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[2021] ZAGPJHC 846
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Isibaya House Body Corporate SS279/2007 and Another v City of Johannesburg Metropolitan Municipality (29079/2017) [2021] ZAGPJHC 846 (11 June 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 29079/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
Date:
…11 June 2021…
In
the matter between:
ISIBAYA
HOUSE BODY CORPORATE SS273/2007
First Applicant
ISIBAYA
HOUSE BODY CORPORATE SS67/2008
Second Applicant
and
CITY
OF JOHANNESBURG METROPOLITAN MUNICIPALITY
Respondent
JUDGMENT
TURNER AJ:
[1]
This
is
an
interlocutory
application
in
which
the
applicants
apply
for
condonation
for
the
late filing of their replying affidavit. The founding papers in this
matter were delivered during August 2017, during September
2017 the
respondent served a notice in
terms
of Rule 35(12) and, after some correspondence in relation to the
discovery
request,
the respondent delivered its answering affidavit during January 2018.
In the ordinary course, the replying affidavit would
have been due in
February 2018. The replying affidavit was finally delivered in
October 2020, some 2 years 8 months after it would
ordinarily have
been filed in terms of the Rules.
[2]
On 5 November 2020, the respondent
delivered a notice in terms of Rule 30A objecting
to the applicants delivering the replying
affidavit late and without condonation.
[3]
The applicants delivered their application
for condonation on 19 November 2020. The notice
of
motion
is
supported
by
a
founding
affidavit
and
a
confirmatory
affidavit
by
the applicants’ attorneys. In the
founding affidavit, the attorneys attempt to explain the delay (which
explanation is dealt
with more fully below), they also record the
nature of the disputes which have arisen and why the replying
affidavit needs to be
before the court in order for the main
application to be properly ventilated. The attorneys ask this Court
to exercise its discretion
to grant condonation. In addition, the
notice of motion asks that the respondent be ordered to pay the costs
of the application
“only in the event
of opposition”.
[4]
The respondent’s answering affidavit
to the Condonation Application was delivered in January 2021 and was
deposed to by the
respondent’s attorney, supported by a
confirmatory affidavit by Mr Ngwana of the respondent. In the
answering affidavit,
the
respondent’s
attorney sets out a number of grounds opposing condonation:
he challenges the reasonableness of the
delay in filing the replying affidavit; he points out what he alleges
to be contradictions
between the applicants’ initial intention
to deliver a
supplementary
founding affidavit and its ultimate decision not to do so; and he
directs a
number
of allegations against the applicants and its attorneys accusing them
of bringing
the
original application “on false evidence”, recanting prior
evidence and of a lack of
bona fides
.
Notably, as discussed below, his affidavit does not identify the
actual
evidence
in the replying affidavit that is alleged to be new or contradictory
to the founding affidavit. Nor does it identify the
significance (or
prejudice to the respondent)
of
this change or the extent to which any further response from the
respondent would be
required
to deal with that matter.
[5]
Before dealing with the merits of the
application, I wish to note significant displeasure at having to
review a CaseLines record
which exceeds 1000 pages in an
interlocutory application for condonation and to put up with
unnecessary mud-slinging between attorneys.
In this regard, I lay the
blame on both sets of attorneys, whose personal attacks have
made the reading of the papers a wholly
unpleasant and laborious task.
[6]
To borrow from Van Reenen J in
Die
Dros (Pty) Ltd and Another v Telefon Beverages CC and others
2003
(4) SA 207
(C) at 28, with my emphasis:
“
It
is trite law that the affidavits in motion proceedings serve to
define not only the issues between the parties, but also to place
the
essential evidence before the Court (see
Swissborough
Diamond Mines (Pty) Ltd and Others v Government
of
the
Republic
of
South
Africa
and
Others
1999
(2)
SA
279
(W)
at
323G) for the benefit of not only the Court but also the parties. The
affidavits in motion proceedings
must
contain factual averments
that are sufficient
to
support the cause of action on which the relief that is being
sought
is based. Facts
may
be either primary or secondary.
Primary
facts
are
those
capable
of
being
used
for
the
drawing
of
inferences
as
to
the existence or non-existence of other facts. Such further facts, in
relation to
primary
facts,
are
called
secondary
facts.
(See
Willcox
and
Others
v
Commissioner
for Inland Revenue
1960
(4) SA 599 (A)
at
602A;
Reynolds
NO v Mecklenberg (Pty)
Ltd
1996
(1) SA 75 (W)
at
78I.)
Secondary
facts,
in
the absence of the primary facts on which they are based, are nothing
more
than a deponent's own conclusions
(see
Radebe
and Others v Eastern Transvaal Development Board
1988
(2) SA 785 (A)
at
793C - E) and accordingly do not constitute evidential material
capable of supporting a cause of action.”
[7]
The above
dicta
apply to interlocutory matters as much
as they do to ordinary motion matters. The test to be applied by the
Court in an application
for condonation involves the
evaluation
of
facts
as
to
what
happened,
when
it
happened
and
why
those
facts
impacted on the applicant’s ability to meet its obligations. If
either party seeks to have the Court draw inferences,
in order to
making a finding of abuse, wilfulness, misconduct,
mala
fides
or the like, it needs to clearly
record the facts from which the inferences are to be drawn. In the
absence of the primary facts
being clearly recorded, no such
assertions should be made and no such inferences can be drawn.
Additionally,
particularly
in the context of an interlocutory application, it is singularly
unhelpful to have
to
wade
through
affidavits
where
so
many
allegations
comprise
personal
attacks
by
one attorney on the other.
[8]
Uniform Rule 27(1) provides
“
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or
abridging
any time prescribed by these rules or by an order of court or fixed
by an order extending or abridging any time
for doing any act or taking any step in connection with any
proceedings of any
nature
whatsoever upon such terms as to it seems meet.
[9]
No exhaustive definition of what
constitutes “good cause” is prescribed to avoid fettering
the Court’s overall
discretion, but the key factors informing
the exercise of the
discretion
are the following :
9.1
The first is that the applicant must
furnish an explanation of his default sufficiently full to enable the
court to understand how
the delay came about and
to assess applicant’s conduct and
motives, having regard to those facts. A full and reasonable
explanation, which covers the
entire period of delay, must be given.
If there has been a long delay, the court should require the party in
default to satisfy
the court that the relief sought should be
granted, especially in
a
case
where
the
applicant
is
the
dominus
litis
.
The
court
will
refuse
to
grant
the application where there has been a
reckless or intentional disregard of the rules of court, or the court
is convinced that the
applicant does not seriously intend to proceed.
The application must be
bona fide
and
not made with the intention of delay.
9.2
The second factor is that the applicant for
condonation should satisfy the court on oath that he has a
bona
fide
defence or claim. In the current
matter,
involving
the delivery of a replying affidavit, this factor would require that
the replying affidavit be relevant and contains material
required for
the Court to make a proper determination when it hears the main
application.
9.3
The
third factor is that the grant of the indulgence should not
prejudice
the other party in a way that cannot be compensated for by a suitable
order as to postponement and costs. It is not sufficient
for
the applicant to merely show that condonation will not result in
prejudice to the other party, where the applicant has not shown
good
cause.
Where
this
principle
has been applied to refuse condonation (such as
Standard
General Insurance Co Ltd v Eversafe (Pty) Ltd
2000
(3) SA 87
(W)
at
93G – 95 F) it is often where the new aspect is
introduced
at the eleventh hour or at the commencement of proceedings.
9.4
The
additional consideration, applied in
Ferris
v FirstRand Bank Ltd
2014
(3)
SA
39 (CC)
,
involves the broad assessment of whether it is in the interests of
justice to grant condonation.
Explanation of the delay
[10]
It is common cause that the answering
affidavit was delivered in January 2018 and, as such, the replying
affidavit would have been
due in February 2018. It is also common
cause that the replying affidavit was delivered in October 2020, some
2 years 8 months
after the due date. This is an inordinate delay.
The applicant has attempted to explain the
delay but there are a number of gaps which have not been explained. I
have summarised
the timeline below:
10.1
In early 2018 the applicant requested
extensions to deliver the reply first until 16 February 2018 and then
until 23 February 2018
and then again until May 2018. The respondent
granted all these requested indulgences, but the replying affidavit
was not delivered.
The details of these extensions are not set out in
the founding affidavit and scant explanation is given for the not
meeting these
self-imposed deadlines other than for the attorneys to
record that they
were
busy with other matters and new personnel were employed by the
applicants.
10.2
No details are given for the seven-month
period May 2018 until 18 January 2019. The applicant alleges that
after Mr Beech, the deponent
to the replying affidavit, was appointed
in early 2018 and it received Mr Mantlana’s reply that “I
will wait for you”
delivered on 3 May 2018, it assumed and
believed it could
accept
“that the applicants could file when they were ready to file”.
In my view, this is an unsatisfactory
approach. First, it is clear from the applicants email to which Mr
Mantlana was responding,
that he was responding to the applicants’
attorneys’ statement that “I have already started
drafting our reply
and only need to supplement the information as
soon as we receive same”. Second, the attorneys had an
independent duty to
the Court to attend to the finalise of the reply.
It seems nothing was done between May
2018
and January 2019 and no explanation for
this period has been provided.
10.3
The explanation for the period January 2019
to September 2019 appears to be that the applicant was attempting to
engage the respondent
to meet “with the hope that a settlement
might eventuate”. It is not suggested that settlement was
proposed by the respondent, nor is it
suggested that the respondent had consented to a further delay in the
filing of papers.
Eventually,
pursuant to these discussions, an inspection in loco was arranged and
was attended by the attorneys on 20 September
2019. The inspection
was directed at resolving the apparent dispute on the papers
regarding the number of units in the building.
10.4
Following the inspection in loco, the
applicants delivered an amendment to its notice of motion, but did
not deliver a supplementary
founding affidavit as they
had initially suggested they would. This
amendment did not attract opposition from the respondent.
10.5
The applicants assert that, during the
period 30 January 2020 to 23
March
2020, “the applicants attorneys continuously followed up with
the City’s attorneys
with
regard
to
whether
the
City
would
be
amending
its
answering
affidavit, as a result of the amended notice of motion”. The
respondent’s attorney reverted on 23 March 2020
to say that the
respondent would not be amending. It is unusual for the applicants to
have expected the respondent to amend its
answering affidavit or even
to supplement its answering affidavit, particularly where the
applicant had not supplemented the founding
papers.
10.6
The period from 23 March 2020 until 21 July
2020 is explained with reference to the Covid-19 lockdown and a month
delay in having
counsel settle the final replying affidavit. No
detail is given as to why the affidavit could not be finished earlier
and why it
could not have been sent to counsel earlier.
10.7
The period from July 2020 until October
2020 is explained on the basis that the
trustees of the applicants had changed
between the time the application was launched and the time that the
replying affidavit was
ready
to be delivered. The applicants allege that
the meeting of the trustees could only take place on 14 August 2020,
that the trustees
requested additional documents before approving the
filing of the document and only provided their approval for the
filing of the
affidavit on or about 2 October 2020. The replying
affidavit was then signed before a Commissioner and delivered in
mid-October
2020.
[11]
In argument, applicant’s counsel
acknowledged that there is a seven-month period between May 2018 and
January 2019 which is
not explained by the applicant.
He argued however that after this delay,
the applicant engaged with the respondent, the respondent attended an
inspection
in loco
which
was designed to resolve the factual question over the number of
residential units and the existence of business units in the
building
and the respondent did not insist on the reply being delivered in
advance of such inspection.
He
went on to note that
it
was
after this
inspection in loco was
held
that the amended notice of motion was delivered, and the respondent
did not object to the amended notice of motion. The amended
notice of
motion reflected the relief consequent upon the facts which had been
confirmed since the delivery of the founding affidavit
– namely
that there were business units located within the building and,
consequently, on the applicant’s case, a mixed-use
tariff ought
to be applied.
[12]
From the available facts, I am satisfied
that the applicants were not in wilful default and
they do not appear to have delayed delivery
of the replying affidavit to intentionally delay the proceedings or
for any other ulterior
motive. However, there is an extraordinary
dilatoriness in the manner in which the applicants’ attorneys
dealt
with the
matter and large periods of delay which are not adequately explained
by the
attorneys.
[13]
To my mind, the length of the delay and the
failure to have provided a satisfactory explanation for a large
portion of the delay
is a significant factor against granting
condonation. However, it is not determinative. It must be weighed
with the other factors.
Other factors
[14]
It is clear that there have been
significant delays in the finalisation of the underlying disputes
(which apparently arose in 2008/9)
and that these delays have not
been mitigated by either the applicant or the respondent’s
representatives. There are no facts
recorded which indicate
prima
facie
that the additional delay has
added material additional prejudice to the respondent’s defence
of the matter
and
the respondent did not take steps to set the matter down while the
reply was outstanding.
[15]
The respondent asserts the following
grounds of prejudice which I deal with briefly:
15.1
That the applicants’ decision to file
a reply was aimed at preventing the respondent from being able to
answer the allegations
in the reply.
Linked
to this is the allegation that the applicants should not be entitled
to cure
a
defective founding affidavit in reply.
15.2
The difficulty I have in dealing with this
aspect of the respondent’s case is the respondent’s
failure to identify in
its answering affidavit to the Condonation
application, what it contends to be the “new matter” in
the reply. As a
result, it does not set out what response would be
needed thereto and what additional matter would have to be sourced to
respond
thereto. Both the answering affidavit and the heads of
argument assert that new matter has been included and accuse the
applicants
of attempting to “deprive the respondent of a right
to reply” but none of the primary facts are included.
15.3
The applicants have set out in the replying
affidavit what they contend to be the
difference between the factual assertion in
the founding affidavit and the replying affidavit (in the main
application). The applicants
point out that the substance of the
difference lies in the fact that previously they recorded that there
were 118 residential units
in the buildings but now, in response to
the details of the buildings set out in the answering affidavit, they
confirm there is
a
mix between residential (113) and commercial (5) units in the
building. This has the result that a different tariff would need
to
be applied in calculating their claim. The applicants point out that
the respondent had dealt with the facts of that issue in
the
answering affidavit and, further, an inspection in loco had been
held
at
which
these
issues
could
be
resolved.
In
the
circumstances,
the applicants contend that there is no
significance in the correction of the factual position set out in the
reply.
[16]
During argument, the respondent’s
counsel confirmed that the facts which to which the Respondent
objected were the correction
of the number of residential and
commercial units in the building. While he complained that the relief
in the notice of motion
had also changed, he confirmed that the only
different “fact” was the number of units.
[17]
In the respondent’s answering
affidavit, the respondent’s attorney accuses
the applicants of not being bona fide by
delivering a reply containing “new and contradictory evidence”.
In my view,
the reply would only lack bona fides if the facts set out
in the reply were false. The purpose of affidavits (as noted above)
is
to ensure that the correct facts are placed before the Court.
Nowhere in the respondent’s affidavit
answering the condonation application does
the respondent’s attorney suggest that the new
fact
–
that
the
building
contains
113
residential
units
and
5
commercial
units,
rather
than 118 residential units – is incorrect. The respondent’s
attorney attended the inspection in loco in September
2019 and, if
that statement is wrong, I would have expected him to say so.
[18]
In argument, I asked the respondent’s
counsel what the content of any additional
affidavit would need to record in order to
deal with the “new matter” allegedly raised in
the replying affidavit.
Counsel indicated that he did not have
instructions on this issue as the matter had not been canvassed.
A critical aspect of this interchange lies
in the fact that allegations of prejudice and
mala
fides
can only be made where facts are
available to support those allegations. In the answering affidavit,
the respondent’s attorney
had made such allegations without
setting out the facts which support those allegations.
[19]
Shortly
after
the
replying
affidavit
was
delivered,
the
respondent’s
attorney
spoke
on
the
telephone with the applicant’s attorney and recorded that he
was offended by the content of the replying affidavit and
that the
respondent would object to the late filing, without condonation
having been applied for. In the current application, the
applicants
argue that the reason why condonation has been opposed is because the
respondent’s attorney took personal offence
at the content of
the replying affidavit. The respondent asserts that the accusatory
stance adopted by the applicants in the replying
affidavit towards
the respondent and its attorney, should persuade me that the
applicants are not
bona fide,
and
this should disentitle them to condonation.
[20]
I note that the respondent has made an
application to strike out various offensive portions of the
applicants’ replying affidavit
in the main application. From
the bar, the applicants’ counsel recorded that the applicants
did not oppose such strike out
application. If that is the case,
those issues can be resolved without much ado. It is not necessary
for me to deal with that application
or with who should bear the
costs of that application. It is however relevant to recognize that
Counsel’s concession affirms
that the respondent’s
attorney was probably justified in taking offence at the content of
the replying affidavit.
[21]
In this application, I am not asked to
strike out any matters from the replying affidavit, to decide the
main application nor am
I asked
to
consider whether the respondent should be given an opportunity to
deliver a fourth set of affidavits. As such, it is neither
necessary
nor appropriate for me to descend into these matters. On the face of
the facts set out in the condonation application
(as opposed to the
arguments and assertions), it appears that the applicants were
entitled to deliver a reply, that the majority
of the material set
out in the reply is does address the answering affidavit and that the
difference in the factual position set
out in the replying affidavit
(when compared with the founding affidavit) is not significant.
[22]
The general principle is that all the
necessary allegations upon which
the
applicant relies must appear in his founding affidavit, and he will
not generally be allowed to supplement the affidavit by
adducing
supporting facts in a replying affidavit. This is, however, not an
absolute rule and the court has discretion to allow
new matter in a
replying affidavit, giving the respondent the opportunity to deal
with it in a second set
of
answering affidavits. If a fourth (rejoinder) affidavit is required
(to deal with specific
factual
averments in the reply), I am confident that the respondent will not
be precluded
from
delivering such an affidavit.
[23]
A significant factor in dealing with the
current application for condonation is the
“interests of justice”. The
hearing of the application had not been set down when the replying
affidavit
was
delivered
and
so
its
introduction
did
not
interfere
with
or
have
the
effect of interrupting or postponing a hearing. If condonation were
refused, it would have an unnecessarily punitive effect
on the
applicants in circumstances where the introduction of the reply does
not disrupt the finalisation of the matter. In other,
circumstances,
the
late
delivery
of
a
reply
may
invite
a
punitive
sanction
even
at
the
risk of deciding the matter on the wrong
facts. In the current circumstances, having regard to the interests
of the owners and occupants
of the residential units involved and the
interests of the City itself, I find the interests of justice to be
best served by having
the application determined on the correct
facts.
It is also
in the interests of justice for the court hearing the application to
have the applicants reply before it when it hears
the application.
The
reply
cannot
make
the
applicant’s
case
for
relief
but
having
it
will assist
the
Court
in
understanding
the
applicant’s position
on the
facts
and
contentions
set out by the respondent in the answering
affidavit.
Conclusion
[24]
I am mindful of the test for “good
cause” and the need for an applicant for condonation to give a
full explanation for
the delay for which condonation is sought. In
the current matter, the explanation given to explain the delay
suggests that the
applicant’s attorneys
were dilatory in the manner in which they
dealt with the matter. However, it is in the interests of justice for
the relevant evidence
and clarifications to be placed before the
court for a proper ventilation of the matter.
[25]
In the circumstances, notwithstanding that
part of the delay is unexplained, I find it is in
the interests of justice to condone the
late filing of the replying affidavit. I also find that the
respondent’s opposition
to the application (though
unnecessarily aggressive and
personal
at times) was not unreasonable. The extensive delays and
the
offensive
manner in which the applicant approached
the replying affidavit provided the respondent with grounds
reasonably to object and so
the respondent is entitled to the costs
of the application.
[26]
In the circumstances, I make the following
order:
26.1
Condonation is granted to the applicants
for their failure to comply with the time periods stipulated in
Uniform Rule 6(5)(e) for
the filing of their replying affidavit.
26.2
The applicants are to pay the respondent’s
costs of the application on the scale as between party and party.
DA Turner AJ
Date
of hearing: 07 June 2021
Date
of judgment: 11 June 2021
Appearances:
On
behalf of the applicants :
T Paige- Green
Instructed
by:
Schindlers Attorneys
On
behalf of the respondent :
C van der Merwe
Instructed
by:
Dali Mantlana Attorneys