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[2014] ZAGPJHC 325
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Hasmukh v International Bank of Southern Africa and Others; InRe: International Bank of Southern Africa and Others v Hasmukh (2001/17748) [2014] ZAGPJHC 325 (28 October 2014)
REPUBLIC OF SOUTH AFRICA
IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 2001/17748
DATE:28 OCTOBER 2014
In the matter between:
SHAH JAYESH
HASMUKH
.................................................................................
Plaintiff
And
INTERNATIONAL BANK OF SOUTHERN
AFRICA
................................
First
Defendant
SIMON, NORMAN
N.O
........................................................................
Second
Defendant
MOTALA, ENVER
N.O
...........................................................................
Third
Defendant
GAINSFORD, GAVIN
N.O
....................................................................
Fourth
Defendant
MASOANGANYE, RICHARD
N.O
...........................................................
Fifth
Defendant
In the application between:
INTERNATIONAL BANK OF SOUTHERN
AFRICA
.................................
First
Applicant
MOTALA, ENVER
N.O
..........................................................................
Second
Applicant
GAINSFORD, GAVIN
N.O
........................................................................
Third
Applicant
MASOANGANYE, RICHARD
N.O
.........................................................
Fourth
Applicant
And
SHAH JAYESH
HASMUKH
...........................................................................
Respondent
JUDGMENT
VAN DER LINDE, AJ:
Introduction
1 This matter was called on the trial
roll of 15 October 2014 and allocated to me. It stood down to 16
October 2014 when argument
commenced, and continued until 17 October
2014. The parties were agreed that the trial could not proceed. They
were not agreed,
at least not wholly, on why that was so.
2 But they were agreed that the
defendants would argue their application that the plaintiff’s
action should be dismissed for
want of prosecution on the allocated
trial date.
3 The plaintiff in turn applied to set
aside the defendants’ application as an irregular proceeding,
because it was brought
on the short form and not the long form of
notice of motion. I heard the submissions on both applications and
reserved judgment.
4 The dismissal application was not
strictly ripe for hearing when the argument commenced because the
answering affidavit had not
been filed. I ruled that an unsigned
copy, which had already been prepared, could be received without
prejudice to the plaintiff’s
rights and that a signed copy
could be handed up in the course of the hearing. The defendants
would be afforded an opportunity
to put up a replying affidavit if so
advised. After tea on the first day of argument the signed answering
affidavit was handed
up and the replying affidavit was received on
the morning of the second day.
5 What was also placed before me were
seven volumes, referred to as books, comprising the affidavits in a
previous dismissal application
brought by the defendants, as well as
the pleadings and notices in the pending action.
The procedural history
6 I commence by setting out the main
milestones in the procedural history of the matter, then the test
which I propose applying
to the two applications, and thereafter the
reasoning for the conclusions to which I have come.
7 The matter commenced more than 13
years ago when the plaintiff sued the defendants on 13 August 2001
for the return of 116 vehicles.
His claim was based on ownership.
He alleged that the defendants were in possession of the vehicles. At
that time the first defendant
was a bank known as the International
Bank of Southern Africa Ltd, and it conducted banking business. It
no longer does that,
and its name is now Boundary Financing Ltd.
8 Its role in the events is that it had
provided financing to a company known as Afinta Motor Corporation
(Pty) Ltd (“AMC”),
which was provisionally liquidated on
22 March 2001, and finally on 11 December 2001. The second, third
and fourth defendants
are its liquidators.
9 The vehicles came into AMC’s
possession, according to the plaintiff’s founding affidavit in
his application for the
liquidation of AMC dated 22 March 2001,
because the plaintiff and AMC had established a joint venture in June
1988. His contribution
to the JV was to source the vehicles and to
pay for them, and the JV would then import them into South Africa and
distribute them
here and to some extent in neighbouring countries.
Ownership would remain reserved for the plaintiff until he will have
been paid
for them. He never was.
10 The financier’s possession of
the vehicles came about because on 5 March 2001 it perfected its
general notarial bond over
the vehicles pursuant to a court order.
The financier subsequently handed the vehicles over to the
liquidators of AMC, who sold
them on 6 February 2002 on a public
auction for R2 439 570.
11 On 28 September 2001 the financier
pleaded, and AMC followed suit on 28 November 2001. Thereafter, for
nearly five years until
25 April 2006, nothing happened. On that
date the plaintiff gave notice of his intention to amend his
particulars of claim to
insert an alternative claim for damages of
R35 974 824.25, being the alleged fair market value of the motor
vehicles on 5 March
2001, arising from “the conduct of the
defendants in allowing or causing the plaintiff’s motor
vehicles to be sold.”
The manner of calculation of the value
was said to be contained in a schedule “A”, but no one
was able to produce
that schedule during the course of the hearing or
afterwards.
12 The financier objected to the
intended amendment and a substantive application was heard on the
11th and 12th of June 2007.
The amendment was ultimately granted.
13 On 30 October 2007 the plaintiff’s
attorneys set the matter down for trial on 29 August 2008. The
defendants requested
further particulars for trial and amended their
pleas. The plaintiff filed a response to the defendants’
request for trial
particulars on 9 July 2008 and on 24 July 2008 the
defendants served a list of pre-trial requests in terms of Rule 37(4)
on the
plaintiff.
14 On that day Van Huyssteen Inc.
withdrew as the plaintiff’s attorneys of record. A pre-trial
conference was held at which
the plaintiff personally attended. He
gave a number of undertakings. One which is relevant for present
purposes is recorded in
paragraph 8 of the pre-trial minute and
concerns the trial bundle. It was recorded that the plaintiff agreed
to the defendants’
offer to prepare a bundle of documents to be
used at the trial. The plaintiff agreed that he would provide a list
of documents
that he specifically required the defendants to include
in the trial bundle, within two months of the date of the pre-trial
conference.
The plaintiff would be entitled to supplement this list
until five days before the date of the trial.
15 Another undertaking which assumes
relevance in this matter is recorded in paragraph 7.22 of the
pre-trial minute. The plaintiff
undertook to respond within six
weeks of receipt of the pre-trial minutes to paragraphs 5 and 6 of
the defendants’ pre-trial
request. The relevant request is
contained in paragraph 5 of that pre-trial request and records that
the defendants were not satisfied
with the plaintiff’s
responses to, amongst other things, paragraph 7.44, and paragraphs
8.1 to 8.5, 8.8, 8.9, 8.16, 8.17
and 8.18, of the defendants’
request for trial particulars. Of particular significance later on
in the exchanges between
the parties, are the requests contained in
paragraphs 8.2 to 8.5 of the defendants’ request for trial
particulars.
16 The request in paragraph 7.44 of the
defendants’ request for further particulars for trial was
directed at establishing
the efforts that the plaintiff had made to
obtain the information referred to in paragraphs 10.1 to 10.4 of the
plaintiff’s
particulars of claim. In turn, that refers to the
dates on which the vehicles were sold, the circumstances in which
they were
sold, the terms or prices on or at which they were sold,
and the identity of the purchasers of the vehicles concerned.
17 On 31 March 2009 the plaintiff’s
current attorneys filed a notice of their appointment. On 15 May
2009 the plaintiff delivered
his reply in terms of Rule 35(3), which
he had undertaken in paragraph 7.24 of the minutes of the pre-trial
conference of 24 July
2008, to have responded to within six weeks
after receipt of the minutes.
18 As noted above, the first trial date
in this matter had been 29 August 2008. The matter did not proceed
on that day for reasons
set out in paragraphs 1.1 to 1.5 of the
agreed minutes of the pre-trial conference of 24 July 2008. They
were that no pre-trial
conference had been held more than six weeks
before the trial date as required by practice; the plaintiff had
responded to the
request for further particulars for trial late and
inadequately; the plaintiff’s discovery was in adequate; the
plaintiff’s
attorney had withdrawn without providing an address
for service of any future process; and the withdrawal of the
plaintiff’s
attorney made it difficult adequately to prepare
the pre-trial preliminaries. In the result the trial was postponed
and the costs
were reserved.
19 The second trial date was allocated,
and the plaintiff’s attorneys served a notice of set down on 10
March 2010, for a
trial date of 7 February 2011. On 19 January 2011
the plaintiff served a notice of removal of the trial from the roll
of 7 February
2011. No explanation was given as to why this had
happened.
20 The third trial date was then
allocated for 25 May 2012 and the plaintiff’s attorneys served
a notice of set down for that
date on 6 October 2011. On 22 March
2012 the defendants’ attorneys wrote to the plaintiff’s
attorneys requesting a
further pre-trial conference, suggesting 3
April 2012. The response to this letter was a letter by the
plaintiff’s attorneys
dated 26 March 2012, which said:
“We advise that we have removed
this matter from the trial roll as we are having difficulty getting
hold of our client.”
The notice of removal accompanied the
letter.
21 This conduct led to an application
by the defendants on 26 June 2012 for dismissal of the plaintiff’s
action for non-prosecution
of the claim. An answering affidavit on
behalf of the plaintiff was filed on about 22 August 2012 and the
attorney for the defendants
filed a replying affidavit.
22 The matter then came to be argued
before Mathopo, J during the week commencing 1 October 2012. After
hearing argument, and upon
coaxing by the Learned Judge, the parties
agreed to an order in terms of which the application for dismissal
was postponed sine
die, but the defendants were granted leave to
reinstate the dismissal application on the same papers duly
supplemented, if the
plaintiff were to fail to comply with the
provisions of the said order (“the order”).
23 Of relevance for the present matter
are three paragraphs from the order which the defendants contend were
not complied with.
They provide as follows:
“3. The plaintiff is required to
provide the following within three weeks from the date of this Order:
3.1 …
3.5 The plaintiff’s list of
documents to be included in the trial bundle in accordance with
paragraph 14.2 of the Questionnaire.
3.6 Supplementary responses to the
following requests contained in the defendant’s request for
further particulars for trial
dated 29 November 2007: 7.42, 7.43,
7.44, 8.1 to 8.1, 8.8, 8.9, 8.16, 8.17 and 8.18.”
24 The reference in paragraph 3.5 of
the order to “paragraph 14.2 of the Questionnaire”, was a
reference to paragraph
14.2 of the defendants’ list of
pre-trial requests under Rule 37(4), which reads as follows:
“14.2 The plaintiff will notify
the defendants in writing not less than five days before trial of the
identity of any documents
that the plaintiff specifically requires
the defendants to include in the trial bundle. Provided that those
documents have been
discovered, the defendants will include those
documents in the trial bundle.”
25 It will be recalled that at the
pre-trial conference held on 24 July 2008, the timing of that
obligation was changed, and the
plaintiff agreed to provide the list
of documents within two months of the date of the pre-trial
conference. The order also provided
that the matter would be placed
under case management before him.
26 Next, on 31 October 2012 the
plaintiff filed a supplementary response to the defendants’
request for further particulars
for trial dated 29 November 2007 as
well as a response to the defendants’ list of pre-trial
requests under Rule 37(4) dated
24 July 2008. Dissatisfied with
these responses, the defendants’ attorneys wrote to the
plaintiff’s attorneys on 13
November 2012. In the letter they
pointed out that the plaintiff had responded only to paragraph 8.1 of
the defendants’
request for trial particulars dated 29 November
2007; and although the order referred to “8.1 to 8.1”,
that was clearly
an error. The defendants’ attorneys went on
to afford the plaintiff a further three weeks to provide
supplementary responses
to paragraphs 8.2 to 8.5 of the defendants’
request for trial particulars.
27 On 13 November 2012 the defendants’
attorneys wrote to Judge Mathopo updating him on the developments and
reporting that
the plaintiff’s attorneys had advised that they
had applied for a new trial date. On 29 November 2012 the
defendants’
attorneys wrote to the plaintiff’s attorneys
requesting them to comply with the various requests arising from the
order.
On 6 December 2012 this was followed up by a letter in which
the defendants’ attorneys recorded that the plaintiff’s
attorneys had failed to comply with the order and advising that the
Judge would be approached.
28 Next, by the end of March 2013 the
plaintiff had not received any formal notification from the Registrar
of the South Gauteng
High Court with regard to the allocation of a
trial date. The attorneys for the plaintiff accordingly instructed
their messenger
to attend at court to enquire with regard to the
allocation of a trial date. On 4 April 2013 they received a
handwritten note
from their messenger advising that a trial date had
been allocated for 22 October 2013. On the same day, 4 April 2013,
the defendants’
attorneys wrote to the plaintiff’s
attorneys confirming receipt of a pre-trial notice and proposing
arrangements between
Counsel. They also requested that the
plaintiff’s attorneys urgently deal with the outstanding issues
and addressed the
following enquiry:
“We further enquire whether you
have to date received a trial date as to when the matter is to be
heard.”
29 There was no response to this letter
and on 16 April 2013 the defendants’ attorneys wrote to Judge
Mathopo requesting that
a pre-trial conference be held before him
during the week commencing 20 May 2013.
30 It would appear that such a
conference was not held, because on 28 August 2013 the plaintiff’s
attorneys wrote to the defendants’
attorneys advising that they
had applied for a trial date, and recording that as far as they were
concerned the plaintiff had adequately
responded to the defendants’
requirements. They did not in this letter advise that according to
the handwritten note of
their messenger, a trial date for 22 October
2013 had been allocated by the Registrar.
31 On 13 September 2013 there was a
telephonic discussion between the plaintiff’s attorney and the
defendants’ attorney.
During that conversation the plaintiff’s
attorney told the defendants’ attorney that the Registrar had
allocated 22
October 2013 for the hearing, back in April 2013
already, but that the plaintiff’s Counsel was not available for
the trial
during the week of 22 October 2013. The defendants’
attorney advised in a letter of 13 September 2013 addressed to the
plaintiff’s
attorneys, as follows:
“3. It is abundantly clear that
the matter cannot proceed on the scheduled date and we accordingly
await your confirmation
that the matter has not been set down by the
Registrar notwithstanding no notice having been filed.”
32 In a letter of 8 October 2013 the
plaintiff’s attorneys wrote that after the letter of 13
September 2013 by the defendant’s
attorneys, they had on
various occasions attended at the offices of the Registrar in order
to enquire whether the matter had been
enrolled for 22 October 2013.
The response was apparently that the court file had been misplaced
and the trial date could not
formally be allocated. When one of the
plaintiff’s candidate attorneys located the court file on 26
September 2013, and
handed it to the clerk dealing with civil trials,
the Registrar on 27 September 2013 formally enrolled the matter for
22 October
2013.
33 In the letter of 8 October 2013, the
plaintiff’s attorneys advised:
“We are in agreement with your
advices that the matter cannot proceed on the scheduled date and as a
result we will attend
to the delivery of a notice of removal from the
trial roll in due course.”
34 A new trial date was then applied
for. On 14 April 2014 the plaintiff’s attorneys wrote advising
that the Registrar had
allocated 15 October 2014 as the trial date.
This letter also indicated that the plaintiff’s attorneys were
desirous of
scheduling a meeting with Judge Mathopo in order to
obtain clarification as to whether the plaintiff’s
supplementary response
to the defendants’ request for further
particulars for trial, as well as the plaintiff’s response to
the defendants’
list of pre-trial requests under Rule 37(4),
had been satisfactorily answered.
35 On 15 April 2014 the plaintiff
served a request for further particulars for trial. On 23 May 2014
the plaintiff’s attorneys
wrote to Judge Mathopo advising him
of the trial date and requesting that the Judge provide dates on
which he would be able to
conduct a pre-trial conference.
36 On 29 May 2014 the defendants’
attorneys responded to the plaintiff’s attorneys and also to
Judge Mathopo, and enquiring
as to his availability in view of the
fact that he was then acting in the Supreme Court of Appeal. On 10
July 2014 the attorneys
for the plaintiff wrote to the Judge
President raising the question of Judge Mathopo’s
unavailability and requesting the
appointment of a substituted case
manager.
37 The Acting Deputy Judge President,
Judge Masipa wrote on 17 July 2014, allocating the matter to Judge
Sutherland. On 25 September
2014 the plaintiff’s attorneys
wrote to Judge Sutherland advising that a trial date had been
allocated for 15 October 2014
and requesting that he facilitates a
pre-trial conference between the parties. On the next day, 26
September 2014, the defendants
filed the renewed notice of motion and
a supplementary affidavit in support of their renewed application for
dismissal.
38 On 3 October 2014 the plaintiff’s
attorneys gave notice in terms of Rule 30(2)(b), read with Rule 30A,
which was a notice
affording the defendants an opportunity to remove
causes of complaint. As stated, the complaint was that the
defendants’
dismissal application ought to have complied with
Rule 6(5)(a) of the Uniform Rules of Court, meaning the long form
notice of motion,
instead of the short form, which was compliant with
form 2(a) of the first schedule. Indeed, the defendants’
amended notice
of motion dated 26 September 2014 is in the short form
and apart from costs and alternative relief, asks for dismissal of
the application.
In the notice, the plaintiff is afforded until 6
October 2014 to file his answering affidavit. This meant that the
defendant
was affording the plaintiff five court days, and two
weekends, to prepare his answering affidavit.
39 On 9 October 2014 the defendants’
attorneys wrote to the Deputy Judge President, Judge Mojapelo,
reporting that a judicially
supervised pre-trial conference had been
held before Judge Sutherland on that day, Thursday, 9 October 2014.
The letter reported
that at the pre-trial conference before Judge
Sutherland the parties had agreed that the matter was not ready for
trial. Since
the defendant had already by then launched its
application to dismiss, the parties agreed that instead of the matter
proceeding
on trial on 15 October 2014, the defendant would then
argue its application to dismiss.
40 The matter was then allocated to me
on 15 October 2014. I was hearing another matter and the parties
agreed that if I finished
early on that day with the other matter, I
ought to be given the papers to read in advance of them arguing the
application to dismiss
the next day, 16 October 2014.
41 This followed. On 16 October 2014
plaintiff’s counsel advised me that they had an unsigned
answering affidavit in the
dismissal application, and that it was
expected that the affidavit would be signed in the course of the
morning. I received the
unsigned copy and the argument commenced.
By teatime the signed answering affidavit was available. A replying
affidavit by the
defendant was handed up at the commencement of the
argument on Friday, 17 October 2014.
42 I propose dealing first with the
plaintiff’s application to dismiss the defendants’
application as having been an
irregular step. In view of the
conclusion to which I have come on that issue, I then proceed to deal
with the merits of the defendants’
application. In that
context, it is necessary to examine whether the provisions of the
order had been complied with, and the judgment
will thereafter
examine that issue.
The irregular step application
43 Turning then to the plaintiff’s
application, the essence of the argument is that since the defendants
seek substantive
and final relief, they ought to have used the long
form notice of motion. The submission is that even although the
original application
to dismiss was also on a short form notice of
motion and was by definition interlocutory in nature, the fact that
the plaintiff
did not then object to that form of procedure, did not
mean that the plaintiff cannot now object to the form of procedure
which
the defendants have again adopted.
44 In his submissions for the
plaintiff, Mr Belger stressed that the defendants were clearly in a
position to resuscitate their
dismissal application in good time, and
that it was not necessary to have used the short form notice of
motion.
45 The plaintiff’s submissions
did not deal with any prejudice that the plaintiff may have suffered.
There is also no affidavit
by the plaintiff explaining any prejudice
that he may have suffered by the defendant having adopted what the
plaintiff submits
was an incorrect procedure.
46 The plaintiff’s answering
affidavit was deposed to by the plaintiff’s attorney. In it
she says (emphasis supplied):
“1.5 Given the draconian time
constraints dictated by the applicants in which to file supplementary
answering affidavits,
I will be unable to deal with each and every
allegation contained in the supplementary founding papers.
Therefore, unless an allegation
contained in the applicants’
supplementary founding papers is specifically admitted, it should be
deemed to be denied.”
47 I have three problems with this
submission. The first is that, as it happened, in fact the plaintiff
took twelve court days
to prepare the answering affidavit. Rule
6(5)(d)(ii), if it applied, would have afforded the plaintiff fifteen
days. Therefore
the plaintiff would have been prejudiced by three
days. However, neither the submissions nor the affidavit by the
plaintiff’s
attorney explains whether those three days were
really a matter of prejudice.
48 The second difficulty I have is that
the substance of the supplementary founding affidavit of the
defendants dealt with the sequence
of events after the order. Those
events span some two years and involve only the exchange of
correspondence and the setting down
of the matter on two occasions.
It ought to have been a matter of relative ease for the plaintiff’s
attorney to have responded
to those allegations, within a few days.
The plaintiff also had sufficient time to depose to the merits of his
claims, at least
the way he saw them.
49 The third difficulty I have is that
according to Rule 6(5)(a) every application other than one brought ex
parte is required to
be as near as may be in accordance with Form
2(a). That is a reference to the long form notice of motion.
However, according
to Rule 6(11) (emphasis supplied):
“(11) Notwithstanding the
aforegoing sub-rules, interlocutory and other applications incidental
to pending proceedings may
be brought on notice supported by such
affidavits as the case may require and set down at a time assigned by
the Registrar or as
directed by a Judge.”
50 In my view, the application to
dismiss a pending proceeding for want of prosecution qualifies as an
application “incidental
to” pending proceedings, and
therefore the short form notice of motion was appropriate. I
therefore dismiss the plaintiff’s
application, and I proceed to
deal with the merits of the defendants’ dismissal application.
The merits of the dismissal application
51 The correct place to start is the
order. Having regard to paragraph 4 of that order, I approach the
defendants’ application
on the basis that the defendants would
have to show that the plaintiff had failed to comply with the
provisions of the order, or
at least some of them. This follows
from the terms of the order of Mathopo, J; in particular, the
postponement of the dismissal
application, and not its outright
dismissal.
52 Further, I approach the application
on the basis that if the defendants are able to show that the
plaintiff had failed to comply
with the provisions of the order, then
the matter may be looked at, and should be looked at, afresh in its
entirety. In other
words, the application is not then to be judged
simply on the basis of whether or not the plaintiff had complied with
the order;
but then the defendants are entitled also to refer to any
delays in prosecution that may have occurred over the entire period,
including before the matter was argued before Mathopo, J.
53 As regards compliance with the
order, the argument between the parties ultimately came down to
whether or not the plaintiff had
complied with paragraphs 3.5 and
3.6. I deal with these two paragraphs sequentially.
54 Paragraph 3.5 concerns the question
of trial documents, and in particular the obligation on the plaintiff
to provide a list of
documents which it required the defendants to
include in the trial bundle. The list ought originally to have been
provided within
two months of the date of the pre-trial conference,
and it was not.
55 The plaintiff’s response is
that the requirement was that the plaintiff would only notify the
defendants in writing not
less than five days before the trial of the
identity of the documents to be included in the trial bundle. The
plaintiff concedes
that it has not provided that list, but argues
that since the trial set down for 15 October 2014 has been postponed
by agreement,
it is not necessary that the directive be complied with
now. It needs only to be complied with when the trial is due to
commence.
56 The defendants stress that paragraph
3.5, read in its context, and in particular its introductory part,
plainly requires of the
plaintiff to provide the list of documents to
be included in the trial bundle within three weeks from the date of
the order, which
was 10 October 2012. The defendants argue that
there is therefore no scope to suggest, as does the plaintiff, that
the plaintiff
need only have complied with the directive not less
than five days before the trial is due to commence.
57 In my view the defendants’
contention is sound. The terms of the order are unambiguous. They
require that the list of
documents is to be provided within three
weeks from the date of the order. It was not. Accordingly in this
respect the plaintiff
has not complied with the provisions of the
order.
58 This failure is not irrelevant in
the context of the allocation of a trial judge. Without the
plaintiff’s list of documents
a trial bundle cannot be
prepared. And according to the practice manual, it is clear that
before the commencement of a trial the
parties must agree the
evidential status of the documents contained in the bundle. In turn,
that agreement is required to be contained
in the pre-trial minute,
and as a general rule, precedence in the allocation of matters will
be given to trials in which a proper
pre-trial minute was timeously
filed with the Registrar. The point is, the non-compliance with
paragraph 3.5 of the order is not
merely technical, without
consequence.
59 The next respect in which it was
argued that the order was not complied with, relates to paragraph
3.6, and in particular paragraphs
7.44, 8.1 to 8.5, 8.8, 8.9, 8.16,
8.17 and 8.18. I deal with these in turn.
60 In terms of paragraph 3.6 of the
order, the plaintiff was to provide, within three weeks from the date
of the order, supplementary
responses to the defendants’
request for further particulars of trial dated 29 November 2007, and
in particular the paragraphs
identified above. Three weeks from the
date of the order expired on 2 November 2012. On 31 October 2012 the
plaintiff served
its supplementary response.
61 Paragraph 7.44 of the defendants’
request was as follows:
“Precisely what efforts has the
plaintiff made to obtain the information referred to in paragraphs
10.1 to 10.4?”
62 The answer that was furnished was
the following:
“Plaintiff is unable to obtain
the information referred to in paragraphs 10.1 to 10.4 as such
information is not within plaintiff’s
knowledge. The
defendants, more particularly AMC and its liquidators ought to have
such information. To this end plaintiff will
request further and
better discovery and further particulars for trial as provided for in
the Rules of Court.”
63 The defendants argue that this
answer is disingenuous. They argue that clearly the plaintiff ought
to know the answers to these
questions.
64 Paragraphs 10.1 to 10.4 of the
plaintiff’s particulars of claim provide as follows:
“10. Save that the defendants
acted jointly in allowing or causing the sale of the plaintiff’s
motor vehicles, the plaintiff
is not aware of:
10.1 the dates on which the vehicles
were sold;
10.2 the circumstances in which the
vehicles were sold;
10.3 the terms or prices on which the
vehicles were sold;
10.4 the identity of the purchaser(s)
of the plaintiff’s motor vehicles.”
65 The question in paragraph 7.44 of
the defendant’s request for further particulars for trial was
of course directed not
at the information which the plaintiff asserts
in paragraphs 10.1 to 10.4 was not available to him; the question was
directed at
the efforts that the plaintiff had made to obtain that
information. The plaintiff clearly ought to know what efforts he
made to
obtain that information.
66 The plaintiff argues that should it
be contended that the replies are inadequate, it is legitimate for a
party that has been
ordered to reply to a request for further
particulars, to answer that the information sought is unavailable and
unknown to him.
However, in the present case the information must by
definition be within the plaintiff’s knowledge.
67 Moreover, the information is
relevant. In the defendants’ amended plea a plea of
prescription is raised, and in particular
in paragraph 18.3 the
following assertion is made:
“The plaintiff knew, or could, by
the exercise of reasonable care, have known more than three years
prior to 26 June 2006
of the facts from which the claim arose.”
68 The conclusion is then asserted in
paragraph 18.4 that the claim has prescribed pursuant to the
provisions of
s.11
of the
Prescription Act 68 of 1969
.
69 It follows that the plaintiff did
not comply with paragraph 3.6 of the order insofar as it relates to
paragraph 7.44 of the defendants’
request for further
particulars for trial dated 29 November 2007.
70 The next issue relates to paragraphs
8.1 to 8.5 of the defendants’ request for further particulars.
The order refers to
“8.1 – 8.1”. This is clearly
an error, more particularly since the order was one obtained by
consent. This
is self-evident when one has regard to the defendants’
list of pre-trial requests under
Rule 37(4)
, paragraph 5, from which
this part of paragraph 3.6 of the order was clearly lifted. There
the reference is plain: “8.1
– 8.5”.
71 The plaintiff’s supplementary
response of 31 October 2012 deals with this part of the order by
responding only to paragraph
8.1 and thereafter paragraph 8.8,
thereby ignoring entirely paragraphs 8.2 to 8.5.
72 The plaintiff argued that, although
the reference in the order to “8.1 – 8.1” is a
typographical error and
should represent “8.1 – 8.5”,
the plaintiff ought not to be faulted for the defendants’
mistake. The plaintiff
continued, in his heads of argument, as
follows:
“A reply to paragraphs 8.2 to 8.5
shall be furnished once instructions can be obtained from the
plaintiff himself.”
73 In his supplementary heads of
argument which were handed up on 17 October 2014, the plaintiff added
that he “cannot be
faulted until such time as the Court Order
is sought to be amended so as to rectify the mistake contained
therein.”
74 In an alternative submission, he
submitted:
“Even should the Honourable Court
find that it was incumbent upon the plaintiff to respond to
paragraphs 8.2 to 8.5, it would
indeed be a drastic step to dismiss
the plaintiff’s claim based on a failure to respond to four
questions in a request for
further particulars spanning 24 pages.”
75 In my view any reader of the order,
in the context of the defendants’ request for further
particulars for trial dated 29
November 2007, would have appreciated
that the order contained a typographical error and that it should
have referred to paragraphs
8.1 to 8.5. When one has regard to the
contents of paragraphs 8.2 to 8.5, i.e. those paragraphs that were
not responded to at
all, they are pertinent to the issues that arise
in the matter:
“8.2 Precisely how is the fair
market value of each of the vehicles computed?
8.3 Insofar as certain of the vehicles
may have been sold for less than what the plaintiff contends the fair
market value of the
vehicles to be, the plaintiff is required to
specify upon what basis the plaintiff contends that the fair market
value of the vehicles
is greater than the price at which they were
sold.
8.4 What methodology has been utilised
in order to determine the fair market value of each of the vehicles?
8.5 Insofar as different values have
been attached to different vehicles, the plaintiff is required to
specify the basis of each
valuation.”
76 These questions were directed at
paragraph 12 of the plaintiff’s amended particulars of claim.
That paragraph reads as
follows:
“The plaintiff is entitled to
return of the plaintiff’s motor vehicles.”
77 There is an alternative claim, which
is for damages representing the fair market value of the motor
vehicles, amounting to R35
974 824,25. The information sought by the
defendants is accordingly relevant and ought to have been supplied.
78 In this respect then too, the order
was not complied with.
79 Paragraph 8.8 of the request read as
follows:
“Insofar as the plaintiff relies
upon comparative sales of similar motor vehicles, the plaintiff is
required to identify those
sales.”
80 The supplementary response provided
was:
“Defendants are referred to
Annexure A to the plaintiff’s particulars of claim.”
81 However, no Annexure A was annexed
to the plaintiff’s particulars of claim, and during argument
neither Counsel was able
to identify what that document referred to.
82 To this extent, too, the order was
not complied with.
83 Paragraph 8.9 of the defendant’s
request for further particulars for trial read as follows:
“The plaintiff is required to
specify the properties of each of the vehicles that were taken into
account in effecting the
valuation.”
84 The supplementary response was:
“Plaintiff took into account the
selling price of the vehicles.”
85 The defendants submit that this is
not a meaningful response. The defendants’ frustration is
understood, because the plaintiff
does not provide the individual
selling prices of the vehicles; presumably it is a reference to the
price at which the plaintiff
acquired the vehicles and not the price
at which they were sold on public auction, the latter amounting in
the aggregate to only
R2 439 570. The plaintiff’s submission
in relation to this paragraph is the same as in relation to the other
paragraphs:
that a party that has been ordered to reply to a request
for further particulars may answer that the information sought is
unavailable
and unknown to him.
86 In this case, however, that answer
will not avail, because in fact the plaintiff asserts positively what
he took into account
in effecting the valuation of the vehicles.
However, the assertion is incoherent having regard to the question
that was posed.
87 In this regard then, too, the order
was not complied with.
88 Paragraph 8.16 of the defendants’
request read as follows:
“Insofar as the vehicles were not
SABS compliant, the plaintiff is required to identify the market for
the vehicles and to
specify where, when and to whom it would have
sold the vehicles had the vehicles been delivered to the plaintiff.”
89 The supplementary response was as
follows:
“The vehicles would have been
sold to businesses and/or natural persons inter alia in Malawi,
Zambia, Zimbabwe, Botswana and
Tanzania.”
90 The difficulty with the answer is
that all that it does is to identify the markets; it does not answer
the second part of paragraph
8.16, which is to specify where, when
and to whom the vehicles would have been sold. The defendants
submitted that the answer
raised more questions than it answered.
91 The plaintiff’s argument
remained the blanket submission referred to above. It does not apply
in this case either, because
the plaintiff identified positively the
market which it had in mind for the vehicles.
92 This answer is therefore inadequate
and the order was not complied with in this respect either.
93 Paragraph 8.17 of the defendants’
request for further particulars for trial read as follows:
“Insofar as the plaintiff does
not allege that the vehicles were SABS compliant, the plaintiff is
required to specify what
was required in order to bring the vehicles
up to SABS’s specification, the cost of bringing the vehicles
up to SABS specification,
and the manner in which that cost is
calculated.”
94 The supplementary response was as
follows:
“Plaintiff has no knowledge of
the particulars sought in these paragraphs. AMC was responsible for
and dealt with all SABS
compliance issues.”
95 This response was also offered in
relation to the next and final paragraph involved, being paragraph
8.18:
“Insofar as the vehicles were not
SABS compliant, the plaintiff is required to specify upon what basis
the vehicles could
have been sold as vehicles capable of being
utilised on a South African road.”
96 Here, in my view, the plaintiff’s
stock answer does in fact avail him. He does not know the answer to
these questions,
and therefore cannot provide them. In relation to
paragraphs 8.17 and 8.18, the order therefore has been complied with.
97 It follows from the above discussion
that in my view the order of Mathopo, J was not complied in a number
of instances. This
entitled the defendants to reinstate the
dismissal application, duly supplemented. The question that arises
now is whether, having
regard to all of the relevant facts over the
entire period, the plaintiff’s claims should be dismissed.
The legal principles and their
application
98 In the recent judgment of Cassimjee
v Minister of Finance,
2014 (3) SA 198
(SCA) Boruchowitz, AJA
enunciated authoritatively the requirements for the dismissal of an
action due to inordinate delay in its
prosecution. With reference to
s.173 of the Constitution, the Learned Judge held that the High Court
has the inherent power and
right to prevent an abuse of its process
in the form of frivolous or vexatious litigation. An inordinate or
unreasonable delay
in prosecuting an action falls into the category
of abuse of process and may warrant the dismissal of an action.
99 His Lordship held that there were no
hard and fast rules at the manner in which the discretion to dismiss
an action for want
of prosecution was to be exercised. He did,
however, identify three important factors. The first was that there
should have been
a delay in the prosecution of the action. The
second was that the delay must have been inexcusable. And the third
is that the
defendant must be seriously prejudiced by the delay. I
turn to consider the application of those three requirements to the
facts
of the present case.
The delay
100 Since the summons in this matter
was first issued back in 2001, and since there is as of October 2014
no trial date yet, there
has clearly been a significant delay in the
prosecution of the action. The internal periods of delay over the
past 14 years that
are particularly significant, are in my view the
following.
101 First, there is the lapse of five
years from when pleadings closed in 2001 until 2007 when the
plaintiff served a notice of
intention to amend his particulars of
claim. That delay is completely unexplained.
102 The next period of delay was that
caused by the failure of the trial to proceed on the first trial date
allocated, namely 29
August 2008. It will be recalled that slightly
more than a month before the trial date, the plaintiff’s
attorney withdrew,
and for that reason the matter was not ready to
proceed to trial. The reasons for the matter not being ripe were set
out in the
agreed pre-trial minute of the pre-trial conference that
was held on 24 July 2008. Those reasons are all the fault of the
plaintiff.
103 Third, the delay caused by the
removal of the matter from the trial roll on 25 May 2012, being the
third trial date, also stands
out. It will be recalled that the
defendants’ attorney received a letter from the plaintiff’s
attorney on 27 March
2012 unilaterally removing the matter from the
trial roll and offering as a reason that “we are having
difficulty getting
hold of our client”.
104 The plaintiff’s attorney
elaborated upon this explanation in his affidavit opposing the
previous dismissal application,
when he said that “the
respondent was on a pilgrimage to India, was out of reach and would
not return in time for the trial.”
105 There is no information given as to
whether the plaintiff’s attorney had advised the plaintiff well
in advance of the
allocation of the trial date, and whether
appropriate steps were taken sufficiently in advance to ameliorate
the prejudice that
would be suffered by the defendants.
106 After that removal from the trial
roll followed the argument before Mathopo, J and the order made by
the Learned Judge. Two
trial dates were allocated since that order,
and both of them were in the event not taken up.
107 In this context then, the fourth
event that stands out as a significant delay-causing agent was the
failure of the matter to
be ripe for hearing for the trial date of 22
October 2013. The reason why the matter was not ripe to proceed on
that day is set
out in the plaintiff’s attorney’s letter
of 8 October 2013. On 4 April 2013 the plaintiff’s attorney
had received
the note from their messenger advising that the trial
date had been allocated. However, it was not until 13 September 2013
that
plaintiff’s attorney advised the defendants’
attorney that the Registrar had allocated 22 October 2013; and
additionally
that the plaintiff’s Counsel was not available
during that particular week.
108 There is mention in the plaintiff’s
attorney’s letter of 8 October 2013 of difficulties encountered
at the office
of the Registrar in obtaining a formal notification
advising that the matter had been enrolled for 22 October 2013. It
is said
that this could ultimately only be obtained on 27 September
2013.
109 But if regard is had to the content
of that letter, the difficulties were overcome during the period 13
September 2013 to 27
September 2013. If that approximately two week
period had been engaged on the 4th of April 2013, then the plaintiff
would have
been able sufficiently well in advance of 22 October 2013
to have obtained the formal notification from the Registrar advising
that the matter had been enrolled.
110 Therefore, the delay caused by this
inability to use the fourth allocated trial date of 22 October 2013
is also the fault of
the plaintiff.
111 Finally, there is the inability to
utilise the fifth allocated trial date being 15 October 2014. There
was some debate between
the parties as to whether or not the
defendant was ready to proceed with the trial. The debate was this:
the parties agreed that
the matter was, objectively, not ripe to
proceed, whereas the defendant argued that it was not ready to
proceed because the plaintiff
had not complied with the order.
112 The parties were, however, agreed
that irrespective of the above issue, the plaintiff himself was not
ready to proceed and would
have had to have applied for a
postponement in any event.
113 Since it is clear that in fact the
plaintiff had not complied with the order, as set out above, the
defendants’ inability
to be ready to proceed to defend the
action against them is understandable. But in any event, the primary
responsibility for energising
the progression of the litigation is
that of the plaintiff. And what therefore confronts the plaintiff is
that, apart from the
inexplicable lapse of five years between 2001
and 2007, on four of the five occasions on which a trial date had
been allocated
for the matter, the plaintiff was not ready to
proceed.
114 In view of these moments,
therefore, the delay was clearly inordinate; and the next question is
whether it was excusable.
Was the delay excusable?
115 As regards the first period of
delay referred to above, that of the five years between 2001 and
2007, there is no explanation
at all. As regards the inability to
proceed on the first and the third allocated trial dates, the fault
was clearly that of the
plaintiff. Whether it was excusable has also
not been disclosed by the plaintiff, who has not deposed to an
affidavit explaining
the reasons for those delays. For instance,
there is no affidavit explaining what the arrangements were between
him and his attorney
when he went on the pilgrimage to India; and
there is no explanation as to why his first attorney withdrew shortly
before the first
trial date of 2008.
116 Similarly, as regards the fourth
trial date, there is no explanation for the delay between April and
September 2013, and as
regards the fifth trial date, there is equally
no explanation for the inability of the plaintiff to proceed with the
trial on 15
October 2014.
117 The plaintiff is the person who
ought to have taken the court into his confidence and to have
explained why it was that, particularly
in respect of 15 October
2014, he was still not ready to proceed with the trial. The absence
of an affidavit by him is regrettable
for two further reasons.
118 The first is that the order must be
regarded as having been a watershed. His Lordship heard argument in
an opposed application
for the dismissal of the plaintiff’s
claim. And it is clear from the court order, in particular paragraph
4, that His Lordship
was affording the plaintiff one more chance.
The fact that, in terms of paragraph 4, the defendants were granted
leave to renew
their application duly supplemented if the order were
not complied with, underscores this. Yet on the face of it there was
no
sense of urgency on the part of the plaintiff in preparing either
for the trial date of 22 October 2013 or for the trial date of
15
October 2014.
119 The second reason is that the
defendants, and in particular the first defendant, have raised
substantive and substantial allegations
against the plaintiff’s
cause of action. Apart from the plea of prescription, there is the
significant challenge to the
plaintiff’s assertion of
ownership; and there is the reliance on s.34 of the Insolvency Act 24
of 1936. One would have expected
of a plaintiff who was seriously
intent on prosecuting his claim to have traversed those issues on
oath, and to have dealt with,
at least at prima facie level, the
defences raised against his large claim. This was not done.
120 It follows that in my view the
significant delays are not excusable. Rather, the picture that
emerges is that of a plaintiff
who has not prioritised the
prosecution of his claims, that despite the lifeline which Mathopo, J
had afforded him. There was,
and apparently still is, no
appreciation of the escalating urgency to have the matter adjudicated
upon.
121 That leaves for consideration the
question of whether the defendants are being prejudiced.
Defendants’ prejudice
122 Their prejudice was dealt with in
the original founding affidavit at paragraphs 66 to 73, and in the
supplementary founding
affidavit at paragraphs 77 to 84. The
response to the defendants’ allegations of prejudice in the
initial founding affidavit
is contained in paragraph 40 of the
original answering affidavit, in these terms:
“The contents hereof are denied.
The parties agreed not to proceed with the trial on any of the three
occasions. On all
three occasions the trial was removed from the
roll timeously so as to avoid unnecessary costs such as costs of
counsel. Preparation
costs are not in any way wasted as the matter
will ultimately proceed to trial. Any preparation already done is to
be benefit of
the applicants, surely. The applicants on their own
version failed with a further application for security for costs
which is
indicative of the fact that the court rejected the
applicants’ version that they will be unable to recover their
costs from
the respondent, if costs were ever granted in their
favour.”
123 This is not an answer to the
prejudice that was raised. The defendants are self-evidently being
prejudiced by the matter not
coming to a head, and it is no answer to
say that the matter can be postponed every time it comes up for
trial, because the benefit
of the trial preparation is simply carried
forward to the next occasion.
124 As regards the prejudice raised in
the supplementary founding affidavit, the defendants pointed to
paragraphs 12 to 15 of the
original founding affidavit. Those
paragraphs explain that the first defendant has ceased trading as a
commercial bank and has
retained funds to cover potential claims
against it. The delay in finalising the action is delaying the
distribution of the first
defendant’s liquidated assets to its
shareholders.
125 Further, the defendants explained
that the administration of AMC’s estate is also at an end.
There are no assets left
to liquidate. However, the liquidators
cannot close AMC’s estate and make a distribution to creditors
until the action will
have been concluded.
126 Finally, as a consequence of the
delay in bringing the proceedings to finality, the defendants have
lost contact with their
witnesses. Documents have become lost or
hard to trace. In short, they have been prejudiced in their ability
properly to defend
the action.
127 The answering affidavit which was
filed by the plaintiff’s attorney on behalf of the plaintiff on
16 October 2014 does
not deal at all with the prejudice suffered by
the defendants.
128 In the original answering
affidavit, the plaintiff’s attorney challenged paragraphs 12 to
14 of the original founding
affidavit by arguing that the defendants
themselves have not taken any steps to bring the matter to fruition.
The defendants,
he argues, made no attempt to apply for a trial date
in the normal course and have not used any of the interlocutory
procedures
at their disposal to drive the matter towards finality.
The attorney asserted that the defendants have done so at their own
peril.
129 The defendants’ conduct is,
of course, a factor that must be taken into account. But it cannot
be viewed in isolation,
because ultimately a defendant who does not
obtain answers legitimately directed at a plaintiff’s cause of
action, is prejudiced
in the preparation of its defence. And, as
indicated above, the primary responsibility for bringing a matter to
a head, is that
of the plaintiff, not that of the defendant. And the
defendants’ failure to have sped up resolution can, by
definition, not
have contributed to a delay in prosecution caused by
the plaintiff.
130 That the defendants are prejudiced
by the delay must accordingly be accepted as uncontestable. The
only point ultimately made
by the plaintiff in this regard is that
the defendants are also to blame for the delay. But that point does
not present an answer
to the application. In my view it follows that
the application must succeed.
131 A special costs order is sought. I
am disinclined to grant such an order; the plaintiff’s conduct
was dilatory, not egregious.
132 In the result I make the following
order:
1. The plaintiff’s claims against
the defendants are dismissed.
2. The plaintiff is directed to pay the
costs of the action, including the costs of the application brought
under amended notice
of motion dated 26 September 2014, the
costs
reserved on 10 October 2012, and the costs reserved on 24 July 2008.
VAN DER LINDE AJ
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
DATE OF HEARING : 16 & 17
OCTOBER 2014
DATE OF JUDGMENT : 28 OCTOBER 2014
COUNSEL FOR THE APPLICANTS : ADV.
PN LEVENBERG, SC
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