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[2016] ZAGPPHC 793
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K&D Telemarketing CC and Others v Liberty Group t/a Liberty Life ; In re: Liberty Group t/a Liberty Life v K&D Telemarketing CC and Others (75525/2010) [2016] ZAGPPHC 793 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:
9/9/2016
Case
No: 75525/2010
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
K
& D TELEMARKETING
CC
..........................................................................
First
Applicant
KAREN
SCHAFER
...................................................................................
Second Applicant
ERIC
BUTOWSKY
.........................................................................................
Third Applicant
and
LIBERTY
GROUP LTD t/a LIBERTY
LIFE
…......
Respondent
In
re:
LIBERTY
GROUP LTD t/a LIBERTY
LIFE
….....
Plaintiff
and
K
& D TELEMARKETING
CC
.......................................................................
First Defendant
KAREN
SCHAFER
...................................................................................
Second
Defendant
ERIC
BUTOWSKY
........................................................................................
Third
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, AJ
1.
This is an application in terms of the provisions of Rule 30
of the Uniform Rules of Court for the setting aside of a notice in
terms of Rule 28 served by the respondent upon the applicants in the
above named action.
2.
The respondent, as plaintiff, launched an action during 2010
against the applicants in respect of the refund of commissions paid
by it to the applicants in respect of insurance policies that lapsed
on grounds whereof the first applicant purportedly became
liable to
refund such commissions to the respondent. The second and third
applicants are sureties in terms of written agreements
of surety for
the liability of the first applicant to the respondent.
3.
That action proceeded to trial in April 2015 and the trial
court, after hearing evidence on behalf of the respondent and the
applicants,
granted on 4 September 2015, in a written judgment,
absolution from the instance together with costs orders.
4.
The trial court found
inter alia
that the respondent
had not on a balance of probabilities proven its claim for the refund
of the commissions paid by it to the first
applicant. It was on that
basis that the order of absolution of the instance was granted.
5.
On the aforementioned judgment being delivered, the respondent
caused a notice in terms of the provisions of Rule 28 to be served
on
the applicants, the defendants in the action. Together therewith, the
amended pages to the particulars of claim were served.
In addition, a
summary of expert evidence in terms of the provisions of Rule 36 was
also served upon the applicants.
6.
The applicants, on receiving the notice to amend, caused a
notice in terms of the provisions of Rule 30 to be served on the
respondent,
calling upon the respondent to remove the irregular step
of the notice in terms of Rule 28 within the prescribed time period.
The
respondent declined or failed to do so. Hence the launch of this
application.
7.
The premise upon which the applicants seek the setting aside
of the notice in terms of Rule 28 relates to the order of the trial
court granting absolution from the instance.
8.
The parties have divergent views as to the effect of an
absolution from the instance being granted.
9.
In this regard the applicants contend that the action in which
the order for absolution from the instance was, has come to an end.
It is further contended that the trial court is
functus officio
and that the order and judgment are final and binding on all the
parties.
10.
It is contended on behalf of the applicants that the
respondent has two options in regard to the order and judgment being
final
and binding. In this regard the applicants submit that the
respondent is obliged to either, appeal the order and judgment, or to
commence proceedings
de novo.
In this regard, the applicants
rely on authorities
from
which it is to be discerned that the correct procedure to
be followed
is to start "a fresh".
[1]
11.
The
respondent contends that its claim is not defective and that
the
procedure it seeks to follow is merely a situation of curing
deficient
evidence and proceeding on the papers as they stand or
amending
them if necessary. In this regard, the respondent relies on the
dictum in
Sparks v
Sparks.
[2]
12.
Mr
Roux, who appeared on behalf of the respondent, submitted
that,
although the authorities all state that a party who is faced with
an
order of absolution from the instance is to start afresh or
de
novo,
none of
those authorities attempt to state what is meant thereby.
Mr Roux
submitted with reference to the full court's judgment in
Sparks,
supra,
that
the equivalent of absolution from the instance would
be that no
order is made or that leave is granted to apply again on
the same
papers.
[3]
Hence, the procedure
followed by the respondent is
in keeping
with the
Sparks,
supra,
dictum,
is correct and does
not
constitute an irregular step.
13.
In my respectful opinion, the reliance is misplaced. In the
context of what is stated in
Sparks, supra,
and in
African
Farms and
Townships,
it was held that where no
order is made by the court or that the court grants leave to apply
again of the same papers, such instances
are equivalent to absolution
from the instance. It does not mean that absolution from the instance
implies that leave is granted
to apply again on the same papers. That
specific order is to be made by the court. It follows that when the
court grants leave
to apply again on the same papers, such order is
equivalent to absolution from the instance being granted.
14.
Support
for the foregoing interpretation is found in the
ratio
decidendi
in
Colman v
Dunbar
where
the Appeal Court (as it then was
known)
found that a litigant who has a judgment of absolution from
the
instance against him could always proceed
de
nova
if
he discovers fresh evidence.
[4]
Further in this regard, the meaning of
de
nova
is
afresh; anew (opnuut; van nuuts
af).
[5]
15.
In view of the foregoing, the respondent's contentions cannot
be upheld.
16.
It follows that the notice in terms of Rule 28 served on the
applicants stands to be set aside as an irregular step.
I
grant the following order.
(a)
The Respondent's Notice in terms of Rule 28, dated 18 February 2016,
served on the Applicants in the matter under case number
2010/75525
is set aside as an irregular step.
(b)
The respondent is to pay the costs.
_______________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicants: Ms N Strathern
Instructed
by:Karen Shafer Attorneys
On
behalf of Respondent: C D Roux
Instructed
by: R C Christie Inc.
[1]
Corbridge
v Welch
(1892)
9 SC 277
at 279; see also
Colman
v Dunbar
1933
AD 141
at 163
[2]
1998(4) SA 714 at 7210
[3]
See African Farms and Townships Ltd v Cape Town Municipality 1963(2)
SA 555 (A) at 563F
[4]
at 163
[5]
Trilingual Legal Dictionary, V. G. Hiemstra and H. L. Ganin, 3rd ed.
p. 175