Opposed
Matter
DUBE
J:
This
is an application for rescission of a default judgment granted under
HC7398/11.The application is brought in terms of Rule 449.
The
first applicant is an association of members and will hereinafter be
referred to as The Association. Its members purchased stands at a
property known as Newark of Hilton of Subdivision in Waterfalls,
(hereinafter referred to as Newark). The second applicant is the
chairperson of The Association.
The
first respondent is the original owner of Newark and will hereinafter
be referred to as Mrs. Mvembe.
The
second respondent is Champion Constructors (Pvt) Ltd, a land
developer.
The
third and fourth respondents are cited in their official capacities.
The
facts of this matter reveal a drawn out battle for the control of
Newark.
On
6 November 2000, Mrs. Mvembe sold Newark to Max Management (Pvt) Ltd,
hereinafter referred to as Max. The company obtained a subdivision
permit and created stands and sold them.
Mrs.
Mvembe was to be paid from proceeds of the sale of the stands. Mrs.
Mvembe retained some of the stands.
Applicant's
members began construction on the stands. Max delayed in servicing
and passing transfer of the stands sold. There were allegations of
double allocation of stands and complaints of gross maladministration
resulting in numerous legal suits between the stand holders and Max.
The
problems resulted in the formation of the first applicant which was
mandated to deal with the management of Newark.
Some
40 stand holders issued summons against Max and Mrs. Mvembe under
HC5065/06 seeking an order compelling Mrs. Mvembe was to complete
servicing the stands.
Mrs.
Mvembe was to accept payment from the plaintiff. The matter was
withdrawn.
Prior
to this order, The Association had obtained a provisional order under
HC7312/06 against Max, Sandriver Properties, the Registrar of Deeds
and Mrs. Mvembe. Mrs. Mvembe did not oppose the application.
A
consent order was entered into between The Association and Max on 11
March 2008. Mrs. Mvembe was not part of the consent order.
The
parties agreed that Max would release and transfer the respective
stands to the purchasers upon payment of certain sums of money and
The Association would take over the development project from Max.
On
15 April 2010, Max and the Association entered into an agreement of
assignment wherein Max agreed to cede its rights, title and interest
in certain stands in Newark to the first applicant. Mrs. Mvembe was
not involved in this arrangement.
Max
struggled to pay the full purchase price for Newark.
01
May 2007, Mrs. Mvembe issued a notice to Max to remedy the breach. If
it failed to pay outstanding monies from the purchase of Newark,
within 30 days of the date of the letter, Mrs. Mvembe would cancel
the agreement of sale.
Champion
Constructors claims that it bought Newark from Mrs. Mvembe after she
cancelled the agreement of sale in September 2007.
On
14 November 2011, Champion Constructors filed an application seeking
transfer of Newark to it.
The
applicants were not joined to the proceedings.
Mrs.
Mvembe did not oppose the application resulting in default judgment
being granted against her, the third and fourth respondents under
HC7398 /11.
The
default judgment ordered the Registrar of Deeds to pass transfer of
ownership from Mrs. Mvembe to Champion Constructors and the Surveyor
General was ordered to cancel a general plan issued by him in respect
of Newark whereby stands were created and sold to members of The
Association.
The
order was premised on the supposed sale agreement of Newark between
Mrs. Mvembe and Champion Constructors.
As
soon as the applicants became aware of the default judgment, they
instituted an urgent application for a provisional order under
HC10716/11 which was granted in their favor. The provisional order
interdicted Mrs. Mvembe, the registrar or the Deputy Sheriff from
signing and accepting any documents passing transfer of Newark. The
Surveyor General and Director of Urban Planning were interdicted from
implementing a new plan in place of the previous plan.
Sadly
for the applicants, the provisional order was discharged on 22
January 2014 on the basis of the following:
(a)
that there was no evidence to rebut Mrs. Mvembe's allegation that
she had cancelled the agreement of sale by virtue of a notice of
cancellation to Max, for non-payment.
(b)
that Mrs. Mvembe was not a party to the consent order under HC7312/06
for the release and transfer of stands to the purchasers of the
stands and takeover of the development project by The Association.
Further that the arrangement did not confer any obligations on Mrs.
Mvembe, the owner of the property concerned.
(c)
the assignment entered into by Max and The Association did not bind
Mrs. Mvembe as transfer of the property was never made to Max and
that it could not transfer or assign any rights to anyone in respect
of the property. That Max could not legally transfer any rights to
the first applicant's members without it having acquired ownership
first.
(d)
that there was nothing to prevent the resale to Champion
Constructors.
(e)
the default judgment of 14 September 2011 remained extant.
(f)
that The Association and its members had no rights or interest to
enforce against Mrs. Mvembe and Champion Constructors, the subsequent
purchaser.
The
applicants appealed the decision to the Supreme Court on the basis
mainly that the application before the court was an application for
rescission of judgment and that the court had erred in refusing to
rescind the default order of 14 September 2014. The applicants also
intended to lead further evidence on appeal.
The
matter was subsequently struck off the roll.
In
this application, the applicants seek rescission of the default
judgment of 14 September 2014. The applicants claim that they and
their members rights were adversely affected by the default judgment
and seek its rescission and also seek to be joined to the matter.
They
aver that both Mrs. Mvembe and Champion Constructors were aware that
the default judgment would affect the applicants and that they had an
interest in Newark and yet they were not cited and served with the
application.
The
applicants aver that since the default judgment, new and additional
evidence has come to light, which if it had been disclosed in
HC7398/11 the order would not have been granted.
The
applicants have attached to this application affidavits from legal
practitioners who attended to the transfer of Newark to Max. The
applicants contend that the affidavits reveal that the purchase price
had been paid in full prior to the alleged cancellation of the
agreement of sale and that the Mvembe/Champion Constructor's
agreements of sale are fictitious.
The
applicants submitted that they derive rights from the cession
agreement that they entered into with Max.
The
applicants further aver that its members are affected by the default
judgment and that they have an interest in Newark that they can
enforce against Champion and Mrs. Mvembe.
They
submitted that had the applicants and its members been cited and
served they would have opposed the application.
The
applicants maintain that they have shown a case for rescission of
judgment and for then to be joined in HC7398/11.
Only
the second respondent defends the application.
The
respondent challenged the fact that this application is being brought
three and a half years after the default judgment. The respondent
submitted that the applicants have always known about the order and
that the purpose of Rule 449 is to expeditiously vacate an obviously
erroneous order and that the applicants ought to have applied for
condonation of late filing of the application for rescission of
judgment.
It
argued that the failure to seek condonation of the late filing of the
application for rescission of judgement is fatal to the application
and urged the court to dismiss the application.
On
the merits, the respondent argued that the applicants have no cause
of action against respondent.
The
respondent submitted that the applicants maintain that they derive
rights from Max arising out of an assignment and yet Max is not a
party to these proceedings or those sought to be reopened.
The
respondent maintained that for the applicants to bring themselves
within the rubric at Rule 449 they must have a direct and substantial
interest in the subject matter of the litigation and not merely a
financial interest.
That
the applicants have not shown that they have anything more than a
financial interest in Newark.
The
respondent submitted that the owner of the land did not participate
in the assignment and she cannot be bound by it when she was not a
party to it.
Further
that Max did not challenge the cancellation of the sale agreement and
moreover that the applicants do not have any rights against Champion
Constructors but merely a personal right against Max.
The
respondent further submitted that the applicants have sought
rescission before and have not been granted that relief. They
approached the Supreme Court arguing that the court should have
allowed their application for rescission. The respondent did not
pursue the challenge related to prescription.
I
must make observations concerning the heads of argument filed on
behalf of the applicants in this matter.
These
stretch up to 127 pages.
Heads
of argument are meant to be simply that. The purpose of heads of
argument is to set out briefly the main heads of argument and are by
no means a platform to set out fully one's arguments. Heads of
argument are required to be drawn up in a clear and concise manner.
It is inappropriate to file voluminous papers and expect the other
party as well the court to plough through such a voluminous pile of
papers and still be able to make sense out of them.
What
these heads contain is basically every fact and argument concerning
this matter. This is most inappropriate. In fact, this is an abuse of
court process.
This
style of drafting heads of argument and conduct ought to be
discouraged. The eventual consequence of such conduct results in
delays in delivery of the judgment concerned.
Litigants
who bombard the court with voluminous papers and information deserve
to be penalized even if they are eventually successful in the
litigation. This sort of conduct deserves censure by this courts.
Worse still, where they lose the application, they deserve to be
mulcted with an order of costs on a punitive scale.
I
find support for this proposition in the case of Banda
v Pitluk
1993
(2) ZR 60 @ 64 (H) where
the
court held that a litigant who places a lot of matter in a Rule 449
application cannot get their costs even if they are successful.
I
will deal first with the point related to condonation of late filing
of the application for rescission of judgment.
The
rescission sought is provided for under Rule 449. Rule 449 reads as
follows;
“(1)
The court or a judge may, in addition to any other power it or he may
have, mero
motu
or upon the application of any party affected, correct, rescind, or
vary any judgment or order —
(a)
that was erroneously sought or erroneously granted in the absence of
any party affected thereby; or
(b)
in which there is an ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission; or
(c)
That was granted as the result of a mistake common to the parties.”
Rule
449 provides for the correction, rescission and variation of a
judgment or order granted in error in the absence of a party affected
by the judgment or order. This rule is worded in similar fashion to
Rule 42 of the South African Uniform Court Rules of South Africa. In
Herbstein and Van Wines, The
Civil Practice of the High Courts of South Africa,
5th
edition at p930 the authors state as follows with respect to the
rule:
In
Grantuilly
& Anor v UDC
2000
(1) 200 ZLR 361 (SC), the court expressed the spirit behind the rule
as follows:
“I
consider that he was justified, in the exercise of his discretion, in
dismissing the application by reason of the inordinate lapse of time.
After all, Rule 449 is a procedural step designed to correct
expeditiously an obviously wrong judgment or order, per Erasmus J in
Bakoven's case supra
at 47E-F. See also Firestone
South Africa PTY Ltd v Genticuro supra
at 306 H.”
In
First
National Bank of Southern Africa Ltd v Jurgens & Ors
1994
(1) SA 677 (T), the court emphasized the requirement to deal with
applications of this nature expeditiously. The court remarked as
follows:
“It
is interest of justice that there should be relative certainly and
finality as soon as possible concerning the
scope and effect of orders of court. Persons affected by
such orders should be entitled within a reasonable time
after the issue thereof to know that the last
word has been spoken on the subject. The power created by Rule
42(1) is discretionary (see Tshivhase
Royal Council and Anor v Tshivhase and Anor
v Tshivhase and Anor 1992 (4) SA 852 (A) at 862 in fine – 863A)
and it would be a proper exercise of that
discretion to say that, even if the applicant
proved that Rule 42(1) applied, it should not be heard to complain
after the lapse of a reasonable time. A
reasonable time in this case is substantially less than three
years referred to.”
Rescission
under Rule 449 is distinct from that brought in terms of Rule 63.
Rule
63 makes provision for the time within which an application for
rescission of a judgment or order is to be brought. An application
under Rule 449 is not time barred.
Although
Rule 449 does not set time frames within which rescission of a
judgment should be sought, it is required that an Rule 449
application be made expeditiously.
The
nature of the application envisaged under Rule 449 is one where an
applicant is expected to take expeditious steps to vacate an
obviously erroneous order.
It
was not envisaged that a party who is aware of an erroneous order
would delay in bringing the application and hence the lack of a
provision setting out the time frames within which the application
for rescission under Rule 449 is required to be brought.
There
is no provision requiring an applicant who has delayed in bringing an
application under Rule 449, to explain the reasons for the delay in
bringing the application in terms of our rules. Case authority makes
it clear that a party who delays in taking remedial measures to
correct an order erroneously sought or granted may be taken to have
acquiesced to the order. The court will only exercise its discretion
favorably towards a litigant who has had a judgment awarded against
him, who through no fault of his, was not afforded an opportunity to
oppose an order and who upon being aware of the order takes
expeditious steps to correct the order.
A
person bringing the application is expected to take expeditious steps
to have the position rectified within a reasonable time. If the
application is not so made, an applicant is non-suited.
The
purpose of this requirement is to ensure relative certainty and
finality of matters.
Whilst
the rules do not require that a party who has delayed in bringing the
application make an application for condonation of the late filing of
the application, a statement explaining the circumstances surrounding
the delay is pertinent and should form part of his application. The
purpose of this is to equip the court in assessing the reasonableness
of the delay. Failure to do so results in his application being
thrown out.
The
applicants were required to explain their delay in bringing this
application.
The
applicants have given an account of their efforts to protect their
rights. The applicant contend that they sought rescission of the
order timeously in that they filed an urgent application for
rescission of judgment which Mtshiya J dealt with and he refused to
grant them an order for rescission resulting in them filing this
application.
Whether
the applicants failed to bring an application for rescission of
judgment within a reasonable time is the remaining issue.
The
default judgment was granted on 11 September 2011 and this
application was filed on 11 February 2013 giving a delay of 3 years 5
months.
The
applicants were aware of the order from the year 2011.
The
respondent argued that the relief sought has been sought before and
was declined by Mtshiya J resulting in the applicants approaching the
Supreme Court arguing that the court should have allowed their
application for rescission of judgment and that they cannot seek
rescission of the order again.
The
delay in bringing this application was lengthy and inordinate.
What
caused the delay is that instead of making an application for
rescission of the order in terms of Rule 449, the applicants chose to
file an ordinary urgent application which sought to reverse the gains
of the default order.
I
failed to get the wisdom of choosing to do so when they could easily
have rescinded the order. Out of ineptitude, the applicants went on a
merry go round.
The
urgent application was not an application for rescission of the
order.
Had
the provisional order been confirmed, its effect would have been to
reverse the effects of the default order. If the intention of the
applicants was to rescind the order, they adopted the wrong
procedure.
It
is inappropriate to seek rescission of judgment by way of an urgent
application.
I
am unable to find that the applicants applied for rescission of the
order when they sought the provisional order.
The
applicants wasted more time by going to the Supreme Court to argue
that Mtshiya J ought to have rescinded the default order when they
had not made any application for such relief. That argument was
clearly misplaced.
I
agree with Mtshiya J that the order was still extant and that it was
incompetent for him to confirm the provisional order.
The
Judge must have found himself in an awkward position where he was
dealing with an application for confirmation of the provisional
order, which had the effect of rescinding a default order that was
extant.
The
court correctly found that it was unable to grant or deny the order
sought because no application for rescission of the default order had
been made.
Had
he acceded to the request for the relief sought, he would have
unprocedurally rescinded the order of 14 September 2011.
This
matter was poorly prosecuted.
The
objective of expeditiously vacating an obviously erroneous order or
judgment cannot be achieved if parties take forever to bring
proceedings for correction of orders.
It
is unacceptable by any means for a party who has been aware of an
order to bring it three and a half years down the line for
correction.
This
is so especially when one considers that the applicants have tried
everything else to reverse the order granted in default and seemed to
avoid making the correct application.
I
find that the applicants took unreasonable steps in seeking to
rescind the default order by way of an urgent application and without
seeking the relief they ought to have sought. They insisted that they
were entitled to rescission and went as far as the Supreme Court with
that argument, wasting time.
As
a result, I find that the delay in making this application was
unreasonable. The applicants have in the result non-suited
themselves.
Even
if I am wrong in this approach, the applicants are going nowhere
slowly as they seem not to have a cause of action against the
respondents.
I
find myself in an invidious position where I am required to go over
the same issues as did Mtshiya J. The merits of this application have
already been dealt with.
However,
my view is that the applicants have not met the requirements of the
application.
The
purpose of the rule is to allow a court to correct a judgment or
order erroneously sought or granted, to apply to have it rescinded.
See Theron
No v United Democratic Front and Ors
1984
(2) SA 532;
Matambanadzo
v Goven
2004
(1) ZLR 399 (S); Mutebwa
v Mutebwa
2001
(2) SA 193.
One
of the requirements of Rule 449 is that an applicant shows that he is
“affected” by the judgment or order.
The
authors
Herbestein
and Van Winsen
in
The
Practice of the High Courts of South Africa
5th
ed @ 931 state that it is only a limited class of persons who are
entitled to bring an application for an order setting aside or
varying a judgment of court. The authors rely for this proposition
on the case of United
Watch and Diamond Co (Pty) Ltd and Ors v Disa Hotels Ltd and Anor
1922
(4) SA 409 @ 415A-C where the court said the following on locus
standi:
“In
my opinion, an applicant for an order setting aside or varying a
judgment or order of court must show, in order to establish locus
standi,
that he has an interest in the subject matter of the judgment or
order sufficiently direct and substantial to have entitled him to
intervene in the original application upon which the judgment was
given or order granted.”
Mtshiya
J was of the same view that the applicants have no direct and
substantial interest entitling them to intervene in HC7398/11.
In
his judgment, Mtshiya J relies on Silberberg
and Schoeman, The Law of Property, (Lexis Nexis-Butterworths)
5th
ed
for
the requisites of transfer and he quotes from p73 as follows:
“The
seller of a thing which does not belong to him or her must first
acquire it for him or herself to then transfer it to the buyer… in
other words, 'nobody gives something he does not have' (nemo
dat qui non habet).
This rule is based on the old Roman Law maxim 'no one can transfer
more rights to another than he himself has
(nemo plus iuristransferrepotest quam ipse habet)'.
This may be described as the 'golden rule' of the law of
property.”
The
court relied on this position at law as the main basis of his
judgment.
He
observed that transfer of Newark was never made to Max and that Max
could not transfer or assign any rights to anyone respect of the
property.
I
agree with the concerns raised by Mtshiya J in HH20/14 with respect
to Max's and the applicants rights and interests. On p14 of the
cyclostyled judgment, he notes the following:
“It
should further be noted that the consent order of 11 March 2008 was
the final position prior to this court's order of 14 September
2011. The consent order took note of what had transpired up to that
date. That order, in my view, cancelled all previous arrangements,
except that it failed to recognise that Max had no rights to assign
to anyone. It was only the second respondent who could assign rights.
However, notwithstanding the fact that the parties knew that the
second respondent held title to the property, no
responsibility/obligation was placed on her. Without the
participation of the second respondent the said consent order could
not be implemented. The same applied to the purported agreement of
assignment of 15 April 2010 concluded between Max and the applicant.
In the absence of title and clear rights, Max had nothing to cede.
That point should have been revealed to the court before the consent
order was granted. The applicant acknowledges that Max, a developer
of the property, had no title.……the applicant's members have
no relationship whatsoever with the second respondent (Mrs. Mvembe).
They are at liberty to claim their monies from Max.”
The
applicants allege that they derive rights from Max through the
assignment.
The
agreement of sale was entered into between Max and Mrs. Mvembe. The
owner of the property is Mrs. Mvembe and remains so. Nevertheless,
when the agreement of assignment was entered into, the owner of the
property was not involved.
An
assignment of rights can only be valid if it involves the creditor
who in this instance is the owner of the property concerned.
The
assignment could only have any legal standing with the involvement of
the owner of the property concerned. The assignment cannot bind the
owner and hence there is no relationship between the applicants and
the owner.
The
property had not been transferred to Max and it had no rights with
respect to the property which it was capable and entitled to cede or
transfer because it had not received transfer from the original
owner.
Ownership
of property can only be transferred where the transferor has title to
tithe applicants have no legal rights arising out of the assignment.
They have no rights to enforce and they have not established any
justification for the relief sought.
What
complicates this application is that Max has not contested the
cancellation of the agreement of sale and Mrs. Mvembe has not opposed
this application.
I
am alive to the fact that the first applicant's members were at the
time of the default judgment in occupation of some of the undivided
stands and that members of the applicant bought stands in Newark and
paid for them.
This
interest amounts to merely a financial interest.
They
have is a personal right against Max which they can enforce against
Max.
I
am unable to find that the applicants have shown the existence of
sufficiently direct and substantial interest to warrant rescission of
the default order.
Having
found that the applicants have no substantial interest in the subject
matter of these proceedings, I will not delve into the merits of this
application.
In
the result it is ordered as follows:
The
application is dismissed with costs on an attorney client scale.
Granger
& Harvey,
applicants legal practitioners
Dodo
and Partners,
respondent's legal practitioners
