City of Matlosana Local Municipality and Another v Masirelo Propeties (Pty) Ltd (M116/2020) [2023] ZANWHC 196 (27 October 2023)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

CASE NO: M116/2020

Reportable:

NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:-

THE CITY OF MATLOSANA LOCAL MUNICIPALITY

1st Applicant

THE MUNICIPAL MANAGER:

THE CITY OF MATLOSANA LOCAL MUNICIPALITY

2nd Applicant

and

MASIRELO PROPERTIES (PTY) LTD

Respondent

CORAM:

MFENYANA J

Summary: Rescission – order erroneously sought or erroneously granted– rule 42(1)(a) of the Uniform Rules of Court.

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 27 October 2023.

ORDER

(1) Condonation for the late filing of the rescission application is granted.

(2) The default judgment granted against the applicants on 7 May 2020 is rescinded.

(3) The respondent is ordered to pay the costs of the application.

JUDGMENT

Mfenyana J

Introduction

[1] In this application, the applicants seek an order for the rescission and setting aside of an order granted by this Court against the applicants on 7 May 2020, per by Djaje J (as she then was).

[2] The order followed upon an application instituted by the respondent, as plaintiff in the main action, against the applicants, as first and second respondents (main application), seeking an order directing the first applicant to, inter alia, remove the second applicant, and certain illegal structures form a piece of land described as Erf 1549 Klerksdorp, Ext 5, North West, in the control of the first applicant. The order granted by the court reads as follows:

“ The First Respondent, is directed to enforce the applicable national and provincial legislation and by-laws and to take action and remove or cause to be removed the illegal structures and Second Respondents from the land at Erf 1549, Klerksdorp, Ext 5, North West Province, within 60 (sixty) days from date of this order.

The First Respondent is ordered to pay the costs of this application.”

[3] The application is opposed by the respondent.

[4] It appears from the record that the rescission application was initially set to be heard on 8 July 2021. Following an application instituted by the respondent, seeking to hold the applicants in contempt of the order of 7 May 2020, and various subsequent postponements, the respondent set the matter down for hearing on 10 February 2023.

[5] The application is premised on the provisions of rule 42(1)(a) that the order was erroneously sought and erroneously granted. The applicants aver that the order is a “disguised eviction” for which the requirements stipulated in the Prevention of Illegal Eviction Act (PIE Act), have not been satisfied. Thus, the applicants contend that the order ought not to have been granted, to begin with.

[6] In the founding affidavit, Theetsi Solomon Rodger Nkhumise (Nkhumise), the deponent contends that the election to remove the occupiers (second applicants) vests with the first applicant, as the owner of the land. The ‘error’ in seeking the impugned order, the applicants aver, lies in the fact that at the time of seeking the order, the respondent was aware that the respondent was fully aware that it was seeking an eviction. This is evident from the language employed by the respondent, which resonates with the provisions of the PIE Act, he contends.

[7] On the procedural aspects of the application which led to the order, the applicants contend that they had filed a notice of opposition, albeit out of time. The notice of intention to oppose indicates that it was served on the respondent’s attorneys on 7 May 2020 at 3:15 and filed on 8 May 2020. As a result, they were not provided with the link for the virtual hearing, and it is on that basis that the matter proceeded unopposed. The applicants therefore aver that

they were not in wilful default as their intention was made clear in opposing the main application. That did not excuse the respondent

from making out a proper case for the relief they sought.

[8] The application for rescission should have been brought in July 2020. It is nine months out of time. The applicants in this regard seek condonation for the late filing of the rescission application. They state that the delay in bringing the application was occasioned by Covid- 19 restrictions as the first applicant was only operating with skeleton staff. They further contend that the respondent did not act in good faith, in failing to disclose to the court that the matter had become opposed. Lastly, the applicants aver that they have a bona fide defence to the main application ‘based on a question of law which must be considered by applying relevant legal principles.’

[9] Notably, the applicants aver that section 26 of the Constitution[1] read with ss 4, 6 and 7 of the PIE Act, determine what conduct is acceptable in the circumstances, and that the removal of illegal

occupiers, injure the dignity of the persons concerned.

[10] The respondent avers in limine, that the municipal manager, who is cited as the second applicant in the rescission application, was not cited as a party in the main application, and in the impugned order, and consequently has no locus standi to bring the present application. What this averment overlooks is that the application is brought by the City of Matlosana Local Municipality (municipality), as the first applicant in the main and in this application.

[11] It is of no moment that the municipal manager, who in any event, as the accounting officer of the first applicant, has deposed to the founding affidavit in his capacity as such. Someone had to do it, and there can be no doubt that the municipal manager has the requisite authority to act on behalf of the municipality. In as far as the second applicant has not been cited, that has no bearing on the present application as the rule clearly stipulates that any party affected by the order may apply for rescission.

[12] The respondent, further in limine, challenges the applicants’ reliance on rule 31(2)(b), which it contends only finds application in action proceedings where the defendant is in default of delivering a notice of intention to defend or a plea. It contends that as the order sought to be rescinded was granted in motion proceedings, the application is fatally flawed.

[13] Pertaining to the applicants’ averment that the respondent had a duty to inform the court that the application had become opposed, the respondent paints a different picture. It asserts that this was done, and that the order was granted on the basis that the applicants had not filed their notice of intention to oppose, in court, when the application was heard on 7 May 2020. They only filed it on 8 May 2020, after the order had been granted.

[14] It is not clear what the respondent relies on for the proposition that the rescission application is premised on rule 31(2)(b). There is no such reference in the application. What the applicants aver is that the order was erroneously sought and erroneously granted. This, needless to say, is the wording of rule 42(1)(a). Rule 42(1)(a) goes further to provide that the order must have been granted in the absence of the other party or any party affected by such order. Thus, this point in limine also falls to be dismissed.

[15] Turning to the merits, the respondent avers that the application is ‘ill- advised and misguided”. It avers that the relief it sought in the main application was to compel the first applicant to enforce the applicable legislation. They concede that ‘the first applicant has the required locus standi to lodge the required legal proceedings under the PIE Act to evict the illegal occupiers from the land… .”[2] In that averment, lies a concession that the main application triggered the application of the PIE Act.

[16] The respondent further concedes that the relief it sought in the main application was for the eviction of the illegal occupiers (second applicant) which the first applicant is permitted to do. Strangely, however, the respondent avers that the PIE Act does not find application in these proceedings and that the applicants’ reliance on the PIE Act is merely a ploy not to comply with the order, and to escape an order for contempt of court. The basis upon which this assertion is made, has curiously, not been articulated by the respondent.

[17] The implication of the respondent’s resistance of the applicability of the PIE Act, albeit contradictory to the remainder of its submissions, is that the respondent maintains that it had no obligation to comply with the PIE Act in bringing the main application. They seek a dismissal of the rescission application with punitive costs on attorney and client scale, alternatively de bonis propriis.

[18] Accordingly, this Court is required to determine whether the applicants have made out a case for the rescission of the order of Djaje J.

[19] Rule 42(1)(a) provides:

“The court may, in addition to any other powers it may have, mero motu or upon the application of any part affected, rescind or vary:

(a) An order or judgment erroneously

sought or erroneously granted in

the absence of any party affected

thereby;…”

[20] The jurisdictional requirements for an order under this rule are that (i) the order must have been erroneously sought or granted; (ii) it must have been granted in the absence of the applicant;(iii) the rights or interests of the applicant or any party must be affected by the judgment or order.

[21] That the order was granted in the absence of the applicant is common cause, and requires no further consideration. So too is the fact that the applicant is affected by the order. What remains is whether, as the applicant contends, the order was erroneously sought or erroneously granted. They bear the onus to prove that it was.[3]

[22] It was submitted by counsel on behalf of the applicant that the error in seeking the order, lies in the fact that the respondents knew at the time of the hearing of the application, that the applicants intended to oppose the application as evidenced by the notice of opposition. This is not gainsaid by the respondent, who in addition, state that while this was brought to the attention of the court, the court was constrained to grant the order on the basis that the same notice of opposition had not been filed in court. It was only filed a day after the order had been granted, as evidenced by the stamp of the Registrar.

[23] The applicants had another string to their bow. They further contend that the order was granted erroneously, as, over and above the fact that the application was opposed, the application was a PIE application “smuggled through the back door of a mandamus.” It had the effect of a mandamus, counsel added. Thus, it was not open to the court to grant the order. None of the requirements for a ‘PIE application’, namely (mandatory), assessment of impact, and alternative accommodation requirements had been met when the order was granted, they contended. Mr Muza argued that what the respondent ought to have done was to compel the applicants to remove the structures, and therefore the order ought not to have been sought. He concluded that the court enjoyed a discretion to rescind the order.

[24] In resisting the application, Ms Zwiegelaar contended on behalf of the respondent, that there was no duty on the court to provide a link for the virtual hearing to the applicants as they had not filed a notice of opposition, and the court granted the order on the basis of what was before it at the time of the application. She disagreed with the applicant’s contention that the order had the effect of an eviction order. The difficulty with this submission is that it overlooks that in terms of rule 42(1)(a) the applicants need not show good cause for their default. As long they can identify an error in the proceedings, the judgment or order is susceptible to be rescinded. In this case, the respondent sought, and was granted an order for the ‘removal’ of illegal occupiers and structures from the identified land.

[25] In Bakoven[4] the court stated:

“ An order or judgment is ‘erroneously granted’ when the Court commits an ‘error’ in the sense of a ‘mistake in a matter of law appearing on the proceedings of a Court of record’… . It follows that a Court in deciding whether a judgment was ‘erroneously granted’ is, like a Court of appeal, confined to the record of proceedings. In contradistinction to relief in terms of Rule 31(2)(b) or under the common law, the applicant need not show ‘good cause’ in the sense of an explanation for his default and a bona fide defence… . Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission.”

[26] It is settled law that the purpose of rule 42(1)(a) is to correct expeditiously an obviously wrong judgment or order.[5] Once it has been established that the judgment was erroneously granted in the absence of a party affected thereby, the rescission of the judgment should be granted.[6]

[27] I understand the applicants to be saying that the relief sought by the respondent in the main application, was not competent. I agree. The application was for all intents and purposes, one directing the applicant (respondent in this application), to evict the second respondent, who were also cited in the proceedings. None of the requirements for such an application had been met by the respondent. There also could not have been any basis for an application to compel, as the respondent suggests, in the absence of any antecedent order to be complied with.

Order

[28] In the result, I make the following order:

(1) Condonation for the late filing of the rescission application is granted.

(2) The default judgment granted against the applicants on 7 May 2020 is rescinded.

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Appearances:

For the applicants: C Muza Instructed by: Kgomo Attorneys Inc. Email: info@kgomoattorneys.co.za On behalf of the respondent: C Zwiegelaar Instructed by: Jordaan & Smit Incorporated c/o: Smit Stanton Attorneys Email: Lthompson@jordaansmit.co.za Reserved: 10 February 2023 Handed down: 27 October 2023

[1] The Constitution of the Republic of South Africa, 1996.

[2] Paragraph 5.4 of the answering affidavit dated 27 May 2021.

[3] See in this regard: Bakoven G J Howes (Pty) Ltd 1992 (2) SA 466 (E) at 471E.

[4] Ibid at 471F-G.

[5] Kili v Msindwana in re: Msindwana v Kili [2001] 1 All SA 339 (Tk) at 345.

[6] Mutebwa v Mutebwa 2001 (2) SA 193 (Tk).