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[2016] ZAFSHC 21
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Knipe and Others v Lotz and Others (5081/2014, 4817/2014) [2016] ZAFSHC 21 (11 February 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION BLOEMFONTEI
Case
no: 5081/2014
4817/2014
In
the matter between:
JDJ
KNIPE
First
Applicant
ABJ
KNIPE
Second
Applicant
JMD
VIGNE
Third
Applicant
and
CAROL
JESSIE KATHLEEN LOTZ
First
Respondent
ROBERT
PETRUS JANSEN KNIPE
Second
Respondent
THE
COMPANIES AND INTELLECTUA
L
PROPERTY
COMMISSION
Third
Respondent
OA
NOORDMAN
NO
Fourth
Respondent
CB
ST CLAIR COOPER NO
Fifth
Respondent
SM
RAMPORORO NO
Sixth
Respondent
(in
their capacity as provisional liquidators
of
Kameelhoek (Pty) Ltd)
OA
NOORDMAN NO
Seventh
Respondent
CB
ST CLAIR COOPER
NO
Eighth
Respondent
SM
RAMPORORO NO
Ninth
Respondent
(in
their capacity as provisional liquidators
of
Schaapplaatz 978 (Pty) Ltd)
JUDGMENT
BY
:
G.
J. M. WRIGHT, AJ
HEARD
ON:
13
NOVEMBER 2015
DELIVERED
ON:
11
FEBRUARY 2016
[1]
This is an application in terms of Rule 30. The application deals
with steps taken in two separate applications for leave to
appeal.
The parties in the two applications for leave to appeal are
essentially the same, even though the respondents were cited
in a
different order in the two applications. In the present application
the citation in the heading follows the citation as in
case
4817/2014. For the sake of convenience and to prevent possible
confusion, I will refer to the relevant respondents by name
in as far
as it may be necessary.
[2]
The Applicants are applying for an order in the following terms:
(i) declaring the notices
of set-down in the applications for leave to appeal in cases
5081/2014 and 4817/2014 irregular steps;
(ii) setting aside the
notices of set-down;
(iii)
the Respondents to pay the costs of the application in terms of rule
30.
[3]
In order to properly understand this application and the milieu in
which it was launched, it is necessary to consider the relevant
background facts. I list a few of these:
(i)
The Applicants wish to appeal against my judgments in cases 5081/2014
and 4817/2014. The written
judgments were delivered on 25 June 2015.
(ii)
Applications for leave to appeal were filed on 17 July 2015. This was
within the time periods allowed
by Rule 49(1)(b).
(iii)
The Applicants took no steps to enrol the matters for argument.
(iv)
Van Zyl J was tasked to hear the applications for leave to appeal in
my absence. Mr. Senekal, the attorney
who represents the provisional
liquidators in both applications, arranged a date for the hearing of
the matters through contact
with the secretary of Van Zyl J.
(v)
Senekal filed and served notices of set-down for the applications for
leave to appeal on or about 8
September 2015. In terms thereof the
applications were to be heard on 23 September 2015 (the date arranged
with Van Zyl J and her
secretary). The notices were duly served on
the attorneys for all the other parties.
(vi)
Senekal was the only legal representative who was in communication
with the office of Van Zyl J prior to
the set-down of the matters.
(vii)
Attorneys for the Applicants filed a notice in terms of Rule
30(2)(b), affording the provisional liquidators an
opportunity to
withdraw the notices of set-down within 20 days. The Applicants
claimed that the notices were irregular steps. The
Rule 30 notice is
dated 17 September 2015. It was served on 18 September 2015 on some
of the parties and/or their attorneys.
(viii) The notices
of set-down were not withdrawn. This application in terms of Rule
30(2) is dated 22 September 2015. It
was served on the attorneys for
Carol on 22 September 2015 at 16h40. It was served on Pieter or his
attorney (it is unclear which)
on 23 September 2015 and on at least
one of the provisional liquidators on 23 September 2015 at 9h05. It
was not served on Senekal,
the attorney for the liquidators.
(ix)
The applications for leave to appeal did not proceed on 23 September
2015. The two applications, as well
as the Rule 30 application, were
by agreement postponed to 13 November 2013. All costs stood over for
later adjudication.
(x)
Opposing papers were filed on behalf of the provisional liquidators
and the Rule 30 application was
argued on 13 November 2015.
(xi)
The two applications for leave to appeal were also argued on 13
November 2016.
[4]
Even from a cursory reading of the founding papers it becomes
apparent that the alleged irregularity is attributed squarely
to
Senekal, the attorney representing the provisional liquidators. The
principal question is therefore whether the steps taken
by Senekal
(or the steps
not
taken by Senekal) were indeed irregular as envisaged by Rule 30.
[5]
Van Zyl J would initially have heard the matter and her secretary,
Hennie van Vuuren, was involved in the arrangements surrounding
the
set-down of the applications for 23 September 2015. There is a
dispute as to what exactly transpired between Van Vuuren en
Senekal.
Van Vuuren was declared to be a witness for the court and he deposed
to an affidavit, setting out his version of events
and responding to
the affidavits filed on behalf of the relevant parties. His version
of events is also contained in an e-mail
sent to Mr. Patel, attorney
for the Applicants, attached to the founding papers.
[6]
The version of Van Vuuren does not correspond with that of Senekal.
The Applicants made much of this and based several of their
arguments
on the version provided by Van Vuuren. Senekal vehemently denies the
facts set out by Van Vuuren. During oral argument
Mr. Rossouw,
counsel for the provisional liquidators, submitted that the matter
may be dealt with without making a finding on the
credibility of
either Van Vuuren or Senekal. It was further submitted that the
affidavit of Van Vuuren should be disregarded and
the matter decided
purely on the version of Senekal. Counsel for the Applicants did not
seriously oppose these submissions and
all parties argued the matter
without reference to Van Vuuren’s affidavit.
[7]
Senekal disputes firstly that he had an obligation to ensure that the
date is suitable to all concerned, secondly that Van Vuuren
requested
him to ensure that the date suits all, and thirdly that he (that is
Senekal) acted unilaterally in referring to dates
for the filing of
heads of argument.
[8]
The object of Rule 30(1) had been stated as follows in SA
METROPOLITAN LEWENSVERSEKERINGSMAATSKAPPY BPK v LOUW NO
1981 (4) SA
329
(O) at 333 G – H:
“
.
. . .
Rule
30(1) was intended as a procedure whereby a hindrance to the future
conducting of the litigation, whether it is created by
non-observance
of what the Rules of Court intended or otherwise, is removed
.”
[9]
A few general principles have been established through case law.
Amongst these is the principle that the subrule does not apply
to
omissions, but to positive steps or proceedings (See:
Jyoti
Structures Africa (Pty) Ltd V Krb Electrical Engineers; Masana
Mavuthani Electrical & Plumbing Services (Pty) Ltd t/a
Krb Masana
2011 (3) SA 231
(GSJ) at 235 A – B). A court has a discretion
whether or not to grant the application even if the irregularity is
established
(See:
Northern
Assurance Co Ltd v Somdaka
1960 (1) SA 588
(A) at 595 B). Courts often overlook an irregularity
in procedure which does not work any substantial prejudice to the
other side
(See:
Uitenhage
Municipality v Uys
1974 (3) SA 800
(E) at 805 D – E). Proof of prejudice is a
prerequisite to success in an application in terms of rule 30(1)
(See:
SA
Metropolitan Lewensversekerings-Maatskappy Bpk V Louw NO
1981 (4) SA 329
(O) at 333 G – 334 G).
[10]
The following facts are common cause:
(i)
Senekal took the initiative to approach the secretary of Van Zyl J
and request a date for the
matter to be heard. He did not invite the
legal representatives of any of the other parties to join him in this
endeavour.
(ii)
The legal representatives for the Applicants and the other
respondents were not contacted by Van Zyl
J or her secretary.
(iii)
No-one enquired from the Applicants’ legal representatives
whether the date of 23 September is suitable
to them.
(iv)
The Applicants and their attorneys were not involved in any of the
arrangements or the set-down of the matters.
They only became aware
of Senekal’s dealings with Van Vuuren after arrangements for
the hearing of the matter had already
been made.
(v)
The matters were set down with around 11 court days’ notice to
the Applicants and the other respondents.
The applications for leave
to appeal would have been heard during the court recess.
(vi)
After the matters were set down for hearing, Senekal was informed
that the date is not suitable to the Applicants
and their legal
representatives. He was so informed on or about 16 September by way
of a letter addressed to his offices (thus
six court days after the
Applicants’ attorneys became aware of Senekal’s actions
and the set-down of the matters).
(vii)
Although the attorneys representing the Applicants and the
provisional liquidators were in telephonic contact
in the time period
after the applications were set down for hearing, they did not
discuss the applications for leave to appeal
or the date of hearing.
[11]
In the initial Rule 30 notice as well as this application, the
Applicants base their objections against the notices of set-down
on
the wording of Rule 49(1)(d). It is essentially alleged that, as the
registrar did not set the matter down, the notices of set-down
are
irregular. The subrule reads as follows:
“
The
application . . . shall be set down on a date arranged by the
registrar who shall give written notice thereof to the parties
.”
[12]
It is not in dispute that the registrar of the Bloemfontein High
Court did not arrange the date, nor did the registrar give
written
notice of the date. Secretaries of judges are occasionally referred
to as registrars (at least in this Division). Should
the subrule then
be interpreted and applied to the facts
in
casu
,
the registrar (being Van Vuuren, the judge’s secretary) did
arrange the date. He did not, however, give written notice of
the
date to any of the parties. The communication between Van Vuuren and
Senekal was by telephone. Van Vuuren only had contact
with the
Applicants’ attorney, Patel, after allegations were made of
irregularities. Even on Senekal’s version, Van
Vuuren relied on
Senekal to do the necessary. The Applicants and other respondents
were in fact given written notice of the date
that had been arranged.
[13]
Rule 49(1)(d) does not prescribe that the date should be suitable to
all. A literal reading of the subrule allows for a situation
where
the registrar arranges a date with the specific judge and then
informs the parties thereof, regardless of the question whether
the
date suits the parties. It would then be for any of the parties who
find the date unsuitable, to apply and / or arrange for
a
postponement.
[14]
Coming back to the facts in this matter, the Applicants would not
have had any reason for complaint if the registrar had arranged
the
date of 23 September with Van Zyl J and then informed the parties of
the arrangement. If the date then did not suit them (for
example
because their counsel of choice was not available) they would have
had to apply for a postponement. It appears to me overly
technical to
use the mere intervention of Senekal as reason to declare the notices
of set-down as irregular.
[15]
According to Van Vuuren he relied on assurances from Senekal that the
date suits all concerned. Senekal denies this version.
They both
agree at least that Van Vuuren left it in Senekal’s hands to
inform the other parties of the date. This does not
strictly conform
to the wording of Rule 49(1)(d). The Applicants were indeed informed
of the date.
[16]
Nowhere in the Rule 30 application papers do the Applicants refer to
Practice Rule 16 of this Division. Practice rule
16(3) reads as
follows:
“
As soon as
the judgment has been filed with the registrar, the registrar must
within one week request suitable dates from the judge
involved and
thereafter arrange a date suitable to all and the matter must be set
down by the applicant in accordance therewith.
”
[17]
The practice rule does not prohibit the set down of the matter by a
respondent. By way of analogy I refer to rule 49(6)(a)
that allows
for a situation where an appellant fails to apply for a date of
hearing of an appeal. After expiry of the prescribed
time period, the
respondent may apply for a date. If only an applicant in an
application for leave to appeal was allowed to proceed
with the
set-down of the matter, it may lead to a situation where the appeal
process is unduly delayed by an applicant who is dissatisfied
with an
order that has been made against him. In situations where the
execution of an order is suspended pending the outcome of
the appeal
process, an applicant may be tempted to procrastinate for as long as
he or she gets away with the tactic. Logic dictates
that a respondent
may intervene and take the appeal process a step closer to
finalization (such as arranging for the hearing of
the application
for leave to appeal).
[18]
Pertinent to the practice rule is that the date arranged, must be
suitable to all. In this regard the practice rule specifically
differ
from (and expand on) the wording of Rule 49(1)(d). The essence of the
problem here is that the date of 23 September did
not suit the
Applicants and their legal representatives (at least this is what
they say under oath) and that is what they are complaining
about. The
mere non-suitability of the date does not however render the notices
of set-down irregular. It could possibly have entitled
the Applicants
to a postponement of the matter. The Applicants chose not to request
a postponement and it would be improper to
speculate on the outcome
of an application for postponement, should that have been the course
of action chosen by the Applicants.
[19]
The founding affidavit contains no allegations regarding the
non-suitability of the Applicants’ counsel. The affidavit
merely concludes with the submission that the suitability of the date
was not canvassed with the Applicants’ attorney. In
Patel’s
letter of 16 September he complains first and foremost about the time
period proposed for the filing of heads of
argument. The letter also
mentions that “C
ounsel
has also indicated that due to other commitments he is in any event
not available to argue the matter on the 23
rd
September 2015
”
.
The provisional liquidators do not attack this contention, except for
stating that Patel should have contacted the advocate sooner.
[20]
On a side note - neither the registrar of the High Court nor any
judge’s secretary requested suitable dates from me (being
the
judge against whose judgments the Applicants wish to appeal). My
stint as acting judge had already come to an end at the time
when the
applications for leave to appeal were filed. I had no knowledge of
the applications and could not initiate arrangements.
I assume that
the Judge-President requested Van Zyl J to deal with the matters in
my absence. That will explain why her secretary,
Van Vuuren, was
tasked with arrangements. I cannot comment to what extent these
unfortunate facts may have contributed to the delay
in having the
applications for leave to appeal heard. However, the Applicants still
failed to explain what they did to advance
finalization of the
matters.
[21]
The Applicants did not make any effort to arrange for the matters to
be heard. Senekal took the initiative on behalf of the
provisional
liquidators. He took over the duties of the Applicants, going as far
as preparing notices of set-down for the date
arranged with Van Zyl
J. The Applicants gave no explanation for their failure to take steps
to have the matters argued. During
oral argument, Mr Rossouw on
behalf of the provisional liquidators, was at pains to point out to
what extent the Applicants themselves
did not comply with the various
provisions of Practice Rule 16. He almost went as far as to submit
that the Applicants are approaching
the court with unclean hands.
[22]
It cannot be denied that the Applicants took none of the steps
required by the practice rule. As presiding officer, I have
been
involved with several applications between the parties herein. The
litigation between them appears endless. Senekal’s
frustration
with the failure of the Applicants to move the matters forward is
understandable. The legal representatives for Carol
and Pieter may
very well share in this frustration.
[23]
Practice rule 16(3) was not complied with in that the date that had
been arranged, was not suitable to all parties. It is common
cause
that no effort was made to ensure that the date suits the Applicants
and the other respondents. On Van Vuuren’s version,
he acted on
assurances provided by Senekal, with Senekal misrepresenting the
facts. Although Van Vuuren then delegated to Senekal
the duty of
ensuring that the date suits all, it would have been understandable
and happens frequently. Van Vuuren then relied
on the word of an
officer of the court. According to Senekal’s version, however,
he never considered the suitability of the
date. Either way, it
appears that Senekal had failed to ensure that (or even enquire
whether) the Applicants and their legal representatives
would be
available to have the matters argued on 23 September.
[24]
Both matters involve various parties, attorneys and advocates, some
from out of town. Where oral arguments are to be heard,
it is the
availability of counsel that more often than not presents obstacles.
Senekal should have considered this. Both applications
run into
several hundred pages. My judgment in the shareholding application is
lengthy. The application for leave to appeal in
the shareholding
application alone lists about 53 grounds of appeal. In the premises,
preparing for oral arguments would have taken
time, even if the
advocates who initially dealt with the matters were involved. This
would have been an even more daunting task
if counsel unfamiliar with
the matters was to step in. Senekal himself explains the importance
of the matters. All of these factors
should have sensitized him to
the importance of ensuring that the date is suitable to all
concerned, regardless of whether Van
Zyl J and / or her secretary
were concerned with the availability of the legal representatives.
[25]
Returning to the wording of practice rule 16(3), it may be argued
that it was not Senekal’s duty to ensure whether the
dates are
suitable to all. However, the prevailing circumstances did in fact
place such a duty on him. ------------------------------
[26]
At the very least Senekal acted negligently in not enquiring whether
the date is acceptable to all the relevant legal representatives.
Making in a few enquiries would not have stalled the matters much
longer. At all times Senekal ran the risk of some or other advocate
not being available on three weeks’ notice.
[27]
I commend Senekal’s commitment to the interests of his clients.
The financial burden that these matters are placing on
them must be
strenuous. It is furthermore in the interests of justice in general,
and the specific parties in particular, that
the wheels keep turning
and for the appeal process to continue efficiently. I cannot fault
Senekal’s initiative in making
the first move (so to speak). He
did not act improperly by making contact with Van Vuuren. His
preparation of the notices of set-down
in itself was also not
irregular. In the light of the specific circumstances of these
matters, however, he committed an error in
judgment by not discussing
the proposed date with the other legal representatives. He must have
been aware of the fact that he
is the only attorney in contact with
Van Vuuren regarding the matter. He should have appreciated the
possibility of the date not
being acceptable to all concerned.
[28]
A court hearing an application in terms of Rule 30 has very wide
powers and may set the particular step aside or make an order
as to
it seems meet. This is of course if the step is indeed found to be
irregular or improper. The court has a discretion and
it is not
intended that an irregular step should necessarily be set aside 9See:
Northern
Assurance Co Ltd v Somdaka
1960 (1) SA 588
(A) at 595;
Minister
Van Wet en Orde v Jacobs
1999 (1) SA 944
(O) at 958 F – I0.
[29]
A court may also condone an irregularity. Thus, if a party has been
given insufficient notice, then, instead of setting aside
the
procedural step, the court may cure the defect by a postponement so
as to allow sufficient time to elapse (See:
Rampersadh
v Pillay
1963 (3) SA 320
(D)).
[30]
The mere fact that the date for which the matters were set down was
not suitable to the Applicants does not lead to the notices
of
set-down themselves to be irregular. As intimated before, the fact
that an attorney took over certain of the duties of the judge’s
secretary / registrar is in itself also not irregular or improper. It
cannot be said that Senekal acted for any reason other than
the
advancement of his clients’ interests. I had previously dealt
with other matters concerning the same parties and I am
well aware of
the complex nature of the disputes between the parties as well as the
costs involved. I cannot find that Senekal
attempted to mislead the
Applicants or their attorneys in any way. But as stated before, in
the light of all the prevailing circumstances,
he failed to properly
take into account the necessity of ensuring that the Applicants and
their legal representatives would be
ready for argument within
relatively short time period between the set-down and the date of 23
September.
[31]
It was argued on behalf of the provisional liquidators that the
Applicants were not prejudiced as a result of the set down
of the
applications for leave to appeal. The Applicants allege in their
replying affidavit that they suffered prejudice as a result
of
Senekal’s unilateral conduct in that their legal
representatives were not available to argue the matter on 23
September
nor were they in a position to prepare heads of argument on
timeously. Taking into consideration the volume of paper involved in
the two matters and the relative short period between the set-down
and the initial date of hearing, this appears to have been a
valid
concern. In light thereof that I have a discretion in Rule 30
applications I would be remiss in my duty if I did not take
all
prevailing factors and circumstances into account (along with a good
dose of fairness and common sense). It would have been
difficult for
any advocate to take over the applications on short notice and be
ready to properly argue the matters. However, the
availability of
their erstwhile counsel, Mr Newton, appears not to have played a role
in the discussions regarding a later suitable
date. Mr Van Rensburg
appeared on both the 23
rd
of September as the date of hearing of the applications. His job was
of course made easier by the fact that the parties eventually
agreed
to a postponement, thereby allowing him time to get up to speed. I do
not know to what extent he would have been able to
argue the
applications if they were not postponed on 23
rd
of September.
[32]
The Applicants’ main complaint throughout has been Senekal’s
conduct. One has only to one of the leading paragraphs
in Patel’s
letter of 16 September:
“
As you are
aware our clients are
dominus
litis
in these matters and first of all we take umbrage to the fact that
you hastened to have a date allocated without having had the
courtesy
to consult with us regarding whether such date was suitable to us or
not.”
[33]
Much of the rest of the letter is then used to complain about the
short period left in which to prepare heads of argument.
The
non-availability of counsel for 23 September has been thrown in
almost as an afterthought. Any prejudice this may have caused
does
not render the notices of set-down irregular.
[34]
I had already alluded to the fact that the Applicants base their
application on Rule 49(1)(d) and not Practice Rule 16(3).
It took
some time, but counsel for the Applicants finally conceded during the
oral arguments that the application is directed at
the wrong rule. He
then requested me to amend the notice of application to also allow
for non-compliance with the practice rule.
This request did not sit
well with counsel for the provisional liquidators. I can understand
his attitude. The Applicants brought
a comprehensive application on
the basis of the alleged non-compliance with a specific rule. This
caused them some embarrassment
(at least) during argument, leading
counsel to pin his sails to the wind. Allowing an amendment at such a
late stage and merely
on a request from the bar would be
inappropriate. An amendment of the prayers in the Notice of Motion
would in any event not suffice.
The notice in terms of rule 30(2)(b)
also referred exclusively to rule 49. The same goes for the founding
affidavit. In the premises,
I decline to amend the prayers to allow
for references to Practice Rule 16(3).
[35]
The essence of the Rule 30 application is contained in prayer 3 of
the notice of motion. The wording is not such as to constitute
a
prayer. It is however significant. Prayer 3 reads:
“
The
Notices of set down are not in accordance with the above Rule
[that is, Rule 49(1)(d)].”
[36]
Practice rule 16(3) is applicable in the circumstances. In as far as
the Applicants request relief following from non-compliance
with Rule
49(1)(d), I do not grant any relief.
[37]
In terms of Rule 30(2)(b) the Applicants had to afford the
liquidators an opportunity of removing the cause of complaint within
10 days. The Applicants’ notices indeed indicate the allowance
of such an opportunity. The circumstances of the matter of
course
were such that the notices were served on a date leaving far less
than the requisite ten days to withdraw the set-down.
A proper
appreciation for this dilemma may have convinced the Applicants to
indicate a shorter period within which to withdraw
the notices of
set-down (where after they could have applied for condonation for
such shorter period). In appropriate cases courts
have even condoned
non-compliance with the requirement of affording time to remove the
cause of complaint (Compare:
Khunou
v M Fihrer & Son (Pty) Ltd
1982 (3) SA 353
(W) at 361 A). The Applicants could immediately have
proceeded with the actual application in terms of Rule 30 and then
apply for
condonation.
[38]
More appropriately one would have expected the Applicants to act
earlier and serve the Rule 30 notices at the earliest possible
moment.
[39]
The provisional liquidators, especially Senekal on their behalf, make
much of the fact that the Rule 30 notices were not filed
and served
as soon as the Applicants realised that the date is not suitable to
them. Furthermore, the notices (and the actual Rule
30 application)
were not served on Senekal, the attorney acting for the provisional
liquidators, but on the liquidators themselves.
The Applicants do not
explain this course of action. Parties to litigation appoint legal
representatives for a reason. Other parties
act improperly when they
ignore this. The fact that the provisional liquidators happen to be
attorneys does not change the situation.
This conduct of the
Applicants prejudiced the Respondents and their legal
representatives.
[40]
No explanation has been forthcoming as to why no provision was made
for service of documents in the Rule 30 proceedings on
the legal
representatives for the provisional liquidators, especially Senekal
whose conduct is severely attacked by the Applicants
and their
attorney. Senekal act for the six respondents who had set the
applications for leave to appeal down for adjudication.
[41]
The manner in which this application was served, and the timing of
the service, allowed very little time, if any, for the respondents
(and especially Senekal) to respond and prepare their opposition to
the rule 30 application. As they understandably needed time
to
properly prepare their opposition, a postponement was inevitable. The
postponement worked in the Applicants’ favour, allowing
them
the opportunity of arranging a date that suited their legal
representatives. Although I cannot make a definite finding on
this
aspect, it may have been what they had in mind all along.
[42]
It may be argued that Senekal was informed of the allegations
regarding the irregularity of the set-down at least some time
before
the Rule 30 application was issued. He may have expected such an
application or at least an application for postponement.
Even with
such anticipation, however, the provisional liquidators could not
have prepared for any application (whether it was a
postponement or
in terms of Rule 30) before it was actually served on them.
[43]
A court may dismiss an application which is in fact little more than
a stratagem to get the main matter postponed at the other
party’s
costs (See:
Kmatt
Properties (Pty) Ltd v Sandton Square Portion 8 (Pty) Ltd
2007 (5) SA 475
(W) at 490 B – E). When the applications for
leave to appeal were postponed to a date suitable to all the parties
and their
legal representatives, the Rule 30 application became
academic, whatever the substance thereof. Through the postponement
the Applicants
achieved their goal, namely a new date that suits them
and sufficient time to prepare for the oral arguments of the
applications
for leave to appeal.
[44]
Considering all the circumstances of the matter, I exercise my
discretion against granting the relief claimed by the Applicants.
[45]
The theatrics flowing from the set-down of the matters may have been
avoided if Senekal did not act unilaterally in arranging
for (and
accepting) a date (i) with fairly short notice when considered
against the backdrop of the history and extent of the matters
and
(ii) without ensuring that the date is suitable to all. There is
nothing to suggest that the Applicants’ counsel of choice
was
available to argue the matter on 23 September. Mr. Van Rensburg who
appeared on that day was to my knowledge not involved with
the
applications themselves. The nature and extent of the two
applications are such as to justify their insistence on sufficient
time to adequately prepare for oral arguments. This is the stronger
argument in favour of the Applicants. Their decision to proceed
with
the Rule 30 application may have been ill-advised, but that does not
minimize the fact that the date of 23 September was not
suitable to
all the parties concerned.
[46]
The same facts and circumstances that justify the Applicants’
insistence on a suitable time table are however the very
reasons why
one would have expected their attorney to act expediously. One would
have expected a prudent and conscientious attorney
to immediately
address the non-suitability of the date. Patel should have reacted
earlier than 16 September. On the Applicants’
own version he
knew of the set-down as early as 8 September. He must have realized
from the communications between himself and
Senekal that the
provisional liquidators would insist on arguing the matter on 23
September. Although he may have been entitled
to file the application
as late as he did, but he must have known that it would force a
postponement of the matters. The Applicants’
insistence on
circumventing Senekal, the attorney for the provisional liquidators,
is incomprehensible. This further caused the
provisional liquidators
and their legal team inconvenience and embarrassment, increasing the
necessity of a postponement.
[47]
To summarize: Senekal may be blamed for a date that did not sit well
with all the parties, but the manner in which Patel dealt
with the
situation greatly contributed to the eventual and unavoidable
postponement of the matters. The postponement in fact suited
both the
Applicants and the provisional liquidators. The one group was not
ready to proceed with arguments, while the other wanted
to respond to
the Rule 30 application.
[48]
All parties eventually filed heads of argument in the two
applications for leave to appeal. The Applicants complained bitterly
about the time allowed for the preparation of the heads. They filed
theirs later. Senekal avers that Van Zyl J insisted on heads
of
argument. Van Vuuren makes it clear in his affidavit that that was
not the case. The practice in this Division is that heads
of argument
need not be filed in applications for leave to appeal, unless the
presiding judge insists on such. If indeed Van Zyl
J did request
heads of argument, one would have expected this topic to have formed
part of the initial discussions between Van
Vuuren and Senekal. If
so, reference to the heads of argument should have appeared in the
initial letters from Senekal.
[49]
I am not going to make a finding on the question whether heads of
argument was requested on Senekal’s initiative; the
reason
being that the heads of argument did assist me in preparing for the
oral arguments and the judgments. I should qualify this
statement:
the heads of argument prepared on behalf of the provisional
liquidators, Carol and Pieter were of assistance. The Applicants’
heads of argument in both applications were an almost
verbatim
repetition of the notices of application for leave to appeal. It was
of no help whatsoever.
COSTS
OF RULE 30 APPLICATION
[50]
Usually the losing party to an application carries the costs of the
application.
In
casu
the Applicants are the losing parties. I see no reason why they
should not be held liable for the costs of the Rule 30 application,
including the costs of opposition. It was argued on behalf of the
provisional liquidators that the Applicants should be liable
for
costs on a punitive scale. The circumstances of the matter do not
justify such an order.
WASTED
COSTS OCCASIONED BY POSTPONEMENT
[51]
All the parties and their legal representatives, except for those of
Pieter, were at court on 23 September.
[52]
Counsel for Pieter was not present at court on 23 September,
following an arrangement made with me. I have not been made aware
that any attorney representing Pieter was at court on that day. Mr
Grewar, counsel for Pieter, had filed heads of argument beforehand.
Similar to the situation during the initial arguments of the
applicants, Pieter and his legal representatives associated
themselves
with the arguments of Carol and her legal representatives.
The postponement caused no additional costs for Pieter and his legal
representatives.
[53]
I took great care in this judgment to highlight the reasons behind
the postponement and the roles played by attorneys for the
Applicants
and the provisional liquidators. Both Senekal and Patel are to blame.
It is difficult to calculate the exact ratio of
blame to apportion to
each of them. The attorneys represent specific parties. No party
argued that the attorneys are to be held
liable for costs
de
bonis propriis
.
The parties themselves are to stand and fall by the actions of
their attorneys. I consider it fair that the Applicants and
the
provisional liquidators each be held liable for their own wasted
costs occasioned by the postponement.
[54]
Counsel for Carol was not only present at court, but he was willing
and able to proceed with argument in the two applications
for leave
to appeal. As a courtesy to the other parties, he did not oppose the
request for a postponement. This accommodating attitude
was of course
subject to an appropriate order as to costs. Of necessity they had to
incur costs as a result of the postponement.
Carol and her legal
representatives played no role whatsoever in the set-down of the
matters or in the subsequent Rule 30 application.
It cannot be
expected of them to be liable for any of their own costs. The Rule 30
application directly caused the parties to postpone
the applications
for leave to appeal. As the losing parties, the Applicants should pay
the costs wasted by Carol and her legal
representatives as a result
of the postponement on 23 September.
ORDER
[55]
In the premises I make an order in the following terms:
1. The
application in terms of Rule 30 is dismissed;
2.
The Applicants are to pay the costs of the application, including the
costs of opposition thereof by the provisional liquidators
of
Kameelhoek (Pty) Ltd and Schaapplaatz 978 (Pty) Ltd;
3. The
wasted costs occasioned by the postponement of the applications for
leave to appeal in cases 5081/2014 and 4817/2014 on 23
September 2015
shall be paid in the following manner:
3.1
the Applicants and the provisional liquidators of Kameelhoek (Pty)
Ltd and Schaapplaatz 978 (Pty) Ltd are
each liable for his or her own
costs;
3.2
the Applicants shall pay the costs of CAROL JESSIE KATHLEEN LOTZ on
the scale as between attorney and client.
_________________
G.J.M.
WRIGHT, AJ
On
behalf of the applicants:
Adv. F G Janse Van Rensburg
Instructed
by: M J Van Rensburg
Horn &
Van Rensburg Attorneys
BLOEMFONTEIN
On
behalf of the first respondent: Adv. L Halgryn SC
Instructed
by: L Strating
Symington
& De Kok
BLOEMFONTEIN
On
behalf of the second respondent:
Adv. D M Grewar
Instructed
by: P De Lange
De
Lange & Du Plessis Attorneys
BLOEMFONTEIN
On
behalf of the fourth to ninth respondents: Adv. P F Rossouw SC
Instructed
by: K Senekal
Matsepes
Inc.
BLOEMFONTEIN