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[2022] ZAFSHC 1
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York and Another v Master of the High Court, Bloemfontein (3108/2021) [2022] ZAFSHC 1 (7 January 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3108/2021
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DEREK
YORK
Applicant
And
JAMES
ANDREW CALLIS- N.O.
1
st
Respondent
(In
his capacity as duly appointed executor
In
the Estate of the late Ntau Lucas Mokoena
Estate
number 006[…])
MASTER
OF THE HIGH COURT, BLOEMFONTEIN
2nd
Respondent
HEARD
ON:
16 SEPTEMBER 2021
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 16H00 on 07 January
2022.
[1]
On 30 July 2018 the applicant’s herd of 30 Brahman cattle was
stolen from his farm. The
cows were later recovered by the police and
Mr. Ntau Lucas Mokoena (‘the deceased’) was arrested for
the theft. The
deceased passed away before the case was finalized,
the first respondent was subsequently appointed as the executrix of
his estate.
[2]
The applicant alleges that as a result of the deceased’s
actions he suffered damages in
the amount of R230 000.00 being
the costs for transporting the cattle back to his farm, repairing his
damaged fences, the
fodder that was stolen and the loss of the calves
aborted by the cows during the theft.
[3]
In his quest to hold the deceased estate liable for the alleged
damages the applicant submitted
his claim with the first respondent
on 01 September 2020.
[4]
The claim was rejected by the first respondent and it is in that
regard that the applicant has
instituted these proceedings against
the respondents seeking an order in the following terms:
“
1.
Declaring the applicant to be a lawful and valid creditor in the
estate of the Late Ntau Lucas
Mokoena under estate number 006[…];
2.
The 1
st
respondent to be directed to include the claim of
the applicant with any and all other claims of creditors successfully
instituted
against the estate of the late Ntau Lucas Mokoena under
estate number 006[…];
3.
The 1
st
respondent to be interdicted from finalising
and/or proceeding with the estate until written confirmation of
acceptance of the
claim is provided to the applicant;
4.
The costs of this application and against the 1
st
respondent be paid by the Estate of the Late Ntau Lucas Mokoena,
estate number 006[…] on an attorney and client scale…”
[5]
The application is opposed by the first
respondent on several grounds including,
the
irregularity of the application due to non-compliance with Rule 41A
of the Uniform Rules of Court (“The Rules”),
lis
alibi pendens
and the illiquidity of
the claim.
Non-compliance
with Rule 41A
[6]
Rule 41A provides thus:
“
(2)
(a) in every new action or application proceeding, the plaintiff or
applicant shall, together with the
summons or combined summons or
notice of motion, serve on each defendant or respondent a notice
indicating whether such plaintiff
or applicant agrees to or opposes
referral of the dispute to mediation.
(b) A defendant or
respondent shall when delivering a notice to defend or a notice to
oppose, or at any tie thereafter, but not
later than the delivery of
a plea or answering affidavit, serve on each plaintiff or applicant
or the plaintiff’s or applicant’s
attorneys, a notice
indicating whether such defendant or respondent agrees to or opposes
referral of the dispute to mediation.”
[7]
It is common cause that when the application was served on the
respondents on 07 July 2021 it
was not accompanied by the notice as
contemplated in
Rule 41A
(2) (a).
Similarly, the first respondent’s notice to oppose the
application and the subsequent answering affidavit were served
without the notice in terms of Rule 41A (2) (b).
[8]
On 14 September 2021 barely two days before the hearing of the
application the applicant filed
an application seeking condonation of
the late service of the
41A
(2) (a) notice.
He admits that the notice was only served on the respondents on 27
July 2021 and explains that the failure to serve
the notice
simultaneously with the application was a
bona
fide
mistake. It is his submission that
the first respondent is not prejudiced by the late service of the
notice as he has also not complied
with the provisions of
41A
(2) (b) and there is no indication he would have
referred the matter for mediation.
[9]
According to the first respondent condonation should not be granted,
the applicant’s failure
to comply with the provisions of rule
41A (2) (a) constitutes an irregularity the court should therefore to
decline to hear the
matter and struck it off the roll as it is done
in the Limpopo Division. The first respondent argues that the
applicant has also
failed to show good cause why the court should
condone his non-compliance with the rules.
[10]
I do not agree with the first respondent’s contention that a
failure to comply with the provisions
of
rule
41A
(2)
(a) warrants an order
striking
off the matter from the roll. The object of rule 41A is to afford
litigants an opportunity to resolve their disputes through
mediation
as an alternative to litigation. It is a voluntary process parties
cannot be compelled to submit their dispute to mediation.
[1]
The process is also confidential including the exchange and the
contents of the notices contemplated in subrule (2).
[2]
The notices can only be brought to the attention of the court at the
end of the proceedings when the court considers the issue
for costs
of the action or application
in
that a party who
unreasonably
avoided mediating a matter which was capable of being mediated may be
mulcted with a cost order.
[3]
In
my view, the
notices
are not intended t
o
advance
or provide an effective disposal of litigation.
I
therefore
fail
to understand how the failure to comply with the
provisions
of subrule (2)
warrants
an order barring a litigant from being heard.
[11]
It is trite that
condonation
cannot be had for the mere asking it is an indulgence which a court
has a discretion on whether to grant it or not.
The applicant must
show sufficient cause entitling it to the court’s indulgence by
giving a full explanation for the non-compliance
with the court rules
so that the court can
understand
how the delay came about and to assess the responsibility.
[4]
[12]
The applicant’s affidavit in support of the condonation
application merely states the following:
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCE, BLOEMFONTEIN
CASE
NO:
3108/2021
In
the matter between:
DEREK
YORK
APPLICANT
(IDENTITY
NUMBER: 6[…])
-and-
JAMES
ANDREW CALLIS N.O.
FIRST
RESPONDENT
(In
his capacity as duly appointed executor
Is
the Estate of The Late Ntau Lucas Mokoena
Under
estate Number 006[…])
MASTER
OF THE HIGH COURT, BLOEMFONTEIN
SECOND
RESPONDENT
FOUNDING
AFFIDAVIT
I,
the undersigned,
WILLEM
JOHANNES BOTHA
Hereby
declare under oath:
1.
1.1
I am a major male attorney and director with identification number
(Id no: 7[…]) currently practicing
as such under the name and
style of Willie J Botha Incorporated with principal place of business
at 97 Kellner Street, Westdene,
Bloemfontein, Free State Province,
9301 .
1.2
I am duly authorized to depose this affidavit by virtue of being the
attorney of record on behalf of
the applicant.
1.3
The facts contained herein, fall within my direct and personal
knowledge and is true and correct unless
otherwise indicated.
2.
PARTIES
/ JURISDICTION
2.1
The applicant herein is the applicant as indicated and described as
in the main application.
2.2
The first respondent herein is the first respondent as indicated and
described in the main application.
2.3
The second respondent herein is the second respondent as indicated
and described in the main application.
2.4
The above honourable court has jurisdiction to adjudicate this matter
as the main application hereof
is being adjudicated by this court.
3.
3.
1 This application is brough for the sole
purpose of obtaining the courts leave for the late service
and filing
of the Applicant's Notice in terms of Rule 41A that was not served
and file with the application simultaneously , however
only after
filing the application .
3.2
The immediate filing of the said not ice with the application was
nothing but a mere
bona fide
oversight of the applicant,
however same was filled in the course of proceedings and after the
filing of the application.
4.
4.1
The Notice of Motion and founding affidavit of the applicant was
issued on the 7th of July 2021 in the
Free State High Court and
served on the First Respondent 7th day of July 2021 .
4
.2 The Applicants Notice in terms of Rule 41A was
served on the First Respondent on the 27st of July 2021.
5.
5.1
The applicant herewith confirm that the applicant did not leave the
entire filing of the said notice,
same was only after the filing of
the application. The notice was still provided to the first
respondent indicating to the later
that he is open to mediation of
this matter.
5.2
Due to the fact that the notice was filed at a later stage, the first
respondent never suffered any
prejudiced thereto as the filing was
indeed done.
5.3
The applicant further submit that the nature of the said notice is
merely to indicate that the applicant
is open to mediation of this
matter and at no stage affected the first respondents fairness to
oppose the matter nor affected such
fairness through the later
filing.
6.
6.1
In contrary to rule 41A(2)(a), Rule 41A(2)(b) indicate that the First
Respondent had to, when delivering
his Notice of Intention to Oppose,
or at any time thereafter, but not later than delivery of his
Answering Affidavit, to serve
on the Applicant or the Applicant's
attorneys a notice indicating whether such Respondent agrees to or
opposes referral to Mediation.
6.2
The First Respondent has indeed not filed one Answering Affidavit,
but two and has still not even bothered
to file his Notice in terms
of Rule 41A(2)(b), this despite the Applicant clearly indicating in
his Notice that he is open to Mediation.
6.3
This is a clear indication that the first respondent was not affected
by the late filing.
7.
The
First Respondent has up to date not once noted and/or indicated that
he is being prejudiced by the fact that our Notice in terms
of Rule
41A was not issued and served simultaneously with the Application nor
indicated any ground , if any , why same would have
prejudiced
himself.
8
.
In
light of the above , it is the applicant 's humble submission that
neither the first and/or second respondent will be prejudiced
at any
stage by the condonation of the late filing of the applicants notice
in terms of rule 41A , therefor request an order as
set us in terms
of the notice of motion.
SIGNED
at
BLOEMFONTEIN
on this
13
th
day of
September 2021 .
WILLEM
JOHANNES BOTHA
I
certify that this affidavit was signed and sworn to before me at
BLOEMFONTEIN
this
13
th
day of SEPTEMBER 2021 by the deponent who has acknowledged that
he knows and
[13]
The notice was served
approximately
14 days after the application was served on the respondents. The
delay
is extreme and except for the scant averment that the delay was
occasioned by a “
bona
fide oversight of the applicant
”
there is no detailed explanation as to how this alleged oversight
came about, when exactly it was discovered and what did
the applicant
do after the mistake discovered. The confirmatory affidavit
confirming the allegations attributed to the applicant
is not even
attached. I hold that the
explanation
for the delay in serving the notice has not been fully and
sufficiently given.
[14]
It has been said that the applicant’s prospects of success and
the importance of the subject matter
are also factors that are of
relevant consideration in condonation applications. In this matter n
o
attempt has been made by the applicant to set out the averments in
that regard.
[5]
On the facts
germane to this matter it does appear that the applicant
has a
bona
fide
intention in the sense of seeking an opportunity to have the matter
be
brought
to finality.
[15]
The applicant’s submission that the first respondent is not
prejudiced by the late notice is uncontroverted.
It
is accordingly my view that it is in the interests of the
administration of justice and the first respondent as well that this
matter is finalized.
I am therefore inclined to condone
the late service of the applicant’s rule 41A(2)(a) notice.
Lis
alibi pendens
/
Unliquidated
claim
[16]
The first respondent also seeks the dismissal of the application on
the grounds that there is a pending case
being litigated elsewhere
involving the same parties based on a similar cause of action. The
first respondent submits that pursuant
to launching this application,
the applicant issued a summons under case number 3341/2021 against
the respondents based on the
same cause of action. That case is still
pending this application is thus
lis pendens.
Furthermore, the
application is defective because the damages claimed by the applicant
have not been quantified and in any event,
damages cannot be claimed
by way of application but by action proceedings.
[17] On
the other side, the applicant disputes that this application and the
summons are based on a similar cause
of action. According to the
applicant, in this application a declaratory order is sought that the
first respondent must accept
the applicant’s claim and be
interdicted from finalizing the estate until he has provided proof
that he has done so. In the
summons the applicant claims payment for
damages. Therefore, the only similarity between the proceedings is
that both of them involve
the same parties. The applicant
agrees that damages can only be claimed by way of action proceedings.
He reiterates that
damages have been claimed in the summons and not
in the application therefore there is no basis for the first
respondent’s
objection.
[18]
I’m in agreement with the applicant’s contentions. The
applicant pursues his claim for damages
in the summons, the complaint
relating to the quantification of damages in the application is
accordingly meritless.
[19]
As regards the defence of
lis
pendens,
the
requisites of a defence of this nature are now settled. The
proceedings pending elsewhere must not only involve the same parties
they must also be based on the same cause of action and in respect of
the same subject matter.
[6]
The
underlying principle of the doctrine of
lis
alibi pendens
is
that
where
a dispute involving the same parties is litigated elsewhere it must
be finalized in that forum and not replicated in another
forum as
that may result in different courts
pronouncing
on the same issue with the risk that they may reach differing
conclusions.
[7]
[20]
There
is no replication of proceedings. In
casu
,
t
he relief sought is that the
applicant should be declared a valid creditor in the estate of the
deceased whereas in the action that
has been subsequently instituted,
the applicant is suing the respondents for payment of damages he
allegedly sustained as a result
of the theft perpetrated by the
deceased. Except for the fact the pending litigation in both matters
involve the same parties the
litigation is however not based on the
same cause of action and the relief sought is not the same.
The
objections raised by the first respondent herein are unfounded, they
are accordingly dismissed.
[21]
I now turn to the merits of the application.
The issue that
arise in this application is the first respondent’s failure or
refusal to accept the applicant’s “valid
claim with
merits” lodged against the deceased estate.
[22]
At the hearing of the matter and contrary to the averments contained
in the applicant’s founding affidavit,
Mr Buys counsel for the
applicant argued that this is an interdict application premised on
the grounds that the applicant has a
prospective claim against the
deceased estate, the first respondent has failed to comply with the
provisions of section 32 and
33 of the Administration of the Estates
Act
[8]
by refusing to accept the
applicant’s claim therefore an interim order must be granted
pending the
successful
determination of the action instituted by the applicant
.
[23]
Mr Buys asked the court to grant an order which is not prayed for in
the notice of motion namely, that the
first respondent be “
directed
to
provisionally
include
the claim of the applicant with any and all other claims of creditors
successfully instituted against the estate of the
late Ntau Lucas
Mokoena…”
and be
interdicted from “
finalising
and/or proceeding with the administration of the deceased estate
pending the successful determination of the action instituted
by the
applicant….”
[24]
There
is not even an attempt in the applicant’s
founding affidavit to aver the requirements of an interdict.
In
attempt to remedy this anomaly, Mr. Buys inexplicably sought to amend
the cause of action and the relief claimed in the notice
of motion
from the bar.
[25]
It is the first respondent’s case that the applicant has failed
to make out a factual case of the relief
he seeks in his affidavit.
The affidavit does not deal with the requirements of an interlocutory
interdict or any other interdict
for that matter. With regard to the
amendment, a notice of motion cannot be amended from the bar a proper
application must be brought.
The application lacks merit it
dismissed. Mr. Snyman submits that having regard to the manner in
which the applicant has repeatedly
abused the court process in the
manner in which he dealt with this matter, a punitive cost order is
warranted.
[26]
It is trite that a party who seeks such a substantial amendment (the
cause of action and the relief) must
comply with the provisions of
Rule 28(1) which provides that:
''Any
party desiring to amend a pleading or document other than a
statement, filed in connection with any proceedings, shall notify
all
other parties of his intention to amend and shall furnish particulars
of the amendment.”
[27]
I’m satisfied that the first respondent’s opposition is
well founded, there is no proper application
for an amendment before
this court. On the available facts it has been conceded that the
applicant’s founding affidavit does
not make out the case for
the granting of the order sought. I have consequently arrived at the
conclusion that the application
ought to be dismissed.
COSTS
[28]
It is clear from the facts of this matter that the applicant has been
a serial violator of the Rules of the
court. The application provided
for less time periods for the respondents to file opposing papers and
when the first respondent
filed his opposing papers within the
truncated periods and opposed the urgency of the matter the
applicant’s response thereto
was merely that the matter was not
urgent it was merely a mistake that the application provided for less
time periods. Despite
having filed a voluminous application
(totalling over 203 pages excluding the heads of argument) the order
that the applicant ultimately
sought varied substantially with the
relief sought in the notice of motion. I’m persuaded by the
first respondent’s
contention that the
application
is an abuse of court process a cost order on a punitive scale is thus
warranted.
[29]
In the premises, the following order is granted
:
(1)
The application for condonation for the late service of the
rule
41A(2)(a) of the Uniform Rules of Court is granted with no order in
respect of costs.
(2)
The application is dismissed with costs
on
the scale as between attorney and own client.
N
S DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv.
JJ Buys
Instructed
by:
Willie
J Botha INC
BLOEMFONTEIN
Counsel
on behalf of 1
st
Respondent:
Adv.
C Snyman
Instructed
by:
Callis
Attorneys INC.
BLOEMFONTEIN
[1]
Rule
41A (1).
[2]
Su
brule
(2) (d).
[3]
Rule
41A (9) (b).
[4]
Uitenhage
Transitional Local Council v SA Revenue Services
[2004]
(1) SA 292
(SCA)
at 297 I-J.
[5]
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1
BLLR 1
(CC); (2014) 35 ILJ 121 (CC) para 22.
[6]
Association
of Mineworkers and Construction Union and Others v Ngululu Bulk
Carriers (Pty) Limited
(In
Liquidation) and Others
[2020] ZACC 8
para 26.
[7]
C
aesarstone
Sdot-Yam Ltd v The World of Marble and Granite CC
2013
(6) SA 499 (SCA)
paras
18-30.
[8]
Act
No 66 of 1965.