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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

Reportable

Case No: 311/18P

 

In the matter between:

 

MOMENTUM RETIREMENT ANNUITY FUND                              APPLICANT

 

and

 

S J YELLOWLEY                                                                                   FIRST RESPONDENT

LUKHAIMANE MA, N.O.                                                                     SECOND RESPONDENT

 

This judgment was handed down electronically by transmission to the parties' representatives by email. The date and time for hand down is deemed to be 09h30 10 July 2020.

ORDER

The following order is made:

1.           The application for rescission is dismissed with costs.

2.           Each party is to bear its own costs of the hearing on 11 May 2020.

JUDGMENT

Delivered on: 10 July 2020

Moodley J:

[1]          This is an application for rescission in terms of rule 42 of the Uniform Rules of Court of an order for costs granted by Sishi J in this court on 28 February 2018, which serves before me on the opposed roll.

[2]          The parties filed heads of argument and a joint statement in compliance with the prevailing practice directives of this division and argument was heard by agreement between the parties, via a MS Teams conference call, on 9 July 2020.

[3]          The applicant in the application for rescission, and the second respondent in the main  application,  is  the  Pension  Funds  Adjudicator,  Ms  MA  Lukhaimane  NO  ('the Adjudicator'). The respondent in the rescission application, and the applicant in the main application, is the Momentum Retirement Annuity Fund ('the Fund'). The Adjudicator was represented

 

Litigation History: The main application

[4]          During January 2018 the Fund launched an application in this court in terms of s 30P of the Pension Funds Act 24 of 1956 ('the Act') to set aside the determination made by the Adjudicator in terms of s 30M of the Act in respect of a complaint about the delay in the payment of a death benefit. The Fund also sought an order directing that the Adjudicator be liable for the costs of the application, averring that the Adjudicator’s actions in the determination were grossly irregular ('the main application').

[5]          The first respondent in the main application was the mother and nominee of a deceased member of the Fund, and the Adjudicator was the second respondent. The application was duly served on the respondents, specifically on the Adjudicator on 22 January 2018. Neither respondent opposed the application, and the application was enrolled on the unopposed roll on 28 February 2018. The presiding judge on that day, Sishi J, granted the order setting aside the determination of the Adjudicator and dismissing the complaint of the first respondent. He also granted the costs order against the Adjudicator.

[6]          On 24 February 2018 the Adjudicator deposed to an affidavit in the main application in which she stated that:

(a)         she was unaware if the first respondent opposed the application;

(b)         she was precluded from opposing an application in terms of s 30P of the Act;

(c)          but because of the unprecedented and extraordinary relief sought by the Fund that the Adjudicator be ordered to pay the costs of the application, she was intent upon setting out the legal position.

 

[7]          The Adjudicator clarified that the legal position is that the Adjudicator effectively performs a judicial function and not an administrative function which is susceptible to review. She submitted that in consequence of performing a judicial function, she is required not to enter into the fray or to be joined in a dispute. Section 30P(1) requires an applicant to give notice to the other parties to the complaint and not to the Adjudicator. Therefore as the Adjudicator was not a party to the complaint by the first respondent, she could not oppose the main application. She averred that the costs order sought against her by the Fund was not competent or appropriate as she performed a judicial function, and the grant of such costs would also set an undesirable precedent and impact adversely on the exercise by the Adjudicator of her statutory functions and powers. This affidavit by the Adjudicator was only served on the Fund on 6 March 2018, and filed in court on 9 March 2018, which was about a week after the order was granted by Sishi J.

 

The Rescission Application

[8]          On 14 May 2018 the Adjudicator launched a rescission application in terms of rule 42 seeking the rescission of the costs order on the basis that it was granted erroneously in her absence. In her application she reiterates that the Adjudicator performed a judicial function and that the grant of a costs order is not in the public interest or desirable and would be a drain on the budget of the Adjudicator which is constituted by levies drawn from pension funds.

[9]          The Fund opposed the rescission  application, pointing out that the  Adjudicator ought to have opposed the main application if she intended opposing the costs sought against her. However, she had failed to do so and the court granted the order based on all the evidence and arguments placed before it. The Adjudicator had only thereafter filed her affidavit, out of time. The Fund also submitted further that there was no proper basis for the Adjudicator to rely on rule 42 for the relief she sought. The Adjudicator knowingly and wilfully did not oppose the main application and the order was not erroneously sought as the Fund had indicated in its founding affidavit and notice of motion that it was intent upon pursuing a costs order against the Adjudicator.

[10]      The Fund submitted further that at the hearing on 28 February 2018, written heads of argument in respect of the costs order sought had been presented to the presiding judge, who, having heard counsel and after satisfying himself that there was no appearance for or by the Adjudicator, granted the order against her. The Fund also pointed out that there was no merit in an application for rescission in terms of rule 42(1)(b) or (c). The Fund disputed that costs order against statutory and quasi-judicial bodies and public officers was unprecedented. It also disputed that costs orders against the Adjudicator’s office are unprecedented and furnished details of several orders for costs against the Adjudicator, which predate the costs order she seeks to rescind in this application.

[11]       On 5 July 2018 the Adjudicator was given leave to supplement her papers, and on 17 January 2019 she delivered a supplementary affidavit, in which she acknowledges that she had been afforded the opportunity to adequately set out the rule 42 grounds upon which  her  rescission  application  was  premised.  In  her  supplementary   affidavit,  the Adjudicator  persists  with her  reliance  on rule  42,  and  specifically  rule  42(1 )(a)  and contends that the costs order was erroneously sought and /or erroneously granted by the court on 28 February 2018.

[12]       She reiterates that judicial officers are discouraged from entering the fray or defending their decisions which was the reason why she did not defend the main application as it would have entailed her defending her determination, and that she did not deem it appropriate to oppose the application and submit reasons for her determination. She submits further that the Fund placed no factual basis before the court of her alleged grossly irregular conduct, nor did the Fund allege or prove mala tides on her part in the exercise of her judicial duties, which would have entitled it to the costs order.

[13]       The Fund's attorneys then set the matter down for hearing on 11 May 2020 and filed its heads of argument and other documents required for the hearing of the matter. No heads of argument was filed by the Adjudicator. On 11 May 2020 the presiding judge adjourned the application to 26 June 2020, reserved the costs of the hearing on that date, directed that the Adjudicator files heads of argument by 20 May 2020 and granted leave to the parties to file supplementary affidavits by 18 May 2020 in respect of the reserved costs of 11 May 2020. Both parties have made such submissions to which I shall revert in due course.

 

Relevant law and legal principles

[14]       Rule 42(1) of the Uniform Rules provides that:

'(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;

(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;

(c)           An order or judgment granted as the result of a mistake common to the parties.'

[15]       In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)[1] the court set out the common law background, and the manner in which rule 42(1)(a) in particular should be interpreted:

'. . .the common law before the introduction of Rules to regulate the practice of superior Courts in South Africa is the proper context for the interpretation of the Rule. The guiding principle of the common law is certainty of judgments. Once judgment is given in a matter it is final. It may not thereafter be altered by the Judge who delivered it. He becomes functus officio and may not ordinarily vary or rescind his own judgment. . . That is the function of a Court of appeal. There are exceptions. After evidence is led and the merits of the dispute have been determined, rescission is permissible only in the limited case of a judgment obtained by fraud or, exceptionally, justus error. Secondly, rescission of a judgment taken by default may be ordered where the party in default can show sufficient cause. There are also, thirdly, exceptions which do not relate to rescission but to the correction, alteration and supplementation of a judgment or order. These are for the most part conveniently summarised in the headnote of Firestone SA (Pty) Ltd v Genticuro AG[2] as follows:

"1.        The principal judgment or order may be supplemented in respect of accessory or

consequential matters, for example, costs or interest on the judgment debt, that the Court overlooked or inadvertently omitted to grant.

2.             The Court may clarify its judgment or order, if, on a proper interpretation, the meaning

thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order.

3.             The Court may correct a clerical, arithmetical, or other error in its judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense or substance.

4.             Where counsel has argued the merits and not the costs of a case (which nowadays often happens since the question of costs may depend upon the ultimate decision on the merits), but the Court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order."

….

[5]           It is against this common-law background, which imparts finality to judgments in the interests of certainty, that Rule 42 was introduced. The Rule caters for mistake. Rescission or variation does not follow automatically upon proof of a mistake. The Rule gives the Courts a discretion to order it, which must be exercised judicially.

[6]           Not every mistake or irregularity may be corrected in terms of the Rule. It is, for the most part at any rate, a restatement of the common law. It does not purport to amend or extend the common law. That is why the common law is the proper context for its interpretation. Because it is a Rule of Court its ambit is entirely procedural.

[7]           Rule 42 is confined by its wording and context to the rescission or variation of an ambiguous order or an order containing a patent error or omission (Rule 42(1)(b)); or an order resulting from a mistake common to the parties (Rule 42(1)(c)); or "an order erroneously sought or erroneously granted in the absence of a party affected thereby" (Rule 42(1)(a)). In the present case the application was, as far the Rule is concerned, only based on Rule 42(1)(a) and the crisp question is whether the judgment was erroneously granted.

[8]           The trend of the Courts over the years is not to give a more extended application to the Rule to include all kinds of mistakes or irregularities ' (Footnotes and references omitted.)

 

[16]       The ambit of the rule is entirely procedural, and rule 42(1) is confined by its wording and context to the rescission or variation of an order as stipulated in the subrules, which is marked by error or mistake or irregularity, but not every mistake or irregularity may be corrected in terms of the rule. Therefore, the following legal principles inform the determination of an application in terms of rule 42(1):

(a)          The purpose of the rule is 'to correct expeditiously an obviously wrong judgment or order'.[3] (My emphasis.)

(b)          The court has a discretion whether or not to grant an application for rescission or variation under this subrule. The court does not, however, have a discretion to set aside an order in terms of the subrule where one of the jurisdictional facts contained in paragraphs (a)-(c) of the subrule does not exist.[4] The rule should be construed to mean that  once  one  of  the  grounds  is  established,   for  example   that  the  judgment was erroneously sought, the judgment should be granted.[5] But the rule should not be given an extended application to include all kinds of mistakes or irregularities.[6]

 

[17]       Although rule 42 does not set time limits, a court may properly have regard to the time frame if it is relevant to the determination of the application. Mr Moodley contended that the Adjudicator had not raised this issue and therefore if the court were mero motu to rule against the Adjudicator on this basis 'it would amount to trial by ambush'. In my view to the contrary, the time frame is indeed a relevant factor in this application as the purpose of the rule is 'to correct expeditiously an obviously wrong judgment or order'. I therefore turn to the conduct of the Adjudicator on whom the onus lies to ensure that her complaint about the costs order was dealt with expeditiously.

[18]       Although the Adjudicator states that she ought not to have opposed, and therefore did not oppose the main application, it is apparent from the affidavit which she filed on 9 March 2018 that she did intend placing certain facts and allegations in response to the Fund's allegations about her before the court, with the intention of opposing the costs order. Mr Moodley confirmed her intention in this respect. The Adjudicator was properly informed that if the application was not opposed, it would proceed on the unopposed roll on 28 February 2018. She knew that although she was not opposing the main relief, she opposed the costs order and therefore ought to have ensured that her affidavit was filed timeously, but failed to do so. Thereafter she brought the application for rescission, but again was tardy in ensuring that the application was pursued according to the rules. Not only did she not file a replying affidavit, she also did not set the matter down. The Fund's attorneys pursued the application and set it down. Thereafter, despite her already tardy conduct, the Adjudicator did not file her heads of argument and the matter could not be heard on 11 May 2020, which is more than two (2) years after the impugned costs order was granted. The extended time lapse between the granting of the costs order and the finalisation of the rescission application is neither reasonable nor expeditious. However the determination of this application is not premised on this finding alone. I shall revert to the failure to by the Adjudicator.

 

Rule 42(1)(a)

[19]       The Adjudicator has confirmed that her application for rescission is grounded on rule 42(1 )(a) which is confined by its wording and context to the rescission of an order erroneously sought or erroneously granted in the absence of a party affected thereby. The crisp issue is whether the judgment was erroneously sought or erroneously granted, and to determine the nature of the error in question.

[20]       A judgment to which a party is procedurally entitled to cannot be considered to have been granted erroneously by reason of facts of which the judge who granted the judgment, as he was entitled to do, was unaware. In Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) (supra)

'an application in terms of rule 42(1 )(a) for rescission of a summary judgment granted in the absence of the defendant was refused notwithstanding the fact that it was accepted that the defendant wanted to defend the application but did not do so because the application had not been brought to the attention of his Bellville attorney. This court held that no procedural irregularity or mistake in respect of the issue of the order had been committed and that it was not possible to conclude that the order had erroneously been sought or had erroneously been granted by the judge who granted the order.'[7]

 

Was the costs order erroneously sought?

[21]       It is not disputed that the Fund indicated that it intended seeking an order for costs in  the  notice  of  motion,  and  the  founding  affidavit  of  the  main  application.  It  is also common cause that the application is not defective or deficient in any way: there is no attack on locus standi or jurisdiction, nor are there any points taken in limine. The application was also duly served on the Adjudicator. She failed to oppose the application. At the hearing on 28 February 2018, the court ascertained that there was no appearance by or on behalf of the Adjudicator. Thereafter the Fund's counsel, Mr P van der Berg SC, proceeded to address the court on the reasons for the relief sought, specifically with regard to the costs against the Adjudicator, as set out in his heads of argument and supplementary heads of argument. I have had recourse to Mr van der Berg's heads as they are in the papers before me.

[22]       I note that in his concise heads of argument, Mr van der Berg stated that 'the applicant will not seek a costs order'; but in his supplementary heads of argument which dealt specifically with the costs sought against the Adjudicator, he stated: 'The applicant sought costs against the respondents in the Notice of Motion. The applicant however no longer seeks costs against the first respondent. The applicant does however persist with a costs order against the second respondent' . He then proceeded to argue that the Adjudicator should pay the costs of the application because she failed to comply with the statutory obligations of her office, and that the reasons as to why she should bear the costs were advanced in the founding affidavit. He also argued, correctly in my view, that if the Adjudicator thought that the costs order was not warranted, she ought to have opposed the application but did not do so.

[23]       Inasmuch as the Adjudicator alleges that she was precluded from opposing the application, and therefore did not deliver an answering affidavit, I find it an anomaly that she nevertheless deposed to the affidavit which was subsequently filed after the costs order was granted, in which she effectively opposed the application for a costs order against her. In any event it is not in dispute that she did intend to oppose the costs order.

[24]       The fact that the Adjudicator deliberately chose not to oppose the application for a costs order is not a circumstance on which the applicant can effectively rely for the purpose of an application under the provisions of rule 42(1)(a). What is the mistake or error in the proceedings? The Adjudicator's failure to oppose the costs order is not a procedural irregularity or mistake in relation to the issue of the order.

Was the judgment was erroneously granted?

[25]       In general terms, a judgment is 'erroneously granted if there existed at the time of its issue a fact of which the Judge was unaware, which would have precluded the granting of the judgment and which would have induced the Judge, if he had been aware of it, not to grant the judgment'.[8]

In Naidoo & another v Mat/ala NO & others Southwood J held that 'It follows that if material facts are not disclosed in an ex parte application ... or if a fraud is committed (ie the facts are deliberately misrepresented to the court) the order will be erroneously granted. It has been held that an order granted in an application brought ex parte without notice to a party who has a direct

(

 and substantial interest in the matter is an order erroneously granted…'[9] footnotes omitted).

An order or judgment is also erroneously granted if there was an irregularity in the proceedings, or if it was not legally competent for the court to have made such an order.[10] A judgment to which a party is procedurally entitled cannot be considered to have been granted erroneously within the meaning of this subrule by reason of facts of which the judge who granted the judgment was unaware.[11]

 

[26]      Therefore, a judgment granted against a party in his absence cannot be considered to have been granted erroneously even if there was a defence on the merits which had not been disclosed to the judge who granted the judgment. In Lodhi Properties Investments CC v Bondev Developments (Pty) Ltd the court referred with approval to Stander v Absa Bank[12] where 'the plaintiffs who obtained an order in their favour were procedurally entitled to the order when it was granted and it subsequently transpired that the defendants were not in wilful default, that fact could not transform that order, which had validly been obtained, into an erroneous order.'

[27]       The court held further in Lodhi 2 Properties[13]_:

'[27] Similarly, in a case where a plaintiff is procedurally entitled to judgment in the absence of the defendant the judgment if granted cannot be said to have been granted erroneously in the light of a subsequently disclosed defence. A Court which grants a judgment by default like the judgments we are presently concerned with, does not grant the judgment on the basis that the defendant does not have a defence: it grants the judgment on the basis that the defendant has been notified of the plaintiffs claim as required by the Rules, that the defendant, not having given notice of an intention to defend, is not defending the matter and that the plaintiff is in terms of the Rules entitled to the order sought. The existence or non-existence of a defence on the merits is an irrelevant consideration and, if subsequently disclosed, cannot transform a validly obtained judgment into an erroneous judgment.'

 

[28]       This excerpt from the judgment restates the trite principle that rule 42 is premised on non-compliance with the rules - not the merits of the application in which the impugned judgment was granted. Was the costs order erroneously granted because there was a fact or facts that were not placed before the court and which had the learned judge known or been made aware of, he would not have granted the order?

[29]       At the hearing, the Fund made submissions as to why it sought a costs order in its founding affidavit and in its supplementary heads of argument. The Fund set out that the complaint related to the delay in the payment of death benefits. The Adjudicator upheld the complaint and ordered the Fund to pay the death benefit to the beneficiaries with interest.  The  order  was  made  notwithstanding  that  in  terms   of  the  provisions   of s 37C(1 )(b) of the Act the payment would be premature. Before the court a quo, counsel for the Fund addressed the interpretation of the s 37C(1) and specifically s 37C(1 )(b) and furnished relevant case law to sustain his argument premised on the interpretation of the relevant section, that the 12 month waiting period is mandatory and payment could only occur after that. He also explained the objective of the mandatory waiting period. The Fund also took issue with the Adjudicator's order that interest was payable on the death benefit on the basis that it was not in mora, that the Adjudicator determined the payment of interest without affording the Fund an opportunity to make submissions on this issue which was not raised in the complaint, and offended against the audi alteram partem principle and the result of the order was prejudicial to the members of the Fund.

[30]       So what facts were not placed before the court? Is it, as contended by the Adjudicator, that the court would not have granted the costs order against her because such an order is unprecedented and/or not competent in law? Mr Moodley contended that the costs order against the Adjudicator was not competent in law. In so arguing, he placed reliance on Old Mutual Life Assurance Co (South Africa)Ltd v Pension Funds Adjudicator and Others,[14] contending that as it was improper for the Adjudicator to oppose an application for the setting aside of her own determination in terms of s30P, she did not have the right to become a party to the application and had no standing in the main application. He therefore submitted that the Adjudicator was not properly before the court, and  ought not  have  been  cited  by  the  Fund  as a party  to the  main  application,  and consequently the costs order was not competent.

[31]       However in Old Mutual Fourie J did not hold that a costs order should and could not be granted against a public functionary whose office is funded by public funds. He stated that in exceptional circumstances, a court could find it necessary to mulct such a public functionary in costs.[15] Therefore a costs order against the Adjudicator is competent in law, but is dependent on the exceptional circumstances to be determined on the facts of each case. I am fortified in this conclusion by the cases cited by Mr van der Berg in his heads of argument which constitute sufficient authority for holding that there is no legal bar to such a costs order.[16] In this division costs were ordered against the Adjudicator by Kruger in Lukhaimane MA NO v Road Freight and Logistics Industry Provident Fund/ Arc Beverages   CC.[17] The submission that costs orders against the Adjudicator are unprecedented relief, is clearly therefore ill-conceived and unsustainable.

 

[32]       Mr van der Berg has, in my view, also properly referred this court to the judgment of Sardiwalla J in Sentinel Retirement Fund v D M Sesedi and MA Lukhaimane NO[18] in which the learned judge dealt with an application by the Adjudicator for rescission in terms of Rule 42(1) of a costs order against her, on the basis that such costs orders were unprecedented relief as she performed a judicial function. In that matter the application clearly set out the relief sought against the Adjudicator , as did the Fund in this application. The Adjudicator did not defend the matter but filed an irregular affidavit shortly before the hearing. The court nevertheless found that the was no basis for the application of Rule 42(1)(a) as 'no mistake on the part of any one of the parties or the court has been established'.

[33]       Recently, even the Public Protector has not been successful in challenging costs orders against her in her official and personal capacity arising from her grossly incompetent conduct. In this instance, costs were not sought against the Adjudicator in her personal capacity - the costs order was sought because she acted with gross irregularity, and failed to observe the audi alteram partem rule, which was clearly set out before the court a quo. The Adjudicator was informed clearly in the founding papers that a costs order would be sought against her and the bases therefor. The acceptance by the court a quo of the submissions on behalf of the applicant cannot be faulted or beheld a 'mistake', particularly in the absence of any opposition or submissions by the Adjudicator.

[34]       I am also satisfied that the allegations made by the Adjudicator subsequently to the granting of the costs order do not assist her in her reliance on rule 42(1)(a). Nor is the late filing of her affidavit which was, according to her, due to an administrative error sufficient reason or cause for this court to find that the order was erroneously sought or granted.

[35]       In the premises, I am not persuaded that the costs order was erroneously sought by the Fund or erroneously granted by the court a quo. In the absence of an opposing affidavit from the Adjudicator, there was no good reason for Sishi J not to order costs against her as sought. It follows that the Adjudicator has not made out a case that the judgment by default had been sought or granted erroneously however wide a meaning is given to the word 'erroneously' as it appears in rule 42(1)(a).

 

Discretion of the court

[36]       As already stated earlier in this judgment, an application for rescission founded on rule 42(1)(a) does not preclude the discretion of the court whether it should or should not rescind the judgement, even when all the requirements set out above have been met. However, the discretion which must be exercised judicially, must be exercised with due regard to all the relevant facts. I am duly cognisant that the costs awarded against the Adjudicator will be paid out of funds constituted by levies paid by its members. However, it is in the interests of justice and the parties to litigation, that an application, whether interlocutory or the main application, must be prosecuted within a reasonable time so that the Fund's claim is not frustrated by undue delays or the dilatory conduct of the Adjudicator. Further as already stated, the purpose of rule 42(1) is 'to correct expeditiously an obviously wrong judgment or order'.[19] (My emphasis.) It would, accordingly, be a proper exercise of the court's discretion to say that, even if the applicant for a rescission of an order of court proved that subrule (1) applied, she should not be heard to complain after the lapse of a reasonable time.[20] What constitutes a reasonable time depends upon the facts of each case.[21] In my view, a two year delay in bringing the application for rescission to finality, a delay for which the Adjudicator must be held responsible, cannot be considered as being reasonable. She failed to prosecute the rescission application properly and in compliance with the time constraints of the rules. There was no lockdown when she brought the application, but she did not file a replying affidavit nor did she set the matter down. It was the Fund who ensured that the application could be finalised. Consequently, I am not persuaded that I should exercise my discretion in her favour.

[37]      I am satisfied that the application for rescission must fail on all grounds, and that costs should follow the result.

 

Reserved costs of 11 May 2020

[38]       The Adjudicator's attorney of record, Mr M Mchunu, has filed a supplementary affidavit in respect of the reserved costs. He acknowledges that the notice of set down on the opposed roll for 11 May 2020 was served on him on or about 6 February 2020, and confirms that he obtained instructions from the Adjudicator, and delivered the brief to counsel who had previously represented the Adjudicator. However, as a result of the lockdown and the practice directives issued in this division, no heads of argument were prepared by counsel. When the Fund delivered its heads and practice note on 22 April 2020, he was galvanised into action and contacted counsel who indicated that she was not available to prepare the heads or to appear in court for the hearing. On 5 May 2020 Mr Mchunu received instructions to brief another counsel. He has submitted that no costs should be ordered for 11 May 2020, because of the uncertainty caused by the lockdown and other factors beyond the Adjudicator's and his control.

[39]       In response, Mr van der Berg has pointed out the inconsistency between the request by the Adjudicator on 7 May 2020 for an adjournment because of the restriction on interprovincial travel which prevented her counsel from travelling to the court in Pietermartizburg, and the allegation by Mr Mchunu that on 5 May she had instructed him to brief alternate counsel. Mr van der Berg presumes that local counsel had already been briefed by the time the request for an adjournment was made on 7 May 2020. Mr van der Berg also submits that the Adjudicator has failed to provide a full and satisfactory explanation for the adjournment which was necessitated by the failure of the Adjudicator to file heads of argument or to comply with the practice directives in force.

[40]       The practice directives in force in this division from 1 May 2020 were only circulated after 30 April 2020 and 1 May 2020 was a public holiday. Legal practices were only allowed to open on 4 May 2020. As a result, many practitioners were unaware of the practice directives in the first week of May 2020. The following directives, effective from 1 May 2020, applied to this matter:

'2.        All opposed motions will be disposed of in the following manner:

2.1        Parties are to ensure strict compliance with practice directive 9 in particular practice directive 9.4.1;

2.2        Parties are to file all heads of arguments, practice notes and unreported authorities electronically;

2.3        In respect of all opposed matters and opposed rule 43 applications the legal representatives of the parties shall provide a joint statement indicating inter alia the issues in dispute and which of those issues the presiding Judge will be required to rule on.

3.        Parties can elect to have the issues decided on the papers without the need for an oral hearing. The presiding Judge may direct that further written submissions be filed.

4.        In the event of parties deeming it necessary for oral argument to be heard then:

4.1       The Presiding Judge may at his/her discretion convene a court for this purpose on a date and time to be arranged;

4.2        In the alternative the Presiding Judge may in his/her discretion convene a hearing by way of video conferencing or any other electronic means which are appropriate;

4.3        If the options in 4.1 and 4.2 cannot be achieve, the matter will be adjourned to a date to be arranged.'

 

[41]       Clearly there was no compliance with this practice directive by the Adjudicator by the time the matter was called before Bezuidenhout J on 11 May 2020. There is no explanation why the matter was not pursued with counsel prior to the lockdown. However, the heads were not due as at 27 March 2020, when the lockdown under level 5 commenced. When practices were allowed to reopen on 4 May 2020 it was a difficult and uncertain time for practitioners and clients alike. Although there appears to be an inconsistency in the submissions made by and on behalf of the Adjudicator, the date when local counsel was briefed is presumed by Mr van der Berg. I am of the view that under these circumstances, no costs order should be made against the Adjudicator in respect of the reserved costs.

[42]       The following order is made:

1.             The application for rescission is dismissed with costs.

2.             Each party is to bear its own costs of the hearing on 11 May 2020.

 

 

 

Moodley J

 

 

 

APPEARANCES

Date of hearing                   :           09 July 2020

Date of judgment               :           10 July 2020

For Applicant            :           Mr P van Der Berg SC

Ms Drake

Instructed by           :     SHEPSTONE & WYLIE ATTORNEYS

First Floor, Absa House

15 Chatterton Road

Pietermaritzburg

Tel: 033 - 355 1780/97

Fax: 033 - 355 1799

Email: jmanuel@wylie.co.za

Ref: J Esterhuizen/MOME30252.8

 

For First Respondent    SJ YELLOWLEY

27 Walters Road

Hilton

3245

For Second Respondent:   Mr V Moodley

Instructed by         :     PRINCE MUDAU & ASSOCIATES

c/o:      AUSTEN SMITH

Walmsley House

191 Pietermaritz Street

Pietermaritzburg

Tel: 033 - 392 0500

Fax: 033 - 392 0556

Email: nelly@austensmith.co.za

Ref: N MNIKATHI/MLM/D6/P0004/18

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