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[2021] ZAGPPHC 315
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Absa Bank Limited v Dynamite Screen Printers CC and Another (90223/2019) [2021] ZAGPPHC 315 (13 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
13/5/2021
CASE
NUMBER: 90223/2019
In
the matter between:-
ABSA
BANK
LIMITED
Plaintiff/Applicant
and
DYNAMITE
SCREEN PRINTERS CC
First Defendant/First Respondent
(REG.
NO.: 1992/002001/23)
SAIFUDEEN
MAHOMED JAFFER
Second Defendant/Second Respondent
(ID
NO.: [….])
Delivered.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand
down is deemed to be 10h00 on 13 May
2021.
JUDGMENT
SKOSANA
AJ
[1]
This is an application for summary judgment based on an action
instituted by the plaintiff
against the defendants for the return of
goods as well as an order for the enforcement of the defendants’
remaining obligations
after the goods have been sold. The summons
contained eight different claims.
[2]
The defendant, in its opposing affidavit raised an issue that the
application for
summary judgment had been filed outside the
prescribed period in that, while the defendant’s plea had been
served on 05 June
2020, the application for summary judgment was only
served at the defendant’s physical addresses on 09 September
2020, i.e.
outside the prescribed 15 days in terms of Rule 32(2)(a).
[3]
In regard to this issue of lateness, the plaintiff’s counsel,
Mr Eastes referred
me to two Practice Directives which covered the
relevant period last year, the effect of which was that no one,
including attorneys,
were allowed in the court building for the
purpose of filing documents during that period as a result of the
impact of the COVID-19
pandemic. The Directive also allowed parties
to serve papers on one another through electronic mail.
[4]
In response, counsel for the defendants, Mr Beaton accepted that
there were Directives
issued as stated by plaintiff’s counsel.
It therefore became unnecessary to make any further reference
thereto. However,
he raised an issue that such Directives could not
have ousted the provisions of Rule 4(1)(a)(v) which require service
to be effected
at the physical address of the defendants.
[5]
I am unable to agree with the defendants’ counsel. The Rules
are issued by the
Rules Board and do not constitute substantive law.
They merely regulate the court’s procedure. The Directives were
issued
by the Head of this Division with a view to assist in the
continuance of the court processes under difficult conditions caused
by the pandemic and imposed by virtue of the
Disaster Management Act
57 of 2002
.
[6]
The respondents do not deny that they received the application
through email and therefore
suffered no prejudice. In the
circumstances, it is my view that the application was timeously
served in accordance with the Directives
of this court. If I am wrong
in this regard, I nonetheless apply the inherent powers of this court
to condone such non-compliance.
[7]
As to the merits of the application for summary judgment, the
respondents conceded
to claims 2 to 8. In any event, they had not set
out any defence in regard to those claims in their affidavit opposing
summary
judgment.
[8]
As to claim 1, the plaintiff’s counsel took me through details
of the claim
which is also supported by the certificate of
indebtedness issued in accordance with the parties’ written
agreement. He submitted
that the respondents were unable to even set
out the extent of their indebtedness and/or the payments made and
that such lack of
knowledge does not constitute a defence. Further,
he pointed out portions of annexures to the papers showing that a
number of payments
that the respondents rely on relate to different
accounts from the one in question and that therefore the respondents
alleged defence
was either
mala fide
or unfounded.
[9]
Counsel for the respondents did not dispute the factual predicate
relied upon by the
plaintiff and could not raise any argument
contrary thereto. It follows therefore that the plaintiff has made
out the case.
[10]
In the circumstances, I grant the order as contained in the draft
order which I mark “R”.
DT
SKOSANA (AJ)
Acting
Judge of the High Court
Pretoria
Date
of hearing:
12 May 2021
Date
of judgment:
13 May 2021
Appearance:
For
Applicant:
Adv J Eastes
Instructed by
Delport Van Den Berg Inc.
Summit Place
Office Park
Building 2
221
Garstfontein Road
Menlyn,
Pretoria
For
Respondents:
Adv R Beaton SC
Instructed by
Jaffer Incorporated
577 Carl
Street
Pretoria West,
Pretoria