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2024
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[2024] ZAFSHC 27
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Maree N.O and Others v Standard Bank of SA Ltd (6038/2023) [2024] ZAFSHC 27 (2 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
6038/2023
In
the matter between
:
DEON
CORNELIUS MAREE
N.O.
1
st
Applicant
JOHANNA
GERTRUIDA MAREE
N.O.
2
nd
Applicant
PETRUS
JOHANNES UYS
N.O.
3
rd
Applicant
[In
their capacities as trustees of the DC MAREE TRUST,
Master
reference number: IT1195/95]
GOLDENSANDS
31 TRADING
CC
4
th
Applicant
(Registration
number: 2005/063214/2023)
and
STANDARD
BANK OF SA
LTD
Respondent
(Registration
number:1962/000738/06)
In
re
:
STANDARD
BANK OF SA
LTD
Applicant
(Registration
number:1962/000738/06)
and
DEON
CORNELIUS MAREE
N.O.
1
st
Respondent
JOHANNA
GERTRUIDA MAREE
N.O.
2
nd
Respondent
PETRUS
JOHANNES UYS
N.O.
3
rd
Respondent
[In
their capacities as trustees of the DC MAREE TRUST,
Master
reference number: IT1195/95]
GOLDENSANDS
31 TRADING
CC
4
th
Respondent
(Registration
number: 2005/063214/2023)
CORAM:
JP DAFFUE
HEARD
ON:
01 FEBRUARY 2024
DELIVERED
ON:
The order was granted on 01
February 2024 and the reasons
delivered
on 2 FEBRUARY 2024
REASONS
[1]
I refer to the order granted on 1 February 2024. As mentioned
therein, the reasons
for the costs order would be emailed to the
parties on/or before 5 February 2024. These are the reasons.
[2]
It will be recalled that the following order was made pertaining to
costs:
‘
1.
The main application of Standard Bank as the applicant, it being the
respondent in
the interlocutory application, is postponed to the
opposed roll of 14 March 2024.
2.
The answering affidavits of the respondents in the main application,
they being the applicants in the interlocutory application, shall be
filed not later than 14 February 2024.
3.
The replying affidavit of the applicant in the main application,
it
being the respondent in the interlocutory application, shall be filed
on 1 March 2024.
4.
Heads of argument shall be filed by the parties in terms of
the
Practice Directives of this court, ie Standard Bank shall file its
heads of argument on 6 March 2024 and the respondents in
the main
application shall file their heads of argument on/or before 8 March
2024; in both instances filing shall take place before
12h00 on the
specific dates.
5.
The respondents in the main application, they being the applicants
in
the interlocutory application, shall jointly and severally, the one
to pay the others to be absolved, pay the wasted costs occasioned
by
the postponement, including the costs of opposition of the
interlocutory application and the costs attendant to the hearing
on 1
February 2024 on an attorney and client scale.
6.
Reasons for the costs order shall be delivered to the parties
electronically on/or before 5 February 2024.’
[3]
I prefer to refer to the parties as in the main application issued by
Standard
Bank of South Africa Ltd (the Bank) on 8 November 2023 under
the above case number. The trustees of the DC Maree Trust, ie Deon
Cornelius Maree, Johanna Gertruida Maree and Petrus Johannes Uys,
have been cited as first, second and third respondents in their
representative capacities in the main application and Goldensands 31
Trading CC, was cited as the fourth respondent. I shall hereinafter
refer to them as the respondents. The Bank seeks judgment against the
respondents in terms of a settlement agreement entered into
between
them as well as Mr and Mrs Maree in their personal capacities on the
one hand and the Bank on the other hand. The settlement
agreement was
signed by the respondents and the Maree’s in Harrismith on 17
July 2023. They were represented by their attorney.
On 8 August 2023
the settlement agreement was signed on behalf of the Bank in Durban.
The amount payable to the Bank in terms thereof
is in excess of
R30 000 000,00.
[4]
The main application was duly served on all the respondents who gave
notice
of their intention to oppose the application on 4 December
2023. Bearing in mind
dies non
between 21 December and 7
January, both days inclusive, the respondents had to serve and file
their answering affidavit on/or before
11 January 2024. The
respondents’ attorneys incorrectly believed that the answering
affidavits had to be filed by 28 December
2023.
[5]
Uniform Rule of Court 6(5)(f)(i) states that where no answering
affidavit or
notice raising a question of law is delivered within 15
days of notifying the applicant of the intention to oppose the
application,
the applicant may within 5 days of the expiry of this
period apply to the registrar to allocate a date for the hearing of
the application.
The Bank’s attorneys filed a notice of set
down for hearing of the main application on 1 February 2024 as is
apparent from
annexure POST4 to the respondents’ founding
affidavit to which I shall return.
[6]
An issue was made by Mr Muller, appearing for the respondents, during
oral argument
that the matter did not appear on the unopposed roll of
1 February 2024. This can only be ascribed to a clerical error in the
general
office. Fact of the matter is that I had been informed that
the Judge President of this division had allocated the file to me
during
the course of Monday, 29 January 2024, insofar as he did not
want the judge in the unopposed motion court to consider what
appeared
to be an opposed matter. By then, the respondents’
application to have the matter struck from roll had been filed. The
amended
opposed motion court roll issued on 29 January 2024 reflects
that the matter was allocated to me.
[7]
On 22 December 2023 Arnoud van den Bout Attorneys of Pretoria sent an
email
to the Bank’s Bloemfontein Attorneys. This email was not
disclosed in the respondents’ application to have the main
application struck from the roll, but attached to the Bank’s
answering affidavit filed on 30 January 2024. I quote from the
letter:
‘
2.
We request your leave that we be granted till end of January 2024 to
submit our opposition
to your Notice of Motion herein. Our request is
not
mala fide
and is based on:
a.
We were seized with the compiling of the Opposing Affidavit
on the
sequestration application (case number: 4800/2023) against DC and JG
Maree, the interlocutory application in the aforementioned
sequestration proceedings, the application for leave to appeal and
supplement thereto (case number: 3372/2023), all which required
a
substantial amount of time;
b.
Since the abovementioned matters are interrelated, we require
same
counsels’ advice thereon to assist us in finalising our reply
to the Notice of Motion; and is counsel not available
to assist us
herein due to the holiday period.
3.
Should you not be willing to accede to our request, our clients’
rights
for a fair hearing will be encroached and are we instructed to
request the court’s leave and apply for condonation to file
our
opposing papers out of time, when we will also apply for an
accompanying cost order.
4.
We also request that your application not be placed on an unopposed
roll, as
happened in the abovementioned sequestration application. It
would be inappropriate to place this matter on the unopposed roll
since your application in this matter is opposed. Should you proceed
to place this matter on the unopposed roll, we will ensure
that this
letter be handed up to the bench for an appropriate wasted costs
order.’
The
important point to be made in respect of this letter is that it was
‘inappropriate to place this matter on the unopposed
roll since
[the Bank’s] application in this matter is opposed’. This
allegation does not hold water. No litigant can
merely file a notice
of intention to oppose and then elect to do nothing, expecting the
applicant to refrain from setting down
the matter on an unopposed
basis.
[8]
Although the respondents sought leave to file answering affidavits by
the end
of January 2024, the Bank’s attorneys informed them on
16 January 2024 that extension was granted until 25 January 2024 only
and that if the answering affidavit is not received by then, the
application will be enrolled for hearing on the unopposed roll
of 1
February 2024. On the same day the respondents’ attorney
acknowledged receipt of the email without any further comments.
Again, as in the case of the respondents’ email of 22 December
2023, they failed to mention this correspondence in their
founding
affidavit, causing the Bank to provide the information with
appropriate proof.
[9]
I return to the email dated 22 December 2023. The point was made in
this email
that the request for extension was not
mala fide
,
but based on two aspects:
a.
The legal representatives were seized with the compiling of
an
opposing affidavit in the sequestration application against Mr and
Mrs Maree, an interlocutory application in the sequestration
proceedings and an application for leave to appeal.
b.
Since the issues are interrelated with the matter at hand, the
clients require the same counsel to advise them and to finalise the
reply to the Bank’s founding affidavit; also, counsel
would not
be available to assist due to the holiday period.
[10]
Not a word was said in the email of 22 December 2023 of an action for
damages to be issued against
the Bank and/or it legal representatives
and/or agents. There was also no reasonable explanation as to why the
legal practitioners
would not be able to draft answering affidavits
within the time limit provided for in rule 6, ie on/or before 11
January 2024,
bearing in mind the information in possession of the
respondents’ legal team as will be shown
infra.
[11]
Another aspect that has not escaped my attention is the fact that Mr
and Mrs Maree did not serve
and file an answering affidavit in the
sequestration application, but filed a notice in terms of rule 30
only. The evidence is
clear: even that application has been delayed
unnecessarily so by Mr and Mrs Maree. They were afforded nearly two
months to file
their answering affidavit and when this was not
forthcoming, the Bank set down the sequestration application on the
unopposed roll.
The Maree’s reacted with a rule 30 notice
causing that application to be stalled.
[12]
The Bank also pointed out that Mr Maree already fully canvassed the
respondents’ defences
in relation to the settlement agreement
in an answering affidavit consisting of more than 260 pages when he
and his wife opposed
a perfection application. It needs to be put on
record that a rule
nisi
was issued in that matter on 30 June
2023 and after the rule
nisi
was extended more than once,
Loubser J eventually confirmed the rule
nisi
on 7 December
2023, after hearing argument by both parties on 19 October 2023. Mr
and Mrs Maree have applied for leave to appeal
that judgment, but as
stated by the Bank, this perfection application brought against them
has got nothing to do with the main
application against the present
respondents.
[13]
Six days after having taken notice of the Bank’s attitude
pertaining to the filing of the
answering affidavit without any
comments thereto, the respondents’ attorneys emailed a letter
to the Bank’s attorneys
dated 22 January 2024, indicating that
they would not be able to meet the deadline of 25 January 2024, but
that they will seek
condonation when filing their answering
affidavit. All of a sudden the Bank’s attorneys were informed
as follows in paragraph
5 of this letter:
‘
5.
You should,
during this week
, receive a Summons from our
various clients for their claims, the details of which are
interconnected with the application against
the DC Maree Trust and
Goldensands 31 Trading CC, which you are intending to place before
court.
6.
Please note further that we will be considering, after the issuing of
the Summons,
whether an application for consolidation of the matters
between our clients (except for the pending application for leave to
appeal)
will be required. Our clients’ claims within the
Particulars of Claim are interlinked with the applications that have
been
instituted by your client, and their claims have to be
considered in context with the relief that your client is claiming.’
(my emphasis)
[14]
The respondents waited until Monday, 29 January 2024 to issue their
application, seeking that
the main application be postponed
sine
die
and/or struck from the roll. Neither in the notice of motion,
nor in the founding affidavit is there any suggestion of any
timeframes
to ensure that the matter is finalised as soon as
possible. This court does not postpone matters
sine die
.
[15]
In the respondents’ application the Bank was given an
opportunity to notify the respondents’
attorney on the very
same day, 29 January 2024, of its intention to oppose. The Bank was
directed to file its answering affidavit
by close of business on 30
January 2024. The Bank did exactly that, but notwithstanding
compliance, the respondents failed to file
a replying affidavit.
[16]
It is apparent from the answering affidavit that the Bank elected not
to oppose the postponement
of the application, but insisted that the
postponement should be structured pertaining to specified timeframes
and that the application
be postponed to a specific date. The Bank
also made the point that the respondents were seeking an indulgence
and that they should
pay the costs occasioned by the postponement on
the scale of attorney and client.
[17]
Contrary to the version put up by the respondents in their founding
affidavit, seeking the matter
to be struck from the roll, the Bank
placed on record that the only agreement that the respondents had to
respond to was the settlement
agreement entered into between the
parties referred to above. I am satisfied that the same legal team
that acted for the respondents
in the past, particularly pertaining
to the sequestration and perfection applications, is still appearing
on behalf of the respondents.
The settlement agreement that the
respondents apparently wish to attack now has been entered into more
than five months ago. Bearing
in mind the judgment of Loubser J dated
7 December 2023 in the perfection application, several defences
relied upon by the Maree’s
pertaining to the settlement
agreement have been adjudicated. I refer to paragraphs 18 to 23 of
the judgment attached as annexure
POST13 to the founding affidavit.
As mentioned, there is a pending application for leave to appeal that
judgment and I am neither
called upon to consider the validity of the
settlement agreement, nor to consider whether Loubser J was correct.
This is not the
issue, but Mr Muller who appeared before me, also
acted as counsel for the respondents in that application.
[18]
The Bank pertinently raised the point in paragraph 10 of the
answering affidavit that the respondents
never requested a
postponement in order to file an application or action against the
Bank, and/or its attorneys and/or agents,
to claim damages. It is
unthinkable that the respondents could not file their answering
affidavit in the main application with
all the information available
to them, but they had to wait for the finalisation of their claim for
damages allegedly suffered.
[19]
The Bank insisted that the respondents’ application was
mala
fide
and although it agreed to a postponement, it sought proper
relief pertaining to a specific timeframe. Having considered the
history
of the litigation and the respondents’ failure to play
open cards, I am in full agreement with the Bank that the respondents
are guilty of delaying tactics and that they are
mala fide.
[20]
I reiterate that it was never the respondents’ intention to
agree on structured timeframes
in order to allow them an opportunity
to file their answering affidavit. Only during oral argument did I
hear for the first time
from their counsel, Mr Muller, that
timeframes could be imposed. During oral argument, he eventually
conceded that there was no
reason why the court could not insist that
the matter be postponed to a specific date with further orders
pertaining to the filing
of answering and replying affidavits. He
suggested postponement of the application to 28 March 2024, being the
last day of the
term and the day before the Easter weekend. In such
case, he requested that another month be provided to the respondents
to file
their answering affidavit. Mr Muller insisted that the Bank
should pay the wasted costs occasioned by the postponement and the
application for postponement. He insisted that the matter was
maliciously set down on the unopposed roll. I do not agree. The Bank
was fully within its rights to set the matter down as it did and I
reject the submission that it acted maliciously.
[21]
Mr Zietsman submitted that the main application should be heard two
weeks earlier than suggested
by Mr Muller, to wit on 14 March 2024.
In such a case the respondents shall file their answering affidavits
on 14 February 2024
to which the Bank shall reply on 1 March 2024. I
was satisfied that the earlier dates suggested by Mr Zietsman were
fair to both
parties as well as the judge to whom the matter will be
allocated, bearing in mind the Easter weekend and the recess.
[22]
Although
the parties eventually agreed during oral argument that a
postponement should be granted, I need to state some pertinent
issues. I repeat that the application for postponement/striking off
was not
bona
fide
and simply a tactical manoeuvre to seek an indulgence to which the
respondents were not entitled. It is a typical case of ‘kicking
for touch’ in order to delay the adjudication of the main
application. There are sufficient judgments from all our courts,
indicating that the postponement of a matter set down for hearing on
a particular date cannot be claimed as of right. Clearly,
the
application was not timeously made and no proper reasons have been
advanced for the failure to timeously file an answering
affidavit. I
refer to the factors to be considered as set out by the
Constitutional Court in the 2007 judgments, to wit
Lekolwane
v Minister of Justice and Constitutional Development
[1]
and
Shilubana
v Nwamitwa
(National Movement for Rural Women and Commission for Gender Equality
as
Amici
Couriae
[2]
).
There is no need to discuss these well-established principles.
[23]
Although Mr Muller eventually agreed during oral argument on
timeframes, the respondents’
application was intended to strike
the main application from the roll, alternatively to postpone it
sine
die.
Contrary to the threat in the email of 22 January 2024, no
summons was issued during that week. Instead it was stated in their
founding affidavit that more time was needed for filing the answering
affidavit ‘because we first need to issue and serve
our action
against [the Bank] and then we need to issue an application for
consolidation… [and] our action will probably
be finalised in
the week of 5 to 9 February 2024’.
[24]
The respondents remained vague throughout. In paragraph 8.4 of the
founding affidavit they stated
that their timeline was ‘merely
an estimation and will probably be subject to the availability of all
the necessary consultants’.
The vagueness of these allegations
did not escape my attention.
[25]
Attorney
and client costs are usually granted in order to mark the court’s
disapproval of the conduct of a litigant. In
casu
the respondents sought an indulgence which they effectively received.
Ordinarily, they would in any event be liable for the costs
of the
postponement insofar as it cannot be said that the Bank’s
opposition was unreasonable. In
Public
Protector v South African Reserve Bank
[3]
,
the
majority of the Constitutional Court stated that:
‘
More than 100
years ago, Innes CJ stated the principle that costs on an attorney
and client scale are awarded when a court wishes
to mark its
disapproval of the conduct of a litigant. Since then this principle
has been endorsed and applied in a long line of
cases and
remains applicable. Over the years, courts have awarded costs on
an attorney and client scale to mark their
disapproval of fraudulent,
dishonest or mala fides (bad faith) conduct; vexatious
conduct; and conduct that amounts to
an abuse of the process of
court.’
[26]
I was satisfied, in the exercise of my discretion, that a punitive
costs order was warranted.
Therefore, I granted costs in favour of
the Bank on the scale as between attorney and client.
_______________________
JP
DAFFUE J
On
behalf of the Applicants (the respondents
in
the main application):
Adv NMA Muller
Instructed
by:
Blignaut Attorneys Inc
BLOEMFONTEIN
On
behalf of the Respondent (applicant
in
the main application):
Adv P Zietsman SC
Instructed
by:
Phatshoane Henney Inc
BLOEMFONTEIN
[1]
[2007] BCLR 280
(CC) para 17.
[2]
[2007] ZACC 14
;
2007 (5) SA 620
(CC) paras 11 - 19.
[3]
2019 (6) SA 253 (CC) (22 July 2019) at 318 C – 129 A.