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[2018] ZAECMHC 15
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Instika Yethu Local Municipality v Sipakisi-Olayi and Others (3303/2014) [2018] ZAECMHC 15 (27 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 3303/2014
In
the matter between:
INTSIKA
YETHU LOCAL MUNICIPALITY
Applicant
and
ZOLEKA
SIPAKISI-OLAYI & OTHERS
Respondents
JUDGMENT
MBENENGE
JP:
[1]
This matter has a longish history, but stripped of verbiage, the
facts are, for present purposes, uncomplicated. On 18
November
2014 the applicant launched an application before this court seeking
the eviction of “
unknown persons comprising the First
respondent
[the respondents in the present matter]
from the
structures and/or shacks and / or Makeshift dwelling places which are
situated on that portion of the remainder of erf
1, Cofimvaba, just
next to Nyanisweni Township
” and other relief incidental
thereto, including an order that the respondents restore vacant
possession of the subject land
to the applicant (the main
application).
[2]
This court
[1]
granted the order
in the terms it had been sought, resulting in the respondents being
evicted from the subject land on 18 February
2016 and the structures
they had erected thereon demolished on 22 March 2016.
[3]
Subsequent thereto, the respondents, lamenting that they had not been
served with the relevant application papers, the ensuing
court orders
and notice of set down, sought and obtained an order rescinding and
setting aside the order of 27 August 2015
[2]
on the basis that it had been erroneously granted in their absence
within the meaning and contemplation of rule 42(1)(a) of the
Uniform
Rules of Court (the Rules). The resuscitation of the main
application attracted the delivery of answering and replying
papers
by the respective parties, which, in turn, resulted in the
respondents eventually taking the initiative, on 10 November
2016,
and setting down the main application for hearing on 07 December
2016.
[4]
Meanwhile on 23 November 2016, the applicant delivered a notice,
purporting to be in terms of rule 41(1)(a) of the Rules, worded:
“
TAKE NOTICE
THAT the Applicant hereby withdraws its Application under case number
3303/14 for an order in terms of the Notice of
Motion dated 17
th
November 2014 which application has been set down at the instance of
the Respondents for hearing on 8
th
December 2016.
TAKE NOTICE FURTHER
that the
applicant does not tender the costs.”
(Emphasis
added).
[5]
Despite the clear wording of rule 41(1)(a)
[3]
and heedless of the fact that the main application had already been
set down, the applicant neither sought the consent of the respondents
nor the leave of the court before delivering the purported notice of
withdrawal.
[6]
On 30 November 2016 the respondents, purporting to act in terms of
rule 41(1)(c),
[4]
notified
the applicant of their intention to apply for an order that the
applicant be directed to pay the costs of the purportedly
withdrawn
application. That application attracted resistance from the
applicant’s camp.
[7]
It also came to pass that, during November 2016, the respondents
resorted to an interlocutory application seeking, in the main,
an
order declaring their eviction and the demolition of the structures
they occupied inconsistent with the order of 27 August 2015
and
therefore unconstitutional.
[8]
The parties ended up being embroiled in yet another bout of
litigation during which the applicant sought an order declaring
–
(a)
the respondents’ rule 41(1)(c ) notice; and
(b)
the launch of the interlocutory application referred to above,
irregular steps and setting
same aside.
[9]
In a judgment delivered on 12 September 2017, the applicant’s
quest was unsuccessful, with Jolwana AJ (as he then was)
pronouncing:
“
1. That the
applicant’s application to declare respondents’ notice in
terms of Rule 41(1)(c ) dated 30 November
2016 be declared to be an
irregular proceeding and set aside is dismissed.
2. That the applicant’s
application to declare respondent’s notice under cover of
Notice of Motion in terms of
Rule 6(11) dated 10 November 2016 be
declared to be an irregular proceeding and set aside is dismissed.
3. Applicant is ordered to
pay cost of this application such costs to include costs reserved on
28 March 2017. ”
[10]
Both the main application and the interlocutory application served
before me after Mjali J had ordered, on 15 December 2017,
that the
applications be heard simultaneously.
[11]
Against this background, at the hearing before me, the applicant
adopted the stance that the main application, having previously
been
withdrawn, has fallen by the wayside with the result that the only
issue remaining for determination is that of costs.
It is the
applicant’s further view that, absent the main application,
there is no interlocutory application to pronounce
on as the
proceedings to which the interlocutory application is incidental are
no longer in existence. It is not available
to the respondents,
argued Mr
Bodlani
who appeared for the applicant, to contend
that the main application remains extant in circumstances where the
respondents’
rule 41(1)(c ) application is still alive.
[12]
It was, in the alternative, contended on behalf of the applicant
that, in the event of the court finding that the notice of
withdrawal
enjoys no status, the court should grant the applicant leave to
withdraw the main application.
[13]
The respondents, on whose behalf Mr
Matotie
appeared, argued
to the contrary, asserting that the applicant’s notice of
withdrawal is inconsequential as it flies in the
face of rule
41(1)(a).
[14]
I am of the view that rule 41(1)(a) does not admit of any difficulty
in relation to how it should be interpreted and applied.
It is
trite law that a person who has instituted proceedings is entitled to
withdraw such proceedings without the other party’s
concurrence
and without leave of the court at any time before the matter is set
down.
[5]
The corollary of
this is that once a matter has been set down for hearing, it is not
competent for the party who has instituted
such proceedings to
withdraw them without either the consent of all the parties or the
leave of court. In the absence of
such consent or leave, a
purported notice of withdrawal invalid.
[15]
The question that confronts this court was answered, when applying a
similar rule under the Rules governing the then Cape Provincial
Division which were promulgated in 1965, in
Karoo
Meat Exchange Ltd v Mtwazi,
[6]
in
the following terms:
“
Mr.
Dison
,
who appeared on appeal for respondent, resisted this argument on the
ground that Rule 29 (3) had no application. He contended
that
once the case was set down for hearing – as this one was on 12
August for hearing on 25
th
August – the filing of a notice of withdrawal did not have an
automatic and final effect but left the court with a discretion
to
proceed with the hearing of the action.
I am persuaded that
the argument advanced by Mr.
Dison
is sound. I say this for several reasons. In the first
place it seems to me important that the judicial officer should
be in
control of proceedings in his court. Once the case has been set
down for hearing the court has an interest to see that
justice is
done both in regard to the merits of the dispute and in regard to
costs. When the case has progressed to
the stage of being
set down for hearing, the parties can no longer do as they please.
The court cannot be deprived of its
control merely by reason of the
fact that the plaintiff has served a notice of withdrawal. In
the second place it seems to
me wrong, in principle, that the
plaintiff, having initiated the proceedings and put his opponent to
inconvenience, trouble and
expense, should, subject only to the
payment of costs, at his mere whim have the right to withdraw the
action at any time before
the hearing. As was pointed out by
counsel for the respondent, the defendant may have all his witnesses
in attendance, and
one or more of these witnesses may not be
available in the future. He may have incurred expense not
covered by the ordinary
award of costs such as the qualifying
expenses of an expert witness, or the cost of briefing counsel, or
there may be some special
circumstance, as in this case, which would
call for an award of costs on an attorney and client basis. Or
then again the
action may be one in which the defendant’s
reputation has been attacked and where in consequence he is entitled
to have his
name cleared by a judgment given on the merits after
evidence has been heard. These considerations persuade me that
it is
right and proper that once the stage of set down has been
reached in litigation a discretion should vest in the judicial
officer
as to whether the proceedings should be terminated or not.
To hold otherwise, to allow the plaintiff an absolute and not a
qualified right to terminate the action at will, may lead to
injustice.”
[7]
[16]
In
Protea
Assurance Co. Ltd v Gamlase and Others
[8]
the following remarks were made:
“
Once the
matter had been set down for hearing on 25
th
May, 1965 it was not competent for the applicants to withdraw such
proceedings without the consent of the respondent or, after
the
promulgation of the new Rules of Court on 15
th
January, 1965, without leave of the Court.
Such
consent was never obtained, nor was such leave ever applied for.
It follows therefore that the purported notice of withdrawal
on 31
st
October, 1969 was incompetent and invalid and must be set aside
.”
(Emphasis added.)
[17]
I come to the same conclusion. The applicant seems to have
arrogated to itself the right to withdraw the main application
after
it had been set down, without the consent of the respondents or the
leave of court. That stance, which does not find
support from
the Rules, suggests that the court is powerless yet it has a
discretion in relation to the future conduct of
the proceedings.
[18]
It therefore follows that the purported notice of withdrawal was not
only incompetent but invalid and falls to be treated as
pro non
scripto
.
[19]
The existence of the respondents’ rule 41(1)(c ) notice does
not, in my view, alter the position. It cannot serve
to lend
validity to a notice whose delivery was incompetent. In light
of the view I take of the impugned notice of withdrawal,
the delivery
of the rule 41(1)(c ) notice was fruitless and unnecessary. Nor
can it be said that the notice advanced the
proceedings one step
nearer to completion.
[20]
No substantive application was resorted to in pursuit of the
applicant’s quest for leave of this court to withdraw
the
main application. Mr
Bodlani
contented himself with
merely pursuing such application from the bar. That approach is
not envisaged in the Rules.
It smacks of opportunism and
promotes litigation by ambush. In any event, as submitted by Mr
Matotie
, the respondents would be prejudiced were the leave
for the withdrawal of the main application to be granted. In
light of
the rights involved, rights of access to housing and the
right not to be deprived of rights to property arbitrarily, it would
not
be prudent to grant the applicant leave to withdraw the
main application.
[20]
The question of costs remains to be considered. The respondents
have been substantially victorious in their quest to
demonstrate that
the main application has not been withdrawn. There is no reason
why costs should not follow that result.
[21]
In the result, the following order is made:
1.
It is declared that the application launched by the applicant against
the respondents
on 18 November 2014 is still extant.
2.
It is directed that the application and the related interlocutory
application
launched by the respondents against the applicant on 15
November 2016 shall be heard simultaneously.
3.
The Registrar of this Court is hereby directed to enrol the
applications for
hearing on 27 March 2018.
4.
The applicant shall pay the costs arising from the delivery of the
notice of
withdrawal as also the costs of the hearing on 08 February
2018.
________________________
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the applicant
:
A M
Bodlani
Instructed
by
: Zilwa
Attorneys
MTHATHA
Counsel
for the respondents
:
L
Matotie
Instructed
by
: S R
Mhlawuli & Associates
MTHATHA
Date
heard
: 08
February 2018
Date
judgment delivered
: 27
February 2018
[1]
Per Hartle J, on 27 August 2015
[2]
Judgment by Nhlangulela DJP
delivered on 11 August 2016
[3]
Rule 41(1)(a) provides:
“
(1)(a)
A person instituting any proceedings may at any time before
the
matter has been set down and thereafter by consent of the parties or
leave of the court withdraw such proceedings, in any
of which events
he shall deliver a notice of withdrawal an may embody in such notice
a consent to pay costs; and the taxing master
shall tax such costs
on the request of the other party.”
[4]
In terms of rule 41(1)(c ) if a
party withdrawing proceedings does not, in its notice of withdrawal,
consent to paying costs,
the other party may apply to court on
notice for an order of costs
[5]
Franco Vignazia Enterprises
(Pty) Ltd v Berry
1983 (2) 290 ( C ) at 295H
[6]
1967 (3) SA 356
(CPD)
[7]
Ibid
at
359A-G
[8]
1971(1) SA 464(E) at 465G