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[2019] ZAFSHC 183
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Golden Peanut and Tree Nut SA (Pty) Ltd v Vermeulen N.O and Others (4975/2017) [2019] ZAFSHC 183 (7 October 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Case
no: 4975/2017
In the
matter between:
GOLDEN
PEANUT AND TREE NUT SA (Pty) Ltd
Applicant
and
JOHANNES
URBANUS VERMEULEN N.O.
First
Respondent
STEPHEN
FOUCHEE
N.O.
Second
Respondent
JOHANNES
URBANUS VERMEULEN
Third
Respondent
Coram:
OPPERMAN, J
Heard
:
12 September 2019
Delivered
:
7 October 2019
JUDGMENT
[1] This
is an application for an order that the matter be referred
to trial
in accordance with rule 6(5)(g) of the Uniform Rules of the High
Court.
[1]
[2] The
applicant instituted motion proceedings for final judgment against
the respondents and for the perfection of a notarial bond registered
in favour of the applicant. The applicant maintained that
the
numerous factual disputes that exist and which are incapable of being
determined on papers are now ripe for trial.
[3] The
respondents opposed the application and contended that obvious
factual disputes existed when the applicant elected to pursue its
claim in terms of motion proceedings and the application should
be
dismissed with costs.
[4] The
respondents furthermore propose that because the agreement
constitutes a credit agreement as contemplated in the
National
Credit Act
34 of 2005
and as a result of the applicant’s
non-compliance with
sections 129
and
130
of said act, the application
does not disclose a cause of action and should therefore be
dismissed. Even this issue is in dispute
on the facts and law as the
case is.
[5]
If
a court is unable to decide an application on paper, it may dismiss
the application or refer the matter for oral evidence or
refer the
matter to trial. The court should adopt the process that is
best calculated to ensure that justice is done with
the least delay
on the merits of the case.
[6]
Everybody
seeking justice have the right to be heard in a court of law in terms
of section 34 of the Constitution of the Republic
of South Africa,
1996.
[2]
[7]
Frustration
often occurs when motion procedures are elected in the face of severe
and clear dispute of facts. Justice is not seen
to be done because,
among others, the veracity of evidence cannot be adjudicated
effectively and evidence cannot be properly weighed.
Cases might be
tainted with speculation and uncertainty in fact and law.
[8]
Dismissal
may follow if the dispute of fact should have been foreseen.
The rule may, however, yield to the interest of justice
and a
resulting referral for trial. A proper costs order may repair an
imbalance that was caused by slovenly or negligent litigation
if the
dispute was foreseeable or the process abused.
[3]
[9]
In
Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd
1949 (3) SA 1155
(T)
at 1162 it was stated that it is undesirable to attempt to settle
disputes of fact solely on probabilities disclosed in contradictory
affidavits as opposed to
viva voce
evidence. The judgement refers to the fact that the tendency of
resorting to affidavits has been denounced ninety years ago by
Tindall, J in
Saperstein v Venter's
Assignee
1929 TPD 14
, P.H.A at [71] and
is still the law.
[10]
In
confirmation of the above; in
The
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) Harms, JP ruled at [26] and [27] that motion
proceedings, unless concerned with interim relief, are all about the
resolution
of legal issues based on common cause facts. Unless the
circumstances are special, they, motion procedures, cannot be used to
resolve
factual issues because they are not designed to determine
probabilities.
[11]
A
person claiming relief acts at his peril in proceeding by motion
action; he cannot by electing to proceed by motion deprive his
opponent of a number of procedural advantages. The flip side is that
the respondent may not sabotage the proceedings that is established
law for expeditious and cost-efficient resolve of civil cases.
[12]
The
applicant vehemently denied that any disputes of fact existed on the
issue of the summons in 2017. The disputes were realised
after
settlement negotiations were instituted. Applicant accused the
respondents of an attitude that is one of an attempt to strong-arm
the applicant for purpose of settlement.
[13]
The
decree in section 34 of the Constitution of the Republic of South
Africa, 1996 does not propose for the justice system to become
a
playground for strategic litigatory moves that bends the law like
clay into distortions of fairness and truth. Access to justice
is to
be revered and not battered for strategic litigatory moves. Selby
[4]
is correct when he stated that: “I decry such an approach when
it replaces ‘the interests of justice’ with ‘I
must
win’.”
[14]
After
scrutinising the papers and hearing counsel I am convinced that the
severity of the claims, disputes and the interest of justice
call for
the parties to be send to trial.
[15]
The
facts and the manner in which the case developed over the years
directs the court to a ruling that costs must be adjudicated
after
trial and to follow the cause.
[16]
Order
1.
The
applicant’s application under the above case number is referred
to trial.
2.
The
notice of motion in the application shall stand as the applicant’s
simple summons.
3.
The
respondents’ answering affidavit shall stand as the first to
third respondents’ notice of intent to defend.
4.
The
applicant shall, as plaintiff in the action, within 20 days of the
date of this order deliver its declaration.
5.
The
further exchange of pleadings and pre-trial procedures, including
discovery and the request for and provision of trial particulars,
shall be regulated by the Uniform Rules of the Court in respect of
action proceedings and the judicial case-management practices
of this
court.
6.
Costs
occasioned by the application, including the costs relating to the
opposed motion, are reserved for determination in the trial.
M. OPPERMAN, J
Appearances
For
applicant:
Adv. J.W. Steyn
Chambers
Sandton
Instructed
by:
Cliffe Dekker Hofmeyer Incorporated
Sandton
Ref: Burton Meyer/01993913
For
respondents:
Adv. C.D. Pienaar
Chambers
Bloemfontein
Instructed
by:
Phatsoane Henney Attorneys
Bloemfontein
Ref: MV/SJ/VER53/0006
[1]
“Where
an application cannot properly be decided on affidavit the
court may
dismiss the application or make such order as it deems fit with a
view to ensuring a just and expeditious decision.
In particular, but
without affecting the generality of the afore-going, it may direct
that oral evidence be heard on specified
issues with a view to
resolving any dispute of fact and to that end may order any deponent
to appear personally or grant leave
for such deponent or any other
person to be subpoenaed to appear and be examined and cross-examined
as a witness or it may refer
the matter to trial with appropriate
directions as to pleadings or definition of issues, or otherwise.”
[Substituted by
GG
39715 of 19 February 2016
–
Regulation Gazette
10566, Vol 608.]
[2]
34. Access to courts.
“
Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum.”
[3]
Harms:
Civil
Procedure in the Superior Courts
, Last Updated: June 2019,
https://www.mylexisnexis.co.za/Index.aspx
dated
4 Oct 2019
at
B6.42 – B6.51.
[4]
http://advocacyteaching.blogspot.com/2013/01/trial-advocacy-professors-tell-me-that.html
,
Friday, January 4, 2013
Advocacy, Strategy and Fairness
:
A.S. Dreier Responds to Selby's Review of His Book We received the
following from A.S. Dreier, author of
Strategy,
Planning & Litigating to Win: Orchestrating Trial Outcomes with
Systems Theory, Psychology, Military Science and
Utility Theory
,
in response to Hugh Selby's
review
of his book
published on this blog in December.