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[2017] ZAFSHC 133
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Harris and Another v Burger N.O. and Another (786/2017) [2017] ZAFSHC 133 (21 August 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 786/2017
In
the matter between:
RUDOLF
JOHANNES
HARRIS
1
st
Applicant
[Identity
number:
[5...]]
RACHEL
SOPHIA ELIZABETH HARRIS
2
nd
Applicant
[Identity
number:
[5...]]
and
ZANDER
CHRIS BURGER N.O
1
st
Respondent
[BLUE
GINGER TRUST – IT 276/2009]
THE
MASTER OF THE FS HIGH COURT
2
nd
Respondent
CONSIDERED:
IN CHAMBERS
JUDGMENT
BY:
RAMPAI, J
DELIVERED:
21 AUGUST 2017
[1]
This is an application for leave to appeal. The current
applicants were the first and second respondents in the main
application. On 11 May 2017 I gave an order against them in
favour of the current first and second respondents as the applicants
then.
[2]
I declared the two agreements between the parties null and void,
directed the parties to restore the respective performances
and
directed the respondents to pay the costs of the main application.
They were aggrieved. From now on I shall refer
to the parties
as they are cited in the instant application.
[3]
The instant application was enrolled for hearing on Monday 12 June
2017 at 14:15. The legal representatives duly attended
court to
present oral argument. However, for medical reasons, I was not
readily available to hear them. In view of
that, they agreed
that I should deal with the matter in chambers on the strength of
their written heads o argument. In other
words they mutually
dispensed with their right to present oral argument. I am
indebted to them and their clients.
[4]
There are 12 grounds of appeal relied upon by the applicants. I
deem it unnecessary to deal with each one of them.
The
collective thrust of all of them is that the main application was
opposed; that the respondents erroneously placed it
on the
unopposed motion court roll contrary to the provisions of Practice
Directive 1 of 2012; and that on 11 May 2017 I
erroneously
entertained the matter.
[5]
It is common cause that the main application was issued on 15
February 2017; that the sheriff served it upon the applicants
on the same day; that the applicants filed the required notice
of opposition on 2 March 2017; that the applicants had
time
until 24 March 2017 to file their answering affidavit; that
they failed to do so; that on 25 April 2017
the
respondents filed a notice of setdown for the hearing of the matter;
that the registrar placed the matter on the unopposed
motion court
roll; that on 11 May 2017 I was seized with the matter;
that by then the applicants had still not filed
the required
answering affidavit; that I took their omission to do so as an
inexcusable disregard of the court rules and
that I then made the
court order without hearing counsel for the applicants, Mr Olivier.
[6]
The applicants had signalled their intention to oppose the main
application. However, they neglected to file their answering
affidavit in terms of the rules of procedure. As on 11 May
2017, they were 48 calender days in default.
Notwithstanding
such appalling default, I had no jurisdiction, sitting as I was on
the bench of the general forum for the unopposed
motion proceedings,
to entertain the matter. Since it was an opposed matter it was
not supposed to have been on an unopposed
motion court roll.
The failure of the applicants to file the answering affidavit did
not, by itself, cure the procedural
irregularity by conferring on me
the jurisdiction I did not have. By overlooking the fact that
the matter remained opposed,
I committed procedural irregularity in
entertaining it.
[7]
In the light of those circumstances, I am persuaded by Mr Benade’s
submission that I erred. Considerations of procedural
fairness
dictate that I should grant leave to the applicants.
Consequently I am satisfied that the matter has a reasonable
prospect
of success on appeal. Given the material and appealable
procedural irregularities I committed, I am inclined to
believe that
another may well come to a different conclusion.
[8]
In the result I make the following order:
(a)
The
applicants’ application for their late filing of their heads of
argument is granted;
(b)
There is no
order of costs made as regards the condonation application;
(c)
The
applicants are granted leave to appeal to the full bench of this
division;
(d)
The costs
of the application shall be costs in the appeal.
_____________
MH
RAMPAI, J
On
behalf of applicant:
Adv HJ Benade
Instructed
by:
Symington & De Kok Attorneys
Bloemfontein
On
behalf of defendants: Adv DM Grewar
Instructed
by:
Adrie Hechter Attorneys
Bloemfontein