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[2015] ZAECBHC 26
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Elefu v Lovedale Public Further Education and Training College and Others (379/12) [2015] ZAECBHC 26 (24 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE NO:
379/12
In the matter
between:
ERNEST
BULELANI ELEFU
Applicant
and
LOVEDALE PUBLIC
FURTHER EDUCATION
AND
TRAINING COLLEGE
First Respondent
MINISTER OF
HIGHER EDUCATION
AND
TRAINING
Second Respondent
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE
DEPARTMENT OF EDUCATION
EASTERN
CAPE PROVINCE
Third Respondent
JUDGMENT
STRETCH
J:
1.
This
is an application for the rescission of an order issued out of this
court on 16 August 2012. For ease of reference I
shall refer to
the parties in the rescission application as follows:
a.
The
applicant will be referred to as Mr Elefu.
b.
The
first respondent will be referred to as Lovedale College (being a
public further education and training institution).
c.
The
second respondent will be referred to as the Minister (being the
Minister of Higher Education and Training).
d.
The
third respondent will be referred to as the MEC (being the member of
the executive council for the department of education in
the Eastern
Cape).
2.
Lovedale
College is the only party opposing the application for rescission.
3.
On
16 August 2012 Lovedale College brought an application in the High
Court sitting at Bhisho, under case no. 379/12. The
respondents
cited were the Minister as first respondent, the MEC as second
respondent and Mr Elefu as the third respondent.
4.
The
notice of motion in terms of which the order (now sought to be
rescinded) was granted, reads as follows:
‘
KINDLY
TAKE NOTICE that on 16
th
August 2012 at 11h00 or so soon thereafter as the matter may be
heard, the applicant will make an application before this Honourable
Court for an order in the following terms:
1.
Condoning
and dispensing with the normal forms and service for the hearing of
an application as set down in the rules of this Honourable
Court and
directing that this matter be enrolled and heard as one of urgency in
terms of Rule 6(12) of the rules of this Honourable
Court.
2.
That
a
Rule
Nisi
do hereby issue calling upon the respondents to show cause on the
13
th
September 2012 why an order in the following terms should not be made
final:
2.1
directing
the first respondent with immediate effect to remove the second
respondent from the payroll system for and on behalf of
the employees
of Lovedale FET College;
2.2
interdicting
the first respondent from paying any salary and/or any amount as
remuneration to the second respondent purportedly
in terms of the
employment relationship between the second respondent and the
applicant;
2.3
the
first respondent to pay the costs of the application.
3.
That
paragraph 2.1 and 2.2 shall operate as an interim order pending the
finalization of this application.
4.
Further
and/or alternative relief.’
5.
On
that day the then acting deputy judge president granted a final order
which reads as follows:
‘
Having
heard Adv. Nyangiwe, Counsel for the Applicant and Adv. Ntsaluba,
Counsel for the 1
st
& 2
nd
Respondents and having read the documents filed of record.
IT IS ORDERED THAT:
1.
The
Applicant’s failure to comply with the rules of this Court is
condoned and this matter is allowed to be enrolled and heard
as one
of urgency in terms of
Rule
6(12)
of
this Court’s rules;
2.
The
Second Respondent is directed forthwith to remove the Third
Respondent from the payroll system for and on behalf of employees
of
Lovedale
Further Education and Training
College;
3.
The
Second Respondent is interdicted from paying any salary and/or any
amount as remuneration or emoluments to the Third Respondent
purportedly in terms of an employment relationship between the Third
Respondent and the Applicant; and
4.
The
Second Respondent is to pay the Applicant’s costs of the
application.’
6.
On
25 July 2013 Mr Elefu issued an application for this order to be
rescinded. He also seeks the following relief:
a.
That
all other process issued after and/or on the strength of the said
“judgment” be set aside;
b.
Directing
the Minister to re-instate him on the payroll system for and on
behalf of the employees of Lovedale College;
c.
Directing
the Minister to pay his salary and/or remuneration for the period
September 2012 to July 2013, which he allegedly did
not receive as a
result of the aforesaid order (which he claims to have been granted
in error);
d.
Directing
Lovedale College to pay his costs.
7.
Mr
Elefu purports to seek rescission either in terms of rule 42(1)(a) of
the uniform rules of this court (in that the impugned order
was
erroneously sought or granted in his absence); alternatively, in
terms of the common law in that there is sufficient cause
to rescind
the judgment.
8.
His
grounds for seeking rescission are the following:
a.
The
application was not served on him personally which resulted in him
not receiving it “on time”.
b.
He
did however serve a notice of intention to oppose on Lovedale
College’s attorneys on 13 August 2012 which was filed with
the
registrar on 14 August 2012.
c.
A
final order was granted in his absence on 16 August 2012, despite the
fact that Lovedale College’s notice of motion purported
to
notify Mr Elefu, the Minister and the MEC that Lovedale College
intended applying on 16 August 2012 at 11h00 or as soon thereafter
as
the matter could be heard, that a
rule
nisi
be issued, calling upon Elefu, the Minister and the MEC to show cause
on 13 September 2012 why the order (which was granted on
16 August
2012 and which is the subject of this rescission application), should
not be made final.
d.
The
order was granted in his absence despite the fact that he had a
substantial interest in the outcome of the matter.
e.
The
notice of motion reflected that the application would be moved at
11h00, however when Mr Elefu arrived at court at 10h15 the
order had
already been granted.
f.
He
has good prospects of success in the main application in that:
i.
The
application brought by Lovedale College was fraudulent and without
merit, smacked of collusion and was brought to evade a fair
internal
disciplinary process.
ii.
Lovedale
College dishonestly stated in its founding affidavit that the college
council had “turned down” Mr Elefu’s
appeal on 30
April 2012 and had approved the immediate termination of his services
on 2 May 2012.
iii.
Council
members delivered affidavits confirming that they did not endorse,
sanction or instruct the appointment of an appeal authority
to
determine Mr Elefu’s appeal, nor did the college council
approve, sanction or confirm his dismissal.
iv.
Minutes
were submitted to confirm that the council only convened on 14 May
2012 when they were informed that Elefu’s dismissal
was a
fait
accompli
.
v.
Lovedale
College flouted internal processes, cheated its way through the
system to secure a fraudulent dismissal and submitted false
information to obtain the order sought to be rescinded.
vi.
In
its replying papers Lovedale College produced an irrelevant,
premature and deceitful arbitration award which failed to contradict
the evidence set forth in Elefu’s answering papers. The
reason why the arbitration award is irrelevant is because the
rescission application is confined to the events of 16 August 2012,
where the Court erred in not hearing from Mr Elefu as the affected
person and accordingly “accidentally” endorsed a
fraudulent dismissal and enforced a non-existent council resolution.
vii.
It
cannot be argued that the matter is
res
iudicata
as
no other competent court has dealt with the rescission application.
9.
Lovedale
College has opposed the application for rescission. In so
doing, it has raised three points
in
limine
:
a.
Mr
Elefu has not sought condonation, and has provided no reasons to
justify condonation being granted for him having brought this
application just short of a year after the order was granted.
b.
Although
Mr Elefu has stated that no relief is being sought against the
Minister and the MEC, he specifically prays that the Minister
be
directed to reinstate him on the payroll (on this point Mr Elefu in
argument before me elected and rightly so, to abandon his
prayers for
reinstatement on the payroll and for back-pay for the period
September 2012 to July 2013).
c.
Mr
Elefu has failed to mention that, subsequent to his appeal having
been dismissed, he referred the same matter to the bargaining
council
and raised identical arguments which were rejected and his dismissal
was confirmed.
10.
On
the merits of the application itself, it has been contended on
Lovedale College’s behalf that the following points which
it
has raised were not disputed by Mr Elefu in reply:
a.
That
he was served with charges of misconduct on 5 December 2011.
b.
That
he was found guilty, and that the delay in removing his name from the
payroll was occasioned by administrative bungling by
the province’s
department of education. Payment of money to an individual who is not
contractually obligated to render services
to Lovedale College is
fruitless and wasteful expenditure.
c.
Elefu
was represented by the union NEHAWU at all times. In his notice
of opposition he appointed the address of the NEHAWU
regional office
for service of all process and documents. There was accordingly
no need to serve documentation on him personally.
d.
The
order sought and granted which forms the subject matter of this
rescission application related only to the failure on the part
of the
MEC to remove Mr Elefu’s name from the payroll and did not
involve Mr Elefu in any way. That being the position,
his
absence or his presence at court on the day on which the application
for the issue of a rule
nisi
was
sought on the papers and final relief was granted, was in any event
immaterial.
e.
Mr
Elefu did not take the dismissal of his appeal any further, nor for
that matter the bargaining council’s ruling against
him.
Accordingly he had no right to remain on the payroll, and the
order granted by agreement amongst Lovedale College, the
MEC and the
Minister, was neither sought nor granted in error.
f.
The
correctness of Mr Elefu’s dismissal was fully aired during the
disciplinary hearing, on appeal from the disciplinary hearing
and in
the bargaining forum.
g.
The
disciplinary code was adopted by Lovedale College’s council and
was properly signed.
h.
Arguments
now raised relating to the code of conduct were previously raised
before the bargaining council with no success. From
this it is
clear that Mr Elefu was afforded a hearing
de
novo
and that his case was rejected on three occasions.
i.
The
affidavits of the council members put up by Mr Elefu are irrelevant
as approval or endorsement from them is not required in
terms of the
disciplinary code. The decision of the presiding officer is
final.
11.
For
the reasons which will follow, I do not deem it necessary to traverse
the position in terms of both the applicable rule and
in terms of the
common law. Mr Elefu’s application falls squarely within
the ambit of rule 42(1)(a) which reads as
follows:
‘
The
court may, in addition to any other powers it may have,
mero
motu
or
upon the application of any party affected, rescind or vary an order
or judgment erroneously sought or erroneously granted in
the absence
of any party affected thereby.’
12.
In
exercising my discretion I accordingly elect to deal with this
application for rescission under the aforementioned subrule (see
Tshivhase
Royal Council v Tshivhase
[1992] ZASCA 185
;
1992
(4) SA 852
(A) at 862J-863A).
13.
In
determining whether Mr Elefu has made out a case for rescission, I
shall deal firstly with the points raised
in
limine
by
counsel representing Lovedale College.
Delay
and the absence of an application for condonation
14.
An
application for rescission in terms of rule 42 does not have to be
accompanied by an application for condonation. As for
the delay
in bringing the application, it would in my view, be a proper
exercise of my discretion to say for example, that even
if Mr Elefu
succeeds in proving that subrule (1) applies, he should not be heard
to complain after the lapse of a reasonable period
of time (see
Firestone
South Africa (Pty) Ltd v Gentiruco AG
1977
(4) SA 298
(A) at 306H). However, what is deemed to be a
reasonable period of time differs from case to case (see
Roopnarain
v Kamalapathy
1971
(3) SA 378
(D)). Lovedale College in its answering papers has
averred that Elefu has conspicuously failed to provide any detail as
to
what “immediate steps” he took since August 2012 to
pursue this application. This is not correct. Mr Elefu states
in his founding affidavit that once he had been advised by the union
appointed attorneys that a final order had been granted, he
immediately took the necessary steps to institute the present
application
in
forma pauperis
,
after NEHAWU had refused to assist him financially with his impending
legal costs. He denies having unduly delayed the institution
of
this application. In amplification of this denial he alleges
(and given the nature of the relief that was granted against
him this
is quite probable) that he has had no income since the order was
granted on 16 August 2012, but that he nevertheless took
all the
necessary steps at his disposal to institute this application in the
face of the lengthy procedures admittedly involved
in the launching
of such an application in terms of rule 40 of the uniform rules.
Three pages of his replying affidavit are
devoted to the aspect
of delay and in my view his explanation is reasonable. I am
satisfied in the circumstances that Mr
Elefu has not unduly delayed
the launching of this application.
The
nature of the relief sought
15.
Mr Elefu has cited three respondents in his application for
rescission. The relief which he seeks is succinctly and clearly
set forth in his notice of motion. It has not been contended
that the application papers were not served on all the respondents.
On the contrary, the Minister delivered a notice of opposition
on 22 August 2013, and the MEC delivered a notice to abide
the
decision of this court on 19 August 2013. Both the Minister and the
MEC are represented by the State Attorney. In my
view the
Minister’s notice of opposition is at the very least
prima
facie
proof
that the respondents were very much alive to the probability that Mr
Elefu’s proposed motion is what it says in his
notice of
motion.
16.
It
will in any event become apparent from what I say hereinafter, that
the order which I intend making is founded upon whether the
rules of
this court were adhered to when the application sought to be
rescinded was brought and not on the merits of the application
itself.
17.
Accordingly
the second point raised
in
limine
must also fail.
Referral
to the bargaining council and
res
iudicata
18.
It
has been contended on Lovedale College’s behalf that Mr Elefu
has not disclosed in his application that an arbitration
award found
his dismissal to have been fair, and that the
exceptio
rei iudicatae
accordingly
applies to this application for rescission.
19.
In
my view this contention too, is misplaced. The exception is
based on the irrebuttable presumption that a final judgment
on
a
claim submitted
(my emphasis) to a competent court is correct. The presumption
is founded on public policy, which requires that litigation
should
not be endless. The presumption is likewise founded on the
requirement of
bona
fides
,
which
does not allow for the same thing to be demanded over and over again
(see
African
Farms & Townships v Cape Town Municipality
1963
(2) SA 555
(A) at 564;
Wright
v Westelike Provinsie Kelders Bpk
2001
(4) SA 1165
(C)), and that a party with one cause of action must
claim all the remedies available to it in terms of that cause of
action in
one single action so as to avoid a piecemeal approach to
litigation (see
Custom
Credit Corporation (Pty) Ltd v Shembe
1972
(3) SA 462
(A) at 472).
20.
The
claim submitted (as a result of which the order sought to be
rescinded was granted) was not submitted by Mr Elefu, being the
applicant herein. Accordingly, he cannot be criticised of having
demanded the same thing more than once in that application. Indeed,
the party making the demand in that application was not Mr Elefu at
all. Mr Elefu was called upon to respond to the demand.
21.
Rule
42 applies to this application. Whether or not there are
proceedings pending in another forum are irrelevant. And,
as I
have said, it is not for the applicants who instituted proceedings
against Mr Elefu to now claim
res
iudicata
when he seeks to have those proceedings set aside. On the
contrary, the doctrine may well have been an appropriate one for
Elefu to have raised on 16 August 2012 or on the return date of
the rule, but of course, he was never afforded the opportunity
to do
so.
The
merits of the application in terms of which relief was granted on 16
August 2012
22.
Both
Mr Elefu and counsel representing Lovedale College have made a number
of submissions against and for the prospects of success
of the
application brought on 16 August 2012.
23.
It
is so that the court’s discretion under the common law to
rescind or vary any orders or judgments, extends beyond the grounds
provided for in rule 42 (within the ambit of which this application
clearly falls) and in rule 31 (dealing with the setting aside
of
judgments or orders where the affected party has defaulted by failing
to appear). Under the common law the party seeking
the
rescission of an order must show sufficient cause. Sufficient
cause in this context, generally speaking, has the same
content as
that required in terms of the provisions of rule 31(2)(b). In
order to succeed in such an application the applicant
is constrained
to set out reasons for his default as well as the grounds upon which
he intended opposing the application. However,
as I have said,
it is common cause that this application has been brought in terms of
rule 42; alternatively, in terms of the common
law, and because I am
of the view that rule 42 applies, it is not necessary to broach the
question of sufficient cause.
24.
Having
determined that rule 42(1)(a) applies, I am of the view that Mr Elefu
has successfully shown that the judgment granted
on 16 August 2012
falls to be rescinded. I say so for the following reasons:
a.
It
is not disputed that Mr Elefu, after the urgent application had been
served on his union, gave written notice of his intention
to oppose
the application, which notice was served on Lovedale College’s
attorneys on 13 August 2012 and on the registrar
at Bhisho High
Court on 14 August 2012.
b.
The
notice of motion states that the application would be heard no
earlier than 11h00. It is not disputed that Mr Elefu arrived
at
court at 10h15, and as he contends, “proceeded to wait for the
matter to be heard at 11h00 as per the notice of motion.”
When
he enquired as to when his matter would be heard, he was informed
that Lovedale College had been granted the relief
sought and that the
matter had been disposed of in his absence. Indeed a perusal of
the court roll for that day (being a
Thursday, which was a designated
motion court date with court to commence at 09h30) reflects that the
matter had not been separately
set down as an urgent application for
11h00 as reflected in the notice of motion, but that it was set down
on the ordinary unopposed
applications roll as number four of a total
of 14 matters, the official court book reflecting a manuscript entry
which says the
following:
‘
For
the applicant: Mr Nyangiwe
For the respondents:
Mr Ntsaluba
Order: By agreement
there is an order ito the draft order marked ‘YE’’
c.
It
is not disputed that Mr Elefu, as soon as the court adjourned,
requested an audience with the presiding judge in chambers, that
the
request was denied, that he attended court again the next morning and
requested an audience with the judge for the second time,
and that
his request was once again turned down. In its answering
affidavit Lovedale College simply states that these allegations
are
irrelevant because Mr Elefu was not in a position to contend that he
was an employee. This response once again illustrates
the apparent
confusion on the part of Lovedale College between the merits of the
application which was brought on 16 August 2012
(where Elefu was
cited as a respondent, the papers were served on his union and the
order stopped his salary and removed him from
Lovedale College’s
payroll in the absence of him having been afforded the opportunity to
voice his side of the story - however
devoid of merit it may be
argued to be - before the judge seized with the application) and the
requisite grounds for a rescission
application in terms of rule
42.
d.
It
is also not disputed that Elefu, in anticipation of the return date
of 13 September 2012 reflected in the notice of motion, approached
NEHAWU to secure legal representation on his behalf to assist him to
show cause on the return date why the interim relief (as he
then
understood it to be), should not be made final, as this was indeed
what he had been invited to do in the notice of motion.
e.
It
is admitted by Lovedale College that Elefu was thereafter informed by
his newly appointed attorneys that a final order had been
granted on
16 August 2012, and not the interim order which had been sought in
the notice of motion, and which he had believed to
have been the
relief which was granted on that date. Once again confusing the
merits of the application with the requirements of
rule 42, the
response of Lovedale College (in admitting that Elefu had been
advised by his attorneys of the final order), simply
states that “…he
had been finally dismissed, and was, simply put, not entitled to a
salary at all.”
f.
It
is admitted by Lovedale College that a final order was sought and
granted on 16 August 2012, by consent amongst Lovedale College,
the
Minister and the MEC, to the exclusion and in the absence of Elefu.
Not only was Elefu a cited and informed party to
the
proceedings, but he was also materially and directly affected by the
outcome thereof. The presence or otherwise of a
good defence on
his part does not change that. It is trite that where a party
is called upon to show cause on a future date
why certain relief
should not be made final, the invitation means exactly that. The
respondent has an election whether to
oppose the granting of interim
relief, or, if he does not, to anticipate the return date, or, if he
does not do that, to accept
the invitation extended to him in the
notice of motion, and to show cause on the return date determined by
the applicant. An
order granting the final relief which would
have been sought on the return date can only be granted prior to that
date with the
consent of all the parties to the application. Mr
Elefu, by the very nature of the relief granted against him, together
with
the fact that he was cited and served, is clearly an affected
party in terms of subrule (1)(a). After all, the very
subject-matter
of the relief sought was his removal from the payroll
and the immediate stopping of his salary. It goes without
saying that
his interest in this matter, as a
dramatis
persona
,
is direct and sufficiently substantial for him to bring this
application. The repeated averments made on behalf of Loveday
College that the final order which was sought and granted behind
Elefu’s back does not affect him are devoid of logic. The
rule states that “any party affected” may bring an
application for rescission. All an applicant under this
sub-rule
must show, in order for him to establish
locus
standi
, is that he has an interest in the subject-matter of the order which
is sufficiently direct and substantial to entitle him to
have
intervened in the original application upon which the order was
granted. He or she must have a legal interest in the
subject
matter of the application which could be prejudicially affected by
the order (see
Standard
General Insurance Co Ltd v Gutman NO
1981
(2) SA 426
(C) at 433H-436C). I cannot think of a legal
interest more pressing than being deprived of one’s livelihood
(whether
the opposition to such deprivation is devoid of merit or
not).
g.
Elefu
in his founding papers has alleged that even if the notice of
opposition had not made its way to the court file timeously,
Lovedale
College’s legal representatives ought to have disclosed to the
presiding judge (the notice of opposition having
been served on them
three days before the hearing of the matter), that he was opposing
the application. This is correct.
The utmost transparency
and
bona
fides
is expected of legal practitioners at all times. Presiding
officers are regularly constrained to rely on their verbal
undertakings
and should be able to do so confidently. It is
incorrect for Lovedale College to suggest that this was not
necessary, because
Elefu had no viable input to make in the matter,
that no relief was being sought against him in any event, and that he
was simply
cited as a matter of courteousy. Differently put, even if
Elefu was not cited and served, the effect of the final order on him
without granting him an opportunity to be heard is a violation of his
rights which, on his own, would have established
locus
standi
on his part to intervene, and in these circumstances, to apply for
rescission.
h.
Elefu
in his founding papers submits that an interim order should have been
granted in order for him to “establish the correct
position”
and to allow him “a fair opportunity” to oppose the
application, even if there was some confusion at
the time. I
agree. Lovedale College in the answering affidavit deposed to
by its acting principle, addresses this submission
with a bare
denial, reiterating that the “relevant” and “crucial”
parties involved were present and were
in a position to negotiate a
settlement agreement. I have already expressed my dismay at
this lack of appreciation for the
basic principle of
audi
alteram partem.
In my view, the stance taken by Lovedale College in this regard
is nothing less than Draconian.
i.
It
is my impression that Elefu in his application papers has expressed
an adequate grasp of the rules of this court relating to
application
proceedings, the nature and purpose of the
rule
nisi
and the basic grounds for rescission, something which appears to be
lacking in the papers prepared on behalf of Lovedale College.
By
way of example, I refer to Elefu’s founding affidavit where he
says the following:
‘
The
issue of what order the presiding Judge would have made had he
afforded me the opportunity to represent myself is not relevant
for
the present purposes; fact of the matter is that at the time the
Court was seized with the matter, and granted the final order,
it was
not aware of the fact that I would be in attendance and intended to
oppose the application, which fact would have precluded
it from
granting judgment in default of my appearance.’
j.
Lovedale
College’s response to this reads thus:
‘
The
presiding Judge would have enquired of the Applicant why he did not
disclose to the Court that arbitration proceedings had been
initiated
and finalised before the Bargaining Council, and why he had not
challenged the appeal outcome, and what he had to do
with the
correctness of the “payroll” now that the undisputed fact
is that he was not an employee. That would
have been the end of
his attempt to delay the proceedings further.’
k.
At
the risk of repeating myself, this may or may not have been the
finding of the judge ultimately seized with an opposed application,
but only once a full set of papers had been delivered, and once the
party opposing the application had been heard. It goes
without
saying that any presiding officer who hears the respondent and finds
that there is no merit, and/or that he is not being
candid in his
opposition and that he is in fact litigating merely for the sake
thereof, can and should express the court’s
disapproval with an
appropriate punitive costs order, but the respondent must still be
heard.
l.
Mr
Elefu has also gone to great lengths in an attempt to show that just
cause (pertaining to the merits of the application) in any
event
exists for the order to be rescinded. Lovedale College in turn, has
gone to even greater lengths in dealing with the merits
of the
application. This may well be a requirement in terms of the
common law, or when a litigant is resisting summary judgment
in terms
of rule 32 of this court’s rules, or where he seeks to have a
judgment set aside under rule 31 where he has been
in wilful default
of appearance. In these circumstances however, it is not necessary
for the applicant to show just cause.
25.
In
my view then Mr Elefu has succeeded in showing that the final order
made on 16 August 2012 was erroneously granted:
a.
The
proceedings which I have already described were irregular (see
Clegg
v Priestly
1985(3) SA 950 (W)).
b.
It
was not legally competent for Lovedale College to seek and obtain
final relief in Mr Elefu’s absence before the return
date of
the rule
nisi.
Even
if the matter had been called at 11h00 as stated in the notice of
motion, and the court had satisfied itself that Mr Elefu
was absent,
Lovedale College could, at best, have contended for and obtained the
interim relief which it had prayed for, which
order ought to have
been served on Mr Elefu to grant him the opportunity to exercise the
option of anticipating the return date
or, on the date of return, to
avail himself of the opportunity to show cause why the interim relief
should not be made final.
c.
I
am not at liberty to speculate about what the court was alive to, and
what information was placed before it, when it granted final
relief
in Mr Elefu’s absence. It is probable however, that had
it been brought to the court’s attention at the
time, that the
matter ought only to have been called at 11h00, it would have
precluded the court from dealing with the matter before
that. Over
and above this, had it been brought to the attention of the presiding
judge that Mr Elefu was not a party to the
final order (whether or
not he had filed a notice of opposition) the court would likewise
have been precluded from granting a final
order (see
Ntlabezo
v MEC for Education, Culture and Sport, Eastern Cape
2001(2) SA 1073 (Tk)). Indeed, it is not uncommon or irregular
for a respondent to elect not to oppose the interim relief
sought,
but to oppose the granting of final relief on the return date. It
is for this very purpose that the English
rule
nisi
procedure was adopted by our courts. It is nothing more than an
order by a court issued at the instance of an applicant calling
upon
another party to show cause before the court on a particular day in
the future, why the relief applied for should not be granted.
Where
it has been coupled with interim relief (as has in certain instances
become the practice) that interim relief cannot,
in the absence of
consent, be made final before that return date (see
Shoba
v Officer Commanding Temporary Police Camp, Wagendrift Dam
1995
(4) SA 1
(A) at 18J-19B).
26.
I
have already mentioned that Mr Elefu has candidly abandoned his
further applications for re instatement on the payroll and
for
backpay. He has not, however, indicated his position with
respect to the prayer directing that all other process issued
after
and/or on the strength of the rescinded order be set aside.
27.
This
is an application for the rescission of a previously granted order
and is accordingly limited to that extent. The granting
of
further relief which falls outside the parameters of the previous
order, does not lie within the scope of this application.
28.
Accordingly,
I make the following order:
ORDER:
(a)
The
order made by Ebrahim ADJP (as he then was) on 16 August 2012 under
Bhisho case no. 379/12 is rescinded.
(b)
The
first respondent (Lovedale Public Further Education and Training
College) is directed to pay the costs of the rescission application.
____________________
I.T STRETCH
24 March 2015
JUDGE OF THE HIGH
COURT
APPEARANCES:
For the applicant:
in personam
For the first
respondent: Mr S.H. Cole
Instructed by Dyushu
Majebe Attorneys
Locally represented
by Mlonyeni & Lesele Inc
King Williams Town