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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 5277/2020

 

REPORTABLE: YES

OF INTEREST TO OTHER JUDGES: YES

REVISED

4/11/2021

 

In the matter between:

 

SAKEENA MAHMOUDI NEELOFAR                                               First Applicant

DR MAHMOUDI MASOOD                                                               Second Applicant

 

And

 

ARSHAD PAHAD                                                                              First Respondent

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY                                                                                  Second Respondent

 

Summary

 

An application for rescission of an order granted against the applicants, who were in default of delivery of an answering affidavit. The applicants were actually represented by counsel and an attorney in Court at the time of the handing down of the order against them. They were therefore not in personal default, and their default was confined to the absence of an answering affidavit.

 

Because the order was granted without the Court having given any consideration to a defence that was orally communicated to the Court by the applicants’ counsel from the Bar (instead of conventionally in an answering affidavit), the order is regarded as having been granted by default of delivery of an answering affidavit, and the resultant order so granted is regarded as being susceptible to rescission, even though the applicants were not in personal default.

 

Part of the order that was targeted for rescission is an interim interdict pending the institution of an action by a particular date. The action was not instituted by the default date, with the result that the interim interdict lapsed. A lapsed order cannot be rescinded, as there is nothing to rescind, and accordingly the application for rescission of this part of the order was struck from the roll due to there being no lis between the parties requiring adjudication by the Court. The judgment creditor was, however, deprived of his costs in obtaining the interim interdict due to his inaction in pursuing the action.

 

There was also an application to strike out certain evidence from the Record of the application on the ground that it is protected by privilege from disclosure. The Court upheld the application to strike out.

 

Quaere: The other part of the order that was targeted for rescission is final in effect. The applicants failed to furnish a reasonable explanation why they did not include their defence thereto in an answering affidavit. They therefore could not satisfy the first requirement of showing “sufficient cause” for rescission thereof. The Court raised but did not decide whether this part of the order may be regarded as interlocutory to the dissolved action (due to possible correspondence between the issues that were intended by the Court to be decided therein and this part of the order) and as such susceptible to alteration or being set aside by the Court that granted the whole order pursuant to a Court’s power to alter or set aside its own interim or interlocutory orders.

 

JUDGMENT

 

KATZEW, AJ

 

[1]          This is an application for rescission of the following order in favour of the First Respondent (described therein as “the applicant”) against the applicants (described therein as “the first and second respondents”) which was granted by the Honourable Vally, J in the urgent Court on 4^th March 2020:

“1.        …

2.         That an interim interdict be granted against the first and second respondents from:

2.1      erecting any structures or carrying out any building work within the applicant’s property as demarcated by the boundary beacon placed between the applicant’s property situate at [....] Scholtz Road Norwood and the respondents’ property situated at [....] Iris Road Norwood Johannesburg unless and until the requisite consent is obtained from the relevant municipal authorities;

2.2       attaching any structures to the drainage system along the south and east walls of the applicant’s property and to the south and east walls of the applicant’s property; unless and until the requisite consent is obtained from the relevant municipal authorities;

2.3       building, erecting or placing any structure within 2 meters of the applicant’s double storey east wall and drainage system which will prevent access by the applicant to the applicant’s east storm water drain and wall, to enable the applicant to reinstate, maintain and repair the wall and drain from time to time,

and pending the final determination of action proceedings to be instituted against the first and second respondents by the applicant by 13 March 2020.

3.         That the first and second respondents are ordered and directed, within five days from the granting of this order to:

3.1      remove the fence installed along the applicant’s east double storey wall;

3.2       provide access to their property to enable the applicant to reinstate the storm water drain removed by the first and second respondents.

4.         That should the first and second respondents fail to comply with paragraph 3 of this order that the applicant is authorised under the direction of the Sheriff of the High Court, alternatively members of the South African Police Services, to enter into the first and second respondents’ property during building hours to remove the fence alongside the applicant’s east double storey wall and to reinstate the storm water system.

5.         That the first and second respondents jointly and severally pay the costs of this application.

6.         …”

[2]           The unique situation prevails that the applicants were actually represented in Court by an attorney and an advocate when the order was granted. Moreover, the Second Applicant was also present in the Court at the time, representing the interests of both himself and the First Applicant.

[3]           At first blight, this would appear to render the order not one by default, and as such not susceptible to rescission.

[4]           However, it is not in dispute that the Court in granting the order had refrained from taking into account the defence that was raised by the applicants, albeit unconventionally, that the substantive relief sought against them should not be granted due to their assertion that, save for the relief sought against them and granted in paragraph 3.1 of the order (to remove the fence installed along the First Respondent’s east double storey wall - see paragraph 39 of the applicants’ founding affidavit at Record 002-15), they had fully complied with all the relief sought in the order prior to them having received notice of the application.

[5]           The reason why the Court refrained from giving any consideration to this defence was because of the unconventional manner in which it was conveyed to the Court via statements and submissions by the applicants’ counsel from the Bar instead of in an answering affidavit.

[6]           Procedurally, when a Court grants an order or judgment without giving any consideration to the defence of the judgment debtor (who may even be present in the Court at the time either personally or through legal representation), the order or judgment so granted is in default of an answering affidavit or plea, as the case may be, and as such susceptible to rescission as a default order or judgment.

[7]           This much is made clear in the following extract from the judgment of the Honourable White, J in Nyingwa v Moolman NO:[1]

“It follows that any judgment, including a summary judgment, can be rescinded under the common law. If the merits of the dispute were considered before summary judgment was granted, rescission can follow only on the grounds set out in the Childerley case; if the merits were not considered and the judgment was granted by default, the grounds for rescission are virtually unlimited, and the only prerequisite is that “sufficient cause” therefor must be shown. It follows that, if an answering affidavit, or evidence, has been considered by the Court before it grants summary judgment, the Court would then have considered the merits of the case and its judgment cannot then be held to be by default, even if there was no appearance for the defendant when the application was heard.

In the present case the defendant was not only in personal default, but his defence had also not been presented by way of affidavit or oral evidence and the Judge therefore granted summary judgment without having had the opportunity of considering the merits of the case. … “

[8]           Applying these criteria, the order of the Honourable Vally, J is in default of an answering affidavit and thus susceptible to rescission.

[9]           At the outset, the applicants’ reliance in the alternative on the provisions of Uniform Rule of Court 42(1)(a) for the rescission of the order is ill-founded. This is implicit from the literal meaning of this subrule, which clearly in its terms envisages the physical absence of the applicants from Court at the time the order was taken. The subrule reads as follows:

“(1)      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:

(a)          An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby;

…”

[10]        The result is that Uniform Rule of Court 42(1)(a) can be summarily discarded as a basis for rescission of the order.

[11]        This leaves the alternative mechanism for rescission relied on by the applicants in this application, namely in terms of the Common Law, as their only available option for the application for rescission of the order.

[12]        Before embarking on a consideration of whether this application can succeed under the Common Law, it is necessary to point out that the substantive relief in the order of the Honourable Vally, J can conveniently be divided into two distinct parts, the first of which (in paragraph 2 of the order) is unsuitable for these rescission proceedings as postulated by the applicants.

[13]        The substantive relief that was granted in this first part of the order is an interim interdict pending the final determination of action proceedings that were to be instituted by the First Respondent against the applicants by 13^th March 2020.

[14]        This action was not instituted by the Second Respondent before the default date. There is furthermore no evidence that it has ever been instituted.

[15]        This gives rise to the question of whether the substantive relief of the interim interdict in paragraph 2 of the order has lapsed due to the First Respondent’s failure to have instituted the action proceedings by the appointed date of 13^th March 2020 (without an application prior to 13^th March 2020 for an extension of this deadline or, failing that, without an application thereafter for the revival of the interdict).

[16]        Interpreted literally, the interim interdict was to expire upon the final determination of the action proceedings, which were to be instituted by 13^th March 2020. Once 13^th March 2020 had passed without the action proceedings having been instituted (coupled with the absence of an application for an extension of the deadline of 13^th March 2020), the final determination of the action ceased to exist as a pending event to which the existence of the interim interdict could be linked.

[17]        As a matter of course, an interim interdict lapses simultaneously with the dissolving (or fulfilment) of the pending event to which its existence is linked. An illustration hereof is contained in the following extract from the judgment of the Honourable Mpati, P in King Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd:[2]

“[8]      … On 14 August 2007 Landmark sought and obtained leave to intervene so as to oppose the application for an interdict. The Land Claims Court granted an interim interdict on 2 October 2007 prohibiting the development ‘pending the finalization of serious and consultative negotiations with all parties concerned but before 30 November 2007’. The consultative negotiations did take place, but were aborted on 21 January 2008, on which date the interim interdict lapsed. …”

[18]        It is axiomatic that there cannot be any need to apply for the rescission of a lapsed order, there being nothing for the Court to rescind.

[19]        Notwithstanding the legal futility of the substantive relief sought by the applicants for the rescission of the interim interdict in paragraph 2 of the order, the discretion conferred on a Court on costs enables this Court to entertain the application for rescission of the order for costs in the order to the extent of the portion of the costs applicable to the granting of the interim interdict in paragraph 2 of the order.

[20]        The Court is of the view that the First Respondent’s failure to institute the action proceedings before 13^th March 2020, without any attempt by him to avoid the lapsing of this part of the order, disqualifies him from retaining the costs order in his favour applicable to the obtaining of the interim interdict.

[21]        Accordingly, apropos the first part of the order in paragraph 2 comprising the interim interdict, the Court will rescind 50% of the costs in the order for costs as an estimate of the costs that were incurred in obtaining the interim interdict.

[22]        The application by the applicants for the substantive relief of rescission of paragraph 2 of the order comprising the interim interdict rests on a different footing. Unlike a costs order where a Court is always vested with a discretion, no such discretion exists in the case of an application for substantive relief that is redundant and unnecessary. In such a case, the application for the redundant and unnecessary substantive relief holds no potential for the creation of a lis between parties calling for adjudication, and the only competent order for a Court to make in such cases is the striking from the roll of the application for such redundant and unnecessary relief.

[23]        This has the result that the only competent order that this Court can make on the unnecessary application for the rescission of the lapsed interim interdict in paragraph 2 of the order is the striking of this component of the applicants’ application from the roll.

[24]        In the normal course, the costs associated with the striking from the roll of the unnecessary application for the rescission of the interim interdict in paragraph 2 of the order would follow the result and be awarded to the First Respondent. However, due to the lapse of the interim interdict caused by the First Respondent’s inaction, this Court once again intends resorting to the discretion conferred on it in relation to costs to direct that there will be no consequential costs order against the applicants associated with the striking from the roll of their application for rescission of this component of the order.

[25]        The Court turns now to a consideration of the application for rescission of the second part of the order of the Honourable Vally, J in paragraphs 3, 4 and 5 thereof, which is final in its terms.

[26]        Under the Common Law, the applicants need to show “sufficient cause” for rescission of this part of the order.

[27]        In Chetty v Law Society, Transvaal[3] the Court considered the requirements of the concept of “sufficient cause”. The Honourable Miller, JA, in the course of delivering the Judgment of the Court in the matter, is reported as follows at 765A-C:

“The term “sufficient cause” (or “good cause”) defies precise or         comprehensive definition, for many and various factors require to         be considered. (See Cairns’ Executors v Gaarn 1912 AD 181 at     186 per Innes JA.) But it is clear that in principle and in the long- standing practice of our Courts two essential elements of       “sufficient cause” for rescission of a judgment by default are:

(i)        that the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii)        that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success.”

[28]        As already pointed out in paragraph [4] above, paragraph 3.1 of the order that requires the applicants to remove the fence installed along the First Respondent’s east double storey wall was not included in the applicants’ assertion that they had complied with all the relief granted in the order prior to them having received notice of the urgent application.

[29]        Contrary to the general defence raised by the applicants that they had complied with all the relief in the order prior to the granting thereof, the applicants say the following in paragraph 39 of their founding affidavit at Record 002-15:

“Therefore, I only became aware of the urgent application on the evening of 27^th Feb 2020 and upon reading it, I realised that all of the relief that he sought save for removal of the steel fence, had become academic because I had already reinstated the channel, and moved the steel post. More on this later hereunder.”

[30]        Further hereto, in paragraphs 84 to 86 of their founding affidavit at Record 002-26, the applicants set up a substantive defence to the requirement that they remove the fence, which is disputed by the First Respondent in paragraphs 114, 115 and 116 of his answering affidavit at Record 004-44.

[31]        The merits of this defence needed to be tested by the Honourable Vally, J at the hearing of the application in the urgent Court on 4^th March 2020, which could only have been achieved had the applicants raised the defence in an answering affidavit.

[32]        The applicants’ attempt in paragraph 12 (extracted hereunder) of their founding affidavit at Record 002-9 to explain the alleged reasonableness of their omission to have delivered an answering affidavit to the urgent application, can only possibly apply to their omission to have delivered an answering affidavit to relief sought and granted in the order that they had allegedly complied with before they had received notice of the urgent application. This is manifest from what is stated by the applicants in paragraph 12 of the founding affidavit at Record 002-9 as follows:

“Although we were represented during the urgent court proceedings, I believe that our omission in delivering an answering affidavit was reasonable in that full compliance relating to the relief sought by Pahad was made known to the latter many days before the urgent court hearing which rendered the drafting and delivery of an answering affidavit nugatory.”

[33]        There is no explanation furnished by the applicants in their founding affidavit for their omission to have delivered an answering affidavit setting out their actual defence to the relief sought in the urgent application for removal of the fence and granted as such in paragraph 3.1 of the order.

[34]        There is therefore no need for this Court to consider the second requirement of the enquiry proposed by the Honourable Miller, JA in Chetty v Law Society, Transvaal (supra), namely, whether, on the merits, the applicants have a bona fide defence to the requirement in paragraph 3.1 of the order to remove the fence which, prima facie, carries some prospect of success.

[35]        The application for rescission of the relief granted in paragraph 3.2 of the order that the applicants provide access to their property to enable the First Respondent to reinstate the storm water drain removed by the applicants suffers the same fate. This is because the applicants’ contention that they had complied fully with this requirement prior to having received notice of the urgent application is not borne out by the evidence in their founding affidavit.

[36]        In paragraphs 62, 63 and 64 of their founding affidavit, the applicants (presumably repeating their advocate’s explanation from the Bar in the urgent application in response to the First Respondent’s claim in the urgent application for access to their property to enable him to reinstate the storm water drain removed by applicants), inter alia contend that they had themselves restored the First Respondent’s drainage channel along the east wall of his property. The First Respondent’s answer hereto in paragraphs 107 to 112 of his answering affidavit at Record 004-42 to 004-44 creates a dispute of fact that this Court is not required to resolve, because it is not relevant to the enquiry whether the applicants had, true to their contention in paragraph 12 of their founding affidavit, complied with the exact relief sought in the urgent application and granted in paragraph 3.2 of the order, namely to provide access to their property to enable the First Respondent to reinstate the storm water drain removed by them.

[37]        In order for the applicants to succeed in their application for rescission of paragraph 3.2 of the order, it was necessary for them to tender evidence of it having been agreed between them and the First Respondent before or at the hearing of the urgent application that the relief granted in paragraph 3.2 of the order was redundant and unnecessary due to the First Respondent at that time enjoying free and unfettered access to the storm water drain regardless of any dispute as to whether the applicants had indeed restored it.

[38]        This is so because it is not the applicants’ case in this application that the relief sought in the urgent application that led to paragraph 3.2 of the order was unnecessary because the applicants had restored the channel themselves, thereby dispensing with the First Respondent’s need for access thereto. Rather, the applicants’ case herein is that the relief in paragraph 3.2 of the order was unnecessary because it i.e. the provision of access to the applicants’ property to enable the First Respondent to reinstate the storm water drain removed by them, had already been granted to the First Respondent prior to the applicants’ receipt of notice of the urgent application.

[39]        The papers in this application, and more particularly the applicants’ founding affidavit where this case needed to be made out, do not support the applicants’ case in this regard.

[40]        A fortiori the applicants were required to set this defence out in an answering affidavit to provide the Honourable Vally, J with an opportunity of considering the merits thereof. Their failure to have done so is not explained at all, let alone inadequately. The whole question of access to the storm water drain is canvassed by the First Respondent in paragraphs 114 to 116 at Record 004-44 and in paragraphs 32, 33, 34 and 35 at Record 004-17 and 004-18 of his answering affidavit. It is clear from the contents hereof and the rejoinders thereto that it could never have been agreed prior to or at the hearing of the urgent application that the applicants had before notice to them of the urgent application granted free and unfettered access to their property to enable the First Respondent to reinstate the storm water drain removed by them, which is the case they are attempting to make out in this application for rescission of the order.

[41]        Once again therefore the applicants cannot progress beyond the first requirement of the enquiry into the existence of “sufficient cause” for the rescission of paragraph 3.2 of the order, due to their failure to provide a reasonable explanation for their default in delivery of an answering affidavit to paragraph 3.2 of the order as sought in the urgent application.

[42]        It is of course arguable that paragraphs 3.1 and 3.2 of the order constitute interlocutory orders under the action proceedings foreshadowed in paragraph 2 of the order. This may be the case if the issues reserved for action proceedings in paragraphs 2.1, 2.2 and 2.3 of the order were intended by the Court to include the competing rights to retain or dismantle the fence in paragraph 3.1 of the order and the nature and extent of access to be granted to the Second Respondent to reinstate the storm water drain removed by the applicants in paragraph 3.2 of the order.

[43]        If the issues reserved for action proceedings were intended by the Court to include these issues, then the Court that granted the order presumably has the power to set aside either or both of paragraphs 3.1 and 3.2 of the order on the basis that they constitute interlocutory relief linked to action proceedings which have dissolved.[4]

[44]        However, the applicants premised this as an application for rescission of a final order (including an interim interdict) granted by default of delivery of an answering affidavit, and not as an application for the setting aside of interim and interlocutory orders, as it may have been entitled to do in respect of the latter.

[45]        The relief granted in paragraphs 4 and 5 of the order is conjoined to the relief granted in paragraph 3, the former as a means of enforcement of the relief granted in paragraph 3. The costs granted in paragraph 5 follow the result of the urgent application as a whole which, save for the reduction that will be ordered in relation to the lapsed interim interdict in paragraph 2 of the order, justifiably follow the result of the urgent application.

[46]        The Court is of the view that there are no factors in the papers which justify the punitive costs that the First Respondent presses for against the applicants.

[47]        Finally, there does not appear to be any doubt as to the merit of the applicants’ application to strike out the contents of paragraph 57 of the First Respondent’s answering affidavit and annexure “AP27” thereto from the Record. They clearly offend the prohibition on the disclosure of privileged communications between competing parties in pending litigation.

Accordingly, the following is ordered:

1)         The application dated 2^nd May 2020 for rescission of paragraph 2 of the order of the Honourable Vally, J dated 4^th March 2020 is struck from the roll.

2)         The application dated 2^nd May 2020 for rescission of paragraphs 3 and 4 of the order of the Honourable Vally, J dated 4^th March 2020 is dismissed with costs to be taxed at 50% of the taxed costs of the application.

3)        Paragraph 5 of the order of the Honourable Vally, J dated 4^th March 2020 is rescinded and substituted as follows: “That the first and second respondents jointly and severally pay 50% of the costs of this application”.

4)        Paragraph 57 of the First Respondent’s answering affidavit and annexure “AP27” thereto are struck out of the Record of the application for rescission under case number 5277/2020 with costs of the application to strike out to be borne by the First Respondent.

 

 

S M KATZEW

Acting Judge of the High Court of South Africa

 

 

DATE OF JUDGMENT:           4^th November 2021.

DATE OF HEARING:              22^nd April 2021.   

 

APPEARANCES:

For Applicants:                                 N. Alli nadeem@law.co.za

Instructed by:                                   Michael Saltz Attorneys cell. 0829200343

 

 

For First Respondent:                      G.Y. Benson gillian@benson.co.za

Instructed by:                                   Pahad Attorneys cell. 0824148913

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