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[2015] ZAGPPHC 782
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Rossouw N.O. and Another v Land and Agricultural Bank of South Africa and Another (31960/2010) [2015] ZAGPPHC 782 (19 August 2015)
IN
THE HIGH COURT SOUTH AFRICA
(GAUTENG
D
I
VISION,
PRETORIA)
19/8/15
CASE
NO: 31960/2010
In
the matter between:
GERHARDUS
FRANCOIS ROSSOUW N.O
(in
his capacity as Trustee of the SJP Family Trust)
First
Applicant
ESTELLE
KATHLEEN VAN DER MERWE N.O.
(in
her capacity as Trustee of the SJP Family
Trust) Second
Applicant
And
LAND-AND
AGRICULTURAL BANK OF
SOUTH
AFRICA
First Respondent
THE
SHERIFF
MOOKGOPHONG
Second Respondent
JUDGMENT
TOKOTA
AJ
[1]
This is an application in terms of Rule 30 of the Uniform Rules of
court wherein the applicants seek an order setting
aside
a warrant of execution dated 18 September 2013 (which was issued by
the first respondent pursuant to a judgment in
its favour) as an
irregular step.
[2]
I have been referred to the Supreme Court of Appeal decision in
Rossouw N.O v Land and Agricultural Development Bank of South
Africa
(794/12)
(2013) ZA SCA 016
from which the subject matter of issuing
the warrant of execution flow. I have had the benefit of reading that
case. For proper
perspective of this matter it is necessary to
summarise hereunder the background events that took place prior to
the issuing of
the warrant. To the extent that the facts of the case
are relevant in this matter they may be summarised as follows:
[3]
On 2 September 2004 the first respondent (the Bank) concluded an
instalment sale agreement with the SJP Family Trust (the Trust)
duly
represented by its trustees, the applicants, in terms whereof the
bank lent and advanced monies to the Trust for the purchase
of
irrigation equipment known as pivots which were to be purchased from
the supplier Andrag Agrico (Pty) Ltd (Andrag).
[4]
Pursuant to the conclusion of the agreement the Bank advanced a sum
of R2 716 737.55 to the Trust for the purchase of irrigation
equipment, including ten pivots. In essence therefore these pivots
were purchased by the Bank from Andrag for on-sale to the Trust.
The
written agreement of sale between the Bank and Andrag stipulated that
payment of the purchase price was conditional upon the
Bank being
furnished with two written declarations, one on behalf of the Trust
and the other by an Andrag's technician.
[5]
The declarations had to confirm that the said pivots had been
delivered to the Trust, installed and were fully operational.
The
declarations were furnished to Bank and were purportedly signed on 16
November 2004 by Mr Paul van den Berg, the Andrag's technician,
and
by Mr Cornelis van der Merwe on behalf of the Trust. Van den Berg
handed the signed declarations to the Bank on the date of
their
purported signature, whereupon the Bank paid the full purchase price
of ten pivots to Andrag. Unbeknown to the Bank only
six pivots,
instead of ten as indicated in the declarations, were delivered. In
the installment sale agreement between the Bank
and the Trust, the
Bank had reserved ownership of the pivots until the purchase price
had been paid in full by the Trust.
[6]
Notwithstanding the agreement the Trust never made any payments. This
resulted in the Bank instituting vindicatory proceedings
in this
court with an alternative claim in terms of the
action
ad
exhibendum
in respect of ten pivots. The pivots were
valued at R1 710.00 each. This court ordered the Trust to pay to the
Bank a sum of R1
710 000.00 being the price of the ten pivots. The
Trust then appealed to the Supreme Court of Appeal against the order.
[7]
The appeal was partially successful and the Supreme Court of
Appeal set aside the order of this Court and substituted
it with an
order that the Trust should pay the Bank the sum of R1 026 000 plus
interest thereon calculated at the rate of 15, 5
% per annum from 22
June 2010. The appeal to the Constitutional court was unsuccessful.
[8]
The Bank, in an attempt to enforce the judgment in its favour, caused
a warrant of execution, which is the subject of this application,
to
be issued.
[9]
In the meantime the parties were involved in another
litigation wherein the Trust was suing the Bank for damages
in
an amount in excess of R22 million. The Trust then brought an
application interdicting and restraining the Bank from taking
any
steps in execution of the judgment until the finalisation of the
damages claim. The idea was that if the Trust was successful
in its
claim the amount owed to the Bank would be set off. On 11 August 2014
the application was dismissed with costs by Barn J.
An application
for leave to appeal was dismissed.
[10]
After exchange of correspondence between legal representatives of the
parties with regard to the interpretation of section
18 of the
Superior Court Act No.10 of 2013 ( the Act) the Bank caused the
warrant of execution to be issued.
[11]
The Trust then issued a Rule 30 notice alleging that the issuing of
the warrant of execution constituted an irregular or improper
step
alleging that it was in conflict with the provisions of section 18(1)
of the Act. In the present application I am therefore
called upon to
determine whether or not the step taken by the Bank constituted an
irregular step. If I find that such action constituted
an irregular
step as envisaged in Rule 30 I must set it aside.
[12]
Mr Muller SC appeared for the applicants and Mr N Kades SC
together with Mr P L Uys appeared for the Bank.
[13]
At the commencement of the hearing Mr Kades argued a point in limine
that these proceedings have become of academic interest.
He contended
that the trial date (which was 28 January 2015) in the damages claim
between the parties has come and gone. He contended
that I should
dismiss the application on that ground alone. Naturally this was
opposed. I ruled that I was not inclined to decide
this matter only
on that basis and that the determination of the point in limine
should be decided at the end of the case and therefore
merits should
be argued.
[14]
I deem it expedient to dispose of the point in limine first. I am of
the view that the application for suspension of the order
pending the
finalisation of the damages claim was intended to mean the final
conclusion of the matter. I was informed by Mr Muller
from the bar
that on 28 January 2015 the matter was postponed. Consequently the
matter has not yet been finalised. In the light
of the view I take
the point in limine cannot succeed.
[15]
As I understood the argument of Mr Muller his contnention was that
the order of Barn J was final in effect and not susceptible
for
alteration by him. Therefore section 18(1) of the Act applies. He
argued that the purpose of section 18(1) is to suspend the
operation
of the order appealed against so as to prevent irreparable harm. In
his view the order of the Supreme Court of Appeal
is the subject
matter of appeal as envisaged in section 18(1) of the Act.
Consequently the application for leave to appeal had
the effect of
suspending that order. Accordingly, so he argued, the issuing of a
warrant of execution in terms of the Rules in
the face of the
provisions of section 18(1) constituted an irregular step.
[16]
Section 18(1) provides: "(1)
Subject
to
subsections
(2) and
(3),
and unless
the
court
under
exceptional
circumstances
orders
otherwise,
the operation
and
execution of
a
decision which
is
the
subject of
an
application for leave to appeal or of an appeal,
is
suspended pending
the decision of the application
or appeal."
In the light of the view I take of
the matter it is not necessary to analyse the provisions of section
18 in any detail. Mr Kades
argued that the provisions of section
18(1) were not applicable in this matter simply because the order of
the Supreme Court of
Appeal was not the subject matter of appeal. He
argued that the application for leave to appeal against the order of
Barn J restored
the parties' position prior to the issuing of the
warrant and therefore the Bank was entitled to give effect to the
order of the
Supreme Court of Appeal.
[17]
In what follows hereunder I examine the provisions of
Rule 30 and test whether section 18(1) of the Act applies.
If
it is applicable to determine whether, on the facts of this case, the
application for leave to appeal forms the subject matter
of the
issues between the parties.
[18]
Rule 30 provides:
"Irregular
Proceedings
(1)
A party
to
a
cause in which an irregular
step has been taken by any other party may apply to court to
set it aside.
(2)
An
application in terms of subrule
(1)
shall be on notice
to all parties specifying
particulars of
the
irregularity or
impropriety alleged, and may be made only if-
(a)
the
applicant
has
not
himself
taken
a
further
step
in
the cause with knowledge
of the irregularity;
(b)
the
applicant
has,
within
ten
days
of
becoming
aware
of the
step,
by
written notice
afforded
his
opponent
an opportunity
of
removing
the cause of complaint
within
ten days;
(c)
the application
is delivered
within
15 days after the expiry of
the
second
period
mentioned
in paragraph
(b) of subrule (2).
(3)
If
at
the
hearing
of
such
application
the
court
is
of
opinion
that the proceeding
or step is irregular or improper,
it may set it aside
in
whole
or in part,
either
as
against
all
the parties
or
as
against
some
of
them,
and
grant
leave
to
amend
or
make
any such order
as
to it
seems
meet.
(4)
Until
a
party has
complied
with
any
order
of
court
made against
him
in
terms
of
this
rule,
he
shall
not
take
any
further step in the cause,
save
to apply
for an extension
of time
within which to comply with such order."
[19]
The 'cause' between the parties was an application for the stay of
the execution of the judgment of the Supreme Court of Appeal
pending
the finalisation of a damages claim. The initial cause which led to
the issuing of the warrant was a claim for payment
of monies lent and
advanced to the Trust. In this regard the Bank obtained judgment in
its favour. That judgment is final in that
the highest court of this
land has sealed it as correct. There is no possibility of it being
set aside at any future date. The
Bank is therefore entitled to
execute it. The issue of a warrant of execution is but one of the
forms of enforcing the judgment.
[20]
In considering whether or not the step taken by the Bank was
irregular as envisaged in Rule 30 it is necessary to determine
whether the Rule applies to a situation such as the present matter as
well. The purpose of the Rule, as I see it, is to regulate
the
procedure in litigation matters in accordance with the Uniform Rules
of Court in relation to "a cause" between the
parties. To
interpret Rule 30 as allowing a party to invoke its provisions even
in matters not regulated by the Rules would be
casting a net too
broadly. Further to interpret the Rule to apply to a situation where
the 'cause' for the step taken, as in this
case, has already been
determined by court would be to create a catch for all situation. I
do not think that was the intention
of the Rule.
[21]
In my view Rule 30 applies where a party to a cause ought to have
taken an alternative step in terms of the Uniform Rules,
for example,
where a replying affidavit has been filed out of time without
applying for condonation for the late filing thereof.
It is the
failure to file within the time period prescribed by the Rules which
constitutes an irregular or improper step. Even
in such situations
the court has a discretion to condone the failure to comply with
procedural steps prescribed by the Rules.
[22]
The
Rules are
made for courts to facilitate the adjudication
of cases;
hence courts enjoy the power to
regulate
their own
processes,
taking
into
account the interests of justice.
If it is in
the interest of justice the court has
a right to
depart from
its own
Rules. .In
order to attain
justice
Rules are
to
be
interpreted in
a
flexible
manner. Furthermore the present
judicial
trend is to
condone
an
irregularity
rather
than
to
visit
it
with
a
nullity
especially
where the complaining
party will
not suffer prejudice.
It has been
held that
"technical
objections
to
less
than
perfect
procedural
steps
should
not
be
permitted,
in the absence of
prejudice,
to interfere with
the
expeditious and, if
possible,
inexpensive decision of
cases
on their real merits
.
"
[1]
[23]
In
Mukaddam
v
Pioneer
Foods
(Pty)
Ltd
2013
(5) SA
89
(CC)
p.99 para 32
the Learned Judge of the
Constructional Court, Jafta J said:
"[32]
It
is important
that
the rules of courts are used
as
tools to
facilitate
access
to courts rather
than
hindering
it.
Hence rules are made
for
courts
and
not that the courts are established
for
rules.
Therefore,
the
primary
function
of
the
rules
of
courts
is
the
attainment
of
justice.
But
sometimes
circumstances
arise
which
are
not
provided
for
in
the
rules.
The
proper
course
in
those circumstances is to approach the court itself for guidance.
After
all,
in terms of s
173
each superior
court
is the master
of
its
process.
"
[2]
[24]
The rhetorical question in this matter is which step should a
successful party take in order to enforce the judgment other
than
issuing a warrant of execution in the event of a failure to pay by a
loosing party? In my view the step which was taken by
the Bank cannot
be classified as improper or irregular. On this ground alone the
application ought to fail.
[25]
There is of course another dimension of the case. Rule 30 is intended
to regulate the parties' conduct during the process of
civil
litigation in order to facilitate adjudication of the issues between
the parties. Once litigation is finalised the parties
must give
effect to the judgment of the court. Technical objections aimed at
frustrating such judgment of the court should not
be allowed. On this
ground as well, in the exercise of my discretion I would still
dismiss the application.
[26]
Furthermore
I
have
reservations as to whether the Rule
was
intended
to
cover
a
situation
where
the
cause
of
the
complaint
emanates
from
legislation.
Bava AJ
said that.
(
r
)ule
30
was
meant
to
deal
with
irregularsteps taken by parties involved in litigation where the
irregularity emanated from the use of the
Rules
of Court.
[3]
I
agree.
[27]
In any event even if Rule 30 applies to legislation I would, as
indicated above, in the exercise of my discretion, still
dismiss the
application.
[28]
The general rule is that costs should follow the event. I see no
reason why the rule should not apply in this case. Senior
Counsel
were employed on both sides which is an indication that both parties
saw it fit that the matter warranted their employment.
[29]
Although the matter may appear simple, I asked both Counsel if there
is any judicial precedent to which I can refer, they both
could not
refer me to any decided case covering the facts of this matter. I was
also unable to find relevant authority. The
Bank considerd it
a wise and reasonable precaution to employ two counsel. It
cannot be faulted. In the result I make
the following order.
1.
The application is dismissed
2.
The applicants are ordered to pay costs including costs consequent
upon employment
of two Counsel.
_________________________________
BR
TOKOTA
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
29 JULY 2015
DATE
OF JUDGMENT:
For
the applicants:
Adv G CMuller SC
Instructed
by:
Jacques van der Merwe Attorneys
For
the First Respondent:
Adv N Kades SC & Adv P L Uys
Instructed
by:
Geldenhuys Maltji Inc
[1]
See Trans-African Ins Co Ltd v Mal
uleka
1956
(2) SA 273
(A) at 278F-G
[2]
See epublikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publ
ikasies
(Edms) Bpk 1972 (
I ) SA 773
(A) at
783A -
B; Chelsea
Estates & Contractors CC v Speed-0-Rama
1993 (I )
SA 198 (SE) at 201
G; Erasmus
op cit Bl -
5; Harms
op cit A2.3.' Standard Bank of SA Ltd v Dawood
2012 (6) SA 151
(WCC)
para 12.; Absa Bank Ltd v Zalvest Twenty (Pty) Ltd and Another
2014
(2) SA 1
19
(WCC)
[3]
See Cochrane v City of Johannesburg 201 1 (
I
) SA 553
(GSJ) para 31