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[2016] ZAFSHC 153
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Ntsoereng and Another v Sebofi and Another; In re: Sebofi v Ntsoereng (4518/2012) [2016] ZAFSHC 153 (7 July 2016)
I
N
THE
HIGH COURT
OF
SOUTH
AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEI
N
CASE
NO
:4518/2012
In
the matter between:
TEBOHO
VINCENT
NTSOERENG
1
st
Applicant
MAHOKOANE
ANGELA NTSOERENG
2
nd
Applicant
and
ANDRIES
HENRY SEBOFI
1
st
Respondent
A.
E.
FOURIE
N.O.
(SHERIFF)
2
nd
Respondent
IN
RE:
ANDR
I
ES
HENRY
SEBOFI
Plaintiff
and
TEBOHO
V
I
NCENT
NTSOERENG
Defendant
JUDGMENT
B
Y:
MURRAY AJ
DATE
H
EARD:
DECIDED ON
WRITTEN ARGUMENT
DELIVERED
ON
:
7 JULY 2016
[1]
This is an application for leave to appeal against Moeng, AJ's,
judgment of 19 March 2015, and for condonation for the late
filing of
the application. The First Respondent was the Plaintiff in the main
action and the First Applicant was the Defendant.
To obviate
confusion, they will be referred to as such throughout.
[2]
On 18 August 2015 the Court requested the parties to select a date
for this application to be heard, alternatively to submit
heads of
argument for the matter to be dealt with in chambers by Mocumie, J.
There was no response from the Applicants.
[3]
On 12 May 2016, after more than a year in which the Applicants,
despite being
dominus litis
in the application, made no
attempt to pursue or advance their application and failed to file
heads of argument despite several
requests to do so, the First
Respondent filed its heads in order for the application to be dealt
with in chambers. On 6 June 2016
the Applicants' attorney of record
withdrew for lack of instructions - a pattern which has characterized
the Applicants' conduct
ever since the First Respondent issued
summons against the First Applicant in 2012.
Factual
background
:
[4]
In November 2012 the First Respondent issued summons against the
First Applicant for payment of R130 000.00 due to him in terms
of a
contract concluded between them personally after the dissolution of
the close corporation of which they used to be members.
Because of
the First Applicant's failure to defend the claim, the First
Respondent obtained default judgment against him on 27
January 2013.
[5]
When the First Applicant did not comply with the judgment, the First
Respondent issued a writ of execution against his movable
property,
which yielded only a
nulla
bona
return. The
First Respondent then filed a Rule 46(1 )(a)(ii) application to have
the First Applicant's immovable property declared
specially
executable.
[6]
It transpired during the Rule 46(1)(a)(ii) proceedings that the First
Applicant was married in community of property to the
Second
Applicant. Since the Second Applicant had a direct interest in
potential execution of the immovable property, and a right
to
respond, the First Respondent filed an application to have her joined
as a party to the Rule 46(1)(a)(ii) proceedings. On 17
October 2013
Monaledi AJ granted the joinder application by agreement between the
parties, and on 7 August 2014 Lekale J declared
the Applicants'
immovable property specially executable in terms of Rule 46(1
)(a)(ii).
[7]
In order to prevent execution, the Applicants then applied for both
Lekale J's judgment and the order for the Second Applicant's
joinder
to be rescinded, and for the warrant of execution to be set aside.
They contended that an error common to the legal representatives
rendered the orders rescindable in terms of the Court's inherent
powers under the common law.
[8]
The Applicants averred, firstly, that both parties had laboured under
an alleged misapprehension that a writ of execution against
immovable
property could be issued against the Second Applicant even though no
judgment had been entered against her.
[9]
They contended, secondly, that by obtaining judgment against the
First Applicant in his personal capacity instead of against
T.V.N
Transport and Projects CC, the First Respondent had committed fraud.
This allegation was abandoned during the hearing of
the application
for rescission, however.
[10]
On 19 March 2015 Moeng AJ held that there was no basis for the
rescission of Lekale J's judgment which declared the applicants'
immovable property specially executable, or for undoing the Second
Applicant's joinder, and dismissed the application with costs.
[11]
The
Applicants
then
filed
the present
application
for leave
to appeal
against
Moeng AJ's
judgment.
This they did in May 2015. Since
then
they
have
made
no
effort
whatsoever
to
pursue
the
application.
Quite the
contrary:
by
deliberate
inaction
they
have
prevented it
from being
enrolled, argued or finalised for more
than a year
now.
The said
conduct,
in
my view,
clearly
demonstrates their
lack of a
bona
fide
intention
to pursue the
appeal.
After
all, the
longer the finalisation
of the
Application for leave to appeal
is delayed,
the
longer
the
execution
of
the
warrant
against
their
property is
staye
d
.
[1]
Condonation:
[12]
Moeng AJ's judgment was delivered on 19 March 2015. Despite the last
date to apply for leave to appeal in terms of Rule 49
having been 9
April 2015, however, the Applicants only filed for such leave on 12
May 2015, that is, 22 court days late. They therefore
need to be
granted condonation before the application for leave to appeal can be
heard or considered.
[13]
It
is trite that condonation
of the
non-observance
of the
court rules is by no means a mere formality.
[2]
In
Van Wyk
v
Unitas
Hospital (Open
Democratic
Advice
Centre
as
Amicus
Curiae)
[3]
,
for
instance,
the
Constitutional
Court
held that
an
applicant
for condonation must give a full explanation for the delay which must
not only
cover the
entire
period of
delay
but
must also
be
reasonable.
It is for
the
applicant
to
explain
the
reasons
for
his
non-compliance
with the
time
limits
[4]
and to
satisfy the Court that
there is
sufficient
cause
for
excusing him
from
compliance
[5]
.
[14]
Where condonation needs to be asked, as
in casu,
a
court has a discretion which is to be judicially exercised with
regard to
all
the circumstances of the case. This Court
therefore has to keep in mind not only the Applicants' delay in
filing their application
for leave to appeal, which they ask to be
condoned, but also their delay in prosecuting the said application in
the context of
their prospects of success on the merits of the case.
[15]
The principles upon which a court exercises its discretion to condone
have been stated as follows:
"in
essence it is a question of fairness to both sides. In this enquiry,
relevant considerations may include the degree of
non-compliance with
the rules, the explanation therefor, the prospects of success on
appeal, the importance of the case, the respondent's
interest in the
finality of his judgment, the convenience of the court, and the
avoidance of unnecessary delay in the administration
of justice."
[16]
The First Applicant's only explanation of the delay was to aver that
neither he, nor the attorney who had represented him in
the
rescission application, had been made aware of Moeng AJ's judgment.
He alleged that no-one had been notified of the intended
delivery of
the judgment, which is highly unlikely, and that he only became aware
of the judgment on 23 April 2015 when he learnt,
for the first time,
of the intended sale in execution of his property.
[17]
Instead
of
a
full
explanation
for
the
delay,
the
Applicant
merely
vaguely
refers to
"those
attorneys"
and
"the
said attorneys"
with
whom he then allegedly arranged a consultation on 28 April
2015
before
he decided
to
terminate
their
services
and
to
entrust
the
matter to
his
"current
attorneys
of record",
whoever
they might be. In
Massey-Harris
Co
(SA)
Ltd
v
Eksteen
[6]
the
court
held that
where the
delay is due, or allegedly due, to the mistake or default of
a
third
party,
an
affidavit
by
such
third party
needs
to
be
annexed.
But
in
the
present
case
not
one
of
the
Applicants'
unidentified
attorneys,
past
or
current,
has
provided
a
confirmatory affidavit. It is not the first time, furthermore,
that the First Applicant
has
allegedly
not
received
a court
order,
pleading,
application papers or correspondence.
[18]
Even though courts are reluctant to penalise a blameless litigant on
account of his attorney's negligence, the Appellate Division
has
pointed out that:
"There
is a limit beyond which a litigant cannot escape the result of his
attorney's lack of diligence or the insufficiency
of the explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance
of
the
rules
of
this
court.
Considerations
ad
miseracordiam
should
not
be
allowed
to become
an
invitation
to
laxity. The
attorney, after all, is the representative whom the litigant has
chosen for himself."
[7]
[19]
In the instant case the Applicants are far from blameless, and the
fact that they have already had six sets of attorneys is
a clear
indication that the attorneys are not the only ones to blame for the
repeated delays in finalising the matter. A demonstration
of the
Applicants' flagrant disregard for court rules and orders is that Van
Zyl J, pursuant to numerous postponements, had to
order that the
First Applicant be barred from pursuing the first rescission
application against the default judgment granted against
the First
Applicant personally should the Applicants fail to pay, within a
specified time, the costs due to the First Respondent
in terms of a
previous court order. They did not pay.
[20]
From the
case law it has appeared that the cumulative effect of a flagrant
breach of the rules of Court in more than one respect
and the
absence
of
an
acceptable
explanation
may
be such
that
an
application for condonation will not be granted,
regardless
of
the
prospects
of
success.
[8]
The
Applicants
have
provided no
acceptable
explanation
for
this
delay,
just as
they
did
not
do
regarding
previous
delays.
[21]
An
important
consideration
in deciding
whether
to grant
condonation or not, is
whether the
appeal is
frivolous
or
vexatious,
or
has
been
noted
not with
the
bona
fide
intention
of
seeking to
reverse the judgment
but for
some
indirect
purpose,
e.g. to
gain time
or harass the other party.
[9]
[22]
I
t
has been held, too, that a long delay will not be condoned if it is
clear that the applicant
had not
"throughout
desired to prosecute these appeals"
.
[10]
Such desire
must appear
from the applicant's conduct regarding the application for leave to
appeal. In my view it
is
more
than
reasonable
to
infer,
more
than
a
year
after
their
application was filed, that the Applicants
have no
real intention to pursue
their
appeal.
[23]
Far from
facilitating
the
speedy
adjudication
of their
application,
the
Applicants
have
frustrated
and
obstructed
the
process
by failing
to abide by
the court
rules
(e.g.
by
filing
a
defective,
ambiguous
application for leave to appeal and by
failing to
adhere
to
prescribed time periods);
by failing
to comply with court orders (such as to pay
the costs
incurred during past litigation);
by
failing to
respond to correspondence from the court (such as the request for
dates and/or written
heads of
argument
to
enable
Mocumie J
to
decide
the
application
for
leave
to
appeal)
or
from
the
Respondents
(for
instance to
request
compliance
with
court
orders or to arrange dates for filing
heads); by
failing, for months on end, to file
heads of
argument
in
order that the matter can be finalised;
by
pretending
not
to
have received
court
orders or
correspondence
despite
documentary
evidence
to
the
contrary;
and
by
blaming
and
firing
various
of their
past sets
of
attorneys, some on the day
of the
trial,
only
to
reappoint
the same ones as soon
as
a
postponement
was
refused.
[11]
[24]
The Applicants have thus managed to manipulate the system to gain
three years of 'grace' in which the First Respondent has
been unable
to execute its 2013-judgment or to recover the considerable
legal costs that have accumulated since then, despite
having been
successful in every court proceeding in this matter.
[25]
The Applicants' blatant disregard for the court rules appear from the
way they have conducted the various applications in this
matter. They
filed two applications for rescission, for instance: the first one on
28 January 2014 a year after default judgment
had been granted
against the First Applicant personally on 17 January 2013 (which
judgment still stands); and the second one against
Lekale J's
judgment which they filed 49 court days after the judgment and 37
court days after the writ of execution had been executed
by attaching
the property. Their replying affidavit in the application which lead
to Moeng AJ's judgment, was filed 54 court days
late, without any
application for condonation, a week before the application was heard.
In view of their past conduct and their
wilful procrastination since
the late filing of this application for leave to appeal more than a
year ago, I have no doubt that
the Applicants' real aim is merely to
gain time.
[26]
Where
an
applicant
claims
the
indulgence
of
condonation,
furthermore,
it is for
him to
show that
the
respondent
will
not be
adversely
affected
thereby
to
any
substantial
degree,
and
that, even
if
he
were
to
be
so
affected,
other
considerations
apply which
would persuade the Court to grant the indulgence sought.
[12]
The
First
Applicant
has
made
no
attempt
to
show that
the
First
Respondent will
not be
prejudiced
by the
late filing
and
delayed
finalisation
of
this
application
for leave
to
appeal.
[27]
The
late
filing
of
a
notice
of
appeal
particularly
affects
a
respondent's
interest
in
the
finality
of
his
judgment.
In
casu
almost
two months had elapsed before
the
application for leave
to appeal
was filed. It is only reasonable to hold
that, once
the time
for
noting
an
appeal
has
lapsed,
a
respondent
is
prima
facie
entitled
to
adjust
his
affairs
on the
premise
that
his
judgment
is
safe.
[13]
[28]
Where
such
late
filing
is
further
exacerbated
by
a
subsequent
failure, for more than a year, to pursue the application for leave to
appeal,
it
indeed
'induces
a
reasonable
belief
that
the order had become unassailable'
and
that the
First Respondent
'is
entitled
to assume
that
the
[Applicants
have}
accepted
the
finality
of
the
order and does
not
intend
to
pursue
the matter further'.
[14]
[29]
I respectfully agree with the court in
Van
Wyk
v
Unitas
Hospital,
supra,
furthermore, that to grant condonation after such an inordinate
delay and in the absence of a reasonable explanation,
'
would
undermine
the
principle
of
finality
in
litigation
and
cannot be in
the
interests
of
justice'.
[15]
[30]
The final reason to refuse condonation in this matter, and which is
also fatal to the application for leave to appeal itself,
is that the
Applicants in my view have no reasonable prospect of success on
appeal.
Application
for Leave to Appeal:
[32]
In addition to the absence of condonation, the application for leave
to appeal must fail on the merits, too.
[33]
It is
trite that
in
terms
of Rule
49(1)(b)
the Applicants
are bound
to the grounds raised in
their
application for leave
to appeal.
The rule demands, in peremptory terms
[16]
that such grounds be
clearly and
succinctly
set
out,
in clear
and
unambiguous
language.
Its
purpose
is
to
enable
the
Court
and
the
respondent
to
be fully
informed
of
the
case
the
applicant
seeks
to
make
out
and
the
respondent
is
to
meet
in
opposing
the
application
for
leave
to appeal.
[17]
The
Applicants
are
required,
furthermore,
to
indicate
whether they are relying
on errors
of
fact
or on errors of law.
[34]
The grounds of appeal set out in the application
in
casu,
are anything but clear and unambiguous. The Applicants averred, first
of all, that
"the court's dismissal of the application
was both legally andfactually
incorrect
and was
a
misdirection".
The grounds on
which the Applicants seek to attack the alleged 'misdirection' are
set out as follows:
"2.1.1
the above
Honourable
Court misdirected
itself by finding
that the First Applicant's
liability,
to the First Respondent, is
a
joint
estate liability
whereas, by law
factually
such
a
liability
is
incurred in the First Applicant's
ordinary
activities
of business
and is,
thus, not
a
joint
estate liability;
2.1.2
the mistake
common
to both
parties,
herein,
as
a
mistake
of law cannot ground
a
rescission
o
f
judgment;
2.1.3
the
applicant
of
the
contractual
principle
of
consensus
ad idem
to
the
facts
of this
case
was
both
legally
and
factually
incorrect, as
in
this
case,
the parties
were
of
one
mind
when
they misconceived
the remedy."
[35]
Patently this Notice of Application for Leave to Appeal does not
comply with the peremptory requirements of Rule 49(1 )(b).
The
Applicants do not distinguish between errors of fact and errors of
law and, far from being clear and unambiguous, the 'grounds'
on which
they purport to rely and by which they are bound, are all but
incomprehensible.
[36]
As Mr Cilliers for the First Respondent argued, what the
Applicants appear to contend, is that the Court in the application
for rescission misdirected itself by not finding
"that
the
liability
incurred
by
the
First Applicant
towards the
First Respondent
in an amount of R130,000.00
does not bind the
joint
estate and
cannot be enforced against the
joint
estate".
Applicable
test for leave
to appeal
:
[37]
S 17 of the Superior Courts Act, Act 10 of 2013, provides for a new,
stricter test for leave to appeal:
"17.
Leave to
appeal.
(1)
Leave to appeal may only be given
where the
judge
or judges
concerned are of
the opinion that
-
(a)
(i) the appeal would
have
a
reasonable prospect
of
success, or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration."
[38]
Prior to
the
promulgation
of Act
10 of 2013,
the test was
lower in
that
i
t
merely
required
of
an
applicant
to
indicate
that
there
is
a
reasonable
possibility
that another Court may come to a different finding.
[18]
That
is no
longer the case,
however.
The
new higher
test now requires a reasonable prospect of success, not merely a
possibility.
To
determine whether there is such a prospect in the instant case, one
needs to examine the validity of the Applicants' allegations
of a
misconception of the facts and the law in Moeng
AJ's
judgment.
[39]
The Applicants seem to aver that the First Applicant's debt could not
bind the joint estate since it was incurred in the ordinary
course of
his business and could therefore not lead to execution of the
immovable property in the joint estate. First of all, that
averment
is based on the Applicants' own misconception of the legal position
regarding the liability of a joint estate in marriages
in community
of property and the meaning of s 15(6) of the Matrimonial Property
Act, Act 88 of 1984 ("the Act"). Secondly,
it disregards
the fact that the First Applicant was sued in his personal capacity
(in a summons to which no plea was filed) and
that judgment was
obtained against him in his personal capacity (which judgment still
stands). And that, as such, he is married
in community of property
and the joint estate is liable for his debts.
[40]
S 14 of the Act determines that
spouses in a marriage in community
of property have equal
powers regarding the contracting
of debts
which bind the joint estate and regarding the management of the joint
estate.
[41]
S 15 of the Act determines that, with the exception of certain acts
specified in s 15(2) and s 15(3), such as alienating or
mortgaging
immovable property belonging to the joint estate, either of the
spouses may without the other's consent, perform any
juristic act
with regard to the joint estate.
[42]
And
even
where
a
spouse
bound the
joint
estate
contrary
to the
provisions
of s
15(2) and
(3) or acted without
the
required
consent,
s
15(9)
protects
bona
fide
innocent
third
parties
who
contract with such a spouse without knowing that he is married in
community of
property
and
lacked
consent
for
the
applicable
transaction. In
such an
instance, consent will be
deemed to
have been
given.
[19]
[43]
S 15(6) provides for a spouse married in community of property to be
exempted from having to obtain the consent of his spouse
for certain
of the transactions specified in s 15(2), such as binding himself as
surety, if he concludes
such
transactions in the ordinary course of his
business. It does not relieve his spouse or the joint estate
from
liability if he incurs debts in doing so, as the Applicants seem to
allege.
[44]
S
17(2)
of the
Act
determines
that
a
party to
legal
proceedings
instituted or defended by a spouse may not challenge the validity
of
the
proceedings
on
the
ground of
a
want of
the
required
consent.
And s 17(5)
determines
that where a debt is recoverable from
the joint
estate,
the
spouse
who
incurred
the debt,
or
both
spouses jo
i
ntly
may be sued therefore.
[20]
Such spouse
may
be
sued in his
own name and it is not necessary for the other spouse
to
be joined
in the
action.
[21]
Where
judgment is
obtained
by
a
creditor
against one of the spouses, they are
joint
debtors and
in the
event
of
non-payment,
execution
can
be
levied
against
the joint
estate.
[22]
[45]
As Moeng AJ pointed out in his judgment, that is because one of the
proprietary consequences of a marriage in community of
property is
that, during the subsistence of such a marriage, the liabilities of
either spouse become the
joint
liability of both spouses and therefore of the
joint estate.
[46]
A
case in
point
is
the decision
in
BP
Southern
Africa
(Pty)
Ltd
v Viljoen,
[23]
in
which the
wife also contended that she was not liable for the debts incurred in
the
ordinary course of his business by her
husband
to
whom
she
was
married
in
community
of
property
because
the
applicant
never
sued
her
and
had
therefore
never
obtained judgment against her.
Haneke
J, however,
held
that
the wife was liable
for at
least half the amount of the default judgment
against her
husband irrespective of the fact that judgment
had not
been
obtained
against her
in
person.
[47]
There was therefore no common mistake between the parties which
rendered Lekale J's judgment or the joinder order rescindable
as the
Applicants alleged. The law is clear: if one spouse in the marriage
in community of property incurs debts, even without
the consent of
the other spouse, either of the spouses can be held liable for such
debt, since it is regarded as one incurred by
the joint estate.
[48]
The order declaring the
Applicants' property executable
was indeed enforceable against the joint estate. Accordingly the
warrant of execution is one that is enforceable against the immovable
property of the Applicants' joint estate and there is no ground for
it to be set aside.
[49]
Since the Second Applicant would have had a direct interest in the
execution of the immovable property, she was correctly joined
as a
party to the Rule 46(1 )(a)(ii) proceedings, and there would be no
justification for rescinding that order either.
[50]
There is therefore no merit in the averment that Moeng AJ misdirected
himself in dismissing the application to rescind either
the joinder
order, or Lekale J's judgment which declared the immovable property
of the joint estate executable.
[51]
The application for leave to appeal against Moeng AJ's judgment
consequently has no reasonable prospect of success on the merits
on
the first leg of the new test as formulated in s 17(1)(a)(i) of Act
10 of 2013 and I am not at liberty to grant leave to appeal
on that
ground.
[52]
Regarding the alternative ground for granting leave stipulated in s
17(1)(a)(ii) of Act 10 of 2013, namely that of
"a
compelling reason"
to grant leave, the
Applicants appear to contend that s 15(6) read with s 17(5) of the
Act have not been addressed before and that
that would constitute the
required
'compelling
reason'
to justify
granting leave to appeal based on the second, alternative leg of the
new test. This contention is not made in the grounds
of appeal set
out in the Applicants' notice and to which they are bound). It,
furthermore, has not merit.
[53]
After serious consideration of all the circumstances and facts of
this protracted case, therefore, I am unable to find either
a
reasonable prospect of success on appeal or any
"compelling,
or truly convincing,
reason",
which could
justify the granting of leave to appeal.
[54]
In view of the Applicants' flagrant disregard of the court process
and the inordinate delay in the finalisation of this matter
which
that has caused, I agree with Mr Cilliers that a punitive costs order
would be justified.
WHEREFORE
the following order is made:
1.
Condonation is refused and the application for leave to appeal is
dismissed with costs.
2.
The Applicants are to pay the said costs on an attorney and client
scale.
3.
The Second Respondent is to see to service of a copy of this order
upon the First and Second Applicants.
__________________
H
MURRAY, AJ
On
behalf of the First Respondent :
Adv. H J Cilliers
Instructed by:
T O'Reilly
Symington & De Kok
Attorneys
169B Nelson Mandela
Avenue
BLOEMFONTEIN
On
behalf of the Applicants :
Mr R Coetzee
Steenkamp, De Villiers &
Coetzee
44 Krause Street
Oranjesig
BLOEMFONTEIN
[1]
Rule 49(11)
determines
that where
an
application for leave to appeal
against or
to rescind an order has been made, the
operation
and the
execution
of the
order
in
question
shall
be
automatically
suspended,
pending
the outcome
or
decision of such appeal
or
application,
unless the
Court
which gave such order,
on
application
of a party
otherwise
directs.
[2]
Uitenhage Transitional Local Council v South African Revenue Service
2004 (I)
SA 292
(SCA) at
297H -
J.
[3]
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477 E
[4]
Yunnau Engineering
v
Chater:
2006(5)
SA
571 (T) at 578H-J; Aymac
CC v
Widgerow
2009(6)
SA
433
(W)
at 441A.
[5]
Uitenhage
Transitional
Local
Council
v
South
African
Revenue
Service,
2004
(1)
SA 292
(SCA) at 297 H -J; Shaik v Pillay,
2008 (3) SA 59
(N) at 61 H
[6]
1932 (OPD) 29.
[7]
Shaik v Pillay, supra, at 61 I - 62 C; Theron v AA Life
Assurance Association Ltd,
[1995] ZASCA 61
;
1995 (4) SA 361
(A) at 365 B
[8]
Blumenthal
v Thompson
NO,
[1993] ZASCA 190
;
1994
(2) SA
118
(A) at
121
I - J Where it is stressed that this applies
even where
the blame lies solely with the attorney; Shaik v Pillay,
2008 (3) SA
59
(N) at 62 E
[9]
Beecham
Group
Plc v
South African
Druggests
Ltd,
1987 (4)
SA 869
(T) at 865 D; Lubambu v Presbiterian Church of Africa,
1994 (3)
SA 241
(SE) at 245
H; N
v Government
of the
Republic
of South Africa
(No 3),
2006 (6) SA 575
(D) at 580 A
[10]
Van Wyk v Unitas
Hospital,
supra,
at 477
E - G
[11]
In Take & Save Trading CC v Standard
Bank of
South Africa
Ltd
2004(4) SA 1 (SCA) the Court held that:
"One
of
the
oldest
tricks
in
the
book
is
the practice
of
some
legal
practitioners, whenever the shoe pinches,
to
withdraw from the case (and more often than not to reappear at a
later stage),
or of clients to terminate the mandate
(more often than not at the suggestion of
the
practitioner), to
force
the
Court
to
grant
a
postponement whose
party
is
then unrepresented. Judicial officers have
a
duty to
the Court system, their colleagues, the public
and the
parties
to
ensure
that
this
abuse
is
curbed
by,
in
suitable
cases,
refusing
a
postponement.
Mere
withdrawal by
a
practitioner or the mere termination of
a
mandate does not, contrary to popular relief, entitle
a
par(y
to
a
postponement as of right."
[12]
Finnbro Furnishers
(Pty) Ltd
v Registrar of Deeds, Bloemfontein,
1985 (4) SA 773
(A) at 790
C
[13]
Cairn's Executors
v Gaarn,
1912 AD
181
at
193;
Napier
v
Tsaperas,
1995 (2)
SA 665
(A) at 671 C
[14]
Van Wyk v Unitas Hospital,
supra,
at 479
H -480 A
[15]
Van Wyk v Unitas Hospital, supra, at 480 A - B
[16]
Songono v Minister of Law and Order,
supra,
at 395
J -396 A
[17]
Songono v Minister
of Law
and Order,
1996 (4)
SA 384
(E) at 385 I - J
[18]
State v Ackerman,
1973 (!)
SA 765 (A)
[19]
Distillers Corporation Ltd v Madise
2001 (4) SA 1071
(0) at [5] on
1075H/I-U and [8] and [9] at 1077E-F
[20]
Zake v Nedcor Bank Ltd 1999(3) SA 767 (SE) at 770.
[21]
Zake
v
Nedcor,
supra,
at
771.
[22]
Strydom v Engen Petroleum Ltd 2013(2) SA 187 (SCA) at [45] at 202.
[23]
2002 (5) SA 630
(O)