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[2023] ZAFSHC 397
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Coetzee and Another v Master of the Free State High Court Bloemfontein and Others (3148/2021) [2023] ZAFSHC 397 (11 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number 3148/2021
In
the matter of:
EMMARENTIA
COETZEE
First
Applicant
KITTY
POTGIETER
Second
Applicant
And
THE
MASTER OF THE FREE STATE HIGH
COURT
BLOEMFONTEIN
First
Respondent
WILLEM
FRANCOIS BOUWER N.O.
Second
Respondent
RONEL
SWART
Third
Respondent,
MARTHINUS
CHRISTIAAN VAN DEN HEEVER
Fourth
Respondent
EMMARON
BOERDERY CC
Fifth
Respondent
CORAM:
NAIDOO, J
HEARD
ON:
15 JUNE
2023
DELIVERED
ON: 11
O
CTOBER
2023
JUDGMENT
[1]
This matter arises from the administration of the deceased estate of
the father of
the applicants, Barend Van Den Heever. Adv JMC Johnson
represented the applicants and Adv JJ Pretorius represented the
fourth and
fifth respondents. The estate was finalised and
distributed in terms of a Final Liquidation and Distribution Account
(L&D Account),
which had lain for inspection, as required in
terms
Administration of Estates Act 66 of 1965
. It is not in dispute
that such period was from 25 May 2018 to 15 June 2018. No objections
were received and the estate was thereafter
finalised. Approximately
two years later, additional assets in the form of shares were
discovered by the second respondent, who
is the Executor of the
deceased estate, which he sought to distribute amongst the heirs,
being the children of the deceased. The
heirs are the two applicants,
and the third and fourth respondents. The value of the shares was
R431 359,46. The applicants
refused to accept the distribution
and insisted that the second respondent deal with the additional
asset in terms of the Act.
[2]
A Supplementary L&D Account was compiled and advertised. The
first applicant lodged,
with the Master of the High Court, an
objection to the Supplementary L&D Account. The objection was
dismissed by the Master.
The matter before me emanates from an
application brought by the applicants to review and set aside the
decision of the Master
(the main application). It appears that the
applicants in this latter mentioned application attempted to object
to the initial
L&D Account, to which there were no objections and
which was already finalised, and made no application for condonation
for
the late objection. The fourth and fifth respondents
brought an application in terms of Uniform
Rule 30
for the dismissal
of the main application on the grounds,
inter alia
, of
impermissibly attempting object to the L&D Account and on the
basis that the notice of motion did not identify the decision
of the
Master that the applicants sought to review. The court hearing the
Rule 30
application, granted an order (the Chesiwe order) on 15
September 2022, in the following terms:
“
1. The Applicants’
notice of motion and application are declared irregular and are set
aside in terms of
Rule 30(1)
;
0
.5in; margin-bottom: 0in; line-height: 150%">
2.
The Applicants are afforded 15 days in which to substitute their
notice of motion and application;
3.
Should the Applicants fail to so substitute their notice of motion
and application timeously and/or satisfactory
(sic), the Fourth and
Fifth Respondents are granted leave to apply on the same papers,
suitably amplified if necessary, for an
order that the Applicants’
main application be dismissed with costs;
4.
Costs to be costs in the main action”
[3]
The 15 days granted to the applicants expired on 6 October 2022. The
applicants failed
to comply with the court order of 15 September
2022, with the result that, on 8 November 2022, the fourth and fifth
respondents
issued an application for the dismissal of the main
application with costs. That application was enrolled for hearing on
17 November
2022. As a result of a communication addressed to the
respondents’ legal representative by the applicants’
legal representative
on 16 November 2022, the matter was postponed,
on 17 November 2022 to 2 February 2023, when the court ordered the
applicants to
file a condonation application for the late filing of
the amended papers, as well as the amended application papers by 28
November
2022. The amended papers were filed on 25 November 2022 and
the condonation application appears to have been filed on 30 November
2022 as the stamp of the Registrar of this Division bears that date.
[4]
The fourth and fifth respondents opposed the condonation application.
I will deal
with the grounds of opposition shortly. The applicants’
attorney of record deposed to the Founding Affidavit in the
condonation
application. He practises in Bethlehem, in the Free State
Province, and his correspondent attorneys in Bloemfontein are the
firm
of Kramer Weihmann Attorneys. Immediately upon issue of the
court order on 15 September 2022, he attempted to obtain a copy of
the judgment, but ostensibly had difficulty in doing so. The
judgement was only obtained two weeks later on SAFLII on 30 September
2022. He was unable to comment on why the correspondent attorney was
not able to obtain the judgment when he requested same on
15
September 2022.
[5]
The matter was referred to counsel who
required a consultation with the applicants. This was
not possible,
due to the first applicant’s ill health, which had been ongoing
for a few months. It was only on 24 November
2022 that they were able
to travel to the first applicant’s hometown, to have the
documents signed. In addition to the first
applicant’s ill
health, the counsel that was briefed was also unavailable due to his
work schedule. It was therefore not
possible to consult with the
first applicant or finalise the drafting of the papers before 24
November 2022.
[6]
The fourth and fifth respondents, strongly opposed the application
for condonation,
bemoaning the tardiness of the applicants and their
legal representatives for repeatedly failing to comply with the Rules
of Court.
They implored the court not to condone the applicants’
failure to timeously file the amended Notice of Motion and Founding
Affidavit. The respondents also assert that should the court not
grant the condonation sought by the applicants, then the main
application should be dismissed with costs, as directed in the
Chesiwe order. The fourth and fifth respondents raised a number
of
issues as grounds for refusing condonation. Firstly, they assert that
the applicants have failed to tender a full and comprehensive
explanation of their default in this matter. They also take issue
with the applicants’ allegation that they were not able
to
obtain the judgment delivered on 15 September 2022, directing that
they file an amended Notice of Motion and Founding Affidavit.
The
respondents set out a number of instances of errant conduct on the
part of the applicants or their legal representatives which
militates
against the
bona fides
of the application for condonation. I
will refer to these later, where necessary.
[7]
The relevant provisions of Uniform
Rule 27
stipulate that:
“
(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)…
(3)
The court may, on good cause shown, condone any non-compliance with
these rules.”
[8]
The notion of “good cause” as well as the requirements an
applicant must meet before
a court will grant condonation, have
occupied much judicial attention over the years. This Rule confers a
wide discretion on a
court to condone any non-compliance with the
Rule, subject to the safeguard that good cause must be shown. The
courts have refrained
from setting out an exhaustive definition of
“good cause” for the very reason that it may fetter the
discretion which
a court enjoys in terms of this Rule. The trite
requirement that the court must exercise such discretion judiciously
and fairly,
taking into account all relevant factors and
circumstances, comes into play.
[9]
With regard to the explanation in a condonation application (as in
the present matter),
for failure to comply with the Rules of Court
timeously, it is well settled in our law that the applicant is
required to give a
full and candid explanation in this regard. The
remarks of the court in
Melane v Santam Insurance Co Ltd 1962(4)
SA 531 (A)
, regarding the test for granting condonation, made
almost 60 years ago, are still relevant today:
“
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent’s interests in finality must not
be overlooked.”
[10]
A similar view was held in the matter of
United Plant Hire (Pty)
Ltd v Hills
1990 (1) SA 717
(A) at 720 E-G,
where the court
stated the position succinctly as follows:
“
It is well settled
that, in considering applications for condonation, the Court has a
discretion to be exercised judicially upon
a consideration of all the
facts; and that in essence it is a question of fairness to both
sides. In this enquiry, relevant considerations
may include the
degree of non-compliance with the relevant Rules, the explanation
therefore, the prospects of success on appeal,
the importance of the
case, the respondent’s interest in the finality of his
judgment, the convenience of the Court, and
the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive. These factors are not individually
decisive but are
interrelated and must be weighed one against the other; thus a slight
delay and a good explanation may help to
compensate for prospects of
success which are not strong”.
[11]
The Constitutional Court (CC) in
Grootboom v National Prosecuting
Authority 2014(2) SA 68 (CC),
in dealing with the issue of
condonation, reiterated at para [23] on p76 that
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court's indulgence. It must show sufficient cause. This requires a
party to give a full explanation for the non-compliance
with the
rules or court's directions. Of great significance, the explanation
must be reasonable enough to excuse the default.
The
CC addressed itself to litigants in para [32] when it said:
I
need to remind practitioners and litigants that the rules and court's
directions serve a necessary purpose. Their primary aim
is to ensure
that the business of our courts is run effectively and efficiently.
Invariably this will lead to the orderly management
of our courts'
rolls, which in turn will bring about the expeditious disposal of
cases in the most cost-effective manner.
This is particularly
important given the everincreasing costs of litigation, which if left
unchecked will make access to justice
too expensive.
[12]
The CC then went on to deal with the worrying trend of the manner in
which litigants conduct litigation in
our courts. In citing the dicta
of the CC in
Van Wyk v Unitas Hospital 2008(2) SA 472 (CC)
and
eThekwini Municipality v Ingonyama Trust 2013(5) BCLR 497(CC),
the
court said at paras [33] and [34]:
Recently
this court has been inundated with cases where there has been
disregard for its directions. In its efforts to arrest this
unhealthy
trend, the court has issued many warnings which have gone
largely unheeded….
The
language used in both
Van
Wyk
and
eThekwini
is
unequivocal. The warning is expressed in very stern terms. The
picture depicted in the two judgments is disconcerting.
One gets the
impression that we have reached a stage where litigants and lawyers
disregard the rules and directions issued by the
court with
monotonous regularity. In many instances
very flimsy explanations are proffered. In others there is no
explanation at all. The prejudice
caused to the court is
self-evident. A message must be sent to litigants that the rules and
the court's directions cannot be disregarded
with impunity.
[13]
In this matter, it is not in dispute that the applicants failed to
comply with the Chesiwe order.
The applicants’ attorney, Mr De
Beer, who deposed to the Founding Affidavit in the Condonation
Application, alleges that
immediately after the Chesiwe order was
delivered on 15 September 2022, he requested a copy of the judgment
from his correspondent
attorney in Bloemfontein. The latter was not
able to assist with a copy of the judgment and Mr De Beer located it
only 15 days
later, on 30 September 2023 on a digital platform which
gives access to all judgments handed down in South Africa. He did not
explain
why the correspondent was unable to assist. An annexure to
the Answering Affidavit was a letter sent via electronic mail (email)
to the parties and/or their legal representatives from Judge
Chesiwe’s registrar, on 15 September 2022, which included the
applicants’ attorney and an employee in the latter’s
office. The registrar informed them that the judgment was handed
down
in the Motion Court that morning, and she attached a copy of the
judgment to the email. The applicants’ or their legal
representative do not deny receipt of this email
[14]
It is therefore strange, to say the least, that Mr De Beer would
embark on a two-week journey to find a copy
of the judgment. He, of
course, gives no explanation at all regarding why it took two weeks
to obtain the judgment, or why he did
not engage the simplest and
most direct route of requesting either Judge Chesiwe’s
registrar or the fourth and fifth respondents’
attorney to
furnish him with another copy of the judgment. The applicants have
also not dealt with or made further mention of the
fact that they
would have received the judgment and have been aware of the court
order on 15 September 2022. This failure creates
doubt about the
veracity of the allegations regarding the efforts to obtain a copy of
the judgment.
[15]
I pause to mention that when the applicants failed to comply with the
Chesiwe order, the fourth and fifth
respondents launched an
application on 8 November 2022, to have the main application
dismissed. The application was duly served
on the applicants on 8
November 2022, and was set down for hearing on 17 November 2022. The
day before the hearing, on 16 November
2022, the applicant’s
attorney, Mr De Beer addressed a letter to the fourth and fifth
respondents’ attorney, seeking
a postponement of the matter to
a date after 25 January 2023. The reasons for the request were,m
inter
alia
, the difficulty in obtaining a copy of the judgment, the
unavailability of senior counsel, whom they wished to brief, the
serious
work pressure experienced by Mr De Beer, his involvement in
other matters and the death of his father-in-law. Mr De Beer also
indicated
that the papers had to be re-drafted and that he could only
consult with counsel on 4 December 2022, that due to counsel’s
work schedule, the final draft of the papers can only be finalised by
20 January 2023 and will be filed by 25 January 2023. As
I indicated
earlier, the amended Founding Affidavit was, in fact, filed on 25
November 2022. This was nine days after the fourth
and fifth
respondents’ attorney was advised that the applicants will only
be able to file the relevant papers on 25 January
2023. Once
again, the veracity of the reasons for the applicants’
inability to file the amended papers timeously is
called into
question and creates the uncomfortable perception that the applicants
were hedging their bets and playing for time.
[16]
In the Founding Affidavit to the condonation application, the
applicants’ explanation for the delay
is that the matter was
referred to an advocate to consider the judgment of 15 September
2022. The advocate required a consultation
with the applicants but in
view of the first applicant’s ill-health, which had persisted
for several months, this was not
possible until 24 November 2022. The
allegation was that the first applicant was hospitalised on 23
November 2023, but the legal
representatives travelled to her home on
24 November 2023 for the papers to be signed. I pause to mention that
Mr Johnson advised
during oral argument that the allegation
concerning the hospitalisation of the first applicant was not
correct. Mr De Beer alleges
that the amended Notice of Motion and
Founding Affidavit were then filed by 28 November 2022. It is common
cause, however, that
the amended Notice of Motion was not filed or
served, and only the amended Founding Affidavit was served on 25
November 2022.
[17]
The papers and the correspondence from the applicants’ legal
representative indicate not
only conflicting reasons for the delay in
filing the papers that the applicants were ordered by the court to
file, but the explanations
are bald, lack detail and do not cover the
relevant periods of delay, for example, the ill-health of the first
applicant, which
allegedly persisted for many months was not
mentioned by Mr De Beer in his letter to the fourth and fifth
respondents’ attorney
as a reason for the delay in filing the
papers and necessitating a postponement of the matter on 17 November
2022. No details of
the nature, duration and severity of the first
applicant’s condition were furnished. No explanation is
tendered at all for
the failure to alert the respondents to these
alleged challenges shortly after the application for dismissal was
served on the
applicants on 8 November 2022. As I indicated earlier,
the applicants simply avoided dealing with the fact that the judgment
was
sent via email to all parties on 15 September 2022 and would have
been received by them, but they chose instead to concoct a story
about being obliged to take a circuitous route to obtain a copy of
the judgment.
[18]
The matter came before Daffue J for hearing on 2 February 2023, and
from the correspondence that his registrar
addressed to the parties,
it was disturbingly evident that the file was in a deplorable state
and not ripe for hearing. It was
at that stage that it was pointed
out to the applicants that the amended notice of motion had not been
filed in the court file.
The matter was then postponed to 13 April
2023 for hearing. The applicants indicated that they would
investigate the matter. Nothing
further was done until the day of the
hearing on 13 April 2023 when the applicants served the amended
Notice of Motion, again with
no indication of the reasons for the
applicants having, once more, failed to comply with the Rules of
Court. A further serious
problem with the amended Notice of Motion is
that it made no provision for service on the second respondent, and
was not served
on him. The applicants however, boldly asserted that
the second respondent did not oppose the condonation application. Not
having
been served with the condonation application, it is no wonder
that the second respondent did not oppose it.
[19]
The second respondent filed his Answering papers in the main
application, and as participating party to these
proceedings, the
applicants’ legal representative ought to have known that it is
an irregularity not to serve the papers
on the second respondent, who
is the executor of the deceased’s estate. Mr Johnson
acknowledged this during oral argument
in court but asserted that the
court has the discretion to order that the papers be served on the
second respondent and give him
an opportunity to respond. It is
apparent that the applicants and their legal representatives have
consistently flouted the Rules
of Court and then expected the court
to come to their rescue, which it has done in the past. It is this
type of conduct that the
CC addressed in
Grootboom
, and warned
that the courts would not continue to allow such abuse of court
processes. I see no reason to take a different approach.
[20]
In considering whether condonation should be granted, the prospects
of success in the main application would
usually be taken into
account by the court. Neither party grappled with the prospects of
success in this matter, and this court
will refrain from doing so, in
view of the other deficiencies in the papers and in procedure that I
have mentioned above. In my
view, this is an unfortunate case of
siblings locked in a legal battle over money, whereas their
differences could have been settled
amicably and without resorting to
expensive litigation. The bulk of the deceased’s estate has
already been distributed and
the main application concerns a
relatively small amount in respect of an asset which was discovered
after the estate was finalised,
without objection in 2018. The second
respondent has set out a detailed exposition of the circumstances
leading to the distribution
of the additional amount. This court
cannot see its way clear to condone numerous instances of the
applicants’ and their
legal representative’s failure to
comply with the Rules, and their failure to give a full, candid and
cogent explanation
for such failures.
[21]
Mr Pretorius argued that the interests of justice dictate that
condonation should be granted in this matter.
However, fairness and
the interests of all parties before court are essential components of
the interests of justice. The respondents
have been brought to court
by the applicants who have shown a propensity for not complying with
the Rules and abusing the processes
of court. The prejudice to the
respondents is clear, not only from the point of view that there
appears to be no expeditious end
in sight for this matter but also in
respect of the unnecessary escalation of costs. In my view, it cannot
serve the interests
of justice to condone the serious defects and
deficiencies in the papers and in proceedings, as I have mentioned.
The conduct of
the applicants has caused unnecessary delays and
inconvenience not only to the respondents but also to the court.
[22]
In view of my inclination not to grant condonation in this matter, I
consider the impact on the main application.
The Chesiwe order
declared the Notice of Motion and application to be irregular and set
it aside. The applicants were offered an
opportunity by the court to
amend and substitute the Notice of Motion and the application within
a specified time. The applicants
failed to avail themselves of this
opportunity and filed only the Founding Affidavit some two months
later, and only in the face
of an application for the dismissal of
the main action. This was then followed by an application for such
late filing. The position
remained that from 15 September 2022, there
was no valid main application before this court, and that position
still persists.
The fourth and fifth respondents seek to enforce
paragraph 3 of the Chesiwe order, entitling them to apply for the
dismissal of
the main application with costs, should the applicants
fail to substitute the papers in the main application timeously or
satisfactorily.
I am of the view that no reason exists to deny the
fourth and fifth respondents the relief they seek.
[23]
I
n the circumstances I make the following order:
23.1 The
applicants’ application for condonation for the late filing of
the amended Notice of Motion and Founding
Affidavit in case number
3148/2021 is dismissed with costs against the applicants, jointly and
severally, the one paying the other
to be absolved;
23.2 The application of
the fourth and fifth respondents for the dismissal of the main
application under case number 3148/2021 is
granted with costs against
the applicants, jointly and severally, the one paying the other to be
absolved.
S
NAIDOO J
On
Behalf of the Applicants:
Mr JF
De Beer
Instructed
by:
Human
Le Roux & Meyerowitz
Bethlehem
c/o
Kramer Weihmann Attorneys
24
Barnes Street
Westdene
Bloemfontein
(Ref:JL
Weihmann/ND/C09508)
On
Behalf of the Respondents:
Adv
JJ Pretorius
Instructed
by:
Richters
Attorneys
Viljoenskroon
c/o
McIntyre Van Der Post
12
Barnes Street
Westdene
Bloemfontein
(Ref:
Gerdener/Elene)