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[2023] ZAFSHC 251
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Modise v Swartz (2206/2015) [2023] ZAFSHC 251 (22 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 2206/2015
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
In the matter between:
ELLIOT
MODISE
Applicant/Defendant
and
RAFAEL
HELENARD SWARTZ
Re
spondent/Plaintiff
CORAM:
VAN RHYN, J
HEARD
ON:
1 JUNE 2023
DELIVERED
ON:
22 JUNE 2023
[1]
The applicant, Elliot Modise, an electrician in the employment of
Eskom Holding Limited (“Eskom”)
at Welkom, seeks the
reinstatement of a special plea in the main action and to set-aside a
notice of removal in terms whereof the
special plea was abandoned.
The application is opposed by the respondent, Mr Rafael Helenard
Swartz, previously also employed as
an electrician and Chief
Technical Officer at Eskom.
[2]
The background facts relevant to this application can briefly be
summarised as follows: On 31 January 2013
the respondent suffered an
electric shock during the course and scope of his employment with
Eskom while rendering electrical repair
work to a mini substation
(“the incident”). In order to render the repair work, the
applicant was instructed to disconnect
the mini-substation from the
electrical network, but failed to do so. The respondent suffered
serious injuries as a result of the
incident. Pursuant to the
incident, the applicant was subjected to a disciplinary hearing
conducted by Eskom. The applicant pleaded
guilty and was suspended
for a period of 14 days.
[3]
On 12 May, 2015 the respondent, as plaintiff in the main action, had
a summons issued claiming compensation
from the applicant (defendant
in the main action) for damages as a result of the incident. The
applicant defended the action and
filed a special plea based upon the
provisions of the Compensation for Occupational Injuries and Diseases
Act
[1]
(“COIDA”). In
terms of the special plea, the applicant alleged he was a person as
described in section 56 of COIDA
at the time of the incident.
Therefore, the respondent was duty bound to submit a claim with the
Compensation Commissioner and
not against him.
[4]
During a pre-trial conference held on 15 January 2019, the parties’
respective legal representatives
agreed that, initially, only the
special plea would be adjudicated upon at the trial. The matter was
certified trial ready in respect
of the special plea on 4 March 2019.
The special plea was enrolled to be heard on 3 and 4 December 2019.
On 27 September 2019,
the applicant’s then correspondent
attorney of record, Kramer Weihmann & Joubert Inc., in a letter
abandoned the special
plea and tendered to pay the costs in respect
of the special plea.
[5]
The respondent (as the plaintiff) filed a notice of removal and
recorded in such notice that the defendant
has abandoned his special
plea and tendered to pay the wasted costs. Thereafter a memorandum of
fees and disbursements were drafted
by the respondent’s
attorney and submitted for payment to the applicant. On 5 December
2019 the parties’ respective
legal representatives agreed that
the applicant would pay the amount of R23 000.00 in respect of
the wasted costs.
[6]
In the meantime the applicant’s former attorney of record
withdrew. During a pre-trial conference held
on 14 September 2021,
the applicant’s newly appointed legal representatives did not
mention that the applicant intended to
proceed with the special plea.
The matter was again enrolled for trial to be heard on 30 August 2022
and 31 August 2022. The notice
of set down was served personally on
the applicant. On 30 August 2022 the matter was removed from the roll
and the applicant was
ordered to pay the wasted costs brought about
by the postponement sought by him.
[7]
During yet a further pre-trial conference held on 10 October 2022,
the applicant’s current legal representatives
raised the issue
regarding the special plea. It appears as if applicant’s
current legal representatives only learned that
the special plea had
been abandoned during September 2019 at the pre-trial conference held
on 10 October 2022. The respondent restated
as much in a letter dated
31 October 2022 addressed to the attorneys acting on behalf of the
applicant. The matter was enrolled
for the trial to proceed on 14, 15
and 17 March 2023. On 23 January 2023 the applicant served a notice
of intention to amend his
plea in order to introduce three (3)
special pleas. The respondent opposed the intended amendment and on
15 February 2023 the applicant
filed an amended plea without having
applied for leave to do so.
[8]
Respondent filed a Rule30(2)(b) notice requesting the applicant to
remove the aforementioned irregular step.
Applicant replied on 24
February 2023 and stated that the amended plea will be withdrawn but
that the applicant will persist with
the special plea as originally
pleaded. The attorney acting on behalf of the applicant was reminded
in writing, that the special
plea was abandoned by the applicant. No
reply was received. However, on the day of the trial, 14 March 2023,
the applicant insisted
on relying on the abandoned special plea on
the basis that same was, apparently, abandoned without his
instructions.
[9]
Mr Mathevula, counsel on behalf of the applicant, argued that
opposition of the application for reinstatement
of the special plea
is without merit in that the application is clear and straight to the
point. The applicant furthermore contend
that the abandonment of a
special plea can only be done in terms of the provisions of Rule 41
of the Uniform Rules of Court and
for such abandonment to have the
effect, it must have been made by the applicant being the defendant
in the main action. Therefore,
due to the abandonment of the special
plea by the applicant, it is an irregular step and such removal
should be set aside and declared
null and void.
[10]
Apart from relying on the provisions of Rule 41, Mr Mathevula
furthermore relied on the judgment in
Roupell
v Metal Art (Pty) Ltd
[2]
for his contention that the applicant should be allowed to re-instate
his special plea. The facts in the
Roupell
matter, as per the heading, are as follows:
“
After the
plaintiff’s claim for damages for wrongful dismissal had been
set down, the matter was settled and the plaintiff
filed a notice of
withdrawal. The defendants however sought to deduct an amount as
P.A.Y.E. from the amount agreed upon which contention
plaintiff
rejected. He now applied for an order authorising him to withdraw his
notice of withdrawal and directing the action to
be enrolled. The
defendants were informed by the Receiver of Revenue that tax was not
deductible as the plaintiff was a provisional
taxpayer.”
The
court held that the plaintiff was entitled to the order sought and
that the defendants should be ordered to pay the costs incurred.
[3]
[11]
The facts in the
Roupell
matter are distinguishable from the facts of the matter at hand. In
Roupell
the issue was whether the settlement was unconditional as contended
by the plaintiff or whether the settlement was subject to the
term or
condition proposed by the defendants regarding the deduction of an
amount in respect of tax.
[4]
To
my mind the
Roupell
matter does not provide an answer to the dispute in respect of the
abandonment of the applicant’s special plea. Mr Mathevula
argued that it is furthermore the applicant’s case that he did
not provide instructions to his former attorneys to abandon
the
special plea and it will be in the interest of justice to grant the
relief sought by the applicant.
[12]
Mr Coetzer, counsel on behalf of the respondent, argued that the
provisions of Rule 41 are not applicable to the issue
at hand. I
agree. The effect of the abandonment of the special plea is that it
no longer existed as a pleading. The special plea
was abandoned in a
letter by the applicant’s former attorneys where after the
respondent’s attorneys, in compliance
with the provisions of
Rule 41(3) merely removed the matter from the roll. Rule 41(3)
specifically states that “…
in any proceedings a
settlement or an agreement to postpone or withdraw is reached, it
shall be the duty of the attorney for the
plaintiff or applicant to
immediately inform the registrar accordingly.”
[13]
Mr Coetzer further argued that the contention on behalf of the
applicant that no claim, counterclaim or defences, including
special
pleas, may be abandoned during a pre-trial conference held in terms
of the provisions of Rule 37, Rule 37(8) proceedings
or from the bar
during the trial or during argument, is misplaced and wrong. I agree.
[14]
The applicant made several defamatory statements that the
respondent’s attorney is guilty of collusion without
providing
a factual basis or any evidence to justify the uncalled for remarks.
In order to determine whether the applicant’s
former attorney
could have concluded a compromise agreement on behalf of his client,
it is necessary to determine whether the attorney
had an actual
mandate. In
Ras
v Liquor Licensing Board Area No 11, Kimberley
[5]
it was held that a client will not be bound by the actions of his or
her legal representative where the latter exceeded his or
her mandate
and/or achieved an object not intended by the client.
[15]
With reference to
MEC
for Economic affairs, Environment and Tourism: Eastern Cape v
Kruizenga and Another
[6]
,
application of the principle of ostensible authority as explained in
Minister
of Police v Kunene and Others
[7]
and the legal position applicable to actual authority and ostensible
authority explained in
Minister
of Police v Van der Watt and Another
[8]
,
Mr
Coetzer argued that the applicant has failed to establish that he did
not provide instructions to his former attorney to abandon
the
special plea.
[16]
There is not a single averment in any of the applicant’s
affidavits stating that his current attorney or his previous
attorney, for that matter, had perused the office file in an effort
to prove that no letter, consultation note or telephone note
could be
traced to provide proof for the contention that applicant did not
provide such instructions. The applicant failed to explain
why he
paid the costs as tendered, associated with the removal of the matter
form the roll during December 2019. The applicant
failed to explain
why, in the event of him being determined to proceed with the special
plea at the trial, he did not sooner raise
the alarm regarding his
former attorney’s action to abandon his special plea. The
applicant furthermore failed to provide
any logical and reasonable
explanation why, after causing the matter to be removed from the roll
during December 2019, during August
2022 and on 14 March 2023, he
only in January 2023 realised that the special plea had been
abandoned years ago and now endeavours
to re-instate the same.
[17]
This being application proceedings, the applicant must make out his
or her case in the Founding Affidavit, which the applicant
failed to
do. It is trite that an applicant who seeks relief on motion must, in
the event of conflict, accept the version set up
by his opponent
unless the latter’s allegations are, in the opinion of the
court, not such as to raise a real, genuine or
bona fide
dispute
of fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
[18]
Furthermore the applicant has, except for his mere say-so, failed to
present any argument or case law to confirm that
the respondent’s
claim against the applicant forms part of COIDA. The applicant has
not made out a case that the respondent’s
claim against him is
therefore barred or expunged, nor has the applicant made out a case
that he has good chances of success in
succeeding with the special
plea. Section 35(1) of COIDA provides that no action shall lie by an
employee for the recovery of damages
in the respect of any
occupational injury or disease resulting in the disablement or death
of such employee against such employee’s
employer and no
liability for compensation on the part of such employer shall arise,
save under the provisions of COIDA in terms
of such disablement or
death.
[19]
The applicant and the respondent were co-employees at Eskom. From the
mere reading of section 35(1) of COIDA it is clear
that co-employees
are not excluded from the said section. The effect of section 35(1)
of COIDA is to deprive an employee of his
common-law right of action
to claim damages from his employer in respect of an occupational
injury. Mr Coetzer, in his heads of
argument, furthermore referred to
the provisions of section 35(2) and section 36(1)(a) and convincingly
argued that the applicant’s
reliance upon his special plea is
misplaced.
[20]
To allow the applicant to, again, rely upon his special plea, which
is not valid in law, will cause further delay in
the finalisation of
the respondent’s claim, which has been seriously delayed by the
applicant since 2019 and will increase
the costs. I am of the view
that the applicant’s application should be dismissed. There is
no reason why costs should not
follow the event.
[21]
Even though being informed months in advance that the special plea
was abandoned, the applicant caused the trial set
down for hearing
during March 2023, to be postponed yet again. The applicant should
therefore be ordered to pay the costs of the
postponement of the
trial. No arguments in this regard were presented by the applicant
notwithstanding the order granted by Mahlangu
AJ on 14 March 2023
that the costs occasioned by the postponement of 14 March 2023 are to
be argued on 1 June 2023.
ORDER:
[22]
In the result the following order is made:
1. The
application is dismissed with costs.
2. The
applicant (defendant in the main action) shall pay the wasted costs
occasioned by the postponement of the trial
on 14 March 2023, which
costs shall include the reservation fees of the expert witness.
VAN RHYN. J
On behalf of the
Applicant:
ADV.
R C MATHEVULA
I
nstructed by:
WEBBERS
ATTORNEYS
BLOEMFONTEIN
On
behalf of the Respondent:
ADV.
C COETZER
Instructed by:
HONEY
ATTORNEYS
BLOEMFONTEIN
[1]
Act 130 of 1993.
[2]
1972 (4) SA 300
(W).
[3]
Roupell (supra) at p 300B-C.
[4]
Roupell (supra) at p 304.
[5]
1966 (2) SA 232
(C) at 237E-238F.
[6]
2010 (4) SA 122
(SCA).
[7]
[2020] 1 All SA 451 (GJ).
[8]
(A265/2018) [2021] ZAGPPHC 53 (20 January 2021) at paragraphs 37 –
50.