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[2023] ZAFSHC 84
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Timac Agro South Africa (Pty) Ltd v Nel (3379/2020) [2023] ZAFSHC 84 (22 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: 3379/2020
In
the matter of:
TIMAC
AGRO SOUTH AFRICA (PTY) LTD
Applicant/Plaintiff
and
THEUNIS
LODEWYK ADRIAAN NEL
Respondent/Defendant
CORAM:
NAIDOO, J
HEARD
ON:
6 OCTOBER 2022
DELIVERED
ON: 22 MARCH 2023
JUDGMENT
– STAY OF EXECUTION AND CONDONATION
[1]
This is an application by the applicant/plaintiff (plaintiff) for the
stay of execution
(the stay application), in terms of Rule 45A, in
respect of taxed
allocaturs
by the taxing mistress of this
Division and for condonation in respect of the late filing of the
Notice of Review in terms of Uniform
Rule 48(1). The application is
opposed by the respondent/defendant (defendant), who also filed a
counter application, in which
he sought the striking off of the
plaintiff’s review application, for non-compliance with Rule
48(2)(b), and of paragraphs
18, 24 and 25 of the plaintiff’s
supporting affidavit in the stay application, on the basis that they
constitute inadmissible
hearsay evidence. The defendant had prior to
that filed a Notice in terms of Uniform Rule 30A in terms of which he
sought an order
striking out the plaintiff’s Notice of Review
for non-compliance with Uniform Rule 48. Adv (Mr) DD Swart
represented the
applicant, and Attorney Mr HSL du Plessis, the
respondent.
[2]
The plaintiff sought an order in the following terms:
(a)
That the execution upon the taxed
allocaturs
dated 26 January 2022 against the applicant
be stayed and/or suspended pending the final determination of the
action and conditional
counterclaim, alternatively, pending the
adjudication of the application to review the taxed
allocaturs
dated 26 January 2022;
(b)
That condonation is granted for the late delivery
of a notice in terms of Rule 48(1) of the Uniform Rule of Court;
(c)
That the respondent be ordered to pay the costs
of this application only if it is opposed;
(d)
Further and/or alternative relief.
[3]
The defendant sought relief, in his counter-application, in the
following terms:
“
1.1
The applicant failed to comply with the provisions of Rule 48(1) and
48)2)(b);
1.2
That the applicant’s application for review of the taxation be
struck;
1.3
That the testimony contained in paragraphs 18, 24 and 25 of
the applicant’s
supporting affidavit constitute (sic) hearsay evidence and
accordingly inadmissible evidence;
1.4
That the content of these paragraphs 18, 24 and 25 are accordingly
irrelevant;
1.5
That paragraphs 18, 24 and 25 are accordingly struck from the
applicant’s supporting affidavit;
1.6
That the applicant be ordered to pay the costs of this counter
application, only if it is opposed by it;
1.7
further and/or alternative relief”.
[4]
Although the defendant initially took issue with the authority of the
deponent to
the plaintiff’s Founding Affidavit, by the time the
matter was heard, Mr Du Plessis confirmed that the defendant had
abandoned
this issue. The parties agreed that the main application
and the counter application would be heard together.
[5]
The plaintiff does business in
the agricultural sector and the defendant purchased agricultural
products from the plaintiff. The latter issued summons against
defendant for payment of the amount of R1 398 220.25,
together with interest and costs, in respect of fertiliser which the
defendant purchased from the plaintiff. The main claim is
based on a
written agreement entered into between the parties, with an
alternative claim based on unjust enrichment. In defending
the
action, the defendant raises defences relating to non-compliance with
the National Credit Act 34 of 2005 (NCA). The defendant
also filed a
counterclaim, which was opposed by the plaintiff. The latter also
took exception thereto. After the defendant’s
plea was filed,
the plaintiff applied for summary judgment, which the defendant
opposed.
[6]
At the hearing of the summary judgment application and exception to
the counterclaim,
the defendant raised a point
in limine
and
the court ruled in his favour regarding the lack of jurisdiction of
the High Court to hear a summary judgment application arising
from a
credit agreement governed by the NCA. In respect of costs, the court
ordered that “
The Applicant/Plaintiff to pay the costs of
the case to date on an attorney-and-client scale”
. The
plaintiff lodged an appeal against the whole of that judgment but
shortly before the appeal was heard, the Supreme Court of
Appeal
(SCA) handed down a judgment, which, in effect, overturned the
judgment delivered by this court in relation to jurisdiction.
[7]
As a result, the parties agreed on an amended order, which in effect
meant that the
matter would proceed in the High Court. The costs
order agreed on was the following: “
The Applicant/Plaintiff
is to pay on an attorney-and-client scale the wasted costs of the
Respondent/Defendant in the application
for summary judgment and the
exception to date of the judgment”.
The costs of the appeal
were reserved for later determination. The defendant set down its
Bills of Costs for taxation on 26 January
2022, which the plaintiff
opposed. The plaintiff claims that it was largely unsuccessful in its
opposition and the Taxing Mistress
endorsed her
allocatur
on
each Bill. The amounts of the
allocaturs
were Thirty Nine
Thousand Two Hundred and Forty Rand and Sixty Two Cents (R39 240.62)
and One Hundred and Fifty Six Thousand
Five Hundred and Eighty One
Rand and Thirty Eight Cents (R156 581.38) respectively. The
plaintiff thereafter consulted with
a taxing consultant to obtain an
opinion on the prospects of success of reviewing the taxation.
[8]
Subsequent to the taxation and
on 27 January 2022, the defendant’s attorneys demanded
payment
from the plaintiff. The plaintiff responded by asking the defendant
to allow it Twenty (20) days to consider its position
and, if
necessary, prepare an application to review the taxation. The
plaintiff also indicated that should it decide not to pursue
a review
of the taxation and decides to abide by the taxed
allocatur
,
the plaintiff’s liability to the defendant would be
extinguished by operation of a set-off. Thereafter, a number of
letters
flowed between the legal representatives of the parties, the
end result being that on 2 March 2022, the defendant did not agree
with the plaintiff’s assertion that set-off will apply and
clearly declined the extension requested by the plaintiff. The
defendant indicated that he will proceed to issue a warrant of
execution.
[9]
On 3 March 2022, the plaintiff instructed its legal representatives
to prepare the
application for review of the taxation. In order to do
so, the plaintiff’s legal representatives required to consult
with
the taxing consultants. Such consultations took place with the
Pretoria-based consultant and the Bloemfontein-based consultant on
9
March 2022 and 15 March 2022, respectively. Thereafter the Notice to
Review the taxation was prepared and filed on 15 March 2022.
It is
common cause that in terms of Uniform Rule 48, which regulates the
procedure for the review of taxation, the plaintiff’s
notice
was filed some nineteen (19) days outside the 15-day period
prescribed by the Rule.
[10]
The relevant provisions of Uniform Rule 48 read as follows:
(1)
Any party dissatisfied with the ruling of the taxing master as to any
item or part of an item which was objected to or disallowed
mero
motu
by the taxing master, may within 15 days after
the
allocatur
by notice require the taxing master to
state a case for the decision of a judge.
(2)
The notice referred to in subrule (1) must —
(a)
identify each item or part of an item in respect of which the
decision of the taxing master is sought to be reviewed;
(b)
contain the allegation that each such item or part thereof was
objected to at the taxation by the dissatisfied party, or that
it was
disallowed
mero motu
by the taxing master;
(c)
contain the grounds of objection relied upon by the dissatisfied
party at the taxation, but not argument in support thereof;
and
(d)
contain any finding of fact which the dissatisfied party contends the
taxing master has made and which the dissatisfied
party intends
to challenge, stating the ground of such challenge, but not argument
in support thereof.
[11]
Uniform Rule 30A reads:
notice
given pursuant thereto, or with an order or direction made by a court
or in a judicial case management process referred
to in rule
37A, any other party may notify the defaulting party that he or she
intends, after the lapse of 10 days from the date
of delivery of such
notification, to apply for an order —
(a)
that such rule, notice, request, order or direction be complied with;
or
(b)
that the claim or defence be struck out.
(2)
Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made to
the
court and the court may make such order thereon as it deems fit.
[12]
I pause to note that the defendant’s Rule 30A Notice was served
on the plaintiff on 16
March 2022 at 15h25. The plaintiff’s
Notice to Review was served on the defendant on 15 March 2022 at
14h02, and the current
application in terms of Rule 45A was served on
the defendant on 16 March 2022 at 14h27. The Rule 30A Notice appears
to have been
served in reaction to the plaintiff’s Notice to
Review, and was served on the plaintiff an hour after the Rule 45A
Notice
was served on the defendant. I also point out that this court
is called upon to adjudicate this application and decide whether the
plaintiff has made out a case for the relief it claims, which I set
out earlier in this judgment. As correctly conceded by both
parties,
this court is not required to deal with the merits of the matter, nor
of the review of taxation. It would, in fact be
inappropriate for
this court to delve into the merits, especially of the review
application, as that matter should appropriately
be dealt with by the
judge before whom the review application serves, in the event of the
application being granted. That said,
it may be necessary, in
assessing prospects of success in the further litigation, to mention
the merits to some extent. I will
deal with this aspect later.
[13]
I deal firstly with the application for condonation for the late
filing of the review application.
With regard to the explanation in a
condonation application (as in the present matter), for failure to
comply with the Rules of
Court timeously, it is well settled in our
law that the applicant is required to give a full and candid
explanation in this regard.
The remarks of the court in
Melane v
Santam Insurance Co Ltd 1962(4) SA 531 (A)
, regarding the test
for granting condonation, made more than 60 years ago, are still
relevant today:
“
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent’s interests in finality must not
be overlooked.”
[14]
A similar view was held in the matter of
United
Plant Hire (Pty) Ltd v Hills
1990 (1) SA 717
(A) at 720 E-G,
where the court stated the position succinctly as follows:
“
It is well settled
that, in considering applications for condonation, the Court has a
discretion to be exercised judicially upon
a consideration of all the
facts; and that in essence it is a question of fairness to both
sides. In this enquiry, relevant considerations
may include the
degree of non-compliance with the relevant Rules, the explanation
therefore, the prospects of success on appeal,
the importance of the
case, the respondent’s interest in the finality of his
judgment, the convenience of the Court, and
the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive. These factors are not individually
decisive but are
interrelated and must be weighed one against the other; thus a slight
delay and a good explanation may help to
compensate for prospects of
success which are not strong”.
[15]
As I indicated earlier, it is common cause that the plaintiff served
and filed the Notice of
Review of Taxation 19 days late. I have set
out the chronology of events leading to the filing of the Notice of
Review, which chronology
is not in dispute. The defendant took issue
with the content of some of the plaintiff’s averments, which I
shall mention
where necessary. In his counter-application, the
defendant seeks to strike out paragraphs 18, 24 and 25 of the
plaintiff’s
Founding Affidavit on the basis that they
constitute inadmissible hearsay evidence. These are the paragraphs in
which the plaintiff
explains that part of the delay in filing the
Review Notice was due to the necessity of having to consult with two
firms of taxing
consultants, who were not immediately available and
were available only on 9
th
and 15
th
March 2022,
respectively. This was confirmed in a confirmatory affidavit by Mr
Heymans, the attorney involved in the matter. The
defendant complains
that the tax consultants were not named, nor were confirmatory
affidavits filed by them. The taxing consultants
were named in
paragraph 24, one of the paragraphs that the defendant seeks to
strike out.
[16]
In my view, this criticism is misplaced, as hearsay evidence is
defined in
section 3(1)
of the
Law of Evidence Amendment Act 45 of
1988
as oral or written evidence, the probative value of which
depends upon the credibility of a person other than the person giving
such evidence. In this case Mr Heymans is a director in the firm of
attorneys representing the plaintiff and confirms the explanation
for
the delay tendered in the plaintiff’s Founding Affidavit. The
truth and probative value of the explanation depends on
Mr Heymans’
credibility and not on that of the taxing consultants. In any event,
the plaintiff was required to give a full
and candid explanation for
the delay, and that is the purpose for which the explanation in
paragraphs 18, 24 and 25 was tendered.
In my view, the said
paragraphs do not fall to be struck out.
[17]
I indicated earlier that while this court is not required to enter
into the merits of the matter
in a condonation application, one of
the factors for a court to take into account in considering whether
to grant condonation is
the prospects of success. The plaintiff
asserts, amongst other complaints, that while it was ordered to pay
only wasted costs in
respect of the summary judgment application and
the exception to the counterclaim, the taxing mistress granted all
costs, which
was not in terms of the court order. The plaintiff also
asserts that the reserved costs of 26 February 2022, when the
exception
and summary judgment application were postponed for
hearing, were not unreserved but were nevertheless allowed by the
taxing mistress.
The defendant alleges in his Answering Affidavit
that the plaintiff had, in terms of the court order dated 30 August
2021, waived
the exception and summary judgment application and
tendered costs on an attorney and client scale.
[18]
It was, however, revealed in Reply, that there was correspondence
between the parties in September
2021, in which the plaintiff
indicated to the defendant that it withdraws its exception and
tenders the costs in respect thereof.
It further indicated that it
granted leave to the defendant to defend the action as it was not
pursuing the summary judgment application,
and the costs in respect
thereof could be costs in the cause, alternatively adjudicated at the
hearing of the trial. The defendant’s
response indicates that
he was not opposed to the plaintiff’s proposal, indicating that
a bill of costs in respect of the
exception will be prepared and sent
to the plaintiff so they could reach agreement in respect thereof,
before taxation. With regard
to the costs of the summary judgment
application, the defendant insisted that such be argued during the
trial.
[19]
The defendant’s response indicates that he accepted that the
court order of 30 August 2021
(which amended the earlier order dated
3 May 2021) excluded the costs of the summary judgment application.
It appears to me that
only the wasted costs in respect of the
exception ought to have been the subject of the Bills of Costs. The
Bills of Costs which
were taxed clearly include the costs of the
summary judgment application. On that basis it would appear that the
plaintiff has
an arguable case and has reasonable prospects of
success in respect of the review of the taxation.
[20]
In a condonation application, this court is obliged to consider the
reasonableness and adequacy
of the explanation for the delay, in
conjunction with other factors, such as the prospects of success, in
making an order that
would achieve fairness to both parties. The
explanation tendered by the plaintiff for the delay, which has been
fully set out earlier
in this judgment is, to my mind, reasonable.
The delay is not an inordinate one, and acceptable in the
circumstances, and the application
for review would be important in
this matter, for it could result in the amount payable by the
plaintiff to the defendant being
reduced or extinguished. The benefit
for the defendant is that whatever indebtedness to the plaintiff the
latter can prove, will
be reduced, if the plaintiff can prove
set-off. I am satisfied, therefore that an order granting condonation
to the plaintiff for
the late filing of the Notice of Review of
Taxation will not only be fair to both parties, but will also be in
the interests of
justice.
[21]
I turn now to deal with the application for suspension of the
execution of the amount based on
the taxed
allocaturs
. Uniform
Rule 45A
states that “
The court may, on
application, suspend the operation and execution of any order for
such period as it may deem fit…”
it is common cause in
this matter
that execution will be suspended where the
underlying
causa
is in dispute. The plaintiff has placed in
dispute the correctness of the
allocaturs
issued by the taxing
mistress, for the reasons I have set out above. The defendant seeks
in his
Rule 30A
notice to have the plaintiff’s Notice to Review
struck out on the basis that it did not file such notice within the
time
period prescribed in
Rule 48(1)
and that it did not object to
the disputed items at the taxation of the Bills.
[22]
As indicated earlier, the
Rule 30A
notice was filed in response to
the plaintiff’s Notice to Review, an hour after the plaintiff
filed the current application.
The plaintiff in my view, sought to
review the taxation and applied for a stay of execution as well as
condonation for the late
filing of the Notice to Review and indicated
such intention before the
Rule 30
A notice was filed. The alleged
non-compliance with
Rule 48
is not for this court to adjudicate, as
the merits thereof falls within the purview of the judge adjudicating
the review. Similarly,
the set-off claimed by the plaintiff falls
outside of this court’s ambit. The merits thereof will be
decided by the court
ultimately hearing the trial of this matter.
However, in order for that court to properly do so, the issue of the
taxing mistress’
allocaturs
must be resolved, unless the
plaintiff decides not to pursue the review.
[23]
For the purposes of this application, my view is that the execution
based on the
allocaturs
should be stayed in order to afford
the plaintiff the opportunity to review the taxation. The interests
of justice dictate that
such a course will bring a fair and equitable
result to bear on the action in this matter. As I indicated earlier,
I am satisfied
that the explanation tendered by the plaintiff for the
late delivery of the Notice to Review the taxation is reasonable and
acceptable.
[24]
I turn to deal with the defendants’ counter application. For
the reasons set out above,
the relief sought by the defendant, for
the striking of the plaintiff’s Review Application must fail.
Similarly, I have dealt
with the prayer for the striking out of
paragraphs 18, 24 and 25 of the plaintiff’s Founding Affidavit
in this application,
on the basis that the contents thereof
constitute inadmissible hearsay evidence. I have set out the reasons
why these paragraphs
do not amount to hearsay evidence and are
accordingly admissible.
[25]
In the circumstances I make the following order:
25.1 The
plaintiff’s application for condonation for the late filing of
the Notice of Review of Taxation is granted;
25.2 The
plaintiff’s application to stay/suspend the execution based on
the taxed
allocaturs
dated 26 January 2022, pending the final
determination of the action, alternatively the application to review
the taxation dated
26 January 2022, is granted;
25.3 The
defendant’s counter-application is dismissed;
25.4 The costs of
this application in terms of
Rule 45A
and the defendant’s
counter-application are to be paid by the defendant;
25.5 In the event
that the plaintiff does not pursue the review of the taxation, the
costs in relation to the review, if any,
stand over for determination
by the court hearing the matter to finality, or by agreement between
the parties.
S
NAIDOO J
On
Behalf of the Applicants:
Adv DD Swart
Instructed
by:
JW Botes Incorporated
c/o Salley’s
Attorneys
Salley’s Yamaha
Building
55Nelson Mandela Drive
Westdene
Bloemfontein
(Ref: C
Salley/JWB1/0014)
On
Behalf of the Respondent:
Mr HSL Du Plessis
Instructed
by:
HSL Du Plessis Attorneys
c/o Blair Attorneys
32 first Avenue
Bloemfontein
(Ref: B Blair)