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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

CASE NO: M124/2020

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

RUSTENBURG LOCAL MUNICIPALITY                                First Applicant

MARKS RAPOO N.O.

(Cited in his official Capacity as the

Director: Rustenburg Rapid Transport)                               Second Applicant

and

ORLANDO IGNATIUS NTSALA                                             Respondent

 

Delivered: This judgment was handed down electronically by circulation to the parties' representatives via e-mail. The date and time of the handing down of judgment is deemed to be 10h00 a.m. on 10 June 2022.

 

ORDER

It is accordingly ordered that:

1.         Paragraphs (a), (b), (c), (d), (e) and (h) of paragraph 19 of the order handed down on 20 April 2021 is varied, with incorporation of paragraphs (f) and (g), to read as follows:

"(a) The applicant's application under the above case number is referred to trial, in which trial the applicant shall be referred to as the Plaintiff and the Respondents shall respectively be referred to as the First Defendant and the Second Defendant. "

(b)       The Notice of Motion and Founding Affidavit shall stand as a simple summons.

(c)       The Answering Affidavit of the Respondents shall stand as a Notice of Intention to Defend the Action.

(d)       The Plaintiff shall within 20 (Twenty) days of this Order deliver its Declaration.

(e)       The Defendants shall within 20 (Twenty) days of delivery of the Plaintiff's Declaration deliver their plea thereto.

(f)        The further exchange of pleadings and pre-trial procedures, including discovery and the request for and provision of trial particulars, shall be regulated by the Uniform Rules of the Court in respect of action proceedings. Discovery of documents not forming part of the application papers shall take place in accordance with the provisions of the Rules of Court.

(g)       The parties are granted leave to utilise Rule 28 in the event that either of the parties wishes to amend its papers.

(a)       The Applicant in the Application under the above case number is ordered to pay the costs of the Application."

2.         The respondent is ordered to pay the costs of this application.

 

JUDGMENT

 

PETERSEN J:

Introduction

[1]          This is an opposed application for variation of an order handed down on 20 April 2021 by Mtembu AJ, in terms of Rule 42(1)(b) of the Uniform Rules of Court, by the first and second applicants ("the applicants"). The order reads as follows:

"[19]  Therefore, I grant the following order:

(b)       The applicant's application under the above case number is referred to trial.

(c)       The notice of motion in the application shall stand as the applicant's combined summons.

(d)       The founding affidavit shall stand as the applicant's particulars of claim.

(e)       The respondents' answering affidavit shall stand as the respondents' plea.

(f)        The applicant's replying affidavit shall stand as the applicant's replication.

(g)       The further exchange of pleadings and pre-trial procedures, including discovery and the request for and provision of trial particulars, shall be regulated by the Uniform Rules of the Court in respect of action proceedings. Discovery of document not forming part of the application papers shall take place in accordance with the provisions of the Rules of Court

(h)       The parties are granted leave to utilise Rule 28 in the event that either of the parties wishes to amend its papers."

[2]          The relief sought by the applicants against the respondent is framed in the following terms:

"1.     THAT the Order of the Honourable Mtembu AJ handed down on 20 April 2021 be varied as follows:-

1.1   By varying paragraph (a) thereof to provide as follows:- "The Applicant's application under the above case number is referred to trial, in which trial the Applicant shall be referred to as the Plaintiff and the Respondents shall respectively be referred to as the First Defendant and the Second Defendant".

1.2   By varying paragraph (b) thereof to provide as follows:- "The Notice of Motion and Founding Affidavit shall stand as a simple summons".

1.3   By varying paragraph (c) thereof to provide as follows:- "The Answering Affidavit of the Respondents shall stand as a Notice of Intention to Defend the action".

1.4   By varying paragraph (d) thereof to provide as follows:- "The Plaintiff shall within 20 (TWENTY) days of this Order deliver its Declaration".

1.5   By varying paragraph (e) thereof to provide as follows:- ''The Defendants shall within 20 (TWENTY) days of delivery of the Plaintiff's Declaration deliver their plea thereto".

1.6   By including a new paragraph (h) to provide as follows:- "The Applicant in the Application under the above case number is ordered to pay the costs of the Application".

2.         THAT the Respondent pay the costs occasioned of this Application in the event of the Respondent opposing this Application, alternatively that the costs of this Application be in the cause in the event of same not being opposed.

3.         THAT further and/or alternative relief be granted."

The basis of the application

[3]          The basis of the application is captured as follows in paragraphs 10 to 14 of the founding affidavit which reads as follows:

"10. I respectfully submit that the intention of the referral is not in the usual form of such a referral to trial as may be garnered from the said Orders. I submit that this is a patent error that was made by the above Honourable Court and that it was probably intended to have been a referral in the ordinary form that would be in the form proposed by the variations contained in the Notice of Motion to the following end:-

(a)    The Applicant's application under the above case number is referred to trial, in this the Applicant shall be referred to as the Plaintiff and the Respondents shall respectively be referred to as the First Defendant and the Second Defendant.

(b)    The Notice of Motion and Founding Affidavit shall stand as a simple summons.

(c)     The Answering Affidavit of the Respondents shall stand as a Notice of Intention to Defend the action.

(d)    The Plaintiff shall within 20 (TWENTY) days of this Order deliver its Declaration.

(e)    The Defendants shall within 20 (TWENTY) days of delivery of the Plaintiff's Declaration deliver their plea thereto.

11.      Paragraphs (f) and (g) do not need variation, although I would respectfully submit that paragraph (g) seems superfluous.

12.      When regard is had to the contents of paragraph [18] of Annexure "FA1" it is clear that the above Honourable Court had intended to issue a costs order against the Respondent in casu (the Applicant in the principal Application). Such an Order was not included in paragraph [19] and thus constitutes a clear omission. To this end I submit that this omission will be cured by the inclusion of a new paragraph (h) to provide as follows:-

"The Applicant in the Application under the above case number is ordered to pay the costs of the Application."

13.      It is clear that costs order last raised hereinabove affects the Applicants who were made to argue an opposed application that should not have been pursued and serves to redress them for their costs therein.

14.      The Applicants are further engaged in the action but his process is not flowing sensibly and smoothly because of the patent errors that stand to be corrected as I have suggested aforesaid and which will streamline the process and cause same to flow sensibly and smoothly to the conclusion of the matter. It goes without saying that these errors affect the Applicants in the action that is proceeding consequent upon Annexures "FA1" and "FA2".

The basis of the opposition to the relief sought

[4]          The respondent opposes the relief sought on the following basis as set out at paragraphs 10 to 16 of the answering affidavit:

"10. His Lordship AM Mthembu AJ acted in accordance with the provisions of rule 6(5)(g) of the uniform rules of court, in that he made an order that the matter be referred for oral evidence and that the matter be referred to trial and further gave appropriate directions in this regard with regard to pleadings or definition of issues, or otherwise as is required by the rules.

11.      In this regard I pause to mention that or refer this honourable court to paragraph 19 of the judgment, which deals specifically with the fact that, first the matter is referred to trial, and secondly gave directions with regard to pleadings, to the effect that the notice of motion will constitute combined summons, founding affidavit will constitute particulars of claim, answering affidavit will constitute plea, replying affidavit will constitute replication and lastly the further exchange of pleadings and pre-trial procedures and including discovery and request for and provision for trial particulars will be regulated by the uniform rules of court.

12.      There is absolutely nothing untoward that His Lordship A M Mthembu AJ has done or any patent error he might have committed, and in fact he dealt with this matter meticulously, and followed exactly the same procedure as outlined in terms of rule 6(5)(g) of the uniform rules of court.

13.      It is my respectful submission that the directions with regard to the pleadings not only are guided by the discretion of His Lordship A M Mthembu AJ, but are equally guided by the extent of the dispute of fact, which in this case the extent of the dispute of fact does not warrant the filling of a declaration by the Respondent or plea by the Applicants. The Respondent stated his case in his founding affidavit ad the Applicants have responded to the allegations therein made.

14.      The Applicants herein, and including their attorney of record, is seriously attempting to dictate to His Lordship A M Mthembu AJ on how he must exercise his wide discretion and overlook what rule 6(5)(g) of the uniform rules of this court is providing for, and this cannot be allowed.

15.      At paragraph 18 of his judgment His Lordship A M Mthebu AJ, did mention that a costs order is warranted against the Applicant or Respondent in the present application, and with this being the case nothing stopped the Applicants to simply write the letter to the Registrar or His Lordship A M Mthembu AJ and bring the issue of costs to his attention, instead of filing this application which is unnecessary, costly and is aimed at delaying the matter further or frustrating the finalisation of the matter, considering His Lordship A M Mthembu AJ's finding at paragraph 15 of the judgment wherein he said ''The Court should adopt the process that is best calculated to ensure that justice is done with the least of delay on the merits of the case".

16.      However, the fact that the matter is referred to trial or the effect of the judgment of His Lordship A M Mthembu AJ, it does not bring this matter to finality and costs could still be dealt with during or at the end of trial of this matter, and bringing this application I still maintain that it was unnecessary, if one has regard to the fact that the First Applicant is the organ of the state which relies on public funds or tax payers monies to pursue this type of proceedings, and at best if this honourable court is inclined to grant this application it should only be with regard to the costs up to the date of judgment and as for this application, the Applicants must be held liable for the costs thereof as it was unnecessary."

Uniform Rule 42 (1)(b) of the Uniform Rules of Court

[5]          Uniform Rule 42(1)(b) of the Uniform Rules of Court provides as follows:

"42 Variation and rescission of orders

(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:

(b)       an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;

"

[6]          Rule 42(1)(b) envisages three jurisdictional factors in terms of which variation of an order or judgment may be granted; ambiguity, a patent error or an omission.

[7]          In the present application variation of the order at paragraph [19] of the judgment of Mtembu AJ is sought on two of the jurisdiction factors; ambiguity and an omission.

[8]          In Erasmus: Superior Court Practice, RS 17, 2021, 01-566, the authors, with reference to authority, opine as follows in respect of the meaning of rescind or vary:

"'Rescind or vary.' The rule deals exclusively with the rescission and variation of judgments and orders; it confers no jurisdiction on a court to grant an amendment of pleadings after judgment. A court may clarify its judgment or order if, on a proper interpretation, the meaning remains uncertain and it is sought to give effect to its true intention. (fn 60 ( Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306F-307A; Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) at 860 ... ) Even in such instance, the sense and substance of the order must not be altered.(fn 61 Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) at 860.)

(my emphasis and insertion of the footnotes)

[9]          The authors go on to say at RS 17, 2021, D1-570D as follows in respect of the meaning of an ambiguity, a patent error or omission:

"'An ambiguity, or a patent error or omission.' It is a fundamental principle of our law that a court order must be effective and enforceable. and it must be formulated in language that leaves no doubt as to what the order requires to be done.(fn 126 Eke v Parsons 2016 (3) SA 37 (CC) at 65E-G. See also Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) at 364D; Proxi Smart Services (Pty) Ltd v Law Society of South Africa 2018 (5) SA 644 (GP) at 656A; Monteiro v Diedricks 2021 (3) SA 482 (SCA) at paragraphs [23]-[24].) Not onlv must the order be couched in clear terms. but its purpose must also be readily ascertainable from the language used.(fn127 Eke v Parsons 2016 (3) SA 37 (CC) at 58F. See also Proxi Smart Services (Pty) Ltd v Law Society of South Africa 2018 (5) SA 644 (GP) at 655E-F; Monteiro v Diedricks 2021 (3) SA 482 (SCA) at paragraphs [23]-[24].)

An ambiguity or a patent error or omission has been described as an ambiguity or an error or omission as a result of which the iudgment granted does not reflect the real intention of the judicial officer pronouncing it: in other words, the ambiguous language or the patent error or the omission must be attributable to the court itself.(fn 128 Hanna v Mynhardt 1935 TPD 63; First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T) at 608F; Seatle v Protea Assurance Co Ltd 1984 (2) SA 537 (C) at 541C; Everson v Allianz Insurance Ltd 1989 (2) SA 173 (C) at 179H-180D; First National Bank of South Africa Ltd v Jurgens 1993 (1) SA 245 0N) at 246F; First National Bank of Southern Africa Ltd v Van Rensburg NO 1994 (1) SA 677 (T) at 680J-681B; Laduma Financial Services v De La Bat NO 1999 (4) SA 1283 (0) at 1286F-1287G; Adonis v Additional Magistrate, Bellville 2007 (2) SA 147 (C) at 153G-I; and see Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) at 86C-D.'J

(my emphasis and insertion of the footnotes)

Discussion

[10]      The prima facie view I had taken of the application was that the main issue turned on the question of costs which is not covered by the order at paragraph 19 of the judgment of Mtembu AJ, which Adv Ngwandwe for the respondent aligned himself with. Adv van Rooyen for the applicants, however, persisted that the issue of costs was but one of the issues, with the meaning of most of paragraph 19 of the order being assailed as being ambiguous.

[11]       I first propose to deal with the issue of costs which does not form part of the order at paragraph 19 of the judgment of Mtembu AJ. The nub of the respondent's case in this regard is that the judge dealt with the issue of costs in passing and that the absence of any reference to costs in the order does not constitute an error on the part of the judge. The applicants case, however, is that the absence of any reference to costs in the order is not an error on the part of the judge but an omission.

[12]       In submissions before me Adv Ngwandwe repeatedly made the point that the issue of costs was argued extensively before Mtembu AJ. In my view, it is therefore not surprising that a paragraph was dedicated at the end of the judgment to the issue of costs and succinctly identified as such under the heading COSTS. It is apposite to quote paragraph 18 of the judgment, to fully appreciate the content thereof and to appreciate what the intention of the judge was:

"COSTS

18.  What remains is the question of costs. The general rule is that costs must follow the result. The respondent raised a point in limine regarding the existence of a dispute of fact in this matter. The applicant conceded in the replying affidavit. Instead of making an application for referral at the outset, before hearing, since the applicant had become aware of the respondent's averments, decided, anyway, to proceed with the matter. It was only after being engaged by the Court that the applicant sought an order, in the alternative, of referring the matter to trial. The respondent succeeded in its point in limine on existence of dispute of fact, hence I referred this matter to trial. Therefore, a cost order is warranted against the applicant. Further, I am not particularly impressed with the manner in which the delay has occurred in bringing this application. This is however by no means of deciding the issue of prescription."

[13]       The introductory sentence introduces to the reader what the judge was to consider; ".. .the question of costs". The general rule in respect of costs follows; "...costs must follow the result." The ineluctable deduction from these introductory remarks is that costs must be considered in light of the result, or otherwise stated, in light of the conclusion reached on who the successful party is. The judge then elaborates on why the result was reached and concludes; "Therefore, a cost order is warranted against the applicant." To my mind, it is clear and unequivocal that, the judge was intent on mulching the respondents with a cost order, for the reasons he set out in paragraph 18. The penultimate sentence of paragraph 18 would further suggest that the judge may have even had in mind, a punitive cost order.

[14]       I am accordingly satisfied that the absence of a cost order in paragraph 19 of the judgment was clearly an omission on the part of the judge, when regard is had to paragraph 18 considered in context of the application as a whole. The relief sought in respect of the cost order accordingly stands to be granted.

[15]       I, secondly, turn to the issue of the wording of the remainder of the orders in paragraph 19 of the judgment. In this regard, the purport of the submissions by Adv Ngwandwe, is that the variation of the implicated paragraphs sought by the applicants does not change the essence of the orders. Otherwise stated, what the applicants seek is superfluous. The purport of Adv van Rooyen's submissions in relation to the relief sought is essentially a refinement of the orders to accord with the manner in which orders are generally formulated. Such refinement of the wording, on his submissions would place the parties in a position to prepare the matter for trial in a more structured manner.

[16]       Having carefully considered the submissions in regard to the formulation of the orders, with due regard to the prima facie which I held, I can see prejudice to the parties, if the order is varied in accordance with the general or standard wording employed by the Courts when referring an application to trial. The relief sought in this regard accordingly stands to be granted.

Costs

[17]       I, as with Mtembu AJ, re-iterate the general rule, that costs must follow suit. The respondents in the present application were given notice that an order would be sought for costs in the event of opposition or in the alternatively that the costs of the application be costs in the cause in the event of not being opposed. Whilst costs remains within the discretion of the Court, the notice given by the applicants as aforesaid, was fair, having regard to the nature of the application and the peculiar circumstances which necessitated the application.

[18]       I can find no basis on which the applicants should not be granted costs of the application, where the respondents have elected to oppose the application.

Order

[19]       It is accordingly ordered that:

3.         Paragraphs (a), (b), (c), (d), (e) and (h) of paragraph 19 of the order handed down on 20 April 2021 is varied, with incorporation of paragraphs (f) and (g), to read as follows:

"(a)  The applicant's application under the above case number is referred to trial, in which trial the applicant shall be referred to as the Plaintiff and the Respondents shall respectively be referred to as the First Defendant and the Second Defendant.

(b)    The Notice of Motion and Founding Affidavit shall stand as a simple summons.

(c)    The Answering Affidavit of the Respondents shall stand as a Notice of Intention to Defend the Action.

(d)    The Plaintiff shall within 20 (Twenty) days of this Order deliver its Declaration.

(e)    The Defendants shall within 20 (Twenty) days of delivery of the Plaintiff's Declaration deliver their plea thereto.

(f)     The further exchange of pleadings and pre-trial procedures, including discovery and the request for and provision of trial particulars, shall be regulated by the Uniform Rules of the Court in respect of action proceedings. Discovery of documents not forming part of the application papers shall take place in accordance with the provisions of the Rules of Court.

(g)    The parties are granted leave to utilise Rule 28 in the event that either of the parties wishes to amend its papers.

(i)     The Applicant in the Application under the above case number is ordered to pay the costs of the Application."

4.         The respondent is ordered to pay the costs of this application.

 

 

A H PETERSEN

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

For the Applicants                         ADV J. VAN ROOYEN

Instructed by                                 M E Tlou Attorneys & Associates

No.43, Cnr Baden Powell & Visser Street

Golfview

MAHIKENG

For the Respondent                      ADV P. J. NGANDWE

Instructed by                                 Modiboa Attorneys Inc.

107 Readman Street

Wilkoppies

KLERKSDORP

c/o Motshabi & Associates Inc.

No.12 Havenga Street

Golfview

MAHIKENG

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