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[2019] ZAFSHC 28
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Morolong v Hillandale Homeowners Association t/a Woodlands Hills Wildlife Estate and Others (A4/2018) [2019] ZAFSHC 28 (22 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A4/2018
4409/2018
In
the matter between:
MATLHAKU
CASSIUS LAZARUS MOROLONG Applicant/Appellant
And
THE HILLANDALE
HOMEOWNERS
ASSOCIATION t/a
WOODLANDS HILLS
WILDLIFE
ESTATE First
Respondent
STRATOS
KAMBANIS Second
Respondent
THE STANDARD BANK
LTD Third
Respondent
THE SHERIFF,
BLOEMFONTEIN WEST Fourth
Respondent
THE REGISTRAR OF
DEEDS,
BLOEMFONTEIN Fifth
Respondent
JUDGMENT
CORAM:
JORDAAN J
et
NAIDOO J
JUDGMENT
BY
:
NAIDOO J
HEARD
ON:
28 JANUARY 2019
DELIVERED
ON:
22 MARCH 2019
INTRODUCTION
[1]
This matter encompasses an application for reinstatement of an appeal
against a judgment emanating from the Magistrates Court,
dismissing
an application by the applicant/appellant (whom I shall refer to as
the appellant), for rescission of a default judgment
granted against
him by that court, the appeal itself in respect of that matter, an
appeal against an order by the Magistrates Court,
declaring the
appellant’s immovable property executable, applications for
condonation for the late filing of the Notices
of Appeal in respect
of both the orders mentioned and an application for leave to lead
further evidence in the appeal. Mr JJ Buys
appeared for the appellant
while Mr JG Gilliland appeared for the first respondent. The
appellant cited the 2
nd
to 5
th
respondents as
parties because they may have an interest in the matter, and seeks no
order against them. For convenience I shall
refer to the first
respondent as the respondent.
BACKGROUND
and FACTS
[2]
The appellant purchased a piece of ground (the property) within the
Woodland Hills Wildlife Estate, in Bloemfontein (the Estate)
in 2008,
with the intention of building a home thereon. By virtue of his
ownership of the property, he became a member of the respondent.
The
building operations commenced in September 2008. The building is
still incomplete. The respondent administers the Estate, and,
in
terms of its Memorandum of Incorporation (MOI) is responsible for the
formulation of rules to facilitate the proper maintenance
and
functioning of the Estate. These rules are binding upon the members
of the respondent. The respondent did formulate such rules,
which
will be referred to in this judgment, where necessary, as the House
Rules. These rules deal with,
inter
alia,
disciplinary matters, collecting the
agreed levies from each owner, and the imposition of sanctions and
penalties for buildings
not completed within the times stipulated in
such Rules. The appellant fell into arrears due to non-payment of the
levies and penalties
in respect of his property. The respondent
issued summons against the appellant, in which it claimed payment of
an amount of R80 070.16,
together with interest and costs.
[3]
In terms of the House Rules, the property would be regarded as an
owner’s domicilium citandi et executandi for the service
of
documents, notices etc, unless he advises the respondent, in writing,
of another address at which he will receive service of
such
documents. The summons was issued on 1 February 2017 and served on
the appellant on 23 February 2017 by affixing it to his
property. The
appellant alleges that he was not aware of the summons until 19 March
2017, when he visited the property. He instructed
his legal
representative to defend the action, but by the time the Notice of
Intention to Defend was served on the respondent’s
legal
representative on 22 March 2017, default judgment had already been
granted against the appellant on 20 March 2017. The respondent’s
legal representative advised the appellant’s legal
representative by way of a letter dated 4 April 2017 that default
judgment
had been granted on 20 March 2017. The appellant thereafter
made application to the Magistrates Court for the rescission of the
default judgment. The application was served and filed on 4 May 2017.
The matter was heard by Magistrate Ms N Majokweni, and the
application was dismissed by way of a judgment dated 18 August 2017
and delivered on 24 August 2017.
Application
for Rescission - Defences
[4]
On the basis of what is set out above, the appellant alleged that he
was not in wilful default in defending the matter late,
but had shown
good cause for the delay, and had acted immediately upon becoming
aware of the summons. As defences to the respondent’s
claim,
the appellant raised the following in support of his application for
rescission:
4.1 Rule 16.12 was
ambiguous and does not state in certain terms that the property was
deemed to be his
domicilium citandi et
executandi
. The Rule states that documents
“may” be served on the physical address of the erf, while
later on indicates that the
erf “shall” be regarded as
his
domicilium citandi et executandi.
The
respondent knew where appellant resided and that the respondent could
easily have contacted him by telephone or email, instead
of executing
against movable property at premises which were vacant. The appellant
had sufficient movable property at his current
place of residence to
satisfy the judgment
4.2 The respondent
amended (House) Rule 31.25.2.2 to 31.25.2.4, which relates to
penalties for failing to complete a building within
the specified
time, on 28 September 2016 and such amendment became effective on 1
November 2016. The appellant alleges that the
amendments had the
effect of increasing the penalties for incomplete buildings from
R2000 to R20 000 per month. He purchased
his property in 2008
and commenced building in September 2008, hence the amendments
relating to penalties do not apply to him.
The respondent applied
such amendment retroactively (It seems the appellant means
“retrospectively”), which is irregular
and which has
caused him to fall into arrears in respect of payment of penalties,
as he was being charged more than he should have
been.
4.3 The appellant also
alleges that the amendments to the Rule referred to have been passed
irregularly, in that House Rule 30.4
stipulates that approval of an
amendment requires the sanction of at least 51% of the total number
of votes (of members of the
respondent) at an Annual General Meeting.
The appellant expressed the belief that the amendment of the Rules
did not take place
as stipulated and was therefore irregularly
approved. He furnished no reasons or substantiation for this belief.
Proceedings
Leading to the Present Application
[5]
The appellant attached a copy of the rescission application, the
judgment dismissing the application, as well as the notice
of appeal
to his founding papers in this application, in order that this court
may consider the application for reinstatement of
the appeal against
the background of such information. The appellant indicates that at
the time of the hearing of the application
for rescission, he was in
the process of negotiating the sale of the property to a third party,
and when the application was dismissed,
his attorney advised him not
to appeal against the judgment, in order to avoid incurring
unnecessary legal costs in respect of
a property that was being sold.
Some two months later, in November 2017, the sale of the property
fell through, by which time an
order declaring the property specially
executable was obtained by the respondent on 19 October 2017. The
order was granted by Magistrate
PJR Barnard. The respondent
proceeded to arrange a sale in execution of the property, which was
set down for 6 December 2017.
[6]
The appellant brought an urgent application to this court to prevent
the respondent from proceeding with the sale in execution.
By
agreement between the parties, an interim order, returnable on 15
February 2018, was granted preventing the respondent from
selling the
property and enforcing the Warrant of Execution relevant thereto,
pending the final determination of the appeal accompanied
by an
application for condonation. This order was confirmed, by agreement
between the parties, on 15 February 2018. It seems a
Notice of Appeal
was filed in this court instead of the Magistrates’ Court on 10
January 2018, and the application for condonation
for the late filing
of the Notice of Appeal was filed on 15 January 2018. Thereafter, a
second Notice of Appeal was filed on 30
January 2018 in the
Magistrates’ Court, although the grounds of appeal remained the
same as in the Notice of Appeal dated
10 January 2018.
[7]
Nothing further was done to prosecute the appeal, despite several
requests and telephone exchanges between the appellant’s
then
attorney Mr Rampai and the respondent’s attorney. The
appellant’s attorney informed the respondent’s attorney
that he was unable to obtain instructions or payment of his fees from
the appellant. Mr Rampai thereafter withdrew as the appellant’s
attorney of record in July 2018, and the respondent proceeded with
the sale in execution on 1 August 2018, at which the property
was
sold to the second respondent. A few days later, on 8 August 2018,
the current attorney for the appellant initiated contact
with the
respondent’s attorney, who informed him of the history of the
litigation between the parties and that the property
was sold in
execution on 1 August 2018.
[8]
The appellant’s attorney requested the respondent’s
attorney not to proceed with the transfer of the property into
the
second respondent’s name, and when latter was unwilling to do
so, the appellant brought an urgent application to this
court to stop
the respondent from proceeding with the transfer of the property.
That order too was granted by agreement between
the parties, and the
court ordered,
inter alia
,
that pending the finalisation of appellant’s application to
reinstate the appeal, the first, second and fifth respondents
were
not to proceed with the transfer of the property. The appellant was
required to file his application for reinstatement of
the appeal by
21 September 2018. That led to the launch of the current application,
together with the applications for condonation
for failure to
properly note an appeal, and for the late filing of the Notice of
Appeal, as well as the application to lead further
evidence. The
appellant now filed a Notice of Appeal that was completely different
to the one filed on 30 January 2018, and purports
to note an appeal
against the judgments of both Magistrate Majokweni, who dismissed the
rescission application, as well as that
of Magistrate Barnard, who
declared the property executable.
[9]
For the sake of completeness, I set out the relevant part of the
contents of the Notice of Appeal dated 30 January 2018, and
served on
the respondent’s attorneys the same day:
“
BE PLEASED TO TAKE
NOTICE that the Applicant herein appeals to the FULL BENCH of the
FREE STATE DIVISION against the whole of the
judgment and order of
the Learned Magistrate, Ms N Majokweni, granted on 18 August 2017.
The grounds of appeal are as follows:
1.
The Learned Magistrate erred in declaring the
Applicant’s property situated at no. 8 Steenbok Street,
Woodlands, specifically
executable without conducting an enquiry into
the Applicant’s financial affairs.
2.
The Learned Magistrate misdirected herself in
granting an order which the court was not competent to grant.
3.
The Learned Magistrate erred in granting a
declaratory order which the Honourable Court did not have
jurisdiction to grant.
The Honourable Court
ought to have found that the value of the property in dispute far
exceeds the jurisdiction of the Court, thus
leaving it with no power
to grant such an order.
4.
The Learned Magistrate misdirected herself in
dismissing the application without taking into consideration that in
doing so she
will be giving injustice precedence over justice.
5.
The Learned Magistrate erred in granting a cost
order against the Applicant”.
Evaluation
[10]
It is clear that the Notice of Appeal referred to the order declaring
the property executable and not the order dismissing
the rescission
application. When the appellant approached the court with the urgent
application to stop the transfer of the property
on 3 September 2018,
it was clear that when the court referred to
“
the
applicant’s application to reinstate the appeal”
,
it referred to the appeal as envisaged in the Notice of Appeal dated
30 January 2018, which had by that stage lapsed. The
lapsing of
the appeal does not render the Notice of Appeal
pro
non scripto
. That Notice of Appeal will have
to be considered in an application for re-instatement of the lapsed
appeal. The court order of
3 September 2018 directed the appellant to
file his application for reinstatement by 21 September 2018. There
was no order or authority
to file a new and different notice of
appeal, nor was the Notice of Appeal dated 30 January 2018 withdrawn.
The current firm of
attorneys acting for the appellant, who came on
board around 8 August 2018, clearly realised that the Notice of
Appeal dated 30
January 208 was defective and a nullity, and
attempted to remedy the situation, without following the correct
procedure. The Notice
of Appeal filed on 21 September 2018 is not
valid, in view of the non-withdrawal of the previous notice dated 30
January 2018,
which remains in force.
[11]
I should point that there are other procedural and technical
difficulties. It is not in dispute that the two security certificates
that were filed related to the order declaring the property
executable and not to the dismissal of the rescission application,
given that both Notices of Appeal (dated 10
th
and 30
th
January
2018) related to the order of executability and not the dismissal of
the rescission application. The appellant filed, rather
belatedly on
24 January 2019, a security certificate in respect of the September
Notice of Appeal, which purports to be in respect
of the judgments of
Magistrates Majokweni and Barnard. In effect, this court does not
have a proper or valid Notice of Appeal to
enable it to consider the
application for reinstatement of the appeal. The Notice dated 30
th
January is clearly invalid but has not been withdrawn, and the Notice
dated September 2018 was filed improperly and cannot be regarded
as
valid in view of the earlier notice remaining in force. It must also
be borne in mind that the court order of 3 September 2018
makes no
mention of and does not authorise the filing of the Notice of Appeal
that was filed. It appears that the appellant is
attempting to have
the application for reinstatement heard by getting in via the
proverbial back door.
[12]
Mr Buys correctly pointed out that an appeal which has lapsed may be
reinstated on the application of either party, and
on
good cause shown
(my emphasis). In my view,
and based on what I have said above, the appellant has not shown good
cause to justify granting the relief
he seeks and has not made out a
case for the reinstatement of the appeal. It is, therefore, not
necessary for the court to consider
the application for condonation
for the late filing of the appeal. However, given the history of this
matter, I deem it necessary
to traverse some of the issues in this
matter that would have been relevant to the court’s
consideration of whether or not
to grant condonation, and
reinstatement of the appeal. I do this in the hope that it will give
guidance to the parties, but particularly
the appellant, in order
that he may reconsider his position and avoid embarking on further
unnecessary and inordinately expensive
litigation against the
respondent. A great part of the papers was taken up in setting out
the history of the matter in substantiation
of the reasons, firstly,
for the appellant’s failure to timeously file the Notice of
Appeal, and, secondly, of defences proffered
by the appellant, and
the opposition thereto by the respondent.
[13]
Prospects of success on appeal, in a matter such as this, is one of
the important considerations, amongst numerous others in
determining
whether condonation should be granted. In the matter of
United
Plant Hire (Pty) Ltd v Hills
1990 (1) SA 717
(A) at 720 E-G,
the
court stated the position succinctly:
“
It is well settled
that, in considering applications for condonation, the Court has a
discretion to be exercised judicially upon
a consideration of all the
facts; and that in essence it is a question of fairness to both
sides. In this enquiry, relevant considerations
may include the
degree of non-compliance with the relevant Rules, the explanation
therefore, the prospects of success on appeal,
the importance of the
case, the respondent’s interest in the finality of his
judgment, the convenience of the Court, and
the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong”.
[14]
In considering the explanation given by the appellant for his failure
to note an appeal against the judgment dismissing his
application for
rescission, it is clear that the only reason he did not do so is that
he was in the process of negotiating the
sale of the property and did
not want to incur any further legal costs. It can be inferred from
this that at the time, he accepted
the judgment. He then decided to
pursue the matter when the sale did not go through. His explanation
was that the sale of the house
was subject to an agreement of sale
being signed. As correctly pointed out by the respondent, it is no
wonder that the banks refused
to finance such a transaction. The
version of how the sale fell through is not very convincing. He
places the blame for his failure
to note an appeal on the advice
given to him by his legal representative. The blame for the delays
thereafter are again placed
at the door of his attorney. The
impression from the appellant’s conduct is that he used every
avenue to protect his property,
and did not have the
bona
fide
intention to defend the merits of the
matter. His conduct has caused inordinate delays in the finalisation
of this matter, much
to the prejudice of the respondent.
[15]
The issue of prospects of success is relevant both to the
reinstatement of the appeal and the condonation. What emerges from
the defences raised by the appellant is that he quotes the various
House Rules only partially and places interpretations on them
which
are misplaced and incorrect. The text of the various rules forms part
of the papers, and from an ordinary reading of such
rules, the
impression is gained that the appellant bends the interpretation to
create a dispute and hence a defence.
15.1 The appellant
attacks Rule 16.12, which was inserted in the Rules on 28 April 2010,
on that basis that it is ambiguous and
cannot be regarded as his
domicilium citandi et executandi
. The rule reads thus:
“
Any notice, legal
document or other document that must be send,(sic) delivered or
served by the
Association
in terms of this Manual may be served on the physical address of the
erf in the Estate and such erf shall be regarded as the domicilium
citandi et executandi of the owner, unless the owner notified the
Association per registered mail of another physical address that
should be used as domilcilium citandi et executandi”.
It is clear that the
respondent could choose to (‘may’) serve documents,
notices and legal process at the physical address
of the property,
which then shall (peremptory) be regarded as the appellant’s
domicilium
address. If
the appellant had furnished an address at which he would accept
service of such documents, notices etc, then it could
be argued that
the physical address of the property could or should not be regarded
as his domicilium. The appellant does not dispute
that he did not
furnish to the respondent an alternative address, in writing, at
which he would accept service. His argument that
the respondent knew
where he lived does not avail him, in the face of the stipulations of
this Rule.
15.2 I have indicated
above the basis on which the appellant relies on Rule 30.4.The
relevant portions of Rule 30 headed “AMENDMENT
OF THESE RULES”
reads as follows:
“
30.1 The
Developer
and
Trustees
may add
to and amend the rules when and if it deems necessary to ensure a
happy and orderly coexistence for
Owners
and/or residents. This can be obtained without giving notice to the
Owners.
The
decision(s) of the
Developer
and
Trustees
regarding
the interpretation of the rules is binding and final.
30.4 Subject to the
provisions of (30.1) above, and after the development
period, any such
addition, amendment, substitution or repeal shall require the
approval of at least 51% of the total number of votes
of members of
the
Association
given
during the Annual General Meeting. The notice of such a meeting
shall, in addition to complying with other requirements of
these
rules, set out in specific terms the proposed addition, amendment,
substitution or matter to be repealed”.
15.2.1 It is not in
dispute that the appellant is a member of the respondent and as such
is bound by its MOI, the provisions and
definitions of which were
extensively dealt with in the respondent’s Answering Affidavit.
The definition which is relevant
to the defence raised by the
appellant is that of the term “Development Period” which
is defined in the MOI as:
“
the period from
the date of establishment of the Association until all the erven have
been transferred from developer to the first
buyer of such erf; or
until the Developer notifies the Association in writing that the
development period has ceased; whichever
shall first occur. During
the Development period, the Developer shall in addition to votes for
untransferred stands, have an additional
600 votes”.
The appellant seems to
have made no attempt to verify the position with regard to the
development period. The respondent indicated
in its Answering
affidavit that up to the time that the Answering Affidavit was
deposed to, the development period had not come
to an end, as all the
erven had not been transferred to the buyers of such erven
.
This was substantiated by a Deeds Search report,
confirming the respondent’s assertion.
A
simple reading of these provisions indicates that the any amendments,
substitutions or repeal of rules will require 51% of the
total number
votes of members of the Association,
after the
development period
(my emphasis)
.
The appellant’s attempt to raise
the interpretation of this Rule to show that the amendment of Rule
31.25.2.1 to 31.25.2.4
is irregular, will not avail him as a defence,
as the respondent has shown that the development period had not come
to an end.
15.3 The appellant
indicated that the amendment of Rule 31.32.2.1 to 31.25.2.4 was
irregular, and that the penalties were increased
from R2000 to
R20 000 per month. The complete text of the relevant portions of
the amended Rule 31.25.2 reads as follows:
“
31.25.2 The
construction of any
new residence
on the
Estate
must be
completed within nine (9) months from the date on which construction
commenced. Due to the extent of residential construction
that
commences but are not completed within a reasonable time, as well as
the impact of partially completed buildings on the property
value of
other property I the vicinity and the discomfort caused to other
owners by extended building in the area, it became necessary
to
implement arrangements to ensure that residential construction is
completed within a reasonable time after commencement thereof.
31.25.2.1 If construction
is not completed within this 9-month period, the Owner will be
responsible for the payment of a monthly
fine of
R2000
(TWO THOUSAND RAND)
excluding VAT to the
Association
over
and above
any fine that might be payable
in terms of Rule 31.25.1 above if that period is exceeded. This fine
will be payable from the day
immediately following the date on which
the 9-month period expired until the date on which the residence is
completed and will
form part of the Levy.
31.25.2.2 If the
construction of any residence after 1 December 2013 therefore is not
completed within fifteen (15) months from
the date of commencement,
the penalty levy levied in terms of 31.25.2.1 will be increased to
R10 000.00 (ten thousand rand)
plus VAT per month.
31.25.2.3 If the
construction of a residence for a period of 48 months from the date
of commencement, regardless of the date on
which construction
commenced, is not completed the penalty levy levied in terms of
31.25.2.2 will increase to
R20 000.00
(twenty thousand rand)
plus VAT per month.
31.25.2.4 If the
construction of a residence for a period of 102 months from the date
of commencement, regardless of the date on
which construction
commenced, is not completed the penalty levy levied in terms of
31.25.2.3 will be increased to
R40 000.00
(forty thousand rand) per month.
The appellant also made
the bald allegation that these amendments were not properly approved
by members at an annual general meeting
and were irregularly imposed
on him. He offers no explanation for this belief or any
substantiation therefor. Read in context,
it is clear that the
penalties were not charged retrospectively but were incremental,
depending on the period that construction
of
a
residence remained incomplete from the date of commencement of the
construction. It is also clear that the penalties did not simply
increase from R2000 to R20 000 for no reason at all. The copies
of the invoices attached to the summons as well as those furnished
by
the respondent in answer to the Founding Affidavit, clarify this
aspect beyond dispute.
[16]
On the appellant’s own version, the building is still
incomplete, even at the time of the launch of the various
applications
in September 2018, which are now before this court. The
building therefore remained incomplete for a decade at the time. Save
to
say, in his Replying Affidavit, that he was suspended from his
employment and had to expend large amounts of money to be reinstated,
and consequently did not have the funds to meet his financial
obligations at the time the increased amount of penalties were
levied,
he has given no explanation or reasons for continuing to
remain in arrears. If he was reinstated, it can be inferred that he
was
in employment thereafter. Even at the time that the various
opposing affidavits were filed, he was not paying the monthly levies,
which he was obliged to do and which is a separate debit from the
penalties levied against his account in respect of the incomplete
building. He has not mentioned this at all, and did not reply to this
allegation raised in the respondent’s Answering Affidavits.
The
amounts that he owes to the respondent therefore continue to increase
on a monthly basis. The appellant did not deny this obligation
or
attack the correctness of the amounts debited to his account in
respect of monthly levies. In my view the appellant has not
shown
that he has a
bona fide
defence or defences to the respondent’s claim.
[17]
It is perhaps also noteworthy of mention that the respondent was
obliged to institute six actions, prior to issuing summons
in this
matter, for the recovery of arrears due to it by the appellant. In
several of those actions, default judgment was granted
while in
others the appellant defended those actions, but in each of the six
matters, the appellant ultimately paid the amounts
due to the
respondent, either after judgment was granted or, in two instances,
shortly before the property was sold in execution
of the judgment
obtained therein. This is therefore the seventh action that the
respondent was obliged to institute against the
appellant for the
recovery of monies due to it. The appellant’s conduct is
indicative of the fact that in each instance he
did not have any
defence to the respondent’s claims. In some instances , he drew
out the matter and paid at the proverbial
eleventh hour, just before
the property was sold. That pattern of behaviour appears to be
repeating itself in this matter, and
the irresistible inference is
that he is dragging out this matter to buy himself some time, either
to pay what is due or frustrate
the first and fifth defendants in
transferring the property to the second defendant. The prejudice to
the second defendant is clearly
apparent.
[18]
The appellant has repeatedly blamed his then legal representative for
poor advice, inaction in prosecuting his matters and
failing to
follow his instructions. When one views these allegations against the
detailed version of the respondent regarding the
interactions of its
attorneys with the appellant’s previous and current legal
representatives, which are substantiated by
correspondence and
contemporaneous notes made by the respondent’s attorney at the
time, it becomes clear that the appellant
is glossing over his role
in and attempting to extricate himself from the awkward situation he
was responsible for creating. The
sentiments of the court in the
matter of
Saloojee and Another NNO v Minister of Community
Development 1965(2) SA 135 (A) at 141 C
, are apposite:
“
There is a limit
beyond which a litigant cannot escape the result of his attorney’s
lack of diligence or the insufficiency
of the explanation tendered.
To hold otherwise might have a disastrous effect on the observance of
the rules of this court. Considerations
ad
miseracordiam
should not be allowed to become
an invitation to laxity….The attorney, after all, is a
representative whom the litigant
has chosen for himself.”
If
indeed the appellant’s legal representative was negligent or
remiss in carrying out his instructions and duties to his
client,
then the appellant would, of course, have a right of recourse against
him. In my view, it is unacceptable to hold the respondent
to ransom
and burden this court with spurious applications as well as
complaints he ought to direct against the attorney in another
forum.
[19]
When all these factors are considered together, the appellant’s
prospects of success on appeal in my view, are little
to none, due
largely to the fact that the appellant has not shown that he has any
defence/s against the claims of the respondent.
The protracted
litigation embarked upon by the appellant is causing prejudice to
himself as well as the respondent. The appellant
will ultimately have
to pay the amounts due to the respondent. In the meantime the
respondent is being dragged through the courts,
having to expend
large amounts of money to defend the proceedings initiated by the
appellant. As stated by the court in the
United Plant Hire
case
supra
, the court has a discretion to grant applications
for condonation, which discretion must be exercised judicially after
considering
all the relevant factors so that the decision arrived at
must in essence be fair to both parties. In my view, if it the court
had
to determine the applications for condonation and reinstatement
of the appeal, the discretion of this court, judicially exercised,
would have only one result which would be fair to both parties –
that is a refusal to grant condonation for the late filing
of the
Notice of Appeal and a refusal to reinstate the appeal.
Appeal
against Order Declaring Property Executable
[20]
The appellant alleges that he instructed his attorney to oppose
respondent’s application to declare the appellant’s
property specially executable. The respondent set out the history of
the extensive efforts it made to serve the notice of application
to
declare the appellant’s property executable, the several calls
thereafter to remind the attorney that the application
for rescission
of the judgment had been dismissed and to enquire what the
appellant’s intentions are with regard to the executability
application. The respondent confirms that a notice to oppose the
application was indeed served upon its attorneys by the appellant’s
attorneys on 12 September 2017. The matter which was at that stage
placed on the unopposed roll did not proceed due to the application
being opposed.
[21]
The appellant failed to file his opposing affidavit, and the
respondent’s attorney proceeded to set the application down
for
hearing on 19 October 2017, after first having informed the
appellant’s attorney that he was proceeding to set the matter
down for hearing. It seems that after a second notice to oppose the
application was erroneously served on the respondent’s
attorneys, the appellant’s attorney informed the respondent’s
attorney that the applicant intended to bring an application
to
declare the imposition of fines of the respondent’s members
unlawful, and requested the respondent not to proceed with
the
application to declare the appellant’s property executable. The
respondent’s attorney refused. The application
was heard on 19
October 2017, and an attorney from the firm of Rampai Attorneys, who
represented the appellant, advised the court
that Mr Rampai had
informed her that order declaring the applicant’s property
specially executable may be granted. It was
on this basis that
Magistrate Barnard granted the order.
[22]
No appeal against Magistrate Barnard’s order was filed, in
terms of the Rules of Court, after the granting of the order.
This
was done only on 21 September 2018, in the same Notice of Appeal
against the judgment dismissing the appellant’s application
for
rescission of the default judgment. In any event, it appears that the
Notice of Appeal was served on the respondent’s
attorneys,
together with the application for condonation for the late filing
thereof before the Notice of Appeal was filed at the
Bloemfontein
Magistrates Court. The respondent correctly pointed out that an
application for condonation if the notice of appeal
in respect of
which the condonation is sought, had not first been filed. The
appellant did not deal with this aspect in his Replying
Affidavit,
and merely submitted that the condonation application ids not fatally
defective, without giving any explanation or substantiating
his
allegation.
[23]
Throughout the papers and even in the appellant’s Heads of
Argument it was submitted that Magistrate Barnard failed to
comply
with the provisions of Magistrate Court Rule 43A prior to declaring
the appellant’s property specially executable.
During argument
in court, Mr Buys conceded that Rule 43A came into operation only
after the executability order was granted and
that the appellant no
longer places reliance thereon. In any event, the amount owing to the
respondent at the time the order was
granted was approximately
R300 000, far in excess of the approximately R80 000
claimed in the summons. In view of the
circumstances outlined above,
the appellant has no prospect of success on appeal in respect of the
order declaring his property
specially executable.
Application
to Receive Further Evidence
[24]
In view of what I have found in respect of the applications for
condonation for late filing of the notices of appeal, the application
for reinstatement of the appeal against the dismissal of the
rescission application and the appeal against the order declaring
the
appellant’s property specially executable, it is unnecessary to
deal with the application to receive further evidence.
With
regard to costs, I see no reason why costs should not follow the
result. The respondent pointed out that in respect of costs,
the
appellant had undertaken, in the written agreement between the
parties, that the appellant would pay costs on an attorney own
client
scale. This was not disputed by the appellant
[25]
In the circumstances, the following order is made:
25.1 The application for
the reinstatement of the appeal under case number A4/2018 is
dismissed;
25.2 The application for
condonation of the late filing of the Notice of Appeal is dismissed;
25.3 The application for
condonation of the Appellant’s failure to properly note an
appeal is dismissed;
25.4 The application to
condone the late filing of the Notice of Appeal against the
Magistrates Court order declaring the Appellant’s
property
specially executable is dismissed;
25.5 The application to
receive further evidence in the appeal is dismissed;
25.6 The Appellant id
directed to pay the Respondent’s costs on a scale as between
attorney and own client.
__________________
S
NAIDOO J
I
CONCUR
___________________
AF
JORDAAN J
On
behalf of Applicant: Adv. JJ Buys
Instructed
by: Matlho Attorneys
2nd
Floor Metropolitan Bldng
96
Henry Street
Westdene
Bloemfontein
(Ref:
Mr OO Molatedi)
On
behalf of 1
st
& 2
nd
Respondent: Adv. JG
Gilliland
Instructed
by: Symington & De Kok
Symington
& De Kok Bldng
169
Nelson Mandela Drive
Bloemfontein
(Ref:
Mr T O’Reilly)