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[2015] ZAGPPHC 509
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Olwagen v Minister of Agriculture (44187/2009) [2015] ZAGPPHC 509 (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
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.
BACKGROUNP
:-
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 l
ater, 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 Doman,
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 Doman 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 Doman 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 wouid be fair and just between
the parties...
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
5
Herbsteln and Van winsen,
Civil
Practice of the High Courts
, 5
th
Edition, Vol 2, p
954-955
DATE OF
HEARING: 8 June201S
JUDGMENT
DELIVERED: 12 June 2015
FOR
THE APPLICANT: Advocate M Fabricius
ATTORNEYS
FOR THE APPLICANT: Doman Weitz Attorneys
FOR
THE RESPONDENT: Advocate Nlodisa
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
(0); Gumede v Road
Accident Fund
2007 (6) SA 304
(CO 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