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[2016] ZAGPJHC 65
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Ni-Da Transport (Pty) Ltd v Macsteel Service Centres SA (Pty) Ltd (A3099/15) [2016] ZAGPJHC 65 (30 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A3099/15
DATE:
30 MARCH 2016
In
the matter between:
NI-DA
TRANSPORT (PTY)
LTD
...........................................................................................
Appellant
And
MACSTEEL
SERVICE CENTRES SA (PTY)
LTD
..........................................................
Respondent
J
U D G M E N T
MASHILE
J:
[1]
On 21 February 2
014, the court
a quo
declined to grant an
application by the Appellant for the postponement of the trial.
Having refused the postponement, the
court
a quo
subsequently
gave judgment against the Appellant. It was that judgment that
became the subject of a rescission application
on 4 March 2015.
During the hearing, the court
a quo
upheld two points
in
limine
raised by the Respondent and dismissed the rescission
application.
[2]
The court
a quo
dismissed the application for the rescission
of the judgment granted on 21 February 2014under the following
factual background:
2.1
The trial was set down to be heard on 21 February 2014. Mr
Ferdinand Labuschagne (“Labuschagne”),
the then legal
representative of the Appellant, fell sick with pneumonia on 20
February 2014 and was booked off from work for 20
and 21 February
2014;
2.2
Consequently, Mr Marais (“Marais”) from a firm of
attorneys in Vereeniging that
acted as correspondents for Labuschagne
could not proceed with the trial on 21 February 2014 as he was not
conversant with the
facts of the matter;
2.3
Labuschagne instructed Marais to seek a postponement of the matter.
Marais was to
advance, as a reason for such postponement,
Labuschagne’s illness that resulted in him being booked off for
20 and 21 February
2014 and was to present a medical certificate to
court as proof;
2.4
Marais presented the medical certificate and argued that the matter
be postponed as a result
of Labuschagne’s inability to attend
court due to his illness. The court
a
quo
considered the reasons presented in favour of the postponement
,
however
and
declined
to grant the postponement. Since there was no one who could
continue with the trial
on
behalf
of the Appellant, the court proceeded to enter judgment against the
Appellant;
2.5
Labuschagne apparently stopped practicing as an attorney on 31 August
2014 and took up new
employment with the Appellant on 1 September
2014;
2.6
For the sake of completeness, I mention that the trial was set down
for hearing on 2 September
2014. This was for the determination of
the quantum of compensation payable to the Respondent, liability
having been disposed of
by the judgment granted against the Appellant
on 21 February 2014. On 2 September 2014 the trial was
postponed to 18 September
2014.
2.7
It was not until 5 September 2014 during a telephonic conversation
with Marais that he discovered
that the merits of the Respondent’s
claim had been disposed of on 21 February 2014 and that the only
outstanding issue was
the quantum of the Respondent’s claim;
2.7
On 18 September 2014 and having had regard to the circumstances under
which judgment was
granted against the Appellant, the court
a quo
granted a postponement and afforded the Appellant an opportunity to
launch a rescission application on or before 2 October 2014;
2.8
The Appellant complied with the order of the court
a quo
and
the hearing of the rescission application ultimately came before the
court
a quo
on 4 March 2015. At the commencement of the
hearing of the rescission application, the Respondent took two
preliminary points
and they were that:
2.8.1
The founding affidavit did not meet the requirements of a valid
affidavit as are contained in Regulation
3(1) of
the Regulations made under section 10 of the Justices of the Peace
and Commissioners of Oath Act, Act No. 16 of 1963, which
are the
regulations which govern the administration of an oath or
affirmation. The Regulation stipulates that the deponent
shall
sign the declaration in the presence of the commissioner of oaths;
2.8
.
2
The replying affidavit was out of time as it did not comply with the
provisions of the Magistrates’ Court Rule
55(1)(g) and (h)
dealing with time lines for the filing of opposing and replying
affidavits. It being common cause that the
Respondent served
its answering affidavit timeously, t
he replying affidavit was
served on 14 November 2014 instead of 6 November 2014 and was not
accompanied by an application for condonation
enlightening the court
of the circumstances surrounding the late filing of the application.
2.9
The court
a quo
upheld the two preliminary points which meant
of course that the notice of application for the rescission
application was not supported
by a founding affidavit and that there
was no replying affidavit to the answering affidavit;
2.10
An inexorable upshot of the upholding of the two points was that the
rescission application had to fail.
The Appellant is now
appealing to this court to have the decision of the court
a quo
overturned on the grounds that:
2.10.1
The court
a quo
erred by not accepting the illness of
Labuschagne, the legal representative of the Appellant, as a
legitimate excuse for the postponement
of the matter on 21 February
2014. The court
a quo
’s refusal to postpone the matter
was despite the fact that Labuschagne’s correspondent, Marais,
presented a medical
certificate to court as proof that he
(Labuschagne) was booked off for 20 and 21 February 2014 and could
therefore not attend court;
2.10.2
The court
a quo
erred by accepting that there was a legal
basis to deny the postponement of the case on 21 February 2014;
2.10.3
The court
a quo
erred by granting default judgment against the
Appellant on 21 February 2014;
2.10.4
The court
a quo
erred on 4 March 2015 by upholding the
Respondent’s point
in limine
that the Appellant’s
replying affidavit, which was filed 16 days after the filing of the
opposing affidavit could not be
considered , more specifically, in
light of the fact that there was no formal objection or notice in
terms of Rule 60(A) against
the filing of such opposing affidavit;
2.10.5
the court
a quo
erred on 4 March 2015 by finding that the
Appellant’s founding affidavit was not properly before court
and could not be considered
in light of the fact that seemingly the
deponent signed on 29 September 2014 while seemingly the
commissioner of oaths signed
on 26 September 2014 and thereby making
the commissioning of it invalid;
2.10.6
The court
a quo
erred by not accepting that the difference in
dates was a mere typing error;
2.10.7
The court
a quo
erred by dismissing the Appellant’s
application for rescission of judgment with costs on 4 March 2015.
[3]
The Respondent submitted that the court
a quo
was right in
ignoring the replying affidavit and finding that no proper founding
affidavit was delivered in support of the rescission
application.
In the event that this Court finds that the court
a quo
erred
in not accepting the founding affidavit, the Respondent will maintain
that the replying affidavit should not be taken into
account. The
rescission application must be adjudicated by having regard to
the founding affidavit and the answering affidavit
only.
[4]
The Respondent submitted further that if this Court is to determine
the appeal on the basis that there was no replying affidavit,
the
Appellant failed to satisfy the elements of good cause, comprising
willful default, a
bona fide
defence and
bona fides
.
[5]
Lastly, the Respondent submitted that the issue of the postponement
is so interwoven with the rescission such that the matter
can be
dispensed with by having regard to the rescission application.
[6]
The issues for determination are to establish whether or not the
court
a quo
:
6.1
Was correct in refusing to grant the Applicant postponement on
account of Labuschagne’s sudden inability to attend court
on
account of illness which was due to him being booked off for 20 and
21 February 2014;
6.2
Was correct to uphold the two preliminary points raised by the
Respondents on 4 March 2015.
[7]
I shall deal with the issues in the order they appear above.
The Respondent has pointed out that insofar as the court
a quo
’s
refusal to postpone the matter on 21 February 2014 is concerned, the
Appellant has failed to comply with Magistrate’s
Court Rule
51(8)(b), which provides that “
a statement referred to in
Rule 51(8)(a) shall become part of the record before the appeal
court
.”
[8]
Strangely the Appellant did not contest this allegation in any
manner. The wording of the Rule is peremptory, which is
normally an indication that lack of observance should attract
intolerance from the court. In consequence, the court accepts
as a fact that indeed the Appellant did not do so. For that
reason, this Court cannot consider that issue. In the
circumstances the Court accepts that the postponement application was
correctly dismissed by the court
a quo
.
[9] Having said that
and for what it is worth, the Court holds the view that having regard
to the fact that Labuschagne fell ill
the day before he was to appear
before in the court
a quo
in Vereeniging and that he was
booked off for both days, the court was wrong in not granting the
postponement. The facts
in this matter are different from a
situation where one falls sick three or two weeks before the
hearing. In this latter
instance, a party can still arrange to
have a different legal representative to appear. It can hardly
be stated that the
Appellant had sufficient time to arrange to be
represented by an alternative legal representative in this instance.
In this
regard,
Cosmetic Distributing Co. v
Industrial Products
1944 WLD 201
is ‘on all fours’
with
the current case. Contrast the
Cosmetic
case supra with
CENTIRUGO A G v FIRESTONE (SA) LTD
1969 (3)
SA 318
(T)
where the court dismissed a postponement application
on the basis that the applicant had sufficient time to arrange for
other legal
representation, but failed to do so.
[10]
However is the present circumstances because the Appellant failed to
comply with Magistrate’s Court Rule 51(8)(b), the
court
a
quo
cannot be faulted for the dismissal of the application for
postponement on 21 February 2014, I turn to consider the second
issue,
which is twofold – the founding affidavit does not
comply with the pertinent Regulations and that the replying affidavit
was out of time in that it was filed after 16 days instead of on or
before 10 days from the date of the filing of the Respondent’s
answering affidavit.
[11] It is common
cause that the replying affidavit was filed outside of the time
prescribed in Magistrate’s Court Rule 55(1)(g)
and (h) being
sixteen days after due date and that the replying affidavit was not
accompanied by a condonation application when
it was finally filed.
It is convenient to deal first with the non-compliance relating to
the replying affidavit. In this
regard, the Appellant has submitted
that the court
a quo
erred by not considering the replying
affidavit exclusively on the ground that it was filed out of time.
[12] In an endeavor
to shore up that view, the Appellant referred this Court to the case
of
PANGBOURNE PROPERTIES LTD v PULSE MOVING CC AND ANOTHER
2013
(3) SA 140
GSJ where this Court was seized with the same question but
in the context of the high court. I shall revert to this case
below but for now, it should suffice to state that the facts in that
matter are distinguishable from the instant case.
[13] Insofar as
condonation of the late filing of the replying affidavit is
concerned, the Appellant asserted that a condonation
application was
not necessary because the Respondent had failed to invoke the
procedure laid down in Magistrate’s Court Rule
60A. That
being the case, the late filing was obliquely condoned. In this
respect it is instructive to cite Magistrate’s
Court Rule
60A(1), which stipulates:
“
A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.”
[14]
Magistrates’ Court Rule 60(5)(a) provides that:
“
Any
time limit prescribed by these rules, except the period prescribed in
51(3) and (6), may at any time, whether before or after
the expiry of
the period limited, be extended –
(i)
By the written consent of the opposite party;
(ii)
If such consent is refused, then by the court on application and on
such terms as to costs and otherwise as it may deem fit.
[15]
In the
Pangbourne
case
supra
, the court stated that
where a party is dealing with the late filing of an affidavit by
another, such party ought to utilize Uniform
Court Rule 30A.
The Respondent has submitted that the
Pangbourne
case supra
must be differentiated from the current for various reasons.
[16]
Some of the reasons referred to are that Rule 60(5) of the
Magistrate’s Court Rules prescribe an exact procedure to which
parties ought to adhere insofar as extension of time limits are
concerned. It is precisely for that reason that the Rule
is so
dictatorial that it ought to be satisfied before a court can be
charged with the requisite jurisdiction to adjudicate upon
a
condonation application.
Premier Music Saloon and another v
Loggie Bros
1948 (2) SA 421
(N); Kismet Cycle Works (Pty) Ltd v
Abrahamson Ltd
1961 (3) SA 33
T
[17]
The innate power of the high court to protect and regulate its own
process and the Magistrate’s Courts’ limitations
imposed
by legislation drew the court’s attention in
Kondlo v
Eastern Cape Development Corporation
[2014] 2 All SA 328
(ECM)
where
it articulated the subject in the following terms:
“
[42]
With respect, I do not believe the judgments referred to support such
a proposition. Whereas the High Court has a wide and
general power of
condonation under Rule 27 of the High Court Rules, the Magistrates’
Court’s power of condonation can
only be exercised in the
circumstances and in the manner prescribed by a particular rule, and
only within the four corners of that
specific rule. Reliance on High
Court judgments in the exercise of its discretionary powers by a
Magistrates’ Court to order
condonation can therefore be
misleading and misplaced, and I do not believe the judgments referred
to by the learned authors constitute
authority for the proposition
that the Magistrates’ Court have any powers of condonation of
form or substance of the Rules.”
[18]
Accordingly, the court’s reference to Uniform Rule of Court 30A
in the
Pangbourne
case must be appreciated in the context of
the High Court’s exercise of its inherent power to control and
protect its process
as outlined in the
Kondlo
case
supra
.
In short, that power cannot, as a result of what is delineated in
legislation, be extended to Magistrates’ Court.
The
Appellant’s reference to the
Pangbourne
case
supra
is therefore misguided and stands to be rejected. The court
a
quo
, was in the result correct to refuse to accept the replying
affidavit as its late filing was neither condoned by the Respondent
nor buttressed by a condonation application
[19]
I agree with Counsel for the Respondent that once this Court resolves
to exclude the replying affidavit, the rescission application
can be
decided by reference only to the founding and the answering
affidavits. Insofar as failure of the founding affidavit
to
comply with Regulation
3(1) or of the regulations
governing the administration of an oath or affirmation, which
provides that the deponent shall sign the
declaration in the presence
of the commissioner of oaths is concerned, the Appellant argues that
the court
a quo
should have ruled that the regulation is directory and accepted that
the discrepancy in the dates of signature by the commissioner
of
oaths and the deponent was a mere typing error.
[20]
The peremptory nature of the Regulations persists even if one
determines the issue in terms of Regulation 4(1) as the Appellant
does. Regulation 4(1) of the administering of an oath or
affirmation provides:
“
4.1
Below the deponent’s signature or mark the commissioner of
oaths shall certify that the deponent
has acknowledged that he knows
and understands the contents of the declaration and shall state the
manner, place and date of taking
the declaration.”
The
peremptory nature of the regulation is indicated by the use of the
word, ‘shall’. Regulation 3(1) too uses
the same
word to deliver the same message.
[21]
The Appellant’s contention that the court
a quo
should
have accepted the explanation contained in the replying affidavit
would probably hold if the affidavit were part of the
papers before
this Court. Now that this Court, like the court
a quo
, has
excluded it, the explanation describing the circumstances under which
the discrepancy of the dates came about is inaccessible
to this
Court, and the founding affidavit must be what it purports to be.
Accordingly, on the face of it, the commissioner of oaths
signed it
on 26 September 2014 while the deponent appended his signature on 29
September 2014, three days later.
[22]
Taking the founding affidavit as is, it is defective because it does
not comply with the requirements for the making of valid
affidavits
as contained in Regulations 3(1) and 4(1) of the Administration of an
Oath or Affirmation. I differ sharply with
the Appellant’s
assertion that the Regulations are merely directory. It is beyond my
comprehension why, on the face of such
strongly worded regulations,
any person would venture to argue that they are not peremptory. The
dates of 26 and 29 September 2014
shown as dates on which the
commissioner of oaths and the deponent respectively signed the
affidavit manifestly expose the invalidity
of the founding affidavit.
[23]
In the absence of the founding and replying affidavits,
PLASCON-EVANS
PAINTS LTD V VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
finds
application. The matter will therefore be determined on facts
as contained in the answering affidavit. Since there
is no
founding affidavit supporting the rescission application, this Court
must shut its eyes to the reasons furnished by the Appellant
why he
failed to attend court on 21 February 2014. Similarly, there is
no good cause for the rescission of the judgment in
the application.
[24]
For the above reason I see no need to consider any of the elements of
good cause because they are not part of this application.
In
the result, grounds 1, 2 and 3 are dismissed merely on a technical
basis – that the reasons for the court
a quo
’s
ruling are not part of the appeal record due to the Appellant’s
failure to comply with Magistrates’ Court Rule
51(8)(b).
With regard to the other grounds, they too fail because of the legal
findings that the court has made in this judgment.
[25]
Against that background I make the following order:
1.
The decision of the court a quo is upheld and the appeal is dismissed
with costs.
B
A MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree,
S
K HASSIM
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances:
For
the Appellant: Mr Marais
Instructed
by: H W Smith & Marais
For
the Respondent: Adv de Beer
Instructed
by: Whalley Van der Linth Inc
Date
of hearing: 02 February 2016
Date
of Judgment:
30 March 2016