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[2017] ZAECPEHC 47
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Mazosign (Pty) Ltd t/a GNM Enterprises v Mngongo Construction CC and Another (1413/2017) [2017] ZAECPEHC 47 (12 October 2017)
Links to summary
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 1413/2017
In
the matter
between:
MAZOSIGN
(PTY) LTD t/a GNM ENTERPRISES
Applicant
And
MNGONGO
CONSTRUCTION CC
First
Respondent
THE
HOUSING DEVELOPMENT AGENCY
Second Respondent
Coram:
Chetty J
Heard:
14 September 2017
Delivered:
12 October 2017
JUDGMENT
Chetty
J:
[1]
On 21 April 2017, an order was granted
ex parte
, and as one of
urgency in the following terms: -
“
1.
That any non-compliance with the Uniform Rules of Court relating to
the forms and service,
are dispensed with and that the present
application be heard as one of urgency.
2.
That a rule nisi do hereby issue, calling upon the respondents to
show cause,
if any to the above Honourable Court on
Tuesday
the
2
nd
of
May 2017
at 09:30 or as soon thereafter as the matter may be heard, why the
following order should not be made final:
2.1
Concerning the portion of the Joe Slovo Housing Development which is
relevant to the Sub-Contract Agreement
between the applicant and the
first respondent, it is hereby ordered:
2.1.1 That
the second respondent is interdicted from making payment of any
outstanding monies due to the first respondent,
if any, up to a
maximum amount of R691 218.56, claimed in respect of the
application in Part B.
2.2
That the first respondent pays the costs of the application, save in
the event of the second respondent
opposing, in which case that the
respondents pay the costs jointly and severally, the one paying, the
other to be absolved.
3.
That paragraph 2.1.1, above shall operate as an interim interdict
with immediate effect,
pending the return date.
4.
That the application be served upon the respondents.
5.
That the applicant is hereby granted leave to supplement its founding
affidavit, if and when
necessary.
6.
That the costs be reserved.”
[2]
The order constituted the interdictory component of an application in
two parts, designated “A” and “B”
in the
notice of motion respectively. It is common cause that on 25 April
2017 the Sheriff filed a return of service in respect
of both
respondents. It is apposite, given the dispute relating to precisely
which documents were served, to reproduce the return
apropos the
first respondent; to wit: -
[3]
Consequent thereupon, the first respondent’s attorney
dispatched a missive to the applicant’s attorneys in the
following terms: -
“
RE:
MNGONGO CONSTRUCTION CC AND THE HOUSING DEVELOPMENT AGENCY / MAZOSIGN
(PTY) LTD
We represent the first
respondent as cited in your client’s application, and which is
enrolled for hearing, next Tuesday 2
May 2017.
Our client has provided
us with that copy of your client’s application, as served on
it.
Having read the
application we are of the view that:
1.
the
matter is not urgent;
2.
motion
proceedings to recover an alleged debt from our client is
inappropriate in that your client, on its own papers anticipates,
a
factual dispute as to the amount allegedly due to your client, as
appears from paragraph 8 of the founding affidavit; and
3.
the
relief sought in Part A of the notice of motion (which appears to be
amplified in the founding affidavit) is not sustainable
in law and in
Part B is also not sustainable by reason of that which we have set
out in paragraph 2 above.
In the circumstances
kindly confirm that you will remove the matter from the role on
Tuesday 2 May 2017 and thereafter withdraw
the application against
our client, in its entirety.
Should you accept our
client’s invitation, then our client is prepared to accept this
on the basis that each party pays their
own costs.
Should your client
pursue its application, then our client shall, given notice of its
opposition to the relief sought against it,
within the time period
afforded to it in terms of the notice of motion. In addition our
client shall seek an appropriate punitive
costs order.”
[4]
Notwithstanding the aforementioned premonitory in respect of both the
indebtedness and the consequent inappropriateness of the
procedure
adopted by the applicant, it nonetheless proceeded to obtain
confirmation of the rule on 2 May 2017 in the absence of
the first
respondent. This unconscionable attitude has precipitated this
application for rescission of the aforesaid order, the
discharge of
the rule and an order that the applicant be mulcted with the costs of
this rescission application on the scale as
between attorney and
client. Part “B” of the relief sought by the applicant
likewise falls for adjudication and its
fate, as I shall in due
course demonstrate, is inextricably intertwined with the issues
raised in the counter-application.
The
Counter-Application
[5]
The gravamina of the submissions advanced assailing the grant of the
rule
nisi
are multifaceted, but in view of the conclusion to which I am
inexorably driven, it is unnecessary to consider their validity save
to state that the applicant failed to establish the requisites for
the grant of the interim interdict. The bald allegation that
the
deponent harboured a suspicion that the first respondent would
squander or dispense amounts received from the second respondent
was
wholly insufficient to establish the irreparable harm leg of the
requisites for the interdict. On that ground alone the rule
nisi
falls to be set aside but, as I shall demonstrate, there is however a
more fundamental reason warranting the discharge of the rule
granted
on 2 May 2017.
[6]
It is cynical in the extreme to contend that given service of the
application on the first respondent on 21 April 2017, it was
not only
aware of the date upon which relief would be sought but its final
character. It is not in issue that on the said date,
the only return
filed of record was that reproduced in paragraph [1] above. At the
hearing before me, reference was made to a further
return emanating
from the sheriff, identical in form, but incorporating the words
“
and
draft order thereto”
,
which counsel for the applicant submitted, established that the first
respondent must be deemed to have been aware that a rule
nisi
had been issued, returnable on 2 May 2017. The argument is
disingenuous. The fact of the matter is that the second return
was
not before court on 2 May 2017, save for the one referred to
hereinbefore which indicated merely that the documents therein
described had been served and the appearance date was 2 May 2017. It
will be gleaned from the letter that significantly absent
from its
narrative is any reference to a rule
nisi
having been issued. Furthermore, the first respondent’s denial
that the rule was served on him must, on the application of
recognised principles, be accepted. What I find disconcerting however
is that the content of the letter referred to in paragraph
[3] above
was never divulged to the court. Its non-disclosure is to be
deprecated and I have no doubt that had it been brought
to the
attention of the judge the rule would not have been confirmed. Its
wilful non-disclosure warrants the setting aside of the
order granted
on 2 May 2017.
The
Main Application
[8]
As adumbrated hereinbefore, the applicant had been forewarned that
the grounds upon which its claim had been predicated were
spurious
and that any proceedings thereanent would be strenuously resisted.
The applicant’s contractual breach had been communicated
to it
as far back as September 2016 but, notwithstanding, this is glossed
over in both the founding and replying affidavits and
the breach
attributed to the first respondent. These irreconcilable differences
and the disputes of fact raised are irresoluble
on the papers, had
been adverted to months prior to the institution of these proceedings
but, for reasons quite unfathomable, deemed
to be immaterial. The
prolixity of the replying affidavit in the main application attests
to the extent of the dissensus
inter
partes
which can only properly be ventilated in a trial action. The
applicant has however not applied for the matter to be referred for
the hearing of oral evidence and, in my view, such a course is in any
event wholly inappropriate.
[9]
In the result the following orders will issue:
1.
The
counter-application succeeds with costs, on the scale as between
attorney and client, the rule nisi is discharged and the order
granted on 2 May 2017 is hereby rescinded.
2.
The main
application is dismissed with costs.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
Adv E. Dyer
Instructed
by:
N.E. Mbewana Inc
Suite
2, c/o Market and Graham Streets, North End, Port Elizabeth
Ref:
TSH1
Tel:
(041) 487 3542
Obo
the First Respondent:
Adv L.A. Schubart SC
Instructed
by:
De Villiers Inc
165 Cape Road, Mill
Park, Port Elizabeth
Ref: Mike Venter
Tel: (041) 399
3100