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[2016] ZAGPPHC 597
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City of Tshwane v Van Der Merwe (64082/13) [2016] ZAGPPHC 597 (12 July 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 64082/13
DATE:
12 JULY 2016
CITY
OF
TSHWANE
.........................................................................................................
APPLICANT
And
GERT
THOMAS VAN DER
MERWE
.........................................................................
RESPONDENT
JUDGEMENT
SEMENYA
AJ
[1]
This is an application by the respondent
in the main application for condonation for late filing of answering
affidavit. The applicant
is opposing the application. The parties
shall be referred to as in the main application. The two cardinal
relief sought are for
the restoration of electricity on the premises
owned by the respondent and declaration that the respondent is in
contempt of court.
I deem it necessary to first deal with the events
that led to the main application before I could deal with the merits
of the instant
application.
[2]
The applicant is a practising attorney
whose practice is situated in Pretoria. On the 8 October 2013 the
applicant brought an application
against the respondent in this court
for restoration of electricity after it was disconnected by the
respondent. The disconnection
was due to the alleged non-payment of
monthly tariffs billed against
the
applicant by the respondent. The order was granted in terms of which
the applicant was ordered to supply/connect electricity on
the
respondent’s premises and was further interdicted from
disconnecting the aforesaid services until such a timo that the
dispute regarding the account has been resolved.
[3]
It appears from the founding affidavit
in the main application that despite the order, the respondent again
disconnected electricity
from the applicant’s premises. This
prompted the applicant into bringing another application in the court
in which he sought
the following orders;
a)
“
THAT
the respondent be ordered to restore the electricity supply to the
applicant’s property administered under accou
nt
number [5………]
with immediate effect.
b)
THAT a
declarator be issued in terms of whereof the Respondent is found to
be in contempt of the court order granted
on
8
th
October
2014
before his Lordship the Honourable Judge Fabricious and that the
Respondent be fined with a penalty in the amount of R50 000.00
payable to the Applicant
c)
THAT
the Respondent is ordered to issue a clearance certificate with a
zero balance in favour of the Applicant against payment in
the amount
of R64 401.45 into the trust account of Van der Merwe &
Associates supplemented by an undertaking by the aforesaid
firm of
attorneys in favour of the Respondent that the said amount will be
held in trust as socurity for payment of any amount
due to the
Responde
nt under
account number [5……..]
which amount will be due and payable as and when the Respondent
obtains a court order for the said amount or in the event of a
written settlement between the parties,
d)
THAT
the Respondent pays the cost of this application on a scale as
between attorney and own client.”
[4]
The application under case no.64082/2013
was placed on an urgent roll on the 6 February 2014 at 14:00. The
respondent forwarded,
by email, its notice of intent to oppose the
application on that very same day. The application was, as a result
of this, removed
from the roll. It was then expected, as is
prescribed by the Rules of Court, of the respondent to approach the
court with an application
for condonation for late filing of its
answering affidavit. It further appears from the papers filed of
record that the parties
thereafter communicated with each other by
telephone and letters. I shall now proceed to deal with the relevant
communication.
[5]
On the 10 February 2014 it was agreed
that a meeting should be arranged to see if the parties could resolve
their issues. Subsequent
to that, the applicant sent a letter dated
12 February 2014 to the respondent in which he indicated that the
respondent has 15
days to file its opposing affidavit. On the 17
February 2014 the respondent wrote a letter to the applicant in which
it undertook
to serve its opposing papers within 15 days which it
never deed. The respondent instead forwarded a letter dated 19 March
2014
to the applicant in which he requested a copy of the urgent
application dated 8 October 2013. On 5 May 2013 the applicant
addressed
a letter to the respondent informing it that he has
enrolled the matter on the unopposed roll for the 2 June 2014. He
however,
continued to try and resolve the issues with the applicant
without yielding any positive results. Several other letters were
sent
to the respondent in an endeavour to resolve the issues or to
remind the respondent to file and serve its application for
condonation.
The respondent answered to the letters on the 25 June
2014 and undertook to file its application for condonation on the 30
June
2014. Again the respondent failed to do.so. The matter was
finally placed on the unopposed roll for the 6 October 2014. However,
the respondent filed its answering affidavit on the 2 October 2014.
The application was again removed from the roll.
[6]
It is against this background that the
applicant is opposing the application for condonation. The grounds
for the delay in filing
the application as furnished by the
respondent are that its counsel requested more documents as well as
the
8
0ctober2013 the application, which was
collected from the applicant on 10 April 2014. These documents were
forwarded to its counsel
on the15 April 2014. The respondent wrote
two letters to its counsel enquiring about the progress that he may
have made. Final
consultation took place on the 28 May 2014. It was
then able to file its answering affidavit on the 2 June 2014 and that
was after
it was served with a notice of set down.
[7]
It was argued on behalf of the
respondent that the applicant did not suffer any serious prejudice
due to late filing of the opposing
affidavit. It was further
contended that it did not blatantly and disrespectfully disregard the
Rules of Court as alleged by the
applicant, nor act in such a way as
to cause prejudice to the applicant.
[8]
It was submitted on behalf of the
respondent that the facts of the application are more in favour of
granting condonation than in
refusing it .It was argued that the
prayers sought in prayer two
i.e
for restoration of electricity has
become moot as same was done before the matter was enrolled. It was
further argued that there
is no factual or legal basis for prayer
three and four and that there are prospects of success in its favour.
That the reason why
it contents that there are such prospects will
appear in the answering affidavit should the present application be
granted.
[9]
Counsel for the applicant argued that
there is no justification for the respondent’s delay in filing
the answering affidavit
and that the respondent simply ignored
correspondence he forwarded to it. It was contended that the fact
that the respondent chose
not to mention the letters in its affidavit
is by itself an indication that it is unable to explain its delay in
filing the opposing
papers. It was further argued that applicant has
laid a basis on which the court could find the respondent guilty of
civil contempt
of court for failure to comply with a court order.
[10]
It was held in Dengetenge Holdings (Pty)
Ltd v Southern Sphere Mining and Development Company Limited and
others
2013 (2) All SA 251
(SCA) at 256 [11] (Dengetenge) that:
“
Factors
which usually
weigh
with the court in considering an
application
for
condonation
include the degree of non - compliance, the explanation therefor, the
importance of the of the case, a respondent’s
interest in
finality of the judgement of the court below, the convenience of the
court and the avoidance of
unnecessary
delay
in the administration of
justice.”
[11]
As in Dengetenge, the respondent in this
instant matter's delay was in the filing of its answering affidavit
as well as application
for condonation. It chose to ignore constant
nagging, in the form of a number of letters sent to it by the
applicant, to file its
answering affidavit, application for
condonation or to try and resolve the issues amicably. Counsel for
the applicant argued, correctly
so in my view, that the respondent
failed to furnish sufficient reasons upon which an indulgence may be
granted in its favour.
It failed to explain why it did not file its
papers after it undertook to do so on two occasions. It also failed
to communicate
the challenges it had with regard to obtaining
documents required by its counsel to the applicant, neither did it
respond to his
letters. It is only after the matter was set down for
hearing that the respondent deemed it necessary to respond. In the
premises
I find that the respondent’s delay in filing the
answering affidavit as well as the application for condonation is
unreasonable.
[12]
The respondent was expected to provide a
full, detailed and accurate account of the causes of the delay and to
furnish their effect
so as to enable the court to understand clearly
the reasons thereof and to assess the responsibility. Instead it only
provided
a scanty explanation without stating the nature and size of
the documents counsel asked for, the person or authority in whose
custody
the documents were, the reasons why they were not readily
available and so forth-Uitenhage Transitional Local Council v South
African
Revenue Service
2004 (1) SA 292
(SCA) at 6. The explanation
furnished that the» respondent is a huge organisation which
deals with numerous documents is
not, in my view, satisfactory.
[13]
In Commissioner for Inland Revenue v
Burger
1956 (4) SA 446
(A) at G-H application for condonation was
refused where the delay was for a period of six weeks. In this
instant case the delay
was for a period longer than seven months. The
court stated in Burger
{supra)
that whenever a litigant realises
that he has not complied with the Rules of Court he should, without
delay, apply for condonation.
[14]
With regard to the issue of prejudice,
the respondent has made a bold statement to the effect that the
applicant did not suffer
any prejudice as a result of the delay. It
stated that the mere fact that the applicant refused to accept
the
answering affidavit on the
2 October is by
itself an indication that he has no interest in the speedy
finalization
of the matter. I find this
reasoning to be faulty in that the application was removed from the
roll on two occasions due to the
respondent’s delay in filing
relevant papers. The applicant also took some steps to remind the
respondent to take the necessary
steps so as to bring the case to
finality. On the contrary, it is the conduct of the respondent that
shows lack of interest in
finality. The argument that the applicant
has been prejudiced by this conduct is therefore accepted.
[15]
The importance of the case on the
respondent is not clear yet. The situation is as it is, as contended
by it, because the answering
affidavit is not yet filed. That should
this application succeed, the respondent will be able to prove, at
the hearing of the main
application, that the it was entitled to
disconnect the electricity. It was further argued that this is the
main reason why the
applicant is opposing the instant condon
ation
application. The applica
nt seeks, among others,
the court’s decision as to whether it is entitled to payment of
the amount he claimed due to the respondent’s
alleged civil
contempt of court. It appears from the applicant’s founding
affidavit filed in support of the main application
that the
respondent continued to disconnect the electricity in contravention
of the court order.
[16]
Due to the nature of the issues which
are likely to be presented, I find that it would be proper to allow
the respondent to file
the answering affidavit and to give the
parties an opportunity to ventilate the issues in the main
application.
[17]
In view of the manner in which the
respondent handled the matter coupled with the fact that he is the
party seeking the indulgence,
I find it proper that it should be
ordered pay all reasonable wasted costs of this application,
including the costs of opposition.
I
therefore make the following order:
1.
The application for condonation of late
filing of answering affidavit is granted;
2.
The respondent is ordered to pay the
costs of this application which shall include reasonable wasted costs
as well as opposition
costs.
M.V
SEMENYA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA