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[2021] ZALMPPHC 81
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Q4 Fuel (Pty) Ltd v Ellisras Brandstof En Olie Verspreiders (Pty) Ltd and Others (HCAA 08/2021) [2021] ZALMPPHC 81 (11 November 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: HCAA 08/2021
In
the matter between:
Q4
FUEL (PTY) LTD
APPELLANT
And
ELLISRAS
BRANDSTOF EN OLIEVERSPRSEIDERS
(PTY)
LTD
FIRST RESPONDENT
ANTON
VERSTER
SECOND RESPONDENT
MARIUS
LUBBE
THIRD RESPONDENT
FRANS
PRETORIUS FABER
FOURTH RESPONDENT
MARENTIA
471
CC
FIFTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant had launched an application against the
respondents seeking payment of an amount
of R1 541 217.00 by virtue
of an alleged loan agreement entered into with the first respondent
and alleged deed of surety signed
by the other respondents. The
respondents in their answering affidavit have raised five points
in
limine
. The first point
in limine
was that of capacity of
the deponent of the appellant’s founding affidavit; second
alleged deficiencies in the founding affidavit;
third alleged
unlawful loan agreement; fourth jurisdiction and fifth alleged wrong
process.
[2]
With regard to the first point
in limine
, the respondents have
submitted that there are no details concerning the capacity of the
deponent of the appellant’s founding
affidavit, Olof Abraham
Breytenbach and/or his supposed authorization to depose to the
founding affidavit on behalf of the appellant.
With regard to the
second point
in limine
the respondents have submitted that the
appellant’s founding affidavit did not constitute an affidavit
as contemplated in
the Rules read with the Regulations Governing the
Administering of an Oath or Affirmation in that the so-called
commissioner of
oaths
ex officio
who commissioned the
appellant’s founding affidavit did not state his designation
nor area for which he holds his appointment
or office, given that he
appears to have been appointed
ex officio
. Further that no
annexures to the affidavit were initialed by either the deponent or
the commissioner of oaths, and also that the
certificate in terms of
section 15(4) of the Electronic Communications and Transaction Act 25
of 2002 was signed and dated 26
th
August 2019, that is
almost a month after the affidavit was commissioned on 31
st
July 2019.
[3]
With regard to the third point
in limine
the respondents have
submitted that the loan agreement attached to the appellant’s
founding affidavit was an unlawful agreement
and should be declared
null
and
void
, in that the loan amount exceeds the
threshold prescribed in terms of section 42(1) of the National Credit
Act (NCA); the appellant
was not registered as a credit provider at
the time of entering into the alleged loan agreement; at the time of
entering into the
agreement the appellant was neither in the process
of registering as a credit provider; and at the time of entering into
the alleged
loan agreement, the appellant did not hold a valid
clearance certificate issued by the National Credit Regulator.
[4]
Regarding the fourth point
in limine
, the respondents have
submitted that the appellant has failed to make out a case or make
allegations concerning why this court
has jurisdiction to hear the
matter, and that the respondents denies that this court had
jurisdiction to hear the appellant’s
application. With regard
to the fifth point
in limine
, the respondents have submitted
that the appellant has wrongly commenced application proceedings in
circumstances where action
proceedings should have been employed, in
that the appellant was clearly aware that there would be numerous
disputes of fact, particularly
concerning the quantum of the
appellant’s claim.
[5]
The appellant’s in its replying affidavit in reply to
the respondents’ first point
in limine
has submitted
that the deponent of an affidavit does not require any authority to
execute the affidavit or prosecute proceedings,
and further that
authority to do so may be challenged in terms of Rule 7. With regard
to the second point
in limine
, the appellant has submitted
that the affidavit does comply with the applicable regulations, and
further that the Regulations are
merely directory and not peremptory,
and thus there has been substantial compliance. Regarding the third
point
in limine
the appellant has submitted that the agreement
is clearly a large agreement and exempted from the provisions of the
NCA, and thus
the transaction is not a loan agreement for the
purposes of the NCA and that the appellant need not register as a
credit provider.
With regard to the fourth point
in limine
the
appellant has submitted that all the written agreements were executed
within the area of jurisdiction of this court and/or
enforced within
the area of jurisdiction of this court. Regarding the fifth point
in
limine
the appellant has submitted that the respondents’
answering affidavit has failed to raise a genuine factual dispute.
[6]
When the matter came before MG Phatudi J, counsel for the respondents
abandoned the third and
fourth points
in limine
. Counsel for
the respondents also abandoned the second point
in limine
.
However, after counsel for the respondents had notified the court
that the respondents were abandoning the second point
in limine
,
the court engaged counsel for the respondents, and when counsel for
the respondents stood by the respondents’ decision to
abandon
the point
in limine
, the court,
mero motu
raised the
abandoned point
in limine
and also seek the grounds upon which
the respondents were abandoning the second point
in limine
.
That is when counsel for the respondents submitted it to court that
he believes that there is no merit in that point
in limine
,
and that if the court had a problem with the commissioning of the
affidavit, it will take it up with counsel for the appellant.
Counsel
for the respondents submitted that there was substantial compliance
hence they are abandoning that point
in limine.
However, the
respondents ended up partially abandoning the second point
in
limine
and pursuing the remainder of it in relation to the
annexures to the founding affidavit not initialed or signed by either
the deponent
or the commissioner of oaths.
[7]
With regard to the fifth point
in limine
counsel for the
respondents asked direction from the court as he was of the view that
the fifth point
in limine
was intermingled with the merits of
the application. The respondents argued the first
in limine
,
the remainder of the second point
in limine
and the fifth
point
in limine
. MG Phatudi J upheld the first and second
points
in limine
and struck off the matter from the roll with
costs. The court
a quo
did not make a ruling on the fifth
point
in limine
. In upholding the two points
in limine
the court
a quo
found that there was no proper application
before court.
[8]
The appellant is appealing with the leave of the Supreme Court of
Appeal against the whole of
the judgment and order of MG Phatudi J.
This court is called upon to determine whether the Regulations to the
Justices Peace Act
applicable to the execution of affidavits are
peremptory or directory; whether there was compliance with the
Regulations; and whether
the deponent required authority to execute
the founding affidavit and/or whether there was compliance with the
usual formalities
pertaining to affidavits generally.
[9]
The respondents have raised a point
in limine
in its heads of
arguments in relation to the non-appealability of the ruling of MG
Phatudi J when he upheld the two points
in limine
and struck
off the matter from the roll. The respondents have submitted that the
ruling made by the court
a quo
is not final and, as a result,
is not appealable. It is the respondents’ contention that a
ruling striking off a matter from
the roll is not final in its
effect, it does not definitively pronounce on the rights of the
parties as it does not grant final
definitive relief and it does not
dispose of a substantial portion, or any portion for that matter of
the main proceedings. The
respondents submit that it is still open to
the appellant to merely approach the court with an application for
reinstatement, and
have the application re-enrolled. This court is
thus also called upon to determine whether the ruling of the court
a
quo
in striking off the appellant’s application from the
roll is appealable.
[10]
The first issue which this court will determine is whether the ruling
of the court
a
quo
in striking off the appellant’s application from the roll is
appealable. In
Crockery
Gladstone Farm v Rainbow Farms (Pty) Ltd
[1]
the court in relation to the appealability of an order held that on
the test articulated in
Zweni
v The
Minister
of Law and Order
1993 (1) SA 523
(A),
the order is not appealable if it has the following attributes (a)
not final in effect and is not open to alteration by the court
below;
(b) not definitive of the rights of the parties; and (c) does not
have the effect of disposing of a substantial portion
of the relief
claimed.
[11]
The court
a quo
in upholding the respondents’ points
in
limine
has held that “there is no proper application before
court”. In motion proceedings affidavits constitute evidence.
By holding that there is no proper application before court which is
as a result of an alleged defective founding affidavit, imply
that
there is no evidence to substantiate the orders which the appellant
was praying for in its notice of motion. The affidavit
at issue is
the founding affidavit upon which the appellant’s case will be
made. In this case a supplementary affidavit will
also not suffice as
there is nothing to supplement since there is no proper affidavit
before court. This is not a matter which
will be merely reinstated as
there is no evidence upon which the appellant will be able support
its claim. The manner in which
the point
in limine
was upheld
renders the appellant’s founding affidavit to be
void ab
initio
to the extend that the defect in it will not be rectified
by a supplementary affidavit.
[12]
It can therefore not be said that the appellant’s claim
remained intact. Without the evidence
to support its claim, the
appellant’s claim has been disposed in full. If the appellant’s
wishes to persue its claim
it will have to start afresh as its
founding affidavit is not capable of been supplemented due to nature
of the defect which the
court
a quo
has found to exist. Even
though the order of the court
a quo
has been couched as a
striking off, in actual fact it is a dismissal of the appellant’s
claim. What must be looked at, is
not the manner in which the order
has been couched, but its final effect and impact. In the case at
hand, even though the order
is that of a striking off, its final
effect and impact is that it disposes the whole of the appellant’s
claim, as the court
a quo
had also found that the end results
of the two points
in limine
are fatal to the appellant’s
case. It therefore follows that the order being a dismissal of the
appellant’s claim,
it is susceptible to be appealed upon.
[13]
The issues whether the Regulations Governing the Administering of an
Oath or Affirmation are peremptory
or directory, and whether there
was compliance with the Regulations by the appellant in commissioning
its founding affidavit will
be dealt with at the same time. The court
a quo
has held that properly interpreted, sub-regulation 4(2)
is in itself peremptory, leaving no discretion upon a commissioner of
oaths
to impress a corporate law firm on the affidavit when
administering an oath or affirmation.
[14]
Regulation 4(2) of the Regulations Governing the Administering of an
Oath or Affirmation provides that:
“
(2)The
commissioner of oaths shall-
(a)sign
the declaration and print his full name and business address below
his signature; and
(b)state his
designation and the area for which he holds his appointment or the
office held by him if he holds his appointment
ex officio
.”
[15]
As per the founding affidavit of the appellant, it shows that the
deponent of that affidavit had signed it
on 31
st
January
2019 before a commissioner of oaths. That commissioner of oaths has
also signed the appellant’s founding affidavit.
Below the
signature of the commissioner of oaths, there is a template typed
full names; business address and designation. However,
the
commissioner of oaths instead of completing his full names, business
address and designation on the template, put an office
stamp next to
where the commissioner of oaths has signed. The office stamp had the
following details: Daniel Paul Viller; Vermaak
Beeslaar Attorneys
Inc; commissioner of oaths
ex officio
; 358 Serene Street;
Garsfontein, Pretoria; Tel 012 361 9970. The corporate office stamp
does not state the designation of the commissioner
of oaths.
[16]
The placing of the corporate stamp next to the signature, and the
failure to insert the designation of the
commissioner of oaths is the
point
in limine mero motu
raised by the court
a quo
after the respondents have abandoned it. The court
a quo
held
that an attorney who is administering an oath or affirmation
ex
officio
as a commissioner of oaths, may not merely impress a
corporate seal of his law firm and leave it to the court to speculate
whether
he had complied strictly with the regulation. The court
a
quo
further held that the signature on the foot of the affidavit
could not be verified as to whether it was that of the commissioner
of oaths as anyone from the law firm could have place that stamp on
the document since there is no confirmatory affidavit by Daniel
Paul
Villiers to verify and authenticate the capacity with which he
purported to act as a commissioner of oaths. The court
a quo
further held that nowhere in the government notice 19033 dated 10
th
of July 1998 where a law firm incorporated in terms of either the
Attorneys Act 1979 (now repealed), or the corporate laws of the
Republic was designated a commissioner of oaths within the purview of
the relevant Regulations.
[17]
Turning to the question whether the Regulations Governing The
Administering of Oath or Affirmation
are peremptory or directory, it
was held in
S
v Msibi
[2]
that
the requirements as contained in the Regulations are not peremptory
but merely directory. The court in
Msibi
further
held that where the requirements of the Regulations have not been
complied with, the court may refuse to accept the affidavit
concerned
as such or give effect to it, but the question should in each case be
whether there has been a substantial compliance
with the
requirements. In my view,
Msibi’s
case
has been correctly decided in relation to whether the Regulations are
peremptory or directly, and I therefore align myself
with that
decision.
[18]
Turning to the question whether there was compliance with the
Regulations by the appellant in commissioning its
founding affidavit,
in relation to the issues which were
mero motu
raised by the
court
a quo
. The court
a quo
had issues in relation to
failure by the commissioner of oaths to insert his designation below
his signature, and also as to who
might have affixed the corporate
office stamp of the commissioner of oaths next to the signature of
the commissioner of oaths.
The court
a quo
has held that
sub-regulation 4(2) is itself peremptory, leaving no room upon a
commissioner of oaths to impress a corporate law
firm on the
affidavit when administering an oath or affirmation. I have already
found that the Regulations are not peremptory but
directory, and
therefore the court
a quo
has erred in holding that the
Regulations were peremptory.
[19]
The commissioner of oath had duly signed the appellant’s
founding affidavit and did not put an electronic
signature. In terms
of the Regulations, the details of the commissioner of oaths must
appear strictly below the signature of the
commissioner of oaths. In
view, whether the full names and business address has been printed or
affixed by corporate stamp below
the signature or next to signature
is immaterial. What must be looked at is whether the full names,
designation and business address
of the commissioner of oaths appears
on the certificate. Even if there are certain deficiencies like in
the case at hand, the court
must look at the information as a whole
and determine whether the deficiencies are that material to render
the whole affidavit
defective, what prejudice will that cause to the
affected party and the interest of justice. If the deficiencies are
not that material,
in my view, there is substantial compliance. In
the case at hand even though Daniel Paul Viller did not insert his
designation,
it can be determined that he is from Vermaak Beslaar
Attorneys and a commissioner of oaths, and therefore, failure to
insert his
designation is not that material under the circumstances,
and there was substantial compliance. If there is doubt as to whether
the details that appears on that certificate is not that of the
commissioner of oaths, it is for the party who had the doubt to
challenge and substantiate that. In this case the respondents were
correctly satisfied that there was substantial compliance and
did not
have issues with that. For the court to hold that it could not be
determined as to whose signature was put at the foot
of the affidavit
had based its conclusion on speculation and suspicion as no facts
were placed before it that substantiate the
doubt. Since there was
substantial compliance by the commissioner of oaths in commissioning
the appellant’s founding affidavit,
the court
a quo
had
erred in finding that the founding affidavit was not in conformity
with the Regulations.
[20]
In relation to the second point
in limine
the only issue that
the respondents have pursued is that the annexures to the founding
affidavit have not been initialed or signed
by either the deponent or
commissioner of oaths. In terms of Regulation 3(1) what is required
of the deponent is to sign a declaration
in the presence of the
commissioner of oaths. Regulation 3(2) provides that if the deponent
cannot write, he shall affix his mark
at the foot of the declaration.
Regulation 4(1) provides that the commissioner of oaths shall certify
below deponents’ signature
or mark. There is nowhere in the
Regulations where it makes provision for signing or initialing of the
annexures to the affidavit
by the deponent and commissioner of oaths.
Although it is desirable and advisable for the deponent and
commissioner of oaths to
sign or initial the annexures to show that
they form part of the affidavit, it is not a requirement in terms of
the Regulations.
[21]
The manner in which the court had raised the second point
in
limine mero
motu
after the respondents’ have abandoned it need some comments, as
it raises the question whether the court
a
quo
did not go beyond what the respondents were seeking, by granting a
relief which the respondents had abandoned. In
Fischer
v Ramahlele
[3]
Theron JA and Wallis JA said:
“
[13]
Turning then to the nature of civil litigation in our adversarial
system, it is for the parties, either in the pleadings or
affidavits
(which serve the function of both pleadings and evidence), to set out
and define the nature of their dispute, and it
is for the court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human
rights guaranteed by
our Constitution, for ‘(i)t is impermissible for a party to
rely on a constitutional complaint that
was not pleaded’. There
are cases where the parties may expand those issues by the way in
which they conduct the proceedings.
There may be instances where the
court may
mero motu
raise a question of law that emerges from the evidence and is
necessary for the decision of the case. That is subject to the
proviso
that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify the dispute
and
for the court to determine that dispute and that dispute alone.
[14]
It is not for the court to raise new issues not traversed in the
pleadings or affidavits, however, interesting or important
they may
seem to it, and to insist that the parties deal with them. A court
may sometimes suggest a line of argument or an approach
to a case
that has not previously occurred to the parties. However, it is then
for the parties to determine whether they wish to
adopt the new
point. They may choose not to do so because of its implications for
the further conduct of the proceedings, such
as an adjournment or the
need to amend pleadings or call additional evidence. They may feel
that their case is sufficiently strong
as it stands to require no
supplementation. They may simply wish the issues identified to be
determined because they are relevant
to future matters and
relationship between the parties. That is for them to decide and not
for the court. If they wish to stand
by the issues they have
formulated, the court may not raise new ones and compel them to deal
with matters other than those they
have formulated in the pleadings
or affidavits.”
[22]
Counsel for the respondent had notified the court
a quo
that
there was no merit in the second point
in limine
as there was
substantial compliance with the Regulations, and further that the
Regulations were directory and not peremptory. Counsel
for the
respondents submitted it to court that he did not want to argue the
appellant’s case, and that if the court
a quo
had a
problem with the commissioning of the affidavit, the court
a quo
will take it up with counsel for the appellant. It was clear that
despite having initially raised that point in their answering
affidavit as a point
in limine
, they did not wish to pursue it
anymore. The parties have therefore formulated the issues that the
court must determine, and the
court
a quo
was supposed to
respect their wishes and not compel them to argue what they did not
wish to pursue. Even though this point of law
emanates from the
pleadings, the respondents were well aware of it and did not wish to
pursue it anymore as maybe they have realized
that they did not have
sufficient facts to substantiate that point. It was therefore not for
the court
a quo
to build up a case for the respondents on the
facts which were based on speculation and suspicion. The court
a
quo
therefore erred in raising that point
in limine mero
motu
despite it been abandoned by the respondents.
[23]
Turning to the first point in limine, the respondents have stated
that there are no details concerning the
capacity of the deponent of
the appellant’s founding affidavit, Olof Abraham Breytenbach
and/or his supposed (or not) to
depose to the founding affidavit on
behalf of the appellant. What the respondents are here disputing is
the authority of the deponent
of the appellant’s founding
affidavit to depose that affidavit. Rule 7(1) of the Rules read
as follows:
“
Subject
to the provisions of sub-rules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it came to the notice of a party that
such a person is so acting, or with the leave
of the court on good
cause shown at any time before judgment, be disputed , whereafter
such person may no longer act unless he
satisfied the court that he
is authorised so to act, and to enable him to do so the court may
postpone the hearing of the action
or application.”
[24]
In a similar issue challenging the authority of a deponent to depose
an affidavit was raised in
Unlawful
Occupiers, School Site v City of Johannesburg
[4]
where Brandt JA said:
“
The
issue raised had been decided conclusively in the judgment of
Flemming DJP in Eskom v Soweto City Council 1992 (2) SA 703 (W),
which was referred to with approval by this Court in Ganes and
another v Telecom Namibia Ltd
2004 (3) SA 615
(SCA) at 624I-625A. The
import of the judgment in Eskom is that the remedy of a respondent
who wishes to challenge the authority
of a person allegedly acting on
behalf of the purported applicant is provided for in Rule 7 (1) of
the Uniform Rules of Court.”
[25]
It is trite that a deponent to an affidavit in motion proceedings
need not be authorized by the party concerned
to depose to the
affidavit. It is the institution of the proceedings and the
prosecution thereof that must be authorized. (See
Ganes and
Another v Telecom Namibia
at para 19). The deponent of the
appellant’s founding affidavit has stated that the contents of
the affidavit are within
his personal knowledge and belief both true
and correct, and that he is deposing the affidavit in support of the
accompanying notice
of motion. If the respondents doubt his authority
to depose the affidavit, the proper remedy for them is provided for
in Rule 7
(1). Even if the respondents’ have not raised the
issue of authority of the deponent of the appellant’s founding
affidavit
within 10 days of becoming aware that, it could still with
the leave of court upon showing good cause have challenged that in
court.
In that event if the court found merit in respondent’s
application, the court was supposed to have postponed the proceedings
to enable the deponent of the appellant’s founding affidavit to
prove his authority to act, and not dispose the matter in
the manner
in which the court
a quo
did. In my view, the court
a quo
erred in upholding the respondents’ two points
in limine
.
It follows that the appeal stands to succeed.
[26]
In the result I make following order:
26.1
Respondents’ point
in
limine
regarding
the appealability of the striking off order is dismissed.
26.2
The appeal is upheld with costs including the costs of the
application for leave to appeal to the Supreme Court of Appeal.
26.3
The order of the court
a
quo
is set aside
and substituted with the following:
“
The
respondents’ two points in limine are dismissed with costs.”
26.4
The matter is remitted to the court
a
quo
to hear further
arguments
.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE
SEMENYA
DJP
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE
MULLER
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARENCES
Counsel
for the appellant
: Adv C van der Spuy
Instructed
by
: Lanham-Love van Reenen attorneys
Counsel
for 1st to 4th respondents
: Adv NG Louw
Instructed
by
: Manly Inc
Date
heard
:
5
th
November 2021
Electronically
circulated
: 11
th
November 2021
[1]
[2019]
ZASCA 61
(20 May 2019) at para 4
[2]
1974
(4) 821 (T)
[3]
2014
(4) SA 614
(SCA) at para 13 and 14
[4]
2005(4)
SA 199 (SCA) at 206G-H