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2022
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[2022] ZAGPJHC 622
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Rapid IT Solutions v National Health Laboratory Services and Others (25671/2020) [2022] ZAGPJHC 622 (23 August 2022)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
No:
25671/2020
REPORTABLE: NO.
OF INTEREST TO OTHER
JUDGES: NO.
REVISED.
In the matter of:
RAPID
IT
SOLUTIONS
Plaintiff
and
NATIONAL
HEALTH LABORATORY SERVICES
First Defendant
SEAN
GRIMMETTE
Second Defendant
MICHAEL
SASS
Third Defendant
JUDGMENT
Todd
AJ
1.
This matter came before me as an interlocutory
matter on the opposed motion roll on 16 August 2022.
2.
The main proceedings were instituted by way of
action. It is apparent from the file that the matter has been the
subject of a number
of different interlocutory proceedings. In part
these have been attributable to the fact that the Plaintiff in the
action is not
legally represented, and the matter is being conducted
by Mr Jethro Diphare, stated to be a director of the Plaintiff.
3.
The status of the action proceedings is that,
following an exception brought by the Defendants the Plaintiff
amended its particulars
of claim and the Defendants have filed
specials pleas and a plea dated 20 April 2022. Pleadings have now
closed.
4.
According to Ms Lefaladi, who appeared for the
Defendants, all that is left to be done for the matter to be trial
ready is for the
parties to comply with their respective discovery
obligations and to hold a pre-trial conference, and the matter should
then be
able to be enrolled for trial.
5.
The application that came before me on 16 August
2022 was an application for an interdict and certain related
consequential relief
that Mr Diphare had first conceived more than a
year ago, in June 2021. At that time, according to Mr Diphare, he had
hoped to
secure interlocutory relief, pending the action, that would
prevent the underlying contract which has given rise to the dispute
from lapsing.
6.
In the interim, between the time when the
interlocutory papers were delivered and the matter was argued before
me, the contract
had in fact lapsed. Mr Diphare accepted that he
could no longer seek an order preventing that from happening, and he
indicated
that he no longer sought the interdictory and related
relief that was set out in the notice of motion in the interlocutory
application.
Instead, in submissions before me he indicated that he
sought instead, on the same papers, an order for the payment of part
of
the amount of damages that he was claiming by way of action.
7.
The application was opposed by the Defendants. Ms
Lefaladi submitted that the application was simply an abuse of
process, and that
this was but one of a number of similar instances
of irregular conduct by the Plaintiff in the course of the
proceedings. I do
not have before me the details of the other
interlocutory matters to which Ms Lefaladi was referring, but Ms
Lefaladi submitted
that the present interlocutory application was
ill-conceived and that it unnecessarily ratcheted up costs in the
action proceedings.
She submitted that the application should simply
not have been brought in the first place, or enrolled at this stage
of the proceeding,
and that it should consequently be dismissed with
costs. She further submitted that costs should be awarded on a
punitive scale.
8.
Mr Diphare submitted in reply that if the
application was indeed misconceived this was a consequence of the
fact that he was unfamiliar
with legal practice and procedure, that
he was learning as he went along, and that in those circumstances the
costs of this application
should be deferred for determination at the
eventual trial of the matter.
9.
I have carefully considered the papers in the
notice of motion that Mr Diphare filed and have considered whether
there are any grounds
on which this court can or should come to the
assistance of the Plaintiff at this stage, pending finalisation of
the action. Put
simply, however, there are no grounds on which Mr
Diphare could or should have approached the court in this manner at
this stage.
The application should, therefore, be struck from this
court’s roll as an abuse of process. I intend to make an order
along
those lines.
10.
As regards costs, the court is sympathetic to Mr
Diphare’s position. He submits, from the bar, that Plaintiff is
unable to
afford legal representation, that his business has suffered
in consequence of the issues that have given rise to the dispute (for
which he attributes blame solely to the Defendants), and that it
would be unduly burdensome on the Plaintiff to saddle it with
the
costs of today’s proceedings.
11.
On the other hand, the fact of the matter is that
Mr Diphare has initiated and persisted with unwarranted interlocutory
proceedings
that have put the Defendants to significant costs in
circumstances in which this was unnecessary and unwarranted. The
application
had no legitimate cause of action nor any foundation in
the rules of this Court, and constituted an abuse of process.
12.
Mr Diphare characterised his conduct in pursuing
the application as an indication of the frustration that he has
experienced in
consequence of the fact that the Defendants had not
responded favourably to a settlement proposal that had been
communicated to
them by the Plaintiff’s erstwhile legal
representatives. From this submission it is apparent that Mr Diphare
deliberately
sought to enrol the matter on an interlocutory basis
either to pressurise the Defendants or in reaction to their failure
to respond
to a settlement proposal. This indicates a deliberate
abuse of this court’s processes for purposes for which they are
not
intended.
13.
Despite this I have decided to defer decision on
the question of wasted costs arising from the proceedings before me
on 16 August
2022, including the question whether, if costs are
awarded, this should be on a punitive scale, pending the further case
management
process to which I refer below. Those costs will be dealt
with as part of that process.
14.
This matter should be brought to trial in a
manner that minimises or excludes further unnecessary costs, whether
in relation to
interlocutory proceedings or otherwise. With the
Plaintiff unrepresented and with Mr Diphare learning as he goes
along, as he explained
in his submissions, there is an obvious risk
that the matter may not be brought to trial efficiently and
expeditiously.
15.
As a result, I intend to convene a case
management meeting shortly with a view either to securing agreement
on each of the further
steps necessary to bring the action
proceedings to conclusion or if the parties cannot agree those steps
issuing directions as
appropriate.
16.
My secretary will be in contact with the parties
shortly to schedule a case management meeting.
ORDER
The
application brought by way of notice of motion dated 15 June 2021
which came before me on 16 August 2022 is struck from the
roll. The
costs of the application are reserved for later determination.
C Todd
Acting Judge of the
High Court of South Africa.
REFERENCES
For
the Plaintiff:
Mr Jethro Diphare
Instructed
by:
In person
For
the Defendants:
Adv. K Lefaladi
Instructed
by:
H.M Chaane Attorneys Incorporated
Judgment
reserved:
16 August 2022
Judgment
delivered:
23 August 2022