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[2024] ZALMPPHC 62
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Road Accident Fund v Sethole (3714/2022) [2024] ZALMPPHC 62 (18 June 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO: 3714/2022
LINK
NUMBER: 4345476
RAF
REF: 546/12637996/10/0
In
the matter between:
ROAD
ACCIDENT FUND
APPLICANT/DEFENDANT
And
BETTY NAOMI
SETHOLE
RESPONDENT/PLAINTIFF
JUDGEMENT
GAISA
AJ
INTRODUCTION
[1]
This is an application brought by the
Defendant, the Road Accident Fund (RAF or the Fund), for the
rescission of a default judgment
granted in favour of the Plaintiff,
Betty Naomi Sethole, on 1 March 2023. Defendant seeks to have the
judgment set aside on the
grounds that it was erroneously sought and
granted in the absence of Defendant
[2]
The Plaintiff opposes the application.
[3]
The facts are largely common cause between the
parties.
[4]
The
Court appreciates the insightful and engaging submissions from both
parties' legal representatives, which greatly assisted in
adjudicating this matter
.
LEGAL
FRAMEWORK:
[5]
The application is brought under Rule 42(1)(a)
of the Uniform Rules of Court, which allows for the rescission or
variation of an
order or judgment erroneously sought or granted in
the absence of any party affected thereby.
[6]
The
Court, in
Nkabinde
and Another v Judicial Service Commission and Others,
[1]
held that:
“
[14]
As already indicated, the applicants brought their
application for rescission in terms of Rule 42(1)(a). Rule
42(1)(a)
reads as follows in so far as it is relevant:
“
(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 erroneously…granted in the absence of any party
affected thereby.”
An
applicant for rescission who brings an application under this Rule
must show that the order sought to be rescinded was granted
in his or
her absence and that it was erroneously granted or sought.”
[7]
Rule
42(1)(a) affords this Court wide discretion to deal with
applications, such as the instant one in an expeditious and
cost-effective
manner.
[2]
[8]
The Court (Mbha JA), in
Rossitter
& others v Nedbank Ltd,
held that:
“
[16]
The law governing an application for rescission under Uniform rule
42(1)(a) is trite. The applicant must show that
the
default judgment or order had been erroneously sought or erroneously
granted. If the default judgment was erroneously sought
or granted, a
court should, without more, grant the order for rescission. It
is not necessary for a party to show good cause
under the subrule.
Generally, a judgment is erroneously granted if there existed at the
time of its issue a fact which the
court was unaware of, which would
have precluded the granting of the judgment and which would have
induced the court,
if aware of it, not to grant the judgment.”
[3]
[9]
The defendant submitted that the
application is supported by principles of common law which
permit
rescission on grounds of fraud, mistake, or
justus error
.
FACTUAL
BACKGROUND
[10]
The Plaintiff instituted action against the
Defendant for damages arising from a motor vehicle accident.
Defendant failed to appear, and a default judgment was granted in
Plaintiff's favour, awarding damages including general damages
and
loss of earnings.
[11]
The Defendant contends that it was not aware
of the proceedings and that the judgment was granted
based on
erroneous facts and procedural irregularities.
[12]
Specifically, the Defendant argues that the
Plaintiff misrepresented the facts and failed to disclose
material
information to the Court.
RULE
42(1)(a): ERRONEOUSLY GRANTED JUDGMENT
[13]
Defendant submits that the judgment was
erroneously granted as Defendant was not served with a Notice
of
Set-Down for the hearing on 1 March 2023. The Defendant further
submits that the Plaintiff, despite being aware of this fact,
proceeded to obtain a default judgment.
[14]
According to Defendant, the judgment amount
awarded exceeded the claim amount specified in Plaintiff's
particulars of claim, and there was no due process followed for such
an amendment, as required by Rule 28 of the Uniform Rules
of Court.
[15]
Furthermore, Defendant argues that Plaintiff
obtained the judgment based on an offer that Defendant
never
accepted, not reduced to writing or signed.
[16]
In support of its case, the Defendant, among others, relies on the
principles established in
Nyingwa v
Moolman,
where the court highlighted
the principle of correcting judgments erroneously granted due to
mistakes or factual errors.
COMMON
LAW GROUNDS FOR RESCISSION:
[17]
Under common law, a judgment can be
rescinded if it was obtained due to fraud or a material mistake.
Defendant argues that Plaintiff’s misrepresentation of facts to
the Court amounts to a justus error, warranting rescission
of the
judgment.
[18]
The Defendant contends that it has always
acted in good faith and was willing to settle the matter
and that the
failure to appear was not wilful but due to procedural oversights and
miscommunications.
DEFENCE
[19]
Defendant asserts that it has a bona fide
defence to Plaintiff’s claims, particularly regarding
the
extent of damages and loss of earnings claimed. The Defendant
disputes the calculation of the Plaintiff's damages and argues
that
the Plaintiff did not substantiate the claims with adequate evidence.
[20]
I must hasten to dispose of this issue regarding
the
bona fide
defence that the Defendant may or may not have
in respect of the action and its failure to file the notice of
intention to defend
and the plea.
[21]
In
Lodhi
2 Properties Investments CC v Bondev Developments (Pty) Ltd,
[4]
Streicher JA held that:
“
A
court which grants a judgment by default like the judgments we are
presently concerned with, does not grant the judgment on the
basis
that the defendant does not have a defence: it grants the judgment on
the basis that the defendant has been notified of the
plaintiff’s
claim as required by the rules, that the defendant, not having given
notice of an intention to defend, is not
defending the matter and
that the plaintiff is in terms of the rules entitled to the order
sought. The existence or non-existence
of a defence on the merits is
an irrelevant consideration and, if subsequently disclosed, cannot
transform a validly obtained judgment
into an erroneous one.”
[22]
Since the existence or non-existence of a defence on the merits is an
irrelevant consideration it is not necessary to entertain
this issue
further.
DID
THE PLAINTIFF AMEND THE PARTICULARS OF CLAIM?
[23]
The Defendant alleged in its founding papers that
no notice of intention to amend was delivered to it. Attached
to the
answering affidavit is a document titled “
NOTICE OF
AMENDMENT IN TERMS OF RULE 28
” and has a date stamp showing
that the Defendant received it at its Menlyn office on 1 February
2023.
[24]
Rule 28 of the Uniform Rules:
Plaintiff’s
document is incomplete in that it does not, in terms of Rule 28(2),
afford Defendant the opportunity or inform
Defendant that Defendant
may, if it so wishes, object to the proposed amendment.
[25]
Opperman J
,
held in Wolhuter N.O. and Others v Mtetwa Investments (Pty) Ltd,
[5]
that:
“
[1]
The rules in litigation “act as anchors in the tides of
injustice, to keep the principles of law afloat.”
More real is that court orders must be complied with. The judicial
authority in our democracy that is vested in the courts, may
not
become ineffective.
[2]
The consternation, conflict and costs that non-compliance with
court orders and the rules of court have caused in civil
litigation
have become a menace in the administration of justice. It affects
justice and pollutes the sanctimony of the Rule of
Law.
[3]
The ease with which court orders are ignored by litigants and
counsel alike, and the Uniform Rules of Court just disregarded,
is
astounding. In the meanwhile, the justice system battles to maintain
veracity because the layperson cannot fathom the delays
and the
astronomical costs that makes access to justice unreachable. The
Constitutional Court remarked in Grootboom
v National
Prosecuting Authority and Another (C696/08) [2009] ZALCCT 15 (18
December 2009) that:
“
[21]
The failure by parties to comply with the rules of court or
directions is not of recent origin. Non-compliance has bedevilled
our
courts at various levels for a long time. Even this Court has not
been spared the irritation and inconvenience flowing from
a failure
by parties to abide by the Rules of this Court.”
[4]
Courts have regarded this scourge of non-compliance with such
disdain that the following was ruled in Collett v
Commission for
Conciliation, Mediation and Arbitration
(2014) 6 BLLR 523
(LAC) in a
unanimous judgment of the Labour Appeal Court, wherein Musi AJA held
as follows:
“
[38]
There are overwhelming precedents in this Court, the Supreme Court
of Appeal and the Constitutional Court for the
proposition that
where there is a flagrant or gross failure to comply with
the rules of court condonation
may be refused without
considering the prospects of success.”
[26]
Compliance with the rules of court or a
court directive is mandatory.
[6]
The Court, per Bosielo AJ,
[7]
said the following:
"21.
The failure by parties to comply with the rules of court or
directions is not of recent origin. Non-compliance has bedevilled
our
courts at various levels for a long time. Even this court has not
been spared the irritation and inconvenience flowing from
a failure
by parties to abide by the Rules of this Court.”
[27]
The Plaintiff did not comply with this requirement in Rule 28(2) of
the Uniform Rules, rendering
the purported amendment invalid or a
nullity. This non-compliance is fatal to the Plaintiff's case as it
fundamentally undermines
the procedural integrity of the proceedings.
[28]
The document attached to the answering
affidavit cannot be said to be the notice of intention to amend
as
envisaged in Rule 28.
[29]
The Court in
Nyingwa
v Moolman
[8]
established that non-compliance with procedural rules can invalidate
proceedings and that fairness and justice demand strict adherence
to
procedural requirements.
[30]
Similarly, in
De
Wet v Western Bank Ltd
[9]
,
it was held that procedural non-compliance could result in a judgment
being set aside. These principles apply squarely to the
present case.
[31]
The papers before me do not show that this
non-compliance was brought to the attention of the judge
who granted
the default judgement. Neither was it argued at the hearing that such
non-compliance was brought to the judge’s
attention and that it
was condoned.
[32]
On the requirements of the Rule 42(1)(a) rescission application, per
Khampepe J (majority), held,
among others that:
“
[62]
Ultimately, an applicant seeking to do this must show that the
judgment against which they seek a rescission was erroneously
granted
because “there existed at the time of its issue a fact of which
the Judge was unaware, which would have precluded
the granting of the
judgment and which would have induced the Judge, if aware of it, not
to grant the judgment”
[10]
.
[33]
I am satisfied that the Defendant has shown that the judgment against
which it seeks a rescission
was erroneously granted because there
existed at the time of its issue a fact of which the Judge was
unaware, which would have
precluded the granting of the judgment and
which would have induced the Judge, if aware of it, not to grant the
judgment.
[34]
It appears to me that the correct approach would be the one usually
adopted in rescission of
judgment applications in circumstances where
the applicant does not specify whether the application is brought
under rule 31 or
rule 42 of the Uniform Rules of the High Court or in
terms of the common law. Whilst there may be overlapping, each of
these avenues
has its own requirements. Ordinarily, a court would
consider whether a case has been made out in respect of
any one
of them before dismissing the application.
[11]
[35]
I can think of no reason why that approach
should not apply here. The Defendant’s rescission
application
is in terms of Rule 42(1)(a), alternatively the common law. In light
of my findings above, there is no need to dwell
on the common law
route.
[36]
I am alive to the fact that rescission does not, however, follow
automatically upon all the jurisdictional
requirements of rule
42(1)(a) being present. The rule gives the courts the discretion to
order rescission or variation, which discretion
must be exercised
judicially.
[12]
[37]
In
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,
the
Court stated (per Khampepe) - footnotes omitted):
“
[53]
It should be pointed out that once an applicant has met the
requirements for rescission, a court is merely endowed with a
discretion to rescind its order. The precise wording of rule 42,
after all, postulates that a court "may", not "must",
rescind or vary its order — the rule is merely an "empowering
section and does not compel the court" to set aside
or rescind
anything. This discretion must be exercised judicially.”
[13]
[38]
Broadly speaking, an exercise of a court's discretion is influenced
by considerations of fairness
and justice, having regard to all the
facts and circumstances of the particular case.
[14]
[39]
In
Van
der Merwe v Bonaero Park (Edms) Bpk
[15]
,
the court refused to rescind an order despite the jurisdictional
facts required by rule 42(1)(a) being present. In
Nkosi
v ABSA Bank Ltd
[16]
the court exercised its discretion against rescission despite the
fact that the applicant had met all the jurisdictional requirements
of rule 42(1)(a) because a rescission would have had no practical
effect and merely caused delay.
[40]
In considering the application for rescission
brought by the Defendant, it is imperative to emphasise the
critical
importance of compliance with procedural rules, particularly Rule
28(2) of the Uniform Rules of Court. Rule 28(2) mandates
that any
party wishing to amend their pleadings must give notice of the
intended amendment to the other party, allowing them the
opportunity
to object. This procedural requirement ensures fairness and
transparency in the litigation process, allowing all parties
to
respond appropriately to the claims made against them.
[41]
In the present case, the Plaintiff's failure to
comply with Rule 28(2) is a fundamental procedural flaw
that cannot
be overlooked. Plaintiff did not provide Defendant with the requisite
notice of the intended amendment, thereby denying
Defendant the
opportunity to object. This non-compliance renders the purported
amendment invalid and any default judgment based
on such an amendment
must be set aside. The procedural integrity of the court process is
paramount, and adherence to the rules
of court ensures that justice
is not only done but seen to be done.
[42]
The principle that a judgment obtained
through procedural irregularities should be set aside is
well-established
in South African jurisprudence. In
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills Cape
[17]
,
the Court held that non-compliance with procedural rules, such as
failing to provide notice of an amendment, can result in the
rescission of a judgment. The Court emphasised that procedural rules
are in place to ensure fairness and that non-compliance undermines
the judicial process.
[43]
Moreover, the Constitutional Court in
Fose
v Minister of Safety and Security
[18]
,
reiterated the importance of procedural fairness and the necessity of
allowing parties a fair opportunity to present their case.
The Court
stressed that procedural rules are designed to ensure that disputes
are resolved in a just and equitable manner, and
failure to adhere to
these rules can result in an unjust outcome.
[44]
It is also crucial to consider the
implications of allowing default judgments to stand when they are
based on amounts exceeding those stipulated in the pleadings. The
Road Accident Fund (RAF), being a public entity funded by taxpayers'
money, has a duty to ensure that its resources are used appropriately
and justly. Allowing litigants to obtain orders in excess
of what
they have pleaded without due process not only depletes public
resources unjustly but also sets a dangerous precedent that
could
encourage frivolous or inflated claims.
[45]
The Court in
Promedia
Drukkers & Uitgewers (Edms) Bpk v Kaimowitz
[19]
,
highlighted that the courts must guard against setting precedents
that undermine the orderly and fair administration of justice.
The
Court noted that granting relief based on procedural non-compliance
could open the floodgates to similar applications, thereby
frustrating the harmonious processes of the court.
[46]
Furthermore, the Constitutional Court in
Grootboom
v National Prosecuting Authority
[20]
stressed the necessity of strict adherence to procedural rules to
maintain the integrity and credibility of the judicial process.
The
Court emphasized that procedural fairness is a cornerstone of justice
and that failure to comply with procedural requirements
cannot be
condoned.
[47]
In light of these considerations, it is
clear that the Plaintiff’s non-compliance with Rule
28(2) and
the subsequent erroneous granting of the default judgment
necessitates the rescission of the judgment. The Defendant
has
demonstrated that the judgment was erroneously granted due to
procedural irregularities, which if known to the court at the
time,
would have precluded the granting of the judgment.
[48]
Even if I am wrong on this point, the
plaintiff faces another challenge. During the argument, the
Fund’s
legal representative submitted that despite the plaintiff having
erroneously submitted to the court that granted the
default judgment
that there was an offer from the Fund, this according to him, was not
the case.
[49]
At the hearing of this application the
representatives of both parties seemed to agree that an offer
by the
Fund must be in writing and signed.
[50]
The Plaintiff’s inability to provide any evidence of a written
offer from the Fund or her
signed acceptance of such offer. This
omission, coupled with Plaintiff's inability to refute
Defendant's assertion, casts
significant doubt on the validity
of the default judgment granted on 1 March 2023. This
omission, in essence, serves
as a critical blow to the
Plaintiff's case and significantly bolsters the Defendant's
application for rescission.
SLOW
PACE OF PROSECUTION:
[51]
The Court notes with displeasure the slow pace at which the RAF has
prosecuted this rescission
application. While the RAF's delay in
defending the action and filing the rescission application is
concerning, the Court must
balance this against the need to correct
an erroneous judgment and ensure procedural fairness.
[52]
Case law underscores the importance of finalising matters
expeditiously to prevent prejudice
to the parties. In
Bezuidenhout
v Patensie Citrus Beherend Bpk
[21]
,
the Court highlighted the need for swift adjudication to avoid
prejudice and unnecessary delay. Similarly, in
Mohlomi
v Minister of Defence
[22]
,
the Constitutional Court emphasised the detrimental effects of delays
on the administration of justice and the rights of the parties
involved.
[53]
In South African jurisprudence, it is a well-established principle
that a rescission application
in terms of Rule 42(1)(a) of the
Uniform Rules of Court must be brought within a reasonable time. This
requirement ensures that
the judicial process is not unduly delayed
and that the finality of judgments is respected, thereby maintaining
the integrity and
efficiency of the judicial system. Several key
cases highlight this necessity and provide guidance on what
constitutes a reasonable
time frame for bringing such applications.
[54]
In
First
National Bank of SA Ltd v Van Rensburg NO and Others
[23]
,
the court emphasised the importance of bringing a rescission
application promptly. The court noted that Rule 42(1)(a) is designed
to correct judgments that were granted erroneously in the absence of
an affected party and that this correction must be sought
expeditiously to prevent prejudice to the parties involved and to
uphold the administration of justice. The court held that an
unreasonable delay in bringing a rescission application could result
in the dismissal of the application, even if the judgment
were
erroneously granted.
[55]
Similarly, in
Graham
v South African Reserve Bank
[24]
,
the Supreme Court of Appeal reiterated that while Rule 42(1)(a) does
not prescribe a specific timeframe, the application must
be brought
within a reasonable time. The court, in this case, underscored that
the timeliness of the application is crucial to
ensure that the
court's resources are not misused and that an undue delay does not
unfairly prejudice the opposing party. The court
further explained
that what constitutes a reasonable time depends on the circumstances
of each case, including the reason for the
delay and the nature of
the judgment being challenged.
[56]
The Court in
Government
of the Republic of Zimbabwe v Fick and Others
[25]
also addressed the issue of timely rescission applications. The court
noted that the principle of bringing applications within
a reasonable
time is not merely a procedural requirement but is rooted in the
broader principles of justice and fairness. The Court
highlighted
that delays in seeking rescission can disrupt the finality of
judicial decisions and undermine the credibility of the
judicial
process. Thus, the need for prompt action in bringing rescission
applications is imperative to maintain the integrity
of the judicial
system.
[57]
In
Mutebwa
v Mutebwa and Another
[26]
,
the court elaborated on the discretionary nature of Rule 42(1)(a) and
the need for judicial officers to exercise this discretion
judicially. The court emphasised that while the rule allows for
rescission of judgments granted in error, this discretion must
be
balanced with the need to avoid opening the floodgates to frivolous
rescission applications. The court stressed that a reasonable
time
frame for bringing such applications is essential to ensure that only
genuine errors are corrected without causing undue disruption
to the
judicial process.
[58]
These cases collectively underscore the
importance of bringing a rescission application under Rule
42(1)(a)
within a reasonable time. They highlight that while the rule provides
a mechanism to correct erroneous judgments, it must
be applied in a
manner that respects the finality of judicial decisions and the
efficient functioning of the judicial system. By
insisting on prompt
applications, the courts aim to balance the rights of the parties
with the need for judicial certainty and
the orderly administration
of justice.
[59]
Earlier, in this judgement, this Court noted
with displeasure the delay by the Defendant in launching
the
rescission application. The default judgment was granted on 1 March
2023. Yet, the Fund only brought this application on 19
October 2023,
a seven-month lapse of time, despite being aware of the judgment and
the procedural errors involved by April 2023
at the latest. Such a
delay undermines the efficiency of the judicial process and
contributes to the unnecessary protraction of
litigation, which may
be prejudicial to the Plaintiff and contrary to the principles of
expeditious justice.
[60]
The delay by the Fund in instructing the
offices of the state attorneys serves only to work against
other
litigants, wastes judicial resources and causes avoidable
inconvenience to the opposing party. The Fund, in particular, must
exercise greater diligence in its legal proceedings to avoid
depleting public funds through such inefficiencies.
[61]
The slow pace exhibited by the Fund is
unacceptable and warrants the Court's disapproval. It is imperative
for the Fund to take urgent steps to avoid such delays in the future
to uphold the integrity of the judicial process and prevent
prejudice
to plaintiffs.
PREJUDICE
TO THE PARTIES:
[62]
If the rescission is granted, the Fund will
be given an opportunity, if it so advised, to object to
a Rule 28
notice of intention to amend, which is a fundamental aspect of
procedural fairness. Granting the rescission will rectify
the
procedural irregularity that occurred due to the Plaintiff's failure
to comply with Rule 28(2). However, this will inevitably
cause
further delays and additional costs for the Plaintiff, who has
already obtained a judgment in their favour. The Plaintiff
will have
to re-litigate the matter, potentially prolonging the resolution of
her claim and exacerbating her prejudice due to the
delay in
obtaining the relief she seeks. Without rubbing salt in the wound –
and reasoning from cause to effect - it must
not be forgotten it is
the plaintiff’s side that is the cause of this application.
[63]
On the other hand, if the rescission is not granted, the Fund will
suffer significant prejudice
as it was not given the opportunity to
object to the proposed amendment, which resulted in an increased
claimed amount from R5
million to R5.3 million.
[64]
The Plaintiff's non-compliance with Rule 28(2) deprived the Fund, as
a defendant, of its right to contest the amendment, leading
to a
judgment that may not reflect the true extent of the Defendant's
liability. Add to that the non-existence of the offer (needless
to
say acceptance). Upholding such a judgment would undermine the
principles of fairness and justice, as it would enforce an order
obtained through procedural irregularities.
[65]
Balancing the potential prejudice, the Court
must consider the importance of procedural compliance
and the right
of a defendant to a fair trial. While the Plaintiff faces the
inconvenience of additional litigation, the Fund’s
right to
defend itself against a significantly increased claim amount, which
it was not given a fair chance to consider or contest,
is paramount.
Therefore, ensuring procedural fairness and adherence to court rules
justifies granting the rescission, despite the
resultant delay and
inconvenience to the Plaintiff.
[66]
In this case, despite the Defendant's
successful application for rescission, the Court finds it necessary
to deviate from the usual principle that costs follow the event.
[]67]
In this matter, the Court acknowledges the Fund's
delay in bringing this rescission application. While
the delay is a
factor to be considered, the Court finds that both parties have
contributed to the procedural complications and
delays in this
matter.
[68]
Given these circumstances, the Court deems
it equitable and just that each party should bear their
own costs in
this rescission application. This approach aligns with the principle
of fairness, as it avoids penalising either party
excessively for
their respective roles in the procedural issues that have arisen.
[69]
This decision is supported by case law,
which recognises that in certain circumstances where both
parties
have contributed to procedural errors or delays, a court may exercise
its discretion to order that each party bear their
own costs.
[27]
CONCLUSION
[70]
The Plaintiff's failure to comply with Rule
28(2) and not securing the offer are critical procedural
flaws that
cannot be overlooked. This non-compliance renders the purported
amendment invalid, and the default judgment based on
such an
amendment must be rescinded. Procedural rules are the backbone of the
judicial system, ensuring fairness and predictability
in legal
proceedings. Compliance with these rules is not merely a formality
but a substantive requirement that safeguards the rights
of all
parties involved.
[71]
While the Defendant has demonstrated grounds for rescission, the
Court is deeply concerned by
the delay in bringing this application.
Such a delay is prejudicial to the Plaintiff and contrary to the
principles of expeditious
justice. The Fund must take urgent steps to
prevent such inefficiencies in the future, thereby safeguarding
public resources and
upholding the principles of justice.
[72]
The result of the application reinforces the necessity for all
litigants to adhere strictly to
procedural rules.
ORDER
[73]
In the result, it is ordered that:
73.1.
The default judgment granted on 1 March 2023 in favour of the
Plaintiff is hereby rescinded and set aside.
73.2
Each party pays its own costs.
________________
GAISA,
AJ
Acting
Judge of the High Court
POLOKWANE;
LIMPOPO DIVISION
APPEARANCES
FOR
THE PLAINTIFF / RESPONDENT : ADV T MAPHELELA
INSTRUCTED
BY : MABUZA MAGADINE INC
FOR
THE DEFENDANT / APPLICANT : MR K PHASWANA
INSTRUCTED
BY : STATE ATTORNEY
DATE
OF HEARING : 19 March 2024
DATE
OF JUDGEMENT: 18 June 2024
[1]
(CCT122/16)
[2016] ZACC 25; 2016 (11) BCLR 1429 (CC); 2017 (3) SA 119 (CC) (24
August 2016)
[2]
Zweni
v Minister of Law and Order
1993 (1) SA 523
(AD) at 531; Tshivhase
Royal Council v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 862J –
863A
[3]
Rossitter
& others v Nedbank Ltd (96/2014)
[2015] ZASCA 196
(1 December
2015) at para [16].
[4]
(128/06)
[
2007]
ZASCA 85
;
2007 (6) SA 87
(SCA) (1 June 2007) at para 27
[5]
(4542/2023;
4543/2023)
[2024] ZAFSHC 98
(4 April 2024)
[6]
Romeo
& Jean Couture (Pty) Ltd and Others v Business Venture
Investments NO 1360 (Pty) Ltd (2020/18844) [2024] ZAGPPHC 106
(26
January 2024) at para [12].
[7]
Grootboom
v National Prosecution Authority & Another (CCT 08/13)
[2013]
ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
[8]
1993 (2) SA 508
(TK GD) at. 510).
[9]
1977 (4) SA 770 (T)
[10]
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 and Others (CCT 52/21)
[2021] ZACC
28
;
2021 (11) BCLR 1263
(CC) (17 September 2021)
[11]
Mutweba
v Mutweba
2001 (2) SA 193
(TkH) at paras 10-2; Nyingwa v Moolman NO
1993 (2) SA 508
(Tk); Bakoven Ltd v GJ Howes (Pty) Ltd 1992 (2) SA
466 (E).
[12]
Colyn
Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 7A, referring to Theron NO v United Democratic Front
(Western Cape Region)
1984 (2) SA 532
(C) at 536G and Tshivhase
Royal Council V Tshivhase; Tshivhase v Tshivhase
[1992] ZASCA 185
;
1992 (4) SA 852
(A)
at 862] - ?863A.
[13]
Supra
[14]
Chetty
v Law Society, Transvaal
1983 (1) SA 777
(T) at 761D, referred to
with approval by the majority the Constitutional Court Zuma v
Secretary of the Judicial Commission of
Inquiry into Allegations of
State Capture,
Corruption
and Fraud the Public Sector Including Organs of State
2021 (11) BCLR
1263
(CC) at paragraph [53] footnote [20]
[15]
1998
(1) SA 697
(T).
[16]
Unreported,
GP case no 53195/2019 (6 June 2023); [2023] ZAGGPPHC 431; 53195/2019
(6 June 2023)
[17]
2003
(6) SA 1 (SCA)
[18]
1997
(3) SA 786 (CC)
[19]
1996
(4) SA 411
(C) at 417C
[20]
2014
(2) SA 68 (CC)
[21]
2001
(2) SA 224 (SCA)
[22]
[1996] ZACC 20
;
1997
(1) SA 124
(CC)
[23]
1994
(1) SA 677 (T)
[24]
2003
(4) SA 449 (SCA)
[25]
2013
(5) SA 325 (CC)
[26]
2001
(2) SA 193 (TkH)
[27]
Steyn
v Ronald Bobroff & Partners Incorporated|
[2013] ZASCA 51:.
See
also Durascaff CC v Essilfie-Appiah(3330/2019) [2022] ZAECMHC 43,
and Van Zyl NO v Nedbank Ltd(20832/2019)
[2023] ZAWCHC 120.