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[2018] ZAECBHC 9
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Dlulane v Twani and Others (459/16; 460/16; 289/16) [2018] ZAECBHC 9 (7 June 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
Date heard: 7/6/18
Date delivered:
14/8/18
Not
reportable/reportable
Case
no. 459/16
In
the matter between:
THEMBUKAZI
NOLIHLE DLULANE
Applicant
and
MAGISTRATE
TWANI
First
Respondent
CAPITEC
BANK LTD
Second
Respondent
CLERK
OF THE CIVIL COURT, ZWELITSHA
Third
Respondent
MINISTER
OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
Fourth
Respondent
Case
no. 460/16
and
in the matter between:
THEMBUKAZI
NOLIHLE DLULANE
Applicant
and
MAGISTRATE
TWANI
First
Respondent
CAPITEC
BANK LTD
Second
Respondent
CLERK
OF THE CIVIL COURT, ZWELITSHA
Third
Respondent
MINISTER
OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
Fourth
Respondent
Case
no.289/16
and
in the matter between:
NDILEKA
MPOZA
Applicant
and
MAGISTRATE
TWANI
First
Respondent
CAPITEC
BANK LTD
Second
Respondent
CLERK
OF THE CIVIL COURT, ZWELITSHA
Third
Respondent
MINISTER
OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
Fourth
Respondent
JUDGMENT
Plasket J
[1]
This judgment concerns three applications brought on strikingly
similar facts against the same
respondents for the review and setting
aside of judgments to which the applicants had consented. It is
because the issues that
arise for determination are identical and the
facts essentially similar that the three applications have been
decided in one judgment.
[2]
The applications are brought in terms of
s 22
of the
Superior Courts
Act 10 of 2013
. This section provides:
‘
(1)
The grounds upon which the proceedings of any Magistrates' Court may
be brought under review before a court of a Division are-
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial
officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible
or competent evidence.
(2) This section does not
affect the provisions of any other law relating to the review of
proceedings in Magistrates' Courts.’
[3]
The ground of review relied upon by the applicants is that set out in
s 22(1)(
c
) – that in each case the proceedings are
vitiated by a gross irregularity.
The facts
[4]
Ms T N Dlulane is the applicant in two of the three applications. She
is employed by the Department
of Health in the Eastern Cape
provincial government.
[5]
In case number 495/16, it is not in dispute that Ms Dlulane, on 16
August 2010, borrowed R11 370
from the second respondent,
Capitec Bank Ltd (Capitec), that she later defaulted on her repayment
of the loan after paying only
four instalments and that, on 24
September 2012, she signed a consent to judgment in the amount of
R9 250.95 plus costs. A
judgment was granted in terms of this
consent on 19 October 2012 in the total amount of R10 657.25,
the costs having been
R1 406.25. The judgment ordered Ms Dlulane
to pay R500 per month and an emoluments attachment order to this
effect was also
made. Ms Dlulane paid the amount of R500 per month
from then on and, from what I can gather, is still doing so.
[6]
In case number 460/16, it is also not in dispute that on 16 August
2010, Ms Dlulane also borrowed
R13 981.39 from Capitec Bank.
After paying three instalments, she reneged on her obligation to
repay the loan. On 24 September
2012, she signed a consent to
judgment in respect of this loan too, in the amount of R11 784.69
plus costs. A judgment was
granted in terms of the consent on 19
October 2012 in the total amount of R13 190.99, the costs having
been R1 406.30.
The judgment ordered Ms Dlulane to pay R400 per
month and an emoluments attachment order to this effect was also
made. Ms Dlulane
paid the amount of R400 per month from then on and,
from what I can gather, is still doing so.
[7]
Ms Ndileka Mpoza is the applicant in the third case, under case
number 289/16. She is also employed
by the Department of Health in
the Eastern Cape provincial government.
[8]
It is also not in dispute that on 8 February 2011, Ms Mpoza borrowed
R58 872.49 from Capitec
Bank. Shortly thereafter, she reneged on
her obligation to repay the loan. On 10 May 2012, she signed a
consent to judgment in
respect of this loan, in the amount of
R61 583.83 plus costs. A judgment was granted in terms of the
consent on 25 June 2012
in the total amount of R63 476.06, the
costs having been R1 892.23. The judgment ordered Ms Mpoza to
pay R1 800 per month
and an emoluments attachment order to this
effect was also made. Ms Mpoza paid the amount of R1 800 per month
from then on and,
from what I can gather, is still doing so.
[9]
Initially, Ms Dlulane’s applications for the review and setting
aside of the judgments were
launched against only two respondents,
Magistrate Twani and Capitec. The notices of motion in both were
dated 10 August 2016. Later,
the Clerk of the Court, Zwelitsha and
the Minister of Justice and Constitutional Development were joined.
Ms Mpoza’s application
had taken the same route. The notice of
motion was dated 20 May 2016. Only Capitec opposes the relief sought
in all three matters.
[10] In
all three cases, a number of procedural irregularities are relied
upon by the applicants. As they all
admit their indebtedness, no
defence is raised as to the merits.
The issues
[11]
Two issues arise in all three of the applications. The first is
whether the applicants delayed unreasonably
in bringing their
applications and, if so, whether they have made out cases for the
condonation of those unreasonable delays. The
second issue, which has
a bearing on condonation, is whether the applicants have established
gross irregularities in the proceedings
in which the judgments
against them were granted.
Unreasonable delay
[12]
From the facts that I have set out above, it is clear that Ms Dlulane
launched her applications approximately
three years and ten months
after the judgments had been granted. Ms Mpoza launched her
application approximately three years and
11 months after the
judgment against her had been granted. They appear to have paid their
admitted debts without demur for that
period.
[13]
The
Superior Courts Act does
not stipulate a period of time within
which decisions of magistrate’s courts are to be taken on
review. That being so, in
terms of the common law, review proceedings
must be brought within a reasonable time.
[1]
In
the event of an applicant delaying unreasonably in bringing his or
her review application, a court may withhold a remedy.
[2]
In
Lion
Match Co Ltd v Paper, Printing, Wood and Allied Workers Union &
others
[3]
Farlam
JA said that when an applicant for review delays unreasonably and the
delay is not condoned, that person loses ‘the
right to complain
of the irregularity in regard to which the review is brought’.
[14]
The rationale for the delay rule was set out in
Gqwetha
v Transkei Development Corporation Ltd & others
,
[4]
in
which Nugent JA said the following:
‘
[22]
It is important for the efficient functioning of public bodies (I
include the first respondent) that a challenge to the validity
of
their decisions by proceedings for judicial review should be
initiated without undue delay. The rationale for that longstanding
rule - reiterated most recently by Brand JA in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005
(2) SA 302
(SCA) at 321 - is twofold: First, the failure to bring a
review within a reasonable time may cause prejudice to the
respondent.
Secondly, and in my view more importantly, there is a
public interest element in the finality of administrative decisions
and the
exercise of administrative functions. As pointed out by
Miller JA in
Wolgroeiers Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41E - F (my translation):
“
It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed -
interest reipublicae ut sit finis
litium
. . . . Considerations of this
kind undoubtedly constitute part of the underlying reasons for the
existence of this rule.”
[23]
Underlying that latter aspect of the rationale is the inherent
potential for prejudice, both to the efficient functioning of
the
public body and to those who rely upon its decisions, if the validity
of its decisions remains uncertain. It is for that reason
in
particular that proof of actual prejudice to the respondent is not a
precondition for refusing to entertain review proceedings
by reason
of undue delay, although the extent to which prejudice has been shown
is a relevant consideration that might even be
decisive where the
delay has been relatively slight (
Wolgroeiers
Afslaers
, above, at 42C).’
[15]
The enquiry into the issue of unreasonable delay is a two-stage
process. In the first place, a court must
enquire into and decide
whether a delay was unreasonable. This is a factual enquiry coupled
with a value judgment. Once it has
been determined that a delay was
indeed unreasonable, a court must decide whether that delay should be
condoned. This involves
the exercise of a discretion.
[5]
An
applicant seeking condonation for an unreasonable delay is required
to furnish a full explanation covering the entire period
of the
delay.
[6]
The
duration of the delay must be considered from when the applicant
became aware of the decision under challenge, or ought reasonably
to
have become aware of it, until the launching of review
proceedings.
[7]
Generally
speaking, because the time within which an application is brought
does not form part of an applicant’s cause of
action, he or she
does not have to explain any delay in the founding affidavit. Where,
however, the delay is ‘manifestly
inordinate’ an
applicant is required to deal with it in his or her founding
affidavit.
[8]
[16]
The explanations for the delays given by Ms Dlulane and Ms Mpoza are
identical. They are that they never
received notice that a judgment
had been taken against them and that it was only in ‘the recent
months leading to this application’
that abuses in the
emoluments attachment order system were discussed in social media and
by members of the public ‘who had
been assisted by my attorneys
to investigate unlawful Emoluments Attachment Orders’. This led
them to consult with their
attorneys who investigated the matters,
who found a number of procedural defects, whereupon the review
applications were launched.
[17]
Capitec claimed in its answering affidavit to have been prejudiced by
the delay. Once again, its contentions
in all three cases are
identical. In the first place it disputed that Ms Dlulane and Ms
Mpoza had no knowledge of the judgment.
It said that the consents to
judgment stated in terms that Capitec could apply for judgments at
any time and without notice. Secondly,
Capitec made the point that Ms
Dlulane and Ms Mpoza would have been aware of the deductions from
their accounts every month. That
would have alerted them to the
judgment to which they consented having been taken.
[18]
Capitec made two further points relating to prejudice. The first was
that as Ms Dlulane and Ms Mpoza had
acquiesced in the judgments for
so long, ‘the agent who served the
section 129
notice and in
whose presence the Applicant signed the consent to judgment cannot be
traced and, even if he could be traced, will,
in all likelihood, not
be in a position to remember the particulars of his encounter with
Applicant’. Capitec’s second
point encompasses both
prejudice and the importance of finality. It stated:
‘
Second
Respondent is also prejudiced by the revisiting of a debt incurred
many years ago and which is being repaid. Second Respondent
provides
credit to several million such debtors and it establishes its
solvency and the fulfilment of the requirements of the Banking
Act
and the Ministry of Finance by taking into account the ambit of debts
which have been repaid or not. When a debt has been subject
to a
repayment scheme it is treated as income by the Second Respondent.
This is also the case when the debt has been repaid. The
present
application is but one of many hundreds which are being brought and
when the total amounts are added up, and should the
reviews be
successful, they would impact negatively on the position of Second
Respondent. Further it will open the floodgates for
debtors to bring
applications such as the present one many years after judgment.
Revisiting of judgments in general after such
a long period would
have a wide impact upon the entire credit industry. It will further
not promote a culture of responsible behaviour
amongst credit
consumers, which could negatively impact the cost of credit.’
[19]
The delay from October 2012 to August 2016, in the applications of Ms
Dlulane, and from June 2012 to May
2016, in the application of Ms
Mpoza, are inordinate delays. Of that, there can be no doubt. While I
take note that both say that
they only approached attorneys after
being exposed to discussions concerning abuses in the system of
emolument attachment orders
on social media and in other fora, their
evidence is vague and scant on detail to say the least. I would, in
the first place, have
expected the affidavits to set out when they
heard these allegations, what those allegations were and why it had a
bearing on them,
as they had consented to judgments. The applicants
must have been aware all along of the judgments having been taken
because they
consented to them and never queried or objected to the
deductions, in the amounts agreed to, from their salaries. There is
no explanation
for this conduct. This state of affairs, which endured
for nearly four years in each case, would have lured Capitec into a
reasonable
belief that that the applicants had acquiesced in the
judgments against them, as their consent had manifested in the first
place.
[9]
[20]
I turn now to the applicants’ prospects of success in their
applications. This is a factor that must
be considered in the
exercise of a discretion as to whether the unreasonable delays ought
to be condoned.
[10]
[21]
It is a general requirement that a party seeking the review of a
decision must establish prejudice. In
Jockey
Club of South Africa & others v Feldman
[11]
Tindall
JA formulated the general rule applicable to the review of judicial
proceedings, administrative proceedings and the proceedings
of
voluntary associations as being that while an irregularity in the
proceedings of one of these bodies gives an applicant a right,
prima
facie, to have the resultant decision set aside, if the ‘irregularity
caused such party no prejudice . . . he
is not so entitled’.
The point was made forcefully by Holmes JA in
Rajah
& Rajah (Pty) Ltd v Ventersdorp Municipality
&
others
:
[12]
‘
Now
I think it is clear that the Court will not interfere on review with
the decision of a quasi-judicial tribunal where there has
been an
irregularity, if satisfied that the complaining party has suffered no
prejudice.
Jockey Club of South Africa
and Others v Feldman
,
1942 AD 340
at p.
359;
Larson and Others v Northern
Zululand Rural Licensing Board
,
1943
NPD 40.
In principle it seems to me that the Court should likewise
not interfere in the present case at the instance of the Council,
whatever
the precise nature of the present proceedings, since it is
clear that there has been no prejudice to the public interest which
the Council represents. The underlying principle is that the Court is
disinterested in academic situations.’
[22]
In relation to s 22(1)(
c
)
of the
Superior Courts Act, in
particular, the element of prejudice
is what makes an irregularity a gross irregularity. In
ABSA
Bank Limited v De Villiers & another
[13]
Navsa
JA held that a ‘gross irregularity in civil proceedings in an
inferior court means an irregular act or omission by the
presiding
judicial officer in respect of the proceedings of so gross a nature
that it was calculated to prejudice the aggrieved
litigant’.
And in
Building
Improvements Finance Co (Pty) Ltd v Additional Magistrate,
Johannesburg & another
[14]
Margo
J held, to much the same effect, that it was ‘an established
principle that the Court will not set aside proceedings
on review if
it is satisfied that no substantial prejudice was done to the
applicant i.e. that the irregularity was not likely
to prejudice the
applicant’.
[23]
The applicants admit their indebtedness. They borrowed
the money involved from Capitec, reneged
on repaying their loans, and
then consented to judgments. If the applications succeeded and the
judgments were set aside on the
basis of some or all of the
procedural irregularities that have been alleged, the applicants
would still owe the money and judgments
would again be taken against
them, presumably in smaller amounts, given their regular payments
since the judgments by consent.
All that would then have happened is
that Capitec would have been put to the inconvenience of starting the
process afresh, in the
knowledge that the same result would
accrue.
[15]
Ms
Dlulane and Ms Mpoza have, accordingly, suffered no prejudice as a
result of the irregularities that they rely upon. As a result,
they
have no prospects of success in the event of condonation for the
unreasonable delays being granted.
[16]
[24]
Given the vagueness of the explanation, the fact that the explanation
failed to explain the entire period
of delay, the prejudice suffered
by Capitec and the lack of any prospect of success as a result of an
absence of prejudice on the
part of the applicants, I am of the view
that the explanation for the unreasonable delays in each case ought
not to be condoned.
Absence of
prejudice
[25]
Even if I am incorrect on the question of delay, I am of the view
that the applications must be dismissed
because the applicants, due
to the absence of prejudice, have failed to establish the ground of
review that they rely on, namely
gross irregularities in the
proceedings.
Costs
[26] It
was argued by Mr Paterson who, together with Ms Beard, appeared for
Capitec, that we ought to issue a
rule nisi calling upon the
applicants’ attorneys to show cause why they should not be
ordered to pay the costs of the applications
de bonis propriis
.
The basis for this was an order to this effect made by Lowe J in
Khiba (1)
on the basis that the bringing of applications on
technical grounds where the debts had been acknowledged and where no
prejudice
could be established may have amounted to an abuse of
process.
[27]
If
Khiba
(1)
and
Khiba
(2)
had been the only cases dealing with these issues, we may have
accepted Mr Paterson’s invitation. We were, however, referred
to two judgments that set aside decisions of magistrate’s on
the technical grounds raised in these matters in the apparent
absence
of prejudice to the applicants being established.
[17]
I
have qualified my statement as to the prejudice requirement because
both cases were unopposed and without having seen the papers
it is
not possible to say whether the prejudice requirement was dealt with
in the founding affidavit. No mention of prejudice is
made in the
judgments, and the applicants relied on these cases in support of
their argument that the decisions in issue ought
to be set aside.
[28] To
the extent that these cases set aside the impugned decisions in the
absence of prejudice to the applicants,
they would be in conflict
with well-established authority, but the point remains that they were
apparent authority for the applicants’
argument that the
decisions could be set aside on the basis of the technical defects
alone. In these circumstances, we are unable
to conclude that there
is sufficient indication that the applicants’ attorneys may
have abused the process. In the result,
the usual costs order will be
made.
The order
[29]
The application in each matter is dismissed with costs, including the
costs of two counsel.
C Plasket
Judge of the High
Court
I agree.
NP Ntlama
Acting Judge of the
High Court
APPEARANCES
For
the applicants:
P
Zilwa SC and A De Silva
Instructed
by
N
J Du Plessis & Associates Inc,
East
London
For
the second respondent:
T
Paterson SC and M Beard
Instructed
by
Moors
and Dlamini, Port Shepstone,
Hutton
and Cook, King William’s Town
[1]
Harnaker
v Minister of the Interior
1965 (1) SA 372
(C) at 380B-F; Cilliers, Loots and Nel
Herbstein
& Van Winsen: The Civil Practice of the High Courts of South
Africa
(5 ed) (Vol 2) at 1295; Van Loggerenburg
Erasmus:
Superior Court Practice
(2 ed)(Vol 2) at D1-701.
[2]
Baxter
Administrative
Law
at 712-713 and 715.
[3]
Lion
Match Co Ltd v Paper, Printing, Wood and Allied Workers Union &
others
2001 (4) SA 149
(SCA) para 25.
[4]
Gqwetha
v Transkei Development Corporation Ltd & others
2006 (2) SA 603
(SCA) para 22.
[5]
Beweging
vir Christelik-Volkseie Onderwys & others v Minister of
Education & others
[2012] 2 All SA 462
(SCA) para 46;
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 39C-D.
[6]
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA) para 54.
[7]
Aurecon
South Africa (Pty) Ltd v Cape Town City
2016 (2) SA 199
(SCA) para 16.
[8]
Scott
& others v Hanekom & others
1980 (3) SA 1192
(C) at 1193E.
[9]
See
too
Khiba
v Magistrate Nel, King William’s Town & another; Tyabazayo
v Magistrate Nel, King William’s Town & another;
Tyabazayo
v Magistrate Nel, King William’s Town & another
ECG 11 April 2017 (case nos. 2765/16; 2497/16; 3312/16) unreported
para 49 (hereafter
Khiba
(1)
);
Khiba
v Magistrate Nel, King William’s Town & another
ECG 10 April 2018 (case no.4204/16) unreported para 33 (hereafter
Khiba
(2)
),
cases in which the facts were strikingly similar to the facts in
these cases and the same template appears to have been used
as the
founding and replying papers are in essentially similar terms to the
papers in these cases. In the two
Khiba
cases, the applications were dismissed on account of the applicants’
unreasonable delay in instituting the proceedings.
[10]
Khiba
v Magistrate Nel & another
ECG 10 April 2018 (case no. 4204/2016) unreported, para 15.
[11]
Jockey
Club of South Africa & others v Feldman
1942 AD 340
at 359.
[12]
Rajah
& Rajah (Pty) Ltd v Ventersdorp Municipality & others
1961 (4) SA 402
(A) at 407H-408A.
[13]
ABSA
Bank Limited v De Villiers & another
2009 ZASCA 140
para 26. See too
Magistrate
Pangarker v Botha & another
2015
(1) SA 503
(SCA) para 21.
[14]
Building
Improvements Finance Co (Pty) Ltd v Additional Magistrate,
Johannesburg & another
1978 (4) SA 790
(T) at 793A-B. See too
Hip
Hop Clothing Manufacturing CC v Wagener & another
1996 (4) SA 222
(C) at 230A-C.
[15]
See
for an analogous set of circumstances,
Larson
& others v Northern Zululand Rural Licensing Board
1940 NPD 40
at 44.
[16]
See
Khiba
(1)
(note 9) paras 49 and 52-53;
Khiba
(2)
(note 9) para 31.
[17]
See
Dyantyi-Tali
v Magistrate Nel, King William’s Town & another
ECG undated judgment (case no. 1922/16) unreported;
Mjongile
v Magistrate Twani, Zwelitsha & another
ECB 23 February 2017 (case no. EL406/16) unreported.