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[2015] ZAGPPHC 998
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4 Aces New and Used Spares CC v PA Cargo (14210/2014) [2015] ZAGPPHC 998 (24 July 2015)
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Certain
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IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH
AFRICA]
CASE NUMBER: 14210 /
2014
24/7/2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In
the matter between:
4
ACES NEW AND USED SPARES
CC APPLICANT/DEFENDANT
And
PA
CARGO RESPONDENT/PLAINTIFF
JUDGMENT
MAVUNDLA,
J.
[1]
The applicant approached this court seeking
in terms of Rule 27 of the Uniform High Court Rules an order
condoning the late filing
of its plea and uplifting of a notice of
bar and costs of the application. I am of the view that the
application stands to be dismissed
with costs.
[2]
It is common cause that that summons was
served on the corresponding attorneys' offices on the 20 February
2014. Rule 19(1)
affords a defendant ten days after service of
the summons to file a notice of appearance to defend.
In
casu
the applicant's notice of
intention to defend was only served on the 4 April 2014. Subsequent
thereto the respondent served a notice
of bar on the corresponding
attorneys' office on 13 May 2014. It is this notice of bar the
applicant seeks to have uplifted.
[3]
It
is trite that the grant of condonation is a matter of the discretion
of the Court. The party seeking condonation bears the
onus,
to
advance a satisfactory and reasonable explanation for the delay. In
considering whether it should exercise its discretion in
favour of
the applicant, the Court will have regard to the following: "(a)
the cause of the delay; (b) a reasonable explanation
which covers the
entire period of the delay; (c) the nature and
defect causing the delay;( d) the
effect of
the delay in the administration of justice; (e) the
prejudice to be suffered by any of the other parties.
The list is not
exhaustive;
vide
eThekwini Municipality v lngonyama Trust
[1]
;
Van
Wyk
v
Unitas Hospital
[2]
;
and
Gumede
v Road Accident Fund
[3]
;
Immelman v Loubser en Ander.
[4]
[4]
The
reason advanced by the applicant in his purported affidavit for the
delay, is that: "there was a mishap pertaining to the
email
address to which the notice of bar was sent. The correspondent
attorney for the applicant, upon whom the notice of bar was
served,
sent
via
email
to Mr Naeem Essop, a candidate attorney in the process of completing
his duly registered articles of clerkship in the employ
of
Gani
Attorneys.
The
email containing the notice of bar was erroneously sent to Mr Essop's
private email address, namely
[……..]
This
address is however not used at our offices and accordingly did not
come to Mr. Essop's attention timeously. The official address
used by
Gani Attorneys are
[……..]
and
[………..]"
[5]
According to the applicant, he only became
aware of the fact that a notice of bar was served, on the 28 May
2014, when Mr Essop
inquired from the respondent's attorneys about
the status of the matter. His founding affidavit was deposed to and
lodged with
his application on the very same day of the 4 June 2014.
Seen in isolation, the period from the 28 May 2014 to the launch of
the
application for condonation on 4 June 2014 cannot be said is an
inordinate delay. But that is not the only consideration this Court
must have regard to, in deciding whether or not to exercise its
discretion in favour.
[6]
The appearance to defend, as pointed out
herein above, was only served and filed on the 4 April 2014, 21
(twenty-one) days out of
time. A party who realises that he is out of
time in complying with the Court rules, must immediately approach the
Court for condonation,
and explain the cause of the delay. There is
no explanation with regard to this delay of 21 days. Neither was
condonation sought
in this regard.
[7]
The
respondent's attorneys could only have served the notice of bar at
the address provided to them by the applicant's attorneys,
which was
the email address, now contended by the applicant that it was not
regularly used. The delay is not only confined to the
period of the
notice of bar, but stretches from the very day on which the summons
was served on the applicant, which latter period
the applicant has
failed to explain. In my view, the conduct of the applicant and his
attorneys from the moment the summons was
served upon them,
demonstrate a measure of nonchalance an disdain to the Court rules.
The Courts have held that such conduct should
not be countenanced nor
tolerated. The Courts have long held that a party cannot hide behind
the remissness of the
attorney;
vide
Chetty v Law Society,
;
Transvaal
[5]
Salojee
and Another v Minister of Development;
[6]
Municipality
v lngonyama Trust (supra) at 246 para [26].
[8]
There is also one disconcerting aspect in
this matter, which sways this Court not to exercise its discretion in
favour of the applicant.
In casu,
there
are two bundles of documents in the Court file. On this bundle on the
Index page dated 2014-07-25 and 2014-07-27 it is inscribed
with black
ink the words: "Original". I shall refer to this bundle as
the "ORIGINAL" bundle. In this latter
bundle, is contained,
inter alia,
the
affidavit of Mr Fareed Tayob, upon which the application is premised.
The signature of Mr Tayob is on paginated page 9 of the
papers. This
page reveals,
inter alia,
the
following:
"5.4 Wherefore I
humbly pray for an order condoning the late filing of the Plea,
uplifting of the Notice of Bar and an
extension of the date for
filing the Plea until the date hereof.
DATE
AT
ON THIS THE
DAY OF
2014
Signature
of deponent
DEPONENT
Thus signed and sworn to
before me at
____________
on this
_________
day of
______________2014, the Depotent having acknowledged that he knows
and understands the contents of this affidavit, that it
is both true
and correct to the best of his knowledge and belief, that he has no
objection to the taking the prescribed oath and
that the prescribed
oath will be binding on his"
And
continues at paginated page 10 as follows: "conscience as
required by Government Gazete Nos R1258 of 21 July 1972 and R1648
of
19 August 1977.
SIGNATURE
OF THE COMMISSIONER
ANA ALMEIDA
COMMISSIONER OF OATHS
Commissioner of oaths of South Africa
FULL NAMES: Ex-Officio
(Sworn Translator)
DESIGNATION:
(Commissaria de Juramentos)
ADDRESS:
(Tradutora Oficial)
[…] Main Road,
Erasmia. 0183"
[9]
This purported founding affidavit found in
the Original bundle, was signed by Mr Tayob at paginated page 9. The
spaces provided
for the place at which, and the date on which the
affidavit was signed and deposed to by the deponent and commissioned
were left
blank. The Commissioner's signature appears on paginated
page 10, where there is no date.
[10]
In
the matter of S v Stevens
[7]
the
Appellate Court held as follows:
"In terms of
regulations promulgated in terms of s 10 of the Justices of the Peace
and Commissioners of Oaths Act 16 of 1963
(see Government Notice
R1258, published in Government Gazette 3619 of 21 July 1972, as
amended by Government Notice R1648, published
in Government Gazette
5716 of 19 August 1977) a commissioner of oaths, when attesting a
written declaration under oath, is required
(i) below the deponent's
signature to certify that he (the deponent) has acknowledged that he
knows and understands the contents
of the declaration and to state
the manner, place and date of the taking of the declaration (reg 4
(1)); (ii) to sign the declaration
and print his full name and
business address below his signature (reg 4 (2) (a)); and (iii) to
state his designation and the area
for which he holds his appointment
or the office held by him if he holds his appointment ex officio (reg
4 (2) (b)). In the case
of exh "D" the commissioner of
oaths attesting Olivier's declaration under oath complied with
requirement (i) above,
but did not properly comply with requirements
(ii) and (iii). In fact all that appears in response to these
requirements is an
illegible signature above the roneoed words
"Kommissaris van Ede ex officio". (The document was
completed in Afrikaans".
In casu,
the requirement "(i)"
was not complied with in that the place and date of the taking of the
declaration was not complied
with. The affidavit upon which the
application is premised is therefore defective.
[11]
This matter was on the opposed role of the
10 November 2014, but allocated to be heard on 11 November 2014. At
the time this Court
had already read papers. On the basis of the
"ORIGINAL" bundle of documents, the application was doomed
to fail. On the
11 November 2014 the application was postponed at the
request of the applicant, to the 2 December 2014. The applicant was
ordered
to pay the costs of postponement on attorney and client
scale.
[12]
When
the matter resumed on the 2 December 2014, there were two bundles of
documents, namely the first "ORIGINAL" bundle
of documents
and the second bundle of documents. The second bundle was paginated
up to page 89, while the "ORIGINAL"
bundle ends with
paginated page 60. The second bundle contains,
inter
alia,
an
affidavit of Mr Naeem Essop, who is an attorney from the offices of
the applicant's attorneys of record.
[8]
The
latter's affidavit was commissioned and signed on 28 November 2014.
[13]
Mr Essop explains in his affidavit as
follows:
"1.3 On the 4th June
2014 an affidavit in support of the condonation application was
signed and commissioned. The purposes
of this were to be served and
filed.
1.4 My secretary made
three copies prior to the commissioning thereof and it seems that
only one copy was commissioned and fully
completed at the time. There
was thus no need for further copies to be made, however since
erroneously not all original copies
were not commissioned the
commissioned copies were served.
1.5 Once my messenger
returned from serving the affidavit I noticed that not all the copies
were commissioned and subsequently filed
the original immediately.
1.6 The Respondent in
this matter set down on the opposed roll and indexed and paginated
the file using the incorrect affidavit
served on them. The reason for
the incorrect affidavit being in the court file was that Applicants
attorneys did not index the
court file ourselves and accepted that
the commissioned affidavit was on the file."
[14]
Mr Essop does not furnish the date on which
the "properly commissioned" founding affidavit was filed at
Court. He has
also failed to attach a confirmatory affidavit of his
secretary. Neither does he state whether the properly commissioned
affidavit
was subsequently served on the respondent's attorneys of
record. On the contrary it was submitted on behalf of the applicant
that
the respondent could not have been prejudiced because it did not
resort to brining an application in terms of Rule 30 to challenge
any
defective service. I do not agree with this submission. The fact that
rule 30 has not been resorted to by the respondent, does
not detract
from the fact that it is the applicant who must, present satisfactory
and reasonable explanation for any delay or non-compliance
with the
court rules.
[15]
An applicant is confined to only two sets
of affidavits. A fourth affidavit can only be filed with the
Court's leave and with
a penalty of costs. The affidavit of Mr. Essop
mentioned herein above was filed without seeking the Court's
indulgence. In my view,
the affidavit of Mr Essop was tailored to
relieve the pinch on the applicant's "shoe."
[16]
The
replying affidavit
[9]
of
Mr. Fareed Tayob, the applicant's attorneys of record, was
commissioned on the 9 November 2014. The respondent's answering
affidavit
was deposed to and commissioned on the 25 June 2014, and
filed with the registrar of this Court on 27 June 2014. The
applicant's
replying affidavit ought then to have been served within
10 days
[10]
of
receipt of the answering affidavit. This replying affidavit was more
than four months out of time. There is no condonation sought
for this
late filing of the replying affidavit, neither is there any
explanation proffered for the delay.
[17]
The applicant disputes that it is indebted
to the respondent in the amount claimed. It is instructive to note
that this matter was
predicated by an application for the liquidation
of the applicant. The applicant, in the liquidation application,
alleged in its
papers that he paid an amount of R350 000. 00 to his
attorneys of record, in order to show that it is not insolvent.
Respondent
contended that it was this allegation which moved it in
withdrawing the liquidation application, and as a result it decided
to
issue summons.
In casu,
the
applicant contended,
inter alia,
that
it is not indebted to the respondent. The applicant and his attorneys
of record have however failed to place proof of the aforesaid
payment. In my view, empirical evidence of payment, is much
persuasive than the mere denial of indebtedness. I am accordingly not
persuaded that the applicant has a
bona
fide
defence to the respondents' claim.
[18]
In my view, the general conduct of both the
applicant and his attorneys reflects a scant regard to
Court rules. It is
a conduct which in the circumstances of this case,
inter alia,
moved
this Court, in not inclining towards exercising its
discretion in favour of the applicant.
[19]
In the result it is ordered that the
application be and is dismissed with costs.
___________________
N
.M. MAVUNDLA
JUDGE
OF THE COURT
DATE
OF JUDGEMENT : 24/07/2015
APPLICANT'S
ADV: ADV S J VAN RENSBURG
INSTRUCTED
BY: GANI ATTORNEYS
RESPONDETS'
ADV : ADV. M SEGAL
RESPONDENTS'
ATT: ALAN MARGOLIS ATTORNEYS
[1]
2014
(3)
SA 240 (CC) at 246- 247 paras [24)-[28) respectively.
[2]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at 477E.
[3]
2007
(6) SA 304
CPD) at 307 at para[7].
[4]
1
974
(3) SA 8
1
6
(AD) at 820E-H.
[5]
1
985
(2) SA 756
(A) at D-E.
[6]
1965
(2) SA 135
AA at 141.
[7]
1983
(3) SA 649
{AD) at 658C.
[8]
Paginated
page 72-74.
[9]
Paginated
pages 53-65.
[10]
Rule
6(5)(e) of the Uniform High Court Rules.