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[2023] ZAFSHC 149
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Ngubo v Tshepang Contractors And Trading CC and Others (3967/2018) [2023] ZAFSHC 149 (2 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3967/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
Dr
NOZIPHO FORTUNATE NGUBO
Applicant
And
TSHEPANG
CONTRACTORS AND TRADING CC
First
Respondent
[Registration
Number: 20[....]23]
SAMUEL
MATLABE TSHABALALA
Second
Respondent
[Identity
Number: 6[....]]
BLOEMFONTEIN
CELTIC FOOTBALL CLUB
Third
Respondent
[Registration
Number: 20[....]07]
In
re:
In
the matter between:
TSHEPANG
CONTRACTORS AND TRADING CC
Plaintiff
[Registration
Number: 20[....]23]
And
SAMUEL
MATLABE TSHABALALA
First
Defendant
[Identity
Number: 6[....]]
Dr
NOZIPHO FORTUNATE NGUBO
Second
Defendant
[Registration
Number: 20[....]07
HEARD
ON:
17 NOVEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 02 MAY 2023 at 10H00.
[1]
In this opposed application, the applicant (Dr Ngubo) seeks an order
in terms of rule 15 (4)
of the Uniform Rules of
Court
for the setting aside of the substitution order handed
down by this court on 24 February 2022. In terms of the said order,
Dr Ngubo
was substituted as second defendant in the action instituted
by the first respondent Tshepang Contractors and trading CC
(Tshepang)
against the second respondent as first defendant and third
respondent (Bloemfontein Celtics) as second defendant for repayment
of a R5. 4 million loan.
[2]
The second respondent was at all material times hereto the owner and
sole director of Bloemfontein
Celtics.
[3]
On 9 August 2021, approximately three years after Tshepang issued
summons against second respondent
and Bloemfontein Celtics, the
second respondent sold Bloemfontein Celtics to Dr Ngubo as a going
concern pursuant to a written
sale agreement. According to Tshepang,
as Dr Ngubo acquired all rights and obligations pertaining to
Bloemfontein Celtics she became
liable for the repayment of the R5.4
million loan due by the second respondent and
Bloemfontein
Celtics and it is in
that regard that Tshepang sought the
substitution of Dr Ngubo in the place of Bloemfontein Celtics as a
second defendant.
[4]
In addition to the determination of the merits of the application,
there are preliminary issues
which must be addressed namely, both
parties seek condonation for the late filing of their respective
affidavits.
[5]
The applicant’s replying affidavit was
due by 30 June 2022
[1]
and the
answering affidavit to the counter-application was due on 24 June
2022.
[2]
Both the replying and
answering affidavits were only filed on 29 September 2022
approximately ninety (90) days late.
[6]
The delay is
extreme. Despite the substantial ineptitude, the affidavit deposed to
by Dr Ngubo’s attorney in support of the
condonation
application merely states the following:
“
6.1.
I agree that the late filing of the answering affidavit and the
counter-application should be condoned. (sic) Likewise, I ask
the
Honourable Court to condone the late filing of the answering
affidavit to the counterclaim (sic) and the replying affidavit
in the
main application.
6.2. I had
problems in getting instructions from the Applicant and in the
process misplaced the file and got the proverbial
wake-up call when
the First Respondent filed a Notice of Setdown.
6.3. I sincerely
apologize for the oversight in this regard, but as deponent on behalf
of the First Respondent in the answering
affidavit, submits that
there can be little prejudice, if any by the late of filing in this
regard and that the interest of justice
support such condonation.”
[7]
A party who seeks an indulgence of the court to condone its
ineptitude must show sufficient cause entitling it to the court’s
indulgence by giving a full explanation for the non-compliance with
the court rules. In this condonation affidavit, there
are
no
specifics
in terms of the dates
on which the attempt was made to
obtain instructions from Dr Ngubo, the dates on which the file was
found to be misplaced, recovered
including the date on which the
affidavits were ultimately attended to. The delay is partly
attributed to Dr Ngubo (para 6.2).
Inexplicably, her
confirmatory
affidavit verifying the said allegations is not annexed on the
condonation affidavit. Then, except
to
fleetingly aver that “
there can be
very little prejudice, if any, by the late filing in this regard
”
no attempt has been made to explain the basis upon which this
conclusion is arrived at, there are also no averments pertaining
to
the
prospects of success on the merits of the application if
any, including the importance of the subject matter to Dr Ngubo.
[8]
The Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
[3]
long-established
that
all
these factors are of relevant consideration in condonation
applications.
This
condonation application dismally falls short of the requirements
contemplated in
Grootboom
however,
having regard to the
age
of the matter (the summons was issued on 8 August 2018) and that no
prejudiced has befallen
Tshepang
as
a result of the late affidavits I hold that it will be in the
interest of justice including that of Tshepang that this matter
is
progressed. Condonation for the late filing of Dr Ngubo’s
replying affidavit and answering affidavits is granted.
[9]
Tshepang’s answering affidavit was also filed a day late on 20
May 2022 instead of 19 May
2022. Condonation is sought on the basis
that the delay was occasioned by the preparation of the
counter-application. I take into
account that the delay of one day is
quite miniscule, condonation is not opposed and that no prejudice has
been indicated by Dr
Ngubo accordingly, the late filing of the
answering affidavit is also condoned.
[10]
I now turn to the application and the
counter-application.
[11]
Rule 15 provides thus:
“
Change of
parties
(1)
No proceedings shall terminate solely by reason of the death,
marriage or other change of status of any party thereto unless the
cause of such proceedings is thereby extinguished.
(2)
Whenever by reason of an event referred to in subrule (1) it
becomes necessary or proper to introduce a further person as a party
in such proceedings (whether in addition to or in substitution for
the party to whom such proceedings relate) any party thereto
may
forthwith by notice to such further person, to every other party and
to the registrar, add or substitute such further person
as a party
thereto, and subject to any order made under subrule (4) hereof, such
proceedings shall thereupon continue in respect
of the person thus
added or substituted as if he had been a party from the commencement
thereof and all steps validly taken before
such addition or
substitution shall continue of full force and effect: Provided that
save with the leave of the court granted on
such terms (as to
adjournment or otherwise) as to it may seem meet, no such notice
shall be given after the commencement of the
hearing of any opposed
matter; and provided further that the copy of the notice served on
any person joined thereby as a party
to the proceedings shall (unless
such party is represented by an attorney who is already in possession
thereof), be accompanied
in application proceedings by copies of all
notices, affidavits and material documents previously delivered, and
in trial matters
by copies of all pleadings and like documents
already filed of record, such notice, other than a notice to the
registrar, shall
be served by the sheriff.
(3)
Whenever a party to any proceedings dies or ceases to be
capable of acting as such, his executor, curator, trustee or similar
legal
representative, may by notice to all other parties and to the
registrar intimate that he desires in his capacity as such thereby
to
be substituted for such party, and unless the court otherwise orders,
he shall thereafter for all purposes be deemed to have
been so
substituted.
(4)
The court may upon a notice of application delivered by any party
within 20 days of service of notice in terms of subrules (2) and
(3),
set aside or vary any addition or substitution of a party thus
affected or may dismiss such application or confirm such addition
or
substitution, on such terms, if any, as to the delivery of any
affidavits or pleadings, or as to postponement or adjournment,
or as
to costs or otherwise, as to it may seem meet
.”
[12]
The
relief sought by Dr Ngubo is premised on the
grounds that the substitution order was obtained in her absence and
it was granted
erroneously in that,
there is no
nexus
between
her
and
Tshepang because the
company that was sold to her,
K2[....]07 (Pty) Ltd
t/a Bloemfontein Celtic Football Club, registration number:
20[....]07 and the
party that she was substituted in its
place,
Bloemfontein Celtic Football Club with
registration number: 20[....]07 are two distinct and different
entities.
[13]
According to Dr Ngubo, the order was also obtained
irregularly
as it was granted before the
dies
expired for Tshepang’s compliance
with the Rule 30 and/or Rule 30A application.
[14]
In the answering affidavit Tshepang raises a point
in
limine
that: the application is defective
as
it refers to rule 15(4) whereas rule 15 does not apply in this matter
for the reason that, Dr Ngubo’s substitution was
not occasioned
by a change in status of the parties but in terms of the common law
pursuant to
Dr Ngubo’s acquisition
of
Bloemfontein Celtics. She has assumed Bloemfontein
Celtic’s liability towards
Tshepang
.
The application
ought to be dismissed solely on this score.
[15]
Having regard to the facts of this matter, the fact that pursuant to
her ownership of Bloemfontein Celtics,
Dr Ngubo
ex lege
attained
all rights and responsibilities pertaining to Bloemfontein Celtic is
not contested.
[16]
Rule 15 (4) applies to variations or the setting aside of the orders
where the substitution of a party was
occasioned by a change in
status of a party namely, as a result of death, marriage or any other
change in status.
[4]
[17]
In this matter it is indisputable that at the time the substitution
application was launched there was no
change in status of the parties
involved in the action. Dr Ngubo’s substitution in the place of
Bloemfontein Celtics was
merely intended to replace the erstwhile
second defendant with another
persona,
Dr
Ngubo as the new owner of Bloemfontein Celtics. In these
circumstances the substitution occurs in terms of the common law.
[5]
For these reasons, I am in agreement with
Tshepang’s
contention that Dr Ngubo’s reliance on the provisions of rule
15 is misplaced. N
otwithstanding
this conclusion, I am not inclined to dismiss the application merely
on this score. I am of the view that the
merits
of the application must also be determined otherwise the matter could
make a turn back to court and unnecessarily clog the
court rolls
which are already bursting at the seams.
[18]
Tshepang points out
that the substitution order was obtained in the absence of Dr Ngubo
after she had failed to oppose the application
and the second
respondent had also failed to file an answering affidavit after
having filed a notice to oppose the application.
[19]
Tshepang further states that there is no merit to Dr Ngubo’s
contention that
the
substitution
order was obtained irregularly. The rule
30A application was merely a complaint against the service of the
proceedings by email
and at the time the order was sought,
the
cause of complaint had already been removed in that, the court
processes were duly served at the offices of
Dr
Ngubo’s attorneys.
[20]
I am not persuaded that the substitution order was obtained
irregularly. It
is also important to note that
pursuant to receipt of Tshepang’s answering affidavit the
argument in respect of the alleged
irregularity of the order was not
pursued.
[21]
In response to the disputed link between Dr Ngubo and the entity Dr
Ngubo was substituted in its place, Tshepang
attributes the
discrepancy in the description of the relevant entity to an error of
citation. It is conceded that instead of citing
Bloemfontein Celtics
as defined in the sale agreement and in the consequent transfer
letter issued by the Premier Soccer League
(PSL) namely: “
K2[....]07
(Pty) Ltd t/a Bloemfontein Celtic Football Club, registration number:
20[....]07,”
Tshepang erroneously
cited
Bloemfontein Celtics
as:
“
Bloemfontein Celtic Football Club
with registration number: 20[....]07
”
and it is in that regard that a counter-application has been filed
for the variation of the incorrect citation in terms
of
rule
42 (1)
.
[22]
Tshepang is adamant despite the erroneous citation, Bloemfontein
Celtics cited as second defendant in the
action is the same entity
that was sold to Dr Ngubo and this fact is confirmed by the second
respondent’s admission of the
identity of the entity in the
Plea including the consequential amendments to the declaration. There
is no evidence that there is
another Bloemfontein Celtics that was
also owned by the second respondent and sold to Dr Ngubo. Page 13 to
29 of the bundle of
the documents are copies of the sale agreement
and the PSL transfer letter. Both documents describe the company sold
to Dr Ngubo
as:
K2[....]07 (Pty) Ltd t/a Bloemfontein Celtic
Football Club, registration number: 20[....]07.
[23]
I am satisfied that the citation of
Bloemfontein
Celtic Football Club with registration number: 20[....]07
as opposed to
K2[....]07 (Pty) Ltd t/a
Bloemfontein Celtic Football Club, registration number: 20[....]07
is
simply a misnomer. The dissimilarities in their respective
description do not denote two different entities. This fact is also
borne out by the definitions of the
merx
in the sale agreement. The relevant
part of the sale agreement reads thus
:
“
SALE
AGREEMENT
Entered
into by and between:
K2[....]07 (PTY) LTD
T/A BLOEMFONTEIN CELTIC FOOTBALL CLUB
(REG: 20[....]07)
Herein
represented by S.
M.
Tshabalala in his capacity as Director and Sole Owner
(the Seller)
And
NOZIPHO FORTUNATE
NGUBO
(Identity Number:
7[....])
(“The
Purchaser”)
[collectively referred
to as “the parties”]”
[24]
On
13
August 2021 PSL transmitted to Dr Ngubo in terms of which she is
informed that the transfer of the football club
K2[....]07
(PTY) LTD T/A BLOEMFONTEIN CELTIC FOOTBALL CLUB
sold
to her by the second respondent as a going concern has been approved.
[25]
A misd
escription of a party’s
details c
an be cured with an amendment in terms of rule 42(1)
by amending the order which was erroneously sought in the absence of
the party
affected thereby.
[26]
I have consequently arrived at the conclusion that the application
for the setting aside of the substitution
order ought to fail. The
counter-application prevails. I have found no reason why the costs
should not follow the results.
[27]
I make the
following order:
(1) The
applicant’s
application
in terms of Rule 15(4) is dismissed with costs.
(2) The
first respondent’s counter-application is upheld. The applicant
shall pay the costs of the counter-application.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant: Adv.
P. Greyling
Instructed
by: Lwandle
Nkontso Inc.
BLOEMFONTEIN
Counsel
on behalf of 1
st
Respondent: Adv.
TJ Mkgate
Instructed
by: Mavuya
Attorneys Inc.
BLOEMFONTEIN
[1]
See rule 6(5)(e).
[2]
Rule 6(5)(d)(iii).
[3]
2014
(2) SA 68
(CC) para 50.
[4]
Rule 15 (1) and (2).
[5]
Tecmed
(Pty) Ltd and Others v Nissho Iwai Corporation and Another
2011
(1) SA
35
(SCA) paras 12 -14.