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[2015] ZAECMHC 1
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Sapong and Others v Mnzingane N.O (533/2013) [2015] ZAECMHC 1 (29 January 2015)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
DATE: 29 JANUARY 2015
CASE NO.: 533/2013
In the matter between:
ALEX
SAPONG
.................................................................
First
Applicant
TRANSWORLD
PROCUREMENT
.............................
Second
Applicant
NANEEM
AHMAD
..........................................................
Third
Applicant
And
MAPHELO MNZINGANE
N.O
............................................
Respondent
JUDGMENT
BESHE, J:
[1] This is an application for the
rescission and setting aside an order/judgment granted against the
applicant’s favour of
the respondent on the 10 May 2012. The
order in question is in the following terms:
1. Respondents remain in occupation of
erf 2451 Mthatha up to the 30th November 2012 on which day they
should vacate from the said
premises.
2. Respondents pay and continue to pay
rent in lieu of their occupation of erf 2451 Mthatha in an amount of
R9 500-00 monthly in
advance with effect from the 1 June 2012 up to
31 December 2012.
3. Present interdict and or restraining
order be and is hereby confirmed.
4. Respondents be and are hereby made
to pay costs of this application jointly and severally, the one
paying the others to be absolved.
[2] The factual background to the
application, briefly stated is the following:
In the main application, applicant
therein, sought an interdict against the respondents restraining them
from demolishing the property
on erf 2451 in Mthatha and from
erecting unlawful structures on the property. Also sought was an
order ejecting the respondents
(the present applicants) from the erf
in question. In the main application, applicant contends the property
in question had been
leased to first and second applicants in this
present application and without the applicant in the main applicant’s
consent
and knowledge the property was sub-letted to the third
respondent. That the respondents proceeded to develop the erf without
the
applicants’ knowledge and consent. Further that for some
other reasons relating to inter alia the payment of rentals, the
lease between the applicant and first and second respondents was
terminated.
[3] From the papers filed of record, it
would appear that after reading the papers and hearing the attorney
for the applicant, Nhlangulela
J issued a rule nisi that was
returnable on the 5 April 2012. The order was in the following terms:
IT IS ORDERED
1. That the applicant’s
non-compliance with the provisions of Rule 6 of the Rules of this
Court be condoned and that leave
be granted to the Applicant to bring
this application as a matter of urgency in terms of Rule 6(12) of the
Rule of Court.
2. That a rule nisi do hereby issue
calling upon the respondents to show cause, if any on 5th April 2012
at 10:00 or as soon thereafter
as the matter may be heard why an
order in the following terms should not be made final:
2.1 That the First, Second and Third
Respondents be interdicted and restrained from demolishing or
destroying buildings or structures
on erf 2451 Mthatha.
2.2 That the First and Second and Third
Respondents be interdicted and restrained from constructing or
erecting any structure of
whatever nature on erf 2451 Mthatha.
2.3 That the Respondents be and are
hereby ejected from the premises at erf 2451 Mthatha.
2.4 All leases involving the
Respondents in connection with erf 2451 be and are hereby declared
unlawful and of no force or effect
and cancelled.
2.5 The First, Second and Third
Respondents pay the costs of this application jointly and severally,
the one paying the other to
be absolved.
2.6 That paragraph 2.1 and 2.2 above
shall operate as an interim interdict/mandamus pending the
finalization of the application.
2.7 That the Applicants be given
further and or alternative relief.
On the 5 April 2012 the matter was
postponed to the 26 April 2012. It is noteworthy that Mr Mayekiso was
in court when the order
postponing the matter and placing the parties
on terms regarding the filing of affidavits was issued. The matter
came to serve
before Bacela AJ on the 10 May 2012 where upon reading
documents filed of record and hearing counsel for the applicant, she
issued
the order sought be rescinded in these proceedings. The order
is said to have been taken by consent between the parties.
[4] The basis for applying for the
rescission of the abovementioned order is that it was erroneously
sought on the basis that it
was by consent between the parties and
granted on that basis whereas in fact only third respondent has
instructed an attorney,
Mr Mayekiso, to represent him. Third
respondent, who is the third applicant in the application for
rescission appears to be denying
giving his erstwhile attorney Mr
Mayekiso instructions to consent to the impugned order.
[5] The variation and rescission of
orders is regulated in addition to Common Law and Rule 31 (2) (b)
also regulated by Rule 42.
Rule 42 (1) provides that:
“42 Variation and rescission of
orders
1. 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:
(a) An order or judgment erroneously
sought or erroneously granted in the absence of any party affected
thereby;
(b) an order or judgment in which there
in an ambiguity, or a patent error or omission, but only to the
extent of such ambiguity,
error or omission;
(c) an order or judgment granted as the
result of a mistake common to the parties.”
[6] On the 5 April 2012, Mr Mayekiso
filed a notice to oppose the main application. The notice is dated
the 2 April 2012 and reads
thus:
BE PLEASED TO TAKE NOTICE THAT
respondents intend to oppose the application. (my underlining)
Mr Mayekiso has deposed to an
“explanatory affidavit” wherein he states that he only
represented the third applicant
on whose instructions he settled the
matter. That he did not represent first and second applicants in this
matter. (respondents
in the main application) That the notice to
oppose the main application inadvertently reflected that the
application was opposed
by the respondents instead of third
respondent.
[7] As to what steps first and second
applicants took upon being aware of the application, first applicant
states that it was agreed
that third applicant should defend /
oppose the matter seeing that the relief sought affected him as the
person who was running
a business from the premises. Third applicant,
who did not depose to an affidavit but was content with confirming
first applicant’s
affidavit, does not take the court into his
confidence to explain what steps he took upon not being able to get
hold of Mr Mayekiso
for a whole year. This in view of fact that he
was aware of a rule nisi that had been issued against him and his
co-applicants.
The rule was returnable on a particular date. This,
especially in view of the fact that he denies that he gave Mr
Mayekiso any
instructions to settle the matter on his behalf. Instead
he was waiting for Mr Mayekiso to phone him so that he could sign
court
papers which he never did. In my view it is inconceivable that
in the face of a possible eviction third applicant
would adopt this supine attitude. Same
applies to first and second applicants. In so far as the application
that was instituted
against them was concerned and the consequent
rule that was issued against them. It is also a mystery how the
mistake regarding
who Mr Mayekiso represented could have been
perpetuated from the notice to oppose the matter, discussions about
the order purportedly
consented to by the respondents and finally
when the order was issued. How is it possible that the order was
agreed upon without
Mr Mayekiso knowing what was contained in the
order? In my view this underpins the need for us to stead fastly
apply Rule 4 (d)
of the Joint Rule of Practice of this court which
reads as follows:
“d) If an opposed action,
application or appeal is settled and the parties desire that their
settlement agreement be made
an order of court, both parties should
be present when the order is made unless one of them files a notice
of withdrawal of his
or her opposition. In the event of a party not
appearing, documentary proof of its agreement to the order sought
will have to be
produced.”
I have no doubt that had Mr Mayekiso
been in court when the order in question was issued or if not court,
had documentary proof
or the agreement been produced, these
proceedings would have been avoided.
[8] Respondent opposes the application
for a rescission not on the basis that Mr Mayekiso had instructions
to represent first and
second applicants. But on the following
grounds: That in the absence of a notice to oppose the main
application by first and second
applicants, the respondent was
entitled to an eviction order against them. According to the founding
affidavit, first and second
applicants left it to third applicant to
oppose the granting of the relief sought. And according to Mr
Mayekiso he did not have
first and second applicants’
instructions to oppose the matter. First applicant explains why the
decision was made at paragraphs
10. to 14. of the founding affidavit
as follows:
“10. Due to the fact that I had
subleased the premises to the third applicant I spoke with him about
the matter and he was
resolved on defending the claim on his behalf.
11. We agreed that he should defend the
matter on his behalf and that I will file papers to support this
defence.
12. For that reason I handed over
everything to the respondent to defend the matter on his behalf and I
undertook to file affidavits
to support his defence.
14. The approach was sensible because
the third respondent runs a hardware in the premises valuing million
of rands and he was already
in possession of the premises as
aforesaid and trading.”
In my view, the respondent has a valid
point in this regard, namely that because first and second applicants
did not oppose the
matter, seemingly had no intention of resisting
the application, respondent was entitled to an eviction order against
them.
[9] First applicant admits that he
subleased the property to the third applicant and as indicated above
it was resolved that he
should defend the application. Third
applicant took steps to oppose the matter by employing the services
of an attorney Mr Mayekiso.
As indicated earlier, it is inconceivable
and improbable that Mr Mayekiso would settle the matter without
instructions from the
third applicant who was mandated by his
co-applicants by “handing everything to him to defend the
matter”. According
to Mr Mayekiso, he settled the matter on
third applicant’s instructions. The question therefore is
whether in these circumstances
the order was sought and granted in
error. The error alleged as I understand is that the court was made
to believe that the order
sought had been consented to by the
parties, whereas in fact it had not been consented to by the present
applicants.
[10] In Colyn v Tiger Food Industries
Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
SCA at pages 6 to 7 it
was pointed out that Rule 42 (1) (a) caters for a mistake. Rescission
does not follow automatically upon
proof of a mistake. At paragraph 8
of the judgment Jones AJA states that the trend of the courts over
the years is not to give
a more extended application to the rule to
extend all kinds of mistakes or irregularities. It appears to be
common cause that no
opposing affidavits were filed after a notice of
intention to oppose the matter was filed. The applicants or at least
one of them,
who had been mandated to defend the matter, was legally
represented to the extent that when the matter was postponed
previously
his attorney was in court. In my view even if it was not
represented to the court that the order was sought by consent between
the parties, the rule nisi would have been confirmed by default on
the part of the applicants or put differently, the applicant
in the
main application was entitled to an eviction order against the
present applicants in the absence of opposing papers filed
by them.
In my view, there was no procedural irregularity or error. See Lodhi
2 Properties Investments CC and Another v Bondev
Developments (Pty)
Ltd
2007 (6) SA 87
SCA where it was stated that:
“[25] However, a judgment to
which a party is procedurally entitled cannot be considered to have
been granted erroneously
by reason of facts of which the Judge who
granted the judgment, as he was entitled to do, was unaware, as was
held to be the case
by Nepgen J in Stander. See in this regard Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA
1
(SCA) ([2003]
2 All SA 113)
in paras 9-10 in which an application
in terms of Rule 42(1) (a) for rescission of a summary judgment
granted in the absence of
the defendant was refused notwithstanding
the fact that it was accepted that the defendant wanted to defend the
application but
did not do so because the application had not been
brought to the attention of his Bellville attorney. This Court held
that no
procedural irregularity or mistake in respect of the issue of
the order had been committed and that it was not possible to conclude
that the order had erroneously been sought or had erroneously been
granted by the Judge who granted the order.”
[11] I have already expressed my
misgivings about the veracity of the allegation that third applicant
did not give Mr Mayekiso instructions
to settle the matter. I am
therefore unable to find that the order was sought and granted by
mistake.
[12] Even if I were to look at the
application for rescission in terms of the common law, the applicants
fail on that score as well.
They have not shown good cause as to why
they did not oppose the application. First applicant states in so
many words that a decision
was taken that first and second applicants
would not oppose the relief sought b let third applicant do so and
states the reason
for this election.
[13] In the result the application is
dismissed with costs.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant s : Adv. V Kunju
Instructed by : MESSRS XM PETSE
INC.
4th Floor, Development House
York Road
MTHATHA
Tel.: 047 – 531 1572 / 047
– 531 0267
Ref.: Mr Vika/ns: AS0016
For the Respondent : Adv. C Bodlani
Instructed by : MESSRS CHRIS
BODLANI ATTORNEYS
28 Madeira Street
Clublink Building
MTHATHA
Tel.: 047 – 532 5711
Ref.: UC/pp/CIV1566
Date Heard : 13 March 2014
Date Reserved : 13 March 2014
Date Delivered : 29 January 2015