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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

 

                                                                                                                                                                                       Case No.: 3807/2020

In the matter between:

MADALA LOUIS DAVID NTOMBELA                                    First Applicant

SEFORA HIXSONIA NTOMBELA                                                  Second Applicant

 

and

 

CLOETE MURRAY N.O.                                                             First Respondent

GERT LOURENS STEYN DE WET N.O.                                  Second Respondent

MAGDA WILMA KETS N.O.                                                              Third Respondent

[In their capacity as joint liquidators of Phehla Umsebenzi

Trading 48 CC (in liquidation) with registration

number 2004/00649907]

HUGO & TERBLANCHE AUCTIONEERS                                   Fourth Respondent

 

In re:

 

MADALA LOUIS DAVID NTOMBELA                                     First Applicant

SEFORA HIXSONIA NTOMBELA                                                    Second Applicant

 

and

 

CLOETE MURRAY N.O.                                                              First Respondent

GERT LOURENS STEYN DE WET N.O.                                  Second Respondent

MAGDA WILMA KETS N.O.                                                             Third Respondent

[In their capacity as joint liquidators of Phehla Umsebenzi

Trading 48 CC (in liquidation) with registration

number 2004/00649907]

HUGO & TERBLANCHE AUCTIONEERS                                 Fourth Respondent

PHEHLA UMSEBENZI TRADING 48 CC                                    Fifth Respondent

PANGANATHAN MARIMUTHU                                                     Sixth Respondent

NEERMALA MOODLEY                                                                   Seventh Respondent

WERNER CAWOOD N.O.                                                                    Eight Respondent

JOHAN CHRISTIAAN BEER N.O.                                             Ninth Respondent

VISHAL JUNKEERPARSAD &

COMPANY ATTORNEYS                                                           Tenth Respondent

MERYL MOONSAMY ATTORNEYS                                     Eleventh Respondent

THE MASTER OF THE HIGH COURT PRETORIA             Twelfth Respondent

Coram:                 Opperman, J

Date of hearing:    7 October 2021

Delivered:             The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 7 December 2021. The date and time for hand-down is deemed to be 7 December 2021 at 15h00

Summary:            Rule 53 – record – Rule 6(5)(d)(iii) objection before close of proceedings in terms of Rule 53 – Rules 30/30A[1]

 

JUDGMENT

 

 

INTRODUCTION

[1]     This is an interlocutory application under the auspices of Rules 30/30A of the Uniform Rules of the Court seeking:

1.             An order to set aside the notice in terms of Uniform Rule 6(5)(d)(iii)[2] filed by the first to third respondents in the main review application; 

2.             The applicants, secondly, seek an order against the first to fourth respondents to comply with the provisions of Rule 53(1)(b) and that is to supply to the applicants the record of the proceedings sought to be corrected and set aside; and

3.             The applicants want an order for costs if the application is opposed.

 

[2]     The case for the applicants now, in the main application and in the urgent application is based on an unexecuted contract entered into by the insolvent before insolvency. The applicants seek an order in the main application whereby the liquidators’ election not to ratify an executory contract by a liquidated Close Corporation before its liquidation in relation to immovable property, is reviewed and set aside.

 

THE PARTIES

[3]      The first applicant is Madala Louis David Ntombela. He is an adult male residing at 18 Stinkhout Street, Frankfort, Free State Province. He is married in community of property to the second applicant. She is Sefora Hixonia Ntombela an adult female person also residing at the mentioned address.

 

[4]     The first to third respondents (“the liquidators”) were appointed as joint liquidators of Phehla Umsebenzi Trading 48 CC (“Phehla”). They opposed the application and have raised four points in limine.

 

THE OPPOSITION TO THE APPLICATION

[5]     The opposition to the application turns on four issues:

1.             Whether this interlocutory application can be validly brought in terms of Uniform Rule 30A in circumstances where the applicants’ notice is based on the provisions of Rule 30?

2.             Whether any of the relief claimed by the applicants in this interlocutory application can be granted in circumstances where the applicants failed to file their notice or the interlocutory application within the applicable time periods stipulated by Rule 30?

3.             Whether it is competent to claim relief to set aside the first to third respondents’ Rule 6(5)(d)(iii) Notice in circumstances where there is, among others, a discrepancy between the applicants’ grounds of complaints compared with the relief claimed in the interlocutory application?

4.             Whether the interlocutory application is at all competent to address the failure, or rather inability, given the fact that no record exists as set out in paragraph 15 of the liquidators answering affidavit at page 31? The failure to file an application for the record in terms of Rule 53 but under Rule 30 that governs the setting aside of irregular proceedings, is fatal.

 

THE ISSUES RAISED BY THE APPLICANTS

[6]     As indicated; on 29 March 2021 the applicants filed a Notice of Motion, purportedly in terms of Rule 30 or Rule 30A, seeking the relief set out above.

 

[7]     In terms of Rules 53(6) and 53(7) the applicants shall have the rights and obligations in regard to replying affidavits set out in Rule 6. The provisions of Rule 6 as to set down of applications shall mutatis mutandis apply to the set down of review proceedings.

 

[8]     It is their case that the liquidators delivered an answering affidavit on 30 November 2020 and the applicants have not yet had the opportunity to file a replying affidavit. The reason why the applicants have not filed a replying affidavit is because the application was brought to set aside the Rule 6(5)(d)(iii) Notice and the applicants were not supplied with the record.

 

[9]     At paragraph 10 of the applicants’ heads of argument on page 5 it is submitted that what the case law does not deal with, is the situation where the founding affidavit setting out the case made out by the applicants is not complete in the sense that it is conditional to be supplemented as of a right due to the provisions of Rule 53 dealing with reviews in the Uniform Rules of Court.

 

[10]   The above makes the case unique and will the Court have to engage unusual remedies to serve the best interest of the creditors and the applicants and the administration of justice.

 

[11]   To reiterate, the applicants could not file their replying affidavit because they have not received the record and the Rule 6(5)(d)(iii) Notice is premature. Access to the deliberations of the decisionmaker is imperative for the applicants to can reply. In this matter the defence of the respondents is that they cannot supply a record because one does not exist. The applicants allege that it has clear proof from the review application that there was correspondence to-and-from the different decision makers wherein they showed the manner they applied their minds in taking the decision on the matter. This is the record they want and that was not provided and may and can well be provided.

 

[12]   In the circumstances, the respondents could not utilise the provisions of Rule 6(5)(d)(iii) as the proceedings have not reached the stage where the founding affidavit could be “completed” by the applicants in their review application responding by way of variation or supplementation of their founding affidavit. It is the case for the applicants that the Notice in terms of Rule 6(5)(d)(iii) is premature, in vain and with little hope at this stage.

 

[13]   The applicants rely on the wording of Rule 53(1). Rule 53 reads as follows:

53 Reviews

(1)       Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected—

(a)        calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b)       calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

[Paragraph (b) substituted by GN R2164 of 2 October 1987 and by GN R2642 of 27 November 1987.] [Subrule (1) substituted by GN R2004 of 15 December 1967 and by GN R317 of 17 April 2015.]

(2)       The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.

(3)       The registrar shall make available to the applicant the record despatched to him or her as aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the registrar with two copies and each of the other parties with one copy thereof, in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.

[Subrule (3) substituted by GN R317 of 17 April 2015.]

(4)       The applicant may within ten days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

[Subrule (4) substituted by GN R2164 of 2 October 1987, by GN R2642 of 27 November 1987 and by GN R317 of 17 April 2015.]

(5)       Should the presiding officer, chairperson or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, he or she shall —

(a)        within fifteen days after receipt by him or her of the notice of motion or any amendment thereof deliver notice to the applicant that he or she intends so to oppose and shall in such notice appoint an address within 15 kilometres of the office of the registrar at which he or she will accept notice and service of all process in such proceedings; and

(b)       within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he or she may desire in answer to the allegations made by the applicant.

[Subrule (5) substituted by GN R317 of 17 April 2015 and by GN R317 of 17 April 2015.]

(6)       The applicant shall have the rights and obligations in regard to replying affidavits set out in rule 6.

(7)       The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set down of review proceedings.

 

[14]   The applicants rely on the judgment of Kriegler, AJA in Jockey Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) at 660 E to F:

Not infrequently the private citizen is faced with an administrative or quasi-judicial decision adversely affecting his rights, but has no access to the record of the relevant proceedings nor any knowledge of the reasons founding such decision. Were it not for Rule 53 he would be obliged to launch review proceedings in the dark and, depending on the answering affidavit(s) of the respondent(s), he could then apply to amend his notice of motion and to supplement his founding affidavit. Manifestly the procedure created by the Rule is to his advantage in that it obviates the delay and expense of an application to amend and provides him with access to the record.

 

[15]   In Comair Limited v Minister for Public Enterprises and others 2014 (5) SA 605 GP the crucial value of the record was stressed at [35] to [42]:

1.             The filing of the record introduces equality of arms between the parties to the review proceedings since it means that: “All the parties have identical copies of the relevant documents on which to draft their affidavits and that they and the Court have identical papers before them when the matter comes to Court”.

2.             The full record of the proceedings is fundamental to the proper ventilation of the review before the Court.

3.             Without the full record the Court cannot perform its constitutionally entrenched review function. In Democratic Alliance and Others v Acting National Director of Public Prosecutions and Others 2012 (3) SA 486 (SCA) at paragraph 37 it was stated that: “. . . It can hardly be argued that, in an era of greater transparency, accountability and access to information, a record of decision related to the exercise of public power that can be reviewed should not be made available, whether in terms of Rule 53 or by Courts exercising their inherent power to regulate their own process.”

4.             Without the record a Court cannot perform its constitutionally entrenched review function, with the result that a litigant's right in terms of section 34 of the Constitution to have a justiciable dispute decided in a fair public hearing before a Court with all the issues being ventilated, would be infringed.

5.             There must be proper disclosure of the record under Rule 53 because it furthers the constitutional guarantee of just administrative action;[3] the right of access to any information held by the State or any other entity with administrative powers is important;[4] and the constitutional requirement of public administration that is transparent and accountable plays a vital role in democracy.[5]

6.             In Johannesburg City Council v The Administrator, Transvaal and Another (1) 1970 (2) SA 89 (T) at 91G – 92A a record is defined as: “The words record of proceedings cannot be otherwise construed, in my view, than as a loose description of the documents, evidence, arguments and other information before the tribunal relating to the matter under review, at the time of the making of the decision in question. It may be a formal record and dossier of what happened before the tribunal, but it may also be a disjointed indication of the material that was at the tribunal's disposal. In the latter case it would, I venture to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially. It does include all the documents before the Executive Committee as well as all documents which are by reference incorporated in the file before it.”

 

[16]   In Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others 1999 (2) SA 599 (T) (1999) (5) BCLR 549 at 628I – 629B it was ruled that the object of review proceedings in terms of Rule 53 is to enable an aggrieved party to get quick relief where his rights or interests are prejudiced by wrongful administrative action and the furnishing of the record of the proceedings is an important element in the review proceedings.

 

WHAT THE COURT IS NOT CALLED UPON TO ADJUDICATE

[17]   It is imperative to stress that this Court is not presently called upon to adjudicate any of the Rule 6(5)(d)(iii) objections; that is the issues of law raised against the review application. It is the view of the respondents at page 35 of their heads of argument that the Court is forced to; with regard to prayer 2 (that the applicants be supplied with the record of the proceedings sought to be corrected and set aside) to take cognisance of the competency of the review application. I cannot do this and must work from the premise that the applicants have a right to access the Court with a review application and it is for that Court to decide the viability of the review. In the meanwhile, the process must take its course as will be shown hereunder.

 

[18]   It is the argument of the respondents that the record cannot be ordered if the matter is not reviewable. It is not as simple. The opposite is also true; the reviewability of the matter might not be assessable if the record is not available.

 

[19]   The reviewability of actions has evolved with the advent of the Constitution of the Republic of South Africa, 1996. It is not as clear cut as it was and both the applicants and the respondents must have their day in Court on the issue.

2.   Supremacy of Constitution. - This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled (accentuation added),

and

34.   Access to courts. - Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

 

[20]   The case will be decided from the perspective that the reviewability of the facts specific to this case does not lie before this Court. It is to be addressed in the main review application.

 

[21]   The finalisation of the matter has been delayed for more than a year. The time has come for the issues holding up the main hearing, to be disposed of. This will be in the interest of the creditors, the liquidators and the applicants. The way forward must be mapped to ensure legal certainty and expeditious litigation for all.

 

[22]   The law relating to the Rules of Court and specifically Rule 53 as was pointed out in Jockey Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) is crucial to finalisation of the matter. The Rules are for the Court and not the Court for the Rules and it serves the administration of justice to, among others, promote effective litigation. At 662 G it was ruled that the purpose of Rule 53 is not to protect the 'decision-maker' but to facilitate applications for review and to ensure their speedy and orderly presentation. Such benefits as it may confer on a respondent, in contradistinction to those ordinarily enjoyed by a respondent under Rule 6, are incidental and minor. It confers real benefits on the applicant, benefits which he may enjoy, if and to the extent needed in his particular circumstances. At 661 E to 662 B:

On the face of it the Rule was designed to aid an applicant, not to shackle him. Nor could it have been intended that an applicant for review should be obliged, irrespective of the circumstances and whether or not there was any need to invoke the facilitative procedure of the Rule, slavishly - and pointlessly - to adhere to its provisions. After all:

            '(R)ules are not an end in themselves to be observed for their own sake. They are provided to secure the inexpensive and expeditious completion of litigation before the courts. . .'

(Per Van Winsen AJA in Federated Trust Ltd v Botha 1978 (3) SA 645 (A) at 654C-D.)

             I am in full agreement with the view expressed by Eloff DJP in S v Baleka and Others 1986 (1) SA 361 (T) at 397 in fin-398A:

            'Rule 53 was designed to facilitate the review of administrative orders. It created procedural means whereby persons affected by administrative or quasi-judicial orders or decisions could get the relevant evidential material before the Supreme Court. It was not intended to be the sole method by which the validity of such decisions could be attacked.' (Accentuation added)

            I am also in agreement with the observation of the learned Judge in the succeeding sentence: 'There are numerous decisions in our own Courts in which the validity of administrative rulings was considered and adjudicated on in proceedings other than conventional review proceedings. . .'

 

[23]   It is, first and foremost, important to introduce the case itself for insight on the judgment.

 

THE DEVELOPMENT OF THE CASE

[24]   The applicants brought an application against the respondents in case no. 3807/2020 on the 9^th of October 2020 on an urgent basis to suspend the sale of a property, Erf 3398 plus improvements thereon. On 9 October 2020 I ordered as follows after having heard the application on urgent basis:

1.             Non-compliance with the provisions of the Rules relating to time periods and the manner of service referred to hearing and dealing with the matter as one of urgency in terms of the provisions of Rule 6(12) of the Court is condoned;

2.             The auction and sale of the property ERF 3398 plus improvements thereon are stayed and interdicted in the interim, pending the finalisation of the review application to be instituted by the applicants before 9 November 2020;

3.             The applicants to pay the wasted costs of the interdicted and stayed auction of 9 October 2020;

4.             The applicants to pay the wasted costs of the first, second, third and fifth respondents of the hearing on 8 October 2020.

 

[25]   I refused prayer 3 of the urgent application that the first, second and third respondents shall take steps necessary to transfer the property into the name of the first and second applicants.

 

[26]   The facts that lead to the urgent application are that the applicants had various discussions with Mr. Marimuthu, the sixth respondent and representative of the fifth respondent, about the acquiring of the property with the improvements. The property is a house for residential purposes.

 

[27]   The property (“the Property”) in issue is ERF 3398 Bloemfontein Ext 3, Bloemfontein Road, Free State Province.

         IN EXTENT: 2901 (Two thousand nine hundred and one square metres)

         Held by Deed of Transfer No. T16518/2011.

 

[28]   The registered owner of the property is Phehla Umsebenzi Trading 48 CC, Registration Number: 2004/054809/23 (“Phehla”) duly represented by Neermala Moodley (“the seller”).

 

[29]   Ms. Moodley and Mr. Marimuthu are married to each in community of property and are in business together.

 

[30]   The applicants paid various sums of money over to Mr. Marimuthu in payment of the sale that took place and they even took possession of the property through their son and his family in the beginning of 2014. The property has since been used and regarded by the son and his family as their primary residence.

 

[31]   Well aware of the importance of the formalization of the transaction in writing and after inquiries the applicants were referred by Mr. Marimuthu and Ms. Moodley to the tenth respondent as their attorneys to prepare an agreement in respect of the sale and the transfer of the property. The agreement was signed on 6 August 2015. Ms. Moodley signed as seller and the first applicant as the purchaser.

 

[32]   The purchase price was to the amount of R 2 500 000.00. The sum of R 2 300 000.00 had already been paid by the purchaser as on 6 August 2015. The amount of R200 000.00 had to be paid on the signing of the agreement.

 

[33]   From time to time the applicants made inquiries as to when the transfer process will be finalised. It is the version of the applicants that they were assured that the process is ongoing. Later it transpired that the seller was reluctant to sign the agreement.

 

[34]   The applicants had no knowledge whatsoever of the financial position of Phehla, the fifth respondent. The reason for the delay in the transfer was alleged to have been the procurement of clearance certificates due to accounts issues experienced at the Mangaung Metropolitan Municipality. The son, occupying the property as primary residence, made inquiries in 2018 at the tenth respondent’s offices and was assured that the seller signed the transfer documents.

 

[35]   Around mid-2019 the applicants instructed their attorneys of record to assist and follow up with the tenth respondent about the transfer. The inquiries were to no avail and the applicants wanted to turn to the Legal Practise Council for assistance.

 

[36]   On the 21^st November 2019 the tenth respondent informed that their mandate has been terminated and the eleventh respondent was appointed.

 

[37]   The business rescue practitioners were allegedly fully aware of the fact that the property was sold for its real value. The whole issue of the property was apparently dealt with in the Court Order of Case number 93289/2015 on 6 June 2018. The interpretation of the Court Order by the applicants is that the property was legally sold to them and that it was not subjected to business rescue.

 

[38]   The factual and legal conundrum that eventuated is that since the property has not been registered in the applicants’ name and the fifth respondent having been liquidated, the property fell into the hands of the liquidators.

 

[39]   On 18 September 2020 the liquidators wrote a letter requesting a copy of the written sale agreement and proof of payment. It was apparently submitted.

 

[40]   In middle September 2020 the applicants became aware of the fact that the property was going to be sold on auction on the 9^th of October 2020. Desperate notices and letters were written to the liquidators just for the applicants to be informed that they as the liquidators are not bound to the sale agreement concluded prior to the liquidation of Phehla and they have elected not to ratify the sale as they are entitled to do so. They informed that the auction will go ahead.

 

[41]   There were apparently oral negotiations between the attorneys of the applicants and the liquidators that they undertook to ratify the sale agreement on proof of payment of the purchase price. This was conditional as long as the sale was not below market value. The property was valued for the auction as being R2 300 000.000. The applicants purchased the property for R2 500 000.000. The conversation took place on 17 September 2020.

 

[42]   The applicants now took the decision of the liquidators on review in terms of Rule 53 of the Uniforms Rules. The Notice of Motion in terms of Rule 53 dated 9 November 2020 was filed on 10 November 2020 at the Free State Division of the High Court of South Africa.

 

[43]   The applicants launched the review application against the respondents within the time limits as were stipulated by the Court. They served the application on 9 November 2020 on the respondents and filed at Court on 10 November 2020. They claimed for the following:

1.               That the decision taken by the first, second and third respondents recorded in a letter of the respondents attached to the founding papers to sell the said property known as Erf 3387, Bloemfontein Ext 3 with the improvements thereon be reviewed and set aside;

2.               That the first, second and third respondents, as liquidators of the fifth respondent, be ordered to sign all transfer papers necessary to enable the Deeds Offices to transfer the property to the applicants;

3.             That in the event of this application being opposed, the first, second and third respondents be ordered to pay the applicants’ costs, which costs shall be taxed on the scale as between attorney and client, including the costs of two Counsel, one which is Senior Counsel. 

 

[44]   On 30 November 2020 the first, second and third respondents (“the liquidators”) delivered a Notice in terms of Rule 6(5)(d)(iii). The liquidators wanted for the following relief:

1.             Firstly, that the applicants are enjoined from making an application to have the liquidators’ decision reviewed and set aside; and

2.             Secondly that the applicants are enjoined from claiming and ordering specific performance against the liquidators.

 

[45]   The review has not taken its course because the record remained outstanding. The respondents want an application for condonation for the late filing of the application for an order to compel the respondents to supply the record and the dismissal of the Rule 6(5)(d)(iii) objections.

 

THE USE OF RULE 30/30A TO OBTAIN THE RECORD AND HAVE THE RULE 6(5)(d)(iii) OBJECTIONS DISMISSED AND THE ARGUMENT THAT THE IRREGULAR STEP COMPLAINED OF DOES NOT EXIST

[46]   The respondents stated in paragraph 9 of their heads of argument that: “Although the notice is titled “Rule 30/Rule 30A” it is clear from the content thereof that the notice is formulated with exclusive reference to Rule 30.” This is correct.

 

[47]   The issue they take with the irregularity to be removed is that it cannot be removed and the litigation cannot take its course because a record is not available.

 

[48]   This might be true but as I pointed out; records can take any form and there is, according to the applicants, in the least correspondence available on which the record can be based and that will serve the proper ventilation of the case.

 

[49]   Rule 53 does not exclude the use of other Rules of Court. The use of Rule 30 in the instance is not fatal.

 

[50]   The respondents could not utilise the provisions of Rule 6(5)(d)(iii) as the proceedings have not reached the stage where the founding affidavit could be “completed” by the applicants in their review application responding by way of variation or supplementation of their founding affidavit. The Notice in terms of Rule 6(5)(d)(iii) is premature but not without substance and will I deal with it as such.

 

THE APPLICANTS’ FAILURE TO COMPLY WITH THE TIME PERIODS LAID DOWN IN RULES 30/30A

[51]   The respondents are justified in their submission that the delay in the bringing of the application is deserving of a condonation application. In the interest of justice and to obtain swift finality of the matter the non-compliance will be condoned sue moto. It will be to the utmost detriment of all the parties involved to demand a condonation application to slavishly and formalistically adhere to the Rules. The issue can be addressed with an appropriate costs order.

 

THE COURT ORDER OF 9 OCTOBER 2020 DOES NOT DETERMINE THE FATE OR VALIDITY OF THE REVIEW PROCEEDINGS

[52]   It is correct that the Court Order dated 9 October 2020 does not determine the viability of the application for review; this includes the reviewability of the matter. I dealt with the issue above and it is for the Court of Review to deliberate and adjudicate the matter.

 

CONCLUSION

[53]   This matter is unique in that the applicants were not given the opportunity to complete the litigatory process launched in terms of Rule 53. Whether the Rule 53 process is the correct one, is to be decided in the main application.

 

[54]   The law in regard to Rule 53 must thus be adhered to and as read with Rule 6. The litigation to invoke Rule 6(5)(d)(iii) was not completed because the record has not been supplied. The applicants are correct in their submission that they cannot continue with the Rule 53-process if the record is not supplied. The founding papers, unlike in a pure Rule 6 application, only comes to finalization after the record has been provided and the applicants had the opportunity to file a supplementary affidavit to vary, amend or add to their initial founding affidavit. The Rule 6(5)(d)(iii) Notice was indeed premature; it follows with logic that the Rule 6(5)(d)(iii)-proceedings may only follow after the founding papers have been concluded.

 

[55]   The respondents maintain there does not exist a record; the applicants maintains that it does exist albeit in the unusual form of correspondence and other communications. A record will have to be supplied by the respondents and they must have due regard to the fact that it may not be a conventional one. I reiterate: “It may be a formal record and dossier of what happened before the tribunal, but it may also be a disjointed indication of the material that was at the tribunal's disposal. In the latter case it would, I venture to think, include every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially. It does include all the documents before the Executive Committee as well as all documents which are by reference incorporated in the file before it.”

 

[56]   The respondents have a right to raise any question of law. They may institute Rule 6(5)(d)(iii) proceedings but not now. To dismiss the notice abruptly and wipe it of the table will not be conducive to their right to access to Court. I will therefore grant them permission to access the Court on the same papers duly supplemented after the Rule 53 process has been finalised.

 

[57]   All the parties contributed to the consternation and confusion in the case and they will have to carry their own costs.

 

[58]   ORDER

1.             The filing of the Notice in terms of Rule 6(5)(d)(iii) by the first to third and fifth respondents is provisionally set aside pending the finalisation of the process prescribed in Rule 53 dealing with reviews in the Uniform Rules of Court;

2.             First to third and fifth respondents are ordered to make available to the applicants the record of the proceedings sought to be corrected and set aside and in terms of Rule 53(1)(b) and within fifteen (15) days of the date of this order;

3.             The applicants may within ten (10) days after the record was made available to them deliver a notice and accompanying affidavit, amend, add to or vary the terms of their notice of motion and supplement the supporting affidavit in terms of Rule 53(4);

4.             The first to third and fifth respondents may reply in terms of Rule 53(5);

5.             The first to third and fifth respondents are afforded 10 (ten) days from the date of the filing of the papers and the conclusion of the Rule 53 process above in which to amend and file their Notice in terms of Rule 6(5)(d)(iii), if necessary;

6.      The parties must each carry their own costs.

 

 

M. OPPERMAN, J

APPEARANCES

FOR THE APPLICANTS                                                      ADVOCATE JG DUVENHAGE SC

011 722-9000/082 968 1959

 

MOTLATSI SELEKE ATTORNEYS

C/O HUTCHINSON ATTORNEYS

40 Kellner Street

                               Westdene

BLOEMFONTEIN

O11 660-4300/083 750 0679

       rasmotlatsi@motlatsiseleke.com

               amina@motlatsiseleke.com

               moses@motlatsiseleke.com 

Ref: MS/MAM/S23/19

 

FOR FIRST TO THIRD RESPONDENTS                               ADVOCATE U VAN NIEKERK

Group 33

Hazelwood, Pretoria

 

       MACROBERT ATTORNEYS

MACROBERT BUILDING

1062 JAN SHOBA STREET

BROOKLYN

PRETORIA

Ref: CA Wessels/rc/00045863

rchinner@macrobert.co.za

                                                                               C/O SYMINGTON DE KOK ATTORNEYS

169 B NELSON MANDELA DRIVE

WESTDENE

BLOEMFONTEIN

051 505 6692

dmoller@symok.co.za

REF: D MOLLER

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