Johannesburg Road Agency City of Johannesburg Municipality v Ndaba and Another; In re: Ndaba v Johannesburg Road Agency City of Johannesburg Municipality (28210/2012 , 28220/2012) [2015] ZAGPJHC 204 (11 September 2015)

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[2015] ZAGPJHC 204
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Johannesburg Road Agency City of Johannesburg Municipality v Ndaba and Another; In re: Ndaba v Johannesburg Road Agency City of Johannesburg Municipality (28210/2012 , 28220/2012) [2015] ZAGPJHC 204 (11 September 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No. 28210/2012
DATE:
11 SEPTEMBER 2015
In the matter
between:
JOHANNESBURG ROAD
AGENCY
............................................................................
First
Applicant
CITY OF
JOHANNESBURG
MUNICIPALITY
......................................................
Second
Applicant
And
NDABA: PUNKI
ELIZABETH
..................................................................................
First
Respondent
MINISTER OF
PUBLIC
WORKS
….....................................................................
Second
Respondent
AND
Case
No. 28220/2012
In the matter
between:
NDABA: PUNKI
ELIZABETH
...............................................................................................
Applicant
And
JOHANNESBURG ROAD
AGENCY
........................................................................
First
Respondent
CITY OF
JOHANNESBURG
MUNICIPALITY
...................................................
Second
Respondent
JUDGMENT
VAN DER LINDE,
AJ:
1 These are two
applications brought under two case numbers, respectively 28210/2012
and 28220/2012, in this Division. The first
application is by the
Johannesburg Road Agency and the City of Johannesburg Municipality
for the dismissal of an action which had
been instituted by Ms Punki
Elizabeth Ndaba against the Johannesburg Road Agency, the City of
Johannesburg Municipality, and the
Minister of Public Works. I will
refer to this application as the dismissal application.
2 The second
application is by Ms Punki Elizabeth Ndaba against the Johannesburg
Road Agency and the City of Johannesburg Municipality
for the
rescission of a judgment handed down on 5 December 2012 by Acting
Judge Myburg in which he upheld an exception which the
Johannesburg
Road Agency and the City of Johannesburg Municipality had brought
against Ms Ndaba’s particulars of claim.
In that judgment,
Judge Myburg granted Ms Ndaba 10 days from date of service to amend
her particulars of claim. She did not, and
that led to the dismissal
application. I will refer to this second application as the
rescission application.
3 These two
applications were heard together following an order on 15 August 2014
by Judge Weiner. The Learned Judge on that occasion
postponed the
dismissal application and directed that it be enrolled together with
the rescission application. She also directed
Ms Ndaba’s
attorneys to furnish an affidavit setting out why they should not be
liable for the costs of the dismissal application
on an attorney and
client scale de bonis propriis.
4 The factual
history of these two applications is intertwined and in what follows
I take the undisputed facts from the affidavits
filed in both
applications.
5 The matter started
when Ms Ndaba, to whom I shall refer as the plaintiff, fell into a
trench on 27 July 2009 at the corner of
Rissik and Jeppe Street,
Johannesburg. She sustained injuries and instructed her attorneys to
claim damages from the Johannesburg
Road Agency, the City of
Johannesburg Municipality, and the Minister of Public Works.
6 The summons was
issued under Case No. 28210/2012 on 26 July 2012. The setting out of
the plaintiff’s cause of action was,
to the likes of the
Johannesburg Road Agency and the City of Johannesburg Municipality,
inadequate, and that led to an exception
to which I return later.
7 In the meantime
two notices of intention to oppose were delivered on 3 August 2012,
an hour and 40 minutes apart. The first one
delivered was by the
State Attorney and it said:
“Be pleased to
take notice that the defendant herein gives notice of its intention
to defend the action.”
8 It was signed by
“The State Attorney, Attorney for the Respondents”. The
case heading listed as respectively first,
second and third
defendants, the Johannesburg Road Agency, the City of Johannesburg
Municipality and the Minister of Public Works.
9 It will have been
seen that this notice of intention to defend could have given rise to
confusion, because it gives notice of
an intention to defend on
behalf of “the defendant”, but by the “Attorney for
the Respondents”.
10 The second notice
of intention to defend gave the same case heading, but said that
notice of intention to defend was being given
on behalf of the first
and second defendants, and by Webber Wentzel, “First and Second
Defendants’ Attorneys.”
11 Webber Wentzel
also delivered a notice in terms of Rule 36(4) on behalf of the first
and second defendants, and on 10 August
2012 wrote a letter to the
plaintiff’s attorneys, requesting two alternative dates and
times when she would be available
to meet with Webber Wentzel for an
inspection in loco to be conducted.
12 That elicited no
response. Instead, on 16 August 2012 the plaintiff’s attorneys
wrote to Webber Wentzel recording that
a notice of intention to
defend was first received from the State Attorney, and advising that
they (the plaintiff’s attorneys)
would be proceeding on the
basis that the State Attorney was representing all the defendants.
That letter of 16 August 2012 was
only dispatched by fax on 29 August
2012.
13 In the meantime
on 22 August 2012 Webber Wentzel on behalf of the first and second
defendants gave notice of an exception to
the plaintiff’s
particulars of claim on the basis that they were vague and
embarrassing for four reasons which were set out
in the notice. The
plaintiff was afforded 15 days within which to remove the cause of
complaint.
14 Next, on 17
September 2012 the State Attorney wrote to Webber Wentzel referring
to a conversation between Mr Sekwati of the State
Attorney and a
representative of Webber Wentzel, and enclosing a copy of a letter by
the State Attorney to the plaintiff’s
attorneys, together with
a notice of withdrawal on behalf of the first and second defendants.
15 Attached to the
letter of the State Attorney to Webber Wentzel, was a copy of a
letter which was ostensibly sent, although this
is disputed by the
plaintiff’s attorneys, on 17 September 2012 by fax to the
plaintiff’s attorneys in the following
terms:
“Please note
that we erroneously entered appearance on behalf of all defendants
instead of only the third. We thus tried
to serve a notice of
withdrawal in respect of the first and second defendant, but
unfortunately, one Philip refused to accept service.
Herewith please
find a copy thereof. Kindly advise how we should serve this notice.”
16 Attached was a
notice of withdrawal as attorneys of record on behalf of the first
and second defendants.
17 Next, on 20
September 2012 Webber Wentzel filed a fresh notice in terms of Rule
23(1) giving notice that the first and second
defendants contended
that the plaintiff’s particulars of claim were vague and
embarrassing.
18 There was no
response to this notice and in October 2012, the precise date not
having been disclosed, the first and second defendants
delivered
their exception.
19 On 9 November
2012 the plaintiff’s attorneys gave a notice of intention to
oppose to Webber Wentzel who were described
in the notice as the
“Applicants’ Attorneys”, under a case heading which
described as the applicants, all three
of the defendants in the
action. The contents of the notice was as follows:
“Be please
(sic) to take notice that the respondent in this matter intends to
oppose the above matter and she has appointed
TM Selamolela Attorneys
as her attorney to whom all processes, notices and pleadings in this
matter be served at the address below.”
20 Two days later,
on 11 November 2012, the plaintiff’s attorneys wrote to Webber
Wentzel in response to a letter by Webber
Wentzel dated 21 September
2012 to the plaintiff’s attorneys. The latter read as follows:
“We have
received a telefax from the State Attorney’s office, which
states that it has withdrawn its notice of intention
to defend that
it erroneously filed on behalf of our clients, namely the first and
second defendants.
We therefore confirm
the telephonic conversation between your Ms Selamolela and our Mr
Candy on 12 September, where we confirmed
that the filing of the
notice of intention to defend by the State Attorney’s office
was filed in error.
We have re-served
our notice in terms of Rule 23 on your office and look forward to
your response therewith.”
21 The letter from
the plaintiff’s attorneys to Webber Wentzel dated 11 November
2012 read as follows:
“We
acknowledge receipt of your faxed letters and reply as follows.
We advise that our
Ms Selamolela from our offices never mentioned that, or confirmed the
filing of the State Attorney’s notice
of intention to defend
was filed (sic) by error. It is incorrect from Mr Candy to conclude
as such.
The correct and
proper reply was that you sort your problems as defendants as it has
nothing to do with us.”
22 The next event
was that the exception had been set down for hearing two days later,
on 13 November 2012. On that day Counsel
representing the plaintiff
appeared and requested a postponement because he was not ready to
argue the matter. By agreement between
the parties the exception was
removed from the roll on 13 November 2012 as a sign of courtesy to
the plaintiff, and it was agreed
that it would be set down in two
weeks’ time. The plaintiff’s attorney also agreed to
this. This was intended to
afford the plaintiff’s Counsel
sufficient time to study the documents and to prepare heads of
argument.
23 On 20 November
2012 Webber Wentzel wrote a letter to the plaintiff’s attorney
which read as follows:
“We confirm
the telephonic conversation on even date between our Mr Candy and
your Ms Selamolela where we confirmed that we
will be setting down
our clients’ exception in two weeks’ time.
The date that we are
looking at is 4 December 2012.
We will serve a copy
of the papers on your shortly.”
24 The matter was
then set down for 4 December 2012 and came before Acting Judge Myburg
on 5 December 2012. There was no appearance
for the plaintiff and
having read the documents and having considered the matter, Judge
Myburg upheld the first and second defendants’
exception dated
31 October 2012 and, as already stated, granted the plaintiff 10 days
from date of service of the order on the
plaintiff’s attorneys
to amend her particulars of claim. The plaintiff was ordered to pay
the costs of the exception.
25 On 10 January
2013 Webber Wentzel served on the plaintiff’s attorneys a
letter which enclosed a copy of the order of Myburg
AJ and requested
that the plaintiff amends her particulars of claim within 10 days.
There was no substantive response to this
letter and when by 25 July
2013 there was no notice of intention to amend the particulars of
claim or an amendment, the dismissal
application was launched. On 26
August 2013 the plaintiff’s attorneys filed an answering
affidavit and on 15 January 2014,
some four and a half months later,
the replying affidavit was served.
26 The dismissal
application was then enrolled for hearing in August 2014. Just
before it was heard, on 5 August 2014, the plaintiff
launched the
rescission application, asking for condonation for the delay in
bringing the application, represented by the period
from 10 January
2013 to 5 August 2014. The plaintiff also asked for a rescission of
the judgment by Judge Myburg dated 5 December
2012.
27 When the matter
came before Judge Weiner on 15 August 2014 she made the order to
which I referred above, to the effect that the
matters be heard
together.
28 Thereafter, on 5
October 2014, the plaintiff delivered amended particulars of claim
after having delivered a notice of intention
to amend. In argument
before me the Johannesburg Road Agency and City of Johannesburg
Municipality contended that this action
was inconsistent with the
application to rescind the judgment which had set aside the
particulars of claim.
29 Nonetheless this
conduct elicited an application to set aside the particulars of claim
as an irregular proceeding, in terms of
an application the papers of
which were not before me and which consequently was not moved before
me. The only relevance for present
purposes is that the 5th of
October 2014 is the date on which the amended particulars of claim
were first delivered, despite the
order of Myburg AJ having come to
the knowledge of the plaintiff’s attorneys on 10 January 2013.
30 Next, on 20
October 2014 the answering affidavit in the rescission application
was delivered and on 22 January 2015 the replying
affidavit.
31 I deal first,
against this background, with the rescission application and
thereafter with the dismissal application. The rescission
application
is brought on three bases. The first is Rule 31(2)(b), the second is
Rule 42(1)(a), and the third is the common law.
32 According to
Cilliers, Loots and Nel, Herbstein and Van Winsen, The Civil Practice
of the High Courts of South Africa, 5th Edition,
Vol.1, p.715, an
application under Rule 31(2)(b) can be used only for the rescission
of default judgments granted in terms of Rule
31(2)(a). This is said
with reference to De Sousa v Kerr,
1978 (3) SA 635
(W) at 637 D-E.
In that matter default judgment was granted in favour of the
plaintiff when the matter had been enrolled for trial.
It was common
cause before the Court that the rescission of judgment that was
subsequently sought could not be brought under Rule
31(2)(b). On
that basis the plaintiff’s application for rescission of the
judgment of 5 December 2012 cannot be brought
under Rule 31(2)(b).
33 I prefer not to
form a view on whether or not De Sousa was correctly decided. Even
if it was correctly decided, and even if
the plaintiff was not
non-suited under that rule, on the basis that the Myburg, AJ judgment
was not such, the requirement for success
still is that “good
cause” be shown. This observation is relevant because, as
pointed out at 938 of Herbstein &
Van Winsen, “sufficient
cause” is required to be shown for a successful rescission
under the common law.
34 I should remark
in passing that under the common law what is potentially capable of
being rescinded is a final judgment; and
I doubt very much that the
upholding of an exception such as the order made by Myburg AJ can be
classified as a final judgment.
Again, I will assume in the
plaintiff’s favour that the judgment is capable of being
rescinded under the common law and
I will deal below with the
requirement of “good cause” and “sufficient cause”
interchangeably.
35 For now it
necessary first to deal with the cause of action under Rule 42. The
requirement is that the judgment ought erroneously
to have been
granted in the absence of a party affected thereby. In my view,
having regard to the fact that the date of 4 December
2012 was agreed
with the plaintiff’s attorney and Counsel, that requirement is
not satisfied and the application for rescission,
to the extent that
it relies on Rule 42(1)(a), cannot succeed.
36 I turn now to the
issues of “good cause” and “sufficient cause”
for the purposes respectively of Rule
31(2)(b) and the common law. It
is in this context that the plaintiff puts up as the substantive
reason for non-appearance the
following paragraph in the founding
affidavit in the rescission application:
“3.2 The
applicant did not cause Counsel to appear before Court on the 5th
December 2012 merely because of not having sufficient
money to pay
for the cover for the services that required Counsel.”
37 In addition to
this point, the case for rescission is founded on the basis that the
attention of Myburg AJ was not drawn to the
fact, “…
that the State Attorney was the proper legal representatives for the
first and second defendant which office
withdrew only on the 21st of
January 2014. Had the attention of the Honourable Court, in
particular Honourable Justice Myburg
been drawn to the fact that the
State Attorney was still acting for the first and second defendant,
the Honourable Court would
not have reasonably granted the default
judgment dated 5th December 2012.”
38 In my view
neither the first nor the second causes have, in this matter, been
established as good causes.
39 Concerning the
lack of funds and the inability to instruct Counsel to appear on the
4th of December 2012, the problem for the
veracity of the proposition
is that the date was agreed. The plaintiff’s Counsel and the
plaintiff’s attorney would
not responsibly have agreed the date
without having been placed in funds. It would have been far more
likely, had they not been
placed in funds, that they would have said
that their agreement to the date two weeks hence was dependent upon
them being placed
in funds.
40 The second
difficulty with this cause, is that no communication occurred before
the 4th of December 2012 to advise either the
Court or the legal
representatives of the first and second defendants that the plaintiff
would not be represented since the plaintiff’s
attorney could
not be placed in funds. And the third difficulty is that this cause
was not raised as the basis for the absence
of representation on the
5th of December 2012 until the filing of the founding affidavit in
the rescission application, which affidavit
was dated the 6th of
August 2014.
41 Concerning the
second cause, that is the assertion that the State Attorney was
acting on behalf of the first and second defendants,
there is no
basis on which that finding can be made. It is correct that on 21
January 2014 the State Attorney actually served
a notice of
withdrawal as attorneys of record on behalf of the first and second
defendants. But the truth of the matter is that
the plaintiff’s
attorney knew long before then that the first and second defendants
were being represented by Webber Wentzel.
This appears from the
following.
42 First, the
plaintiff’s attorney herself raised with Mr Sekwati of the
State Attorney the issue of the two notices of appearance
to defend
on behalf of the first and second defendants. She herself says that
she received a letter from the State Attorney to
the effect that the
State Attorney had the intention to serve a notice of intention to
withdraw. Although she does not annex the
letter, having regard to
the documents that have been disclosed in the record of the two
applications, it could only have been
the letter of the State
Attorney dated 17 September 2012 that she had in mind. She therefore
knew in September 2012, as a matter
of overwhelming probability, that
the State Attorney was intending to withdraw.
43 Second, on the
21st of September 2012 Webber Wentzel wrote to the plaintiff’s
attorney, advising her of the receipt by
Webber Wentzel of the fax
from the State Attorney’s office, which stated that the State
Attorney had withdrawn its notice
of intention to defend that it had
erroneously filed on behalf of the first and second defendants, who
were the clients of Webber
Wentzel.
44 It is true that
some two months later the plaintiff’s attorney wrote saying
that the two sets of attorneys should sort
out their problems as this
had nothing to do with the plaintiff’s attorney. But, with
respect, that response was foolhardy,
particularly in the face of the
fact that two days earlier the plaintiff’s attorney had given
notice of her intention on
behalf of the plaintiff to defend the
exception hearing, in a notice that described Webber Wentzel as the
defendants’ attorneys.
45 Third, there was
the agreement reached between Counsel and attorney representing the
plaintiff on 13 November 2014 on a hearing
date for the exception.
It is unlikely that the plaintiff’s Counsel and attorney would
have been prepared to agree a hearing
date with Webber Wentzel and
the Counsel instructed by them, were it not for the fact that the
plaintiff’s representatives
were thereby accepting that Webber
Wentzel had authority to represent the first and second defendants.
46 Apart from
rejecting both bases which the founding affidavit sets up as causes
justifying the rescission of 5 December 2012,
there is also the
inordinate delay in the bringing of the rescission application. On my
calculation the delay is approximately
one year and seven months.
That delay has not been adequately explained and it is thus
unavoidable, in my view, that the rescission
application must be
dismissed.
47 The first and
second defendants have asked for a costs order against the
applicant’s attorney on an attorney and own client
scale, de
bonis propriis, as appears from the concluding prayer in the
answering affidavit on p.135 of the rescission application.
48 Costs orders of
this nature are not easily made. But there are two disconcerting
facts which apply not only in the rescission
application but also in
the dismissal application. The first is that the plaintiff herself
is plainly indigent. She is a pensioner,
born on 21 July 1948, and
is self-employed as a vendor. It is likely that she was in fact not
in funds properly to instruct the
plaintiff’s attorney.
49 The second fact,
following from the first fact, is that the plaintiff’s attorney
strung along the defendants without playing
open cards with them.
She was not entitled to keep stringing out the process waiting to be
placed in funds without either conveying
her predicament to the
defendants’ attorneys; or without deciding to act either on
contingency or pro bono.
50 Her conduct in
these circumstances was, in my view, unreasonable, and unreasonable
to the extent that the plaintiff herself should
not be penalised by a
costs order. I do not think that in this case the scale should be as
between attorney and client.
51 I therefore
dismiss the rescission application and direct the plaintiff’s
attorney to pay the costs of the rescission application
de bonis
propriis on the scale as between party and party.
52 I turn now to
deal with the dismissal application. In Natal Fresh Produce Growers’
Association & others v Agroserve
(Pty) Ltd & others,
1991 (3)
SA 795
(N), the plaintiffs’ particulars of claim were set aside
on exception, and they were granted leave to amend their particulars

of claim within 20 days. The judgment was delivered on 19 January
1990, and on 8 August 1990 the plaintiffs applied for condonation
for
their failure to have amended particulars of claim timeously.
53 Hugo, J refused
the condonation on the basis that he concluded that the plaintiffs
concerned did not have a prospect of producing
a non-excipiable
particulars of claim. He was also able to conclude that the doors of
the Court would not thereby be closed to
the plaintiffs since they
were free to institute action afresh on a different cause of action.
The Court was prepared, however,
to accept that the period between
January and August 1990 was not of itself a bar to the condonation
being granted.
54 In this matter
the failure of the plaintiff to have delivered amended particulars of
claim within ten days of 10 January 2013
meant that she was
automatically barred. No further notice of bar was required by the
defendants. She was required, if she intended
prosecuting her claim,
to bring an application for condonation and for the lifting of the
bar.
55 She did not do so
and has still not done so. As pointed out above, the first time that
the plaintiff delivered amended particulars
of claim was on 5 October
2014, some year and eight months after the amended particulars of
claim were due.
56 The basis of the
resistance to the dismissal application is difficult to discern but
it would appear that it is founded on the
contention that the State
Attorney was then still on record as acting for the first and second
defendants.
57 This issue has
been dealt with above in the context of the rescission application.
The State Attorney did file a notice of withdrawal
as attorneys of
record only in January 2014, but this was only after the State
Attorney had attempted to file a notice of withdrawal
on the first
defendant’s attorney in September 2012 but was unsuccessful in
doing so.
58 More importantly
however is the fact that any alleged uncertainty as to which attorney
was acting for the first and second defendants
still does not explain
why by the time the dismissal application was brought in July 2013,
the plaintiff had not yet applied for
condonation and for the lifting
of the bar.
59 On her case, of
course, she was not prepared to apply for condonation and the lifting
of the bar, because she had received advice
that the court order
which set aside her particulars of claim on exception, ought first to
be rescinded.
60 But her
rescission application was only brought on 5 August 2014 and, as I
have held, it was unsuccessful.
61 In a sense one
has therefore come the full circle. The rescission application
having been unsuccessful, the plaintiff, obviously
acting on advice,
took her chances, and failed to apply for condonation to lift the bar
and to file amended particulars of claim.
This she has not done.
62 In the
circumstances in my view it is inevitable that the dismissal
application must be granted. Concerning its costs, the plaintiff’s

attorneys were directed to file an affidavit setting out why they
should not be held liable for the costs of the application.
Such an
affidavit was filed and appears at pp.44 to 80 of the paginated
papers in the rescission application.
63 In that affidavit
the plaintiff’s attorney, after describing the nature of the
matter and furnishing background in respect
of the main action,
raised the following contentions in her affidavit –
63.1 that the
defendants acted in a manner that was irregular and had the effect of
prejudicing the plaintiff;
63.2 that the
attorney had taken steps to cause the first and second defendants to
remove the irregular step;
63.3 that Counsel
gave the attorney an opinion concerning the irregular step;
63.4 the particular
advice which was received from Counsel in regard to the irregular
step; and
63.5 that the first
and second defendants launched the application for dismissal while
knowing that the plaintiff was being embarrassed
in not knowing who
represented the first and second defendants.
64 The first point
concerned the notices of intention to defend. The plaintiff’s
attorney relies on the fact that the notice
of withdrawal on behalf
of the first and second defendants was only served in January 2014
and that by that time the plaintiff
had suffered serious damages and
prejudice arising from the irregularity. She asserts also that the
first and second defendants
were employing a particular tactic,
deliberately so, by using two addresses and attorneys at the same
time.
65 In my view the
reliance on alleged confusion arising from the notice of intention to
defend which the State Attorney had filed
on behalf of the first and
second defendant, has no substance. The subsequent events in the
second half of 2012 made it plain
that the filing by the State
Attorney of a notice of intention to defend on behalf of the first
and second defendants was an error.
The plaintiff’s own
conduct, as represented by her attorney, towards the end of 2012,
particularly when agreeing a date for
the hearing of the exception,
belies the suggestion that there was any confusion.
66 Concerning the
second point, the argument put up is simply that the plaintiff’s
attorney decided to take advice from Counsel.
Of itself, this point
takes the matter no further.
67 As regards the
third point, which is that Counsel considered the issues placed
before him, the plaintiff’s attorney raises
various
possibilities that could have been inferred from the fact of the
second notice of intention to defend by Webber Wentzel.
The
possibilities raised are all created to underscore the ultimate
submission of confusion that arose as a result of the two
notices of
intention to defend. She goes on to suggest, however, that Counsel
advised that Courts are inclined to discourage the
bringing of formal
procedures to correct irregularities by other parties, under Rule
30A.
68 Rule 30A does not
apply; it relates to the case where a party fails to comply with the
rules. Rule 30 does apply, and it envisages
the bringing of an
application to set aside an irregular step. No doubt what the
plaintiff’s attorney had in mind was that
such applications
should not be brought without having invited the party who committed
the irregular step, to rectify it.
69 But here the
State Attorney says that he attempted to serve the notice of
withdrawal, but was not able to do so. Although this
is denied by
the plaintiff, it is difficult to conceive why the State Attorney
would have concocted such a version. After all,
the State Attorney
sent the notice of withdrawal to Webber Wentzel, and must have
appreciated that Webber Wentzel could simply
have passed it on to the
plaintiff’s attorney. I am constrained to dismiss the
plaintiff’s attorney’s denial
that there was a Philip, on
the papers.
70 Moreover, the
plaintiff’s attorney actually did not write a letter to the
State Attorney requesting the delivery of a notice
of withdrawal, but
sat back, ostensibly waiting for the delivery of such a notice. As I
have found above, however, she knew, as
did her Counsel, by no later
than 13 November 2012 that Webber Wentzel were acting on behalf of
the first and second defendants.
71 The next point
concerned the advice received from Counsel, but the affidavit here
really deals with the plaintiff’s attorney’s
own conduct.
She explains that she communicated with the first and second
defendants’ legal representatives concerning the
irregularity
and ambiguity, and she points to the several telephone calls that she
made to the two attorneys. She deposes to a
discussion she had with
the State Attorney as well as with Webber Wentzel, and she says that
the response was that they would take
the appropriate steps. She
concludes by saying that no steps were taken.
72 Of course, this
brings one back to the State Attorney’s letter which says that
service of the notice of withdrawal was
attempted but was
unsuccessful.
73 The final point
concerns the argument that the application for dismissal was
launched, “notwithstanding that to their knowledge
the
embarrassment and irregularity were by then still subsisting.”
This section of the argument is concluded with the submission
that it
is established law that a party may not rely on its own acts of
unlawfulness or irregularity to “procure favourable
judgment.”
74 One cannot help
but form the impression that there is a deliberate attempt to blow
completely out of proportion the fact that
the State Attorney had
erroneously filed a notice of intention to defend on behalf of also
the first and second defendants. One
leaves aside the fact that the
State Attorney’s notice of intention to defend may actually
have been read as not being on
behalf of the first and second
defendants, since it referred to “defendant” in the
singular.
75 But the point
currently under consideration is whether the plaintiff’s
attorney has sufficiently dispelled the inclination
which a Court
instinctively has to protect the plaintiff against her legal
representative, in the peculiar and particular circumstances
of this
case.
76 In my view, as
already intimated above, the plaintiff ought not to be penalised by
having to pay the costs of a procedure which
was brought about by the
inaction of her attorney. It follows that the costs of the dismissal
application should be paid by the
plaintiff’s attorney, de
bonis propriis.
77 The question of
the appropriate scale arises. In particular, the order of Weiner, J
refers to costs on an attorney and client
scale. Costs on a special
scale are awarded as a mark of the Court’s displeasure. I
concluded, in the case of the dismissal
application, not to order
costs on a special scale, but there is a feature in this application
which has swayed me differently.
It is that the plaintiff herself is
being severely prejudiced by the conduct of her attorney. Although
she is not without remedy,
in that she is able to institute action
against her attorney for any loss she may have suffered, such an
action is more difficult
than the action she had embarked upon to
begin with. She now has to prove not only the elements of her
original cause of action,
but now also in addition that her attorney
was negligent.
78 I express no
opinion on the latter issue that as it would be inappropriate. But
it is, I believe, appropriate to take that into
account when
considering the appropriate costs order. In my view, having regard
to these considerations, the costs should be on
the scale as between
attorney and client.
79 In the result I
make the following orders:
1. The application
by the plaintiff for rescission of the judgment of 5 December 2012
under Case No. 2012/28210 is dismissed.
2. Attorney Thesia
Selamolela is directed to pay the costs of the application de bonis
propriis.
3. The application
by the first and second defendants for the dismissal of the
plaintiff’s action under Case No. 2012/28210
is granted, and
the plaintiff’s action is dismissed.
4. The costs of the
application by the first and second defendants to dismiss the
plaintiff’s action are to be paid by attorney
Thesia Selamolela
de bonis propriis, on the scale as between attorney and client.
WHG VAN DER LINDE
ACTING JUDGE OF
THE HIGH COURT
For the 1st &
2nd Defendants’: Adv. M Majozi
Instructed by:
Webber Wentzel
1st & 2nd
Defendants’ Attorneys
10 Fricker Road
Illovo Boulevard
Johannesburg
Tel. 011 –
530 5993
Ref: Merlita
Kennedy/Rupert Candy/2319371
For the
Plaintiff: Adv. TJ Magano
Instructed
by:Selemolela Attorneys
9th Floor,
Mansion House
132 Market Street
Johannesburg
Tel.: 011 –
333 7600
Ref: TM
Selamolela
Date argued:
Monday, 31 August 2015
Judgment
delivered: Friday, 11 September 2015