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[2020] ZAWCHC 71
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Investec Bank Limited v O'Shea NO (10038/2014) [2020] ZAWCHC 71 (31 July 2020)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: 10038/2014
Before:
The Hon. Mr Justice Binns-Ward
Hearing: 27 July 2020
Judgment:
31 July 2020
In
the matter between:
INVESTEC
BANK
LIMITED
Plaintiff
and
SIOBHAN
LEE O’SHEA
N.O.
Defendant
(in her capacity as trustee of the St John Trust IT 2429/1998)
JUDGMENT
(Delivered by email to the parties and release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
31 July 2020.)
BINNS-WARD J:
Introduction
[1]
The matter for consideration at this stage
of the action proceedings instituted by Investec Bank Ltd against the
defendant in her
capacity as the trustee of the St John Trust
(formerly known as the O’Shea Family Trust) is the defendant’s
application
in terms of rule 33(4) for a separation of issues.
The application comes before me as the case manager judge.
Notice of the application was served by the defendant on the
plaintiff in or about mid-February 2019.
[1]
The application is opposed by the plaintiff. An affidavit
opposing the application was delivered by the plaintiff on
19 March
2019. The application was set down for hearing in court on
27 July 2020 in the circumstances described
below. The
defendant applied for a postponement of the hearing on that date,
which application was also opposed by the plaintiff.
[2]
The plaintiff’s claim against the
defendant arises out of the alleged liability of the Trust in terms
of two deeds of suretyship
that the Trust, and certain other parties,
executed in favour of the plaintiff in respect of indebtedness to the
plaintiff of the
principal debtor , the Plettenberg Golf Estate (Pty)
Ltd (PGE). The sureties’ exposure under both deeds of
suretyship
was limited. In respect of the first deed (a copy
thereof is attached to the plaintiff’s particulars of claim
marked
F1
),
which was executed in 2006 and described itself as a ‘
limited
continuing suretyship
’, the limit
was R18 425 000. The first deed of suretyship was
that referred to as having to be provided in
terms of clause 2.1.4.1
of an agreement of loan entered into between the plaintiff and PGE on
23 January 2011 (annexure
A
to the particulars of claim). In respect of the second deed
(annexure
F2
to the particulars of claim), executed during 2007, which was titled
‘
suretyship limited to facility
and amount
’ and pertained to a
facility identified with reference to ‘Agreement No.
218228/005’, the limit of the Trust’s
liability was
originally R6 806 250. However, by deed of amendment,
dated November 2007 (annexure
F3
to the particulars of claim), the extent of the Trust’s maximum
exposure under the second deed of suretyship was reduced
to
R1 million plus interest and certain other ‘charges,
expenses and costs’. Agreement No. 218228/005 was
a
written agreement of loan entered into between the plaintiff and PGE
on 24 January 2011 (annexure
B
to the particulars of claim). Clause 2.1.4.1 thereof
cross-referenced to the aforementioned second deed of suretyship and
related deed of amendment.
[3]
It will be noted from the various dates
mentioned in the preceding paragraphs that the dates of the
suretyship agreements precede
those of the two agreements of loan to
which they allegedly relate. The apparent oddity in that is
explained in paragraph
5 of the plaintiff’s particulars of
claim where it is pleaded that the attached agreements of loan
‘
record the latest terms of those
agreements
’. It may be
deduced from that allegation that there were earlier editions of
those agreements.
[4]
It appears from the plaintiff’s
particulars of claim that it appropriated certain payments received
by it in reduction of
the principal debt to that portion thereof to
which the second deed of suretyship pertained, with the result that
the defendant’s
contingent liability thereunder has been
extinguished. The balance of the payment received by the
plaintiff was also appropriated
in reduction of the debt to which the
first deed pertained, with the result that the defendant’s
exposure under that deed
was alleged to be in the sum of
R17 570 210,66 as of 10 April 2013. In the
pending action the plaintiff claims
payment of that amount, together
with mora interest at the contractually stipulated rate from 10 April
2013.
[5]
The
most recent iteration of the defendant’s plea, being that dated
26 February 2019, shows that the defendant has raised
a number
of defences to the plaintiff’s claim. I find it necessary
for present purposes to refer to only some of them.
It has
alleged that the plaintiff has no title to the claims against the
principal debtor having disposed of the rights it had
‘
to
one or more third parties, the identities of which are not known to
the Defendant
’. The defendant
alleges in the alternative that the plaintiff has no standing because
it has, according to the defendant,
recovered any losses it sustained
by virtue of the principal debtor’s default from its insurers.
It is also denied
that the loan agreements attached to the
particulars of claim ‘
were
amendments of pre-existing loan agreements
’.
The defendant also denies the material terms of the loan agreements
as alleged in the particulars of claim.
The plea also puts in
dispute the existence and computation of the principal debt that is
in issue in the action based on the first
deed of suretyship.
In particular, it is denied that the plaintiff complied with its
obligations under the loan agreement,
including the obligation to
lend and advance the loan amounts. And, notwithstanding an
express provision in the second deed
of suretyship that it was
furnished ‘
in addition to and
without prejudice to any other security or suretyship (including any
suretyships signed by the Surety) now or
hereafter to be held ...
’,
the defendant has pleaded that the second deed of suretyship replaced
the first deed of suretyship and that she accordingly
has no
remaining obligations under the latter contract.
[6]
In
regard to the last-mentioned defence, the defendant introduced
paragraph 27A into the latest version of her plea, in which she
pleaded that the second deed of suretyship was susceptible to being
rectified to reflect the true common intention of the parties.
Rectification obviously had to be pleaded if the defence that the
second deed of suretyship had replaced the first were to get
around
the effect of the parol evidence rule. Paragraph 27A of the
plea currently provides as follows:
27A To the extent that the written suretyships dated 25
October 2007 and 15 May 2006, purport to represent that they are
separate
and independent suretyships concluded by the parties,
Defendant pleads that:
27A.1 This does not reflect the true intention of the
parties;
27A.2 The common continuing intention of the parties, as
it existed at the time when the suretyship dated 25 October 2007 was
reduced
to writing, was that it would replace the suretyship dated 15
May 2006;
27A.3 There was a mistake in the drafting of the
suretyship dated 25 October 2007 document, which was the result of an
intentional
act of plaintiff, alternatively a bona fide common error;
27A.4 The actual wording of the
suretyship dated 25 October 2007 should have contained a provision
recording that it replaced the
suretyship in favour of Plaintiff,
dated 15 May 2006 and the suretyship should be rectified accordingly.
The plea does not specify with any precision how the wording of the
second deed of suretyship falls to be changed for the purposes
of the
pleaded rectification. It says nothing at all about how the
rectification of the second deed might affect the first
deed in which
the Trust is but one of a number of co-sureties, some of which are
not party to the second deed.
[7]
Notwithstanding the provisions of rule
6(11), the interlocutory application in terms of rule 33(4) was
brought on the long form
notice of motion. The defendant took
no steps to set the application down. This may perhaps be
explained by the fact
that at the last case management meeting, held
in December 2018, I was asked to retain the file in chambers pending
anticipated
further developments; viz. the possible settlement of the
action, alternatively, and if that was not achieved, a ‘possible
application’ by the defendant for a separation of issues.
[8]
The anticipated possible application for a
separation of issues had been addressed in a pretrial meeting minute,
dated 4 December
2018, signed by the parties’ respective
attorneys. The minute recorded the following in the relevant
respect:
The separation application
2.7 In the event the parties are unable to conclude a
settlement of this matter, then the defendant shall deliver its
application
for separation by 17h00 on Tuesday, 15 January 2019.
2.8 The plaintiff shall deliver its answering/ opposing
papers (if any) in the separation application by Friday, 1 February
2019.
2.9 The defendant shall deliver its replying papers (if
any) in the separation application by Monday, 17 February 2019.
2.10 The parties shall thereafter agree upon the first
available date (where both parties’ counsel are available) for
the
hearing of the separation application.
3.
The trial-readiness of this matter
3.1 In the event that-
3.1.1 the parties fail to settle this matter in the
manner detailed above;
and
3.1.2 the defendant fails to deliver its separation
application as per paragraph 2.7 above,
then the parties hereby agree that
this matter is trial-ready, and that the plaintiff may approach the
Honourable Mr Justice Binns-Ward
to have the matter certified as
such
.
[9]
The matter obviously did not become settled
and defendant did not bring an application in terms of rule 33(4) by
15 January 2019,
but I was not approached to certify the case as
trial-ready, as agreed in para 3.1.2 of the 26 November 2018
pretrial minute.
The defendant’s attorneys explained the
delivery of their client’s application for a separation of
issues outside of
the time frame recorded in the 4 December minute in
a letter to my registrar, dated 5 February 2019, in which they
stated
that the defendant’s offer of settlement had been
rejected by the plaintiff only on 18 January 2019.
[10]
I have not found any formally recorded
direction to that effect, but it would appear from the email
correspondence in the court
file to which I have had regard that I
must have indicated at the last case management meeting on 6 December
2018 that, if necessary,
I would give directions after the papers in
any application for separation had been finalised as to whether it
would be heard by
me as the case manager judge or referred for
hearing on the opposed motion roll. When more than a month had
elapsed after
the delivery of the opposing affidavit and the
defendant had not filed a reply, the plaintiff’s attorney
emailed an enquiry
on 25 April 2019 asking for directions on the
hearing of the application. That enquiry, and follow up emails
in June
and August, respectively, appear to have been sent to the
email address of my former registrar, Mrs A. Havemann, who had
retired
at the end of July 2018. They did not come to my
attention.
[11]
In response to a further emailed enquiry by
the plaintiff’s attorney in November 2019, this time addressed
to my current registrar,
the parties’ attorneys were advised
that I was on long leave and that the matter would be placed before
me at the beginning
of January 2020 when I was due to return to do a
week of recess duty. The matter, however, escaped notice in the
hurly-burly
of my duty week and a further email from the plaintiff’s
attorney sent to my registrar on Friday, 20 March 2020, did not
receive attention because it came in on my last day in chambers
before the Covid-19 lockdown.
[12]
I spent the entire period of the second
court term working remotely from home, being occupied principally
with the hearing on an
audio-visual platform of a long-running trial
that commenced on 11 May and, with a week’s interruption,
ran through
until 23 June. This matter was eventually attended
to after I collected the files during a brief visit to my chambers to
attend to administrative matters on 10 June 2020 after my
registrar had forwarded me a further enquiry from the plaintiff’s
attorneys, dated 9 June 2020. I found that the papers were not
in order. Amongst other things, the papers in the separation
application were entirely missing from the court file.
[13]
As appears from my registrar’s email
to the parties’ legal representatives, a copy of which is
attached, marked
A
,
to the defendant’s supporting affidavit in the application for
postponement, they were advised on 17 June 2020 that,
provided
that the files were placed in order by 22 June, I would be
willing to hear the application on the Zoom audio-visual
platform on
25 June if the parties’ legal representatives were available.
The parties were also advised that, by way
of an alternative to the
aforementioned proposal, and if they were content for the application
to be disposed of in that manner,
I would be willing to determine the
application without oral argument on written submissions. They
were informed that should
neither of those proposals be acceptable,
the application would be heard by me in court on 27 July 2020,
being the first day
of third court term.
[14]
The plaintiff’s attorneys thereafter
collected the papers from my home and promptly returned them in good
order. They
also indicated that they would be willing to
participate in an online hearing, or to have the separation
application decided on
the papers without oral argument.
[15]
The defendant’s attorney responded in
a letter to my registrar, dated 22 June 2020. He advised
that the suggested
date for an online hearing in June was not
convenient. His letter recorded that ‘[w]
e
are trying to make arrangements for the July date, depending on the
availability of counsel and we shall revert shortly
’.
In her affidavit in support of the application for a postponement,
the defendant indicated that she had not been
willing to have the
rule 33(4) application determined on the papers. She averred
that ‘[the defendant]
wants to
have the matter properly argued, as it
(sic)
is entitled to do, in Court, where
advocacy of the applicant’s briefed counsel can have the
opportunity of convincing the
presiding judge of the merits of the
applicant’s case
’.
[16]
When it became apparent that the
application could not be heard before the end of the second court
term on either of the bases proposed
in my communication to the
parties’ legal representatives of 17 June, I caused them to be
advised, on 24 June 2020, that
the matter would be heard in court on
27 July, as previously indicated. They were informed that
‘[s]
hould counsel currently
engaged in the matter not be available on the given date, the party
affected will be expected to engage
alternative counsel. Any
party not in a position to proceed on the given date will be expected
to bring a formal application
for postponement with appropriate
expedition
’. I made that
stipulation consistently with the longstanding policy of the court
that its timetables are as a general
rule not dictated by the
availability of counsel of first choice,
[2]
and conscious of the history of delay in the matter, in which the
pleadings had closed as long ago as 2016, and in which it was
evident
from the reasons given by the defendant’s attorney to the
plaintiff’s attorneys for his inability to subscribe
to a
progress minute required to be filed at the case management meeting
held on 13 August 2018 that the defendant did not always
timeously
furnish him with instructions. The defendant delivered her
application for postponement on 14 July 2020.
[3]
Application for postponement
[17]
The defendant’s view of the set down
of the rule 33(4) application for hearing on 27 July 2020 was
succinctly stated
in paragraph 9 of her affidavit in support of
the application for a postponement. In that regard she
expressed herself
as follows:
Although the applicant understands the difficulties and
limitations caused as a result of the so-called national lockdown, it
is
also important to remember that:
9.1 There is no urgency in this matter;
9.2 There is no particular need why the rule 33(4)
application must be determined on 27 July 2020. There will be no
prejudice to
anyone if that application were to be determined on
another date, agreed between the parties and which is available to
the Court;
9.3 The litigation in this matter has been ongoing for
some years;
9.4 The applicant should be entitled
to have a hearing in court, before a judge, as opposed to a hearing
without any oral argument
or via a video link only. Justice must not
only be done, it must also be seen to be done.
[4]
[18]
The
postponement is sought on the following grounds:
18.1
The
unavailability of the defendant’s counsel and attorney on
27 July 2020 because, so it was alleged, they were both
engaged
in other opposed matters on that date. In that regard it is
pointed out that the ‘
matter has a
long history and the pleadings ... are extensive
’.
It is contended that the attorney and the counsel know the history
and that it would be ‘
expensive
and unnecessarily time-consuming to the
[defendant]
to have to brief an entirely new legal
team, only because the specific date of 27 July 2020 is not
available to either the
attorney or the counsel of the
[defendant]’. The defendant concluded on this aspect in
her affidavit that ‘[a]
nother date
for the hearing of this matter would be the most suitable alternative
for the hearing of this matter
’.
18.2
That
further discovery in the action is necessary before the application
in terms of rule 33(4) will be ripe for hearing.
The unavailability of the defendant’s counsel of choice
[19]
Whether the unavailability of counsel
previously engaged in a matter might afford a reasonable basis for a
postponement at the instance
of the affected party will depend on the
facts of the given case. Fairness and the interests of justice
are the principal
determining criteria in all contested applications
for postponement. Appropriate regard must be had not only to
the position
of the applicant but also to the legitimate interests of
the other parties to the litigation and the needs of the effective
administration
of justice. Ordinarily, and certainly when there
is sufficient time for another advocate to prepare, alternative
counsel
should be instructed when counsel of first choice is not
available on the date allocated for the hearing of a matter. To
avoid doing so is, in effect, a delaying tactic.
[20]
If the date of 27 July that was
proposed in my registrar’s email to the parties of 17 June gave
rise to an earnestly
felt difficulty for the defendant, I would have
expected her legal representatives to have raised the issue before
the date was
firmly settled in terms of the notification given to the
parties on 24 June 2022. There is no evidence that the
defendant’s
attorney was unable during the period of a whole
week between 17 and 24 June to ascertain the availability of the
defendant’s
counsel of choice. And it does not escape
notice that in his letter to my registrar of 22 June, in which he
stated ‘
We are trying to make
arrangements for the July date, depending on the availability of
counsel and we shall revert shortly
’,
the defendant’s attorney made no mention of his own
unavailability on 27 July that, as indicated above, was
urged in
the papers as one of the reasons why the matter should be
postponed.
[5]
[21]
The defendant furthermore gave no
indication of what the ‘suitable alternative’ date for
the hearing of the rule 33(4)
application might be, or that her legal
representatives had made any effort, in consultation with the
plaintiff’s legal representatives,
to determine a mutually
convenient date that might be proposed to the court if a postponement
were to be granted. In the
latter regard it bears mention that
when the application for a postponement was received, my registrar,
in confirming that it would
be heard on 27 July - as opposed to
22 July being the alternative date nominated in the notice of
application - advised that
that would be the date ‘
unless
there is agreement on a postponement before then
’.
I can accept that the plaintiff might not have agreed to a
postponement, but were the defendant sincerely anxious
to settle on
an alternative suitable date on which her legal representatives of
choice would be available, I would have expected
some effort to be
made at least identify such a date or choice of dates. How else
was the court to be expected to determine
a ‘suitable
alternative’ date if it were to grant the postponement?
It is after all the defendant who is the
applicant in the rule 33(4)
application, and I would therefore have expected that she and her
attorney would make the running in
getting it heard. But, as
the history described above illustrates, it has been the plaintiff’s
attorney who has driven
the process. The parties’ conduct
tells a story. One of them is anxious to get to trial to obtain
a final adjudication
of its claim; the other is at best indifferent
about expediting the finalisation of the case.
[22]
It was specious of the defendant to suggest
that the matter is lacking in any urgency. Urgency is a
relative concept, and
whereas the defendant might be right to say
that the matter lacked urgency in the sense that that word might be
understood in rule
6(12), interlocutory applications concerning
procedural issues in pending actions are routinely dealt with as a
matter of relative
urgency. The set down of an interlocutory
application on nearly six weeks’ notice was unremarkable, and
the insinuation
in the defendant’s papers that the set down of
her rule 33(4) application was treated with inappropriate urgency was
by no
means justified. As rule 37A - the rule that
regulates judicial case management - expressly acknowledges, case
management
through judicial intervention is directed at ‘
obviating
the problems that cause delays in the finalisation of cases and
expediting actions towards trial and adjudication
’.
Obviating delay and expediting matters necessarily enjoins
injecting a measure of urgency into them. The direction
given
by me on 24 June 2020 was of the nature contemplated in rule
37A(12)(e).
[6]
[23]
The relief primarily sought by the
defendant in her application for postponement, viz. ‘[t]
hat
the hearing of the application in terms of Uniform Rule 33(4) be
postponed to the first available date allocated by the registrar
of
this honourable Court, after 7 August 2020
’
[7]
is directed at taking the matter of the determination of the hearing
of an interlocutory issue in a matter under case management
out of
the hands of the case manager judge and putting it in the hands of
the registrar. It is a course that, if followed,
would in all
likelihood result in the interlocutory application being brought for
hearing before a different judge on the semi-urgent
roll. That
would be inimical to all of the objectives of efficiency and
expedition to the achievement of which the system
of judicial case
management aspires. More especially so in a case like the
present where the papers are relatively voluminous,
and the
injudicious use of judicial resources that would be involved by
requiring another judge to familiarise him or herself with
them for
an interlocutory matter would therefore be stark. More
pertinently, any date determined by the registrar in the
ordinary
course would be fixed without regard to counsel’s diaries, and
therefore, if the availability of counsel were to
be accepted as the
determining criterion, liable to risking yet another application for
postponement on the same ground as that
urged before me at this
stage.
[24]
For the reasons I shall give presently in
respect of the determination of the rule 33(4) application, I was
unpersuaded by the contention
that the complexity of the questions
involved in the argument of that application would make it
unreasonable to expect the defendant
to engage alternative counsel if
counsel previously used by her in the matter was unavailable.
As stressed in argument by
the plaintiff’s counsel, the extent
to which the particular senior counsel who the defendant says she
would want to argue
the rule 33(4) application was in point of fact
previously involved in the matter is in any event less than clear.
For instance,
it is usual in an action in which counsel are engaged
for them to sign the pleadings. Yet, none of the various
iterations
of the defendant’s plea since the action was
instituted all of six years ago was signed by counsel. Nor were
the requests
for trial particulars. They were signed only by
the defendant’s attorney, who has right of appearance in the
High Court.
[25]
That holds true even in respect of the
latest edition of the plea that was amended because of a realisation
that the question that
the defendant wants separated for
determination before the other issues in the case could be sustained
only if the second deed
of suretyship relied upon by the plaintiff
for its claim were to be regarded as rectified. As pointed out
by the plaintiff’s
counsel, the relevant amendment was ineptly
effected. It fell patently short of compliance with the trite
requirement that
a pleader relying on rectification should expressly
allege,
ipsissimis verbis
,
how the rectified document should read; cf.
Levin
v Zoutendijk
1979 (3) SA 1145
(W) at
1147H-1148B and
Anglo-African Shipping
Co (Rhod) (Pvt) Ltd v Baddeley and Another
1977 (3) SA 236
(R) at 241. It is not necessary to make a
finding of fact on the point, but I should be surprised if any
experienced counsel,
and most certainly not the eminent silk named
for the first time by the defendant in her replying affidavit as the
counsel she
would prefer to argue the separation application, had
been the draftsperson of such a manifestly deficient pleading.
Be that
as it may, the only documented previous involvement of the
senior counsel that the defendant says she considered it vitally
important
to engage for the argument of the rule 33(4) application
was at a pretrial meeting held in that advocate’s chambers on
26
November 2018, which was minuted in the abovementioned minute of 4
December 2018 that was placed before me at the case management
conference on 6 December 2018. He was not engaged when an
exception against an earlier version of the defendant’s
plea
was argued before Bozalek J.
[26]
Whether or not the defendant’s
contention that she would be unfairly prejudiced by being unable to
use the senior counsel
of her choice to argue the separation
application is cogent or not is something that the court that is able
to assess independently.
The court is not bound by the
defendant’s
ipse dixit
in this regard. The question might turn on the evident
complexity or lack of complexity of the issues involved. As
will appear, I was not persuaded in the current matter that the
separation application was something that any counsel new to the
case
would not be able to master with little difficulty. In my
judgment, for reasons that I shall give presently, it would
have
become apparent to any competent counsel upon a reading of the
pleadings that the formulation of the separation sought in
terms of
the application was patently defective, and that even if improved to
incorporate the newly pleaded defence of rectification,
the question
that the defendant sought to have determined before and in isolation
from the other issues in the case did not lend
itself to convenient
separation.
[27]
In the circumstances the defendant’s
averment that the trust would be financially prejudiced by having to
employ alternative
counsel did not carry persuasive weight.
There is no reason not to believe that the defendant still intends to
use the counsel
concerned for the purposes of the trial and therefore
the reportedly substantial, but unsubstantiated, investment in his
professional
services allegedly made thus far will not be wasted
whatever the fate of the rule 33(4) application.
[28]
In the result I was not persuaded that the
unavailability of the defendant’s counsel of choice afforded
good reason in the
peculiar circumstances of the case to grant the
defendant a postponement in the face of the plaintiff’s
justifiable anxiousness
to move matters along.
Further discovery
[29]
It will be recalled that the pretrial
minute of 4 December 2018 advised that but for the possibility of an
application for the separation
of issues in terms of rule 33(4), the
parties were agreed that the action was trial-ready. The
defendant would appear to
have bethought herself in this regard,
however, because she has caused a notice in terms of rule 35(3) for
further and better discovery
to be served on the plaintiff.
[30]
The notice in question is dated 13 July
2020, the same date as the notice of application in the postponement
application.
The request covers 12 categories of
documentation, most of them described in generic rather than specific
terms. party’s
possession. More pertinently, the
timing of the request, some 19 months after the defendant accepted
that the action was
trial-ready, is suspect. Much of the
request is not recognisably related to the question that the
defendant seeks to have
heard and determined separately. For
example, in item 11 of the request copies of ‘
any
and all documentation showing the securitisation ... of ... any
amounts owing by PGE to the plaintiff, at any time from its
inception
to the date of summons
’ is
sought.
[31]
Be that as it may, the recent request for
broad ranging further discovery indicates on its face that the
defendant’s case
is far from trial-ready. It also
indicates that the defendant is busy with the preparation of her case
on a broader front
than her pending application for a separation
might have led one to expect. The furnishing of further
discovery might well
lead to a further request for particulars for
the purposes of preparing for trial. An application for a
separation of issues
before a matter is trial-ready will more often
than not be premature.
[32]
It has been stressed repeatedly that a
ruling in terms of rule 33(4) should be made only after very careful
consideration by the
judge and the legal representatives concerned of
the practical import for the conduct of the trial and the
determination of the
action; see e.g.
Denel
(Edms) Bpk v Vorster
[2004] ZASCA 4
(5
March
2004), 2004 (4) SA 481
(SCA),
[2005] 4 BLLR 313
, at para. 3;
Absa Bank Ltd v Bernert
[2010] ZASCA 36
(29 March
2010), 2011 (3) SA 74
(SCA), at para. 21;
Adlem and another v Arlow
[2012] ZASCA 164
;
[2013] 1 All SA 1
(SCA),
2013 (3) SA 1
, at para. 5;
Road Accident Fund v Mohohlo
[2017]
ZASCA 155
(24 November
2017), 2018 (2) SA 65
(SCA), at paras. 2-3;
First National Bank v Clear Creek
Trading 12 (Pty) Ltd and Another
[2015]
ZASCA 6
(9 March
2015); 2018 (5) SA 300
(SCA) at paras. 8-14;
Government of the Western Cape:
Department of Social Development v C B and Others
[2018] ZASCA 166
(30 November
2018); 2019 (3) SA 235
(SCA), at paras.
19-25; and most recently
Petropulos and
Another v Dias
[2020] ZASCA 53
(21 May
2020) at para 67-69.
[33]
In
Denel
supra, at para 3, the appeal court observed that –
Rule
33(4) of the Uniform Rules ─ which entitles a Court to try
issues separately in appropriate circumstances ─
is aimed at
facilitating the convenient and expeditious disposal of litigation.
It should not be assumed that that result
is always achieved by
separating the issues. In many cases, once properly considered, the
issues will be found to be inextricably
linked, even though, at first
sight, they might appear to be discrete. And even where the issues
are discrete, the expeditious
disposal of the litigation is often
best served by ventilating all the issues at one hearing,
particularly where there is
more than one issue that might be
readily dispositive of the matter. It is only after careful thought
has been given to the anticipated
course of the litigation as a whole
that it will be possible properly to determine whether it is
convenient to try an issue separately.
In
Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile
Telephone Networks and Another
[2009] ZASCA 130
;
2010 (3) SA 382
(SCA), in para 89-90, the court made the following equally pertinent
remarks:
Piecemeal litigation is not to be
encouraged. Sometimes it is desirable to have a single issue decided
separately, either by way
of a stated case or otherwise. If a
decision on a discrete issue disposes of a major part of a case, or
will in some way lead to
expedition it might well be desirable to
have that issue decided first.
This court has warned that in many
cases, once properly considered, issues initially thought to be
discrete are found to be inextricably
linked. And even where the
issues are discrete, the expeditious disposal of the litigation is
often best served by ventilating
all the issues at one hearing. A
trial court must be satisfied that it is convenient and proper to try
an issue separately.
In my view, it is difficult in many cases for both the parties to be
properly satisfied in the manner repeatedly enjoined in the
authorities that it would be convenient in the relevant sense to try
any of the issues separately from the others before the discovery
and
trial particulars aspects of trial preparation have been completed.
[34]
Mr
Fransch
,
who appeared for the defendant in the application for a postponement,
but did not hold instructions to argue the application in
terms of
rule 33(4), realistically acknowledged that the application was on
any approach probably premature, and tendered from
the bar that the
separation application should therefore stand over for argument at a
later stage after the plaintiff had responded
to the defendant’s
rule 35(3) notice. He indicated that in that event the
defendant would be willing to pay the plaintiff’s
wasted costs
incurred in respect of the hearing on the 27th of July. I might
have looked favourably on the proposal if I
had been able to hold a
rosier view about the possible feasibility of the separation of
issues sought by the defendant. However,
for the reasons to be
given shortly, it seems clear to me that such a separation would be
convenient because the matter of rectification
will be inextricably
bound up with questions of fact that are germane to other aspects of
the case. Putting off the hearing
of the separation application
would therefore serve no point.
[35]
For all these reasons I have concluded that
it would not be fair or in the interests of justice to grant the
postponement sought
by the defendant.
The application in terms of rule 33(4)
[36]
The defendant elected not to instruct
counsel to argue her application in terms of rule 33(4) in the event
of her application for
a postponement not being granted.
Mr
Howie
,
who appeared for the plaintiff argued the case in opposition to the
separation application together with making his submissions
in
opposition to the application for postponement. This was
understandable because the apparent merits or prospects of success
of
the separation application were relevant considerations in the
adjudication of the application for postponement. As already
noted, there would be little point in postponing an application that
had every appearance of not going anywhere. That would
be to
grant an indulgence for no real purpose and likely to result in
nothing but unnecessary delay.
[37]
In her notice of application, the Defendant
sought a ruling in the following terms:
1.
That this honourable
Court direct that the following question be disposed of separately
and prior to any other issue in dispute:
Whether the deed of amendment, annexed to the
particulars of claim as annexure “
F3
”, limited
Applicant’s / Defendant’s (“Applicant”) total
liability to Respondent / Plaintiff (“Respondent”)
to
R1 000 000 (one million Rands) when read with the two
suretyships annexed to Plaintiff’s / Respondent’s
(“Respondent”) particulars of claim as annexures “
F1
”
and
“
F2
” (the separate question).
2.
That the action under
the case number above be stayed until the separate question has been
determined.
3.
Costs of suit.
4.
Further and / or
alternative relief.
[38]
The formulation of the relief sought
betrays the fact that proper attention was clearly not given to the
need that special care
be taken to clearly circumscribe precisely
what it is that is to be heard separately. See in this regard
Denel
supra, loc. cit., where Nugent JA said ‘
...
where the trial court is satisfied that it is proper to make such an
order –
and in all cases it
must be so satisfied before it does so
– it is the duty of that court to ensure that the issues to be
tried are clearly circumscribed in its order so as to avoid
confusion. The ambit of terms like the ‘merits’ and the
‘quantum’ is often thought by all the parties to
be
self-evident at the outset of a trial but in my experience it is only
in the simplest of cases that the initial consensus survives.
Both
when making rulings in terms of Rule 33(4) and when issuing its
orders a trial court should ensure that the issues are circumscribed
with clarity and precision
’.
(My underlining.)
[39]
Had the required attention been given to
the formulation of the relief, it would have been evident that the
pleaded rectification
would need to be identified as a separated
issue. The manner in which the relief sought in the separation
application was
formulated would suggest that the issue to be
separated was merely one of interpreting annexure
F3
to the particulars of claim in the context of the two deeds of
suretyship, annexures
F1
and
F2
,
respectively. Even the most superficial consideration of the
pleadings makes it plain, however, that that cannot be the
case.
For the reason identified earlier, the defendant’s allegation
concerning the limitation of the Trust’s
total liability to
R1 million is unsustainable without a rectification of at least
the second deed of suretyship.
[8]
In view of the adverse conclusion I have reached on the separation
application I have not found it necessary to determine
the point, but
it also seems to me, having regard to the non-variation clause in the
first deed (clause 16) and the fact that the
Trust’s
co-sureties under the first deed are not in all respects the same as
those under the second deed, that the first
deed might also require
rectification for the defendant’s pleaded defence in this
regard to be able to prevail.
[40]
In my judgment, quite apart from the fact
that, as mentioned, the precise nature of the rectification has not
been pleaded, there
are very obvious difficulties inherent in
treating the rectification issue discretely for the purposes of trial
from some of the
other issues in the case. The question whether
the plaintiff had agreed that the second suretyship would replace the
first
and that the Trust’s entire exposure as a surety would be
limited to R1 million will not be determinable in a vacuum.
The contested issue will fall to be decided with regard to the
probabilities to be established with regard to the existing and
anticipated circumstances at the time that the deed of amendment,
annexure
F3
to
the particulars of claim was executed. Those surrounding
circumstances will very foreseeably include the amount in which
the
principal debtor was indebted to the plaintiff at the time and how it
was anticipated that their relationship as lender and
debtor would
proceed. The defendant’s pleaded allegations, summarised
in paragraph [5]
above, concerning the
existence and computation of the principal debt to which the first
deed of suretyship relates and whether
the loan agreements annexed
marked
A
and
B
,
respectively, to the particulars of claim manifested the currently
amended versions of the loan agreements in existence at the
time the
deeds of suretyship were executed appear to me to be inextricably
bound up with the questions that a trial court seized
of the
rectification defence would need to treat in determining whether it
was probable that the plaintiff would have foregone
the security
provided by the defendant in terms of the first deed of suretyship.
[41]
For these reasons it does not appear that
granting the separation order sought by the defendant, even if its
formulation were to
be improved to address the deficiencies
identified above, would be ‘convenient’ within the
meaning of rule 33(4).
I am not satisfied that making the
separation order that has been sought would facilitate the
expeditious disposal of the litigation.
On the contrary, I
consider that making such a ruling would probably have the opposite
effect. The application will therefore
be refused.
Costs
[42]
In its papers in the postponement
application the plaintiff sought an order for costs
de
bonis propriis
against the defendant’s
attorney in that application. In oral argument, Mr
Howie
,
advisedly in my view, did not press that point. Both deeds of
suretyship in issue in the litigation provide (in clause 1.3.2
thereof) that the surety undertakes liability for ‘
all
costs, including legal costs as between attorney and own client,
which are incurred by
[the plaintiff]
in exercising
[its]
rights against the ... the Surety
for the recovery of any or all of the amounts ... (including through
the institution of legal
proceedings), ...
’.
Mr
Howie
therefore moved that both applications should be dismissed with costs
on the scale as between attorney and own client.
[43]
Mr
Fransch
,
if I understood him correctly, sought to argue that it would be
inappropriate to hold the defendant to costs on that scale because
it
might ultimately be determined at the trial that the Trust’s
indebtedness had been extinguished and that the action against
the
defendant had therefore been without cause. There is no merit
in the argument. The effect of the clause in both
deeds of
suretyship is that the defendant has undertaken liability to pay any
costs that may be awarded against her in litigation
for the
enforcement of the plaintiff’s rights under the suretyships on
the stipulated scale. The fact that she may
ultimately be
successful in the trial affords no basis to immunise her against
liability on the basis contractually undertaken
for the costs of her
unsuccessful interlocutory applications.
Order
[44]
In the result the following orders will
issue:
1.
The
defendant’s application for the postponement of the hearing of
her application in terms of Uniform Rule 33(4) is refused.
2.
The
defendant’s application in terms of rule 33(4) brought under
notice of motion dated 8 February 2019 is refused.
3.
The
defendant is ordered to pay the plaintiff’s costs of suit in
respect of both of the aforementioned applications on the
scale as
between attorney and own client.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiff’s
counsel: R. Howie
Plaintiff’s attorneys: Werksmans Attorneys
Cape
Town
Defendant’s counsel: V. Fransch
(Postponement
application only)
Defendant’s attorneys: Van Rensburg & Co
Bergvliet
BBM
Attorneys
Cape
Town
[1]
The supporting affidavit was deposed to by the
defendant on 11 February 2019 and the notice of opposition was
delivered on
25
February 2019.
[2]
Cf. e.g.
D’Amos
v Heylon Court (Pty) Ltd
1950 (2) SA
40
(C).
[3]
The application was delivered by email, which was
unexceptionable in the circumstances. The hard copy was filed
of record
on 15 July 2020.
[4]
Whether a litigant is entitled to insist on a
hearing in open court rather than remotely on an audio-visual
platform to which
anyone applying to attend as a spectator might be
admitted is a moot point. I am aware of judgments in other
jurisdictions
in which applications for postponements on the grounds
that an in court hearing was not possible because of lockdown
restrictions
have encountered judicial resistance; see e.g. the
judgment of Perram J in the Federal Court of Australia in
Capic
v Ford Motor Company of Australia Limited (Adjournment)
[2020] FCA 486
(15 April 2020).
[5]
Whatever the reason for the attorney’s
unavailability might have been, it had apparently been resolved
before 27 July because,
as matters transpired, he did attend the
hearing.
[6]
All case management matters in the Western Cape
Division have been attended to by email during the Covid-19 lockdown
period.
It is only exceptionally in the currently prevailing
conditions that a judge convenes an in-person case management
conference.
[7]
Paragraph 2.1 of the notice of application for a
postponement.
[8]
See paragraphs [5]
and
[6]
above.