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[2020] ZAGPJHC 332
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Engen Petroleum Limited v Blue Waves Holdings (Pty) Limited and Another (9543/2019) [2020] ZAGPJHC 332 (28 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
9543/2019
DATE
:
28
th
August 2020
In
the matter between:
ENGEN
PETROLEUM
LIMITED
Applicant
and
BLUE
WAVES HOLDINGS (PTY)
LIMITED
First Respondent
PALMRIDGE
MOTORS (PTY) LIMITED
Second Respondent
Coram:
Adams J
Heard
:
27 August 2020
Delivered:
28 August 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
system of the GLD
and by release to SAFLII. The date and time for hand-down is deemed
to be 13h00 on 28 August 2020.
Summary:
Civil procedure – opposed applications –
answering affidavit by second respondent in support of applicant’s
case
– no prohibition against same – filing of additional
affidavits in the discretion of the court – considerations
of
fairness, equity and the interest of justice –
ORDER
(1)
The second respondent's answering affidavit
dated the 26
th
of September 2019
is received and admitted
into evidence.
(2)
The first respondent, if it deems it
necessary, is granted leave to reply to the second respondent’s
aforementioned answering affidavit by filing a
supplementary answering affidavit within fifteen court days from date
of this order.
(3)
The applicant shall thereafter and within
fifteen court days from date of the filing of the first respondent’s
supplementary
answering affidavit file its replying affidavit in
response to the first and second respondents’ answering
affidavits and
the first respondent’s supplementary answering
affidavit (if any).
(4)
In the event of the first respondent
failing to file a supplementary answering affidavit as envisaged in
par (2) above, then the
applicant shall file its replying affidavit
as envisaged in par (3) above on or before the date on which such
answering affidavit
would have fallen due had the first respondent
filed its supplementary answering affidavit.
(5)
The costs of this interlocutory application
shall be in the course of the main application.
JUDGMENT
Adams
J:
[1].
This is an
opposed interlocutory application by the applicant in the main
application for an order giving directions in the main
application,
in which the parties are at loggerheads as to the further conduct of
the main application and the proceedings to be
followed. The main
application appears to have lost its way in that the parties are at
odds with regard to the way in which the
processes in the application
are to be progressed in order to bring the motion to finality. There
is also a dispute between the
applicant and the first respondent as
to the nature of the second respondent’s answering affidavit
and whether or not same
should, as contended by the first respondent,
be treated and regarded as
pro
non scripto
.
[2].
In this
application, the applicant seeks an order declaring that the second
respondent’s answering affidavit be accepted into
evidence and
that the parties file subsequent responsive affidavits to deal with
the issues raised in that affidavit. The first
respondent opposes the
interlocutory application mainly on the basis of a rather rigid and
inflexible interpretation of the applicable
rules and on the basis of
other technical defences.
[3].
In sum, the first respondent opposes this
application on the basis that the second respondent’s answering
affidavit, which
was delivered after the delivery by the first
respondent of its answering affidavit, supports the applicant’s
case in the
main application. This, so the first respondent contends,
prejudices it and is not procedural – the second respondent
should
have been joined as an applicant in the main application and
should not have been cited as a second respondent. Let me say at the
outset that I have difficulty in understanding the first respondent’s
reasoning and to follow the logic of its argument,
especially if
regard is had to the fact that the applicant does not claim any
relief against the second respondent, but cited the
latter because it
may possibly have an interest in the outcome of the application. All
the same, I can think of no reason or legal
principle which prohibits
a respondent from joining issue with an applicant in an application.
There is just no legal basis for
the first respondent’s
objection to the second respondent’s answering affidavit.
[4].
In the main
application, the applicant, who is the registered owner of immovable
property on which the first respondent conducts
the business of a
filling station and other ancillary businesses, seeks an order
evicting the first respondent from the said property.
The applicant
bought and acquired the property from the second respondent and took
transfer on the 31
st
of August 2017. The applicant alleges that the first respondent is in
unlawful occupation of the premises. The first respondent
denies this
and avers that it occupies the property in terms of and pursuant to a
valid lease agreement which is still in force
and remains extant for
the foreseeable future. This is the crux of the main application and
it is on this aspect of the matter
that the applicant is supported by
the second respondent in its answering affidavit. The first
respondent vehemently objects to
the second respondent’s
answering affidavit and does so in emotive language. So, for example,
the first respondent in its
answering affidavit avers that the
applicant ‘… instead of combining with the second
respondent as applicants (first
and second applicants), decided to
attempt to disguise a wolf in sheep’s clothes, and inserted the
second respondent as such’.
[5].
I have my
reservations about the appropriateness of the use of such emotional
language in court papers, but I express no view in
that regard. What
is clear to me is that the first respondent’s objection to the
filing by the second respondent of its answering
affidavit on this
ground is devoid of any factual or legal basis.
[6].
The main
application was issued by the applicant on the 14
th
of March 2019 and was served on the first and second respondents on
the 15
th
of March 2019. The first respondent delivered notice of intention to
oppose on the 25
th
of March 2019. On the 30
th
of May 2019 the applicant delivered a supplementary founding
affidavit to correct a mistake in its original founding papers, which
resulted in a few minor skirmishes between the applicant and the
first respondent. On the 20
th
of August 2019, some six months after the application had been served
on it, the first respondent filed its answering affidavit
and on the
26
th
of September 2019 the second respondent delivered its answering
affidavit in which the averments made by the first respondent in
its
answering affidavit are dealt with in addition to addressing issues
raised by the applicant in its founding affidavit. It is
this latter
answering affidavit which is of concern to the first respondent, but,
as already indicated, in my view, there is no
legal basis for such
objection to the said affidavit and its contents.
[7].
As can be
seen, the answering affidavits by both respondents were delivered out
of time and there was non-compliance with the time
limits imposed by
the Uniform Rules of this Court. None of the parties do however
seriously take issue with this aspect of the
matter. There appears to
be no prejudice to any of the parties as a result of such
non-compliance and, in the context of the matter,
condonation of the
late filing of the affidavits by parties can and should be granted.
[8].
The second
respondent is fully entitled to file an answering affidavit and, in
my view, the first respondent has no right to take
issue with the
case put forward by the second respondent in its answering affidavit.
The main purpose of an answering affidavit
is to deal with the
allegations contained in the applicant’s founding affidavit,
and if that entails agreeing and / or supporting
the applicant’s
case, then so be it. There is no legal bar to such. The second
respondent is a respondent in the applicant’s
application and
there is no
lis
between the first and second respondents. Moreover, it is trite that
applications should be adjudicated upon all the facts relevant
to the
issues in dispute and if the averments in the second respondent’s
answering affidavit assist in that regard, then
this underlying
objective is achieved.
[9].
I am therefore
of the view that the applicant’s request that it be declared
that the second respondent’s answering be
admitted as evidence
should be granted.
[10].
During the
hearing of the interlocutory application, Mr Broodryk, who appeared
on behalf of the first respondent, also contended
that the court
should not allow the filing of further affidavits outside of the
three sets normally allowed in motion court proceedings.
This
submission also links in with the first respondent’s main
objection to the second respondent’s answering affidavit,
which, so the first respondent contends, is in fact a replying
affidavit on behalf of the applicant. For the reasons alluded to
supra
,
I am of the view that there is no merit in that contention.
[11].
There are
normally three sets of affidavits in motion proceedings. The court
will exercise its discretion in permitting the filing
of further
affidavits. In exercising its discretion the court should have regard
to the fundamental consideration that a matter
should be adjudicated
upon all the facts relevant to the issues in dispute. It is for the
court to exercise the discretion and
the parties should obtain the
leave of the court to file such further affidavits. That is what the
applicant aims to accomplish
in this interlocutory application.
[12].
I am of the
view that
in
casu
special circumstances exist which warrant granting the parties leave
to file further affidavits if they deem it necessary. In that
regard,
I am of the view that the first respondent should be allowed an
opportunity to deal with the averments contained in the
second
respondent’s answering affidavit. I do not however believe that
the second respondent should be allowed another bite
at the
proverbial cherry. No case has been made out for such an order. In
any event, the second respondent has given no indication
that it
requires the leave of this court to file further affidavits. If it
did, it would no doubt have approached the court for
such relief.
[13].
I am satisfied
that the applicant has made out a case for some of the relief sought.
Cost
[14].
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there be good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson
, 1951(3) SA 438 (C) at 455.
[15].
In this matter and having regard to the
facts, it can be said that in a way the applicant, who is
dominus
litis
requests an indulgence from the
court. On the flipside, it can be said that the first respondent in
opposing the application acted
unreasonably. In the circumstances, I
am therefore of the opinion that the costs of this interlocutory
application should be in
the course.
Order
In
the result, I make the following order:
(1)
The second respondent's answering affidavit
dated the 26
th
of September 2019
is received and admitted
into evidence.
(2)
The first respondent, if it deems it
necessary, is granted leave to reply to the second respondent’s
aforementioned answering affidavit by filing a
supplementary answering affidavit within fifteen court days from date
of this order.
(3)
The applicant shall thereafter and within
fifteen court days from date of the filing of the first respondent’s
supplementary
answering affidavit file its replying affidavit in
response to the first and second respondents’ answering
affidavits and
the first respondent’s supplementary answering
affidavit (if any).
(4)
In the event of the first respondent
failing to file a supplementary answering affidavit as envisaged in
par (2) above, then the
applicant shall file its replying affidavit
as envisaged par (3) above on or before the date on which such
answering affidavit
would have fallen due had the first respondent
filed its supplementary answering affidavit.
(5)
The costs of this interlocutory application
shall be in the course of the main application.
________________________________
L R ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD ON:
27
th
August 2020
JUDGMENT DATE:
28
th
August 2020
FOR THE APPLICANT:
Adv S Aucamp
INSTRUCTED BY:
Govender Patel Dladla Attorneys,
Johannesburg
FOR
THE FIRST RESPONDENT:
Attorney
J Broodryk
INSTRUCTED
BY:
J
Broodryk Attorneys, Pretoria
FOR
THE SECOND RESPONDENT:
No
appearance
INSTRUCTED
BY:
No
appearance