the respondent,
irrespective of whether the
deponent to the supporting affidavit had also been authorised 'to
bring this application'
. The Court held, further, that the
deponent's evidence could not be ignored because he had not been
'authorised': if the attorney had authority to act on the
respondent's behalf, then the attorney was entitled to use any
witness
who, in his opinion, would advance the respondent's case - a
witness may testify even if (s)he has no authority to bring, withdraw
or otherwise deal with the application itself.”(My Emphasis)
(ii)
In
Unlawful
Occupiers of the School Site v City of Johannesburg
[5]
it was
held that
:
“
[11]
The three grounds raised in the notice of appeal were all of a
technical or procedural nature, namely that:
(a)
The municipality had failed to prove that the deponent to its
founding affidavit, Mr B M Lefatola, had the requisite
authority to institute the application on its behalf.
(b)
…
(c)
…
4At
the hearing of the appeal, counsel for the appellants conceded that
she could not support this ground of appeal. I think the
concession
was fairly made.
The issue raised had been decided conclusively in
the judgment of Flemming DJP in Eskom v Soweto City Council
1992
(2) SA 703
(W), which was referred to with approval by this Court in
Ganes and Another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at
624I-625A. The import of the judgment in Eskom is that the remedy of
a respondent who wishes to challenge the authority
of a person
allegedly acting on behalf of the purported applicant is provided for
in [r]ule 7(1)of the Uniform Rules of Court.
The ratio decidendi
appears from the following dicta (at 705D-H):
'The
care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he
was party to
litigation carried on in his name. His signature to the process, or
when that does not eventuate, formal proof
of authority I would
avoid undue risk to the opposite party, to the administration of
justice and sometimes even to his own attorney.
…
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level.
If the attorney is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant
. There is no
need that any other
person, whether he
be a witness or
someone
who becomes
involved especially
in the context of
authority
, should additionally be authorised. It is therefore
sufficient to know whether or not the attorney acts with
authority
. As to when and how the attorney's authority should be
proved, the Rule-maker made a policy decision.
Perhaps because the
risk is minimal that an attorney will act for a person without
authority to do so, proof is dispensed with except
only if the other
party challenges the authority
. See Rule 7(1).'
And
(at 706B-D):
'If
then applicant had qualms about whether the 'interlocutory
application' is authorised by respondent, that authority had to be
challenged
on the level of whether [the respondent's attorney] held
empowerment.
Apart from more informal requests or
enquiries, applicant's remedy was to use Court Rule 7(1). It was not
to hand up heads of argument,
apply textual analysis and
make
submissions about the adequacy of the words used by a deponent about
his own authority.'
The
developed view, adopted in Court Rule 7(1), is that the risk is
adequately managed on a different level.
If the attorney is
authorised to bring the application on behalf of the applicant, the
application necessarily is that of the applicant
. There is no
need that any other
person, whether he
be a witness or
someone
who becomes
involved especially
in the context of
authority
, should additionally be authorised. It is therefore
sufficient to know whether or not the attorney acts with
authority
. As to when and how the attorney's authority should be
proved, the Rule-maker made a policy decision.
Perhaps because the
risk is minimal that an attorney will act for a person without
authority to do so, proof is dispensed with except
only if the other
party challenges the authority
. See Rule 7(1).'
And
(at 706B-D):
'If
the applicant had qualms about whether the “interlocutory
application” is authorised by respondent, that authority had
to
be challenged on the level of whether [the respondent's attorney]
held empowerment.
Apart from more informal requests or
enquiries, applicant's remedy was to use Court Rule 7(1). It was not
to hand up heads of argument,
apply textual analysis and
make
submissions about the adequacy of the words used by a deponent about
his own authority.'
These
remarks by Flemming DJP must be understood against the background
that [r]ule 7(1) in its present form was only introduced
by way of an
amendment only in 1987.
Prior to the amendment an attorney
was obliged to file
a power of attorney whenever a summons
was issued in an action,
but not in motion proceedings
.
The underlying reason for the distinction, so it was said, was that
in motion proceedings there is always an affidavit signed
by the applicant personally or by someone whose authority appears
from
the papers
(see eg Ex Parte De Villiers
1973 (2) SA
396
(NC)). On the basis of this reasoning it is
readily
understandable why, before 1987
, the
challenge
to authority could only be directed only at the adequacy of the
averments in the applicant's papers and pre-1987 decisions
regarding
proof of authority should be read in that light
.
However,
as Flemming DJP has said, now that the new [r]ule 7(1)remedy is
available,
a party who wishes to raise the issue of
authority should not adopt the procedure followed by the appellants
in this matter, ie
by way of argument based on no more than a textual
analysis of the words used by a deponent in an attempt to prove his
or her own
authority.
This method invariably resulted in a
costly and wasteful investigation, which normally leads to the
conclusion that the application
was indeed authorised. After all,
there is
rarely any motivation for deliberately launching
an unauthorised application
. In the present case, for
example, the respondent's challenge resulted in the filing of pages
of resolutions annexed to a supplementary
affidavit followed by
lengthy technical arguments on both sides. All this culminated in the
following question:
Is it conceivable that an application
of this magnitude could have been launched on behalf of the
municipality with the knowledge
of but against the advice of its own
director of legal services?
That question can, in my view,
be answered only in the negative.” (My emphasis.)
j)
In
North
Global Properties (Pty) Ltd v Body Corporate of the Sunrise Beach
Scheme
[6]
it was
held
:
[5]
Turning to the applicant’s opposition to the Rule 30
application, rule 7(1) is the procedure a party may follow if it
disputes the authority of anyone to act on behalf of a party.
In the event of such a challenge the person may no longer act
unless
he satisfies the court that he is authorised to act.
Case
law confirms that rule 7 is the prescribed procedure for challenging
the authority of a party to act
. In the unanimous
decision of this division in ANC Umvoti Council the full bench
observed
‘
that
the
legislature intended the authority of “anyone”
who claimed to be acting on behalf of another in initiating
proceedings,
and not only attorneys, to be dealt with under rule 7(1)
. . .’
[6]
I agree with the
full bench that rule 7(1) requires a broad
interpretation having regard to the purpose of the rule
.
The purpose of the rule is, on the one hand, to avoid cluttering the
pleadings unnecessarily with resolutions and powers
of attorneys.
On the other hand,
it provides a safeguard to prevent a person who
is cited from repudiating the process and denying his or her
authority for issuing
the process.
Rule 7 can be
invoked anytime before judgment. It is a practical rule which
mostly turns out to be compliance
with a procedural formality. In
this case it is not merely a procedural formality. It impacts
substantively on the pockets of all
the members of the Body
Corporate, including the opposition Northglobal.
…
[8]
Rule 7(1) requires the court to be satisfied that the party whose
authority is disputed is authorised to act. In this
case
Northglobal has disputed the competence of two Trustees namely, Mr
and Mrs Ashworth, to represent the Body Corporate. I appointed
an
Administrator for the Governing Body because I found that the
Trustees, in particular the Ashworths, were unsuitable to represent
the Body Corporate. Consequently,
I need to be satisfied
that the attorneys are properly authorised to act on behalf of the
applicants and that the latter are properly
mandated to represent and
bind the members to the consequences of this application. Therefore
properly mandated powers of attorney
are required in this application
for leave to appeal.
[9]
Any party to
legal proceedings bears the onus of proving that its
legal representative is properly authorised and that it has the
authority to
instruct its legal representatives.
In this
case meeting this onus is not accomplished by simply filing powers of
attorney and resolutions on behalf of the applicants.
The
applicants have to comply with a substantive requirement of the Body
Corporate Rules namely, that in instructing legal representatives,
they will not exceed their mandate by incurring costs in excess of
R50 000.00.
…
[15]
As to the remedy,
rule 7 challenge would usually result in
the hearing of an application being postponed
.
However, Northglobal gave the applicants notice to prove their
authority by way of delivering a power of attorney supported
by a
resolution by the members. Rule 30 prescribes that an
application to set aside an irregular step may be made only if
an
applicant has by written notice afforded its opponent an opportunity
to remove the cause of complaint within 10 days and thereafter
delivers an application after the expiry of those 10 days. The
notice in terms of rule 7(1) was delivered about 9 March 2012
and the
application in terms of rule 30(2)(b) was filed on 12 March 2012.
The application in terms of rule 30(2)(c) was filed
on 19 April
2012. It is not the applicants’ case that they did not
have an opportunity to the remove the cause of complaint.
It is
simply that there is no basis for a complaint.” (My
Emphasis)
k)
It is evident from the aforegoing authorities as conclusively
determined the Supreme Court of Appeal that it is no longer a
requirement for a deponent to state that he is duly authorised to
institute the proceedings and that the procedure to challenge
authority is the one set out in rule 7.
l)
In this matter the first respondent did not utilise the
procedure set
out in rule 7 to challenge the authority.
m)
There is furthermore no challenge with regard to the authority of the
attorney
as was conceded by the first respondent in argument.
n)
It is accordingly taken that the attorneys were duly authorised
to
institute the application proceedings.
o)
This has been held in the cases cited above to be sufficient
to
satisfy the requirement of authority and there was no necessity for
the deponent to additionally satisfy that requirement.
p)
The first respondent’s point in
limine
in respect of
lack of authority is accordingly dismissed.
q)
I shall deal with the issue of costs at the end of the application.
(B)
Acquiescence/Peremption to the grant of the order.
(i)
The first respondent has alleged that the fact that the applicant
participated in the taxation process and thereafter requested the
first respondent’s attorneys banking details for purposes
of
paying the costs meant that the bank had acquiesced to the payment of
costs as set out in the court order.
(ii)
The Bank as correctly stated by the first respondent had willingly
participated
in the taxation of the relevant bills of costs orders
and had expressed a willingness to satisfy the cost order.
(iii)
The issue is whether this amounts to acquiescence or peremption in
terms of
the law.
(iv)
Mr Hobbs sited the authorities that deal with peremption and the
legal requirement
thereof:
(v)
In of
Tswelopele Non-Profit Organisation and Others v City of Tshwane
Metropolitan Municipality and Others
[7]
at paragraph 10 Cameron JA states as follows:
“
Peremption
of the right to challenge a judicial decision occurs when the
losing
litigant acquiesces in an adverse judgment
. But before
this can happen, the Court must be satisfied that the
loser
has acquiesced unequivocally in the judgment.
The losing
party’s conduct
must ‘point indutably and
necessarily to the conclusion that he does not intend to attack the
judgment’
: so the conduct relied on
must
be ‘unequivocal and must be inconsistent with any intention to
appeal’
(Dabner v South African Railways and
Harbours
1920 AD 583
at 594, per Innes CJ).”
(vi)
The party claiming
peremption bears the onus of showing conduct on
the part of the other party which points indubitably and necessarily
to the conclusion
that is inconsistent with an intention to attack
the judgment of the Court below
. [See: Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA)].
(vii)
Mr Hobbs argued that as far back as
21 December 2017 ABSA’s
attorneys wrote to those of the Church recording the reservation as
to ABSA’s liability for
costs in the matters.
It is so that
thereafter ABSA
made overtures
towards settlement of the
relevant cost orders but ABSA contends
that it did so acting on
the belief that it was under a legal obligation to do so as the costs
orders had not been set aside
. He submitted that the obligation
to pay remained in the face of
the relevant cost orders and that
ABSA’s belief was well-grounded
.
(viii)
He further argued that on 28 March 2018 ABSA’s attorneys
dispatched a letter to
those of the church, from this letter it is
quite clear that ABSA had taken full stock of the situation in
which it found itself and was intent on resisting payment.
(ix)
Mr Hobbs accordingly argued that the Church had
failed to
discharge the onus of showing conduct
on the
part of ABSA
which points indubitably and necessarily to the conclusion that is
inconsistent with an intention to attack the costs
orders.
(x)
There was no unequivocal acceptance of liability by the Bank but
rather
an equivocal one, that was conveyed to the first respondent as
pointed out on the 21
st
of December 2017.
(xi)
It is evident however that the Bank did create an impression that
they would
pay. This did not amount to legal concepts of
peremption/acquiescence as alleged by the first respondent, but
clearly was a factor
that influenced the stance that was taken by the
first respondent in opposing this application and will have a bearing
on the issue
of costs.
(xii)
The Bank’s conduct did not point indutiably to the conclusion
that it does
not intend to attack the judgment but rather a
reservation of rights and a protection of rights until they had all
the facts if
it was found that they were indeed liable.
(xiii)
The first respondent has failed to prove peremption on the part of
the Bank.
(xiv)
The Bank is accordingly not precluded from pursuing this application
as it has no acquiesced
to the costs.
(xv)
This point by the first respondent also fails.
(C)
Rule 6 (12) challenge and whether the application is founded on
the Rules of court or common law and whether it has satisfied the
requirements
.
(i)
The first respondent alleges that the applications for
reconsiderations
are not justified in circumstances where the order
was not granted on an urgent basis and does not fall under rule 6
(12)
(c).
(ii)
Rule 6 (12)
(c)
reads as follows:
“
A
person against whom an order was granted
in his absence
in an
urgent application
may by notice set down
the matter for reconsideration of the order.”
(iii)
It is clear that these main applications were both brought on an
urgent basis
the fact that the orders were granted a few days later
does not detract from the urgent nature and hearing of the matter.
These
applications fell within the ambit of the definition of an
urgent application and it was orders granted in the absence of the
applicant
in any event.
(iv)
The applicant has relied on various basis for its relief in the
alternative
and has not based it exclusively on rule 6 (12).
(v)
The applicant in fact in its rule 15
A
notice have
stated that the nature of the dispute is the reconsideration of costs
order granted against the Applicant alternatively
a variation of the
costs order granted by the court alternatively that the costs order
be rescinded.
(vi)
The Bank further argued at paragraph 10 of his heads that the costs
was erroneously
sought and/or granted as contemplated under
Uniform Rule 42 (1)
(a)
or
(c)
and falls to be varied
to reflect that only Pangwa is liable for those costs, in respect of
4700/2017.
(vii)
The Bank has with sufficient clarity indicated the basis upon which
it seeks relief.
The arguments contrary to this by the First
Respondent are accordingly without merit.
(viii)
The order in respect of case number 4858/2017 reflects that:
a)
It was by consent; and
b)
That Mr Matanda represented both respondents.
(ix)
This was most certainly on all the parties version not the correct
position
as the Bank did not consent to the order and nor did Mr
Matanda represent the Bank. The bank was not represented and the
order
was taken in its absence.
(x)
With regard to case number: 4858/2017 it is further evident that that
order should not have been requested by the applicant, as against the
Bank, since it as already stated did not oppose the application
and
that was the only basis upon which even an obligation to pay costs
would have arisen. The first respondent would be disingenuous
to
suggest otherwise and this order most certainly should be
reconsidered and thereafter varied.
12.
This order needs to be varied to hold only Pangwa, the party that
opposed it, liable to pay the costs.
13.
Once the costs order is varied there would be no need to stay
execution of the warrant as there will be no costs order against
the
applicant and the costs order against Pangwa appears to have been
resolved between him and the First Respondent. He has not
opposed
this application and had consented to the order.
14.
No purpose will be served in determining whether the applicant had
specifically set out which rule it was relying upon for the
grant of
its relief in its papers. There was sufficient particularity
furnished for its entitlement to the relief sought.
15.
With regard to case number 4700/2017 the Bank has correctly argued
that the order falls to be rescinded or varied as ABSA at
no stage
acted unlawfully and indeed acted in accordance with the court order
under case number: 4700/2017 dated 6
th
October 2017.
16.
The court order was served by the Sheriff on the 12
th
October 2017 whereas the application for reconsideration was launched
subsequent thereto.
17.
Mr Hobbs correctly argued that at the relevant time when the
application was lodged the bank was obliged to obey the court order
and thus was not acting unlawfully.
18.
There are instances where even contempt of court orders are granted
where it is established that a person or entity had knowledge
of the
order but failed to comply with the same, even where there was no
personal service or formal service via the Sheriff.
19.
The bank here was informally served with a copy of the order on the
6
th
of October and accordingly had knowledge of the same
from that date and was obliged to act in accordance with that order.
20.
It cannot be said that because this was not formal service in terms
of the rules that they could disregard an order that was
properly
granted by the court.
21.
The Bank’s conduct in obeying the court order most certainly by
any stretch of the imagination cannot be said to be unlawful
in the
circumstances.
22.
They only froze the account when they received the court order
ordering them to do so, not prior thereto.
23.
The bank was well aware of the application for reconsideration by the
First Respondent and that the relief sought included a
costs order
against it.
24.
Mr Hobbs argued that the bank’s default in the reconsideration
application is explained by its bona fide – yet misguided
belief that the facts did not justify a costs order being granted
against it and accordingly did not enter the fray.
25.
The Bank did have a
bona fide
defence in that it was acting in
accordance with tenor of the court order and not acting unlawfully.
26.
I accept that that is the case and any court hearing the matter would
accept the defence as being a valid one and would not
in the
circumstances have granted a costs order against the Bank.
27.
The Bank certainly ought to have entered the fray but having regard
to their defence it clearly is a good one and warrants the
setting
aside of the costs order made against it.
28.
There clearly is a sufficient case made out for a rescission.
29.
However it will be an extremely costly and unnecessary path to embark
upon to set aside the order and remit it for the applicant
to oppose
the order of costs, file papers and have the issue of costs argued.
30.
The order in any event states that the reconsideration application is
granted with costs without stating against whom.
31.
Pangwa has in fact accepted liability for these costs and accordingly
no prejudice will be suffered by the first respondent
if the order
was varied at this stage to reflect this. The first respondent costs
would be paid, whether it be by set off or an
actual payment.
32.
The most appropriate and expedient route in the interest and of
all the parties would be to vary the order here and now
and hold
Pangwa Attorneys solely liable for the costs.
33.
No prejudice will be suffered by Pangwa as he himself had accepted
sole responsibility for the taxed costs in the main application
which
costs would be set off against monies owed by the church to Pangwa
Attorneys.
34.
There would also be no prejudice suffered by the Church as its costs
have been or will be paid by Pangwa in circumstances where
they would
not in any event be entitled to payment of the same costs twice which
is the practical result if the fees are set off
and the same fees are
claimed from the Bank.
35.
I am accordingly in the circumstances disposed to reconsidering and
varying the order granted under case number 4700/2017.
36.
The Bank is:
a)
Seeking an indulgence from this court and did act at its peril
particularly in 4700/2017 where costs were sought
against it by not
entering the fray, whatever its justification therefore was, it ought
to have been present to protect its interest
and not assume that no
order would be granted against it in its absence.
b)
Delayed in launching this application.
c)
Made overtures to the church which created the impression that they
would pay the costs that might well have
created the impression that
they accepted liability thereof as set out in the court order;
rightly or wrongly and that accordingly
that there was some
justification in the first respondent opposing this application
believing, albeit erroneously that there was
acquiescence by the Bank
and despite the fact that it did not pass muster on the requirements
of peremption.
d)
I accordingly for these reasons despite finding in favour of the
applicant am disposed to making no order as
to costs in respect of
both applications.
37.
The following order is accordingly made:
ORDER:
(i)
That the costs orders in respect of both case numbers
4700/2017
and 4858/2017
are reconsidered and varied to exclude the
liability for the payment of costs by the applicant.
(ii)
Paragraph 1 of the order granted under case number:
4700/2017
on 8
th
November 2017 is accordingly varied to read as
follows:
“
The
reconsideration application is granted with the second respondent
(Pangwa Attorneys) to pay the costs.”
(iii)
Paragraph 2 of the order granted under case numbers
4858/2017
on 9 November 2017 is varied to read as follows:
“
The
second respondent (Pangwa Attorneys) is ordered to pay the costs of
this application.”
(iv)
Each party to pay their own costs.
__________________
F.
B. A. DAWOOD
JUDGE
OF THE HIGH COURT
DATE
HEARD:
25 OCTOBER 2018
DATE
HANDED DOWN:
07 FEB 2019
FOR
THE APPLICANT:
MR HOBBS
APPLICANTS
ATTORNEYS:
J.A. LE ROUX ATTORNEYS
56 LEEDS ROAD
MTHATHA
047 531 4223
REF: J.A. LE
ROUX/Gloria/MM0452
FOR
THE FIRST RESPONDENT:
MR ZONO
FIRST
RESPONDENTS ATTORNEY:
A.S.
ZONO & ASS
SUITE 153, FIRST FLOOR
ECDC BUILDING
MTHATHA
FOR
THE SECOND RESPONDENT:
MR PANGWA
SECOND
RESPONDENTS ATTORNEYS:
MANTYI ATT
1
ST
FLOOR
CLUBLINK BUILDING
28 MADEIRA STR
MTHATHA
[1]
2004 (3) SA 615 (SCA)
[2]
(ECM) unreported case number CA 77/2017 of 13 February 2018.
[3]
Ibid
para 12
[4]
1992 (2) SA 703
(W) at pp 703-4
[5]
2005 (4) SA 199
(SCA); (036/2004)
[2005] ZASCA 7
;
[2005] 2 All SA
108
(SCA) (17 March 2005) at paragraphs 11 (a), 14, 15 and 16.
[6]
(KZD) unreported case no 12465/2011 of 17 August 2012 at paras 5, 6,
8, 9 and 16.
[7]
2007
(6) SA 511
(SCA)