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[2021] ZAGPJHC 2
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Chongqin Gingxing Industries SA (Pty) Limited v Ye and Others (35962/2020) [2021] ZAGPJHC 2; 2021 (3) SA 189 (GJ) (29 January 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
(1)
REPORTABLE: Yes
(2)
OF INTEREST TO OTHER JUDGES: Yes
Case No.: 35962/2020
In
the matter between:
CHONGQING
QINGXING INDUSTRY SA (PTY) LIMITED Applicant
and
MINGYING YE
First Respondent
PROSPERITY PLASTIC
PRODUCTS (PTY) LIMITED
Second Respondent
ALL OCCUPIERS OF 41
BIRD ROAD AND
81 DUNCAN ROAD,
LILIANTON, BOKSBURG
Third Respondent
LINE METALS (PTY)
LIMITED
Fourth Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and is deemed to
be
handed down about such circulation.
Gilbert AJ:
1.
On 25 January 2021 this matter came before me as
an opposed motion application. I furnished the parties an opportunity
to make submissions
why the matter should not be struck from the roll
as not being ripe for hearing. Having heard those submissions, the
matter was
struck from the roll. I indicated that my reasons would
follow, as would my order in relation to the incidence of costs
arising
from the striking. These are those reasons.
2.
The worldwide Covid-19 pandemic has dramatically
affected nearly every aspect of our lives. The justice system is not
immune and
has had to adapt to the ‘new normal’. This has
necessitated the increased use of electronic solutions to facilitate
the dispensing of justice, not only by way of virtual court hearings
on electronic platforms so as to respect the necessity for
appropriate social distancing but also an accelerated use of digital
/ electronic case management and litigations systems. Whilst
the need
for virtual court hearings may diminish as the concerted effort to
defeat the Covid-19 pandemic progresses, the continued
use of the
electronic case management and litigations systems is likely to stay.
A regression to a increasing archaic paper-based
court file system
would be unfortunate.
3.
Fortuitously
the Gauteng Division, Pretoria and this Division had a head-start. In
the second half of 2019 the electronic case management
and
litigations system, as part of the Office of the Chief Justice’s
Court Online Project, was piloted in these Divisions,
with certain
matters, such as opposed motions, being conducted on the system. With
effect from 27 January 2020, the full implementation
of this
electronic system took effect.
[1]
4.
At the stage, January 2020, it could not have
been imagined how the world would change within three months. The
on-set of the Covid-19
pandemic, and the ‘hard lockdown’
that would follow in March 2021 compelled an accelerated embracing of
the electronic
system.
5.
What would follow were various Practice
Directives in these Divisions to advance the effective use of the
electronic system. These
Practice Directives, with the input from
various professional bodies and role-players, would be refined to
enhance the efficiencies
of the electronic system and to address
shortcomings.
6.
The present prevailing position is as set out in
the Judge President’s Consolidated Directive of 18 September
2020. This refined
or ‘consolidated’ directive was a
product of the experiences of the preceding six month’s
extensive use of the
electronic system.
7.
The
September Consolidated Directive cannot be read in isolation. It is
supplementary to and must be applied together with the Uniform
Rules,
the Practice Manuals of the Divisions
[2]
and such other directives as may be issued from time to time. A
holistic and sensible reading of these documents, aimed at advancing
the efficacy of the electronic system, is required. Legal
practitioners are to embrace the spirit of these procedures. Many
legal
practitioners have done so, working with the judiciary and
Registrar’s staff to iron out teething problems and towards
‘making
the system work’. Other legal practitioners
unfortunately view the procedures as a series of obstacles, which
they with varying
degrees of ingenuity seek to skirt or simply
ignore.
8.
Repeated
appeals have been made by the judiciary to adhere to these
procedures.
[3]
The September
Consolidated Directive also warns of punitive costs orders for
non-compliance.
9.
One of the more important objects of these
procedures is to ensure that a matter is ripe for hearing by the
court. Self-evidently
this prevents judicial resources, legal
practitioner’s efforts and litigant’s monies being
expended on matters that
turn out not to be ready and so are struck
off or removed from the court roll.
10.
Over the years, the procedure has evolved
in seeking to ensure that a matter is ripe for hearing. This included
in relation
to opposed motion applications in what are justifiably
considered as the two busiest High Court Divisions in the country.
Some
years ago, once the usual three sets of affidavits had
been delivered, the opposed motion could be enrolled by the
litigants, typically
on a date of their choosing and with little
regard to the convenience of the court, such as a consideration of
how many matters
had already been set down for the day. To address
this, a limited number of matters was then permitted to be enrolled
on each opposed
roll.
11.
But the problem remained that the opposed roll
ended up with many matters that would not be argued as they would not
be ripe for
hearing by the time the hearing date arrived. One reason
was the then practice only required heads of argument to be delivered
a few days before the hearing, typically in the preceding week. If
heads were not filed by the parties, which often happened, then
the
matter was in danger of not proceeding. But by then the court and the
opposing legal practitioners may have had read the papers
only to
find at roll call that the matter did not proceed.
12.
To
address this, the Practice Manual evolved to its present formulation,
requiring
inter
alia
that it was only after practice notes and heads of argument
[4]
had been delivered by the parties
[5]
in a properly indexed and paginated file
[6]
that an application could be made by the legal practitioners for a
date on the opposed roll. This considerably increased the likelihood
of the matter being ripe for hearing as by and large all the
documents necessary for a determination of the matter were available
in the court file, and so to some extent assisted in reducing the
length of the opposed roll.
13.
That was before the introduction of the
electronic system and the practice directives relating to that
system. The practice directives
do not detract from the laudable
objective of the Practice Manual in seeking to achieve
case-readiness. To the contrary, there
are a number of directives in
the September Consolidated Directive that reinforce the requirement
that the matter be case-ready
before becoming deserving for
allocation on what remains a busy opposed motion roll. For example,
paragraph 94 of the September
Consolidated Directive provides
that “
[m]atters in which an opposed
motion date hearing is sought must contain a full set of all relevant
pleadings and documents in the
uploaded case file”
.
It is clear from the Practice Manual that those documents would
include heads of argument, practice notes and the like.
14.
Before the introduction of the electronic system,
the fact that a paper file existed made it more difficult for legal
practitioners
who had missed the deadlines for filing documents to
‘slip in’ documents, as those files may have been locked
away
separately at a certain stage by the Registrar to minimise such
malfeasances. The Court file may even have been with the allocated
Judge in his or her chambers, which made the file particularly
inaccessible, depending upon the diligence of his or her secretary
in
acting as a gatekeeper to the file. That a paper file existed
reduced, in that instance, the chance of a matter not being ready
for
hearing because a document had been ‘slipped’ in late.
The flipside, of course, was if that if something did need
to be
filed, and which would not jeopardise the case-readiness of the
matter, the file was inaccessible.
15.
The introduction of the electronic system, being
digitally-based, necessitated access being given to legal
practitioners to upload
documents to the electronic court file as it
would be a woefully self-defeating system if the Registrar’s
office was required
to upload the documents. This increased the
opportunity for legal practitioners to upload documents that were out
of time and so
increased the prospects of the matter not being ready
for hearing. It is common that until a few minutes before the
hearing, and
even during the hearing, legal practitioners, uninvited,
upload and effect large-scale changes to the electronic court file,
something
that was unlikely to happen with a paper court file in the
possession of the presiding judge. It is not at all unusual for the
allocated judge (and the legal practitioners preparing for the
matter) to work up the matter in advance, only to find on the hearing
day that the court file is different. The electronic court file is at
risk of being a continually evolving file. This often is
more of a
regression, rather a progressive evolution, as it renders the matter
difficult for a court to get a grip on in preparation
for the
hearing. Indeed, as in this matter, the court file continued to
evolve even after judgment was reserved.
16.
Obviously,
electronic court files cannot be jettisoned but must be advanced.
Legal practitioners must play their part. Various directives
have
developed to address this difficulty. These include the
implementation of a ‘freeze date’
[7]
,
after which no further documents can be uploaded without the
presiding judge’s consent. For example, paragraph 96 of the
September Consolidated Directive provides for example, that “
[w]here
a Judge establishes from the [electronic] audit trail that a
practitioner uploaded documents out of time without condonation
having been granted for such late filing, the matter may be struck
from the roll and a costs order de bonis propriis made be may
against
the errant practitioner”.
17.
As described above, at least of the objects of
these practice directives and procedures is to ensure that the
opposed motion is
ripe for hearing and that judicial resources can be
directed at determining those matters.
18.
It is the context of this background that I can
give my reasons why I struck the present opposed application from the
roll.
19.
The application started out on 3 November
2020 as an urgent application for final relief which included a final
interdict interdicting
certain respondents from removing assets from
premises situated in Boksburg and for the “
commercial
eviction
” of the first and third
respondents from the property. Notably, at least one of the
respondents is a natural person, namely
the first respondent.
20.
The applicant had set itself a formidable task:
to persuade the urgent court in the one of the busiest Divisions not
only to grant
it urgent relief but to do so on an final basis.
21.
The urgent application for final relief was
enrolled for hearing for some five court days later, on 10 November
2020. Although significantly
truncated periods for the delivery of
affidavits was provided for in the notice of motion, the opposing
respondents managed to
deliver and upload answering affidavits by
9 November 2020. The applicant delivered and uploaded its
replying affidavits on
11 November 2020. The respondents also
managed to uploaded heads of argument by 11 November 2020 and the
applicant did likewise
on 12 November 2020.
22.
Although full sets of affidavits had been
delivered, the urgent court on 12 November 2020 declined to hear
the matter. Although
there appears to be some confusion as to whether
the urgent application, to use the words of the applicant in its
practice note,
was “
removed from the
urgent roll for lack of compliance with the practice directive for
urgent matters being heard on Tuesday
”
or whether, as contended for by the respondents, the matter was
rather struck from the roll for lack of urgency with costs,
it is
common cause that the application did not proceed on its merits that
day.
23.
Notwithstanding its lack of success in the urgent
court, what the applicant had managed to achieve, within a period of
some two
weeks, was the delivery and uploading into the electronic
court file of the all three sets of affidavits and heads of argument
by the parties. Ordinarily this would take some months.
24.
On 17 November 2020, anxious for its day in
court, the applicant applied for a date on the ordinary opposed roll.
I assume in favour
of the applicant that as full sets of affidavits
had been filed in the application, with heads of argument, that the
matter was
sufficiently ripe to enable the applicant to make
application to the registrar for a date on the opposed roll. I
emphasise this
because both the Practice Manual and September
Consolidated Directive require this of an applicant, as described
above.
25.
Having so applied for the opposed date, the
applicant represented that the matter was ripe for hearing. As
discussed above, the
whole purpose of the procedures is to ensure
that as far as practically possible a matter was ripe for hearing
before becoming
deserving of allocation on the busy opposed motion
court roll.
26.
Having made that representation, the applicant
must insofar as practically feasible ensure that the application
remains ripe for
hearing. Should the application become no longer
ripe for hearing, then the application should be removed from the
roll. Understandably
there may be instances were recalcitrant
respondents may conduct themselves, with varying degrees of
ingenuity, in an attempt to
render an allocated matter no longer ripe
for hearing and so seek to avoid a hearing. The court will be alive
to these attempts.
But where the applicant itself takes steps that
renders its own matter no longer ready for hearing, it can hardly
complain that
its opposed application is struck from the roll.
27.
This is such an instance.
28.
On 18
November 2020 the registrar of the opposed motion court allocated
25 January 2021 as the opposed hearing date in
this main
application. The applicant’s attorney was not able to inform me
when the applicant learnt from the Registrar that
this date had been
allocated, although it appears from the practice notes that this may
have been on 8 December 2020. What is concerning
is a ‘widely
shared’ note had already been placed on the electronic file by
the Registrar of the opposed motion court
on 18 November 2020.
Legal practitioners are required to look for and have recourse to
these notes.
[8]
29.
Paragraph 109 of the September Consolidated
Directive provides that “
[t]he Applicant
remains dominus litis and is ultimately responsible for the efficient
disposal of the application.”
30.
The applicant, apparently unaware that a date had
already been allocated for the hearing of the application on the
ordinary opposed
roll, launched a second urgent application under the
same case number on 30 November 2020, for hearing in the urgent court
on 15
December 2020. The respondents filed their opposing papers in
the second urgent application on 7 December 2020.
31.
In the second urgent application, the applicant
sought
inter alia
interim access to the premises and an order authorising the statutory
notice required in terms of section 4(2) of the Prevention
of Illegal
Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE”)
in respect of natural persons on the premises.
Presumably, this
latter relief was brought about by the awareness on the part of the
applicant that it would now have to comply
with PIE before it could
secure an eviction order against natural persons who may be residing
on the premises. The respondents
had in their answering affidavits
filed on 9 November 2020 pointed out that the natural persons were
residing on the premises,
including the first respondent.
32.
It is unclear how the applicant intended ensuring
that the requirements of section 4(2) of PIE were going to be
satisfied in good
time so that the eviction application was ready for
hearing on the opposed roll. Perhaps this informed the need to obtain
urgent
relief in the second application in relation to compliance
with PIE.
33.
It is questionable how advisable it was for the
applicant to again be approaching the urgent court for some form of
relief in circumstances
where the main application in any event would
be heard early in the new year. Had the applicant undertaken the
elementary task
of checking the electronic court file, it would have
seen the Registrar’s annotation that an opposed date had
already been
allocated.
34.
The applicant having launched a second urgent
application must have realised that it may be jeopardising the
hearing of the main
application on 25 January 2021 in that such
application may end up rendering the main application no longer ripe
for hearing.
That second urgent application, which has been described
in the papers as an interlocutory application, carried with it the
inevitability
that further papers would be uploaded into the
electronic court file that should have already been complete and
ready for hearing
by 17 November 2020 when the date was applied for.
35.
To the extent that the relief sought in the
second urgent ‘interlocutory’ application was intended to
ensure that the
main application would be ripe for hearing (as
perhaps seeking urgent relief in relation to section 4(2) of PIE),
this was belied
when the applicant elected, upon discovering on 8
December 2020 that an opposed date had been allocated for 25 January
2021, to
then remove that second urgent application from the urgent
roll.
36.
But by then the seeds had been planted by the
applicant that would rapidly grow into a tangle that prevented the
main application
from remaining ripe for hearing. Perhaps the
applicant could have saved the day and withdrawn that second urgent
application, so
that it had no prospects of getting in the way of the
main application. But the applicant did not do so, perhaps because
the respondents
may insist on costs as they had already delivered
their answering affidavits in that second urgent application.
37.
Again,
it is unclear to me why the applicant elected to remove its second
urgent application from the roll, particularly as in doing
so it
should have been readily apparent to the applicant that there was no
prospect that the relief sought in the main application
could be
granted, at least insofar as the natural persons were concerned as
there had been no compliance with section 4(2)
of PIE. It will
be recalled that the urgent relief being sought in the second urgent
application was in relation to section 4(2)
of PIE.
[9]
38.
Upon me making enquiries during the course of the
hearing as to the next development in the procedural chronology of
the matter,
the parties referred to a letter addressed by the
applicant’s attorneys to the respondents’ attorneys on
7 January
2021. This letter was only made available to the court
during or after the course of the hearing on 25 January 2021, and
therefore
the court did not have the benefit of insight into this
letter when reading the court file and preparing for the matter. I
shall
return to this letter later.
39.
When I read the papers in preparation for the
matter, it was unclear to me what relief the applicant would be
seeking of the court
when the matter was called on 25 January 2021.
40.
The applicant had on 18 January 2021
delivered a further practice note recording
inter
alia
that:
“
In light
of the Respondents’ averment in paragraph 48 of their answering
affidavit that there are people residing in the premises,
and to the
extent that it is found that PIE applies, the applicant intends
presenting an amended notice of motion for the Court’s
consideration, seeking, as an alternative to the eviction of all
concerned, an interim interdict confirming the Applicant’s
access to the premises and preventing the respondents from
interfering with the applicant’s business, pending the eviction
of those persons affected in terms of PIE (as addressed in the
Applicant’s replying affidavit). Amended Practice Note and
concise Heads of Argument to this end will be available at the
hearing or for unload or email distribution prior thereto with the
Court’s leave / directive.
”
41.
It should have been evident to the applicant that
in light of this recordal that the matter was in danger of being
found not to
be ripe for hearing. The applicant, by its own
admission, was no longer seeking the relief as sought in its notice
of motion.
But neither had the applicant delivered any amended notice
of motion or application to amend setting out what relief it would be
seeking. And the applicant intended delivering further practice notes
and heads of argument, and which would presumably deal with
the
substantially different relief that would only be moved for on the
date of the hearing, and then only in the alternative depending
on
whether PIE applied. But the applicant on its own showing in
launching the second urgent application seeking relief in order
to
comply with section 4(2) of PIE had already created the expectation
that PIE would be complied with.
42.
Applicant’s
attorney submitted that it was open to a party to move for an oral
amendment during a hearing, without complying
with Uniform Rule 28.
Whilst there are circumstances where it would be permissible for a
litigant to do so and the usual rule 28
procedure requiring such
amendment on notice is not obligatory,
[10]
a party does not have invariable procedural right to do, especially
where, as in this instance, the applicant foresaw the need
for such
an amendment by at least 7 January 2021. It had in any event been
informed by the respondents as long as ago as 9 November
2020 that
there were natural persons residing on the premises, and had it been
advisable to carve out and persist with such relief
that did not
require compliance with PIE, then it should have gone about doing so
then already. It did not do so before it applied
for the opposed date
on 17 November 2020, when it represented the matter was ripe for
hearing. It most certainly should not have
waited until the hearing
date to move for such an amendment. And even then, the applicant was
in two minds when the hearing started
as to what relief it was
seeking and whether an amendment would be moved.
43.
Applicant’s
attorney referred to a decision in the Gauteng Division, Pretoria in
2013
[11]
where an oral
amendment was permitted on the day of the hearing of an opposed
eviction application to exclude relief against those
respondents who
fell within the purview of PIE. But it does not appear that any
prejudice was contended for in that case. In contrast,
in the present
instance, the respondent objected to the uncertainty that had been
created by the applicant, which is dealt with
below. I have also
dealt with the inconvenience of the court brought about by the
uncertainty surrounding the intended relief.
And the matter must now
be viewed in the context of the procedural requirements of the
Practice Manual and Consolidated September
Directive, which presents
a different procedural landscape to that in 2013.
44.
The applicant may have been alive to the real
possibility that had it delivered a notice to amend or an amended
notice of motion
before the hearing, this would have made it obvious
that the matter was not ripe for hearing (especially if it engendered
a flurry
of documents from the respondents such as objections to the
intended amendment) and that by laying low and seeing which way the
wind blew on the day of the hearing it could introduce the proposed
amendment, if necessary, at an opportune moment.
45.
In my view, it should have been clear to the
applicant that the matter was not ripe for hearing on the relief
sought in the main
application. At the very least the section 4(2)
issue needed to be addressed and which precluded on order
encompassing the eviction
of the natural persons from the respondent.
And should the applicant have wished to curtail or adapt its relief
that it was seeking
to overcome the section 4(2) issue, it was
incumbent to do so as soon as possible and not leave it up in the air
as to what relief
it would be seeking of the court.
46.
This
also informs why the applicant had not uploaded any draft orders of
the relief that it would be seeking of the court by the
time the
hearing commenced, this being another procedural requirement flouted
by the applicant.
[12]
The
applicant itself was uncertain as to what relief it would be seeking.
47.
It was during the course of argument that my
attention was drawn by the parties to a letter addressed by the
applicant’s attorneys
to the respondents’ attorneys on
7 January 2021 in which the applicant informed the respondents
(but not the court)
that it did not intend persisting with the
eviction, at this stage, of the natural persons and that instead it
would seek amended
relief by way of a draft amended notice of motion,
which was attached to that letter. As stated, the court was not
provided with
that draft amended notice of motion, save during the
course of or shortly after the hearing, and then only as an
attachment to
the letter of 7 January 2021.
48.
The respondents, justifiably, also took issue
with the manner in which the applicants had conducted their case
insofar as they too
were uncertain as to what case they had to meet
on 25 January 2021. The respondents’ counsel pointed out
that she had
to prepare to argue the matter on the basis that the
applicant may be persisting in seeking the relief in the main
application
(as the applicant had not delivered any notice of
amendment), and/or may be seeking some or all the relief in the
second urgent
application (which had been removed from the roll but
was still hanging in the air), or may be seeking relief by way of its
proposed
amended notice of motion furnished to the respondents’
attorneys on 7 January 2021 but which had not manifested itself
before the court in the form of any application for amendment.
Whilst it would appear that the respondents’ counsel
may have
been ready to proceed to oppose whatever variant of relief that the
applicant sought to move on 25 January 2021,
the court remained
uncertain what relief was being sought, what was to be made of the
second urgent application that was still
hanging in the air and part
of the papers in the electronic court file, and what documents would
still be uploaded.
49.
A further perplexing development at the instance
of the applicant was that it also in its attorney’s letter of
7 January
2021 recorded that the applicant would not object to
the respondents filing any supplementary answering affidavit over the
course
of the next ten days in opposition to the relief sought, and
that it intended serving updated heads of argument. It remains
unclear
as to why the applicant would be affording the respondents
such an opportunity, but the applicant nonetheless did so. The
applicant
must have realised in doing so that it placed in jeopardy
the ripeness of the matter to be heard on 25 January 2021. After
all, both the Practice Manual and Consolidated September Directives
required all the affidavits and heads of argument to have been
delivered before application was made for an opposed date. It was not
open to the applicant to be inviting the respondents to file
further
affidavits up until the week preceding the hearing of the
application.
50.
Perhaps
a final opportunity for the applicant to redeem itself would have
been if it was able to bring sense to the tangle of a
court file by
way of a compliant and informative joint practice note. But what
should have been the product of constructive interaction
between the
parties’ respective legal practitioners for the convenience of
the court in limiting the issues
[13]
proved to be no more than a further skirmishing ground for the
parties, with the applicant filing its version of a practice note
on
18 January 2021, to which the respondent commented on 18 January
2021. Each party’s legal representatives blamed the other
for
the inability to prepare a joint practice note, and the court file
was burdened in the days leading up to the hearing with
correspondence between the respective attorneys on the issue.
51.
In the circumstances, the matter clearly was not
ripe for hearing.
52.
The applicant, having represented to the
registrar that the matter was ready for hearing on 17 November 2020
when it applied for
the opposed date, went about after that with
disregard, whether inadvertent or otherwise, of the requirements of
the Practice Manual
and Consolidated September Directives aimed at
ensuring that an application was ripe for hearing when called.
53.
The applicant is the author of its own misfortune
in the matter not being ripe for hearing. As expressed in the
September Consolidated
Directives, the applicant is
dominus
litis
and is to take responsibility for
efficient disposal of its matter. The applicant should therefore pay
the wasted costs arising
from the hearing on 25 January 2021.
54.
After I struck the matter from the roll and
reserved my judgment on costs, a flurry of activity took place on the
part of the parties’
attorneys in uploading various documents
to the electronic file. I do not comment on the propriety of doing
so, particularly as
I did grant the parties leave to upload the
relevant correspondence that had been referred to during argument,
such as the letter
of 7 January 2021 as well as the respondents’
chronology.
55.
The applicant nonetheless also chose to upload:
55.1.
a notice of withdrawal of the relief sought in
prayers 2 to 5 of its second urgent application, which is effectively
all the substantive
relief sought in that application including
authorising the relevant order in terms of section 4(2) of PIE;
55.2.
a notice in terms of rule 28(1) seeking to amend
the relief in the main application;
55.3.
what appears to be a further application to the
Registrar for an opposed hearing date.
56.
As these documents were placed before me whilst I
was to the knowledge of the applicant still seized with the matter,
presumably
it is open for me to consider these documents.
57.
The first two documents are illuminating. The
third is perturbing.
58.
That the applicant delivered a notice to amend
and sought to now deal, at least to some extent, with the hanging
second urgent application
reinforces my view that self-evidently the
matter was not ripe for hearing. This is particularly so as the
applicant did
not even wait for those reasons before doing so.
59.
What is perturbing is that the applicant has now
again applied for an opposed date when it may well be that the matter
is still
not ripe for hearing. The audit trail on the electronic file
system shows that application was made for new opposed date at 12h58
on 25 January 2021. The applicant’s reaction to my striking the
matter from the roll was to almost immediately apply for
a hearing.
The applicant did so without even waiting for this reasons. As set
out above, I have indicated why the matter was not
ripe for hearing
and so why the opposed application was struck from the roll on 25
January 2021. The amendment, which the applicant
now formally seeks
on notice and to which the respondents have ten days to object, has
not been finalised. It may well elicit an
objection from the
respondents. And given all the developments that have taken place
since heads of argument were filed on 11 and
12 November 2020 and
which continue to take place, it is reasonably anticipated that
further heads of argument and practice notes
would be required. Both
the Practice Manual and the Consolidated September Directives require
these to be in the court file before
an opposed date is applied for.
60.
During the course of preparation of the reasons I
noted from the electronic case file that the registrar uploaded a
further note,
enquiring of the applicant if it was applying for a new
date as the matter had been set down for 25 January 2021. The
registrar’s
uncertainty is understandable as the motion week in
which the matter had been enrolled had not yet even ended when the
applicant’s
attorney applied for a new date. Indeed, the court
file, so to speak, is still with me.
61.
Whether the applicant has again embarked on a
precipitous course of action is for the next court to decide.
62.
I have already struck the matter from the roll.
Insofar as costs are concerned, the applicant is ordered to pay the
wasted costs
relating to the hearing of the application on the
opposed roll for 25 January 2021.
Gilbert AJ
Date of
hearing:
25 January 2021
Date of judgment:
29 January 2021
For the
Applicant:
B van Tonder (Attorney)
Burrows Attorneys
Counsel for the
First,
Second and Third
Respondents: Ms C Jacobs
Instructed
by:
Edward Sithole and Associates
[1]
Judge
President’s Practice Directive 1 of 2020.
[2]
The
most recent version of the Practice Manual for the Gauteng Local
Division is dated October 2018.
[3]
See,
for example, the urgent notice issued to attorneys by the Office of
the Judge President on 27 November 2020 headed “In
re:
non-compliance with 18 September 2020 Consolidated Directive”
setting out the large-scale non-compliance with the September
Consolidated Directive, and calling for compliance.
[4]
With
list of authorities and a cross-referenced chronology table:
paragraphs 16 and 17 of Chapter 9.8.2 of the Practice Manual.
[5]
Or
failing the delivery of heads of argument by a party, the
non-defaulting party bringing simultaneously an application to
compel the defaulting party to file heads, and which interlocutory
compelling application was to be heard expeditiously on a court
roll
specifically catering for such applications. See paragraphs 1 and 6
to 13 of Chapter 9.8.2 of the Practice Manual.
[6]
See
paragraphs 1 to 5 of Chapter 9.8.2 of the Practice Manual.
[7]
See,
for example, paragraph 96 of the Consolidated September Directive.
[8]
Paragraph
1.8 of the Judge President’s urgent notice records the failure
of attorneys to read these CaseLine notes as an
instance of
large-scale non-compliance.
[9]
A
separate question was whether it was advisable for the applicant to
enrol the matter on the opposed roll as early as 25 January
2021 as
that did not appear to afford it sufficient time to comply with
section 4(2) of PIE.
[10]
Uniform
Rule 28(10) provides that “
[t]he
court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment grant leave to amend any
pleading or
document on such other terms as to costs or other matters at it
deems fit.”
[11]
Unreported
decision of Cambanis AJ in
Phayane
v MC Denneboom Service Station CC
(case number 51724/2012), 20 Novembr 2013. See para 3 and 4.
[12]
See
paragraph 97 of the September Consolidated Directive.
[13]
Paragraph
104 of the September Consolidated Directive deals with the
requirement of a joint practice note.