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[2023] ZAFSHC 336
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Van Den Berg v Land and Agricultural Development Bank of SA and Others (1955/2016) [2023] ZAFSHC 336 (21 August 2023)
FLYNOTE:
CIVIL
PROCEDURE – Expert notice –
Condonation
–
Extensive
litigation since the trial commenced – Case management through
judicial intervention in terms of Rule 37A not to
be abused to escape
compliance with the rules – Reckless to adopt a wait-and-see
stance and then submit vital evidence in
the action years after the
pleadings closed, the case management happened and after the trial
commenced – Application to
condone the late filing of an expert
notice and summary dismissed – Uniform Rules 36(9) and 37A.
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: 1955/2016
Reportable:
YES/NO
In
the matter between:
BAREND
JACOBUS VAN DEN BERG
Applicant
And
LAND
AND AGRICULTURAL DEVELOPMENT BANK OF SA
First
Respondent
SUIDWES
LANDBOU (PTY) LTD
Second
Respondent
LORRAINE
MARLENE VAN DEN BERG
Third
Respondent
BAREND
JACOBUS VAN DEN BERG N.O.
Fourth
Respondent
LORRAINE
MARLENE VAN DEN BERG N.O.
Fifth
Respondent
HENDRIK
STEPHANUS LODEWICUS
DU
PLESSIS N.O.
Sixth
Respondent
THE
REGISTRAR OF DEEDS
Seventh
Respondent
Coram:
Opperman,
J
Heard:
20
July 2023
Delivered:
21
August 2023.
This judgment was handed down electronically
by circulation to the parties’ legal representatives
via
email
and release to SAFLII on 21 August 2023. The date and time of
hand-down is deemed to be 15h00 on 21 August 2023
Judgment
by:
Opperman,
J
Summary:
Application
for condonation of the late filing of expert notice and summary in
terms of rule 36(9)(a) and (b) and for the direction
of the court to
comply with the provisions of rules 36(9), 36(9A) and rule 37(A)
JUDGMENT
[1]
This
is an opposed application in the main action in a trial that is
partly heard on various issues separated in terms of rule 33(4)
(The
rule 33(4)-trial).
[2]
Brought
after the trial had already commenced on 27 November 2019
,
it
is to now condone the late filing of an expert notice and summary as
contemplated in terms of rules 36(9)(a) and (b) as well
as an order
directing the parties in the main action to comply with the purported
interlocking provisions of rule 36(9), rule 36(9A)
and rule 37(A).
[1]
[3]
The
rule 33(4)-trial is set down for six days to continue on 7 November
2023. The reasons for the delay of four years will become
clear as
the judgment evolves.
[4]
This
is the application:
[2]
1.
PURPOSE
OF APPLICATION:
1.1
The application was
launched:
1.1.1
Firstly, in terms of the provisions of rule 27 of the uniform rules
for, insofar as may be necessary,
the extension of time limit(sic) in
which the applicant is required to file an expert-notice and summary
as contemplated by rule
36(9) and the condonation of defendant’s
late compliance; and, secondly, for an order:
1.1.2
in accordance with the practice of
this court, for compliance with the provisions of rule 37A
read with
36(9) and 9(A)(sic), requiring that:
1.1.2.1
the plaintiffs and the defendant file a joint minute of all the
experts within 30 days from this order;
1.1.2.2
if any party causes undue delay in the finalisation of the joint
minutes, such party’s expert reports
shall be ignored for the
trial purposes;
1.1.2.3
should either the defendant or the plaintiffs so request in writing
within 10 days from the date that a joint
minute has been filed as
contemplated in paragraph 1.1.2.1 above, that the plaintiffs approach
the court for rule 37(A)(sic) case
management procedures to be held
after the joint expert reports and notices are filed;
1.1.2.4
in the event that any of the parties do not perform in terms of any
directions as indicated above or any further
directions granted as
contemplated in rule 37A, the innocent party shall be entitled to
bring an interlocutory application to compel
the party in default to
comply which(sic) an interlocutory application which will form part
of the case management procedure and
the application will therefore
not have to be brought before the normal motion court;
alternatively
1.1.3
for the referral of the case for
judicial case management as is contemplated by uniform rule
37A.
[5]
The
respondents opposed the application on the basis that the orders that
the applicant seeks are “legally incompetent”.
[3]
They
argue that:
1.
The
recently substituted rule 36(9) requirements causes that the content
of the applicant’s expert summary does not meet the
requirements of sub-rule 9(b). The non-compliance with rule 36(9) is
the end of the application.
2.
Secondly,
is it the argument of the respondents that the applicant does not
overcome the procedural hurdles where he intends to
call an expert
witness after the trial had already commenced; the applicant required
the leave of this court to cure his failure
to timeously comply with
the provisions of rule 36(9).
3.
The
third objection goes to the reasons why the first defendant provides
no proper basis for the opinion of the first defendants
intended
expert witness that the credit agreements entered into was reckless
within the meaning of the applicable provisions of
the
National
Credit Act 34 of 2005
.
4.
The
next objection to the application is that the expert summary is
materially and fatally flawed and defective if regard is had
to the
provisions of
rule
36(9)(b).
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0.51in;
margin-bottom: 0in; line-height: 150%">
5.
Lastly,
is it proposed in defence of the application that the invocation
of
rule
37A
read
with
rule
36(9)
and
rule
36(9A)
is
fatally flawed.
[6]
The
issue in the main action turns on monies claimed and allegedly due in
terms of two purported credit agreements concluded between
the
plaintiffs and the defendants. A primary defence is that of reckless
credit granted by the plaintiffs to the defendants in
terms of
the
National
Credit Act 34 of 2005
.
[7]
The first and second respondents are the plaintiffs in
the main
action. The applicant and his mother, Lorraine Marlene van den Berg,
are in their personal capacities the first and second
defendants. The
trustees of the Hermanusdam Trust are the third, fourth and fifth
defendants in the main action. The sixth defendant
is the Registrar
of Deeds. Mr. H.S.L. du Plessis is a trustee of the Hermanusdam
Trust. He is also the legal representative of
all the defendants in
the main action and the applicant here. The seventh respondent is the
Registrar of Deeds that purportedly
registered the mortgage bond. No
relief was sought against the seventh respondent, and they did not
oppose the application. Mr.
du Plessis does not represent the
Registrar of Deeds.
[8]
As
indicated, the matter is partly heard on separated issues ordered by
agreement between the parties in terms of
rule
33(4).
Relevant
to this application is,
inter
alia
:
1.13
Whether the second defendant conducted an assessment, as contemplated
in
section
81(2)
,
and as required in terms of section 80(1)(a) of the Credit Act in
relation to the loan agreement (“BV3”) or the
contract-financing
agreement (“BV7”).
1.13.1
Should it be found that the second defendant did not conduct such an
assessment in respect of the credit
agreement “BV3”;
whether the relevant credit agreement constitutes reckless credit as
contemplated in section 80 of
the Credit Act.
1.13.2
Should the court find that the second plaintiff did not conduct said
assessment in respect of the credit
agreement “BV7”;
whether said credit agreement constitutes reckless credit as
contemplated in section 80 of the Credit
Act.
1.13.3
Should the court find that second plaintiff indeed conducted the
assessment referred to in paragraph 1.13
above in respect of the
credit agreement “BV3”, whether the second plaintiff
entered into the credit agreement “BV3”
despite the fact
that the preponderance of information available to the second
plaintiff indicated that first defendant did not
generally understand
or appreciate his risks, costs or obligations under the proposed
credit agreement as contemplated in Section
80(2)(b)(i) and/or
entering into said credit agreement would make the first defendant
over indebted as contemplated in section
80(1)(b)(ii), and/or whether
the credit agreement is void in such circumstances.
1.13.4
Should the court find that the second plaintiff conducted the
required assessment referred to in paragraph
1.13 above in respect of
the credit agreement “BV7”; whether the second plaintiff
entered into the credit agreement
with the first defendant despite
the fact that the preponderance of information available to the
second plaintiff indicated that
the first defendant did not generally
understand or appreciate his risks, costs or obligations under the
proposed credit agreement
as contemplated by section 80(1)(b)(i),
and/or entering into the credit agreement would make the first
defendant over indebted
as contemplated by section 80(1)(b)(ii)
and/or whether the credit agreement is void in such circumstances.
(Paragraphs 3.2
to 3.3 of the amended plea read with paragraphs 11 to
11.4 of the replication).
1.14
Should it be found that the credit agreements (“BV3”) or
(“BV7”)
constitute reckless credit agreements as
contemplated in section 80 of the Credit Act but that it is not void:
1.14.1
Whether the agreements (“BV3”) or (“BV7”) in
such circumstances, are of no force
and effect in view of section
81(3) of the Credit Act. (Prayer 37.2.2.2 of the counterclaim
read with paragraph 2.2.3 of
the amended plea to the counterclaim);
1.14.2
Whether the court is empowered, in terms of the provisions of section
83(2)(a) of the Credit Act to set
aside the first defendant’s
rights and obligations in terms of either or both of the credit
agreements without the court
at the same time making an order that is
just and equitable in the circumstances (prayers 37.2.2.3 of the
counterclaim read with
paragraphs 2.2.6 and 2.2.6.1 of the amended
plea to the counterclaim);
1.14.3
Whether the court is entitled and empowered in terms of the
provisions of section 83(2)(b) of the Credit
Act to suspend the force
and effect of the credit agreements indefinitely and without
determining a date for their resumption,
(prayers 37.2.2.4 of the
counterclaim read with the applicable prayer in terms of the amended
plea to the counterclaim);
1.14.4
Whether the court is empowered and entitled to declare void or alter
the alleged unlawful provisions of
the relevant credit agreements in
terms of section 90(4) of the Credit Act, without the court at the
same time making an order
which is just and equitable in the
circumstances. (Prayer 37.2.2.5 of the counterclaim read with
paragraphs 2.2.4 and 2.2.4.1
of the amended pleas to the
counterclaim).
[9]
The first issue is then the adjudication of the application
for
condonation for the late filing of the expert notice and summary;
secondly, whether the applicant may demand by way of a court
order
from the respondents to employ experts and submit joint minutes under
the auspices of case management and at this stage.
If condonation is
not granted it might be the end of the case.
[10]
In
Mokhethi
and another v MEC for Health, Gauteng
2014
(1) SA 93
(GSJ)
at paragraph [20] it was correctly ruled that it is trite law that
the rules regarding expert notices are to be complied
with. It is not
for the defendant to wait and see if the plaintiff is going to call
expert testimony before the defendant decides
whether or not its case
demands the calling of expert testimony to its own benefit. It
will be shown that this is exactly
the basis on which the application
is premised, and it speaks directly to the application
in
casu
.
[11]
Rule
36 demands a proper and substantive application for condonation of
the conduct of the applicant. The application was launched
on 2
February 2023 whilst the 2019-promulgated rules 36(9)(a) and (b) were
applicable.
[12]
The
uncertainty of the applicant on the aspect of a substantive
condonation application is without merit.
[4]
The
rules are clear. It was amended in May 2019 and May 2023 and demand
condonation for non-compliance.
[5]
These
are the 2019-rules:
Rule
36(9)
No
person shall, save with the leave of the court
or
the consent of all parties to the suit, be entitled to call as a
witness any person to give evidence as an expert upon any matter
upon
which the evidence of expert witnesses may be received unless—
(a)
where
the plaintiff intends to call an expert, the plaintiff shall not more
than 30 days
after the close of
pleadings,
or where the defendant
intends to call the expert, the defendant shall not more than 60 days
after the close of pleadings, have
delivered notice of intention to
call such expert; and
(b)
in
the case of the plaintiff not more than 90 days after the close of
pleadings and in the case of the defendant not more than 120
days
after the close of pleadings, such plaintiff or defendant shall have
delivered a summary of the expert’s opinion and
the reasons
therefor:
Provided
that the notice and summary shall in any event be delivered before a
first case management conference held in terms of
rules 37A(6) and
(7) or as directed by a case management judge.
[Substituted
by GNR.2642 of 1987 and by GNR.842 of 31 May 2019.] (Accentuation
added)
[13]
Rule
36(9) demands leave of the court or the consent of the parties, after
close of the pleadings and that the notice and summary
shall in any
event be delivered before a first case management conference held in
terms of rules 37A(6) and (7) or as directed
by a case management
judge.
[14]
The
matter was certified to be ready for trial on 30 January 2017 and in
terms of the rules and law in general that was applicable
at the
time. In terms of the then applicable law the matter was certified as
trial-ready by Chesiwe, J after an inquiry for that
purpose was
conducted on 30 January 2017. The matter of expert notices and
evidence on the issue of reckless credit was not raised
here on 30
January 2017, nor in two preceding pre-trial inquiries on 16 January
2016 and 28 November 2016. The matter was certified
ready for trial
on 30 January 2017 and in terms of the prevailing law. The issue of
reckless credit did exist here already but
was not canvassed or
addressed.
[15]
The
words of Lacock, J in the unreported matter of
JP
Rupping v GP Niddrie and another,
Case
number 667/2009 in the Northern Cape Provincial Division of the High
Court give context and credence to the legal value for
condonation
in
casu
. He ruled that if a party is
allowed to, on its own volition and autonomously during trial, give
notice of the expert witnesses
he desires to call, the trial may be
theoretically so, dumped into chaos. It will also deprive the court
of its duty to manage
the process.
[16]
The
added reality is trial-by-ambush. This is illegal and not in the
spirit of the Constitution that guarantees a fair trial. The
parties
have a right to know the case they face before trial commences and
even before the first case management conference held
in terms of
rule 37A.
[17]
Case
management through judicial intervention in terms of rule 37A is not
to be abused to escape compliance with the rules of court.
It shall
be used in the interests of justice to alleviate congested trial
rolls and to address the problems which cause delays
in the
finalisation of cases. The nature and extent of which shall be
complemented by the relevant directives or practices of the
Division
in which the proceedings are pending.
The
rule states explicitly that the primary responsibility remains with
the parties and their legal representatives to prepare properly,
comply with all rules of court, and act professionally in expediting
the matter towards trial and adjudication
.
[18]
Harms
[6]
with
reference to case law pointed out that:
1.
A
party who wishes to call an expert witness on any matter on which the
evidence of expert witnesses may be received
must
deliver:
(a) a notice of his intention to call that person as a witness; and
(b) a summary of the expert’s opinions and the
reasons for them
within the prescribed time limits.
2.
The
notice and summary, in the event of case management, must be
delivered before a first case management conference held in terms
of
rules 37A(6) and (7) or as directed by a case management judge.
3.
Where
these requirements are not complied with, expert evidence may not be
given except with the leave of the court or with the
consent of all
parties to the suit.
4.
The
court must exercise a judicial discretion in this regard, favouring
the admission of the evidence subject to the necessary safeguards.
5.
The
purpose of this rule is to prevent surprise and to give a litigant
the opportunity to come prepared to trial to counter the
expert
evidence adduced by his opponent and to enable the experts to
exchange reports and views, thereby limiting the duration
of the
trial and costs.
6.
The
time limits were not designed to provide a litigant with a tactical
advantage over the other party.
7.
Each
party must prepare for trial individually.
[19]
The
right of access to courts is essential in a constitutional democracy
under the rule of law and specifically so in terms of section
34 of
the Constitution, 1996: “Everyone has the right to have any
dispute that can be resolved by the application of law
decided in a
fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”
[20]
Condonation
granted on the facts of this case in terms of rule 27(3) read with
rule 36(9),
inter alia
,
of the Uniform Rules of Court may break any limitation placed on this
right.
[21]
Rule
27(3) states that: “The court may, on good cause shown, condone
any non-compliance with these rules.”
[22]
Rule
36(9)(a): “No person shall,
save
with the leave of the court
or the
consent of all parties to the suit, be entitled to call as a witness
any person to give evidence as an expert upon any matter
upon which
the evidence of expert witnesses may be received unless —…”
[23]
The
right of access to courts is eclipsed by the right to justice that
also
entails,
inter alia
, a fair trial. Section 34 of the
Constitution refers to the
application of law
decided in
a fair public hearing
.
[24]
Fundamental
rights and freedoms are not absolute. Their boundaries are set by the
rights of others and by the legitimate needs of
society and the
administration of justice. Section 36 of the Constitution, as a
general limitation clause, sets out specific criteria
for the
restriction of the fundamental rights in the Bill of Rights. These
are common knowledge.
[25]
The
major considerations that affect
condonation
are the degree of lateness of the referral, the reason for the
lateness, the prospects of success on the merits and
the prejudice to
both parties which includes the importance of the matter to each
party.
[26]
This
case is a reminder that the rules of courts may not be utilised to
play litigatory games that delay justice and cause costs
and
procedural misery. The rules may not be warped to the extent that the
administration of justice is made a mockery. Litigation
must be
proper and timeous and may not cause trials to become chaos.
[27]
Courts
may also not be held hostage by the reliance on section 34 of the
Constitution. Litigation and access to courts are constitutional
rights that may not be trampled and ridiculed; it must be conducted
with the utmost decorum and respect for the rule of law.
[28]
The
pleadings, according to the applicant and accepted by the court as
reflected by the papers of record, closed on
13
July 2016
.
[7]
[29]
The application is
seven years later
if the close of
pleadings are regarded and
six years after
the
matter was certified ready for trial. It is now more than
three
years since
the trial started on the very aspect that forms
the subject of the expert evidence the applicant wants to submit.
[30]
Extensive litigation initiated by the applicant and the other
defendants happened
since the trial commenced on 27 November 2019 and
this issue of the expert was never raised.
[31]
The
applicant stated that:
[8]
6.12
At all relevant times my attorney was of the
opinion-and-still-is-that any possible onus
of proof that may be
placed upon me to prove reckless lending will only be triggered once
the plaintiffs have made the allegation
that a reckless assessment
has been attended to which, it is common cause, to date, has not
happened.
[32]
This
is the explanation of the applicant for the application:
FACTUAL
SYNOPSIS
[9]
4.1
The plaintiffs instituted action against the defendants during May
2016
and claimed payment of certain amounts allegedly due in terms of
two purported credit agreements concluded.
4.2
The salient feature of the defendant’s special plea and
counterclaim,
for purposes of this application, is that the NCA
regulated the transactions upon which the plaintiffs’ claims
are premised
and that:
4.2.1
the 2nd plaintiff failed to have attended to a reckless assessment as
contemplated by section
81(2) read with section 80(1)(a) of the NCA;
alternatively.
4.2.2
in the event that the 2nd plaintiff
has in fact attended to a reckless assessment as contemplated
by the
provisions of section 80(1)(a), which remain denied, the 2nd
plaintiff, notwithstanding the fact that, on a preponderance
of
information available to it indicating that the defendant did not
generally understand or appreciate his risks, costs or obligations
under the proposed credit agreements; or entering into that agreement
would have made him over indebted, proceeded to conclude
the credit
agreements;
4.2.3
that the purported credit agreements are accordingly reckless and if
not void, voidable;
4.2.4
that the defendant’s rights and
obligations arising from the purported credit agreements
be rescinded
as contemplated by section 83(2)(b); alternatively;
4.2.5
that, by virtue of the provisions of
section 83(2)(b) the force and effect of these purported
credit
agreements be suspended.
4.3
On 4 July 2019, shortly after the new rule 36(9) became effective,
the
plaintiffs delivered a rule 36(9)(a) notice of intention to call
a certain Dr PC Cloete as an expert witness; the plaintiffs however
failed to deliver the subsequent summary as contemplated by sub-rule
(b).
4.4
The defendant issued and delivered his notice in terms of rule
36(9)(a)
and (b) on 17 March 2022-more than a year before the April
trial continuance date.
4.5
Due to the uncertainty caused by the variation of the time periods
for
delivering expert notices and the fact that the notices were
delivered after the period prescribed by the new rule 36(9), the
first
defendant’s attorney addressed a letter to the
plaintiffs’ attorney on 15 March 2022, requiring to know
whether plaintiffs
have any objection to the delivery of the expert
notice and summary.
4.6
The plaintiffs responded on 22 March 2022 conveying that they are not
prepared to consent to the filing and delivery of the notice,
alleging,
inter alia
,
that the notice does not
comply with the provisions of the rule; that the plaintiff will be
prejudiced because the defendants have
not pleaded any of the facts
upon which the expert witness intends to rely as required in terms of
rules 18(4), 18(5), 22(2) and
22(3); that it contains opinion
evidence which is inadmissible; that the information or facts or
documents upon which the expert
witness relies in support of each and
every opinion are not clearly and unambiguously stated and/or
identified; that the reasoning
process is not summarized
unambiguously and the expert witness appears to attempt to rely upon
documents not yet discovered.
4.7
The applicable documents were subsequently discovered by the
plaintiffs
in terms of a supplementary discovery affidavit delivered
on 28 April 2022. It is contended that none of the purported
objections
relates to the notice in terms of sub-rule (a) and, in any
event in so far as purported objections are not repeated by the
plaintiffs
in this application the (sic) contend that it is not
required to deal with these purported objections in the scheme of
this application.
4.8
The plaintiffs proposed in their aforesaid response that the matter
be
postponed by agreement: all the parties agreed to the postponement
of the matter in general due to the fact that the issue of discovery
in terms of rule 35(3) was still subject to the outcome of an appeal
process.
4.9
Should it be held by the court that the onus to prove the
recklessness
of the purported agreements rests upon the defendant, he
shall be required to adduce expert evidence in support of my claim
thereabout,
whereas, if the burden of proof rests upon the plaintiffs
the expert notices shall play a role in countering the plaintiffs’
evidence this regard. (Accentuation added)
[33]
The
applicant addressed the circumstance that caused the non-compliance
with the rules in paragraph 6 of the founding affidavit
of the
applicant. I will address the aspects proposed and evaluate the legal
veracity.
1.
It
is the case for the applicant that it
is common cause that the
plaintiffs failed to have alleged in their particulars of claim that
they have complied with the provisions
of the
National
Credit Act
relating
to
reckless credit and more particularly, compliance with the provisions
of
section
81
read
with
section
80
of
the
National
Credit Act. Their
failure
to have done so renders their particulars of claim fatally
defective.
The
applicant accordingly approached the matter by entering a special
plea of non-compliance whereupon they awaited the response
of the
plaintiff with the intention to, should they fail to amend their
particulars of claim, argue non-compliance at an appropriate
time.
§
The
argument is flawed in that the applicant had to resolve the issue of
the onus on the aspect of reckless credit at the beginning
of the
litigation and before the matter was certified as ready for trial. It
is reckless to adopt a wait-and-see stance and then
start to prepare
and submit vital evidence in the action years after the pleadings
closed, the case management happened and after
the trial commenced.
2.
It
is according to the applicant, trite
that only a credit provider
would be able to testify as to whether it has complied with the
provisions of
section
81
as
such information falls within such credit providers exclusive domain.
§
This cannot be correct. The defendants must have known their
financial situation at the time of the
credit agreements and now base
the evidence in the report of the expert witness thereon. It is a
contradiction in the evidence
of the applicant. On the one hand he
submits that he does not possess evidence on which to address the
issue but in the same breath
he applies for expert evidence prepared
by him and his expert on the aspect to be admitted.
3.
At
all relevant times their attorney was
of the opinion
and
still is
that any possible onus of proof that may be placed
upon the applicant to prove reckless lending will only be triggered
once
the plaintiffs have alleged that a reckless assessment has been
attended, which it is common cause, has not happened.
§
The
applicant claims that his legal representative has extensive
knowledge of the relevant legislation
and law and will maintain their
stance on the onus. If they maintain this position, he is bound by
the advice of his counsel and
must bear the consequences if it is
wrong. The applicant cannot change his evidence and defence in the
middle of the trial with
an expert witness. Notwithstanding the onus
or perceived onus in a case does the primary responsibility remain
with the parties
and their legal representatives to prepare properly,
comply with all rules of court, and act professionally in expediting
the matter
towards trial and adjudication. The obligation on parties
is in terms of
rule
37A(2)(c).
4.
The
applicant indicated that they decided
to place their defence of
reckless lending on the back burner awaiting the plaintiff's reaction
to their special plea.
§
They did so until this trial commenced in November 2019. They
realized in 2019 what the reaction
of the plaintiff’s was; the
matter was put to trial. They only obtained the evidence of the
expert in 2022 and so adapted
their evidence.
5.
The
applicant, now, autocratically so,
has decided to disregard the
question as to the effect of the plaintiffs’ failure to have
alleged compliance in regard to
the provisions of
section
81
read
with
section
80
of
the
National
Credit Act and
approach
the issues in question on the conservative basis that firstly; the
effect of the plaintiffs failure would have no
effect on the onus of
proof and secondly, for the sake of prudence that the onus of proof
notwithstanding the applicant will address
the issue.
§
This responsibility already existed when it became clear that it is
the situation and may not be
addressed years after the event and
during the trial.
6.
After
the November 2019 session interlocutory
applications and appeals amid
the COVID-19 lockdown took precedence and caused the postponement of
the trial until the date in
April 2023.
§
This date has in the meantime been extended to deal with yet again
another interlocutory application,
being the one in relation to the
expert witness. The conduct of the applicant has caused yet another
delay.
7.
The
applicant further indicates that the
bank manager that he consulted
during March 2017 and intended to call in respect of his plea of
reckless credit relocated and retired.
They were accordingly required
to find another suitable expert.
§
It is implausible that this took two years. The applicant realized
that it was an issue in 2017 but
only took steps years later to
address the issue. The applicant failed in his litigatory obligation
to ensure expeditious and fair
litigation.
8.
After
a prolonged and intensive search
consulting a variety of individuals
the attorney of the applicant that is also a party in this matter,
ultimately located a knowledgeable
replacement expert witness and one
of the few experts in the field of agricultural finance.
§
The details of the search and situation is not known to the court and
the explanation vague.
9.
After
the expert had been briefed the parties
consulted on various
occasions and requested information and a variety of documentation
which took time to retrieve.
§
Again,
the details and challenges are addressed in a sweeping statement that
does not assist the court
in coming to a fair decision.
10.
Mr.
Botha and the attorney commenced preparing the
rule
36(9)
-papers
in question which were finalized, served and filed on 17 March 2022;
years after the trial commenced and the pleadings closed.
Given
the voluminous nature of the expert notice and summary, it is
submitted by the applicant, that the same were prepared, finalized,
edited, and settled within a reasonable period of time.
§
Again,
the lack of detail makes the assertion of reasonableness of the delay
difficult, if not impossible.
11.
As
stated above, certain interlocutory applications and appeals
were
launched which if successful would in all probability have affected
the continuation of the trial in consequence of which
the parties
agreed to postpone the matter pending the finalization of these
matters in late 2022.
§
The statement is ambiguous in that the plaintiffs/respondents were
forced into the extensive litigation
by the applicant and other
defendants in the main action and the trial had to be postponed
pending the outcome of the applications
and appeals.
12.
The
question also arose, taking into account the fact that
the expert
notices were delivered in March 2022, whether, if necessary the
applicant should approach the court for leave at the
appropriate time
during the trial or launch a substantial application as is done in
this application and secondly whether the provisions
of
rule
37A
applies
in regard to the expert issues and if so to what extent.
The
attorney was originally, insofar the manner in which the application
is to be launched, satisfied that this could be done on
a summary
basis during the trial.
§
The
attorney was clearly wrong in his assumption since the rules and law
is clear. Fortunately, but belated, during November 2022,
the
attorney was involved in interlocutory proceedings in another High
Court that changed his stance on the process.
13.
Due
to the novelty of these amended rules the attorney considered
it and
the issues at hand since that came to his knowledge. During November
2022 he left for the USA for the month of December
2022 and upon his
return sought a second opinion.
§
This
is neither here nor there; the delay is due to the applicant’s
conduct and to the prejudice
of the administration of justice. It
could have been prevented if due diligence and commitment had been
observed from the beginning
of the case. The rules were promulgated
in 2019 already. The reason(s) for the stay in the USA is not known
to the court.
14.
In
similar fashion the applicant submits that it is clear
from all the
court papers read with this application and particularly the expert
notices that he has a
bona fide
defence and that his
defence is not ill-founded. It is based upon facts which if proved
constitute a defense and further that
his counterclaims are factually
and legally sound.
§
This statement is debatable and was put forward for adjudication in
the
rule
33(4)
-trial
in 2019.
15.
The
applicant argues that the plaintiffs/respondents cannot
claim any
prejudice suffered by them. The plaintiffs were served with the
rule
36(9)
notices
as early as March 2022. This is more than a year prior to the April
2023 trial continuance date and accordingly have
been fully aware of
the testimony of the expert witness for a considerable period prior
to this application. The plaintiff’s
objection set out in annex
B2 is not premised upon the time factor and thus not on the
condonation issue itself but instead upon
the contents thereof.
§
This
is just not correct. The case has been delayed for years and the
plaintiffs/ respondents are
waylaid by yet another application that
is unsound in law and fact. The applicant knew in March 2022 that the
respondents object
to the submission and validity of the expert
notice and summary. They only filed an application for condonation on
2 February 2023;
eleven months later.
[34]
The
case has an extensive history of litigation after and before the
trial started in November 2019.
[10]
The
litigation, as driven by the defendants in the main action
,
turned
in the Constitutional Court. The litigation ended in judgments
against them as none was successful:
1.
In
the beginning, the defendants in the main action delivered a plea
which is inundated with special pleas; twenty to be exact.
There are
four conditional special pleas and multilayered defenses on the
merits.
2.
Intertwined
herewith is that the applicant in the present application as the
first defendant in the main action, filed three conditional
counterclaims, an unconditional claim for damages and a conditional
claim for damages.
3.
The
mother, Mrs. van den Berg filed a conditional counterclaim and the
trustees of the Hermanusdam Trust that are the third to fifth
defendants in the main action, filed two conditional counterclaims.
4.
The
first and second respondents deny that the aforesaid defendants’
defenses are well founded.
5.
Added
to the above is the 2019-action that was instituted against one Mrs.
Corinne Steyn. In terms of the 2019-action the first
and second
respondents instituted conditional claims against Mrs. Steyn as the
first defendant.
6.
In
the light of the extraordinary broad scope of issues that would have
had to be dealt with and determined in the trial of the
main action
the parties agreed at a supplementary pre-trial conference held on 22
November 2019, to request the court to separate
a number of issues in
terms of uniform
rule
33(4)
to
be adjudicated first and separately from the remaining issues and
before the adjudication and determination of the remaining
issues.
7.
The
trial on the separated issues in the main action commenced, as was
indicated, on the 27th of November 2019. On 29 November 2019
Mrs.
Steyn gave evidence for the first respondent and regarding the
registration of the mortgage bond by the trustees of the Hermanusdam
Trust in favor of the second respondent. The evidence of Mrs. Steyn
was necessary because the trustees of the Hermanusdam Trust
deny the
validity of the mortgage bond. After the completion of Mrs. Steyn’s
testimony, the total of the separated issues
was by agreement
postponed to the 14
th
,
15
th
,
17
th
,
21
st
,
22
nd
and
24
th
of
April 2020. Covid then happened.
8.
After
the postponement of the main action and before the continuation of
the main action the application to compel and the consolidation
application were issued. As a result, the trial in the main action
did not continue during April 2020. Concerningly so, the matter
has
not proceeded since. It remains in limbo pending the extensive and
widespread interlocutory litigation by the applicant and
the other
defendants.
9.
The
application to compel and the consolidation application were both
dismissed by this court.
10.
The
defendants in the main action requested leave to appeal in respect of
the application to compel and the trustees of the Hermanusdam
Trust
requested leave to appeal in respect of the consolidation
application. This court refused leave to appeal in both the
application
to compel and in the consolidation application.
11.
Leave
to appeal from the Supreme Court of Appeal was sought in both
applications. The Supreme Court of Appeal refused leave to appeal
in
both the applications.
12.
Applications
for reconsideration in terms of
section
17(2)(f)
of
the
Superior
Courts Act 10 of 2013
followed.
These applications were also unsuccessful.
13.
Finally
leave to appeal was sought from the Constitutional Court. The
Constitutional Court also refused leave to appeal.
[35]
It
is imperative for the reader of this judgment to also have regard to
some relevant papers and documents to understand the extensive
history of this case caused by the applicant and the other defendants
and for context in this application. These are:
1.
The pleadings which were exchanged under case
number 1955/ 2016 (it
is the main action) instituted in this case on 4 May 2016.
2.
The order which this court issued in terms
of uniform
rule
33(4).
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ont-style: normal; font-weight: normal; widows: 2; orphans: 2">
0.51in;
margin-bottom: 0in; line-height: 150%">
3.
The
interlocutory application in terms of
rule
30A
dated
11 March 2020 to compel discovery (the application to compel) and the
affidavits as well as the heads of arguments which
were exchanged in
the application to compel.
4.
The notice of motion issued on 11 March 2020
in the application for
the consolidation of the main action and case number 765/2019 (the
2019-action) and the founding and other
affidavits as well as the
heads of argument which were exchanged in the application for
consolidation.
5.
The applications for leave to appeal in respect
of the application to
compel and in respect of the consolidation application as well as the
heads of arguments which were filed
in these applications.
6.
The applications for leave to appeal filed
in the Supreme Court of
Appeal in respect of both the applications to compel and the
consolidation application.
7.
The applications for reconsideration and variation
in terms
of
section
17(2)(f)
of
the
Superior
Courts Act 10 of 2013
filed
in the Supreme Court of Appeal.
8.
The applications for leave to appeal in the
Constitutional Court in
respect of both the aforesaid applications.
9.
This
case was also marred with some controversy in that Mr. du Plessis
who, as said, represented the defendants in the main action
overstepped the boundaries off proper litigation in that he, on
allegations by counsel for the plaintiffs introduced factual
assertions
in the heads of arguments and during oral argument. He in
their view testified from the bar and he simply continued to raise
new
issues of law and fact as the litigation progressed. This caused
a delay from November 2019 up to date; more than three years.
[11]
10.
Knowing very well what their primary defense is, Mr. du Plessis
now
in July 2023 makes an application for the admission of the evidence
of an expert witness on the alleged reckless credit defence.
[36]
Auditing by experts of this defence at the beginning of the
litigation with evidence that carries veracity
could have spared all
the litigants and the administration of justice much distress and
costs.
The plaintiffs and the defendants still have the
option, but it must be exercised with due regard to the rules of the
court and
proper process.
[37]
Condonation may not be granted on the facts of this case. The
non-compliance with the rules of the
court is unacceptable and places
the administration of justice into disrepute.
[38]
If the refusal to grant condonation is mistaken the fact remains that
the expert summary does not meet
the present requirements in terms
of
rule
36(9)(b).
The
expert notice is fatally flawed to the extent that a costs order will
not address the neglect. The applicant failed, as
was put by the
respondents in their heads of argument at paragraph 48.2, to act with
reasonable promptitude. The prejudice to the
respondents and the
administration of justice is real for the reasons reflected above.
[39]
The refusal of condonation makes the issue of the invocation
of
section
37A
moot.
Case management was finalized in 2017 when the matter was certified
to be ready for trial. Even prior to the introduction
of
rule
37A
and
rule
36(9A)
,
cases were managed by the courts either on request or
mero
motu
by
the court or in terms of a Division’s Practice
Directives.
[12]
The
case of
Mohai
v Road Accident Fund
(2802/2017)
[2022]
ZAFSHC 115
(16
May 2022) referred to by counsel for the applicant is confirmation
hereof.
[40]
Interference by the court to regulate the conduct of the plaintiffs
will be unconstitutional on the
facts of the case. The atmosphere and
purpose of
rule
37A[13]
is
to serve the administration of justice, not to interfere with the
litigatory freedom of parties. The plaintiffs are
dominus
litis
and
neither the court nor a defending party may prescribe to a plaintiff
what the evidence is they must adduce and present.
[41]
The plaintiffs are
dominus litis
, they are the parties to
whom the suit belongs, and they are the masters of the suit.
The
dominus litis
status may cause a party to derive
the benefit of a favorable judgment but there is also the liability
for the effects of
an adverse judgment, including expenses. They
carry the risk.
[42]
Rule
36(9A)
prescribes
that the parties
shall
endeavor, as far as possible
,
to appoint a single joint expert on any one or more or all issues in
the case; and file a joint minute of experts relating to
the same
area of expertise within 20 days of the date of the last filing of
such expert reports.
[14]
It
is not legislatively compulsory to file joint minutes; there must be
a reasonable attempt. It may also not be expected
from any party to
obtain expert evidence just because one party chooses to do so;
specifically, not four years after the trial
commenced and seven
years after the pleadings closed. The prejudice of costs and delay of
the trial for years are now more real.
[43]
In conclusion, the record of this case will show that much of the
delay in this case was caused by
the continuous issues that arose
after the trial commenced and initiated by the applicant
in
casu
and the other defendants in the main action. With
due respect to the right to access to justice and courts, continuous
conduct of this nature will lead to a waste of financial and judicial
resources and obstruct the administration of justice that
may not be
allowed. The time has come for the matter to be vented at trial and
concluded.
[44]
ORDER
The
application
to
condone the late filing of an expert notice and summary in terms
of
rules
36(9)(a)
and
(b) as well as an order directing the parties in the main action to
comply with the purported interlocking provisions
of
rule
36(9)
,
rule
36(9A)
and
rule
37(A)
are
dismissed
with costs that includes the costs of two counsel.
M
OPPERMAN, J
APPEARANCES
On
behalf of the applicant
H.S.L.
DU PLESSIS
HSL
du Plessis Attorneys
c/o
Lovius Block Attorneys
BLOEMFONTEIN
On
behalf of the first and second respondents
DIRK
VAN DER WALT SC
WILLEM
VAN ASWEGEN
Symington
& De Kok Attorneys
[1]
The
rules are depicted later in the judgment.
[2]
“
Applicant’s
Heads of Argument” at paragraph 1: pages 3 to 5.
[3]
Paragraphs
12.1 to 12.5 of the “First and Second Respondent’s Heads
of Argument and Practise Note”.
[4]
See
the Founding Affidavit at paragraph 6.
[5]
Rule
36
(9)
(The
0b4b
0b">
2023
–
rules)
(a)
No person shall,
save with the leave of the court
or
the consent of all parties to the suit, be entitled to call as a
witness any person to give evidence as an expert upon
any matter
upon which the evidence of expert witnesses may be received unless —
(i) where
the plaintiff intends to call an expert, the plaintiff shall not
more than 30 days after the close of pleadings,
or where the
defendant intends to call the expert, the defendant shall not more
than 60 days after the close of pleadings, have
delivered notice of
intention to call such expert; and
(ii) in
the case of the plaintiff not more than 90 days after the close of
pleadings and in the case of the defendant
not more than 120 days
after the close of pleadings, such plaintiff or defendant shall have
delivered a summary of the expert’s
opinion and the reasons
therefor:
Provided
that the notice and summary shall in any event be delivered before a
first case management conference held in terms of
rules
37A(6)
and
(7) or as directed by a case management judge.
(b)
The summary of the expert’s opinion and reasons therefor
referred to in subparagraph
(a)
(ii) shall be compiled by
the expert himself or herself and shall contain a statement by the
expert confirming that the report
is —
(i)
in such expert’s own words;
(ii) for
the assistance of the court; and
(iii) a
statement of truth.
[Sub-rule
(9) substituted by GN R3397 of
12 May 2023
.]
(Accentuation added)
[6]
Civil
Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULES 36 & 37A, JUDICIAL CASE
MANAGEMENT, Last Updated: February 2023 - SI 76, LexisNexis,
https://www.mylexisnexis.co.za/Index.aspx
on
16 August 2023.
[7]
Page
17 at paragraph 3.2.2: “Defendants Notice of Application for
Condonation and Orders contemplated by Rule 37(A)-13/7/2023”
and hereafter referred to as the ‘Bundle’.
[8]
Founding
Affidavit: BJ van den Berg at page 29 of the Court Bundle.
[9]
Applicant’s
Heads of Argument dated 12 July 2023.
[10]
Pages
52 to 60 of the Bundle in the “First Respondent’s
Answering Affidavit”.
[11]
Paragraph
21 of the “First Respondents Answering Affidavit”.
[12]
In
re: Nedbank Limited v Thobejane and related matters
[2018]
4 All SA 694
(GP),
2019
(1) SA 594
(GP);
Broodie
NO v Maposa and Others [
2018]
2 All SA 364
(WCC),
2018 (3) SA 129
(WCC).
[13]
Rule
37A
(1)
A
judicial case management system shall apply, at any stage after a
notice of intention to defend is filed—
(a)
to
such categories of defended actions as the Judge President of any
Division may determine in a Practice Note or Directive; and
(b)
to
any other proceedings in which judicial case management is
determined by the Judge President, of own accord, or upon the
request of a party, to be appropriate.
(2)
Case
management through judicial intervention—
(a)
shall
be used in the interests of justice to alleviate congested trial
rolls and to address the problems which cause delays in
the
finalisation of cases;
(b)
the
nature and extent of which shall be complemented by the relevant
directives or practices of the Division in which the proceedings
are
pending; and
(c)
shall
be construed and applied in accordance with the principle that,
notwithstanding the provisions herein providing for judicial
case
management, the primary responsibility remains with the parties and
their legal representatives to prepare properly, comply
with all
rules of court, and act professionally in expediting the matter
towards trial and adjudication.
(3)
The
provisions of rule 37 shall not apply, save to the extent expressly
provided in this rule, in matters which are referred for
judicial
case management.
(4)
In
all matters designated to be subject to judicial case management in
terms of sub-rule (1)(a) at any stage before the close
of pleadings,
the registrar may—
(a)
direct
compliance letters to any party which fails to comply with the time
limits for the filing of pleadings or any other proceeding
in terms
of the rules; and
(b)
in
the event of non-adherence to the directions stipulated in a letter
of compliance, refer a matter to a case management judge
designated
by the Judge President who shall have the power to deal with the
matter in terms of the practice directives of the
particular
Division concerned.
(5)
(a)
Notwithstanding the allocation of a trial date, a case that is
subject to judicial case management shall
not proceed to trial
unless the case has been certified trial-ready by a case management
judge after a case management conference
has been held, as provided
for in sub-rule (7).
(c)
A
case management judge shall not certify a case as trial-ready unless
the judge is satisfied—
(i)
that
the case is ready for trial, and in particular, that all issues that
are amenable to being resolved without a trial have
been dealt with;
(ii)
that
the remaining issues that are to go to trial have been adequately
defined;
(iii)
that
the requirements of rules 35 and 36(9) have been complied with if
they are applicable; and
(iv)
that
any potential causes of delay in the commencement or conduct of the
trial have been pre-empted to the extent practically
possible.
(d)
A
case management judge may order directions on the making of
discovery where the judge considers that such directions may
expedite
the case becoming trial-ready.
(6)
In
every defended action in a category of case which has been
identified in terms of sub-rule (1)(a) as being subject to judicial
case management in which any party makes application for a trial
date following the close of pleadings, the registrar shall issue
a
notice electronically to the parties, at the addresses furnished in
terms of rules 17(3)(b) or 19(3)(a), in respect of the
holding of a
case management conference.
(7)
The
notice by the registrar in terms of sub-rule (6) shall inform the
parties—
(a)
of
the date, time, and place of a case management conference in the
matter to be presided over by a case management judge;
(b)
of
the name of the case management judge, if available;
(c)
that
they are required to have held a pre-trial meeting before the case
management conference at which the issues identified in
sub-rule
(10) in relation to the conduct and trial of the action must have
been considered; and
(d)
that
the plaintiff is required, not less than two days before the time
appointed for the case management conference, to—
(i)
ensure
that the court file has been suitably ordered, secured, paginated
and indexed; and
(ii)
deliver
an agreed minute of the proceedings at the meeting held in terms of
paragraph (c), alternatively, in the event that the
parties have not
reached agreement on the content of the minute, a minute signed by
the party filing the document together with
an explanation why
agreement on its content has not been obtained.
(8)
The
minute referred to in sub-rule (7)(d)(ii) shall particularise the
parties’ agreement or respective positions on each
of the
issues identified in sub-rule (10) and, to the extent that further
steps remain to be taken to render the matter ready
for trial,
explicitly identify them and set out a timetable according to which
the parties propose, upon a mutually binding basis,
that such
further steps will be taken.
(9)
(a)
In addition to the minute referred to in sub-rule (7)(d)(ii), the
parties shall deliver a detailed statement of issues, which
shall
indicate—
(i)
the
issues in the case that are not in dispute; and
(ii)
the
issues in the case that are in dispute, describing the nature of the
dispute and setting forth the parties’ respective
contentions
in respect of each such issue.
(b)
A case management judge may, upon considering the statement by the
parties referred to in paragraph (a), direct that appearance
by one
or all of the parties is dispensed with.
(10)
The
matters that the parties must address at the pre-trial meeting to be
held in terms of sub-rule (7) are as follows:
(a)
The
matters set forth in rules 35, 36 and 37(6);
(b)
the
soliciting of admissions and the making of enquiries from and by the
parties with a view to narrowing the issues or curtailing
the need
for oral evidence;
(c)
the
time periods within which the parties propose that any matters
outstanding in order to bring the case to trial readiness will
be
undertaken;
(d)
subject
to rule 36(9), the instruction of witnesses to give expert evidence
and the feasibility and reasonableness in the circumstances
of the
case that a single joint expert be appointed by the parties in
respect of any issue;
(e)
the
identity of the witnesses they intend to call and, in broad terms,
the nature of the evidence to be given by each such witness;
(f)
the
possibility of referring the matter to a referee in terms of section
38 of the Act;
(g)
the
discovery of electronic documents in the possession of a server or
other storage device;
(h)
the
taking of evidence by video conference;
(i)
suitable
trial dates and the estimated duration of the trial; and
(j)
any
other matter germane to expediting the trial-readiness of the case.
(11)
Without
limiting the scope of judicial engagement at a case management
conference, the case management judge shall—
(a)
explore
settlement, on all or some of the issues, including, if appropriate,
enquiring whether the parties have considered voluntary
mediation;
(b)
endeavour
to promote agreement on limiting the number of witnesses that will
be called at the trial, eliminating pointless repetition
or evidence
covering facts already admitted; and
(c)
identify
and record the issues to be tried in the action.
(12)
The
case management judge may at a case management conference—
(a)
certify
the case as trial-ready;
(b)
refuse
certification;
(c)
put
the parties on such terms as are appropriate to achieve
trial-readiness, and direct them to report to the case management
judge at a further case management conference on a fixed date;
(d)
strike
the matter from the case management roll and direct that it be
re-enrolled only after any non-compliance with the rules
or case
management directions have been purged;
(e)
give
directions for the hearing of opposed interlocutory applications by
a motion court on an expedited basis;
(f)
order
a separation of issues in appropriate cases notwithstanding the
absence of agreement by the parties thereto;
(g)
at
the conclusion of a case management conference, record the decisions
made and, if deemed convenient, direct the plaintiff to
file a
minute thereof;
(h)
make
any order as to costs, including an order
de
bonis propriis
against the
parties’ legal representatives or any other person whose
conduct was conduced unreasonably to frustrate the
objectives of the
judicial case management process.
(13)
The
record of the case management conference, including the minutes
submitted by the parties to the case management judge, any
directions issued by the judge and the judge’s record of the
issues to be tried in the action, but excluding any settlement
discussions and offers, shall be included in the court file to be
placed before the trial judge.
(14)
The
trial judge shall be entitled to have regard to the documents
referred to in sub-rule (13) in regard to the conduct of the
trial,
including the determination of any applications for postponement and
issues of costs.
(15)
Unless
the parties agree thereto in writing, the case management judge and
the trial judge shall not be the same person.
(16)
Any
failure by a party to adhere to the principles and requirements of
this rule may be penalised by way of an adverse costs order.
[R.37A
inserted by GNR.842 of 31 May 2019.]
[14]
Inserted
by GNR.842 of 31 May 2019.