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[2017] ZAGPPHC 389
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Avente Mineral Reclaimers CC v Just Coat Kendal CC (22501/2014) [2017] ZAGPPHC 389 (28 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
SOUTH DIVISION, PRETORIA
Case
no: 22501/2014
Reportable:
No
Of
interest to other Judges: No
Date:
28 March 2017
In
the matter between:
AVENTE
MINERAL RECLAIMERS
CC APPLICANT
AND
JUST
COAL KENDAL
CC RESPONDENT
Heard:
05 December 2016
Delivered:
28 March 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an application to rescind the summary judgment made by this
court on 5 August 2014, in terms of which the applicant
was required
to pay the respondent the amounts of R2 874 038 .27 and R272 046.03
with the prescribed interest rate. The summary
judgment was made in
default of the applicant.
[2]
The respondent has applied for condonation for the late filing of its
answering affidavit. Considering all the relevant factors
and taking
into account the interest of justice I see no reason why condonation
should not be granted.
[3]
The dispute between the parties arose from a credit facility which
the respondent had granted to the applicant during January
2014.
[4]
On 18 March 2014 the respondent issued summons against the applicant
and thereafter filed the application for the summary judgment
on 14
April 2014.
[5]
The first issue in this matter is whether the application for summary
judgment was served on the applicant and if so, has the
applicant
provided a satisfactory explanation for the default in opposing that
application.
[6]
The attorney of record of the applicant was Mr Saleem Ebrahim,
practising as such in Johannesburg. It was for this reason that
a
correspondent based in Pretoria was appointed as the proceedings were
instituted in that jurisdiction. The correspondent attorney
was Linky
Schutte Inc (Linky Schutte)
[7]
The reasons for not opposing the summary judgment are set out in the
applicant's founding affidavit as follows:
"14.
This document was never brought to my attorney of record
and appears to have been misplaced, alternatively
misfiled,
alternatively, never received. I pause to point out that there is a
very likely possibility that the document was emailed
to my attorney
of record but never received as my attorney
of record's IT infrastructure was
overhauled entirely
during the latter part of the second week of April 2014. Their entire
IT was upgraded including all computers
and laptops in order to make
their offices more efficient and to upgrade their internet
facilities, as
well as migration to
a new Legal Operating System,
namely
"Legal Suite". I am advice which advice I accept as
correct that during the period of the upgrade of their IT
infrastructure
that numerous "teething" problems were
experienced and several emails were never received on various
matters."
[8]
According to the applicant it did not oppose the summary judgment
because it was not aware of the application, otherwise, it
would have
opposed it. It states in its founding affidavit that it became aware
of the summary judgment on 29 September 2014, when
so informed by the
respondent's attorneys.
[9]
In relation to the issue of a
bona fide
defence, the applicant
states that it had encountered problems with the respondent's
account's department, which included incorrect
pricing and failure to
allocate payment timeously. It is further stated that the respondent
was aware that the applicant disputed
the amount alleged to be owing.
Evaluation
[10]
It is trite that in order to succeed in an application for rescission
the applicant needs to show good cause. The requirements
for good
cause are the following; (a) a reasonable explanation for the
default; (b) brought on
bona fide
grounds and; (c) the
applicant has
bona fide
defence.
[11]
In the present matter it is not disputed that the application for
summary judgment was served on the applicant's attorney of
record on
14 April 2014 via the Pretoria correspondent.
[12]
The explanation of Mr Wilking, the deponent to the founding
affidavit, can be summarised as follows; "(the application)
appears to have been misplaced, alternatively misfiled,
alternatively, never received."
[13]
In my view the explanation by Mr Wilking is highly speculative and is
not based on facts as to what happened to the application
for summary
judgment which was served on Linky Schutte. It has not been disputed
that the application was served on the correspondent
in Pretoria.
There is no evidence dealing with this fact in the founding
affidavit.
[14]
The explanation of Mr Ebrahim, the attorney of record of the
applicant, which is set out in the confirmatory affidavit is that
he
experienced problems in receiving emails during April 2014. Whilst
this has not been disputed and may be accepted as a fact,
it does
not, however, deal with what happened at Linky Schutte's office once
the service was effected. It has to be noted that
this was the office
chosen for service by the applicant.
[15]
There is no evidence in the founding affidavit that upon receipt of
the service Linky Schutte forwarded the same to Mr Ebrahim.
There is
also no confirmatory affidavit attached to the founding affidavit
from Linky Schutte.
[16]
In my view, the only reasonable inference that can be drawn from the
above is that upon receipt of the application for the
summary
judgment, Linky Schutte sat back and did nothing. The issue that then
arises from this inference is whether the applicant,
as client,
should take responsibility for the inaction or negligence of Linky
Schutte.
[17]
Whilst accepting that a client should not suffer as a result of the
inaction or negligence of his/her attorney, it is not enough
for the
client to blame the attorney and hope for the indulgence by the
court. In this context the client in seeking the indulgence
of the
court has to make out a case for such indulgence.
[18]
It is trite
that there is a limit beyond which a litigant cannot escape the
results of his/her attorney's lack of diligence or insufficiency.
This approach is based on the basic principle that clients choose
their legal representatives and so an innocent party should not
be
prejudiced by the choice he or she had no say or control over. The
approach to be adopted when dealing with a client that blames
his or
her attorney for failure to comply with the rules or the law was set
out in
Saloojee
and Anoth er NNO v Minister of Community Development
,
[1]
as follows:
"To hold otherwise
might have a disastrous effect upon the observance of the Rules of
this Court. Considerations
ad misericordian
should not be
allowed to become an invitation to laxity. In
fact, this court has lately been burdened with
an undue and
increasing number of applications for condonation in which the
failure to comply with the Rules of this Court was
due to neglect on
the part of the attorney. The attorney, after all, is the
representative whom the litigant has chosen
for himself, and there is
little reason why, in regard to condonation of the failure to
comply with the Rule of Court,
the litigant should be absolved
from the normal consequences of such a relationship, no matter what
the circumstances of the failure
are."
[19]
The other reason why the court would in general not readily indulge
in a situation such as the present is that the applicant
is not
without a remedy. A remedy lies against the negligent attorney.
[20]
It is important to note that in the present matter there is no
application for the condonation of the tardiness of Linky Schutte.
[21]
In my view, even if the above was to be found to be incorrect the
application would still fail on the ground that the applicant
has not
made out a case for a
bona fide
defence. In this respect not
only does Mr Wilking fail to attach the summons of the respondent to
his founding affidavit but also,
that does not feature in the
applicant's papers. This creates a difficulty for the court in
evaluating whether a
bona fide
defence justifying the
rescission of the summary judgment exist.
[22]
The second defence raised in the heads of argument on behalf of the
applicant is that, whilst accepting that it owes money
to the
respondent it was not all that which appears in the summons. This
does not assist the applicant's case as it is a trite
principle of
our law that the applicant has to make out its case in the founding
affidavit and further that the applicant stands
or fall by what is
stated therein. The authorities are also in agreement that the
applicant who fails to make out a case in the
founding affidavit is
not entitled to the relief sought in the notice of motion.
[23]
In my view, there is no basis to consider the two defences raised by
the applicant in its heads of argument. It thus follows
from the
above reasons that the applicant's rescission application stands to
fail.
Order
[24]
In the premises the applicant's application is dismissed
with costs.
______________________
E.M
Molahlehi
Judge
Gauteng High Court: Johannesburg
APPEARANCES
APPLICANT:
Adv A Rawhani
Instructed
by Mboweni Attorneys
RESPONDENT:
Adv K Hopkins
Instructed
by Haasbroek & Boezaart Inc.
[1]
1965 (2) SA 135
(A) at P136