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2023
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[2023] ZAFSHC 100
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Mila Azania Holdings (Pty) Ltd v Dots Design Agency and Others (4468/2022) [2023] ZAFSHC 100 (31 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number: 4468/2022
In
the matter between:
MILA
AZANIA HOLDING
(PTY)
LTD
(Reg.
no: 2015/002533/97)
Applicant
and
DOTS
DESIGN AGENCY
(Reg.
no: 2003/008121/23)
1
st
Respondent
MOSA
LIKOBO
(ID.
no:[…])
2
nd
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
3
rd
Respondent
CORAM:
VANZYL, J
HEARD
ON:
13 OCTOBER 2022
DELIVERED
ON:
31 MARCH 2023
[1]
This matter was enrolled as an urgent application which was heard on
13 October 2022. The applicant is seeking the following
relief in
terms of the Notice of Motion:
"1.1
This Honourable High Court with the
leave and jurisdictional discretion is to:
1.1.1
Hear this application in terms of
section 21(1)(c)
of the
Superior
Courts Act 10 of 2013
.
1.1.2
Condone the dispensing with the forms and service provided for in the
Uniform Rules of Court and the non-compliance with the
Uniform Rules
of Court relating to service and the stipulated time frames in terms
of Rule 6(12).
1.1.3
Direct this application to be heard on an urgent basis in terms of
Rule 6(12)(a).
2.
Order that the first and second respondent, its agents and
representatives are forthwith interdicted and restrained from
alienating
or transferring out of the first respondent's name or in
any way encumbering, mortgaging, dissipating or reducing the value of
the immovable property.
3
Order that the third respondent is ordered to duly register the
interdict and restraint set out in paragraph 2
supra
against
the aforementioned immovable property's title deeds.
4
Direct that the first and second respondents to pay the concomitant
costs of this application, including the costs of a counsel,
where so
employed, except for the third respondent unless opposes this
application.
5.
Order that pending the determination of an action by way of combined
summons for the enforcement of a contract against the respondents
(the defendants in the main action) reinstituted (or reissued) by the
applicant (the plaintiff in the main action) on the 15th
of June 2022
out of the Gauteng Division of this Honourable High Court, Pretoria
under the case number 24478/2022, the order contained
in paragraphs 2
and 3
supra
shall
serve as an
interim
interdict
with immediate effect therewith."
[2]
Mr Kilifele appeared on behalf of the applicant and Mr Zietsman
appeared on behalf of the first and second respondents.
[3]
Mr Zietsman brought it under my attention that an exact same version
of the application, only with different time frames set
out in the
Notice of Motion thereto, had previously been issued on 10 August
2022 under application number 3765/2022, which application
was
enrolled for hearing on 19 August 2022. The file in the said
application number 3765/2022 was placed before me by Mr Zietsman's
attorney of record. Mr Zietsman furthermore placed an email before me
which his attorney of record addressed to the applicant's
attorney of
record, dated 17 August 2022. The subject line of the email refers to
the parties as cited in the present application
(and in the previous
application). The contents of the email read as follows:
"The
above matter refers.
Kindly
note that we act on behalf of Dots Designs CC and Mr Likobo
(hereinafter referred to 'our clients').
We
defended the summons instituted by your client in the Pretoria High
Court under case number 24478/22.
Our
clients were blatantly unaware of any application issued in the Free
State High Court under Case number 3765/22.
Our
clients only received the Notice of Withdrawal of the Application.
Kindly provide us with a copy of the Application and note
further
that we hold instructions to accept service on behalf of our clients
of any legal proceedings in future."
[4]
The said email is clearly with reference to the previous application,
which was apparently withdrawn before it served before
court on 19
August 2022. There is also no indication on the file that the matter
served before any Judge on 19 August 2022.
[5]
From a comparison of the founding affidavit filed in the present
application with the founding affidavit filed in the previous
application, application no. 3765/2022, it is evident that the one is
an exact copy of the other, with the inclusion of the signature
thereon and the commissioning thereof. At the same time, I should
mention that the founding affidavits are not dated and that the
commissioning thereof was not done properly, in that the commissioner
of oaths signed the affidavit and appended a stamp thereto,
but
completely failed to complete the attestation part thereof.
[6]
The so-called "founding affidavit" which was filed in
support of the relief sought in the Notice of Motion, does
consequently not constitute a proper affidavit, in the absence of
which the application stands to be removed from the roll.
[7]
In addition to the aforesaid, an application which was previously
enrolled as a so-called urgent application cannot be withdrawn
and
subsequently be issued as a new urgent application under a new
application number by merely appending a new Notice of Motion
thereto, without any explanation or indication with regard to the
history of the application.
[8]
In any event, an application which might have been urgent on 10
August 2022, being the date when the application under number
3765/2022 was issued, can obviously not, in the absence of a
supplementary affidavit with an appropriate exposition of additional
facts, still be considered to be urgent by 14 September 2022, being
the date on which the present application was issued.
[9]
The aforesaid fatally defective issues with regard to the present
application, are exacerbated by the fact that there is no
proof of
service of the Notice of Motion and/or of the document titled
"Applicant's Filing Cover Sheef'
upon any of the respondents. It is
only the
"Notice of Set Down
-
Motion Rolf',
dated
5 October 2022, which contains a dated signature as so-called proof
of service on the first and second respondents. The dated
signatures
for both the first and second respondents are the same. There is,
however, no indication as to who appended those signatures
to the
Notice of Set Down.
[10]
A similar dated signature, although dated 7 October 2022, is appended
to the document titled
"Index
-
Application",
next to the details of the first respondent. However, in this
instance, no such signature appears next to the details of the second
respondent.
[11]
There is furthermore no indication that the application was served
upon the respondents' attorney, despite the abovementioned
email
which was addressed to the applicant's attorney, dated 17 August
2022.
[12]
When I raised the aforesaid issues with Mr Kilifele, especially the
issue with regard to the same fatally defective founding
affidavits
filed in both applications, he presented an explanation from the bar
that the applicant has been experiencing problems
to locate the first
and second respondents for purposes of service.
[13]
However, without expressing a view on the merits of the said
explanation, which is also contained in the so-called "founding
affidavit", I need to point out that the annexures which are
being relied upon in the "founding affidavit" for purposes
of the aforesaid explanation, have not been attached to the "founding
affidavit".
[14]
In view of all of the aforesaid, the application is fatally
defective. There is no basis upon which I can consider this
application
as a properly enrolled and/or as an urgent application,
let alone a consideration of the merits thereof.
[15]
The following order is consequently made:
1.
The application is removed from the roll, with costs.
C. VAN ZYL, J
On
behalf of the applicant:
Mr.
A.B. Kilifele
Instructed
b
y
Mhlokonya
Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
& 2
nd
respondents:
Adv.
P.J.J
.
Zietsman
SC
Instructed
by
:
Muller
Gonsior Attorneys
BLOEMFONTEIN