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[2023] ZAGPJHC 1094
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Braude NO and Another v Blackwood-Murray (42542/2018) [2023] ZAGPJHC 1094 (2 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
No: 42542/2018
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
02.010.23
In the interlocutory
application of:
KENNETH
DAVID BRAUDE N.O
First
Applicant/First Defendant
JULIAN
RICHARD POLATINSKY N.O
Second
Applicant/Second Defendant
And
JAMES
BLACKWOOD-MURRAY
Respondent/Plaintiff
Delivered: This
judgment 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 2 October 2023.
JUDGMENT
MALINDI J
Introduction
[1]
The applicants in this section 47(4)
application are the defendants in the main action brought by the
respondent herein under case
number 42542 / 2018. For convenience the
parties shall be referred to as in the main action.
[2]
On 30 September 2022 the court
ordered the plaintiff, Mr James Blackwood – Murray to furnish
security for costs in his action
against the defendants before 14
October 2022.
[3]
The plaintiff has failed to do so. In
pursuance of the court order, in particular the provision that should
the plaintiff fail to
comply, the defendants are granted leave to set
down their application in terms of Rule 47(4) of the Uniform Rules of
Court, they
did so on 18 October 2022.
[4]
The plaintiff belatedly filed his notice of
intention to oppose the application on 14 November 2022. In addition,
he filed a Rule
41A notice on 8 November 2022 seeking a referral of
the matter to mediation.
[5]
On 15 November 2022 the plaintiff’s
attorney, Ms Noa Kinstler, filed an answering affidavit. Its late
filing is condoned.
Consideration of the
issues
[6]
The first issue for determination is
whether the defendants have satisfied the requirements of rule 47(4)
which reads as follows:
“
The
court may, if security be not given within a reasonable time, dismiss
any proceedings instituted or strike out any pleadings
filed by the
party in default, or make such other order as to it may seem meet
.”
[7]
The second issue is whether the plaintiff’s
section 41A notice and application seeking a referral of the matter
to mediation
is competent.
[8]
The plaintiff urges the court to exercise
its discretion in terms of rule 47(4) carefully and not in the strict
sense as to grant
the application would be tantamount to closing the
doors of court against the Plaintiff in circumstances where the
defendants have
not presented strong grounds to justify such an
order. An alternative remedy is proposed, that is, to allow the
plaintiff sufficient
time to try and raise the amount required for
security.
[9]
First, I consider the Rule 41A application
to be another delaying tactic by the plaintiff. Were the plaintiff of
the belief that
this matter is capable of mediation he would have
delivered the notice simultaneously with his summons as required by
the rule.
The notice and application stand to be refused on this
ground alone.
[10]
Even if the notice to mediate were to be
entertained, mediation cannot be forced on the parties. It is a
process entered into by
agreement between the parties. On 8 November
2022 the plaintiff proposed mediation to the defendants. That was not
acceded to by
letter of 11 November 2022. The plaintiff’s
criticism of the defendants for rejecting mediation without
considering its merits
and stating the reasons for rejecting it does
not avail the plaintiff in the face of his dilatory conduct in these
proceedings.
Rule 41A(3)(a) applies if the parties agree after
commencement of proceedings to go for mediation. I am unable to grant
leave in
these circumstances. Subsection (3)(b) requires agreement of
the parties even if a judge may consider mediation appropriate after
commencement of proceedings. As a voluntary process, the court cannot
force it upon the parties.
[11]
Regarding the merits of the Rule 47(4)
application, great prejudice has been caused to the defendants. Their
desire that this matter
come to finality deserves clear and decisive
consideration. It is also in the interests of justice and that of the
public that
matters reach finality expeditiously without compromising
any of the parties’ rights to a fair hearing.
[12]
The rule 47(4) application follows upon a
long history of litigation in this matter, including several
interlocutory applications
and rulings. I have considered all these
circumstances. The application has been brought in the face of a
court order that has
not been complied with by the plaintiff. No
cogent explanation has been proffered in the answering affidavit,
save for a vague
statement that the plaintiff recently lost his job.
This is most unsatisfactory, especially that it does not come from
the plaintiff
himself but from his attorney. The averment is not even
confirmed by any confirmatory affidavit of the plaintiff.
Conclusion
[13]
For all of the above reasons, the
defendants’ application to dismiss the plaintiff’s action
under case number 42542/2018
is granted and the following order is
made:
1.
The plaintiff’s claim under case
number 42542 / 2018 is dismissed.
2.
The plaintiff is to pay the costs in the
action on the attorney and client scale.
3.
The respondent is to pay the costs of this
application.
G MALINDI
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
APPEARANCES
COUNSEL FOR THE
APPLICANTS:
Adv R Shepstone
Adv
N Jongani
INSTRUCTED BY:
Fairbridges Wertheim
Becker Attorneys
COUNSEL FOR THE
RESPONDENT:
Ms N Kinstler
INSTRUCTED BY:
Noa Kinstler Attorneys
DATE OF THE HEARING:
16 November 2022
DATE OF JUDGMENT: 2
October 2023