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[2023] ZAFSHC 301
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Mangaung Metropolitan Municipality v Alenti 220 (Pty) Ltd t/a Itec Alenti (2377/2021) [2023] ZAFSHC 301 (28 July 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
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. 2377/ 2021
In
the matter between:
MANGAUNG
METROPOLITAN MUNICIPALITY
APPLICANT
and
ALENTI
220 (PTY) LTD t/a ITEC ALENTI
RESPONDENT
Registration
Number: 2009[…]
IN
RE:
Case
Number: 2377/2021
In
the matter between:
ALENTI
220 (PTY) LTD t/a ITEC ALENTI
APPLICANT
Registration
Number: 2009[…]
and
MANGAUNG
METROPOLITAN MUNICIPALITY
RESPONDENT
CORAM
:
GUSHA, AJ
HEARD
ON:
15 JUNE 2023
DELIVERED
ON
: This judgment was delivered
electronically by circulation to the parties’ representatives
by way of email
and by release to SAFLII. The date and time for
delivery is deemed to be at 12h00 on 28 JULY 2023.
JUDGMENT
INTRODUCTION
[1]
In the present matter the applicant as per its notice of motion,
primarily seeks condonation of
its non-compliance with the Uniform
Rules of Court pertaining to its late filing of its application for
leave to appeal the default
judgment granted by Boonzaaier AJ on the
28
th
November 2022. Secondary to the aforesaid, the applicant seeks leave
to appeal the aforesaid default judgment
[1]
.
[2]
The application is opposed.
CHRONOLOGY
OF EVENTS
[3]
The parties are engaged in a protracted legal tussle emanating from a
contract they concluded
as a result of a competitive bidding process
for the supply, maintenance and lease of multifunctional printing
machines for a period
of 36 months, commencing on the 1
st
April 2016 until the 31
st
March 2019.
[2]
[4]
After the aforesaid termination date, the contract was continually
extended tri-monthly until
the 10
th
September 2020. On the
latter date the contract was then purportedly extended on a month to
month basis.
[5]
Subsequently, the respondent
[3]
unsuccessfully sought an extension until the 7
th
December 2020. The refusal by the applicant
[4]
to further extend the contract triggered the main action between the
parties. Resultantly, on the 27
th
May 2021 the respondent issued summons against the applicant
[6]
Consequent to service of the summons, the applicant filed a notice to
defend, however no plea
was subsequently filed. Resultantly, on the
5
th
August 2021 the respondent filed a notice of bar
calling upon the applicant to file its plea within 5 days, failing
which the applicant
would
ipso facto
be barred from pleading.
This notice did not elicit a plea and the applicant having failed to
file its plea within the requisite
time was then
ipso facto
barred.
[7]
After placing the applicant under bar, the respondent applied for
default judgment which was set
down for hearing on the 24
th
November 2022. The applicant in turn filed a notice in terms of Rule
30
[5]
and Rule 30 A
[6]
wherein it complained that the respondent failed to give it 5 days’
notice of its intention to apply for default judgment
and that
accordingly this rendered the intended application for default
judgment irregular. This however did not elicit the desired
result
and the applicant, notwithstanding having asserted the purported
irregular step, did nothing further to pursue this aspect.
Instead of
acceding and removing the alleged irregularity complained of, the
respondent in turn filed its own notice in terms of
Rule 30A wherein
it asserted the bar that the applicant was still under.
[8]
The applicant then brought an urgent application to uplift the bar.
Boonzaaier AJ, dismissed the
application for want of urgency and
immediately on application by the respondent, considered and granted
the application for default
judgment.
[9]
Aggrieved by the aforesaid judgment by default, the applicant
approaches this court for leave
to appeal and contends that
Boonzaaier AJ misdirected herself when she granted default judgment
whilst she was aware that the applicant’s
application to uplift
the bar was still pending. The contention is further that in doing
so, Boonzaaier AJ effectively denied the
applicant the benefit of a
fair trial on the merits of the application to uplift the bar.
THE
APPLICATION FOR CONDONATION
[10]
The applicant filed its unsigned and un-commissioned notice for leave
to appeal on the 24
th
February 2023. In terms of the Uniform Rules such application had to
be filed within 15 days from the date of judgment and thus
on or
before the 19
th
December 2022
[7]
. It is common
cause between the parties that the application for leave to appeal
was filed manifestly out of time. The parties
are however divergent
with regards to the degree of lateness. The applicant contends that
same is 39 calendar days and 29 court
days, the respondent in turn
contends that the degree is far more significant; 64 calendar days
and 46 court days. Due to the decision
I reach hereunder in this
regard, I deem it unnecessary to determine the impasse between the
parties with regards to the length
of time the applicants were in
non-compliance of the Rules. I am in agreement with them however that
whatever the degree of lateness,
it is not insignificant.
[11]
In terms of the Uniform Rules applications for condonation are dealt
with in accordance with Rule 27
[8]
.
It needs no restating that condonation cannot be had for the mere
asking, it is an indulgence which the court has a discretion
to grant
or not. The party seeking condonation has to furnish the court with a
full, detailed and accurate account of the causes
of the delay and
their effects so as to enable the court to clearly understand how the
delay came about
[9]
.
[12]
In
Van
Wyk v Unitas Hospital and Another
[10]
,
the
Court held that:
“
This court has
held that the standard for considering an application for condonation
is the interest of justice. Whether it is in
the interest of justice
to grant condonation depends on the facts and circumstances of each
case. Factors that are relevant to
this enquiry include but are not
limited to the nature of the relief sought, the extent and cause of
the delay, the effect of the
delay on the administration of justice
and other litigants, the reasonableness of the explanation for the
delay, the importance
of the issue to be raised in the intended
appeal and the prospects of success.”
[13]
Truncated, the reasons as advanced by the applicant for its
non-compliance are that from the moment the judgment
by default was
granted, it sought legal advice on the best possible route to follow.
In my view the reasons advanced by the applicant
are
what I can only deem to be a plethora of excuses. From the date of
judgment,
dies non
or not, festive season or not, the
applicant had ample time to seek and obtain legal advice, timeously
file and thereby not fall
foul of the Rules.
[14]
Notwithstanding the significant degree of lateness and the
unsatisfactory explanation therefor, I hold the
view that the
interests of both parties to finality, the absence of prejudice
against the respondent as well as the interests of
justice, dictate
that I should lean to the side of the applicant and condone its
non-compliance with the Rules. That being said,
I would be remiss if
I do not remark that this cavalierly practice of disregarding the
Rules is to be deprecated.
APPLICATION
FOR LEAVE TO APPEAL
[15]
Section 17
(1) (a) of the
Superior Courts Act 10 of 2013
sets out the
test to be applied when considering an application for leave to
appeal, it provides that same may only be given where
the judge or
judges concerned are of the opinion that
(i)
the appeal would have reasonable prospects of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration.
[16]
As alluded to above, the present application is opposed by the
respondent primarily on the ground that a
default judgment is not
appealable as it is capable of rescission and thus not final in its
effect. They further contend that the
application as launched by the
applicant has no prospects of success.
[17]
The applicant in turn contends that the default judgment granted was
final as evinced by its effect; it may
be executed upon and until set
aside by a court of competent jurisdiction, remains final.
[18]
In determining the aforesaid I can do no better than have regard to
the judgment of Nugent JA in
Pitelli v Everton Gardens Projects
CC
[2010] 4 All SA 357
(SCA)
wherein the court
restated “that
for an order to be
appealable it must have as one of its features that the order is
final in its effect,
which means that
it is not susceptible to being revisited by the court that granted it
(my own emphasis). The court further
explained that an order is not final, for purposes of an appeal
merely because it takes effect
unless it is set aside. It is final
when the proceedings of the court of first instance are complete and
that court is not capable
of revisiting the order. That leads one
ineluctably to the conclusion that an order that is taken in the
absence of a party is
ordinarily not appealable. It is not appealable
because such an order is capable of being rescinded by the court that
granted it
and it is thus not final in its effect. In some cases an
order that is granted in the absence of a party might be rescindable
under
rule 42(1)(a)
, and if it is not covered by that rule it is in
any event capable of being rescinded under
rule 31
or the common law”
(footnotes omitted).
[19]
I do not mean to be unkind but in the present matter the applicant
orchestrated its own misery from the onset.
It did not file a plea
after its own notice to defend was filed, it was neither moved into
action when faced with the prospect
of being placed under bar nor did
it venture to move an application on notice for uplifting the bar,
resorting instead to approaching
the court on an urgent basis when
indubitably it must have realised that the proverbial horse was about
to bolt. What the applicant
should have done in the circumstances was
to approach the court which granted the default judgment with an
application for rescission.
Had it done so, and only if the
application for rescission failed, then that order dismissing
rescission would be appealable.
[20]
That being said, I am mindful of the considerable hurdle that the
applicant would need to overcome in seeking
an order for rescission,
I am further alive to the fact that that application might not even
have borne fruit. That notwithstanding,
I hold the considered view
that the appealability of the judgment by Boonzaaier AJ is dependent
upon whether it is capable of being
revisited and not upon whether
such an application will succeed. A judgment by default is by its
nature not final in its effect
because it is capable of being
revisited, albeit that condonation might be required for the delay.
Once rescission has been refused,
and an appeal against that order
has been dismissed, the order is then not capable of being revisited.
[21]
In the result I am not persuaded that the applicant has passed muster
of the relief it seeks, the default
judgment granted in the present
matter is not appealable, accordingly the application for leave to
appeal has no prospects of success
and tands to be dismissed.
[22]
Having dismissed the application, I feel it apposite to deal herein
with a concerning aspect that occurred
whilst preparing this
judgment. In what I can only at best deem an alien practice, Mr
Raynard the attorney for the applicant, authored
and sent a letter to
me, in chambers
[11]
. In it he
sought to revisit the proceedings and also sought to “
set
the record straight
”:
He further requested that
I
hold over the judgment and allow the applicant to have the record of
the proceedings
before
Boonzaaier AJ be transcribed
[12]
.
Needless to say I did not respond to this letter as I held the view
and still do, that Mr Raynard, a seasoned attorney and an
officer of
this court, ought to know better.
[23]
Further to this letter, I received a notice of an interlocutory
application dated 21
st
July 2023 for leave to file a
further affidavit. Appended thereto is an affidavit spanning some 10
pages deposed to by Ms Motsumi,
an attorney practicing at the
applicant’s firm of attorneys of record, essentially seeking to
traverse the same aspects traversed
in their aforesaid letter as well
as issues already ventilated during arguments in court.
[24]
Appended to the aforesaid affidavit are what appears to be
transcripts of the record of proceedings before
Boonzaaier AJ. Unlike
the affidavit by Ms Motsumi, I did not read the transcripts. I did so
for the simple reason that the whole
application and the aspects
raised therein are not relevant to the issue that this court is
called upon to determine. Furthermore,
for purposes of this judgment
and the reasons therefor the aspect of whether certain submissions
were correctly or incorrectly
made is of no moment.
[25]
Resultantly the interlocutory application for leave to file a further
affidavit is dismissed with no order
as to costs.
ORDER
[26]
In the result I make the following order;
1.
The application for leave to appeal the default judgment is dismissed
with costs.
NG
GUSHA, AJ
On
behalf of the applicant
Adv.
L Halgryn SC
Instructed
by:
Raynard
& Associates Inc
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
C Snyman
Instructed
by:
Blair
Attorneys
BLOEMFONTEIN
[1]
As per AR6 page 28 of the application for leave to appeal bundle,
the notice of application for leave to appeal is however unsigned
by
the deponent, Mr A.G. Raynard.
[2]
Tender MMM/BID 324:2015/2016.
[3]
Plaintiff in the main action.
[4]
Defendant in the main action.
[5]
30.
Irregular proceedings
(1)
A party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if—
(a)
the applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
the applicant has, within 10 days of becoming aware of the step, by
written notice afforded his opponent an opportunity of
removing the
cause of complaint within 10 days;
(c)
the application is delivered within 15 days after the expiry of the
second period mentioned in paragraph (b) of subrule (2).
(3)
If at the hearing of such application the court is of opinion that
the proceeding or step is irregular or improper, it may
set it aside
in whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make
any such order as to
it seems meet.
(4)
Until a party has complied with any order of court made against him
in terms of this rule, he shall not take any further step
in the
cause, save to apply for an extension of time within which to comply
with such order.
(5)
…
[6]
30A.
Non-compliance with Rules
(1)
Where a party fails to comply with these Rules or with a request
made or notice given pursuant thereto, or with an order or
direction
made 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.
[7]
49.
Civil appeals from the High Court
(1)
(a)…
(b)
When leave to appeal is required and it has not been requested at
the time of the judgment or order, application for such
leave shall
be made and the grounds therefor shall be furnished within 15 days
after the date of the order appealed against:
Provided
that when the reasons or the full reasons for the court’s
order are given on a later date than the date of the
order, such
application may be made within 15 days after such later date:
Provided further that the court may, upon good cause
shown, extend
the aforementioned periods of 15 days.
[8]
27.
Extension of time and removal of bar and condonation
(1)
In the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an
order
extending or abridging any time prescribed by these Rules or by an
order of court or fixed by an order extending or abridging
any time
for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms as
to it seems
meet.
(2)
Any such extension may be ordered although the application therefor
is not made until after expiry of the time prescribed
or fixed, and
the court ordering any such extension may make such order as to it
seems meet as to the recalling, varying or cancelling
of the results
of the expiry of any time so prescribed or fixed, whether such
results flow from the terms of any order or from
these Rules.
(3)
The court may, on good cause shown, condone any non-compliance with
these Rules.
[9]
Uitenhage
Transitional Local Council v South African Revenue
Service 2004 (1) SA 292 (SCA).
[10]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para
[20]
.
[11]
Same was sent to the attorneys for the respondent.
[12]
The attorneys for the respondent responded on the same date decrying
said letter as constituting
a
second bite
at the
proverbial cherry
.