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[2016] ZAGPPHC 237
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B Velela Engineering v Minister of Basic Education and Others (22954/2015) [2016] ZAGPPHC 237 (22 April 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case no. 22954/2015
22/4/16
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
B
VELELA
ENGINEERING Applicant
and
MINISTER OF BASIC
EDUCATION AND
OTHERS Respondent
JUDGMENT
RABIE, J
1.
This matter served
before
me as an application
for
Summary
Judgement
in the unopposed
motion
Court
of
17 July
2015.
The
order
made
by
me was
that
the matter be removed from the roll.
2.
On
25 January
2016
the court file was submitted to me in
chambers. The following
documentation
had
been added to the court file: a letter
dated
6 November
2015
from
Noa
Kinstler
Attorneys,
the
attorneys
of
the
applicant; a fresh
Application
for
Judgement by
Default
in
terms
of
Section
31
(5);
a
Draft
Order; and an affidavit of Me Noa Kinstler.
3.
In
the
letter
of
the
attorney
it
was,
inter
alia,
stated
that
when
the
matter
was removed
from
the
roll
on
17
July
2015
I
requested
that
the
matter
be
brought before
me
in
chambers
in the
form
of
a
default
judgement.
Consequently,
so
it was stated, an application for default
judgement
was
enclosed for my consideration.
4.
The
statement
namely
that
I
requested
the
matter
to
be
brought
before
me
in
chambers
in the form
of
a
default judgement,
is
factually
totally
incorrect.
I
have had regard to the
notes
made by me in respect of this matter on 17 July 2015 and
also to the typed
record
of proceedings relating to this matter. The typed
record of proceedings
relating to this matter is now enclosed in this
matter's court file.
5.
The first point to be made is that according to
an opposing affidavit filed on behalf of the "respondents",
leave should be
granted
to defend the matter.
It
was submitted
by
counsel
appearing
on
behalf
of
the
applicant
that
the
answering
affidavit
related
to
the
first
and
second
respondents
and
not
to
the
third respondent,
the
Mandisa
Shiceka
High
School.
The
applicant
wanted
an
order against the third respondent.
6.
During
the
debate
with counsel it
was mentioned that if
the
matter
was
not opposed
by
the
third
respondent,
the
applicant
could
in
any
event
not
succeed
against
the third respondent with an application for summary judgement.
7.
It
was
further
mentioned
by
myself
that
in the
light
of the
defence
referred to
in
the opposing affidavit,
I was
in any event not disposed to make any order
against the third
respondent.
I
advised
the applicant to take the matter
up with the
State
Attorney
to
get clarity
on their
status as far
as
the third
respondent
is concerned. Furthermore, and if it appears that
the State Attorney
is not
acting on behalf of the third
respondent,
that
the
third
respondent
should
be
i
nformed
that
they
are
not
properly
represented
in this
matter
even though they
might have
thought that the State Attorney
had
been acting on their behalf.
8.
It
appears that the applicant's attorney
had
failed to do what was requested of her by the court during the
hearing of the matter.
It is
also clear that the attorney
has
misstated the facts
by
stating that
I required an
application for
default
judgement to be placed before me in chambers.
9.
I
again
advise the
attorney
of
the
applicant to take the
issue of representation
up
with
the
State
Attorney.
On
the
face
of
it,
the
State
Attorney
does
appear
on behalf of the third respondent and it
consequently
also appears
that the summary judgement application
had
been
opposed
on
behalf
of
the
third
respondent
as well.
10.
In
the
light of all the above the following
order
is made:
1.
The application for default judgement
against the third defendant is dismissed with
costs.
__________________________
C.P. RABIE
JUDGE OF THE HIGH
COURT