MOYO
J:
At
the hearing of this matter I dismissed it by consent with costs at
the legal practitioner and client scale. I was then served with a
letter requesting for reasons. Here are the reasons.
The
point in limine raised was never argued hence I have no deliberation
to make on it. In any event, as submitted by the respondent, it had
no basis which could be the reason why the applicants' counsel may
have abandoned it.
On
the merits, the respondent's counsel conceded that the application
had absolutely no merit and that in fact it amounted to an abuse of
court process.
This
is a very interesting case, which is unprecedented and does not find
its roots in the High Court Rules. In other words, both the
substance, the procedure and the relief sought do not derive their
existence from any precedent, nor text, statute, nor the High Court
Rules. It was just crafted by the applicants from their imagination.
The
application is for an order compelling the respondent to provide
certain evidence to the applicants, which evidence supports a
judgment debt in HB171/13. The applicants also seek “leave” to
make an application for rescission of judgment in terms of Rule 449
of the High Court Rules.
Surprisingly,
the applicants are aware that applications in this court are made in
terms of rules as they state that they intend to make an application
in terms of Rule 449; however, this particular application,is made in
terms of no precedent, no law, no rule. It is unprecedent, unheard of
and unnecessary in fact for this court to revisit a finalized matter
before it and start ordering one party to provide evidence in support
thereof.
This
is not only absurd but it is senseless.
This
court has tried a matter, gone through the evidence before it, and
pronounced judgment in relation thereto. It then is being asked by
the applicant to go back to a finalized matter and order the
successful party to provide evidence in relation thereto.
I
fail to find sense in this request.
The
relief sought is improper as this court cannot order a party to
provide evidence related to matters it has already deliberated upon.
The request is in itself hollow and an abuse of court process. The
matter is res judicata and if the applicants want to seek rescission,
it is up to them depending on the merits of their case, but they
certainly cannot file a spurious application seeking this court to
revisit what it has finalised though a procedure not provided for the
rules and which is not supported by any legal principle or statute.
Rule
4C that the applicant refers to was crafted to enable the court to
condone a departure from the rules on given procedure warranting such
departure and for good cause shown, it was never inserted in the
rules so that applicants can abuse it by crafting unsubstantiated
causes of action and non-existent procedural avenues.
Again,
section 14 of the High Court Act that the respondent refers to, does
not apply to the applicant's case as there is no existing, future
or contingent right or obligation that needs to be determined in this
application. If any obligations or rights exist in this matter, they
are the rights and obligations already determined in the judgment
against the applicant and in favour of the respondent in HC171/13.
I
awarded punitive costs because this application is frivolous and
vexatious and is an abuse of court process. Refer to the case of
Hayes v Baldachin 1980 (2) SA 589. This application being a clear
abuse of court process, I dismissed it with costs at an attorney and
client scale.
Mathonsi
Ncube Law Chambers, applicant's legal practitioners
Webb,
Low & Barry, respondent's legal practitioners
