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[2014] ZAWCHC 138
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Wijnen and Another v Mohamed and Others (16043/13) [2014] ZAWCHC 138 (1 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO. 16043/13
DATE:
01 SEPTEMBER 2014
REPORTABLE
In the matter
between:
OLAF RODERICK
WIJNEN
..................................................
First
Applicant
MILKO PETER
KOCK
......................................................
Second
Applicant
And
ABDURAGMAN
MOHAMED
............................................
First
Respondent
NADIERA
MOHAMED
..................................................
Second
Respondent
CITY OF CAPE TOWN
CAPE TOWN
MUNICIPALITY
.........................................
Third
Respondent
FURTHER OCCUPANTS
OF THE PROPERTY
...............
Fourth
Respondent
JUDGMENT
DELIVERED ON
MONDAY, 01 SEPTEMBER 2014
MASUKU, AJ
1. This is an
application for an order in terms of Rule 6 (12) (c) of Uniform Rules
of Court setting aside the order of Bremridge
AJ of 6 August 2014.
That order authorized the service of a notice issued in terms of
section 4(2) of the Prevention of Illegal
Eviction from and Unlawful
Occupation of Land Act, 19 of 1998 “the PIE Act”. The
order was granted pursuant an ex parte
application by the Respondents
in this application, (the Applicants in the main eviction
application) on 6 August 2014. Rule 6(12)
(c) of the Court provides
that a “person against whom an order was granted in his absence
in an urgent application may by
notice set down the matter for
reconsideration of the order.” This procedure affords an
aggrieved party a simple mechanism
in terms of which an order granted
ex parte, may be reconsidered by a Court. Reconsideration of an order
may involve the deletion
of the order, in part or in whole, an
amendment of an order or even addition to the order. The Applicants
in this application
seek an order setting aside the entire order of
Bremridge AJ on a number of grounds which I deal with below.
2. The nub of the
Applicants’ complaint regarding the order of Brembridge AJ is
two-fold. First, it is that the order was
granted in circumstances
where the application was defective in terms of Rule 6(4) of the
Rules of Court, because it was not “filed
with the registrar
and set down, before noon on the court day but proceeding the day
upon which it is to be heard”. Secondly,
it is that the
application was set down for hearing as an urgent application before
Bremridge AJ who was sitting on urgent motions,
without complying
with Rule 6(12). In so far as the application was brought as one of
urgency, the Applicants contend that there
was no prayer for
condoning the non-compliance with the Rules and no grounds of urgency
set out in the founding affidavit.
3. The Respondents’
response to this application is that no legal basis exists for the
reconsideration and setting aside of
the order of Bremridge AJ. They
contended that an ex parte application is the regular manner of
complying with the statutory requirements
in section 4(2) of the PIE
Act, and had been sanctioned by the practice notes, the High Court
and the Supreme Court of Appeal.
In this regard I was referred to the
case of Cape Killarney Property Investments (Pty) Ltd v Mahamba
2001
(4) SA 1222
(SCA) at para 15 and 16. Practice Note 37(11) regulating
Chamber Book applications in this Division also provides that
applications
may be brought through the Chamber Book for directions
for service in applications involving the Prevention of Illegal
Eviction
from and Unlawful Occupation of Land Act 19 of 1998.
4. It was submitted
further that no practical effect would result from setting aside the
order of Bremridge AJ. I understood that
to mean that if the order
is set aside, that would not dispose of the matter for the eviction
of the Applicants in the main application.
The Respondents would
simply re-launch their application to have the Applicants evicted
from their land. Furthermore, so the argument
went, the notice, which
was given effect to by the order of Bremridge AJ, completed the
procedural steps necessary to ensure that
the hearing on the eviction
of the Applicants was not hampered by procedural or technical
objections.
EX PARTE
APPLICATIONS
5. An ex parte
judicial proceeding is conducted for the benefit of only one party. A
bedrock feature of due process is fair notice
to parties who may be
affected by legal proceedings. An ex parte judicial proceeding,
conducted without notice to, and outside
the presence of, affected
parties, would appear to violate the provisions of the Constitution
of the Republic of South Africa.
The basic procedural safeguard,
ensuring an impartial court, is a hearing held in public in which all
the parties with an interest
in the order of the Court are allowed to
participate. Section 34 of the Constitution guarantees the right of
everyone to have any
dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where
appropriate, another
independent and impartial tribunal or forum.
6. An ex parte
procedure could violate the procedural right in section 34 of the
Constitution. Unguarded, an ex parte application
may also violate the
rights guaranteed in section 9(1) of the Constitution, which provides
that everyone is equal before the law
and has a right to equal
protection and benefit of the law. Courts do not likely hear ex
parte applications without being satisfied
that parties not before
them will not suffer constitutional prejudice. A Court must give
effect to the constitutional principles
and requirements of equality,
impartiality and fairness. In appropriate circumstances a Court will
require that an ex parte application
be served or published,
alternatively a court will issue such directions as are necessary to
safeguard the fairness of its processes,
if it is of the view that a
party not before it may suffer prejudice.
7. However, adequate
notice of judicial proceedings to concerned parties may at times work
irreparable harm to one or more of those
parties. In such a case the
threatened party or parties may approach a Court on an ex parte basis
for temporary judicial relief
without notice to, and outside the
presence of, other persons affected by the hearing. The circumstances
that may justify a party’s
reliance on or resort to an ex parte
application have been set out in numerous cases and received its fair
share of commentary
from legal scholars. (Schlesinger v Schlesinger
1979 (4) SA 342
(WLD) at page 347 H – 348 (A); National
Director of Public Prosecutions v Basson
2002 (1) SA 419
(SCA) at
428; Erasmus at B1-41)
8. I will not repeat
them here save to add that the principles of ex parte applications
are trite.
9. Whether or not
the Respondents in this application were entitled to bring an urgent
ex parte application must be seen from the
facts and circumstances of
the case before the Court. The ex parte application was filed in the
context of an opposed eviction
application under the provisions of
the PIE Act. It was hastily prepared, served and filed and set down
for hearing on the same
day of 6 August 2014. It was therefore not
set down as per Rule 6(4) “before noon on the day but one
preceding the day upon
which it is to be heard.” The
application was not placed on the unopposed roll in the Third
Division of the High Court, as
would be the case for unopposed
matters but was placed before an urgent judge as an urgent matter. It
was clear to the Respondents
that if the matter was not treated as
one of urgency, there were two risks to their application for the
eviction of the Applicants.
10. The first was
that the application for eviction set down for hearing on 21 August
2014 would be heard and possibly dismissed
by the presiding judge for
lack of compliance with the mandatory requirement of section 4(2) of
the PIE Act. The second risk was
that the Applicants in the eviction
application would seek a postponement in order for them to comply
with section 4(2) notice.
Both these prospects loomed large over the
Respondents who decided to launch an urgent ex parte application to
cure a material
defect in the application for the eviction of the
Applicants. It appears to me permissible, in appropriate
circumstances, to launch
an ex parte application on an urgent basis
if the timeframe for the setting down of such application in Rule
6(4) of the Rules
of Court is insufficient to meet the urgency of the
situation. In other words, it appears to me that the Respondents
resorted to
setting down the ex parte application as one of urgency
because they needed to serve the Applicants with the section 4(2)
notice
within fourteen days prior to the hearing of the application
on 21 August 2014. If the Respondents had failed to serve the
Applicants
with the statutory notice the main application for their
eviction could not proceed on 21 August 2014; alternatively it could
be
dismissed if pursued in the absence of that notice. It was this
necessity that triggered the urgency in setting down the ex parte
application on 6 August 2014. The urgency was aimed at preventing
the application on 21 August 2014 from either being postponed
or
dismissed for lack of compliance with the notice requirement.
11. With pragmatic
haste, and realizing their procedural quagmire, the Respondents had
to prepare the ex parte application and place
it before Bremridge AJ
to be heard as an urgent ex parte application. That approach, in my
view, was reasonable and necessary
under the circumstances. It
prevented the application on 21 August 2014 from being aborted on a
technicality. As a consequence
of Bremridge AJ’s intervention,
the application for the eviction of the Applicants was ripe for
hearing on the merits, because
there was compliance with the
fourteen-day notice in section 4(2) of PIE Act. The Applicants were
entitled, under the compulsion
of necessity, to set down the ex parte
application for hearing on an urgent basis. The question that arises
on this finding is
whether the Applicants’ application as one
of urgency complied with the rules of urgency in Rule 6(12). In my
view, they
did not, although that is not where the matter must end,
since a Court has a wide discretion to condone any non-compliance
with
its Rules. It appears to me that this is the judicial
discretion that Bremridge AJ was entitled to rely on to grant the
order
of 6 August 2014. I cannot, on that, set aside the impugned
order of Bremridge AJ. The extent of the non-compliance with the
Rules of urgency is significant on the approach I take to the issue
of costs.
12. The Notice of
Motion filed in the ex parte application lacked two significant
prayers common and necessary for urgent applications.
The first is
that the Applicants in that ex parte application did not seek an
order condoning their non-compliance with the rules
by bringing the
application as one of urgency. As appears from the affidavit filed in
support of that ex parte application, there
are no grounds of urgency
that were set out and the only reason given in support of the
application is that the application for
the eviction of the
Applicants had been postponed to 21 August 2014 “as the matter
had become opposed and it seems that no
amicable resolution could be
found to this matter.” The Applicants did not set out, in the
founding affidavit, the significance
of the hearing date to support
their argument of urgency. The connection between the urgent
application and the date of the hearing
of 21 August 2014 is the
fourteen-day notice of the section 4(2) notice. That connection must
have been discovered in the pile
of papers by the learned judge
through a diligent reading and careful consideration of the
application. It is clear from the papers
taken as a whole that the
real urgency was the necessity to comply with the fourteen-day notice
requirement in section 4(2) of
the PIE Act and the necessity to
comply with the court order of Mantame J, which postponed the
eviction application for hearing
on 21 August 2014.
13. What the order
of Bremridge AJ did was to prevent the application of 21 August 2014
from being unnecessarily postponed, or dismissed
on a technicality. I
am in no way suggesting that the order deprived the Applicants of a
valid defence to their eviction, because
they had indeed taken the
technical argument in their defence to the main application. The
technical defence could wade off the
eviction application for a
moment but since it could be cured, such victory is temporary and
would decay with time. The real dispute,
which is whether the
Applicants should be evicted from the property of the Respondents,
will live beyond this procedural objection.
I am accordingly content
that the ex parte application was appropriate and furthermore, given
the intervening factors, it was necessary
for the ex parte
application to be heard as one of urgency. Bremridge AJ, in his wide
discretionary powers and having considered
all the papers and in
particular the order of Mantame J and the requirement of the section
4(2) notice, was entitled to treat the
matter as such and to grant
the order as prayed for. The wide discretion to condone
non-compliance with its Rules includes where
there has been no
specific prayer for such condonation. Bremridge AJ was pragmatic and
took a decision that ensured that the application
was made ripe for
hearing on the merits on 21 August 2014. Having regard to the
application and taking into account all the facts,
which were before
him, what the learned judge did was no more than act in a manner that
protected the integrity and proper functioning
of our Courts to
ensure that the real disputes between the parties are heard and
determined without undue delays. I am accordingly
not at large to
interfere with an eminently reasonable order of Bremridge AJ in the
circumstances and accordingly dismiss the application
to have his
order set aside.
COSTS
14. Even though I
have dismissed the application I take a different view on the issue
of costs. First the conduct of the Respondents
in the main
application is less than satisfactory and the less said about it the
better. Second, the ex parte application lacked
clarity and
essentially forced the judge to plough through the papers to get to
understand the issue of urgency. The conduct was
languorous, lacking
in the affidavits material allegations that were necessary to
disclose for the judge to appreciate the urgency
immediately. Their
failure to set out succinct grounds of urgency in the ex parte
application was an irresponsible attitude that
takes for granted the
rigorous requirements of ex parte applications to pertinently point
out essential detail. In the founding
affidavit, the judge could
have been pointed out to the order of Mantame J, which postponed the
matter to 21 August 2014 and thereafter
indicate the necessity of
complying with the section 4(2) notice on the date of 6 August 2014.
That was not done, leaving it to
the judge to dig through the papers
for an answer on urgency. Eviction proceedings require a rigorous
compliance with the relevant
statutory provisions. It is a process
that must be approached with reverence and not a cavalier and
boastful attitude.
15. What the
Respondents did in the eviction application was to lapse into a state
of reckless inertia for a period of time; waking
up on the eve of the
last day of the fourteen-days required to issue notice to the
Applicants - to the reality that their application
was vulnerable if
a section 4(2) notice was absent. In my view, there would have been
no need to resort to an urgent ex parte application
if the
Respondents had paid adequate attention to their duty to ensure that
the mandatory statutory requirements of section 4(2)
were complied
with on time. In adopting this rather last minute robust procedure,
they placed the Court under unnecessary pressure
in the result
creating the impression that they considered the ex parte application
to be there for the mere asking. At the time
that this ex parte
application was heard on an urgent basis, the Applicants in the
meantime had, amongst others, mounted a spirited
defence against the
eviction on the basis of the lack of compliance with a mandatory
procedural requirement.
16. For example,
having obtained the order of Bremridge AJ on 6 August 2014, they did
not advise the Applicants until 19 August
2014, five days after the
Applicants had filed their heads of argument relying on their
non-compliance with the notice as a defence.
Had the Applicants been
made aware of the Bremridge AJ in time before written submissions had
been filed for the eviction application,
they would not have spent
any time on that defence. In addition, at the hearing of the
application, and on raising the Rule 6(12)(c)
application, the
Respondents threw another curve ball to the Applicants by withdrawing
the relief sought against the further respondents.
The Applicants
correctly lamented this step as having a destabilizing effect on
their defence, in particular the prospect that
these proceedings
would be treated in a piecemeal fashion. I share the Applicants’
response and I am satisfied on the conspectus
of all the facts that
the Respondents pursued their eviction application in a manner that
warrants an order of costs against them.
17. In the
circumstances I make the following order;
a. The application
to set aside the order of Bremridge AJ is dismissed;
b. The Respondents
in this application are ordered to pay the costs of the application,
including the costs of the hearing on 21
August 2014.
c. The Applicants,
in this application are permitted to file such further affidavits, as
may be necessary, five days from the date
of this order.
d. The main
application is postponed sine die.
MASUKU, AJ
APPEARANCES:
For the
Applicant: ADV. L. WILKIN [021 424 2588]
Instructed by
: Van der Merwe & Robertson Inc.
2nd Floor
34 Oxford
Street
DURBANVILLE
(Ref: R Nelson
- 021 976 4663)
First and Second
Respondents: ADV. B. ATKINS [021 422 4689]
Instructed :Parker
& Khan Inc.
395 Lansdowne
Road
LANSDOWNE
(Ref: MP –
021 696 4140)