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2021
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[2021] ZAGPPHC 462
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Dey Street Properties (Pty) Ltd v Salentias Travel and Hospitality CC (25461/21) [2021] ZAGPPHC 462 (15 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
: 25461/21
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
Date
:
15 July 2021
In
the matter between:
DEY
STREET PROPERTIES (PTY) LTD
APPLICANT
And
SALENTIAS
TRAVEL AND HOSPITALITY CC
RESPONDENT
T/A
VAN HOBS DRY CLEANERS
JUDGMENT
Van
der Schyff J
Introduction
[1]
The application was
enrolled to be heard in the urgent motion court on 13 July 2021. The
applicant filed a notice of removal from
the urgent roll, on 9 July
2021. It is indicated in the notice of removal that the applicant
would set the matter down on the urgent
roll on 20 July 2021. The
respondent vehemently opposed the removal of the matter from the roll
and insisted that the matter be
argued before the court. For reasons
elucidated below, I ordered that the matter be removed from the roll.
I reserved judgment
regarding the appropriate costs order.
Background
[1]
The merits of the
application are of no concern in determining an appropriate costs
order. The applicant issued its notice of motion
on 24 May 2021, and
the papers were served on the respondent on the same day. The
respondent was called upon to file its intention
to oppose the
application within 5 days of receipt of the notice of motion and the
answering affidavit within 15 days thereafter.
The respondent’s
notice of intention to oppose is dated 1 June 2021. It was emailed to
the applicant and served on 8 June
2021. The respondent avers that
its answering affidavit was delivered to the applicant on 28 June
2021. The applicant states that
the respondent’s answering
affidavit was delivered on 6 July 2021. The answering affidavit filed
on the electronic CaseLine’s
file was only commissioned on 6
July 2021. The respondent evidently considers the emailing of an
unsigned copy of the answering
affidavit as the delivery thereof. It
is common cause that the answering affidavit with annexures exceeds
300 pages. After receiving
this voluminous answering affidavit, the
applicant unilaterally served the notice of removal from the urgent
roll, on 9 July 2021.
During argument applicant’s counsel
persisted that the matter was not before the court.
[2]
The applicant submitted
that it justifiably removed the matter from the roll of the urgent
court. The applicant was entitled to
reply to the answering
affidavit. It afforded the respondent the benefit of the time periods
prescribed in Rule 6(5) and was entitled
to sufficient time to
prepare its replying affidavit. After the late filing of the
answering affidavit, the applicant was afforded
one and a half court
days, or at most two and a half days according to the respondent, to
file a replying affidavit. The delay
was solely attributed to the
late filing of the respondent’s answering affidavit. This
resulted in the matter not being ripe
for hearing by 12h00 on the
Thursday preceding 13 July 2021. The applicant subsequently served a
notice of removal as it was, in
its view, the appropriate and
sensible course of action in the circumstances. The applicant seeks
that the respondent is ordered
to carry the wasted costs occasioned
by the objection to the removal on a punitive scale.
[3]
Counsel for the
respondent submitted that the respondent did not consent to remove
the matter from the roll. The respondent sought
that the matter be
dealt with on 13 July 2021 by either striking the application from
the roll or dismissing it. Counsel submitted
that the avenues open to
the applicant were either to withdraw the application and reissue, or
to object to the late filing of
the answering affidavit and to seek
that such late filing not be condoned, or to approach the court with
a request to postpone
the application. It was, however, not entitled
to remove the matter from the roll unilaterally. Counsel referred the
court to
Jojwana v
Regional Court Magistrate and Another
2019 (6) SA 524
(ECM), and
RNS
Investments and Another v Mathole
2018 JDR 1537 (GP) as authority for its submissions. Applicant’s
counsel submitted that these cases were distinguishable
from the
current matter in that
Jojwana
deals with Rule 31 of the Magistrate’s Courts’ rules. In
RNS Investment
,
the respondent filed a notice of removal from the roll. Counsel
contended that the applicant as
dominus
litis
was entitled
to remove the matter from the roll to enrol it again on the roll, of
the urgent court in the following week.
[4]
I agree with the
applicant that it is inconceivable that the respondent could expect
it to file a replying affidavit in the two
and a half days before the
roll closed after the respondent was not only provided with
sufficient time to file its answering affidavit
but then filed its
answering affidavit late. However, I have to agree with the
respondent that the applicant was not entitled to
remove the matter
from the roll unilaterally. The way in which the notice of removal is
phrased is indicative that the applicant
does not intend to withdraw
the application but to effectively postpone it.
Jojwana
might have Rule 31 as its subject matter, but the same reasoning can
be applied to Rule 41 of the Uniform Rules of Court. Rule
41(3)
provides that:
‘
If
in any proceedings a settlement or an agreement to postpone or
withdraw is reached, it shall be the duty of the attorney for
the
plaintiff or applicant immediately to inform the registrar
accordingly.’
[5]
Rule 41(3) provides for
postponement by agreement. By providing for postponement by
agreement, it is implied that a party cannot
unilaterally postpone a
matter. Where the opposing party’s consent cannot be obtained,
it is left to the court to decide
whether a matter will, on
application, be postponed. The same logic applies to removal after a
matter has been enrolled for hearing.
An applicant as
dominus
litis
is bound to
the date determined by it, in the notice of motion, for the matter to
be heard.
[6]
This is, however, not
the end of the inquiry relating to which party is to be held liable
for the wasted costs. Both parties are
in the wrong - the applicant
for unilaterally removing the matter from the roll, and the
respondent for insisting on arguing the
matter despite the late
filing of the answering affidavit being at the root of the
applicant’s decision to remove, amidst
circumstances where the
respondent had more than ample time to deliver its answering
affidavit. As the applicant correctly stated,
there is no cogent
reason for insisting on the enrolment and hearing of the application
this week. Except for the interest in finalising
the litigation,
respondent’s counsel could not indicate how the respondent
would be prejudiced if the matter was removed,
less so if the
respondent agreed to the removal. It is evident that the relationship
between the parties is, to say the least,
acrimonious. It might be
that the respondent’s legal representative received
instructions to oppose the removal of the application.
It might be
that the acrimony spilled over to strain the relationship between the
parties’ respective legal representatives.
Be that as it may,
the urgent court is not the playing field for a cat-and-mouse game
between litigants. Even if the respondent
regarded the applicant’s
unilateral removal of the matter from the roll as an irregular step,
and took issue with the arrogance
inherent to such a step, it should
have realised objectively that the applicant would in all
probabilities succeed with an application
for removal since the
matter was not ripe for hearing and the applicant gave notice of a
future date on which the matter would
be set down for hearing. If the
applicant issued the application and provided the respondent with a
very short timeframe to oppose
and answer, or if the answering
affidavit was file timeously, the outcome would have been different.
Every matter is decided on
its own facts.
Order
In
the result, the following order is granted:
1.
The matter is removed
from the roll.
2.
The respondent is
ordered to pay the wasted costs.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
This judgement is handed down
electronically by uploading it to the electronic file of this matter
on CaseLines. As a courtesy gesture,
it will be sent to the
parties/their legal representatives by email. The date for hand-down
is deemed to be 15 July 2021.
Counsel
for the applicant:
Adv. A W Pullinger
Instructed
by:
Millers Attorneys
Counsel
for the respondent:
Adv. J A Venter
Instructed
by:
Rudman and Associates Inc.
Date
of the hearing:
13 July 2021
Date
of judgment:
15 July 2021