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[2021] ZAGPJHC 867
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Community Investment Holdings (Pty) Limited and Others v Maisa (14657/2020) [2021] ZAGPJHC 867 (2 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14657/2020
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED: NO
Date: 2 JULY 2021
In
the matter between:
COMMUNITY
INVESTMENT HOLDINGS
First
Applicant
(PTY)
LIMITED
MOKGOKONG,
Dr THERESA
Second
Applicant
MADUNGANDABA,
MERIKA JOHANNES
Third
Applicant
and
MAISA,
ABRAHAM GOUD SAKHILE
Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and
uploading onto Case Lines the Judgment is deemed to be delivered. The
date for hand-down
is deemed to be 02 July 2021.
SENYATSI
J:
[1] On 26 April 2021,
this Court ordered the respondent, Mr Abraham Goud Sakhile Maisa, to
file his heads of argument and practice
note along with an
application to condone the late filling thereof, within 5 days of
service of the order on the respondent by
email. In the event that
the respondent failed to comply with the order, the applicants were
permitted to apply to the court for
an order to strike out the
respondents’ defence on the papers, duly supplemented. The
respondent was ordered to pay the costs
of the application on an
attorney and client scale.
[2] A notice, dated the
3
rd
May 2021 was filed by the respondent asking for
reasons for the judgement in terms of the rules of this Court. The
reasons are
as set out herein below.
[3] The applicants in the
main application, which is set to be determined, seek a final
interdict against the respondent prohibiting
the respondent from
contacting the applicants, publishing or distributing any pamphlets,
editorials or emails that directly or
indirectly refers to the
applicants, their conduct or business interests or associating the
applicants with the passing of the
late child M[....].
[4] It is averred by the
applicants that over the past 13 years, the respondent has continued
to publish false and insulting information
regarding the applicants.
The applicants furthermore averred that the information complained of
intimates that the applicants were
actively involved in the death of
the late child. The respondent, so continues the averment, alleges
that he is the uncle of the
late child.
[5] As a result the
applicants launched this interdict application. The pleadings were
exchanged between the parties, with the respondent
choosing to
represent himself. He prepared all his papers in an answer to the
application until the closure of pleadings.
[6] The matter was ripe
for hearing. That said, the applicants filed their heads of argument
dated 26 November 2020. The respondent
failed to serve and file his
heads of arguments as required by the rules of this Court.
[7]Consequently, the
applicant issued an application to compel the respondent to file his
heads of argument. The respondent opposed
the application to compel
him to serve heads of arguments that would enable the finalisation of
the main application.
[8] On 26 April 2021 the
respondent appeared in person and used the Microsoft Teams meeting
facility provided by this court.
[9] In his opposition to
the application to compel him to serve and file his heads of
arguments, the respondent states under oath
in his opposing affidavit
as follows in paragraph 2:
“
2.
I
submit that I stand by my answering affidavits dated 02/09/2020 and
23 February 2021. And that the falsely claimed to be delivered
or
serviced by the sheriff Mr Rulph Khan on the 26 June 2020 and 11 July
2020 documents the notice of motion dated 18 June 2021
with 82 pages
and the notice of motion dated 26 June 2020 with 4 pages, have been
given over to the police per case 29/07/2020
SAPS Springs reported on
20 July 2020 for charges of among others theft, fraud, perjury,
misrepresentation, conspiracy and extortion,
charges against suspects
amongst others the unauthorised deponent Mr Stanley Rothbart, second
Respondent Dr Anna Mokgokong, third
Respondent Mr Merika
Madungandaba, Mr Samuel Ndobe, Advocate Jaco Voster, Ms Hillary
Davis, Sheriff of the Court Springs Mr Rulph
Khan and others.
3.
Also per answering
affidavit dated 23 February 2021, I submit that the other above
mentioned suspects have been reported beside
to the police, but
reported to the other duly authorized bodies including the
unauthorized deponent Mr Stanley Rothbart reported
to the Legal
Practice Council, Mr Rulph Khan reported to the Johannesburg Bar
Association, and Dr Anna Mokgokong reported to the
North West
University governing body for personal use of university documents in
this matter without authorization of the North
West University
governing body and breach of the Companies Act.”
[10] The quoted
paragraphs are just an example of failure by the respondent to
appreciate and understand what the notice to compel
application is
about. I would not like to waste the court’s time to quote
other irrelevant and unnecessary paragraphs dealing
with opposition
to the application.
[11] Rule 30A of the
Uniform Rules of this Court provides as follows;
“
(1)
Where
a party fails to comply with the Rules or with a request made or a
notice given pursuant thereto, a party may notify the defaulting
party that he or she intends, after the lapse of 10 days, to apply
for an order that such rule, notice or request be complied with
or
defence be struck out.
(2)
Failing compliance
within 10 days, application may on notice be made to the court and
the court may make such order
thereon as
to it seems meet.’’
[12] The respondent has
not demonstrated to this court on valid grounds why he should not be
compelled to provide his heads of arguments.
The issues he referred
to in opposition to the application are irrelevant, incoherent and
not genuine to the application before
me to compel the filing of
heads of arguments.
[13] It follows in my
respectful view that the respondent is using this tactic to delay the
main application from being finalised.
This kind of conduct cannot be
permitted and should be visited upon by an appropriate punitive costs
sanction.
[14] During the hearing
of the application the respondent was afforded sufficient time and
addressed this court on matters that
were irrelevant and a waste of
time that had no bearing on the application. Despite being guided to
restrict his submissions of
the application before court, the
respondent chose, without reason, to repeat what was stated in his
opposing affidavit to the
application before court. The submissions
resulted in an unnecessary waste of the courts’ time and
delayed other matters
which were on the court roll on the day.
[15] The application to
compel the respondent to serve and file his heads of argument must
therefore succeed.
ORDER
[16] The following order
is issued:
(a)
The application to compel the respondent to file
and serve heads of arguments is upheld with costs.
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing:
26 April
2021
Date
of Judgment:
02 July 2021
Applicants’
Counsel:
Adv J Vorster
Instructed
by:
Rothbart Inc.
Respondent:
In Person