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[2024] ZAMPMBHC 24
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Matsane v Riba (60/2021) [2024] ZAMPMBHC 24 (19 March 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 60/2021
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES:YES
(3)
REVISED: YES
DATE: 19/03/2024
SIGNATURE
In the matter between:
SONKE
MATSANE
Applicant
and
VUSIMUZI
RIBA
Respondent
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 19 March 2024 at 10:00.
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
On 26 January 2021, this Court granted judgment in favour of the
Respondent (“Riba”).
It is this judgment which the
Applicant (“Matsane”) now seeks to rescind on the ground
that the order was erroneously
sought and erroneously granted, as
contemplated in Uniform Rule of Court 42(1)(a). The application is
opposed firstly, on the basis
that Matsane deliberately chose not to
oppose the urgent application duly served on his attorneys of record
on 14 January 2021.
Secondly, while aware of the date of 26 January
2021, the date of hearing of the urgent application, Matsane chose
not to attend
Court. Thirdly, Matsane completely fails to account for
the inordinate delay that it took him to launch this application.
FACTUAL MATRIX
[2]
This matter traces its roots to 5 January 2021 when Riba, through his
attorneys, wrote
to Matsane demanding that he ceased erecting
structures on his land. Riba also threatened that should Matsane fail
to commit to
an immediate undertaking to stop the construction of the
buildings, he would launch an urgent application aimed at forcing him
to refrain building. On 8 January 2021, Matsane’s attorneys
acknowledged receipt of Riba’s letter of demand. They advised
that they were still to consult with Matsane. On 11 January 2021, the
attorneys of the parties met at the offices of the attorneys
of
Matsane.
[3]
Following the meeting and on an unknown date, Riba’s attorneys
obtained diagrams
of the Surveyor General and other documents from
the Deeds Registries Office in Mbombela. The attorneys then forwarded
the documents
to Matsane’s attorneys as proof of their client’s
ownership of the property. In the e-mail message that accompanied
the
diagrams, Riba’s attorneys again demanded Matsane to undertake
to desist from erecting the structures on Riba’s
property by
not later than 12 January 2021. Riba alleges that Matsane refused to
provide the undertaking. That said, it seems to
be common cause on
the papers that Matsane has to date not refuted the allegation that
he was erecting structures on land that
did not belong to him.
[4]
On 14 January 2021 and noting that no undertaking was forthcoming,
Riba launched the
urgent application. The urgent application was
scheduled to be heard on 26 January 2021. Riba alleges that following
a threatening
phone call that he received from Matsane on 17 January
2021, he filed a supplementary affidavit notifying the Court of the
threat.
On 22 January 2021, again alleges Riba, he attempted service
upon the attorneys of Matsane. They refused to accept delivery of the
papers but later, on the same day, served their notice of withdrawal
as attorneys of record of Matsane.
[5]
Immediately upon receipt of the notice of withdrawal as attorneys of
record, Riba’s
attorneys forwarded it, together with the
supplementary affidavit, to the WhatsApp number of Matsane as he no
longer had any attorney
on record representing him. The application
remained unopposed until it was heard on 26 January 2021. On that
date, this Court
granted the order sought. It is not disputed that on
17 February 2021, Matsane and his current attorney of record attended
upon
the offices of Riba’s attorneys to collect the Court
order. Additionally, it is also common cause that on 2 February 2022,
the sheriff, per arrangement with Matsane, served the Court order
upon him at Galito’s.
ISSUES
[6]
The issues for determination are straightforward and they concern
whether or not the
jurisdictional factors in Rule 42(1) have been
satisfied. These are firstly, whether the judgment sought to be
rescinded was granted
in the absence of Matsane and secondly, whether
the order was erroneously sought and erroneously granted.
ASSERTIONS
[7]
Matsane argues that knowledge of the order obtained against him on 26
January 2021
reached him for the first time in March 2022. The
application was served on his then attorneys who did not notify him
of its existence.
In any event, his erstwhile attorneys withdrew
without advising him of the application. Moreover, says Matsane, it
would appear
that the notice of withdrawal as attorneys of record did
not even contain his last known address as required by the Rules of
Court.
As such, he could not have been at the hearing on 26
January 2021 nor could he have approached this Court earlier than he
did.
[8]
Insofar as the requirement that the order must have been erroneously
sought and erroneously
obtained, Matsane contends that the Court had
thought that he was aware of the hearing of the 26
th
of
January 2021 when in fact, the converse pertained. The Court would
not have granted the order had it known this. It was also
erroneously
sought and erroneously granted because the date of 26 January 2021
was meant for the hearing of Part A alone but what
transpired on the
day was that the Court simultaneously heard Parts ‘A’ and
‘B’ when it should have left
the latter for later
determination. In the circumstances, concludes Matsane, his right to
audi alteram partem
as contemplated in Section 34 of the
Constitution of South Africa was contravened.
[9]
Riba, on the other hand, contended that "
granted
in the absence of any party affected thereby"
in Rule 42(1) has now come to mean to protect parties who had been
precluded from attending the proceedings. It will not avail
a party
who has been afforded opportunity to be present at the proceedings
but chooses to stay away. In this regard the Court was
referred to
the case of
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State
[1]
.
[10]
Riba asserts further that as the owner of the property, he was
procedurally entitled to the order
granted on 26 January 2021. This
ought to be correct, says Riba, especially in circumstances where his
lawful ownership of the
property and the illegal erection of
structures on that land by Matsane is not refuted. Riba concludes
that the application is
an attempt to abuse justice processes for
ulterior purposes. Additionally, he says, if the order were to be
rescinded, as Matsane
seeks, there will be no prospects of success
because he has already accepted that Riba is the lawful owner of the
property and,
necessarily that Riba can defend his right of
ownership.
LEGAL FRAMEWORK
[11]
Rule 42(1)(a) upon which Matsane relies for this rescission
application provides that 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 an order or judgment erroneously
sought or erroneously granted in
the absence of any party affected
thereby.
[12]
Concerned with the interpretation of Rule 42(1)(a) as described
above, the Constitutional Court
in the Zuma
supra
held, in
addition to what I have already outlined in Paragraph 9
supra
that the sub-rule provided for two separate requirements (although
one could give rise to the other in certain circumstances):
(a)
a
party had to be absent, and
(b)
an error had to be
committed by the Court. Having said that, the Court proceeded to
state the following:
“
[60]
. . . As I see it, the issue of presence or absence has little to do
with actual, or physical, presence and everything to do
with
ensuring
that proper procedure is followed so that a party can be present
,
and so that a party, in the event that they are precluded from
participating, physically or otherwise, may be entitled to rescission
in the event that an error is committed. I accept this.
I
do not, however, accept that litigants can be allowed to butcher, of
their own will, judicial process which in all other respects
has been
carried out with the utmost degree of regularity, only to then, ipso
facto (by that same act), plead the
"
absent
victim"
. If everything
turned on actual presence, it would be entirely too easy for
litigants to render void every judgment and order
ever to be
granted, by merely electing absentia (absence).
[61]
The cases I have detailed above are markedly distinct from that which
is before us.
We are not dealing
with a litigant who was excluded from proceedings, or one who was not
afforded a genuine opportunity to participate
on account of the proceedings being marred by procedural
irregularities. Mr Zuma was given notice of the contempt of court
proceedings
launched by the Commission against him. He knew of the
relief the Commission sought. And he ought to have known that that
relief
was well within the bounds of what this Court was competent to
grant if the crime of contempt of Court was established. Mr Zuma,
having the requisite notice and knowledge,
elected
not to participate
. Our
jurisprudence is clear:
where a
litigant, given notice of the case against them and given sufficient
opportunities to participate, elects to be absent,
this absence does
not fall within the scope of the requirement of rule 42(1)(a)
.
And, it certainly cannot have the effect of turning the order granted
in absentia, into one erroneously granted
."
[13]
Unlike an application for rescission brought in terms of Rule
31(5)b), Rule 42(1) does not prescribe
time limits within which it
must be launched. However, this does not mean that a party can
approach the Court at any time especially
in those instances where
the delay is unconscionable without a valid account. It is trite that
for Matsane to succeed with this
application for rescission he would
have had to demonstrate the following:
13.1 A
full and reasonable explanation for the failure to have brought the
rescission application within a reasonable
time;
13.2
Prejudice if the rescission is refused and absence of prejudice as
far as the Respondent is concerned;
13.3
Prospects of success in the main proceedings; and
13.4
The interests of justice must favour the granting of condonation.
[14]
It is trite that these must be met conjunctively. Showing therefore
that one or two of them has
or have been satisfied will not be
adequate. Theoretically, Matsane’s failure to comply with any
one of the above requirements
should be sufficient to dismiss the
application. As will be seen below, Matsane does not live up to any
of the four prerequisites
mentioned above.
EVALUATION
[15]
Matsane acknowledges that although the judgment was granted against
him as far back as 26 January
2021, he only acquired knowledge of it
in March 2022 hence he brought this application in June 2022. He
asserts that had he been
properly notified that he was required to
appear in Court on 26 January 2021, he would have done so and, by
implication, would
have made certain that the judgment was not
granted and besides, only in that manner, his
audi alteram partem
right enshrined in Section 34 of the Constitution would have been
observed.
[16]
In terms of the
Plascon
- Evans
Rule, this matter is to be decided on the facts as laid out by Riba
because they have not been rebutted by Matsane. The rule provides
that a party that seeks final relief on motion must, where there
exists a conflict, accept the version advanced by his opponent
unless
such version is, in the opinion of the court, not such as to raise a
real, genuine or
bona
fide
dispute
of fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers (see
paragraph 12 of
Wightman
[2]
). As a result the
Court must accept the following:
16.1
The idea of an urgent application against Matsane was first
foreshadowed in the letter of 5 January 2021;
16.2 On
14 January 2021, Riba issued and served the urgent application on the
erstwhile attorneys of Matsane;
16.3 On
22 January 2021 Riba forwarded his supplementary affidavit together
with a notice of withdrawal as attorneys
of record of the attorneys
of Matsane to Matsane.
[17]
The above is an illustration that Matsane knew or ought to have known
through his attorneys that
there was an impending hearing of the
urgent application on 26 January 2021. To the extent that Matsane
could be suggesting that
he did not personally receive notification
of the hearing of the application, it was sufficient that the
application was served
on his erstwhile attorneys. The failure of
Matsane’s attorneys to notify him of the date of hearing of the
application cannot
prejudice Riba. That is a matter to be resolved
between Matsane and his attorneys. In any event, Matsane has not
disputed that
the application together with the supplementary
affidavit of Riba were forwarded to him via WhatsApp.
[18]
Given the above exposition of the facts, it is inescapable to
conclude that like in the Zuma
matter
supra
, Matsane, was not
precluded from attending the proceedings but he chose to stay away
knowledge of the impending hearing of the
application aside. It
follows that when the Court granted the order on 26 January 2021 was
not under any mistaken belief
that Matsane did not receive notice. In
these circumstances, Rule 42(1)(a) is not available to Matsane as he
was duly notified.
The assertion that he did not know about the
hearing of the application is rejected as being false and contrived.
UNREASONABLE DELAY
IN LAUNCHING THE APPLICATION
[19]
Matsane seems not to appreciate that Rule 42(1)(a), on which he
relies for this rescission, requires
him to give a full account for
his delay in bringing the application. The delay in launching the
rescission application extends
over a period of approximately 500
days being between 17 February 2021, when he and his attorney
collected the order from the offices
of the attorneys of Riba, to
June 2022 or approximately 100 days on Matsane’s version that
he only received knowledge of
the order in March 2022. The founding
affidavit is silent on why the application was not launched despite
Matsane’s knowledge
in either period. In the result, this
requirement is not satisfied.
PROSPECTS OF
SUCCESS
[20]
There is no attempt by Matsane to show the existence of prospects of
success in the main case
were this Court to rescind and set aside its
order of 26 January 2021. Perhaps this does not come as a surprise as
Matsane has
already admitted that the property belongs to Riba and,
by necessary implication, that the structures that he had erected or
was
erecting were on Riba’s property. Accordingly, if Riba
possesses proof of ownership in the form of a title deed, a real
right
that prevails against the whole world, what possible excuse
could Matsane have to build on Riba’s property? The answer must
be, none. Setting aside and rescinding the judgment will be an act in
futility.
PREJUDICE IF THE
RESCISSION IS REFUSED AND ABSENCE OF PREJUDICE ON RIBA IF IT IS
GRANTED
[21]
On the admitted facts of this matter, Matsane cannot suffer any
prejudice because the property
on which he erected the structures is
not his. In any event, it has not been alleged by him that the
building of the structures
on the property emanated from an agreement
with the owner, Riba. Conversely, Riba’s right to ownership of
the property will
be hugely impaired. This has to be the case because
he will be required to pursue the main case in circumstances where
Matsane
has already conceded that the property on which he erected
the structures belong to Riba. Over and above the aforesaid, there is
also the issue of finality of litigation. It is in the interest of
justice that this matter should stand as finalized for there
is no
purpose of opening it again other than to plunge both parties into
gratuitous legal costs.
[22]
In the result the application for the rescission of the judgment and
order of 26 January 2021
fails and I make the following order:
1.
The application for the setting aside and rescission of the judgment
and order
of this Court dated 26 January 2021 is dismissed with
costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Adv
TS Ngwenya
Instructed
by:
Makwakwa
MR Attorneys Inc
Counsel
for the Respondent:
Mr
J Theron
Instructed
by:
Adendorff
Theron Inc
Date
of Judgment:
19
March 2024
[1]
2021 (11) BCLR 1263 (CC)
[2]
Wightman
v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)