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[2021] ZANCHC 49
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Bozwana v Tshenolo Resources (2324 / 2017) [2021] ZANCHC 49 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2324 / 2017
Heard:
27 / 08 / 2021
Delivered:
03 / 09 / 2021
Reportable: YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrate: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
BENEDICT
BOZWANA
Applicant
and
TSHENOLO
RESOURCES
Respondent
JUDGMENT
Moses
AJ
INTRODUCTION
1.
This is an application launched by the Applicant on or about
19 February 2021. Firstly for urgent lnterdictory relief, seemingly
to interdict the Sheriff from attaching his property pursuant to a
writ of execution following an Order by this Court, dated 12
October
2020, under Case No: 2324/17, against the Applicant, in the following
terms:
"It
is
ordered:
1.
Return of the Plaintiff's 2010 M 63 AMG Mercedes-Benz motor
vehicle;
2.
Payment of R325,500.00;
3.
Interest on the said amount of 10,25
%
from date of
summons until date
of payment;
4.
Costs of suit.
5.
Prayer
3
of
the
Particulars
of
Claim
is
postponed
sine
die,
pending
compliance with orders 1 and 2 above."
2.
Secondly there is another application which was also launched
on or about 18 February 2021, for hearing in this court on 5 March
2021, with the heading: "Application for Rescission of Judgment"
wherein the following relief is/was sought:
"i.
That condonation be granted for the late filing of this application.
ii.
That the judgment and order granted by the Honourable Court
in case
number 2324/17 on the 16th of OCTOBER 2020, be
rescinded;
iii.
That the execution of the warrant of attachment issued
under the above
case number be stayed pending the finalization
of this application.
iv.
No costs in the application.
v.
Further and/or alternative relief"
3.
The Respondent, who is/was the Plaintiff in the matter and in
whose
favour the above stated judgment was granted by this Court on 12
October 2020 duly gave notice of its intention to oppose
the
application(s) and the relief sought by/on behalf of the Applicant,
on mainly three grounds:'
3.1.
The first two
in limine
grounds namely 1: That the
Applicant is/was precluded in terms of the provisions of section 133
of the Company's Act, 2008, to institute
these proceedings against
the Respondent, it being under business rescue, by virtue of the fact
that it firstly does/ did not have
the consent of the business
practitioner to institute these proceedings against it, and secondly
that it did not have the authorisation
of the Court to institute
these proceedings;
3.2.
The second ground is that the Applicant did not bring a
substantive application under its own case number, but under the same
case
number as the original/main case number 2324/17, and therefore
as an interlocutory application, which renders the application
fatally
defective;
3.3.
The third ground is that the Applicant did not show and/or
establish a
bona fide
Defence to the claims of the
Respondent/Plaintiff, wherefore that order/Judgment dated 12 October
2020 cannot, and ought not to
be, rescinded by this Court.
4.
The Applicant's case, with regards to Condonation is, as I understand
it from the papers, as follows:
4.1.
That he is a lay person;
4.2.
That his erstwhile attorney of record withdrew as a result of
a lack of financial instructions;
4.3.
That that attorney never informed and/or advised him about the
various requests and the need to attend to, the required Pre-trial
meetings in respect of the action under case number 2324/17, nor that
the matter was to be heard on 12 October 2020;
4.4.
That the said Court Order/Judgment was granted in his absence,
although, on his own version, he was apparently at Court on the day,
yet he was never afforded an opportunity to state his case; and
4.5.
That he has a bona fide defence to the claim(s) of the then
Plaintiff, now the Respondent herein.
5.
With regards to the merits of his application for rescission
he
alleged essentially in his founding papers, that:
5.1.
His deceased brother, who was the founder of this Respondent
company, borrowed money from him and hence owed him money to the tune
of approximately R5 million, in his life time;
5.2.
As a result
thereof, his late brother pledged the Mercedes-Benz vehicle, the
subject matter of the writ of execution, dated 4 November
2020
[1]
to him, and hence that he has a valid title to the said vehicle;
5.3.
That the movable property in his residential premises, which
is the bulk of the furniture therein, belonged to his "estranged
wife" and
5.4.
That he has lodged a claim against the estate of his deceased
brother for the said money which he lent and advanced to the deceased
brother in/during the latter's lifetime.
6.
In his replying papers he
expanded upon this loan to his deceased brother, alleging essentially
that inasmuch as the said deceased
brother was the founder and
shareholder of the Respondent company, this company owes him
that money, hence he has
a valid counterclaim against the said Respondent company for that
money, of approximately R5 million. According
to a document
annexed as annexure
'B'
[2]
the alleged amount is
R5,453,333.50. This document is dated "2016/02/25" and is
addressed to one "Oliver Baipone
Morare".
7.
He also alleges that this counterclaim, being a set-off against
the
claim(s) that the Respondent company has against him, falls within
the exceptions of section 133(1)(a) to (f) of the Company's
Act,
2008, (No 71 of 2008) and hence he is/was not precluded from bringing
this application against the Respondent.
Evaluation
and Assessment
8.
I shall first deal with the case history of this matter. As
stated
above, on 12 October 2020, there was a Court order by Chwaro AJ,
under case number 2324/17, dated 12 October 2020, wherein
Tshenolo
Resources (Pty) Ltd was the Plaintiff and Benedict Bozwana was the
Defendant (the Applicant herein). The order that was
made is set out
in paragraph 1 above.
9.
A "Notice of Motion" dated and signed ("pp")
19
February 2021 under case number 2324/17, was filed wherein Benedict
Bozwana is cited as Applicant, and Tshenolo Resources (Pty)
Ltd as
Respondent, giving notice of his intention to make application to
this Court on 19 February 2021, for the following:
"1.
That the application be heard on Urgent
basis
Rule 6(12);
2.
That the Respondent be interdicted from executing the
warrant of execution under
case
number 2324/17 and dated 3
November 2020 pending finalisation of application of rescission of
judgment to be heard
by the Kimberley
High Court on 5
March 2021.
3.
Cost
of the application.
4.
Further/alternative relief"
Herein
the Applicant also states that, and refers to, an application for
rescission of judgment, which has been lodged with this
Court on
"..
.yesterday 18th February 2021."
He
also refers to, and annexed, the warrant of execution annexed as
"Annexure D" date stamped 4 November 2020.
10.
It appears from this warrant also that the Sheriff is directed to
attach the
Mercedes-benz vehicle. It is not clear from this writ when
and if it was served on the Defendant. As it turned out and based on
the submissions made by the Applicant's counsel in court on date of
hearing, it was indeed served on the Applicant in November
2020,
since this was what made him become aware of this judgment. I return
to this later.
11.
It is also not clear wat happened with this "urgent
application."
During his oral submissions in court, Mr Jacobs,
who appeared on behalf of the Applicant, stated, upon enquiry from
this Court,
that this application has been abandoned.
12.
There is also an "Application for Rescission of Judgment"
date stamped
18 February 2021, giving notice of such application to
be brought on 5 March 2021, for the relief as set out in paragraph 2
above.
13.
A Notice of Intention to Oppose was subsequently filed by Tshenolo
Resources
(Pty) Ltd, the Respondent, dated, signed and served on 24
February 2021.
14.
This was followed by a Court Order by Eillert AJ on 5 March 2021,
wherein, by
agreement, the following order was made:
"1.
Matter postponed to 23 April 2021.
2.
Respondent
is
directed
to
file
its
answering
affidavit
on
or
before
26
March 2021.
3.
The Applicant must file its replying affidavit, if any, on
or before 16 April
2021.
4.
Costs
to be
costs
in the application."
15.
Then, around 30 March 2021, GQADUSHE ATTORNEYS - the Applicant's
Attorney of
record at the time, filed a
"Notice of Withdrawal
as
Defendant's/Applicant's attorneys ("Correspondent
Attorney")",
dated and signed 26 March 2021, which was
served on the Respondent and received by it on 30 March 2021 at
11h25. It was also sent
to the Applicant's/Defendant's address at 10
Hugo Street, Monument Heights, Kimberley,
"Per registered
mail."
16.
On 1 April 2021, the
Respondent filed its answering affidavit, which is dated and signed
26 March 2021, and was served on Applicant's
then still attorney,
Gqadushe Attorneys, on 31/03/2021 at 14h32, and received by them.
This was therefore late, and not in accordance
with Eillert AJ's
Court Order of 5 March 2021
[3]
,
directing to file it
"on or before 26
March 2021."
17.
It is clear however that the Applicant also did not file and/or serve
any replying
affidavit, in accordance with paragraph 3 of the
above-stated Court Order, which should have been filed
"on or
before
16 April 2021".
18.
On 23 April 2021 there was a Court Order by Lever AJ, dated and
signed 23/4/2021,
ordering, by agreement between parties, that:
"1.
Matter
is
postponed to the Opposed Roll to 27 August 2021;
2.
Respondent's
having
filed
its
Answering
Affidavit
already
(as
above
stated on or
about 1 April 2021).
3.
The
Applicant
MUST
[4]
file
its replying
Affidavit
on or
before
7
May
2021.
(This
was NOT done. They only filed it on 19 August 2021).
4.
The Applicant's Heads
of Argument
MUST
[5]
be filed on or before
28 May 2021.
(This
was also NOT done, it having been filed, also on 19 August
2021).
5.
Respondent's Heads of
Arguments
MUST
[6]
be filed on or before
18 June 2021.
(This
was complied with as the Respondents filed their heads of Argument on
14 June 2021).
6.
Costs
to
be costs in the application."
[7]
Ad
Condonation
19.
The first hurdle for the Applicant to overcome is whether or not
there was/is
compliance with the requirements of Rule 27 of the Rules
of Court, and thus whether the reasons he advanced as above stated
are
sufficient to establish good cause for this Court to overlook
and/or condone his delay of approximately four (4) months in bringing
this application for rescission of the judgment of Chwaro AJ dated 12
October 202. He was required to bring it within 20 days of
date of
that judgment and/or of acquiring knowledge thereof, which he failed
to do.
20.
In terms of Rule 27(1), the Court
20.1.
"may upon application on Notice"; and
20.2.
"On good cause shown,... grant condonation";
20.3.
"upon such terms as to it seems meet."
The
Court is therefore vested with a discretion whether or not to grant
condonation, to be exercised judicially, taking into account
the
relevant facts and circumstances of the particular case.
21.
It is trite that the
enquiry of such an application entails two (2) principal
requirements
[8]
:
21.1.
First, the
Applicant
is
to file an affidavit, SATISFACTORILY explaining
the
DELAY
[9]
.
In
such an affidavit, the following must be shown to exist:
a.
The
defendant/Applicant must at least furnish an explanation of the
default sufficiently full
to enable the court to understand how it really came about, and to
assess his conduct and motives. The
longer the delay the more
difficult it becomes to be granted such an indulgence. The general
rule in such cases is that the applicant
for such indulgence should
pay all such costs as can reasonably be said to be wasted because of
the application, such costs to
include the costs of such opposition
as it is in the circumstances reasonable, and if it is not vexatious
or frivolous
[10]
".
b.
The applicant must show good cause - i.e. there must not have
been a reckless or intentional disregard of the rules, or the court
is convinced that the applicant does not seriously intend to proceed.
c.
The application
must be BONA FIDE, and not made with the
intentions
of delaying the opposite party's claim.
[11]
21.2.
The second
requirement is that the Applicant must SATISFY the court on oath that
he/she has a BONA
FIDE
DEFENCE,
or
that his/her action is clearly not ill-founded i.e. set out facts,
which, if proved, would constitute a defence.
[12]
21.3.
A third requirement, sometimes, is that the grant of the
indulgence sought must not prejudice the plaintiff in any way that
cannot
be compensated for by a suitable order as to postponement and
costs.
21.4.
There may also be
an interdependence of, on the one hand the reasons
for
the extent of the omissions, and, on the other hand, the merits of
the
case.
[13]
22.
It is strange, yet noteworthy that according to the Applicant he was
indeed
at Court on the day the matter was enrolled, and the judgment
ultimately obtained and granted, yet he was not afforded an
opportunity
to state his case. If indeed he was at Court, as he
alleges, that fact should have, and could have been brought to the
attention
of the presiding judicial officer, Chwaro AJ, at the time,
which clearly did not happen. Moreover, nothing prevented the
Applicant
on his own version from making enquiries at Court, on the
day and/or to bring his attendance to the attention of the presiding
judicial officer at all relevant times. This, inexplicably, he
clearly did not do.
23.
Moreover, from the
affidavit
of
an attorney,
Ms
Motshidi Veronica Galane
[14]
,who
is an officer of the Court, it is abundantly clear that the
Applicant's attorney of record at the time had been notified on
numerous occasions by way of invitations and/or emails and/or notices
regarding convening pre-trial conferences is that matter,
which were
at all relevant times received and acknowledged by the said attorney,
but which were also never honoured. It is and
remains inexplicable
how and why such information was not brought to the
attention of the
Applicant -
then
the Defendant in that matter.
24.
It must also be pointed out that, in this application the court order
by Lever
AJ, as he then was, dated 24 April 2021 stipulated clear
time-lines for the filing of certain papers, and postponing the
application
until 27 August 2021, which order was made by agreement
between the parties. In terms of that Order, the Applicant was
required
to file its Replying Affidavit on or before 7 May 2021, and
his Heads of Argument on or before 28 May 2021. The Applicant only
filed both set of papers, and as late as a week before the hearing
date, 19 August 2021. No explanation is/was given for such late
filing, in violation of an Order of Court. No Condonation was applied
for such late filing. This alone demonstrates, to my mind,
a total
disregard for the Rules and process of court, and indeed Orders of
Court.
25.
The reasons advanced by and on behalf of the Applicant for his
extremely late
application for the rescission of the judgment of
Chwaro AJ dated 12 October 2020, fall far short of the requirements
referred
to and set out above. The application is not bona fide and
no good cause had been shown for this Court to grant condonation for
the late filing and bringing of this Application.
26.
The Application therefore falls to be dismissed with costs. In the
circumstances
it is not necessary to deal with the
in limine
points of the Respondent.
27.
I point out further that even if the application was successful in
crossing
this first hurdle (of condonation), no bona fide defence had
been demonstrated to the claim of the Respondent justifying the
rescission
of the judgment of Chwaro AJ dated 12 October 2020.
28.
On his own papers, the
Applicant relies on an alleged indebtedness of his deceased brother
to him, and based on that, he claims
to have some claim, according to
him, a counter-claim, against the Respondent. This was not pleaded
and/or prayed for in any application
before this Court.
[15]
29.
On his own version, if true, he had lodged a claim against the estate
of his
late brother. On his own version therefore no claim can lie
against the Respondent. If reliance is/was placed on the afore-stated
document, annexure 'B', such reliance is misplaced, because
ex
facie
that document, there is no
nexus
at all between the
Applicant and the Respondent, which shows any liability and/or
indebtedness by the Respondent to the Applicant
herein.
30.
In the circumstances, the following order is hereby made:
1.
The Application is dismissed with costs.
JJ
MOSES
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv. A. Jacobs
Instructed
by:
Magoma Attorneys
For
the Respondent:
Adv. L.K. van der Merwe
Instructed
by:
Roux Welgemoed & Du Plooy Attorneys
[1]
Annexure D, Record p. 20 - 21
[2]
Record p. 16
[3]
Para 2 thereof
[4]
Emphasis added
[5]
Emphasis added
[6]
Emphasis added
[7]
Emphasis, and inserts in brackets added
[8]
See generally, Erasmus B1-171
[9]
My emphasis
[10]
Myers v Abrahamson
1951 (3) SA 438
(C) at 455 G; Erasmus B1-173
[11]
My emphasis
[12]
My emphasis
[13]
Erasmus, supra B1-171
[14]
Annexure W1, record p37 - 44
[15]
See the Applicant's Prayers in both his "Notice of Motion"
dated and signed 19 February 2020, and his 'Application
for
Rescission of Judgment" date stamped 18 February 2021 which was
set down for hearing on 5 March 2021.