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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NUMBER: UM55/2020

 

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates

 

In the matter between:-

 

JOE (TEMEKI) MOTLHOMI                                                                1^st Applicant

 

ESAU KGOKONG MORAK                                                                2^nd Applicant

 

GEORGE (MAKI) MOTLHALE                                                            3^rd Applicant

 

D MOATSHE                                                                                         4^th Applicant

 

C MORAKA                                                                                          5^th Applicant

 

and

 

STONY LIME (PTY) LTD

(REG NO 96/07046/07)                                                                        Respondent

 

As well as:

 

CASE NUMBER: UM176/2020

 

In the matter between:-

 

JACOB KERILENG MOTLHABANE                                                  1^st Applicant

 

NICOLAS TSHEOP LEGOGI                                                              2^nd Applicant

 

and

 

STONY LIME (PTY) LTD

(REG NO 96/07046/07)                                                                        Respondent

 

IN RE:

 

STONY LIME (PTY) LTD

(REG NO 96/07046/07)                                                                        Applicant

 

and

 

JOE (TEMEKI) MOTLHOMI                                                                1^st Respondent

 

ESAU KGOKONG MORAK                                                                2^nd Respondent

 

GEORGE (MAKI) MOTLHALE                                                            3^rd Respondent

 

D MOATSHE                                                                                          4^th Respondent

 

C MORAKA                                                                                            5^th Respondent

 

JUDGMENT

 

FMM SNYMAN J.

 

Introduction:

[1]          This application before the Court is two-pronged:

 

1.1.       The applicants in the rescission application apply that this matter be consolidated with the matter under case number UM 176/2020; and

 

1.2.       That the judgment under case number UM 55/2020 made by the Honourable Justice Hendricks DJP on 10 September 2020 be rescinded and set aside.

 

1.3.       For the sake of clarity, I will refer to the parties as they are referred to in the main application, where the company Stony Lime (Pty) Ltd has been cited as the applicant.

 

1.4.       In summation, both the applications deal with prohibitory interdicts against the respondents for interference with the applicant’s mining activities and preventing certain acts, such as intimidation, threats and violence, against the employees of the applicant and the employees of the security company contracted by the applicant.

 

The matter under case number UM176/2020

[2]          On 10 September 2020 the applicant launched an urgent application for a prohibitory interdict against two individuals, namely JACOB KERILENG MOTLHBANE as first respondent and NICOLAS TSHEPO LEGOGI as second respondent.

[3]          The following relief was sought against the respondents:

 

3.1.       Interdicting and restraining the respondents from preventing the applicant’s employees access to the site where the applicant conducts its mining activity in terms of the mining licence obtained by Kalaka Mining (Pty) Ltd;

 

3.2.       Interdicting and restraining the respondents from entering the site where the applicant conducts its mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd for purposes of disrupting and interfering with the applicant’s mining activities and mining processes;

 

3.3.       Interdicting and restraining the respondents from intimidating, threatening, harassing and assaulting the applicant’s employees at the mining facility;

 

3.4.       Interdicting and restraining the respondents from intimidating, threatening, harassing and assaulting the contracted security guards at the mining facility;

 

3.5.       Interdicting and restraining the respondents from causing damage to the applicant’s and its employees’property, including but not limited to refraining from burning the property on the mining site as well as the processing site;

 

3.6.       Interdicting and restraining the respondents from causing damage to and sabotaging the machinery used in the mining process at the mining and processing site situated at the Farm Pony Northam Limpopo Province;

 

3.7.       Interdicting and restraining the Respondents from inciting other members of the community to perpetrate acts and/or unlawful acts that would in general interfere with the applicant’s mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd;

 

3.8.       Interdicting and restraining the respondents from co-opting any third party/parties to perpetrate acts and/or unlawful acts that would in general interfere with the applicant’s mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd.

.

[4]          On 10 September 2020 an interim order was granted by Hendricks DJP to the following effect:

 

4.1.       The respondents are interdicted from preventing the applicant’s employees access to the site where the applicant conducts its mining activities;

 

4.2.       The respondents are interdicted from entering the site where the applicant conducts its mining activity for purposes of disrupting and interfering with the applicant’s mining activities and mining processes;

 

4.3.       The respondents are interdicted from intimidating, threatening, harassing and assaulting the applicant’s employees;

 

4.4.       The respondents are interdicted from intimidating, threatening, harassing and assaulting the contracted security guards;

 

4.5.       The respondents are interdicted from causing damage to the applicant’s and its employees’ property;

 

4.6.       The respondents are interdicted from causing damage to and sabotaging the machinery used in the mining process at the mining and processing site situated at the Farm Pony Northam Limpopo Province;

 

4.7.       The respondents are interdicted from enticing other members of the community to perpetrate, act and/or unlawful acts that would in general interfere with the applicant’s mining activity; and

 

4.8.       The respondents are interdicted from co-opting any third party/parties to perpetrate, act and/or unlawful acts that would in general interfere with the applicant’s mining activity.

 

[5]          On 9 December 2020 Hendricks DJP postponed the matter to the opposed roll on the 13^th of May 2021 and reserved the costs.

 

[6]          On 13 May 2021 the following order was made by Hendricks DJP:

 

6.1.       The matter is postponed to 30 July 2021;

 

6.2.       The applications in UM55/2020 and UM176/2020 are to be heard on 30 July 2021;

 

6.3.       The respondent shall file their answering affidavit, if any, on or before 28 May 2021;

 

6.4.       The applicants shall file their replying affidavit, if any, on or before 11 June 2021;

 

6.5.       Costs be reserved.

 

[7]          The application for consolidation is dated 24 November 2020 and in the application for consolidation, the respondents JACOB KERILENG MOTLHBANE as first respondent and NICOLAS TSHEPO LEGOGI as second respondent applies that the matter under case number UM 176/2020 be consolidated with case number UM 55/2020.

 

[8]          This application for consolidation is opposed by the applicant on the basis that it would prolong the application, and that the respondent parties to both applications are not the same.

 

The matter under case number UM55/2020

[9]          On 18 March 2020 the following order was granted in favour of Stony Lime (Pty) Ltd by Djaje J:

 

9.1.       A Rule Nisi be issued calling upon the respondents and all other interested parties to furnish reasons, if any, to the Court on 14 August 2020 at 10h00 or as soon thereafter as the matter may be heard as to why a final order confirming the undermentioned should not be granted; and

 

9.2.       Interdicting and restraining the respondents from preventing the applicant’s employees access to the site where the applicant conducts its mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd;

 

9.3.       Interdicting and restraining the respondents from entering the site where the applicant conducts its mining activities in terms of the mining license obtained by Kalaka Mining (Pty) Ltd for purposed of disrupting and interfering with the applicant’s mining activities and mining processes;

 

9.4.       Interdicting and restraining the respondents from intimidating, threatening, harassing and assaulting the applicant’s employees at the mining facility;

 

9.5.       Interdicting and restraining the respondents from intimidating, threatening, harassing and assaulting the contracted security guards at the mining facility;

 

9.6.       Interdicting and restraining the respondents from causing damage to the applicant’s and its employees’ property, including but not limited to refrain from burning the property on the mining site as well as processing site;

 

9.7.       Interdicting and restraining the respondents from causing damage and sabotaging the machinery used in the mining process at the mining and processing site situated at the Farm Pony Northam Limpopo Province;

 

9.8.       Interdicting and restraining the respondents from inciting other members of the community to perpetrate acts and/or unlawful acts that would in general interfere with the applicant’s mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd;

 

9.9.       Interdicting and restraining the respondents from co-opting any third party/parties to perpetrate acts and/or unlawful acts that would in general interfere with the applicant’s mining activity in terms of the mining license obtained by Kalaka Mining (Pty) Ltd;

 

9.10.    The respondents be ordered to pay costs of the application in the event of opposition to the application;

 

9.11.    An order that the relief granted in terms of [8.2] to [8.10] shall operate as an interim interdict with immediate effect, pending the return date of the rule nisi;

 

9.12.    The South African Police Service and other relevant law enforcement agencies be ordered to execute the terms of the Court order in the event of any non-compliance by the respondents with the terms thereof;

 

9.13.    In the alternative and in the event that the South African Police Services can or will not execute this order it is ordered that an accredited appointed security company be appointed to enforce the compliance of the order;

 

9.14.    Service of the court order by e-mail to kgokongmoraka@outlook.com and affixing copies of the order to the office of the Kraalhoek village council Stand Number 20106, Ramokgoba Section, Kraalhoek.

 

[10]       In LAWSA the following is said in relation to the consolidation of actions. I hold the view that the same principles will apply when an application for consolidation is made in an application (thus motion) procedure:

 

“B11.1 Introduction The objects of consolidation of actions are similar to those that apply in the case of joinder or issuing a third party notice: convenience, prevention of multiplicity of actions with resultant costs savings and the prevention of conflicting judgments. (See Nel v Silicon Smelters (Edms) Bpk 1981 (4) SA 792 (A) 801–802). 

The provisions of rule 10 apply mutatis mutandis. This means especially that the cases to be consolidated must concern the determination of substantially the same question of law or fact and that the court has the power set out in rule 10(4). (See: Minister of Agriculture v Estate Randaree 1979 (1) SA 145 (A)). Consolidation may also be used instead of the third party procedure.”

 

[11]       Rule 11 of the Uniform Rules of Court provides as follows:

 

“Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon:

 

(a)          The said actions shall proceed as one action;

 

(b)          The provisions of Rule 10 shall mutatis mutandis apply with regard to the action so consolidated; and

 

(c)          The court may make any order which to it seems meet with regard to the further procedure, and may give one judgment disposing of all matters in dispute in the said actions.”

 

[12]       It appears from the citation itself that the two respondents in the matter under case number UM176/2020 are not included in the 5 (five) respondents cited under case number UM55/2020. Despite the fact that the relief sought is similar in both application, and the applicant is the same applicant in both applications, the parties have to be essentially the same for an application for consolidation to be successful.

 

[13]       It is clear that the discretion of the Court is wide in this regard. It is also clear that the paramount test for consolidation is convenience. Consolidation will be refused if consolidation is likely to be prejudicial to any of the parties. The onus rests on the applicants in the consolidation application to show that consolidation is favoured by the balance of convenience and that no party affected thereby will suffer prejudice.

 

[14]       The relief sought in both applications are similar, if not identical. The fact that the two respondents under case number 55/2020 are not included as respondents in the matter under the case number 176/2020, cannot in itself place a bar on consolidation. Having regard to the nature of the relief sought and granted, I hold the view that it would be convenient for the Court to consider both applications together.

 

[15]       It therefore follows that the application for consolidation should be granted.

 

[16]       Both the Rule Nisi’s in the abovementioned applications have been made final on the respective return dates.

 

[17]       What remains for consideration before this Court, is the application for rescission by the respondents, against the judgment of Hendricks DJP on 10 September 2020 under case number 55/2020.

 

The rescission application

[18]       The respondents apply for rescission on the basis that the judgment was erroneously obtained in their absence. The respondents (in the matter under case number UM55/2020) claim that they have had a substantial interest in the matter under case number UM176/2020 and were not party to those proceedings. When the judgement sought to be rescinded, was handed down, the respondents were not part of the proceedings.

 

[19]       The respondents state that they were not in wilful default for failing to attend to the court proceedings as they claim that there was an arrangement between the legal representatives that the matter would not proceed. In contrast thereto, the applicant states that the respondents indicated that they do not intend to file a notice of intention to oppose the application. The attorneys of the respondent only came on record after service of the Rule Nisi application.

 

[20]       In addition to the above, the attorney of record for the respondents had to close his office on the day that the application was heard, due to a Covid 19 infection of one of his staff members. The attorney for the applicant state that the attorney for the respondent was fully aware of the intention of the applicant to move for the relief sought, and the attorney for the respondent failed to make arrangements with the office of the Registrar of the Honourable Deputy Justice President Hendricks. No agreement to postpone or stand down was reached between the litigants or their legal representatives.

 

[21]       The respondents claim that their absence amount to an error in law which is a gross error to the embarrassment of this Court and militates against the proper administration of justice. The respondents also state that Rule 42(1)(a) do not require an applicant in a rescission application to establish good cause in the sense of explanation for his default and a bona fide defence. The applicant denies that the order was granted erroneously and state that the respondent’s attorney opportunistically decided not to attend Court well knowing that the applicant will proceed to seek a final order.

 

[22]       The respondent states that it has “solid prospects of success” in the matter. The Court is not favoured with an explanation or elaboration of this prospects of success.

 

[23]       The respondent claims that the applicant would suffer no prejudice should the matter be “properly adjudicated upon” when the respondents are granted an opportunity to present its case.

 

The legal principles in Rescission Applications

[24]       It is trite that, in considering whether or not to rescind a judgment or order the Court has to be satisfied that the applicant has shown good cause by giving a reasonable explanation of his / her default, that the application is bona fide and that he has a bona fide defence to the claim which prima facie has prospects of success. See: Mtshali and others v Masawi and others (2013) JOL 30630 (GSJ).

 

[25]       In order to succeed in a rescission application, the applicant is required to demonstrate good cause; a defence to the main claim; and that the defence was bona fide and the application was made bona fide and not with the intention to delay the respondents claim. Should the applicant fail to establish these requirements, the application falls to be dismissed. See: Aaliqah Logistics (Pty) Ltd v Thekwini Marine Steel CC [2016] JOL 36960 (KZD).

 

[26]       In this rescission application, the respondents did not raise anything which could create a bona fide dispute of fact in the main application, nor were there averments which could satisfy the Court that there are reasonable grounds to believe that a dispute of the factual position could be established. The interdict, as granted, enforces the legal position of law and order in our country and it would, in my view, be counter-intuitive to rescind an order that prohibits inter alia violent acts, intimidation or harassment. The rights of individuals to not be subjected to criminal behavior such as that specified in the court orders are to be balanced against the lack of the respondent’s rights to execute such unlawful actions.

 

[27]       In the circumstances, I find that there is no good cause shown by the respondents to have the judgment reviewed and set aside. I also find that there is no prospects of success or a bona fide defense to the claim.

 

[28]       For the reasons set out above, I find that the application for rescission is bound to fail. The interdict application accordingly follows suit.

 

 

Order:

[29]       In the premises I make the following order:

 

i)              The matters under case numbers UM 55/2020 and UM 176/2020 are consolidated and heard together;

 

ii)             The application for rescission of the order of Hendricks DJP dated 10 September 2020 is dismissed with costs.

 

 

FMM SNYMAN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

 

 

 

APPEARANCES:

DATE OF HEARING:                                        30 JULY 2021

DATE OF DELIVERY OF JUDGMENT:            02 NOVEMBER 2021

COUNSEL FOR APPLICANT:                          ADV M. RAMAILI

COUNSEL FOR RESPONDENT:                    ADV J.B LITTIG

 

ATTORNEYS FOR APPLICANT:                     NTSAMAI ATTORNEYS

1^ST FLOOR, OFFICE 13

MERLITE BUILDING

SHIPPARD AND WARREN STREET

MAHIKENG

 

ATTORNEYS FOR RESPONDENT:               NIENABER & WISSING

10 TILLARD STREET

MAHIKENG

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