Rakgoale v Premier, Northern Cape Province and Another (40/2020) [2020] ZANCHC 88 (18 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

CASE NO: 40/2020

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

TEBOGO ISAAC RAKGOALE

Applicant

and

THE PREMIER, NORTHERN CAPE PROVINCE

First Respondent

THE DIRECTOR-GENERAL, NORTHERN CAPE PROVINCE Second Respondent

JUDGMENT

CHWAROAJ:

INTRODUCTION

[1] On 13 January 2020, the present application was launched in terms of which the applicant sought relief in the following terms:

"1. That the order granted by the above Honourable Court in favour of the Respondents on 20th November 2009 under case number 1236/2009 be set aside;

2. That the Respondents pay the costs of this application;

3. Further and/or alternative relief"

[2] The application is opposed by the respondents.

BACKGROUND

[3] The applicant is a former employee of the Northern Cape Provincial Administration. During the period 2007 until 2009, he and his co-accused faced fourteen counts of fraud before the Kimberley Regional Court under case RC 2615/2007.The charges were subsequently withdrawn against them.

[4] During or about 12 March 2009, the applicant's attorneys at the time, Mankoe Incorporated of Polokwane, Limpopo Province, entered into a written agreement with the Northern Cape Provincial Administration in terms of which the latter agreed to provide financial assistance towards the applicant's legal costs in the criminal case referred to above. The agreement was signed by Ms M Marais-Martin on behalf of the provincial administration and Mr Lucas Mankoe, on behalf of Mankoe Incorporated. Though the face of the agreement depicts the name of the applicant as being a party thereto, he did not sign the agreement.

[5] In terms of the agreement, the provincial administration agreed to pay an amount equal to fifty percent (50%) of the bill of costs presented by Mankoe Incorporated pending the finalisation of taxation. The balance, if any, was to be paid after taxation of the bill of costs.

[6] On or about 18 March 2009 and in line with the agreement entered into between the parties, the provincial administration paid Mankoe Incorporated an amount of R381 615-00. The bill of costs was taxed on l June 2009 in the amount of R807 472-22 and consequently the balance payable to Mankoe Incorporated was an amount of R425 857-22.

[7] Upon being presented with the taxed bill for payment of the balance, the provincial administration became aware that Mr Lucas Mankoe was a co-accused with the applicant in the said criminal proceedings. The provincial administration formed a view that the financial assistance agreement concluded with the applicant and his attorneys was induced by misrepresentation.

[8] This resulted in the provincial administration instituting an action out of this Court under case number 1192/2009 to assail the agreement and claim the money already paid to Mankoe Incorporated. The provincial administration is represented by the Premier and the Director-General as plaintiffs and Mr Moditi Lucas Mankoe together

with Mankoe Incorporated were initially cited as the only defendants. The late Advocate Richard Leseme, who was the applicant's counsel on brief in the criminal trial, and the applicant were subsequently joined as co-defendants.

[9] On or about 15 July 2009 and in an effort to protect its interests, the provincial administration, represented by the Premier and the Director­ General as applicants, launched an application seeking

an interim interdict to prevent Mr Moditi Lucas Mankoe and Mankoe Incorporated, as respondents, from enforcing the taxed bill in the amount of R425 857-22 pending the finalisation of the action instituted under case number 1192/2009. The application was opposed

and an interim interdict was subsequently granted by Williams J on 20 November 2009 in the following terms:

"1. The respondents be and is interdicted and restrained from claiming the monies due to them in terms of an agreement entered into between the parties dated 12th March 2009, and/or alternatively, issuing a writ against the applicants for the aforementioned monies pending the finalization of case no. 1192/09".(sic)

CONTENTIONS BY THE PARTIES

[10] A period in excess of ten years has elapsed since the granting of the interim interdict by Williams J and the action has not been finalised. This has caused much consternation and led the applicant to launch the present application as he is of the view that the failure and inaction on the part of the respondents to ensure that the action instituted under case number 1195/2009 is set down for hearing and finalised effectively deprives him of finality in the payment of the taxed costs to his attorney. This apparent delay to set the matter down for trial occurs despite the matter having been declared trial ready on 2 August 2017.

[11] In launching this application, the applicant propounds that he places reliance on the common law and inherent powers bestowed on this Court to set aside an interim interdict and thus disavowed any reliance on any of the provisions of either rule 31 or rule 42 of the Uniform Rules of Court.

[12] The respondents contend, in limine, that the applicant has no standing to launch this application as he was not a party in the application that served before Williams J where the interim interdict was granted in their favour. On the merits, the respondents are of the view that the applicant has not made out a case for the setting aside of the interim interdict on common law grounds for rescission.

[13] The respondents further contend that the apparent delay to obtain the trial date for the hearing of the action was attributable to their previous attorney of record who has since been replaced by the State Attorney. They further argue that under circumstances where there was an apparent delay and inaction on the part of the plaintiffs, any of

the defendants in the action, including the applicant herein, could have taken steps to set the matter down for trial.

ISSUE FOR DETERMNATION

[14] Having outlined the relevant background facts to the dispute between the parties, this Court is thus called upon to determine two issues, namely the standing of the applicant to institute this application and whether the applicant has made out a case for the setting aside of the interim interdict granted on 20 November 2009 by Williams J.

DISCUSSION

Applicant's locus standi

[15] The applicant was not a party in the application for an interim interdict that served before Williams J. It is further common cause that the subject matter of the action instituted under case number 1192/2009 relates to the legal costs that the provincial administration agreed to pay towards the applicant's attorneys for their services in the criminal trial involving the applicant. The applicant is one of the defendants in the said action.

[16] It is trite that in order to establish locus standi, an applicant must demonstrate that he has an interest in the subject-matter of the judgment or order and that he would have been

entitled to intervene in the original application upon which the order was granted.[1]

[17] Since the applicant is a co-defendant in the action which the respondents have instituted and which is being referred to in the interim order, he was entitled to have intervened in the application for an interim order that served before Williams J on that basis.

[18] Consequently and on the basis of the authorities referred to above, I find that the preliminary point taken by the respondents cannot be sustained. In the premises, I find that the applicant has the requisite standing to have launched this application.

Setting aside of the interim order

[19] In his attempt to show good cause for the relief sought, the applicant sketches the background to the dispute between the parties dating back from 8 July 2009 when the respondents instituted an action against his previous attorneys for the setting aside of the financial assistance agreement and payment of the money already disbursed to his attorneys.

[20] Subsequently, the respondents then launched an application on 16 July 2009 seeking an interim relief which was granted on 20 November 2009. Almost two years later and on 28 June 2011, the respondents brought an application for the joinder of the applicant and the late Adv. Leseme as co­ defendants in the action. Some six years later, the action was declared to be ready for trial through a certificate issued on 2 August 2017.

[21] The applicant contends that since the institution of the action in 2009 and the granting of the interim relief in November 2009, the respondents have adopted a dilatory stance to prosecute the trial action to its finality. In his view, this stance is simply adopted by the respondents to deny him, presumably through his attorneys, from issuing a warrant against the respondents for payment of the taxed bill of costs.

[22] As indicated above, the applicant eschews reliance on the provisions of rule 35 or rule 42 of the Uniform Rules of Court. He propounds that this Court has inherent powers to set aside an interim order under circumstances where

the said order is utilised by the other party to frustrate the implementation and recovery of the taxed bill of costs.

[23] The respondents are of the view that the applicant has not made out a case for the relief he seeks. They argue that the applicant, as a co­ defendant in the pending action, was also entitled to have ensured that the trial action is timeously prosecuted, especially after the issuance of a certificate of trial readiness and thus cannot attribute the blame for the apparent dilatory stance solely on them. It is further submitted that to the extent that the application is a

rescission brought in terms of the common law, the applicant has not established sufficient cause or good cause to be entitled to the relief.

[24] As a point of departure, it is imperative to restate the words of Prest, in his seminal work on interdicts, where he made the following observation[2]:

"An interlocutory interdictory order is never an end in itself; it is always a means to an end. An interim interdict is obviously directed at an immediate aim, but the attainment of that aim is only temporary, and must be related to an ultimate objective, which has the effect of bringing finality to the matter..."

[25] It follows that the granting of an interim interdict is intended to act as a temporary measure pending the final determination of the rights of the respective parties and can therefore not be utilised as a permanent order.

[26] Section 173 of the Constitution provides for the inherent powers of this Court to regulate and protect its own process, including developing the common law, having due regard to the interests of justice. It is against this constitutional imperative that the applicant's case has to be adjudicated upon in finding an appropriate remedy.

[27] The present case is neither a variation nor a rescission application brought pursuant to either the rules of court or the common law. This is an application for the exercise of this Court's inherent powers recognised in terms of the common law and codified in section 173 of the Constitution. It is an established principle of our law that the court's inherent powers, especially where there are rules providing for a particular process, are only exercised sparingly and upon strong grounds having been advanced.[3]

[28] The court's inherent powers can only be exercised over a matter which is properly before it and upon which it has jurisdiction. In Oosthuizen v Road Accident Fund[4], the inherent powers of a court were explained in the following terms:

"It follows that a high court can only exercise its inherent jurisdiction in relation to the regulation of its own process when confronted with a case over which it already has jurisdiction and when faced with procedures and rules of the court which do not provide a mechanism to deal with an instant problem. A court will, in that case, be entitled to fashion the means to deal with the problem to enable it to do justice between the parties."

[29] On a proper analysis of the background facts relevant to this matter, it is apparent that this case calls out for intervention by this Court to ensure that the interim order that was granted on 20 November 2009 does not remain an indefinite order. This will also ensure that necessary steps are undertaken to obtain the date of trial in the pending action.[5]

CONCLUSION

[30] In my view, the most suitable and appropriate form of intervention in the present matter is to grant an order modifying the interim order granted by Williams J by attaching a condition to the effect that the plaintiffs in the action must apply for a trial date within a specified period, failing which the interim order will lapse. The imposition of conditions to an interim order is a matter within the discretion of a court exercising its inherent powers to modify and/or vary an existing interim order.[6]

[31] Resultantly, the modified order will most probably encourage any of the parties to the action to approach the Judge President or his designate with a request for allocation of an earlier trial date, given the history of the litigation between the parties.

COSTS

[32] The applicant seeks a punitive costs order against the respondents. It is trite that the determination of costs is a matter for judicial discretion having due regard to the success and conduct of the parties in the ensuing litigation. Having duly considered the facts in this matter, I am of the firm view that there is no basis for a punitive costs order.

[33] It is apparent that all parties to the action were remiss in failing to obtain a trial date, especially after a certificate of trial readiness was issued in August 2017. In the premises, since the applicant is partly successful, it is just and equitable that each party must bear its own costs.

ORDER

[34] In the result, I accordingly make the following order:

1. The order granted by Williams J on 20 November 2009 under Case Number 1236/2009 is hereby modified by the addition of paragraph 2 thereto in the manner set out below and the whole order is to read as follows:

"1. The respondents be and are interdicted and restrained from claiming the monies due to them in terms of an agreement entered into between the parties dated 12th March 2009, and/or alternatively, issuing a writ against the applicants for the aforementioned monies pending the finalization of case no. 1192/09".

2. The applicants are directed to apply for a trial date in respect of the action instituted under Case Number 1192/09 by no later than Friday, 30 October 2020, failing which the interim order encapsulated in paragraph l above shall lapse."

2. Each party is to pay its own costs.

O.K.CHWARO

ACTING JUDGE OF THE HIGH COURT

DATE OF HEARING: 11 September 2020

DATE OF JUDGMENT: 18 September 2020

APPEARANCES:

For the Applicant: Mr. C. Kgotlagomang

Magoma Attorneys

Kimberley

For the Respondents: Ms N. Phakama

The State Attorney

[1] Segal and Another v Segil 1992 (3) SA 136 (C) at 141C and Hartland lmplemente (Edms) Bpk v Enal Eiendomme BK en Andere 2002 (3) SA 652 (NC) at 663E

[2] CB Prest, The Law and Practice of Interdicts, Juta, 1996, p329

[3] Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis & another 1979 (2) SA 457 (W) at 462H-463B

[4] 2011 (6) SA 31 (SCA) at para 20

[5] See in general Chopra v Avalon Cinemas SA (Pty) Ltd and Another 1974 (1) SA 469 (D & CLD) at 472H-473A and Birnam (Suburban) (Pty) Ltd and Others v Falcon Investments Ltd 1973 (3) SA 838 (WLD) at 854G-H

[6] See in general Shoprite Checker Ltd v Blue Route Property Managers (Pty) Ltd 1994 (2) SA 172 ( C) at 184H- 185D