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[2015] ZAFSHC 38
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Dihlabeng Local Municipality v Free State Development Corporation (4692/2014) [2015] ZAFSHC 38 (5 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4692/2014
DATE: 05 MARCH 2015
In the matter between:-
DIHLABENG LOCAL
MUNICIPALITY
...............................................................
Applicant/Plaintiff
And
FREE STATE DEVELOPMENT
CORPORTATION
.....................................
Respondent/Defendant
HEARD ON: 19 FEBRUARY 2015
JUDGMENT BY: G.J.M. WRIGHT, AJ
DELIVERED ON: 5 MARCH 2015
[1] This is an application for summary
judgment in the sum of R 428 785, 32 together with interest a tempore
morae and costs of
suit. The application is opposed.
CHRONOLOGY
[2] The Plaintiff issued a simple
summons for payment of an amount due and payable in respect of
certain services referred to as
“water, refuse, sanitation and
rates, rendered by the Plaintiff to the Defendant at the latter’s
special instance and
request . . . .”
[3] After due service of the summons on
the Defendant, a Notice of Intention to Defend was filed on 4
November 2014. The Plaintiff
served an application for summary
judgment on the attorneys for the Defendant on 25 November 2014.
[4] On 5 December 2014 the Defendant
filed (i) a Notice of Bar and (ii) a notice in terms of Rule 23(1).
Both these notices attempted
to attack the manner in which the
Plaintiff’s claim was set out in the summons. No opposing
affidavit accompanied these
notices.
[5] The application for summary
judgment was initially set down for hearing on 11 December 2014. On
that date the matter was postponed
to 29 January 2015 with the
Defendant to pay the wasted costs occasioned by the postponement.
[6] An affidavit opposing the
application for summary judgment was eventually filed on 22 January
2015. It was not accompanied
by a condonation application, despite
being out of time with more than a month.
[7] On 29 January 2015 the application
for summary judgment was postponed to 19 February 2015. This was as
a result of the late
filing of the opposing affidavit. The costs
occasioned by the postponement stood over for later adjudication.
Furthermore, the
Defendant’s notice in terms of Rule 23(1), as
well as the Notice of Bar, was set aside as irregular steps.
[8] The Plaintiff’s Heads of
Argument pertaining to the Summary Judgment application was filed in
terms of the practice of
this Division on 11 February 2015. On 13
February 2015 the Defendant filed its Heads of Argument, as well as a
supplementary opposing
affidavit. The supplementary affidavit
contained a request for condonation for the late filing of the
Defendant’s Opposing
Affidavit as well as a request for the
supplementary affidavit to be accepted by the Court. The
supplementary affidavit then went
further and referred to defences to
the summary judgment application not previously dealt with in the
Opposing Affidavit.
[9] The matter was then fully argued on
19 February 2015.
CONDONATION APPLICATION
[10] In terms of the rules of practice
of this division the Defendant’s opposing affidavit was to be
filed on or before 5
December 2014. Should the time periods of Rule
32 itself have been followed, the opposing affidavit was to be filed
by 9 December
2014. Instead it was only filed on 22 January 2015.
The Defendant did not file a substantive condonation application but
was
content with a few averments contained in the supplementary
affidavit. No explanation was ever provided as to why a proper and
substantive condonation application was not prepared.
[11] Mr Cilliers, arguing on behalf of
the Plaintiff, insisted that, as there was no proper condonation
application before court,
that in itself provides enough reason for
condonation to be denied. Ms Jacobs for the Defendant implored me to
accept the averments
contained in paragraph 2 of the supplementary
affidavit as an actual application for condonation, calling the lack
of a proper
application an oversight by the Defendant’s legal
representatives.
[12] The remedy available to a party
who is out of time with a procedural step lies in Rule 27(1):
“(1) In the absence of agreement
between the parties, the court may upon application on notice and on
good cause shown, make
an order extending or abridging any time
prescribed by these rules or by an order of court or fixed by an
order extending or abridging
any time for doing any act or taking any
step in connection with any proceedings of any nature whatsoever upon
such terms as to
it seems meet.”
[13] An application under Rule 27(1)
shall in the specific terms of the subrule be “upon application
on notice”. Such
an application entails formal motion
proceedings with a notice of motion supported by one or more
affidavits. Compare: Mahomed
v Mahomed
1999 (1) SA 1150
(ECD) at
1152 C.
[14] Ms Jacobs vehemently argued that
the prejudice to be suffered by the Defendant should summary judgment
be granted without allowing
the opposing affidavit and supplementary
opposing affidavit, is of such a serious nature that this in itself
tips the scale in
favour of the granting of condonation despite the
defects in form. Alleged prejudice weaved its way through every
argument presented
on behalf of the Defendant, especially with
reference to the alleged robust nature of summary judgment
proceedings.
[15] In the judgment of the Supreme
Court of Appeal in the case of Joob Joob Investments (Pty) Ltd v
Stocks Mavundla Zek Joint Venture
2009 (5) SA 1
(SCA) it was
suggested (at para 33) that perhaps the time had come to stop
describing summary judgment as a “drastic”
remedy. Navsa
JA enjoined defendants to rather concentrate on a proper application
of the rules relating to summary judgment.
[16] Ms Jacobs also opined during
argument that, should I not feel inclined to grant condonation, I
should grant a postponement
in order to allow the Defendant the
opportunity to place a proper application for condonation before the
court. I specifically
inquired whether the Defendant prefers to
request a postponement rather than argue the matter. I was assured
that the Defendant
wishes to argue the matter on the papers as they
stand and that the matter of a possible postponement was only
mentioned to cater
for the possibility that condonation should be
refused because of the lack of proper form. The Defendant of course
cannot both
eat its cake and have it.
[17] In this matter the application for
condonation, if it can be called that, is totally defective in form.
As such, there is
no condonation application before court. The
averments in the supplementary affidavit are not enough to turn the
attempt at condonation
into a proper application.
[18] Even if I was to show leniency
regarding the form in which the “application” for
condonation was presented to this
Court, the Defendant still needed
to make out a proper case for condonation. The Defendant failed to
make out a proper case for
condonation as will become clear from what
follows.
[19] First I find it necessary to deal
with the timing of the request for condonation. It was at a very
late stage that the attempt
to apply for condonation was even made.
It was apparently only done in reaction to the contents of the
Plaintiff’s Heads
of Argument where the very lack of a
condonation application was pointed out. The Defendant even admits
as much in paragraph 2.1
of the Supplementary Opposing Affidavit.
[20] It is trite law that an
application for condonation should be lodged without delay and as
soon as it is realized that there
has not been compliance with a time
period. See: Commissioner for Inland Revenue v Burger
1956 (4) SA
446
(A) at 449 G; Beira v Raphaely-Weiner and Others
[1997] ZASCA 59
;
1997 (4) SA 332
(SCA) at 337 D; Minister of Agriculture and Land Affairs v CJ Rance
2010 (4) SA 109
(SCA) at 118 A – B. A delay in applying for
condonation might in itself be sufficient reason to deny the request.
Any delay
in making the application should be fully explained. See:
Madinda v Minister of Safety and Security
[2008] ZASCA 34
;
2008 (4) SA 312
(SCA) at
323 E - F.
[21] Condonation of the non-observance
of the rules of court is not a mere formality. (See: Meintjies v H D
Combrinck (Edms) BPK
1961 (1) SA 262
(A) at 263 H – 264 B;
Salojee and Another NNO v Minister of Community Development
1965 (2)
SA 135
(A) at 138 E – F). The requirements for a successful
application for condonation are well-known, namely (i) a satisfactory
explanation for the delay and (ii) a bona fide defence against the
plaintiff’s claim. See in this regard Du Plooy v Anwes
Motors
(Edms) Bpk
1983 (4) SA 213
(O) at 216 H – 217 D. A further
requirement is often added, namely the question of prejudice. In
essence, a party applying
for condonation should show “good
cause”.
[22] In any application for condonation
the minimum requirement is that an applicant must furnish an
explanation of the default
in a manner which is sufficiently full to
enable the court to understand how it really came about. In Silber v
Ozen Wholesalers
(Pty) Ltd
1954 (2) SA 345
(A) at 353 A – H it
was stated thus:
“An allegation that is too bald
may for that reason carry little weight.”
[23] In the supplementary affidavit the
Defendant sets out its reasons for the late filing of firstly the
opposing affidavit. In
subparagraph 2.2 thereof it is alleged that:
“The Defendant received such
application during December 2014 when the offices were manned by
skeleton staff. The application
did unfortunately not receive the
treatment that it should have received since the recipients thereof
was [sic] not aware of the
urgency with which it had to be treated.”
[24] This paragraph lacks various
details such as when exactly the application was received from the
Defendant’s attorneys,
who the “recipients” in fact
were and why it took till 22 January 2015 for the situation to
receive attention. It
also does not explain what communication, if
any, there was between the Defendant’s attorneys and the
Defendant to deal with
the inappropriate time lapse. One would
expect a reasonable attorney to have indicated the importance of the
application at the
time that the papers were made available to
someone at the offices of the Defendant. Furthermore one would
expect a diligent attorney
to keep track of the time periods involved
and to follow up on the matter. The Defendant does not aver that the
attorneys were
in any way to blame for the delay and I have no reason
to suspect otherwise.
[25] Should the allegations be accepted
that during December the proper people were not available to deal
with the matter, it still
does not explain why the opposing affidavit
was only filed late in January. Surely the offices of the Defendant
were not “manned
by skeleton staff” for more than a
month.
[26] During argument Ms Jacobs
purposefully attempted to shift the blame to the Defendant’s
legal representatives, arguing
that because of the festive season,
the legal representatives may have failed to act as diligently as is
to be expected and that
their offices may have been closed. This
argument is of course not supported by the allegations contained in
the supplementary
affidavit. The attorneys themselves did not file
an affidavit confirming that this was indeed the situation. Also,
this argument
flies directly in the face of the clear wording of
subparagraph 2.2 of the supplementary affidavit that makes it clear
that it
was the employees of the Defendant who allegedly did not act
as diligently as was to be expected. During December the attorneys
were dealing with the matter, albeit by way of the inappropriate
filing of the notice of bar and the notice in terms of rule 23(1).
[27] It should not simply be assumed
that, where non-compliance was due to the neglect of the attorneys,
condonation will be granted.
In Saloojee & Another v Minister of
Community Development
1965 (2) SA 135
(AD) it was pointed out that
“There is a limit beyond which a litigant cannot escape the
results of his attorney’s
lack of diligence . . .” (at
141 C – D). See also: Colyn v Tiger Food Industries Ltd t/a
Meadow Feed Mills (Cape)
2003 (6) SA 1
(SCA) at 9 H.
[28] The Defendant has failed to
properly explain the reasons for the late filing of the opposing
affidavit and has not placed any
blame on his legal representatives.
The present case presents itself as an instance where sympathy for a
litigant must yield to
the more important principle that flagrant
disregard for the rules of court cannot be tolerated.
[29] It was argued on behalf of the
Defendant that, should the explanation for the late filing of the
opposing affidavit be found
lacking, condonation may still be granted
as the Defendant succeeded in showing that it has a bona fide defence
and also because
the Defendant will suffer prejudice should summary
judgment be granted without reference to the opposing and
supplementary affidavits.
Ms Jacobs went so far as to argue that it
is sufficient if the Defendant only succeeds with two of the three
requirements for
condonation. She was unable to provide me with any
case law to support this last submission.
[30] In order to satisfy the second
requirement for condonation, namely the existence of a bona fide
defence, the minimum that must
be shown is that the defence is not
patently unfounded and that it is based upon facts (which must be set
out in outline) which,
if proved, would constitute a defence.
[31] It was argued by Ms Jacobs that
the Defendant has a bona fide defence against the Plaintiff’s
claim. It was firstly
suggested that the Plaintiff’s claim is
not a liquidated amount in money. The reasons advanced for this
argument centre
firstly on the possibility that at least part of the
claim has prescribed. This is dealt with in the supplementary
affidavit in
the following tentative manner:
“The total amount claimed by the
Plaintiff may include such prescribed debt . . .”
[own emphasis]
[32] The Defendant further alleges that
it did not receive any accounts and can therefore not adjudicate
whether the amount claimed
is in fact correct. In the Opposing
Affidavit this is expressed in the following manner: “Respondent
was not furnished with
any accounts and no demand for the alleged
outstanding rates and taxes amounts.” And also: “. . .
the Defendant would
like to ascertain the veracity of the amounts
claimed during a trial”. The Defendant then goes further in
its supplementary
affidavit and state that “the Defendant would
like to ascertain the veracity of the amounts claimed during a
trial.”
The very manner in which the Defendant’s
allegations are worded suggest that the Defendant wishes to speculate
and go on
the proverbial fishing expedition.
[33] A bald denial of a plaintiff’s
claim or an averment of lack of knowledge does not satisfy the
requirement that a defendant
must fully disclose the nature and
grounds of his defence and the material facts relied upon therefore.
See: Herb Dyers (Pty)
Ltd v Mahomed
1965 (1) SA 31
(T); Van Zyl v
Wheeler
1964 (3) SA 758
(O) at 760; Gruhn v Pupkewitz & Sons
(Pty) Ltd
1973 (3) SA 49
(AD) at 58; Herbst v Solo Boumateriaal
1993
(1) SA 397
(T).
[34] The Defendant makes the vague
averment that it has never received any accounts from the Plaintiff
regarding any services rendered
to it by the Plaintiff. The
Defendant does not however aver that the Plaintiff did not render
services.
[35] Where a defendant wishes to oppose
an application for summary judgment by filing an affidavit to satisfy
the court that he
has a bona fide defence, such affidavit must
disclose fully the nature and grounds of the defence and the material
facts relied
upon therefore. See: Maharaj v Barclays National Bank
Ltd
1976 (1) SA 418
(A) at 425 G – 426 E.
“The word ‘fully’ ...
connotes in my view that, while the defendant need not deal
exhaustively with the facts
and the evidence relied upon to
substantiate them, he must at least disclose his defence and the
material upon which it is based
with sufficient particularity and
completeness to enable the Court to decide whether the affidavit
discloses a bona fide defence.”
[36] It is not sufficient for a
defendant to state that he or she has no knowledge of the allegations
in the plaintiff’s summons,
nor to state that the plaintiff’s
allegations must be subject to grave suspicion. See: Van Zyl v
Wheeler
1964 (3) SA 758
(O) at 760; Herb Dyers (Pty) Ltd v Mahomed
1965 (1) SA 31
(T) at 32. The same applies to a mere denial of the
correctness of the amount claimed. See: Jacobsen Van Den Berg SA
(Pty) Ltd
v Triton Yachting Supplies
1974 (2) SA 584
(O).
[37] With reference to a condonation
application relating to the late filing of a notice of appeal, it was
stated in Darries v Sheriff,
Magistrate’s Court, Wynberg and
Another
1998 (3) SA 34
(SCA) at 41 C – D that:
“...prospects of success is but
one of the factors relevant to the exercise of the Court’s
discretion, unless the cumulative
effect of the other relevant
factors in the case is such as to render the application for
condonation obviously unworthy of consideration.
Where
non-observance of the Rules has been flagrant and gross an
application for condonation should not be granted, whatever the
prospects of success might be.”
[38] It is not sufficient for a party
applying for condonation to show that condonation will not result in
prejudice to the other
party. An applicant for relief under Rule 27
must show good cause and the question of prejudice does not arise if
it is unable
to do so. See: Standard General Insurance Co Ltd v
Eversafe (Pty) Ltd
2000 (3) SA 87
(W) at 95 E – F. In the
present matter, the Defendant failed to show such good cause for the
granting of condonation. Any
prospects of success that the
Defendant’s defences may have, pale into insignificance when
seen against the background of
(i) the lack of a proper condonation
application, (ii) the lack of reasons for the late filing of the
opposing affidavit, and (iii)
the late attempt at applying for
condonation.
[39] The Respondent requires leave for
the supplementary affidavit to be accepted. In the Defendant’s
Heads of Argument reliance
was placed on the case of Bank of Lisbon v
Botes
1978 (4) SA 724
(WLD). It was not argued that the facts and
circumstances of the present case are similar to those in the Bank of
Lisbon case.
[40] A court seldom allows the filing
of supplementary opposing affidavits in summary judgment proceedings.
In Gani v Crescent
Finance Corporation (Pty) Ltd
1961 (1) SA 222
(W)
a request for a postponement to enable the filing of a supplementary
affidavit was granted because of the particular circumstances
of that
case, namely that the defendant’s affidavit was by mistake
technically defective. A court has a discretion in an
appropriate
case to allow an additional affidavit by a defendant in order to
improve a defective attempt to set out a defence to
the plaintiff’s
claim o to prove his bona fides. See in this regard: Juntgen a/a
Paul Juntgen Real Estate v Nottbusch
1989 (4) SA 490
(W). The facts
in these cases are not similar to the facts in the present matter.
[41] No explanation has been
forthcoming as to why the matters contained in the supplementary
affidavit were not dealt with in the
initial affidavit. The
Defendant contents with the following in subparagraph 2.5 of the
supplementary affidavit:
“The Honourable Court is also
requested to condone the filing of this supplementary affidavit . .
.”
[42] No grounds are set out as to why
the supplementary affidavit should be allowed. The Defendant should
at least have touched
upon the question as to why the defences were
not timeously included in an affidavit and what special circumstances
exist for the
court to grant an indulgence. See: Empire Fresh Meat
Supply (Pty) Ltd v Ilic
1980 (4) SA 23
(W); Juntgen t/a Paul Juntgen
Real Estate v Nottbusch
1989 (4) SA 490
(W).
[43] The Defendant did not even attempt
to make out a case for condonation for the late filing of the
supplementary affidavit.
Ms Jacobs was therefore constrained to
again use the argument of prejudice in an attempt to convince me to
allow the supplementary
affidavit. I already dealt with the issue of
prejudice, but I may add that the defences mentioned in the
supplementary affidavit
are such that, if the Defendant seriously
intended relying on them, they should, and easily could have, been
dealt with in the
initial opposing affidavit.
[44] In the light of all the defects in
the Defendant’s request for condonation I find that the
Defendant has failed to make
out a proper case for condonation for
the late filing of its opposition to the summary judgment
application. As such the Plaintiff’s
application for summary
judgment stands to be dealt with on an unopposed basis.
[45] The Defendant is to be held
responsible for any and all costs connected to the application for
condonation.
PLAINTIFF’S CLAIM
[46] The Plaintiff claims the costs of
services rendered to the Defendant since “2011 until the
present”. Summons was
served on the Defendant on 27 October
2014. Without the averments contained in the supplementary
affidavit, there is no mention
of prescription as a possible defence
(at least for part of the time period claimed for). In terms of
section 17(1) of the Prescription
Act, Act 68 of 1969, a court may
not of its own motion take notice of prescription.
[47] I am satisfied that the Plaintiff
duly complied with the requirements of Rule 32. The Plaintiff’s
claim appears to be
for a liquidated amount of money, namely an
amount that can be easily calculated or ascertained.
[48] As such, the Plaintiff is entitled
to summary judgment.
COSTS
[49] Mr Cilliers urged me to consider a
punitive cost order when granting summary judgment. This argument
was made in the light
of the manner in which the Defendant dealt with
the matter. I am satisfied that ordering the Defendant to be
responsible for the
costs of suit will suffice in the circumstances.
[50] It is necessary to deal with the
costs of the postponement on 29 January 2015 as it stood over for
later adjudication. Counsel
were ad idem that the Defendant should
pay the wasted costs occasioned by the postponement. The
postponement was the direct result
of the late filing of the Opposing
Affidavit. In his Heads of Argument Mr Cilliers conceded that such
costs should be on an unopposed
scale.
ORDER
1. The Defendant’s applications
for condonation of the late filing of the Opposing Affidavit and
Supplementary Opposing Affidavit
are dismissed with costs;
2. The Defendant is to pay the wasted
costs occasioned by the postponement of the matter on 29 January
2015, such costs to be on
an unopposed scale;
3. Summary judgement is granted in the
following terms:
3.1 Payment of the amount of R 428 785
– 32;
3.2 Interest a tempore morae on the
amount of R 428 785 – 32 at the rate of 9% per annum, from date
of summons to date of
payment;
3.3 Cost of suit.
G.J.M. WRIGHT, AJ
On behalf of applicant: Adv H.J.
Cilliers
Instructed by: Rossouws Attorneys
BLOEMFONTEIN
On behalf of respondent: Adv M
Jacobs
Instructed by:Moroka Attorneys
BLOEMFONTEIN