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[2024] ZAECQBHC 5
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Avbob Funeral Services v Buzani (2810/2020) [2024] ZAECQBHC 5 (30 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, GQEBERHA]
CASE
NO.: 2810/2020
In
the matter between: -
AVBOB
FUNERAL SERVICES
APPLICANT
and
BONIWE
EUNICE BUZANI
RESPONDENT
JUDGMENT
ZONO
AJ:
Introduction
[1]
The applicant in the instant proceedings launched an application for
the upliftment of the notices
of bar respectively filed on 15
February 2021 and 18 October 2021. The application was instituted on
13 January 2023. The applicant
tenders costs on condition that the
respondent does not oppose the application. The applicant seeks costs
in the event that the
respondent opposes the application.
[2]
The application is predicated on the provisions of Rule 27 which deal
with the
extension
of time and removal of bar and condonation
.
Rule 27(1) clearly envisages that an application for the removal of
bar is necessary only in the absence of agreement between
the
parties. See
Gool
v Policansky
[1]
.
Legal
principles
[3]
The requisite for the grant of an extension of time or removal of bar
have, through the years,
been expressed in different ways. Two
principal requirements for the favourable exercise of the court’s
discretion have crystalised
out. The first is that the applicant
should file an affidavit satisfactorily explaining the delay. In this
regard it has been held
that the defendant must at least furnish an
explanation of his default sufficiently full to enable the court to
understand how
it really came about and to assess his conduct and
motives. See
Silber
v Ozen Wholesalers (Pty) Ltd.
[2]
A
full and reasonable explanation which covers the entire period of
delay must be given. See
Van
Wyk v Unitas Hospital and Another
[3]
.
[4]
It is not sufficient for the applicant to show that condonation will
not result in prejudice to
the other party. An applicant must show
good cause; the question of prejudice does not arise if it unable to
do so. See
Standard
General Insurance Co. Limited v Eversafe (Pty) Limited
[4]
.
[5]
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.
See
Smith
N.O
.
v
Brummer N.O
.
[5]
.
The application must be
bona
fide
and
not made with intention of delaying the opposing party. See
Grant
v Plumbers (Pty) Ltd
[6]
.
[6]
The second requirement is that the applicant should satisfy the court
on oath that he has a
bona
fide
defence or that his application is clearly not ill-founded. See
Dalhouzie
v Bruwer
[7]
.
The applicant must show that his defence is not patently unfounded
and that it is based upon facts which must be set out in the
outline
which if proved would constitute a defence. See
Du
Plooy v Anwes Motors (Edms) Bpk
[8]
.
[7]
In
Smith
N.O. v Brummer N.O.
[9]
it
was held that the tendency of the court is to grant a removal of bar
where:
(a)
the applicant has given reasonable explanation for his delay;
(b)
the applicant is
bona fide
and not made with the object of
delaying the opposite party’s claim;
(c)
there has not been a reckless or intentional disregard of the rules
of court;
(d)
the applicant’s action is clearly not ill-founded; and
(e)
any prejudice caused to the opposite party could be compensated for
by an appropriate order as
to costs.
[8]
This now bring me to the facts of the case. The counsel for the
applicant conceded that there
is no sufficient explanation given in
the affidavit for the default.
Analysis
[9]
Whilst there is no explanation for the failure to file the necessary
pleading by the defendant
after the receipt of the Summons,
similarly, there is absolutely no explanation for the failure to file
same after the delivery
of notice of bar on 18 October 2021. The
consequence of not filing a subsequent pleading within five (5) days
prescribed in the
notice of bar was that the defendant was
ipso
facto
barred from doing so.
[10]
Surprisingly, almost a year after the filing of notice of bar on 7
September 2022 the defendant delivered
its exception. It is
reiterated that all this delay is not explained. The defendant does
not account for its failure to file a
subsequent pleading within the
time prescribed by the Rules. This is clearly a long delay that is
not explained.
[11]
Some five (5) months after the filing of the exception which was
obviously a “
pro non scripto”
on 13 January 2024
the applicant launched this application. The only explanation given
for the late launching of the application
is that, it was as a result
of this court’s advice when refusing to hear an exception which
was a
pro non scripto
.
[12]
The only contention proffered by the applicant is that there is no
prejudice that will be suffered by the
respondent if this application
is granted. I do not agree. The respondent is
dominis litis
in
the main action. In the main action he is entitled to a speedy trial.
That is his constitutional rights embedded in section 34
of the
Constitution. It is trite law that the justice delayed is justice
denied. That is prejudice. The respondent came to this
court for the
resolution of his dispute as speedily as possible.
[13]
The applicant, with a sigh of despair, sought to canvass a point that
the applicant, who is the defendant
in the main action has a
bona
fide
defence. Whilst that is not a consideration according to the
legal authorities referred to above, the contention is not without
difficulties.
[14]
An exception that is a
pro non scripto
was only a knee jerk
reaction to the respondent’s anxiousness to finalise his case.
It purported to assail respondent’s
summons or particulars of
claim on the basis that they are vague and embarrassing. At the same
time it acknowledges that there
is a claim founded on contract which
existed between the parties. Similarly, the applicant understands the
respondent’s claim
to be based on the principle of duty of care
founded on delict. Negligent conduct of the applicant’s
employees who were acting
within the course and scope of their
employment with the applicant is pertinently pleaded in the
particulars of claim. The applicant’s
failure to take a duty of
care is equally pleaded in the particulars of claim.
[15]
Having understood the nature and the factual basis of the
respondent’s case, the applicant failed to
plead to the
pertinent averments set out in the particulars of claim. It would
only be by means of a plea that the applicant would
have been able to
disclose its
bona fide
defence. Alternatively the defence
relied upon by the applicant in the main application would have been
pertinently set out in the
founding affidavit supporting this
application. That did not happen. There is no where this court could
assess the strength of
applicant’s case. The submission about
the
bona fide
defence was only made from the bar. Even there,
no nature and basis thereof was canvassed. This submission stands to
fail.
[16]
I alluded to the fact that the exception was only an afterthought and
knee jerk reaction to the respondent’s
action to drive his case
to finality. I base this on the allegations made by the applicant on
his papers. It is clear on the applicant’s
founding papers that
the applicant’s attorneys had always wanted to plead.
[17]
Paragraph 10 of applicant’s plea is couched as follows:
“
10.
In an attempt to extract a plea from the applicant … the
respondent …. served a
notice of bar on the applicant on or
about 15 February 2021.”
[18]
A similar allegation is made in paragraph 24 as follows:
“
24.
Thereafter, in an attempt to extract a plea from the applicant on its
amended particulars of claim,
the respondent served the applicant
with yet another notice of bar on 18 October 2021.”
[19]
Lastly, paragraph 34 alleges as follows:
“
34.
The applicant’s attorneys of record were in the process of
taking instructions from the
applicant before serving its Rule 23
notice when it was served with the respondent’s first notice of
bar.”
[20]
It is conceded by applicant’s counsel in court that, an
attorney does not need to take instructions
to prepare an exception,
but instruction could only be sought and obtained from client in
respect of the merits/facts for purposes
of a plea.
[21]
I come to a conclusion that the applicant has failed to give this
court sufficient reasonable explanation
that covers the entire time
of the delay to file a subsequent pleading. It is, up until now,
unknown why a subsequent pleading
was not filed. The conduct of the
applicant was characterised by reckless or intentional disregard of
the rules of this court.
I find so because there is no explanation
about the delay. There is absolutely no defence disclosed in this
matter that could assail
applicant’s case on trial.
[22]
In the light of paragraphs [17] and [18] above I find that this
application is
mala fide
and is made with an object of
delaying the respondent’s claim.
Order
[23]
In the circumstances the following Order shall issue:
23.1
The application for the upliftment of the bar dated 12 February 2023
is hereby dismissed.
23.2
The applicant is ordered to pay costs of the application.
A.S.
ZONO
ACTING
JUDGE OF THE HIGH COURT
Matter
heard on
25
January 2024
Judgment
Delivered on
30
January 2024
APPEARANCES:
For
the APPLICANT
ADV
LAMBRECHTS
Instructed
by RUPERT CANDY ATTORNEYS INC
OFFICE
4 & 5
12
FLOOR, THE FORUM
2
MAUDE STREET
SANDTON
TEL:
011 600 8821
REF:
R Candy/TR/A0006
EMAIL:
rupert@rupertcandy.co.za
c/o
SMITH TABATA INC.
189
CAPE ROAD
MILL
PARK
GQEBERHA
EMAIL:
joele@smithtabata.co.za
shaneezw@smithtabata.co.za
REF:
J ERASMUS/SW/50R758002
For
the RESPONDENT
ADV
MENTI
Instructed
by NE MBEWANA ATTORNEYS INC.
55
GREEN STREET
NORTH
END
GQEBERHA
EMAIL:
ntsikimbwn@gmail.com
[1]
1939
CPD 386
at 390.
[2]
1954 (2) SA 345
(A) at 353.
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477 E – G.
[4]
2000 (3) SA 87
(W) at 93G.
[5]
1954 (3) SA 352 (O) at 277 A – B.
[6]
1949 (2) SA 470
(O) at 476.
[7]
1970 (4) SA 566
(C) at 571.
[8]
1983 (4) SA 212
(O) at 217.
[9]
1954 (3) SA 352 (O) at 358A.