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[2015] ZAECMHC 75
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Sikhosana and Others v Elundini Local Municipality and Others (2400/2011) [2015] ZAECMHC 75 (27 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE NO: 2400/2011
Date
heard: 16 October 2015
Date delivered: 27 October 2015
In
the matter between:
MASHATA
SIKHOSANA & 28
OTHERS
Applicants
And
ELUNDINI
LOCAL
MUNICIPALITY
1
st
Respondent
THE SHERIFF OF THE HIGH COURT,
MOUNT
FLETCHER
2
nd
Respondent
THE STATION COMMISSIONER,
MOUNT
FLETCHER POLICE
STATION
3
rd
Respondent
JUDGMENT
BROOKS AJ:
[1]
This is an application in which the applicants seek the rescission of
a judgment granted
against them by default on 9 February 2012.
The judgment by default was granted in favour of the first respondent
who was
the initial applicant in the proceedings.
[2]
The second and third respondents have been cited by the applicants by
virtue of their
involvement in the proceedings
nomine
officio
subsequent
to the granting of the judgment by default in favour of the first
respondent. No substantive relief is claimed
against the second
and third respondents accordingly.
[3]
The first respondent has opposed the application for rescission and a
full exchange
of affidavits has occurred
inter
partes.
[4]
Inevitably, some disputes of fact have arisen in the affidavits filed
of record.
In considering the proper approach to be adopted in
the evaluation of the evidence set out in the affidavits, it is
necessary to
consider the nature of the relief sought. The
effect of rescission would be to render the order a nullity.
Neither
advantage nor disadvantage can flow therefrom. The
applicants are entitled to claim that the
status
quo ante
be
restored.
[1]
In my view, the grant of rescission can be likened to the grant of
interim relief and the proper approach is to take the
facts set out
by the applicants together with any facts set out by the first
respondent which the applicants cannot dispute and
to determine
whether, on those facts, the applicants are entitled to relief.
[2]
[5]
Whilst the applicants’ notice of motion does not state a
particular Rule or
procedure in terms of which the application has
been instituted, the application has been sufficiently widely
presented to encompass
Rule 42 (1) (a) of the Uniform Rules of Court
on the basis that the judgment by default was erroneously sought or
erroneously granted
in the absence of the applicants.
[3]
This was confirmed by MR BODLANI who appeared on behalf of the
applicants and was accepted by MR NTSALUBA who appeared on
behalf of
the first respondent.
[6]
It has been held
[4]
that the prerequisite factors for granting rescission under Rule 42
(1) (a) of the Uniform Rules of Court are the following.
Firstly, the judgment must have been erroneously sought or
erroneously granted; secondly, such judgment must have been granted
in the absence of the applicant; and, lastly, the applicant’s
rights or interest must be affected by the judgment.
[7]
It has also been held
[5]
that there is nothing in the language used in Rule 42 (1) (a) of the
Uniform Rules of Court which indicates that the error relied
upon
must appear on the record of proceedings before the power conferred
by the Rule can be exercised. Whilst the error should
appear on
the record in cases where the court acts
mero
motu
or on the
basis of an oral application from the bar for rescission or variation
of the order, in cases where a written application
is presented the
court cannot ignore the facts set out in the affidavits and must have
regard thereto. This is particularly
so where no error can be
picked up
ex facie
the record itself.
Relief may be granted under this Rule if:
(a)
the court which made the order lacked competence to do so; or
(b)
at the time the order was made the court was unaware of facts which,
if then
known to it,
would have precluded the granting of the order; or
(c)
there was an irregularity in the proceedings.
[8]
Against the background of this statement of applicable legal
principles, I turn now
to a consideration of the relevant facts in
this matter.
[9]
It is apparent from the application papers that the applicants came
to know of the
default judgment taken against them only on 24 April
2012 when they attended a meeting in Maclear at the premises of the
first
respondent. They believed that the meeting was intended
to address the application for the eviction of the applicants (the
subject matter of the judgment taken by default). On attendance
the applicants established that the meeting had been called
to
arrange for the execution of the default judgment.
[10]
According to the applicant, after service of the application papers
upon them, they sought assistance
from the offices of the Legal Aid
Board in Mount Fletcher. There they were given the name of an
attorney who would represent
them and they were told that a notice to
oppose the proceedings had been filed. They were also told that
affidavits would
be taken in order to communicate their case to the
court. Thereafter, in November 2011, the applicants were told
by an employee
of the Legal Aid Board in Mount Fletcher that the
matter had been settled and finalised with an order requiring the
first respondent
to find the applicants alternative accommodation and
to compensate them for buildings which would be lost in the eviction.
[11]
The question which arises is to consider whether the court would have
granted the default judgment
against the applicants on 9 February
2012 had the facts now set out in the founding affidavit by the
applicants been known.
In my view, there is no doubt that the
application for judgment by default would have been refused.
Although no notice of
opposition would have appeared in the court
file, the court would have known that the applicants were desirous of
opposing the
matter, had taken specific steps to that end and were
not responsible for the apparent failure of the Mount Fletcher Legal
Aid
Board offices to carry out their mandate. In such
circumstances, judgment would not have been granted by default in
favour
of the first respondent.
[12]
It follows that I am of the view that for the purposes of an
application for rescission under
Rule 42 (1) (a) of the Uniform Rules
of Court the applicants have demonstrated that the judgment was
erroneously sought or erroneously
granted, that the judgment was
granted in their absence and that the applicants’ rights or
interest were affected by the
judgment. The application for
rescission must be granted accordingly.
[13]
Consideration must be given to an appropriate order for costs.
In argument, MR NTSALUBA
urged the court not to award costs against
the first respondent. He based the submission upon the
observation that no confirmatory
affidavits had been obtained by the
applicants from the attorneys named by them in the founding
affidavits as having neglected
to perform the mandate given to them
by the applicants to oppose the application. MR NTSALUBA
submitted that had such confirmatory
affidavits formed part of the
application for rescission, the first respondent would not have
opposed it.
[14]
In my view, the presence or absence of confirmatory affidavits should
not be elevated to such
an important role. For the purposes of
Rule 42 (1) (a) of the Uniform Rules of Court, the applicants have
placed detailed
allegations under oath before the first respondent
and before the court which explain convincingly why, notwithstanding
service
of the initial application papers upon them, the applicants
appeared to do nothing to secure their position. The
bona
fides
of the
applicants and the seriousness of their circumstances are immediately
evident from the founding papers. The merit in
the application
for rescission ought to have been appreciated by the first respondent
and a decision taken not to oppose the application.
In my
view, no reason exists for costs not to follow the result.
[15]
The following order will issue:
“
1.
The judgment granted by default in this court on 9 February 2012
under Case Number 2400/2011
is hereby rescinded and set aside.
2. The
applicants are hereby directed to notify the first respondent in
writing
within five (5) days of the date of this order whether the
applicants intend to oppose the application under Case Number
2400/2011.
3. In
the event that the applicants deliver notice of their intention to
oppose
the application under Case Number 2400/2011 they are hereby
directed to serve and file their answering affidavits within fifteen
(15) days of the date of the notice of opposition.
4.
The first respondent is hereby directed to pay the costs of this
application
on the scale as between party and party, such costs to
include the wasted costs which were reserved on 28 May 2015 and
interest
thereon to be calculated at the prescribed rate of interest
from a date fourteen (14) days after allocatur to date of
payment.”
______________________________
RWN BROOKS
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
For the applicant:
ADV A M BODLANI
Instructed by VV MSINDO &
ASSOCIATES,
MTHATHA
For the first respondent:
ADV TM NTSALUBA
Instructed b FIKILE NTAYIYA &
ASSOCIATES,
MTHATHA
[1]
SECURIFORCE CC v RUITERS 2012 (4) SA 252 (NCK)
261 D-E.
[2]
SPUR STEAK RANCHES LTD AND OTHERS v SADDLES STEAK
RANCH, CLAREMONT, AND ANOTHER
1996 (3) SA 706
(C) 714E.
[3]
BAKOVEN LTD v G J HOWES (PTY) LTD
1992 (2) SA 466
(E) 468I – 469 A; NYINGWA v MOOLMAN NO
1993 (2) SA 508
(Tk)
509I – 510 D.
[4]
MUTEBWA v MUTEBWA AND ANOTHER
2001 (2) SA 193
(Tk
HC) para [15].
[5]
MUTEBWA v MUTEBWA AND ANOTHER (supra) paras
[20]-[22]; PROMEDIA DRUKKERS & UITGEWERS (EDMS) BPK v KAIMOWITZ
AND OTHERS
1996 (4) SA 411
(C) 417 G –I.