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[2021] ZAGPJHC 515
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Chongqing Qingxing Industry SA (Pty) Ltd v Mingying YE and Others (35962/2020) [2021] ZAGPJHC 515 (28 April 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE
28/4/2021
CASE
NO.: 35962/2020
In
the matter between:
CHONGQING
QINGXING INDUSTRY SA (PTY) LTD
Applicant
and
MINGYING
YE
First Respondent
PROSPERITY
PLASTIC PRODUCTS (PTY) LTD
Second Respondent
ALL
OCCUPIERS OF 41 BIRD ROAD and
58
DUNCAN ROAD, LILIANTON, BOKSBURG
Third Respondent
LINE
METALS (PTY)
LTD
Fourth Respondent
JUDGMENT
ROBINSON
AJ:
[1]
In this matter I raised an issue with Mr
Van Tonder who appears for the applicant concerning the absence of
affidavits in this application.
The founding affidavit is
stated to be sworn to at ChongQing on 3 November 2020. There is
however no indication on the affidavit
itself that the oath was
taken.
[2]
A document appears in Chinese, which is
followed by what is stated to be a notarial certificate and the word
‘Translation’
thereunder. What appears from this
translation is that an applicant, Luo Jiayun, came to “our
notary public office
and signed the foregoing FOUNDING AFFIDAVIT on
November 3, 2020 before me, the notary public’. The
details of the notary,
He Wei, of the Chonqing Notary Public Office,
the Peoples Republic of China, appear on the document. What does not
appear from
the document is that the oath was taken or that it was
administered by a person entitled in China to do so.
[3]
The absence of an oath on an affidavit is
not a mere technicality. It is indeed the oath that renders a
statement admissible
as evidence. See
Wingaardt
and Others v Grobler and Another
2010
(6) SA 148 ECG at paragraph [9].
[4]
Section 10 of the Justice of the Peace and
Commission of Oaths Act 16 of 1963 empowers the Minister of Justice
to make regulations
which govern the prescribed form and manner for
the administration of an oath. Regulation 4(1) is the relevant
regulation. The
founding affidavit was, on the face of it, not
deposed to in accordance with this regulation. Rule 6(1) has
therefore been breached
and was not complied with.
[5]
Mr Van Tonder asked that the matter be
postponed to enable the applicant to ascertain whether the oath had
been administered by
a person enabled to do so.
[6]
To this, Ms Jacobs of the respondents,
submitted that the absence of the oath was a defect which could not
be cured. For this
she relied on the decision in
Absa
Bank Limited v Botha N.O. and others
2013
(5) SA 563 GNP
.
I do not read that judgment to indicate that the error cannot be
rectified. To the contrary, the judgment contemplates that
further
verifying affidavits might have cured the problem (see [12] of this
judgment).
[7]
In this matter Mr Van Tonder could give no
indication about whether or when the applicant might be in a position
to provide information
about whether the oath was taken. No grounds
were advanced to justify the inconvenience that this situation must
inevitably caused
the respondents.
[8]
In the circumstances the applicant has not
placed any evidence before court as contemplated in rule 6(1). The
application is therefore
dismissed with costs.
R
M ROBINSON
Acting
Judge of the High
Court,
Gauteng Local
Division,
Johannesburg
DATES
OF HEARING:
16
April 2021
DATE
OF JUDGMENT:
APPEARANCES:
COUNSEL
FOR APPLICANT:
Mr van Tonder
INSTRUCTED
BY:
Burrows Attorneys
COUNSEL
FOR RESPONDENT:
Adv Jacobs
INSTRUCTED
BY:
Edward Sithole & Associates Inc