About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 291
|
|
Peach v Kudjoe and Another (2016/30120) [2018] ZAGPPHC 291 (10 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
CASE
NO: 2016/30120
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
In
the matter between:
RIANA
PEACH
APPLICANT
and
AMBASSADOR
SONTO KUDJOE
1
ST
RESPONDENT
THE
MINISTER OF STATE
SECURITY
2
ND
RESONDENT
JUDGMENT
MUDAU,J
[1]
The Applicant seeks an order for the reinstatement of her salary and
fringe benefits (the main application), which were stopped
by the
Respondents, following her dismissal from employment of the Ministry
of State Security Agency, with effect from December
2015.
Furthermore, the Applicant seeks an order directing that her
suspended pension and medical aid contributions be reinstated
and
that all her back payments and/or premiums or instalments be paid to
her by the Respondents , immediately.
[2]
The Respondents seek an order, by way of a counter application, as an
alternative in opposition to the main application, to
suspend the
operation of the order of Basson, J, (in which the decision to stop
the payment of tile Applicant's monthly remuneration
and benefits was
reviewed and set aside ) pending the outcome of a rescission
application. The order is sought in the alternative
and in the event
that this Court dismisses the Respondents ' contention that there
exist a substantive common law rule, to the
effect that the operation
of Judgment or order is suspended, upon institution of a rescission
application by the person affected
thereby.
RELEVANT
BACKGROUND FACTS
[3]
The Applicant was employed by the Second Respondent. Disciplinary
proceedings were brought by the Respondents against the Applicant
on
forty charges of misconduct, based on allegations of fraud.
Consequently, the Applicant was found guilty in respect of all the
misconduct charges. A decision was made to terminate the employment
of the Applicant. On 20 April 2016, the Applicant instituted
review
application proceedings in which he sought to have the decision of
the Respondents to dismiss her from the employment of
the State
Security Agency, reviewed and set aside based on certain
irregularities.
[4]
The decision to dismiss the Applicant from the employment of the
State Security Agency was taken following the recommendation
of the
Disciplinary Hearing Panel, recommending that the Applicant's
employment with the Respondents be terminated. The Applicant
had
specifically required that the First and Second Respondents dispatch
within 15 (fifteen) days after receipt of the notice of
motion, to
the Registrar, the record of proceedings sought to be corrected or
set aside,
'together with such reasons
as
they in Jaw
required or desired to give or make and/or to notify that they have
done
so'.
[5]
Following receipt of the Applicant's Rule 53 application, a notice of
intention to oppose the application was duly filed and
served on 16
May 2016. Between the period 16 May 2016 and 4 July 2016, the parties
exchanged various correspondences which
inter alia
dealt with
the Applicant's proposal for the settlement of the matter. The
records of the decision sought to be reviewed and the
supplementary
records thereto were filed on 29 July 2016 and 12 August 2016,
respectively.
[6]
However, the Respondents failed to file any opposing affidavit. The
review application was enrolled on the unopposed motion
roll of 12
August 2016, with prior notice to the Respondents. The Respondents
were represented by counsel at Court who made certain
submissions. As
there were no affidavits filed by the Respondents; all submissions
were made from the Bar.
[7]
The
thrust of the argument put forth by counsel for the Respondents was
t1 at the matter had not been properly set down, as it was
supposed
to be on the opposed motion roll due to the filing of the notice of
intention to oppose. Counsel further argued that the
time was not
ripe for the filing of their opposing affidavit, as the Applicant
first needed to file a supplementary affidavit,
after which the
Respondents' opposing affidavit should be filed. It was conceded by
counsel for the Respondents that the records
that were filed by the
Respondents were both out of time and incomplete
[1]
.
[8]
The Court dismissed the arguments raised by counsel appearing for the
Respondents due to the fact that no affidavits were filed
by the
Respondents. The Court dealt with the matter on an unopposed basis
and granted the following orders:
1.
The decision of the First Respondent following a disciplinary
hearinJ to terminate the employment of the Applicant is hereby
reviewed
and set aside;
2.
The decision to stop the payment of the Applicant's monthly
remuneration and benefits is hereby reviewed and set aside;
3.
The Respondents are ordered to pay the costs of the application
joint(Y and severally, the one paying the other to be absolved."
An
application for rescission of the judgment by Basson, J with
condonation having been granted, is pending.
[9]
The Respondents failed to comply with the orders by Basson, J despite
a letter dispatched to the Respondents ' attorney on 27
September
2016, On behalf of the Applicant. In this letter to the Respondents ,
the Applicant's attorney drew the attention of
the Respondents to the
fact that an application for rescission of judgment does not suspend
the right of the Applicant to execute
the order, as in the case of an
appeal. With no response forth coming, the Applicant then proceeded
with the current application.
The crisp issue before this Court is
straight forward. The only question for consideration! is whether the
filing of the Respondents
' application for rescission of judgment
suspends the operation of the orders by Basson, J, as
contended by the
Respondents.
[10]
The
Respondents referred to Section 18 of the Superior Courts Act
[2]
, contending that it is meant to provide the means to attain the ends
which• he administration of justice seeks. It was further
contended, on behalf of i he Respondents that, there is, at common
law, a substantive rule suspending the operation of an order
or
judgment upon the noting of an application for rescission, as
it always has been with the noting of an appeal. In terms
of the
previous Rule 49(11) of the Uniform Rules of Court:
"Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order
of court has
been made, the operation and execution of the order in question shall
be suspendr3d, pending the decision of such
appeal or application,
unless the court which gave such order, on the application of
a
party, otherwise directs"
[11]
The
rule provided plainly that, once an application for rescission has be
n made, the Court order in question is suspended and cannot
be
executed oh. However, in the case of
United
Reflective Converters (Pty) Ltd v Levin
[3]
,
Roux,
J held that there is no substantive rule of law that an application
to vary or rescind an order automatically suspends its
operation
[4]
.
Accordingly, insofar as Rule 49 (11) sought to create such a
substantive rule of law,it had overstepped the mark and was ultra
vires and of no force or effect. Regarding the automatic suspension
of an order on the noting of an appeal, Roux, J held further
that
Rule 49(11) merely restated the already existing substantive law in
that regard and, was therefore, valid.
[12]
In the instant case the Respondents further contended that the Court
is entitled to develop a procedural rule suspending the
operation of
an order upon application for rescission thereof. Section 18, which
has replaced Rule 49 (11), reads as follows:
"18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution
of
a
decision which is the subject of an application
for leave to appeal or of an appeal is suspended pending the decision
of the application
or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision that is an interlocutory order not having the effect of
a
final judgment, which is the subject of an application for leave
to appeal or of an appeal, is not suspended pending the decision
of
the application or appeal.
(3)
A court may only order otherwise
as
contemplated in
subsection (1) or (2), if the party who applied to the court to order
otherwise, in addition proves on
a
balance of probabilities
that he or she will suffer irreparable harm if the court does not
so
order and that the other party will not suffer irreparable harm if
the court
so
orders.
(4)
If
a
court orders otherwise, as contemplated in subsection
(1)-
(i)
The court must immediately record its reasons for doing so,
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court
(iii)
the court hearing such an appeal must deal with it as
a
matter
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2),
a
decision
becomes the subject of an application for leave to appeal or of an
appeal,
as
soon
as
application for leave to appeal or a
notice of appeal
is
lodged with t e registrar in terms of the
rules."
[13]
Section
18 does not address the implication of an application to rescind,
correct or vary an order (see
lncubeta
Holdings (Pty) Ltd and Another v Ellis and Another
[5]
).
It
omits any reference to application for rescission of judgment. It
only provides for the automatic suspension of the operation
and
execution of a decision pending an application for leave to appeal or
an appeal. Recently in
Khoza
and Others v Body Corporate of Ella Court
[6]
(per
Nots e. AJ) however, the court was of the view that Rule 49(11) did
provide for a rule of procedure, as opposed to a substantive
rule of
law, and was not satisfied with Roux, J's conclusion that there is no
common law supporting an automatic suspension of
an order on the
bringing of an application for rescission.
[14]
Notshe, AJ held in
Khoza and Others v Body Corporate of Ella
Court,
as counsel for the respondents' also contended, that, if
the common law were lacking such a rule, it should be developed by
the
Courts to provide for it In reasoning that such a common law rule
should be developed, Notshe, 'AJ stated as follows in para 28
of the
judgment:
"An
applicant for a rescission of an order would be irreparably
prejudiced if the order were allowed to operate despite the
application. This is no different
from a
situation where a
notice of application for leave to appeal is delivered. In the
circumstances, the rule that applies to the noting
of appeals would
b
e
extended to noting of the rescission application as well."
Notshe,
AJ's approach was echoed by Vally, J in
Peniel
Development (Pt ) Ltd and Another v Pietersen and Others
[7]
.
[15]
In
Erstwhile
Tenants of Williston Court and Others v Lewray Investments (P ) Ltd
and Another
[8]
Meyer,
J held that Section 18 was to be interpreted in accordance with the
established principles of interpretation set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[9]
as
well as
Bothma-Batho
Transport (Edms) Bpk v S Bothma
&
Seun
Transport (Edms) Bpk
[10]
.
Meyer,
J reasoned as follows in para 18 with which I respectfully agree:
"...
I am of the view that had it been the intention of the legislature
for the operation and execution of a decision which is the subject
of
an application or rescission also to be automatically suspended, then
such decision would have been expressly included in section
18(1)."
[16]
The learned Judge continued at para 19 as follows:
"The
contrary interpretation would result in the absurdity that the filing
of any unmeritorious application for rescission
could foil the
operation and execution of a decision which is the subject of such
application. Moreover, it would result in the
absurdity that the
operation and execution of a decision which is the subject of an
application for leave to appeal or of an appeal
may by order of court
as contemplated in s 18 be carried into effect, but not a decision
which is the subject of an application
for rescission."
I
agree. A litigant, against whom the decision which is the subject of
an application for rescission was given, can always approach
a Court
under Rule 45A to suspend its execution pending the finalisation of
an application for rescission. There is no need to
develop our law in
this regard. Rule 45A to provide’s adequate protection for a
litigant with a meritorious application.
[17]
The Respondents in the counter application ask,
inter alia,
for
an order that suspends the operation of the order by Basson, J,
pending the finalisation of the rescission application. Rule
45A
deals with suspension of orders by the Court and provides as follows:
"The
court may suspend the execution of any order for such period as it
may
deem fit".
The
counter application was delivered simultaneously with the answering
affidavit. To summarise, before this Court is a default
judgment by
Basson, J and an application for rescission of the default judgment
yet to be adjudicated upon. On face value, the
application for
rescission seems justified. Should the default judgment of Basson, J
be rescinded the
causa
for the application for the execution
of that judgment in favour of the applicant would be out of the way.
[18]
The real harm which the Respondents are forced to bear, and the
potential harm they are exposed to, if the counter application
is
refused, far exceeds that to which the Applicant is to bear, should
the counter application be granted. The Respondents are
unlikely to
recover the amounts of money p id, the source of which are public
funds. Besides being inconvenienced the Applicant
will suffer no
irreparable harm if her application was to be dismissed pending the
rescission application.
[19]
The claim for monetary relief and related benefits remains alive and
will be adjudicated, either with the rescission application
or after
(should he application for rescission of the Basson judgment be
successful). The applicant will if successful, be entitled
to all
monies due to her. If the counter application is granted, it follows
that the application to execute the default judgment
has to be
refused. There was no disagreement by the parties at costs should
follow the result.
THE
ORDER
[20]
For the reasons already set out, the following order is made:
1.
The application for an order to reinstate the salary and fringe
benefits is dismissed.
2.
The counter application to stay the execution of the Basson, J order
is granted pending the outcome of the application for rescission
of
the order.
3.
The applicant is to pay the costs.
________________
TP
MUDAU
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION,
PRETORIA
Date
of Hearing:
1 November 2017
Date
of Judgment:
10 January 2018
APPEARANCES
For
the Applicant:
Adv. I Vermaak-Hay
083
675 1546
Instructed
by:
Stopforth Swanepoel & Brewis Inc
012
343 7437
For
the Respondent:
Adv. J Motepe SC
012
303 4098 and
Adv.
H.A. Mpshe
083
295 1874
Instructed
by:
State Attorney Pretoria
012
3091635
[1]
See:p105 &p109
[2]
Act 10 of 2013.
[3]
1988 (4) SA 460 (W).
[4]
At 463 J.
[5]
2014 (3) SA 189 (GJ).
[6]
2014 (2) SA 112 (GSJ).
[7]
[2014] 2 All SA 219 (GJ)
[8]
2016
(6) SA 466 (GJ)
[9]
2012
(4) 593 (SCA)
[10]
2014
(2) SA 494
(SCA) para 12