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[2013] ZAFSHC 177
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Coalition Trading 1130 CC (2008/154841/23) t/a Brother Accomodation v Motheo Fet College, Bloemfontein and Another (4003/2013) [2013] ZAFSHC 177 (22 October 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case Number: 4003/2013
In the application of:-
COALITION TRADING 1130 CC
(2008/154841/23)
t/a BROTHER ACCOMMODATION
.............................................................
Applicant
and
MOTHEO FET COLLEGE, BLOEMFONTEIN
....................................
1
st
Respondent
NATIONAL STUDENT FINANCIAL AID
SCHEME
...........................
2
nd
Respondent
______________________________________________________________
HEARD ON:
21 OCTOBER
2013
______________________________________________________________
DELIVERED ON:
22 OCTOBER
2013
______________________________________________________________
MOLEMELA, J
[1] This is an application in terms of
Rule 6(12)(c) of the Uniform Rules of Court for reconsideration of an
order granted on an
urgent basis on 8 October 2013.
[2] In the original application the
applicant approached the court for a rule
nisi
on the basis
that the first respondent was breaching the oral agreement that the
parties had entered into. According to the applicant,
the terms of
the agreement were that the applicant would provide accommodation to
students who had been awarded bursaries by the
second respondent. The
first respondent would then, on behalf of those students, claim the
bursary funds from second respondent
and then pay the accommodation
portion of the bursary over to the applicant once the applicant had
provided the first respondent
with a payment authorisation signed by
the students in question. The applicant averred that whereas the
first respondent had, in
the past complied with that agreement, the
first respondent was refusing to pay over the accommodation portion
of the student bursaries
to it notwithstanding that it had already
provided it (first respondent) with payment authorisations signed by
420 students.
[3] Having heard the application in
the absence of the respondents, the court granted the following
order:
“
1.
Condonation is granted to the applicant for the non-compliance with
the rules pertaining to form, service and notice.
2. A rule
nisi
is
granted whereby the first respondent is called upon to advance
reasons (if any) in the above honourable Court on
31 October 2013
at
09:30
, or as soon thereafter as the matter may be heard,
why the following should not be ordered:
2.1. that the first
respondent be interdicted from paying out any bursary funds with
regards to student housing to the students
listed in Annexure ‘
A
’
to the notice of motion, pending the finalisation of an action for
damages to be instituted within one month of the date
of this order
against the first respondent by the applicant;
2.3. that the first
respondent is ordered to pay the costs of this application;
3. Prayer 2.1 serves as
an interim interdict with immediate effect.
4. This order, the notice
of motion, the founding affidavit and annexure A thereto shall be
served on the affected students as more
fully described in annexure A
by affixing to the main notice board at the student accommodation
known as brother accommodation
or by displaying it at the main
entrance thereof.”
[4] The applicant in this application
for a reconsideration of the order is the first respondent in the
urgent application heard
on the 8
th
October 2013 (“the
original application). The party opposing this application for
reconsideration is the applicant in the
original application. For
purposes of convenience the parties are still referred to as in the
original application. The applicant
filed an affidavit with the
heading “answering affidavit to the notice in terms of uniform
Rule 6(12)(c)” (hereafter
referred to as “the
supplementary affidavit). The applicant further raised a point
in
limine
in terms of which it claimed that the application for
reconsideration ought to be struck off the roll on the basis that the
first
respondent had failed to make out a case for urgency of its
application. The applicant also asserted that the respondent had
given
it short notice of its (first respondent’s) application
for reconsideration of the order.
[5] Given the point
in limine
that has been raised, it is prudent to refer to Rule 6(12)(c)
verbatim
. It simply provides as follows:
“
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order.”
[6] In the case of
ISDN
Solutions (Pty) Ltd v CSDN Solutions CC and Others
1996 (4)
SA 484
(W) at 487B the court aptly stated as follows:
“
The
framers of Rule 6(12)(c) have not sought to delineate the factors
which might legitimately be taken into reckoning in determining
whether any particular order falls to be reconsidered. What is plain
is that a wide discretion is intended. Factors relating to
the
reasons for the absence of the aggrieved party, the nature of the
order granted and the period during which it has remained
operative
will invariably fall to be considered in determining whether a
discretion should be exercised in favour of the aggrieved
party. So,
too, will questions relating to whether an imbalance, oppression or
injustice has resulted and, if so, the nature and
extent thereof, and
whether redress can be attained by virtue of the existence of other
or alternative remedies. The convenience
of the protagonists must
inevitably enter the equation. These factors are by no means
exhaustive. Each case will turn on its facts
and the peculiarities
inherent therein.”
I echo the sentiments expressed in
this case.
[7] I am of the view that unlike Rule
6(8), Rule 6(12)(c) does not prescribe the period of notice that the
applicant for a reconsideration
of the order must give its opponent.
The applicant’s complaint about short service thus has no
merit. I am also of the view
that since the Rule is aimed at orders
granted on an urgent basis, an application for reconsideration is by
its nature urgent.
In any event, the first respondent has addressed
the requirement of urgency, as it averred in a paragraph with the
heading “Urgency”,
that even though the rule
nisi
was served on it on the 9
th
October 2013” its
repercussions had only recently filtered through”. The first
respondent
inter alia
made reference to a group of about 40
students who had allegedly made an attendance at its administration
offices to protest. I
am thus satisfied that the point
in limine
raised by the applicant cannot be upheld.
[8] In trying to
persuade me not to take the applicant’s supplementary affidavit
into consideration (
in so far as the contents thereof were
intended to bolster the facts in the applicant’s founding
affidavit in the original
application) Counsel for the first
respondent referred me to the following remarks made by the court in
the case of
Basil Read (Pty) Ltd v Nedbank Ltd and Another
2012 (6) SA 514
(GSJ) at par 520 par 22:
“
It
appears that the authorities and the additional judgments referred to
by Wepener, J in the Oosthuizen case [
Oosthuizen
v Mijs 2009(6) SA 266 (W)
],
all support the view that proposition that a party that seeks
reconsideration of an urgent order made in his absence, if it wishes
to, may present facts on affidavit which a court may take into
account in reconsidering the order. However, none of these judgments
provide authority for the contention that an applicant for an urgent
order may supplement its original founding affidavit with
additional
matter when faced with an application for reconsideration under rule
6(12)(c). The Rhino in my view case remains authority
for the
proposition that a party in the position of the opposing party is
entitled to seek reconsideration on the original application
without
reference to anything else.”
[9] I have taken into consideration
that in the Oosthuizen case (and some of the judgments referred to in
that case), full sets
of affidavits were filed by both parties in the
application for reconsideration. I am of the view that when Wepener J
stated that
“
I
am of the view that the court that reconsiders any order should do so
with the benefit not only of argument on behalf of the party
absent
during the granting of the original order but also with the benefit
of the facts contained in
affidavits
filed in the matter”
referred to affidavits by both parties
and thus recognised that the respondent in an application for
reconsideration was also entitled
to make averments in addition to
those set out in the original application. Relying on the
aforementioned dicta (in the Oosthuizen
case) I have therefore taken
the averments made in the applicant’s supplementary affidavit
into account.
[10]
Counsel
for the first respondent contended that failure to join the 420
students in question as respondents in the original application
rendered that application fatally defective and that on that ground
alone the order granted ought to be reconsidered and set aside.
Counsel for the applicant argued that the very bringing of the
application for reconsideration robbed the applicant of an
opportunity
of filing supplementary papers and/or bringing the
relevant interlocutory applications. In considering this aspect, I
have taken
into account that part of the order granted made provision
for service of that order on the students concerned by way of posting
of a copy of the application at the notice-board or at the main
entrance. I have also taken into account that just a day after
the
granting of the rule nisi the first respondent made payment of a
large amount to the applicant. Under such circumstances, the
applicant’s argument pertaining to its entitlement to
supplement its papers prior to the return date is not misplaced.
[11] Having considered all the
circumstances of this case, I am not inclined to exercise my
discretion in favour of the first respondent
for the following
reasons:
The first respondent’s absence
on 8 October 2013 has not been explained despite service of the
notice of motion and again
of a letter confirming the time at which
the application would be brought. The failure to explain the absence
is one of the factors
taken by the court into account in a similar
application in the case of
ISDN Solutions (Pty) Ltd v CSDN
Solutions CC and Others
, (
supra
).
Two days after the order was granted,
the first respondent paid the applicant an amount of R1 584 800.00.
The payment
in question was described as being in respect of
“service rendered as per your invoice…”. The
heading of the
explanatory letter described the payment as relating
to accommodation for students residing at one of the buildings
rented out
by the applicant. The letter in question was not written
on a “without prejudice” basis as claimed by the first
respondent
in its affidavit. This payment thus tended to recognise
the agreement that the applicant relies upon.
The order granted on the 8
th
October 2013 is of interim operation and the return day is only 10
days away.
Although the first respondent was
aware of the order, it did nothing about the matter for the ensuing
ten days.
Oppression, injustice or imbalance of
the order has not been demonstrated due to the following factors:
5.1. The first respondent has not
denied the existence of the oral agreement and its terms as
stipulated by the applicant in its
founding affidavit. On the first
respondent’s own version, it has previously honoured the
arrangement. Significantly, the
first respondent has not denied that
the applicant has furnished it with signed payment authorities. The
first respondent merely
seems to be pointing out that “a great
many of the students” are “disgruntled” and want
the bursary amount
to be paid directly to them. Such students have
not been named and, needless to say, they did not depose to any
confirmatory affidavits.
5.2. The first respondent has
previously not denied that it paid the funds in respect of
accommodation to the applicant on the strength
of the payment
instructions or authorities signed by students. The first respondent
merely states that the first applicant “seeks
to broad brush
facts and conclusions arising from such facts which are not supported
by the supporting documentation” but
does not deny the averment
that such documents do exist and were in fact submitted to it in
September 2013.
5.3. Notwithstanding the first
respondent’s averment that many students have demanded that
their monies be paid directly to
them, subsequent to the issuance of
the rule
nisi
, the first respondent paid an additional amount
to the applicant.
5.4. On the first respondent’s
version, not all the students have instructed it to pay the bursary
funds to them directly.
Clearly, there are those that have not issued
such an instruction. The first respondent has not disclosed why the
accommodation
portion of such bursaries should not be paid to the
applicant.
5.5. There is no inconvenience to the
students who have signed the payment authorisation as the order
granted relates only to the
accommodation portion of the bursary and
not to tuition, meals and transport. The students are currently being
accommodated by
the applicant.
[12] For the
reasons already expressed above, I am of the view that the first
respondent’s affidavit lacks sufficient particularity
regarding
its defence. In the result, the application for the reconsideration
of the order must fail. Given the view I have taken
on this matter,
I
need not deal with the other arguments raised by the first respondent
and same may be presented on the return day. I am furthermore
of the
view that the court dealing with the matter on the return day will be
best-placed to deal with the proposed amendment of
the order by the
applicant to accommodate a claim for specific performance as an
alternative to damages, should the applicant pursue
the amendment.
[13] Counsel for the first respondent
proposed that if the application for reconsideration of the order is
not granted, costs should
stand over for adjudication on the return
day of the rule
nisi
. Counsel for the applicant was not averse
to that proposition.
[14] I accordingly grant the following
order:
1. The first respondent’s
application for reconsideration of the order of the 8
th
October 2013 is dismissed.
2. Costs are reserved for later
adjudication.
_________________
M.B. MOLEMELA, J
On behalf of applicant: Adv J L
Olivier
Instructed by:
Botha & De Jager
BLOEMFONTEIN
On behalf of respondents: Adv M H
Wessel SC
With him:
Adv S Tsangarakis
Instructed by:
Honey Inc
BLOEMFONTEIN
/sp