Minister of Home Affairs and Others v Zuma (3014/2017) [2020] ZAECMHC 33 (13 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, MTHATHA

CASE NO. : 3014/2017

Heard on: 06 August 2020

Date delivered: 13 August 2020

In the matter between:

MINISTER OF HOME AFFAIRS

First Applicant

THE DIRECTOR-GENERAL, DEPARTMENT

OF HOME AFFAIRS

Second Applicant

THE AREA MANAGER, HOME AFFAIRS

MOUNT FRERE

Third Applicant

And

MAGANDELA SANCTUS ZUMA

Respondent

JUDGMENT

MAJIKI J

[1] This is an application for rescission and setting aside of this court’s judgment granted in favour of the respondents in the absence of the applicants on 26 September 2017. The application is opposed by the respondent.

[2] It is common cause that the application was launched in December 2017, the date of issue is not apparent but it was served on the respondent’s legal representatives on 6 December 2017. That date is beyond the 20 day period prescribed in rule 31(2)(b) of the Uniform rules.

[3] It is common cause that the applicants’ officials had confiscated the respondent’s identity document. Subsequently the said identity document was blocked by the applicant’s system. The respondent then approached court for the return of his identity document and the unblocking of his particulars in the applicants’ system. He obtained that order which is the order that is being sought to be rescinded herein.

[4] According to the respondent the application ought to be dismissed because the applicants have neither made an application for condonation of the late filing of the application for rescission nor have they shown good cause for the application.

[5] The applicant has not filed a replying affidavit. In argument it was submitted on behalf the applicant that his application is premised on rule 42(1) of the Uniform rules and or common law. The applicants under such dispensation need only approach court within reasonable time.

[6] The applicants stated that they were shocked to learn of the judgment against them during October 2017. They were not aware of the respondent’s application. Had they been aware they would have opposed it. The respondent denied that the applicants were not aware of the application. In his answering affidavit he annexed a copy of the return of service dated 21 July 2017 served on the state attorney’s office. During hearing it transpired

from the main application that on 10 July 2017 the application was also served at the office of the second respondent. Furthermore, on 8 August 2017 when the matter was in court and was postponed, before the date of the judgment sought to be rescinded, there was an appearance on behalf of the respondents.

[7] Rule 42(1) provides:

"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 or judgment erroneously sought or erroneously granted in the absence of any party affected thereby.”

[8] It is settled law that an application in terms of rule 42(1)(a) must be brought within a reasonable time and the delay must be explained fully. The applicants state that they became aware of the application during October 2017, upon service of the order. The application was brought around 6 December 2017. No explanation has been given as to what led to the application for rescission being brought almost two months from the date of judgment and more than a

month after they said they learnt of judgment. This occurred in circumstances where there are already pointers of poor handling of the matter. The papers were served, there was an appearance on their behalf previously, prior to the date of judgment.

[9] In applications for rescission judgment under rule 42 (1) (a) the applicant needs to show only the existence of an error.

[10] In Lodhi 2 Properties Investment CC v Border Developments 2007 (6) SA 87 at paragraph 25 the court re-affirmed its position as stated in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA (1) (SCA) paragraph 9-10 wherein an application in terms of rule 42(1)(a) for rescission of a summary judgment granted in the absence of the defendant was refused, notwithstanding the fact that it was accepted that the defendant wanted to defend the application but did not do so because the application had not been brought to the attention of his Bellville attorney. The court stated that no procedural irregularity or mistake in respect of the issue of the order had been committed and that it was not possible to conclude that the order had erroneously been sought or had erroneously been granted by the Judge who granted

that order.

[11] The court also confirmed the conclusion in Theron NO v United Democratic Front (Western Cape Region) 1984 (2) SA 532 at 536 B-H. Therein, an order was granted in chambers in the absence of Theron. The judge heard oral evidence, no papers had been filed and no papers had been served on Theron. The judge granted the order on the assumption that Theron had been given sufficient notice of the application, not only for him to be personally present at the hearing but also for him to have consulted

deputy State Attorney for legal advice. But nevertheless, deliberately decided not to consult or appear in court to give

reasons for his actions. In the application for rescission it was found that, on the facts placed before court, those assumptions

were wrong, it transpired that Theron was given short notice of the application. The order was therefore granted erroneously.

[12] In the present matter, the applicants did not state that they were not served with the application. They only said they were not aware of it. They have not explained what steps they took to investigate the matter, upon receipt of the application; which of the applicants was not aware of the application and the possible reasons for the lack of knowledge in circumstances where there was service of the application. Finally, what were the circumstances surrounding the appearance on their behalf on 8 August 2017.

[13] In my view, there is no satisfactory explanation why the respondents state that they were not aware of the application. Therefore, there was no error on the part of Brooks J in granting the order on the basis that they were served but failed to attend court. Furthermore, without satisfactory explanation relating to the lack of knowledge of the application, and what they did from October 2017 to 6 December when they served this application, I am unable to find that they made the application within reasonable time of becoming aware of the application and or judgment.

[14] Under common law the requirements for bringing the application for rescission were clearly set out in Promedia Drukkers and Uitgewers (Edms) Bpk v Karrowitz and Others 1996 (4) SA 411 at page 417 as follows:

“ … a court has a discretion to grant rescission of judgment where sufficient or good cause has been shown. But it is clear that in principle and in the long-standing practice of courts, two essential elements of sufficient cause for rescission of a judgment by default are:

1. that the party seeking relief must present a reasonable and acceptable explanation for his or her default.

2. That on the merits such party has a bona fide defence, which prima facie, carries some prospect of success (see Chetty v Law Society of Transvaal 1985 (2) SA 756 A at 765 B-C, Athmaram v Singh 1989 (3) SA 953 (d) at 954 E-7)”.

[15] The reason for the default advanced by the applicants has already been found not to be satisfactory, in the circumstances where there was service, that is, to simply state that they were not aware of the application.

[16] As regards bona fide defence the applicants state that the respondent’s version is incongruent and contradictory regarding his citizenship status.

The applicants state that following an investigation, they made necessary findings that the respondent is an illegal foreigner who is liable for a conviction for contravening the immigration laws of the Republic and also liable to be deported to his country of origin.

[17] Furthermore, the applicants state that the respondent was blocked by the system. The order that they should unblock his particulars is not capable of being effected.

[18] The respondent denied that there was an investigative report made on his citizenship. None was attached to the founding affidavit, it is only through the outcome of such report which would find that he was an illegal immigrant or a foreigner. He said despite having been alleged to be liable to a conviction, he had not been charged of breaching any immigration laws or deported to his country of origin.

[19] On 29 July 2020, five (5) court days before the hearing the applicant filed a filing notice, filing annexures it has omitted to file with the founding affidavit together with the investigation report regarding the respondent’s citizenship. The respondent applied for trial date on 9 October 2019, even though the notice refers to the applicant, (as he was in the main application). The filing notice was filed after the respondent had filed even his heads of argument on 19 July 2020, two days before the applicants filed their heads of argument on 31 July 2020.

[20] It is unclear what dispensation allowed the applicant to so file those documents. That happened when the applicants had elected not to file a replying affidavit.

[21] The respondent would be prejudiced if the court were to give regard to the documentation filed at the last hour, without affording the respondent even an opportunity to indicate if they were not objecting to such. In any event during the hearing it transpired that the respondent objected to the filing of the said documents.

[22] In the light of the applicant having not filed a replying affidavit the version of the respondent remains uncontested on the non-existence of the bona fide defence.

[23] In my view, even if the applicants indeed could have a strong case on the respondent’s non citizenship, they are not entitled to resist complying with the order in circumstances where they have not shown that it was granted in error, alternatively, where they have not been able to show that they were not in wilful default in failing to defend the application that gave rise to the order. Even after compliance with the order, there would be no bar for the applicants to pursue any available statutory remedies against the respondent, if they have a basis to do so. Noteworthy, both parties referred to the provisions of section 9 (3) (a) and (c) of the Immigration Act, Act 13 of 2002. The applicants further referred to section 49 (15) (b) (iv) as substituted by section 5(a) of Immigration Amendment Act 13 of 2011.

[24] In the circumstances the application has to fail.

In the result;

The application is hereby dismissed with costs.

___________________________

B Majiki

Judge of the High Court

Counsel for the applicant : Mr Bembe

Instructed by

: State Attorney

Broadcast House

94 Sissons Street

Fortgale

MTHATHA

Counsel for the respondent : Mr Bavu

Instructed by

: Messrs S B Bavu Inc. Attorneys

25 Dower Street

KOKSTAD

c/o Messrs M Hlazo Attorneys

Durham Street