King Sabata Dalindyebo Local Municipality v Zwelitsha
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Potgieter J |
| Judgment Date | 13 June 2023 |
| Citation | 2023 JDR 2183 (ECM) |
| Hearing Date | 24 April 2023 |
| Docket Number | CA78/2022 |
| Court | Eastern Cape Division |
Potgieter J:
2023 JDR 2183 p2
Potgieter J
Introduction
This is an appeal against the refusal by Matebese AJ (“the court a quo”) on 3 February 2022 of an application for rescission of a default judgement granted against the appellant (“the Municipality”) on 17 November 2020 by Dukada AJ.
The court a quo granted leave to appeal on 31 May 2022 to the Full Court in respect of a limited issue only relating to conflicting judgements in respect of Rule 23(m) of the Rules Regulating the Conduct of the Proceedings of the Eastern Cape Division of the High Court of South Africa (“Eastern Cape Rules”). The Supreme Court of Appeal (“SCA”) subsequently granted leave to appeal on 11 August 2022 to the Full Court against the entire order of the court a quo.
Brief Background
The background briefly is that the respondent was employed on 23 May 2005 by the Municipality as an Inspector in the Department of Safety and Security at its Mthatha offices. During June 2006 he was appointed as the Acting Assistant Security Manager with effect from 1 June 2006. It was agreed that he would receive an acting allowance representing the difference between his normal salary and the commencing salary of an Assistant Security Manager. This allowance was paid intermittently and was completely stopped during August 2019. As a result, the respondent launched proceedings for the reinstatement of the allowance. The papers were served on the Municipality who failed to give notice of opposition. The matter was then set down without any notice to the Municipality and the relief being sought was granted by default to the respondent by Dukada AJ on 17 November 2020 as indicated. The costs of the application, which were granted in favour of the respondent, were taxed and recovered from the Municipality. The latter brought a rescission application in respect of the order of Dukada AJ approximately at the same time that the respondent took steps to obtain a contempt of court order in respect of the remaining relief granted by Dukada AJ which the Municipality had failed to
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comply with. As indicated, the rescission application was dismissed by Matebese AJ which in turn spawned the present appeal.
Merits
There are various grounds set out in the notice of appeal for the Municipality’s contention that the default judgement was erroneously sought or granted as contemplated in rule 42(1)(a) [1] . However, the matter can be disposed of on a limited issue relating to the setting down of the default judgement before Dukada AJ arising from non-compliance with the provisions of Uniform Rule 6(5)(b)(iii) and Eastern Cape Rule 23(m). I proceed to deal with that issue.
(i) Non-compliance with rule 6(5)(b)(iii)
The notice of motion in respect whereof default judgement was granted was defective in the following respects. It failed to comply with rule 6(5)(a) which requires that applications must be brought on notice of motion as near as may be in accordance with Form 2(a) of the First Schedule of the Uniform Rules. The cause of such non-compliance is the failure to give effect to the requirement of rule 6(5)(b)(iii) that the applicant ‘must further state that if no . . . notification [to oppose] is given the application will be set down for hearing on a stated day, not being less than 10 days after service on the said respondent of the said notice’ (emphasis added). The Municipality was therefore not given notice of the ‘stated day’ on which the relief would be sought against it should it fail to give notice of opposition. This much is common cause between the parties. The actual issue is the effect of such non-compliance.
The notice of motion complied in the remaining respects with Form 2(a). It accordingly was not required to nor did it state the hearing date at the commencement of the notice
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as applies in the case of ex parte applications in terms of rule 6(4)(a) read with Form 2. The upshot of all this was that the notice of motion did not provide any date on which the application would be moved. The Municipality was thus not notified when the matter would be heard in court. The respondent did prepare a notice of set down that contained the date of the hearing, but it was not served on the Municipality. I will revert to the latter issue.
The court a quo held that the non-compliance with rule 6(5)(b)(iii) was inconsequential and that the respondent was entitled in the circumstances to set the matter down and to obtain judgement without notice to the Municipality. It held as follows in this regard:
. . . In my view the present non-compliance, complained about by the applicant, falls in the category that can be condoned by a court. It is not visited with a nullity. That is clear from the purpose of the rule which, in the core, is to afford the respondent an opportunity to oppose the application by filing a notice to oppose within the prescribed time and by filing an opposing or answering affidavit, where so advised. This is to honour the age old audi principle.
However, once a respondent, like the applicant in casu, has elected not to file a notice to oppose that clearly signals an intention not to oppose the matter. The failure to indicate a date on which the matter will be heard in the notice of motion has no external effect. It does not deprive him of any procedural right. His election not to oppose the matter remains binding on him irrespective.
I accordingly disagree with the applicant’s argument that the provision of the rule is peremptory such that non-compliance results in a nullity. I also disagree with the argument that the failure constitutes an irregularity that would entitle the applicant to rescission under rule 42 of the Uniform rules of court.
In my view the respondent was procedurally entitled to set down the matter in the manner he did. He was therefore procedurally entitled to the judgement or order which he obtained by default on 17 November 2020. The applicant, who had not filed any notice to oppose after having been afforded fifteen days to do so, was not procedurally entitled to be served with a notice of set down by the respondent.
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It is trite that a judgement to which a party is procedurally entitled cannot be considered to have been granted erroneously by reason of facts of which the judge who granted the judgement, as he was entitled to do, was unaware.”
(emphasis supplied)
Mr Kunju SC, who appeared on behalf of the Municipality together with Ms Gqetywa, submitted that the court a quo erred in finding that the respondent’s non-compliance with rule 6(5)(b)(iii) was inconsequential and had no external effect. He submitted that the rule gives effect to the fair trial rights enshrined in the Bill of Rights and was enacted for the benefit of respondents in motion proceedings. The relevant provision of the rule was not complied with by the respondent which amounted in this instance to a breach of the Municipality’s fair trial rights.
Mr Zono, who appeared on behalf of the respondent, submitted that the Municipality was given due notice of the application by means of the service of the papers upon it. The Municipality elected not to exercise its right to oppose the application and is now raising purely technical objections motivated by opportunism. Given the fact that the application was not opposed the respondent was entitled to set the matter down in terms of rule 6(5)(c) without notice to the Municipality. The court order was served on the Municipality and it partly complied with the order by paying the respondent’s taxed costs. The rescission application was prompted by a contempt of court application launched by the respondent in respect of the Municipality’s failure to comply with the rest of the relief granted in favour of the respondent. In the present matter, the respondent complied with the requirement of fairness by affording the Municipality the requisite period to oppose the application, which it elected not to do. The omission of a ‘stated day’ for hearing the matter if it is unopposed was not fatal where the Municipality was afforded sufficient opportunity to oppose the application. The purpose of rule 6(5)(b)(iii) was to afford the respondent an opportunity to oppose the application by filing the notice of opposition and answering affidavit, which...
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