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 356
|
|
Van Vuuren v Standard Bank of South Africa (A987/13) [2015] ZAGPPHC 356 (19 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A987/13
In
the matter between:
S
E JANSEN VAN
VUUREN
Appellant
and
STANDARD
BANK OF SOUTH AFRICA
Respondent
JUDGMENT
POTTERILL
J
[1]
The appellant is with the leave of the court
a quo
appealing
against the refusal of an application for rescission of a summary
judgment granted against the appellant on the 21
st
of
October 2011.
[2]
The appellant is also, in terms of
section 19
of the
Superior Courts
Act 10 of 2013
, applying to admit new evidence on appeal.
[3]
From the outset it must be stressed that the appellant filed and
served a totally defective appeal record.
The appeal record did
not include the judgment of the court
a quo
nor any grounds of
appeal or the notice of appeal. The notice of set down of the
appeal was delivered already in January 2014
for the appeal to be
heard on 13
May 2015.
[4]
Pursuant to the registrar, on behalf of the Judges, informing the
appellant’s attorneys that the
appeal record was incomplete, a
supplementary index was served and filed on the attorneys for the
respondent on the 8
th
of May 2015 and delivered to the
chambers of the Judges. Once again the registrar informed the
attorneys for the appellant
that the documents were out of time and
that counsel for the appellant would have to seek permission from the
court at the hearing
for the inclusion of the documents in order to
prosecute the appeal.
[5]
The day before the hearing of the appeal, the registrars of the
Judges were furnished with a notice
of removal by the appellant
wherein the appellant tendered the reasonable wasted costs of the
respondent on a party and party scale.
The Judge’s
registrar again enquired from the appellant’s attorney whether
the removal was by consent. The registrar
was informed that
this notice of removal was not by agreement. The appellant’s
attorney was cautioned that it would
be wise for there to be an
appearance for the appellant at the hearing the next day.
[6]
At the hearing, the appellant’s counsel profusely apologised to
the court for the defective appeal
record and requested that the
matter be removed and that the appellant tenders the reasonable
wasted costs.
[7]
On behalf of the respondent, it was argued that the correct procedure
for the appellant would have been
to bring a substantive application
for postponement. Furthermore it was not denied by the
appellant that the respondent had
in correspondence (a day prior to
the hearing) objected to any notice of removal. Despite this
objection a unilateral notice
of removal was served on the
respondent.
[8]
At the hearing, Mr. De Beer, appeared on instructions of a set of
attorneys on behalf of the attorneys
representing the respondent.
This was necessitated by the fact that counsel for the appellant had
in his heads sought a costs
de bonis propriis
order against
the attorneys for the respondent. Mr. De Beer’s
appearance was thus necessary to protect the attorneys’
rights
pertaining to such punitive costs order.
[9]
Mr. De Beer, as well as counsel for the respondent, argued that the
appeal should proceed on the merits,
alternatively that it should be
dismissed due to the procedural defects. On behalf of the
respondent, it was submitted that
the respondent is suffering
prejudice as the judgment was already obtained in 2011 and four years
later they were still not in
a position to execute on the judgment.
The appellant had in correspondence informed them that the next
available appeal date
would be in August 2016. If this matter
was only to proceed in August 2016 the appellant would have succeeded
in successfully
delaying any further execution for another year.
[10]
In the interests of justice the court enquired from the appellant’s
counsel whether he was in a position
to argue the merits of the
appeal. The matter stood down for counsel to obtain
instructions as he informed this court that
he had a leader, Mr.
Maritz, who was not available to argue the matter. This was
news to the court, as well as counsel for
the respondent, as on the
practice note and the heads of argument on behalf of the appellant
there was no indication of two counsel
appearing on behalf of the
appellant.
[11]
Upon obtaining instructions, the appellant’s counsel informed
the court that he was ready to proceed
on the merits. The
matter stood down and proceeded at 14h00.
[12]
Counsel for the appellant also obtained instructions pertaining to
the costs
de bonis propriis
sought against the attorneys for
the respondent. The appellant tendered the costs resultant upon
the appearance and argument
of Mr. De Beer on behalf of the attorney,
as well as the costs of the attorneys for the attorneys of the
respondent on an attorney
and client scale.
[13]
For both the appeal and the application for new evidence it is
important to set out the chronology as background:
13.1
The respondent delivered a
section 129
notice read with section 130
of the National Credit Act, No. 34 of 2005 (“the Act”)
dated the 9
th
of October 2008 on the 10
th
of
October 2008.
13.2
Summons was issued on the 15
th
of January 2009 and served
on the appellant on the 26
th
of January 2009.
13.3
On instructions from the respondent the attorneys for the respondent
kept the matter in abeyance pending
further instructions.
13.4
The summons was reissued on the 25
th
of February 2011 and
was served personally upon the appellant on the 15
th
of
April 2011.
13.5
The appellant served a notice of intention to defend on the attorneys
for the respondent on the 18
th
of April 2011.
13.6
An application for summary judgment was served and filed on the 6
th
of May 2011.
13.7
The application for summary judgment was set down for the 14
th
of June 2011.
13.8
On the date of the hearing of the summary judgment the matter was
postponed due to the court requiring an
explanation as to why the
section 129 notice had been delivered during 2008 while the summons
was issued only in 2011.
13.9
A supplementary affidavit was filed wherein the attorneys for the
respondent indicated that the file was held in
abeyance and that the
summons had expired and was accordingly reissued.
13.10
The appellant filed her answering affidavit to the application for
summary judgment on 28 June 2011.
13.11
The application for summary judgment was then set down for the 4
th
of October 2011. On 4 October 2011 the appellant was not at
court nor was there any representation on her behalf. The
affidavit in opposition to the summary judgment was however before
court. The summary judgment was after due consideration
granted
on the merits.
13.12
On 26 October 2011 the appellant served and filed an application for
the rescission of the summary judgment.
13.13
A notice of intention to oppose this application was served on the
9
th
of November 2011.
13.14
The respondent filed its answering affidavit to the rescission
application on 5 January 2012.
13.15
The appellant filed a replying affidavit on the 9
th
of March 2012.
13.16
On 18 March 2013 the application for rescission was heard and was
dismissed.
[14]
I find it prudent to first address the application for new evidence
to be accepted in terms of
section 19
of the
Superior Courts Act 10
of 2013
. A court exercising appeal jurisdiction may receive
further evidence, but should exercise this power sparingly. A
court
will exercise its discretion based on the following (
Dormall
Properties 282 CC v Renasa Insurance Company Ltd NNO and Others
2011
(1) SA 70
(SCA)
at paragraph [21]):
14.1
There must be an acceptable explanation for the fact that the
evidence was not adduced previously.
14.2
The further evidence must be material, relevant and weighty.
14.3
The new evidence must presumably be believed.
Although
these requirements were in relation to section 22(a) of the Supreme
Court Act 59 of 1959, the same principles are applicable.
For
ease of reference I refer to the applicant to adduce further evidence
as the appellant.
[15]
It was reluctantly conceded by counsel for the appellant that in the
application to lead further evidence
the appellant is completely
silent as to why this evidence was not presented at the application
for rescission of the judgment.
In paragraph 5 of the founding
affidavit the appellant only stated as follows:
“
My
attorneys of record and more specifically Jennifer Rautenbach
consulted with my counsel on 16 November 2012. During the
consultation it became apparent that the counsel acting on behalf of
the respondent made a reference to an exchange which were
not
attached to the summons that was served on me.”
The
only reference therein is that they only became aware of this new
evidence on 16 November 2012. This is not an explanation
and an
explanation is specifically required in view of the fact that this
date is of course prior to the filing of the appellant’s
replying affidavit to the application for rescission of the summary
judgment. This was also four months prior to the hearing
of the
application for the rescission of summary judgment on 18 March 2013.
The appellant’s numbness pertaining to
the explanation, let
alone an acceptable explanation, is frowned upon. In
Mail
& Guardian Media Ltd and Others v Chipu NO and Others
2013
(6) SA 367
(CC)
in paragraph [8] the following is found:
“
[8]
In
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC)
one
of the requirements applied by this court for the admission of new
evidence under s 22 was that it must be ‘weighty and
material
and presumably to be believed’. It also applied the
requirement that there must be a reasonably sufficient
explanation as
to why such evidence was not presented in the court of first
instance. In
Bel
Porto School Governing Body and Others v Premier, Western Cape, and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC)
this
court said that its power to accept further evidence should not be
exercised ‘unless the circumstances are such that
compelling
reasons exist to do so’. It follows from this that, if
the evidence sought to be adduced in this court under
s 22 is not
weighty and material or if it is weighty and material but there are
no compelling reasons for this court to exercise
its power in favour
of admitting it, the application for the admission of the evidence
should be dismissed.”
[16]
The new “evidence” pertains to respondent’s summons
and annexures thereto. In the affidavit
of the appellant
seeking to introduce new evidence the new evidence is set out as
follows:
“
7.
From these bundles it is abundantly clear that:
7.1
The original summons (bundle A) was excipiable in that the annexures
attached to the particulars
of claim did not relate to me. I
respectfully submit that the summons did not disclose a cause of
action and that the Honourable
Court would have not granted judgment
against me if it had been made aware of this fatal flaw.
7.2
The copy of the summons (bundle B) that was served on me was
similarly fatally flawed in that the annexures
did not relate to me.
7.3
The third bundle of documents (bundle C) that was prepared by the
respondent for purposes of the summary
judgment application is the
only document that has annexures, which relate to me.”
[17]
From paragraph 7.3 it is conceded by the appellant under oath that at
the hearing of the summary judgment
application the correct documents
were before the court. The judgment was not fatally flawed or
erroneously granted.
If the submission is that the summons
differed materially to that which was served on the appellant the
appellant is confronted
with the following averment in her affidavit
resisting summary judgment:
“
3.
I have had the opportunity to read through the summons and
particulars of claim and application
for summary judgment and
responds thereto as follows: …”
Nowhere
in this opposing affidavit is it raised that the loan agreement does
not pertain to her. In paragraph 2 of the opposing
affidavit
she avers that where she makes legal submissions she does so on the
advice of the legal representatives and she verily
believes in the
correctness of such advice. From this no other conclusion can
follow but that the appellant, herself as well
as her attorney, read
through the summons and particulars of claim as well as the
application for summary judgment and yet no mention
is made of the
fact that the wrong loan agreement is attached.
[18]
In her own affidavit requesting to adduce further evidence the
evidence is not material to the outcome of
the summary judgment
application. This is simply so because the correct loan
agreement was attached to the application for
summary judgment and
the court applied its mind to this particular set of documents when
granting summary judgment. The summary
judgment was thus not
sought or granted erroneously.
[19]
On the appellant’s own affidavit she has failed to establish a
prima facie
likelihood of the truth of the evidence that she
did not receive the same summons and annexures attached to the
summons as those
that were presented for the summary judgment.
I am accordingly satisfied that the new evidence to be adduced is not
material,
and did not result in an injustice to the appellant.
[20]
The application to adduce new evidence is thus dismissed.
[21]
Appeal on the merits of the refusal of the application for
rescission of the summary judgment
On
the merits of the refusal of the rescission of the summary judgment
only one ground remained i.e. whether the rescission of the
summary
judgment should have been granted because the appellant applied to be
placed under debt review on the 8
th
of August 2010.
[22]
The provisions of section 86(2) of the Act provides that an
application in terms of that section may not be made
in respect of a
particular credit agreement, if at the time of the application, the
credit provider under that credit agreement
had proceeded to take
steps contemplated in terms of section 129 to enforce the agreement.
In
Nedbank v The National Credit Regulator
[2011]
ZASCA 35
(28 March 2011) the following was found:
“
The
purpose of a section 129(1)(a) notice is the resolution of a dispute
in the bringing up to date of payments under specific credit
agreements. While it is a ‘step’ prior to the
commencement of a legal proceedings, it is also ‘the first
step’ the credit provider ‘has proceeded to take …
to enforce that agreement’ (s 86(2)). It does
not exclude
a debt review save insofar as it relates to the particular credit
agreement under consideration nor does it exclude
the general debt
review pursuant to section 83 and 85. Key to the construction
of section 86(2) of the words ‘has proceeded
to take the steps’
used in section 86(2). A ‘step, amongst its meanings,
includes “an action or movement
which leads to result:
one of a series of proceedings or measures”.
[23]
The section 129 notice delivered in October 2008 thus constituted a
step as contemplated in
section 129
of the
National Credit Act and
this particular credit agreement was thus excluded from any debt
review process.
[24]
Submitted from the bar the Court was implored to take cognisance of
the fact that the respondent was part and parcel
of a debt review
rearrangement and that the applicant was making payments to the
respondent in terms thereof. This argument
is bad in law
because
section 86(2)
specifically excludes this credit agreement
from such debt review or any orders made pertaining thereto;
section 129
had already initiated the process. This argument
must thus be rejected.
[25]
We were also furnished with a Government Notice No. 35327 dated 10
May 2012. Counsel for the appellant conceded
that this
regulation came into operation on 10 May 2012 and has no
retrospective effect. This regulation accordingly needs
no
further address.
[26]
I accordingly cannot find that the court
a quo
erred as the
court had specifically made the following finding:
“
30.
I find that the Applicant not only failed to set out any sufficient
reasons for the judgment to be rescinded
in terms of the common
law, but she also failed to set out a
bona
fide
defence to the claim sought by the Respondent in the summons, more so
that it is clear from the evidence in the papers that the
Section 129
Notice sent by the Respondent preceded the Applicant’s debt
review application. Such notice was sent to
the Applicant on 10
October 2008 and the Applicant only applied for debt review on 8
August 2010. In this respect, the provisions
of
Section 86(2)
of the
National Credit Act 34 of 2005
debt review and
Section 129
notice apposite. It reads as follows:
‘
(2)
An application in terms of this section [for debt review] may not be
made in respect of, and does not apply
to, a particular credit
agreement if, at the time of that application, the credit provider
under that credit agreement has proceeded
to take the steps
contemplated in
section 129
to enforce that agreement.
By
giving the notice envisaged by
s 129(1)(a)
the credit provider “has
proceeded to take steps contemplated in
section 129
to enforce that
agreement”. A debt review relating to that specific
agreement is thereafter excluded.’”
[27]
The respondent argued that the costs of the appeal should be borne by
the attorneys of the appellant
de bonis propriis
on the
punitive scale of attorney and client. The conduct of the
attorney and the counsel on behalf of the appellant necessitated
such
order.
[28]
The appeal record was so defective as to constitute gross
negligence. Counsel for the appellant had to concede
that no
attorney can unilaterally remove an appeal from the roll.
Despite this knowledge the attorney proceeded to do so.
This
conduct was reckless because they, despite this knowledge, persisted
to do so full well knowing that the respondent had objected
to any
removal of the matter from the roll. The attorney on behalf of
the appellant proceeded to act with an attitude that
the matter will
“be postponed” to August 2016, the next first appeal
court date. The appellant would suffer no
prejudice and the
respondent would suffer prejudice because they would not be able to
execute pending an appeal. The necessity
to bring an
application to adduce further evidence was self-created. This
evidence was available to the appellant prior to
the hearing of the
rescission application, but the appellant chose not to put it as
evidence before the court hearing the application
for rescission.
[29]
The appellant or the appellant’s team is dishonest as it is now
averred that despite the appellant having
received and read the
summons and annexures thereto, according to the appellant, it was
discovered that the wrong annexure was
annexed. If this was the
true situation then this would have been set out in the opposition to
the summary judgment application
as well as the opposing affidavit to
the application for rescission. This is simply so because the
appellant expressed voluntarily
that she herself read the summons.
[30]
In court wrong submissions were made by counsel on behalf of the
appellant in that he tried to convince the court
that the
interpretation of paragraph 7.3 indicated that in fact the wrong
documents were before the court when summary judgment
was granted.
This is plainly incorrect. The appellant’s counsel
persisted in making submissions from the bar
that were not contained
in the papers.
[31]
On behalf of the appellant it was submitted that there was simply no
dishonesty or any wrong submissions
made to the court. Nothing
the attorneys or the appellant did, according to the submissions,
constituted gross negligence.
[32]
A court has a discretion which must be exercised judicially in
granting costs. In granting attorney and client
costs a court
is marking its disapproval of the conduct of the losing party.
A court would do so by reason of special considerations
pertaining to
the conduct of the losing party. In granting such order the
court is ensuring that the successful party will
not be out of pocket
in respect of the expenses caused to it by the litigation. The
appellant needlessly self-created the
application for the leading of
further evidence. In
Treatment Action Campaign v Minister
for Health
2005 (6) SA 363
(C)
the court approved
Innes CJ’s (as he then was) finding that:
“
I
think it is the duty of the litigant to avoid any course which unduly
protracts a lawsuit or unduly increases its expense”
(
Scheepers
& Nolte v Pate
1909 TS 353
at
356).
[33]
The grave defect in the appeal record and the deliberate attempt to
proceed to deliver a notice of removal is unconscionable
and is
deserving of a punitive costs order. The deliberate
understating of the gross negligence of the appellant’s
attorney, the untruthfulness in the affidavit and the reliance on
arguments that are spectacularly bad in law necessitates in fact
the
awarding of a punitive costs order.
[34]
The next question is whether the punitive costs should be borne by
the appellant’s attorney or the appellant
herself. The
basic notion underlying an award of costs
de bonis propriis
is
a material departure from the responsibility of the office. The
aim of the order is to indemnify a party against an account
for costs
from his own representative.
[35]
For a court to grant such an order the court must be satisfied that
the attorney acted negligently, unreasonably
or is wanting in
bona
fides
. The attorney has acted unreasonably and grossly
negligent in the filing of a defective record, persisting with the
removal
of the matter from the roll unilaterally and from not putting
further evidence before the court hearing the summary judgment or
the
rescission application. In judging whether a representative
party’s conduct is reasonable or not must be approached
from
the point of view not of the trained lawyer, but from the point of
view of a man of ordinary ability bringing an average intelligence
to
bear on the question at issue –
Re Estate Potgieter
1909
TS 982
at 1012. These circumstances set out above are most
certainly not instances where the representative made a mere error of
judgment or acted
bona fide
. As seen from the point of
view of an ordinary person of average intelligence these actions can
only be seen as being unreasonable
and constituting gross
negligence.
[36]
I accordingly make the following order:
36.1
The application to adduce further evidence is dismissed.
36.2
The appeal is dismissed.
36.3
The appellant is to carry the costs of the appeal and application on
an attorney and client scale and the attorneys
representing the
appellant must pay the costs
de bonis propriis
.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT
I
agree
__________________
S.A.M.
BAQWA
JUDGE
OF THE HIGH COURT
CASE
NO: A987/13
HEARD
ON: 13 May 2015
FOR
THE APPELLANT: ADV. A.A. BOTHA
INSTRUCTED
BY: E Coetzer Attorneys
FOR
THE RESPONDENT: ADV. S. MARITZ
INSTRUCTED
BY: Joubert & Scholtz Attorneys
DATE
OF JUDGMENT: 19 May 2015