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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 38239/2013

Not reportable

Not of interest to other judges

Revised.

26/3/2018

In the matter between:

MAKHUBA, TT                                                                                                First applicant

MAKHUBA, M                                                                                            Second applicant

THE UNITY FELLOWSHIP CHURCH                                                            Third applicant

And

THE CITY OF JOHANNESBURG

METROPOLITAN MUNICIPALITY                                                                     Respondent

JUDGMENT

 

KEIGHTLEY, J

1. The applicants in this matter operate The Unity Fellowship Church from immovable property owned by the first and second respondents in the area of Klipriviersoog Extention 1.  The area falls under the jurisdiction of the respondent, the City of Johannesburg (“the City”).  The City granted the applicants consent to operate a place of public worship on the property in 2008 in terms of its powers under the applicable zoning scheme.  The consent was subject to certain conditions regarding, among other things the permissible development of the area, parking, noise abatement measures, and the protection against a disturbance of the general amenity of the area.

2. On 5 February 2013 the City’s Planning Committee adopted a resolution revoking the consent.  The City says that this followed numerous, repeated and ongoing violations of the consent conditions over time, and complaints by residents in the neighbourhood.  The breaches involved, in particular, the erection of structures in the form of large marquees in what should have been the designated parking area of the Church contrary to the relevant building regulations; these were used for church services in addition to the church building; parking in public streets causing congestion; noise levels from the church that were well above acceptable noise levels; and the use of large outdoor speakers adding to the noise levels during church services.  According to the City, the applicants had been subjected to a number of inspections to establish the breaches, and had been provided with notices to cease the offending property use.  The applicants failed to heed these notices.  This continued after the revocation of the consent.

3. Eventually, the City resorted to litigation to resolve the situation.  It sought, and was granted an interdict by the Honorable Kathree-Setiloane on 21 October 2015 directing the applicants, inter alia, to cease using the property for purposes of a place of public worship and to demolish and remove all structures erected for that purpose.

4. It is common cause that while the applicants filed a notice to oppose the application, an answering affidavit and heads of argument, they failed to appear on the day of the hearing and the order ultimately was granted in their absence.  The applicants seek to rescind the order.

 

RESCISSION UNDER RULE 42(1)(a)

5. It is not clear from the applicants’ founding affidavit, or from their heads of argument what legal basis they rely on in support of their rescission application.  They made reference in their heads of argument to rule 42(1)(a) of the Uniform Rules of court.  That rule permits a court to rescind an order granted or sought erroneously in the absence of an affected party.  The applicants do not state in their founding affidavit whether they rely on this rule, and if so, in what respects they aver that the judgment was erroneously granted.  They also fail to advance this ground of rescission in their heads of argument.

6. At the hearing of the application, counsel for the applicants indicated that they did not intend to rely on rescission in terms of rule 42.  In my view, this concession was correctly made.  I can find no basis on which to hold that the judgment was granted or sought erroneously.  At best for the applicants, it may be argued that they were unaware of the notice of set down, and that this constituted a procedural irregularity.  However, this does not amount to an error on the part of the court in granting the judgment.    A judgment to which a party is procedurally entitled cannot be considered to have been granted erroneously.^[1]  Whether or not the applicants knew about the set down of the application is irrelevant in this regard.

7. It may also be argued that the City did not serve the Notice of Set Down by hand on their attorney, and instead sent it by facsimile.  However, as I discuss in more detail later, there were specific reasons, emanating from the conduct of the applicants’ attorney, why the City was forced into this form of service.   The City explained the nature of its service (by facsimile) in the annexure attached to its Notice of Set Down to the court, and it explained why this was necessary.  Service by facsimile in these circumstances cannot render the order reviewable on the basis that it was based on an erroneous procedure within the meaning of rule 42(1)(a).

 

RESCISSION UNDER THE COMMON LAW

8. If one reads between the lines of the founding affidavit and the heads of argument, it appears that the applicants rely on the common law, alternatively rule 31(2)(b) as the basis for their rescission.  In a case like the present not much turns on whether the application is in terms of the Rule or in terms of the common law, as there is commonality in the relevant principles applicable.

9. An applicant for rescission must show good cause for her default.  This entails that she must:

1. present a reasonable and acceptable explanation for her default; and

2. satisfy the court that on the merits she has a bona fide or substantial defence that prima facie carries some prospects of success.^[2]

10.  The applicant must give an explanation for the default that is sufficiently full to enable the court to understand how it really came about, and to assess the applicant’s conduct and motives. An application that fails to set out these reasons is not proper.^[3]  The explanation must also be reasonable and acceptable.^[4]

11.  As far as the bona fide defence is concerned, it is sufficient if the applicant for rescission makes out a prima facie defence in the sense of setting out averments which, if established at the trial, would entitle her to the relief asked for. She need not deal fully with the merits of the case and produce evidence that the probabilities are actually in her favour.^[5]

12.  It has been held that where the applicant for rescission has provided a poor explanation for her default, a good defence may compensate for this.^[6]  However, in this regard our courts have long reiterated the basic principle that:

“It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospect of success on the merits will fail in an application for rescission of a default judgment against him, no matter how reasonable and convincing the explanation of his default. And ordered judicial process would be negated if, on the other hand, a party who could offer no explanation of his default other than his disdain of the Rules was nevertheless permitted to have a judgment against him rescinded on the ground that he had reasonable prospects of success on the merits.”^[7]

13.  The court went on to recognise that there may be certain circumstances when the question of the sufficiency or lack of sufficiency of the explanation of the default is finely balanced.  In those cases, a good defence on the merits might tip the scale in favour of granting rescission.^[8]  In the court’s subsequent judgment in Colyn, it held that a weak explanation for the default may well justify the refusal of rescission on that basis alone:

“ … unless, perhaps the weak explanation is cancelled out by the defendant being able to put of a bona fide defence which has not merely some prospect, but a good prospect of success.”^[9] (my emphasis)

14.  Again, in Chetty,^[10] the court emphasised that even in those particular cases where the question as to the sufficiency of the applicant’s explanation for her default is finely balanced:

“ … this is not to say that the stronger the prospects of success the more indulgently will the Court regard the explanation of the default. An unsatisfactory and unacceptable explanation remains so, whatever the prospects of success on the merits.”  (my emphasis)

15.  As I understand the principles to be extracted from these dicta, the fundamental rule remains that an unsatisfactory explanation for the applicant’s default cannot be cured by, or be approached more leniently, because she is able to show good prospects of success on the merits.  An applicant cannot escape the obligation to provide a satisfactory explanation for her default, and rely instead on her prospects of success. The prospects of success normally will only tip the scales if there is an explanation that meets some basic threshold of acceptability, and the circumstances are such that the doubts that the court has over the sufficiency of the explanation are outweighed by the applicant’s strong prospects of success.  This is something that the court will bear in mind in the judicial exercise of its discretion whether or not to grant rescission.

 

EXPLANATION FOR DEFAULT

16.   In their founding affidavit, and under the heading “Ad reason for default”, the applicants say that there was improper service of the notice of set down on their attorney, Mr Daswa.  Thus, they say, their failure to appear at the hearing was not their fault.  Had they known that the matter was on the Roll that day, their attorney would have attended the proceedings or made some arrangement with the City so as to avoid the predicament the applicants now find themselves in.  Later in their affidavit, and in contradiction to this explanation, they say:  “Had I known timeously that the matter was on the roll ... and that my legal representative was not available on that day, I could have taken it upon my shoulders to pursue this matter instantly or rather appoint another legal representative ... .

17.  It is thus not clear from the applicants’ purported explanation whether they did not know that the matter was on the roll; or whether their attorney did not know that the matter was on the roll; or whether their attorney did know, but neglected to tell them; or whether their attorney did know but was not available.  Unfortunately, the applicants’ explanation is given in the broadest and vaguest of terms.  It is simply not possible from the explanation given for this court to understand how the default really came about, or to enable this court to be in a position to assess the applicants’ conduct and motives.

18.  This becomes even more apparent when one considers what the applicants fail to tell the court as regards the history of the City’s application.  It is common cause that the notice of set down was transmitted via facsimile to the applicants attorneys of record.  In its answering affidavit the City sets out the full history of its attorneys dealings with Mr Daswa in the run-up to the hearing.  The salient points may be summarised briefly as follows:

1. On 22 June 2015 Mr Daswa replaced the applicants’ previous attorney of record and provided an address in Johannesburg at which service would be accepted.

2. In July 2015 the City’s attorney attempted service of a notice of set down by messenger.  This was unsuccessful, as the messenger advised that Mr Daswa had moved from the address previously provided.

3. Mr Daswa failed to provide a notice of change of address, and the previously provided landline number no longer operated.

4. The City’s attorney sent a facsimile to Mr Daswa recording the above, and advised that service would be effected by facsimile and at the applicants’ address.

5. The documents were duly sent by facsimile.

6. Mr Daswa also attended at the City’s attorney’s offices to collect the documents on 21 July 2015.

7. He undertook to provide a notice of change of address, and he gave the City’s attorney his cellular number.

8. Unfortunately, the original set down date had to be changed, as the matter had been set down in error on the unopposed roll.

9. On 22 July 2015, the City’s attorney sent Mr Daswa a facsimile advising him of this, and also recording that a change of address notice had not yet been received.

10.  The City’s attorney also left a text message on Mr Daswa’s phone on the same day requesting that he call the City’s attorney in connection with the matter.

11.  Instead, counsel for the applicants phoned the City’s attorney on behalf of Mr Daswa.  The City’s attorney indicated that he would prefer to speak to Mr Daswa himself.

12.  Mr Daswa then contacted the City’s attorney.  During this conversation, the City’s attorney advised Mr Daswa that the matter would be enrolled on the opposed roll in October 2015.  Once again, Mr Daswa undertook to file a notice of change of address.

13.  By 24 July 2015, he had not yet done so.

14.  On this date the City’s attorney transmitted by facsimile a number of documents to Mr Daswa, including an updated notice of set down in the form of a J118 in respect of the new date obtained for the matter, being 19 October 2015.

15.  The City states that this was the only manner in which it could effect service in view of Mr Daswa’s ongoing failure to provide it with a new address where service could be effected.  This manner of service was fully explained in a note included in the J118E annexure filed at court.  The matter was enrolled for 19 October 2015.

16.  On 1 October 2015, the City’s attorney telephoned Mr Daswa and, among other things, advised him that a notice of change of address from him had still not been received.  He also reminded Mr Daswa that the interdict application had been enrolled for the week commencing 19 October 2015.  A file note recording the gist of the conversation is attached to the City’s papers.

17.  On 2 October 2015 a notice of change of address was eventually provided by Mr Daswa.

19.  The City submits that this history demonstrates that the applicants’ attorney, Mr Daswa, was very well aware that the interdict application had been set down for the week commencing 19 October 2015.  They also point out that they had no alternative but to serve the court documents by facsimile in view of the complete failure by Mr Daswa to live up to his undertakings to file a notice of change of address.

20.  The facts summarised above were set out in full detail in the City’s answering affidavit in the rescission application.  The applicants were given every opportunity to explain why, despite their attorney allegedly knowing about the date of set down, neither they, nor their attorney saw fit to attend court.  The onus lies on the applicants to give a reasonable explanation for their default and to show that it was not willful.  The facts contained in the City’s answering affidavit raise further problems for the applicants’ already sparse and contradictory explanation for their failure to appear at the hearing.

21.  Despite this, the applicants failed to file a replying affidavit to deal with the allegations made by the City.  Therefore, as things stand, I have no explanation from Mr Daswa as to his conduct, nor do I have any explanation from the applicants to counter the detailed allegations made by the applicants to the effect that there was no good reason why the applicants, or their attorney or counsel did not appear at the hearing.

22.  On the incontrovertible evidence of the City, Mr Daswa knew that the matter was on the roll for the week of the 19 October 2015.  The City provides proof that the facsimile notice of set down in this regard was successfully sent.  The City’s attorney  spoke to Mr Daswa and reminded him of the set down date.  There is no explanation from the applicants or from Mr Daswa as to the reasons why this information did not result in an appearance at court.  In the absence of any response from the applicants to these facts, and a sufficient explanation, the inevitable inference is that the applicants’ and/or their attorney’s failure to attend the hearing was without good reason, and was willful within the meaning ascribed to that term in the context of rescission.

23.  I find for these reasons that the applicants have failed to satisfy the first leg of the test for rescission, viz. a reasonable and sufficient explanation for their default.

24.  In the event that it may be argued that this court must nonetheless proceed to consider the second leg of the inquiry, I proceed to do so.

 

BONA FIDE DEFENCE

25.  Under the heading “Prospects of success/merits” in their founding affidavit the applicants refer to the application for administrative review that they have instituted (under a different case number) in an effort to review and set aside the decision of the City to withdraw the consent to use the property as a place of public worship.  It seems from what the applicant’s state there that they feel they have prospects of succeeding on the merits in the review application.  Thus, so the argument seems to continue, implicitly, they also have prospects of successfully opposing the application for the interdict, should the order be rescinded.

26.  Their major complaint concerning the review application is that the procedure followed by the City was procedurally unfair in that they were not given the opportunity to obtain their own noise expert to verify the City’s expert’s findings before the City took the decision to withdraw the consent.  There are also general allegations of the City “bowing to political pressure” in selecting the applicants’ church out for special treatment, and allegations that the complaints from the community surrounding the church are exaggerated and misleading.

27.  These allegations are all dealt with fully by the City in their affidavits filed in support of the application for the interdict.  These affidavits show a history of the City responding to continued complaints from the residents about the difficulties caused by the activities of the church, including extended periods of unacceptable levels of noise, and parked cars obstructing access to roads in the area.  The City also recorded that the applicants had erected permanent marquees on the property that failed to comply with building and safety regulations.  The breaches of the conditions of use are documented fully in the main application.  The documents show that the applicants were given a number of warnings to cease and to comply with the conditions imposed.  There are reports from inspectors dispatched by the City to investigate the situation over a long period, and notices sent to the applicants following these inspections.

28.  It is clear from the papers filed by the City in the main application that the applicants could have been in no doubt that they risked legal action from the City if they did not abate the nuisances they were creating.  As the City pointed out in its application, the applicants had ample opportunity to appoint a noise expert of their own if they did not agree with the findings of the City in this regard.  On the evidence before me, the fact that the City did not accede to a last minute request (at the council meeting where the resolution was taken) to postpone the matter to give the applicants a further opportunity to appoint an expert cannot reasonably be said to amount to a failure of fair process, even at a prima facie level.  As to the other complaints raised by the applicants under this heading in their founding affidavit, these were all met in full by the City in its replying affidavit in the main application.  None of them provide what might properly be regarded as prima facie defences to the application for an interdict.

29.  It is also significant that the review application itself was only filed in July 2014, after the interdict was granted.  The decision sought to be reviewed was made in February 2013.  This means that the review application was instituted well outside the 180-day time period prescribed in the Promotion of Administrative Justice Act.  The applicants submit, incorrectly, that no time limit is prescribed. The fact of the matter is that PAJA prescribes a time limit.  Further, with no regard to this time limit, the applicants instituted the review application in what inevitably appears to have been an ex-post facto attempt to avoid the consequences of the interdict.  In my view, this seriously undermines the bona fides of the alleged defence.

30.  It also appears that there has been no forward movement on the review application.  The applicants plant the blame on the City for this.  However, whatever delays there may have been on the part of the City, it appears that the applicants had not exercised any remedies available to them to ensure that the review application is dealt with as speedily as possible.

31.  In their heads of argument the applicants do not dwell much on their bona fide defence.  Instead they seek to argue that the overriding factor in determining an application for rescission is a balancing of the interests of the parties.  The applicants say that they will suffer great prejudice if the interdict is permitted to remain in place.  They cite the prejudice to the hundreds or thousands of church goers who may be affected.

32.  Even in this regard, I cannot agree with the applicants’ submissions.  The fact of the matter is that they have not given a sufficient explanation for their default.  For the reasons cited above, I find too that they have not established that there is a triable issue that, prima facie, has any prospects of success.  Of course the interdict will prejudice the applicants and the congregation.  However, on the other side we have a residential community which has for many years been subjected to ongoing nuisances as a result of the activities of the church.  The City is bound by statute to act on the complaints and to monitor compliance with its consent conditions.  It has done so.  It’s notices to the applicants not having had the desired effect, the City was also duty-bound to take further action and to litigate to ensure the cessation of the unlawful use of the land for the benefit of the community to which the City is accountable.  There would be undoubted prejudice to the community, and to the rule of law, if, after such a long period, the applicants were to be given a further opportunity to pursue what clearly would be an unsuccessful attempt to avoid the inevitable.

33.  To place the interests of the applicants above those of local government and the community it serves in this situation would amount to an improper exercise of my discretion.

34.  I accordingly find that the applicants have failed to establish that they are entitled to a rescission of the order of this court dated 21 October 2015.

35.  I make the following order:

1. The application is dismissed with costs.

 

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R  M KEIGHTLEY

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Date Heard                              : 26 FEBRUARY  2018

Date of Judgment                   :

Counsel for the Applicant      : R RATHIDILI (SC); R MUFAMADI

Instructed by                          : DASWA ATTORNEYS

Counsel for Respondent       : S  MITCHELL

Instructed by                          : MOJELA HLAZO PRACTICE

 

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