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[2016] ZAGPPHC 1000
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Absa Bank Limited v Adam; Absa Bank v Adam and Others (42823/2013; 42824/2013) [2016] ZAGPPHC 1000 (24 November 2016)
IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
DATE: 24/11/2016
CASE NO: 42823/2013
IN THE MATTER
BETWEEN
ABSA BANK LIMITED
Applicant/Plaintiff
And
MOHAMED ADAM
1
st
Respondent/1
st
Defendant
CASE NO: 42824/2013
IN THE MATTER
BETWEEN
:
ABSA BANK LIMITED
Applicant/Plaintiff
And
MOHAMED ADAM
1
st
Respondent/1
st
Defendant
FREDERICK
HERSELMAN LLOYD
2
nd
Respondent/2
nd
Defendant
ALIDA MARIA LLOYD
3
rd
Respondent/3
rd
Defendant
JUDGMENT
KOLLAPEN J:
1.
The
plaintiff has sued the defendants for payment based on deeds of
suretyship signed by the defendants in favour of the plaintiff
and in
respect of the liability of the Medical Review Corporation Limited.
2.
Both
those separate actions in which the issues in dispute are the same
are still pending in this Court and during August 2016 the
trials in
both matters were postponed
sine die.
3.
The
application which currently serves before me was launched on the 11th
of September 2016 and in it the applicant seeks an order
striking out
the
defendant's plea and/or dismissing the
defendant's defence, and following that, seeks judgment to be entered
in favour of the
plaintiff.
4.
The
applications which came before me on the 20th of October 2016 are
premised on the following grounds (described as three separate
and
self
standing grounds):
a)
That
the defendant is in breach of orders of this Court (these relate to
the plaintiffs request for further particulars
for
trial, and
an order
directing
the defendant
to make discovery
in
terms of Rule 35).
b)
That
the defendant has shown a disregard and lack of interest in the
litigation, constituting an abuse of
process.
c)
That
there is no merit in the defendant's defence to the action.
5.
In
respect of the last ground, it is common cause that on the 25th of
July 2016
this Court made orders directing the
defendant to respond
to
the
plaintiff's
notice in terms of Rule
35(1) within ten days of the order as well as an order directing the
defendants to respond to
the
plaintiffs
request
for
further
particulars
within ten days from the date of the
order.
6.
The
further particulars and the discovery affidavit contemplated in the
orders of the 25th of July 2016 were served on the plaintiff's
attorneys on the 19th of October 2016 and were accompanied by
an
application
for
condonation
for their late filing.
7.
Accordingly on the 20th of October 2016 the position was
that there had been compliance with the orders of the 25th of July
2016
albeit out of time, for which condonation was sought. The stance
of the
plaintiff
was
that
it
persisted
with the relief sought while the defendant intimated
that
it
wished
to
oppose
the relief sought. The matter
was postponed with time-frames for the exchange of affidavits and
heads of argument
being part of the terms of the
postponement.
8.
With
regard to the
first ground
relating
to the non-compliance with
the
orders
of this Court, my view is that at the time
the application to strike served before me, there was compliance with
the orders made,
coupled
with
an
application for condonation
which the plaintiff has elected not to
oppose.
9.
Under
such circumstances and in the light of the explanation offered for
the lateness in complying with the orders of this Court
of the 25th
of July 2016, I would not in the exercise of my discretion grant the
relief based on this ground as in my view there
has been substantial
compliance with the orders of this Court as well as an explanation
that is not challenged for the delay in
complying with these orders
timeously. To grant the relief sought which is far reaching,
would be disproportionate to the
mischief complained against, and
which in any event has been substantially remedied.
10.
The
second leg of the application is premised on an assertion that the
defendant has repeatedly acted
mala fide
in
respect of this action and related and parallel litigation between
the bank, the defendant and companies making up his group
of
companies. In advancing this ground the plaintiff makes reference to
both the manner in which the defendant approached an application
for
a postponement of the trial in one of the matters which was set down
for the 2nd of August 2016, as well as other related litigation,
contending that the defendant acted with
mala
fides
in respect of the litigation in
general, not complying with time limits and Court-ordered directions.
11.
The
defendant has brought an application to strike
in
respect
of
these
allegations in terms of Rule 6(15) contending that they
contain material that is either scandalous,
vexatious
or irrelevant.
12.
In
my view the conduct of the defendant in relation to litigation
other than the two actions which are the subject of this
application would not be relevant
in these
proceedings as that conduct (whatever its content may be) stands to
be determined by the processes in those proceedings
and
the
parties'
respective rights and
obligations as they arise. It does
not
appear
that
any
of
the complaints
in
respect
of the defendant's
conduct
in those
matters
has
resulted
in a finding of recalcitrance or
recidivism in those matters. Under such circumstances I am not
convinced that those allegations
assume
relevance
in these proceedings and in the circumstances I would
uphold the application to strike with costs.
13.
What
then remains in respect of this ground are the allegations of
recalcitrance in these proceedings. In this regard the failure
to
comply with time limits and court orders may reflect a less than
ideal approach to litigation which of course activates certain
rights
on the part of the innocent party. The first ground of this
application has already traversed the orders of the 25th of
July 2016
and they should not resurface in respect of this grou
nd again.
Each instance of non
compliance carries consequences
and I am not satisfied that the allegations of non-compliance are
such that they constitute recalcitrance
or recidivism justifying
extraordinary relief of striking out and judgment.
14.
The
third and final leg on which the application is brought is the lack
of a valid and sustainable defence to the plaintiff's
action.
In
this
regard
the
plaintiff
seeks
in the founding affidavit in
this
application,
to
analyse
the
defences
raised
and to conclude that they are without
merit.
15.
I
am
not convinced
that these
are the proper
proceedings
for
such an
approach. The defendant's plea was filed
as far back as in August 2015. If the plaintiff was of the view that
it evidenced no valid
defence in law then it was open to the
plaintiff to utilise the provisions of Rule 23 of the Rules of this
court in excepting to
this plea. Such a course of action was not
followed and the matter proceeded to be enrolled for trial on the
basis that the defendant
would ventilate the defences in his plea in
those proceedings.
16.
Determining in motion proceedings such as these that the
defences lack merit would in my view seek to achieve the same effect
as
an exception through a different guise and would effectively
deprive the defendant of ventilating his defence, which up to the
filing of this application, was not the subject of a challenge as
contemplated
in Rule
23.
17.
For
these reasons I would
not uphold the application
based on this ground.
ORDER
:
18.
In
the circumstances
I would
make
the following
order:
I.
Paragraph
25 - 63 of the founding affidavit under case number 42823/2013 are
struck
in terms of
Rule 6(15)
of the
Uniform
Rules
of Court;
II.
Paragraph
22 - 63 of the founding affidavit under case number 42824/2013 are
struck
in terms of Rule 6(15) of the
Uniform
Rules
of
Court;
III.
Paragraph 17 of the Replying Affidavit filed for both
case number 42823/2013 and 42824/2013 are struck in terms of Rule
6(15) of
the Uniform
Rules of Court;
IV.
The
applicant
is to pay the costs of the applications
to
strike.
V.
The
applicant's applications in terms of
case
numbers
42823/2013 and 42824/2013
are dismissed
with costs
VI.
No
order of costs is made in respect of the proceedings of the 20th of
October 2016.
NKOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
42823/2013 &
42824/2013
HEARD ON: 20 October
2016 & 14 November 2016
FOR THE APPLICANT:
Adv.KW Ltideritz SC (appearing with Adv. G W Amm) INSTRUCTED BY:
Lowndes Dlamini Attorneys (ref.: A Wright/II/MAT12567)
(Correspondent
attorneys - Riaan Bosch Attorneys (ref.: R Bosch/RD0293))
FOR
THE RESPONDENT: Adv. J Roux SC
INSTRUCTED BY:
Boshoff Smuts Inc Attorneys (ref.: J Smuts/N Brand/BL0526)