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[2020] ZAGPJHC 326
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Nkala and Another v Dlodlo (16715/18) [2020] ZAGPJHC 326 (28 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case
number :
16715/18
IN THE MATTER BETWEEN:
SUKOLUHLE
THANDO
NKALA
First Applicant
HERBERT
NKALA
Second Applicant
and
MOLEFE
RUFARO MTHULISI DLODLO
Respondent
REASONS FOR ORDER IN TERMS OF RULE
45(1)
BHOOLA AJ:
Introduction
[1] In the above matter enrolled as an
urgent application on 12 August 2020 I granted the following order:
1. The application is enrolled as
an urgent application, the non-compliance with the Rules are condoned
and the forms, service and
ordinary time periods provided for in the
Uniform Rules of Court are dispensed with.
2. The variation application under
the above case number (presently provisionally set down for 17 August
2020) is stayed pending
the outcome of the:
2.1. stay application launched by
the Applicants on 25 May 2020 under the above case number (attached
to the founding affidavit
as annexure “A”);
2.2. rule 47(3) application
launched by the Applicants on 21 July 2020 under the above case
number (attached to the founding affidavit
as annexure “B”);
and
2.3. the application to compel
heads of argument and practice note launched by the Respondent on 20
May 2020 under the above case
number (attached to the founding
affidavit as annexure “D”).
3. The Respondent is to pay the
costs of this application.
[2] These are my reasons for the
order.
Non-appearance
and late filing of answering affidavit
[3]
At the commencement of the hearing of the matter by videoconference
there was no appearance from the respondent. Although he
had filed a
notice of intention to oppose the application no answering affidavit
had been filed. After confirming with counsel
for the applicants
whether they had received any communication from the respondent as to
his intention to participate in the videoconference,
and being
assured that none had been forthcoming, I proceeded to hear the
matter as an unopposed application. When I had granted
the order I
was informed that the respondent was trying to join the
videoconference hearing and had just emailed his answering
affidavit
to the applicants' attorneys. I indicated that I would hear him to
explain the situation. I proceeded to hear the respondent
and
indicated to him that I had already granted the order on an unopposed
basis in the absence of an answering affidavit being
filed. He had
given no prior indication that an answering affidavit would be filed
and it was in fact due on 7 August 2020. He
confirmed that he had
just managed to email them to the applicant's attorneys as a result
of technical difficulties. I advised
him that the answering
affidavits were filed after the order had already been granted and I
was not able to assist him but that
there were available remedies he
could exercise. He promptly served notice of application for leave to
appeal the order I granted
on 12 August 2020.
Background
and urgency
[4]
This matter has a long history as a result of the acrimony between
the parties. In 2018 an
actio communi dividundo
was instituted
by the first applicant and this court granted an order. The second
application is her father. The respondent instituted
proceedings to
vary the
actio
order in September 2019 ("the variation
application"). The first applicant brought a counter-application
seeking dismissal
of the variation application, and seeking
inter
alia
an order restraining the respondent from instituting any
further proceedings. Since then the respondent has brought at least
five
urgent or interlocutory applications to this division in respect
of substantially the same or similar issues, all of which have
resulted in attorney and client costs being awarded against him.
In her founding affidavit the first applicant states that
there are
currently five unpaid costs orders against the respondent emanating
from this court and he has been issued with bills
of costs but has to
date not made payment.
[5]
The applicants brought an application on or about 25 May 2020, ("the
stay application"), seeking an order that all
current and future
proceedings launched by the respondent under the above case number
and case number 3537/2017 be stayed pending
payment by the respondent
of all costs orders made against him in these and other matters by
this court. The respondent is opposing
this application, which is
still pending.
[6]
On or about 21 July 2020 the applicants also brought an application
in terms of rule 47 (3) ("the rule 47(3) application"),
which required the security requested from the respondent to be
furnished and the proceedings under the above case number stayed
until such security is provided. In this application ancillary relief
is also sought to the effect that if the respondent fails
to furnish
such security the proceedings should be dismissed as provided for in
rule 47(3). The respondent is likewise opposing
this application. The
respondent's answering affidavit is due on 17 August 2020.
[7]
Despite the stay and rule 47(3) applications being pending, on 28 May
2020 the respondent notified the applicants attorneys
by way of email
that the variation application had been set down for 27 July 2020.
Due to the fact that the variation application
could not proceed in
light of the pending stay application the applicants instructed the
attorneys on a semi-urgent basis to have
the stay application heard
earlier then initially anticipated, i.e. before 27 July 2020. An
urgent application was launched and
set down for hearing on 14 July
2020, and served on the respondent on 25 July 2020.
[8]
The respondent subsequently removed the variation application from
the roll and the semi-urgent stay application was accordingly
also
removed and was to proceed in the ordinary course. The first
applicant states that curiously, and despite the above incident
apparently constituting an acknowledgement by the respondent that the
variation application could not be heard before the determination
of
the stay application the respondent continued to serve notices of set
down purportedly enrolling the variation application on
the opposed
roll. Clearly the stay application, the rule 47(3) application and
the interlocutory application need to be heard first
and the outcomes
thereof will determine weather the variation application will even
proceed or whether the respondent must first
pay the outstanding
costs orders and furnish security to the applicants. It is clear that
the respondent's intention is to have
the variation application heard
prior to these other applications.
[9]
There is also currently a pending opposed interlocutory application
brought by the respondent to compel the delivery of the
heads of
argument and a practice note in respect of the variation application
("the interlocutory application"). The
applicants have
raised a point of law in opposition to this application on the basis
of the pending stay application and rule 47(3)
applications. This
application is yet to be determined and it will also determine
whether the variation application should proceed.
[10]
Despite the various pending and interlocutory applications, first
applicant states in her founding affidavit that the respondent
persists in serving notices of set down on the opposed roll for
hearings of the variation application. The latest notice of set
down
served by the respondent indicates that the matter will be heard on
17 August 2020. The first applicant also states that the
respondent
somehow manages to enrol matters without following due process as a
result of which the applicants are forced to incur
costs and on each
occasion the matters are unable to proceed due to the respondent's
underhand conduct. This conduct constitutes
an abuse of this court's
process.
[11]
In this urgent application the applicants seek to urgently stay the
hearing of the variation application pending the outcome
of the stay
and rule 47(3) applications, alternatively that the stay and rule
47(3) applications be heard on an urgent basis prior
to the enrolment
of the variation application on 17 August 2020. The first
applicant states that it can only be assumed that
the variation
application will proceed on 17 August 2020, as the respondent has set
it down for hearing, and the applicants will
be forced to again incur
costs to argue for a postponement in light of the pending stay and
rule 47(3) applications. In order to
limit costs and to prevent the
burdening of this court's roll the applicants seek assistance with
staying the variation application,
or, should this court be so
inclined, finally dispensing with the stay and rule 47(3)
applications in order that the respondent's
continuous use of
irregular process is discontinued.
[12]
The first applicant alleges in her founding affidavit that this
application is urgent. They allege that they are inundated
on a
weekly and even daily basis with legal process from the respondent.
They are forced to instruct their attorneys to deal with
such process
and continue to incur legal costs. The respondent is vexatious
litigant and an application to declare him as such
with ancillary
relief is currently pending under the above case number. Furthermore,
the respondent as a lay litigant makes consistent
procedural errors
at the expense of the applicants. For instance, he persists in
enrolling opposed motions on the unopposed roll
(the facts relating
to this are set out in the stay and rule 47(3) applications) and this
results in applicants incurring costs.
In addition, costs have been
awarded against him by the court on numerous occasions in urgent
applications he has brought but he
has refused to pay these costs.
On the last occasion on 25 June 2020 the respondent enrolled the
interlocutory application
on the opposed roll, and it was removed
with costs granted against him in the unopposed court. Another
example is that the respondent
filed two different sets of heads of
argument and practice notes in the variation application as well as
two different notices
of set down. This led to the applicants
bringing an application to set aside the notices as constituting
irregular proceedings.
[13]
The applicant submits that before the respondent is permitted to
enrol and proceed with the variation application he should
be ordered
to pay the costs due to the applicants as a result of previous court
orders, and that his conduct in persisting with
various attempts to
set down the variation application simply constitutes abuse of this
court's process. The applicants have suffered
prejudice as a result
and will suffer irreparable harm should they continue to face forced
attempts to set the matter down and
incur costs at each stage in
circumstances in which he is yet to make payment of costs orders
granted against him.
[14]
The latter relief sought in this application i.e. that the stay and
rule 47(3) applications be dispensed with prior to the
impending
variation application, is not appropriate at this stage, but I am
nevertheless satisfied that this application should
be urgently
heard. I am further satisfied that the order should be granted given
the conduct of the respondent as set out in the
founding affidavit,
with costs against the respondent given the filing of his notice of
opposition to this application and failure
to take further action
except at a belated stage with no appropriate explanation.
_______________________________
U. BHOOLA
Acting Judge of the High Court of
South Africa
Gauteng Local Division, Johannesburg
Date
of hearing: 12 August 2010. Heard by videoconference as per the
Consolidated Directive of the Judge President of 11 May extended
to
15 August 2020.
Date
of reasons : 28 August 2020 . Reasons for order issued and emailed to
parties on 28 August 2020.
Appearance:
Counsel
for the applicants : R Blumenthal
Instructed
by :Ramsay Webber Inc.
For
the respondent : No appearance