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[2019] ZAGPPHC 114
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Sacerdote v Stromberg (34218/18) [2019] ZAGPPHC 114 (27 February 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 34218/18
27/2/2019
In
the matter between:
SELENE
E SACERDOTE
Applicant
And
ANTONELLA
P STROMBERG
Respondent
In
re:
ANTONELLA
PAOLA STROMBERG
Applicant
And
SELENE
ELEONORA SACERDOTE
1
st
Respondent
ALESSANDRO
ENZO SACERDOTE
2
nd
Respondent
CORALI
CINZJA SACERDOTE
3
rd
Respondent
MASTER
OF THE HIGH COURT
4
th
Respondent
JUDGMENT
MNGQIBISA-THUSI J
[1]
The applicant, Ms Selene E Sacerdote seeks. in terms of Rule 30(1) of
the Uniform
Rules of court, an order setting aside a notice of motion
and founding affidavit to an application instituted by the respondent
[2]
Mrs Antonella P Stromberg. the respondent in this application,
together with the applicant,
Mr Alessandro Enzo Sacerdote ("Mr
Sacerdote") and Ms Corali Cinzia Sacerdote ("Ms Sacerdote")
are siblings.
Their parents died in a motor vehicle collist0n on 18
December 2005. In terms of the joint will of the parents, all four
siblings
are heirs and equal beneficiaries in their parents' deceased
estates. The applicants and Mr Sacerdote were appointed as
co-executors
of their parents separate deceased estates. On 16
February and March 2016 the Master or the High Court appointed the
applicant
and Mr Sacerdote as co executors of the father and
mother's estates, respectively
[3]
On 6 May 2018 the respondent issued a notice of motion and founding
affidavit In which
relief is sought. In terms of s 54(1) (a) (v) of
the Administration of Estates Act
[1]
,
for the removal of the applicant as co-executor of the parents'
deceased estates and her replacement by Mr Roberto Cecil Marcer
(“the
main application”). Attached to the notice of motion are
unsigned confirmatory affidavits of Mr Sacerdote and
Miss Sacerdote,
who are cited as the second and third respondents, respectively. The
application was served on the applicant on
17 May 2018. Further, the
respondent sent by electronic mail (“email” the
application to the second respondent who
resides in Cape Town and to
third respondent who resides in the United Kingdom.
[4]
Mr Sacerdote and
Miss
Sacerdote will hereinafter be referred to as cited In the main
application.
[5]
On 6 May 2018 the applicant filed her notice to oppose in the main
application. At
the same time the applicant caused to be delivered to
the respondent a notice in terms of Rule 30(1)
[2]
In terms of Rule 30(3) the court Is empowered to set aside the step
complained of if it is irregular.
[6]
In the rule 30 notice the applicant complains,
inter alia,
that
the applicant's notice of motion and founding affidavit constitute an
irregular step in that service on the second and third
respondents by
email was defective as it was not in accordance with the provisions
of Uniform Rule 4 (1) and Rule 5(1).
[7]
When the respondent failed to remedy the complaint as set out in the
Rule 30(1) notice,
on 27 June 2018 the applicant instituted these
proceedings and on 13 July 2018 the respondent served a notice to
oppose the Rule
30(1) application.
[8]
On 17 July 2018 the second and third respondents sent the respondent
similar worded
emails in which they confirmed having received the
respondent's application and also giving permission to be served with
any pleadings
and notices at their respective email addresses.
[9]
On 2 August 2018, signed confirmatory affidavits of the second and
third respondents
were served on the applicant's attorneys.
[10] It is
the applicant's contention that the respondent's notice of motion is
irregular in that despite
the provisions of Uniform Rule 4(1)
[3]
pertaining to service of documents inrtiat1n9 proceedings. the
respondent failed to effect personal service through the sheriff
on
the second respondent. Further, that the respondent had failed, as
envisaged by the provisions of Uniform Rule 5(1)
[4]
,
to first seek leave of the High Court to issue and serve the
application on the third respondent. The purpose of Rule 5(1) is
to
provide the method by which actions can be instituted and prosecuted
against persons it has jurisdiction upon but who because
of their
absence from the court's jurisdictional area cannot be served with
process. Further, the court may order in which way
service Is to be
effected that is likely to bring to the attention of the party to be
served the proceedings in question.
[11] It is
common cause that the purpose of service is to give notice to the
other party about the application.
It was aptly quoted by the court
in
Investec
Property Fund Limited v Viker X (Pty) Ltd and Another
[5]
that.
“
It
is a cornerstone of our legal system that a person is entitled to
notice of legal proceedings against such person”
[6]
.
[12] It is
not in dispute that service on the second and third respondents by
email and before leave of
this court was obtained with regard to the
third respondent. was not in compliance with the prescripts of Rule
4(1) and 5(1).
[13] It
was submitted on behalf of the applicant that the applicant was
prejudiced by the defective service
on the second and third
respondents In that whatever order is made would not be binding on
them due to the improper service It
was further submitted on behalf
of the applicant that the purported service on the second and third
respondents was Irregular In
that the subsequent emails by the said
respondents acknowledging receipt and knowledge of the application
did not cure the defective
serv1oe. In this regard the applicant
relies on the decisions In
Walster
v Walster
[7]
and
lmprochem
v USA Distillers
[8]
.
[14] In
the
Walster
matter (above) the court held that there was no
proper service in that the plaintiff had not sought the authority of
the High Court
before serving the defendant, who was a
peregrinus
In the
Improchem
matter (above) the court held that since
service of the application was only effected after the court had
authorised service by
edictal citation, the mere fact that the
Registrar had issued the main application and the application for
service by edictal citation,
did not render the service defective.
[15] It is
the respondent's contention that service by email and without the
authority of the High Court
was not irregular as the defective
service was cured by the second and third respondents' confirmation
of the receipt and knowledge
of the application. It was submitted
that the applicant would not suffer any prejudice since both
respondents have actual knowledge
of the main application and
endorsed it by filing confirmatory affidavits to the founding
affidavit . For the respondent condonation
was sought for the
imperfect service.
[16] With
regard to the
lmprochem
matter (above), counsel for the
respondent submitted in his supplementary heads of argument, that the
matter was dist1ngu1shable
from the present matter in that in this
matter no relief is sought against the second and third respondents
and that both had received
notice of the application and had also
filed confirmatory affidavits in support of the main application and
that no purpose would
be served in formally joining these
respondents.
[17] The
requirements pertaining to service as set out in rule 4(1) and 5(1)
are peremptory. However. the
High Court has the power to regulate Its
own processes and condonation will be granted only in exceptional
circumstances. In exercising
its discretion whether or not to condone
non-compliance with the rules, the discretion must be exercised
judicially. In
Federated
Insurance Company of South Africa Ltd v Malawana
[9]
the court held
that:
"It ls clear from Rule 27(3
and Rule 30(3) that a breach of the Rules is not necessarily visited
with a nullity, and can be
condoned. The Court has a discretion which
must be exercised judicially after considering the relevant
circumstances and deciding
what will be fair to both sides".
[18] The
main requirement to be satisfied in order for an applicant in a Rule
30(1) application to succeed
is that the applicant has to show that
if service is not effected as contemplated in terms of the Rules, it
will be prejudiced
if the process complained of is not set aside as
being an irregular step
[10]
.
[19] It Is
not in dispute that the second and third respondents got notice of
the main application With
that knowledge neither of the two
respondents sought to oppose the application. With knowledge of the
application, the second and
third respondents also filed confirmatory
affidavits in support of it.
[20] I am
satisfied that service on the second and third respondents was
effective. Even though the provisions
of Rules 4(1) and 5(1) are
peremptory, this court has the power to condone Imperfect service if
it is satisfied that there is no
prejudice to the applican.t In
Viljoen v
Federated Trust Ltd
[11]
the court stated
that:
“
The Rules of Court, which
constitute the procedural machinery of the Courts, are intended to
expedite the business of the Courts.
Consequently they will be
interpreted and applied in a spirit which will facilitate the work of
the courts and enable litigants
to resolve their differences In as
speedy and inexpensive a manner as possible”.
[21] I am
not convinced that the imperfect service on the respective
respondents is prejudicial to the applicant.
The respondents are
aware of the application and no relief is sought against them. They
have in fact joined issue with the respondent
by filling confirmatory
affidavits in the main application and will be bound by whatever
order will be granted in the main application.
I am of the view that
unnecessary costs will be incurred if condonation is not granted.
Further I am not persuaded that the applicant
will be prejudiced If
the respondents notice of motion is not struck out as an irregular
step.
[22] In
the application the applicant had sought, 1n the event of being
successful, costs on an attorney
and client scale. There is no reason
why costs on the same basis should not be awarded to the successful
party.
[23] In
the result the following order is made.
'The application is dismissed with
costs on an attorney and client scale.'
N P MNGQIBISA-THUSI
JUDGE OF THE HIGH COURT
For
Applicant Adv SC Vivian SC {Instructed by Ian Levitt Attorneys) and
for respondent Adv JL Kaplan (instructed by Guiseppe Fitzzotti
Attorneys)
[1]
Act 66 of 1985.
[2]
Rule 30(1) provides that: “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.”
[3]
Uniform Rule (4)1 provides in part that: “Service of any
process of the court directed to the sheriff and subject to the
provisions of the paragraph (a
A
) any document initiating
application proceedings shall be effected by the sheriff in one or
another of the following manners…”
[4]
Uniform Rule 4(1) reads as follows: “Save by leave of the
court no process or document or documentary whereby proceedings
are
instituted shall be served outside the republic
[5]
Unreported judgment, Case no 2016/07492, Gauteng Local Division (10
May 2016) para .10.
[6]
Steinberg v Cosmopolitan National Bank of Chicago
1973 (3) SA
885
(RA) at 892B-C.
[7]
1971(4) SA 442 (E).
[8]
Unreported judgment of the Gauteng Local Division, Case number
2015/13244 (31 August 2016).
[9]
1984 (3) SA 489
(E) at 295H.
[10]
Erasmus Superior Court Practice,
Prism Payment Technologies v
Altech Information Technologies
2012 (5) SA 267 (GSJ).
[11]
1971 (1) SA 750
(O)