Oosthuizen v Mijs

• Jurisdiction: South Africa
• Judge: Wepener AJ
• Judgment Date: 22 February 2009
• Citation: 2009 (6) SA 266 (W)
• Docket Number: 2007/9053
• Hearing Date: 21 February 2009
• Counsel: JL Engelbrecht for the applicant. AP Bruwer for the respondent.
• Court: Witwatersrand Local Division

Wepener AJ:

The applicant launched an application for reconsideration of an order granted against him in his absence on an urgent basis. The application for reconsideration is brought in terms of rule 6(12)(c) of the J Uniform Rules of Court, which reads as follows:

Wepener AJ

'A person against whom an order was granted in his absence in an A urgent application may by notice set down the matter for reconsideration of the order.'

In Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W) at 1182B - E, Joffe J interpreted this rule as follows:

'In terms of Rule 6(12)(c) of the Uniform Rules of Court, a party B against whom an order was granted in his absence in an urgent application may, by notice, set the matter down for reconsideration of the order. The Rule envisages a redetermination of the matter. The Court that entertains the application in the absence of the respondent does not have the benefit and advantage of argument from the respondent. Accordingly, when the application is re-enrolled by the C respondent for consideration, it is a redetermination with the benefit of argument from the respondent. See, in this regard, generally, Lourenco and Others v Ferela (Pty) Ltd and Others (No 1) 1998 (3) SA 281 (T) at 290D. In addition to the Rule of Court, para 7.1 of the Court order of 28 September 1999 gave the first and third respondents the right to apply to Court on not less than 24 hours' notice for a variation or D setting aside of the order. This provision in the Court order seems to envisage that an application is to be launched by the respondent whereas the Rules, in particular Rule 6(12)(c), do not require such an application. Where Rule 6(12)(c) is utilised, the original application is reconsidered on its own without reference to anything else.'

To hold that the court is confined only to the original application without E reference to anything else is in conflict with various decisions on this point. In ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) ([1996] 4 All SA 58), Farber AJ said this at 486H - 487D (60j - 61e All SA):

'The Rule has been widely formulated. It permits an aggrieved person F against whom an order was granted in an urgent application to have that order reconsidered, provided only that it was granted in his absence. The underlying pivot to which the exercise of the power is coupled is the absence of the aggrieved party at the time of the grant of the order.

Given this, the dominant purpose of the Rule seems relatively plain. It G affords to an aggrieved party a mechanism designed to redress imbalances in, and injustices and oppression flowing from, an order granted as a matter of urgency in his absence. In circumstances of urgency where an affected party is not present, factors which might conceivably impact on the content and form of an order may not be known to either H the applicant for urgent relief or the Judge required to determine it. The order in question may be either interim or final in its operation. Reconsideration may involve a deletion of the order, either in whole or in part, or the engraftment of additions thereto.

The framers of the Rule have not sought to delineate the factors which might legitimately be taken into reckoning in determining whether any I particular order falls to be reconsidered. What is plain is that a wide discretion is intended. Factors relating to the reasons for the absence, the nature of the order granted and the period during which it has remained operative will invariably fall to be considered in determining whether a discretion should be exercised in favour of the aggrieved party. So, too, will questions relating to whether an imbalance, J

Wepener AJ

A oppression or injustice has resulted and, if so, the nature and extent thereof, and whether redress is open to attainment by virtue of the existence of other or alternative remedies. The convenience of the protagonists must inevitably enter the equation. These factors are by no means exhaustive. Each case will turn on its facts and the peculiarities inherent therein.'

B This passage was referred to with approval by Traverso DJP in National Director of Public Prosecutions v Braun and Another 2007 (1) SA 189 (C) (2007 (1) SACR 326; [2007] 1 All SA 211) at 194A - E; and also by Southwood J in Lourenco and Others v Ferela (Pty) Ltd and Others (No 1) 1998 (3) SA 281 (T) at 290E - H. In the Lourenco matter Southwood J C allowed affidavits to be filed. (See judgment at 287E - F and 288C.) I am of the view that the only manner in which a court can weigh up the various factors is if evidence is placed before the...