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[2014] ZAGPPHC 171
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Gijima Holdings (Pty) Ltd v Isiqina Property Holdings (Pty) Ltd (25008/2011) [2014] ZAGPPHC 171 (2 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 25008/2011
DATE:
2/4/2014
In
the matter between:
GIJIMA
HOLDINGS (PTY)
LTD
Applicant
and
ISIQINA
PROPERTY HOLDINGS (PTY)
LTD
Respondent
J U D G M E N T
AVVAKOUMIDES,
AJ
INTRODUCTION
AND SUMMARY OF ISSUES
1.
The
applicant is the defendant in the main action between the parties.
The respondent as plaintiff, instituted action against the
defendant
for payment of the sum of R3 308 405.12 being in respect of goods
sold and delivered by the plaintiff to the defendant
at the latter’s
instance and request. The applicant seeks an order for the upliftment
of a notice of bar in terms of rule
26.
2.
I
will refer herein to Gijima Holdings (Pty) Ltd as the applicant and
to Isiqina Property Holdings (Pty) Ltd as the respondent.
3.
The
respondent opposed the application for the upliftment of the bar and
launched an application for default judgment. The respondent
has also
set down for simultaneous hearing an application in terms of rule 30
to set aside the plea filed by the applicant as an
irregular step.
4.
The
timeline in this matter is alarming in that it would appear that both
litigants and/or their attorneys were not too perturbed
about the
pace of the litigation process as will more fully appear hereunder.
A simple summons was initially issued and served
on 11 May 2011. The
applicant filed an appearance to defend on an unknown date but this
notice has gone missing and neither party
was able to furnish me with
a copy thereof. It is common cause that the appearance was properly
served and filed. I must accept
that the appearance to defend was
filed within the period provided for in the summons. The latest that
the appearance would have
had to have been filed is the 25
th
of May 2011. I will for purposes of this judgment accept this date.
5.
In
response to the appearance to defend the respondent filed a
declaration together with a notice in terms of rule 28. The
declaration
was served at a post box there being no other serve
possible on the day. An affidavit filed by the clerk of the
respondent’s
attorneys shows that the declaration was served by
leaving it “
in
the Beeld post box
.”
6.
The
applicant did not apply for the setting aside of the service of such
declaration as an irregular step and I was advised at the
hearing by
Mr Strathern, who appeared for the applicant, that he would not be
taking any point on this aspect. Had the applicant
taken steps
against the improper service of the declaration it would probably
have saved everyone some time and unnecessary costs.
For
non-apparent reasons this did not happen and on 13 January 2012 the
amended pages were filed in respect of the amendment to
the simple
summons. The declaration incorporated the amendment.
7.
The
20 day period to file a plea to the declaration would have commenced
on Monday 16 January 2012 and after the
dies
non
period. The 20 day period to file the plea to the declaration was
thus 10 February 2012. On 3 May 2012, after no plea had been
filed,
the respondent’s attorneys filed a notice in terms of rule 26.
This notice was served upon the applicant’s local
attorneys of
record. Regard being had to the dies in this notice the plea should
have been filed by 10 May 2012.
8.
The
respondent argued that the applicant had been
ipso
facto
barred from filing a plea and would have had to apply to court for
the upliftment of the bar from 11 May 2012 onwards. Nothing
transpired until 12 June 2012 when the respondent filed an
application for default judgment as contemplated in rule 31 (5) (a).
This application was also served at the address of the applicant’s
local attorneys of record. In response thereto the
applicant’s
plea was filed on 19 June 2012. This was followed by a rule 30 notice
on 29 June 2012, incorporating a rule 23
notice dealing with
allegations that the plea was vague and embarrassing and/or did not
set out a defence and calling for the removal
of such complaint.
9.
What
followed is 3 letters, one from the applicant’s attorneys
calling for a copy of the rule 26 notice, the second in response
by
the respondent’s attorneys providing such notice and the
accompanying emails and the third, the gist of which was that
the
applicant’s attorneys advising the respondent’s attorneys
that they did not receive the notice in terms of rule
26 from their
local correspondent. It bears mentioning that there are some four
other cases between the same parties that have
the same facts and in
respect of which the respondent has followed the same route for
judgment against the applicant.
10.
On
20 July 2012 the respondent filed an application for judgment
together with the rule 30 application which included the exception
contained therein. The applicant, in response thereto and on 22
October 2012, filed its application for condonation for the late
filing of the plea, the upliftment of the bar and for leave to file a
plea to the declaration. The applicant tendered the costs
of the
application on the unopposed basis save that in the event of the
respondent opposing the application that such costs be
paid by the
respondent.
11.
The
respondent then filed its answering and replying affidavits
respectively to the two applications and on 11 January 2013 the
applicant filed its reply to the application for condonation.
THE
EXPLANATION BY THE APPLICANT’S ATTORNEY
12.
The
applicant’s attorney deposed to an affidavit wherein she
explained that she had not received the notice of bar from her
Pretoria correspondent despite the notice having been served upon
them. A search conducted on her computer server at her office
revealed that no such notice had been received on her computer from
her correspondent. When she received the application
for
default judgment in terms of rule 31 (5) (a) she did not pay proper
attention thereto and her attention was aimed at the 5
day period
contained in paragraph 2 thereof. She incorrectly assumed that this
document was in fact the notice in terms of rule
26. She
reacted thereto by instructing junior counsel to draft a plea which
plea was then filed after being transmitted to
Pretoria and signed by
the local attorney.
13.
The
respondent’s argument is based largely, if not solely, on the
allegation that there is no good cause shown for condonation
if
regard is had to the time line and the lack of a proper explanation
by the applicant’s attorney. Erasmus Superior Court
Practice
B1-171 gives the following commentary on the expression “
on
good cause shown
”:
“ …
subrule
requires ‘good cause’ to be shown, and this gives the
court a wide discretion. The courts have consistently
refrained from
attempting to formulate an exhaustive definition of what constitutes
‘good cause’, because to do so
would hamper unnecessarily
the exercise of the discretion
.”
It must follow that the court’s discretion must be exercised
after a proper consideration of all the
relevant circumstances.
THE
LAW AND CONSIDERATION OF FACTS
14.
I
was referred to several cases wherein what is expected of a person
who is required to show good cause. In Colyn v Tiger Food Industries
Limited t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
SCA at para 11 it
was held that the requirements are:
14.1
Giving
a reasonable and acceptable explanation for the default.
14.2
Showing
that the party seeking the indulgence is acting
bona
fide
;
and
14.3
Showing
that the party seeking the indulgence has a
bona
fide
defence which
prima
facie
has some prospect of success.
15.
The
respondent submitted that the applicant’s attorney failed to
give a reasonable and acceptable explanation, neither is
she acting
bona
fide
and with reference to the plea there is no
bona
fide
defence which prima facie has some prospect of success.
16.
Although
the applicant’s attorney can and ought to be severely
criticized for her lack diligence and failure to give proper
attention to documents in her possession, coupled with the fact that
she obviously had failed to pay attention to the particular
file,
which is linked to other files in her office, I am inclined to accept
her explanation, in the absence of any contradictory
evidence. She
did not appreciate that the document in her possession was an
application for default judgment but thought it was
a notice of bar.
As negligent as her conduct may be shown to be, to rule otherwise
would be tantamount to accepting that she is
lying under oath.
If I accept that she is
bona
fide
in seeking the indulgence (despite her conduct falling well short of
that expected of the reasonable attorney) then I must accept
that her
explanation is reasonable and acceptable under the circumstances that
she describes.
17.
What
is left for me to decide is whether the applicant has a
bona
fide
defence which
prima
facie
has some prospect of success.
18.
The
basis upon which the applicant contends that it has
bona
fide
defence is based upon two contentions, namely that the respondent
ceded its claim against the applicant to a company called Sizwe
Cabling and that the respondent’s claim has prescribed.
19.
The
respondent contends that the applicant instituted action against
Sizwe Cabling (“Sizwe”) in this court for payment
in
respect of services rendered by the applicant to Sizwe. The
counterclaim against the applicant by Sizwe was based upon an
agreement
of cession in terms of which a number of associated
companies of the Sizwe Group ceded to Sizwe the claims of such
companies against
the applicant. The applicant thus argued that in
terms of such cession the respondent ceded to Sizwe its claim against
the applicant,
and consequently has no
locus
standi
.
20.
It
was conceded by the respondent that the cession was not in accordance
with the continuing common intention of the respondent
and Sizwe and
that the cession falls to be rectified. The respondent argued that
the applicant is not able to dispute the respondent’s
evidence
relating to the claims ceded and that aside from denying the
respondent’s
locus
standi
on the basis of the cession, the applicant has not denied its
liability for the amounts claimed.
21.
The
second leg of the applicant’s defence lies in the contention
that the claims have prescribed. Both parties made submissions
about
the dates upon which the claims would have arisen and when the debts
became due for payment. In my view I am not obliged
to make a
finding on the question of prescription. Clearly there are some
issues that may require oral evidence to be presented
to the court to
determine the due dates, of amounts that may be found to be due.
22.
Moreover,
the other cases that are linked to this case would have to be
considered on the same basis and to distinguish this case
from the
others and allow another court to adjudicate perhaps differently
between cases that are the same in causes of action and
between the
same parties, would, in my view interfere with the principles of
justice.
COSTS
23.
This
leaves only the question of costs. The applicant tendered the costs
on the unopposed basis for the application for condonation
and for
the upliftment of the bar. The applicant submitted that I should
order the respondent to pay the costs relating to all
the
applications before me because the opposition was unreasonable. The
respondent submitted that if I accept that the opposition
was
reasonable I should order the applicant to pay the costs of all the
applications. Neither party asked for a punitive order
as to costs.
The respondent did not ask for costs
de
boniis propriis
against the applicant’s attorney. Both parties submitted that
the costs of two counsel should be allowed. The applicant’s
junior counsel was present at court on the day this case should have
been heard and then became unavailable on the actual date
of hearing.
24.
In
Erasmus Superior Court Practice at E12-6A-7 and the cases cited
therein, it is stated that general rule is that where a successful
application is made for the grant of an indulgence the costs do not
follow the event. Furthermore, in such cases it is the applicant
who
should pay for all the costs as can reasonably be said to be wasted
because of the application. The justification for an order
that an
applicant is to pay the respondent’s costs of opposition is
that the respondent ought not to be put in a position
where he
opposes the granting of an indulgence at his peril, in the sense
that, if the amendment is granted, he cannot recover
his costs of
opposition, or may even have to pay such costs as are occasioned by
his opposition, despite the fact that such opposition
is reasonable
in the circumstances. In these circumstances it is my view that
the opposition was not unreasonable. Consequently
the applicant ought
to pay the costs of the opposition of the application.
CONCLUSION
25.
In
the circumstances I make the following order:
25.1
The application for condonation for the late filing of the plea is
granted and the notice of bar is uplifted.
25.2
The respondent’s application for default judgment is refused.
25.3
The respondent’s applications in terms of rules 30 and 23 are
refused.
25.4
The applicant is afforded a period of 10 days to file its plea to the
respondent’s declaration.
26.5
The applicant is ordered to pay the costs of the respondent on the
scale as between party and party, in respect
of the application for
condonation and upliftment of the bar, the opposition thereof, the
costs of the default judgment application
and the costs of the rule
30 and rule 23 applications, which costs shall include the costs
consequent upon the employment of two
counsel.
________________________________
AVVAKOUMIDES, AJ
JUDGE
OF THE HIGH COURT
Representation for the
Applicant:
Counsel
Adv: P Strathern
Adv: C
Cothill
Instructed
by
Brain Kahn Inc.
Representation for
Respondent:
Counsel
Adv: JJ Brett SC
Adv: N
Segal
Instructed
by:
Gary Rachbuch & Associates