Van Rooyen N.O and Another v Mokwena and Others (2064/2021) [2021] ZALMPPHC 23 (18 May 2021)

Van Rooyen N.O and Another v Mokwena and Others (2064/2021) [2021] ZALMPPHC 23 (18 May 2021)

The court found that the order granted by Phathudi J was invalid as it breached the audi alteram partem rule and section 34 of the Constitution. The judge had directed parties to address only the issue of urgency and then proceeded to grant relief on the merits without hearing argument, which constituted a violation of the right to a fair hearing. The conduct amounted to judicial misdirection and was declared void and of no force and effect. The court held that a ruling on urgency is not appealable, but the granting of substantive relief without hearing the parties was a grave error. The applicants and supporting respondents were entitled to costs, and the first respondent was ordered to...

Citation
[2021] ZALMPPHC 23
Parties
Applicant: Adriaan Willem Van Rooyen NO; Applicant: Mmabatho Shirley Motimele NO; Respondent: Morapedi Roy Mokwena; Respondent: Tumi Mokwena Incorporated; Respondent: Eberhard Bertelsmann; Respondent: Sthembiso Bethuel Bosch NO; Respondent: Xolile John Bosch NO; Respondent: Master of the High Court, Polokwane; Respondent: Legal Practice Council
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
18 May 2021
Case Number
2064/2021
Procedural Posture
Urgent Application / Application to Set Aside Prior Urgent Order on Constitutional and Procedural Grounds
Outcome
The order granted by Phathudi J on 1 April 2021 is declared invalid and of no force and effect due to breach of constitutional and procedural requirements.
Judges
Makume
Legal Topics
Audi Alteram Partem, Section 34 Constitution, Urgent Interdict, Liquidation Proceedings, Fair Hearing, Judicial Misdirection
Civil Procedure Constitutional Law Commercial and Corporate Audi Alteram Partem Section 34 Constitution Urgent Interdict Liquidation Proceedings Fair Hearing +1 more

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Parties

Adriaan Willem Van Rooyen NO

Applicant

Mmabatho Shirley Motimele NO

Applicant

Morapedi Roy Mokwena

Respondent

Tumi Mokwena Incorporated

Respondent

Eberhard Bertelsmann

Respondent

Sthembiso Bethuel Bosch NO

Respondent

Xolile John Bosch NO

Respondent

Master of the High Court, Polokwane

Respondent

Legal Practice Council

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Prior Urgent Order on Constitutional and Procedural Grounds

Legal Issues

  1. 1 Whether the order granted by Phathudi J on 1 April 2021 is invalid due to breach of the audi alteram partem rule and section 34 of the Constitution.
  2. 2 Whether the urgent application was properly determined without hearing parties on the merits.
  3. 3 Whether the court had authority to grant relief beyond the issue of urgency.

Ratio Decidendi

The court found that the order granted by Phathudi J was invalid as it breached the audi alteram partem rule and section 34 of the Constitution. The judge had directed parties to address only the issue of urgency and then proceeded to grant relief on the merits without hearing argument, which constituted a violation of the right to a fair hearing. The conduct amounted to judicial misdirection and was declared void and of no force and effect. The court held that a ruling on urgency is not appealable, but the granting of substantive relief without hearing the parties was a grave error. The applicants and supporting respondents were entitled to costs, and the first respondent was ordered to...

Court Disposition

The order granted by Phathudi J on 1 April 2021 is declared invalid and of no force and effect due to breach of constitutional and procedural requirements.

Orders

  • The order of Phathudi J dated 1 April 2021 is set aside as invalid.
  • The applicants and the fourth and fifth respondents are awarded costs against the first respondent.