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[2019] ZAECMHC 25
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Member of the Executive Council (MEC) for the Department of Roads and Transport, Eastern Cape v Ndlazi ; In re Ndlazi v Member of the Executive Council (MEC) for the Department of Roads and Transport, Eastern Cape (815/08) [2019] ZAECMHC 25 (21 May 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE DIVISION: MTHATHA
Case
No. 815/08
In
the matter between
THE MEMBER OF THE
EXECUTIVE COUNCIL
(MEC) FOR THE
DEPARTMENT OF ROADS AND
TRANSPORT,
EASTERN
CAPE:
Applicant
and
MPENDULO
THEMBELANI
NDLAZI:
Respondent
In
re
MPENDULO
THEMEBELANI
NDLAZI:
P
laintiff
And
THE MEMBER OF THE
EXECUTIVE COUNCIL
(MEC) FOR THE
DEPARTMENT OF ROADS AND
TRANSPORT,
EASTERN
CAPE:
Defendant
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MNYATHELI
AJ
[1]
This is an application for leave to appeal a judgment and order of
this court whereby
Applicant’s application for the rescission
of a judgment granted by consent between the parties was dismissed.
[2]
The rescission application had been brought on the ground that
Applicant had committed
an error in consenting to the judgment and
order in issue.
[3]
Applicant now applies for leave to appeal against the dismissal of
its rescission
application.
[4]
The facts of this matter are common cause and I need not repeat them
here save as
a matter of clarification and application of the law on
those pertinent facts. The pertinent and salient aspects thereof are,
however,
the following:
4.1
Applicant alleged that it committed a just error in consenting to a
judgment in respect
of the instant case when in fact it was referring
to facts of a different case;
4.2
The advice to the deponent to the rescission application to settle or
consent was conveyed
by another colleague who was at that same time
dealing with another matter and he (the colleague) confused the two
and gave incorrect
Information to settle to the deponent in mistake;
4.3
The purveyor of the advice to settle himself did not testify;
4.4
Other colleagues of the deponent who were directly or indirectly
involved in
the trajectory also did not testify though they were mentioned
by the
deponent;
4.5
Respondent submitted that the evidence of the deponent was hearsay
and inadmissible, and
‘
elected to
oppose the application for rescission on the basis,
inter
alia,
that the papers in the
application do not contain allegations sufficient to sustain a cause
of action’;
4.6
The court found that as it is required that
the application for condonation must be on notice and that
an
affidavit supporting the notice ought to be deposed to, the affidavit
must comply with all the requirements of an affidavit
and succeed to
persuade the court that the error occurred;
4.7
The court further found that the deponent, not being the person who
actually committed the
error, that is at the centre of the
application, was not the ultimate person to testify and that in the
absence of a confirmatory
affidavit from the primary source of the
evidence, in the minimum, the evidence was insufficient and the
affidavit underwhelming.
4.8
The court also reasoned that for an application for rescission based
on an error, an onerous
responsibility rests on the applicant to
persuade the court that it is entitled to the relief that it seeks.
It found itself unpersuaded
and dismissed the application with costs,
in light of absence of primary deposition to the error.
[5]
The Applicant seeks leave to appeal on the above factual matrix; the
issue being whether
Applicant’s explanation of the alleged
mistake had merit, and whether I was correct in dismissing the
application for the
rescission of the judgment and order given by
agreement between the parties in the above circumstances. Ultimately,
whether leave
to appeal should then be granted.
[6]
The test for these kinds of applications, it is trite; is whether
there are reasonable
prospects of success on appeal justifying the
grant of leave. This does not refer to a mere possibility of success.
See
Masinga v S
[1]
.
Previously the test was merely put as; whether or not there are
reasonable prospects that another court could come to a different
conclusion to that arrived at by the trial court.
See
New Clicks SA (Pty) Ltd v Tshabalala-Msimang NNO; Pharmaceutical
Society of SA v Minister of Health
[2]
.
[7]
Section 17 (1) of the Superior Courts Act 10 of
2013 (the
Superior Courts Act) deals
with circumstances in which
leave to appeal may be granted. What is specifically relevant is
section 17
(1) (a).
It is convenient
to set out
section 17
(1) in its entirety below:
"(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard including conflicting judgments on the
matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16
(2) (a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would
lead to a just and prompt
resolution of the real issues between the parties.”
[8]
The trial court, however still enjoys discretion on whether to grant
the leave or
not. This is a judicial discretion exercised by,
inter
alia,
taking into account all the facts of each particular case, and is not
to be exercised arbitrarily.
See
Melani v Santam Insurance
[3]
[9]
What emerges from
section 17
(1) is that the threshold to grant a
party leave to appeal has been raised. It is now only granted in the
circumstances set out
and is deduced from the words 'only' used in
the said section.
See
The Mont Chevaux Trust v Tina Goosen & 18 Others
[4]
,
Bertelsmann J held as follow:
"It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new
Act. The
former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to
a different
conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word "would" in the new statute
indicates a measure of certainty that another court will differ
from
the court whose judgment is sought to be appealed against.”
[5]
[10]
The thrust of the dispute at the hearing of the application for
rescission was whether Applicant
had placed before court sufficient
and persuasive evidence to show that the mistake that was at the
centre of the application had
occurred. According to the Applicant
the single deponent who made averments on behalf of his colleagues
and statements to the effect
that such colleagues had made a mistake
were sufficient. In addition Mr Notshe argues that it is clear from
the issues that the
fact that the concession did not include a
counterclaim, which was all along part of the Applicant’s case
demonstrates that
Applicant was labouring under a mistake.
[11]
Mr Hobbs on behalf of the Respondent has argued that the evidence is
of the nature of inadmissible
hearsay and thereupon, Applicant fails
to place before court sufficient averments necessary to sustain its
case. This sounds
more like arguments or language usually
employed in cases of exceptions to particulars of claim in an action
in terms of Rule 23
of the Uniform Rules of this court. It is,
however, clear that it is intended to connote that the averments
contained in
the applicant’s affidavit are either not clear or
inadequate to make a case for the Applicant for purposes of the
application
for rescission.
[12]
It is trite law and practice that an applicant makes its case in it's
founding affidavit and
stands and falls thereby, and may not
endeavour to bolster it in a replying affidavit
See
Titty’s Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
and Others
[6]
;
Director of Hospital Services v Mistry
[7]
;
Port Nolorth Municipality v Xhalisa and Others
[8]
This
should apply perforce in so far as heads of arguments are concerned.
Whilst counsel may creatively argue its case and strenuously
put
flash and meaning to pleadings, it cannot conceivably make any
additions of fact thereto. Facts are facts and they mean
what
they say, nothing less nothing more. They may not be added to in
argument.
[13]
The evidence of the deponent to the application for rescission is in
summary that he gave instructions
to one Mr Nqiwa to agree that ‘the
order should be taken between the parties. The instruction was
made in error’.
In discussions with Mr Zani he got instructions
‘that we should concede the merits of this matter. He duly gave
such instructions
to Mr Nqiwa. Mr Hanise, the deponent then goes on
to say, ‘It has now transpired that Mr Zani made a mistake in
issuing such
an instruction to me as he was referring to the other
matter, to wit, Diko and 40 others. He finally says that ‘This
error is supported by the fact that I only gave instructions for the
cencession of the merits in so far as the main claim is concerned’.
[14]
That was essentially the length and breadth of the deposition of the
Applicant for rescisssion.
It is common cause that Mr Zani has
himself not offered an affidavit relating to the ramifications of
this mistake, neither has
a confirmatory affidavit been given at the
very least, confirming the averments made by Mr Hanise in so far as
the material facts
of the mistake are concerned. No explanation has
been given for this omission. There is also no supporting affidavit
from Mr Nqiwa
who was also involve in the relay of information on
this matter. There was also mention of a Mr Mlola from whom Mr Hanise
took
the matter over.
[15]
Mr Hanise seems strangely prepared to testify for everybody and in
the process deposes to matters
that are not within his own senses,
thereby giving evidence of a hearsay nature. One wonders why he took
responsibility all the
responsibility. He was merely expected
to say his part and leave those parts in which he was not personally
involved to those
who were. It does not buttress the probative value
of his evidence if he assumes the responsibility to unlawfully
testify for other
people. If anything it raises a question as to why
are these ‘colleagues’ not testifying on their own. Does
our law
of evidence allow this?
[16]
I decry a situation where a court is expected to assume, conjecture
or speculate, as to fill
in gaps of factual issues left open by a
deponent or litigant in its case. It is grossly unfair to the
court, to put it mildly.
Courts do not litigate but adjudicate. They
do so on the basis of material presented to them by the litigants.
If these
facts or material do not exist in a litigant’s
case, the litigant should be allowed to count its losses.
See
Herbstein & Van Winsen:
The
Civil Practice of the High Courts of South Africa
[9]
[17]
On behalf of the Applicant Mr Notshe contended that the evidence that
was adduced by the deponent
in the affidavit in support of the
application for rescission was not of a hearsay nature in so far as
it related to the fact that
a mistake was made in conceding to the
order sought to be rescinded. Fair enough, but the mistake must be
explained by the person
who committed it. There can be no
vicarious responsibility on Hanise to say things that he cannot
legally say, evidentially
speaking.
[18]
Even in terms of the
Law
of Evidence Amendment Act
[10]
there
are limits to the admission of hearsay evidence. That Act provides:
3.
Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be
admitted as evidence at criminal or civil
proceedings, unless-
(a)
each party against whom the evidence is to be adduced agrees to the
admission
thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence
depends, himself testifies at such proceedings;
or
c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility
the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into
account, is of the opinion that such evidence
should be admitted in the
interests of justice.
(2)
The provisions of subsection (1) shall not
render admissible any evidence which is
inadmissible on any ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of subsection
(1) (b) if the court is informed that the person upon
whose
credibility the probative value of such evidence depends, will
himself testify in such proceedings: Provided that if such
person
does not later testify in such proceedings, the hearsay evidence
shall be left out of account unless the hearsay evidence
is admitted
in terms of paragraph (a) of subsection (1) or is
admitted
by the court in terms of paragraph (c) of that subsection.
[19]
Now in this case the court is enjoined to evaluate the admissibility
and the probative value
of the evidence of the deponent against the
principles enunciated in the above provision. I bear in mind
that a decision
has already been made that there was not enough
material or evidence placed before court to entitle the Applicant to
the rescission.
The provisions of the Law of Evidence Amendment
Act are resorted to since the question ultimately is whether another
court
could have had regard to the possibility of admission of the
evidence of the deponent and therefore grant the rescission
application.
[20]
Applying the provisions as conveyed by the measure, it is firstly
clear that the evidence of
the deponent is of a hearsay nature. It is
also apparent in light of the provisions of subsection (3) above,
that the probative
value of the deponent’s evidence
deopended
on the credibility of Mr Zani who has not
testified. No confirmatory affidavit has been procured from him
either. The evidence can,
therefore, as a whole, not be legally
admitted. It will be found that it is inadmissible hearsay. Having
found that the evidence
is not admissible, then the Applicant’s
application becomes sterile, unaccompanied as it is, by evidence that
would have
been gleaned from an acceptable affidavit or evidential
source.
[21]
Mr Notshe further drew attention to the issue of the counterclaim.
The argument in this regard
is that in the original plea, Applicant
had included a counterclaim. This demonstrates, he argues, that
Applicant had a good case
and was intent on defending the claim of
the Respondent. He submits that in the erroneous instruction conveyed
to the deponent
by Mr Zani no mention was made of the counterclaim,
meaning that the mistake is
bona fide.
That in my view may well be so, but it is still encumbent upon the
applicant for rescission to make its case and make it the legally
and
procedurally correct way.
[22]
It did not.
[23]
The test for leave to appeal is whether there are reasonable
prospects of success or that there
is some or other reason for the
matter to be heard. It is hard to find such reason in this case
nor do I think that there
are reasonable prospects of success on
appeal.
[24]
In argument before me Mr Notshe vehemently submitted that the court
should not ignore the fact
that by the inclusion of a counterclaim
Applicant may well have a triable and strong case, that Applicant’s
error is
justus.
He further submits that this is a factor to be taken into account as
justifying reason to grant leave to appeal. Again this raises
no more
than a ‘possibility’, short of conviction.
[11]
[25]
Although I find the issue of a counter-claim not directly apposite to
the question whether a
proper case has been made in the application
for leave to appeal, it is quite possible that another court might
find the argument
attractive as to be worth ignoring the deficiencies
in the application as a whole. I am reluctantly relenting to the
possibility
even at the risk of not conforming to the test if the
Superior Courts Act.
[26
]
I bring this forward because of the provision in the Law of Evidence
Amendment Act that hearsay
evidence may not be admitted unless:
(a)….
(b)
…
.
(c)
the court having regard to
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which it is tendered
[12]
(iv)
…
to (vii)
[27]
These are, otherwise interlocutory proceedings and the application is
one based on an alleged
mistake, the evidence that is ‘missing’
is perhaps connectible with the story of the deponent and has not
been gainsaid.
The original claim against an organ of state may
have far reaching consequences, though I lamented even in the main
findings,
that the matter had seen many postponements mostly at the
behest of the Applicant.
[28]
I have also taken into account the provisions of Subsection 3 of the
Law of Evidence Amendment
Act read as it must be with the provisions
of paragraph (1) (c) possibly (vii)- (the interests of justice
consideration) to afford
the Applicant a proverbial fighting chance
at appeal.
[29]
In other words it may well be that the story of the presence of the
counter-claim is plausible
and that therefore it is reasonable to
afford the Applicants such an opportunity
[30]
In the final analysis, leave to appeal will be granted and costs
shall be costs in the appeal.
M MNYATHELI
ACTING
JUDGE OF THE HIGH COURT
Appearances
On
behalf of the Applicant:
Adv V Notshe SC with Adv V Msiwa
Instructed
by:
The State
Attorney
MTHATHA
On
behalf of the Respondent:
Adv Hobbs
Instructed
by:
TL
Luzipho Attorneys
MTHATHA
Date
Heard:
Date
Delivered: 21
May 2019
[1]
[2016]
4 All SA 564
(KZP)
[2]
[2005]
4 All SA 80
; also in 2005 (3) SA 231 (C)
[3]
1962
(4) 531 (SCA)
[4]
2014
JDR 2325 (LCC)
[5]
a
t
para [6]
[6]
1974
(4) SA 362
(T) at 368B-369A
[7]
1979
(1) SA 626
(A) at 636A-F
[8]
1991
(3) SA 98
(C) at 111E
[9]
5th
Ed (Vol 1) pp440-441
[10]
No.
45 of 1998
[11]
See
Section 17
(1) of the
Superior Courts Act (supra
)
[12]
Subsection
(1) (c) of the Act