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[2014] ZAGPJHC 412
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Life And Analytical Sciences (Pty) Ltd and Another v Perkin Elmer Italia Spa; InRe: Perkin Elmer Italia Spa v Life And Analytical Sciences (Pty) Ltd and Another (13/26920) [2014] ZAGPJHC 412 (24 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 13/26920
DATE:
24 NOVEMBER 2014
In
the matter between:
LIFE
AND ANALYTICAL SCIENCES (PTY)
LTD
....................................................
First
Applicant
SEPARATION
SCIENTIFIC (SA) (PTY)
LTD
.........................................................
Second
Applicant
And
PERKIN
ELMER ITALIA
SpA
...........................................................................................
Respondent
In
re
:
PERKIN
ELMER ITALIA
SpA
...............................................................................................
Applicant
And
LIFE
AND ANALYTICAL SCIENCES (PTY)
LTD
.................................................
First
Respondent
SEPARATION
SCIENTIFIC (SA) (PTY)
LTD
.....................................................
Second
Respondent
Summary:
Interlocutory
application for leave to file a fourth set of affidavits and
postponement of the main application – leave to
file a fourth
set of affidavits granted and main application postponed sine die –
applicants to pay the wasted costs occasioned
by the postponement.
JUDGMENT
MAENETJE AJ:
Introduction
1.
This is an interlocutory application in
which the applicants, being the respondents in the main application,
seek the following
orders:
“
1.
The First and Second Applicants are granted leave to file a fourth
set of affidavits within 10 (ten) days of this order;
2.
The main application is postponed
sine
die,
costs thereof are reserved;
3.
Costs of this application to be paid by the Respondent (Applicant in
the main application), on the scale as between attorney
and client;
4.
Further and/or alternative relief.”
2.
I heard the interlocutory application on 21
November 2014, and gave the following order:
“
1.
The First and Second Applicants are granted leave to file a fourth
set of affidavits within 5 (five) days of this order;
2.
The main application is postponed
sine
die
, and costs thereof are reserved;
3.
Costs of this application to be paid by the First and Second
Applicants (the Respondents in the main application), on a party
and
party scale.”
3.
I did not give reasons for granting the
above order, and indicated that my reasons would follow. These are my
reasons.
Brief
factual background
4.
The respondent, which is the applicant in
the main application, brought an application in which it seeks mainly
an order against
the first applicant, which is the first respondent
in the main application, for:
payment
of an amount of US$424 822,12;
interest
on the amout of US$424 822,12 at the rate of 15,5% per annum
calculated from 25 February 2013 to date of payment.
5.
It is clear from the affidavits filed in
the interlocutory application that the amount of US$424 822,12 has
been reduced by payments
that the first applicant has made to the
respondent over time, since the institution of the main application.
There appears
to be some dispute as to the exact amount outstanding,
and in respect of which the respondent will still pursue judgment
against
the first applicant in the main application. This
dispute seems to centre,
inter alia
,
around certain credit that should be passed to the first respondent.
The first applicant contends that the correct credit
that should be
passed in its favour is 22 000 Euros but that the respondent
misstates the credit to be passed as US$18 000,00.
6.
The applicants state in their founding
affidavit that the respondent has raised new matter in its replying
affidavit in the main
application, to which they wish to respond.
The respondent filed its replying affidavit in the main application
on 6 August
2014. The applicants’ attorneys sent a letter
to the respondent’s attorneys dated 15 September 2014 in which
they stated,
inter alia
,
that it was patently clear that the replying affidavit raised new
matter, which came into existence subsequent to the applicants
filing
their answering affidavit in the main application. The
respondent’s attorneys replied to the letter from the
applicants’ attorneys by letter dated 22 September 2014.
The respondent’s attorneys stated,
inter
alia
, the following in their reply:
“
3.
Our client’s Replying Affidavit was delivered on 5 August
2014. Accordingly, your client has had over a month to
deliver
any further affidavits it believes is necessary but has inexplicably
failed to do so. It is further noted that no
explanation as to
your client’s delay is proffered in your communication under
reply either.
4.
Our client’s consent to the filing of a further affidavit by
your client is not a necessary precursor to your client filing
a
further affidavit if it deems it necessary to do so. The
parties are not entitled simply by their own arrangements to file
as
many affidavits as they wish and the filing of further affidavits is
a matter for discretion of the court.”
7.
The applicants did not bring an application
for leave to file a further affidavit after receipt of the letter of
22 September 2013
from the respondent’s attorneys. They
delayed. Instead, the applicants’ attorney sent a further
letter
to the respondent’s attorneys dated 11 November 2014.
This letter was sent after the respondent’s counsel had
delivered his practice note and heads of argument in the main
application. This is recorded in paragraph 1 of the letter.
The letter states again that the respondent’s replying
affidavit in the main application raises new matter. It is then
contended in the letter that the applicants were entitled to respond
to the new matter or to have it struck out. An offer
of
settlement is made in the letter, and it is stated that if settlement
fails the attorneys hold instructions to bring an application
for
leave to file further affidavits,
inter
alia
, to deal with issues relating to
the arbitration clause in the agreement that forms the subject matter
of the main application.
8.
When the matter was called on 17 November
2014, counsel requested that it be stood down until Friday, 21
November 2014, when they
likely would be arguing postponement.
In the meantime, and on Thursday, 20 November 2014, I was furnished
an indexed and
paginated bundle containing the interlocutory
application. It is clear from the notice of motion in the
interlocutory application
that the interlocutory application was
issued on 17 November 2014. During oral argument, counsel for
the applicants submitted
that the applicants had, on 17 November
2014, tendered the wasted costs of the postponement in order to get
the respondent to agree
to a postponement of the main application.
This was not accepted. There was no objection from the
respondent’s
counsel to this submission by the applicants’
counsel, or an endeavour to correct or contradict it.
9.
In its answering affidavit in the
interlocutory application, the respondent does not really dispute
that its replying affidavit
in the main application raises new
matter, which the applicants would be entitled to respond to.
Nor was this disputed in
oral argument. Instead, the respondent
states the following in its answering affidavit:
“
19.
I do not, in this affidavit, deal with the respondents’
‘version’ as far as the alleged new matter is concerned.
This can and will be done, as and when the respondents deliver their
further affidavit and should the main application be postponed
for
that purpose.
20.
I do, however, state that:
20.
the respondents have no valid defence to the merits in the main
application. Argument will be addressed at the hearing
of this
application, on this issue, with reference to the affidavits in the
main application;
20.2
on any basis (at best for the respondents and on an acceptance of the
‘version’ stated in the founding affidavit
in the
application for postponement), the respondents remain indebted to the
applicant:
20.2.1.
in the amount of US$135, 101.32; and
20.2.2.
interest on that amount.
20.3
the fact that the respondents admit being indebted in this amount,
but, instead of making payment of the amount, ‘tender’
the payment is further indicative of
mala
fides
on the part of the respondents.
The same consideration applies to the fact that the respondents
choose not to explain why,
when this amount is payable, it has not
been paid;
20.4
the applicant is entitled to the costs:
20.4.1.
of the main application (on the basis of the payments made after the
application had been launched and the admitted indebtedness
of
US$135, 101.32);
20.4.2.
of the application for postponement (on the basis of the respondents,
by making application for postponement, seeking an
indulgence)
20.5
the fact that the respondents have delayed (deliberately) in
launching the application for postponement and the fact that the
respondents give no clue as to the reasons for this delay:
20.5.1
is indicative of
mala fides
;
and
20.5.2
justifies an order directing the respondents to pay the costs of the
application for postponement on the scale as between
attorney and
client.”
10.
The respondent then submits in its
answering affidavit that the interlocutory application falls to be
dismissed. In the alternative,
the respondent submits that if
the main application is to be postponed, it must be on the basis
that:
the
respondents are directed to pay the costs of the application on the
scale as between attorney and client; and
judgment
is granted in favour of the respondent in the amount of US$135,
101.32, together with interest
a
temporae morae
, calculated from 25
February 2013, to date of payment.
Leave
to file a further affidavit
11.
It is fair to say that it is common cause
between the parties that the respondent’s replying affidavit in
the main application
raises new matter, which only arose after the
applicants had filed their answering affidavit in the main
application.
12.
A
fundamental consideration in deciding whether or not the applicants
should be afforded an opportunity to file a further affidavit
to deal
with the new matter in the respondent’s replying affidavit in
the main application, is that a matter should be adjudicated
upon all
the facts relevant to the issues in dispute. It is essentially
a question of fairness to both sides as to whether
or not further
sets of affidavits should be permitted for that purpose.
[1]
13.
I can find no reason of principle why the
applicants should not be afforded an opportunity to file a further
affidavit to deal with
the new matter in the respondent’s
replying affidavit in the main application. No such reason was
submitted to the
Court in oral argument.
14.
However, given the history of the matter, I
am of the view that a period of 10 days to file such an affidavit is
not justified.
It is clear from the applicants’ founding
affidavit in support of the application for leave to file a further
affidavit and
for postponement that they have a very good idea of
what they wish to say in such further affidavit. Given that
they, through
their attorneys, indicated as far back as September
2013 the wish to address the new matter in a further affidavit, a
period of
5 days to file such an affidavit would be appropriate.
It would also go some way in reducing the prejudice that the
respondent
stands to suffer as a result of a further delay in the
matter.
Postponement
and costs
15.
Once the applicants are afforded a period
of 5 days in which to file a further affidavit in the main
application, it follows that
the main application must be postponed.
It cannot be finally determined until the applicants’ further
affidavit is
filed, or the time period within which they have to file
it runs out without them filing the affidavit and not seeking any
further
indulgence in that regard.
16.
The
applicants must bear the wasted costs occasioned by the
postponement. They delayed in bringing the application for
leave
to file a further affidavit.
[2]
They could have brought the application at an earlier date, which
would probably have avoided the necessity for a postponement
of the
matter on 21 November 2014.
17.
I do not, however, find that the applicants
should pay such costs at a punitive scale. As I stated above,
the applicants’
counsel submitted in oral argument that the
applicants tendered to pay the wasted costs when the matter was first
called, which
tender was rejected. The tender was rejected in
circumstances where it was common cause that the respondent’s
replying
affidavit in the main application raises new matter, in
respect of which it would be fair to afford the applicants an
opportunity
to respond. In addition, it seems from
correspondence attached to the affidavits that the parties were
engaged in settlement
discussions, during which they agreed to pend
the main application. I cannot, in such circumstances, easily
find
mala fides
on
the part of the applicants to justify a punitive costs order, as the
respondent submits.
Judgment
for the respondent
18.
It would be inappropriate to enter judgment
in favour of the respondent in the main application in any amount.
First, the
applicants have been afforded an opportunity to file a
further affidavit in the main application in order to place before
the Court
all the relevant facts upon which the main application must
be decided. I would be prejudging what they are likely to say
in the further affidavit if I entered judgment against them. In
this regard, the applicants’ counsel raised the possibility
that the applicants might want the matter referred to arbitration,
which is a matter that is identified as one of those that might
be
dealt with in the further affidavit.
19.
Secondly, the main application is postponed
sine die
,
which means that it will be determined on another future date.
20.
Thirdly, the amount of US$135 101, 32 that
the respondent says I must order the applicants to pay in the
meantime was the subject
matter of a settlement proposal by the
applicants to the respondent. The applicants state in their
founding affidavit that
the respondent failed to accept the
settlement proposal in time and it has since been withdrawn. It
is therefore not before
me for consideration, including whether or
not the applicants should be ordered to pay it to the respondent.
It is also difficult
to make a finding that, by virtue merely of
making a settlement offer, the applicants unequivocally admit
liability to the respondent
in that amount. The issue of liability
and the extent of it will be determined at the hearing of the main
application.
Order
21.
For the reasons above, I made the following
order on 21 November 2014:
The
first and second applicants are granted leave to file a fourth set
of affidavits within 5 (five) days of the order;
The
main application is postponed
sine
die
, and costs thereof are reserved;
Costs
of this application to be paid by the first and second applicants.
MAENETJE
AJ
Appearances:
Counsel
for applicants: C Garvey
Attorneys
for applicants: Otto Krause Incorporated
Counsel
for respondent: J Daniels
Attorneys
for respondents: Webber Wentzel
Date
of hearing: 21 November 2014
Date
of judgment: 28 November 2014
[1]
Erasmus
Superior
Court Practice
at
B1-47.
[2]
They ought to have known that the Court’s leave was required
for the filing of such a further affidavit.
Sealed
Africa (Pty) Ltd v Kelly and another
2006
(3) SA 65
(W).