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
>>
2015
>>
[2015] ZAGPPHC 72
|
|
Labe v Medscheme Holdings (Pty) Ltd and Others (25323/2012) [2015] ZAGPPHC 72 (25 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
25323/2012
Date: 25 February
2015
Not reportable
Not of interest to
other judges
In the matter
between:
MILILE
MAXOSA
LABE
.....................................................................................................
Applicant
And
MEDSCHEME
HOLDINGS (PTY)
LTD
.................................................................
First
Respondent
BONITAS
MEDICAL
FUND
................................................................................
Second
Respondent
SHERIFF
NELSPRUIT
............................................................................................
Third
Respondent
JUDGMENT
PRETORIUS J,
[1] In this
application the court has not received heads of argument from the
applicant as required by the practice directive.
The application was
set down to be heard by the respondent, who served and filed the
heads of argument timeously.
At the hearing,
counsel for the applicant applied for a postponement to enable the
applicant to pursue the Rule 49(1) of the Uniform
Rules of Court
application and an appeal against an order granted on 3 April 2013.
There is no substantial application for the
postponement before
court, setting out the reasons for such a postponement.
[2] The present
application was launched in June 2014. There is no indication that
the applicant had pursued the Rule 49(1) application
at all, since
launching the present application.
[3] The applicant
alleges that the Rule 49(1) notice was served on the judge’s
registrar, but that was not filing in terms
of Rule 1 which provides:
“
Both
filing with the registrar and service on all parties must take place.
The usual practice is to require receipt of a copy of
a document that
has been delivered to be acknowledged on the original by the
recipient. The original is filed with the registrar”
In this instance it
should be the registrar of the court and the document should bear the
date stamp of the registrar
[4] The applicant
concedes, in the founding affidavit, that the notice in terms of Rule
49(1) was not properly filed at court. The
allegation of filing on
the judge’s registrar is hearsay as there is no supporting
affidavit to confirm this allegation.
There is thus no Rule 49(1)
application before court.
[5] Ms Baloyi, for
the applicant requested the court to postpone the application, but
could give no cogent reason as to why the
applicant had not filed
heads of argument or brought a substantial application for
postponement.
[6] The background
to the application is:
On
3 April 2013 an order was granted against the applicant to make
payment of an amount of R1 036 274.40 to the 1
st
and 2
nd
Respondents, with
mora
interest
thereon at the rate 15.5% per annum from the date of service of the
main application.
On 8 April 2013 the
applicant served a notice in terms of Rule 49(1) upon the first and
second respondents’ attorney of record.
Rule 49(1 )(c) provides
that an application for reasons for an order has to be delivered
within 10 days from the date the order
has been granted, which was 3
April 2013.
[7] The notice in
terms of Rule 49(1) was never filed at court, with the result that he
judge who granted the order, did not provide
reasons as there was no
notice filed at court requesting him to do so. A warrant of execution
was issued on 3 April 2014 directing
the sheriff to execute against
the applicant’s property. The applicant then launched this
application on 10 June 2014 requesting
the court to set aside or
suspend the writ of execution and to suspend further actions pending
the prosecution of the appeal.
[8] The applicant
submits that the writ of execution is premature as reasons for the
judgment had not been obtained to enable the
applicant to prosecute
an appeal
[9] The amount of R1
036 274,40 represents post hospital and medical expenses incurred by
the applicant’s client, which was
paid by the Road Accident
Fund into the trust account of the applicant in respect of a third
party claim that had been settled.
The first and second respondents,
who are medical aids, had paid these expenses on behalf of the
claimant to the hospitals and
medical doctors. The applicant and his
client had signed an undertaking to reimburse all these amounts which
first and second respondents
had paid for past medical and hospital
expenses, as soon as the money was received from the Road Accident
Fund.
[10] There is no
condonation application for the delivery of a Rule 49(1) notice, nor
is there such a notice filed at the court.
[11] The respondents
request the court, in these circumstances, to dismiss the application
with punitive costs as the applicant
could never have succeeded with
the application having regard to all the relevant facts.
[12] I must agree
with counsel for the respondents that the applicant has shown a
callous disregard for rules of the court. He admits
that he never
filed a Rule 49(1) notice at court, but he still pursuits this
application. There is no substantial application for
the postponement
setting out the reasons for such postponement. There is no Rule 49(1)
notice filed and therefore the application
cannot succeed.
[13] It is
abundantly clear that the applicant has disregarded the contents of
the Rules of Court, as well as the relevant practice
directives. The
application was launched by the applicant, but the respondent had to
pursue the application by setting it down.
The applicant failed to
file any heads of argument and sent counsel to court at the eleventh
hour to request a postponement without
a substantial application for
postponement.
[14] These facts are
aggravated due to the fact that the applicant is an officer of the
court as he is a practicing attorney, but
he shows a total disregard
for the rules of court.
Therefore I make the
following order:
1. The application
for postponement is dismissed;
2. The application,
set out in the notice of motion, is dismissed;
3. The applicant to
pay the costs of the respondents on a scale as between attorney and
client.
Judge
C Pr
etorius
Case number:
25323/2012
Heard on: 23
February 2015
For the Applicant:
Adv. I Lingenvelder
Instructed by: MM
LABE ATTORNEYS
For the Respondent:
Adv. Baloyi
Instructed by: KARL
ELS ATTORNEYS
Date of Judgment: 25
February 2015