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[2013] ZAGPJHC 143
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Mostert NO v Sable Group Holdings (Pty) Ltd In re: Mostert NO v Sable Group Holdings (Pty) Ltd and Others (2011/43945) [2013] ZAGPJHC 143 (13 June 2013)
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SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 2011/43945
DATE:13/06/2013
In the matter between:
MOSTERT ANTHONY LOIS NO
…........................................................
Applicant
and
SABLE GROUP HOLDINGS (PTY)
LTD
.............................................
First
Respondent
In re:
MOSTERT ANTHONY LOIS NO
…....................................................
Applicant
and
SABLE GROUP HOLDINGS (PTY)
LTD
..........................................
First
Respondent
SABLE GROUP HOLDINGS
….......................................................
Second
Respondent
GAVIN BARRY JOHN
BOWES
.........................................................
Third
Respondent
PAUL HARWOOD
NASH
...................................................................
Fourth
Respondent
IAN ROBERT
KEMP
...........................................................................
Fifth
Respondent
JUDGMENT
RATSHIBVUMO AJ:
1. Introduction. This is a Rule 30 (1)
application brought by the Respondents in the main application. In
the main application,
the Applicant initially instituted an action
against the first Respondent only. He now seeks to join the second to
the fifth Respondents
in the action. The joinder application is
scheduled to be heard on a future date. It will be heard together
with application to
amend the notice of motion and the application to
supplement the Founding Affidavit. It was due to the notice of
joinder application
that the Respondents now bring the Rule 30 (1)
application which aims to the set aside of the joinder application.
2. According to the papers before the
court, Rule 30 application is brought by the Respondents (all 5 of
them). Reading through
the papers I fail to see why the First
Respondent who had been a party to the proceedings now joins the
other four who are opposed
to being joined into the proceedings. As
for the First Respondent, he has been a Respondent from the
beginning. If his application
is meant to support the other
Respondents with the intentions that he should remain as the only
Respondent it would be something
else. But the filed papers are
silent on that.
3. I refer to these parties as
Respondents because they have been referred to as such in the notice
of this application. But the
second to the fifth Respondents are
strictly speaking not yet Respondents until after they would have
been joined as such in the
future. Should this application succeed,
they will never be Respondents at all. For purposes of this
application, I will refer
to all the Respondents as the Applicants
and the Applicant as the Respondent.
4. Rule 30. Rule 30 (1) provides, “
a
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it
aside
.”
Four alleged irregularities form the basis of this
application. All these irregularities emanate from the notice of
application
to join the second to the fifth Respondents in the main
application.
5. The irregularities. First, the
application for joinder is said to be impermissible and incompetent
under the Uniform Rules of
Court in that the Respondent seeks to
institute proceedings against the Applicants on the grounds not
previously sought in the
Notice of Motion, making it look like a new
action altogether. Second, the application to supplement the Founding
Affidavit by
the Respondent could be an attempt to introduce new
evidence. Third, the Respondent seeks in prayer 3 and 4 to amend the
notice
of motion without invoking the relevant Rule (Rule 28), making
this prayer incompetent and impermissible. Fourth, the Respondent
seeks in the same application, a blanket order for condonation for
failure to comply with any Rule without showing which of the
Rules he
failed to comply with, or showing a good cause for such an
application as it is provided for in Rule 27.
6. It is worth noting that most of the
attacks levelled against the Respondent in this application are not
based on any particular
Rule or authority. The first alleged
irregularity for example, the Applicants make a bold statement to the
effect that joining
them into an application on grounds not contained
in the main application is incompetent and impermissible under the
Rules. There
is no mention of any such Rules that brandishes such
acts as impermissible or incompetent.
7. It is necessary to visit the main
application to verify the Applicants’ allegation that the
Respondent seeks to join them
on grounds not alleged in the main
application (I presume this refers to the second to the fifth
Respondents).
8. In the main application, the
Respondent claims R21 806 241.00 and after his notice of joinder
application, the claim is still
in the same figure. An affidavit by
the Respondent in support of the joinder of the second to the fifth
application alleges the
following,
“
after further investigation it
has become necessary to join the 2nd to 5th Respondents to the main
application, by virtue of the
contents of the answering affidavit in
the main application deposed to by Mr. Gavin Barry John Bowes filed
on behalf of the first
Respondent, now cited as the third Respondent
herein… [T]he third to fifth Respondents were directors of the
first and second
Respondents. Mr. Kemp (acting with the knowledge
and/or cooperation of the third and fourth Respondents) signed for
the transfer
of the Fund shares to the first Respondent’s
broker in the name of an account held for the benefit of the first
Respondent…
The second Respondent, according to Bowes, was the
recipient of the proceeds of illegal removal and sale of the Fund
shares…”
9. Reading the allegations in the
preceding paragraph I am unable to reach the conclusion to the effect
that joining the Applicants
be as if a new application is instituted
against them. The cause of action is still based on same reasons as
it was in the Notice
of Motion unlike a situation where the main
application was to recover money stolen from a pension fund while the
action after
the joinder would now be based on other grounds
unrelated to theft of such funds.
10. Even if joining the Applicants
could result in a new application, it would not be incompetent and
impermissible as they argue.
I am in agreement with the reasoning by
Mullins J in Nedbank LTD v Hoare
1
when he says,
“
[T]he amendment of a cause of
action in motion proceedings has moreover received judicial approval.
In Berg v Gossyn (1)
1965 SA 702
(O), an application obtained on
affidavit a rule nisi relating to a right of way. On the return day
it appeared that he had misconceived
his cause of action, but that he
might be able a relief on a different cause of action. The Court
(Hofmeyer J) granted the Applicant
leave to amend his founding
affidavit by way of supplementary affidavits in which the new cause
of action would be set out.”
In Shepherd v Mitchell Cotts
Seafreight (SA) (PTY) LTD
2
the court held that the general rule that in motion proceedings a
party has to make out his case in the Founding Affidavit and
may not
introduce new matters in the Replying Affidavit is not absolute. This
general rule would not find application where it
is overridden by the
court’s discretion and in exceptional circumstances. In
Registrar of Insurance v Johannesburg Insurance Co
Ltd
3
,
Hiemstar J said “
since rules of
procedure are made to facilitate litigation, they are always subject
to the overriding
discretion of the Court
.”
11. An authority referred to by the
Applicants in arguing that the amendment to the application would be
irregular unless it refers
to Rule 27 does not support their
contention. The chief finding by the Constitutional Court in the case
of Affordable Medicines
Trust v Minister of Health
4
was that
amendments
in
motion proceedings
will always be granted
unless made in bad faith or
would
cause injustice to other
parties which
cannot be cured by costs order or parties cannot be put back for
purposes of
justice in same position as
they were when pleading
. This authority
seems to counter the submission by the Applicants. This view is
strengthened by the absence of Applicants’
affidavits which
could help the court in exercising its discretion in making a finding
regarding the absence or presence of prejudice.
12. I have noted that Applicants
searched deep and wide for mistakes and errors in the Respondent’s
papers and uncovered a
number of them. They now present these as
irregularities. To have perfectly drafted papers in application
proceedings is admittedly
not easy. While the standards of drafting
the papers can be improved, it was too ambitious in my view to
suggest that every little
error in drafting the application papers
should be construed as irregularities.
5
Slomwitz AJ said in Khunou and Others v M Fihrer and Son (Pty) Ltd
and Others,
6
“
[O]f course the Rules of Court,
like any set of rules, cannot in their very nature provide for every
procedural situation that arises.
They are not exhaustive and
moreover are sometimes not appropriate to specific cases. Accordingly
the Superior Court retains an
inherent power exercisable within
certain limits to regulate their own procedure.”
13. In Hart and Another v Nelson
7
Horn AJ (as he then was) said,
“[W]here strict adherence to a
Rule of court would give rise to a substantial injustice the court
would grant relief which
will prevent such an injustice. The court
has an inherent power to grant relief where an insistence upon the
exact compliance with
a Rule of court would result in substantial
injustice to one of the parties.
(
Moluele
and Others v Deschatelets NO
1950 (2) SA
670
(T) at 676; also
Matyeka v Kaaber
1960
(4) SA 900
(T).) It is inconceivable that a Court would give effect
to a Rule where the implication of such a Rule would clearly cause
undue
hardship to one party and present an unfair advantage to the
other. In
Ncoweni v Bezuidenhout
1927
CPD 130
Gardner JP remarked as follows at 130.
'The Rules of procedure of this Court
are devised for the purpose of administering justice and not of
hampering it, and where the
Rules are deficient I shall go so far as
I can in granting orders which would help to further the
administration of justice.'
14. It is therefore clear from the
above authorities that before Rule 30 application can be successful;
prejudice on the part of
the Applicant must first be proved. With no
affidavit in support of this application, the application was doomed
to fail since
there is no way the court would have been able to
exercise its discretion in evaluating the absence or presence of
prejudice before
granting the request.
15. For the reasons aforesaid, I make
the following order.
The application is dismissed with
costs.
_________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
Date Heard: 21 May 2013
Judgment Delivered: 13 June 2013
For the Applicants: Adv. D Wood
Instructed by: Mahons Attorneys
Johannesburg
For the Respondent: Adv. LJ Van
Tonder
Instructed by: AL Mostert &
Company Inc
Bryanston
1
1988 (4) SA 541
at 543 H
2
1984 (3) SA 202
(T)
at p 205
3
1962 (4)
SA 546
(W)
.
4
[2005] ZACC 3
;
2006 (3) SA 247
(CC)
5
See
Pangbourne
Properties v Pulse Moving
2013 (3) SA
140.
6
1982 (3) SA 353
(W) at 355H-356A
7
2000 (4) SA 368
(E) at 374G-375F