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[2019] ZALMPPHC 22
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Phasha v Morudi N.O and Others (3046/2018) [2019] ZALMPPHC 22 (7 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 3046/2018
7/5/2019
In
the matter between:
PHOKOANE
FRANS PHASHA
APPLICANT
AND
CHUENE
PHILENOM MORUDI N.O
FIRST RESPONDENT
MMAPHUTI
ELIZABETH MORUDI N.O
SECOND RESPONDENT
PHUTI
MARTINA MORUDI N.O
THIRD RESPONDENT
(IN
THEIR CAPACITY AS TRUSTEES
OF
THE MASEROLE TRUST)
POLOKWANE
CHAS EVERITT 232 (PTY) LTD
FOURTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
applicant who is the respondent in the main application has brought
an application in terms of Rule 27(1) of the Uniform Rules
of Court
(the Rules) for condonation for late filling of his answering
affidavit. The respondents who are the applicants in the
main
application are opposing the applicant’s condonation
application.
[2]
The background facts are that the respondents have instituted an
eviction application against
the applicant. The eviction application
was served on the applicant by the sheriff on the 22
nd
May
2018. In terms of the respondents’ notice of motion, the
applicant was given ten days within which to enter his notice
of
intention to oppose, and thereafter file his answering affidavit
within ten days.
[3]
The applicant has served his notice of intention to oppose on the 8
th
June 2018 and filed it with the Court on the 11
th
June
2018. The applicant served his answering affidavit on the 13
th
of September 2018 without an application for condonation for late
filing of his answering affidavit. The eviction application was
set
down for the 19
th
September 2018. On the 19
th
September 2018 the eviction application was postponed at the request
of the applicant to enable him to file a substantive condonation
application.
[4]
According to the applicant he was served with section 4(2) of Act 19
of 1998 order on the 5
th
June 2018 after he was already
served with the eviction application. The section 4(2) order was
obtained by the respondents on
the 5
th
of June 2018. The
eviction application was initially set down for the 26
th
June 2018. The applicant alleges that he was not served with the
notice of set down notifying him that the eviction application
will
be heard on the 26
th
June 2018. The applicant in his
founding affidavit has stated that he briefed advocate Mokwena to
appear on his behalf on the 26
th
June 2018, and on that
date the matter was removed from the unopposed roll and transferred
to the opposed roll.
[5]
On the 11
th
July 2018 the applicant was served with a
notice of set down notifying him that the eviction application has
been set down to the
opposed roll of the 19
th
September
2018. According to the applicant, he had until the 9
th
July 2018 within which to file his answering affidavit. He briefed
advocate Mokwena on the 2
nd
of July 2018 to draft his
answering affidavit.
[6]
According to the applicant on the 7
th
July 2018 he
collapsed whilst at home after he experienced a throat blockade. He
consulted a medical doctor and was diagnosed with
serious or severe
throat infection. He was advised to stay indoors in order not to
aggravate his condition. The medication that
was prescribed to him
made him to be drowsy or dizzy and he had no strength. He became
better on the 26
th
July 2018, and returned to work on the
27
th
July 2018. No medical certificate to substantiate his
allegations was attached.
[7]
On his return to work he found that the advocate has not yet drafted
his answering affidavit.
The advocate requested him to send him
(advocate) the draft answering affidavit together with the notice of
motion and founding
affidavit for eviction to enable him to settle
the answering affidavit. On the same date he complied with the
advocate’s
request by sending the required documents
electronically. On the 3
rd
August 2018 he did a follow up
with the advocate and was told that he was too busy with other
matters and will attend to his matter
as soon as possible.
[8]
On the 12
th
August 2018 he had a relapse of his illness to
the extent that his voice was eroded. He again consulted a doctor. He
felt better
on the 7
th
September 2018 and when he
contacted the advocate, the answering affidavit was not yet settled
and the advocate told him that he
was too busy with other Court
matters. He then on his own drafted the answering affidavit and have
it served on the respondents’
attorneys on the 13
th
September 2018.
[9]
According to the applicant he is 45 days late in serving his
answering affidavit,
and that the period of lateness is
insignificant. If condonation application is not granted he will be
prejudiced as he will be
evicted without being afforded an
opportunity to be heard. The applicant alleged that he is having
reasonable prospects of success
as he denies entering into the lease
agreement with the first respondent in his capacity as a trustee of
Maserole Trust. He further
alleges that the respondents have no
locus
standi
to institute the eviction application against him in their
representative capacities as trustees of the trust as he had no
relationship
with the trust at all. He further alleges that the
eviction application is premature as the respondents have failed to
notify him
that the lease agreement will be terminated.
[10]
The respondents have served and filed their answering affidavit one
day out of time without an
application for condonation for late
filing of their answering affidavit. Without a substantive
application this Court will
not
mero motu
or from an
application from the bar grant the respondents condonation
application. This court will therefore disregard the respondents
answering affidavit and proceed to determine the application on the
version of the applicant’s founding affidavit.
[11]
The factors which a Court must consider when exercising its
discretion whether to grant condonation
includes the degree of
lateness, explanation for the delay, prospects of success, degree of
non-compliance with the rules, the
importance of the case, the
respondent’s interest in finality of the judgment of the Court
below, the convenience of the
Court and the avoidance of unnecessary
delay in the administration of justice (
See Dengetenge Holdings
(Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
Others;[2013]
2 All SA 251(SCA)
para11)
[12]
In
Uitenhage Transitional Local Council v SA Revenue Services
[2004] (1) SA 292
(SCA) Hefer JA at 297 I-J
said the following:
“…
Condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the cause of the delay and their effects
must be furnished
so as to enable the Court to understand clearly the reasons and to
assess the responsibility. It must be obvious
that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.”
[13]
As per sheriff’s return of service, the applicant was served
with the eviction application
on the 22
nd
May 2018. In
terms of the notice of motion, the applicant was required to notify
the respondent’s attorneys of his intention
to oppose within
ten days from service of the application and thereafter within ten
days having given notice of his intention to
oppose, to file his
answering affidavit.
[14]
The applicant has served his notice of intention to oppose the
respondents’ eviction application
on the 8
th
June
2018. In terms of Rule 6(5) (d) (ii), the applicant had fifteen days
after notifying the respondents of his intention to oppose
within
which to file his answering affidavit. Therefore the applicant had
until the 29
th
June 2018 within which to file his
answering affidavit. If he had to comply with the
dies
as they
appear on the notice of motion, he had until the 22
nd
June
2018.
[15]
It is clear that the ten days notice as stated in the respondents’
notice of motion is
defective. The respondent’s section 4(2)
order was served on the applicant after the eviction application was
already served
on the applicant. The section 4(2) order is normally
obtained before the eviction application is served as the applicant
in that
application will be seeking permission and directions from
the Court on how to serve the eviction application. The question is
whether the two defects can invalidate the respondents’ whole
eviction application.
[16]
The applicant has failed to comply with the ten days notice as stated
on respondents’ notice
of motion, and also the fifteen days as
stated in the rules. The applicant did not show what prejudice he had
suffered as a results
of these two defects. With regard to section
4(2) order, the respondents in my view have rectified the defects by
obtaining the
order after the eviction application was served, and
have that order served on the applicant before the applicant notified
them
of his intention to oppose. Therefore, in my view, at this stage
the two defects are immaterial and have no bearing on determining
whether the applicant’s non-compliance with
dies
of
serving his answering affidavit should be condoned or not.
[17]
The applicant has notified the respondents of his intention to oppose
on the 8
th
June 2018 and served his answering affidavit on
the 13
th
September 2018 way outside the fifteen days as
prescribed by Rule 6(5) (d) (ii). The applicant is a practicing
attorney who appears
in this Court more often. For a person of his
calibre to be out of time for such a period of time in my view is
excessive. I therefore
disagree with him when he submitted that the
period of lateness is insignificant.
[18]
According to the applicant he had until the 9
th
July 2018
to deliver his answering affidavit as per the notice of motion. The
notice of motion that was served on him on the 22
nd
May
2018 was giving him ten days notice within which to file his notice
of intention to oppose and a further ten days within which
to file
his answering affidavit. Ten days notice from the date of service of
his notice of intention to oppose as I have already
pointed out
above, was expiring on the 22
nd
June 2018, and if he had
to comply in terms of the rules, he was required to serve and file
his answering affidavit by the 29
th
June 2018.
[19]
The respondents section 4(2) order which was served on the applicant
on the 5
th
June 2018 had the 26
th
June 2018 as
the date on which the eviction application will be heard. The
applicant in paragraph 4.2 of his founding affidavit
states that
after he became aware that the proceeding of the 26
th
June
2018 was for the eviction application, he timeously briefed his
advocate to prepare his answering affidavit. However he does
not
state when he became aware. This also contradict his paragraph 3.3 of
his founding affidavit wherein he stated that the respondents
have
instituted the eviction proceedings against him on the 18
th
May 2018. He does not explain what prevented him to file his
answering affidavit within fifteen days from the 8
th
June
2018.
[20]
The applicant further alleged that on the 7
th
July 2018 he
collapsed due to a medical condition wherein the doctor advised him
to stay indoors to enable him to recover. That
forced him to be at
home until the 26
th
July 2018. However, no medical
certificate was attached to substantiate his claim. He further
alleges that he had a relapse of
the same medical condition on the
12
th
August 2018 where this time it was worse as his voice
had eroded. He had to consult a doctor and he stayed at home until
the 7
th
September 2018. Again no medical certificate was
attached to substantiate his claim.
[21]
In my view, the applicant has failed to explain in detail as to what
has caused him the delay
in filing his answering affidavit. There are
some serious deficiencies in his explanation for the delay. In my
view, his explanation
for the delay is inadequate.
[22]
With regard to prospects of success, from his founding affidavit, he
does not dispute being indebted
to the respondent and that he is in
arrears with his rental payments. He merely stated that he did not
enter into the lease agreement
with the first respondent in his
capacity as a trustee of Maserole Trust. During argument the court
enquired from the applicant
whether the reasons for non-payments of
the monthly rentals was as a result that he did not know where to pay
and he said no. In
other words he knew where to pay but simply
elected not to pay. He had not being paying his rentals since 2017
and he is just staying
in that property for free. In his founding
affidavit he had stated that he had already made arrangements to
liquidate the arrears
but has failed to give the full details of such
arrangements or to attach proof of such arrangements. In my view, the
applicant
has no prospects of success in the main application and his
intention is to delay the respondents from obtaining judgment against
him.
[23]
The applicant when he served his answering affidavit on the 13
September 2018, and as a legal
practitioner was well aware that he
was out of time in filing his answering affidavit. Despite that he
failed to timeously apply
for condonation for late filing of his
answering affidavit but waited until the 19
th
September
2018 when he appeared in Court and the matter had to be postponed at
his request to enable him to bring a substantive
condonation
application for late delivery of his answering affidavit. Even though
he was ordered to pay costs on a punitive scale,
he is deliberately
causing delay in the finalisation of this matter. Therefore, in my
view the applicant’s degree of non-compliance
with the rules is
grave and is one that the court will not condone.
[24]
It follows that the only appropriate order in the circumstances, is
the one dismissing the application
for condonation of the late filing
of his answering affidavit.
[25]
The following order is made
25.1 The application for
condonation is dismissed.
25.2 There is no order as
to costs.
MF KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT
: PF Phasha
INSTRUCTED BY
: Phokoane Phasha Attorneys
COUNSEL FOR
1
ST,
2ND
&
3
RD
RESPONDENTS : J Moolman
INSTRUCTED BY
:
Prutt Luyt & De Lange
DATE OF HEARING
:
14 MARCH 2019
DATE OF JUDGEMENT
:
7
th
May 2019