About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 18
|
|
Road Accident Fund v Sogoni and Another (EL660/2023) [2023] ZAECELLC 18 (21 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO:
EL660/2023
In
the matter between:
ROAD
ACCIDENT FUND
APPLICANT
And
SANDISIWE
SOGONI
FIRST
RESPONDENT
THE
LEGAL PRACTICE COUNCIL
SECOND
RESPONDENT
JUDGMENT
COLLETT AJ:
INTRODUCTION
[1]
This application was brought on notice of motion accompanied by a
certificate of urgency and enrolled
on the motion court roll of 18
July 2023.
[2]
The applicant in the application seeks an order condoning its
non-compliance, forms, time limits
and service period in terms of
Uniform Rules of Court 6(12)
(hereinafter referred to as ‘the
Rules’) and a
rule nisi
suspending the operation,
execution or enforcement of the judgment granted by default against
the applicant on 23 May 2023 under
case number: EL660/2023
(hereinafter referred to as ‘the Order’) pending the
finalization of a current application
for the recission of judgment.
[3]
Essentially, the relief sought is premised upon
Rule 45A
of
the Rules seeking the suspension of the operation and execution of
the Order for a period determined appropriate by this Court.
[4]
The papers were delivered to the attorneys of record of the first
respondent on 17 July 2023 at
14h15 and upon the second respondent on
17 July 2023. Furthermore, the papers were emailed to both
respondents at 12h56 on 17 July
2023 .
[5]
In terms of the Notice of Motion, the respondents were required to
advise the applicant’s
attorneys on or before17h00 on 17 July
2023 whether they intended to oppose the application failing which,
it would proceed on
an unopposed basis on 18 July 2023.
[6]
When the matter was initially brought to me, counsel for the
applicant indicated that there was
no opposition as provided for in
terms of the Notice of Motion. The matter was to be called at the end
of the normal motion court
roll.
[7]
Due to the protracted nature of the motion court roll, I called for
counsel to advise that the
matter would be rolled over to 18 July
2023 at 10h30 and at that stage it became apparent that first
respondent was opposing the
relief.
[8]
The legal representative for the first respondent indicated that they
did not intend to file any
opposing affidavits and would argue and
premise the opposition on the applicant’s papers.
[9]
The application was called on 19 July 2023 and argued by counsel both
on the urgency as contained
in the certificate of urgency and the
contents of the applicant’s affidavit filed in support of the
relief sought by the
applicant. Consequently, the two issues to be
decided were:
9.1
whether the matter was sufficiently urgent to warrant being heard in
terms of the truncated timeline
and date unilaterally selected by the
applicant; and
9.2
whether the applicant had, on the merits of the application, made out
a case for the interim relief
sought in terms of
Rule 45A.
BACKGROUND
[10] On
23 May 2023, a judgment by default in the absence of the applicant
was granted at the instance of the
first respondent.
[11]
Pursuant hereto, a recission application was issued on 28 June 2023
by the applicant and the first respondent,
whilst having filed a
notice to oppose, has yet to file an answering affidavit.
[12]
The recission application seeks to rely on two main grounds, namely
that the judgment was granted in error
and that the applicant was in
bona fide
default being able to demonstrate the required ‘
good
cause
.’
[13]
The merits of the recission application are not of consequence to the
determination of the relief sought
in the present matter as it is the
fact that the recission application is presently pending that is
invoked to seek the suspension
of the Order in terms of
Rule 45A.
[14]
The applicant indicated in its founding affidavit that whilst the
first respondent had opposed the recission
application, there was no
unequivocal threat by the first respondent regarding contempt of the
enforcement of the Order necessitating
the seeking of an order
suspending the operation or enforcement of thereof.
[15]
Unfortunately, the stance of the first respondent in not enforcing
the Order to date had not been shared
by many claimants in other
Divisions despite the pending recission application.
[16]
The applicant has received sanctioning orders and the employees and
staff employed by the applicant have
found themselves in the
unwarranted and precarious position at the risk of imprisonment.
[17]
Furthermore, non-compliant lodgements have been ‘
served
’
on the applicant by the sheriff by simply affixing same to the front
door of the head office of the applicant.
[18] In
view of the actions by third party claimants despite the pending
review, the applicant considered it necessary
to approach this Court
urgently for relief in terms of
Rule 45A
in the form of a
rule
nisi.
RULE 45A APPLICATION
[19]
The applicant’s case is that despite the pending recission
application, the operation and execution
of the Order granted in
favour of the first respondent on 23 May 2023 is not suspended.
[20]
Rule 45A
requires the applicant to proceed by way of
application to seek the suspension of the order for such period as
this Court deems
fit.
[21] It
is this application that is presently before the Court as a matter of
urgency.
URGENCY
[22]
The urgency of an application must be judged in terms of
Rule
6(12)
of the Rules in conjunction with Rule 12(d) the Eastern Cape Practice
Directions (hereinafter referred to as ‘the Directions’).
[1]
[23]
Applicants in urgent applications are required to advance such facts
as to satisfy the court that the non-compliance
with the Rules is
justified on the grounds of urgency.
[24]
It is imperative that the applicant demonstrate that should the
normal procedures be followed, it will suffer
real loss and damage
and set out explicitly the circumstances that render the matter
urgent such that substantial relief cannot
be afforded at a hearing
in due course.
[2]
[25]
It is expected that respondents will adhere to such truncated periods
as may be unilaterally imposed with
the right to voice objections,
such that there may be thereto, at the hearing of the matter. A
deviation from the normal rules
as embodied in the Notice of Motion
must be addressed by the degree of urgency.
[3]
[26]
Each urgent application depends on the inherent merits and special
circumstances that arise in respect thereof.
The applicant is
required to set forth explicitly the circumstances which render the
matter sufficiently urgent to justify a departure
from the rules,
procedures and time periods.
[27]
Self-created urgency will not pass muster where an applicant delays
in approaching court until such stage
that the prescribed rules can
no longer be applicable.
SUBMISSIONS ON URGENCY
[28]
The applicant detailed the grounds for urgency in the Certificate of
Urgency founded on the facts contained
in the affidavit and can best
be summarised as follows:
28.1
Since the granting of the Order by default
in favour of the first respondent on 23 May 2023, third party
claimants’ attorneys
have instituted and are in the process of
instituting or have threatened to institute contempt of court
proceedings against the
applicant and its employees on the strength
of the Order.
28.2
The lodgement of non-compliant claims that
were refused by the employees of the applicant are being affixed by
the sheriff to the
door of the applicant’s head office.
28.3
Lodgement as aforementioned not only
thwarts the applicant in its assessment of the claims but potentially
exposes the applicant
to costly litigation which is prejudicial to
the applicant considering its current dire financial circumstances.
28.4
The threatened and looming contempt
proceedings will result in further unnecessary additional legal
costs.
28.5
The Order granted on 23 May 2023 is of
national importance because of the large number of interested parties
and for this reason
the applicant seeks urgent interim relief.
[29]
The first respondent detailed the following opposition to the
applicant’s urgency:
29.1
The first respondent submitted that the
applicant’s urgency is self-created as it effectively did
nothing from the date of
the Order until 29 June 2023 when it
launched a recission application.
29.2
The first respondent further submitted that
the applicant’s contention that the first respondent had not or
would not seek
to implement the Order is speculative.
29.3
In addition, the first respondent submitted
that the urgent proceedings would not cure the contempt faced by the
applicant.
29.4
Furthermore, it was submitted that first
respondent was given less than 24-hours-notice to oppose the
application.
29.5
In
response, the applicant’s counsel referred to an email sent to
the first respondent at 15h17 on 14 July 2023 indicating
the
applicant’s intention to bring an urgent
Rule
45A
application, which email was acknowledged by the first respondent’s
attorney.
[4]
29.6
It was further submitted that the first
respondent had the entire day of 18 July 2023 to file an affidavit if
she so desired as
the application was only heard on 19 July 2023.
[30] I
find no merit in the submissions made by the first respondent
regarding the lack of urgency. The
applicant has made it
abundantly clear that the urgency only arose when third party
claimants were acting upon the Order granted
on 23 May 2023. The
facts outlined in the applicant’s founding affidavit are
self-explanatory on this issue.
[31]
The first respondent’s submission that the applicant’s
assumption is ‘
speculative
’ that she will not act
on the Order is not supported by fact or evidence and is of no
consequence. The only affidavits and
factual allegations before the
Court are those of the applicant considering that the first
respondent chose not to file an answering
affidavit.
[32]
Furthermore, the veiled attempt to allege prejudice by the short
notice is similarly not supported by any
facts or evidence whereas
the applicant has demonstrated that not only was the first respondent
aware of the impending application
but her prior conduct certainly
was not indicative of any opposition to the proposed relief to be
sought.
[33] It
deserves mention that upon enquiring from the first respondent’s
legal representative as to whether
they required time to file
answering affidavits, the Court was informed that it would not be
necessary as the first respondent
intended to argue on the
applicant’s papers.
[34] I
am satisfied that the applicant has presented sufficient facts to
justify the present application being
enrolled and heard urgently in
accordance with
Rule 6(12).
RULE 45A SUBMISSIONS
[35] It
was submitted that the applicant would suffer extreme prejudice
should the operation and execution of
the order not be suspended as
there are large amounts of claims lodged with the applicant on a
daily basis.
[36]
Furthermore, not only was the applicant deprived of
audi alteram
partem
relating to the default judgment but effectively they were
being found in contempt of such Order by third party claimants.
[37] It
was submitted that there can be no prejudice by suspending the order
in terms of
Rule 42A
pending the outcome of the recission
application.
[38] It
was submitted on behalf of the first respondent that the latter was
being prejudiced, robbed of her rights
to relief and that the first
respondent is suffering injustice. There is no evidence hereof before
this court.
[39]
Furthermore, it was submitted and other claimants should be permitted
to lodge claims as this does not equate
to an admission of liability.
[40]
Lastly, it was submitted that the deponent is not authorised to bring
this application of behalf of the applicant.
[41] It
is re-iterated that not only did the first respondent elect not to
file an answering affidavit to either
place facts or evidence before
the Court or to dispute the facts presented by the applicant, but she
also failed to deliver a notice
in terms
Rule 6 (5)(d)(iii)
if
she intended to raise any questions of law.
[42]
These submissions made on behalf of the first respondent are in the
circumstances not properly before the
Court in terms of the Rules.
Accordingly, the relief sought must be adjudicated on the strength of
the applicant’s
affidavit alone.
[43] I
am satisfied that the applicant has made out a case on the papers for
the relief sought.
COSTS
[44]
The applicant submitted that it was never envisaged that either the
first respondent or second respondent
would oppose the interim
relief.
[45]
This was premised,
inter alia
, on the lack of concern
displayed by the respondents to the communication of 14 July 2023 and
the fact that opposition was not
forthcoming on 17 July 2023 in terms
of the Notice of Motion.
[46]
The applicant submitted that the first respondent’s opposition
on 18 July 2023 necessitated the application
to be rolled over for
hearing on an opposed basis on 19 July 2023.
[47]
Accordingly, the applicant had incurred additional costs and should
this Court grant interim relief, the
applicant would seek costs of
the opposition to be awarded against the first respondent.
[48] I
consider there to be merit in the submissions of the applicant’s
counsel and the curious nature and
reason for the first respondent’s
opposition to the application for urgent interim relief cannot be
gainsaid.
[49] In
the circumstances, the following order is issued:
1.
The applicant’s non-compliance with
the
Uniform Rules of Court
is condoned and the matter is enrolled and heard as one of urgency in
accordance with the provisions of
Uniform
Rule 6(12).
2.
A
rule nisi
is hereby issued, calling upon the respondents and any interested
party to show cause, if any, on or before 15 August 2023 at 09h30
why
an order in the following terms should not be made final:
2.1
The operation, execution or enforcement of
the judgment granted by default against the applicant on 23 May 2023
under case number
EL660/2023, or any part thereof, be suspended
pending the finalization of the current application for the
rescission of the judgment.
2.2
Any respondent, interested or intervening
party who opposes this application pay the costs thereof.
3.
That paragraph 2.1 above operate as an
interim order with immediate effect pending the confirmation or
discharge of the
rule nisi
.
4.
The second respondent circulate to all its
members by email a copy of the
rule nisi
and interim order within three (3) days
of receipt thereof.
5.
The applicants publish a copy of the
rule
nisi
and interim order once in a
newspaper published in English and circulated nationally.
6.
The first respondent pay the costs of the
application occasioned by the opposition of the interim relief.
S A COLLETT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant :
Mr.
D Kotze
Instructed
by:
Malatji
& Co Attorneys Inc.
c/o
Drake Flemmer & Orsmond Inc.
East
London
Ref.
Mr. Pringle
Counsel
for the Respondent :
Mr
Conjwa
Instructed
by:
Mgcotyelwa
Krewu Inc
c/o M
S Ginya Inc.
East
London
Ref.
Mr Krewu
Date
heard:
19 July 2023
Date judgment delivered
: 21 July 2023
[1]
Rule 12(d); Bobotyana & Others v Dyantyi & Others (ECD
1198/2020, 21 August 2020)
[2]
Heathrow Property Holdings No 3 CC v Manhattan Place Body Corporate
2022 (1) SA 211
(WCC) at para [20] – [27]
[3]
Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC
and Others 2004(2) SA 81 (SE) at para [37], [38] and [40].
[4]
Applicant’s founding affidavit page 43