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[2015] ZAGPPHC 68
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Tshwane University of Technology v Dladla (8104/2014) [2015] ZAGPPHC 68 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION,PRETORIA)
CASE NO: 8104/2014
DATE: 4 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
IN
THE MATTER BETWEEN
:
TSHWANE
UNIVERSITY OF
TECHNOLOGY
...................................................................
APPLICANT
AND
MBONISENI YSTER
DLADLA
...........................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN J:
1. On the 1
st
of February 2014, this Court on an urgent basis and at the instance
of the respondent, granted an order in the following terms
against
the applicant:
i. It found that the
evictions that were effected at the applicant’s residences on
the 31
st
of January 2014 were unlawful;
ii. It ordered the
applicant to immediately allow all students who were evicted from its
residences back into these residences;
iii. It directed the
applicant to pay the costs of the application on a scale as between
attorney and own client.
2.
The applicant has launched these proceedings to seek the rescission
and the setting aside of the order granted on the 1
st
of February 2014 and brings the application in terms of the
provisions of Rule 42(1) of the Uniform Rules of this Court. The
stance
of the applicant is that the order of the 1
st
of February 2014 was erroneously sought and erroneously granted.
THE
BACKGROUND TO THE DISPUTES BETWEEN THE PARTIES AND
THE
ORDER OF THE 1
st
OF FEBRUARY 2014
3. During January
2014, the campus of the applicant was plagued and seriously affected
by student protests, some of which resulted
in considerable violence
and damage to property.
4. On the 31
st
of January 2014, the applicant approached this Court on an urgent
basis and secured relief against the first respondent and various
other individuals and student organisations. This effectively
interdicted the respondents from protesting on any campus of the
applicant. The order also interdicted the respondents from
threatening, intimidating and / or harassing the staff of the
applicant.
5. On the 30
th
of January 2014, the applicant caused a notice to be issued to all
students on its campuses advising of the closure of the campuses
and
directing all residential students to vacate their rooms by 7:30a.m.
on the 31
st
of January 2014.
6. It is of interest
that the written notice of the 30
th
of January 2014 was
not part of the papers filed by the applicant in support of the order
it obtained on the 31
st
of January 2014 nor was there any
indication in the applicant’s papers in those proceedings that
the students would be required
to vacate residences. In those
proceedings the applicant had simply stated that ‘the Pretoria
West campus of the applicant
had been closed indefinitely.’
7. When regard is
had to the order of the 31
st
of January 2014, no relief is
sought or granted relative to the closing of the campus or the
vacating of residences.
The order read in
its entirety is correctly characterised as an anti-protest order
rather than one that seeks to effect the closure
of the campus and
ensure the residences are vacated.
8. Following the
issue of the ‘letter to vacate’ on the 30
th
of
January 2014, large numbers of students vacated the various
residences of the applicant on the 31
st
of January 2014.
While there appears to be some dispute as to whether they vacated the
residences voluntarily or were compelled
to do so, it must be evident
that the notice of the 30
th
of January 2014 was the
trigger for the residences being vacated and the letter indeed was
peremptory in form and tone.
9. The respondent in
his personal capacity as president of the Central Student
Representative Council and on behalf of the students
who were
residents of the applicant’s residences, then brought urgent
proceedings which resulted in the grant of the order
which is now the
subject of this application.
10. Those
proceedings came before this Court on Saturday the 1
st
of
February 2014 at 1:00p.m. and it is necessary to set out the timeline
and events that preceded the hearing of the application:
10.1 During the
evening of Friday the 31
st
of January 2014, counsel for
the respondent, Advocate Jordaan called the Registrar of the
applicant, Professor Mothatha informing
him that an urgent
application was being planned regarding the evictions and also
seeking contact details of the applicant’s
attorneys. Professor
Mothatha was unable to provide these;
10.2
Professor
Mothata was also requested to contact his colleagues in senior
management to reconsider the evictions;
10.3 Professor
Mothata states that he was unable to contact anyone who was part of
the Executive Management Committee and later
that evening he called
Advocate Jordaan to inform him accordingly
10.4
At
1:23a.m. on the 1
st
of February 2014 the Notice of Motion and Founding Affidavit were
e-mailed to three members of the Executive Management Committee,
namely Professor Ogude (Vice Chancellor), Professor Moroka (Deputy
Vice Chancellor) and Professor Mothata (Registrar). The respondent
relies on an e-mail read receipt dated the 1
st
of February 2014 at 8:10a.m. which suggests that the e-mail was read
at that time by Prof Ogude. Professor Ogude denies reading
the email.
10.5 On the 1
st
of February 2014, Miss Jacobs, the attorney of the respondent, called
and left messages on the phones of Professor Ogude and Professor
Moroka. She called Mr Tlhabadira, the Deputy Vice Chancellor for
Institutional Support, who referred her to the Registrar, Professor
Mothatha.
10.6 Ms Jacobs then
spoke with Professor Mothatha at about 11:00a.m. and informed him
that the matter was to be heard at 1:00p.m.,
enquired as to whether
the applicant intended opposing the application, and whether it had
appointed legal representatives to act
on its behalf. Professor
Mothatha was unable to provide any information to her and his stance
was that there was very little he
could do as he did not have contact
details of the applicant’s attorneys. Professor Mothatha does
not appear to have attempted
to contact any of his colleagues in
senior management on the 1
st
of February 2014 to share and
/ or discuss the implications of his conversations with Ms Jacobs and
his discussion the night before
with Advocate Jordaan.
10.7 Both Prof.
Mothatha and Mr Tlhabadira are members of an eight person Executive
Management Committee.
11.
The application was then heard at 1:00p.m. and the order in question
was granted in favour of the respondent. The applicant
was not
present nor was it represented when the order was granted.
BASIS FOR THE
RELIEF SOUGHT
12.
The applicant contends that the order of the 1
st
of February 2014 was erroneously sought and granted in two respects:
i. To the extent
that the application was brought as a class action there was no prior
certification of the action and the Court
erred in entertaining it as
a class action when it was not competent to do so; and
ii.
The
Court erred in concluding that there was proper service and
notification to the applicant when it granted the final interdict.
13.Rule 42(1)
provides that a Court may rescind or vary an order or judgment
erroneously sought or erroneously granted in the absence
of any party
affected thereby.
14
In
LODHI2 PROPERTIES INVESTMENTS CC & ANOTHER
v
BONDEV
DEVELOPMENTS (PTY) LTD
2007
(6) SA 87
the Court captured the following principles relevant to the
application of Rule 42(1) and some of them are that:
i.
A
judgment to which a party is procedurally entitled cannot be
considered to have been granted erroneously;
ii.
Where
notice of proceedings to a party is required and judgment is granted
against such a party in their absence without notice
of proceedings,
such a judgment is granted erroneously;
iii.
In
order to determine whether proper notice had been given regard could
also be had to evidence external to the record which existed
at the
time the order was granted; and
iv.
An
order is erroneously granted when it is not legally competent for the
Court to have made such an order.
15. It is against
the above principles that one proceeds to examine the challenge of
the applicant:
PRIOR
CERTIFICATION REQUIRED
16
.
The respondent in his founding affidavit states that he brings
proceedings on his own behalf and on behalf of other students who
are
residents of the first respondent’s residences. He also then
goes on to state he acts in terms of the provisions of Sections
38(c), (d) and 9(e) of the Constitution. In considering the challenge
based on the absence of prior certification, it may be necessary
to
consider whether the proceedings of the 1
st
of February 2014 constituted a class action in the ordinarily
understood sense of the phrase.
17
In
CHILDREN'S RESOURCE CENTRE TRUST AND OTHERS
v
PIONEER
FOOD (PTY) LTD AND OTHERS
2013
(2) 213 SCA
,
the Court in dealing with the nature and utility of class actions,
characterised the action as being considerably wide in scope.
However
when one has regard to how the Court dealt with the rationale for
prior certification then it becomes evident that not
every action is
rendered a class action simply because it is styled as such:
'All of the
parties accepted that it is desirable in class actions for the court
to be asked at the outset, and before issue of
summons, to certify
the action as a class action. This involves the definition of the
class; the identification of some common
claim or issue that can be
determined by way of a class action; some evidence of the existence
of a valid cause of action; the
court being satisfied that the
representative is suitable to represent the members of the class; and
the court being satisfied
that a class action is the most appropriate
procedure to adopt for the adjudication of the underlying claims. In
my view they were
correct to do so and we should lay it down as a
requirement for a class action that the party seeking to represent
the class should
first apply to court for authority to do so. My
reasons for adopting that requirement are the following.
Most
jurisdictions around the world require certification either before
institution of the class action or at an early stage of
the
proceedings. The exception is Australia. The justifications are
various. First, in the absence of certification, the representative
has no right to proceed, unlike litigation brought in a person’s
own interests. Second, in view of the potential impact of
the
litigation on the rights of others it is necessary for the court to
ensure at the outset that those interests are properly
protected and
represented. Third, certification enables the defendant to show at an
early stage why the action should not proceed.
This is important in
circumstances where the mere threat of lengthy and costly litigation
may be used to induce a settlement even
though the case lacks merit.
Fourth, certification enables the court to oversee the procedural
aspects of the litigation, such
as notice and discovery, from the
outset. Fifth, the literature on class actions suggests that, if the
issues surrounding class
actions, such as the definition of the
class, the existence of a prima facie case, the commonality of issues
and the appropriateness
of the representative are dealt with and
disposed of at the certification stage, it facilitates the conduct of
the litigation,
eliminates the need for interlocutory procedures and
may hasten settlement. Lastly the Australian experience has not
proved entirely
satisfactory, with numerous interlocutory
applications and significant costs and delays being experienced.
’
(at
226H-227F)
18. In the light of
the above I would have considerable doubt as to whether the
interdictory relief sought and granted in this matter
was in the
nature of a class action. An interdict was sought on behalf of a
defined group of people. No damages were sought and
the relief sought
and the duration of the matter were destined to be limited in extent.
Indeed the respondent also purported to
act in terms of Section 38(d)
and Section 38(e) and on the facts it could hardly be said that the
application, concerning as it
did the eviction of number of students
from their residences, was not of the kind that brought it into the
realm of an action in
the public interest. I would therefore take the
view that there was no need for reliance to be placed under those
circumstances
on standing in terms of Section 38(c) and to the extent
that it was done, it was superfluous.
19.
However if I am wrong in that assessment and conclusion then when one
has regard to
MUKADDAM v PIONEER FOODS
2013 (5) SA 89
CC
,
the Court in dealing with what it described as the requirements for
certification laid down in
CHILDREN’S
RESOURCE CENTRE
,
elected not to see them as requirements that a party was obliged to
meet but rather as factors to take into account in determining
where
the interests of justice would lie, the latter being the guiding
principle that would guide the Court. It surely must follow
that both
the interests of justice requirement as well as those factors set out
in the
CHILDREN’S RESOURCE CENTRE
case
were more than evident from the papers before the Court, even if they
were not pertinently identified and tabulated as such.
These factors
are:
i. A common claim
that can be determined by way of class action - the eviction of
students from residences;
ii. Evidence of the
existence of a valid cause of action - the assertion that there was
an eviction that was not authorised by law;
iii. Suitable
representative to represent the class - the respondent as President
of the Student’s Representative Council;
iv.
Class
action the most appropriate procedure to adopt for the adjudication
of the claim.
20.
The Court was clear in
MUKADAM
that
when it came to the enforcement of a right in the Bill of Rights,
prior certification was not required before bringing a class
action.
It, however, left open the question as to whether the institution of
a class action against a private litigant requires
prior
certification and for the reasons already given that question need
not be determined in the context of adjudicating this
application.
21.
Clearly prior certification in the context of an urgent application
to vindicate a right may well have the effect of creating
a
significant procedural obstacle for parties seeking relief under
circumstances where time is of the essence.
22.
For these reasons I am not convinced that this was a class action,
alternatively if it was then all the requirements for certification
were met and the Court was procedurally competent to deal with it as
such. I would not uphold the challenge on this basis.
THE
QUESTION OF WHETHER THERE WAS PROPER SERVICE AND
NOTIFICATION
23. From the
background facts it is clear that there was considerable tension and
conflict on the applicant’s campus and that
its decision to
close its Pretoria West campus may well have been understandable and
possibly justifiable. However it was evident
to the applicant that
such closure would carry with it the need to vacate the residences. I
find it quite unusual that the Court
dealing with the urgent
application at the instance of the applicant was not asked to deal
with this issue nor was the existence
of the letter to vacate bought
to its attention. I will say no more on that aspect.
24.
When it became evident that an application was being prepared and
when one examines the actions of the applicant and the respondent,
the following emerges:
i.
The
respondent sought on Friday the 31
st
of January to contact the applicant’s attorney, but without
success as it was late in the day;
ii.
The
respondent advised the Registrar, a member of the Executive
Management Committee, of its intention to bring an urgent
application.
Even though no final date and time was given, the
Registrar must have been aware of the urgency of the situation;
iii. The following
day two members of the Executive Committee were informed about the
application but neither appeared to do anything
about it by way of
informing other members of the Executive Committee;
iv.
It
is indeed remarkable that the applicant, faced with violent and
militant conduct on its campus, was unable to respond to the
various
notices it received regarding the urgent application;
v.
From
Friday evening at about 7:30p.m. when there was already notice of a
pending application, until the following day, Saturday,
the Registrar
was simply unable to reach members of the Executive Committee. It is
difficult to conceive how this was possible
in the context of an
institution that was facing a serious crisis.
25. My view is that
from the record of the proceedings before the Court on the 1
st
of February 2014, the presiding Judge was indeed concerned about
service of the application and notification to the applicant.
The
affidavit deposed to by Ms Jacobs of the 1
st
of February
2014 sets out the various steps taken by the respondent to bring the
application to the attention of the applicant
and those appear to be
reasonable in the circumstances .
26.
The applicant, with respect, dealt with the notifications it received
in a cavalier fashion. On Friday the 31
st
of January 2014, the Registrar was simply unable to get hold of the
members of the Executive Management Committee - this on the
same day
that the applicants secured an order in their favour and under
circumstances where the tension and conflict on its campus
persisted.
27.
On Saturday and even after two members of the Executive Management
Committee received notification of the time of the application,
nothing was done to share the information with other members, or to
attempt to instruct attorneys or at least to respond in some
substantive manner to the application.
28.
Under such circumstances my view is that the respondent acted
reasonably in the circumstances and the non-appearance of the
applicant during the proceedings, which resulted in the grant of the
order, was largely due to its own inaction after being alerted
that
the application was being brought.
29.
I am accordingly not satisfied that the applicant has made out a case
that it did not receive proper notification of the application.
Regard must not be lost of the fact that the application was by its
very nature urgent and in such instances the Court is justified
in
dispensing with the ordinary rules. The affidavit of Ms Jacobs is not
disputed in any significant aspect save that it was not
possible to
convene a meeting of the Executive Committee over the weekend - such
a stance can never justify the failure to respond
to the urgent
application.
30. In my view the
application falls to be dismissed with costs and I make the following
order:
ORDER
31. The application
is dismissed with costs.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
8104/2014
HEARD ON: 29 JANUARY
2015
FOR THE APPLICANTS:
ADV. B H SWART SC
INSTRUCTED BY:
JARVIS JACOBS RAUBENHEIMER INC (ref: Raubenheimer/YW/MAT2059)
FOR THE RESPONDENTS:
ADV. D W JORDAAN
INSTRUCTED BY:
LAWYERS FOR HUMAN RIGHTS (ref: LHR/NEJ/TUT)