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[2015] ZAGPPHC 872
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N N Metals v Transnet Ltd (51408/2011) [2015] ZAGPPHC 872 (21 August 2015)
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
21/8/15
CASE
NO. 51408/2011
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Reviewed
In
the matter between:
N.N.
METALS (PTY)
LTD APPLICANT
and
TRANSNET
LTD RESPONDENT
CORAM:
EBERSOHN AJ
DATE HEARD: VARIOUS
DATES HEARING CONCLUDED ON 7 MAY 2013
DATE
JUDGMENT HANDED DOWN: 21st AUGUST 2015
JUDGMENT
EBERSOHN
AJ
[1]
After having heard argument over a period of tme regarding the
application for leave to appeal judgment was reserved and I was
appointed in die Venda Division of the High Court and relocated.
[2]
My erstwhile secretary was tasked to obtain a transcribed copy of the
argument delivered both at the original hearing and at
the
application for leave to appeal. The reason for ordering the
transcription was to attempt to better understand the defendant's
counsel's argument as will appear later herein.
[3]
When I was transferred back to Pretoria it appeared that neither the
court file nor the transcription could be found.
[4]
I then had a sudden heart attack which necessitated open heart
surgery and I was indisposed for quite a while. I,
in the
interim,
learned that the transcription had come to light but
that the court file was still missing. A new record was
prepared at my
request and I could then start writing my judgment.
[5]
The parties will be referred to in this judgment as "plaintiff''
and "defendant" respectively as in the main
case. Before
dealing with the defendant's alleged grounds of appeal it is
necessary to give a short overview of what the case is
really about.
[6]
In response to the summons wherein plaintiff claimed ejectment of the
defendant from the premises as the lease regarding the
premises had
expired, the defendant filed a plea and two counterclaims and the
plaintiff filed exceptions to the defendant's counterclaims.
[7]
To be better informed of the method the defendant employed to delay
the matter the court will here and there refer briefly to
the merits
of the matter, which were in any case comprehensively dealt with in
the main judgment.
[8]
The court will first refer to the 5 exceptions the
plaintiff lodged and they are dealt with in paragraphs
[9] -
[68] (pages 9 to 23) of the main judgment and the plaintiff's
exceptions to the defendant's first and second counterclaims.
[9]
In the
first exception
, paragraphs [12] - [17] pages 11 to 14
of the main judgment, the defendant did not deny the fact
that the lease agreement
expired but alleged that it occupied the
property in terms of an express contract of lease
alternatively tacit
lease which came
in existence by virtue of some
correspondence between the
parties. The provisions of Act 18 of 1969,
which was dealt with in paragraph [9] b) of the main judgment were
apparently once more
overlooked by die defendant. This contention of
the defendant was dismissed on the evidence on record.
[10]
In the
second exception,
paragraphs [18) - [25) of the
main judgment, (pages 11 to 14) with regard to the issue of the
occupation of the property it was
the case of the defendant that the
parties concluded a tacit contract of lease during the period of May
and June 2011. See in any
case the provisions of Act 18 of 1969. This
contention of the defendant was dismissed on the evidence on record.
[11]
In the
third exception,
paragraphs [26) - [36) of the
main judgment, (pages 14 to 16) the defendant contended that it had a
right to retain possession of
the leased premises by reason of
alleged improvements by it thereon. This contention flies in the face
of clause 44 of the lease
,the full text being quoted in paragraph
[31) Of the judgment on page 15 of the main judgment .. This
contention of the defendant
was dismissed on the evidence on record.
[12]
In the
fourth exception,
paragraphs [37) - [44) of the main
judgment, (pages 16 to 18) the defendant contended that it's
occupation of the leased premises
was lawful because it holds a lien
for the improvements made by it to the leased premises. This
contention also flew straight into
the face of the facts and the law.
This contention of the defendant was dismissed on the evidence on
record.
[13]
In the
fifth exception,
paragraphs [45) - [54] pages 19
-20 of the main judgment, with regard to the issue of the occupation
of the property it was the
case of the defendant that at the time the
improvements were made by it there was no agreement between the
parties in respect of
the expenses. In paragraph 40.2 of the
written lease (referred to in paragraph [49) of the main judgment the
parties agreed
that the plaintiff did not accept responsibility for
any improvement constructed by the defendant on the leased premises
regardless
of whether the plaintiff consented to the construction or
not. In clause 44 of annexure ("POC 1) referred to in paragraph
[51] of the judgment any improvements to the leased premises shall
accede to the land and the ownership thereof shall vest in the
Lessor, being the plaintiff, without any compensation whatsoever
being payable by the plaintiff to the defendant. The contention
of
the defendant was dismissed on the evidence on record.
[14]
The defend also filed two counterclaims to which the plaintiff
excepted.
[15]
Exception by the plaintiff to the defendant's first counterclaim.
The
defendant's first counterclaim arises from alleged improvements made
by it to the leased premises prior to the period August
and September
2009 and averred that it held a lien. It was already dealt with
in paragraphs [55] - [57] of the main
judgment on pages 20 -
21, and set out and found that it had no lien and consequently
ruled that the defendant had no counterclaim
in this regard and that
the exception should succeed.
[16]
Exception by the plaintiff to the defendant's second
counterclaim.
The
contention of the defendant in paragraph [1O] of it's second
counterclaim, was that in the event of it being found that there
was
no express agreement it was impoverished by the
making of monthly payments
of R32
700,00 to plaintiff and that the plaintiff was enriched at the
defendant's expense. This aspect was dealt with in
paragraphs [60] -
[67] pages 21 to 23 of the main judgment and it was clear that
the exception should succeed.
[17]
GROUNDS OF APPEAL NOW RELIED UPON BY DEFENDANT:
There
is no clear indication in the notice which paragraphs of the notice
deals with which specific grounds of appeal. Part of it
is
repetitive.
[18]
FIRST ALLEGED GROUND OF APPEAL:
a) According to the
defendant the court should not have condoned the late filing by the
plaintiff on the 11th June 2012, of its
exceptions to the defendant's
plea and the two counterclaims .
b) The defendant was
totally inactive in this regard and totally ignored the exceptions
and never applied in terms of rule 30 to
set the exceptions aside as
irregular processes.
c) On 12 February 2013,
in the plaintiff's Heads of Argument, (page 23) reference is made to
the exceptions and it is prayed that
the various exceptions be
upheld.
d) In the defendant's
heads of argument dated the 8
th
March 2013 counsel
extensively dealt with the merits of the exceptions and no indication
nor notice was given in the defendant's
said heads that a point
in
limine
would be raised that the exceptions were filed out of
time.
e) It is common cause
between the parties that the counsel for the two parties spoke per
telephone on the morning of the the 7
th
May 2013, it being
the date on which the argument would continue in this court, and that
the defendant's counsel did not inform
the plaintiff's counsel of the
point in limine
about the lateness of the filing of the
exceptions he would take later that morning when the matter was
further heard by the court.
He only informed him at the court about
it leaving no time to plaintiff;s counsel to investigate the issue
and to do research on
it. Why he kept mum about it is quite clear
although he stated, when addressing the court, that he did not
intended to embarrass
"him in any way". Well, he did
embarrass him and also the court as the court also did not have time
to do research on
this very late point sprung by the defendant's
counsel on both the court and the plaintiff's counsel.
f) Counsel for the
defendant then continued his argument and stated that Rule 26 "seems
to be the decisive yardstick here''.
Erasmus:Superior Court Practice
on page 81-169 (footnote 4) , however states the following:
"An
exception is a pleading and cannot be objected to
as having been filed out of
time
unless a notice of bar has
been given."
(The defendant
in
casu,
diidn't put any proof before this court that a notice of
bar was ever served and no allegation was made in this regard).
The following authorities
are quoted under footnote (4):
"
Tyulu v Southern
Insurance Association Ltd
. 1974 (3) SA726 (E);
Felix v Nortier
NO
(2)
1994 SA 502
(SE) at 506E;
Landmark Mthatha (Pty) Ltd. v
King Sabata Dalinyebo Municipality in re: African Bulk Earthworks
(Pty) Ltd. v Landmark Mthatha (Pty)
Ltd. Pty) Ltd
.
2010 (3) SA 81
(ECM) at 86A-B."
[19]
Even the case of Stockdale Motors Ltd. v Mostert
1958 (0) SA 270
(0)
quoted by defendant's counsel in court did not support
the defendant's contentions. The facts of the
Stockdale
case do not clearly appear from that judgment and it
cannot be regarded as an authority in any way in favour
of the
defendant. The text of the Orange Free State Rule 37 was not placed
before this court by the defendant. Even Erasmus in
the quoted cases
did not even regard the Stockdale case as being authoritative.
[20]
From the quoted passage from Erasmus it seems as if condonation was
not required.
[21]
The plaintiff's counsel stated clearly in his long heads of argument
which was filed timeously that an order including condonation
should
be granted (probably in so far as may be necessary).against the
defendant.
[22]
Furthermore, and in case an application for condonation may have been
necessary, this court in terms of Rule 27 (3) has the
inherent power
to condone any non-compliance with these rules. The good cause , not
that it is required in terms of rule 27(3)
shown by the plaintiff
appears from the clear facts of the matter and the obvious attempt by
the defendant to delay the case, and
the court in the exercising of
its discretion in so far as may have been necessary, granted
condonation.
[23]
It is clear that there is no chance of success on appeal on ground 1.
[24]
SECOND ALLEGED GROUND OF APPEAL:
a) According to the
defendant this court should have arrived upon the conclusion that the
issues are interwoven with evidence that
has to be led at a trial and
at a trial the defendant
may establish that an express agreement
came into being. It is stated in paragraph 10 of the application
that an interpretation of annexures "DEF 1" and "DEF
2" was required and that this court could not do it during
exception stage. The two annexures are clear and required no
interpretation
by the court. The contentions of the defendant was
mere speculation in any case.
b) Its is clear that
there is no chance of success with the second proposed ground
of appeal.
[25]
THIRD ALLEGED GROUND OF APPEAL:
a) The third proposed
ground of appeal is that this court erred and should have found that
with regard to the improvements, namely
that the improvements were
done prior to the commencement of the written lease upon which the
plaintiff relies.
b) The agreement by the
parties with regard to the improvements is clear and this proposed
ground has no foot to stand on and is
apparently a smoke screen and
attempt to delay the case.
c) Its is clear that
there is no chance of success with the third proposed ground of
appeal.
[26]
It follows that the application cannot succeed. There is no
reasonable prospect that any appeal in the matter would have a
reasonable prospect of success.
Section 17
of the
Superior Courts
Act, No. 10 of 2013
reads as follows:
"17. Leave to
appeal.-
(1)
Leave to appeal may only be given where the judge orjudges concerned
are of the opinion that-
(a) (i)
the appeal
would have a reasonable prospect of success"
In the circumstances ,
leave to appeal should be refused with costs.
[27]
The following order is made:
1. The defendant's
application for leave to appeal is dismissed with costs
which costs will include the costs of Senior
Counsel.
_____________________
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
Defendant's
counsel : Adv M.P. van der Merwe
Defendant's
attorneys: TIM DU TOIT & CO
433
Rodericks Road
PRETORIA
Ref
JMS NEL
Plaintiff's
counsel: Adv. T. Motau SC
Plaintiff's
attorneys GILDENHUYS MALATJI
TEL.
012 428 8612
REF.
MR. T. MALATJI