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[2015] ZAECELLC 14
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Minister of Police and Another v Sogaxa (EL282/14; ECD582/14) [2015] ZAECELLC 14 (10 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE – EAST LONDON CIRCUIT LOCAL DIVISION)
Case
No. EL 282/14
ECD 582/14
THE
MINISTER OF POLICE
First Applicant
THE
INFORMATION OFFICER,
DUNCAN
VILLAGE POLICE STATION
Second Applicant
and
SIYABONGA
SOGAXA
Respondent
JUDGMENT
HARTLE
J
[1]
The
applicants seek an order rescinding a judgment which was granted by
this court on 30 April 2015 in the following terms:
“
1.
It is recorded that there is no representation for the respondents,
despite the notice in
terms of directive 15A, advising the
respondents that the matter will be proceeding, having been
acknowledged by the State Attorney
(the respondents attorney) on 9
April 2015.
2.
The second respondent’s failure to furnish the applicant with
the requested
information (that is copies of the contents of docket
MAS no. 252/01/2013 required for the exercise of the applicants
rights) is
reviewed.
3.
The second respondent is directed to furnish the applicant with the
aforesaid
information within fifteen (15) days from the date of the
granting of this order.
4.
The respondents are directed to pay the costs of this application
(jointly and
severally the one paying the other to be absolved) on
the scale as between attorney and client.
”
[2]
The
relief was principally in line with that prayed for by the respondent
in the main application issued out of this court on 12
March 2014,
which self evidently sought to compel the furnishing of a criminal
docket on the basis provided for in the Promotion
of Access to
Information Act, No. 2 of 2000 (“PAIA”).
[3]
The
State Attorney who was seized of the said application, Ms Sakasa,
explains on behalf of the applicants in the present application
that
she had been instructed to “vehemently” oppose the matter
on the basis that the information sought to be compelled
concerned an
ongoing investigation, a “closed docket” in respect of
robbery, rape, kidnapping and murder charges, as
a result of which
the respondent was not entitled to have access to the docket.
[4]
Pleadings
were closed and heads of argument exchanged.
[5]
The
matter was alleged to have first been enrolled for hearing on 5 March
2015. Although this date suited the applicants,
the
respondent’s attorneys advised Ms Sakasa that the matter would
not proceed because it had incorrectly been set down for
hearing.
[1]
[6]
The
respondent’s attorneys evidently approached the registrar on
the same day to allocate an alternative date for the hearing.
Ms Sakasa was apprised of the new date only on 9 April 2014.
How the date came to her knowledge is that the respondent’s
attorneys served a copy of a registrar’s “Provisional
Opposed Motion Court Date” form on their offices together
with
a notice in terms of rule 15A. I will shortly deal with the
significance of this.
[7]
Ms
Sakasa informed the respondent’s attorneys on 20 April 2015 in
a letter –a copy of which was attached to the present
application marked “SA 3”, that the provisional date
indicated in the form was not suitable to the applicants because
counsel on brief would not be available. The hope expressed in
the letter that this intimation was “in order”
met with
no contrary indication, and Ms Sakasa simply assumed that an
alternative date would be obtained which equally suited all
the
parties and their counsel. She became aware only on 7 May 2015
that the order referred to in paragraph 1 above had been
made.
[8]
I
interpose to emphasize Ms Sakasa’s observation that no
communication or correspondence had been exchanged between the
parties’
legal representatives regarding the suitability of the
date. Neither was there any discussion or agreement reached in
this
regard despite the intimation reflected on the registrar’s
form that “the party requesting the date warrants that the
other party/parties involved in the matter agree(s) to the proposed
date”.
[9]
The
applicants rely in the present application on the irregularity which
arose by virtue of the respondent’s non-compliance
with the set
down procedure which they submit “caused and/or exacerbated the
applicant’s inability to attend at the
hearing of the matter on
30 April 2015”. Equally responsible for the unfortunate
outcome however is the fact that the
respondent’s legal
representatives, who themselves attended the hearing, did nothing to
allay the court’s obviously
mistaken assumption that the
applicants were not interested in pursuing their opposition to the
main application. Indeed,
so says Ms Sakasa, a duty existed on
them to bring the contents of annexure “SA3” to the
attention of the presiding
judge because this reflected the
applicants’ legal representative’s understanding that:
(a) the proposed date for the
hearing of the matter was provisional
and understood to be so by them; (2) the date suggested did not suit
them; and (3) they assumed
their intimation that the suggested date
did not suit their purposes to be “in order”.
[10]
Concerning
the merits of the applicants’ defence to the main application,
simply stated Ms Sakasa contends that the provisions
of the PAIA are
not of application to a record of criminal proceedings requested
after the commencement of same since alternative
avenues exist for
the production of such documentation. Because the criminal
matter was pending, the respondent was advised
by the National Deputy
Information Officer that the case was still an “open case”.
He was invited to rather access
the contents of the docket through
the National Prosecuting Authority, more specifically the relevant
public prosecutor, or to
request the investigating officer to refer
the docket to the prosecutor to make a decision for him to access it.
[11]
The
respondent opposes the present application essentially on two
preliminary bases. Firstly it is submitted that the matter
is
res
judicata
and secondly, that the applicants are not entitled to bring the
application or at least that the court should refuse to hear it
until
the applicants pay the respondent’s taxed bill of costs
(generated pursuant to the order granted in paragraph 1 above),
or
tenders security in respect thereof.
[12]
Both
objections are simply without any merit.
[13]
When
the first ground was articulated in argument by Mr Kalamashe, who
appeared on behalf of the respondent, it was evident that
the
doctrine of
res
judicata
proper
was not being relied upon by the respondent. Certainly if it
was, it finds no application here on the simple basis
that we are
here concerned with a procedural measure provided for by Uniform Rule
42(1)(a), peculiarly fashioned to correct an
irregularity and to
restore the parties to the position they were in before the order was
granted.
[2]
This is
entirely different from the cause of action in the main application,
being one of review.
[14]
What
Mr Kalamashe appeared to want to bring home however was rather a
contention that, instead of proceeding with an application
for
rescission, the applicants were limited to the remedy of appeal
because, despite the absence of their legal representatives
at the
hearing, the court applied its mind on the papers filed of record and
the argument advanced by him on behalf of the respondent
at the
hearing and pointedly made a decision which was final.
[3]
This argument too however loses sight of the fact that, despite the
expectation that the court is
functus
officio
,
the specific remedy avails a litigant in terms of the sub-rule to
redress a procedural error which renders the judgment sought
and
granted erroneous within the meaning of rule 42(1)(a).
[4]
Of course the court
a
quo
would have applied its mind on the merits, but that is not an aspect
which precludes another court from considering the matter
afresh once
the order is rescinded. What is effectively being rescinded is
the procedure in terms of which the judgment was
granted and
therefore, by necessary implication, also the judgment.
[5]
The bone of contention is that the respondent was procedurally not
entitled to press for judgment in the peculiar circumstances
of the
matter.
[15]
As for
the second objection, it was open to the respondent to file a request
for security, if so advised, but what is being sought
in
casu
is the setting aside of exactly the same order following which the
bill of costs was taxed. Once rescinded the natural
consequences of the judgment, including taxation and execution, also
fall to be set aside. The respondent appears to overlook
in any
event that an application for rescission of a judgment stays the
execution thereof.
[6]
[16]
With
regard to Ms Sakasa’s letter (Annexure “SA3”)
advising that counsel on brief was not available, the respondent
simply asserts that he presumed that she would fix her dilemma as it
were “by acquiring a vacant counsel to argue their case”.
The respondent appears to concede however - despite maintaining that
the matter had been “rightfully set down”, that
there was
a “lack of consensus (with) regards thereto between the parties
which is attributable to the ambiguous correspondence
…
(being) Annexure “SA3”.
[17]
As
indicated aforesaid, the present application is premised in the main
on the provisions of rule 42(1)(a) of the uniform rules
of court,
alternatively at common law.
[18]
Rule
42(1)(a) provides 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-
(a)
an
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;”
[19]
There
can be no doubt on anyone’s showing that the applicants were
absent when the order was granted. Mr Kalamashe’s
argument that the applicants were not absent because their version
were made known to the court in their affidavit is simply without
any
basis and flies in the face of the clear objective of rule 42(1)(a)
to remedy a wrong judgment or order granted in the absence
of a
party. Evidently the applicants have been affected by the order
which leaves only the first requisite in contention.
The
question then is whether the order was erroneously sought or granted.
[20]
An
order is erroneously granted if there was no proper notice to the
absent party irrespective of whether the order or judgment
is
otherwise correct.
[7]
[21]
An
order is also erroneously granted or sought or there is an
irregularity in the proceedings, if the court was unaware of facts
which, if known to it, would have precluded it from a procedural
point of view from making the order.
[8]
[22]
Rule
6(5)(f) provides the basis upon which a litigant sets an opposed
application down for hearing as follows:
“
(f)
Where no answering
affidavit, or notice in terms of sub-paragraph (iii) of paragraph
(d)
,
is delivered within the period referred to in sub-paragraph (ii) of
paragraph
(d)
the applicant may within five days of the expiry thereof apply to the
registrar to allocate a date for the hearing of the application.
Where an answering affidavit is delivered the applicant may apply for
such allocation within five days of the delivery of his replying
affidavit or, if no replying affidavit is delivered, within five days
of the expiry of the period referred to in paragraph
(e)
and where such notice is delivered the applicant may apply for such
allocation within five days after delivery of such notice.
If the
applicant fails so to apply within the appropriate period aforesaid,
the respondent may do so immediately upon the expiry
thereof. Notice
in writing of the date allocated by the registrar shall forthwith be
given by applicant or respondent, as the case
may be, to the opposite
party.”
[23]
We are
presently concerned here with the manner in which a litigant obtains
a place on the roll and what the obligation is on the
parties once
the registrar allocates a date.
[24]
A
litigant is not entitled to place a matter on the opposed roll for
hearing unless the registrar has on application to him in terms
of
the sub-rule allocated a date for the hearing of the application.
[9]
[25]
A
simple application on notice suffices. In
casu
there is such an application on file, but it is dated 29 July 2014
and was served on the State Attorney on 26 February 2015, that
is on
a date which preceded the prior set down on 5 March 2015.
Oddly however it bears the registrar’s date stamp
only on 5
March 2015. I assume the notice was filed with the registrar
(or presented to her afresh as a new application)
on that date, but
self evidently it was not served on the State Attorney again.
It ought to be delivered in terms of the
rules, but it was not.
[10]
[26]
The
matter was thereafter complicated by the registrar providing a
provisional date on the roll instead of properly allocating a
firm
date.
[27]
When a
date is allocated by the registrar in terms of rule 6(5)(f) a notice
of set down is generated which indicates formally that
the matter has
been placed on the roll for hearing on the designated date.
This notice is then served on both parties by
the registrar. It
used to be served by registered mail, or by the attorneys uplifting
and signing for the notice, but I am
informed that presently such a
notice is dispatched by email to the relevant parties. The
original is attached to the inside
cover of the court file. I
emphasize the further aspect of rule 6(5)(f) which obliges the
applicant who applied for the date
to be allocated in peremptory
terms to
forthwith
give notice in writing of the date allocated by the registrar to the
opposite party.
[28]
Since
opposed motions after set down are often postponed, a practice has
evolved in this court by which the parties approach the
registrar to
obtain a further date on the opposed roll to which the matter is to
be postponed by the court, provided the registrar
issues a
certificate (which is headed “Provisional Opposed Motion Court
Date”) confirming that she has been consulted
with regard to
the set down and that the parties can be accommodated on the roll on
the agreed upon date. The need for such
a practice arose
because matters were being postponed in court to random dates on the
opposed roll without consultation with the
registrar, who is under
obligation to limit the number of opposed matters to no more than
eight on opposed motion court days.
[11]
[29]
At the
foot of the form the proviso is expressed that the date is
provisional only and will be allocated by the registrar only once
she
receives the order of court confirming that the matter has been
postponed to that date. The parties are further encouraged
to
agree on the date, hence the further warranty noted at the foot of
the form to the effect that “the party requesting the
date
warrants that the other party/parties involved in the matter agree(s)
to the proposed date”. The form is seen
by the court
postponing the matter and is maintained on the file merely as a
record that the parties were given the specific date
by the registrar
prior to the court postponing the matter to the relevant date.
The form is not required to be served on
the parties by the
registrar, neither is it done so in practice because the order stands
as confirmation of the allocation in this
manner.
[30]
In the
result the contention that the respondent complied with the
provisions of rule 6(5)(f) in setting the matter down rings hollow
because his attorneys instead followed the practice referred to above
which is meant to cater for an entirely different situation.
It
is so that the applicants were “served” with a copy of
the registrar’s certificate, but that is merely co-incidental
and does not render the set down proper in my view.
[31]
Where
the registrar allocates a date in terms of rule 6(5)(f) pursuant to a
proper application for set down, the application is
dominus
litis
and, in selecting a date, need not consult the respondent.
[12]
But in respect of the practice referred to above (assuming the
circumstances lend themselves to such a need), the expectation is
that the date to which the court will postpone the matter is a
product of the parties’ agreement. In this instance
it
does not appear from the court file that on 5 March 2015 the matter
was postponed to 30 April 2015 after such an agreement was
reached.
The applicants were therefore justified in holding out for a date
which suited their purposes since they had not
been consulted in
respect of the proposed provisional date.
[32]
The
court which made the order sought to be rescinded evidently placed
emphasis on the rule 15A notice as providing proof of set
down when
the matter was called on 30 April 2015 in the absence of the
applicants. Rule 15A of the Eastern Cape Joint Rules
of
Practice provides as follows in this regard:
(a)
By
no later than noon two court days before the day of hearing the
applicant, excipient or plaintiff shall notify the registrar
in
writing whether the matter will be argued, and if not what
alternative relief (for example postponement, referral to evidence,
etc.) will be sought.
(b)
Failure
on the part of the applicant, excipient or plaintiff to comply with
the provisions of the previous subparagraph will result
in the matter
being struck from the roll with an appropriate order as to costs.
[33]
Evidently
the notice is intended for the registrar only and informs the duty
judge that the matter will be argued on the basis provided
for in the
applicant’s notice of motion, alternatively what other relief
will be focused on at the hearing. By no stretch
of the
imagination can such a notice serve as proof of set down in the
formal context provided for in rule 6(5)(f).
[34]
The
second document which was seemingly relied upon to strengthen the
inference that the applicants were aware of the set down was
the
provisional certificate aforesaid, which as I have explained above
has a peculiar utility not relevant to the circumstances
of this
matter, but this too cannot stand as proof of set down in the proper
sense. The order was therefore erroneously granted.
[35]
It is
so that the applicants’ attorneys were nonetheless aware of the
purported set down, but that does not render a process
which was
irregular regular in all the circumstances.
[36]
The
fact of the matter is that the State Attorney had indicated quite
unequivocally in my view that the date reflected on the form
as a
provisional date did not suit their counsel. The respondent
failed to bring this correspondence to the attention of
the court at
all, which would obviously have satisfied it that the applicants’
lack of appearance was not deliberate.
[37]
Had
the court been made aware of Ms Sakasa’s stance in the matter,
it must be so that procedurally it would not have allowed
the
respondent to insist that an order be made in Ms Sakasa and the
applicants’ absence. In the premises the order
was also
erroneously sought.
[38]
It is
trite that once the facts point to an error in the proceedings, the
judgment ought to be rescinded.
[13]
It is therefore unnecessary for the applicants to go further and to
establish good/sufficient cause where reliance is placed
squarely on
the jurisdictional facts envisaged by rule 42(1)(a).
[39]
In any
event I am satisfied that the applicants have given a reasonable and
obviously acceptable explanation for their default,
have shown that
the application was made
bona
fide
;
and on the merits have demonstrated that they have a
bona
fide
defence which
prima
facie
carries some prospect of success. Indeed the respondent did not
seriously seek to controvert the applicants’ contention
that
good and sufficient cause exists to rescind the judgment.
[40]
As for
costs, the respondent sought to oppose the matter on the basis of his
in
limine
objections which were without any merit and in my view obstructive
particularly in the light of his concession (on his slanted
understanding of anything being wrong with the proceedings) that
there was at least misunderstanding on the part of the applicants’
attorneys concerning the purported hearing date. The respondent
has further not taken the court into his confidence concerning
why he
did not bring the contents of annexure “SA3” to the
court’s attention, even in the present application.
In
all the circumstances a punitive costs order is in my view entirely
justified.
[41]
I
issue the following order:
1.
The
order granted by this court on 30 April 2015 is rescinded; and
2.
The
respondent is ordered to pay the costs of the application for
rescission on the scale of attorney and client.
________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING :
29 October 2015
DATE
OF JUDGMENT : 10 November
2015
APPEARANCES
:
For
the applicants : Mr Young instructed by The State
Attorney, East London.
For
the respondent : Mr Kalamashe instructed by Sipunzi Attorneys,
East London.
[1]
It is not clear, at least not without an
explanation – which was not forthcoming from either of the
parties, why it was
contended that the matter had been incorrectly
set down for hearing on 5 March 2015. I will assume for
present purposes
that nothing turns on this although the
respondent’s attorneys appear to have a lack of appreciation
of the proper procedure
to enrol an opposed application for
hearing. I say so because the incorrect method was again
adopted by the respondent
in setting the present application down
for hearing.
[2]
Theron N.O. v United Democratic Front (Western
Cape Region) & Others
1984 (2) SA 532
(C) at 536 E.
[3]
Mr Kalamashe referred me to the unreported judgment of Mnisi &
Another v First Rand Bank Ltd (51839/2009) [2015] ZAGPPHC
499 (19
May 2015) at paragraph [17] thereof. An obiter remark is made
therein to the effect that:
“
In this
application the summary judgment order was given in default, in that
the respondents (current applicants) did not ‘oppose’
the application. The Judge merely had an affidavit of one side
to consider and the applicants’ (respondents in summary
judgment application) opposition was not available. Had the
respondents affidavit been available and been considered by
the
court then I am inclined to conclude it would have been a final
decision and would have been appealable
.”
For the reasons stated in
my judgment however I do not believe that the ‘principle’
sought to be deduced from it by
counsel is appropriate or relevant
in the circumstances. A High Court has the right to interfere
with the principle of
finality in judgments in the specific
circumstances provided for in rule 42(1). We are here
concerned with judgments which
are final in effect by their very
nature. While appeal is a remedy notionally available to the
applicants (See
section 19(d)
of the
Superior Courts Act, No. 10 of
2013
) in
casu
the applicable jurisdictional facts classically
lend themselves to the invocation of
rule 42(1)(a).
[4]
In
Stander and Another v Absa Bank
1997 (4) SA
873
(E) at 882 D the court observed that the purpose of the sub-rule
was to provide an inexpensive, quicker and less cumbersome procedure
than that which would have to follow if the matter were taken on
appeal.
[5]
National Pride Trading 452 v Media 24 Ltd
2010
(6) SA 587
(ECP) at [para 27].
[6]
See
rule 49(11).
[7]
Custom Credit Corporation Ltd v Bruwer
1969 (4)
SA 564
(D); Theron v United Democratic Front (Western Cape Region)
supra; Topol v LS Group Management Services (Pty) Ltd 1988 (1)
SA 639 (W); Clegg v Priestly
1985 (3) SA 950
(W); Athmaram v Singh
1989 (3) SA 953
(D); Fraind v Nothmann
1991 (3) SA 837
(W); Kili v
Msindwana
[2001] 1 All SA 339
(Tk); Brangus Ranching (Pty) Ltd v
Plaaschem (Pty) Ltd [2008] 4 All SA 542 (N).
[8]
Promedia Drukkers & Uitgewers (Edms) Bpk v
Kaimowitz
1996 (4) SA 411
(C); National Pride Trading 452 (Pty) Ltd
v Media 24 Ltd supra and Van der Merwe v Firstrand Bank Ltd t/a
Wesbank and Barloworld
Equipment Finance 2012 (1) SA 480 (ECG).
[9]
Nordberg Inc. v AQTN Services CC 1998 (3) SA 531
(T).
[10]
See definition of “deliver” in
rule
1.
[11]
See paragraph 15(b) of the Joint Rules of Practice for the Eastern
Cape Division.
[12]
Seton Co v Silveroak Industries Ltd 2000 (2) SA
215 (T).
[13]
Mutebwa v Mutebwa
2001 (2) SA 193
(Tk) at 199 I – J.