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[2016] ZAGPPHC 17
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Ntwampe and Others v Royal Family of Magadimana Ntweng (Mampuru Group) and Others (53333/2010) [2016] ZAGPPHC 17 (22 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 53333/2010
DATE:
22/1/2016
(1)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES /
NO
(3)
REVISED
DATE : 22/1/2016
SIGNATURE
IN
THE MATTER BETWEEN
DIPHALA
ASNATH NTWAMPE
1
ST
APPLICANT
NTWAMPE
JUSTICE NTWAMPE
2
ND
APPLICANT
THE
ROYAL FAMILY OF MAGADIMANA
NTWENG
(MATIBIDI GROUP)
3
RD
APPLICANT
AND
THE
ROYAL FAMILY OF MAGADIMANA NTWENG
(MAMPURU
GROUP)
1
ST
RESPONDENT
SEGOPOTJE
SCARA MAMPURU
2
ND
RESPONDENT
NKAHOLENG
JOHANNES NTWAMPE
3
RD
RESPONDENT
MANYAKU
MARIA THULARE
4
TH
RESPONDENT
MASHUPJE
HANS NWAMPE
5
TH
RESPONDENT
MORWAMOCHE
ANDREW NTWAMPE
6
TH
RESPONDENT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
This is an application seeking "an order setting aside the
judgment granted by the honourable
court on the 28
th
August 2014" and "an order that respondents' attorneys
J M Rampora Attorneys pay punitive costs on an attorney
and
client scale
de bonis propriis
". The
application is opposed.
BRIEF BACKGROUND
FACTS
[2]
The rescission of judgment applications by the Premier of the Limpopo
Province and the Royal Family
of Magadimana Ntweng Mampuru Group were
consolidated by the court on 14 June 2012. The applications
became an action as set
out in the order of the court. The
first and second plaintiffs were ordered to pay the costs as set out
in paragraphs 12
and 13 of the court order. Respondents'
attorneys then issued a warrant of execution on 12 September
2012. The
taxed costs appear to have been in excess of
R90 000,00. Respondents then brought an application to
have the warrant
of execution suspended pending the finalisation of
the main case. The respondents, on 28 August 2014 and on
an unopposed
basis, took the order which was granted by my brother
Bam J. My brother Bertelsmann J ordered the
consolidation
of the two applications on 14 June 2012.
Applicants contend that respondents ought not to have taken the order
by default
as it, at the time, had become clear that the application
had been opposed. Applicants have now brought this application
to have Bam J's order reversed. The application is opposed.
The respondents served their answering affidavits out of
time and did
not appeal the order of Bertelsmann J nor file heads of argument.
[3]
The issue that the court has to determine is whether the order that
was taken by default was competent.
[4]
The matter is based on the notice of motion annexure "NM"
to the founding affidavit.
The notice of motion sought an order
suspending the warrant of execution issued by the attorney on
12 September 2012.
According to the notice of motion, the
applicants in this matter, were to notify the respondents' attorneys
in writing on or before
5 August 2014 if they intended opposing
the application. They were then, on or before 19 August
2014, to file their
answering affidavit if they so chose.
[5]
The respondents contended that they received no notification that the
applicants were defending
the application. They further
contended that they also did not receive the answering affidavit.
On that basis an order
was then taken by default. They, as a
result, should not be blamed for what happened.
[6]
Applicants' version is that respondents' attorneys were duly notified
that the application was
opposed. Indeed applicants' notice of
intention to oppose was served on respondents' correspondents'
attorneys on 4 August
2014 as is evidenced by their stamp dated
the same date. Applicants' answering affidavit was served on
the same correspondents
on 21 August 2014 as is evidenced by
their date stamp on page 52 of the papers. Applicants, as
a result, contend
that respondents' attorneys were then aware that
the matter was duly opposed. This appears to be the case.
[7]
Applicants contend that respondents' attorneys, aware of this
position, proceeded to instruct
counsel to move the application on
the unopposed basis. It is respondents' attorneys' contention
that they were unaware that
the application was opposed when the
order was taken. Applicants contend that the court was misled
when the order was taken
and that respondents' attorneys' conduct in
misleading the court had been unethical and unprofessional.
[8]
The court has to answer whether respondents' attorneys' conduct was
indeed below par.
[9]
Applicants contend that instead of being given 15 days within which
to file their answering affidavit
they were given 9 days. Their
further contention is that the Practice Directive was not complied
with in that the notice
of motion set the matter down on a Thursday
instead of a Tuesday. The contentions, in my view, appear
correct.
[10] It
is clear that the notice of intention to oppose and the answering
affidavits were served on respondents'
attorneys' correspondents on
4 August and 21 August 2014. This was enough to
inform respondents' attorneys of the
status of the application.
It was the respondents' correspondent attorneys' duty to duly
inform their instructing attorneys
of the status of the application.
The documents, in my view, were duly served on the respondents'
attorneys. The matter
became opposed.
[11]
Respondents' attorneys contend that service of the documents on their
correspondents was not communicated
to them. It may well be
so. However, does that make the application unopposed? I
think not.
[12]
Respondents' attorneys contend that applicants' attorneys' letter to
their attorneys dated 27 August
2014 did not expressly state
that the matter was to be postponed and that they believed that
applicants were intending to ask for
a postponement in court in order
to file their opposing papers. Should respondents' attorneys,
upon receiving the letter
of 27 August 2014, have contacted
applicants' attorneys they surely would have been informed that the
matter had become opposed.
The contents of the letter clearly
show that there was something wrong with respondents' application.
This should have alerted
respondents' attorneys to the fact that the
matter was possibly opposed. They ought to have enquired from
their correspondents
if the matter indeed was unopposed. This
they did not do.
[13] It
may well be so that respondents' attorneys instructed their counsel
to first verify if indeed the application
was unopposed by
establishing if opposing papers were in the court file. This,
however, does not change the fact that a notice
of intention to
oppose and the answering affidavits had been served on their
correspondents. Applicants share no blame for
this.
[14]
Applicants' attorneys ensured that the important documents were
served. Respondents' correspondent
attorneys were the right
people to receive the documents. There is nothing else that
applicants' attorneys should have done.
The fact that the
documents were not in the court file might not have been as a result
of fault on the part of applicants' attorneys.
The court, in my
view, would not have granted the order by default had it known the
exact state of the matter.
[15]
Respondents in paragraph 23 of their opposing affidavit state that:
"The respondents
have tried to find an expedient way on (
sic
) the best interest
of justice to solve the matter by addressing a letter hereto attached
and marked annexure 'LET07'. The
letter offered to abandon
costs of the 28
th
August 2014 and leave the matter to
proceed to hearing on (s
ic
) February 2014 where the total
balance of costs would be reached as this main case has now been set
down for the 25
th
February 2014 and unfortunately the
suggestion was unacceptable."
One can understand the
reason for the applicants not accepting the suggestion.
The warrant of execution remains suspended
in circumstances
where applicants had done everything that they were supposed to have
done. This, in my view, led applicants
to pursue this
application as they were justified.
[16]
Applicants threatened to bring an application to have respondents'
answering affidavit struck out.
This did not happen and one can
only assume that the idea was abandoned. Applicants did not
file their replying affidavit
and this leaves respondents' attorneys'
averments in their answering affidavit intact. It therefore
cannot be said that the
version is not correct. According to
the deponent to the affidavit they were unaware that their
correspondents had been served
with the notice of intention to oppose
and the answering affidavit. This is not denied. It is
also not denied that
the documents were not in the court file when
the application was heard. This simply means that their
correspondents were
lax in their handling of the matter. To
impute this blame to respondents' attorneys, in my view, will not be
proper.
It therefore cannot be said that the court was misled
and that the conduct was fraudulent. Respondents' attorneys
have apparently
had to change their correspondents.
[17]
Having said this the issue remains whether the order, in light of the
facts of the matter as they now stand,
is competent. The simple
answer is that applicants cannot be blamed for what happened.
Neither can one blame their
attorneys. The notice of intention
to oppose and the answering affidavit were served on their behalf.
The service of
the notice of intention to oppose on 27 August
2014 has, in my view, been satisfactorily explained by the
applicants' attorneys
as an error. At any rate it has not
been denied that service of the notice of intention to oppose and the
answering
affidavit took place on 4 August and 21 August
2014. Had the court, on 28 August 2014, been aware of the
exact
state of affairs it would, in my view, not have granted the
order in the absence of the applicants.
[18]
Given the explanations of the deponent to respondents' answering
affidavit, it will not be fair and just
to order that respondents'
attorneys J M Rampora pay punitive costs on an attorney and
client scale
de bonis propriis
. However, it will be
prudent to order the respondents’ attorneys, JM Rampora, to pay
the costs of the application.
It will also not be proper to
refer the matter to the Law Society of the Northern Provinces.
[19]
The application, in my view, should succeed. In any event, Mr
Manasoe for the respondents conceded
that the order was erroneously
taken.
[20]
The order I make, in the result, is as follows:
1.
An order setting aside the judgment and order granted on 28 August
2014
is granted.
2.
Respondents' attorneys J M Rampora Attorneys are ordered to pay the
costs of the application
de bonis propriis
.
M W MSIMEKI
JUDGE OF THE GAUTENG
DIVISION, PRETORIA
53333-2010
HEARD
ON:
27
JULY 2015
FOR
THE APPLICANTS:
MR
THOBEJANE
INSTRUCTED
BY:
BOTHA
MASSYN & THOBEJANE
FOR
THE RESPONDENTS:
ADV
MANASOE
INSTRUCTED
BY:
J M
RAMPORA ATTORNEYS