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[2015] ZAGPPHC 93
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Zidla Ndawonye Bomake Trading CC and Another v Habana Trading (Pty) Ltd (61873/14) [2015] ZAGPPHC 93 (20 February 2015)
IN
THE GAUTENG DIVISION, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 61873/14
DATE: 20 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ZIDLA NDAWONYE
BOMAKE TRADING
CC
..............................................................
1
st
APPLICANT
RICHARD BAKITHI
MLANGENI
....................................................................................
2
nd
APPLICANT
And
HABANA TRADING
(PTY)
LTD
..........................................................................................
RESPONDENT
JUDGMENT
MSIMEKI J:
INTRODUCTION
[1] The applicant,
in this matter, brought this application seeking an order as follows:
“
1.
That Respondent be ordered to pay R10 200 658.78.
2. That Respondent
be ordered to pay 15.5% interest of the debt above.
3. That Respondent
be ordered to pay the costs of this application, only in the event of
opposition.
4. That the above
honourable court grants further and/or alternative relief which in
the circumstances may deem fit.”
[2] Mr M B Tshabangu
and Mr J G W Basson, respectively, represented the applicants and the
respondent when the matter was argued.
[3] Mr Richard
Bakithi Mlangeni deposed to the founding affidavit of the first
applicant. He is a major director of the first applicant
with members
interest of 51 %.
[4] The application
was issued on 20 August 2014 and served on the respondent on 30
September 2014.
[5] The notice of
intention to oppose was served and filed on 21 October 2014.
[6] I need to
mention that the respondent, in the definitions of the General
Conditions of Contract is defined as “the company
appointed by
the Department of Public Works, Roads and Transport of the Mpumalanga
Provincial Government, or a person designated
by the Department to
act on its behalf or any regional or local authority to which the
Provincial Government of the Province of
Mpumalanga has cede its
rights and delegated its obligation.”
[7] There was
exchange of correspondence between the parties and their legal
representatives. The Answering Affidavit, as a result,
was not served
and filed.
[8] On 13 November
2014 the applicants served a Notice of Set Down on the unopposed
motion roll. The Notice bears the registrar’s
stamp of 18
November 2014.
[9] On 14 November
2014 the respondent served Notice in terms of Rule 35 (12) and Rule
35 (14) read with Rule 35 (13). The applicant’s
legal
representative’s date stamp, however, denotes the date of 14
September 2014. This appears to be an obvious mistake.
The Notice
called on the applicants to produce for inspection and to, if so
required make copies of the documents referred to in
the founding
affidavit and its annexures within 5 (five) days from date of receipt
of the Notice.
[10] The applicants,
on 1 December 2014, served on the respondent, their reply to
respondent’s notice in terms of Rule 35
(12), (13) and (14).
The reply was filed on 2 December 2014.
[11] The respondent,
according to Mr Basson, after receipt of the Notice, had time to
object, file an answering affidavit or bring
an application to
compel. Mr Basson held the view that the respondent, after receipt of
the reply to the request, had up to 23
December to exercise its
choice. If one calculates 15 days from 1 December 2014 one then ends
up with 23 December 2014.
[12] According to
the notice of set down, the matter was to be heard on 15 December
2014, that being the date set aside for unopposed
matters. If the
respondent was late with its notice in terms of Rule (12), (13) and
(14), then the problem was removed by the applicant’s
reply
thereto. Assuming that that were so, the respondent in that event was
rescued by the applicant’s reply. This then had
the effect that
the Notice of set down became premature.
[13] One can then
appreciate Mr Basson’s argument that the applicants ought to
have removed the matter from the roll. This,
the applicants did not
do but, instead, Mr Tshabangu went on with his argument and
submission that the matter was properly before
the court.
[14] Rule 35 (12)
provides:
“
(12)
Any
party to any proceeding may at any time before the hearing thereof
deliver
a notice as near as may be in accordance with Form 15 in the First
Schedule to any other party in whose pleadings or affidavits
reference is made to any document or tape recording to produce such
document or tape recording for his inspection and to permit
him to
make a copy or transcription thereof. Any party failing to comply
with such notice shall not, save with the leave of the
court, use
such document or tape recording in such proceeding provided that any
other party may use such document or tape recording."
[15]
Upon reference to a document or tape recording by one party in
his/her pleadings or affidavits, the other party becomes entitled
to
see the document or the tape recording. A party cannot be expected to
draft and file his/her own pleadings or affidavits before
he/she is
given an opportunity to inspect and copy, or transcribe, the document
or tape recording referred to in his/her adversary’
pleadings
or affidavit. A party may exercise the rights under this subrule
before he/she has disclosed his/her defence or even
before he/she
knows what his/her defence will be. The documents are needed to
enable him/her to consider his/her position. The
party is not
required to depose to or deliver opposing affidavits (or a plea)
before he/she has inspected and copied the documents
referred to in
the subrule. Pending the production of the documents or recordings
referred to in the subrule, the time period for
the delivery of
opposing affidavits (or plea) is suspended.
(Protea
Auurance Co. Ltd v Waverley Agencies CC
1994 (3) SA 247
(C) at 249B;
Unilever v Polagric (Pty) Ltd
2001 (2) SA 329
(C) at 336G-J; 336C and
Erasmus: Superior Court Practice AT B1-261.)
[16] Mr Tshabangu
for the applicants, held the view that there was nothing standing in
the applicants’ way preventing them
from getting the relief
that they seek in their Notice of motion. Having regard to what has
been discussed above, the submission
cannot be correct. The
discussion above demonstrates that the application was set down
prematurely. The application ought to have
been removed from the
unopposed roll of 15 December 2014. Mr Basson’s submission has
merit.
[17] For proper
ventilation of the issues in the applicantion the application must be
removed from the roll.
[18] The
following order, in the result, is made
1
.
The matter is removed from the
roll
2. The costs will
be costs in the application.
COUNSEL FOR THE
APPLICANT: MR M B TSHABANGU
INSTRUCTED BY: M.B
TSHABANGU INC.
COUNSEL FOR THE
RESPONDENT: ADV BASSON
INSTRUCTED BY: VFV
ATTORNEYS
DATE OF HEARING: 15
DECEMBER 2014
DATE OF JUDGMENT: