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2021
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[2021] ZAGPJHC 609
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Twala and Others v Nhleko N.O. and Others (40575/2018) [2021] ZAGPJHC 609 (29 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 40575/2018
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
MNDENDI
TWALA
First
applicant
LUCY
CELESTE MACKAY
Second
applicant
380
OTHERS
Third to
Three Hundred and Eighty
Applicants
And
PF
NHLEKO N.O
.
First respondent
RS
DABNGWA N.O
.
Second respondent
I
CHARNLEY N.O
Third
respondent
ZJ
SITHOLE N.O.
Fourth
respondent
W
LUCAS-BULL N.O
Fifth
respondent
P
JENKINS N.O
.
Sixth respondent
MTN
GROUP LTD (1994/009584/06)
Seventh
respondent
JUDGMENT
ENGELBRECHT,
AJ:
Introduction
1.
On 2 March 2020, I heard
argument in respect of two applications related to
litigation
instituted by employees and former employees of the seventh
respondent (MTN). This judgment concerns -
1.1.
interlocutory relief (including condonation and leave to
amend) sought
by
the applicants (members of a group known as the “
Tsunami
Group”
,
being employees and former employees of MTN, who are capital
beneficiaries of the Alpine Trust (an empowerment scheme established
for the benefit of previously disadvantaged individuals who were
employed by MTN)); and
1.2.
a counter-application by the respondents, seeking a stay of
the main
application
to which the interlocutory relief relates, and referral of the issues
to arbitration.
2.
The application for
interlocutory relief was made consistently with a directive
by his Lordship
Mr Justice Senyatsi that these interlocutory matters be disposed of
prior to a set-down of the main application.
3.
The counter-application
was not specifically provided for in the directive, but
Mr Greg Fourie
SC, who appeared on behalf of the applicants, accepted that it would
be permissible for this Court to entertain the
counter-application,
despite the absence of a reference to it in the order that gave rise
to the application for interlocutory
relief. Mr Fourie, who had urged
this Court to adopt a pragmatic approach, in the interests of
justice, to advance his case for
condonation, correctly conceded that
such pragmatism conceivably
included
the consideration of the counter-application, the outcome of which
would have a bearing on further entertainment of the
main
application.
4.
In the answer to the
counter-application, the applicants did contend that the
matters raised
therein had not been properly ventilated in the papers in the main
application, but Mr Fourie correctly accepted
that there could be no
argument of procedural unfairness in circumstances where the
applicants had enjoyed the opportunity to answer
to the
counter-application. However, he did indicate that he had not
addressed the application for referral to arbitration fully
in heads
of argument, in light of the applicants’ stance that the
counter-application was not to be entertained before me.
This issue
was addressed through an opportunity being given to the parties to
submit additional heads of argument, which they duly
did on 3 and 5
March 2021, respectively.
5.
The interlocutory
application raises a myriad of legal issues. However, if I
grant the
application for a stay and referral to arbitration, the various
relief in the interlocutory application would become obsolete,
and
therefore do not have to be decided. This would mean that the
counter-application falls to be decided first. Only if I dismiss
the
counter-application, do the issues in the interlocutory application
arise.
6.
Before I turn to the
consideration of the issues before me, I shall set out the
chronology.
Chronology
7.
On 31 October 2018, the
applicants launched the main application, seeking
various relief
against the respondents. The applicants claim to have been
underpaid
by significant amounts, and they wish for the Trustees to provide a
full accounting to them in respect of the affairs
of the Alpine
Trust, and payment of amounts said to be owing to them.
8.
The answering affidavit
was filed on 13 December 2018. The applicants only
filed their
replying affidavit (the First Replying Affidavit) on 30 May 2019. In
the body of the reply, the applicants made application
for
condonation for the late filing. They also signaled an intention to
seek amended relief, including a referral of disputes to
trial.
9.
On 16 July 2019, the
applicants filed a notice of intention to amend the notice
of motion (the
First Notice to Amend). This was left unanswered.
10.
On 18 July 2019, the applicants filed a
practice note and heads of argument
in
support of a request that the matter be set down for argument on the
claim for a full accounting. Thereafter, on 25 July 2019,
they filed
an expert affidavit in support of the application to order the
respondents to provide a full accounting of the affairs
of the Trust.
11.
On 24 October 2019, the respondents filed a
supplementary answering
affidavit,
which included further information concerning the affairs of the
Alpine Trust. The respondents also raised a challenge
to the
authority of the applicants’ attorneys, with the result that,
on 8 November 2019, powers of attorney in respect of
249 of the
applicants were filed. The supplementary answering affidavit raised
various points
in
limine
,
including (i) the failure of the applicants to bring a substantive
application for condonation; (ii) the operation of an arbitration
clause in the Trust Deed of the Alpine Trust; (iii) the
alleged
material non-joinder of Newshelf 664 (Pty) Ltd (Newshelf); and (iv)
prescription.
12.
On 6 January 2020, the applicants filed a
notice in terms of Rule 35(3) and
(12),
calling for the production of certain documents by the respondents.
The respondents indicated in correspondence that they
refused to
provide the requested documents. The applicants did not pursue this
by way of application.
13.
On 17 February 2020, the applicants filed a
replying affidavit (the Second
Replying
Affidavit), as well as a notice to amend the notice of motion (the
Second Notice to Amend), with the aim of obtaining the
documents that
had been referred to in the applicants’ Rule 35 Notice.
14.
On 2 March 2020, the respondents filed a
notice of objection to the proposed
amendment.
15.
In light of an impasse on the proper future
prosecution of the matter, case
management
was requested. The request was granted, and a case management
conference was scheduled for 15 September 2020. The case
management
was conducted by my brother Senyatsi J.
16.
On 17 September 2020, he ordered that
certain issues be consolidated and
heard
in one interlocutory hearing prior to the main application. These
were
(i)
the application for condonation of the late filing of the applicants’
replying affidavit; (ii) leave for the introduction
of the latest
proposed amendment to the applicants’ notice of motion dated 14
February 2020; and (iii) the inadequate and
incomplete filing of the
applicants’ powers of attorney and confirmatory
affidavits.
A timetable for the exchange of papers was set, leading up to
enrolment of the “
interlocutory
disputes as aforesaid”
on the opposed interlocutory roll.
17.
On 9 October 2020, the applicants filed an
application as envisaged in the
aforesaid
order. They sought: (i) condonation for the late filing of the
applicants’ replying affidavit; (ii) condonation
“
to
all parties”
for the filing of additional affidavits, and the non-compliance with
the normal rules and time periods relating to the filing of
affidavits in motion proceedings, in respect of “
all
affidavits filed to date”
;
(iii) leave for the applicants to amend their notice of motion, as
foreshadowed in an amended notice of motion of 14 February
2020; (iv)
leave for the respondents to file further supplementary affidavits
within 15 days of the order granting leave to amend
the notice of
motion; (v) condonation for the inadequate and incomplete filing of
the applicants’ powers of attorney and
confirmatory affidavit
(applicable to Part A of the amended notice of motion) and (vi) an
order that the hearing in respect of
Part A of the amended notice of
motion be set down for hearing on an expedited basis.
18.
On 2 November 2020, the respondents launched
a counter-application,
seeking
an order that the main application be stayed and referred to
arbitration, relying for this purpose of the terms of the Alpine
Trust Deed. The affidavit attached to the notice of motion in support
of the counter-application served also as the answering affidavit
to
the 9 October 2020 application. In the affidavit, the respondents
questioned the authority of the deponent to the founding affidavit
in
the interlocutories, highlighting the failure to identify prospective
applicants mentioned by the deponent, and threatened delivery
of a
Rule 7(1) notice.
The
counter-application: stay and referral to arbitration
19.
The respondents rely on the Trust Deed of
the Alpine Trust, which contains
an
arbitration clause. In terms of clause 18.1.3, disputes that arise
with regard to “
any
of the beneficiaries’ rights and obligations arising”
from the Trust Deed, or “
out
of or pursuant to this trust…
shall
be submitted to and decided by arbitration”
.
They submit that -
19.1.
the beneficiaries of the Trust, by accepting the benefits bestowed
upon them by the Trust, “
expressly
acquiesced to the terms and conditions of the Trust Deed”
,
and accordingly they cannot avoid the prescripts of the Trust Deed;
and
19.2.
it is “
clear
that the relief the alleged applicants seek in the main application
falls within the scope and ambit of”
the
arbitration provision.
20.
It is only if the relief sought does fall
within the scope and ambit of the
arbitration
provision that the question arises whether the beneficiaries are
bound by it. That requires consideration of the relief
that is being
sought.
20.1.
The relief sought (as formulated prior to the amendment sought in the
interlocutory application) is to be found in the Notice
to Amend
Notice of Motion of 16 July 2019. This, in circumstances where no
opposition to this proposed amendment was filed, and
the time for
doing so has come and gone.
20.2.
In Part A, the applicants seek an order that the respondents “
provide
the
Applicants with a full accounting of the affairs of the Alpine Trust
since its inception, to date”
and
that the respondents be ordered to provide the applicants’
legal representatives with identified documentation, namely:
20.2.1.
the annual financial statements of Newshelf from date of
incorporation;
20.2.2.
the annual financial statements of the Alpine Trust from 2002;
20.2.3.
all documents pertaining to the distribution of shares and/or monies
from the Alpine Trust during December 2008 and/or January
2009;
20.2.4.
all documents pertaining to the further dealings between the Alpine
Trust and Newshelf;
20.2.5.
all financial contracts concluded with financiers in respect of the
MTN shares purchased by the Alpine Trust;
20.2.6.
all documents and agreements pertaining to the distribution of the
preference shares in the Alpine Trust; and
20.2.7.
copies of the various accounting packs as provided to the
auditors
of the Alpine Trust used to prepare the annual financial statements.
20.3.
Also in Part A the applicants seek an order interdicting the
respondents from taking any steps to wind up the Alpine Trust
pending
the final determination of Part B of the main application.
20.4.
In Part B, the applicants seek an order that –
20.4.1.
the respondents make payment of all amounts found to be due and owing
to the applicants by virtue of their status as beneficiaries
of the
Alpine Trust, in accordance with their participation ratios in the
Alpine Trust; and
20.4.2.
to the extent that the respondents are found to have been negligent
in their administration of the Alpine Trust or the management
of
their assets, to the detriment of the applicants, the Trustees be
declared to be personally liable to the applicants for the
losses
caused as a result of the negligence.
20.5.
In the alternative, the applicants seek an order that –
20.5.1.
all shares be quantified and allocated as per the share allocation to
the applicants;
20.5.2.
a curator be appointed in the management of the Trust in order to
effect payment to the applicants “
as
per the share holders at the current share price”
;
20.5.3.
all dividends due to the applicants be quantified and paid over “
at
the current share trading price”
;
20.5.4.
interest be paid on the outstanding dividends “
pre-dating
to inception of the share allocation”
;
and
20.5.5.
all shareholdings “
as
per the Applicants”
be
“
immediately
dissolved and sold with the shareholding values to be paid to the
Applicants”
.
20.6.
obliging the “
respondents
to make payment of all amounts found due to be owing to the
applicants by virtue of their status as beneficiaries of
the Alpine
Trust, in accordance with their participation ratios in the Alpine
Trust”
and
“
to
the extent that it is found that the respondents were negligent in
their administration of the Alpine Trust or the management
of its
assets, to the detriment of the applicants, that the respondents be
declared to be personally liable to the applicants for
any losses
caused as a result of their negligence”
.
21.
The question that arises is whether the
assertion that the relief claimed
patently
falls within the arbitration clause, is correct. Mr Bester, who
appeared on behalf the respondents, asserted that it was,
relying for
the purpose on the provisions of the Trust Deed read as a whole.
These provisions include:
21.1.
clause 3, which deals with the creation of the trust, which was to
“
be
administered by the trustees for the benefit of the beneficiaries and
in the manner and upon the terms as set out herein”;
21.2.
clause 6, which regulates accounting matters, requiring that proper
books of account be kept (clause 6.1) and that such books
be audited
(clause 6.3);
21.3.
clause 8, which regulates the powers of the trustees; and
21.4.
clause 10 which deals with the duties of trustees, including the duty
to “
cause
proper records and books of account to be kept of the business and
affairs of the trust and their administration thereof,
which records,
and books shall be in the custody of the directors of the trust”
(clause
10.2)
and to have the balance sheet and income statement prepared and
audited (clause 10.4).
22.
I find myself in agreement with Mr Bester’s
submissions. Whilst one may go
about
splitting hairs about particulars of the relief sought, it is quite
evident that the documentation sought, the interdict prayed
for and
the Part B relief all ultimately concern the entitlements of the
beneficiaries under the Trust Deed, including their entitlement
to
the accounting that is demanded. To my mind, it is not useful to draw
a distinction between the relief sought in Part A and
Part B, or to
contend that the Part A relief is not concerned with the enforcement
by the applicants of their rights under the
Trust Deed. The
accounting and documentation sought is directly relevant to the
entitlements of the applicants under the Trust
Deed, as asserted.
23.
That being so, the only basis upon which the
applicants can avoid the order
for
a stay and referral to arbitration would be that the applicants are
not bound by the terms of the Trust Deed.
24.
Mr Fourie submitted that the applicants are
not parties to the Trust Deed, and
that
they were never made aware of the full terms of the Trust Deed
(including the arbitration provision now relied upon).
25.
Mr Bester countered that the applicants,
having accepted the benefits
bestowed
upon them by the Trust, accepted the terms and conditions associated
therewith, including the terms and conditions set
out in the Trust
Deed. This, in consequence of correspondence of 30 July 2003,
directed at the proposed beneficiaries stating that:
“
We
will assume that you have wholly and unconditionally accepted the
terms and conditions set out in this letter and the trust deed
(as
amended from time to time). You are not entitled to accept only part
of the offer or a part of the terms and conditions. If
you do not
wish to accept the offer wholly and unconditionally then please
inform us in writing.”
26.
Notably, that same correspondence, at the
outset brought to the attention of
the
recipients thereof that the Trust Deed could be reviewed at the
offices of the auditors of the Trust.
27.
On the applicants’ own version, they
accepted the offer. The respondents
say,
therefore, that the applicants became bound by the Trust Deed,
including the arbitration clause. The approach appears to be
correct,
even though the arbitration clause was not specifically pointed out
to the applicants (see
Hartley
v Pyramid Freight (Pty) Ltd t/a Sun Couriers
2007 (2) SA 599
(SCA) at para 9). The applicants cannot escape this
conclusion on the basis that the Trust Deed is not a
stipulatio
alteri
,
or that a waiver of rights cannot easily be inferred. The bottom line
is that the applicants’ attention was drawn to the
relevance of
the Trust Deed to their entitlements, and they accepted the terms of
the Trust Deed through their acceptance of the
benefits thereunder
(albeit through inaction). The applicants cannot at once (i) rely on
the Trust Deed to
assert
the rights that they seek to enforce; and (ii) decline to accept the
arbitration clause. They may not be parties to the Trust
Deed, but by
virtue of their failure to object to the arbitration clause contained
therein, they did become parties to an arbitration
agreement when
they accepted the terms and conditions of the Trust Deed, which
provided for arbitration of issues related to their
entitlements
thereunder.
28.
In consequence, the applicants cannot resort
to section 34 of the Constitution
of
the Republic of South Africa Act 108 of 1996 (Constitution), as they
do in submissions before me. The applicants’ submission
to
arbitration constituted through their acceptance of the terms of the
Trust Deed amounted to a decision by them to accept adjudication
of
disputes in a private forum (
Lufuno
Mphaphuli & Associates (Pty) Ltd v Nigel Athol Andrews &
Bopanang Construction CC
2009
(4) SA 529
(CC) at para 216). The arbitration clause does not oust
the jurisdiction of the Courts, as
section 3(2)
of the
Arbitration
Act 42 of 1965
makes plain. The applicants have not invoked their
entitlement under that provision to have the arbitration clause set
aside.
29.
In the circumstances, the application for
the stay and referral to arbitration fall
to
be granted.
Further
considerations
30.
In light of my finding concerning the stay
and referral to arbitration, the matters
raised
in the interlocutory application need not be adjudicated upon. That
said, this Court wishes to express the view that the
stay and
referral to arbitration would be in the interests of justice more
generally, as appears from
consideration
of issues raised in the interlocutory application for condonation and
leave to amend the notice of motion.
31.
In support of the application for
condonation, the founding papers asserted
that
it was “
clear
from the chronology of events set out above that this matter has
deviated significantly from the normal course, and that there
has
been material non-compliance with the Rules of Court by both parties.
Papers have been filed out of time, and additional affidavits
not
contemplated by
Rule 6
have been filed by both parties”
.
The applicants candidly accepted “
primary
responsibility for this non-compliance”
,
occasioned in the main (they say) by a “
change
of tack in legal representatives, which resulted in different relief
being sought”
.
All of this is certainly true, with the Court being faced with a
myriad of affidavits and an ever-evolving case.
32.
It was the applicants’ position before
me that the dispute has been fully
ventilated
on the papers, in the “
numerous
affidavits”
and that it would be in the interests of justice if condonation were
granted. The applicants asserted that this “
robust
approach would allow for a fair ventilation of the dispute on Part A,
without any prejudice to any of the parties”
.
They said that a refusal of the condonation application would simply
lead to the issue of a new application, which would once
more be
opposed, with the parties relying on the same facts as are currently
ventilated in the numerous affidavits. The consequence,
they said,
would not be a reduction of this court’s caseload, but simply a
duplication of costs.
33.
The applicants found support for their case
on condonation in
PPE
International
Inc (BVI) and others v Industrial Development Corporation of
South
Africa Limited
2013 (1) BCLR 55
(CC), where the Constitutional Court emphasized that
“
rules
are made for courts to facilitate the adjudication of cases”
,
and that the Superior Courts “
enjoy
the power to regulate their processes, taking into account the
interests of justice”
(at
para 30), recognizing that in “
some
cases the mechanical application of a particular rule may lead to an
injustice”
,
which must be avoided (at para 31). Reliance was also placed on the
judgment of this Court in
South
African Broadcasting Corporation SOC Ltd v South African Broadcasting
Corporation Pension Fund and Others
2019 (4) SA 279
(CC) to the effect that “
Courts
have always been inclined to adopt a pragmatic approach in dealing
with formalistic and technical objections”
(at para 37). That judgment, in turn, made reference to the judgment
of the Supreme Court of Appeal in
Anglo
Operations Ltd v Sandhurst Estates (Pty) Ltd
2007 (2) SA 363
(SCA), which sets as the “
overriding
factor”
to
be taken into account the “
question
of prejudice”
and which baulks at the notion of a “
pointless
waste of time and costs”
that may be brought about by a failure to condone technical
irregularities.
34.
But that does not detract from the
obligation under Uniform
Rule 27(3)
to show
good
cause for condonation to be granted.
35.
In
Competition
Commission v Yara South Africa (Pty) Ltd and Others
2012 (9)
BCLR
923
(CC), the Constitutional Court was concerned with an application
for condonation of the late filing by the Competition Commission
of
an application for leave to appeal. It considered that “
There
can be no doubt that a delay of four and a half months, where the
Rules prescribe 15 court days, is excessive”
(at para 23). Noting the explanations offered by the Commission for
the delay (at paras 24 to 26), the Constitutional Court listed
certain matters
not
addressed by the explanation (at para 27), noting that “
All
of this is important information that would have assisted us in
assessing the diligence with which the Commission dealt with
the
matter”
(at
para 28). The Constitutional Court then explained (at para 29) that:
“
The
Commissioner elected not to take this Court into his confidence and
provide it with all relevant facts. A litigant who approaches
a court
for an indulgence and fails in this serious way to take the Court
into its confidence does not deserve the indulgence of
the Court. It
is difficult to see how it can ever be in the interests of justice
for the Court to come to the assistance of a litigant
who withholds
so much relevant information from it which it needs to decide whether
or not to come to his assistance after failing
to comply with its
Rules.”
36.
In that case, the Court particularly
bemoaned the absence from the application
for
condonation of an explanation for a delay of about three and a half
months, making the point that “
the
explanation that the Commission attempts to advance is so manifestly
unsatisfactory that it can almost be rejected as no explanation
at
all”
(at para 34). Even assuming in favour of the Commission that it
enjoyed reasonable prospects of success, the Constitutional Court
opinoed that this alone did not entitle the Commission to
condonation, expressing the view that
all
factors had to be taken into account to arrive at a decision on the
grant of condonation (at para 35).
37.
The facts in the present case show a
remarkable resemblance to the facts in
the
Yara
case.
37.1.
First, the applicants filed the First Replying Affidavit months out
of time.
37.2.
The explanation offered for the excessive delay was dealt with in a
few perfunctory paragraphs of the reply, as follows:
“
60.
This affidavit has been filed outside of the normal time periods for
filing a replying affidavit. The reasons for the late filing
are as
follows:
60.1
Given the number of applicants involved, it is a time-consuming
process to discuss the matter and obtain a mandate on the way
forward
from all of the members of the Tsunami Group.
60.2
In February 2019 the applicants changed attorneys and counsel. The
new legal team required time to get up to speed with what
is a
complex factual and legal matter.
60.3
Consultations were held during mid-February 2019.
60.4
Between late February and April 2019, the applicants’ new legal
team attempted to engage the respondents’ representatives
in
informal discussions and an informal disclosure of the affairs of the
Trust. As set out above, this attempt ultimately proved
fruitless, as
the respondents refused to disclose the books of the Trust to the
applicants’ expert.
60.5
The applicants then instructed their legal team to proceed with the
replying affidavit.”
38.
The respondents duly raised an objection to
the applicants’ failure to bring a
substantive
application for condonation, treating condonation as if it were
simply there for the asking. The point was made that
“
they
mention only vague highlights of events that took place over a period
of more than six months in an effort to justify their
delay,
notwithstanding that the Applicants are required to provide full
details of the facts and reasons for the non-compliance
with the
Uniform Rules of Court and their purported inability to file a
Replying Affidavit in a timely manner at any point during
the six
month interval”
.
In their
seriatim
response,
the respondents explained:
“
197.1
I deny that a proper case for condonation has been made out.
197.2
The delay is of an inordinate nature and one that has not been
adequately explained.
197.3
No indication is given of when a mandate was first sought, what steps
were taken to engage the beneficiaries and when precisely
a mandate
was received.
197.4
The absence of these basic factual details is telling to say the
least and shows that the Applicants have not taken the court
into
their confidence”
197.5
The suggestion that there is no prejudice to the Trust is
self-serving. The delay alone is prejudicial as the Trust cannot
be
subjected to protracted litigation of this kind on the basis of the
Applicants taking six months to deliver a replying affidavit.”
38.1.
I agree with the basis for opposition. In the view of this Court, a
proper case for condonation was not made out, and in the
absence of a
referral to arbitration, this application would be beset by all sorts
of difficulties arising from the consequences
of such a finding.
39.
Moreover, the interlocutory application
includes an application for leave to
amend
the notice of motion once more. The leave sought to amend the notice
of motion is motivated because the applicants say that
the amendment
“
seeks
to incorporate specific reference to the documents and information
sought in the January 2020 Rule 35 notice (which was also
mentioned
in the expert affidavit filed in July 2019) with the changes
previously foreshadowed in the first replying affidavit
and the first
notice to amend, filed during June 2020. The aim of the amended
notice of motion is to clarify the exact relief sought
in both Part A
and Part B. The basis for the claim as amended is set out in the
applicants’ founding and two replying affidavits”
.
They also assert that granting an opportunity to the respondents to
file a third answering affidavit would “
do
away with any potential prejudice”
.
40.
What this foreshadows is the exchange of yet
further affidavits. This, in
circumstances
where the applicants themselves recognize that the matter now raises
so many factual disputes that a referral to oral
evidence would be
appropriate. Overall, the impression created is that the interests of
the applicants themselves would be served
by a proper formulation of
the case in the form of a statement of claim, and ultimately the
presentation of oral evidence, rather
than to pursue an application
that has become completely unwieldy. The need for the applicants to
formulate their case in such
a statement of claim might just motivate
them to instill discipline in the process,
and
to formulate the precise basis upon which they say they were entitled
to more than they have received. A properly formulated
case will
provide the basis for the discovery and production of documents to be
regulated by the arbitrator(s) under
sections 14(1)(a)(i)
and
14
(1)(b)(iii) of the
Arbitration Act.
Conclusion
and costs
41.
The Constitution guarantees everyone the
right to have any dispute that can
be
resolved by the application of law decided in a fair public hearing
before a court or, where appropriate another independent
and
impartial tribunal or forum. In reality, the right is all too often
not realized, because so few have the means to pursue relief.
42.
In this case, the applicants launched a
poorly pleaded case and then sought
to
patch it up in a replying affidavit that was filed extraordinarily
long out of time, without offering a detailed explanation
for the
delays, and ultimately satisfying themselves with a submission that
the Court must take a robust approach in the interests
of justice
despite the many shortcomings of its explanation.
43.
The case for condonation was not properly
motivated, and the need for the
case
to be formulated comprehensively is evident from a consideration of
the full set of papers filed of record. In addition, since
the
applicants themselves foreshadow a referral to oral evidence, the
interests of justice suggest that the referral to arbitration
would
in any event not unduly delay the matter. in fact, in view of the
case load of this Court, resolution of the disputes may
well be
achieved more expeditiously through a properly managed arbitration
process.
44.
In the many years since the applicants have
indicated their resolve to
challenge
the actions of the Trustees and the allocation of benefits to them,
they may have been expected to become aware of the
provisions of the
Trust Deed that provide for the resolution of disputes concerning
their entitlements in the form of arbitration.
They did not. However,
the respondents have now raised this issue, and in the view of this
Court, the applicants are bound by the
arbitration clause. The
referral to arbitration presents an opportunity to the applicants to
formulate their case with precision,
and to obtain access to
documents relevant to their claim in that forum.
45.
Despite my criticism of the conduct of the
applicants, I am not minded to make
an
adverse costs order. The applicants are not people of great means,
and this Court takes the view that it would be inappropriate
to make
an adverse costs order against individuals who genuinely seek to
assert their rights. The interests of justice dictate
that the
applicants’ claims should now be taken to the right forum and
adjudicated upon there. To burden the applicants with
a costs order
would not be conducive to the resolution of the matter.
46.
Added to that is my consideration that the
respondents unnecessarily raised
issues
such as the authority of the deponent to the founding affidavit in
the interlocutory application and threatened the issue
of a Rule 7(1)
notice. The applicants, correctly, submitted in the reply that a
deponent to an affidavit does not require authority
to depose to an
affidavit on behalf of other entities or persons. No Rule 7(1) Notice
was ultimately issued, but in heads of argument
filed on 30 November
2020, the deponent’s authority was again pertinently raised.
46.1.
It is trite law that Rule 7(1) is concerned, not with determining the
authority of a deponent to an affidavit in an application,
but with
the authority of the attorney. If an attorney acting for a party is
authorised so to act, there is no need for any other
person, whether
he be a witness or someone who becomes involved, to be additionally
authorised (see
Eskom
v Soweto City Council
1992 (2) SA 703 (W)).
46.2.
Plainly put, in applications it is the institution of the proceedings
and the prosecution thereof which must be authorised.
It is
irrelevant whether the deponent had been authorised to depose to the
founding affidavit (
Ganes
v Telecom Namibia Ltd
2004 (3) SA 615 (SCA) at 624G-I).
46.3.
The true issue here was the alleged failure to properly identify the
applicants in the application, which was to be distinguished
from the
issue of authority.
46.4.
It is a matter of some concern that, despite the clear legal position
as enunciated by the Supreme Court of Appeal and this
Court, and
discussed in
Erasmus
Superior Court Practice
in the commentary on Rule 7, legal representatives still
inappropriately invoke the rule and challenge the authority of
deponents
to affidavits.
47.
Accordingly, I make the following order:
47.1.
the application under case number 40575/2018 is hereby stayed and
referred to arbitration in terms of clause 18.1 of annexure
RL1 to
the founding affidavit in the counter-application;
47.2.
there is no order as to costs.
M
ENGELBRECHT
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 29 MARCH 2021.
Date
of hearing:
2 March
2021
Date
of judgment:
29 March 2021
Appearances
For
the applicants:
Adv. G Fourie SC
Instructed
by:
Di Siena Attorneys
For
the respondents:
Adv. C Bester
Instructed
by:
Fluxmans Attorneys