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[2015] ZAGPPHC 505
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Nieuwoudt and Another v Van Niekerk and Others (1189/97) [2015] ZAGPPHC 505 (8 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: 1189/97
DATE: 08 JULY 2015
In the matter between
PAUL
NIEUWOUDT
.......................................................................................................
First
Applicant
TONA
NIEUWOUDT
..................................................................................................
Second
Applicant
And
GERBRAND ABRAHAM VAN
NIEKERK
..............................................................
First
Respondent
And 8 Other Respondents
JUDGMENT
BAM J
1. This matter was enrolled before the
urgent court of this Division on 7 July 2014. The heading of the
application indicates that
the application is brought before the
Court of the Commissioner of Patents. Only the applicants were
represented in this Court.
2. The application, in its initial
form, concerns, inter alia, the rescission of orders made by four
judges of this division on
various dates. During argument, however,
Adv Pieters SC, assisted by Adv Wilson, representing the applicants,
reduced the relieve
sought to, in terms of Rule 42(1), a rescission
of an order made by Jansen J in the Court for the Commissioner of
Patents, Pretoria,
on 2 June 2015, in this matter, concerning the
same parties. That order was made in the absence of the applicants.
In respect of
the other relieve sought by the applicants it was
conceded by Mr Pieters that the matter was not urgent.
3. The order made by Jansen J on 2 June
2015, in paragraph 1, involves that the application be struck from
the roll with punitive
costs. Paragraph 2 of that order reads as
follows: “That the applicants not be permitted to institute any
further proceedings
against the second and third respondents before
paying such costs."
4. It appeared that the applicants felt
aggrieved about the fact that the order was made in their absence and
that the second paragraph,
in any event, is unconstitutional.
5. Concerning the contents of the
second paragraph it seems that it may, prima facie, be arguable
whether such order is indeed constitutional.
For practical purposes
it seems to have the same effect as an order declaring a litigant
vexatious. Unfortunately it is not known
what the learned presiding judge took
into account in making that order. In my view it is important to have
all the facts before
Court. It is however clear that the order could
only affect litigation in the Court of the Commissioner of Patents.
6. One of the issues in this
application was whether the application was properly served on the
respondents. In this regard the
court was referred to an Email
indicating that an application consisting of a notice of motion and
supporting documents were E
Mailed to the respondent's attorney of
record by a certain Annick Hough, whose E mail address indicates that
she may be an attorney.
This person was however not the applicants'
attorney of record This Email was responded to by the respondent's
attorney of record
indicating, amongst others, that they were not
prepared to accept service by way of Email and that the application,
properly paginated,
had to be served on their correspondents in
Pretoria.
7. In respect of service by Electronic
Mail, Mr Pieters pointed out that process is now authorized in terms
of the Rules. This is
indeed correct.
8. However, there is no further
indication on record that the application was in fact served on the
respondents' attorneys, whether
by Email or in any other way. In
terms of the provisions of Rule 42(3) the Court shall not make any
order rescinding or varying
any order unless satisfied that all
parties whose interests may be affected have notice of the order
proposed. In view of the situation
in respect of service alluded to
above, I am not satisfied with the alleged service of the
application.
9. In respect of urgency, it was argued
by Mr Pieters that the second applicant had made out a case in view
thereof that if the
order of Jansen J is not set aside, the second
applicant's attached vehicle, which she urgently needs for business
purposes in
terms of a contract with her employer, will be sold in
execution, with the effect that her business contract with her
employer
will be terminated. Unfortunately for the second applicant,
it is not adequately, if at all, explained why she could not obtain
another vehicle to enable her to continue with her work.
10. In view of the above the applicants
failed to substantiate the application for the rescission of Jansen
J's order of 2 June
2015
11. The request of Mr Pieters that the
outstanding claims be postponed cannot succeed in view thereof that,
due to a lack of urgency,
it is not properly before this court.
12. The application as a whole is
therefore struck off.
AJ BAM JUDGE 8 July 2014