Ratlou Local Municipality v Sejake and Another (UM137/2021) [2021] ZANWHC 20 (6 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST HIGH COURT,

MAFIKENG

CASE NUMBER: UM 137/2021

REPORTABLE: NO

CIRCULATE TO JUDGES: NO

CIRCULATE TO MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:-

RATLOU LOCAL MUNICIPALITY

APPLICANT

and

SEBATANA CASSIUS SEJAKE FIRST

RESPONDENT

FIRSTRAND NATIONAL BANK SECOND

RESPONDENT

t/a FIRST NATIONAL BANK

JUDGMENT

PETERSEN AJ

Introduction

[1] This matter came before me as an urgent application on the 05th July 2021, having been postponed from the opt July 2021.

[2] The relief sought in the notice of motion is formulated as follows :

"1. That this application be heard as one of urgency in terms of the provisions the Uniform Rules of this Court, Rule 6(12), and that non-compliance by the Applicant with the time limits, forms and service be condoned.

2. That the warrant of execution, attachment in execution or the removal of items against the Applicant issued under case number: 255/2021 be stayed pending the finalization of the Application for rescission of judgment by the Applicant.

3. That the stay in execution against the first applicant under case number: 255/2021, intended for 2021 be stayed pending the finalization of the application for rescission of judgment by the Applicant.

4. Further and or alternative relief.

5. Cost of this application in the event of opposition."

Purpose of the application

[3] The applicant submits that it seeks to stay a writ of execution issued by or on behalf of the first respondent for a payment order, costs and expenses against the applicant pursuant to an order of this Court under case number 255/2021 on the 25th May 2021. The order was granted by default against the applicant, following the applicant's failure to oppose the action which was instituted in February 2021.

[4] The applicant seeks the stay of the execution of the writ pending conclusion of a review application pending in this Court under case number M290 2021.

[5] The applicant emphasizes three (3) dates on which this Court is implored to consider the application. The application for default

judgment was served on the applicant on the 14th April 2021. The review application was served on the first respondent on the 11th May 2021. On the 25th May 2021 default judgment was granted in favour of the first respondent. The applicant contends that having regard to these three (3) dates, the first respondent, notwithstanding knowledge of the review application proceeded with default judgment against the applicant.

Urgency

[6] In terms of Rule 6(12) of the Uniform Rules of Court and in particular Rule 6(12)(b) an applicant in every affidavit in support of an urgent application:

"...must set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that the applicant could not be afforded substantial redress at a hearing in due course."

[7] In Commissioner, SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; [2006] 2 All SA 565 (SCA); 2006 (4) SA 292 (SCA), the SCA dealt decisively with the issue of urgency:

"[11] Urgency is a reason that may justify deviation from the times and forms the Rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the Rules of Court permit a Court (or a Judge in chambers) to dispense with the forms and service usually required and to dispose of it "as to it seems meet" (Rule 6(12)(a)) . This in effect permits an urgent applicant, subject to the Court's control, to forge its own Rules (which must "as far as practicable be in accordance with" the Rules). Where the application lacks the requisite element of degree of urgency, the Court can, for that reason, decline to exercise its powers under Rule 6(12)(a) . The matter is then not properly on the Court's roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance."

[8] The applicants' set out the grounds on which urgency in this application are premised at paragraph 75 of the founding affidavit. The applicant contends that the warrant of execution was served on the bank on the 15th June 2021. In the absence of proof of service of the application to stay execution the bank will make the unwarranted payment to the first respondent. The applicant on the 17th June 2021 delivered a letter to the attorneys of the first respondent requesting the first respondent to cease and desist from executing the default judgment, which was met with resistance.

[9] Notably the applicant fails to deal pertinently with the reasons why the applicant could not be afforded substantial redress at a hearing in due course as required by Rule 6(12)(b).

[10] The stay of execution of the writ is inextricably linked to the pending review application. The applicant deals extensively with the history giving rise to the review application in the founding affidavit and prospects of success of the review application.

However, as stated aforesaid the applicant fails to pertinently furnish reasons as required by Rule 6(12)(b) why it would not be

afforded substantial redress at a hearing in due course. Clearly, the review application is an application in terms of which the applicant may be given substantial redress, if successful. The applicant would have a claim against the first respondent for any disbursements made pursuant to the default judgment, if successful in the review application.

Conclusion

[11] The applicant has failed to make a case for urgency within the prescripts of Rule 6(12)(b).

Order

[12] In the result:

The application is struck from the roll for lack of urgency with costs.

A H PETERSEN

JUDGE OF THE HIGH COURT OF

SOUTH AFRICA,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

FOR THE APPLICANT: ADV. T. SEBOKO WITH ADV. N. NTINGANE

INSTRUCTED BY: PHAMBANE MCKONE INCORPORATED

FOR THE FIRST RESPONDENT: MR. M. MARUMO

MOTHUSI MARUMO ATTORNEYS

HEARD ON: 05 JULY 2021

JUDGMENT HANDED DOWN: 06 JULY 2021 BY EMAIL TO THE PARTIES at 12h00pm