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[2014] ZAFSHC 41
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Gous Vertue & Associates and Another v GMA Finance CC (A6/2013) [2014] ZAFSHC 41 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : A6/2013
In
the matter between:-
GOUS
VERTUE & ASSOCIATES
…...........................................................
First Applicant
C
KARAMANOLIS &
ASSOCIATES
.....................................................
Second Applicant
and
GMA
FINANCE
CC
...........................................................................................
Respondent
CORAM:
RAMPAI, J
et
MOLOI,
J
ENROLLED
FOR:
17 MARCH 2014
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
20 MARCH 2014
[1]
This is an application for leave to appeal. The judgment under
attack was delivered on 13 June 2013. I concurred in the
judgment
written by Zietsman AJ. The respondent opposes the application.
[2]
Besides the aforesaid application, the first and the second
applicants also apply for condonation for the late filing of their
application for leave to appeal. The respondent opposes the
second application as well. By agreement the written instead
of oral
argument was used to adjudicate the matter.
[3]
The first applicant was the third respondent and the second applicant
the second respondent during the hearing of the appeal.
The
then first respondent, Ms Elsie Leonard, is not before us in these
current proceedings. The present respondent was the
appellant.
I shall refer to the applicants as the defendants and the respondent
as the plaintiff in these proceedings.
[4]
In the summons the plaintiff alleged that the Bloemfontein District
Court had jurisdiction to hear the action. However the plaintiff
did
not make specific averments in its particulars of claim in support of
that bold allegation.
[5]
The first defendant, Ms Elsie Leonard, was the principal debtor of
the plaintiff. She was originally indebted to the plaintiff
in
the capital amount of R50 000.00 in respect of money lent and
advanced in Kimberley on 17 November 2008. She resided
at 36
Broadway Street, Beaconsfield, Kimberley in the Northern Cape.
[6]
The second defendant was C. Karamanolis & Associates, a law-firm
of attorneys practising as such at 1A-C Rooper Street,
Kimberley in
the Northern Cape. The first defendant, seemingly worked as an
estate agent and chose the second defendant’s
address as her
domicilium citandi et executandi
-
vide
plaintiff’s
annexure “a”.
[7]
The third defendant was Gous Vertue & Associates, a law-firm of
attorneys practising as such at 15 President Steyn Avenue,
Westdene,
Bloemfontein in the Free State.
[8]
The second and the third defendants, in other words, the two
law-firms, specially pleaded that the Bloemfontein District Court
had
no jurisdiction over the legal
persona
of either of them. They alleged that the whole cause of action,
as contemplated in section 28(1)(d) of the Magistrates Court
Act 32
of 1944, did not arise out of the jurisdiction of the Bloemfontein
District Court.
[9]
The plaintiff reacted to the special plea of the second and the third
defendants in two ways. Firstly the plaintiff replicated.
In its replication it averred that the Bloemfontein District Court
had jurisdiction to entertain the matter on the grounds that:
the
third defendant carried on business in Bloemfontein;
the
principal business of the third defendant was conducted from the
magisterial area of the court;
the
third defendant was the proprietor of the second defendant;
the
second defendant, who carried on business in Kimberley beyond the
magisterial area of the Bloemfontein District Court, constituted
a
branch office of the third defendant;
the
second defendant’s general administration and operational
superintendence were conducted together with those of the
third
defendant from the principal place of the third defendant in
Bloemfontein.
[10]
In the premise the plaintiff replicatively pleaded that the
Bloemfontein District Court had jurisdiction over the second
defendant
as well, seeing that the second defendant was operationally
a mere satellite of the third defendant. The replication was
filed on 13 November 2011.
[11]
In the second place the plaintiff reacted to the special plea by
applying for an amendment of its particulars of claim. The
plaintiff
filed notice of the intended amendment on 15 March 2012. The
essence of the averments, which the plaintiff sought
to introduce in
the particulars of claim, was substantially the same as that of the
averments introduced by way of the replication.
They concerned
the question of jurisdiction.
[12]
The defendants objected to the plaintiff’s proposed amendment.
Although the defendants opposed the plaintiff’s
application,
their grounds of opposition or objection were not explicitly spelt
out in the opposing affidavit, which was deposed
to by their
attorney, Mr C.L.H. Vertue. He merely stated that the
opposition was founded on a legal argument, which would
be orally
presented in court in due course.
[13]
The application in terms of rule 55A(4) Magistrates Court Rules, was
initially enrolled for argument on Thursday, 3 May 2012.
On 5
September 2012 the district magistrate court dismissed the
application, but reserved the costs. Lamentably, the
ex tempore
judgment of the magistrate did not form part of the appeal
record.
[14]
On 1 October 2012 and before the proceedings were terminated, the
plaintiff filed notice of appeal. Among others, one of the
grounds of
its appeal was that the learned district magistrate erred in finding
that the proposed amendment would oust the jurisdiction
of the
Bloemfontein District Court. If that was indeed the finding of
the district magistrate, it was patently and logically
unsound.
Therefore it was plainly incorrect. The real purpose of the proposed
amendment was the very opposite of such a finding.
The amendment was
intended to confer and not to oust the jurisdiction of the
Bloemfontein District Court.
[15]
The question before us on appeal was whether the district court order
was appealable or not. On behalf of the applicant,
in other
words the plaintiff, it was submitted that the order effectively
terminated the proceedings in the court below.
Because it did,
so the argument went, it immediately became appealable. On behalf of
the respondent, in other words the defendants,
it was submitted that
the order was not appealable, because the matter was still pending
before the district magistrate court at
the time the notice of appeal
was filed. Counsel for the defendant also contended that since
the order had not finally disposed
of a substantial part of the
issue, it was not appealable. The submission was that the order and
the application from which it
stemmed were interlocutory in nature.
[16]
Zietsman AJ found for the appellant. I concurred. The reasons were
given in the judgment. We abide by it.
[17]
The respondents were aggrieved, hence the current application for
leave to appeal. The notice of their intention to appeal
was
filed on 27 August 2013. The main ground of appeal was that we
erred in finding that the midstream order granted by the
district
magistrate was appealable.
[18]
Since Zietsman AJ was no longer acting as a judge, I invited Moloi J
to consider the defendants’ application for leave
to appeal, as
well as the condonation application, together with me. We
decided to deal with the latter first.
[19]
The judgment was delivered on 13 June 2013, as I have already
indicated. As is the custom the attorneys were telephonically
notified in advance that the judgment would be delivered on that
particular day. Obviously nobody from the defendants’
office attended to note the court order, let alone to obtain a copy
of the judgment.
[20]
The deponent of the defendants basically advanced a few reasons as to
why their application for leave to appeal was belatedly
filed on 27
August 2013, some six weeks out of time.
[21] At paragraph
9.2 Mr Vertue stated:
“
Judgment
was delivered on 13 June in the Motion Court. I was not present
in court on that day as I was attending to matters
outside of
Bloemfontein.”
He
did not say precisely when he left and returned to his office. Where
he was only he knew. A prudent attorney would have
sent a clerk
to note such an important order. He did nothing. He did not
precisely say when he received the order, let alone
the full text of
the judgment.
[22]
At paragraph 9.6 Mr Vertue stated:
“
Mr
Gous was at that stage hunting in Vivo, and could not be contacted at
all. Out of necessity, I had to defer the decision
to apply for
leave to appeal at that stage until such time as we could discuss the
matter properly.”
Precisely
where his partner, Mr Gous, was hunting, he did not say. When
his partner left Bloemfontein, was not disclosed.
Although his
partner returned from a hunting spree on 10 July 2013, it took the
two partners five more days to discuss an urgent
matter. By
then thirty two days had gone by since the critical date on which the
appeal judgment was delivered. All
these acts of omission
created the impression that they did not regard the outcome of the
appeal as an important matter.
[23]
They then decided to obtain legal opinion on the prospects of
success. We have no idea as to when they approached counsel
for
an opinion. What we do know, is that the unnamed counsel wasted
no time. He immediately advised then that they had some
reasonable
prospects of success. The advice notwithstanding, they, out of
abundance for caution, approached a senior counsel
for a second
opinion.
[24]
Again it appeared nowhere in the supporting affidavit as to precisely
when the unidentified senior counsel was briefed.
We were given
to understand that the senior and junior counsels discussed the
matter on 16 August 2013, some 64 days since the
judgment was
delivered. Four more days went by. No explanation was
given. Four more days later the senior counsel
confirmed the
earlier opinion of a junior counsel. On 22 August 2013 they had
consultation with the junior counsel.
They then provided him
with the reasons for the delay. Four more days went by again.
The condonation application was
then drafted and filed on 27 August
2013, some 75 days since the appeal judgment.
[25]
During all that inordinate delay, not a single attempt was made to
communicate with the opposite party, at least, in order
to ask for
indulgence, as is the custom among attorneys. Meanwhile, their
opponent had gone to the trouble of drawing up
its bill of costs and
disbursement for taxation. Needless to say that those
unnecessary steps would probably have been avoided
if only the
defendants had courteously intimated to the plaintiff that they
intended appealing against the judgment. The
drawing of the
bill was simply occasioned by the remissness and carelessness of the
defendants. It must be borne in mind
that the defendants are
not lay litigants. They are lawyers. They know or ought to know
the rules of engagement. They must
have known that their neglect to
take appropriate steps in accordance with the rules would have
adverse consequences. Their
actions tend to indicate that they
were reckless as to whether such consequences ensued or not.
[26]
It appeared to me that the defendants never had any serious and
honest intention to appeal or to apply for leave to appeal.
I
get the impression that it was the service of the notice of taxation
of the plaintiffs’ bill of costs which precipitated
their
belated application. Their affidavit in support of the condonation
application was fraught with vagueness, inexcusable remissness
and
pathetic acts of neglect.
[27]
At paragraph 8 of his affidavit, Mr C.L.H. Vertue clearly appreciated
that the defendants had shown no good cause to justify
condonation of
their long delay. He said:
“
I
endeavour to set out the reasons for the delay below, and for insofar
as the court may consider this to be tenuous; heads of argument
will
be filed on the applicants’ behalf before the hearing of the
matter in relation to the merits. I pray that those
arguments
raised be incorporated herein, so that they may compensate for a
belief that the delay has not been adequately explained.”
[28]
At paragraph 1.3 of their heads of argument the following was stated
by their counsel:
“
The
respondent has also required the filing of a condonation application
by the applicants in that the notice of intention to seek
leave to
appeal was filed belatedly. The application for condonation is
vehemently opposed. It will be dealt with in
the conclusion of
these heads.”
[29]
At paragraph 7.6 Mr Grobler, counsel for the applicants, in other
words the defendants, revisited the onerous task, imposed
on him by
Mr Vertue. He tersely commented as follows about the
condonation application:
“
It
is submitted that a proper case is made out for condonation. The
court is asked for leave to appeal to the Full Bench of this
court,
the costs of these proceedings to be costs in the proposed appeal.”
This
terse comment in no way augmented the acute deficiencies of the
defendants’ explanation. There was virtually nothing
in the
defendants’ heads of argument to compensate the material
inadequacies of their explanation for the delay. Their
reasons
for their delay were indeed very tenuous. This much their deponent
realised. The material defects were not cured
by the promised
legal argument as he had hoped.
[30]
In my view no good cause has been shown to have the defendants’
six week delay condoned. To make matters worse, the defendants’
deponent, Mr Vertue, had the audacity to be prescriptive to us as
judges. He wrote:
“
The
respondent has not and cannot be prejudiced by the late filing of
this application for leave to appeal.
The interest of justice moreover dictates that the issue be dealt
with decisively between the parties and given especially that
the
learned Judges had ordered the applicants to pay the costs associated
with the appeal. The cost account has since been served
upon the
applicants for taxation and amount to approximately R100 000.00
which amount is almost double the claimed amount
in the main
proceedings.”
[31]
It has been said, on more than one occasion, that a condonation
application should not be regarded as a mere formality which
is there
for the free asking –
Reeders
v Jacobsz
1942
AD 395
at 396;
Estate
Woolf v Johns
1968
(4) SA 492
(A) at 497B – F;
Uitenhage
TLC v SARS
2004
(1) SA 292
(SCA) at 297 H – J.
[32]
It is my considered opinion that if we were to condone the
defendants’ delay, their unsatisfactory explanation
notwithstanding,
then our decision would not have been compatible
with proper exercise of judicial discretion –
Melane
v Santam Insurance Co Ltd
1962 (4)
SA 531
(A). I would, therefore, be inclined to refuse to have
the delay condoned.
[33]
In view of the aforesaid conclusion, it follows, as a matter of
logic, that the defendants’ application for leave to
appeal
cannot be considered. It has to be struck off. No proper
case has been made out in the condonation application
to enable us to
consider their application for leave to appeal.
It
follows, therefore, that the application for leave to appeal falls to
be struck off with the effect that the judgment appealed
against
remains effective -
S v Senkhane
2011 (2) SACR 493
(SCA).
[34]
There remains one aspect to comment about. It is procedural in
nature. The two defendants applied for leave to
appeal to the
full bench of this division. The court whose appeal judgment
aggrieved the defendants consisted of two judges
as earlier pointed
out. Such two member appeal bench constituted and represented a
full bench. Procedurally no appeal
lies from the appeal
decision of a bench of two to a bench of three in the same division.
[35]
Accordingly I propose the following order:
35.1 The application
of the defendants for condonation is dismissed with costs.
35.2 The application
of the defendants for leave to appeal is thus struck off the roll
with costs.
M.
H. RAMPAI, J
I
concur and it is so ordered.
K.J.
MOLOI, J
On
behalf of defendant: Adv S. Grobler
Instructed
by:
Gous
Vertue & Associates
BLOEMFONTEIN
On
behalf of respondent: Adv N.F. de Jager
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN