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[2018] ZALMPPHC 25
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Kekana v Mogalakwena Local Municipality (3352/2016) [2018] ZALMPPHC 25 (16 May 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 3352/2016
Not reportable
Not of interest to other
judges
Revised.
16/5/2018
In
the matter between:
SHELLA
WILLIAM
KEKANA
APPLICANT
and
MOGALAKWENA
LOCAL
MUNICIPALITY
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The Applicant in this matter, Shella William Kekana, applies for
rescission of a default judgment granted against him by this
Court on
21 February 2017. The Court declared him a vexatious litigant and
prohibited him from launching any further actions and
proceedings
until all pending legal actions / proceedings launched by him are
either withdrawn or finalised and all costs orders
obtained against
him have been paid in full. The Court further ordered that all
pending matters launched by him be finalised and
that he be only
allowed to launch any legal proceedings with leave of the Court or a
Judge.
[2]
The application to have the Applicant declared a vexatious litigant
was launched after a litany of litigation by him against
the
Respondent, Mogalakwena Local Municipality (“the
Municipality”). The application was aimed at preventing his
abuse
of the legal process and the Courts in waging unmeritorious
litigation against the Municipality.
[3]
The Court order of the 21 February 2017 was obtained by default after
the Applicant had failed to file a notice to oppose. The
essence of
the Court order is that the Applicant is barred from launching any
new proceedings against the Municipality until all
pending legal
proceedings that he instituted against the Municipality are
finalised.
[4]
The present application was launched by the Applicant on 19 June
2017. The Respondent (Municipality) gave notice to oppose this
application, served and filed its answering affidavit at the end of
July 2017. After the Municipality filed its answering affidavit
the
Applicant took no further steps to prosecute his application. The
Applicant neither filed any replying affidavit nor set the
matter
down for hearing. It would appear that the Applicant had abandoned
the application for rescission. This prompted the Municipality
to, on
its own accord, have the matter set down and finalised.
[5]
This application is therefore before me for hearing at the instance
of the Respondent / Municipality. The Applicant served and
filed his
replying affidavit on 11 May 2018. No heads of argument were filed as
at 11 May 2018. In my view the Applicant had abandoned
his
application for a period of nine months until the Respondent took the
initiative to have the matter heard and fiinalised.
[6]
It is trite that in an application for rescission of judgment the
Applicant must demonstrate, amongst others, that the order
he seeks
to set aside was granted in his absence without proper notice. The
Applicant is generally expected to show good cause
for the rescission
by:
(a)
Giving a reasonable explanation for his default;
(b)
Showing that his application was made
bona
fide
; and
(c)
Showing that he had a
bona
fide
defence to the Respondent’s
claim which
prima facie
has
some prospects of success.
See:
Colyn v. Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA)
.
[7]
The Applicant avers that the Court order was granted in his absence
and without any proper notice to him. According to the return
of
service of the Sheriff the notice of motion was served on 20 August
2016 by affixing a copy thereof to the principal gate at
[...] G.
Street, [...], Polokwane, Polokwane, being the Applicant’s
residence. The Sheriff went on to make the following
note on his
return:
“
NO
ONE WAS WILLING TO ACCEPT THE DOCUMENT”
One
gets the impression that there were people at the Applicant’s
residence but none of them was willing to accept service
of the Court
papers.
[8]
In paragraph 6 of the founding affidavit the Applicant states:
“
My
residence at [...] G. Street, [...], Polokwane is guarded by guards
supplied by a security company 24 hours per day, 7 days a
week. It is
highly improbable that the Sheriff could not find anybody present at
the premises to serve the application on.”
It
can safely be accepted that the security guards were present at the
Applicant’s residence when the Sheriff affixed a copy
of the
Court document to the principal gate. I find it improbable that the
security guards who are protecting the Applicant’s
life and
property could fail or neglect to bring to the attention of their
“master” the Court document left by the
Sheriff at the
gate. In my view there was a proper service of the notice of motion.
The Sheriff was left with no option but to
affix a copy of the
application to the principal gate at the Applicant’s place of
residence as there was no one willing to
accept service of the
application.
[9]
The service of the application by the Sheriff in the manner he did is
in my view proper, sufficient and in compliance with Rule
4 of the
Uniform Rules of Court. This is not a case where the premises of the
Applicant were unoccupied but an instance where person(s)
at the
Applicant’s residence refused to accept service. It is highly
unlikely that the security guards at his house would
not have brought
the application to his attention.
[10]
After obtaining the Court order on 21 February 2017 the
Municipality’s attorneys of record made efforts to bring the
order to the Applicant’s attention. The Sheriff made attempts
to serve the Court order on the Applicant on 10 March 2017,
13 March
2017 and 31 March 2017. In all the three occasions the Sheriff found
the gate locked. On the 4 April 2017 the Sheriff
served the Court
order at the Applicant’s residence by “handing a copy
thereof to a male person who refused to disclose
his name”.
This was a proper service of the Court order. However, the Applicant
is not candid with the Court to concede that
the Court order did come
to his knowledge. This is a further demonstration of the Applicant’s
willful conduct.
[11]
On 2 March 2017 the Municipality’s attorneys of record
addressed letters to both Mohale Incorporated Attorneys and Mapotene
Mangena Attorneys bringing the Court order to their attention. The
two firms of attorneys acted for the Applicant in many of the
previous Court proceedings involving the Municipality. Mohale
Incorporated are still acting for the Applicant in two pending
matters
in the Constitutional Court and Mapotene Mangena Attorneys
are the Applicant’s attorneys of record in this matter. It is
highly unlikely that these attorneys could not have brought the Court
order to the attention of the Applicant.
[12]
I make a finding that the Applicant’s default was willful as he
had knowledge of the application and its legal consequences
but took
a conscious decision freely and voluntarily and refrained from
opposing the application. I agree with the submission made
by the
Municipality’s Counsel that the explanation proffered by the
Applicant why he was not in willful default is not only
insufficient
but it is also deliberately misleading to the Court.
The
application for rescission falls to be dismissed on this basis alone.
[13]
Is this application for rescission
bona fide
? I am inclined to
make a finding that the Applicant is not
bona fide
in
launching and proceeding with this application. He abandoned the
application after receipt of the Municipality’s answering
affidavit only to emerge at the last minutes on 11 May 2018 (after
nine months) to file his replying affidavit. He failed to set
down
the application for hearing prompting the Municipality to obtain a
date for hearing and setting the matter down for hearing.
He ignored
the Municipality attorneys’ request for his replying affidavit
or to set the matter down for hearing. His willful
default continues.
[14]
The Applicant’s conduct is inconsistent with a
bona
fide
intention to defend the matter. It
is trite that the conduct and motives of the Applicant for a
rescission of judgment are relevant
factors to be considered by the
Court.
In
Silber v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(AD)
it was held that in
order to show good cause the Defendant must at least furnish an
explanation of his default sufficiently full
to enable the Court to
understand how it really came about, and to assess his conduct and
motives.
[15]
Upon perusal and consideration of the Applicant’s founding
affidavit I come to the conclusion that no
bona
fide
defence has been disclosed by the
Applicant. At paragraph 15 of his founding affidavit the Applicant
states:
“…
.In
order to avoid burdening this application with unnecessary detail
full details of the reasons and grounds for each application
cannot
be dealt with herein. I will however in my answering affidavit in the
main application set out the detail of circumstances
under which each
application were launched and the grounds for it with specific
reference to the papers of each application”
With
respect, the Applicant seems to have arrogantly granted himself the
rescission order. This is wrong. He is obliged to
disclose the basis of his
defence, if any,
at this stage and not assume that the judgment would
obviously
be rescinded whereafter he would put up his defence.
[16]
I come to the conclusion that no case has been made out in the
Applicant’s founding affidavit to allow this Court to
determine
whether to grant the rescission application. This is so when taking
into consideration the following aspects:
16.1. Willfulness in the
Applicant’s conduct;
16.2. Lack of sufficient
cause for failure to oppose the main application;
16.3.
The Applicant is not
bona fide
in
bringing the rescission application; and
16.4.
The fact that the Applicant did not disclose a
bona
fide
defence.
[17]
In the result the application is dismissed with costs.
_________________________
E M
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on : 14 MAY 2018
For
Applicant : Adv. J A L Pretorius
Instructed
by : Mapotene Mangena Inc
Polokwane
For
Respondent : Adv. K T Mokhatla
Instructed
by : Hogan Lovells Attorneys
c/o
Maboku Mangena Attorneys
Polokwane