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			                
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
						 	           CASE NO. :  3180/2013
						                  Heard on   :  04 June 2018
                                                                          Date delivered:   14 August 2018 

In the matter between:

MZUKISI  LUBABALO  NDARA				 First      Applicant
UNATHI NDARA							 Second Applicant

And

WEIR INVESTMENTS (PTY) LTD				First     Respondent

FIRSTRAND BANK LIMITED t/a WESBANK		Second Respondent

JAEN VAN AARDT						Third    Respondent

_________________________________________________________________             

             				JUDGMENT
_________________________________________________________________

MAJIKI J:

[1]	The applicants, a husband and wife in their amended notice of motion pray for an order declaring that the absence of the record of proceedings relating to the applicants’ claim and the special plea renders the judgment, upholding the special plea of prescription against their claim against the respondent, irregular and a nullity.  Further, that absence of the record of the proceedings relevant to the application for leave to appeal the judgment on special plea renders the proceedings to be irregular and accordingly a nullity and directing the re-hearing of the special peal.  In the alternative, they sought an order condoning the late filing of the application for the rescission of the judgment dismissing their application for leave to appeal against the judgment upholding the special plea); rescission of the order, granted in their absence, dismissing the application for leave to appeal and directing the re-hearing of the said application.

[2]	The application is opposed by the respondents.  With no opposition to the application for condonation of the late filing of the replying affidavit, condonation was duly granted.

[3]	The brief background of the matter is that on 25 November 2004 the first applicant, whilst still working for the Eastern Cape Provincial Government, entered into an instalment sale agreement (the agreement) with the first respondent, represented by the third respondent and other employees, for a purchase of a Nissan X-Trail with registration letters and numbers DFR 613 EC (herein after referred  to as a motor vehicle).  The transaction was subject to a trade in of the first applicant’s Nissan Almera with registration letters and numbers […] 593 EC.

[4]	The defendants were aware that the first applicant was eligible to a government car scheme or subsidy of prime less 2% interest on purchase of a new motor vehicle.  They represented to the first applicant that the motor vehicle was new, although it was a demo motor vehicle.  The defendants stated it was delivered as new on 8  October 2004 and not 25 November 2004, with 6700 kilometres reflecting as already travelled.

[5]	According to the plaintiff he lost on the subsidy benefit, lost due to difference in price  he paid for  a new vehicle and not the true price of a demo motor vehicle, and was charged for various other finance charges based on a purchase of a new motor vehicle, amongst others.  This according to him was misrepresentation on the part of the respondents, perpetrated by fraud.  He also lost his credit worthiness, suffered pain, stress, depression, suffering which resulted in him being constantly hospitalised and incurring medical expenses.  He eventually had to resign from his job and lost on his employment benefits.  On 30 September 2013, the applicants issued summons against the respondents claiming cancellation of the contract, the return of the vehicle to the defendants and R10 000 000.00 in damages.

[6]	That claim was met up with a special plea raised in terms of section 11(d) of the Prescription Act 68 of 1969, subjecting the cause of action to a three year extinctive period.  Summons was issued nine years later.  The plaintiff replicated stating that he only became aware of the facts amounting to fraudulent conduct on the part of the respondents in August 2013.  On 2 to 3 March 2015 the special plea then proceeded, with evidence led and this court in a judgment of 5 March 2015, penned by Revelas J upheld the special plea.  She found that the first applicant had litigated on the same facts, difference between price paid and market value of a demo motor vehicle; he also lodged written complaints about same between 2005 and 2007.  The first applicant said he only obtained  a standard form, completed by respondents’ employee ticking a box therein, as  though the purchase was in respect of a new vehicle in 2013.    According to the first applicant the form revealed that his transaction was based on application of finance charges for a new vehicle and not a demo vehicle.   
The learned judge, however,  amongst others, found that the facts relied on for fraud, arose at the time of the conclusion of the contract and he had been aware of identity of the respondents.  The learned Judge concluded that there was nothing new revealed in the said form.  

The learned Judge reasoned that the form was completed four days after the fixed price of the vehicle was agreed to. It may prove mala fides on the respondent’s part, but this mala fides the first applicant already complained of in 2005. That process  which he earlier started was not abandoned for lack of evidence. 

[7]	It is common cause that on 26 March 2015 the applicants filed notice of application for leave to appeal. When the applicants did not arrange a date for the hearing, on 28 April 2015 the respondents then filed a request for Revelas J to determine the date for the hearing of the  leave  to appeal.  This she did on 12 August 2015. The matter was enrolled for 18 August 2015 which was less than 10 days  period required by Joint Rules of Practice 10 of this division.   On 13 August 2015 the respondents advised the applicants of the date via email, despite the fact that the applicants had not nominated an email address for communication with them.  On the date of the hearing there was no appearance for the applicants, the application was dismissed.

[8]	 According to the applicants, there was no record of proceedings in relation to the special plea hearing. Also, they did not receive notification of date and time of the hearing of the application for leave to appeal.   Their legal representative to whom the email was addressed to was in Mozambique until 22 August 2015 and had no access to his emails. No notice was issued by the registrar of the court as required by the rule of practice.

[9]	The applicant wanted this preliminary point, relating to the set down of the leave to appeal to be disposed of first, because that could dispose  of the substantial parts of the application. It could be determined on the undisputed facts. The court was not inclined to deal with the matter in piecemeal. The matter was dealt with in its totality as disposing of one aspect had a potential of burdening the parties and another court with a further hearing on further issues.  It would only dispose of the matter if that issue was found in applicant’s favour.    

[10]	The issue for this application is whether the record of proceedings for the special plea and leave to appeal render the said proceedings to be a nullity. Further, whether a case has been made for condonation of the late filing of application for rescission of the judgment on the leave to appeal the judgment on special plea and  further whether a case  for rescission of same has been made. 

[11]	According to the applicants they needed the transcription of both proceedings to pursue the application for leave to appeal before  Revelas J and the petition to the Supreme Court of Appeal, respectively. 

[12]	In as far as “the application for leave to appeal the respondents have conceded that rule 10(c) of the Joint Rules of Practice was not complied with, when the notice for hearing of the leave to appeal was issued.  However, according to the respondents a case still has to be made for rescission filed three years later. The delay herein constitutes a bar to the granting of the said order.  Furthermore, the applicants have not pleaded any facts relevant to the determination of prospects of success to obtain leave to appeal and to upset the judgment on special plea. According to the respondents there are no prospects of success in having the order on special plea  reversed.  In the circumstances, it would be futile to rescind the order of court dismissing the applicant’s application for leave to appeal. As for the transcripts, none of the intended applications for leave to appeal required such, in order to be pursued.  After the dismissal of application for leave to appeal, the petition  to the Supreme Court of  Appeal had to be filed in thirty (30) days.  Failure to do so required application for condonation.

[13]	In as far as the application for rescission of the judgment on leave to appeal, the only issue I need to determine is whether in the event of the rescission of the judgment on the leave to appeal on the special plea being granted, such would be of any value in the remaining issue of pursuing the appeal against the actual judgment on the special plea and whether the application for rescission had to be brought within a prescribed period. 

[14]	Rule 42(1)(a) of the Uniform Rules provides; 
“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 the party affected thereby”.

[15]	During the hearing Mr De La Harpe for the respondents did not persist with the argument that the applicant had to prove that he has a bona fide defence. In Lodhi 2 Properties Investments CC v Bondeu Development (Pty) Ltd  2007(6) SA 87 SCA at 95 F it was held that the existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgement into an erroneous judgment.  I need say no more on this aspect.  However, I may make reference to the application to leave appeal annexure MLN3, to the founding affidavit.  The applicants state as follows with regard to prescription “the learned Judge erred in failing to find that the issue is fraud demonstrated that he had not been aware of the fraud that was the cause of the inflated price”. 
According to the applicant he only came to know of the reason behind the inflated price in August 2013.   Also,  he raised the issue of public interest in the issue central to the dispute. The applicants aver that the issue involves corruption manifested activities in the motor industry against consumers. The respondents had been responding to media enquiries about the matter, which shows that it is of public interest.  Whether the court hearing the application would be persuaded, is another matter.   In my view, he has raised some viable points on the merits.

DELAY IN THE BRINGING 15 OF THE APPLICATION
 
[16]	The issue that seems to be contentious remains that of the period it took before the applicant could bring the application.  The applicants state that the first applicant was in constant contact with his legal representative, Mr Makanya, ever since he filed his application for leave to appeal on 5 May 2018, following up on the status of his application.  Every time he would be informed that all was going according to plan, for five (5) months, at one time on 30 July 2015 travelled from Cape Town to East London to check on the progress of the application from his legal representative. He was specifically advised the application had not been given a date yet. After the July meeting he struggled to get hold of his legal representative.  Eventually, he did not take his telephone calls and  he suspected  that he had blocked his calls.  In January 2016 he instructed another legal representative, Mr Talapile to take over his matter, after their initial contact in December 2015. Mr Talapile needed to obtain the file from Mr Makhanya, once he did that he discovered that the application was in court and was disposed of on 18 August 2015.

[17] 	Mr Talapile then requested the transcripts of the proceedings of the hearing of the special plea.   Apparently,  the record was incomplete because the first applicant refers to annexures MLN4 and MLN8, being an email of 28 January 2016  from Veritas transcribers, and another from him.  Veritas email confirms that people from Veritas had been to the high court and they were  advised that something will be done in order to obtain the missing portion of evidence. His email is dated 3 June 2016, it confirms to the registrar of this court that he learnt that his legal representative, his Gramhamstown correspondent attorney and his advocate were never advised of  the hearing of 18 August 2015; the Court file could not be located and that the transcript of proceedings Mr Talapile received, for proceeding on special plea, was  incomplete. This he confirmed in an email of 17 June 2016 to Mr Talapile. Mr Talapile tried to obtain some documentation from  advocate Sandi who represented  the applicants during the hearing of the special plea and Mr Sandi  had none.

[18]	For the remainder of 2016, he and Mr Talapile were in contact with  the registrar telephonically and in writing following up on the matter relating to the  outstanding records. On 12 May 2017 at Mr Talapile’s request, they were furnished with Judge’s notes of the proceedings on special plea, but those could not assist them, they are just a summary that is not clearly legible.  On 24 July Mr Talapile insisted on receiving complete record or an affidavit confirming that the records are not available.  Thereafter repeated telephone follow up enquiries followed, but no response was forthcoming. On 6 October 2017 he personally travelled to Grahamstown to serve a letter communicating similar sentiments. He still found no records; the file had an  unclear endorsement together with the order dismissing the application for leave to appeal.  Eventually, in November 2017 they received the requested affidavit, dated 30 October 2017, confirming that the record was missing, it also stated that the application for leave to appeal was struck off roll.   He then obtained a legal advice from his legal representative in Cape Town, Mr Gantolo that the matter could not be taken up to the Supreme Court of Appeal for petition, without the record of proceedings.   A decision to make the present application was therefore taken.

[19]	Between 5 and 13 February he was out of the country due to work related commitments. Counsel who settled the application papers was also engaged in his other schedule and the application was settled on 27 February 2018.

[20]	It was submitted in argument on behalf of the applicants that there is no time bar in rule 42(1)(a).   In Mutebwa v  Mutebwa and Another 2001(2) SA 193 the requirements under the said section are stated as follows;

“The use of the word ‘may’ in opening paragraph of the rule (rule 42(1)) tends to indicate circumstances under which the court will consider a rescission or variation of Judgement, namely that it may act mero motu or upon application by an affected party.  The Rule maker  could not have intended to confer  upon the court a  power to refuse rescission in spite  of it being clearly established that the judgement was erroneously granted. The Rule should, therefore, be construed to mean that once it is established that the Judgement was erroneously granted in the absence of a party affected, thereby a rescission judgement of the judgement should be granted”
This was approved in Government of Republic of Zimbabwe v Fick and Others (Pty) Ltd 2013 (5) SA 325 (CC)  at par 97.

[21]	As regards finality of judgments the procedure in FNB v Jurgens and Others 1994 (1) SA 677 (T) 681, is not relevant in this application.  It is relevant under common law in terms of which a court may recall its order immediately after having given it or within a reasonable time thereof, either mero motu  or at the instance of a party without a formal application.

[22]	As regards the principle of certainty of judgments it is submitted that reference to the doctrine of peremption is apposite.  In  Dabner v SA Railways and Harbours 1920 AD  583 at 594, the principle governing peremption is explained as follows, like in many other occasions before; “if the unsuccessful litigant  is such as to point indubitably and necessarily to the  conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it.  But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal.  The onus of establishing that position is upon the party alleging it.” The onus to establish peremption would be discharged only when the conduct or communication relied on does “point indubitably and necessarily to the conclusion” that there has been an abandonment of the right to appeal and a resignation to the unfavourable judgment or order.”  The respondents have not alleged that the conduct of the applicants was such that it pointed to an abandonment of the right to appeal or right to challenge the judgment through rescission.  The applicants have at all times shown their intent on attacking the judgment on special plea.

[23]	According to the respondents any application for rescission of an order of court whether under the jurisdiction of rule 42 or common law, is required to be brought within a reasonable time.   The first applicant puts all the blame on the legal representatives.  Those are legal representatives chosen by him.  There was no single legal step taken, all was done was just in the form of letters.

[24]	Indeed the applicants delayed to bring the present application.  However, I agree with them that rule 42 has no time prescription.  Even if I consider that applications have to be brought within a reasonable time, I would not be able to conclude that the applicants did not explain the reason for their delay in their bringing of this application.  After the launch of the leave to appeal in March 2015, they sat on the belief that all was under control, as assured by their legal representative.  The first applicant kept pushing for update on progress, and even had to travel from Cape Town to East London when that was not forthcoming. In January 2016, they changed legal representatives.  He learnt even from officials of this Court that the application was only struck off the roll.  All efforts to get the record of proceedings came to naught.  It was only in October/November 2017 when he travelled from Cape Town to Grahamstown, that he learnt of the true state of affairs.  The actual delay then would be from then up to when the application was launched on 5 May 2018.  I am of the view that, the application could well have been brought in less than about the five months period they took.  The applicants could have secured another counsel  immediately upon his return on 13 February 2018.  Having said that, however, when I consider the efforts he already put in the matter and the fact that rule 42 prescribes no time period for the launching of the application, I am not inclined to close all doors for the applicant at this stage.  Further, none of the authorities the respondents referred me to, relate to an application under rule 42.

[25]	I agree that they did not need the record to take the matter further, however, with new legal representatives, in order to furnished an informed view on the matter, it cannot be said, it was unreasonable for them to want to see the record and have the full  picture of issues.  I consider the fact that the judgment or order itself in the application for leave to appeal was erroneously obtained.  The applicants are entitled to have that redressed, by being allowed to ventilate issues in the application for leave to appeal to their full extent.

[26]	The respondents submitted that re-opening the issue of hearing the leave to appeal would be futile, if the applicants failed to disclose a defence in the main judgment sought to be appealed against, the special plea of prescription.  I disagree, amongst others, in the founding affidavit the first applicant avers that this is a matter that involves corruption in the motor industry and such is in the public interest.  Also, in the grounds for appeal as articulated  in the notice of appeal, the applicant disclosed their basis, which addresses prescription.  They state that they seek to appeal against the judgment on special plea, for reasons which include that when the proceedings were launched in the magistrate’s court, the complaint was fraud committed against him on a vehicle sold as new.  He was aware that the price was inflated.  The reason behind the inflation of the price, he only became aware of in August 2013.   He was not aware that the cause of the inflated price was the perpetration of fraud, which the court failed to find that the second respondent was aware of.
In the circumstances, the application will succeed to the extent of condoning the late filing of the application to rescind the judgment order dismissing the applicant’s application for leave to appeal; rescinding the said order or judgment, as erroneously sought or granted in the absence of the applicants.

[27]	As regards costs, the applicants have succeeded in seeking rescission.  Similarly, the respondents have succeeded in resisting orders that related to absence of records, which sought the declaration of proceedings as being a nullity and the re-hearing of the special plea. In the circumstances, I am of the view that the respondents’ opposition of the application was still necessary and succeeded on crucial aspect of the application, despite the applicants’ partial success.  In my view an appropriate order of costs therefore would be that, each party pays its own costs.

In the result, it is hereby ordered that :

1.	The applicants’ failure to bring an application for rescission of the judgment of 18 August 2015, timeously is hereby condoned.

2.	The order or judgment of 18 August dismissing the applicants’ application for leave to appeal is hereby rescinded and set aside, as erroneously sought or granted.

3.	The registrar of this court is hereby ordered to facilitate the case flow management of the matter to ensure that the rehearing of the special plea is scheduled expeditiously and that the matter is enrolled for the re-hearing of the application for leave to appeal. 

____________________________
B   Majiki
Judge of the High Court

Counsel for the applicant	:	Mr A.F. Basson

Instructed by 			:	Messrs ENZO Meyers Attorneys
					100 High Street
					GRAHAMSTOWN

Counsel for the respondent	:	Mr De La Harpe
				
Instructed by			:	Messrs Wheeldon Rushmere & Cole
					Connaught Chambers
					119 High Street
					GRAHAMSTOWN