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[2019] ZANCHC 23
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Seng v Experato (Pty) Ltd (CA&R 2/201818) [2019] ZANCHC 23 (17 May 2019)
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
Case
no: CA&R 2/201818
Date
heard: -02-2019
Date
delivered: 17-05-2019
In
the matter between:
RAMMUKU
JOHN SENG
Appellant
and
EXPERATO
(PTY) LTD
Respondent
Coram:
Phatshoane ADJP et O'Brien AJ
JUDGMENT
O'BRIEN
AJ
[1]
On 9 June 2017 the Magistrate's Court
sitting at Kimberley granted the following order:
"After due consideration the court
grants costs on
a
punitive
scale de bonis propriis on an attorney and own client scale including
the costs of travelling and costs of junior counsel
in favour of
the..... (sic)."
[2]
The
respondent obtained a default judgment against the appellant on 21
May 2012 in the Kimberley Magistrate's Court under case number
15136/2012. On 24 August 2016 the default judgment was rescinded by
that Court.
[3]
Notwithstanding
the above, the appellant, represented by NJ du Plessis &
Associates Inc., filed a second rescission of judgment
application
under the same case number on 10 April 2017.
[4]
Because
of the duplicitous nature of the second application the respondent
requested the appellant, through its attorneys, to withdraw
the
second rescission application. The appellant's attorneys were
informed that the second rescission application was superfluous;
had
already been rescinded and that should a withdrawal of that
application not be forthcoming the respondent would seek a cost
order
in respect of the dismissal of that application. Furthermore, the
appellant's attorneys would have to pay costs
de
bonis propriis
in the event of
non-withdrawal.
[5]
The
second rescission application was improper and should have been
withdrawn when the appellant's attorneys were alerted that the
matter
was re judicata. One would have thought it would have been the end of
matter in that the appellant would withdraw the second
rescission
application and tender the wasted costs.
[6]
Undeterred,
the appellant's attorneys, having been warned, had the unmitigated
temerity to persist with the second rescission application.
In light
of their persistence, as already alluded to, the learned Magistrate
granted a punitive cost order (as set out in paragraph
1 of this
judgment)
de bonis propriis
on
an attorney and client scale, including the travelling costs and the
cost of the employment of a junior counsel, against the
appellant.
[7]
However,
the appellant's attorneys, out of time and without an application for
condonation, filed a notice of appeal against the
cost order granted
by the Magistrate.
[8]
What
follows can only be described as a litany of errors, mistakes and
downright gross negligence which exhibits conduct unbecoming
of an
attorney. What it also shows, is exactly the opposite of what an
attorney should be doing when representing clients. Du Plessis
&
Associates Inc and by extension Mr N J du Plessis ("du Plessis")
had a complete disregard for the court rules in
a flagrant and
abusive manner.
The
notice of appeal
[9]
In
an attempt to recoup and enforce the cost order against N J du
Plessis & Associates Inc, the respondent's attorneys addressed
a
letter requesting them to make payment as per the cost order. This
prompted the appellant to file a notice of appeal dated 16
October
2017 which was faxed to the respondent on 17 October 2017. In terms
of Rule 50(1) of the Magistrate's Court Rules a notice
of appeal must
be delivered within 10 (ten) days after the date of judgment appealed
against. Because the judgment was handed down
on 9 June 2017 the
appeal should have been noted by 23 June 2017.
[10] Bearing in mind
that an appeal lies against an order granted by a court and not the
reasoning, it is
interesting to note that one of the grounds in the
appellant's notice of appeal is that the Magistrate had erred in
finding that
he had launched more than one rescission application.
This is patently incorrect as the appellant had filed two
applications for
rescission of judgment. This instance is indicative
of how this appeal was dealt with.
The
failure to provide security for the appeal
[11] Under Rule 51(4)
of the Magistrate's Court Rules an appeal shall be noted by the
delivery of notice,
and, unless the court of appeal shall otherwise
order, by giving security for the respondent's cost of appeal in the
amount of
R1,000.00. In cases where the State is involved or the
court of appeal orders otherwise or when Legal Aid is rendered by the
Legal
Aid Board, no security shall be so required.
[12]
During
argument on appeal, the appellant's representative stated from the
Bar that the necessary security for the prosecution of
the appeal was
provided, but no proof therefor was handed up.
Failure
to timeously prosecute the appeal
[13]
Rule 50(1) of the Uniform Rules of Court
stipulates that an appeal to the court against the decision of a
Magistrate in a civil
matter shall be prosecuted within 60 (sixty)
days after the noting of such appeal, and unless so prosecuted, it
shall be deemed
to have lapsed. Rule 50(4)(a) places an obligation on
an appellant to apply within 40 (forty) days after noting the appeal
to the
registrar in writing and on notice to all other parties for
the assignment of a date for the hearing of the appeal, and shall at
the same time make available to the registrar in writing his full
residential and postal address and the address of his attorney,
if he
is represented.
[14]
The
appeal was noted on 16 October 2017 and would have lapsed on 11
December 2017 when calculating the 40 day period. The appellant
had
failed to apply for a date within that period. The sixty-day period
to prosecute the appeal had lapsed on 16 January 2017.
However, the
appellant, on 27 July 2018 filed an application condoning the late
noting and failure to prosecute the appeal.
The correspondence
[15]
An
applicant shall, when applying for a date for the hearing of an
appeal, lodge two copies of the record of the lower court's
proceedings with the Registrar.
[16]
In
a letter dated 30 January 2018, the respondent's attorneys informed
the appellant's attorneys of their failure to file the record
of
appeal. The record was eventually served on the respondent's
attorneys on 31 January 2018. The appellant's attorneys were advised
that the appeal had lapsed for failure to prosecute and that the
delivery of the appeal record is a nullity. The respondent reserved
its client's rights. As at 31 January 2018 no application for
condonation for non-compliance with the Rules of Court or failure
of
the appellant to prosecute and/or reinstate the appeal had been
served and filed.
[17]
Instead
of addressing the issues raised in the letter, the appellant's
attorneys recorded in an e-mail addressed to the respondent's
attorneys that any attempt by the respondent to execute the judgment
would be improper and bad in law.
[18]
Approximately
six months later, following the filing of the record of appeal, the
appellant applied for condonation of the late
noting and prosecution
of the appeal. In his application for condonation, Du Plessis goes to
great lengths in explaining how the
default judgment was granted
against the appellant by the Kimberley Magistrate's Court, which is
situated more than a few hundred
kilometres from where the appellant
is ordinarily resident and employed; and that there was
non-compliance with the provisions
of the
National Credit Act, 34 of
2005
.
[19]
Du
Plessis goes into much detail to explain the already rescinded
judgment but fails to address the rescission itself. His reason
for
doing so is not hard to surmise. In my view, this appeal is a ruse
which is more about the cost order granted against the appellant's
firm than the judgment itself.
[20]
What
is further remarkable is that it is not the appellant who deposed to
the affidavit seeking condonation. Mr Du Plessis is the
deponent.
There is a dearth of explanation why it took a lengthy period to file
the application. An application for condonation
must clearly set out
the reasons for the delay and the prospects of success. Neither the
appellant nor Du Plessis dealt with these
aspects.
[21]
The
above notwithstanding, there is a more fundamental reason why the
appeal cannot succeed. Du Plessis states that he has the requisite
locus standi
to
file the appeal. This was gainsaid by the respondent who explained
that Du Plessis does not have the necessary mandate to prosecute
the
appeal. The respondent filed a notice in terms of rule 7 of the
Uniform Rules calling upon Du Plessis to provide proof of his
authority to bring the appeal. The respondent argues that the
appellant, who is a consumer, has no interest in the appeal.
Furthermore,
the appellant did not file a confirmatory affidavit
concerning the merits of the appeal.
[22]
During
argument, Du Plessis could not provide any proof that he has a power
of attorney to proceed with the appeal and to bring
an application
for condonation regarding the lapse of the appeal. The application
for condonation to note and prosecute the appeal
should be dismissed.
It lacks clarity, and information regarding the degree of lateness
and prospects of success. Likewise, no
proper authority as far as it
was requested in terms of the rule, was provided.
The
declarator
[23]
On
24 April 2018 the respondent brought an interlocutory application for
a declarator that the appeal be dismissed. In the alternative,
the
respondent asked for an order that the appellant deliver an
application for condonation for non-compliance with the Rules of
court. The declarator was issued out of this court on 4 May 2018 and
the application for condonation by the appellant was only
brought on
27 July 2018. This shows a lack of understanding, or willingness to
prosecute the appeal. Because of the order I propose
it is not
necessary to decide whether to grant a declarator or not.
Summary
[24]
Du
Plessis has flagrantly disregarded the Rules of Court. Furthermore,
there are numerous delays in the prosecution of this appeal
unaccounted for. The appeal was solely pursued on the basis that a
cost order
de bonis propriis
was
awarded against Mr Du Plessis's firm.
[25]
The
Registrar of this Court is ordered to submit a copy of this case and
judgment to the Legal Practice Council of the Eastern Cape
for
further investigation.
[26]
On
the issue of costs, regard being had to the conduct of the
appellant's attorneys, this is a case where the Court should mark
its
displeasure by means on an appropriate costs order. There was no
basis for NJ Du Plessis & Associates Inc to bring a second
rescission application. It was forewarned that the default judgment
was already rescinded, yet it persisted in unnecessary litigation
without an authority and out of time. I make the following order.
Order
1.
THE
APPEAL IS DISMISSED WITH COSTS ON AN ATTORNEY AND CLIENT SCALE TO BE
PAID BY THE FIRM OF ATTORNEYS NJ DU PLESSIS &
ASSOCIATES INC;
2.
THE
REGISTRAR OF THIS COURT IS DIRECTED TO FORWARD A COPY OF THIS
JUDGMENT TO THE LEGAL PRACTICE COUNCIL OF THE EASTERN CAPE FOR
AN
INVESTIGATION INTO THE CONDUCT OF MR NJ DU PLESSIS OF NJ DU PLESSIS &
ASSOCIATES INC.
O'BRIEN
AJ
Northern
Cape High Court, Kimberley
I
concur.
PHATSHOANE,
ADJP
Northern
Cape High Court, Kimberley
For
the Appellant:
Mr N
J Du
Plessis
Instructed
by:
Lulama
Lobi Inc.
For
the
Respondent:
Adv R J Groenewaldt
Instructed
by:
Duncan & Rothman