Nndwammbi and Others v Pollock N.O and Others (56445/2020) [2024] ZAGPPHC 1308 (17 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2024 >> [2024] ZAGPPHC 1308 | Noteup | LawCite sino index ## Nndwammbi and Others v Pollock N.O and Others (56445/2020) [2024] ZAGPPHC 1308 (17 December 2024) Nndwammbi and Others v Pollock N.O and Others (56445/2020) [2024] ZAGPPHC 1308 (17 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2024_1308.html sino date 17 December 2024 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 56445/2020 1.       REPORTABLE: YES / NO 2.       OF INTEREST TO OTHER JUDGES: YES /NO 3.       REVISED: YES / NO DATE: 17 December 2024 SIGNATURE OF JUDGE: In the matter between: RUDZANI MORRIS NNDWAMMBI                                                   First Applicant PARALLEL PROPERTY HOLDINGS (PTY) LTD                             Second Applicant THIFHELIMBILU ERNEST NESANE                                               Third Applicant and RICHARD KEAY POLLOCK N.O                                                       First Respondent NURJEHAN ABDOOL GAFAAR OMAR N.O                                    Second Respondent OSCAR JABULANI SITHOLE N.O                                                    Third Respondent IGNATIUS CLEMENT MIKATEKO SHIRILELE N.O                           Fourth Respondent MICHELLE SCHUTTE N.O                                                                   Fifth Respondent (In their capacities as the Joint liquidators of the Sixth Respondent) VELE INVESTMENTS (PTY) LIMITED (IN LIQUIDATION)                  Sixth Respondent (in liquidation) JUDGMENT MEADEN A J On 07 NOVEMBER 2024 upon hearing counsel for the First - Sixth Respondents, in the absence of legal argument on behalf of the First and Second Applicants and their production of Heads of Argument and upon considering the papers, I handed down the following Order: [1] “ The application for the rescission of the order granted by the above Honourable Court dated 18 January 2021 is dismissed; and [2] the applicants are to pay the costs of the application on the attorney and client scale and that of legal counsel on Scale B. I refer to the parties as they were cited in the main application set down on 18 January 202 and in the rescission of judgment application as set down on 04 November 2024. The above Order was handed down, taking consideration of the undermentioned: [1] The First and Second Applicants resorted in launching a rescission of judgment application on 05 February 2024 and wherein they sought to rescind the Court Order previously granted by the Honourable Justice Mokosi on 18 January 2021. [1] In essence, Mokosi J had found that the 1 st – 6 th respondents collusively defrauded the Sixth applicant in the main application of R 5,6 million. Mokosi J in terms of Section 31 of the Insolvency Act 24 of 1936 set aside the unlawful dispositions and ordered that the above amount was jointly and severally payable by the respondents together with a penalty of R5,6 million in terms of Section 31(2) of the Insolvency Act. [2 ] [2] The rescission of judgment application references three applicants. [3] The third applicant - Mr. T.E Nesane, however failed to depose to an affidavit in support of this application. The document headed Confirmatory Affidavit [4] signed by the third applicant and annexed to the applicants’ Founding Affidavit was not signed before a Commissioner of Oaths and is thus not an affidavit [5] . From the perspective of the third applicant, there is accordingly no evidence on oath before this Court in support of this application. There is also no evidence establishing that the first and second applicants were entitled to bring this application in the name of the third applicant and with his blessing and support. [3] This rescission application was enrolled for hearing on 04 November 2024. The above circumstances were drawn to the attention of the third applicant who was personally present in Court during the week of 04 November 2024. Further, on 04 November 2024 legal counsel for the applicants did not appear in Court and the matter was stood down to 05 November 2024 to accommodate the applicants and while they ascertained what transpired with their counsel. On 05 November 2024, counsel appeared for the applicants and requested additional time in which to contend with this rescission of judgment application. This application was not voluminous and it was agreed between the parties that the matter would stand down to 07 November 2024 and whereupon, it would be argued. [4] Come 07 November 2024, the above counsel for the applicants did not appear in Court and the applicants’ attorney/legal practitioner, in the absence of legal counsel, declined to proceed forward with a presentation and argument of this rescission of judgment application launched at the behest of the applicants and instead sought a postponement of the rescission of judgment application. Also, the third applicant failed to produce an affidavit in support of the application and despite enjoying time in which so to do. Further, no Heads of Argument were filed on behalf of the applicants. On this basis, the applicants’ version was as set out in its Founding Affidavit to the rescission of judgment application. [5] Counsel for the first – sixth Respondents objected to a further postponement of this rescission of judgment application, confirming being ready to proceed with argument thereon and with that; raising concern regarding the implication of this rescission of judgment process becoming unduly protracted. It was clearly apparent from the aforesaid that the applicants were actually attempting unduly to delay the the conduct of this application and in seeking a further postponement. Being vested with the matter and given the clogged court rolls, I directed that the application proceed on the opposed roll. [6] Despite the applicants’ legal representatives being fully aware of the set down and enrolment of the opposed rescission of judgment application for hearing on 04 November 2024, no substantive explanation was then proffered on behalf of the applicants concerning the whereabouts and appointment of their legal counsel to argue this rescission of judgment application on their behalf before Court on 04 November 2024 and as then stood down to 05 and then 07 November 2024 and no substantive and sustainable application was then made out to postpone the argument of this application to a later date. [7] This conduct on the part of the applicants is not dissimilar to that prevalent in the main application and which then culminated in default judgment being granted against, inter alia, the 1 st – 3 rd respondents back on 18 January 2021. Upon the service of the main application, Mabuza Attorneys on behalf of the 1 st – 3 rd respondents on 01 December 2020 caused notice of intention to oppose to be served, but thereafter did not follow through with the production of a substantive answering affidavit on behalf of the respondents and in which they may have taken the above Honourable Court into their confidence and in setting out their version and defence to the main application. Instead, an application for postponement was resorted to and which was dismissed at Court on 18 January 2021. [8] Where the 1 st – 3 rd respondents in the main application enjoyed the opportunity to take this Honourable Court into their confidence and contend substantively with the merits of the main application, in the process setting out their version of circumstances and defence thereto; they failed so to do and this culminated in default judgment being granted against the 1 st – 3 rd respondents. [9] Now in resorting to this rescission of judgment application, the applicants again and while vested with the substantive main application, fail to contend with the circumstances framed therein together with the merits of the main application and in the process take this Court into their confidence and in substantively presenting their complete version and a sustainable bona fide defence to the main application. [10] In this context, the applicants allege that the court a quo failed to grant the applicants their rights to a fair, open and public hearing and with that abide the principles of “ audi alterum partem ”. [6] [11] Such allegations on the part of the applicants are clearly unsustainable when regard is had to the fact that the applicants for their part, while vested with the main application that they opposed, then did not formulate and compile a comprehensive and sustainable answer thereto and when possessed with sufficient time in which so to do. Instead, the respondents preferred to seek a postponement which was refused per the Court Order granted 18 January 2021. Further and in engaging this Court in this rescission application, the applicants have again preferred not to take this Court into their confidence and in substantively contending with the case made out in the main application and then in presenting a comprehensive synopsis of their version thereon and in summarizing their defences which have prospects of success. I construe the conduct of the respondents in the main application and in this rescission application as being misguided and actually disingenuous. [12] This was aggravated and with the applicants then seeking to again postpone court proceedings set down for 04 November 2024 and in the prevailing circumstances was refused by this Court. [13] Instead and in resorting to the above rescission application, the applicants place reliance on reference to the Constitution, Common Law and the Rules of Court in bringing such an application. [7] [14] With reference to the Uniform Rules of Court, the applicants do so and with reference Rule 31(2)(b) and Rule 42 of the Uniform High Court Rules. [15] Rule 31(2)(b) of the Uniform High Court Rules relates to the conduct of action proceedings. [8] The judgment granted on 18 January 2021 does not arise from an action but rather from an application, thus rendering reference by the applicants to Rule 31 (2) (b) as being misplaced and inapplicable. [16] Rule 42 provides that the court may rescind or vary an order or judgment that was erroneously sought or granted in the absence of an affected party or where there was an ambiguity, mistake common to the parties or patent error or omission. Berman AJ stated in Seatle v Protea Insurance Co Ltd : [9] “ A ‘patent error or omission’ has been described as an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it. See First Consolidated Leasing Corporation Ltd v McMullin 1975 (3) SA 606 (T) at 608F.” [10] [17] Having due regard to the circumstances of this rescission of judgment application, the application of Rule 42 is not applicable here and particularly in the absence of the applicants not actually answering on the main application and setting out their version and in the process summarizing sustainable defences. [18] On requirements for rescission under the common law, these were succinctly summarized in the matter of Government of the Republic of Zimbabwe v Fick: [11] “ The requirements for rescission of a default judgment are twofold. First, the applicant must furnish a reasonable and satisfactory explanation for its default. Second, it must show that on the merits it has a bona fide defence which prima facie carries some prospect of success. Proof of these requirements is taken as showing that there is sufficient cause for an order to be rescinded. A failure to meet one of them may result in refusal of the request to rescind.” [19] In terms of the existing common law test, for the applicants to succeed on rescission, the above requirements require to be met. The applicants must establish that they have a reasonable and satisfactory explanation for their failure to oppose these proceedings and that they have a bona fide case that carries some prospects of success. As above, this has certainly not been established in the main application and in this rescission of judgment application. The applicants’ failure to take the above Honourable Court into its confidence and with due regard to the above requirements is fatal to the applicants’ rescission of judgment application. [20] The applicants further seek rescission of judgment under the auspices of South African Consitution. In so doing, the applicants are required to demonstrate the existence of exceptional circumstances in engendering grounds for the granting of rescission of judgment. The applicants allege that this Court committed a patent error in that it contrary to the Constitution, dismissed the postponement application and ignored the applicants’ notice of intention to oppose and thereafter granted default judgment. [21] Here the applicants do not allude to the fact that upon opposing the main application, the applicants for their part failed to resort in compiling and serving a comprehensive answering affidavit (and while possessing sufficient time in which so to do) and that it was as a result hereof that default judgment was granted against the respondents in the main application. [22] This Court possesses a discretion in which to grant or refuse a postponement and substantive grounds require to be made out and in motivating why a postponement should be granted. In this context, the Constitutional Court has referenced: “ Ordinarily… if an application for a postponement is to be made on the day of the hearing of a case, the legal representatives… must appear and be ready to assist the Court both in regard to the application for the postponement itself and , if application is refused, the consequences that would follow.” [12] In reconciling the aforesaid with the applicants’ conduct at court during the week of 04 November 2024; the applicants preferred not to appear to present their rescission of judgment application and with that their application for postponement and further offered no assistance to the court hereon and as envisaged above. [23] The court a quo in the main application did not construe there being valid grounds for motivating and justifying a postponement of the main application. The rescission of judgment application takes this no further.  With no valid grounds for the postponement of such rescission of judgment being made out in this application for rescission of judgment and with the application itself lacking necessary averments relating to the existence of a bona fide defence which prima facie carries some prospects of success; this rescission of of judgment application cannot succeed and is dismissed. ORDER Accordingly, this application has been dismissed and on the basis below. [1] “ The application for the rescission of the order granted by the above Honourable Court dated 18 January 2021 is dismissed; and [2] the applicants are to pay the costs of the application on the attorney and client scale and that of legal counsel on Scale B. MEADEN J R ACTING JUDGE OF THE HIGH COURT This Judgment was handed down electronically by circulation to the parties’ and or parties’ representatives by email and by being uploaded to CaseLines. The date and time for the hand down is deemed to be 12h00 on this 17 th day of December 2024 Appearances For Applicants: No Appearance Instructed by: Ntabeni Attorneys For Respondents: Adv K Iles Instructed by: Werksmans Attorneys Date of Hearing: 07 November 2024 Date of Judgment: 17 December 2024 [1] 014-1 to 014-38. [2] FA1 014-6. [3] NOM 014-1. [4] 014-35. [5] ABSA Bank Ltd v Botha N.O and Others 2013 (5) SA 563 (GNP) at para 8. [6] 014-14 at 15 and 16. [7] 014-11. [8] Makhomisani N.O and Another v SB Guarantee Company (RF) (PTY) Limited [2022] ZAGPJHC 179 at para 55 and 56. [9] 1984 (2) SA 537 (C). [10] Seattle v Protea Insurance (n 9) at 541C-D. [11] [2013] ZACC 22 ; 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC) (Fick) at para 85; Zuma v Secretary of Judicial Comission of inquiry into the Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others [2021] ZACC 28 at para 71. [12] National Police Service Union and Others v Minister of Safety and Security 2000 (4) SA 1110 (CC) at 1113D. sino noindex make_database footer start