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[2011] ZASCA 180
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Majola v Nitro Securitisation 1 (Pty) Ltd (567/10) [2011] ZASCA 180; 2012 (1) SA 226 (SCA); [2012] 1 All SA 628 (SCA) (30 September 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no:567/10
In the matter between:
VOTANI MAJOLA
….........................................................................................
Appellant
and
NITRO SECURITISATION 1 (PTY) LTD
…..................................................
Respondent
Neutral citation:
Votani
Majola v Nitro Securitisation
(567/10)
[2011] ZASCA 180
(30 September 2011)
Coram:
BRAND, PONNAN, BOSIELO
JJA AND PETSE AND PLASKET AJJA
Heard:
19 September 2011
Delivered:
30 September 2011
Summary:
Dismissal of appeal
for non-appearance – rule 13(3) of SCA rules – Default
position is that appeal will be dismissed
for non appearance
unless grounds exist for striking it from the roll or postponing it –
factors to be considered in
exercise of this discretion
ORDER
On appeal from:
South Gauteng
High Court, Johannesburg (Van Eeden AJ sitting as court of first
instance):
The appeal is dismissed with costs on
an attorney and client scale.
JUDGMENT
PLASKET AJA (BRAND, PONNAN, BOSIELO
JJA AND PETSE AJA concurring)
[1] This is an appeal against a
judgment of the South Gauteng High Court, Johannesburg in which Van
Eeden AJ granted summary judgment
against the appellant, ordering him
to return to the respondent a Jaguar S Type 3.0 SE motor vehicle and
to pay the respondent’s
costs on an attorney and client scale.
The appeal is with Van Eeden AJ’s leave. In this court, the
appellant failed to appear
and his appeal was dismissed with costs on
an attorney and client scale. These are the reasons for that order.
Background to the appeal
[2] This matter has an unfortunate
history. The summary judgment was granted by the court below on 20
November 2009. Leave to appeal
was granted on 29 July 2010. The
matter was set down for hearing in this court on 10 May 2011 but
neither the appellant nor a legal
representative instructed by him
appeared on that day. As a result, an order was made striking the
appeal from the roll, ordering
the appellant to pay the wasted costs
on an attorney and client scale, ordering that the appeal was not to
be set down unless the
appellant had provided proof that the wasted
costs had been paid in full and directing that when the appellant
applied for the
matter to be set down, he was required to give a full
explanation for his absence.
[3] The appellant did not pay the
wasted costs and took no steps to set the matter down. As a result,
the respondent wrote to the
President of this court to request that
the matter be set down for hearing despite the appellant not having
complied with the order.
In effect, therefore, the respondent waived
reliance on its right to be paid its costs prior to the appeal being
set down again.
It also tendered to reconstruct the record at its own
cost.
[4] The matter was set down for
hearing on 19 September 2011. In response to the notice of set down,
the appellant wrote to the
registrar of this court on 12 September
2011 to say that, in terms of the order of 10 May 2011, certain
directives had to have
been complied with before the matter could be
set down and that, to his knowledge, they had not been fulfilled. He
no doubt had
in mind his obligation to pay the respondent’s
costs and to explain his failure to appear. He queried whether the
set down
was regular in these circumstances as he did not want to
travel to Bloemfontein for the hearing only to be told that the set
down
was, indeed, irregular.
[5] On 14 September 2011, he wrote a
further letter to the registrar in which he said:
‘
I
refer to my letter to the Registrar dated 12/09/11 to which I have
not received a reply. In that letter I expressed my doubts
about the
legality of setting this matter down before the directives that were
specified in the order dated 10/05/11 had been complied
with. I
sought clarity from the Registrar which I have not received to date.
Unless there is a different position which should
be communicated to
me before the end of business day tomorrow the
15/09/11
THE MATTER SHOULD BE REMOVED FROM THE ROLL OF THE 19/09/11.
’
[6] On the same day, the registrar
replied. In his letter he stated:
‘
I
refer to your letter of 14 September 2011. I confirm that the matter
is set down for hearing on Monday 19 September 2011. I am
instructed
to inform you that the appellant’s failure to appear may lead
to dismissal of the appeal with costs.’
[7] When the matter was called on 19
September 2011, there was once again no appearance by or on behalf of
the appellant. We were
informed by Mr Becker, who appeared for the
respondent, that his attorney had been informed by the appellant’s
correspondent
– who was not present in court when the appeal
was dealt with – that the appellant had informed him
telephonically
that he did not intend attending court. Thereafter
attempts to contact the appellant proved to be unsuccessful because
his cellphone
had been switched off. Brand JA, the presiding judge,
requested that these details be reduced to writing and be handed to
the registrar.
An affidavit to this effect, deposed to by the
respondent’s attorney, was duly filed with the registrar.
[8] The net result is that the
appellant has failed to appear in this court on the two occasions
when his appeal has been set down
for hearing and, on both occasions,
he has neither given an explanation nor offered an apology for his
failure to appear. These
failures on his part are all the more
serious when one considers that the appellant is an attorney –
and hence an officer
of this court.
The facts
[9] The respondent, in its particulars
of claim, alleged that on or about 29 August 2006 Firstrand Bank
Limited, trading as Wesbank,
had entered into a written instalment
sale agreement with the appellant in terms of which it had sold and
delivered to him the
Jaguar vehicle mentioned above. The purchase
price of R604 494.00 was payable by the appellant in monthly
instalments, over
59 months, of R8039.80 with a final payment of
R130 145.80. Ownership of the Jaguar remained vested in Wesbank
until the appellant
had paid all amounts due by him.
[10] The appellant breached the
agreement by failing to make the monthly payments. This gave Wesbank
the right to cancel the agreement
and, among other things, take the
Jaguar back. In the meantime, Wesbank had ceded its rights in terms
of the agreement, including
its right of ownership of the Jaguar, to
the respondent. It was entitled to do so in terms of clause 13 of the
agreement which
reads:
‘
You
may not transfer your side of the agreement to any other party
without getting the Seller’s prior written approval but
it is
agreed that the Seller can transfer his side of the agreement (his
rights in the agreement and goods) to another party. You
agree that
if the Seller does transfer his side you will continue to hold the
goods and fulfil your obligations on behalf of and
to the new party.’
[11] After having
sent the appellant notice in terms of
s 129
of the
National Credit
Act 34 of 2005
, to his
domicilium
as
it was reflected in the agreement, and following the appellant’s
failure to respond thereto, the respondent issued summons
for the
return of the Jaguar, the postponement sine die of its claim for
damages pending the return and the valuation of the Jaguar,
interest
on the amount of damages awarded in due course and costs on an
attorney and client scale.
[12] The respondent
later applied for summary judgment in which it sought the return of
the Jaguar and costs on an attorney and
client scale. That
application was opposed by the appellant who did not deny that he had
breached the agreement but raised instead
a number of technical
points. They were that: (a) the
s 129
notice had been sent to the
incorrect address, as he had changed his
domicilium
in writing in
accordance with clause 16 of the agreement; (b) the respondent had
not complied with
rules 18(4)
and
18
(6) of the uniform rules when it
pleaded the cession, rendering the particulars of claim excipiable;
(c) the person who instituted
the action on behalf of the respondent
lacked authority to do so; (d) Wesbank had not obtained the
appellant’s consent to
the cession; and (e) the decision to
institute the action was not valid because the respondent had not
exhausted less drastic options
to recover the Jaguar and the debt
owed to it by the appellant. All of these points were found by Van
Eeden AJ to have been without
merit.
The issues
[13] The appeal was dismissed in the
absence of the appellant. This court is entitled to follow such a
course.
Rule 13(3)
of the rules of the Supreme Court of Appeal
provides that if an appellant fails to appear on the date of the
hearing of an appeal,
it ‘shall be dismissed for
non-prosecution, unless the court otherwise directs’.
[14] In three cases
dealing with the similarly worded predecessor of
rule 13(3)
–
rule 7(2)
of the rules of the Appellate Division – this court
has held that the default position where an appellant fails to appear
is that the appeal should be dismissed. Trollip JA, in
Gumede
v Protea Assurance Co Ltd
,
1
held that ‘the
sub-rule confers a discretion on this Court as to the appropriate
order it should make, but ordinarily the
appeal should be dismissed
unless there are circumstances warranting the making of some other,
less drastic order’. It is,
therefore, only if sufficient
grounds exist that a less drastic alternative, such as striking the
appeal from the roll or a postponement,
may be justified.
[15] Three sets of
factors are relevant to determining whether the court ought to
exercise its discretion in favour of an absent
appellant and either
strike the matter from the roll or postpone it. They are the facts
and circumstances surrounding the appellant’s
absence, the
position of the respondent and the appellant’s prospects of
success.
2
I proceed to
consider these in turn.
[16] The facts and circumstances
surrounding the non-appearance of the appellant are set out fully
above. From them I can find nothing
that operates in the appellant’s
favour. Indeed, everything points to this court exercising its
discretion against him. Of
importance are the following factors.
First, this is the second time that the appellant has failed to
appear in this case. Secondly,
he has given the court no explanation
for his non-appearance on either occasion. On this occasion, it
appears from the information
provided to the court by the respondent,
that he simply chose to absent himself from the hearing. In so doing,
he displayed discourtesy
to both the court and the respondent and a
contemptuous attitude towards the court. Thirdly, he is an attorney
and, as such, an
officer of the court. This court is entitled to
expect a higher standard of professionalism than he has displayed.
Finally, the
appellant was warned in the registrar’s letter of
14 September 2011 that if he failed to appear the appeal was in
danger
of being dismissed.
[17] It is plain that the respondent
has suffered prejudice. Despite having obtained a judgment for the
return of the Jaguar nearly
two years ago, the appellant continues to
possess it. (Indeed, the period of 59 months over which payments for
the Jaguar were
required to be made by the appellant is at an end:
the last instalment was due on 28 August 2008.) By frustrating the
respondent
on both occasions on which the appeal was to be heard, the
appellant has ensured that the respondent’s financial prejudice
arising from the breach of contract continues for as long as the
appeal remains unresolved. If the matter was now to be struck
from
the roll, finality would not be achieved. The dismissal of the appeal
in terms of
rule 13(3)
would avoid all of this prejudice to the
respondent and achieve finality, an important consideration, it seems
to me, that underpins
rule 13(3).
[18] Finally, I
turn to the merits. I do so in order to gauge the prospects of the
appeal succeeding as this is ‘usually an
important factor in
determining whether or not any non-compliance with the Rules in
prosecuting an appeal ought to be condoned
by this Court’.
3
I shall do so
succinctly because the merits have been fully canvassed in the
judgment of Van Eeden AJ. It stands out starkly that
the appellant
has not raised a defence on the merits and does not aver in his
answering affidavit that he is not in breach of the
agreement or that
he is entitled to retain possession of the Jaguar.
[19] The first
point that the appellant took was that the
s 129
notice in terms of
the
National Credit Act was
sent to the wrong address as he had
changed his
domicilium
.
The letter that he put up in an attempt to establish this point does
not do so. It concerns negotiations to settle the present
dispute
(and appears to admit liability). It is headed ‘Payment Plan’,
refers to a telephonic conversation with an
employee of Wesbank in
which she ‘rejected the detailed proposals that I made in my
letter’ and reiterated ‘once
more that I am making the
necessary arrangements to clear the outstanding debt under the
circumstances that I find myself in’.
The address of his
attorney – which he opportunistically claimed in his answering
affidavit to be his new
domicilium
–
is prefaced
with the words: ‘As requested the details of my attorney are as
follows’. Consequently, he never purported
to change his
domicilium
in terms of the
agreement. There was thus proper service of the
s 129
notice on the
appellant and the fact that he never received it does not render the
notice invalid and the issue of summons premature.
4
[20] The second point was that when
the respondent pleaded the cession it did not comply with
rules 18(4)
and
18
(6) of the uniform rules and, as a result, its particulars of
claim were excipiable. I am in agreement with Van Eeden AJ when he
held that the fact that ‘it was not stated whether the cession
is written or oral; when, where and by whom it was concluded;
and if
the cession was reduced to writing, not attached to the pleading,
does not render it excipiable as either vague and embarrassing
or as
failing to disclose a [cause of] action’.
[21] Thirdly, the appellant attacked
the authority of one Venter to institute proceedings against him on
behalf of the respondent.
Venter’s authority appears to me to
have been conclusively established. A resolution of the directors of
the respondent dated
27 March 2006 authorised certain classes of
officers to institute proceedings on behalf of the respondent. It
included a clause
allowing certain of them, by way of a certificate,
to authorise officers who had not been designated in the resolution
to institute
proceedings on behalf of the respondent. A certificate
was issued by the Chief Executive Officer which authorised Venter to
institute
proceedings on behalf of the respondent.
[22] The fourth
point was that the respondent’s consent was required before
Wesbank could cede its rights to the respondent.
Clause 13 of the
agreement states, however, that while the appellant could not cede
his rights without the ‘prior written
approval’ of
Wesbank, it was free to cede its rights, no mention being made of it
having to obtain the appellant’s
consent. In any event, when
regard is had to the appellant’s obligations in terms of the
agreement, it can make no difference
to him if the corresponding
rights are enforced by the respondent or Wesbank.
5
His consent to the
cession was not required.
[23] The fifth point was that the
respondent was under a duty to exhaust less drastic alternatives,
such as ‘collection strategies
and attempts to rehabilitate the
account’, before deciding to litigate. This point only has to
be stated to be rejected.
[24] From the foregoing I conclude
that there are no reasonable prospects of the appeal succeeding on
any of the points raised by
the appellant. When this factor is
considered together with the facts and circumstances surrounding the
appellant’s failure
to appear and the prejudice to the
respondent, the result is inevitable: there is simply no basis upon
which this court can exercise
its discretion in favour of striking
the appeal from the roll or postponing it. The appeal must be
dismissed for non-appearance.
[25] It is
necessary to say something regarding the grant of leave to appeal in
cases in which summary judgment has been granted.
The purpose of
summary judgment is to ‘enable a plaintiff with a clear case to
obtain swift enforcement of a claim against
a defendant who has no
real defence to that claim’.
6
It is a procedure
that is intended ‘to prevent sham defences from defeating the
rights of parties by delay, and at the same
time causing great loss
to plaintiffs who were endeavouring to enforce their rights’.
7
If a court hearing
an application for summary judgment is satisfied that a defendant has
no bona fide defence to a plaintiff’s
claim and grants summary
judgment as a consequence, it should be slow thereafter to grant
leave to appeal, lest it undermine the
very purpose of the procedure.
This case is a good example. If summary judgment had been refused
nearly two years ago, and leave
to defend had been granted, the trial
would probably have been completed by now.
[26] An order of costs on an attorney
and client scale was made against the appellant. While such a costs
order would probably have
been justified on account of the
appellant’s conduct in this matter, the basis for this order
is, in fact, clause 14.1 of
the agreement which provides that the
respondent is entitled to such costs arising from the appellant’s
failure to comply
with the terms of the agreement or any other
default.
[27] For the reasons stated in this
judgment, the appeal was dismissed with costs on an attorney and
client scale.
___________________
C Plasket
Acting Judge of Appeal
APPEARANCES
APPELLANT No appearance
RESPONDENT FJ Becker
Instructed by
Smit, Jones and Pratt
Johannesburg
Symington and De Kok
Bloemfontein
1
Gumede
v Protea Assurance Co Ltd
1979
(2) SA 851
(A) at 852A-B. See too
S
v Isaacs
1968
(2) SA 184
(A) at 186 B-E;
S
v Moshesh
1973
(3) SA 962
(A) at 963G-H.
2
Gumede
v Protea Assurance Co Ltd
(note
1) at 854A.
3
Gumede
v Protea Assurance Co Ltd
(note
1) at 853B-C.
4
Rossouw
& another v Firstrand Bank Ltd
2010
(6) SA 439
(SCA) paras 31-32;
Munien
v BMW Financial Services (SA) (Pty) Ltd
2010
(1) SA 549
(KZD) para 22.
5
Botha
& another v Carapax Shadeports (Pty) Ltd
[1991] ZASCA 134
;
1992
(1) SA 202
(A) at 215I-216A.
6
Andries
Charl
Cilliers, Cheryl Loots and Hendrik
Christoffel Nel
Herbstein and Van
Winsen: The Civil Practice of the High Courts of South Africa
(5ed) Vol 1 (2009) at 516-517.
7
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) para 31.