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[2015] ZAGPPHC 382
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Olwagen v Minister of Agriculture (44187/2009) [2015] ZAGPPHC 382 (12 June 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 44187/2009
DATE:
12 JUNE 2015
In
the matter between: - DATE: 12/6/2015
HENDRIK
J
OLWAGEN
.........................................................................................................
Applicant
And
MINISTER
OF
AGRICULTURE
........................................................................................
Respondent
JUDGMENT
KOOVERJIE
AJ:
A.
NATURE OF THE MATTER
:-
1.
This is an application launched by the Applicant (Olwagen) in terms
of Rule 27 of the Uniform Rules of Court for an order condoning
his
failure to file a plea within the prescribed time period and for the
Respondent’s bar in respect of the plea be uplifted.
For
the purposes of this decision the parties will be referred to as
“
Applicant”
and
“
Respondent”
as identified in this application.
B.
BACKGROUND
:-
2.
The time line regarding the pleadings is as follows:
2.1
The summons was served on 27 July 2009;
2.2
A notice of intention to defend was served on 26 August 2009;
2.3
Three years later, the Respondent’s declaration was served on
24 August 2012;
2.4
Two years later, a notice of bar was served on 20 August 2014;
2.5
The
dies
within which the Applicant should have filed his plea
lapsed on 3 September 2014;
2.6
Shortly thereafter the Applicant on 11 September 2014 requested the
Respondent’s attorney
for an indulgence to file its plea and to
uplift the bar. The Respondent refused to consent to such
extension of time;
2.7
Consequently the Respondent enrolled its application for default
judgment, and which was
to be heard on 28 October 2014;
2.8
Despite the set down, the Applicant persisted in its defence and
served the condonation
application on 7 October 2014, which included
the Applicant’s proposed plea and special plea which were
intended to be filed
in the event that the notice barring the
Applicant to do so was uplifted.
3.
Counsel for the Applicant vehemently argued that the Respondent’s
attorney’s conduct demonstrated unethical colleagueship
in not
firstly communicating its intention to file a notice of bar with the
Applicant’s attorney, prior to doing so.
●
The
delay
4.
Moreso the delay in not bringing this application earlier was due to
the fact that upon receipt of the notice of bar, Mr Döman,
the
Applicant’s attorney had immediately arranged with the
Respondent’s attorney, the State Attorney office to furnish
him
with a set of the pleadings in this matter.
5.
Mr Döman indicated that due to two burglaries on his premises
the office file on this matter went missing. He was
not aware
of it being missing until the notice of bar was served.
6.
He eventually received the papers from the State Attorney on 27
August 2014, which was a week after the notice of bar was served.
7.
Mr Döman thereafter made numerous attempts with the State
Attorney to have the bar uplifted so that the Applicant could
file
its plea. The State Attorney refused the request for this
indulgence.
8.
Its only remedy was then to approach this Court for relief in terms
of Rule 27.
●
Nature
of the Debt
9.
This litigation arose from a credit facility provided by the
Department of Agriculture to Olwi Boerdery (Pty) Ltd. An
agreement between the parties was entered in this regard referred to
as
“
Farming Assistance Credit
Agreement”
in August 1992.
10.
Olwi was liquidated on 25 October 1994.
11.
On 4 March 2002, the Respondent received payment from the proceeds of
the dividend in the liquidation of Olwi in an amount of
R150 658,01.
At that stage, an amount of R210 000,00 remained outstanding.
12.
Approximately 6 years later, in September 2009, the Respondent
instituted action against the Applicant for such outstanding
amount.
C.
CONDONATION IN TERMS OF RULE 27
:-
13.
Rule 27 gives the Court a discretion to condone any non-compliance
with the Rules and to make an order extending or abridging
any time
period prescribed by the Rules, in the event when no agreement
between the parties exist.
14.
The granting of condonation is not an automatic right. The
full, detailed and accurate account for the causes of the delay
and
their effects must be furnished so as to enable the Court to
understand clearly the reasons for such delay
[1]
.
15.
In
Smith NO v Brummer NO
1954 (3) SA 352
(O)
at
357-388B, the court after a review of the authorities, taking
cognisance its wide discretion, held that courts are inclined to
grant applications for the removal of bar where –
(a)
a reasonable explanation for the Applicant’s delay is
forthcoming;
(b)
the application is
bona fide
and not made with the intent to
delay the other party’s claim;
(c)
there has not been a reckless disregard of the Rules of Court;
(d)
the Applicant’s case is not without foundation;
(e)
the other party is not prejudiced to an extent which cannot be
rectified by a suitable order as to costs.
16.
In principle this Court should exercise its discretion with regard to
the merits of the matter as a whole
[2]
.
D.
ANALYSIS
:-
●
Applicant’s
case
17.
In argument, counsel for the Applicant submitted that not only has
the Applicant furnished a detailed explanation for not filing
the
plea within the prescribed time period, but raised a
bona fide
defence with good prospects of success, particularly in light of the
proposed issues raised in the special plea and plea.
18.
Insofar as the merits are concerned the following disputes were
raised:
18.1
The Respondent’s cause of action is based on the suretyship
agreement which cannot be sustained since there was never
any
suretyship agreement in existence, nor had the Applicant entered into
such agreement with the Respondent;
18.2
The declaration itself does not contain any allegation to the effect
that members of Olwi concluded a written deed of suretyship
in favour
of the Minister and it cannot be said that such agreement was
effected by the conduct of Olwagen;
18.3
If such a suretyship agreement was entered into, it certainly did not
comply with the General Law Amendment
Act (50 of 1956);
18.4
A further issue was whether an oral compromise agreement between the
Applicant and the Respondent was entered
into where the full and
final settlement in respect of this debt in an amount of R30 000,00
was agreed upon.
●
Respondent’s
case
19.
The Respondent’s case essentially was that Olwagen had indeed
bound himself to be liable for repayment of the loan as
surety by
conduct. This arose when payment was made in the amount of
R150 658,01 on 4 March 2002. Hence the cause
of action
arose against Olwagen in his personal capacity as
shareholder/director of the company.
20.
Subsequently the Respondent now rely on a different cause of action
based on acknowledgment of debts.
21.
During argument, counsel for the Respondent submitted that the
Respondent as Plaintiff in the main action intends amending its
declaration to that effect.
22.
On the papers before the Court such a notice to amend was indeed
filed in November 2014 claiming an amount of R500 000,00
based
on the acknowledgement of debt. It appears further that no
objection had since been filed by the Applicant.
E.
FINDINGS
:-
23.
Having heard both parties, this Court is satisfied that a sufficient
and reasonable explanation was proferred on the part of
the Applicant
for the delay in failing to file his plea timeously.
24.
With regard to the merits raised by the Applicant and as set out in
his proposed special plea and plea, the Court is satisfied
that a
prima facie
case on the merits exists.
25.
Surely a cause of action based on a suretyship, which is no longer
relied upon by the Respondent cannot be sustained in such
action
proceedings. The declaration as it stands would be excipiable.
The amendment to the declaration has not materialised.
The
Applicant will have to be given an opportunity to object to such
amendment if he so wishes.
26.
This change of course goes to the very root of the pleadings.
The cause of action set out in the declaration is based
on a claim in
respect of the suretyship agreement. It now bases its claim on
acknowledgment of debts. It is trite that
in terms of Rule 20
not only the nature of the claim must be set out, but a clear and
concise statement of the material facts on
which the plaintiff relies
upon his claim must exist in order that the defendant can adequately
reply thereto.
27.
This Court is of the view that the issues in this matter deserve to
be ventilated at a trial not only on the substantive matters
raised,
but also on the points
in limine
, which includes the issue of
prescription as set out in the special plea.
28.
Having regard to the history of this matter, which has been
unreasonably prolonged by the Respondent for no legitimate or
justified
reason, surely there is no prejudice which the Respondent
will now suffer if the condonation is granted.
29.
In this regard, the following facts are reiterated:
29.1
Summons in this matter was issued in 2008, the declaration was served
four years later.
29.2
By agreeing to uplift the bar when requested to do so, the Applicant
could have filed his plea and the matter
would have become ripe for
trial by now.
29.3
The Respondent’s conduct portrays a reckless administration of
this matter. This matter could
have been dealt with in a more
efficient and expedient manner.
30.
The Court further finds that the Applicant sought relief from this
Court within a reasonable time after the Respondent refused
to uplift
the bar. Hence the conduct of the Applicant throughout these
proceedings does not in any way portray a motive to delay
the
finalisation of this matter.
F.
COSTS
:-
31.
In argument the Applicant sought costs against the Respondent,
particularly in light of the Respondent persisting with this
application without good reason. Counsel for the Applicant
requested for a punitive costs order on an attorney and client
scale.
32.
The Respondent likewise sought costs against the Applicant on the
basis that this application was merely to prevent the finalisation
of
the matter.
33.
The purpose of awarding costs to a successful litigant is to
indemnify him for the experience to which he has been put through
having been unjustly compelled to litigate or defend litigation, as
the case may be
[3]
.
34.
The general rule that costs follow the event is not applicable to
successful applications for the grant of an indulgence by
the Court.
In such an event, the general rule is that the Applicant should pay
the costs of the application.
35.
However in respect of the costs of opposition to such application,
Courts are inclined to find that the Applicant seeking the
indulgence
should pay all such costs as can reasonably be said to be wasted,
unless such opposition was vexatious or frivolous
[4]
.
36.
In considering the Respondent’s version on the merits, the
Court finds that it also justified its reasons for opposition
and
which in the Court’s view may also sustained at trial.
37.
It is trite law that the award of costs is a matter in the discretion
of the Court, but this is a judicial discretion and must
be exercised
on grounds upon which a reasonable person could have arrived at.
“…
the
law contemplates that he should take into consideration the
circumstances of each case, carefully weighing the various issues
in
the case, the conduct of the parties and any other circumstances
which may have a bearing upon the question of costs and then
make
such order as to costs as would be fair and just between the
parties…”
[5]
.
38.
In the premises the Court having exercised its discretion finds that
a punitive costs order in the circumstances is not warranted.
G.
ORDER
:-
The
following order is made:
(1)
Condonation is granted to the Applicant in terms of Rule 27 of the
Uniform Rules of Court in respect of his failure to file
his plea;
(2)
The notice of bar is uplifted and the Applicant is granted leave to
file his plea within five (5) days of date of this order;
(3)
The Respondent to pay the costs of this application on a party and
party scale.
H
K KOOVERJIE
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING: 8 June 2015
JUDGMENT
DELIVERED: 12 June 2015
FOR
THE APPLICANT: Advocate M Fabricius
ATTORNEYS
FOR THE APPLICANT: Döman Weitz Attorneys
FOR
THE RESPONDENT: Advocate Modisa
ATTORNEYS
FOR THE RESPONDENT: State Attorneys
[1]
Uitenhage
Transitional Local Council v SA Revenue Service
2004 (1) SA 292
SCA at 297
[2]
Du
Plooy v Anwes Motors (Edms) Bpk
1983
(4) SA 212
(O)
;
Gumede v Road Accident Fund
2007 (6) SA 304
(C0 at 307C-308A
[3]
Texas
Co SA Ltd v Cape Town Municipality
1926 AD 467
at 488
[4]
Herbstein
and Van Winsen,
Civil
Practice of the High Courts
,
5
th
Edition
[5]
Herbstein
and Van winsen,
Civil
Practice of the High Courts
,
5
th
Edition, Vol 2, p 954-955