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[2019] ZALMPPHC 31
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Magadagela v Frans Geldenhys Prokukeurs (HCA24/2017) [2019] ZALMPPHC 31 (20 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: HCA24/2017
In
the matter between:
AZWIHANGWISI
PATRICK MAGADAGELA
APPELLANT
And
FRANS
GELDENHYS PROKUKEURS
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The appellant Mr. Azwihangwisi Patrick Magadagela was the client of
the respondent who is a practicing
attorney. The appellant has given
the respondent instructions to institute a legal action against
sheriff of the lower court Soutpansberg
district Louis Trichardt. The
parties had an agreement on how the respondent’s professional
fees will be paid.
[2]
The respondent proceeded to issue summons against the sheriff. The
sheriff defended the appellant’s
action. The appellant was not
successful with his action against the sheriff. According to the
respondent, appellant failed to
honour his agreement of paying him
his full fees. That resulted in the respondent issuing summons in the
magistrate court against
the appellant claiming an amount of R85
000-00 for arrear instalment from 20
th
October 2008 to date of issue of summons.
[3]
The summons was duly served on the appellant. Upon receipt of the
summons the appellant wrote a letter
to the respondent requesting a
breakdown of how he arrived at the amount of R85 000-00. The
respondent did not respond to his request.
On the 2
nd
June 2010 the respondent proceeded to obtain a default judgment
against the appellant for the full amount claimed.
[4]
The respondent issued a warrant of execution of which on the 14
th
December 2010 he received a
nulla
bona
return. The appellant alleges that he became aware of the default
judgment on the 20
th
January 2015 when he consulted his present attorneys. The respondent
alleges that he wrote a letter to the appellant on the 7
th
February 2014 notifying him of the default order and
nulla
bona
return. The respondent contends that the appellant became aware of
the default order on the 14
th
December 2010 alternatively on the 7
th
February 2014.
[5]
On the 2
nd
February 2015, the appellant launched an application for rescission
of the default judgment obtained by the respondent. The respondent
opposed the appellant’s application for rescission of judgment.
On receipt of the respondent’s answering affidavit,
the
appellant filed his replying affidavit together with an application
for leave to supplement his founding affidavit. The respondent
filed
a notice of application to strike out certain paragraphs in the
appellant’s replying affidavit. The respondent further
filed
two notices in terms of Rule 60A (2) (b) and Rule 60A (1) read with
Rule 60A (2) (c) of the Magistrate’s Courts Rules
of Court (the
Rules).
[6]
All the applications were set down to be heard on the same date. On
the date of hearing of the applications,
the respondent raised a
point
in
limine
from the bar in terms of Rule 29(4) of the Rules applying that the
appellant’s application for rescission of default judgment
be
dismissed on the basis that no application for condonation for the
late filing of the application for rescission was made by
the
appellant.
[7]
The presiding magistrate upheld the respondent’s point
in
limine
and dismissed the appellant’s application for rescission. It is
this order that the appellant is appealing against. After
the
appellant has launched his appeal, he failed to prosecute it within
the prescribed time limits, and that resulted in his appeal
lapsing.
The appellant has filed a detailed application for re-instatement of
the appeal in terms of Rule 51(a) of the Rules. The
respondent did
not oppose that application.
[8]
It is trite that the factors to be considered in an application for
condonation for failure to comply
with the time frames specified in
the rules are the degree of lateness, explanation for the delay, the
degree of transgression
of the rules concerned and prospects of
success. The appellant in my view has adequately dealt with all the
factors and his failure
to prosecute the appeal within the prescribed
time period is condoned. The appellant’s appeal is accordingly
reinstated.
[9]
The appellant in the supplementary affidavit which he is seeking the
leave of the court to file is introducing
new grounds for rescission
of default judgment which were not raised in his founding affidavit.
In
Milne NO v Fabric House (Pty) Ltd
1957 (3) SA 63
(N
) at 64
H 65A Holmes J said:
“…
the
court has discretion, in a proper case to admit further affidavits.
Various attempts have been made to formulate some rule,
or to define
the circumstances in which such affidavits will be permitted. Some
decisions speak of “exceptional circumstances”.
Others
speak of “substantial grounds” – as to which see
Civil Practice of the Superior Courts by Herbstein and
Van Winsen
page 459. In my view it is neither necessary nor desirable to say
more than the court has a discretion, to be exercised
judicially upon
a consideration of the facts of each case, and that basically it is a
question of fairness to both parties.”
[10].
Fairness to both parties is a key factor to be determined in
permitting further affidavits to be filed. The appellant had
at no
stage abandoned his application for leave to file a supplementary
affidavit. In his supplementary affidavit he was seeking
to introduce
new evidence which might have had a bearing on the whole application
in that one of the ground for rescission was
that the default
judgment was
void
ab
origine
.
The appellant was now relying on section 36(1)(b) of Magistrate Court
Act 32 of 1944. It is trite that for rescission of judgment
based on
section 36 of the Magistrate Court Act, the applicant has a period of
one year within which to bring the application from
the date he /she
became aware of judgment or order.
[11]
The court
a
quo
was therefore duty bound to first determine whether the supplementary
affidavit was relevant to the proceedings, and also be satisfied
that
no prejudice is caused by the filing of the supplementary affidavit
which cannot be remedied by an appropriate cost order.
In my view,
the court
a
quo
erred in hearing the respondent’s point
in
limine
without first determining the appellant’s application for leave
to file a supplementary affidavit to his founding affidavit.
On this
point alone the appellant’s appeal stands to succeed.
[12]
The respondent has filed an application to struck out some of the
paragraphs in the appellant’s replying affidavit.
In terms of
Rule 19(2) of the Rules, where any pleadings contain averments which
are scandalous, vexatious, or irrelevant, the
opposite party may
within the period allowed for filing any subsequent pleading, apply
for the striking out of the matter aforesaid,
and may set such
application down for hearing in terms of Rule 55(1).
[13]
From the reading of Rule 19(2) it is the court that must make an
order for the striking out of any portion of the pleadings.
Herbstein
& Van Winsen
The
Civil Practice of the High Courts of South fifth edition
at page 657 state that an application to strike out matter from an
affidavit should not be brought as a separate interlocutory
application prior to the hearing, but should be brought as a
preliminary application at the hearing of the main application.
[14]
The respondent has at no stage withdrew or abandoned his application
to struck out portion of the appellant’s
affidavit. His
application should therefore have being heard
before the rescission application since the
respondent was attacking the very same papers upon which the
rescission application was based. Therefore, in
my view the court
a
quo
erred in hearing the respondent’s point
in
limine
before the adjudication the application to struck out. On this
point also, the appeal stands to
succeed.
[15]
The respondent has also served the appellant with notices in terms of
Rule 60A (2) (b) and Rule 60A
(1) read with Rule 60A (2) (c).
Rule 60A is identical to Rule 30 of the Uniform
Rules of Court. These rules
regulate
irregular or improper step proceedings. The appellant contends that
the irregular step
process must be finalized by the court and if a
step is found to be irregular, no other process may be embarked on
prior
to compliance with the court order.
[16] Rule
60A (1) provides as follows:
“
(1)
A party to a cause in which an irregular step has been taken by any
other party may
apply to court to set it aside.”
[17]
In
Zoutendijk
v Zoutendijk
1975 (3) SA 490
(T)
it
was held that Rule 30 (1) of the Uniform Rules of Court
was intended to deal with a situation
where a
party has taken a further step in the cause and
thereafter seeks to make application
to set aside an irregular or
improper step. In
Market
Dynamics (Pty) Ltd v Groger
1984 (1) SA 152
(W)
it
was held that an irregular or improper step can be said to be
some act which advances the proceedings one stage nearer
completion.
[18]
In terms Rule 60A (2) (b) the opponent must be given 10 days notice
to remove the cause of complaint. Should
the opponent fail to
comply with the notice, the party who served the notice
is required in terms of Rule 60A
(2) (c) to deliver an
application within 15 days after the expiry of the 10 days
notice. Rule 60A (3) provides that after
the court has heard the
application and it is of the opinion that the proceedings or step is
irregular or improper,
it may set it aside in whole or in
part, and grant leave to amend or make any such order as
it deems fit. Rule 60A
(4) provides
that if the court makes an order in terms of Rule 60A (3), the
affected party
shall not take any further step in cause until that order has
been complied
with. The only further step the party may take is to apply
for an extension of time
to comply with such order.
[19]
It is clear that once a party embarks on the procedure in terms of
Rule 60A, the affected party must be afforded
an opportunity to
remove the cause of complaint. Failure to remove the cause of
complaint will result with the other party bringing
an application
in terms of Rule 60A (2) (c) for the necessary relief. In my
view, a Rule 60A process is a procedure
which is
available to any party who wishes to weed out unnecessary
issues in the in the opponent’s papers so that
the real issues
can be adjudicated upon.
[20]
The respondent did not at any stage withdraw or abandon his Rule 60A
notices. The appellant was also not
afforded an opportunity to
argue whether the respondent’s notices had merit or not. Rule
60A has its own remedy for
failure by the opponent to comply
with the complaint
raised by the other party.
That remedy must be fully utilized.
Therefore, in my view, the court
a
quo
erred
in hearing the respondent point
in
limine
before
the procedure provided for in Rule 60A was exhausted. On
this ground also the appeal
stands to succeed.
ORDER
[21] In the
result the following order is made:
21.1
The appellant’s condonation application is granted
21.2
The appellant’s appeal is reinstated
21.3
The appeal is upheld
21.4
The order of the court a quo is set aside and substituted with the
following.
“
Respondent’s
point
in
limine
is dismissed with costs”.
21.5
The respondent is ordered to pay the costs of the appeal.
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE
I
Agree
GC
MULLER J
JUDGE OF THE
HIGH OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
1.
For
the Appellant
:
Mr Mathivha
2.
Instructed
by
: Mathivha Attorneys
3.
For
the Respondents
: Mr Geldenhuys
4.
Instructed
by
: Frans Geldenhuys
Attorneys
5.
Date
of Argument
:
10 May 2019
6.
Date
of Judgment
:
20
th
June 2019