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[2018] ZAECPEHC 15
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Hacker v Hartmann and Others (1415/2017) [2018] ZAECPEHC 15 (19 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
–
PORT
ELIZABETH
Case
No.: 1415/2017
In
the matter between:
INGE
JOANNE HACKER
Applicant
and
MARK
KEISER HARTMANN
First
Respondent
BEX
HOTEL (PTY) LTD
Second
Respondent
JOHN
MICHAEL (PTY) LTD
Third
Respondent
MARIE-JOSE
GABREILLE HARTMANN N.O.
Fourth
Respondent
ROLAND
HANS HEIRISS N.O.
Fifth
Respondent
MARK
KEISER HARTMANN N.O.
Sixth
Respondent
WENDY
FIONA HAY N.O.
Seventh
Respondent
INGE
JOANNE HACKER N.O.
Eight
Respondent
MARK
KEISER HARTMANN N.O.
Ninth
Respondent
THE
COMPANIES AND INTELLECTUAL
PROPERTIES
COMMISSION
Tenth
Respondent
JUDGMENT
REVELAS
J
:
[1]
The
applicant seeks certain interlocutory relief in terms of Rule 30(1)
of the Uniform Rules of Court (“the Rules”)
to the effect
that the respondents’ supplementary answering affidavit and its
attachments (all consisting of 588 pages) filed
on 18 September 2017,
without obtaining leave of the court to do so, be struck out on the
grounds that such filing is an irregular
step.
[2]
The
application in question arose in the course of an application wherein
the applicant sought orders declaring the first respondent,
her
brother, a delinquent director in terms of the section 162 of the
Companies Act, 71 of 2008 (the Act); directing the
first
respondent to be removed as a director of the second and third
respondents (respectively a hotel and a company); authorizing
the applicant to bring proceedings on behalf of and in the name of
the second respondent for repayment of the financial assistance
provided to the first respondent in contravention of section 45 of
the Act; ordering the respondents to pay costs of the
application on an attorney and client scale. The application
was launched on 24 April 2017.
[3]
The
first respondent’s answering affidavit was due on 14 June
2014. Various extensions were sought by the first respondent
and it was agreed that he could file his answering affidavit by 28
June 2018.
[4]
On
21 July 2017 the first and remaining respondents filed a
counter-application instead of an answering affidavit setting out the
basis of their opposition to the relief sought by the applicant in
terms of sections 162 and 45 of the Act. The relief sought
in
the counter-application was abandoned shortly before the present
application was launched because it was not competent.
It did
not comply with any principles in law and did not amount to a proper
answering affidavit as prescribed by the Uniform Court
Rules.
It was not the kind of document a prudent attorney would file in
response to an application such as the main application.
The
counter-application was filed out of time and made little sense.
The matter was consequently set down on the unopposed
roll on 25 July
2017 and was postponed
sine
die
.
By this time the first respondent had engaged new attorneys who also
appeared for the remaining respondents. These
respondents did
not individually or collectively file a notice to confirm this.
[5]
Thereafter
there was a chain of correspondence between the attorneys of the
opposing parties. The respondents indicated that
they intended
to file a supplementary affidavit, opposing the application.
The respondents indicated that they would not
seek any indulgence
from the applicant but would rather apply to court for condonation to
file this affidavit. This did not
happen at the relevant time.
[6]
Upon
receiving no response from the respondents the applicant, on 31
August 2017 filed her replying affidavit to the affidavit of
the
respondents on 5 September 2017. The matter was set down to be
heard on 26 October 2017.
[7]
The
supplementary affidavit was filed on 18 September. The
affidavit itself consists of 206 pages, in addition to the 206
pages
already filed as the respondents “Provisional Abridged
Answering Affidavit”. Attached to the supplementary
affidavit were three supplementary affidavits deposed to by the fifth
respondent, the first respondent’s accountant.
[8]
Rule
6 (5) (e) of the Uniform Rules of Court clearly requires that the
filing of further affidavits is only permitted with the indulgence
of
the court, and the court will only exercise its discretion if good
reasons to do so were furnished by the party seeking to introduce
a
further affidavit. This was not done. In the
supplementary affidavit the respondents applied for condonation, but
not formally.
[9]
The
applicant then launched the present application. The
respondents’ response to the application in terms of Rule 30
was not to file an answering affidavit, but to yet again launch
another counter application seeking dismissal of the Rule 30
application.
The respondents filed a counter-application
seeking leave to file the supplementary answering affidavit.
[10]
The
applicant levelled several justified and objections against the
introduction of yet another set of affidavits. Firstly,
seeking
the dismissal of Rule 30 application and leave to file the
supplementary affidavit in a counter application, is inappropriate.
Why the respondents choose to litigate in this way is not
understood. They adopted the same approach in the main
application.
The respondents attorneys should in my view, take
some or all blame for the manner of litigation since this is a
procedural question.
Also, the grandiose and style in which the
respondents’ affidavits are drafted could also largely be
attributed to the respondents’
legal representatives. The
respondents also failed to file heads of argument. I was handed
a copy when counsel were
on their feet to argue.
[11]
Secondly,
the applicant correctly makes the point that it is not open to the
respondents to rely on what is contained in the affidavit
itself to
obtain the leave of court in order to file the affidavit. On
this approach the applicant was required to traverse
the whole
affidavit and reply thereto notwithstanding that the court has not
yet permitted its introduction. The applicant
would also have
prepare for the striking out of certain portions of the supplementary
affidavit, which the applicant has applied
for and prepared for the
hearing of the actual application in terms of Rule 30.
[12]
Thirdly,
since the respondents filed a counter-application and not an
answering affidavit, the application brought in terms of Rule
30 is
technically unopposed, albeit that the largest part of the affidavit
consists of motivating why the supplementary affidavit
should be
admitted.
[13]
The
applicant, through her counsel,
Mr
Ford
,
has carefully and thoroughly demonstrated with reference to
correspondence that there was no agreement between the parties
regarding
the filing of a supplementary affidavit, as alleged by the
respondents. The applicant did not agree thereto.
[14]
The
prolixity of the papers before me is astounding. The applicant
is entirely correct in describing the supplementary affidavit
as a
prolix, confusing document which does not comply with the
requirements of an affidavit. Much criticism can be levelled
at
most of the respondents’ several affidavits. The record
is over a thousand pages long, mostly because of the respondents’
extravagant use of paper. They indulge in extensive argument
and incorporate irrelevant matter, which some might regard as
iniurious or plain gossip. The first respondent even issued
summons against the applicant seeking the same relief as in his
first
counter-application. Peter AJ in
Venmop
v Cleverlad Projects
[1]
decried prolix papers thus:
“
[14]
The inclusion of unnecessarily prolix and repetitive material in
court papers is not a peculiarly domestic problem.
In the
context of an appeal against a conviction for tax evasion and whether
or not a defence was waived by being buried in a single
unreasoned
paragraph, the United States Court of Appeals for the Seventh Circuit
remarked that ‘Judges are not like pigs,
hunting for truffles
buried in briefs’ (
US
v Dunkel
[1991] USCA7 185
;
927 F 2d 955
(7
th
Cir 1991)). In a recent case, using similes more appropriate to
more northerly climes, in the Canadian Federal Court of Appeals
in
McKesson
Canada Corporation v Canada
2014 FCA 290
, Stratas JA remarked:
‘
[23]
The difference between what the appellants propose in page length and
what I am willing to grant is
nine pages. Some might wonder,
“What’s the bid deal about nine pages?”
[24]
Unnecessarily lengthy, diffuse submissions are like an unpacked,
fluffy snowball. Throw
it, and the target hardly feels it.
On the other hand, short, highly focused submissions are like a
snowball packed tightly
into a iceball. Throw it, and the
target really feels it. Shorter written submissions are better
advocacy and, thus,
are much more helpful to the Court.
[25]
Structures that lead to repetition, over-elaboration of arguments
block quotations, and rhetorical
flourishes make submissions
diffuse. Simple but strategic structures, arguments presented
only once and compactly, tight
writing that arranges clinical details
in a persuasive way, and short snippets from authorities only where
necessary make submissions
highly focused. The former
dissipates the force of the argument, the latter concentrates it.’”
[15]
In
Minister
of Environmental Affairs and Tourism and Others v Pambili Fisheries
(Pty) Ltd
;
Minister
of Environmental Affairs v Bato Star Fishing (Pty) Ltd
[2]
Schultz JA similarly criticized prolix replying affidavits as
bringing out “irritation, not persuasion”.
[16]
I
have mentioned that the supplementary affidavit and tis annexures are
588 pages long. Given all the shortcomings of the
respondents’
supplementary and other affidavits, and the seriously flawed manner
in which the respondents have chose
to litigate, I was sorely
tempted to strike out the entire supplementary affidavit, including
its annexures, and the three supplementary
affidavits deposed to by
the fifth respondent.
[17]
However,
I had to consider that not the entire supplementary affidavit
consisted of irrelevant matter. If I were to strike
out the
entire affidavit, the first respondent may be unfairly deprived of
placing his case before court. The applicant has
made serious
allegations of unlawful conduct against the first respondent and he
stands to lose a lot if his case is not properly
before court.
It may very well be that he has no case at all, in which case it
would not matter if his supplementary affidavit
is struck out, but
that would involve consideration of the merits of the main
application which is premature at this stage.
[18]
In
my view, and for the same considerations, it would also be premature
to consider an application to strike out certain portions
of the
supplementary affidavit. That application ought to be heard,
and as a general rule, such applications are usually
heard by the
court entertaining the main application.
[19]
In
the circumstances I decline to grant the relief sought by the
applicant.
Costs
[20]
Even
though the applicants were not the successful party, the application
was not futile in the sense that the respondents have
been made aware
that this manner of litigation is unacceptable. In my view, it
is only fair that the respondents pay the
costs of this application.
The almost uncontrolled filing of prolix inflated affidavits in this
matter, has no doubt greatly
inconvenienced the applicant and
certainly the court who was expected to trundle through over a
thousand pages. I believe
a punitive costs order would be
appropriate in the circumstances.
[21]
I
have considered whether or not the respondents’ attorneys
should pay a substantial poriton of the applicant’s costs
de
bonis propriis
since it is very obvious that they are partly responsible for the
prolixity and manner of the litigation pursued by the respondents.
Unfortunately I heard no argument on that aspect, but the court
considering the main application might well hear such argument
in due
course.
Order
[22]
The
following order will issue:
1.
The
application brought in terms of Uniform Court Rule 30 is dismissed.
2.
The
respondents are liable to pay the costs of the application, on a
scale as between attorney and client, jointly and severally,
the one
paying the other to be absolved.
3.
The
applicant is granted leave to file her replying affidavit, if any, to
the respondents’ supplementary affidavit, within
21 days
hereof.
____________________
E
REVELAS
Judge
of the High Court
Appearances
:
For
the Applicant: Adv Ford SC and Adv Richards, instructed by
Kaplan Blumberg Attorneys, Port Elizabeth
For
the 1
st
, 2
nd
, 3
rd
, 4
th
,
5
th
, 6
th
and 9
th
Respondents:
Adv Smuts SC and Adv Nel, instructed by Lexicon Attorneys, Port
Elizabeth
Date
heard: 29 March 2018
Date
delivered: 19 April 2018
[1]
2016 (1) SA 78
at 87 H-J
[2]
2003 (6) SA 407
(SCA), para [39]