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[2019] ZANCHC 48
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Business Partners Limited v Noordkaap Hardware (Pty) Ltd and Others (1886/2017) [2019] ZANCHC 48 (10 May 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: 1886/2017
Heard
on: 08/02/2019
Delivered
on: 10/05/2019
In
the matter between
BUSINESS
PARTNERS LIMITED
Plaintiff/Respondent
And
NOORDKAAP
HARDWARE
Defendant /First Applicant
(PTY)
LTD
JOHAN
STRYDOM
Defendant /Second Applicant
MARY
MAGDELINE STRYDOM
Defendant/Third Applicant
JUDGMENT
PAKATI
J
[1]
The first to third defendants/applicants, Noordkaap Hardware Pty Ltd,
Mr Johan Strydom and Ms Mary Magdeline
Strydom (“the
applicants”), apply for condonation of the late filing of their
plea in terms of Rule 27 (1) of the Uniform
Rules of Court. They
further seek an opportunity to file same within five days after
condonation has been granted. The plaintiff/respondent,
Business
Partners Limited (“the respondent”), opposes the
application.
[2]
On 16 August 2017 the respondent issued and filed summons against the
applicants for payment of the amounts
of money in respect of three
claims as follows,
(a)
Claim 1:
against
the first applicant: R927 620-36 for outstanding balance on the loan
agreement; R34 514-19, arrear royalties; R451 045-19;
in respect of
future royalties and interest on the said amounts at 12.5% per annum
compounded monthly in arrears,
a tempora morae
from 26 June
2017;
(b)
Claim 2
:
against second and third applicants as surety and co-principal debtor
in solidum
with the first applicant for the due and proper
payment by the first applicant for the performance on demand of all
obligations
and debts owed to the respondent in terms of the loan and
royalty agreements referred to in Claim 1 to the same amounts and
(c)
Claim 3
:
Mortgage bond in respect of the third applicant who bound herself as
surety
in solidum
and co-principal debtor limited to
R600-000-00 in respect of the principal debt plus and additional
R120 000-00 to cover legal
expenses, costs, insurance, rates and
taxes and interest.
[3]
It is not in dispute that the parties had agreed that all pleadings
and notices would be exchanged and served
electronically by email.
The applicants filed a notice of intention to defend the action and
subsequent to that the respondent
applied for summary judgment which
was opposed by the applicants by filing an opposing affidavit dated
07 November 2017. The respondent
granted the applicants leave to
defend the action. On 12 December 2017 the respondent’s
attorneys of record addressed a notice
of bar
via
email to the
applicants. In response the applicants’ attorneys served a
notice of exception on 13 December 2017 on the respondents’
attorneys. The respondent requested an extension from 08 January 2018
until 15 January 2018 in order to remedy the cause of complaint,
which was granted. The respondent filed a notice of intention to
amend its particulars of claim on 26 January 2018 and not on or
before 15 January 2018 as agreed by the parties. On 20 February 2018
the amended pages of the particulars of claim was served on
the
applicants’ attorneys.
[4]
The respondent’s attorneys served another notice of bar on the
applicants’ attorneys as per email
dated 23 March 2018 at
01:04PM (Annexure “G”). The applicants contend that all
pleadings and correspondence except
the notice of bar was
electronically served and received in the normal mail inbox of Mr
Willemse of CJ Willemse Müller &
Babinszky Attorneys. For
reasons unknown to them the notice of bar was received in the junk
mail inbox of Mr Willemse on 16 May
2018 when a notice of intention
to apply for default judgment was served and received (a printout and
screenshots from the junk
email attached as Annexures “H1”
& “H2”). The email therefore did not come to the
attention of Mr Willemse
due to unforeseen occurrence of events which
was not due to their fault, the argument goes. They urge the court
that they should
not be penalised for that.
[5]
When Mr Willemse learnt of the application for default judgment and
the reasons thereto he requested for condonation
for failure to file
their plea from the respondent’s attorneys, who refused the
request. The applicants insist that they
have a
bona fide
defence to the claim.
[6]
The respondent alleges that the applicants have failed to apply for
the bar to be uplifted as well as filing
a satisfactory explanation
by way of an affidavit dealing with the merits of the case. Ms Kayley
Joan Leverton, attorney of record
of the respondent and the deponent
to the answering affidavit, states that the averments made by the
applicants in the opposing
affidavit opposing summary judgment did
not deal with the merits of the claim and were calculated to exploit
what was perceived
to be deficiencies in the summons. .The five day
period permitted by Rule 26
[1]
of the Uniform Rules of Court expired on 03 April 2018. According to
Ms Leverton the applicants have to file an affidavit on the
merits
and make a proper application in which they explain the nature of
their defence. She argues that the fact that the notice
of bar did
not come to the applicants’ attention was due to their
inattention. This is so because they have no defence to
the claim.
She urges the court to dismiss the application with costs on a scale
as between attorney and own client as appears from
clause 6 of the
loan agreement which gave rise to these proceedings.
[7]
Ms Leverton states further that the bar was the second one to be
issued and that accepting the manner of service
via emails was the
risk the applicants were willing to take. She disputes that the
applicants have a
bona fide
defence to the claim and therefore
no proper case has been made out for the relief sought. She urges the
court to dismiss the application
with costs.
[8]
Rule 27
[2]
provides:
’
27
Extension of time and removal of bar and condonation
(1)
In the
absence of agreement between the parties, the Court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these rules or by an
order of Court or fix by an order extending or abridging any
time for
doing any act or taking any step in connection with any proceedings
of any nature whatsoever upon such terms as to it
seems meet.
(2)
Any such
extension may be ordered although the application therefore is not
made until after expiry of the time prescribed or fixed,
and the
Court ordering any such extension may make such order as to it seems
meet as to the recalling, varying or cancelling of
the results of the
expiry of any time so prescribed or fixed, whether such results flow
from the terms of any order or from these
Rules.
(3)
The Court
may, on good cause shown, condone any non-compliance with these
Rules.’
[9]
In
CHASEN
v RITTER
[3]
Burger AJ held:
‘
The power
conferred on the Court by Rule 27 (3) is wide:
‘
The Court may,
on good cause shown, condone any non-compliance with these Rules.’
The use of ‘any’
emphasises the absence of any restriction on the Court to condone or
to waive the requirements of its
own Rules. This is also the view of
Van Zyl J in
Mynhart v Mynhart
1986 (1) SA 456
(T)
at 463G
where he points to ‘enige nie-nakoming van die Reëls’,
and say that there is no justification to limit
the wide words of
Rule 27 (3). Ultimately one is left with the position that the Rule
authorises the condonation of any non-compliance
with the
requirements of these Rules. The requirement that the Registrar sign
the summons is a requirement of ‘these Rules’.
The only limitation
would be that which is inherent in the requirement to administer
justice, and in particular to ensure a fair
trial. This is the
paramount consideration transcending all rules. As was said in
Ncoweni v Bezuidenhout
1927 CPD 130:
‘
The Rules of
Procedure of this Court are devised for the purpose of administering
justice and not for hampering it and where the
Rules are deficient, I
shall go as far as I can in granting orders which would help to
further the administration of justice.’’’
[10] In
CITY
OF CAPE TOWN /INDEPENDENT MUNICIPAL AND ALLIED TRADE UNION obo
MALOY
[4]
the test applicable in a condonation application was stated thus:
‘
The test
applicable to applications for condonation is well known and I do not
intend, for purposes of this brief award, to analyse
the case law in
any great detail. It will suffice to state that the factors that need
to be considered in an application for condonation
are the degree of
lateness, the explanation for the delay, the prospects of success,
prejudice to the parties and the importance
of the matter to the
parties. I will accept that, insofar as the application for
condonation placed before me is concerned, the
same considerations
apply.’
[11] Rule 27 (3)
does not require that the applicants file a satisfactory affidavit
dealing with the merits of the case or
show that they have a
bona
fide
defence to the main action but show ‘
upon
application on notice and on good cause
’ why they did not
comply with the Rules. The applicants explained why they could not
receive the notice of bar dated 23 March
2018 and this could not be
disputed by the respondent. Paragraph 14 of the respondent’s
answering affidavit in response to
the applicants’ explanation
states:
‘
I
note the allegations in paragraphs 3.12, 3.13 and 3.13.1. It was
agreed that the pleadings would be exchanged by e-mail, and the
risk
of the communication not coming to the attention of the recipient was
therefore the risk which the defendants agreed to accept.
The Notice
of Bar was properly served. In any event, a reasonably prudent
attorney would have been on the lookout for a Notice
of Bar given the
amount of time which had lapsed and no plea submitted. No explanation
for not having prepared the plea has been
submitted.’
[12] Henochsberg
J in
NATHAN
(PTY) LTD v ALL METALS (PTY) LTD
[5]
had this to say:
‘
At
any rate, the Court has an inherent jurisdiction to raise
the bar notwithstanding
that the Rules of Court may make no provision therefor. In any such
application, if the applicant can show
good cause for the indulgence
of the Court which is asked, the Court will come to his assistance
and remove the bar unless it appears
that he has recklessly
disregarded his obligations under the Rules of Court, or the case
appears to be a hopeless one, or the Court
is convinced that he does
not really intend to proceed. The Court exercises its discretion
according to the circumstances of each
case, and generally leans
towards the granting of relief where it is satisfied that the
defendant is
bona
fide
in his belief that he has a good defence and that his delay is
reasonably excusable, and it would not seem to be necessary for
the
defendant in such circumstances to state the nature of his defence by
way of an affidavit of merits.’
[13] When the
agreement was made to exchange pleadings electronically by e-mail, I
do not think that any of the applicants
foresaw that some of the
correspondence would be discovered in the Junk Mail Inbox especially
when all other correspondence was
served and received in the normal
inbox. Immediately when Mr Willemse received the notice of intention
to apply for default judgment
served in the normal mail box he
requested for an application for condonation for their failure to
file the plea, which was refused.
[14] When the
request was turned down the applicants filed a notice of motion in
terms of Rule 27 on 23 May 2018. The respondent
states that a great
deal of time has elapsed but does not elaborate on how much time and
therefore does not give detail of the
prejudice it would have
suffered.
The
respondent confirms that the fact that the notice of bar did not come
to the attention of the applicants was indeed unfortunate.
[15]
Both parties did not
address the prospects of success. However, I take into account the
fact that the applicants were granted an
opportunity to defend the
matter when the application for summary judgment was heard suggesting
that they believed that they had
a
bona
fide
defence to the claim. I also take into consideration that it is
undisputed that the matter is important to the parties. Both parties
indicated an interest that the matter reaches finality.
[16] For the
reasons explained above I am satisfied that the applicants have given
a detailed and acceptable explanation for
their failure to comply
with the time periods. They have also shown good cause as to why the
Court has to grant condonation. The
non-compliance is not so severe
that litigation would be found to be a nullity.
[6]
The degree of lateness is reasonably excusable. The applicants have
also shown that they are
bona
fide
in their belief that they have a good defence. The application for
condonation ought to be granted.
COSTS
[17] In his heads
of argument Adv Eillert, on behalf of the applicants, urges me to
grant the application for condonation
with costs on an attorney and
client scale including costs of counsel. In prayer 3 of the notice of
motion the applicants ask for
costs of suit on a party and party
scale only in the event of the application being opposed.
[18] In its heads
of argument the respondent asked me to dismiss the application with
costs. In its answering affidavit it
asked for costs on a scale as
between attorney and own client scale. Yet in its supplementary heads
of argument filed on 06 February
2019, Ms Snyders, for the
respondent, requested me to consider awarding costs against the
applicants to include that:
‘
2.1
The respondent was tasked by the applicant to draft, serve and file
the notice of set down;
2.2
Paginate the Court file; and
2.3
File the applicants’ heads of argument on the court file.
3.
Generally speaking, a party seeking an indulgence should pay the
costs of the application, including the costs of the other party,
unless it is found that the opposition was unreasonable.’
It
is clear that the above was raised late and the applicants did not
have an opportunity to respond to same. This was supposed
to have
been raised in the answering affidavit giving an opportunity to the
applicants to reply. For that reason, I will disallow
it.
[19] The general
rule that costs follow the event is not applicable to successful
applications for the grant of an indulgence
by the court. The general
rule is that the applicant may even be ordered to pay the costs of
opposition to the application.
[7]
Where a litigant applies to court for condonation of non-compliance
with the provisions of statutes or rules of court and for
consequential relief, the general rule is that the applicant should
pay the costs of the application.
[8]
[20] The
applicants seek an indulgence for its non-compliance with the Rules
and should therefore pay for that. In my view,
it was not
unreasonable for the respondent to oppose the application for
condonation.
In
the circumstances I grant the following order:
1.
Condonation
is granted to the applicants for the failure to file their plea in
the prescribed time period.
2.
The
applicants are ordered to file their plea within (5) five Court days
after the granting of prayer 1 above
3.
The
applicants are ordered to pay costs of this application on a scale as
between party and party.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Plaintiff:
Adv A Eillert
Instructed
by:
Haarhoffs Attorneys
On
behalf of the Defendant:
Ms J Snyders
Instructed
by:
Engelsman
Magabane
[1]
Rule 26 of the Uniform Rules of
Court provides: ‘Any party who fails to deliver a replication
or subsequent pleading within
the time stated in rule 25 shall be
ipso facto
barred.’
[2]
Uniform Rules of Court
[3]
1992 (4) SA 323
(SE) at 328-329
[4]
[2013] JOL 23815
(SALGBC) at para 9.
[5]
1961 (1) SA 297
(N) at 300C-E.
[6]
See Minister of Prisons &
Another v Jongilanga
1985 (3) SA 117
(A) at 123.
[7]
Smith en ‘n Ander v Van
Heerden en Andere [2002] 4 All SA 461 (C) 474-475.
[8]
Van Marseveen v Union Government
1918 AD 60.