Premier of the Province of the Eastern Cape and Others v Nduna (4009/2015, 4010/2015) [2016] ZAECGHC 51 (5 July 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: 4009/2015 & 4010/2015

In the matter between:

THE PREMIER OF THE PROVINCE

1st Applicant

OF THE EASTERN CAPE

EASTERN CAPE MEMBER OF THE

2nd Applicant

EXECUTIVE COUNCIL FOR LOCAL

GOVERNMENT & TRADITIONAL AFFAIRS

COMMISSION ON TRADITIONAL

3rd Applicant

LEADERSHIP DISPUTES & CLAIMS

EASTERN CAPE PROVISIONAL COMMITTEE

4th Applicant

OF THE COMMISSION ON TRADITIONAL

EASTERN CAPE PROVINCIAL HOUSE OF

5th Applicant

TRADITIONAL LEADERS

And

BANTUBONKE NDUNA

Respondent

JUDGMENT

BESHE J:

[1] This is an application for the rescission of two judgments that were granted in favour of the respondent against nine (9) and five (5) respondents in those applications respectively. In respect of both matters the respondent sought the reviewal and setting aside of first applicant’s decision to dismiss his claim regarding the existence of traditional leadership in the right hand house of amaNdungwane in Glen Grey in the one matter. In the other matter respondent sought to the review of a similar decision regarding a claim in the right hand house of Nene.

[2] The respondent was acting in person at the time of the abovementioned applications and still is. As a consequence of this, the matter had to be removed from the roll for want of compliance with certain rules of this court, in particular a deficient notice of motion. He had the matter placed back on the roll for hearing on the 27 October 2015 having filed an amended notice of motion.

[3] The first part of the amended notice of motion contains the terms of the review order sought. The second portion calls upon some of the respondents in those matters to furnish / despatch inter alia, reports containing recommendations, records of proceedings and videos. It was required of those respondents against whom certain items were called for, to notify the registrar within fifteen (15) days after receipt of the notice of motion that they have despatched the required items. In the third part, respondent gave notice to the respondents that if they intend opposing the application/s they are required to notify him in writing on or before the 13 October 2015 of their intention to do so and within thirty (30) days after giving notice to oppose, to file their answering affidavits. He further gave notice to the respondents that in the event of no such notice of opposition being given, the review application will be made of the 27 October 2015.

[4] Service of the amended notice of motion on the respondents in both matters occurred between the dates: 16 September to 23 September

2015.

[5] The matter was set down on the unopposed roll for hearing on the 27 October 2015 by the present respondent. This is the date on which according to the notice of motion the application will be heard should there be no notice of intention to oppose. The matter was duly heard on that date and on the 29 October 2015 the judgments appealed against was granted in favour of the present respondent.

[6] Unbeknown to the court at the time, after the service of the original notice of motion, correspondence was directed at the respondent

through his nominated address, being Mili Attorneys, Grahamstown. In the said correspondence, defects in his notice of motion relating to procedure laid down for reviews, in particular by Rule 53 was pointed out. Respondent was afforded the opportunity to rectify same.

[7] This seems to have culminated in applicants being served with the amended notice of motion mentioned above. The relevant part of the amended notice of motion which was served on the first applicant (first respondent in the main application) on the 22 September 2015 reads thus:

“BE PLEASED TO TAKE NOTICE FURTHER that the applicant is calling upon:-

the first respondent to despatch, the record of the proceedings, together with such reasons as he is required by law or desires to give or make, when the decision was pronounced on 10 June 2015, and to notify the applicant that he has done so,

the second and fourth respondents to despatch the report, containing the recommendation, they submitted to the first respondent, together with such reasons as they are by law required or desire to give or make, to notify the applicant that they have done so,

the fifth respondent to despatch the record of proceedings that resulted in the advice they provided to the fourth respondent, together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so,

the fourth respondent to despatch the unedited video recording made in Lady Frere during the public hearing on 21 November 2014, and notify the applicant that they have done so,

to the registrar, within fifteen days after receipt of the notice of motion.

BE PLEASED TO TAKE NOTICE FURTHER that the address of the Applicant for service of documents is: MILI ATTORNEYS, NO. 110 High Street, Eskom Building, Grahamstown.

TAKE NOTICE FURTHE that if you intend opposing this application you are required to notify the applicant in writing on or before 13 October 2015 and within 30 days after you have so given notice of your intention to oppose the application, to file your answering affidavits, if any, showing cause why such decision or proceedings should not be reviewed and corrected or set aside; and further that you are required to appoint in such notification an address referred to in rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings.

If not such notice of intention to oppose be given the application will be made on 27 October 2015 at 10:00 hours or on a date and time determined by the Court.”

[8] The time table that should ensue in matters concerning a review of certain decisions and proceedings is the following:

“53 Reviews

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected‒

(a) … … …

(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

(2) … … …

(3) The registrar shall make available to the applicant the record despatched to him or her as aforesaid upon such terms as the

registrar thinks appropriate to ensure its safety, and the applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the registrar with two copies and each of the other parties with one copy thereof, in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.

(4) The applicant may within ten days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

(5) Should the presiding officer, chairperson or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, he or she shall‒

(a) within fifteen days after receipt by him or her of the notice of motion or any amendment thereof deliver notice to the applicant that he or she intends so to oppose and shall in such notice appoint an address within 15 kilometres of the office of the registrar at which he or she will accept notice and service of all process in such proceedings; and

(b) within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he or she may desire in answer to the allegations made by the applicant.”

[9] Even after its amendment, the notice of motion did not comply with the provisions of Rule 53. The time table set by the respondent in the amended notice of motion was not in keeping with Rule 53. The rule provides that after the receipt of the record by the Registrar, which should be despatched fifteen (15) days after receipt of the notice of motion which would be the 22 September 2015 in respect of first applicant, the Registrar must make same available to the applicant. After which applicant will have ten (10) days to amend, vary or add to the terms of his / her notice of motion. Thereafter, that is after receipt of notice to amend, vary or add to applicant’s original notice of motion, only then are the applicants expected / required to deliver their notice of intention to oppose. Thirty (30) days after receipt of the sub rule 4 notice the respondents are required to file their answer. Their obligation to file answering affidavits only arises then.

[10] The setting down of the matter on the unopposed roll was therefore premature as the time for filing of the notice of intention to oppose was not due or had not expired. In any event the respondent had not rectified the defects as they appear in the amended notice of motion regarding timeframes for certain steps to be taken by the applicants. Applicants contend that they were waiting

for the respondent to fix the defects before they (those that were required to dispatch records to the registrar) could do so. These shortcomings were drawn to the attention of the respondent by means of letters addressed to him.

[11] In opposing the application, respondent raised a number of preliminary points attacking applicants’ notice of motion

labelling it defective. One such attack is that there is no evidence that shows that the applicants have duly resolved to launch this rescission application.

[12] I do not think that any of the points raised are of any moment or fatal to the application for rescission of judgment. The notice of motion complies with Rule 6 of the Uniform Rules of this Court.

[13] In opposing the application, respondent also contended that the applicants did not take part in the main application as they did not file a notice to oppose the application. They also “deliberately” did not despatch the records and other items as required by the respondent in the notice of motion.

[14] This argument seems to lose sight of the fact that his attention was drawn to the flaws in booth the original and the amended notice of motion. And that therefore the time for filing notices of intention to oppose had not arrived. This in view of the fact that respondent had made it clear he intended invoking the provisions of Rule 53.

[15] Respondent also sought to argue the merits of the main application and in the process sought to introduce further evidence regarding his claims. Whilst he had every reason to show that, the applicants did not have a bona fide defence to his claim, it was not appropriate for him to introduce further evidence. He also tried to distance himself from attorney Mili’s address by saying Mili attorneys were not his attorneys. He conceded however that their address was used as that of a correspondent in Grahamstown – as a ‘post box’ so to speak. In my view therefore he cannot disavow correspondence that was sent by the first applicant to this address.

[16] Mr Zilwa for the applicants submitted that the respondent having invoked Rule 53, he was obliged to inform the applicants that he was waiving his right to be provided with the record of the impugned decision/s. There is merit in this submission. I would venture to say the respondent, in the event of deciding to waive his right for whatever reason, be it to ensure that proceedings are finalised expeditiously and not wanting to engage in the exchange regarding the appropriateness or otherwise of his notice of motion, or not wanting to endeavour to get his notice of motion to comply with Rule 53, he was obliged to amend his notice of motion to dispense with the provision of the record and to set a new timetable for filing of notice of opposition and answering papers other than the one provided for in Rule 53. In other words, to revert back to procedure laid down in Rule 6 that governs applications.

[17] I am satisfied that applicants have succeeded in showing good cause for the granting of their application, have given a reasonable

explanation for their default in filing their opposing papers.

[18] The applicants seem to have a bona fide defence to respondent’s claim regarding the existence or otherwise of positions of traditional leadership in both right hand houses of Nene and that of amaNdungwana.

[19] Accordingly:

1. The judgment and order that were granted in respondent’s favour on the 29 October 2015 under Case Numbers 4009/2015 and 4010/2015 respectively are hereby rescinded.

2. The applicants are granted leave to file their notices to oppose relief sought in the main applications within five (5) days of this order and file their answering affidavits within thirty (30) days of filing their notices to oppose the main application.

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

_______________

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicants : Adv: PHS Zilwa SC

THE STATE ATTORNEY

C/o MASEKO TILANA INCORPORATED

29 African Street

GRAHAMSTOWN

Tel.: 046 – 622 2390

Ref.: 637/15-P2 (Mr Ngwenya)

For the Respondent : Mr Bantubonke Nduna

Instructed by :

RESPONDENT IN PERSON

14 Hope Street

Tel.: 083 881 2787 bantu@telkomsa.net

Ref.: Mr B Nduna

Date Heard : 5 May 2016

Date Reserved : 5 May 2016

Date Delivered : : 5 July 2016