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2024
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[2024] ZALMPPHC 23
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Chaba and Another v Ga-Seema Community and Another (6904/2020) [2024] ZALMPPHC 23 (8 March 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE №:
6904/2020
In
the matter between:
SINA
CHABA
1
ST
APPLICANT
KGOSHI
M R L MATLALA
2
ND
APPLICANT
and
GA
– SEEMA COMMUNITY
1
ST
RESPONDENT
MAFIWA
CUTHBERT SEEMA
2
ND
RESPONDENT
In
Re
:
GA
– SEEMA COMMUNITY
1
ST
APPLICANT
MAFIWA
CUTHBERT SEEMA
2
ND
APPLICANT
and
SINA
CHABA
1
ST
RESPONDENT
KGOSHI
M R L MATLALA
2
ND
RESPONDENT
CORAM
: M.G.
PHATUDI J
HEARD
: 24
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
08
March 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whether a litigant may reinstate by notice of otherwise withdrawn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
was no 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:
A.
BACKGROUND:
[1]
This application, brought by the First and Second Respondent (the
applicants) is one of a rescission
of the judgment and/or order of
Naudé AJ (as she then was) issued in this court on 16 February
2021. The said application
is brought pursuant to the provisions of
Rule 42(1) (a), of the Uniform Rules of Court (the rules)
alternatively, the common law.
The applicants also sought condonation
for the late filing of the application, and if successful, they be
granted leave to deliver
opposing papers in the main application
(interdict) in respect of which the order impugned was obtained by
default.
The
application is opposed by the Second Respondent,
Ms.
Mochadi Khomosto Seema
(Seema) the
successor – in – title in the litigation of her
deceased’s father,
Mafiwa Cuthbert
Seema
(the deceased) in the present
proceedings. A notice of substitution of the parties was duly filed
of record on 07 December 2022.
B.
THE FACTS
[2]
The First and Second Respondents (the respondents) in the rescission
application, obtained a default
order against the Applicants herein
on 16 February 2021 in terms of which Naudé AJ issued a
prohibitory interdict and also
a declaratory order against the
latter, the First Applicant, Sina Chaba, (Chaba) from exercising what
she claimed were powers conferred
upon her as Headwoman and a
traditional leader of Ga – Seema traditional community, an area
which comprise of the Farms Goedevonden
and Schoongelegen within Ga –
Matlala.
[3]
Aggrieved with the default order granted against them the Applicants
brought the present rescission
application in terms of Rule 42(1) (a)
of the rules, albeit late. This application was issued by the
registrar on 23 November 2022
and served on the Respondents of even
date. The Applicants are now faced with the hurdle to cross, namely,
condonation for the
delay in bringing their rescission application.
C.
CONDONATION:
[4]
In an attempt to cross that hurdle and to gain audience in this
court, the applicants placed considerable
reliance on the order of
Naudé AJ made on 18 October 2022 to bring the present
application within 15 court days. This the
Applicants did not do.
Explaining their delay, they alleged to have been financially
constrained by lack of fees to pay their attorneys
of record, which
could only be raised on 20 November 2022, whereafter counsel was
appointed to prepare the application, in which
event, the
dies
would have expired on 09 November 2022. The application, therefore,
was 2 weeks out of time.
It
was submitted on behalf of the Applicants that the 2 weeks period of
lateness was not “too excessive”, so argued
Adv.
Mathabatha.
Counsel for the
Respondents, Adv. Maake, argued from the bar that the 2 weeks delay
was according to him quite unreasonable. He
contended that the
explanation was not “satisfactory”. This is not good
enough.
[5]
In
Darries v Sheriff, Magistrate’s Court, Wynberg &
Another
1998 (3) SA 34
(SCA)
at 401, the court not only
considered as to when and how a litigant seeking condonation must go
about. That court also emphasized
that “in applications of this
sort, the appellant’s prospect of success are, in general,
important though not decisive
consideration…”
I venture to suggest that
the Applicants’ prospects of success is, but one of the key
considerations material to the exercise
of the court’s
discretion, bar where the cumulative effect of other relevant factors
in the case is such as to render the
indulgence patently not worthy
of salt.
In the instant case this
court’s discretion can only be fettered where flagrant breaches
of the rules especially where there
is no acceptable explanation, in
which event, condonation may be refused.
See,
Tshivhase Royal
Council v Tshivhase & Another
[1992] ZASCA 185
;
1992 (4) SA
852
(A) at 859.
There is further
dimension in modern jurisprudence to the principles espoused above,
namely, the interests of justice. Therefore,
lateness, is not the
only decisive factor in deciding whether to lend condonation
See also
, Bertie van
Zyl (Pty) Ltd & Another v Minister for Safety and Security
2010
(2) SA 181
(CC).
As the interest of
justice test is one of the crucial requirements for condonation and,
of course, granting leave to appeal, there
is an overlap between
these inquiries.
In the instant case. I am
firm, in my view, that a proper case has been framed to grant
condonation for late filing of the rescission
application.
D.
THE ISSUE:
[5]
At issue in this instance is whether or not the Applicants have met
the threshold laid down in
Rule 42 (1) (a) of the rules or the common
law requirements.
The
answer to this question resorts in the provisions of the rule itself
which states in part that: -
RULE
42
VARIATION AND
RECISSION OF ORDERS
(1)
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;
[1]
(a)
(b)
…
.
(c)
…
.
”
E.
THE LEGAL MATRIX:
[6]
The proper approach in a rescission application based on Rule 42 (1)
(a), in particular, is that
a High Court’s inherent
jurisdiction does not extend to its right to disturb the recognized
principle of finality specifically
provided for in the rules or at
common law. This rule generally, finds no application to
interlocutory orders.
[2]
Furthermore,
a judgment or order of the High Court could be set aside under
Section 23A
of the
Superior Courts Act, 2013
[3]
,
or
Rule 42
and
Rule 31
(2) (b) of the rules.
[7]
This court, may in its discretion and, in addition to any other
powers it may have, exercise power
referred to under the common law
and
Rule 31
(2)(b) of the rules to rescind or vary an
order granted by default. At common law a judgment can, therefore, be
set aside on
inter
alia
,
the following grounds (1) fraud, (2)
iustus
error, (3) default judgment in the absence of the party affected with
no agreement existing to abide the judgment on the basis
of
justa
causa
,
and (4) in exceptional circumstances when new evidential material or
documents have been discovered or found to use in support
of the
rescission application.
[4]
[8]
Reference to the word ‘may’ in
Rule 42
(1) (a) imports
situations in terms of which the court will consider a rescission or
variation of the default judgment or order,
either own its own accord
or upon application by the affected party. In the present case, once
the Applicants have satisfied one
of the grounds required by the
subrule that the judgment was erroneously sought and erroneously
granted in their absence, the rescission
of the judgment ought to be
granted.
[5]
F.
DID APPLICANT DEMONSTRATE ERROR IN THE ORDER?
[9]
This enquiry encompasses, among other things, whether or not the
Applicants have shown that:
(a)
the default order was in terms of Rule 42 (1) (a) erroneously sought
and erroneously granted in their
absence, and accordingly has to be
“corrected expeditiously” as obviously wrong judgment or
order, and
(b)
If one or more of the jurisdictional factors referred to in
paragraphs (a) – (c) of the subrule
is present, the court
enjoys a judicial discretion to come to a litigant’s rescue.
[10]
Turning to the facts in the instant case, it is common cause or at
least not in dispute that the order granted
by Naudé AJ on 16
February 2001, was obtained in the absence of the present Applicants.
The
Applicants contended that at the hearing of the interdict and
declaratory order before the learned Acting Judge, the Respondents
in
casu
did not disclose certain material
facts which even if adverse to their case, should have been brought
to the attention of the court.
These facts are, among others, that: -
10.1.
Ga – Seema village is a community
located within the jurisdiction of Bakone – Ba – Matlala
Traditional Authority;
10.2.
That, the Goedgevonden village forms part
and parcel of Ga – Seema;
10.3.
That, the deceased (Cuthberth) was a
Headman of Goedgevonden, and therefore, Chaba could not have had
authority to allocate stands
in that territory, and so was the Second
Applicant (MRL Matlala).
[11]
In support of the material non – disclosures which should have
been brought to the court’s attention,
the Applicants relied on
a letter issued by Bakone – Ba – Matlala’a THABA
Traditional Council (BBMTTC) dated
17 November 2022,
[6]
in terms of which Chaba has been appointed as headwoman (Ntonagadi)
of Goedgevonden, while the deceased (Cuthbert) was appointed
Headman
(Ntona) of Schoongelegen both wards fall within the jurisdiction of
BBMTTC. The aforesaid appointments are confirmed by
the Second
Applicant in her confirmatory affidavit attached to the founding
affidavit.
[12]
Additionally, Chaba attached to her papers a copy of her appointment
letter as Acting Headwoman of Goedgevonden
under the said traditional
council
[7]
. Her recognition as
such by the Premier of Limpopo was effective from 07 March
2018. On a reading of this letter, it was
the Premier through COGHSTA
that recognized Chaba in 2018 as Headwoman Goedgevonden Ga –
Matlatla. This decision, a purely
administrative action in nature,
remains valid, until set aside by a court with competent
jurisdiction
[8]
.
[13] In
sum, the Applicants’ contention was that had the court been
alerted to these facts as alleged, the
order would and should not
have been granted in the first place. The said adverse order is
therefore liable to be upset by a rescission
order. I agree with
these submissions.
[14]
The Respondents in their Answering affidavit contended that the
rescission application “lacks prospects
of success” and
should, therefore, be dismissed.
[15]
This assertion appears to be reliant on a copy of the Order of
Potteril AJ (as she then was) issued in the
then Transvaal Provincial
Division, Pretoria (TPD) on 28 August 2008.
[9]
I must
accept that this court did not have the benefit to have sight into
the issues in that matter, and how the learned Acting
Judge arrived
to the order she made. What remains crystal, however, is that
COGHSTA, the First Respondent in the matter, is not
a party to the
present proceedings, either.
[16] My
interpretation of the order in the paragraph which is declaratory in
nature, is that “the village
Ga – Seema encompasses sub –
villages Goedgevonden and Schoongeleegen”. And, that M.C. Seema
(the deceased) is
the sole Headman of Ga – Seema, by virtue of
inheritance.
[17]
Crucially, however, pursuant to further development in the socio –
political landscape of the area,
I find as evinced in Annexures
‘RSC
[10]
’ that the
Second Applicant who on 02 December 1992 was appointed Acting
Kgoshigadi of BBMTTC by the outgone Lebowa Government,
had appointed
Chaba on 17 November 2022 as Headwoman of Goedgevonden under her
jurisdiction, and so was the deceased as Headman
of Schoongelegen.
Her actions were a sequel to COGHSTA’s recognition of Chaba as
Acting Headwoman in respect of the same
village. Although never
overturned by any order of competent jurisdiction, I find that
Potteril AJ’s order is, with respect,
overtaken by prevailing
circumstances and, therefore, became superfluous and, in any event,
of no further practical effect to the
parties. Furthermore, properly
interpreted, paragraph 2 thereof, cannot be construed to extend to
Mochadi
Khomotso Seema
who substituted the deceased as an heir to her father’s
position as a Headman over the said area, unless and until she is
duly recognized in law as such by the Premier. This has so far not
been done. The submission by Adv. Maake on behalf of the Respondents
that the “Second Respondent”, duly substituted, is the
“headman” for the area is, with great respect, simply
untenable.
[18]
The Respondents in their answering affidavit (“AA”) did
not deny the allegations in paragraph
2 to 9 of the Applicants’
founding affidavit, (‘FA’) except for the truthfulness
and noting thereof, without
placing a destructive version against
them. I may point out that in fact the bulk of the “AA”
contains bare denials
and “noting” the allegations in the
“FA”, which is of no assistance to the Respondents in
resisting the
rescission application.
[19]
G.
CONCLUSION:
19.1.
The view I take of the matter, as already
indicated is that the period for the slight delay in seeking the
rescission of judgment
was not inordinate. Even if it might be so,
the explanation offered is reasonable, which in turn appeals to the
interests of justice
to lean in favour of the granting of the
application, particularly, that there are reasonable prospects of
success in the main
application.
19.2.
The
aforegoing observation is reinforced, by what this court stated in
the
ROAD
AGENCY LIMPOPO SOS LTD V TSHEPAGA ENGINEERS (PTY) LTD
[11]
para [25] that: -
“
Having
found that the order was erroneously sought and granted, this court
is at large, without more, to rescind and set it aside.
This is
supported by the recognized principle that where an order or judgment
was erroneously obtained due to non – disclosure
of certain
material facts, at the time it was given, it is unnecessary for
defaulting party to show ‘good cause’ for
the default
under the subrule.”
See also, Naidoo v
Matlala N.O & Others
2012 (1) SA 143
(GNP) at 153C.
19.3.
In light of all the aforesaid
considerations the rescission application should succeed with costs.
H
COSTS:
[20]
Legal costs in the majority of cases follow the event. The awarding
of costs to the successful party resides
in the Court’s
discretion, which in this case, the Applicants are entitled to costs.
I, in the circumstances, make an order
as follows: -
J
ORDER:
1.
That, the default order granted against the
Applicants on 16 February 2021 (Case № 6904/2020, before Naudè
AJ) is rescinded
and set aside.
2.
That, condonation is granted for the late
filing of the rescission application
.
3.
That, the Applicants (in the rescission
application) are granted leave to file opposing affidavit/s in the
main application within
20 court days after the granting of this
order;
4.
Further that, the First and Second
Respondents are ordered to jointly and severally pay the costs of the
application.
_______________________
M.
G. PHATUDI J
JUDGE
OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the Applicants
: Adv. C Mathabatha
Instructed
by
: Mathabatha Martin Lekoloane
Polokwane
Counsel
for the Respondent
: Adv. E.S Maake
Instructed
by
: Israel Maenetja Attorneys
Polokwane
c/o
De Bruin Oberholzer Attorneys
Date
of the hearing
:
24 November 2023
Date
of delivery of Judgment
:
08 March 2024
[1]
The cause of application for a rescission is principally predicated
on subrule 42(1)(a) only, and the subsidiary common law principles.
[2]
South
Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A) at 550 H.
[3]
Act
10 of 2013, as amended.
[4]
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163
[5]
Mutebwa v Mutebwa 2001 (2) SA (TK) at 1991J
[6]
Paginated Index p25, Annexure ‘RSC
7
’.
[7]
Ibid. p 16, Annexure ‘RSC
2
‘,
issued by COGHSTA, Limpopo Province.
[8]
Oude
Kraal Estates (Pty) Ltd V City of Cape Town
2004 (6) SA 222
(SCA) at
242.
[9]
Ibid. p 50, Annexure ‘MKS
2
’.
[10]
Ibid p 18, Certificate of appointment of Second Applicant. Ms.
Rosetta Matlala.
[11]
Case №: 981/2016 (24.12.2020) “Unreported”