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[2023] ZAECMKHC 111
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HR Focus CC v Commissioner for the South African Revenue Service (1121/2020) [2023] ZAECMKHC 111 (17 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 1121/2020
In
the matter between:
HR
FOCUS CC
Applicant
and
THE
COMMISSIONER FOR THE
SOUTH
AFRICAN REVENUE SERVICE
Respondent
JUDGMENT
LAING
J
[1]
This is an application for the payment of certain tax
refunds,
together with interest and costs. By reason of the way proceedings
have been conducted, however, the issues before court
pertain to the
subject of two interlocutory applications brought by the respective
parties.
The
main application
[2]
In its founding affidavit to the main application, the
applicant
describes itself as a close corporation that provides,
inter alia
,
certain payroll administration services to its various clients. These
include the calculation, submission, and receipt, of Employment
Tax
Incentive (‘ETI’) assessments and refunds.
[3]
Previously, the applicant sent ETI assessments to the
respondent on
behalf of its clients, claiming payment of refunds. By reason of the
respondent’s delay in making payment,
together with the
negative impact of the president’s declaration of a national
state of disaster in response to the COVID-19
pandemic, the applicant
found itself under increasing financial pressure, prompting it to
institute urgent motion proceedings on
9 June 2020.
[4]
The parties
are currently involved in a separate dispute before the Tax Appeal
Court concerning the applicant’s liability
for Skills
Development Levy (‘SDL’) and Value Added Tax (‘VAT’)
payments. The respondent subsequently approved
a request for the
suspension of payment of the disputed liability.
[1]
[5]
Consequently, the applicant claims payment of ETI refunds
in the
amount of R 12,975,071. It also claims payment of interest thereon at
the prescribed legal rate, as stipulated under sections
187 to 189 of
the Tax Administration Act 28 of 2011 (‘TAA’).
[6]
It is common cause that the respondent paid the ETI refunds
to the
applicant on 11 June 2020, shortly after service of the main
application. The respondent has tendered payment of the applicant’s
costs until the above date. It has, however, denied liability for the
payment of interest, contending that neither the TAA nor
the
Employment Tax Incentive Act 26 of 2013 (‘ETI Act’)
provides for the accrual and payment of interest, as claimed
by the
applicant.
[7]
In reply, the applicant persists in its claim for the
payment of
interest in terms of the TAA.
Further
developments
[8]
The applicant later applied for leave to amend its notice
of motion.
The court made an order to that effect on 3 August 2021. In terms of
its amended notice, the applicant claims payment
of interest in terms
of the TAA, alternatively at the prevailing legal rate.
[9]
The court subsequently made a further order on 29 November
2022,
granting leave to both parties to deliver supplementary papers.
Respondent’s
supplementary answering affidavit
[10]
In its supplementary answering affidavit, served on 6 December 2022,
the respondent
explains that the applicant’s alternative claim
is one for the payment of
mora
interest. It argues that the
applicant is required to persuade the court that the South African
Revenue Service (‘SARS’)
owed certain debts to the
applicant, and that it was in
mora
regarding such debts. The
respondent asserts that this is simply not the case; the applicant is
not entitled to the payment of
mora
interest. This is because
the Prescribed Rate of Interest Act 55 of 1975 (‘PRIA’)
does not apply.
[11]
The respondent goes on to discuss the meaning of ‘employer’
and
‘employee’ within the context of the ETI Act and the
Fourth Schedule to the Income Tax Act 58 of 1962 (‘ITA’),
before referring to the dispute in the Tax Appeal Court. A key issue
in that regard is whether the applicant is liable for the
payment of
SDL on the remuneration of employees. The respondent attaches a copy
of the applicant’s statement of its grounds
of appeal to its
supplementary answering affidavit and points out that there are
several assertions therein that have a direct
bearing on the main
application. Importantly, the applicant asserts in terms thereof that
the respondent’s contention that
it had 4,500 employees was
incorrect because such employees were employed by its various
clients. It merely acted as an agent or
as a payroll administrator
and had a staff of only 15 employees. It was not the principal
employer of the 4,500 employees mentioned
by the respondent.
[12]
Consequently, argues the respondent, the applicant did not qualify as
an employer
under either the ETI Act or the Fourth Schedule to the
ITA. This was based on its own assertions. It was not entitled to
payment
of its claim in the main application.
Applicant’s
supplementary founding affidavit and replying affidavit to the
respondent’s supplementary answering affidavit
[13]
The applicant served its supplementary affidavit, as described above,
on 23
May 2023. It avers that it did so not only to reply to the
allegations made in the respondent’s supplementary answering
affidavit
but also to supplement its founding affidavit ‘insofar
as it is suggested that the applicant is introducing new matter that
is not in reply’.
[14]
It is the applicant’s firm contention that it acts as an agent
for its
various clients. The founding affidavit makes this clear. By
reason of the respondent’s having paid the ETI refunds, the
only remaining issues between the parties are the payment of interest
and costs. The applicant then goes on to detail the basis
upon which
the respondent sought to supplement its answering affidavit, saying
that the essence of the respondent’s argument
is that the
applicant does not, in the main application, sue as an agent or as a
representative of any third parties but does so
in its own right.
This allegedly contradicts the applicant’s position in the Tax
Appeal Court. The applicant avers that,
for the sake of pragmatism
and avoiding unnecessary costs, it did not oppose the respondent’s
application for leave to supplement.
Notwithstanding, says the
applicant, the respondent’s supplementary answering affidavit
relies on different grounds and deals
with matters not arising from
the amended notice of motion.
[15]
The applicant explains that the facts necessary to determine its
claim for
mora
interest have already been alleged in its
founding affidavit, read with the accompanying statements of account.
It also explains
why prescription does not arise. Regarding the
matter before the Tax Appeal Court, the applicant asserts that it had
previously
mentioned this; the respondent was, in any event, involved
in both matters.
[16]
If the respondent is successful in the Tax Appeal Court, argues the
applicant,
then it will have demonstrated that the applicant is
entitled to the ETI refunds. The applicant contends, however, that it
has
consistently described itself, in both sets of proceedings, as an
agent that administers the payrolls of its various clients. Upon
receipt of the ETI refunds, the applicant credits its clients
accordingly. It says that it has usually based its relationship with
clients on verbal agreements but has, more recently, resorted to
written agreements for the sake of clarity. It attaches an example
to
its supplementary affidavit to demonstrate that it refers to the
applicant as a ‘designated agent’, whose responsibilities
include the collection of the ETI refunds. In submitting assessments
or returns on behalf of its clients, the applicant refers
to itself
as the employer, but this is done purely for convenience. It contends
that a tacit cession must be deemed to have been
concluded with its
clients, to the effect that they ceded their claims for the ETI
refunds to the applicant so that it could recover
such amounts on
their behalf, and the applicant was obliged to credit such amounts to
its clients or to set off the amounts against
outstanding service
fees and other charges.
[17]
Regarding the question of
locus standi
, the applicant argues
that it has the necessary standing to claim the ETI refunds. This is
because the respondent has admitted
same by paying the ETI refunds
previously claimed, and because there are several exceptions that
apply to the principle that an
agent cannot sue on behalf of its
principal.
[18]
The applicant maintains that if the respondent’s position is
that the
ETI refunds ought never to have been paid, by reason of the
applicant’s lack of
locus standi
, then the respondent
should have exercised the audit powers available under the TAA to
issue additional assessments that reversed
the ETI refunds claimed by
the applicant. The respondent could not circumvent the process by
expecting the court to come to its
aid.
[19]
It is, asserts the applicant, the respondent who has been
contradictory. To
that extent, the applicant points out that the
respondent has argued in the Tax Appeal Court that the applicant is
an employer.
This attracts VAT obligations. The respondent uses the
same argument in relation to the applicant’s alleged SDL
liability.
If the Tax Appeal Court finds in favour of the respondent,
then there would be no basis for the respondent’s opposition in
the present matter. The applicant would be entitled to payment of the
ETI refunds, together with interest and costs. If, notwithstanding,
the respondent was unsuccessful in the Tax Appeal Court, then the
applicant would still not be prevented from claiming the ETI
refund
because it had done so as an agent and on behalf of its various
clients. Its approach in both sets of proceedings has been
consistent
in this regard.
[20]
The applicant submits that the finding of the Tax Appeal Court would
assist
in the determination of whether it was entitled to the relief
sought under the main application. It would be sensible to postpone
it, pending the finalization of the appeal.
[21]
The reasons for the delay in the delivery of the applicant’s
supplementary
affidavit are provided. It seeks condonation, as well
as leave to deliver the supplementary affidavit insofar as it may be
construed
as a supplementary founding affidavit. The applicant
reiterates that the main issue to be decided is whether the applicant
can
claim interest in its capacity as agent for its various clients.
The
interlocutory applications
[22]
The applicant’s delivery of its supplementary affidavit
prompted the
swift delivery of a pair of interlocutory applications.
These form the focus of the present matter and are described below.
Respondent’s
application to strike out
[23]
The respondent served an application to strike out on 18 July 2023.
It argues
that the applicant delivered its supplementary affidavit
without complying with the order of 29 November 2022 and without
obtaining
further leave from the court. The respondent contends that
the applicant has not identified which portions of its founding
affidavit
it seeks to supplement and has never afforded the
respondent an opportunity to consider and oppose the grounds upon
which it sought
to do so. The principle of
audi alteram partem
has been flouted. The respondent also asserts that the applicant has
failed to set out the factual basis upon which to materially
alter or
supplement the founding affidavit, pointing out, too, that the
deponent to the supplementary affidavit is not the same
person.
[24]
If the supplementary affidavit is not struck out or set aside, then
the respondent
applies for the striking out of specific paragraphs.
The grounds are set out in the application. These include the
applicant’s
alleged introduction of new matter and matter that
is scandalous, argumentative, irrelevant, or hearsay.
Applicant’s
application for, inter alia, condonation
[25]
The applicant served, on 21 July 2023, an application for condonation
of the
late delivery of what it termed its replying affidavit. It
also sought the following relief:
‘
(to
the extent necessary, the applicant not conceding that all such
allegations constitute new matter) [that the] applicant is granted
leave to supplement the applicant’s founding affidavit in
respect of any new matter that is held not to be in reply to the
supplementary answering affidavit of the respondent…’
[26]
The relevant paragraphs or portions thereof, constituting possible
new matter,
are then listed thereunder.
[27]
The applicant sought, too, the postponement of the hearing of the
main application,
pending the finalization of the matter in the Tax
Appeal Court. In addition, it sought leave for both parties to
supplement their
papers pursuant to the finalization of such appeal.
Issues
to be decided
[28]
At the hearing of the matter there was, understandably, some
uncertainty about
what was precisely before the court for
determination. This was only clarified during argument.
[29]
Counsel for the respondent indicated that his client sought the
relief set
out in terms of the first part of its application to
strike out, viz. that the applicant’s supplementary affidavit
be struck
out or set aside, alternatively that it be treated as
pro
non scripto
. The second part of the application would be argued
only when dealing with the merits of the main application.
[30]
Counsel for the applicant confirmed that his client sought the relief
limited
to the first and second prayers of its application. This
pertained to condonation for the applicant’s late delivery of
its
replying affidavit and leave for the applicant to supplement its
founding affidavit. The applicant did not pursue the postponement
of
the hearing of the main application; it also declined to pursue the
granting of leave to both parties to supplement their papers,
consequent to the eventual finalization of the appeal.
[31]
The determination of one application will prove decisive of the
other. It needs
to be said that counsel for the respondent urged the
court to deal with the main application simultaneously with the
interlocutory
applications, rather than deal with the matter on a
piecemeal basis. The reason for the court not to have done so appears
from
the judgment.
[32]
A brief discussion of the applicable principles follows.
Legal
framework
[33]
The Uniform
Rules of Court (‘URC’) provide, in terms of rule 6(5)(e),
that a court may, in its discretion, permit the
filing of further
affidavits. It is trite that such discretion should be exercised to
ensure that a matter be adjudicated upon
all the facts that are
relevant to the issues in dispute.
[2]
DE van Loggerenberg remarks that:
‘…
a party
cannot take it upon himself to simply file further affidavits without
first having obtained the leave of the court to do
so. It has been
held that where further affidavits are filed without the leave of the
court, the court can regard such affidavits
as
pro
non scripto
.
While the general rules regarding the number of sets and proper
sequence of affidavits should ordinarily be observed, some
flexibility
must necessarily also be permitted. It is only in
exceptional circumstances that a fourth set of affidavits will be
received. Special
circumstances may exist where something unexpected
or new emerged from the applicant’s replying affidavit.’
[3]
[34]
Whether a
further set of affidavits should be admitted comes down to a question
of fairness to both parties.
[4]
It must not result in prejudice.
[35]
Furthermore,
under rule 6(15), a court may strike out from an affidavit any matter
which is scandalous, vexatious, or irrelevant.
It has been held that
the rule is wide enough to allow a court to strike out inadmissible
evidence, e.g., hearsay, as well as argument,
and new matter.
[5]
[36]
Still
within the context of the URC, a party may, in terms of rule 28(1),
amend a pleading or document other than a sworn statement.
To attempt
to amend an affidavit would be to attempt to change written evidence
previously given under oath. It is not permitted
unless the party who
originally gave such evidence presents further evidence under oath,
by way of affidavit where required.
[6]
[37]
The above principles comprise a very basic framework within which to
decide
the issues identified by the parties.
Application
of principles
[38]
The applicant argues that the respondent obtained the leave of the
court to
deliver a supplementary answering affidavit not so much to
deal with the applicant’s amended notice of motion as to deal
with the issues that arose in the Tax Appeal Court. The main issue,
says the applicant, is its assertion that it is not an employer
of
the 4,500 employees mentioned by the respondent. The purpose of the
applicant’s supplementary affidavit was essentially
two-fold:
(a) to reply to the averments made by the respondent in its
supplementary answering affidavit; and (b) to supplement
its founding
affidavit ‘insofar as it is suggested that the applicant is
introducing new matter that is not in reply’.
[39]
Pertinently, counsel for the applicant contended in argument that the
supplementary
affidavit served additional purposes. These included
the need for the applicant to address the question of its
locus
standi
, considering the respondent’s having raised the
issue about whether the applicant is an employer for purposes of
claiming
payment of the ETI refunds. It also served to highlight the
respondent’s alleged contradictory stance in relation thereto,
as apparent from the Tax Appeal Court proceedings on the one hand and
the main application before this court on the other. It served,
moreover, to motivate for the stay of the main application pending
the finalization of the appeal, and to provide a basis upon
which to
seek condonation for late delivery.
[40]
The immediate difficulty facing the applicant, however, is that,
pursuant to
the amendment of its notice of motion, it was granted
leave merely to deliver a supplementary replying affidavit. This was
to deal
with the respondent’s supplementary answering
affidavit. It was not granted leave to deliver a multi-purpose
affidavit of
the nature presently before the court.
[41]
Counsel for
the respondent aptly restated the fundamental principle that a party
is required to plead its case fully in its founding
papers.
[7]
He or she is required to set out, in his or her founding affidavit,
all the factual allegations relied upon in relation to the
relief
sought.
[8]
The applicant,
however, has delivered an affidavit that purports to be both a
supplementary replying affidavit and a supplementary
founding
affidavit. It would be impossible, argued counsel, to unravel which
portions pertain to either one or the other. This
would amount to
piecemeal guesswork that would cause uncertainty, offend established
practice, undermine the principle of
audi
alteram partem
,
infringe the URC, and disregard the case law. In short, argued
counsel, it would amount to an abuse of process. The court is
inclined to agree.
[42]
In
Hano
Trading CC v JR 209 Investments (Pty) Ltd and another
,
[9]
the Supreme Court of Appeal, per Erasmus AJA, held as follows:
‘…
rule
6(5)(e) establishes clearly that the filing of further affidavits is
only permitted with the indulgence of the court. A court,
as arbiter,
has the sole discretion whether to allow the affidavits or not. A
court will only exercise its discretion in this regard
where there is
good reason for doing so.
…
This court stated
in
James
Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co
Ltd) v Simmons NO
[10]
that:
“
It is in the
interests of the administration of justice that the well-known and
well-established general rules regarding the number
of sets and the
proper sequence of affidavits in motion proceedings should ordinarily
be observed. That is not to say that those
general rules must always
be rigidly applied: some flexibility, controlled by the presiding
Judge exercising his discretion in
relation to the facts of the case
before him, must necessarily also be permitted. Where, as in the
present case, an affidavit is
tendered in motion proceedings both
late and out of its ordinary sequence, the party tendering it is
seeking not a right, but an
indulgence from the Court: he must both
advance his explanation of why the affidavit is out of time and
satisfy the Court that,
although the affidavit is late, it should,
having regard to all the circumstances of the case, nevertheless be
received. Attempted
definition of the ambit of a discretion is
neither easy nor desirable. In any event, I do not find it necessary
to enter upon any
recital or evaluation of the various considerations
which have guided Provincial Courts in exercising a discretion to
admit or
reject a late tendered affidavit… It is sufficient
for the purposes of this appeal to say that, on any approach to the
problem,
the adequacy or otherwise of the explanation for the late
tendering of the affidavit will always be an important factor in the
enquiry.”
…
It was then later
stated by Dlodlo J in
Standard
Bank of SA Ltd v Sewpersadh and another
[11]
:
“
The applicant is
simply not allowed in law to take it upon himself and [to] file an
additional affidavit and put same on record
without even serving the
other party with the said affidavit…
Clearly a litigant who
wished to file a further affidavit must make formal application for
leave to do so. It cannot simply slip
the affidavit into the Court
file (as it appears to have been the case in the instant matter). I
am of the firm view that this
affidavit falls to be regarded as
pro
non scripto
.”
…
To permit the
filing of further affidavits severely prejudices the party who has to
meet a case based on those submissions.’
[43]
It is clear from the above that the court enjoys a wide discretion
regarding
whether to accept further affidavits. Whereas the applicant
obtained leave to deliver a supplementary replying affidavit, the
present
supplementary affidavit can, nevertheless, hardly be
described as such.
[44]
Counsel for the applicant emphasised that the context of the present
dispute
is all-important. The genesis of its supplementary affidavit
was the respondent’s supplementary answering affidavit, which
introduced an entirely new angle to the matter. The respondent
alleged that the applicant was not entitled to payment of the ETI
refunds, notwithstanding the fact that it had already received
payment thereof, because of the assertion, made in its statement
of
appeal in the Tax Appeal Court, that it was not a principal employer.
This meant, argued the respondent, that it did not qualify
as an
employer under either the ETI Act or the Fourth Schedule to the ITA.
The applicant had painted itself into a corner. This,
of course,
called for a proper explanation, says the applicant, which inevitably
entailed the introduction of new matter. It was
essential, too, from
the applicant’s perspective, to highlight the contradictory
stance that the respondent had created for
itself by adopting such an
approach. The respondent had, contended counsel for the applicant,
opened Pandora’s box.
[45]
There is
authority for the proposition that a party in the position of the
applicant may introduce further corroborating facts to
respond to the
contents of the answering affidavit.
[12]
This is so even where certain of the averments could have been made
in the founding affidavit.
[13]
Counsel for the applicant correctly pointed out that the dividing
line between what was new matter in a replying affidavit and
what was
merely a reply to the answering affidavit was not easy to draw. In
Smith v
Kwanonqubela Town Council
,
[14]
Harms JA held that:
‘
The rule against
new matter in reply is not absolute… and should be applied
with a fair measure of common sense. For instance,
in the present
case, the point provided no material or substantial advantage to
Smith- at least, counsel could not point to any-
and it simply at
great cost postponed the day of reckoning…’
[15]
[46]
Mindful of the above, the applicant argued that common sense dictates
that
the information contained in its supplementary affidavit should
be permitted. The respondent should be afforded an opportunity to
deliver a further affidavit where necessary.
[47]
Whereas the
respondent’s supplementary answering affidavit clearly called
for a robust response from the applicant, the primary
shortcoming in
the applicant’s supplementary affidavit is that it is not
simply a reply. It purports to supplement the founding
affidavit and
to attempt to achieve a great deal more besides. A common-sense
approach may well allow such a multi-purpose affidavit
in some
circumstances, but not all. The basic principle remains that a party
must set out its case in its founding papers. Further
affidavits are
permissible, at the discretion of the court, but only in exceptional
circumstances.
[16]
[48]
Counsel for
the respondent strongly contended that it would be impossible to
determine which portions of the supplementary affidavit
purport to
supplement the founding affidavit and which portions purport to
constitute a supplementary reply. In the words of counsel,
what the
founding affidavit would then comprise ‘is as clear as mud’.
The other difficulties mentioned by the respondent
are that the
deponent to the supplementary affidavit is not the same as the
deponent to the founding affidavit.
[17]
In addition, the applicant had converted from a close corporation to
a private company. These factors created further obstacles
to the
acceptance of the supplementary affidavit.
[49]
The court
agrees with the respondent. Importantly, however, there is a further
factor that militates against the acceptance of the
supplementary
affidavit, but which seems to have been obscured to some extent
during argument. Counsel for the applicant previously
contended that
the principles of
lis
alibi pendens
apply since there is pending litigation in two courts, involving the
same parties, and the same issues.
[18]
The applicant, in the end, did not pursue the postponement of the
hearing of the main application and this court is not required
to
decide the issue of
lis
alibi pendens
.
Nevertheless, the fact remains that the outcome of the proceedings in
the Tax Appeal Court, where, at the time of writing, judgment
is
still awaited, are likely to have a considerable impact on the
proceedings in the main application. Insofar as the Tax Appeal
Court
decides whether the applicant was a principal employer, the finding
will undoubtedly trigger the need for the parties to
file further
affidavits in the main application, subject, of course, to the
discretion of this court. To permit the delivery of
the applicant’s
supplementary affidavit at this stage would be premature, at best. It
would, at worst, make the ‘muddy
morass of papers’, as
counsel for the respondent termed it, all the muddier.
[50]
The above reasoning underlies the refusal of the court to deal with
the main
application simultaneously. Whereas piecemeal litigation
ought to be avoided, this cannot be escaped in the present matter
when
the proceedings in the Tax Appeal Court are still pending.
Relief
and order
[51]
Ultimately,
the court is not persuaded that it should exercise its discretion in
favour of the applicant. The prejudice that would
be caused to the
respondent in permitting the filing of the supplementary affidavit is
plain enough to see. The court is also of
the view that the ambit of
rule 6(15) is sufficiently broad to allow the striking out or setting
aside of the supplementary affidavit.
There is sufficient case law,
as cited by counsel for the respondent,
[19]
for this to be done in its entirety.
[52]
Regarding costs, there is no reason why the general rule should not
follow
to the effect that the successful party is entitled to its
costs. There is also no reason why the respondent’s request for
the costs of two counsel should be denied, given the complexity of
the matter. A party and party scale would be appropriate.
[53]
In the circumstances, the following order is made:
(a)
the respondent’s application to strike out, dated 17
July 2023,
is granted, and the applicant’s supplementary founding
affidavit and replying affidavit to the respondent’s
supplementary answering affidavit is struck out in its entirety;
(b)
the applicant’s interlocutory application, dated 21 July
2023,
is dismissed; and
(c)
the applicant is directed to pay the costs of both applications
on a
party and party scale, including the costs of two counsel.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCES
For the applicant:
Adv AC Botha SC
Adv KD Williams
Instructed by:
Wheeldon Rushmere &
Cole Inc
Matthew Fosi
Chambers
119 High Street
Makhanda
Tel: 046 622 7005
(Ref: Ms Amm)
As instructed by:
Pieterse Seller
Erasmus TRM
174B Cape Road
Mill Park
Gqeberha
(Ref: Mr Pieterse)
For the respondent:
Adv MG Swanepoel SC
Adv T Zietsman
Instructed by:
Whitesides
53 African Street
Makhanda
Tel: 046 622 7117
(Ref: Mr Barrow)
As instructed by:
Office of the State
Attorney, Gqeberha
(Ref: Mr Swartz)
Date of hearing:
17 August
2023
Date of delivery of
judgment:
17 October
2023
[1]
The
approval was given in terms of
section 164
of the
Tax Administration
Act 28 of 2011
.
[2]
Dickinson
v South African General Electric Co (Pty) Ltd
1973
(2) SA 620
(A), at 628F.
[3]
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat e-publications, RS 18, 2022), at D1-68.
[4]
Milne
NO v Fabric House (Pty) Ltd
1957
(3) SA 63
(N), at 65A;
Broode
NO v Maposa
2018 (3) SA 129
(WCC), at 137G; and
Amedee
v Fidele
(unreported, GJ case no 20/9529, 20 December 2021), at paragraph
[79].
[5]
Premier
Produce Co v Mavros
1931
WLD 91
;
SA
Railways and Harbours v Hermanus Municipality
1931 CPD 184
; and
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974 (4) SA 362 (T).
[6]
Brummund
v Brummund’s Estate
1993
(2) SA 494
(NmHC), at 498E.
[7]
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
2008
(5) 339 (SCA), at 349A-B;
Minister
of Land Affairs and Agriculture and others v D & F Wevell Trust
and others
2008 (2) SA 184
(SCA), at 200C-E.
[8]
See
Transnet
v Rubenstein
2006 (1) SA 591
(SCA), at paragraph [28];
Openshaw
,
n7
supra
,
at paragraphs [29] to [30];
Van
der Merwe and another v Taylor NO and others
2008 (1) SA 1
(CC), at paragraph [122]. See, too, the provisions of
rule 6(1)
of the URC.
[9]
2013
(1) SA 161
(SCA), at paragraphs [11] to [14].
[10]
1963
(4) SA 656
(A), at 660D-H.
[11]
2005
(4) SA 148
(C), at paragraphs [12] to [13].
[12]
eBotswana
(Pty) Ltd v Sentech (Pty) Ltd
2013
(6) SA 327
(GSJ), at paragraph [28].
[13]
Ibid.
[14]
1999
(4) SA 947 (SCA).
[15]
At
paragraph [15].
[16]
See
Bangtoo
Bros and others v National Transport Commission and others
1973
(4) SA 667
(N), at 680B; see, too,
Sewpersadh
,
n 11
supra
,
at paragraph [10], where Dlodlo J referred to ‘special
circumstances’.
[17]
A
Mr Bruce Butler deposed to the founding affidavit, describing
himself as the sole member of the applicant. A Mr David Butler
deposed to the supplementary affidavit; explaining that he was the
son of the late Mr Bruce Butler, who had passed away during
the
litigation.
[18]
The
three requirements for successful reliance on a plea of
lis
pendens
are that the litigation is between the same parties, that the cause
of action is the same, and that the same relief is sought
in both.
See
Caesarstone
Sdot-Yam Ltd v World of Marble and Granite 2000 CC and others
2013 (6) SA 499
(SCA), at paragraph [12].
[19]
See
Van
Zyl and others v Government of the Republic of South Africa and
others
2008 (3) SA 294
(SCA), at paragraphs [45] to [46]. See, too,
Sewpersadh
,
n 11
supra
,
at paragraph [13]; and
Wingaardt
and others v Grobler and another
2010 (6) SA 148
(ECG), at paragraphs [17] to [22].