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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 032/2004

PARTIES: GREAT KEI MUNICIPALITY Applicant

and

DANMIST PROPERTIES CC Respondent

REFERENCE NUMBERS -

• Registrar: 496/2004

• Magistrate:

• Supreme Court of Appeal/Constitutional Court:

DATE HEARD: 9 September 2004

DATE DELIVERED: 10 September 2004

JUDGE(S): Pickering J

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): TJM Paterson

• for the accused/respondent(s): JJF Hefer

Instructing attorneys:

• Applicant(s)/Appellant(s): Neville Borman & Botha

• Respondent(s): Netteltons

CASE INFORMATION -

• Nature of proceedings : Application

• Topic: Requirements for rescission of court order

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 496/2004

In the matter between

GREAT KEI MUNICIPALITY Applicant

AND

DANMIST PROPERTIES CC Respondent

JUDGMENT

PICKERING J:

This is an application for rescission of an order granted by me on 1 April 2004 under case no 191/2004. The order was granted in favour of the present respondent in default of appearance by the present applicant. A point in limine regarding the authority of the deponent to the founding affidavit to bring the application for rescission on behalf of the present applicant can readily be disposed of. The application for rescission was brought in the name of the applicant, Great Kei Municipality, by the acting Municipal Manager, a certain Mr. Dicks, in the absence overseas of the Municipal Manager and the Mayor of the applicant. In bringing this application Dicks averred that because of the urgency of the matter it was not possible to wait for the return of the Municipal Manager or for applicant formally to convene in order to pass the requisite resolution. He stated that he was accordingly acting in the interests of the applicant in bringing such application. Dicks, however, clearly had no authority to institute proceedings on behalf of applicant nor to act as a negotiorum gestor in that regard. See Gcali N.O. and Another v Member of the Executive Council for Housing and Local Government, Eastern Cape and Others 1996 (4) SA 456 (TK). It is not, however, necessary to deal with this issue any further because, before respondent’s challenge to the authorisation of Dicks was received by applicant, his actions had already been approved and ratified by a meeting of applicant’s council. In the circumstances, Mr. Hefer, who appeared for respondent, properly conceded, with reference to the case of Smith v Kwananqubela Town Council 1999 (4) SA 947 (SCA), that the ratification by applicant’s council of the unauthorised actions of Dicks has given the necessary legal effect to those actions.

The present application is brought in terms of Rule 31 (2)(b), alternatively Rule 42 (1)(a) of the Uniform Rules of Court. In the view that I take of the matter it is only necessary to deal with the application in terms of Rule 42.

The proceedings under case no 191/2004 (“the main application”) which culminated in the granting by me of the order which is the subject of the present application, were launched by respondent, Danmist Properties cc, against an entity described as being the “Groot Kei Plaaslike Munisipaliteit”. In the founding affidavit in the main application this entity is described as follows:

“Die respondent is Groot Kei Plaaslike Munisipaliteit, ‘n plaaslike owerheid opgerig en geinkorporeer ooreenkomstig die wette van die Republiek van Suid Afrika met regspersoonlikheid geklee, met adres te Frontier Straat 27, Kei Mond, Oos Kaap.”

It is now common cause that there has never in fact been an entity known as Great Kei Local Municipality. As appears from an affidavit filed on behalf of respondent by respondent’s Bloemfontein’s attorney, Mr. Jonker, he had been wrongly informed by applicant’s King William’s Town attorneys that the correct description of the present applicant was the Great Kei Local Municipality whereas its actual name is the Great Kei Municipality. It was formed on 6 December 2000 and took over all the assets and liabilities of the Kei Mouth Transitional Local Council on that date by virtue of Provincial Notice 651 of 19 September 2000 which was substituted by Provincial Notice 687 of 2 December 2000. On 6 December 2000 the Kei Mouth Transitional Local Council was disestablished. The offices of applicant’s municipal manager are furthermore not situate at 27 Frontier Street, Kei Mouth, but are in fact situate at the corner of Main and Station Streets, Komga this being applicant’s main place of business. The local municipal offices in Kei Mouth are situate at 27 Frontier Street.

The main application under case no 191/2004 was launched on 25 February 2004. Service of the relevant papers was effected by the deputy-sheriff, K.W. Heath. The return of service reads as follows:

“This is to certify that on the 2^nd day of March 2004 at 13h37 at 27 FRONTIER STREET, KEI MOUTH, being the MAIN PLACE OF BUSINESS OF THE RESPONDENT, GROOT KEI PLAASLIKE MUNISIPALITEIT, copy of the NOTICE OF NOTICE, AFFIDAVIT AND ANNEXURES, was duly served upon MRS. LAWRENCE, SECRETARY, a responsible person in the employ of THE RESPONDENT, GROOT KEI PLAASLIKE MUNISIPALITEIT, apparently not less than 16 years of age after the original document had been exhibited and the nature and exigency thereof explained to the said person.”

The aforementioned Mrs. Lawrence has attested to an affidavit in support of the application for rescission. She states therein that she is employed by applicant at its offices at 27 Frontier Street, Kei Mouth. She continues:

“On 2 March 2004 the sheriff served a copy of the papers in the main application on me over the lunch break and while I was at home at 1 Horizon Street, Kei Mouth. I then handed the copy served on me to Mr. Vermeulen, my superior. I had no further dealings with the papers in the matter.”

Mr. Vermeulen in his affidavit states that in the afternoon of 2 March 2004 he was handed a copy of the Notice of Motion and founding affidavit in the main application. He states that as these were not original papers he presumed that this copy was only for his information and that the original thereof would have been served at the Municipal Manager’s office in Komga. He accordingly did nothing further with the papers nor did he draw the attention of the Municipal Manager or anyone at his office thereto. It is not in dispute that the municipal manager was unaware of the institution of the proceedings in the main application until such time as the court order of 1 April 2004 was brought to his attention. Applicant accordingly avers that it was not in wilful default of appearance to defend and, furthermore, that the order of 1 April 2004 was erroneously granted.

An affidavit by the deputy sheriff was filed on behalf of respondent. In that affidavit the deputy sheriff states, inter alia, that he has been a duly appointed deputy sheriff since 1990 and has “on innumerable occasions” served process on the Great Kei Municipality in Kei Mouth. He states that he usually effected such service in Kei Mouth by serving process on Vermeulen who, so he states, he knows and “has always regarded (whether correctly or not is another matter) as the Municipal Manager” or, in Vermeulen’s absence, either on Mrs. Lawrence “a long-serving employee of Great Kei Municipality” and/or a Mrs. Curlewis.

He states that on 2 March 2004 he traveled from King William’s Town to Kei Mouth, arriving there after 13h00 only to find the Municipal offices closed for lunch. He had to return urgently to King William’s Town, some two hours distant from Kei Mouth, and could not wait until the offices re-opened at 14h00. He accordingly “repaired to the residence of Mrs. Lawrence and served a true copy of the application papers in case no 191/2004 on the said Mrs. Lawrence” at the time reflected in his return of service. He states that “the return of service is incorrect in one respect only, namely the service address.”

Rule 42(1)(a) reads as follows:

“The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary:

1. An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;”

In Bakoven Ltd v G.J. Howes (Pty) Ltd 1992 (2) SA 466 (E) Erasmus J held at 471 F - H that Rule 42(1)(a) of the Uniform Rules of Court is a procedural step designed to correct expeditiously an obviously wrong judgment or order. He stated that an order or judgment is “erroneously granted” when the Court commits an “error” in the sense of a “mistake in a matter of law appearing on the proceedings of the Court of record.” It followed, so he held, that a Court in deciding whether a judgment was “erroneously granted” is, like a Court of Appeal, confined to the record of the proceedings.

Erasmus J stated further at 471 G – H that in contradistinction to relief in terms of Rule 31 (2)(b) or under the common law, the applicant under Rule 42 (1)(a)need not show “good cause” in the sense of an explanation for his default and a bona fide defence. Once the applicant can point to an error in the proceedings, he is without further ado entitled to rescission. It is only when he cannot rely on an “error” that he has to fall back on Rule 31(2)(b) or on the common law in both of which latter instances he must show “good cause”. This latter conclusion of Erasmus J is, with respect, clearly correct. See too Hard Road (Pty) Ltd v Oribi Motors 1977 (2) SA 576 (W) at 578 G; De Sousa v Kerr 1978 (3) SA 635 (W); Tshabalala v Peer 1979 (4) SA 27 (T) at 30D.

In Stander and Another v Absa Bank 1997 (4) SA 873 (E) Nepgen J had occasion to consider the judgment in Bakoven’s case supra. Having done so he found that Erasmus J was clearly wrong insofar as he had held that a Court, in deciding whether a judgment was “erroneously granted”, is confined to the record of the proceedings. Nepgen J held that the Court was indeed entitled to have regard to facts which did not appear from the record of the proceedings, and of which the Court which had granted judgment had been unaware, in considering whether the order made had been erroneously granted in the sense referred to in Rule 42 (1)(a). In this regard he referred with approval to Nyingwa v Moolman N.O. 1993(2) SA 508 (Tk) where White J, in dealing with an application for rescission brought in terms of Rule 42 (1)(a), stated as follows at 510 G:

“It therefore seems that a judgment has been erroneously been granted if there existed at the time of its issue a fact of which the Judge was unaware, which would have precluded the granting of the judgment and which would have induced the Judge, if he had been aware of it, not to grant the judgment.”

In Tom v Minister of Safety and Security [1998] 1 All SA 629 (E) Erasmus J, however, again dealt with this issue and with the conflict between his decision in Bakoven’s case supra and that of Nepgen J in Stander’s case supra. Having done so, he was of the view that the decision in Stander’s case was wrongly decided and reiterated the views expressed by him in Bakoven’s case supra.

In Mutebwa v Mutebwa and another 2001 (2) SA 193 (Tk) Jafta J expressed the view that the decision in Bakoven's case supra was itself wrongly decided, stating that there was nothing in the language used in the Rule which indicated that the error must appear on the record of the proceedings before rescission could be granted. Surprisingly, although the judgment was delivered on 29 June 2000, the decision that the conclusion of Erasmus J in this regard was incorrect was reached without reference to either the Stander or the Tom cases, supra.

In Smith v Van Heerden [2002] 4 All SA 461 (C) Van Heerden J referred at 467

f – h to the conflicting approaches of the Courts to the proper application of Rule 42 (1)(a). At 467 h she stated as follows:

“Die huidige aansoek is voor my geargumenteer op die basis dat ek nie beperk is tot die inhoud van die rekord van die verrigtinge voor Jali R nie en dat ek wel geregtig is om feite waarvan Jali R onbewus was en ‘which, had he been aware thereof, would have induced him not to grant the order sought’, in oorweging te neem. Dit is ook myns insiens die korrekte benadering tot die toepassing van Reël 42(1)(a) en ek vereenselwig my met die redenasie van Nepgen R in die Stander saak (supra) in diè verband. Dit is ook die benadering tot Reël 42 (1)(a) gevolg deur my ampsbroeder, Van Reenen R in die Promedia Drukkers en Uitgewers saak (supra) te 421 D – E.”

The Promedia case, supra, is reported at 1996 (4) SA 411 (C).

Although these conflicting approaches were referred to in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) at 8 I – 9 B, Jones AJA found it unnecessary to deal therewith beyond stating, at 9 A – B, that “the conflict seems to me to obscure the real issue, which is to determine the nature of the error in question.”

I have given careful consideration to the conflicting views expressed on this issue. Having done so I am of the view, with respect to both Erasmus J and Nepgen J, that the reasoning of and conclusion reached by Nepgen J is clearly correct and I would respectfully align myself therewith as also with those decisions which followed or came to the same conclusion as that in Stander’s case, supra.

In my view therefore I am entitled to have regard to the averments contained in the affidavits filed of record in deciding whether the judgment was erroneously granted.

It is important in this regard to contrast what was placed before me with what the actual state of affairs was at the time the order was sought. The allegations contained in the papers that were placed before me led to the ineluctable conclusion that a local municipality existed with its main offices situate at 27 Frontier Street, Kei Mouth and that service of the relevant papers was effected at those offices in substantial compliance with the provisions of Rule 4 (1)(viii) and of s 115 (3) of the Local Government Municipal Systems Act No 32 of 2000.

Rule 4 (1)(viii) provides that where a local authority is to be served “service shall be effected by delivering a copy to the town clerk or assistant town clerk or mayor of such local authority…or in any manner provided by law.”

S 115 (3) of Act 32 of 2000 reads as follows:

“Any legal process is effectively and sufficiently served on a municipality when it is delivered to the municipal manager or a person in attendance at the municipal manager’s office.”

It now appears, however, that there is no such entity as the Great Kei Local Municipality and that the municipal offices at 27 Frontier Street, Kei Mouth are not the main offices of the actual municipality, namely the Great Kei Municipality. The municipal manager’s office is not situate at 27 Frontier Street, Kei Mouth but is situate at Komga. Furthermore, contrary to what is stated in the return of service, such service was in any event not effected at 27 Frontier Street but at the private residence of Mrs. Lawrence.

I interpose here state that the conduct of the deputy-sheriff is unfortunately worthy of censure. It is unacceptable that he should have furnished a return of service reflecting service at the municipal offices when in fact this was not so. His actions disregarded, in cavalier fashion, his statutory obligation to indicate in precise terms the manner in which service has been effected. In Wiehahn Konstruksie Toerustingmaatskappy (Edms) Bpk v Potgieter 1974 (3) SA 191 (T) the following was stated by Botha J at 196 G – 197 A:

“Wat hierdie relaas betref, moet ek sê dat ek dit uiters onrusbarend vind dat ‘n beampte in diens van die Adjunk-Balju ‘n relaas van betekening kan onderteken waarin dit as ‘n feit beweer word dat daar by die plek van betekening ‘n naambord was wat aangedui het dat dit die geregistreerde kantoor van die verweerder-maatskappy was, terwyl dit blyk dat hy daardie bewering gebaseer het op ‘n blote veronderstelling dat daar so ‘n naambord moes gewees het sonder dat hy kan onthou dat hy dit werklik waargeneem het. In hierdie Hof word feitelike bewerings in relase van betekening deur Adjunk-Balju’s en hulle beamptes sonder meer as korrek aanvaar, ‘n faktor wat van baie groot belang is in aansoeke om vonnis by verstek en ander onbestrede aansoeke wat daagliks in die Kamerhof voorkom, waarby dit noodsaaklik is dat die Hof tevrede moet wees dat betekening in ooreenstemming met die vereistes van die Hofreëls geskied het, en dit is besonder onstellend om te verneem dat sulke feitlike bewerings in hierdie geval nie gegrond was op werklike waarnemings nie. Ek spreek die hoop uit dat Adjunk-Balju’s in die toekoms daartoe sal toesien dat persone in hulle diens nie sulke foute maak nie.”

It is also disturbing that the deputy-sheriff in the present matter appears to have no insight whatsoever into the gravity of his misconduct merely contenting himself, without apology, with the dismissive remark that “the return of service is incorrect in one respect only, namely the service address”. That this error relates to the most material aspect of his return of service appears to have escaped him.

It is also necessary to comment adversely on his remark that he has always regarded Vermeulen as the municipal manager “whether correctly or not”. It is his duty as deputy-sheriff to ascertain the correct factual position and not merely to make assumptions on matters which could have a material bearing on the correctness or otherwise of his return of service.

In terms of s 36 (2) of the Supreme Court Act no 59 of 1959 the return of the sheriff or a deputy-sheriff of “what has been done upon any process of the court, shall be prima facie evidence of the matters therein stated.”

I respectfully agree with the remarks of Jafta J in Mutebwa’s case supra where, at 202 D he stated as follows:

“In law, the return by the deputy-sheriff constitutes prima facie proof of what has been done. It is in this context that one is frightened by the consequences that may flow from the implicit reliance by the Court on fatally defective or fraudulent returns.”

In the present matter, in granting judgment on 1 April 2004, I relied implicitly on the return of service. Had I been made aware that service had in fact been effected at the private residence of Mrs. Lawrence I would not have granted the order sought, regardless of the other issues relating to the service of the papers. The fact that it is now known that Mrs. Lawrence took the papers to 27 Frontier Street and handed them to Mr. Vermeulen does not, however, avail respondent. The fact remains that service of the papers was never effected upon applicant in terms of the relevant provisions relating to service of process with the result that the municipal manager was unaware of the institution of the main application until such time as the order of 1 April 2004 was served upon him. Had I been aware of the circumstances prevailing I would not have granted the order sought and it was therefore erroneously granted.

In all the circumstances I am satisfied that the application for rescission must succeed. I turn then to consider the question of costs. Mr. Hefer submitted that, in view especially of the fact that respondent’s attorney Mr. Jonker had been given the incorrect information as to the proper description of applicant by applicant’s attorneys, the question of costs should be reserved for decision at the hearing of the main application. It is to be noted, however, that it is not alleged that Mr. Jonker was given the incorrect information concerning the situation in Komga of applicant’s main place of business and of the offices of the municipal manager. Mr. Hefer submitted in the alternative that if the costs were not reserved each party should be ordered to pay their own costs or, at worst for respondent, it should only be ordered to pay applicant’s costs from the date of filing of applicant’s replying affidavit.

Mr. Paterson, who appeared for the present applicant, pointed to the fact that applicant had sought a costs order against respondent only in the event of it opposing the application for rescission. He submitted accordingly that applicant was entitled to all the costs of the application.

Having considered the various submissions made by counsel I am of the view that the fairest order to make in all the circumstances in the exercise of my discretion in this regard would be that respondent pay such costs as were occasioned by its opposition to the application.

The following order is made.

1. The order made on 1 April 2004 in case no 191/2004 is rescinded.

2. The costs occasioned as a result of respondent’s opposition to this application are to be paid by respondent.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

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