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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO.: 988/2023
In the matter between:
DR AB XUMA LOCAL MUNICIPALITY 1st Applicant
THE MUNICIPAL MANAGER:
DR AB XUMA LOCAL MUNICIPLAITY 2
nd Applicant
and
LOCAL RESIDENTS CITED UNDER CONSOLIDATED CASE NUMBER 988/2023 1
st Respondent
FIRST NATIONAL BANK 2nd Respondent
REASONS FOR JUDGMENT
ZONO AJ:
Introduction
[1] Serving before court was an application for rescission of judgment. On the 21
st November 2024 this matter served before court as an opposed motion
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matter. It transpired that the matter could not proceed, and both parties
agreed to remove the matter from the roll. The parties locked horns only
on the issue of costs. The respondent sought that the applicant to pay the
wasted costs, whereas the applicant so ught that costs stands over for later
determination or that there be no order as to costs. I removed the matter
from the roll and ordered the applicant to pay costs occassioned by the removal of the rescission application. The exact wording of the court order
is thus:
“1. The matter is removed from the roll.
2. Applicant is to pay the costs occassioned by the removal in the rescission
application” (sic).
[2] Apparently on 05th December 2024 applicants’ legal representatives
delivered applicants’ request for reasons for the order granted on the 21st
November 2024. I furnish the requested reasons hereinafter. It is apparent
that the reasons are not for the whole order, but only for an order of costs.
I granted costs occassioned by the removal of the matter from the roll
against the Municipality, who is the applicant in the rescission application.
It is expedient to state that, I received the transcribed record herein after
the 21st February 2025 and I was thereafter able to pen my reasons.
[3] In Mphahlele1Goldstone J held thus:
“12. There is no express constitutional provision which requires judges to furnish
reasons for their decisions. Nonetheless, in terms of section 1 of the
1 Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667(CC) , 1999 (3) BCLR 253 (CC) Para
12.
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Constitution, the rule of law is one of the founding values of our democratic
state, and the judiciary is bound by it. The rule of law undoubtedly requires
judges not to act arbitrarily and to be accountable. The manner in which they
ordinarily account for their decisions is by furnishing reasons. This serves a
number of purposes. It explains to the parties, and to the public at large which
has an interest in courts being open and transparent, why a case is decided as
it is. It is a discipline which curbs a rbitrary judicial decisions. Then, too, it is
essential for the appeal process, enabling the losing party to take an informed
decision as to whether or not to appeal or, where necessary, seek leave to
appeal. It assists the appeal court to decide whether or not the order of the lower
court is correct. And finally, it provides guidance to the public in respect of
similar matters. It may well be, too, that where a decision is subject to appeal it
would be a violation of the constitutional right of access to c ourts if reasons for
such a decision were to be withheld by a judicial officer.”
[4] It is elementary that litigants are ordinarily entitled to reasons for a judicial
decision following upon a hearing, and when a judgment is appealed,
written reasons are indispensable. Failure to su pply them will usually be a
grave lapse of duty, a breach of litigants rights and an impediment to the
appeal process.2 It has been held that the core principle s of the rule of law
include the right of a litigant to be given reasons by a court.3 Absent such
a right , transparency is cloaked in darkness , accountability is honoured in
the breach4.
[5] As already iterated above that only an application of rescission of judgment
was liable to be heard on the 21st November 2024. The Municipality, Dr
AB Xuma Local Municipality was the applicant in that application. It may
be mentioned that there were other applications in the court file that were still pending, namely, an application to supplement applicant ’s founding
affidavit and application for contempt of court order where in the
respondent is the applicant. The parties and the court deemed it c onvenient
2 Strategic Liquor Services v Mvumbi NO and others 2010 (2) SA 92 (CC) Para 15 .
3 GMSA Financial Services: A Division of West Bank: A Division of First Rand Bank Limited v PBF Investors
(Pty) ltd and another (2358/2017) [2019] ZAECMHC 15 (12 March 2019) Para 5 per Mbenenge JP .
4 M v M (20350/2012) [2015] ZAWCHC 197 (24 November 2015) per Davis J.
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that the application for rescission of judgment be heard before the
application for contempt of court. The court was advised that application
to supplement applicant’s founding affidavit would not be insisted upon.
[6] At the beginning of the hearing of the application for rescission of
judgment, it transpired that the court file is not properly prepared. Before
court was an incomplete record or set of papers. The papers in the court
file ended with paginated page number 595, whereas Mr Solik, Counsel for
the applicant inform ed the court that the papers were more than 722 pages.
He sought to refer the court to page 722, which page was not before court
as papers in the court file ended with 595.
[7] Mr Solik sought an adjournment for him to inspect the court file. That
opportunity was granted. Fortunately, his instructing attorney was before
court. Upon resumption of the court proceedings, Mr Solik sought the
matter to be removed from the roll. The respondent did not object to the
application for removal of the matter from the roll. However, the
respondents sought costs occasioned by the removal of the matter from the
roll to be paid by the applicant. The applicant resisted that costs of the
remova l be paid by it. It proposed that costs stands over for later
determination or that each party to pay its own costs (no order as to costs).
[8] Firstly , the matter was removed from the roll at the instance of the
applicant. It is the applicant who sought the matter to be removed from the
roll. At that time the respondent had already incurred costs and was ready
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to proceed. W ere it not for applicant ’s application for removal of the matter
from the roll, the respondent would have been in a position to proceed.
[9] The reason for applicant’s application to remove the matter from the roll
was that the court file was not in order as adumbrated above. The applicant ,
for that reason felt constrained to apply for the matter not to be hea rd on
that day. Infact the matter would not have been heard due to the fact that
the court file was incomplete and therefore not in order.
[10] Effectively the applicant sought indulgence of the court. A party seeking
indulgence pays the costs5. There is yet another reason for costs to be
awarded against the applicant.
[11] Rule 62(4) of the Uniform Rules (URC) provides thus:
“(4) An applicant or plaintiff shall not later than five days prior to the hearing of the
matter collate, and number consecutively, and suitably secure, all pages of the
documents delivered and shall prepare and deliver a complete index thereof .”
[12] The applicant violated Rule 62(4) of URC in that it did not collate and
failed to suitably secure all pages of the relevant pleadings. I have indicated
above that the c ourt file contained incomplete record of pleadings.
Applicant’s Counsel, Mr Solik satisfied himself that the court file was
lacking in this regard, hence he sought the matter to be removed from the
5 AC Cilliers “Law of Costs, Page 2 -27 issue 14 -Para 2.34 .
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roll. It is the duty of the applicant to ensure that the court file is in order.
There was clearly a lapse of duty in this regard. The applicant did not
properly prepare the court file notwithstanding that it is enjoined to do so.
[13] During argument, Mr Solik advanced no tangible reason for the applicant
not to be saddled with costs occassioned by the removal of the matter from
the roll. H e stated tha t he wanted those instructing hi m to investigate why
the court file was not in order. He did not advance any explanation as to
how that would help the situation. As I have stated, the instructing attorney
was in court, it therefore became not clear how those investigations would salvage the situation . It was demonstrably clear that the applicant failed to
ensure that the court file was in order prior to the hearing of the matter. The
applicant’s attorney is in the coalface of the litigation and as a result of that,
with the exercise of reasonable care, he should have been privy of status of
the court file.
[14] Parties were not only referred to the provisions of Rule 62 (4) of URC , but
also to the Rule 3 of the Joint Rules of Practice, Eastern Cape Division
which reads as follows:
“(a) in respect of defended trials, opposed motions, exceptions, applications to
strike- out, pleas in bar, special pleas, stated cases and appeal cases, the appears
are to be secured, paginated and indexed as required by Uniform Rule 62(4),
not later than 5 days prior to the hearing of the matter: provided t hat in all
matters enrolled for hearing on the opposed motion court roll the papers shall be secured, paginated and indexed not later than 8 days prior to the hearing of the matter. This requirement will be strictly enforced.”
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[15] The Joint Rules of Practice, Eastern Cape Division6are promulgated to give
effect to the provisions of Rule 62(4) of the URC. The use of the word
“shall” in Rule 62(4) of URC is indicative of peremptoriness of
provisions7. A statutory requirement construed as peremptory usually
needs exact compliance for it to have the stipulated legal consequence8.
Failure to comply with a peremptory provision is fatal.
[16] Where a statute provides that something must be done within a certain time
and no power of extention is given to the court, it is presumed that the requirement is peremptory
9. No powers of extention is given to the court if
no good cause is shown in terms of Rule 27 of URC. The preparation of the court file must be done not later than five (5) days prior to the hearing
of the opposed matter. Rule 3(a) of the Joint Practice Rules of Eastern Cape
Division puts it plain that the provisions are peremptory by inclusion of the
following words:
“ This requirement will be strictly enforced”
These words means that these provisions require exact compliance.
[17] In conclusion I find that provisions of Rule 62(4) of URC and Rule 3 of
joint Practice Rules of Eastern Cape Division are peremptory and require exact compliance. The applicant failed to comply with peremptory
provisions. Failure to comply with peremptory provisions must be
6 Rule 3 of Joint Rules of Practice.
7 LAWSA V ol 25 Page 399 Para 366 .
8 Shabalala v Klerksdorp Town Council and another 1969 (1) SA 582 (T) at 587 A -C.
9 GM Cockram: Interpretation of Statute, 3rd Edition , Page 161 .
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followed by a censure. A costs order is a form of censure for non -
compliance with the imperative provisions of the Rules.
[18] Finally , the applicant failed to inform this court as why the respondent
should be saddled with costs occassioned by the removal of the matter from
the roll. It must be understood that the innocent party must be afforded
adequate indemnification. Costs are awarded to indemnify the successful
party in general , innocent party in particular for the expense to which she
has been put through10.
[18] I was , and still am, satisfied that the applicant is liable to pay costs
occassioned by the removal of the rescission application from the roll.
________________________________
A.S ZONO
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Plaintiff : ADV SOLIK
Instructe d by : NOLTE SMIT INC
106 Park Drive
Office 2B,2nd Floor
Gqeberha
10 President of the Republic of South Africa and others v Gauteng Lions Rugby Union 2002 (1) BCLR (1)
(CC);2002 (2) SA 64 (CC) Para 15 .
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Tel: 046 622 7209
Email: michelle@noltesmit.co.za
Ref: F SMIT/DRA3/0002/MN
C/O : DRAKE FLEMER & ORSMOND
TH Madala Chambers
14 Durham Street
Tel:043 722 4210
Email: sonjan@drakefo.co.za
For the Defendant : MR NKELE
Instructed by : T A NKELE & SONS INC
56 Wesley Street
Mthatha
(Ref: TAN*WT -l01733/nm/H/G)
Email: nkele.convey@mweb.co.za
t.n.nkele@mweb.co.za
Date matter heard : 21 November 2024
Date order issued : 21 November 2024
Date reasons sought : 5 December 2024
Date reasons furnished : 20 March 2025