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[2019] ZAFSHC 53
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Maluti Plant Hire CC v Orecrushers SA (Pty) Ltd (3147/2017) [2019] ZAFSHC 53 (28 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Case number: 3147/2017
In
the matter between:
MALUTI
PLANT HIRE
CC
Applicant
and
ORECRUSHERS SA (PTY)
LTD
Respondent
(REG: 2004/033083/07)
In
re
:
ORECRUSHERS SA (PTY)
LTD
Plaintiff
and
MALUTI PLANT HIRE
CC
Defendant
(REG:
2001/061749/23)
CORAM:
DAFFUE, J
HEARD
ON:
28 MARCH 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
28 MARCH 2019
REASONS
I
INTRODUCTION
[1]
On
28 March 2019 I heard argument pertaining to an application for
rescission of judgment. I dismissed the application with
costs
and indicated that my reasons would follow. These are my
reasons.
II
THE PARTIES
[2]
Applicant
is Maluti Plant Hire CC, it being the defendant against whom judgment
by default was granted. It was represented
by Adv A Sander,
instructed by Noordmans Attorneys.
[3]
Respondent
is Orecrushers SA (Pty) Ltd, the plaintiff in the main action.
It was represented by Adv LC Leysath. The
local attorneys are
Symington & De Kok.
III
THE
RELIEF SOUGHT
[4]
The
applicant sought rescission of the default judgment granted against
it on 21 September 2018, the setting aside of the warrant
of
execution issued, that the bar for filing its plea be lifted and
leave be granted to file its plea and counterclaim within 20
days.
[5]
No
application for condonation for non-compliance with any of the
Uniform Rules of Court or this Division’s Practice Direction
has been filed. This aspect will be dealt with next.
IV
NON-COMPLIANCE WITH RULES AND PRACTICE DIRECTION 1/2015
[6]
The
bundle of application papers prepared for the court does not comply
with the Uniform Rules of Court (“the Rules”)
and this
court’s Practice Direction 1/2015. I shall deal with the
Rules first. Rule 62(4) stipulates
inter
alia
that all pages of the documents delivered shall be suitably secured
(bound). The responsibility is that of the applicant
(plaintiff) who must collate, number and index all documents filed by
all the parties. The sub-rule is not merely for the
convenience
of the parties, but more particularly for the presiding judge(s) who
is (are) called upon to deliver judgment. Courts
insist on compliance
with the rule. See:
Manna
v Lotter
2007(4) SA 315 (C) at 325H – 326A and
Erasmus,
Superior Court Practice
,
D1-740.
[7]
Neither the original notice of motion, founding affidavit and
accompanying affidavit of Mr Noordman,
nor the original replying
affidavit and the confirmatory affidavit of Mr Bronner (who belatedly
confirmed the founding affidavit
and not the replying affidavit) are
in the court file. This is in direct transgression of the
Rules. “Deliver”
is defined in Rule 1 as follows:
“’
deliver’
shall mean serve copies on all parties and file the
original
with the registrar.”
(emphasis
added)
[8] The
original application papers should have been bound in one bundle.
Instead copies – and poor copies
of the replying affidavit and
annexures in particular - were bound in an unsatisfactory manner as I
shall elaborate
infra
.
When I informed Mr Sander of this at the start of proceedings, he
stated that according to the instructions from his attorney,
Mr
Noordman who was present in court, the original documents must be in
the court file. I perused the file again in court
and found the
original answering affidavit together with its annexures.
Inexplicably these documents, which were apparently
stapled together
at some stage, were not so fastened anymore and were found loose in
the file. There was not a sign of the
original notice of motion
and founding and replying affidavits that applicant was supposed to
file in compliance with the Rules.
The Notice of Motion was
signed by Mr Noordman at Port Alfred on 20 December 2018. He
signed his affidavit at the same place
on 21 December 2018.
Apparently these documents were electronically sent to
Bloemfontein. The application was issued
in Bloemfontein on 21
December 2018. Mr Noordman’s original affidavit with the
heading
“
founding
affidavit”
was
found on its own at the bottom of the file. Apparently, someone
changed the heading to
“
confirmatory
affidavit”
after
the document was deposed to under oath and this amended document was
attached to the founding affidavit. A picture thereof
is shown
infra
.
[REFER TO PDF & RTF VERSIONS]
[9] This
court’s Practice Direction 1/2015 enforced from 20 May 2015
deals with double-sided printing. Documents
in excess of 10
pages filed with the registrar
“
must,
in spite of the wording of court rule 62(2) ordinarily be printed on
both sides of the page.”
However
“
records
containing double-sided printing must be bound in a way that permits
both sides of
each
page to be fully legible.
”
(emphasis added)
[10] I
pointed out on numerous occasions to practitioners in the past that
the above Practice Direction must be complied
with in a proper
fashion to allow the presiding judge to read both sides of the pages
with ease. Often, when I had time and
opportunity, I arranged
with my secretary to call upon the applicants’ (and
plaintiffs’) legal representatives to rectify
matters by
placing the documents in a lever-arch file or plastic ring binder
before I have to study the papers. These legal
practitioners,
to their credit, promptly complied with my requests. I do not
understand why legal practitioners – four
years down the line -
still fail to comply with the Practice Direction. In this
instance, due to time constraints and a heavy
workload, I had an
opportunity to study the papers in this application the night before
the application was to be heard and no
arrangement could be made for
applicant’s attorney to remedy the defects.
[11]
In casu
the documents – copies and not originals – are
fastened with a pin pushed through the left hand side of the bundle
as
is evident from the first picture
infra
. Two problems
were experienced in studying the papers. First, it is not
possible to read the left hand pages without,
either turning one’s
head and neck clockwise by about 45 degrees, or by turning the bundle
anti-clockwise. I refer
to the next two pictures
infra
.
In casu
the bundle contains 130 pages only, which meant that I
had to act as stated a mere 65 times whilst still being able to
concentrate
at the task at hand,
i.e
to study the papers.
Secondly, legal practitioners do not appreciate that, as is the case
here, it is often not possible
to read text contained close to the
top right of the pages on the left and in particular to find the
exhibits referred to in the
text which are customarily marked at the
top right hand corner which are concealed by the pin in these
instances. The middle
picture
infra
is an example.
I marked the exhibit in court during argument, as identified by Mr
Sander, on the left hand side.
[REFER TO PDF & RTF VERSIONS]
[12] I have reason
to believe that the judges of the Supreme Court of Appeal and the
Constitutional Court will not be prepared
to entertain applications
and appeals that are for all practical purposes not fully legible.
In fact, bundles prepared
as
in
casu
will not even find their way past the Registrars’ offices.
When I looked down on Mr Sander’s brief, I noticed
that his
papers were neatly placed in a lever arch file – which he
admitted was on his initiative – and which would
make reading
and studying thereof comfortable. There is no reason why the
court’s file could not be secured in the
same or similar manner
such as with plastic ring binders.
[13] I
perused some of the other Divisions’ and courts’ Practice
Directions contained in
Erasmus,
Superior Court Practice
,
vol 3. Johannesburg’s Practice Direction 6.2.5 stipulates
that the bundle of documents in civil trials must be bound
in a
manner
“
that
does not hinder the turning of pages and which enables it to remain
open without being held open.”
Pretoria’s
requirement is the same.
As
strange as it may sound, both in Johannesburg and Pretoria it is
merely required in the case of applications that documents be
bound
in such a way that it does not hinder the turning of pages and not
also that the bundle must be able to remain open without
being held
open.
The
SCA’s Practice Direction reads as that of this Division.
Apparently double-sided printing is still not allowed in the
Constitutional Court as is the case in the Western Cape.
[14]
Applicant did not seek condonation for any non-compliance with the
Rules or the Practice Direction based
on alleged urgency or any other
ground. No urgency existed, save insofar as applicant’s
legal team tried to make the
20 day deadline in Rule 31(2)(b)
referred to
infra
.
Strictly speaking, the application should have been struck from the
roll or postponed to show the court’s dismay,
but that would
not be fair towards both parties.
[15] I
considered postponing the application and to order applicant’s
attorney to pay the wasted costs
de bonis propriis.
However,
upon an apology being tendered by Mr Sander on behalf of his attorney
and bearing in mind that I had time to struggle through
the
documents, I decided to proceed hearing argument in order to prevent
delay which would eventually be to the prejudice of the
respondent in
particular.
V
THE
TEST IN MOTION PROCEDURE FOR FINAL RELIEF
[16] Bearing
in mind the requisites for rescission of judgment applications dealt
with
infra
and the manner in which I considered the factual disputes, it is
appropriate to refer to some authorities in motion proceedings.
In such proceedings the affidavits constitute both the pleadings and
the evidence and the issues and averments in support of the
parties’
cases should appear clearly therefrom. See
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D. It is trite that the applicant
in application proceedings must make out his case in the founding
affidavit.
A litigant should not be allowed to try and make out
a case in the replying affidavit. The founding affidavit must
contain
sufficient facts in itself upon which a court may find in the
applicant’s favour. An applicant must stand or fall by
his founding affidavit. See
Director
of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H – 636D.
[17] A court
should adjudicate factual disputes in application procedure for final
relief having regard to the well-known
Plascon-Evans Paints
dicta
recently approved and considered in more depth in
Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA). I quote from para [12]:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an
applicant who seeks final
relief on motion, must in the event of conflict, accept the version
set up by his opponent unless the
latter’s allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact
or are so far-fetched or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C.
VI
A
BRIEF HISTORY OF THE FACTUAL MATRIX
[18] There are
several factual disputes and many vague averments which I shall
mention as I deal with the facts. In
fact, it is well-nigh
impossible to set out a factual matrix from applicant’s
perspective due to evasiveness and glaringly
vague allegations unless
I resort to speculation. I shall deal with the explanation
relating to litigation in the main action
first and then with the
merits of the claim. The material allegations are the following:
1)
Mr Noordman, applicant’s attorney, was previously employed by
Matsepes Attorneys in which
capacity he received instructions from
applicant pertaining to
inter
alia
the defence of respondent’s claim. On 4 July 2017 Mr
Noordman served and filed a notice of intention to defend in the
main
action. In paragraph 14 of the founding affidavit applicant’s
deponent states under oath that
“
Respondent,
having issued a Simple Summons, was required by this Court’s
rules to file its declaration.”
The
deponent either knew it then as informed by the attorney, or he was
informed accordingly afterwards. We don’t know
what
transpired between the deponent and the attorney, but I am of the
view that any reasonable attorney would, upon receipt of
instructions
to defend a matter, outline the future litigation and the way forward
until the matter eventually gets finalised in
a court of law, unless
settled earlier. In any event, the reasonable attorney would
have obtained detailed instructions as
to the defence at the onset in
order to communicate with the opposite side in the hope of achieving
a suitable result as early
as possible.
2) There is no
allegation, not to speak of proof, of any communication between the
parties prior to litigation or after receipt
of the summons in
support of applicant’s defence raised in the founding affidavit
mentioned
infra
.
3)
It is averred that Mr Noordman left Matsepes’ employ
“
during
or about the end of 2017”
.
What precisely does this mean? Then it is averred as follows in
paragraph 26:
“
Subsequent
to this the Applicant requested that all its files (including this
matter’s file) be transferred from Matsepes
to Mr Noordman….”
The use of
the word
“
subsequent”
is
indicative of applicant’s evasiveness. The failure to
present a proper timeline appears to be deliberate, bearing
in mind
the duty of attorneys towards their clients as explained
infra.
What is evident from the quoted passage is that Matsepes’
mandate must have been terminated at a stage and that applicant’s
deponent was fully aware of Mr Noordman’s whereabouts, to wit
that he was still practising as an attorney in Bloemfontein.
I
accept that Mr Noordman knew about applicant’s intention to
make use of his services. The court was not told who
–
Applicant’s deponent or Mr Noordman - communicated with
Matsepes and when and how often communication took place,
bearing in
mind the alleged problems experienced in receiving the applicant’s
files. Apparently no progress reports pertaining
to the litigation
were sought. Again, there is a dearth of information in this
regard.
4) It
is alleged that Matsepes had sought payment for the work done on the
files and that the files
had been sent to a cost consultant for
drafting bills of costs and taxation purposes. However, the
cost consultant refused
to hand back the files to Matsepes as this
firm failed to pay his account. This is not only inadmissible
hearsay evidence,
but the level of vagueness is unacceptable.
We do not know when all this occurred and how long was the delay.
Even
so, Matsepes whose mandate has been terminated, which must be
accepted as there was no reason to draw bills of costs otherwise,
probably accepted that they had no responsibility to act on behalf of
applicant anymore. Mr Noordman and his client should
have known
and/or appreciated that.
5)
Mr Noordman and his client knew that a declaration, which was
admittedly filed on 19 March 2018
only and later than could have been
expected, was due. There is no indication that they could have
believed that the claim
was abandoned. Even accepting a delay
with the handing over of files, the reasonable attorney in the shoes
of Mr Noordman
would have made enquiries from time to time as to
developments on the files. He should have recognised that
Matsepes were
under no obligation to protect the interests of their
former client and that default judgment might be obtained in the
absence
of future responses.
6)
The applicant’s deponent refers to telephonic communication
between him and the cost consultant.
No details are provided as
to when the call was made and what steps were taken to avoid
prejudicial action based on the hearsay
evidence obtained from this
person.
7)
Apparently nobody in Matsepes’ employ regarded it necessary to
keep applicant or Mr
Noordman abreast with developments on the file.
The confirmatory affidavit of Mr Bronner, an employee of Matsepes,
attached to
the replying affidavit and not as could be expected to
the founding affidavit, is as meaningless as the unhelpful affidavit
of
Mr Noordman. If the particular file of applicant was sent to
a cost consultant, Mr Bronner could not be in control thereof
anymore. All pleadings, documents and correspondence relating
to the file could not have been inserted in the file by the
attorney
as the file was not with him anymore. Matsepes had no mandate
to act on behalf of the client at such stage.
As a matter of
law, Matsepes should have refused to accept any documents relating to
their former client’s litigation.
However, the
declaration and notice of bar have been received and could not merely
be ignored. I shall deal with this again
infra
.
8)
The proposition in paragraph 30 of the founding affidavit that
applicant was content that
its matter would be properly dealt with by
Matsepes until transfer of the file is improbable, if not blatantly
false, in light
of the information tendered by applicant. It is
incredulous that applicant did not have any knowledge of what
transpired
in the litigation for about a year. Now it seeks to
blame Matsepes for alleged improper conduct.
9)
Obviously, if applicant terminated Matsepes’ mandate much later
in the year 2018 and
instructed Matsepes then only to hand the file
to Mr Noordman, Matsepes would still be the responsible attorneys
until termination
of their mandate and they should have explained why
did they not inform applicant of the filing of the declaration and
subsequent
filing of the notice of bar. Applicant and its
attorney elected to remain as vague as possible in order to keep the
court
in the dark, having to rely on speculation. I shall
consider the relevant Rules and the effect thereof when I discuss
substitution
of attorneys
infra
.
10)
I emphasise the following in conclusion pertaining to the explanation
for the default. In contrast
with applicant and its attorney’s
vague explanation of what transpired with reference to a definite
timeline since Mr Noordman
left the employ of Matsepes until November
2018, applicant provided a detailed and comprehensive version of his
counsel’s
whereabouts since counsel had obtained instructions
to prepare the founding affidavit in order to show why the
application was
issued on 21 December 2018 only. Applicant
might not have been expected to provide such a detailed version, but
I would have
expected much more detail than provided. Surely,
Mr Noordman either opened a temporary file for applicant and/or kept
notes
and/or kept copies of correspondence with Matsepes.
Reference thereto under oath could enlighten the court of the efforts
made to obtain applicant’s file and/or to request progress
reports from Matsepes.
11)
I have duly considered the factual disputes in respect of the
transactions between the parties
and came to the conclusion that the
disputes should be adjudicated based on the principles enunciated in
Plascon Evans. Respondent’s
version cannot be held to be
far-fetched or clearly untenable in order to be rejected. The
further factual matrix is based
on an acceptance of respondent’s
version.
12)
On 10 September 2014 applicant purchased certain plant and equipment
from respondent for an amount
in excess of R3m. These were
delivered to and utilised by applicant in Lesotho. On 22
July 2015 the parties varied
the agreement by
inter alia
excluding the double deck screen, causing the purchase price to be
reduced to R2 158 095.00 which was later further reduced
to
R2 106 870.00. A deposit of R615 057.36 was
paid. The balance of R1 786 724.44 was to be paid
in
monthly instalments of R100 000.00 plus VAT. Only one
instalment was paid on 13 August 2015. The parties agreed
that
respondent would retain ownership of the goods until payment of the
full purchase price. All this is common cause between
the
parties as the applicant failed to deny the averments contained in
the declaration and annexures thereto.
13)
Applicant utilised the plant and equipment at a mining site in
Maseru, Lesotho for several months since
December 2014. During
January 2016 it brought the goods to South Africa. Since then –
on respondent’s version
- applicant started to raise concerns
pertaining to the alleged defective triple deck screen, not to be
confused with the double
deck screen that was sold in terms of the
first agreement, but returned to respondent earlier.
14)
On respondent’s version in the declaration, read with the
annexures thereto, confirmed under
oath in the answering affidavit,
the parties agreed that credit be given in the amount of R570 000.00
to applicant in respect
of the triple deck screen to accommodate it
after having raised queries and this amount was deducted from the
outstanding amount,
leaving an amount of R1 176 744.44 due
and payable. Although Mr Sander tried to show during argument
that there
was no agreement pertaining to the return of the triple
deck screen and the credit given, based on the fact that the document
relied
upon – annexure D to the declaration - was not signed,
his client did not deal at all in the founding affidavit with the
express and damning allegations contained in the respondent’s
declaration and annexures thereto.
15)
It is applicant’s case on the merits that respondent did not
deliver the goods as alleged and therefore
it is in breach of the
agreement. On applicant’s version in paragraph 67 of the
founding affidavit, the respondent’s
conduct constitutes
repudiation,
“
which
repudiation the Applicant accepts and cancels the Agreement
herewith.”
The
emphasis is on the present tense, meaning that applicant averred in
December 2018 that it elected to cancel the agreement notwithstanding
an alleged repudiation occurring about three years earlier.
However, it is common cause that respondent delivered as agreed,
but
applicant wants to rely on the fact that the triple deck screen,
which it utilised for a long time, was eventually sold by
respondent
to a third party, such action constituting so-called repudiation.
Respondent’s explanation in this regard
is sound and acceptable
and there is no reason to reject same. It was prepared to
accommodate applicant after it had used
the triple deck screen for a
long time where after it started to raise queries. Applicant’s
account was credited in
respect of the value of the triple deck
screen. Hereafter – as late as August 2016 - applicant simply
dropped the triple
deck screen at respondent’s suppliers in
Pretoria whereupon respondent refurbished and sold it to a third
party. Mr
Sander argued with some conviction, based on the
version in reply, that the triple deck screen,
“
the
soul and heart”
of
the plant –
“
the
whole set-up”
–
was
sold and that respondent therefore rendered an incomplete
performance. I mentioned earlier that I accepted respondent’s
version in respect of all factual disputes. Counsel failed to
convince me. Mr Sander also pointed out that the credit
of
R570 000.00 advanced by respondent was not pleaded as such in
the declaration. That may be so, but the document attached
to
the declaration – annexure D thereto – and the reduction
of the outstanding balance makes this quite clear.
16)
A strange allegation is made in paragraph 68 of the founding
affidavit that applicant
“
tenders
return of all equipment that formed part of the sale agreement and
which had not been delivered to respondent and which
are in the
possession of the Applicant.”
The
vagueness is obvious. Applicant failed to inform the court what
is still in its possession. Again, applicant used
the goods
sold for several months since December 2014 and only now tenders
delivery of unspecified goods. The same vagueness
is indicative
from paragraph 88 where applicant states that it tendered return of
unspecified goods against payment of the aforesaid
deposit and
R100 000.00 instalment previously paid by it to respondent.
VII
THE LAW RELATING TO RESCISSION OF JUDGMENT APPLICATIONS
[19] It is
applicant’s case that it is entitled to relief in accordance
with Rule 31(2)(b). There is no
suggestion that the judgment
was obtained under circumstances provided for in Rule 42 or that
fraud or
iustus error
played a role in obtaining judgment.
[20] The
requirements for rescission of judgment under Rule 31(2)(b) are
well-known. An applicant must show good
cause and this
encapsulates that
(a)
the applicant must proffer a reasonable explanation for the default;
(b)
the application must be
bona fide
;
(c)
the defence on the merits of the case must
prima facie
carry
some prospect of success.
See
Colyn v Tiger Food
Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA)
at para [11].
[21] In
Colyn
supra
the
court stated further as follows in para [12]:
“
Even
if one takes a benign view, the inadequacy of this explanation may
well justify a refusal of rescission on that account unless,
perhaps,
the weak explanation is cancelled out by the defendant being able to
put up a
bona
fide
defence which has not merely some prospect,
but
a good prospect of success
.”
(emphasis
added)
[22] Contrary
to the possible escape route afforded an applicant mentioned in
Colyn
supra
,
a unanimous full bench of the former Appeal Court consisting of five
judges made the following quite clear in
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(AD) at 765D – E:
“
It
is not sufficient if only one of these two requirements
(a
reasonable and acceptable explanation and a
bona
fide
defence which carries some prospect of success)
is
met; for obvious reasons a party showing no prospect of success on
the merits will fail in an application for rescission of a
default
judgment against him, no matter how reasonable and convincing the
explanation of his default. And ordered judicial
process would
be negated if, on the other hand, a party who could offer no
explanation of his default other than his disdain of
the Rules was
nevertheless permitted to have a judgment against him rescinded on
the ground that he had reasonable prospects of
success on the
merits.”
[23] Mr
Sander referred to
Hassim
Hardware v Fab Tanks
(1120/2016)
[2017] ZASCA 145
(13 October 2017), an unreported
judgment of the Supreme Court of Appeal, to bolster his argument and
therefore I need to refer
thereto. He emphasised, based
inter
alia
on
the
dictum
in para [12] of this judgment, that an applicant for rescission does
not have to
“
illustrate
a probability of success, but rather the existence of an issue fit
for trial.”
It
must be mentioned that the court accepted in the same paragraph the
requirements set out in
Colyn
supra
referred to herein above. The judgment must be considered in
context and I shall do that when I evaluate the evidence.
[24] Although
courts are slow to penalise a litigant for his attorney’s inept
or negligent conduct during litigation,
“
there
comes a point where there is no alternative but to make the client
bear the consequences of the negligence of his attorneys.”
See
Colyn
supra
at para [12], relying with approval on
Saloojee
and another NNO v Minister of Community Development
1965 (2) SA 135
(A). Where a litigant relies on the ineptitude
or negligence of his attorney, he should show that such action or
inaction
should not be imputed to him.
VIII
AN EVALUATION OF THE APPLICATION
[25]
Applicant’s founding affidavit is vague in the extreme as shown
supra
.
A reading thereof leaves one with the impression that applicant
believed that rescission of the default judgment was there
for the
taking. No reasonable and acceptable explanation for the
default was presented. It was left to the court to
speculate as
to what occurred over a period of nearly a year and I formed a
distinct impression that the two attorneys who
deposed to
confirmatory affidavits, apparently in support of the application,
tried their utmost to conceal the true facts to the
court in an
attempt to avoid an inference of negligence to be drawn. I
shall explain shortly.
[26] In
Hassim
Hardware supra
the Supreme Court of Appeal had little difficulty to accept that a
reasonable and acceptable explanation for the default had been
provided. During protracted pre-litigation communication
between the attorneys for the parties, appellant’s new attorney
informed his opponent, without appellant having been aware thereof,
that service of the summons would be accepted at the attorney’s
office. The attorney fell seriously ill suddenly and was even
hospitalised for a short while. During his absence from
office
the summons was served and his staff failed to adhere to his
instructions, causing default judgment to be obtained.
The SCA
was satisfied that the attorney
“
put
enough measures in place to look after appellant’s interests in
his absence”
and
his firm’s failure to file a notice of intention to defend and
the shortcomings of his staff in this regard did
“
not
warrant that appellant be penalised.”
A
short period of delay occurred and the SCA was not prepared to find,
as submitted on behalf of respondent, that appellant showed
disinterest in how his attorney was conducting his case. See:
para [15].
[27] In
adjudicating the first requirement, I need to emphasise the fiduciary
duties of attorneys and say something about
Rule 16. The Code
of Conduct for Legal Practitioners published in Government Gazette
38022 of 22 September 2014 came into
force on 1 November 2018 only,
the date when the Legal Practice Act came into operation; however the
ethical rules set out in the
Code are nothing new and these have been
accepted as the norms applicable to attorneys over decades. It
is stated in rule
3.3 that attorneys must treat the interests of
their clients as paramount, provided that their conduct shall always
be subject
to their duty to the court, the interests of justice and
observation of the law. I am of the view that this did not
occur
in
casu
.
Applicant was neglected by either Mr Noordman, or whoever has taken
over his files when he left Matsepes – apparently
Mr Bronner –
or both attorneys. Mr Bronner, if he was the responsible
attorney, failed to explain why Matsepes accepted
pleadings and
documents in the applicant’s matter which it should have
refused to accept once the firm’s mandate had
been terminated.
See in this regard
Erasmus,
Superior Court Practice
,
D1 – 162 and
Barclays
Bank DCO v Van Niekerk
1965 (2) SA 78
(O). If Matsepes’ mandate was terminated,
they should have withdrawn as attorneys of record in which event
service
of any pleadings and notices on it after such termination of
mandate and withdrawal would have been invalid. However,
Matsepes
did apparently not withdraw as applicant’s attorneys.
They were more concerned about payment of their fees than applicant’s
interests. This is further reason why applicant and Mr Noordman
should have acted responsibly and forthwith to prevent any
default as
could have been predicted
in
casu
.
[28] Rule 16
deals with representation of parties during litigation. Rule 16(2) is
clear authority that a party represented
by an attorney in any
proceedings may at any time terminate such attorney’s mandate
and thereafter the party may act in person
or appoint another
attorney to act for him. In such a case notice must be given to
the registrar and all parties to the litigation.
The new
attorney’s name and address must be provided if one has been
appointed. This is contrary to Mr Sander’s
submission
that Mr Noordman could not get on record unless Matsepes withdrew as
attorneys. A former attorney can never hold
a client ransom
during litigation as Mr Sander wanted the court to accept.
Obviously, the former attorney may decline to
hand over the relevant
file pending payment of the account. If Mr Noordman and his
client acted in terms of this rule immediately
after he had left
Matsepes’ employ, all further pleadings and notices would have
been served on Mr Noordman’s new firm.
The vagueness of
applicant and the two attorneys makes it difficult to blame anyone to
the exclusion of the other.
[29] It must
be accepted that Matsepes did not withdraw as attorneys of record in
terms of Rule 16(4). Respondent’s
attorneys would not
know that Matsepes did not act for applicant anymore. Applicant
had a duty to ensure that its appointed
attorney carry out its
mandate in a proper fashion to defend the claim until finality is
obtained. It had to continuously
enquire how the litigation was
developing. It should have become apparent that neither
Matsepes, nor Mr Noordman treated
its interests as paramount.
It did not get feed-back from Matsepes and Mr Noordman did not inform
it,
ex
facie
the application papers, of any developments. The first firm
wanted payment of their fees, but did not settle the account
of the
cost consultant and could not obtain taxed bills of costs to claim
payment from applicant. Applicant and Mr Noordman
should have
been aware that Matsepes would not act in the interests of
applicant. Matsepes had a conflict of interest in
that they
were still officially representing the applicant, but failed to act
in the interests of applicant
ex
facie
the documents presented to the court. Mr Bronner, if he was
really entrusted with applicant’s file which cannot be
determined with certainty, acted negligently, if not recklessly, in
that he not only received a declaration from the opposite side,
but a
notice of bar as well. He should have appreciated that judgment
by default would follow. On the basis that he
received
instructions soon after leaving the employ of Matsepes, Mr Noordman
failed to carry out his mandate immediately by assisting
applicant to
terminate Matsepes’ mandate and give notice in terms of Rule
16(2). Red lights should have drawn both
attorneys’
attention to the seriousness of the matter, but they apparently
elected to ignore this.
[30]
The applicant, improperly assisted by two attorneys, failed to give a
reasonable and adequate explanation for its
default. There is
also no reason why the ineptitude or negligence of the attorneys
should not be imputed to it. Consequently,
the first
requirement for rescission was not met and this should really be the
end of the enquiry, based on the
dicta
in
inter
alia Colyn
and
Chetty
supra.
[31] I am
satisfied that the application is not
bona
fide
.
Unlike as what transpired in
Hassim
Hardware supra
,
there is no indication of any dispute on the merits in the papers
before the court prior to the filing of the notice of motion.
Out of the blue, mention is made in the founding affidavit of certain
defences,
inter
alia
that respondent repudiated the agreement between the parties, which
allegedly occurred three years ago, which was accepted in December
2018 only. This has a bearing on the defence and the third
requirement of rescission of judgment applications and will be
dealt
with again
infra
.
For purposes of considering the
bona
fides
in launching the application, it needs to be explained that neither
applicant, nor its attorney, Mr Noordman who received the initial
instruction to defend the main action and who surfaced again in
December 2018 after a warrant of execution had been served on
applicant, makes reference to any communication relating to a dispute
between the parties prior to institution of this application.
Applicant probably hoped that it would be the better option to let
sleeping dogs lie and that the problem would evaporate without
the
necessity of keeping abreast with possible future action by
respondent.
[32] No
bona
fide
defence has been shown. I refer to the factual matrix
supra
.
Applicant paid its first and only instalment of R100 000.00 on
13 August 2015 after having experienced endless problems
with
defective goods on its version. This is extremely improbable
conduct. The triple deck screen was handed back in
August 2016,
a year later and long after applicant had ceased working in Lesotho.
There is a dispute on precisely what led
to this, but it was on all
probabilities triggered by the credit advanced to applicant in
respect of the triple deck screen.
I am satisfied that this
dispute and other factual disputes should be adjudicated on
respondent’s version based on the principles
enunciated in
Plascon Evans. I have no reason to reject respondent’s
version as far-fetched or false. As indicated
earlier,
applicant has provided a vague and improbable version. It is
guilty of causing smokes and mirrors in respect of
not only the
reasons for the default, but also the failure to settle its dues in
respect of the contract with respondent. I am
satisfied that the
acceptable version put forward by respondent makes it quite clear
that respondent complied with all its contractual
obligations and
that applicant used the goods for several months since December 2014
in furtherance of its obligations at the mining
site in Lesotho.
No breach of contract by respondent or any repudiation has taken
place. Applicant failed to pay the
reduced balance purchase
price.
[33] There is another
reason why applicant’s alleged defence has no prospects of
success. It cannot now rely on acceptance
of the alleged
repudiation and cancellation of the agreement three years after
repudiation had occurred. It had to make an
election several
years ago which it failed to do. See
Christie’s
The Law of Contract in South Africa
,
6
th
ed at 563 and further, together with authorities quoted.
Enforcement of a contract and cancellation are inconsistent remedies
and mutually exclusive. Applicant was duty-bound to make its
election to accept the alleged repudiation and to cancel the
contract
within a reasonable time as stated in
Christie
at
564. It failed to act accordingly.
J P DAFFUE, J
On
behalf of Applicant
: Adv A Sander
Instructed
by
: Noordmans Attorneys
Bloemfontein
On
behalf of Respondent : Adv
LC Leysath
Instructed
by
: c/o Symington & de Kok
Bloemfontein