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[2019] ZAKZDHC 13
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Suchit v Majorie's Trading Enterprises CC and Others (7011/2016) [2019] ZAKZDHC 13 (12 August 2019)
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO: 7011/2016
In
the matter between:
VERUSHA
SUCHIT
Applicant
and
MAJORIE’S
TRADING ENTERPRISES CC
First Respondent
Registration
No: 2000/008150/23
YUSAIR
PROPERTY DEVELOPERS (PTY) LTD
Second
Respondent
Registration
No: 2014/052651/07
HUSSAN
FAROUK MOTALA
Third
Respondent
ORDER
(a)
The application is dismissed.
(b)
The Applicant is directed to
pay the First Respondent’s costs.
JUDGMENT
Delivered on: 12 August 2019
TOPPING AJ
[1]
This is an application for
condonation for the late filing of a plea.
[2]
The Applicant in this
application is the First Defendant in an action instituted out of
this court by Majories Trading Enterprises
CC, who is the First
Respondent herein. The parties have been referred to in these
papers as they are cited in the action
and I shall accordingly do
likewise.
[3]
This application has been set
down at the instance of the Plaintiff. Notice of such set down
was served upon the First Defendant’s
attorneys of record on
the 10
th
of December 2018 and upon the Second and Third Defendants, via the
Deputy Sheriff, on the 25
th
of January 2019. The Plaintiff’s heads of argument and
practice note were served upon the First Defendant’s attorneys
of record on the 27
th
of July 2019. It would appear from the aforegoing therefore
that the First Defendant has had notice of these proceedings
and is
aware that the matter has been set down on the opposed roll for
hearing.
[4]
There was no appearance for the
First Defendant at the commencement of these proceedings, despite her
name having been called out
prior to the commencement thereof.
At the commencement of the proceedings, counsel appearing for the
Plaintiff sought the
application to be dismissed, with costs. I
enquired of counsel whether I was enjoined to decide the matter on
its merits,
and after some debate, it was decided that it would be
appropriate for me to do so. By virtue of the conclusion I have
reached
in this matter, the outcome remains the same, save that, by
virtue of my decision having been based upon the merits of the
application,
a measure of finality will be achieved thereby, as
opposed to the application simply being dismissing by virtue of a
non-appearance
by the First Defendant.
[1]
[5]
The application is brought
pursuant to the provisions of Rule 27 of the Uniform Rules of Court.
[6]
The background to the
application, which I have gleaned from the First Defendant’s
founding affidavit, is as follows:
(a)
the Plaintiff institute action,
jointly and severally, against the First, Second and Third Defendants
(who are cited as the Second
and Third Respondents herein) for
payment of R 700,000.00;
(b)
the summons was served upon the
First Defendant in July 2016 and she entered an appearance to defend
on the 6
th
of September 2016;
(c)
an application for summary
judgment was instituted by the Plaintiff, which was refused on the
18
th
of November 2016 and the Defendants were given leave to defend the
action;
(d)
it appears that a Notice of Bar
was served on the First Defendant’s local correspondents on the
18
th
of January 2017;
(e)
it is alleged that she was
unaware that the Notice of Bar had been served;
(f)
the First Defendant alleges
that she became aware that an application for default judgment had
been instituted against her by the
Plaintiff on the 28
th
of May 2017;
(g)
that application was set down
for hearing on the 30
th
of May 2017;
(h)
it is alleged that the First
Defendant endeavour to file a plea on the 29
th
of May 2017, after becoming aware of the application for default
judgment;
(i)
it is contended that she filed
the plea in the hope that the Plaintiff would agree to remove the
bar;
(j)
it is also
contended that, despite the plea being served, no agreement was
reached and the Plaintiff persisted with its application
for default
judgment, which was set down for hearing on the 27
th
of April 2018;
(k)
this application for
condonation then appears to have been instituted on the 21
st
of February 2018.
[7]
The reasons given by the First
Defendant for her failure to file a plea are as follows:
(a)
after the summary judgment
application was refused on the 18
th
of November 2016, the First Defendant alleges that she experienced a
“grave trauma” and “massive upheaval”
in her
life;
(b)
she alleges that she was
diagnosed with Hodgkin’s lymphoma (respiratory cancer);
(c)
in support of this allegation
she puts up a letter from a medical practitioner, dated the 21
st
December 2018, stating that she had been ill since January 2017 and
that she was diagnosed with Hodgkin’s lymphoma in September
2017;
(d)
she states that she did not
file a plea immediately as she was unable to perform any of her
duties satisfactorily due to her illness;
(e)
she states that she received no
correspondence from the Plaintiff advising that it intended to place
her under bar;
(f)
she alleges that, had she
received such notice, she would have filed a plea immediately;
(g)
on the 28
th
of May 2017, she had occasion to visit her correspondent’s
offices and was advised that the Plaintiff had instituted an
application for default judgment.
[8]
On perusing the application,
she discovered that it was alleged that a notice of bar had been
served upon her on the 17
th
of January 2017.
[9]
She alleges that she was
totally unaware of such notice, as her correspondents had not advised
her of the receipt of same.
[10]
She addressed an email to the
correspondents on the 29
th
of May 2017, enquiring whether such notice had been served upon them,
and was advised that such had not. In support of this
she puts
up an email from the correspondents reflecting that they had not
received the said Notice.
[11]
On the 29
th
of May 2017, she addressed a letter to the Plaintiff’s
attorneys explaining that she had not received the Notice of Bar and
alerted them that she intended to file a plea. She also
requested that the application for default judgment be adjourned
or
withdrawn.
[12]
The First Defendant contends
that she has a
bona fide
defence to the Plaintiff’s claim.
[13]
The Plaintiff’s claim is
based upon the First Defendant’s alleged negligence as a
consequence of her paying the sum
of R 700,000.00, which had been
held in her attorneys trust account on its behalf, to the Second
Defendant.
[14]
The First Defendant’s
expressed defence to the claim is that she had paid the monies on the
instructions from the Plaintiff’s
representative, one John
Sondela.
[15]
In its opposing affidavit, the
Plaintiff challenges the
bona
fides
of the First
Defendant’s reasons for the delay. The Plaintiff contends
that:
(a)
the First Defendant has not
adequately explained what transpired between the period when the
summary judgment was refused and the
time when the Notice of Bar was
served, and why she did not file a plea within the time periods
prescribed in the Uniform Rules
of Court;
(b)
the Plaintiff challenges the
First Defendant’s failure to engage the assistance of counsel
in filing a plea timeously;
(c)
the Plaintiff contends that the
First Defendant is endeavouring to utilise the letter from the
medical practitioner as a smokescreen
for her failure to file a plea;
(d)
the Plaintiff criticises the
First Respondent’s failure to enquire whether a Notice of Bar
had been received prior to the
29
th
of May 2017; and finally
(e)
alleges that this court should
not accept the First Defendant’s explanation for her failure to
file the plea timeously.
[16]
As far as the First Defendant’s
alleged defence is concerned, the Plaintiff contends that:
(a)
the First Defendant has failed
to set out sufficient evidence to establish why she believed that the
said John Sondela (now named
John Sodlane) was a director of the
Plaintiff;
(b)
the Plaintiff contends the
First Defendant has not produced the documents which gave rise to the
fact that she satisfied herself
that he had authority to represent
the Plaintiff; and
(c)
it is further contended that
the First Defendant’s credibility is at stake as she has
contradicted herself in the submissions
she made to the KwaZulu-Natal
Law Society.
[17]
The Plaintiff points out,
insofar as the latter contention is concerned, that the First
Defendant alleges in her founding affidavit
that the monies were paid
upon the express instruction of the said John Sondela and goes no
further than that. The Plaintiff
has put up the First
Defendant’s submissions to the KwaZulu-Natal Law Society.
Such is in the form of an affidavit
deposed to in July 2016. Specific
reference is made to paragraphs 7 and 8 of the affidavit, wherein it
is alleged by the Plaintiff
that the First Defendant has contradicted
herself.
[18]
If one has reference to what is
contained in paragraph 7, it is alleged by the First Defendant that,
during December 2015, she had
been contacted by “John”,
which is a reference to John Sondela, and was advised that he had
secured the Plaintiff and
a third-party contractor, as companies to
complete projects that had been defined by the Third Defendant.
She was advised
that John had requested that the Plaintiff pay a
“security deposit” into her trust account and that the R
700,000.00,
forming the subject of the Plaintiff’s claim, was
so paid into her account on the 15
th
of December 2015. She then goes on to state that she thereafter
received a telephone call from John who requested that she
release
the monies from the trust account to the “recipients” as
instructed by him. She then somewhat curiously
states that she
“duly complied with such instructions but did not pay out the
monies”. She states that she received
calls from the
Third Defendant insisting that the monies be released, failing which
the “company would lose the project”
and that she “felt
highly pressured and forced into releasing the funds”. In
paragraph 8 she then states that
“after many calls and threats”
she eventually agreed to release the monies.
[19]
The Plaintiff therefore submits
that it would appear, from what is stated in her affidavit to the
KwaZulu-Natal Law Society, that
the First Defendant paid out the
monies at the behest, and upon the threats, of the Second Defendant
and not, as alleged in her
founding affidavit, upon the instruction
of John Sondela.
[20]
It was submitted on behalf of
the Plaintiff that, in an application of this nature, there are three
principal requirements for me
to exercise my discretion in favour of
granting this application, namely that:
(a)
the First Defendant has to
furnish a full and reasonable explanation which covers the entire
period of delay and her failure to
file the plea;
(b)
the First Defendant must
satisfy me that she has a
bona
fide
defence to the action;
and
(c)
the indulgence sough must not
prejudice the Plaintiff in any way that cannot be compensated by a
reasonable order of costs.
[21]
Insofar as the First
Defendant’s reason for the delay are concerned, she has, in
essence, admitted that she was remiss in
failing to file her plea
timeously. It is clear that she did not file a plea within the
20 days prescribed in the Uniform
Rules of Court.
[22]
If one has reference to Rule 26
of the Uniform Rules of Court however, a Defendant is only
ipso
facto
barred if he or she
fails to deliver a plea within five days of receipt of a Notice of
Bar. There was accordingly no real
sanction imposed upon the
First Defendant until the Plaintiff’s Notice of Bar was served
upon her local correspondents on
the 18
th
of January 2017. During this time, it is alleged by the First
Defendant that she was ill and was not giving her practice
the
required attention.
[23]
The First Defendant however
contends that she was not advised by her local correspondents that a
Notice of Bar had been served upon
her on the 18
th
of January 2017. It appears from annexure “E” to
the papers, that the Notice of Bar was served upon her local
correspondents on that date. For the First Defendant’s
contention to be correct, the local correspondents must not
to have
taken cognizance of the document.
[24]
Although it has not been
able to gainsay the First Defendant’s allegations regarding her
illness and the contention that her
local correspondents did not
advise her that a Notice of Bar had been served, the Plaintiff
criticises the First Defendant’s
inaction at the level of
evidencing an intention on her part to simply delay matters for as
long as she could. It was submitted
that she ought, as an
attorney, and if she was genuine in her defence of the action, to
have timeously filed a plea.
[25]
It is also submitted by
the Plaintiff that it would appear to be somewhat “fortuitous”
that the First Defendant became
aware of the fact that a default
judgment application had been instituted on the 28
th
of May 2017, two days before the matter had been set down for
hearing. The Plaintiff again submitted that this is indicative
of the First Defendant seeking merely to delay matters for as long as
she could and only reacting when she was compelled to do
so.
[26]
As far as the First Defendant’s
defence to the Plaintiff’s claim is concerned, it was conceded
by its counsel that,
if proved at trial, it would constitute a
bona
fide
defence to the
Plaintiff’s claim. The Plaintiff however criticises the
amount of evidence that the First Defendant
has set out to establish
that such defence is in fact bona fide and that she has the
confidence to present same in open court.
In this regard, the
Plaintiff refers to the apparent contradiction in the First
Defendant’s version of events as outlined
in her founding
affidavit and the affidavit submitted to the KwaZulu-Natal Law
Society.
[27]
At the end of the day, I am
enjoined to decide whether it would be in the interests of justice
for this application to be granted
or refused.
[28]
Although the Plaintiff is not
able to gainsay the contention that the First Defendant did not
receive notification of the Notice
of Bar or that she was ill during
this period, and that, if proved at trial, the defence raised would
constitute a defence to its
claim, I am not satisfied that the First
Defendant is genuine in her purported pursuit of such defence and
there are clear indications
that the First Defendant may be merely
seeking to delay matters further by the institution of these
proceedings.
[29]
As pointed out by the
Plaintiff’s counsel during argument, it would appear from the
chronology of events, that the First Defendant
has only reacted in
her purported defence of the action upon being compelled to do so by
virtue of the Plaintiff having instituted
some form of proceeding to
progress its claim further. In support of this contention it
was submitted that the First Defendant
did not file her plea
timeously, as she ought to have done as an attorney, and only
instituted these proceedings immediately before
the application for
default judgment was to be heard, and in an endeavour to halt the
determination thereof. The First Defendant
was also criticised
for not filing confirmatory affidavits by either her then
correspondent attorney or the medical practitioner
to support what
she has alleged in the founding affidavit. She is also
criticised for not filing a replying affidavit to
dispute any of the
allegations contained in the Plaintiff’s answering affidavit,
if they were untrue. This, so it was
submitted, evidences that
the First Defendant is not bona fide in instituting this application
but is merely seeking to delay matters
for as long as she is able to.
[30]
I am in agreement with the
aforesaid submissions. If the First Defendant was genuine in
seeking to defend the Plaintiff’s
action, she, being an
attorney, would have been more prudent and expeditious in ensuring
that a plea was timeously filed.
She would also, if she was
genuine in the institution of this application, have ensured that the
Plaintiff’s allegations,
as set out in its answering
affidavits, were replied to and that this application was timeously
set down for hearing and properly
argued on her behalf. She has
done none of the above and it has been left to the Plaintiff to set
this matter down in order
to seek finality on the matter. The
lack of appearance on behalf of the First Defendant also leaves doubt
as to whether she
is bona fide in the institution of this
application.
[31]
Taking the above into
consideration, I am of the view that the First Defendant has not
evidenced that she is bona fide in the institution
of these
proceedings and it would appear, from her conduct in the prosecution
thereof, that she is merely endeavouring to delay
the finalisation of
the Plaintiff’s action for as long as possible. I am
therefore of the opinion that the interests
of justice would be
served if this application were to be dismissed so as to entitle the
Plaintiff to prosecute its claim to finality
without further delay.
[32]
I therefore make the following
order:
(a)
The application is dismissed.
(b)
The Applicant is directed to
pay the First Respondent’s costs.
TOPPING
AJ
Appearances:
For the
Plaintiff :
Ms R Singh
Instructed
by:
MN Moabi Attorneys, Pretoria.
c/o:
Rajan Moodley & Associastes, Durban.
For the
First Defendant: No Appearance
Instructed
by:
Date of
hearing :
06 August 2019
Date
Delivered :
12 August
2019
[1]
With regard to the Plaintiff's entitlement to a
reasoned decision based on the merits, I refer to what was stated in
Ketler Investments
CC t/a Ketler Presentations vs Internet Service
Providers’ Association
2014 (2) SA 569
(GJ) at paragraphs 3-6.