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[2019] ZAGPPHC 385
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Minister of Rural Development and Land Reform v Griffo CC (A724/14, 12440/2011) [2019] ZAGPPHC 385 (8 August 2019)
REPUBLIC OF SOUTH AFRICA
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 NUMBER: 12440/2011
APPEAL CASE NO: A724/14
8/8/2019
In
the matter between:
THE
MINISTER OF RURAL DEVELOPMENT
Appellant
AND
LAND REFORM
and
GRIFFO
TRADING CC
Respondent
JUDGMENT
WRIGHT
J
1.
Griffo
Trading CC, the respondent in this appeal instituted action as early
as 2011 against the Minister of Rural Development and
Land Reform,
who is the present appellant. Griffo sought payment for goods
allegedly sold and delivered to the Minister 's department.
Pleadings
closed but the Minister failed to make discovery despite an order by
Barn Jon 17 September 2012 compelling discovery.
On 27 November 2012
Kubushi J struck out the Minister's defence and granted judgment
against the Minister for failure to discover.
2.
The
Minister launched an application to rescind the orders of Barn J and
Kubushi J. The Minister, at the same time applied for leave
to amend
the plea. Bertelsman J dismissed these applications. The typed,
signed judgment of Bertelsman J is dated 28 October 2014,
an
ex-tempore
judgment
having been delivered on 4 November 2013.
3.
Thereafter,
the Minister applied for leave to appeal the order of Bertelsman J
and for leave to lead further evidence. Bertelsman
J granted leave to
appeal to the present court (including leave on the question of
leading further evidence) at least partly because
he was to some
extent moved by the detailed allegations of fraud against Griffo
contained in an affidavit belatedly setting out
in detail a defence
based on fraud. This affidavit forms the basis for the amendment to
the plea and the request to lead further
evidence. Briefly, the
appellant denies placing the orders and denies receiving the goods.
While Griffo strongly denies these allegations
there is in my view, a
bona fide
and
reasonably raised triable issue. Having taking into account the
contents of the new evidence for the Minister on the question
of
fraud there is no need to make a specific order concerning this
evidence. It would be premature to rule now on the admissibility
of
evidence at trial.
4.
It
is common cause that the appeal has lapsed but there is an
application before us for reinstatement. The papers before us are
lengthy and complicated. Griffo criticises the conduct of the
Minister's staff and that of the State Attorney. One understands
the
frustration of Griffo in the perhaps at times slow moving pace in the
State Attorney's office. On balance, I would not penalise
the
Minister other than to award costs against the Minister in the
present appeal and in the proceedings leading up to it.
ORDER
1.
Condonation
is granted, the appeal is reinstated and it is upheld.
2.
The
order of Bertelsman J of 4 November 2013, that of Kubushi J of 27
November 2012 and that of Barn J of 17 September 2012 are
set aside.
3.
The
appellant is granted leave to amend the plea as sought. The amended
plea is to be delivered within 10 court days of the handing
down of
this judgment.
4.
The
appellant is to pay the costs of the respondent on the party and
party scale, including those of senior counsel where so employed,
in
the present appeal (including the condonation and reinstatement
applications) and in all the applications before Bertelsman
J
(including the application for leave to appeal and the application to
lead further evidence).These costs also include those of
one previous
set of wasted costs on appeal when costs were reserved.
WRIGHT
J
MOTHLE
J
I
agree
LOUW
J
I
agree
APPEARANCES
For
the Appellants:
Adv KM Mokotedi
For
the Respondent:
Adv De Villiers SC
Date
of hearing:
7 August 2019
Date
of judgment:
?