Olympic Flame (Pty) Ltd v Connectpro (Pty) Ltd t/a Nashua Welkom (5790/2021) [2024] ZAFSHC 17 (24 January 2024)

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[2024] ZAFSHC 17
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Olympic Flame (Pty) Ltd v Connectpro (Pty) Ltd t/a Nashua Welkom (5790/2021) [2024] ZAFSHC 17 (24 January 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: 5790/2021
Reportable: YES/NO
In
the rescission application between
:
OLYMPIC
FLAME (PTY) LTD
Applicant
[1]
(Registration
no.: 1971/[…])
And
CONNECTPRO
(PTY) LTD t/a NASHUA WELKOM
Respondent
[2]
(Registration
no.: 2018[…])
In
the rule 30/30A applications between
:
CONNECTPRO
(PTY) LTD t/a NASHUA WELKOM
Applicant
(Registration
no.: 2018[…])
And
OLYMPIC
FLAME (PTY) LTD
Respondent
(Registration
no.: 1971/[…])
Coram:
Opperman J
Heard:
26
October 2023
Delivered:
24 January
2024.
This judgment was handed down in
court and electronically by circulation to the parties’ legal
representatives
via
email and release to SAFLII on 24 January 2024. The date and time of
hand-down is deemed to be 15h00 on 24 January 2024
Judgment:
Opperman J
Summary:
Rescission
application – contracts – condonation applications –
rule 30/30A applications – late filing of
replying affidavit in
the rescission application & filing of further affidavit in the
form of a confirmatory affidavit by applicant
without leave of the
court – authority to litigate
JUDGMENT
INTRODUCTION
[1]
At the core
of this case is a rescission application.
[3]
It is an application brought on notice of motion
[4]
for the rescission and setting aside of a default judgment granted on
9 June 2022.
[5]
The default
judgment order, in essence, orders Olympic to pay a total of R1 842
284.68
[6]
to Nashua and return
to Nashua about twelve items of movable equipment with specified
serial numbers.
[2]
The parties on both sides, allegedly, did not comply
with the
contract(s) they entered into with each other and pledged to comply
with. It subsequently exploded into conduct, correspondence
and
litigation that reminds of the epic remark in the judgment of
Zuma
v Secretary of the Judicial Commission of Inquiry into Allegations of
State Capture, Corruption and Fraud in the Public Sector
Including
Organs of State and Others
(CCT 52/21)
[2021] ZACC 28
;
2021 (11)
BCLR 1263
(CC) (17 September 2021):
[130]
What is true is that Mr Zuma’s behaviour has resulted in a
monumental waste of judicial resources.
At the heart of this
matter, there is a potent need, to uphold the integrity of the
administration of justice and to send a message
to all litigants that
rescission as an avenue of legal recourse remains open, but only to
those who advance meritorious and
bona fide
applications, and
who have not, at every turn of the page, sought to abuse judicial
process.
[3]
The following
presented for adjudication:
1.
A condonation
application for the late filing of the rescission application;
2.
the authority
to have launched the rescission application and authority to oppose
the first rule 30/30A application;
3.
the first rule
30/30A application on the late filing of the replying affidavit in
the rescission application;
4.
the
conditional condonation application for the late filing of the
replying affidavit in the rescission application;
5.
the second
rule 30/30A application on the filing of the confirmatory affidavit;
6.
the rescission
application;
7.
Costs.
[4]
All the issues
in the case are entwined and entangled with the rescission
application and to the extent that it may not be regarded
in
isolation. The facts and merits of the case as it evolved and the
legal issues that developed stacked the one on the other and
this
caused that the conspectus of evidence and law is required to be
considered to make a final finding on the applications and

specifically, the rescission application.
THE
PARTIES
[5]
“
Olympic”
is OLYMPIC FLAME (PTY) LTD, a private company with limited liability,
incorporated in terms of the laws of South
Africa and having its
registered address and principal place of business in Welkom in the
Free State.
[6]
Mr.
Johny Abatzoglou, a director of Olympic, passed away in September
2021, leaving his wife Ms. Eleni Abatzoglou (Ms. Abatzoglou),
and his
brother, Mr. Aristides Abatzoglou (Mr. Abatzoglou) as the sole
remaining active directors.
[7]
[7]
“
Nashua”
is CONNECTPRO (PTY) LTD t/a NASHUA WELKOM, a private company with
limited liability, incorporated in terms of the
applicable laws of
South Africa, having its main place of business in Welkom in the Free
State.
[8]
INTRODUCTORY
REMARKS
[8]
It was argued
by counsel for Olympic that the final test in the case in its
totality is grounded in prejudice suffered by any of
the parties; or
not. He maintained that the interest of justice must be served and
measured in the context of prejudice. He argued
that the case must be
allowed to go to trial and the issues surrounding the contracts be
vented and ruled upon.
[9]
What should
have been this simple was complicated by the conduct of Olympic.
Various issues in law were caused by them that caused
litigation in
reaction and this burdens the case. The reality is that the pendulum
of prejudice swung both ways; the administration
of justice to have
suffered the most.
[10]
Parties
may not twist, manipulate and maneuver the rules of law as, when and
how it suits them; it simply destroys the administration
of justice.
Litigants have the right and the duty to keep each other accountable
to the rule of law. In the matter of
Zipp
v Zipp
[9]
Sutherland J said, and I agree, that:
[27]
Too often, legal practitioners display sycophantic acquiescence in
their client's
desires. This is wrong. Diligent and professional
advice includes frankly telling a would-be litigant what the
realities of the
law are. Indulging in litigation which serves only
to wear down the opposition or protract the case is a violation of
the duty
of both attorneys and counsel to the process of the court.
Litigation is not a free for all. Our adversarial system of
litigation
does not license practitioners, whether attorneys or
counsel, to ignore their duties to the court which requires them to
act so
as to promote the efficacy and efficiency of the process of
the court. When practitioners, in their zeal for loyalty to their
clients,
abandon this duty they behave unprofessionally. (See: D.Ipp,
'Counsel's duties to the Court'
(1998) 114 LQR 63)
THE
HISTORY OF THE LITIGATION & SOME FACTS
[10]
[11]
In
broad strokes and for context;
[11]
the parties entered into four rental agreements in 2019. On 11 May
2021, in response to a demand for payment of arrears rental
under the
agreements in question, Olympic notified Nashua that it was
cancelling the rental agreements. Nashua accepted Olympic’s

repudiation, terminated the rental agreements, and instituted action,
claiming the return of the rented equipment, arrears rental
and the
contractually agreed pre-estimate of Nashua’s liquidated
damages.
[12]
The combined summons in the action was
issued by Nashua on 13 December 2021 and served on 17 January 2022.
[13]
Olympic defended the action but failed to
deliver its plea within the days stipulated in the rules. Nashua then
served a notice
on Olympic, requiring it to deliver its plea within
five days. Olympic failed to do so and was thus
ipso
facto
barred from delivering a plea.
[14]
Nashua gave Olympic five days’ notice
of its intention to apply for default judgment. Still, Olympic
ignored the litigation.
Nashua applied for and was granted default
judgment on 9 June 2022.
[15]
The
papers filed of record
[12]
show that the legal representative Mr. Kriek
[13]
of Olympic received and was served with the notice of application for
judgment by default in terms of rule 31(2) and rule 31(5)
on 1 June
2022 at his offices in Bloemfontein.
[16]
Olympic had about four months to rescue
their case from the date they received service of the action in
January 2022. The legal
representative withdrew as attorney of record
on notice and served this notice on Nashua on 8 June 2022. It is not
known to the
court what the basis for the withdrawal of the attorney
at this crucial stage was. It is common cause that Mr. Abatzoglou
never
communicated or instructed the attorney, one Mr. Kriek, on this
case after he engaged his services. According to the papers Mr.

Kriek’s place of business is in Bloemfontein.
[17]
Olympic,
and specifically Mr. Abatzoglou a director of the company,
[14]
became aware of the judgment on 1 July 2022 when the Sheriff attended
their main office to execute a warrant on the default order.
[18]
Mr. Smit was now appointed as legal
representative by Mr. Abatzoglou, and their first consultation was on
3 July 2022.
[19]
The rescission application had to be filed
on 29 July 2022.
[20]
On 3 August 2022 Mr. Abatzoglou launched an
application for the rescission of the default judgment in the name of
Olympic. It was
set down for hearing on 30 August 2022. Olympic
withdrew this application on 4 August 2022.
[21]
The 3
rd
of August 2022 is also the date
on
which Olympic learnt that Nashua had attached its main bank account.
[22]
On
4 August 2022 Olympic brought an urgent application seeking a stay of
the writ of execution and that it be granted leave to file
a
rescission application. The application was struck off the roll with
costs because it lacked urgency. The application for the
stay of the
writ of execution is apparently still pending. The outcome of the
application or progress thereof, is unknown to the
court.
[15]
[23]
Olympic
launched the present rescission application on 19 August 2022,
thirty-four days after it gained knowledge of the default
judgment
order.
[16]
[24]
Olympic must now seek condonation for the
filing of the rescission application
fourteen
days
outside the 20 days specified in
rule 31(2)(b) that was on 29 July 2022.
[25]
On 23 August 2022 Mr. Smit from
Bezuidenhout’s Attorneys filed their notice of withdrawal as
attorneys of record for Mr. Abatzoglou
and supposedly so, Olympic.
[26]
The rescission application was in the form
of a notice of motion and was even referred to as “Notice of
Motion” on page
2 of the rescission application issued on 19
August 2022.
[27]
Nashua filed a notice in terms of rule 7 on
7 September 2022:
NOTICE
IN TERMS OF RULE 7
[17]
KINDLY TAKE NOTE THAT the
Respondent disputes the authority of Piet Haasbroek Attorneys and,
consequently its correspondent, Honey
Attorneys, to act on behalf of
the Applicant and request that it provides the Respondent with the
following documentary proof within
ten days of service hereof:
(a)   Copies of the
power of attorney, if any
(b)   A copy of the
resolution taken by the Applicant, if any, authorizing Piet Haasbroek
Attorneys and its correspondent,
Honey Attorneys to institute this
application.
DATED at BLOEMFONTEIN on
this the 6th day of SEPTEMBER 2022.
[28]
Nashua’s opposing affidavit was
delivered on 15 September 2022. Olympic delivered its replying
affidavit in the rescission
application
twenty-five
court days
later and on 20 October
2022.
[29]
Nashua served a notice in terms of rule
30/30A on 21 October 2022 (later set down for hearing on 20 April
2023) on Olympic in terms
of which Olympic was notified that its
replying affidavit in the rescission application was delivered
outside the period contemplated
by rule 6(5)(e) and that this
constitutes an irregular step and/or a failure to comply with the
rules. Olympic was afforded ten
days to remove the cause of the
complaint.
[30]
Olympic’s attorney responded in a
letter on 24 October 2022 that the rescission application is
interlocutory in nature, and
the period for delivering a reply as
contemplated by rule 6(5)(e) therefore does not apply. Olympic
maintained that rule 6(11)
is applicable.
[31]
On 4 November 2022 the
ten-day
period for Olympic to remove the cause of complaint expired
.
On 15 November 2022 Olympic was informed that Nashua will proceed
with an application to strike out Olympic’s replying affidavit.

The matter was removed from the roll on 8 December 2022 by Nashua on
notice dated 2 December 2022. The full rule 30/30A application
was
launched on 17 November 2022.
[32]
Nashua
complained on 15 November 2022 that:
[18]
22.
The principle of finality in legal proceedings is fundamental. The
imposition
of time limits to pursue and (sic) application such as the
rescission application in issue here is meant to give effect to the
basic principle that public interest demands that litigation must
come to an end. The need for litigation to end complements the
need
for legal certainty in relation to the finality of disputes.
23.
The supine manner in which Olympic Flame has approached the
litigation in this
matter is hardly indicative of a serious desire on
the part of Olympic Flame to challenge the default judgment and
prejudices Nashua's
right to finality in this litigation.
To make
matters worse, I believe that Nashua has demonstrated in its
answering affidavit to the rescission application that Olympic
Flame
does not have a bona fide defence.
(Accentuation added)
[33]
Olympic opposed the application and brought
a conditional condonation application much later. The conditional
counter condonation
application was only filed on 8 February 2023 and
ironically with an allegation that the rule 30/30A application’s
true purpose
is to delay and frustrate and harass the applicant in
the rescission application:
F. CONCLUSION
39.
For the reasons addressed above, the respondent's uniform rule 30/30A
application
is an abuse. The application lacks merit. Its true
purpose is to engineer a delay and in so doing frustrate and harass
the applicant
with an application such as this. It is therefore
respectfully asked that application (sic) be dismissed with costs,
which costs
are to be on the scale as between attorney and client.
40.
In the alternative to the above:
40.1.
If the Court finds that the
applicant's replying affidavit in the rescission application was

filed late and/or out of time, then and in such event, the applicant
seeks condonation for such late and/or out of time filing.
It is,
with respect, in the interests of justice that the court hearing in
determining the rescission application have regard to
the applicant's
replying affidavit.
[19]
[34]
This
was Nashua’s notice of motion on 17 November 2022:
[20]
NOTICE OF MOTION:
APPLICATION IN TERMS OF
RULES 30 AND 30A
KINDLY TAKE NOTICE that
application will be made on behalf of the RESPONDENT, Connectpro
(Pty) Ltd t/a Nashua Welkom (Nashua) on
8 DECEMBER 2022 at 09:30 or
as soon thereafter as counsel may be heard for an order in the
following terms:
1.    That the
replying affidavit delivered by the applicant, Olympic Flame (Pty)
Ltd in the rescission application in
the above case number be struck
out;
2.    That the
applicant be ordered to pay the cost of the application;
3.    Further
and/or alternative relief.
[35]
In the meanwhile, on 2 December 2022
another notice in terms of rule 7 was filed by Nashua notifying that
there does not exist any
indication that Mr. Abatzoglou a director of
the company or their attorneys have authority to litigate on behalf
of Olympic Flame
(Pty) Ltd.
NOTICE
IN TERMS OF RULE 7
[21]
KINDLY TAKE NOTE THAT the
Respondent disputes the authority of Piet Haasbroek Attorneys and,
consequently its correspondent, Honey
Attorneys, to oppose the Rule
30 and Rule 30A application on behalf of the Applicant and request
that it provides the Respondent
with the following documentary proof
within ten days of service hereof:
(a)  Copies of the
power of attorney; if any
(b) A copy of the
resolution taken by the Applicant, if any, authorizing Piet Haasbroek
Attorneys and its correspondent, Honey Attorneys
to oppose this
application.
DATED at BLOEMFONTEIN on
this the 2nd day of DECEMBER 2022.
[36]
The notice was ignored by Olympic.
[37]
On 9 February 2023 the case was back on the
roll and the court ordered as follows:
Having considered the
documents filed of record and having heard the legal practitioners,
IT IS ORDERED THAT: (By
agreement between the parties)
1.
The application is postponed to 20 APRIL 2023 to the opposed roll
to
be argued;
2.
The Respondent's replying affidavit in terms of the rule 30/30A
application to be filed before or on 27 FEBRUARY 2023;
3.
The heads of arguments to be filed as per court directives;
4.
Costs to stand over for later adjudication.
[38]
The replying affidavit was filed on 27
February 2023. In the affidavit it was made clear by Nashua that
Olympic Flame (Pty) Ltd
as represented by Mr. Abatzoglou and their
legal representatives had neither the authority to bring the
rescission application,
nor do they have the authority to oppose the
rule 30/30A application.
[39]
Nashua
capitulated and yielded in favor of Olympic and the administration of
justice in that, if Olympic be so fortunate to surmount
the obstacle
of authority, Nashua shall not contest the conditional
counterapplication for condonation. This is what is contained
in the
replying affidavit:
[22]
8.
Because this application and rescission application is intertwined
in
respect of the authority issue, and because the legal question
whether Nashua rightly invoked Rule 30/30A will ultimately be

determinative of costs only, Nashua will propose to Olympic Flame
that this application and the recission application be heard
together
in order to save costs and time.
Olympic Flame did not
properly authorise the opposition to this application.
9.
The issue demanding immediate attention is that of authority. Nashua

contends that neither the rescission application purportedly
instituted on behalf of Olympic Flame nor the opposition to this
application was properly authorised.
10.
Mr Johny Abatzouglou (sic), a director of Olympic Flame, sadly passed
away
in September 2021, leaving his wife Ms. Eleni Abatzoglou (Ms.
Abatzoglou), and his brother, Mr. Aristides Abatzoglou (Mr
Abatzoglou)
as the sole remaining active directors.
11.
In the small town of Welkom news travels fast and Nashua heard
through the
scuttlebutt that Mr. and Ms. Abatzoglou were not seeing
eye to eye because she was being side-lined as a director. And that
is
why Nashua was so intently focused on the issue of authority in
the rescission application. I jump ahead in the timeline to say
that
credence was given to these rumours when, in December 2022,
Piet
Haasbroek
Attorneys suggested that I attend round table
discussions between it and Peyper Attorneys because Nashua had an
interest in an "impasse"
that had arisen between Mr. and
Ms. Abatzoglou about “the high Court proceedings.”
I
attach a copy of the letter marked RR1. Nashua declined the
invitation. (Accentuation added)
12.
Nashua raised the point that there was no allegation in Mr.
Abatzoglou's
founding affidavit that the institution of the
rescission application was properly authorised. In addition, Nashua
served under
Rule 7 requiring not only a power of attorney, but also
a company resolution which authorised the appointment of Piet
Haasbroek
Attorneys and its correspondent, Honey Attorneys, to
institute the rescission application. A copy of the Rule 7 notice is
attached
marked RR2.
13.
The Rule 7 notice is still unanswered. In the replying affidavit
deposed
to by Mr Abatzoglou's (sic) he says:
“
34.4
... Ms. Eleni Abatzoglou and I - in our capacities as active
directors of the applicant-confirm and acknowledge that Piet
Haasbroek Attorneys, the applicant's attorneys of record (with all of
the usual and expected duties, obligations, responsibilities
powers
and functions flowing from and or arising out of such appointment)
have the requisite authority to bring this application,
defend the
action, and to prosecute such proceedings to finality (including all
incidental, interlocutory and\(sic) or ancillary
proceedings and/or
appeals in relation thereto).
34.5
Additionally, to the extent required, Eleni Abatzoglou and I
similarly ratify and condone
any and all steps previously taken or
taken thus far by Piet Haasbroek Attorneys on behalf of the applicant
in this application
and its prosecution.
34.6
For the avoidance of any doubt, the aforesaid is also confirmed, on
behalf of the applicant
and on her behalf, by Ms. Eleni Abatzaglou
(sic) via her confirmatory affidavit attached hereto."
14.
But
the purported confirmatory affidavit of Ms. Abatzoglou that is
attached as annexure RA10 to the purported replying affidavit
is
unsigned.
[23]
15.
When Olympic Flame purportedly opposed this application, Nashua
served a further
notice under Rule 7 requiring not only a power of
attorney, but also a company resolution which authorised the
appointment of Piet
Haasbroek Attorneys and its correspondent, Honey
Attorneys, to oppose this application.
16.
The deponent to the answering affidavit in the present application,
Mr Jean
Raymond Castro (Mr. Castro) alleges that he is duly
authorised to oppose the application on behalf (sic) Olympic Flame
and to represent
it, relying on a confirmatory (sic) from Mr.
Abatzoglou.
17.
But nowhere in the confirmatory affidavit of Mr Abatzoglou is it
alleged that the opposition to this application is properly
authorised
. Instead, Mr. Abatzoglou simply affirms that he is a
co-director of Olympic Flame and that he has duly authorised his
attorney
to depose to the answering affidavit. There are two
obviously (sic) difficulties with the allegation, Firstly, Mr.
Abatzoglou speaks
of “his" attorney, Secondly, the
allegation is superfluous and irrelevant because the deponent to an
affidavit in motion
proceedings need not be authorised by the party
concerned to depose to the affidavit.
It is the opposition to the
application that must have been authorised by the directors of
Olympic Flame.
(Accentuation added)
This application is
simply about an irregular step alternatively a failure to comply with
the Rules of Court
18.
Olympic Flame characterises the present application as a stratagem to
prevent it from delivering a replying affidavit. That is hyperbolic
and a distortion of what this application is about.
19.
The question of whether Olympic Flame was obligated to deliver its
replying
affidavit within the prescribed 10 court days is a purely
legal matter. If such an obligation did exist, then Rule 30/30A was
rightfully
triggered
. In order to rectify the irregularity or
comply with the Uniform Rules, Olympic Flame simply had to seek
condonation, which it
ultimately did-albeit conditionally.
(Accentuation added)
20.
The approach taken by Olympic Flame is truly curious. On the one
hand, it unleashes
an unrestrained
ad hominem
attack on Nashua
in response to a wholly legitimate legal challenge. On the other
hand, it requests the court's forgiveness for
the tardy submission of
its replying affidavit if Rule 30/30A was rightfully triggered.
It is difficult to reconcile these
two divergent positions and it is
an affront to the principles of a legal process that demands
consistency and credibility from
parties appearing before the court.
21.
As I indicated, if Olympic Flame be so fortunate to surmount
the obstacle of authority
, Nashua shall not contest the
conditional counterapplication for condonation. However, I must draw
attention to the following point.
Olympic Flame has accused Nashua of
attempting to capitalize on a default judgment that was obtained
fortuitously and without Olympic
Flame's knowledge or presence. This
rhetoric lacks any foundation and is wholly unsustainable when one
considers the objective
facts detailed in Nashua's answering
affidavit.
(Accentuation added)
22.
I also want to point
out that in the replying affidavit delivered by Olympic
Flame, it has
attempted to augment a fundamentally inadequate application for
rescission. That it may not do. It must stand and
fall by the case
that it made in the founding affidavit.
(Accentuation
added)
Conclusion
23.
Neither the
rescission application nor the opposition to this application is

properly authorised. That being so, Mr Abatzoglou should be ordered
to pay the costs of both applications on
an
attorney and own client scale.
(Accentuation
added)
[40]
The
rescission application and the first rule 30/30A application was
enrolled for 20 April 2023.  Hereafter followed the full-blown

issue of the authority of Olympic to have instituted litigation and
to oppose the first rule 30/30A objection. The dispute included
the
filing of the confirmatory affidavit by Ms. Abatzoglou deposed to on
6 April 2023 and a company resolution and minutes dated
16 March 2023
on 12 April 2023 together with the heads of argument. Acrimoniously
Olympic’s attorney wrote to Mr van Wyk
acting for Nashua on 30
April 2023 and challenged them to bring its rule 30/30A application
if they challenge the way the confirmatory
affidavit was filed.
[24]
[41]
This
became a major issue. The affidavit that depends on the confirmation
of the confirmatory affidavit was filed on 20 October
2022 and
deposed to on 19 October 2022. At paragraph 4 of his replying
affidavit Mr. Abatzoglou stated that:
[25]
4.
Eleni Abatzoglou states and confirms that (i) she accepts and
understands
the need for the applicant's bringing of this
application; (ii)
I am, remain and have always been duly
authorised to bring this application on behalf of the applicant,
and
(iii) she, to the extent necessary and/or required ratifies and
condones any and all previous steps that I may have taken on
behalf
the applicant in the bringing and prosecution of this application.
Ms. Eleni Abatzoglou's confirmatory affidavit is attached
as annexure
"RA10" and is in the process of being signed and
commissioned, as she is currently out of the country. (Accentuation

added)
5.
Where I advance legal submissions in this affidavit, I do so
on the
basis of the legal advice furnished by applicant's legal
representatives.
The applicant and I accept and adopt such
advice as our own
. This should not be construed as a waiver
of any privilege that attaches to any of the legal advice procured
from the applicants'
legal representatives. (Accentuation added)
[42]
Counsel for Olympic argued in court that
Nashua was forewarned that the confirmatory affidavit will follow and
that authority to
institute litigation and file a further affidavit
is not an issue. The letter “RR2” indicating an "impasse"

that had arisen between Mr. and Ms. Abatzoglou about “the high
Court proceedings”; and the resolution taken on 16 March
2023,
contradicts the claim under oath of
authority
. It is also not clear why the
fact that Ms. Abatzoglou was overseas prevented the obtaining of her
signature and confirmation.
[43]
The lack of veracity of averments in an
affidavit by Mr. Abatzoglou that existed now and that had to be
confirmed in the confirmatory
affidavit is of concern to this court.
[44]
The
filing of an affidavit and resolution together with heads of argument
when the matter has been set down for hearing within about
a week’s
time, seems procedurally bizarre. It is trite and was acknowledged
during the hearing on October 2023 that authority
to litigate may not
me ratified in retrospection.
[26]
[45]
The matter was not heard on 20 April 2023.
One would suppose it was due to this strange situation, but another
delay followed. On
20 April 2023 the court ordered that:
Having considered the
documents filed of record and having heard the legal practitioners,
IT IS ORDERED THAT: (By
agreement between the parties)
1.
The application(s) set down for hearing is removed from the roll.
2.
The
wasted costs shall stand over for later adjudication
.
(Accentuation added)
[27]
[46]
The
second rule 30/30A application was filed on 18 April 2023 and
launched on 25 May 2023.
[28]
Please
take notice
that the respondent hereby
gives notice that, for the reasons set out below, the further
confirmatory affidavit delivered by the
applicant constitutes an
irregular step.
1.
A party may not, without leave of the court, file further affidavits.
2.
The applicant impermissibly took it upon itself to file a further

affidavit, in the form of a confirmatory affidavit deposed to by
Eleni Abatzoglou on 6 April 2023, without first having obtained
leave
of the court to do so.
Please take further
notice that:
(a)
The respondent hereby affords the applicant a period of 10 (ten) days
within
which to remove the cause of complaint referred to above, to
the extent possible in law, and
(b)
If the applicant fails to remove the cause of complaint, and to the
extent
that the affidavit is not treated as
pro non scripto
,
the respondent intends to apply to the above Hounourable Court in
terms of Rule 30/30A to set aside the filing of the further
affidavit
in question with costs on a scale as between
attorney and own
client.
(Accentuation added)
[47]
Olympic maintained that the rescission
application resorts under rule 6(11) and that the prescribed
dies
in notice of motion applications are not applicable for the filing of
affidavits and rule 6 is silent on confirmatory affidavits.
They
stood steadfast in their rescission application based on the premise
that the default was explicable and reasonable; Olympic
has a
bona
fide
defence in that the product that
Nashua supplied malfunctioned and that there will not be any
prejudice should the rescission application
be granted.
[48]
On
15 June 2023 the court ordered that:
[29]
Having considered the
documents filed of record and having heard the legal practitioner/s,
IT IS ORDERED BY
AGREEMENT BETWEEN THE PARTIES THAT:
1.
The application is postponed to the opposed roll of 24 AUGUST 2023
to
be argued.
2.
The Applicant's answering affidavit in terms of the rule 30/30A
application shall be filed before or on 10 July 2023.
3.
The Respondent's replying affidavit in terms of the rule 30/30A
application shall be filed before or on 26 July 2023.
4.
The heads of argument shall be filed as per court directives.
5.
Costs shall stand over for later adjudication.
[49]
A second set of heads of argument were
filed on 15 August 2023 and 16 August 2023. The previous heads of
argument were filed on
12 and 14 April 2023.
[50]
On 24 August 2023 the court ordered that
the matter be postponed by agreement between the parties for hearing
of “this application”
and that costs shall be costs in
the cause.
[51]
A letter addressed to the court by the
correspondent attorneys for Nashua to the Registrar of this court
dated 4 October 2023 and
so received on 9 October 2023, informed that
the matter was set down for the hearing of the rescission
application, condonation
applications as well as the first and second
rule 30/30A applications on the 26th of October 2023. During their
opening statements
before the court on the 26
th
of October 2023 both parties confirmed this.
[52]
The war on
paper spans from 11 May 2021 until 26 October 2023. I now turn to the
specific issues to be adjudicated.
CONDONATION
APPLICATION FOR THE LATE FILING OF THE RESCISSION APPLICATION &
THE COUNTER CONDITIONAL CONDONATION APPLICATION
[53]
The outcome of
the condonation applications is entwined with the issues hereunder
being; authority, the rule 30/30A applications
and the prospects of
success on the rescission application. I will deal with it in
conclusion at the end of the judgment.
[54]
It is vital
that all the issues must be adjudicated to serve the imperative that
access to justice must be fair, swift and with
finality to be in
service of the rule of law.
AUTHORITY
[55]
Harms
[30]
after careful research of case law stipulated the following
principles regarding authority in the circumstances at hand:
[31]
1.
It is not
necessary that the attorney who signs the notice of motion should
hold a power of attorney.
2.
If the
respondent has reason to doubt the attorney’s authority, he may
raise it as an issue by using the provisions of rule
7(1) which will
then have to be resolved either on the papers or by means of
viva
voce
evidence.
3.
The deponent
to the supporting (founding) affidavit must set out the authority for
the bringing of the application; an allegation
in express terms is
not essential.
4.
It is not
necessary that the deponent or witness itself be authorised to make
the affidavit. It is sufficient to know whether the
attorney acts
with authority.
5.
Where an
artificial person such as a company is the applicant, there ought to
be some proof that it has authorised the bringing
of the application
in its name.
(
Mall
(Cape) (Pty) Ltd v Merino Koöp Bpk supra; Pro-Rite (Edms) Bpk v
Delportshoop Munisipaliteit
[1999] 3 All SA 452
(NC);
Boerboonfontein
BK v La Grange NO en 'n Ander
2011 (1) SA 58
(WCC)).
6.
The
annexing of a copy of the resolution itself is not necessary, but
sufficient proof, under the circumstances, that the application
was
properly authorised, should be laid before the court.
7.
It may also
be necessary to establish that the organ who authorised the
litigation on behalf of the juristic person has the power
to grant
such authority. This may involve an interpretation of the
constitution or enabling statute of the juristic person concerned.
8.
If the facts
permit, authority may be derived from the doctrine of unanimous
consent.
9.
If the point
is raised and the issue has not been fully canvassed in the founding
affidavits, the applicant will be well advised
to
supplement the papers
.
10.
The authority
to initiate the application must relate to the type of application
actually instituted and not to some related but
separate procedure.
11.
Harms
supra
suggests that proceedings launched without any proper authority may
be ratified subsequently, and the fact of ratification may
appear
from the replying affidavit.
12.
Ratification
and condonation suggest that there was no resolution which authorised
the institution of the rescission application
at the time of the
institution of the litigation.
13.
Moreover; in
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency SOC
Limited and Others
(3996/2019)
[2020] ZAFSHC 135
(18 August 2020) two judges of this court, sitting
as a court of review, held that a lack of authority cannot be cured
retrospectively
(in reply).
14.
In the case of
Lancaster
101 (RF) (Pty) Limited v Steinhoff International Holding NV (Markus
Johannes Jooste and another as third parties)
[2021]
4 All SA 810
(WCC) the court ruled that
the
remedy of a respondent who wishes to challenge the authority of a
person allegedly acting on behalf of the purported applicant
is not
to challenge the authority in the answering affidavit, but instead to
make use of rule 7(1) of the Uniform Rules of Court.
The finding of the judgment in the
Lancaster
101 (RF) (Pty) Limited –
case
supra
is that the authority in the circumstances where companies are
involved is vital and rule 7 notices cannot be summarily regarded
as
a delaying tactic. The court ruled that:
Held
– Rule 7(1) provides that the authority of anyone acting on
behalf of a party may, within 10 days after it has come to
the notice
of a party that such person is so acting, or with the leave of the
court on good cause shown at any time before judgment,
be disputed
.
Such person may then no longer act unless he satisfies the
court that he is authorised so to act, and to enable him to do so the

court may postpone the hearing of the action or the application.
(Accentuation added)
15.
The
Lancaster
101 (RF) (Pty) Limited –
case
quoted the following dictum to establish the onus to prove authority
where a company is involved:
[41]
In
Pretoria City Council v
Meerlust Investments
(
Pty
)
Limited
1962 (1) SA 321 (A)
Ogilvie Thompson JA stated as follows:
“
The
question of authority having been raised,
the
onus is on the petitioner to show that the prosecution of the appeal
in this Court has been duly authorised
by
the Council; that it is the Council which is prosecuting the appeal,
and not some unauthorised person on its
behalf
(cf.
Mall
(
Cape
)
(
Pty
)
Ltd
v Merino Ko
-
operasie
Bpk
., 1957 (2) SA 347 (C)
at pages 351–352). As was pointed out in that case, since an
artificial person,
unlike an individual, can only function through
its agents, and can only take decisions by the passing of resolutions
in the manner
prescribed by its constitution,
less
reason exists to assume
, from the mere
fact that proceedings have been brought in its name, that those
proceedings have in fact been authorised by the
artificial person
concerned
.
In
order to discharge the abovementioned onus, the petitioner ought
to have placed before this Court an appropriately worded
resolution
of the Council
. . .
This the petitioner has failed to do” (own emphasis).
[42]
In
FirstRand Bank
Limited v Fillis and another
2010 (6) SA 565 (ECP)
[also reported at
[2010] JOL 26112
(ECP) – Ed], the
court stated that if an attorney’s authority to act on behalf
of a party is challenged, then
in terms of rule 7 of the Uniform
Rules of Court, the attorney is required to satisfy the court that he
is properly authorised
to act on behalf of the litigant.
Until he
has done so, he is precluded from acting further.
The
obligation to establish this authority only arises when the authority
to prosecute the process is challenged.
(Accentuation added)
[43]
In
South African Allied Workers
’
Union and
others v De Klerk NO and others
1990 (3) SA 425 (E),
Jansen J referred to
Mall
(
Cape
) (
Pty
)
Ltd
v Merino Ko
-
operasie Bpk
1957 (2) SA 347 (C)
at 351D–H [also reported at
[1957] 2 All SA 242
(C) –
Ed], where Justice Watermeyer stated as follows:
“
I
proceed now to consider the case of an artificial person, like a
company or co-operative society. In such a case
there
is judicial precedent for holding that objection may be taken if
there is nothing before the Court to show that the applicant
has duly
authorised the institution of notice of motion proceedings
(see
for example
Royal Worcester Corset
Company v Kesler
’
s
Stores
,
1927 CPD 143
;
Langeberg
Ko
-
operasie
Beperk v Folscher and another
, 1950 (2) SA 618 (C)).
Unlike an individual,
an artificial
person can only function through its agents and it can only take
decisions by the passing of resolutions in the
manner provided by its
constitution
. An attorney instructed to
commence notice of motion proceedings by, say, the secretary or
general manager of a company would not
necessarily know whether the
company had resolved to do so, nor whether the necessary formalities
had been complied with in regard
to the passing of the resolution.
It
seems to me
,
therefore
,
that
in the case of an artificial person there is more room for mistakes
to occur and less reason to presume that it is properly
before the
Court or that proceedings which purport to be brought in its name
have in fact been authorised by it
.
There
is a considerable amount of authority for the proposition that
,
where
a company commences proceedings by way of petition
,
it
must appear that the person who makes the petition on behalf of the
company is duly authorised by the company to do so
(see
for example
Lurie
Brothers Ltd v Arcache
,
1927 NPD 139
, and the other cases mentioned in Herbstein and van
Winsen,
Civil
Practice of the Superior Courts in South Africa
at
pages 37, 38).
This
seems to me to be a salutary rule and one which should apply also to
notice of motion proceedings where the applicant is an
artificial
person. In such cases some evidence should be placed before the Court
to show that the applicant has duly resolved to
institute the
proceedings and that the proceedings are instituted at its instance
”.
(Own emphasis).
16.
The gist of
the
Lancaster
101 (RF) (Pty) Limited –
case
and the dictum above seem to be that the court may apply its inherent
jurisdiction to inquire whether authority existed at
the time of the
institution of litigation. If the conduct of the director was
bona
fide
and
in the interest of the company ratification may occur. It will depend
on the facts of the case. But the court ruled:
Held:
…Consequently, the resolution was invalid, and the automatic
consequence was that Naidoo failed to show that he was
authorised to
act.
In the absence of his authority to act, then any instruction
that he had given to any legal representative to act on Lancaster’s

behalf in the proceedings was similarly invalid.
(Accentuation
added)
[56]
This brings
the facts of this case to the fore. It shows that authority did not
exist at the time when the rescission application
was initiated and
the first rule 30/30A application opposed. The suggestion by Olympic
that they were authorised to institute litigation
was a
misrepresentation to court. Whether willful or by pure
bona
fide
mistake is another question. Two rule 7 notices were ignored and
Olympic as assisted by competent legal representatives painted
a
picture of the existence of authority whilst well knowing that they
did not have authority. They then endeavored to bring into
evidence
the besieged confirmatory affidavit and the resolution with their
heads of argument.
1.
I reiterate;
at the time of the launching of the rescission application on 19
August 2022 Mr. Abatzoglou did not have authority
to institute the
litigation on behalf of the company. He merely stated in the founding
affidavit dated 19 August 2022 that:
1.4
I depose to this
affidavit in my official capacity as director of the Defendant
and in
my personal capacity cited as the third defendant in the main action.
2.
The statement
of Mr. Abatzoglou in his replying affidavit in the rescission
application deposed to on 19 October 2022 does not take
his case any
further. I did refer to it already.
3.
The statement
of Mr. Abatzoglou lacks corroboration. The confirmatory affidavit was
not signed; apparently because the deponent
was overseas. It does not
make sense that in 2022 unsigned affidavits are filed because
deponents are overseas. Technology and
the admissibility of the
presentation of evidence of this nature has made these excuses
questionable. It took Ms. Abatzoglou almost
6 months to sign the
confirmatory affidavit.
4.
In addition;
the confirmatory affidavit dated 6 April 2023 only attested to the
truth of the replying affidavit of Mr. Abatzoglou
that was deposed to
on 19 October 2022.
5.
That said; the
authorization did not exist because the information confirmed does
not grant legal authorization to institute litigation
and the like.
6.
It was
suggested that in December 2022 there existed an "impasse"
that had arisen between Mr. and Ms. Abatzoglou about
“the high
Court proceedings.” They are the two remaining directors of the
company.
There
was not any consensus between the directors of the company about the
institution of litigation and the resolution was only
achieved in
March 2023.
7.
Erasmus
[32]
with reference to
Eskom
Holdings Soc Ltd v Masinda
2019 (5) SA 386
(SCA) pointed out that the procedure of adducing
evidence by way of hearsay evidence in the main affidavit, supported
by so-called
“confirmatory affidavits” by the witnesses
who should have provided the necessary details, but who merely sought
to
confirm what was said in the main affidavit “insofar as
reference [has been] made to me”, was criticized by the Supreme

Court of Appeal and described as a “slovenly practice”.
The rule is that the necessary allegations upon which the applicant

relies must appear in the founding affidavit, as the applicant will
not generally be allowed to supplement the founding affidavit
by
adducing supporting facts in a replying affidavit nor in a
confirmatory affidavit.
8.
The resolution
that is an extract from the meeting of the directors of Olympic was
only taken on 16 March 2023. It is a ratification
of the legal steps
taken until then and a further authorization of Mr. Abatzoglou and
Piet Haasbroek to litigate in the matter.
The dictum in the matter of
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency SOC
Limited and Others
(3996/2019)
[2020] ZAFSHC 135
(18 August 2020) is the law:
[21]
The Founding Affidavit makes no
mention of the company resolution. The deponent sought
to amend this
defect in the Replying Affidavit by attaching the resolution that
simply said: “2. All steps previously taken
by Mario
Engelbrecht on behalf (sic) the company is hereby rectified as it may
be necessary” As mentioned in Interboard,
a later decision will
not serve as a ratification of or give retrospective authority for
the launching of the application.
Rule 6 of the Uniform Rules of
Court provides that the Applicant’s right/authority to apply,
that is, the applicant’s
locus standi, should be established in
the Founding Affidavit and not in the Replying Affidavit.
The deponent to the affidavit need not be authorised by the party
concerned to depose thereto, it is the institution of the
proceedings
thereof that must be authorized
. In my view and taking into
consideration the above, the applicant cannot rectify the defect in
its application retrospectively
. The court cannot therefore find
that Mario Engelbrecht had the necessary authority to bring the
review application in this matter.
(Accentuation added)
9.
I agree that
the case for authority, specifically where artificial persons such as
companies are involved, must be made at the beginning
of the case; it
should be established in the founding affidavit
.
The consequences of a lack of lawful and legitimate authority may be
wasted and moot litigation that results in illegal orders
and an
implosion of the rule of law sustained by the administration of
justice.
10.
In
casu
the authority that is a mere retrospective ratification was only made
available to Nashua on 12 April 2023 when the heads of argument
were
filed. The
audi
alteram partum dictum
comes into play here. Parties must know the case against them, be
granted the opportunity to answer thereto and to have a fair
trial.
The filing of the resolution and the confirmatory affidavit is
procedurally unacceptable and constitutionally wrong.
11.
Two rule 7
notices were brushed aside and ignored. If authority and a resolution
existed, the mere filing thereof after the first
rule 7 notice on 7
September 2022 would have put an end to the issue. The truth is that
authority did not exist; hence the delay.
[57]
Counsel for
Nashua is correct when they added in their heads of argument that
shifting focus to the Rule 30/30A application, the
answering
affidavit, allegedly filed on behalf of Olympic, was deposed to by
Mr. Jean Raymond Castro. He claims to have the proper
authorization
to oppose the application on Olympic's behalf. As evidence, he relies
on a confirmatory affidavit provided by Mr.
Abatzoglou.
It should have been
self-evident that Mr. Abatzoglou's confirmatory affidavit offers no
help, as he merely attests to being a co-director
of Olympic and that
'he' has duly granted 'his' attorney the authority to depose to the
answering affidavit. That does not satisfy
the requirement of proving
that the opposition to the application was properly authorised.
[58]
The
application must be dismissed on the issue of authority and in total
and with severe costs findings. Mr. Abatzoglou’s
conduct was in
breach of his fiduciary duties to the company. The noncompliance of
the law by Olympic did not stop here.
THE
ALLEGED BREACH OF RULE 6 OF THE UNIFORM RULES OF COURT BY OLYMPIC AND
THE RULE 30/30A APPLICATIONS
[59]
I reiterate;
in the case of
Thwala v Miway
Insurance Ltd; In re: Miway Insurance Ltd v Thwala
(A
230/21) [2022] ZAGPPHC 843 (8 June 2022),
Du
Plessis AJ (with Davis J) it was confirmed that
a
rescission application is an interlocutory order since it is
associated with the main action, regulating the conduct or the course

of the proceedings
.
It is only
once an application for a rescission order is dismissed that it will
have a final effect.
The question remains as to how the affidavits in terms of the
disputes in this case had to be dealt with.
[60]
Counsel for Olympic refers to their
application as a
notice of motion
in footnote 3 of their heads of arguments dated 12 April 2023. The
form prescribed for a notice of motion was used to draft the

application. This would indicate that Olympic opted for the notice of
motion route and not just a notice in terms of rule 6(11).
[61]
It is Olympic’s case that rule
6(11) is applicable to the rescission application because it is
interlocutory in nature and
rule 6(11) does not contain or specify
time periods within which affidavits must be filed.
[62]
Rule 31(2)(b) indicates that rescission
applications in terms of this rule may be brought on notice:
Rule 31(2)(b):
A defendant
may,
within 20 days after acquiring knowledge of such judgment, apply to
court upon
notice
to the plaintiff to set aside such judgment
and the court may, upon good cause shown, set aside the default
judgment on such terms
as it deems fit. (Accentuation added)
[Sub-r. (2) substituted
by GNR.417 of 1997 and by GNR.61 of 25 January 2019.]
[63]
Harms
[33]
with reference to case law noted that there is a difference between a
notice and a notice of motion:
The provisions of rule
6(5)(e) relating to the time within which further affidavits must be
filed, do not apply to interlocutory
applications, but the applicant
risks a postponement at his expense if the times allowed by him are
too short.
In other words, further affidavits must be filed within
a reasonable time and such time will usually be shorter than the time
allowed
by rule 6(5)(e).
Use
of the wrong form does not lead to a nullity of the proceedings, but
they remain irregular and may be set aside under rule 30
.
(Accentuation added)
[64]
Rule
6(11) dictates that notwithstanding the foregoing sub-rules,
interlocutory and other applications incidental to pending
proceedings
may
be brought on notice supported by such affidavits as the case may
require and set down at a time assigned by the registrar or as

directed by a judge. Erasmus
[34]
pointed out that “May be brought on notice” in this
subrule does not mean notice of motion. Olympic brought the
rescission
application in the wrong procedurally prescribed form.
[65]
Olympic demanded that
the answering affidavit must be filed within 15 days after notice to
oppose the application was filed and
referred to “rule
6(5)(b)(1)”. The opposing affidavit was filed on 15 September
2022.
[66]
Olympic proceeded to
file their replying affidavit on 20 October 2022. Rule 6(5)(e)
prescribes that within 10 days of the service
upon the respondent of
the answering affidavit and documents the applicant may deliver a
replying affidavit. The court may in its
discretion permit the filing
of further affidavits. In terms of rule 6(5) the replying affidavit
was late.
[67]
If rule 6(11)
applies, the replying affidavit had to be filed within a reasonable
time. The yardstick is the period prescribed in
rule 6(5) and in the
context of the facts before the court. In
Gisman
Mining and Engineering Co (Pty) Ltd (In Liquidation) v LTA Earthworks
(PTY) LTD
1977 (4) SA 25
(W) at page 26 it was ruled that:
Whatever
the correct reading of Rule of Court 6 (11) relating to interlocutory
applications may be, it cannot mean that in an interlocutory
matter
the applicant has unlimited time to file a replying affidavit. If the
correct position is that there is no Rule defining
exactly the time
within which affidavits must be filed, then the Rule should at least
be read to mean that they must be filed within
a reasonable time.
Prima facie a reasonable time would certainly not be longer
than the time prescribed in terms of Rule of Court 6(5)(e), unless
there
were some special circumstances applying.
(Accentuation added)
[68]
The time that
lapsed between 15 September 2022 and 20 October 2022 measured to the
10 days is unreasonable and constitutionally
untenable. Chaos and
vigilante litigation will break out if parties are allowed to file
affidavits when and how they deem fit in
reliance of rule 6(11); this
may not be condoned.
The
application in terms of rule 30/30A must succeed on the fact that the
late filing of the affidavit was procedurally illegal,

unconstitutional, and Olympic lacked authority to oppose the
application. Condonation may not be granted for the late filing due

to the cluster of irregularities committed.
[69]
The way the
confirmatory affidavit was managed is worse. Rule 6 is indeed silent
on this. Nashua argues that permission ought to
have been obtained
from the court to file a further affidavit. The arguments in the
heads of arguments of Nashua dated 15 August
2023 from paragraph 20
to 46 is indeed the law. I will not recite it in the judgment. The
dictum cited by Olympic themselves in
their heads of argument dated
12 April 2023 works against them for the way they ploy the law by
bizarrely attaching an affidavit
to their heads of argument. It is
trial by ambush. This is the words of Olympic in their heads of
argument dated 12 April 2023
that now holds them accountable for
their own untoward conduct:
1.
The
audi
alteram partem
rule is “an ancient rule that has existed since the dawn of
time". Audi alteram partem (or audiatur et altera pars),
whilst
having ancient Greek hereditary is the Latin maximum for "listen
to the other side" (or "let the other side
be heard as
well") It a central canon of natural justice that mandates
fairness, namely that no person should be judged without
a fair
hearing in which each party is given the opportunity to respond to
the evidence against them.
[70]
A
confirmatory affidavit is a legal document that confirms the
authenticity of a statement or fact made by an individual.
Erasmus
[35]
noted that if an
affidavit sets out facts based on hearsay information, the deponent
must state that the allegations of fact are
true to the best of his
information, knowledge and belief and state the basis of his
knowledge or belief; and failure to state
the source of the
information or grounds of belief in the original affidavit is an
irregularity that cannot be cured by stating
them in a replying
affidavit. It does not follow, however, that the court is obliged to
accept such hearsay evidence, even if the
source and the grounds for
the belief are furnished.
[71]
The evidence
showed that there was no consensus on the litigation between the
directors at the time Mr. Abatzoglou claimed such
and neither
authority to litigate. The unsigned confirmatory affidavit used in
the replying affidavit has no evidentiary value
and the signed
confirmatory affidavit contradicts the allegation that consensus
existed on the authority on the date it was claimed.
JUST
CAUSE FOR RESCISSION
[72]
It was noted in the
beginning that this case could have been a simple matter of a trial.
Unfortunately, the one defect after the
other in the way that Olympic
litigated caused the wheels of justice to derail. This is what
Olympic,
inter
alia
and
undisputedly so, did whilst represented by attorneys and counsel:
1.
They did not
answer to the invitation to go to trial; the very issue they now pray
for;
2.
they ignored
the notice that a default judgment application is pending;
3.
they filed two
applications for the rescission of the default judgment and late;
4.
they filed
their replying affidavit on the rescission application out of time or
not within reasonable time;
5.
they entered
into litigation without authority;
6.
the claim of
authority to have existed was not true;
7.
they filed a
confirmatory affidavit and a company’s resolution in total
disregard to the
audi
alteram partem
dictum with their heads of argument when the matter has already been
set down for hearing. The date of hearing was 20 April 2023;
the
papers were filed on 12 April 2023;
8.
worst; they
became belligerent and insulting and claimed
de
bonis propriis
costs orders for litigation they invited. Fortunetaly counsel in
court conducted themselves with the utmost decorum.
[73]
Constitutional principles have come to play a pivotal role in
matters of this kind and specifically in rescission applications. In
RGS Properties (Pty) Ltd v Ethekweni Municipality
2010 (6) SA
572
(KZD) a mindful and balanced approach by courts adjudicating
these cases was the resolve to the constitutional challenge. The test

as summarised is:
1.
A court should not, in an application for
the rescission of a default
judgment,  scrutinise too closely whether the defence is well
founded, as long as,
prima facie
, there appears to the court
sufficient reasons for allowing the defendant to lay before court the
facts he thinks necessary to
meet the plaintiff's claim.
2.
Where a defendant has never clearly acquiesced
in the plaintiff's
claim, but persisted in disputing it, the court should be slow to
refuse him entirely an opportunity to have
his defence heard.
3.
Judgment by default is inherently contrary
to the provisions of
section 34 of the Constitution. This section provides that everyone
has a right to have any dispute that can
be resolved by the
application of law decided in a fair public hearing before a court,
or, where appropriate, another independent
and impartial tribunal or
forum.
4.
Therefore, in weighing up facts in an application
for the rescission
of a default judgment, the court must balance the need of an
individual who is entitled to have access to court
and to have his or
her dispute resolved in a fair public hearing, against those facts
which led to the default judgment being granted
in the first
instance.
5.
In its deliberation, the court will no doubt
be mindful, especially
when assessing the requirement of reasonable cause being shown, that,
while, among others, this requirement
incorporates showing the
existence of a
bona fide
defence, the court is not seized with
the duty to evaluate the merits of such defence.
6.
The fact that the court may be in doubt about
the prospects of the
defence to be advanced, is not a good reason why the application
should not be granted.
7.
That said, however, the nature of the defence
advanced must not be
such that it
prima facie
amounts to nothing more than a
delaying tactic on the part of the applicant.
8.
An absolute constitutional rejection of default
judgments will not
suffice because there is a persistent tension between commercial
certainty and prompt remedies in law for non-compliance
with
contracts and court orders, on the one hand; and the right to access
to courts on the other hand.
9.
Each case must be adjudicated on its own merits
and there is no
numerus clausus
of factors. The law is that the court has a
wide discretion in evaluating good cause to ensure that justice is
done. The explanation
for default must be stated and be reasonable.
The default may not be wilful and an attempt to delay justice.
[74]
Olympic wants to put
the merits of the case before a court in pursuit of their right in
terms of section 34 of the Constitution
of the Republic of South
Africa, 1996. Basically, they claim that Nashua did not perform in
terms of the contracts. The product
Nashua delivered, according to
Olympic, allegedly malfunctioned. It is trite that Olympic summarily
suspended payment in terms
of the contract and in contravention to
the terms of the contract.
[75]
The dispute could
have been resolved in a court of law if Olympic had not disappeared
from the litigation after they were summoned
to court to exercise
their right in terms of the Constitution. The dispute could have been
adjudicated shortly after 17 January
2022 when the summons issued on
13 December 2021 was served. The history of the contracts also shows
that discord prevailed between
the parties and that they had to
realize that they must take legal steps to bring the acrimonious
legal relationship to a solution.
Both parties were throughout
represented by attorneys.
[76]
Section 34 of the
Constitution cuts both ways; both Olympic and Nashua have a right to
justice by the effective application of the
administration of justice
and the utmost respect to the rule of law.
[77]
The dichotomy whereby
a party challenged the other to bring rule 30/30A applications and
now threatens with costs orders
de
bonis propriis
does not make sense. This is unacceptable and could have been
prevented.
[78]
Venmop 275 (Pty)
Ltd and Another v Cleverland Projects (Pty) and Another
(2014/14286) [2015]
ZAGPJHC 176;
2016 (1) SA 78
(GJ) (3 August 2015) said it all and lays
down the law:
[7]
The efficient
conduct of litigation has as its object the judicial resolution
of
disputes optimising both expedition and economy.  The conduct
and finalisation of litigation in a speedy and cost-efficient
manner
is a collaborative effort.  The role of witnesses is to testify
to relevant facts of which they have personal knowledge.
The
role of legal representatives has two key aspects. First is the
supervision, organisation and presentation of evidence of the

witnesses and secondly, the formulation and presentation of argument
in support of a litigant’s case. The diligent observation
of
those roles facilitates the role of the judicial officer, which is to
arrive at a reasoned determination of the issues in dispute,
in
favour of one or other of the parties.
Where practitioners
neglect their roles, it leads to the protracted conduct of the
litigation in an ill-disciplined manner, the
introduction of
inadmissible evidence and the confusion of fact and argument, with
the attendant increase in costs and delay in
its finalisation,
inimical to both expedition and economy.
(Accentuation added)
[8]
Litigants may
not be allowed to turn their backs on the justice system and the
court and walk away as, and when, and how it suits
them and then
return when the shoe pinches. It often ensues that the party with due
knowledge of the ongoing court case ignores
the litigation and stays
away from court and then abruptly reacts when a warrant of execution
is implemented. This cannot be tolerated
by our courts anymore.
[79]
Litigants are the
masters of their cases and not their legal representatives
.
It should not be necessary for the court to protect the rule of law
against litigants. The Constitutional Court in the Zuma -
case
supra
was clear
and unyielding when it was ruled that:
[2]
... Ironically, the judgment now impugned, contains a thorough
exposition
of the rule of law and its fundamental importance to South
Africa’s constitutional democracy.  Indeed, it says, “[n]o

one familiar with our history can be unaware of the very special need
to preserve the integrity of the rule of law” in South
Africa.
Yet, with the finality of its decision questioned, this Court, once
again, finds itself tasked with defending the integrity
of the rule
of law.
[103]
…If our law, through the doctrine of peremption, expressly
prohibits litigants from acquiescing
in a court’s decision and
then later challenging that same decision, it would fly in the face
of the interests of justice
for a party to be allowed to willfully
refuse to participate in litigation and then expect the opportunity
to re-open the case
when it suits them.
It is simply not in the
interests of justice to tolerate this manner of litigious
vacillation
. (Accentuation added)
[80]
It is the constant
tug of war between contractual freedom and the administration of
justice that often prevails in cases of this
nature that causes the
complications. The litigants here did not resolve their disputes in
terms of the contracts. Mediation failed
dismally. Eksteen JA in
Basson v
Chilwan and Others
[1993] ZASCA 61
;
1993 (3) SA 742
(A) at 761 to 762 remarked that:
In
Roffey's
case
supra
Didcott
J refers to the
dictum
of Jessel MR in
Printing
and Numerical Registering Co v Sampson
(1875) LR 19 Eq 462
with approval, where the learned Judge said at 465:
'If
there is one thing that more than another public policy requires, it
is that men of full age and competent understanding shall
have the
utmost liberty of contracting, and that their contracts when entered
into freely and voluntarily shall be held sacred
and shall be
enforced by courts of justice. Therefore you have this paramount
public policy to consider that you are not lightly
to interfere with
this freedom of contract.'
In
weighing up the public interest involved in the principle of freedom
of trade against the sanctity of contracts, Didcott J came
to the
conclusion (at 505C-H) that 'South African law prefers the sanctity
of contracts' and he went on to stress the importance
in the public
interest that
'people should keep their promises'
.
The principle that
pacta sunt servanda
, particularly
where parties contract on a basis of equality, is generally accepted
as an important part of our Roman-Dutch law
and stems from the basic
requirement of good faith.
It is grounded therefore not only in
law but also in morality.
(Accentuation added)
[81]
The very simple
imperative is that “people should keep their promises; it is
grounded not only in law but also morality”.
It speaks to the
preservation of a civilized democratic society. Courts should not be
called upon to remedy unbecoming litigious
behavior by litigants;
courts must be accessed to serve the constitutional decree
to
settle disputes
that is situated in the right to access to courts in terms of section
34 of the Constitution of the Republic of South Africa, 1996.
All
litigants have this same right, and it may not be obstructed by the
unexplained or willful absence of a party at a trial
.
[82]
Justice
Ackermann in
Ferreira
v Levin NO; Vryenhoek v Powell NO
1996
(
1
)
SA
984
(
CC
)
at paragraph [26] described equal protection under the law as: “a
central consideration in a constitutional state”.
These
statements aim for reasonable certainty, so that parties can go about
their business knowing the rules of the game; constitutional
economic
integrity is vital.
[83]
The
above goes to a basic civilized society. Bowden
[36]
discussed
this dichotomy to be managed in a democracy:
R.G.
Collingwood has outlined three aspects of civilization: economic,
social, and legal. Economic civilization is marked not simply
by the
pursuit of riches—which might actually be inimical to economic
civilization—but by “
the civilized pursuit of
wealth.”
… (Accentuation added)
The
default
[84]
I turn to the
explanation for the default.
1.
Olympic lays the blame for
its default at the door of its former attorney, Mr. Kriek.
In
Minister of Police v Murray, Murray v Minster of Police
(A81/2016)
[2016] ZAWCHC 152
(2 November 2016) the court ruled on
this issue.
[16]
The law reports are replete with
examples of courts visiting the negligence of legal representatives

on their clients. The rationale for the approach is easy to
understand.  The conduct of litigation affects all the parties

to it, and also the judicial system in which it takes place.  A
litigant chooses its representative and if it chooses badly
or fails
to ensure that its representative is effectively carrying out its
mandate,
the resultant prejudice is something that it, rather than
the other litigants and the court system, should bear.
The
courts’ approach is not a mechanical one, however; due regard
is had to the interests of justice on the facts of
the given case in
deciding whether or not to be forgiving to the litigant for the sins
of its legal representative.  It is
for that reason that in a
case like the current matter the court exercises its discretion with
regard to all aspects of the case.
(Accentuation added)
2.
The
allegations against Mr. Kriek are entirely unfounded based on the
evidence; Olympic did not actually instruct Mr. Kriek to file
a plea
and they have not provided him with the necessary instructions to
plead to the allegations contained in the particulars
of claim. Word
for word from the replying affidavit of Mr. Abatzoglou he never
communicated with Mr. Kriek:
38.2
I never personally met or
communicated with Mr Kriek. The applicant and I were referred
to him
and his firm by Mr Kruger, given Mr Kruger's conflict of interest.
Because Mr Kruger suggested and recommended Mr Kriek,
I expected Mr
Kriek to act as Mr Kruger would, and given that Mr Kruger had
recommended him and interacted with him, the applicant
and I believed
that the applicant was in safe hands (so to speak).
38.3
Mr. Kruger communicated directly with Mr. Kriek on my behalf in
respect of the referral
to him and provided him with a copy of the
plaintiff summons and my contact details, and furnished him with the
applicant's instruction,
on his recommendation, to enter an
appearance to defend. Mr. Kruger knew, from my initial interactions
with him, that (i) the applicant
denied being liable to the
respondent, (ii (sic) the basis upon which such liability was (at
least in broad terms) and (iii) the
applicant wished and intended to
defend the respondent's action.
3.
The above are noteworthy because:
[37]
1.
Olympic admits to not
having personally met or communicated with Mr. Kriek and it speaks
volumes about Olympic’s commitment
to the case.
2.
Olympic’s
claimed reliance on Mr. Kruger's recommendation of Mr. Kriek does not
absolve it from its responsibility to communicate
with and instruct
its attorney. Simply expecting Mr. Kriek to act as Mr. Kruger would
have, without establishing a clear line of
communication, is not a
sufficient basis for legal representation. To appoint an attorney is
not sufficient, it is the duty of
the litigant to instruct his legal
representatives properly and effectively.
3.
There could not have
been any presumption that Mr. Kruger, due to his existing conflict of
interest, was able to delegate authority
to Mr. Kriek or offer
instructions on Olympic’s behalf. Furthermore, the
responsibility of providing direct instructions
to Mr. Kriek fell on
Olympic.
4.
Olympic appears to
have become disinterested in the management of the case after it had
been referred to Mr. Kriek by Mr. Kruger.
It has not provided any
acceptable explanation for its failure to keep in touch with Mr.
Kriek as to the progress of the matter.
Olympic cannot be absolved
from blame.
5.
The impression that
is created is that Olympic treated the matter with utter
indifference. It is the author of its own problems,
and it would be
inequitable to visit Nashua with the prejudice and inconvenience
flowing from such conduct. This attitude and conduct
of Mr.
Abatzoglou caused extensive litigation, delay in the finalisation of
the case and affected the administration of justice
negatively.
6.
Olympic was assisted
and represented by different legal representatives and it maintained
an attitude of noncompliance with the
rules of court. It does not
make good sense that a legal representative would fail in his duty
towards his client on the excuse
that he could not contact him. Mr.
Kriek could have contacted Mr. Kruger that had, apparently so, an
open line to Mr. Abatzoglou.
The duty in law is on Olympic to ensure
that their legal representative is properly and timeously instructed.
7.
Olympic caused severe
delays in this case by, for instance, ignoring the rule 7 notices and
filing their affidavits and presenting
their evidence as and when
they deemed fit and in disregard of the rules of court.
8.
The conduct of an
applicant that causes default and prejudice may however not be used
against the applicant to punish. If there
exists a valid defence,
rescission must be granted.
The
bona fide
defence
[85]
Slotting
in with the above and after careful examining of the mosaic of
evidence the only reasonable conclusion is that the defence(s)
of
Olympic are not valid in law. The defence of Olympic can be
described; if measured to the facts and the reality of the case,
as
inherently unconvincing. The fact that a layperson subjectively and
honestly believes in his defence does not raise it to
bona
fide
in the sense required here and in law. The applicant in a rescission
application, conversely, need not establish a
prima
facie
defence. The applicant need only set out the facts which if
established at the trial, would constitute a good defence.
[38]
Olympic did not meet the yardstick summed simplistically in
Breitenbach
v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T) on page 228:
There
is no magic whereby the veracity of an honest deponent can be made to
shine out of his affidavit. It must be accepted that
the sub-rule was
not intended to demand the impossible. It cannot, therefore, be given
its literal meaning when it requires the
defendant to satisfy the
Court of the
bona
fides
of
his defence.
It
will suffice, it seems to me, if the defendant swears to a defence,
valid in law, in a manner which is not inherently and seriously

unconvincing.
(Accentuation
added)
[86]
The proposals of
Nashua in their heads of argument dated 14 April 2023 at paragraphs
39 to 67 against a
bona
fide
defence are correct. A valid defence does not exist and rescission
cannot be granted.
THE
ISSUE OF ACQUIESCENCE BY OLYMPIC
[87]
The allegation by
Nashua that Olympic acquiesced in the default judgment order does not
appear to be true, verifiable and is not
supported by facts. Counsel
for Olympic in their heads of argument dated 12 April 2023 is correct
in the submissions made from
paragraphs 65 to 70 and I will not
repeat it.
CONCLUSION
& COSTS
[88]
The application for
rescission failed when the authority of Mr. Abatzoglou to institute
and maintain the litigation up until March
2023 was proven beyond any
doubt to be nonexistent. The application for rescission was thus
unlawful for this fact only.
[89]
Moreover, are the
explanations for the late filing of the rescission application and
the late filing of the replying affidavit in
the rescission
application not sufficient and satisfactory; neither in law nor in
fact.
Both the condonation
applications must fail. The condonation application for the late
filing of the rescission application due to
the fact that there was
not any authority for the litigation and that there are not any
prospects of success of the rescission
application both on default
and defence. The conditional counter condonation application fails on
the reality of a lack of authority
as well as the illegal process
that was followed.
[90]
The manner in which
the replying affidavit and the confirmatory affidavit in the
rescission application was placed before the court
is procedurally
and constitutionally unacceptable. The first and second rule 30/30A
applications must succeed.
[91]
The claim by Nashua
that Olympic acquiesced in the judgment was dismissed;
notwithstanding it did not assist Olympic in their application.
The
evidence in conspectus is against them.
[92]
The claims by Nashua
in terms of rule 30/30A and rule 7 were justified. It was proactive,
necessary and promoted proper legal process
on the facts of this
case. It protected the case against a miscarriage of justice and law.
Olympic by their unacceptable conduct,
caused this litigation.
[93]
There does not exist
any
bona
fide
explanation nor defence on the side of Olympic to fulfil the
obligation of just cause.
[94]
The prejudice suffered by Nashua and the
administration of justice is the final nail in the coffin; the
extensive and expensive
litigation caused by Olympic is
unconstitutional. The claim that the money in trust protects against
prejudice is not convincing.
The risk of illegal litigation and
orders in the end is worrisome and prejudicial to the litigants, the
court and the administration
of justice.
[95]
The words in the case
of
Minister
of Home Affairs v Ahmed and Others
(A102/17)
[2019] ZAGPPHC 19 (14 February 2019) speak volumes to the conduct of
Olympic during the litigation: “Insults in
Court are not to be
tolerated, no matter what the subject-matter at hand is. There is no
room for abuse or insults in Court proceedings,
be it verbally, or in
affidavits.”
[96]
The practise that has
become too common in that attack is the best defence and that it be
by threats of punitive costs orders, must
seize. It offends
litigants’ and legal practitioners’ constitutionally
protected dignity and the administration of
justice.
[97]
Costs must follow the cause. I am tempted
to order that costs be on a punitive scale, but Nashua requested
costs on a party and
party scale and I will allow it as such.
[98]
I am indebted to the counsel for both parties that
submitted draft orders to court on short notice. The draft order
submitted by
counsel for Nashua will be followed.
[99]
ORDER
1.
The filing of the confirmatory affidavit deposed
to by Eleni
Abatzoglou on 06/04/2023 in support of the applicant’s
rescission application is set aside as an irregular step;
2.
The application for rescission is dismissed;
3.
The applicant is ordered to pay the costs
of the rescission
application and both rule 30/30A applications on a party and party
scale. Such costs, to include the costs of
two counsel where so
employed.
M
OPPERMAN J
APPEARANCES
On
behalf of Olympic Flame (Pty) Ltd
G.W.
AMM
Sandton
Piet
Haasbroek Attorneys
Welkom
c/o
Honey Attorneys
Bloemfontein
On
behalf of Connectpro (Pty) Ltd t/a Nashua Welkom
N
SNELLENBURG SC
W.A.
VAN ASWEGEN
Bloemfontein
Van
Wyk Attorneys
Welkom
c/o
Hill McHardy & Herbst Attorneys
Bloemfontein
[1]
“
Olympic”.
[2]
“
Nashua”.
[3]
In the case of
Thwala
v Miway Insurance Ltd; In re: Miway Insurance Ltd v Thwala
(A
230/21) [2022] ZAGPPHC 843 (8 June 2022) (Du Plessis AJ (with Davis
J) at [24] it was confirmed that a rescission application
is
interlocutory since it is associated with the main action. It is
only once an application for a rescission order is dismissed
that it
will have a final effect.
[4]
“Rescission Application” at pages 1 to 22.
[5]
IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Before
the Honourable Acting Deputy Justice President C REINDERS
On
the 9th day of JUNE 2022
In
the matter between:
CONNECTPRO
(PTY) LTD
Applicant/Plaintiff
t/a
NASHUA WELKOM
[Registration
number: 2018/[…]]
and
OLYMPIC
FLAME (PTY) LTD
Respondent/Defendant
[Registration
number: 1971[…]]
Having
considered the documents filed of record and having heard the legal
practitioner for the applicant/plaintiff,
IT
IS ORDERED THAT:
1.
Default judgment is granted against the Respondent in favour of the
Applicant in the following terms:
CLAIM
1:
(a)
The Respondent shall immediately return to the Applicant the
CCTV with serial number: C4934927.
(b)
The Respondent shall pay the Applicant the amount of R135
958.68.
(c)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
summons served to date of payment.
(d)
The Respondent shall pay the Applicant the amount of R626 143.48.
(e)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
judgment to date of payment.
(f)
Costs of suit on an attorney and client scale.
CLAIM
2:
(a)
The Respondent shall immediately return to the Applicant
the following goods:
(i)
Time and attendance:

serial number: OGT6040056032200071;
(ii)
Time and attendance:

serial number: OGT6040056032200085;
(iii)
Time and attendance:

serial number: OGT6040056032200179;
(iv)
Time and attendance:

serial number: OGT6040056032200392;
(v)
Time and attendance:

serial number: OGT6040056032200722;
(vi)
Time and attendance:

serial number: OGT6040056032200822;
(vii)
Time and attendance:

serial number: 3484160300214;
(viii)
Time and attendance:

serial number: 6662181960342;
(ix)
MP2501SP:

serial number: E334M720384.
(b)
The Respondent shall pay the Applicant the amount of R28
225.03.
(c)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
summons served to date of payment.
(d)
The Respondent shall pay the Applicant the amount of R251
887.60.
(e)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
judgment to date of payment.
(f)
Costs of suit on an attorney and client scale.
CLAIM
3:
(a)
The Respondent shall immediately return to the Applicant the
KX-HTS32with serial number: 9CCTI00586.
(b)
The Respondent shall pay the Applicant the amount of R67
588.03.
(c)
Interest
a tempore morae
on the aforesaid amount at the
prevailing rate of interest per annum calculated from date of
judgment to date of payment.
(d)
The Respondent shall pay the Applicant the amount of R266
266.11.
(e)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
judgment to date of payment.
(f)
Costs of suit on an attorney and client scale.
CLAIM
4:
(a)
The Respondent shall immediately return to the Applicant the
CCTV with serial number: D22785684.
(b)
The Respondent shall pay the Applicant the amount of R114
835.94.
(c)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
summons served to date of payment.
(d)
The Respondent shall pay the Applicant the amount of R351
379.81.
(e)
Interest
a tempore morae
on the aforesaid amount at
the prevailing rate of interest per annum calculated from date of
judgment to date of payment.
(f)
Costs of suit on an attorney and client scale.
ORDER
OF THIS COURT
COURT
REGISTRAR
HILL,
McHARDY & HERBST INC
EKA
& ASSOCIATES
[6]
Heads of argument for Olympic dated 12 April 2023 at paragraph 2.
The
money (an amount of R1 849 000.00) was, according to counsel for
Olympic, paid into the trust account of one Mr. Kruger’s
firm
as security for the judgment debt. See paragraph 51.11 of the heads
of argument for Olympic dated 12 April 2023. This occurred
after the
urgent application on 4 August 2022 praying for,
inter
alia
,
the stay of the attachment of Olympic’s bank account. The
urgent application was struck from the roll for lack of urgency.
The
payment occurred on 10 August 2023.
[7]
As far as could be ascertained from the papers Mr. Kruger was the
erstwhile attorney of Mr. Abatzoglou. Due to a conflict of

interests, he recommended Mr. Kriek and he was appointed by Mr.
Abatzoglou to deal with the action that ended in the default

judgment. Mr. Kriek withdrew as attorney and one Mr. Smith was
appointed. Hereafter followed Piet Haasbroek Attorneys as
represented
by Mr. Castro. Mr. Hannes Peyper from Peyper Attorneys
also featured when the impasse between the directors on the High
Court
proceedings in this case had to be resolved.
[8]
Mr. van Wyk from Van Wyk Attorneys seems to have represented Nashua
throughout the litigation.
[9]
Unreported judgment in
GH
Zipp v LA Zipp
,
in the High Court of South Africa: Gauteng Local Division,
Johannesburg, Case number 2016/23915, judgment on 16 February 2017.
[10]
The chronology of events as drafted by counsel for Olympic attached
to their heads of argument dated 12 April 2023 must also
be regarded
here since it provides a helpful depiction of the events in the
case.
[11]
Nashua’s heads of argument dated 14 April 2023 at paragraphs 4
to 13 and Olympic’s heads of argument dated 12 April
2023 at
paragraphs 1 to 7.
[12]
“Default Judgment” at page 7.
[13]
Eben Kriek, EKA & Associates, 62a, Calliope Drive, Pentagon
Park,
Bloemfontein
.
Email:
eka@law4us.co.za
.
[14]
Ms. Eleni Abatzoglou (Ms. Abatzoglou) and Mr. Aristides Abatzoglou
(Mr. Abatzoglou) are the sole remaining active directors of
OLYMPIC
FLAME (PTY) LTD. According to the replying affidavit of Mr.
Abatzoglou in the rescission application at paragraph 38.6

(“Rescission Application” at pages 219 to 220) “the
applicant”; Mr. Abatzoglou owns and manages various

restaurants, shops and the like and employs close to 300 employees.
More specifically, the applicant's business entails the ownership

and management of various companies in and around Welkom. These
businesses include Ocean Basket, Wir Debonairs, Babazul, Coco
Fino,
Liquor Bro's, Al Mexicano Loco
et
cetera
.
He is ultimately responsible for all of these businesses and that he
is required to travel extensively, worked extraordinarily
long hours
and that he is regularly out of the office.
[15]
Nashua’s heads of argument dated 15 August 2023 at paragraph
10.
[16]
Olympic’s heads of argument dated 12 April 2023 at paragraph
3.
[17]
“Rescission Application” at pages 73 to 76.
[18]
“First Rule 30/30A Application” at page 10.
[19]
“First Rule 30/30A Application” at page 70.
[20]
“First Rule 30/30A Application” at pages 1 to 2.
[21]
“First Rule 30/30A Application” at pages 43 to 46.
[22]
From page 80: “First Rule 30/30A Application”.
[23]
The affidavit is thus valueless and illegal as evidence.
[24]
“
Second
Rule 30/30A Application” at page 31.
[25]
“Rescission Application” at pages 197 to 198.
[26]
K2011148986
(South Africa) (Pty) Ltd v State Information Technology Agency SOC
Limited and Others
(3996/2019)
[2020] ZAFSHC 135
(18 August 2020).
[27]
“First Rule 30/30A Application” at page 93.
[28]
“Second Rule 30/30A Application” at pages 1 to 4.
[29]
“Second Rule 30/30A Application” at page 59.
[30]
Civil Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, Last Updated: November 2023 - SI 78.
at
B6.8 Authority
,
https://www.mylexisnexis.co.za/Index.aspx.
[31]
Some further caselaw and statements were added from paragraph 13.
[32]
Superior
Court Practice
,
Volume 2: Uniform Rules and Appendices, RULES OF COURT, 6
Applications, at footnote 70 in the text,
https://jutastat.juta.co.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu.
[33]
Supr
a
at B6.62  Rule 6(11) and B63 Interlocutory applications:
“
B6.62
Rule 6(11)
Notwithstanding
the aforegoing sub-rules, interlocutory and other applications
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require and set down at a time
assigned by the registrar or as directed
by a judge.
[Substituted
by GG 39715 of 19 February 2016 – Regulation Gazette 10566,
Vol 608.]”
“
B6.63
Interlocutory applications
Interlocutory
applications and other applications incidental to pending
proceedings
may
be brought on notice, supported by such
affidavits as the case may require. ‘Incidental to’
means ‘subordinate
or accessory to, while at the same time
being distinct from’ the main proceedings and proceedings
remain ‘pending’
until their final determination.
Notice
does not mean notice of motion and all that is required is notice to
the other side that an application will be brought
on a date
assigned by the registrar or directed by a judge. Use of the short
form is required by some courts and is always advisable
. It need
not be served by the sheriff and can be served on the party’s
attorney of record.”
[34]
Supra,
6 Applications, at footnote 306 in the text.
[35]
Supra
at Footnotes 81 to 83 in the text.
[36]
Brett Bowden,
Civilization
and Its Consequences,
https://doi.org/10.1093/oxfordhb/9780199935307.013.30
,
Published: 11 February 2016.
[37]
See the heads of argument for Nashua dated 14 April 2023 at
paragraphs 32 to 38.
[38]
Heads
of argument for Olympic dated 12 April 2023 at paragraph 40.