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[2016] ZAGPJHC 254
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Ezimbokodweni Mining (Pty) Ltd v Bhp Billiton Energy Coal South Africa Limited (47820/2012) [2016] ZAGPJHC 254 (16 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
47820/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHERS
In
the matter between:
EZIMBOKODWENI
MINING (PTY)
LTD
Plaintiff/
Respondent
and
BHP
BILLITON ENERGY COAL
SOUTH
AFRICA LIMITED
Defendant/
Applicant
JUDGMENT
Van
der Linde, J
[1]
This application began as one by the
defendant for the dismissal of the plaintiff’s claims for
failure to have complied with
two interlocutory court orders, to
furnish responses respectively to a request for further
particulars and to the defendant’s
rule 35 (3) notice, both
granted on 2 August 2016 by Modiba, J. In the event the required
responses were availed on 13 September
2016, when the matter was
enrolled and called, and consequently the defendant no longer moved
for a dismissal of the plaintiff’s
claims.
[2]
The defendant instead moved for costs of
the application, and in addition for an order that the plaintiff be
ordered to furnish
security for costs in the amount of R750 000
in terms of rule 47. The plaintiff opposed the relief claimed. I deal
with these
two issues in turn.
[3]
As to costs of the application, the
plaintiff argued that there had been substantial compliance with the
court orders. This was
said to be represented by the further
particulars dated 26 August 2016, actually delivered, although not
signed by an advocate
or an attorney duly admitted to do so; and the
response to the rule 35(3) also dated 26 August 2016, actually,
although not in
affidavit form.
[4]
I do not believe the submission is sound.
The rule 35(3) response is explicitly required to be on affidavit. If
it is not on affidavit,
there cannot be said to have been a response.
After all, the rule 35(3) response forms part of the discovery
process, and serves
to adumbrate the primary discovery affidavit to
be made under rule 35(2). Although informal discovery is often agreed
upon, this
involves a waiver, and is not what the discovery
obligation entails.
[5]
Rule
21 (3) expressly requires the request and the reply to be signed by
both an advocate and an attorney, or an attorney with rights
of
appearance. If that is not done, there is at best for the plaintiff
an irregular step. But it does not follow, as was argued,
that the
defendant is duty-bound to apply for its setting aside.
[1]
The defendant is not here taking a further step in the proceedings to
towards bringing the litigation to its final conclusion by
having the
disputes determined.
[6]
Instead,
the defendant is actually applying for the claim to be dismissed for
non-compliance with a court order directing compliance
with those
rules. In those circumstances it need not first apply to have the
irregular steps set aside.
[2]
[7]
It follows that in my view the defendant is
entitled to the costs of the application.
[8]
As regards the application for security for
costs, notice was first given in the replying affidavit that at this
hearing the defendant
would be moving for that relief. The plaintiff
has not had the opportunity to answer the assertions that the
defendant relies on
for the relief.
[9]
Moreover,
the replying affidavit says the security would be sought in terms of
rule 47. That rule requires a prior notice to have
been given and
this is a prerequisite.
[3]
That was done, but the period of ten days referred to therein had not
expired by the time the application was moved.
[10]
The fundamental problem remains that of audi alteram partem. The
plaintiff has not had the opportunity to respond to the case
asserted
for security for costs, and accordingly no relief can be granted on
that request.
[11]
In the result I make the following order:
(a)
The plaintiff is directed to pay the costs
of the application.
WHG van der Linde
Judge, High Court
Johannesburg
For
the plaintiff/respondent: Adv.
Reyneke
Instructed
by: Zwiegers Attorneys
2
nd
Floor Dunkeld West Centre
Cnr
Jan Smuts Avenue and Bompas
Johannesburg
Tel:
087 945 2100
Ref:
WBJ Zwiegers/ ZE1
For
the defendants/ applicant: Adv.
Boonzaier
Instructed
by: Cliffe Dekker Hofmeyr Inc
1
Protea Place
Sandown
Sandton
Johannesburg
Tel:
011 562 1146
Ref:
J Witts-Hewinson/20093975
Date
argued: 13 September, 2016
Date
of judgment: 16 September, 2016
[1]
Compare
Erasmus, Superior Court Practice, vol 2, p.D1-230 at footnote 2. See
rule 18(12).
[2]
Ibid,
p.D1-352.
[3]
Compare MV
Rizcun Trader (1)
1999 (3) SA 953
(C).