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[2016] ZANCHC 85
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Van Aswegen N.O. and Others v Akker N.O. and Another (412/2016) [2016] ZANCHC 85 (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: 412/2016
Heard
on: 05/08/2016
Delivered
on: 16/09/2016
In
the matter between:
NICOLAUSESAIAS VAN
ASWEGEN N.O.
1
ST
APPLICANT
MARIA HELENA SARLINE VAN
ASWEGEN N.O.
2
ND
APPLICANT
DANIEL JOHANNES
TRUTER
N.O.
3
RD
APPLICANT
And
GERHARDT AKKER
N.O.
1
ST
RESPONDENT
EMILE LAUBSCHER
N.O.
2
ND
RESPONDENT
JUDGMENT
MAMOSEBO
J
[1]
On 26 February 2016 the applicants in their capacity as trustees of
the Van Aswegen Farm Trust, approached Court on an urgent
basis for
an order in the following terms:
1.1
Dispensing with the forms, time periods and manner of service
provided for in terms of the Uniform Rules
of Court; and hearing
the matter as one of urgency in accordance with the provisions of
Uniform Rule 6(12);
1.2
Directing the respondents to grant applicants, their duly appointed
agents and representatives, and
staff, access to the farm
Allemansvlei for a period of one day, on a date to be determined by
the above honourable court;
1.3
Directing the respondents to grant the applicants (including their
agents, representatives, visitors
and staff) immediate access to, and
reasonable daily use of the road which is located on the farm known
as Valspan which is owned
by the Bubesi Trust (of which the
respondents are trustees), to enable the applicants to access the
farms Skietkop and Greeffsdam;
1.4
Directing that the order in para 1.3 shall operate as an interim
order, pending the finalisation of
an action to be instituted by the
applicants, within a time period which the above honourable
court may deem appropriate,
for the determination of a permanent
right of way between the farm known as Boesmanspan which is owned by
the Van Aswegen Farm
Trust (of which the applicants are trustees) and
the farms Skietkop and Greeffsdam via the road located on the farm
Valspan;
1.5
Costs of the application as between attorney and own client, against
the respondents jointly and severally,
the one paying, the other to
be absolved;
1.6 Further
and/or alternative relief.
[2] My sister
Erasmus AJ granted the aforementioned prayers in exception of
the issue of costs which stood over
for later determination. The
parties were further ordered to file the papers in
respect of costs in accordance
with timeframes provided for in
the Uniform Rules of Court.
[3]
The respondents failed to file their answering affidavit by 18 March
2016, that is, within the 15 days from the date of Erasmus
AJ’s
order, as prescribed by Rule 6(5)(d)(ii) of the Uniform Rules of
Court. The applicants’ Notice of Set Down dated
06 April 2016
was filed with the Registrar and served on the respondents’
correspondent attorneys on 07 April 2016 for the
matter to be heard
on 22 April 2016 on the unopposed roll. On 22 April 2016 the case was
postponed to the opposed roll to be heard
on 05 August 2016 as the
matter had become opposed.
[4]
On 20 April 2016, two days before the matter was heard in the
unopposed motion court, Mr Frans Jacobus Lotz, a practicing attorney
and the respondents’ instructing attorney from Prieska, filed
the Answering Affidavit which was 19 court days out of time.
Rule 27
stipulates:
“
27 Extension of time and
removal of bar and condonation
(1)
In the absence
of agreement between the parties, the court may
upon
application on notice and on good cause shown,
make
an order extending or abridging any time prescribed by these rules or
by an order of court or fixed by an order extending or
abridging any
time for doing any act or taking any step in connection with any
proceedings of any nature whatsoever upon such terms
as to it seems
meet.
(2)
Any such
extension may be ordered although the application therefore is not
made until after expiry of the time prescribed or fixed,
and the
court ordering any such extension may make such order as to it seems
meet as to the recalling, varying or cancelling of
the results of the
expiry of any time so prescribed or fixed, whether such results flow
from the terms of any order or from these
rules.
(3)
The court
may, on good cause shown, condone any non-compliance with these
rules.”
(Own
emphasis)
[5]
Evidently, the parties did not reach any agreement in respect of the
extension. What purports to be an application to court
for
condonation is found at para 8 of Mr Lotz’s Answering
Affidavit:
“
8.
Ek wil voorts by die agbare hof pleit om kondonasie vir die laat
liassering van hierdie verklaring en wel op
grond van die volgende:
8.1
Nadat die hofbevel elektronies aan my versend was op 26 Februarie
2016 het ek my kantoorleêr gedagboek
tot 14 Maart 2016 sodat ek
die nodige stukke tydig kon liasseer. Ek was van 29 Februarie 2016
tot 11 Maart 2016 nie voltyds op
kantoor nie.
8.2
As gevolg van die administratiewe haakplek in my kantoor is die
kantoorleêr nie op die bestemde
datum aan my oorhandig vir
verdere hantering nie.
8.3
Gevolglik het ek eers, toe die Kennisgewing van Terrolle Plasing
ontvang is, besef dat ek buite tyd
is wat betref die liassering
hiervan.
8.4
Die situasie is teweeg gebring deur ‘n blote menslike oorsig en
is dit my respekvolle submissie
dat my kliënt onregverdig en
ernstig benadeel sal word indien kondonasie nie toegestaan word nie.
8.5
Ek pleit dus dat die Agbare Hof die laat liassering hiervan
kondoneer.”
Essentially,
the respondents seek to convince me through the affidavit of Mr Lotz
that what he describes as “an administrative
error” or
“administrative hitch” is adequate to satisfy the
requirement of good cause for the late filing of
the Answering
Affidavit. Mr Van Tonder, counsel for the respondents, argued that it
was a “mere oversight” and that
it would be unfair and
prejudicial to the respondents if condonation was not granted.
[6]
In
Melane v
Santam Insurance
1962
(4) SA 531
(A) at 532B-E the following pronouncement was made by the
Court:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects of success may tend
to compensate for a
long delay. And the respondent’s interests in finality must not
be overlooked.”
[7]
In
Saloojee & another NNO v Minister of Community
Development
1965 (2) SA 135
(A) at 141C Steyn
CJ said:
“
I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if
the blame
lies with his attorney. There is a limit beyond which a litigant
cannot escape the results 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 misericordiam should not be allowed to
become an invitation to laxity. In fact this
Court has lately been
burdened with an undue 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
a failure to comply with a 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.”
See also
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & others
1985 (4) SA
773
(A) at 787G–H,
where
Hoexter JA referred to the:
“
oft-repeated
judicial warning that there is a limit beyond which a litigant cannot
escape the results of his attorney’s lack
of diligence or the
insufficiency of the explanation tendered.”
In
Commissioner for
Inland Revenue v Burger
1956 (4) SA 446
(A)
at 449G Centlivres CJ said:
“
Whenever
an appellant realizes that he has not complied with a Rule of court
he should, without delay, apply for condonation.”
[8]
In my view, Mr Lotz’s explanation for the failure to apply for
condonation and the purported explanation tendered at para
5 (above)
is not satisfactory. I am not swayed that condonation should be
granted. As pronounced by the Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
[2014] 1 BLLR 1
(CC) at para 23 it is now trite that condonation
cannot be had for the mere asking.
I therefore find that the
application for condonation cannot succeed.
Costs
[9]
In order to determine the question of costs it is necessary to
provide a brief background of the circumstances that led to the
relief sought. The applicants as trustees had to approach court on an
urgent basis for interim relief. They required access and
reasonable
daily use of the road located on the farm known as Valspan which is
owned by the Bubesi Trust. The respondents are trustees
of this
Trust. Correspondence between the parties’ attorneys was futile
in that the request was met with a refusal without
any reasons. Hence
the applicants resorted to approaching the court for the stated
relief.
[10]
The applicants estimate that as at 18 February 2016 they had 155
artificially inseminated Dorper ewes and Bonsmara cattle on
Skietkop
and another 155 artificially inseminated Dorper ewes on Greeffsdam.
Logically, the applicants had the responsibility and
the duty to
ensure that the animals have water and the crib facilities were clean
to prevent animal deaths. The respondents had
locked the gates to the
farms and thereby denying the applicants access. The applicants
also needed access for one day to
remove 20 head of springbuck and
eight “boerbokke” from Allemansvlei. No reply was
received by the applicants
even after indicating to the respondents’
attorneys that they will launch an urgent application and seek costs
on the scale
as between attorney and own client. It is only
after the application was launched that the respondents opened the
gates at
Valspan at 15h00 on 25 February 2016. The applicants found
that a pump on Skietkop was damaged and at least 24 pregnant Dorper
ewes and one Bonsmara cow had died due to the preventable neglect.
They had not inspected Greeffsdam at that stage.
[11]
In my view, the applicants had no other option but to approach the
court. The sought relief was only settled at the doorstep
of the
court. They were successful and are generally entitled to their
costs. However, the issue that remains is the scale on which
such
costs should be awarded. The respondents’ attorneys allege that
they were under the impression that an agreement had
been reached to
the effect that the gate that gives access to Valspan would be
open provided the one on Boesmanspan belonging
to the applicants’
trust would be opened. I find this submission to be without merit.
What is troublesome is the fact that
the respondents unreasonably
denied the applicants access and it is only once the papers were
filed and the matter was set down
on an urgent basis for 26 February
at 14h00 that the respondents’ attorney telephonically informed
the applicants’
attorney that the respondents would open the
gate in question. It seems like they were calling the applicants’
bluff. After
such an unnecessary litigious exercise they then tender
costs on the unopposed party and party scale.
[12]
I find the following submission, contained in the respondents’
heads of argument and argued orally by Mr Van Tonder,
startling:
“
15
It is submitted that the aforesaid is indicative of the fact that the
applicants were not bona fide in proceeding with the application,
especially with an order for attorney and clients costs, where there
was no need for the application to be proceeded with on an
opposed
basis, under the circumstances where:
15.1 The respondents clearly did not
intend to oppose the merits of the application;
15.2 The respondents have expressly
agreed alternatively given an undertaking, to grant access, and
15.3 The respondents have tendered the
unopposed party and party costs of the application.
16. It is therefore submitted that the applicants
have no one but themselves to blame for the costs that were incurred
after the
25
th
of February 2016.”
From
the correspondence and the explanation furnished by the applicants on
how they tried to resolve this matter amicably out of
court, bearing
in mind the serious risk to the life of the animals they had which,
predictably, eventuated. The respondents were
indifferent to the
animals’ plight.
[13]
The Supreme Court of Appeal in
Sentrachem Ltd v Prinsloo
1997
(2) SA 1
(A) at 21-22 held that a court is entitled to order an
unsuccessful litigant to pay the successful party its attorney and
own client
costs, mindful of the fact that it is a punitive order.
The SCA further cautioned the courts in
AA Alloy Foundry (Pty)
Ltd v Titaco Projects (Pty) Ltd
2000 (1) SA 639
(SCA) not to
use hindsight in assessing the conduct of a party. Harms JA remarked
as follows at 648G:
“
It
has become notable that a practice has taken root in some
jurisdictions of making awards of costs on an attorney and own client
scale where someone other than the own client or his privy is
involved. Whether such orders are justified or justifiable in the
light of decisions of this court may be questioned.”
[14]
It is within my discretion to award an appropriate order of costs and
must do so having applied my mind judiciously. The respondents’
conduct deserves severe opprobrium. It was vexatious and
reprehensible. More importantly they were put in
mora
early and in writing that they would seek this stringent court order.
[15]
In the result the following order is made:
Order
1.
The application
for condonation for the late filing of the answering affidavit is
refused.
2.
The respondents
are ordered to pay the applicants’ costs on the scale as
between attorney and own client jointly and severally,
the one paying
the other to be absolved.
____________________________
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the applicants:
Adv A Eillert
Instructed
by:
Ferreira Associates
Engelsman Magabane Inc
For
the 2
nd
respondent:
Adv AG Van Tonder
Instructed
by:
M & M Van Niekerk
Haarhoffs Inc