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[2021] ZAGPPHC 174
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Nedbank Limited v Hintermair (71033/2019) [2021] ZAGPPHC 174 (10 March 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG.DIVISION,
PRETORIA)
CASE
NO: 71033/2019
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:10
March 2021
In
the matter between:
NEDBANK
LIMITED
APPLICANT/PLAINTIFF
(REGISTRATION
NUMBER: […])
and
GLENDA
MERLE HINTERMAIR
RESPONDENT/DEFENDANT
(IDENTITY
NUMBER: […])
JUDGMENT
IN RESPECT OF APPLICATION FOR LEAVE TO APPEAL
INTRODUCTION
1.
On
16th December 2020, the respondent brought an application for leave
to
appeal.
[1]
2.
The
application for leave to appeal was brought in terms of Section 16
read with
Section
17 of the Superior Court Acts, 10 of 2013
(“the
Act”)
in
that:
2.1.
The appeal has a reasonable prospect of success on the grounds stated
herein below;
2.2.
There is some other compelling reason why the appeal should be heard
on the grounds stated herein below;
and
2.3.
The decision sought on appeal does not fall within the ambit of
Section 16 (2) (a) of the Act.
3.
The application for leave to appeal was based on the following
grounds;
3.1. The
Respondent did not utilise Rule 30 to deal with the merits or
substance of the summary judgement
at all - the Respondent used Rule
30 to object to the applicant’s late filing of its summary
judgement application;
3.2.
The Court made specific reference to the commentary section of the
Uniform Rules which furnishes specific
examples of instances where
the Rule has found application. One of the instances listed is at
paragraph (f) which stipulates that
“Notice of intention to
defend was irregular or delivered out of time….”
3.3. The
commentary to the Uniform Rules thus expressly makes provision for
the Rule to be invoked in instances
where a Notice has been delivered
out of time and thus is not limited to instances relating to form or
non-compliance with the
form as found by the Court;
3.4.
The Respondent’s objection to the late filing of the
Applicant’s application for summary
judgement would thus fall
squarely within the ambit of this instance stipulated in the
commentary to the Uniform Rules and should
not have been dismissed.
Furthermore, as advised, the Respondent’s Rule 30 application
did not address the substantive issues
in respect of asserting a
defence to the summary judgement application and thus the Court erred
in making this finding.
3.5.
In paragraphs 22 and 23 of the judgement, the Court held that insofar
as the Respondent had filed
her answering affidavit to the
applicant’s application for condonation for bringing the
summary judgement application out
of time, the Respondent will not
have been afforded the protection of Rule 30 in light of the fact
that she has taken further steps
when Rule 30 requires a person not
to do so to maintain the advantage and protection of the Rule 30.
3.6.
The Respondent’s filing of an answering affidavit to the
applicant’s condonation application
does not constitute a
further step taken by the Respondent in advancing her case - the
Respondent was simply filing a response
to the application which was
initiated by the Applicant;
3.7. Had
the Applicant not filed an answering affidavit to this application,
then the condonation application
would have remained unopposed and
been automatically granted. In fact, in order to rely on the
protection afforded by Rule 30,
the Respondent could not have filed
an answer to the Applicant’s summary judgement application, as
the Court suggested.
3.8.
If the Respondent had in fact filed papers opposing the Applicant’s
application for summary judgement,
the Respondent would have taken a
further step in response to the late filing, which would have
amounted in essence to tacitly
condoning the late filing of the
Applicant’s application for summary judgement, thus rendering
the Rule 30 application moot.
3.9.
It was for this specific reason that the Applicant suggested that the
Rule 30 application and the Applicant’s
application for
condonation be heard simultaneously first before dealing with the
substantive summary judgement application, as
both applications in
essence dealt with the same subject matter, being the late filing of
the Applicant’s summary judgement
application.
3.10.
Accordingly, in these circumstances, the Respondent was well within
her rights to invoke Rule
30 to object to the Applicant’s
summary judgement being filed out of time. Furthermore, in order to
invoke the protection
of the Rule, she was not permitted to file a
substantive answer to the summary judgement application, which in
itself would have
constituted a further step, making the Rule 30
application entirely superfluous.
3.11. The
Court thus should have found that the Respondent was entitled to the
protection afforded by Rule
30 and thus upheld the Respondent’s
Rule 30 application.
4.
At paragraph 26, the Court held that it was satisfied that the
Applicant had made out
a case in respect of the condonation for the
summary judgement application. At paragraph 33, the Court held that
it was abundantly
clear that there was no disregard of the applicable
time frames as contained in the Uniform Rules of Court and that the
slight
degree of lateness combined with the good prospects of success
favours the granting of condonation.
5.
The Court erred in approaching the matter on this basis and making
the findings referred
to, for the following reasons:
5.1. The
Applicant’s contention that it laboured under the bona fide
belief that it was obliged to
first file its plea to the defendant’s
counterclaim, cannot be logically or legally sustained. Firstly, the
Applicant is
one of South Africa’s major commercial banking
institutions, which has a variety of legal firms on its panel. The
Applicant
is represented in this matter by an established law firm.
It is trite law that ignorance of the law is not a valid legal
defence;
5.2. The
Applicant’s attorneys should be well-versed with the provisions
of Uniform Rule 32(2) (a),
which are blatantly clear and unambiguous.
They are an established legal firm which has undoubtedly dealt with
numerous summary
judgement applications and should be
au fait
with
the provisions of the Rules by now;
5.3.
The main objective of the summary judgement procedure is for the
court to grant summary judgement for
the plaintiff which would
dispose of the defendant’s entire case if granted - this then
begs the logical question of why
the Applicant would have thought
that it would be a prerequisite for the plaintiff to have first filed
its plea to a counterclaim
before it would be entitled to institute
its summary judgement application. It is the defendant’s plea
that is in issue or
purposes of summary judgement – not the
plaintiffs plea to the defendant’s counterclaim, which
counterclaim in any
event would fall away if the summary judgement is
granted;
5.4.
The Court erred in its calculations at paragraph 29 of the judgement.
The Respondent’s counterclaim
was served on 10 June 2020. The
Applicant’s version is that it had filed its plea to the
Respondent’s counterclaim
in accordance with the 15 day period
after the service by the Respondent of its counterclaim as stipulated
in Uniform Rule 25;
5.5. Accordingly,
on the Applicant’s own contention and allegedly plausible
reason or having filed its summary
judgement application late, the
Applicant should have filed its plea to the counterclaim by no later
than 2 July 2020, being 15
court days from 10 June 2020;
5.6.
The Applicant in fact filed its plea to the counterclaim only on 4
August 2020 an entire month later.
Thus paragraph 29 of the judgement
is incorrect in accepting the Applicant’s calculation that the
delivery of its plea to
the Respondent’s counterclaim was done
within the 15 day period;
5.7.
This fact in an of itself points to the disingenuous of the
Applicant’s contention that it had
abided by the time period
set out in Uniform Rule 25 first before filing its summary judgement
application and clearly evidences
a complete disregard of the
applicable time frames as contained in the Uniform Rules of Court
therefore, even on the Applicant’s
version, its plea to the
Respondent’s counterclaim was filed way out of time;
5.8.
If one has regard to the date upon which the Applicant filed its
summary judgement
application, being 24 August 2020, this evidences
that the Applicant’s application was served 52 days late in so
far as it
should have been served by no later than 2 July 2020 in
accordance with the provisions of Uniform Rule 32(2) (a);
5.9.
Therefore, the Court erred in finding that Applicant has shown good
cause for its failure to comply
with the provisions of Uniform Rule
32(2)(a) in delivering its summary judgement application outside of
the 15 day time period
afforded to it to do so and thus its
condonation application should not be granted.
5.10.
As pointed out above, even on the Applicant’s own version that
it first needed to comply with
Uniform Rule 25 before applying for
summary judgement, it should have served its plea to the Respondent’s
counterclaim no
later than 2 July 2020 and its summary judgement
application, 15 court days later, by 23 July 2020. The Applicant in
fact only
served its summary judgement application a month later on
24 August 2020.
5.11.
The Court therefore erred in its finding in paragraph 33 of the
judgement that there was only a “slight
degree of lateness”
and no disregard of the applicable time frames and should have
refused the Applicant’s condonation
application as the
Applicant had not shown good cause for its delay in instituting its
summary judgement application.
6.
The Court granted the Applicant’s summary judgement application
in the very same
hearing on the basis that the Respondent did not
file any papers opposing the summary judgement application.
7.
The Court erred in approaching the matter on this basis and making
the findings, referred
to, for the following reasons:
7.1.
As set out in paragraphs 4.3 and 4.5 above, in order to invoke the
protection afforded
to it under Rule 30, the Respondent could not
have filed a substantive answer to the summary judgement application
as to do so,
would have constituted a further step and rendered the
Rule 30 application superfluous;
7.2.
The Court thus needed to rule on the Rule 30 and condonation
application first and
had the Court upheld the Rule 30 application
and dismissed the Applicant’s condonation application, there
would, in any event,
have been no need for the Respondent to file an
answer to the Applicant’s summary judgement application. The
summary judgement
application would not have been granted and the
Applicant would have been required to proceed in the normal course;
7.3.
The Court erred in requiring that the Respondent was obliged to file
an answer
to the summary judgement application in the very same
application in which the Court was required to adjudicate upon the
Rule 30
application. Thus, it is respectfully submitted that the
Court erred in conflating the procedural and substantive elements of
the
matter and deciding both in the course of the same hearing;
7.4.
It is submitted that even if the Court was correct in dismissing the
Respondents’
Rule 30 application and granting the Applicant
condonation for the late filing of its summary judgement application,
the Court
should have postponed the hearing of the summary judgement
application and afforded the Respondent an opportunity to then file a
response to the Applicant’s summary judgement application;
7.5.
As set out above, the Respondent could not have filed a response to
the
summary judgement application before the Rule 30 application had
been duly adjudicated upon. The only instance in which she would
have
been required to file an answer to the summary judgement application,
was if there was no Rule 30 application pending and
only the
condonation application to be decided upon;
7.6.
The Court in deciding to rule upon the substantive summary judgement
application in the same hearing as adjudicating upon the Rule 30
application, on the basis that the summary judgement application
was
unopposed, simply ignored its own finding that the Respondent was not
permitted to take a further step by filing an answer
to the summary
judgement application in order to rely on Rule 30;
7.7.
Even if the Court was correct in dismissing the Respondent’s
Rule
30 application, the Court should have postponed the hearing of
the summary judgement application and afforded the Respondent an
opportunity to file an answer to the Applicant’s summary
judgement application, which she then would have been able to do
due
to the fact that the Rule 30 application was no longer pending and
had been dismissed.
8.
It is respectfully submitted, in conclusion, that there is a
reasonable prospect that
another Court will approach the matter on a
different basis and will, on appeal, uphold the Respondent’s
Rule 30 application,
alternatively dismiss the Applicants condonation
application, with the result that the summary judgement application
would not
be granted.
9.
Alternatively, if another Court agrees with this judgement and
dismisses the Respondent’s
Rule 30 application and upholds the
Applicant’s application for condonation, the summary judgement
application should not
have been granted immediately in order to
afford the Respondent an opportunity to respond thereto.
SUBMISSION
BEFORE COURT
10.
The matter was argued before the Court via Microsoft Teams on 25th
February 2021.
SUBMISSIONS
BY MS MARCUS
11.
The arguments which were put forward by Ms Marcus on behalf of the
Respondent/Defendant where as follows;
12.
That Rule 30 was applicable where notice to defend was delivered out
of time which is not confined to
the form.
13.
That Rule 30 was applicable to an instance where an application for
summary judgment was delivered out
of time.
14.
That the respondent/defendant did not oppose the summary judgment
application as this would have amounted
to a further step to advance
the case to completion.
15.
That the respondent/defendant had opposed the application for
condonation as it would have remained
unopposed.
16.
That only Rule 30 and the application for condonation should have
been heard by the Honourable Court
on 27 October 2020.
17.
That the condonation was filed out of time. That the Court erred in
its calculation of the delays in
filing the summary judgment
application at paragraph 29 of the reasons for judgment and that the
period of delay amounts to fifty
two (52) days. This appears at
paragraph 6.8 of the grounds for application for leave to appeal.
18.
The Court took issue with Ms Marcus’s argument regarding the
fact that the Court should have been
confined to only hearing the
Rule 30 and condonation and should not have dealt with the summary
judgment. It was put to Ms Marcus
that it was the discretion of the
Court to deal with the matters as they appeared before the Court. It
was also put to Ms Marcus
that the applicant/plaintiff attorneys had
notified the respondent/defendant by way of written correspondence,
that they intended
to proceed with all the applications including the
summary judgment at the hearing of the matter. It was apparent from
the correspondence
between the two parties that the
plaintiff/applicant intended the applications including the summary
judgment to be dealt with
by the Court on the date of the hearing.
19.
It was also put to Ms Marcus that the discretion of the Court to deal
with the matters as they appeared
before the Court is a decision that
lies solely within the discretion of the Court and thus a litigant
party could not have dictated
to the Court as to the manner in which
the matters before the Court should be dealt with.
20.
Ms Marcus could not make legally sound submissions to rebut the
approach of the Court in exercising
its discretion.
MR
DU PLESSIS’ SUBMISSIONS
21.
Mr Du Plessis in his submissions also emphasised that the Honourable
Court had a discretion to deal
with the matter in the manner in which
it dealt with the matter. He also indicated that the granting of
condonation is within the
discretion of the Court and is therefore
not appealable.
22.
Mr Du Plessis also submitted that the Rule 30 application was filed
out of time. It was supposed to
have been filed on the 7th of
September 2020 but was only filed on the 14th of September 2020.
Accordingly, the Rule 30 application
had lapsed and therefore there
was no proper Rule 30 application before the Court.
23.
Mr Du Plessis indicated that the approach to Rule 30 is a two-step
approach which has to be followed
in terms of the Uniform Rules. The
first step is to file a notice and for the actual application for in
terms of Rule 30 to be
filed within fifteen (15) days after such a
notice has been filed.
24.
Mr Du Plessis also submitted that the respondent/defendant was warned
that the Rule 30 application was
an irregular step, however the
respondent persisted with the Rule 30 notwithstanding the warning
which appeared in the written
correspondence between the attorneys of
the applicant/plaintiff and the respondent/defendant who was
representing herself.
25.
This same issue was also raised by the Honourable Court when it put
this issue to Ms Marcus. However,
her response was that the
applicant/plaintiff could not dictate to the respondent/defendant on
how to approach its case.
26.
Further, it was pointed out by Mr Du Plessis that the
applicant/plaintiff was aware that it had brought
the summary
judgment out of time. However, it cured the lateness of the
application for summary judgment by bringing an application
for
condonation. Mr Du Plessis also indicated that by filing the
answering affidavit to oppose the application for condonation,
the
respondent/defendant has taken a further step which advances the
proceedings once stage nearer to completion. He then supported
his
submission by referring to the commentary in the Uniform Rules which
is to the affect that a party takes a further step in
the course of
filing a declaration, notice of bar, a replication and so forth.
27.
Mr Du Plessis also indicated that at the time of the application in
October 2020 and even at the time
of the hearing of the application
for leave to appeal, the respondent/defendant has no
bona fide
defence to the claim by the applicant/plaintiff. Accordingly, Mr
Du Plessis submitted that no purpose will be served by granting
the
respondents/defendant application for leave to appeal, in
circumstances where the respondent/defendant had no prospects of
success.
28.
Mr Du Plessis referred the Honourable Court to Section 16 (2) (a) and
17 (1) (a) and 17 (1) (c) of the
Superior Court Act. Section 16 (2)
(a) of the Superior Court Act provides as follows;
“
When
at the the hearing of an appeal the issues are of such a nature that
the decision sought will have
no
practical effect or
result, the
appeal may be
dismissed on this ground alone.”
29.
Section 17 (1) (a) provides as follows;
“
Leave
to appeal may only be given where the Judge or Judges concerned are
of
the
opinion that
-
(a)
(i) the appeal will have a reasonable prospect of success;
30.
Section 17 (1) (c) provides as follows;
“
Leave
to appeal may only be given where the Judge or Judges concerned are
of the opinion that where the decision sought to be appealed
does not
dispose of all the issues in the
case,
the
appeal will lead to
a
just and
prompt resolution of the real
issues
between
the parties.”
31.
The Court concurs wholeheartedly with Mr Du Plessis’s
submissions in this matter. It is common
cause that the
respondent/defendant has no
bona fide
defence to the claim for
summary judgment which was brought by the applicant/plaintiff. This
remained the case during the hearing
of the matter in October 2020 as
well as at the time the application for leave to appeal was brought
before the Court on 16th December
2020 and during the hearing of this
application on 25th February 2021.
32.
As stated in Sections 16 (2)(a)(i) which states the following;
“
When
the
hearing
of
an
appeal the issues are
of such
a
nature
that the decision sought will have
no
practical
effect or result, the
appeal
may be
dismissed
on this ground alone.”
33.
It is indeed the case that granting the respondent/defendant leave to
appeal will result in no practical
effect or result and on that basis
alone the application for leave to appeal ought to be dismissed.
34.
It is indeed also the case that if the Court has regard to Section 17
(1) (a) the appeal has no reasonable
prospect of success and also if
regard is had to Section 17(1) (c) the decisions sought to be
appealed does not dispose of all
the issues in the case.
35.
In this case even if leave to appeal was to be granted in terms of
Section 17(1) (c) the issue of the
defendant/respondent not having a
bona fide
defence will still remain. The issue regarding
whether the Court should have granted condonation to the
applicant/plaintiff will
not dispose of the matter finally.
Ultimately, the issue relating to whether the defendant/respondent
has a
bona fide
defence remains the elephant in the room which
will remain unresolved even if the respondent/defendant was to be
granted leave to
appeal.
Conclusion
36.
The application for leave to appeal is accordingly dismissed with
costs.
TD
SENEKE AJ
Acting
Judge of the High
Court
Gauteng
Division, Pretoria
[1]
Application for leave to appeal