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2024
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[2024] ZAGPJHC 280
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Homestead Enterprise (Pty) Limited v L.G.Nogaga Incorporated Attorneys and Another (HCGS390804) [2024] ZAGPJHC 280 (2 March 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
1.
REPORTABLE: No
2.
OF INTEREST TO OTHER JUDGES: No
Case
No: HCGS390804
(2024-023552)
In
the matter between:
HOMESTEAD ENTERPRISE
(PTY) LIMITED Applicant
and
L.
G. NOGAGA INCORPORATED ATTORNEYS First
Respondent
LUYANDA
NOGAGA
Second
Respondent
REASONS
FOR ORDER MADE ON 27 FEBRUARY 2024
Gilbert
AJ:
1.
On Tuesday evening, 27 February 2024 at 19h21,
the applicant launched an urgent application for hearing at 21h00. I
was informed
that at approximately 19h30 a copy of the application
was emailed to the respondents.
2.
What the applicant sought in this after hours
urgent court application was an order directing the first,
alternatively the second
respondent to pay to him the sum of
R924,500.00 and failing which the Sheriff was to take control of the
relevant banking
account of the respondents and to ensure the payment
was made.
3.
What is immediately evident is that the applicant
sought final relief after hours on extremely short notice to the
respondents.
4.
The basis for the relief is, the applicant
testifies under oath, that he erroneously paid the sum of money into
the bank account
of the first respondent in circumstances where he
intended to transfer the money into another account. As far as
can be ascertained
from the papers, the applicant has no relationship
at all with either of the respondents and therefore the payment was
simply a
payment made in
bona fide
error into the incorrect account.
5.
This payment was made on Saturday, 24 February
2024. The applicant describes how over that day and the next, he
managed to ascertain
the identity of the holder of the bank account
into which he had erroneously paid the money. It transpired that it
is the bank
account of an attorney practicing in Umtata, i.e. the
first respondent. The second respondent is described as the
sole director
of the first respondent attorney's firm.
6.
The applicant described how on Sunday, 25
February 2024 he was able to make contact with the second respondent
and informed him
of what had transpired. The second respondent was to
have said that he would not make repayment as it was not his fault
that the
applicant had made an error.
7.
It is therefore clear that by Sunday the
applicant was aware of the respondents’ stance. It follows that
should the respondents
have been inclined to appropriate monies that
were not theirs, the respondents had had opportunity to do so from at
least Sunday,
which was over two days previously. I mention
this, because if the respondents were inclined to have
misappropriated the
funds, then the horse would probably have already
bolted.
8.
The applicant explained that it was on Monday
that he first went to his attorney, who addressed a letter of demand
to the respondents
demanding repayment. There was no response to that
letter.
9.
The applicant then changed attorneys. During the
course of Tuesday, 27 February 2024, his new attorneys addressed a
new demand for
repayment.
10.
When payment was not forthcoming, this
application was launched later that day, as described above.
11.
Having heard the applicant's attorney, I
expressed my concern that the enrolment of the matter after hours
constituted an abuse
of the court process and struck the matter from
the roll.
12.
My reason as to why it constituted an abuse of
the court process to enrol the matter on 90-minute’s notice to
both the court
and the respondents after hours is that no valid
reason was proffered as to why the matter could not wait until the
next court
day during ordinary court hours.
13.
The best that the applicant could offer is that
the matter was inherently urgent as the monies could be
misappropriated at any moment.
But, as explained above, should the
respondents have had the intent to misappropriate the monies, they
had had ample opportunity
to do so by the time the matter was heard
before me, and there did not appear to be any reason to suggest that
had the respondents
not appropriated the monies by the time the
matter had been heard before me that night, that they would do so
before the matter
could be heard the next day.
14.
The respondents are an attorney's firm and the
attorney respectively. Should these identified respondents who are
attorneys have
misappropriated the monies, which would have been
somewhat extraordinary given that they are attorneys, the applicant
would have
had ample recourse against the respondents as attorneys.
At least on the papers before me no reason was set out as to why the
monies
could not be recovered from the attorneys.
15.
I also expressed my concern that the relief that
was formulated was final relief, and this the applicant was seeking
on 90 minutes’
notice. Notably, the applicant did not seek the
usual interim interdictory relief “freezing” the monies
in the relevant
bank account until a determination could be made in
the ordinary course as to the applicant's entitlement to those
monies.
16.
In the circumstances, the applicant's assessment
of the levels of urgency to justify the hearing after hours on 90
minutes’
notice both to the court and to the respondents as
well as his formulation of the relief was over ambitious.
17.
Whilst the submission was made that the
respondents were given opportunity to oppose the matter, in my view
90 minutes’ notice
given to appear in court after hours at
night was tantamount to no notice.
18.
To conclude, I found that the set down of the
application on 90 minutes’ notice after hours at night
constituted an abuse
in the circumstances described above.
19.
Accordingly, the order that I made was that the
application was struck from the roll. As there was no opposition,
there was no order
as to costs.
Gilbert
AJ
Date
of hearing:
27 February 2024
Date
of judgment:
2 March 2024
Appearance
for the applicant:
Mr Vittee (attorney)
Instructed
by:
Mayet Vittee Inc
Counsel
for the respondents:
No appearance