An Eastern Cape high court judgment has reignited a 14 year-old battle between a government spokesperson, a vehicle dealership and Wesbank.
Mzukisi Ndara, the spokesperson of the province’s deputy labour minister Phathekile Holomisa, says as a result of fraud by the bank and King William’s Town Datnis Nissan dealership, he lost his creditworthiness, his job and had to let go of two houses. He is claiming R10-million in damages.
The case had initially been dismissed and an application for leave to appeal was refused. But Judge Buyiswa Majiki last week reversed the dismissal of leave to appeal saying it was erroneously sought and granted.
Majiki rescinded the earlier order because, at the time of the hearing, a proper notice of set down had not been sent to the Ndaras, and the date for sitting given by Judge Elna Revelas in August 2015 did not conform to Eastern Cape division’s rules, which require 10 days from announcement to hearing. Ndara claims that the dealership and the bank fraudulently entered into a contract with him in 2004 to purchase a new Nissan X-trail SUV when in fact the car he bought had 6 700 kilometres on it. The vehicle was meant to be under a special government senior managers scheme whose interest rate was prime minus two percent.
Ndara’s battle began when he tried to get out of the contract, in 2005, after he became unhappy with the instalment and later discovered he had in fact been charged not only for a new vehicle, but it was a higher spec model. Wesbank refused to let him out of the deal.
As a result of the tussle, Ndara lost his credit worthiness, was forced to resign from his job and had to let go of two properties. As his financial situation deteriorated his wife was diagnosed with depression and was repeatedly hospitalised, he said. In 2013 he issued summons against the respondents.
In 2015 the respondents entered a special plea of prescription, arguing the summons were issued nine years later but Ndara argued that he only learnt of the facts showing fraudulent conduct earlier in 2013.
Revelas upheld the argument that the claim had prescribed on March 5 2015, saying the facts relied upon for the alleged fraud arose at the time the contract was concluded and that Ndara knew the identity of the people who allegedly defrauded him. Ndara filed a notice applying for leave to appeal on March 26 2015, but did not arrange for a date of a hearing.
On April 28 lawyer Ben Brody, acting for the bank and the car dealership, filed a request for Revelas to determine a date for the hearing. On August 12, Revelas determined that parties would gather on August 18, and this was communicated to Brody, who then communicated this to the Ndaras, via an e-mail to their legal representative, the following day.
In her judgment last week Majiki found the email notification was wrong as it was not the nominated address of service. “Their legal representative to whom the email was addressed to was in Mozambique until August 22 2015 and has no access to his emails. No notice was issued by the registrar of the court as required by the rule of practice,” she said.
The respondents, though conceding that Rule 10(c) was not complied with, argued a case could be made that approaching the courts three years later for a rescission was in fact a bar to the granting of the order.
In a plea for condonation, Ndara said the delay was occasioned by the fact that part of a transcript of the proceedings from 2015 was missing and his legal team had been trying to access it to pursue the application for leave to appeal.
In his application for leave to appeal he said “apathy” on the part of the court, which he described as a barrier to justice in his instance, had led to him being unable to get a proper account of where a record of his testimony — which is critical to lodging an appeal before the Supreme Court of Appeal — from June 2016 until November 2017.
The fact that his application was dismissed in August 2015 became known to him in November 2017. “What is clear to me is that the application for leave to appeal was heard in our absence and without notification to us.”
“This bothered me incredibly because this matter is important and I was angry that this application for leave to appeal had been heard in our absence … The file is endorsed but it is not possible to read what the endorsement says,” he said.
Although an affidavit signed by Grahamstown high court registrar Janet Wilson said everything after a break in Ndara’s evidence was missing, the only portion of the record missing was Ndara’s evidence and cross examination.
Ndara’s legal representatives also argued that applications for rescission of a judgment in terms of Rule 42 of the Uniform Rules do not prescribe. In response to the Mail & Guardian, Brody, who has filed notice of intention to appeal Majiki’s judgment, said the Ndaras were aware of the date for leave to appeal before Revelas.
“There was nothing untoward in the manner in which the matter was set down as this is in terms of the rules of court and where the other party fails to set the matter down,” he said.
In his application for leave to appeal, Brody argues that Majiki erred in condoning the late filing of the rescission application because, among others, her finding that applications in terms of Rule 42 had no time prescription was in conflict with established precedent.
He also argued that placing any relevance on the email to the Ndara’s lawyer advising of the date of the hearing was of no relevance as the date was enrolled on the direction of a presiding judge — after the applicants had failed to arrange for the hearing —and not the respondents.