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2024
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[2024] ZALMPPHC 20
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Sekgopo Traditional Council and Another v Chairperson of the Limpop Provincial Committee on Traditional Leadership Disputes and Others (7700/2019) [2024] ZALMPPHC 20 (6 February 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:
7700/2019
In
the matter between:
SEKGOPO
TRADITIONAL COUNCIL 1
ST
APPLICANT
MOKGADI
JOSEPHINE SEKGOPO
2
ND
APPLICANT
and
THE
CHAIRPERSON OF THE LIMPOPO PROVINCIAL
1
ST
RESPONDENT COMMITTEE ON
TRADITIONAL LEADERSHIP DISPUTES
LIMPOPO
PROVINCIAL COMMITTEE ON 2
ND
RESPONDENT TRADITIONAL LEADERSHIP DISPUTES
WILLIAM
MATSORANG SEKGOPO
3
RD
RESPONDENT
THE
MEC FOR CO-OPERATIVE GOVERNANCE AND 4
TH
RESPONDENT HUMAN SETTLEMENT AND
TRADITIONAL AFFAIRS
THE
PREMIER OF LIMPOPO PROVINCE 5
TH
RESPONDENT
CORAM
: M.G.
PHATUDI J
HEARD
: 02
NOVEMBER 2023
DELIVERED
:
This judgment was
circulated electronically to the parties’ legal representatives
by email and released to SAFLII. The date
and time for delivery of
this judgment is deemed to be
06
February 2024
at
10:00AM
.
SUMMARY
:
Urgency –
re-instatement of fatally defective application not
supported by an affidavit contrary to
rule 6(1), Uniform Rules of
Court – Rule 41(1) (a) creates
mechanism for withdrawal of ‘any
proceedings’ at any time
before set down of matter – issue in
casu
whether a litigant may reinstate by notice of otherwise withdrawn
proceedings not tainted by defects – such proceedings
capable
of reinstatement subject to the provisions rule 41(1) (a)
and provided that there has not been set down.
Held, in
casu
,
reinstatement application structurally defective not capable of
revival – furthermore, even not so, application lacks urgency
and had to be struck off the roll with costs.
JUDGMENT
M.G.
PHATUDI J:
BACKGROUND:
[1]
On the opposed motion court roll of 30 October 2023, were some
matters which I had occasion to
consider, among them, two distinct
applications with different relief invariably involving the same
parties.
The
one matter (№ 2) was a review application in which the
Applicant Mr. Williams Masorang Sekgopo (William) sought
an order to review the decision of the First Respondent, The Premier,
Limpopo Province under case №: 5799/2018.
(the
first review) to recognize the Second respondent as a Senior
Traditional Leader of Ga-Sekgopo. The other matter (№ 3)
case
№: 7700/2019 was an urgent application in which the Applicants,
Sekgopo Traditional Council and Ms. Mokgadi Josephine
Sekgopo, the
First and Second Applicants, respectively, approached this court
seeking an order, among other things, that:
1.1.
That condonation be granted to them for
their non-compliance with the Uniform Rules of Court (the rules)
relating to service and
time frames prescribed, and that this matter
be dealt with as one of urgency;
1.2.
That, this application (case №:
7700/2019) be heard by the same Judge allocated to hear the review
application (the first
review) simultaneously; and
1.3.
That the notice of withdrawal of the review
application (the second review) issued under case №: 7700/2019,
be set aside;
1.4.
Further that, the second review application
referred to above, be reinstated.
The Applicants in the
urgent reinstatement application also asked for costs in the event of
opposition. The Third Respondent, William,
oppose the second review
application.
[2]
I interpose at this juncture to mention that on 23 January 2020, the
Fourth and Fifth Respondents
served a notice to abide the decision of
this court and filed the same on 27 January 2020. To that end, no
opposing papers were
filed by the said respondents in respect of the
present urgent application.
[3]
At the hearing this matter, counsel for the Applicants, Mr. Mashilo,
submitted,
inter alia
, that because of its inherent urgency,
the second review application seeking a reinstatement should take
precedent and be heard
prior to the hearing of the first review
application which was enrolled for hearing on the same day. From
counsel’s submissions,
it became patently clear that no
consensus was reached that the two review applications be
consolidated and heard
in tandem
.
[4]
What became clear, however, was that counsel for the Third Respondent
(William) Mr. Havenga SC,
not only strenuously challenged the urgency
of the second review application to be reinstated since its
withdrawal, but also lack
at all of its merits. The high-water mark
in his submission was that an application, once withdrawn, cannot be
revived or re-instated.
THE ISSUE:
[5]
The issues in this inquiry really are whether, first is the matter
sufficiently urgent, and second,
whether an application, once
formally withdrawn, is capable of re-instatement.
[6]
I consider it apposite to first deal with the issue of urgency in
this matter.
THE PRINCIPLES
[7]
It is long settled in our law that Rule 6(12) (a) and (b) of the
Uniform Rules of Court (the rules)
govern urgent applications. It
provides as follows: -
“
Rules
6(12):
(a)
……………
.
(b)
In every affidavit filed in support
of any application under paragraph (a) of this subrule, the applicant
must set forth explicitly
the circumstances which he averred render
the matter urgent and the reasons why the applicant claims that
applicant could not be
afforded substantial redress at a hearing in
due course
”
[8]
This court in the case of
Mabotwane
Security Services CC v Sekhukhune District Municipality and Others
[1]
held that: -
“
16.1
The insertion by the lawmakers of the
procedure at the time was, in my view, not intended mere surplusage.
The subrule not only
requires of an applicant to pertinently aver the
circumstances that he/she claims the matter is urgent, but is also
required to
set forth explicitly the reasons why he/she avers could
not be afforded substantial redress at a hearing in due course
”
The
court went on to state that: -
“
[17]
Accordingly, a mere perception by a
litigant seeking to be heard on an urgent basis and subjectively for
own convenience thinking
that the matter is sufficiently urgent,
cannot in itself be reason that the matter be elevated to urgency.
More has to be done
to meet the threshold laid down in subrule
6(12)
”
[9]
What this rule envisage is simply for a legal practitioner
representing a litigant in a given
case to carefully scrutinize
examine the facts of each case before setting the matter down, and
decide whether a proper foundation
and reasons for urgency exit and,
additionally, why substantial redress could not be obtained at a
hearing in due course.
If
a litigant substantially delayed in instituting the proceedings,
he/she must give a proper an credible explanation for the delay.
The test, ultimately, is
if the application were to be enrolled on the normal motion court
roll as provided in the rules, an applicant
will obtain substantial
redress?
[10] In
a case such as this, there exists no sound basis to condone the
delay, nor does it appeal to the interests
of justice to do so.
[11] A
brief traverse on the litigation history of this matter will throw
light on the facts that militate against
the reinstatement
application sought purely on urgency basis.
[12] On
12 September 2019, the Applicants launched the second review
application in this matter in which they
aimed to review and set
aside the First and Second Respondents’ findings and
recommendations dated 04 December 2017.
The
Second Respondent, (the “Kgatla Commission”) better
described as a Section 26A plenary Committee was established
in terms
of Traditional Leadership and Governance Framework Amendment Act,
2009.
The
Third Respondent opposed the said application and subsequent thereto,
filed a Rule 30 A (1) notice on 17 December 2019. The
basis of the
irregular step notice was that the Applicants did not in their
application comply with the provisions of Rule 53.
In redressing the
irregular step notice, the Applicants gave notice of amendment in
terms of Rule 28(1) of the rules, seeking to
amend their initial
notice of motion, in fulfilment of the requirements Rule 53 (1)(a) to
Rule 53(4), which notice was filed on
09 January 2020.
No
further procedural steps were taken by the Applicants post the
relevant notice to amend.
[13]
Against the said backdrop, the Applicants on 08 June 2021 issued,
served, and filed a “notice of withdrawal”
of their
review application.
[2]
The
relevant withdrawal notice duly signed by the Applicants’
counsel, (a trust account counsel), Mr. S M Monyela, state in
part
that:
“
Kindly
take notice that the Applicants hereby withdraw their application in
the above Honourable court against the Respondents.”
I
pause to remark that I did not come across any other notice that
subsequently recalled the said withdrawal notice, or otherwise
decrying that it was erroneously issued, served and filed of record
and, therefore, a nullity.
[14] In
a twist in the tail of events, Mr. Monyela, Counsel for Applicants,
filed a notice of withdrawal as (sic)
legal representative “of
record with immediate effect”. This termination of own mandate
was served on the Applicants’
Attorneys in the first review
application (case № 5799/2018) on 07 August 2023. I
take his withdrawal as counsel
to be of no force on effect since the
self-termination of his role as counsel was brought under a wrong
case number of which he
has had no standing. His termination, of
mandate, however, had no bearing on the initial withdrawal of the
review application.
The
firm HLM Mamabolo were, nonetheless, introduced as the Applicants’
attorneys of record recently on 28 September 2023,
when they issued
and served their notice of appointment.
[15]
Realizing that the date for the hearing of the first review
application (case № 5799/2018)
brought by
William against the Limpopo Premier and the present application were
imminent, the latter’s attorney only on 13
October 2023 (16h48)
dispatched by email a document purporting to be a “founding
affidavit” (FA) for the respondents’
attention.
15.1
The said document, it appears, was served
on 16 October 2023. The Applicants’ attorneys did not take
steps to revive the withdrawn
review application by way of bringing
an interlocutory revival application in ordinary motion, instead of
bringing an urgent “re-instatement”
application under the
aegis of Rule 6(12) (a) and (b) of the rules. They in fact, had
approximately one month from 28 September
2023, to have lined up
their ducks in a row.
15.2
The period 28 September to 16 October 2023,
being in excess of 2 weeks, was punctuated by 2 Thursdays in the 2
weeks for Applicants
to have enrolled the intended urgent application
on the earliest Tuesday available of the next week, if indeed the
matter was adequately
deemed to be that urgent. This the Applicants
did not do.
15.3
They
had instead impermissibly filed an uncommissioned “founding
affidavit,
[3]
” together
with annexures not compliant with rule 6 (1) of the rules, which,
requires that “every application shall
be brought a notice of
motion
supported
by an affidavit
.”
A
document not commissioned professing to be an affidavit does not
amount to a sworn affidavit and should, therefore, be discounted.
To
be valid it has to pass the requirements laid down in the regulations
governing the administration of Oaths or Affirmations.
[4]
That said, the reinstatement application is therefore fatally
defective. There is therefore nothing left to reinstate.
[16]
There is further subsidiary difficulty with the current
re-instatement application.
The Applicants
have not as yet complied with the provisions of Rule 53(3) or 53(4),
as amended, of the rules, which are per-emptory
regarding furnishing
the Registrar with 2 copies of the record and the other parties
participating in the litigation. The Third
Respondent (William) is
entitled, therefore, to have had a full record required pursuant to
Rule 53(5) in order to enable him to
properly oppose the matter. The
Applicant’s submission that their withdrawn application is
unopposed is unmeritorious. See,
Vereeniging Van Bo – Grondse
Van SA v President of Industrial Court
1983 (1) SA 1143
(T)
IS
RE–INSTATEMENT OF A WITHDRAWN APPLICATION AVAILABE AS A
RECOURSE?
[17]
Rule 41(1)(a) of the rules of this court provides a mechanism in
terms of which a person who initiated “any
proceedings”
may at any time before the matter has been set down, and thereafter
by consent of the parties or leave of the
court withdraw such
proceedings. What a litigant needs to do, in any such event, is to
deliver a notice of withdrawal and may in
it embody a consent to pay
costs.
In
the present instance, the Applicants delivered their notice of
withdrawal of the second review proceedings on 08 June 2021.
Furthermore,
in doing so, there is no indication that the Third Respondent or his
attorneys consented to the said withdrawal, nor
that leave of court
was sought and granted beforehand. The relevant notice did not,
moreover, tender the costs for the withdrawal
which is customary,
though not cast in stone. These costs can later be claimable under
subrule (1)(a) and (b) of Rule 41.
[18]
In a somewhat distinguishable case of
ROUPELL
v METAL ART LTD
[5]
,
the plaintiff was permitted, following a dispute that had arisen post
settlement of their dispute, to withdraw his notice of withdrawal,
and to reinstate the matter on the roll for hearing. I assume without
deciding, that the withdrawal was triggered by the revival
of the
dispute and the interpretation occasioned by the repudiated
settlement put on the table by the defendant. The settlement
though
later disputed had, in my opinion, then terminated the live
lis
between them, hence the withdrawal.
[19] In
the present case, these was a live
lis
when the Applicants
filed the ill-fated withdrawal notice of their review application.
This was, moreover, served and filed absent
any notice of set down
filed by either party to the dispute. The ‘proceedings’
contemplated in Rule 41(1)(a) of the
rules refer to a situation where
there is a live
lis
between the parties which has not as yet
been set down. These proceedings may at any time before the matter
has been set down be
withdrawn at the instance of the initiator. In
that event the concurrence of his/her opponent and leave of the court
is not a prerequisite.
This must, however, be done before the matter
is set down. Once a matter has been set down for hearing, it is not
competent for
the applicant party to withdraw such proceedings
without the consent of other protagonists’ or leave of the
court.
[20]
Upon a perusal of the Second review application, (case №
7700/2019) it is clear that no notice of set
down endorsed by the
registrar had found its way in these proceedings before the relevant
withdrawal notice was served. There can,
therefore, be no impediment
that would otherwise preclude the Applicants from reviving the
matter. But, the inquiry does not end
there. There remains the
question whether or not the said re-instatement application was
justified by the reasons for urgency and
absence of substantial
redress at a hearing in due course, if validly prosecuted.
I
am inclined to think not.
[21]
The principles enunciated in
Mabotwane’s
case
[6]
above, militate against
a finding of the existence of circumstances of urgency in the
reinstatement application. I consider it
not useful to echo the
court’s sentiments already expressed elsewhere in this
judgment.
[22]
Furthermore, the Applicant’s late filing of their application
on urgency basis had put a serious hurdle
in the way of their anxiety
to be granted audience in this court. They also failed to apply for
condonation to mitigate their predicament.
It is axiomatic that
condoning a litigants’ non–compliance with the rules and
the Practice Directives applicable in
this court is an indulgence
that resides in a court discretion
[7]
.
[23]
Taking into account the facts and the circumstances at play in this
matter, this court finds that the reinstatement
application the
Applicants sought on urgent basis by far falls short of the
requirements laid down in Rule 6 (12) (a) and (b) of
the rules of
this court. No cogent reasons for absence of substantial redress at a
hearing in due course were for a moment advanced
in their
application. In the result, the application is bound to be struck off
the roll with costs for want of urgency. What is
more, as already
shown, is that the founding affidavit is fatal, and thus destructive
to the reinstatement application itself.
There is nothing surviving
to revive.
THE COSTS:
[24]
The general rule is that costs follow the event. In this case, the
Applicants had ample time since the withdrawal
of the erstwhile
counsel to engage alternative legal representatives of their choice
in order to bring the reinstatement application
of their review on
urgent basis. This in turn constrained the Third Respondent to
appoint his attorneys, brief senior counsel to
oppose the matter
which comes at a premium of which he is entitled to recover upon
being successful.
To
that end, I make the following order:
1.
The reinstatement of the review application
(case № 7700/2019) is struck off the roll for lack of urgency;
and defectiveness;
2.
The Applicants are jointly and severally
ordered to pay the costs on attorney and client scale.
_______________________
M.
G. PHATUDI J
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the Applicants
: Advocate MH Mashilo
Instructed
by
: HLM Mamabolo Attorneys
Polokwane
Counsel
for the Respondent
: Advocate Havenga SC
Instructed
by
: Joubert May Attorneys
Tzaneen
c/o
De Bruin Oberholzer Attorneys
Date
of the hearing
:
02 November 2023
Date
of delivery of Judgment
:
06 February 2024
[1]
(2425/2020)
[2020] ZALMPPHC 96 (08.09.2020)
[2]
Paginated
Index – part 5 (Review application) pp12-14
[3]
Paginated
index, (reinstatement application) pp 10 – 27
[4]
Section
3 of the Justice of the Peace and Commissioners of Oaths Act 16 of
1963, as amended, GN R 1258 dated 21.07.1972
[5]
1972
(4) SA 300 (W)
[6]
See,
para: [8] of the said judgment.
[7]
See,
also Grootboom v NPA
2014 (2) SA 68
(CC) at Para [23] and [32]