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[2016] ZAWCHC 207
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La Farge Industries SA (Pty) Ltd v High Sights CC (341/2015) [2016] ZAWCHC 207 (8 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 341/2015
In
the matter between:
LA
FARGE INDUSTRIES SA (PTY)
LTD
Applicant
and
HIGH
SIGHTS
CC
Respondent
Court:
Canca,
AJ
Date
of Hearing:
3
November 2016
Date
of Judgment:
8
November 2016
JUDGMENT
INTRODUCTION
1.
In
this matter the applicant (“La Farge”) brought an
application in July 2016 seeking the rescission of an order, granted
by this Court on 24 June 2015, striking out its defence. In
addition, La Farge seeks an order that the respondent (“High
Sights”) pay the costs should it oppose the application.
An order condoning the late filing of the application is also
sought. High Sights opposes the rescission application but does
not oppose the condonation application. Condonation
was duly
granted.
2.
A
brief background of the facts that led to the launch of this
application is appropriate. High Sights instituted an action
for damages against La Farge in January 2015. The damages arose
as follows. High Sights had placed an order for ready-mixed
concrete from La Farge which had to be delivered at an identified
delivery site on High Sights’ farm on 1 June 2012.
On the
day in question and whilst delivering the fifth truckload of the
requested ready-mixed concrete at the agreed spot, the
driver of the
truck lost control of same, causing it to collide with a storeroom
belonging to High Sights. The resultant
damages suffered by
High Sights amount to R1 307 695,32. It is not
necessary, for purposes of this judgment, to
give a breakdown of how
that amount is arrived at. It is convenient though to list what
the damages comprise of.
3.
The
extent of the damage is set out thus in the Particulars of Claim
issued by High Sights against La Farge:
“
16.1
The storeroom was structurally damaged to such an extent that it has
been declared to be both irreparable and unsafe by a structural
engineer;
16.2 The cold room
situated within the storeroom was irreparably damaged;
16.3 The movable items
within the storeroom were irreparably damaged;
16.4 Plaintiff lost
the use of that part of the storeroom that it had used as a workshop
and had to relocate its workshop to another
structure … which
it was letting out to a third party at the time of the incident;
16.5 Plaintiff lost
use of that part of the storeroom which it had been letting out to a
third party for the storage of files and
had to relocate said files
to another smaller structure which it had been letting out to another
third party at the time of the
incident;
16.6 Plaintiff’s
aforesaid tenant since the incident had to store further files ….
with Metrofile …. .
16.7 A portion of the
aforementioned files were damaged …. exposing Plaintiff to a
claim for damages from the lessee/owner
of the files;
4.
Following
receipt of La Farge’s Plea in February 2015, High Sights,
during May 2015, served on La Farge’s Cape Town
correspondent
attorneys, a Notice of Motion for Application to Compel La Farge to,
inter
alia
,
1.
respond to
a Request for Trial Particulars, and
2.
file its
Discovery Affidavit, and
3.
respond to
a notice issued in terms of Rule 35(1) and (6). All of this had
to be done within a certain time frame.
5.
The Notice
of Motion also sought authority for High Sights, in the event of La
Farge failing to comply with the Orders sought above,
to make further
application to this Court, without further notice to La Farge, and on
the same papers, duly supplemented, for an
Order striking out La
Farge’s defence. An Order in these terms was granted on 8
June 2015 and was served on La Farge’s
attorneys the following
day, 9 June 2015. When La Farge failed to comply with the said
Order, High Sights sought and obtained
the striking out Order on 24
June 2015.
6.
The
attorney for La Farge, Ms Palm, avers in the founding affidavit that
she only became aware of the Order after it was granted
in June
2015. Ms Palm had taken over the prosecution of this matter
from her business partner, Mr Hollander. The law
practice of
the aforesaid attorneys evidently has an electronic logging system
which allows for any action required in respect
of a matter to be
logged and flagged. A person dealing with the matter could then
attend to what needed to be done.
Ms Palm, at paragraph 23 and
24 of the Founding affidavit avers that:
“
23. It is
self-evident from this record
[referring
to a recording showing the electronic logging of action required in
regard to this matter]
that
the matter was only transferred to me as system user on 10 November
2015 after the application to compel had been launched
and an order
granted in this regard. From Mr Hollander’s system note
dated 9 June 2015 writer noted that the pre-trial
notices were filed
and incorrectly assumed when updating the document types
[sic]
on 7
June 2015 that the necessary action had been taken in respect of
discovery and service effected by our correspondent.
24. Hollander
omitted to print a hard copy of the application to compel and to
place same in the physical file handed over
to me by Hollander, and
for this reason, I was unaware of the application having been loaded
on the system prior to 7 July 2015.
Hollander in turn was under
the impression that I was attending to the necessary further action
without realising that the physical
file did not contain a copy of
the application to compel and that the system user had not been
changed to me.”
Ms
Palm relies on these averments to contend that there was a
bona
fide
oversight on her behalf. This does not disentitle the
applicant to the relief it seeks, so the averments continued.
7.
La Farge
initially sought rescission of the order on three grounds, namely:
Rule 31(2)(b), alternatively Rule 42(1)(b) of
the Uniform Rule of
Court , further alternatively the common law. At the start of
the hearing, Ms Lombard, for the applicant,
correctly in my view,
abandoned reliance on Rules 31 and 42. La Farge pins its mast
to the common law ground.
8.
It is trite
that in order for an applicant to succeed in a rescission
application, good cause must be shown. For there to
be good
cause, the following threshold requirements have to be met:
(1)
a
reasonable explanation for the default;
(2)
evidence
that the application is made
bona
fide
and
(3)
a
bona
fide
defence
with
prima
facie
prospects
of success.
See
Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA1 SCA at 9 C – F.
9.
A perusal
of the record of the actions logged by Ms Palm and Mr Hollander with
regard to this matter reveals the following: (a)
On 9 June 2015 an
email from his correspondent attorney [I assume that the word “CORR”
in the log refers to correspondent]
was uploaded by Hollander on that
day. Presumably this would have been the Order granted on 8
June 2015. For reasons
unknown, as both the Founding and the
Replying Affidavits are silent in this regard, the electronic logging
systems shows no entries
for the period 10 June 2015 to 6 July 2015;
(b) Ms Palm collected the physical files from her colleague on 7 July
2015; In her
explanation for the default, set out in paragraph 6
above, Ms Palm avers that because the matter was only transferred to
her as
a system user on 10 November 2015, she was not aware of the
application to compel. Hollander had omitted to print and place
a copy of the original application in the physical file, so her
averment continued. She also avers that Hollander was under
the
impression that she was attending to the requisite action.
10.
I am not
convinced that the explanation for the default is satisfactory.
I agree with the contention by High Sights that one
would have
expected Ms Palm, who does not explain why she took over this matter,
to have diligently scrutinised the file in order
to establish the
matter’s history. If she had done that, she would have
become aware of the striking out Order when
the matter was
transferred to her in July 2015. Also, Hollander, who deposed
to a confirmatory affidavit, does not shed any
light on this aspect
of the matter. In his three paragraphed affidavit, Hollander
merely avers that “I have read the
affidavit of Riana Palm and
confirm the contents thereof insofar as it relates to the
Defendant/Respondent, its employees and/or
agents.” I
must assume that La Farge wants to defend the action. It was
clearly not at fault that judgment was
obtained against it.
However,
Jones
AJA
in
Colyn
supra
states that although “
the
Courts are slow to penalise a litigant for his attorneys inept
conduct of litigation, there comes a point where there is no
alternative but to make the client bear the consequences of the
negligence of his attorneys”
[1]
.
11.
During
argument, Ms Lombard made much of the fact that the amount of the
damages was large and, given that La Farge disputed both
the merits
and quantum, La Farge ought to be given the opportunity to contest
the matter. Whilst I might have sympathy for
the position La
Farge finds itself in, the inadequacy of its attorneys explanation
for the default, leads me to the conclusion
that this is an instance
where it “
must
bear the consequences of the negligence of
[its]
attorneys
”.
12.
Even if I
am wrong in finding the explanation proffered by Ms Palm weak, the
defence put up by La Farge, in my view, does not have
good prospects
of success. Much of La Farge’s defence rests on a report
by its expert witness, Mr A van der Westhuizen,
who from his
letterhead appears to be an accident investigator and/or a person who
reconstructs accidents. Although Ms Palm
avers that their
expert will testify,
inter
alia
,
that the accident was not caused by the truck driver’s
negligence, this is not borne out by Van Der Westhuizen’s
report. He find that “
the
driver should have been more cautious …”
.
Also, La Farge’s own internal investigation found that the
accident was caused by the driver having taken an unsafe
position and
had exercised poor judgment. In addition, one of La Farge’s
employees, Jan Brand, a site inspector, who
visited High Sight’s
property after the accident, assured a resident of the property that
La Farge would “
sort
out”
all the damages. The defence against quantum is based on Van
der Westhuizen’s statement that he was not provided with
proof
of damage to the expensive items which formed part of the damages
claim, something he found very strange.
13.
I agree
with Ms Ipser, for High Sights, that on the version of its own expert
and on the basis of its internal investigation, La
Farge’s
defence is not
bona
fide
.
Moreoever, La Farge’s attorneys of record failed to enrol
the matter after receiving the answering papers. The
matter was
enrolled by High Sights’ attorneys, who also indexed and
paginated the Court file. A further sign of the
inept conduct
of this matter by La Farge’s attorneys.
14.
In light of
the above, I am of the view that La Farge has not shown good cause
for a rescission order.
15.
Although Ms
Ipser argued for costs to be awarded against La Farge on the attorney
and client scale, I am not persuaded that the
actions or inaction by
its attorneys warrants a deviation from the normal costs orders
granted where a litigant has been successful.
16.
In the
result, I order a follows:
The
application is dismissed with costs.
---------------------------
CANCA, AJ
Appearances
For
the Applicant:
Adv N Lombard
Instructed
by:
Palm Hollander Attorneys
Gauteng
For
the Respondent: Adv M
Ipser
Instructed
by:
Schliemann Inc
Cape Town
[1]
At 9H