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[2012] ZAECMHC 15
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Mangqo v MEC for Department of Social Development, Eastern Cape (563/2008) [2012] ZAECMHC 15 (11 October 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, MTHATHA
CASE NO: 563/2008
In the matter between:
NONTWAZANA MANGQO
..................................................................
Plaintiff
and
MEC FOR THE DEPARTMENT OF SOCIAL
DEVELOPMENT, EASTERN CAPE
...............................................
Defendant
JUDGMENT
SANGONI JP
[1] In a previous court application, registered under case no.
454/07, Schoeman J ordered on 6 July 2007 that, the disability grant
in favour of the applicant was unlawfully cancelled by the Eastern
Cape Department of Social Development. It was further ordered,
inter
alia
, that the said grant be reinstated retrospectively to 1
November 2004.
[2] Based on allegations of failure to comply with the court order,
particularly to reinstate the grant and to pay the outstanding
benefits thereof within the period stipulated in the order, a new
application for contempt of court was launched on 7 May 2008
against
the MEC for Social Development, Eastern Cape registered under number
563/08. On 30 June 2008 a counter application was
brought by the MEC
seeking to set aside the order of 6 December 2007 on the basis that
the order was obtained fraudulently. That
is the application before
court. The application for contempt of court has already been
disposed of. Pakade J dismissed the application
on 14 October 2010.
[3] On 16 May 2008 the respondent filed and served a Notice to Oppose
the application for Contempt of Court. On 30 June 2008 a
Notice of
Counter-application with an accompanying affidavit by one Mandisa
Mpunzi was delivered. The purpose of the affidavit,
as stated in the
affidavit is to support the application to set aside the order by
Justice Schoeman (counter-application) and also
to serve an answering
affidavit in the application for Contempt of Court. For the sake of
convenience I will continue to refer
to the applicant in the
counter-application as the resident.
[4] The basis for the application to set aside the order of Schoeman
J is fully set out on para 5 of Mpunzi’s affidavit.
It reads
like this:
“
I shall first deal with the
application to set aside
the order. The basis of that application is that the
Applicant did not set out all the relevant evidence
in her founding affidavit with the intent to mislead
this Honourable Court. It is my submission that
she confirmed fraud. As more fully set out below,
the picture that the Applicant painted in Case No.
454/07 diverged from the true facts to such an
extent that Schoeman J would, if the true facts had
been known to her, have granted an order different
from the one granted on 6 December 2007 which
the Honourable Ms Justice Schoeman was induced
to give by the aforesaid false representation.”
[5] This current application seeks to set aside an order made under
case 545/07 by Schoeman J. That does not imply I am sitting
in appeal
or review of that order. What puts me at ease is the fact that there
is no suggestion on the part of the respondent that
the order was not
justified by the facts on the basis whereof the order was made.
[6] Before dealing with the merits of the counter-application I
should first consider the points in
limine
raised by the
respondent in its opposing affidavit delivered on 22 August 2008. The
sum total is that the so-called counter-application
is in fact an
application for rescission of the judgment delivered by Schoeman J
without an application for condonation for the
late filing. It is
submitted that the said rescission is not provided for in the Rules
of this Court e.g. Rules 42 or 31 and is
not provided under common
law. It is further submitted that the respondent is attempting,
through this application, to make averments
it could have made so as
to be considered before the judgment was handed down by Schoeman J.
The contention by applicant is that
the respondent is attempting to
have case 454/07 re-opened through irregular means. The rest of the
answering affidavit contains
argumentative material with applicant
expressly stating that she was in no position to respond to what
could have been raised in
an answering affidavit by the respondent if
the latter had filed one before judgment. As a result the applicant
did not address
the issue of whether he committed the alleged fraud
or not.
[7] Much later, in fact on 26 July 2012 the applicant filed what it
referred to as Applicant’s Supplementary Opposing Affidavit
to
the counter-application. In this affidavit the applicant acknowledges
that it did not address what is referred as a fraudulent
conduct on
her part. She then proceeded to do so without seeking condonation for
late filing. After the opposing affidavit was
filed by the applicant
on 22 August 2008 the matter was enrolled on several occasions. It
was on occasion postponed and sometimes
removed from the roll without
any specific reason given. As indicated, above the application for
Contempt of Court was dismissed
on 14 October 2010.
[8] It would appear no focus was placed on the fact that the
respondent did not file any replying affidavit in this application
for setting aside. Not even on the question of whether the
supplementary opposing affidavit by the applicant should be
considered
even though filed out of time. At the hearing the parties
were silent on these issues. No suggestion was raised by either of
them
as to what approach the court should adopt. In the light of
there being no objection raised I assume that the parties are
impliedly
indicating that the papers be adjudicated upon as they are.
It will be apparent from the judgment that even without considering
the supplementary opposing affidavit the outcome of the application
would be the same.
[9] To go back to the in
limine
points raised I wish to state
as follows. Indeed, as alleged by the applicant, the respondent seeks
to reopen the case that was
made final through the order made by
Schoeman J. The grounds the respondent is relying on are fraudulent
misconduct by the applicant
leading to her obtaining the order. I
will set out here below the precise allegations of fraud.
[10] I understand the legal position to be that a
court may set aside its own final judgment in terms of the Uniform
Rules, particularly
Rule 42. This may also be done in terms of the
common law. At page 198 of Lawsa
1
it reads:
“
At common law, a judgment
obtained by fraud
(including forgery and perjury) may be set aside at
the suit of an interested party. The fraud must be
of such a nature as to entitle the other party to
restitutio in integrum
. It is necessary to allege
and
prove that the successful party (or someone to his
knowledge) gave incorrect evidence, that the
evidence was given fraudulently and with the
intent to mislead the court, and that the false
evidence was the
causa causans
of the
unfavourable judgment.”
[11] There is no prescribed procedure under common
law for an application to set aside a judgment obtained by fraud. A
litigant
who seeks such relief is not even bound to do so by way of
action only.
2
There is therefore no merit in the submission that
the procedure used by the respondent in this counter-application is
foreign to
our law. It may perhaps be correct to say it is uncommon.
[12] What constitutes fraud according to the respondent’s
version is made up of the following:
12.1 In her affidavit in support of the order granted she created the
impression that the disability grant was unexpectedly cancelled
by
the respondent or the Social Development Department and yet she knew
that the grant was of a temporary nature or she should
have known
that as a letter was addressed to her on 12 January 2004 advising her
that the approved grant was from 1 September 2003
for a period up to
31 August 2004. There is however no confirmation that the said letter
was received by the applicant. What complicated
this issue is the
fact that the grant was not terminated at the end of August 2004.
There is however no confirmation that the said
letter was received by
the applicant. What complicates this issue is the fact that the grant
was not terminated at end of August
2004. It became necessary for the
respondent, so it is alleged to send another letter notifying that
the grant would be terminated
on 31 October 2004. This attempt
towards establishing fraud is seriously wanting.
12.2 In the letter dated 12 January the applicant was notified that
after the expiry of 12 months from the date the grant was made
it
would lapse the applicant was at liberty to re-apply for the grant
for a disabled person of the medical condition makes her
eligible for
such grant. This was not placed before court in case 454/07. The
applicant denies she received that letter.
[13] In ‘Schierhout vs Union Government’
3
De Villiers JA held:
“
Baseless charges of fraud are
not encouraged by
courts of law. Involving as they do the honour and
liberty of the person charged they are in their
nature of the greatest gravity and should not be
lightly made, and when made should not only be
made expressly but should be formulated with a
precision and fullness which is demanded in a
criminal case.”
There is thus no way that fraud can be said to have been established
without further evidence.
[14] I must mention that on 14 October 2010 both the application for
contempt of Court and, the current counter-application where
simultaneously before Pakade J. When discussing the application for
contempt of Court, the learned Judge remarked:
“
This is the end of the matter,
there being no need to consider the Counter-Application brought by
the respondent in which he seeks
the setting aside of the Order in
issue on fraudulent ground. A judgment tainted with fraud can be
impugned
on common law grounds. This is, however, not an issue to be decided
in this contempt of court judgment.”
Nothing was indicated as to the future conduct of the
counter-application. It has since been set down by the applicant for
the
following dates:
4 March 2011 when postponed sine die
8 November 2011 when removed from the roll
31 July 2012 when proceeded with
[15] In my view the costs of the counter-application did not warrant
being on punitive scale.
In the result the counter-application is dismissed with costs.
C. T. SANGONI
JUDGE PRESIDENT
EASTERN CAPE HIGH COURTS
For Plaintiff: Attorney E. N. Nyobole
Instructed by: Messrs Voyi-Nyobole Attorneys
Suite 318 & 325, 3
rd
Floor
Development House, York Road
Mthatha
For Defendant: Adv. I. Smuts SC
Instructed by: State Attorney
Broadcast House
94 Sission Street
Fort Gale
Mthatha
HEARD ON 31 JULY 2012
DELIVERED ON 11 OCTOBER 2012
1
The
Law of South Africa – 2
ed
– Vol. 3 Part 1
2
Santos
Erec v Cheque Discounting 10 (Pty) Ltd 1986(4) SA 752 (W)
3
1927
AD 94
at 98