About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 423
|
|
JS Panelbeaters and Plastic Bumpers v Department of Sports and Recreation (2014/34731) [2016] ZAGPPHC 423 (6 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
GAUTENG
DIVISION OF THE HIGH COURT OF SOUTH AFRICA
CASE
NO.: 2014/34731
DATE:
6/6
/
2016
In the matter between
-
JS PANELBEATERS AND
PLASTIC BUMPERS
APPLICANT
And
DEPARTMENT OF SPORTS
AND RECREATION
RESPONDENT
JUDGMENT
TSATSAWANE
AJ
1
This is an application for the rescission of an order granted on 6
May 2014. The application was enrolled for hearing by the respondent
due to the applicant's failure to take the necessary steps to enrol
the matter for hearing.
2
When the matter was called for hearing on 6 June 2016, two years from
the date on which the judgment sought to be rescinded was
granted,
Mr. Molopedi applied for a postponement on behalf of the applicant.
Ms. Grobler opposed the application for postponement
on behalf of the
respondent.
3
I dismissed the application for postponement after hearing both
counsel and advised that the reasons for my order will be delivered
separately. The following are those reasons.
The
main
application
4
The respondent brought the main application in February 2014 and
served it upon the applicant on 4 March 2014. The applicant does
not
contend that it was not properly served with the main application.
5
Despite having been served with the main application, the applicant
failed to oppose the application. The notice of motion of
the
application expressly provides that application will be made on 6 May
2014.
6
In the main application, the respondent sought an order directing
the applicant to return its motor vehicle, a Volkswagen Polo
Vivo
with registration number […] GP.
7
In view of the fact that the applicant did not oppose the
application, the respondent took its order on 6 May 2014, the date
of
which the applicant was expressly notified in the notice of motion.
The order was duly served upon the applicant on 15 May 2014
and the
applicant does not contend that this was not so. Accordingly, the
applicant became aware of the order on 15 May 2014. Despite
having
been properly served with the order, the applicant refused to comply
therewith and kept the motor vehicle in issue in its
possession.
8
As I understand it from the papers filed of record, the applicant
refused to release the motor vehicle in issue due to the fact
that it
contends that the respondent is indebted to it in the amount of
approximately R 25 479, 00, being what is referred to in
the papers
as its
"release
fee.
"
The
basis of this alleged liability and the merits thereof are irrelevant
for purposes of this judgment.
9
Prior to launching the main application, the respondent tendered to
pay the applicant an amount of R 2 200, 00 plus value added
tax being
an amount which it considered to be a reasonable release fee in the
circumstances. In addition, it tendered to provide
security for the
balance of the amount claimed by the applicant and to have such
balance placed in a trust account pending the
final determination of
an action which the applicant had to institute to recover such
balance. In my view, this was a reasonable
proposal which would have
curtailed the costs which no doubt have been incurred by the
respondent in bringing the main application
and opposing the present
rescission application.
10
The applicant rejected the aforesaid proposal thereby forcing the
respondent to bring the main application and to obtain the
order
which is now being sought to be rescinded and set aside.
The
rescission
application
11
Unhappy with the order granted against it, the applicant brought the
present rescission application to rescind and set aside
the order
granted against it on 6 May 2014. This application was filed on 14
May 2014 and a period of two years has now lapsed
before it is
finalised.
12
The respondent filed its answering affidavit to the rescission
application on 16 September 2014. The applicant has not, since
September 2014, filed a replying its affidavit nor did it take any
steps to bring the rescission application to finality.
13
In paragraph 5 of its founding affidavit, the applicant states that
this Court "
should set
aside
the
draft
order
dated
6
th
May
2014.
It
is
my
contention
that Respondent
is
duly indebted to Applicant
and that before the vehicle
is uplifted, payment as
indicated
on
the
annexure
A
should
be
effected
by Respondent
to Applicant
.
"
This is the
closest the applicant gets to making out a case for rescission.
14
The applicant's founding affidavit does not even indicate the basis
on which the application for rescission is sought. It is
not the
applicant's case in its founding affidavit that the order sought to
be rescinded was erroneously sought and erroneously
granted. It is
also not the applicant's case that rescission is sought under the
common law or any other possible basis. All that
is relevant and
which is said in the applicant's founding affidavit is what is
contained in paragraph 5 of the applicant's founding
affidavit, the
contents of which I have quoted above.
15
Without making out a case on the basis of which rescission is sought,
the application for rescission is defective, if it is not
stillborn.
The
application
for
postponement
16
It was contended on behalf of the applicant that postponement is
required in order to enable the applicant to amend its founding
papers. I took this to mean filing a supplementary founding
affidavit.
17
No reasonable explanation was given by the applicant as to why the
application was not brought earlier and why the founding
papers were
not supplemented earlier. The suggestion that the founding papers
were filed without the assistance of an attorney
takes the matter no
further due to the fact that the applicant's attorneys of record have
been on record in this matter from time
to time and there is no
reason given as to why they did not supplement the founding papers.
18
Of importance, no submissions were made as to when the applicant
realised that the papers needed to be supplemented. In my view,
the
fact that the rescission application is defective must have been
realised from the date on which the respondent delivered its
answering affidavit. This is so due to the fact that in paragraph 2
thereof, the respondent contended that
"the
Application for Rescission
by
the
Applicant is fatally
flawed'
and then gave
reasons for this contention. I fully agree with the basis on which
the respondent contended that the rescission application
is fatally
flawed. Despite this notification, the applicant did nothing about
supplementing its founding papers since September
2014 nor did it
file a replying affidavit.
19
During argument, Mr. Molopedi correctly conceded that the rescission
application was indeed defective. With this concession,
there could
never have been any rational basis to proceed with the application
for rescission in its current format. In addition
to this
concession, it was not disputed that the applicant has another remedy
available to it, i.e. an action against the respondent
to recover the
monies which it contends are due to it.
20
The
principles applicable in an application for postponement are trite
and there is no
need
to
restate
them
in
great
detail.
An
application
for
a
postponement
is usually
based
on
the
argument
that
unless
the
postponement
is
granted,
the
applicant will suffer prejudice
in the
conduct of its case. It
therefore
follows that an applicant
for a
postponement
must
show the
manner
in
which
the
applicant will be prejudiced
if a
postponement
is not
granted
[1]
•
In this
case, the applicant failed
to
establish
prejudice
sufficient
enough
to justify
a
postponement
in the
light of the fact that
it has
another
remedy,
which remedy
would
even be
more cost-effective in that it can commence action proceedings
against the respondent immediately
as opposed
to
continuing
with
this
present
proceedings
the aim of
which is not to recover the money which it says is due to it.
21
In
Madnitzky v
Rosenberg
1949 (2)
SA
392
(A)
it was held that -
"No
doubt a Court should be slow to refuse to grant a postponement where
the true reason for a party's non-preparedness has
been fully
explained, where his unreadiness to proceed is not due to delaying
tactics, and where justice demands that he should
have further time
for the purpose of presenting his case. In the present case, however,
it cannot be said that those requisites
were satisfied ..."
22
In this case, no reasonable explanation was given as to why the
applicant did not fix its founding papers earlier. In addition,
no
indication was given given by the applicant itself as to when it
realised that the papers needed to be supplemented. In my view,
this
must have been realised in September 2014 and it is only in the event
of the applicant acting in a negligent and irresponsible
manner that
it did not realise this then. The respondent need not be prejudiced
by this kind of conduct and justice does not demand
that the
applicant be given another chance to attempt to supplement its
founding papers in circumstances where it must have been
aware of the
defects thereon since September 2014.
23
An application for postponement must be made timeously. In this
case, the applicant received the notice of set down on 23 March
2016.
From that date, the applicant knew that it must take the necessary
steps to be ready to proceed with its application. It
took no such
steps until its letter dated 23 May 2016 in which it contended that
the matter must be removed from the roll due to
the fact that
"the
matter is not yet
ripe for
hearing."
The matter was not ripe for hearing due to the fact that the
applicant failed to file its replying affidavit. In my view, it ought
not to have relied on its own problems to contend for the removal of
the matter from the roll in circumstances where its replying
affidavit was due in 2014. In addition, the applicant took no steps
to get the matter ripe for hearing at least to show that it
is acting
in good faith and not with the intention to delay the finalisation of
the matter.
24
The respondent refused to remove the matter from the roll in its
letter dated 31 May 2016 and further advised the applicant's
attorneys as follows -
"6.
Our client on 16 September 2014 filed their opposing affidavit
to
your client's Application for the Rescission of Judgment of the Order
dated 6 May 2014. We reiterate, your client did very little
in order
to finalise the aforesaid application and as such, we contend that
your client had enough time in order to file a farther
founding
affidavit, alternatively a replying affidavit to our client's
opposing affidavit in the above matter.
Our
client
will
not
let
this
matter
drag
out
any
longer,
and
as
such,
it
is
our
instruction to
proceed
with the matter
on 6 JUNE
2016
and should your
client oppose same, a copy of this letter will be used in
support of a
punitive
cost order that
will be sought against your client."
25
The respondent's position of refusing to remove the matter from the
roll is understandable. In my view, the applicant's position
would
have been different and even better, if its request for a removal
from the roll was accompanied by either its replying affidavit
or a
supplementary founding affidavit together with an application for
leave to file same. This was not done even after receipt
of the
respondent's letter referred to above. There is no reason to condone
the applicant's conduct in this matter.
26
In the light of the above, I came to the conclusion that -
26.1
the rescission application was defective (or fatally flawed as
contended by the respondent);
26.2
the applicant has another remedy as aforesaid and that it would not
be prejudiced if postponement was refused;
26.3
the application was brought too late and there was no reasonable
explanation as to why it was not brought earlier to avoid
the
respondent incurring the costs which it has incurred;
26.4
the respondent would be prejudiced if postponement was granted in
that it would mean that it must incur further costs again
to deal
with the applicant's attempts to fix what is clearly a defective
application; and
26.5
the appropriate order in circumstances where the application was
defective is to refuse postponement as opposed to granting
a
postponement to enable the applicant to try to do the almost
impossible. In this regard, the correct approach would be to issue
a
fresh application or to pursue an action to recover the amount
allegedly due to the applicant by the respondent.
27
After I dismissed the application for postponement, Mr. Molopedi
correctly withdrew the application for rescission and I then
made an
order recording the withdrawal of the rescission application and
ordered the applicant to pay the respondent's costs on
an attorney
and own client scale. In the light of the fact that the rescission
application 1s defective (and the applicant failed
to supplement its
founding papers since being made aware of the defects in September
2014) and the applicant's failure to take
any steps to bring the
matter to finality, there is no reason why the respondent should be
out of pocket and it is for this reason
that I ordered the applicant
to pay the respondent's costs on an attorney and own client scale.
28
The above are then the reasons which I undertook to give for my
decision to refuse the application for postponement.
________________
K TSATSAWANE
Acting Judge of the
Gauteng Division of the High Court.
For the
applicant: Advocate
Molopedi
Instructed
by Ntimane Attorneys, Kempton Park
For the
respondent: Advocate
C. Grobler
Instructed
by Weavind & Weavind, Pretoria
Date of
Hearing: 6
June 2016.
Date of
Judgment: 6
June
2016.
Date of
Reasons: 8
June 2016.
[1]
Herbstein
&
Van
Winsen
5"'
Edition
at
751.