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[2016] ZAFSHC 4
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Mokoena and Others v Lengoabala; In re: Lengoabala v Nhlapo and Others (1166/2012) [2016] ZAFSHC 4 (22 January 2016)
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Certain
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IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION: BLOEMFONTEIN
Case
No.: 1166/2012
In
the matter between:-
LANNY
MOKOENA
First Applicant
JOSEPH
MOLABA
Second Applicant
KANTI
MIYA
Third Applicant
KOBELI
MOKOENA
Fourth Applicant
LAZARUS
MABILI
Fifth Applicant
MOJALEFA
MTAMBO
Sixth Applicant
JOSEPH
NHLAPO
Seventh Applicant
DANIEL
MOTAUNG
Eight Applicant
THABO
LEABA
Ninth Applicant
and
DAVID
LENGOABALA
Respondent
In
re:
DAVID
LENGOABLA
Applicant
and
JOHANNES
NHLAPO
First Respondent
THABO
LEABA
Second Respondent
LANY
MOKOENA
Third Respondent
JOSEPH
MOLABA
Fourth Respondent
KANTI
MIYA
Fifth Respondent
KOBELI
MOKOENA
Sixth Respondent
LAZARUS
MABILI
Seven Respondent
MOJALEFA
MTAMBO
Eight Respondent
DANIEL
MOTAUNG
Ninth Respondent
CORAM:
DAFFUE,
J
JUDGMENT BY:
DAFFUE,
J
HEARD
ON:
12
NOVEMBER 2015
DELIVERED ON:
22
JANUARY 2016
I
INTRODUCTION
[1]
This is a belated application in terms of the common law for
rescission of a judgment. The notice of motion does not contain
a prayer for condonation although averments were made in this regard
in the founding affidavit. The judgment applicants seek
to set
aside was granted in interdict proceedings as long ago as 31 May
2012. The present application was issued in November
2014 and
heard by me exactly a year later when I reserved judgment. Both
applications bear the same case number, to wit 1166/2012.
II
THE PARTIES
[2]
There are nine applicants, to wit Messrs Lanny Mokoena, Joseph
Molaba, Kanti Miya, Kobeli Mokoena, Lazarus Mabili, Mojalefa
Mtambo,
Jospeh Nhlapo, Daniel Motoung and Thabo Leaba. First applicant
deposed to the founding and replying affidavits in
this application
whilst Mr Nhlapo, the seventh applicant, deposed to the answering
affidavit in the initial application, he being
cited in that
application as the first respondent.
[3]
All nine applicants are now represented by a Johannesburg firm of
attorneys, TT Hlapolosa Attorneys Inc. whilst they were previously
represented by Legal Aid South Africa during the original interdict
proceedings. Although applicants’ heads of argument
was
drafted by Adv MZ Makoti, an attorney, Mr Lesome, presented oral
argument before me on their behalf.
[4]
Respondent in this application and the applicant in the interdict
proceedings is Mr David Lengoabala. He was at all relevant
times represented by the same Bloemfontein firm of attorneys,
Phatshoane Henney Inc. Adv Loubser appeared for him in the
interdict proceedings, but he was represented by adv P R Cronje in
the rescission application. In order to avoid confusion
I shall
throughout refer to the parties as cited in the rescission
application.
III
THE RELIEF
CLAIMED
[5]
Applicants seek the following relief
ex
facie
their notice
of motion:
“
1.
Setting aside the order of the above Honourable Court granted on the
31
st
May 2012.
2. Ordering the Respondent to pay the Applicants
costs only in the event of opposition alternatively costs be
costs in
the main application.
3.
Further and/or alternative relief.”
IV
THE FACTUAL
MATRIX
[6]
The following background appearing from the undisputed facts is
relevant:
6.1
On 16 March 2012 respondent brought an urgent application whereupon a
rule
nisi
was issued calling upon the present applicants to show cause on
Thursday, 12 April 2012 why the following orders should not be
made:
“
2.1
That the respondents are restrained and interdicted from attacking,
injuring or threatening violence
against applicant or any members of
his household and family;
2.2 That the respondents are restrained
and interdicted from attacking, causing damage or threatening
violence to any properties and assets belonging to the applicant or
members of his household and family;
2.3 That the respondents are restrained
and interdicted from using vulgar and abusive language against
the
applicant or members of his household and family;
2.4
That such respondents opposing this application be ordered to pay the
costs thereof, jointly and
severely.”
The
orders contained in paragraph 2.1, 2.2 and 2.3
supra
served as interim interdicts with immediate effect pending the
outcome of that application.
6.2
The rule
nisi
was extended on two occasions, first of all because applicants failed
to file their answering affidavits timeously and secondly
because of
respondent’s failure to file his replying affidavit timeously.
The application was eventually heard on 31
May 2012.
6.3
On 31 May 2012 Mr Loubser appeared on behalf of respondent before
Snellenburg AJ whilst Me Oosthuizen
of Legal Aid SA appeared on
behalf of applicants. The learned judge was informed
ex
facie
the
transcript of proceedings placed before me that the parties had
settled the merits of the application and that prayers 2.1,
2.2 and
2.3 of the rule
nisi
should be made orders of court subject to minor amendments.
6.4
There was clearly no agreement as to the costs of the application.
The following is
quoted and I regard it as important as will be
appearing from my analysis
infra:
“
All
that I actually want to convey is that
I
initially assumed and I also conveyed the same to my learned friend
that it was not necessary for the court to make the costs
order
.
I took it on two basis (sic), the one is that the applicant says in
his own pieces (sic) the respondent …. and now
we further know
from the pieces (sic) that nine respondents received legal assistance
to defend the action, for that reason I was
under the impression that
the costs order that the court would make against the respondents
would not have much effect because
their wishes were unsuccessful and
the application is not going to have any effect, because these people
have nothing, that is
how I felt. I received instructions
(between themselves).
Court
:
Your client does not feel the same?
Mr
Loubser:
I received instructions that
it was now such that they have nothing, and applicant will in the end
be saddled with a
nulla bona
return and then it is in any case the end and
I
received instructions to ask for costs
.
It is the only reason why my learned friend, I am here before you.”
“…
Mr Loubser:
To utilize it to reach settlement
so that a court of this stature does not have to listen to this type
of application and listen to arguments over it, but in the
end there
are two factors …”
(emphasis
added)
6.5
Me Oosthuizen was totally taken by surprise when she was confronted
with Mr Loubser’s stance
that respondent would be asking for
costs. She did not have instructions to argue costs and
informed the court accordingly.
However, she did her best to
argue, bearing in mind the general principle that costs follows the
suit.
6.6
Taxation of the bill of costs took place in July 2012 without
applicants personally being informed
of such taxation. Nothing
further transpired for approximately 18 months as far as the
applicants were concerned.
6.7
During December 2013 applicants were confronted with notices in terms
of s 65 of the Magistrates’
Court Act in terms whereof they
were to appear in the Bethlehem magistrate’s court for the
required financial enquiry and
in order to obtain orders against them
for payment of the taxed costs in the high court application.
6.8
I am prepared to accept the affidavit of Mr Harrington, an attorney
practising in Bethlehem and
acting on behalf of respondent, who was
responsible for issuing of the s 65 notices. It is clear that
seven of the nine applicants
not only appeared in the magistrate’s
court, but made offers to pay the judgment debt in instalments.
Several of them
have in fact been paying several monthly amounts from
about 30 April 2014 in accordance with their undertakings and
subsequent
court orders. Although first applicant attended
court proceedings he did not make an offer as he alleged at the time
that
he was not employed. The s 65 notice could not be served
on Mr Kobeli Mokoena by the time Mr Harrington made his affidavit.
Although seven applicants made offers to pay, three of them have not
made any payments at all.
6.9
Ex facie
the application papers, no letters were sent on behalf of applicants
to respondent’s attorneys informing them of the intention
to
apply for rescission of the aforesaid judgment. The notice of
motion is dated 12 November 2014, but it is unclear when
exactly it
was issued. Answering and replying affidavits were filed on 15
and 30 January 2015 respectively. Nothing
happened for four
months until 2 June 2015 when applicants’ attorney set the
application down for hearing on 18 June 2015,
only to remove the
matter from the roll on 12 June 2015 unilaterally.
6.10
On 28 August 2015 respondent’s attorney set the matter down for
hearing on 17 September 2015.
In the absence of both the
Bloemfontein and Johannesburg attorneys of applicants, but in the
presence of applicants who personally
attended court, the matter was
then postponed to 12 November 2015 and both firms of attorneys were
called upon to show cause why
they should not be ordered to pay the
costs of postponement
de
bonis propriis
.
V
EVALUATION OF
OPPOSED APPLICATIONS
[7]
In motion proceedings the affidavits constitute both the pleadings
and the evidence and the issues and averments in support
of the
parties’ cases should appear clearly therefrom. See
Minister of Land
Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D. It is trite that the applicant
in application proceedings must make out his/her case in the founding
affidavit.
A litigant should not be allowed to try and make out
a case in the replying affidavit. The founding affidavit must
contain
sufficient facts in itself upon which a court may find in the
applicant’s favour. An applicant must stand or fall by
his/her founding affidavit. See
Director
of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H – 636D.
[8]
A court should adjudicate factual disputes in application procedure
having regard to the well-known
Plascon-Evans
Paints
dicta
recently approved and considered in more depth in
Wightman
t/a JW Construction v
Headfour
(Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA). I quote from paras [12] and [13]:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion, must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa v Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C
with which I respectfully agree. (I do not overlook that a reference
to evidence in circumstances discussed in
the authorities may be
appropriate.)
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied that the party who purports to raise
the
dispute has in his affidavit seriously and unambiguously addressed
the fact said to be disputed. There will of course be instances
where
a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore
be
expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party
and no
basis is laid for disputing the veracity or accuracy of the averment.
When the facts averred are such that the disputing
party must
necessarily possess knowledge of them and be able to provide an
answer (or countervailing evidence) if they be not true
or accurate
but, instead of doing so, rests his case on a bare or ambiguous
denial the court will generally have difficulty in
finding that the
test is satisfied. I say ‘generally’ because factual
averments seldom stand apart from a broader matrix
of circumstances
all of which needs to be borne in mind when arriving at a decision. A
litigant may not necessarily recognise or
understand the nuances of a
bare or general denial as against a real attempt to grapple with all
relevant factual allegations made
by the other party. But when he
signs the answering affidavit, he commits himself to its contents,
inadequate as they may be, and
will only in exceptional circumstances
be permitted to disavow them. There is thus a serious duty imposed
upon a legal adviser
who settles an answering affidavit to ascertain
and engage with facts which his client disputes and to reflect such
disputes fully
and accurately in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a
robust
view of the matter.”
VI
THE LAW
RELATING TO APPLICATIONS FOR RESCISSION OF JUDGMENT
[9]
It is not applicants’ case that they are entitled to relief in
accordance with Uniform Rule of Court 31. In fact,
although
there is no indication from either the notice of motion or the
founding affidavit whether they rely on rule 42(1) or the
common law,
it is now apparent that they rely on the common law only. The
counsel who prepared the heads of argument on their
behalf submitted
that either rule 42(1) or the common law finds application in
casu
.
However, Mr Lesome submitted during his oral argument that rule 42(1)
is not applicable and that relief could and should
only be granted in
terms of the common law.
[10]
Rule 42(1)(a) stipulates as follows:
“
The
court may, in addition to any powers it may have
mero
motu
or upon the application of any
party affected, rescind or vary: (a) an order or judgment
erroneously
sought
or
erroneously
granted
in
the absence of any party
affected
thereby. …”
The
other sub-rules are clearly irrelevant. The most important
jurisdictional fact which could not be established to be successful
in terms of rule 42(1)(a) is the fact that the order of 31 May 2012
was not made in applicants’ absence. Their attorney
was
present and even argued costs on their behalf. See:
Britz
and Others v Matloga and Others
(21653/2011) [2015] ZAGPPHC171 (25 March 2015) at para [21].
Therefore, even if applicants personally did not attend the
proceedings, the judgment was not granted in their absence and Mr
Lesome’s concession was therefore correctly made.
It is
in the light hereof unnecessary to labour the issue any further
pertaining to the other requirements of rule 42(1)(a).
[11] The requirements for rescission of judgment at
common law are the following:
(a) The applicant must proffer a reasonable
explanation of the circumstances in which judgment was entered;
(b) The application must be
bona fide
;
(c)
The defence on the merits of the case must
prima
facie
carry some
prospect of success.
These
factors must be viewed in conjunction with each other and with the
application as a whole and too much emphasis should not
be placed on
any of them as an unsatisfactory explanation may be strengthened by a
very strong defence on the merits. See
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at para 11.
[12]
In order to consider the reasonableness of the explanation proffered
by an applicant and the
bona
fide
s of his or her
application for rescission, it may also be considered whether or not
the applicant acted in a manner inconsistent
with an intention to
apply for rescission of judgment. Such conclusion may be drawn
if he or she has acquiesced in the judgment
granted against them.
See
Qoboshiane NO
and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
2013
(3) SA 315
(SCA) at para [3].
[13]
An application for rescission of judgment under the common law may be
granted if the judgment was obtained by
inter
alia
fraud or
iustus error
.
In
casu
there is no suggestion of fraud, but it will have to be considered
whether a
iustus
error
occurred.
I will deal with this issue
infra
,
but wish to mention at this stage that respondent holds the view that
he and/or his legal representatives did nothing that could
have
contributed to any alleged
iustus
error
on behalf of applicants. Whether this viewpoint is correct
needs to be considered.
VII
EVALUATION OF
THE EVIDENCE, LEGAL PRINCIPLES AND SUBMISSIONS BY THE PARTIES
[14]
Applicants want to create the impression of total ignorance of many
aspects, such as the agreements relating to extension of
the rule
nisi
,
the reasons why the rule
nisi
had to be extended, the advice pertaining to the concessions to be
made, the acceptance of such advice, the instructions in that
regard
as well as the ultimate conveyance of the terms of the court order of
31 May 2012 to Mr Nhlapo, the seventh applicant and
spokesperson at
all relevant times during the interdict proceedings. I am
prepared to accept Me Van Rooyen’s version
in this regard.
Instructions to concede the merits were in fact received from Mr
Nhlapo on behalf of himself and the other
applicants and the contents
of the aforesaid court order were eventually conveyed to him.
There is no reason to reject this
version as being far-fetched and/or
untenable. In this regard Mr Nhlapo’s version is not only
vague, but improbable
and insofar as his version is contradicted by
that of Me Van Rooyen, her version is accepted.
[15]
Mr Lesome argued that there is a difference between a settlement
agreement and a concession of the merits. He submitted
that
there was in
casu
no settlement agreement, but merely a concession of the merits.
The applicants did not seem to be bothered by the relief
granted in
terms of prayers 1, 2 and 3 and the only issue was the costs order
against them. If they (the applicants) had
to pay costs, no
settlement agreement would be reached between the parties.
Therefore Mr Lesome submitted that the only issue
to be considered in
casu
was indeed the costs issue as it would not be in the interest of
justice to reopen the case and allow arguments to be heard on
the
merits.
[16]
Mr Lesome also submitted that it is clear from the transcript of
proceedings before Snellenburg AJ that Me Ooshuizen did not
have
instructions to argue costs and was not ready to present a forceful
argument. In this regard she did not act in the
best interests
of applicants and notwithstanding a general mandate she needed
specific instructions to argue costs which she did
not have. It
is clear that Me Oosthuizen found herself between the devil and the
deep blue sea at the moment when the merits
were conceded and Mr
Loubser informed the court that he had received instructions to argue
costs. Bearing in mind the concession
on the merits, there was
literally nothing that Me Oosthuizen could do to advance the case of
her clients. If she asked for
a postponement to obtain proper
instructions the applicants would have been mulcted with a costs
order in respect of wasted costs
and it is uncertain what could have
been achieved by a postponement in any event. She might have
informed the court, with
the benefit of hindsight, that the merits
were conceded on the basis that a settlement was agreed upon on the
basis that the applicants
would not be liable for respondent’s
costs of the application, bearing in mind that costs was never an
issue during settlement
negotiations if Adv Loubser’s version
is understood correctly.
[17]
Respondent stated in several paragraphs of his answering affidavit
that he was not the author of any misrepresentation relied
upon by
applicants. That may be so as he did not negotiate any
agreement with applicants directly. Negotiations took
place
between the legal representatives. There is no doubt in my
mind, having considered the record of proceedings, that
Me Oosthuizen
and/or Me Van Rooyen of Legal Aid SA were under pressure the morning
of 31 May 2012 to settle the matter and that
the one or the other or
both of them were brought under the impression by either Mr Loubser
or his attorney, acting on behalf of
respondent, that the matter
should be dealt with on the basis that the merits be conceded and
that not a word was spoken in respect
of costs. It is only in
open court when Mr Loubser addressed the court, to the surprise of Me
Oosthuizen, that he had in
the meanwhile received instructions from
his client to ask for costs.
[18]
In my view Mr Nhlapo, acting on behalf of applicants when instructing
the attorney to concede the merits, acted in
iustus
error
. If he
knew and/or if Mrs Oosthuizen and/or Mrs Van Rooyen knew that once
the merits were to be formally conceded in open
court, costs would be
argued, there would in all probability be no settlement or concession
at all. It would be clear that
a negative costs order would be
a foregone conclusion as costs would follow suit. I am
satisfied that applicants conceded
the merits based on
iustus
error
and that
respondent’s legal representative(s) should be blamed
therefore. As mentioned I base this on the version presented
by
Mr Loubser in open court.
[19]
However this is not the end of the matter. We are dealing in
essence with the issue of costs only. Snellenburg
AJ indicated
quite clearly during argument that he regarded the applicants’
version as far-fetched and/or untenable and made
it clear that he
would be prepared whilst studying the papers and accepting that it
was his
prima facie
view only, to grant the interdict even in the absence of any
concession. The general rule is that costs follow the event.
In such instances he would in all probabilities, bearing in mind his
comments, confirmed the rule
nisi
with costs.
[20]
Mr Lesome, if I understood him correctly, argued that the whole order
of 31 May 2012 should not be set aside, but merely the
costs order.
In my view this would be untenable and even if such an order is
granted, there is little doubt that the eventual
outcome would
probably be the same, bearing in mind the applicants’
concession in respect of the merits.
[21]
Notwithstanding my comments above I am satisfied that by their
conduct the applicants clearly and unconditionally decided to
abide
by the judgment of 31 May 2012. They have not convinced me of
the first two requirements for rescission of judgment
in terms of the
common law referred to above. Their right to apply for
rescission has become perempted. I refer to
Qoboshiane
NO and Others
loc cit
at para [3]. I have also considered the judgment of the SCA in
Rossitter and
Others v Nedbank Limited
[96/2014] ZASCA 196 (1 December 2015) para [10] and further where the
SCA came to a different conclusion, but upon facts which
are totally
different from the facts in
casu
.
See paras [10] and [11] of the judgment.
[22]
I am not satisfied with applicants’ version presented to me and
the explanations given as to why it took them nearly
a year to launch
the rescission application. Their inaction has not been
explained properly and is further evidence that
they acquiesced in
the orders made on 31 May 2012. It is only when the shoe
started to pinch and when some of them had to
make payment in terms
of the provisions of s 65 of the Magistrates’ Court Act that
they reconsidered the matter and eventually
instructed an attorney to
act on their behalf.
[23]
A matter should not be allowed to drag out indefinitely and
unnecessary time has already been wasted. Although a dismissal
of the application will have severe consequences for applicants, it
must also be recognised that finality in litigation must also
be
achieved.
[24]
I have considered the discussions between Snellenburg AJ and counsel
when arguments were advanced pertaining to costs and I
have also
scrutinised the founding affidavit to try and find evidence about the
strength of applicants’ defence in the interdict
proceedings.
I am not persuaded that applicants have made out a proper case in
respect of the third requirement for rescission
in terms of the
common law.
[25]
In conclusion applicants failed to convince me that they had met the
three requirements for rescission applications in
order to be
successful. They acquiesced in the judgment of 31 May 2012, the
explanations proffered are not reasonable and
I do not accept that
the application is
bona
fide.
In any
event I am not persuaded that they have a
bona
fide
defence on the
merits which carries some prospect of success.
VIII
COSTS
[26]
I was requested to grant a costs order in respect of the wasted costs
incurred on 18 June 2015. I have indicated above
that
applicants’ attorney enrolled the matter for that day, but
removed it again unilaterally less than a week before the
date of the
hearing. By that time the parties’ heads of argument had
to be filed in terms of the rules of practice
of this Division.
Applicants’ attorney should not have done that and respondent
is entitled to the wasted costs of
18 June 2015.
[27]
The wasted costs of 17 September 2015 must also be considered.
Phalatsi AJ, who presided over the matter that day, ordered
the
Bloemfontein correspondent attorneys, Morobane Inc. and the
Johannesburg attorneys, TT Hlapolosa Attorneys Inc. to provide
reasons why costs
bonis
propriis
should not
be granted against them. Both Messrs Morobane and Hlapolosa
filed affidavits to set out the relevant facts.
I am satisfied
with the explanation provided by Mr Morobane. His office was
nothing else but a “postbox” and
he did not hold any
instructions either to appoint counsel or to appear at court that
day. Mr Hlapolosa wanted
to put the blame on
respondent’s attorney for setting down the matter without prior
agreement. However it is clear
that applicants as
domini
litus
dragged their
feet over a period of several months. Respondent’s
replying affidavit was filed as long ago as 30 January
2015 and in
terms of the practice in the Free State the matter could have been
set down for hearing in February 2015 already.
Nothing happened
ex facie
the papers until the matter was initially set down for hearing on 18
June 2015, i.e. five months later. Instead of the matter
being
argued, it was removed from the roll unilaterally. Respondent’s
attorneys eventually set the matter down for
17 September 2015 by
giving proper and due notice to applicants’ attorney.
[28]
There is no indication that applicants’ attorney was
dissatisfied with the set down although Mr Hlapolosa wanted
to convey
to the court that there was a standing agreement that the matter
would be set down for a date that suited both counsel.
Instead
of communicating with respondent’s attorney, explaining the
predicament, he merely communicated with his clients
in order to seek
financial funding and eventually instructed them to personally attend
court on the 17 September 2015. He
failed to attend and failed
to instruct, even a junior counsel or attorney, to attend and explain
his predicament. This is
inexplicable behaviour and contrary to
what is expected of an attorney. It is a flagrant and gross
disregard of his duties
as officer of court. There is no reason
why the applicants, who had to incur costs to drive from Clarens in
the Eastern Free
State to Bloemfontein, a distance of 300km one way,
to attend court proceedings shall be penalised with a costs order.
There
is also no reason why respondent shall be held liable for the
wasted costs of 17 September 2015. It is apparent from the
e-mail communication presented to me during argument that applicants’
attorney did not play the game and did not co-operate
to finalise the
matter. As mentioned, finality could have been obtained in
February 2015 already if all parties were prepared
to co-operate
fully. On 29 June 2015 respondent’s attorney wrote an
e-mail to Mr Hlapolosa, advising him that respondent’s
counsel
was available for 31 July, 7 August or 14 August 2015 and requesting
Mr Hlapolosa to set the matter down for hearing on
any of these
dates. Nothing transpired and it is thus not surprising that
respondent’s attorney took the matter on
himself to set the
matter down for 17 September 2015. Mr Hlapolosa testified under
oath that he had received a notice of
set down as well as a notice of
withdrawal from his correspondent attorney, Mr Morobane and that
these documents came to his attention
on 10 September 2015 only.
It is apparent from Mr Morobane’s affidavit that the notice of
set down was e-mailed to
Mr Hlapolosa on 8 September 2015 and thus
nine days prior to the hearing on 17 September 2015. Mr Lesome
was not prepared
to make any submissions in respect of the costs
order to be made in this regard and left the matter for the court to
decide.
IX
ORDERS
[29]
Therefor the following orders are issued:
1.
The application for
rescission of judgment is dismissed.
2.
Applicants are directed
to pay respondent’s costs of the application, including the
wasted costs of 18 June 2015, but excluding
the wasted costs of 17
September 2015, such costs to be paid jointly and severally, the one
to pay, the others to be absolved.
3.
Thebogo Taunyane
Hlapolosa, a male attorney practising as such at [....], Bramley,
Johannesburg, Gauteng is directed to pay the
respondent’s
wasted costs of 18 September 2015
de
bonis propriis
.
_______________
J.
P. DAFFUE, J
On behalf of the applicants: Mr B. Lesome
Instructed by:
Matsepes Inc.
BLOEMFONTEIN
On behalf of the respondent: Adv. P. R. Cronje
Instructed by:
Phatshoane Henney Inc.
BLOEMFONTEIN
/EB