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[2021] ZAGPJHC 162
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Chongqing Qingxing Industry SA (Pty) Limited v Ye and Others (35962/2020) [2021] ZAGPJHC 162 (29 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No.: 35962/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
29/1/2021
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.