The
applicant's application is for rescission of a default judgment
which was granted by MANGOTA J on 4 February 2015 in chambers. The
application is being made in terms of Rule 449 although on the face
of the application the applicant indicated that the application was
being made in terms of Rule 249. Rule 249 deals with applications
involving minors and persons under disability.
In
case number HC9133/14 the applicant filed an application against the
three respondents in this court. After the respondents had filed
their opposing papers the applicant did not take any action. This
prompted the first respondent to make a chamber application, under
case number HC271/15, for the dismissal of the application for want
of prosecution. On 4 February 2015, MANGOTA J granted the chamber
application. MANGOTA J granted the judgment in default because
although the applicant had opposed the first respondent's
application for dismissal of his application for want of prosecution
the opposing papers had not found their way into the file.
When
it later came to the attention of the applicant that a default
judgment had been granted against him dismissing his application for
want of prosecution his legal practitioner then wrote a letter to
Judge MANGOTA on 18 February 2015 asking for the rescission of the
default judgment. Attached to the letter was the applicant's Notice
of Opposition in issue. The legal practitioner wanted the judgment
rescinded in terms of Rule 449 stating that they had filed opposing
papers on 28 January 2015 before the default judgment was granted on
4 February 2015. It was averred that the default judgment had been
issued erroneously.
In
response to the letter, MANGOTA J wrote a judgment under judgment
number HH199-15 which judgment was delivered on 24 February 2015. He
stated that instead of asking for rescission of judgment in terms of
Rule 449 by way of a letter, the applicant ought to have made a
proper application on notice to the other affected parties.
It
is this judgment by MANGOTA J which prompted the making of the
present court application by the applicant.
It
is only the first and the fourth respondents who opposed this
application. The second and third respondents did not file any
opposing papers.
The
first and the fourth respondents raised two (2) preliminary points to
the application;
(a)
The first one is that the application is bad at law because it is
being made in terms of Rule 249 yet Rule 249 deals with applications
involving persons with disability and minors.
Counsel
for the applicant explained that he had made an error by stating that
the application was being made in terms of Rule 249 instead of Rule
449. It is clear that this was just an error which was made on the
top cover of the application otherwise the application itself makes
it clear that the application is being made in terms of Rule 449. The
error is not fatally defective.
(b)
The second preliminary point is that the order that is being sought
by the applicant was dismissed by this court, by MANGOTA J, in
judgment no. HH199-15 which was handed down on 24 February 2015.
These
two (2) respondents argued that, as a result, the matter is now res
judicata
and this court is now functus
officio.
They argued that the proper procedure for the respondent to follow is
to appeal against the judgment of MANGOTA J.
The
applicant's legal practitioner argued that MANGOTA J did not make a
decision on the merits of the request to rescind the judgment in
terms of Rule 449 having stated that a proper court application done
on notice to all the other interested parties ought to have been
made. He argued that MANGOTA J did not deal with the merits of the
request because he stated that the matter had been placed before him
improperly. He further argued that, as a result, this matter was not
res
judicata.
Looking
at the judgment of MANGOTA J of 24 February 2015 I am inclined to
agree with the first and fourth respondents that MANGOTA J made a
determination on the applicant's request for the default judgment
to be rescinded in terms of Rule 449. Although MANGOTA J indicated in
his judgment that the applicant ought to have made a proper court
application, on notice to the respondents, he went on to make a
determination on the merits of the request. I arrive at this
conclusion because from page 3 in paragraph 4 up to the end of the
judgment he said;
“In
his opposing papers, the first respondent admitted paragraphs A, B1,
B2 and B4 of the applicant's affidavit. He also admitted that he
filed his answering affidavit out of time after which he proceeded to
chronicle his reasons for the delay. He apologised for the late
filing of his answering affidavit and he, quite correctly, stated
that he remained liable for the payment of the applicant's costs.
For
some unknown and unexplained reasons, the first respondent did not
file any answering affidavit. He, instead, filed his Heads of
Argument under case number HC9113/14. He filed those on 14 February
2014. As at the time of this judgment, no answering affidavit of the
first respondent was filed of record.
The
court has considered the merits and demerits of the matter which the
first respondent placed before it through the letter. It is satisfied
that the first respondent's case is devoid of any merits. The
request which he made in the letter is not sustainable.
In
the resultant, it is ordered that the order which the court granted
to the applicant on 4 February 2015, under case number HC271/15, be
and is hereby not
corrected,
rescinded, varied or set aside.”
These
cited paragraphs speak for themselves that MANGOTA J made a
determination on the request to rescind the default judgment. If he
had not made a determination these paragraphs would not have appeared
in his judgment. He would not have made a pronouncement that the
order he granted on 4 February 2015 was not
corrected, rescinded, varied or set aside. In my view, he would have
simply ended by stating that he was declining to determine the
request for rescission on the basis that it had been improperly made
as it had been made in the form of a letter instead of a court
application and that it had been done without notice to the affected
parties.
MANGOTA
J, by saying, in his judgment, that, “the request which the
applicant made in the letter is not sustainable,” means that he
considered the contents of the letter and the opposing affidavit that
had been attached to the letter and decided that they were devoid of
any merit. If he had not made a determination he would not even have
considered the contents of the letter and the opposing affidavit. He
would not have commented on them at all.
It
is for these reasons that I agree with the first and fourth
respondents that MANGOTA J made a determination on the merits of the
matter and refused to rescind the default judgment he granted on 4
February 2015. This renders the matter res
judicata
and makes this court functus
officio.
As
correctly argued by the first and fourth respondents, it matters not
whether or not the determination by MANGOTA J was wrong. The correct
procedure for the applicant to take is to make an appeal if he is not
happy with the decision. If I make a determination on the current
application I will be reviewing MANGOTA J's judgment. I have no
such powers as this court cannot review its own work.
I
will not award costs on a legal practitioner-client scale against the
applicant for I see no justification for doing so.
In
the result it is ordered that:
1.
The applicant's application be and is hereby dismissed.
2.
The applicant be and is hereby ordered to pay costs to the first and
fourth respondents on the ordinary scale.
