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[2013] ZAGPPHC 164
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BP Atlas Road and Another v Azitex CC and Others (55926/12) [2013] ZAGPPHC 164 (10 June 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 55926/12
DATE:
2013 – 06-10
BP
ATLAS ROAD; trading name of
ALLADIN
SERVICE STATION
CC
….............................................................
FIRST
APPLICANT
ROOKSANA
AND RASHID SOOBRAYAN
..................................
JOINT
SECOND APPLICANT
V
AZITEX
CC Reg No.
2010/153454/23
.....................................................
FIRST
RESPONDENT
EDOPAX
CC Reg No. 2010/153457/23
.......................
ALTERNATIVE
FIRST RESPONDENT
STAND
13 EASTWOOD ROAD DUNKELD (PTY) LTD
Reg
No.
2000/003022/07
......................................................................
SECOND
RESPONDENT
ENGEN
PETROLEUM LIMITED
Reg
No.
1989/03754/06
.............................................................................
THIRD RESPONDENT
THE
MEC; DEPARTMENT OF AGRICULTURE,
CONSERVATION
AND ENVIRONMENT;
GAUTENG
PROVINCIAL DEPARTMENT
...........................................
FOURTH RESPONDENT
EKURHULENI
METROPOLITAN MUNICIPALITY
.....................................
FIFTH
RESPONDENT
THE
CONTROLLER OF PETROLEUM PRODUCTS
.............................
SIXTH
RESPONDENT
THE
MINISTER; NATIONAL DEPAERTMENT OF
MINERALS
AND
ENERGY
…..............................................................
SEVENTH
RESPONDENT
THE
MINISTER; NATIONAL DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS AND TOURISM
........................................
EIGHTH
RESPONDENT
JUDGMENT:
RESCISSION APPLICATION
MABUSE
J:
1.
This is an application for rescission of an order of court made on 28
January 2013 by this court on the ground that such order
was granted
in the absence of Applicants or their counsel or attorney and on the
further ground that it was erroneously granted.
On the said date the
court made the following order:
1)
An amount of R200 000.00 be paid into the Applicants' Attorney’s
Trust Account, as evidenced from Annexure A ’ hereto,
(in the
application for security) is to be paid into the 1st and 2nd
Respondents Attorneys Trust Account (Hirshowitz Flionis Attorneys,
account no: 1950427323, Branch code 195005, Nedbank Braamfontein),
subject to 3 below pending the final determination of the Main
Application launched out of this Honourable Court under the
abovementioned case number;
2)
Such amount referred to in 1 above is to be retained in Hirshowitz
Flionis Attorneys' Trust Account by consent and without any
admission
of liability, subject to 3 below as security for any costs order that
the First and/or Second Respondents may obtain
against the
Applicants;
3)
Any costs orders obtained by the above named First and or Second
Respondents may be satisfied, by a payment of same from the
aforementioned amount of R200 000.00,
4)
The costs of the Application for Security for Costs are reserved for
determination at the hearing of the main Application launched
under
the abovementioned case number".
2.
This application for rescission is brought by one Joseph Murray
Kotze (“Kotze”), the Applicants’ attorneys
who has
for that purpose provided a founding affidavit. He applicant has, in
the application, not seen it fit to describe the parties.
In the
notice of motion and founding affidavit the respondents are merely
referred to as Azitex CC and Six Others.
3.
The Applicant brings this application for rescission of the order of
the said date in terms of the provisions of rules 42 of
the Uniform
Rules of Court by reason of the fact that the said order was, in its
view, granted in its absence and furthermore that
it had been
erroneously granted after the Court had been misled and misinformed.
The said rule provides in sub-rule (1) that:
“
The
court may, in addition to any other powers that it may have, mero
motu or upon the application of any party affected, rescind
or vary -
1(a) an order or judgment erroneously sought or erroneously granted
in the absence of any party affected thereby."
In
paragraph 5 of the application for rescission the said Kotze states
that:
“
It
will be seen that the order is given as a consent” order. There
is no possibility that such a “consent" existed
or could
have been shown to the honourable court. It stands to reason
therefore that the honourable judge was deceived or mislead
and that
the order was granted in error. It is also dear from the fact that
the honourable judge was deliberately misled and misinformed."
4.
This application for rescission is opposed by the First and Second
Respondents who, apart from doing so on the merits, have also
raised
three points in limine. The First and Second Respondents contend that
the applicants have failed to adequately join the
required parties to
the application in terms of Rule 42(1) of the Uniform Rules of Court.
In the second point in limine the first
and second respondents
contend that although the Applicants have asked for a special costs
order against the First and Second Respondents
as well as the
attorneys firm Hirshowitz Fiionis Attorneys, jointly and severally
the one paying and the other to be absolved,
they have not, in their
application, described the second respondent, having made reference
only to six others. The third and last
point in limine raised by the
First and Second Respondents is that the deponent to the founding
affidavit in the application for
rescission has failed to prove that
he is authorised to make this application. On that basis they
contended the deponent has no
locus standi\q bring this application.
5.
I set out the history of this application for rescission as follows.
The applicants in the application for rescission are the
applicants
in the Main Application. The Main Application has also been issued
under the same case number 55926/2012. It was issued
by the Registrar
of this court on 16 October 2012. It was on the urgent roll of this
court on 23 October 2012 on which date it
was struck from the roll
due to lack of urgency.
6.
On 19 October 2012 the First and Second Respondents demanded security
for their costs in terms of the provisions of Rule 47(1)
of the
Uniform Rules of Court. This notice in terms of Rule 47(1) was
delivered on the heels of the Applicants’ urgent application.
There was no positive response to the said demand from the
Applicants. The First and Second Respondents then delivered another
application in terms of Rule 47(1) for security on the applicants on
22 November 2012. Again there was no response from the applicants
to
the said notice. According to the evidence of Mr Carl Thomas Nord who
deposed to the founding affidavit on behalf of the respondent
in the
application for security:
“
the
Applicants' Counsel made certain disparaging remarks in an email to
his attorney which was deliberately sent to Mr Flionis,
the First and
Second Respondents' attorney,....A copy of the relevant email was
attached to the said application. Although I will
not read it, I have
however taken note of the attitude of the Applicants' legal team and
the contempt and disdain in which they
treated the other side. Such
conduct, in my view, should at all times be discouraged. Members of
this Court are obliged, in my
view, to accord each other at least
some modicum of respect and not insinuate that their colleagues are
obtuse.
7.
On 10 December 2012 a notice of set down of the application for
security for costs was served by the First and Second Respondents’
attorneys on the Applicants. The date of set down for the said
application was 17 January 2013. On 17 January 2013 the applicants’
counsel appeared in the unopposed motion court to oppose the security
costs application without any answering affidavit. He demanded
that
the matter be removed from the roll. The application for security was
consequently postponed to 18 January 2013 before Bertelsmann
J.
8.
On 18 January 2013 the matter was heard by the said Bertelsmann J. On
this occasion there was a new counsel for the applicants.
Counsel for
the First and Second Respondents argued the matter and made his
submissions. The Applicants’ new counsel then
requested the
court to grant him an indulgence in order to enable him to supplement
his oral submissions with written submissions
by way of an opposing
affidavit. Bertelsmann J, was prepared to grant the necessary
indulgence and indeed did so. In addition he
directed the matter to
stand down until 28 January 2013 and ordered the Applicants to file
their opposing papers by 25 January
2013. At the same time the
Applicants were ordered to pay the costs.
9.
On 21 January 2013 the Applicants’ attorneys addressed a letter
to the first and second respondents' attorneys in which
the
Applicants undertook to file security. The said letter stated, inter
alia, as follows:
“
1.
We hereby confirm, subject to what is set out further below that we
hold sequestered in trust in the amount of R200 000.00, as
security
for any cost award, after the date hereof, that your dient(s) might
obtain in pursuit of case number 55926/2012 in the
North Gauteng High
Court.
2.
This security is given without the admission of any liability on our
client's part to put up security and solely for the comfort
for your
clients, pursuant to their demands and the application and to avoid
any claims by your clients to delays in the hearing
of the main
application in the week of 04 February 2013.
3.
The pursuit by our clients of further opposition to your application
for security is accordingly, for our clients, academic but
you are
free to persist therewith.
4.
On advice of our principal advocate, we will not be filing any
further papers, we will abide by the papers as they stand and
will be
filing an Appeal against the order of 18 January 2013, of the
Honourable Mr Justice Bertelsmann.
5.
Attached you will find proof of payment to our trust account of the
aforesaid R200,000.00 by your clients."
10.
The security amount that had been demanded was tendered by the
Applicants' attorneys to be held in their own trust accounts.
In the
said letter the Applicants’ attorneys also gave an indication,
as it is clear from paragraph 4 of thereof, that they
wanted to
appeal against the order of Bertelsmann J: which he made on 18
January 2013 and furthermore that they would not make
use of the
indulgence of the Court to file a further answering affidavit in
support of its submissions and opposition to the application
for
security.
11.
On 22 January 2013 the First and Second Respondents’ attorneys
addressed a letter to the Applicants' attorneys in which
they
accepted the offer to pay security and indicated that a draft order
should be prepared to provide that the agreed amount of
security be
paid into the Applicants’ trust account. Attached to the said
letter was copy of a draft order which they had
proposed should by
consent be confirmed by the Court. In the said letter the First and
Second Respondents’ attorneys had
stated, about the draft
order, that “Draft order which our clients have consented to
being made an order of court on the
4th February 2013”. On 23
January 2013 the Applicants rejected the said proposition. Instead
they demanded that the security
application be removed from the roll.
12.
On 28 January 2013 the Applicants deliberately took a decision not to
appear before Bertelsmann J. Mr. RG Bowles, who appeared
for the
First and Second Respondents on 28 January 2013 before Bertelsmann J,
noted with regret that there was no appearance for
the Applicants. He
also informed the Court that there was an exchange of correspondence
between his instructing attorneys and the
then Respondents' attorneys
and also referred the Court to the letter of 21 January 2013. He
informed the court, among others,
as follows:
“
On
21 January - that is the Monday after we were in court the previous
Friday - more specially the 18th of January, the Monday of
21st we
received a tetter from the respondents' attorneys of record
indicating that he held an amount of R200 000.00 in their trust
account for purposes of our security and that they attached thereto a
certificate of that amount held in their trust. They have
also
indicated to us that they will not be filing anymore papers in this
regard and they will abide by this application. If / may
read to your
lordship notice 3 it says:"
13.
After he had listened to the submissions made by Mr. RG Bowels,
Bertelsmann J, proceeded to deliver judgment in the above matter.
He
indicated in his judgment that the respondents in that matter had
been granted the opportunity to file the papers in opposition
to the
application for security for costs. He also indicated that there were
specific time frames laid by which affidavits in opposition
to that
application for security for costs ought to have been filed and a
potential reply thereafter but regrettably there was
no answering
affidavit forthcoming. He referred furthermore to the correspondence
that had been exchanged and in particular the
letter of 21 January
2013. In his consideration of the matter he was opposed to the fact
that security could be held in trust by
the attorneys or the company
against whom the order was sought. He stated as follows:
“
In
further correspondence the point was made on behalf of the applicants
in the principal application that it would be quite sufficient
to
hold the amount of R200 000.00 in the attorneys ’ trust account
for purposes of the furnishing of security. That submission
cannot be
entertained. It is in the very essence of the provision of security
that monies made available are provided by way of
a bond or a bank
guarantee or cash paid into an account to which the payee does not
have access and over which the party furnishing
the security has
neither access nor does it exercise control thereover."
14.
The order that the court had made on 28 January 2013 was subsequently
corrected by Bertelsmann J on 31 January 2013. (See p.
91).
15.
It is clear that up to 18 January 2013 the applicants had taken part
in these proceedings and it is also clear that the applicant
made a
tender of the costs in this matter. That, in my view, is indicative
of the fact that the applicants were always prepared
to tender
security for costs in this matter but only in the manner that pleased
them or their legal team and in the process exhibiting
an
unprofessional and undesirable proclivity to superimpose their wishes
in a manner that would have eroded the Court’s discretion.
The
applicants have not furnished any reasons why they failed to appear
at Court on 28 January 2013 nor have they furnished any
reason why
they failed, as the Court had directed, to file their answering
affidavit.
16.
The Applicants’ are clearly disgruntled by the order of the
court that the said amount be held in trust by the Respondents’
attorneys. In my view the court was correct in granting the order
that it did on 28 January 2013.
17.
I do not understand why little dust has gathered around the word
"consent”.
Having
regard to the contents of the third paragraph of the Applicants’
letter dated 21 January 2013. I must presume that
dissatisfaction
with regard to the use of that word is directed against the
impression that the Applicants had agreed to the amount
of R200
000.00 being kept in the Respondents' attorneys' trust account. This
is clear from paragraph 5.4 of the replying affidavit
where in the
last sentence thereof it is stated that:
“
No
court has the right to subject the security offered by one party to
the whims of the parties ’ adversary..."
In
my view nothing turns on this word and for that reasons I accept that
the use of the word, as counsel for the Respondent had
aptly put it
in his heads, was just unfortunate. It is clear, however, that in
principle the applicants had demonstrated, in my
view, an unequivocal
preparedness to provide security in the amount of R200 000.00.
18.
As for the Applicants’ view that the amount of R200 000.00
should not be kept in the trust books of their adversary,
I will also
not approve of it being kept in the Applicants’ trust books.
Unless the parties come with an alternative solution
to this problem,
especially where this amount should be kept. I would not, if I were
asked to approve the manner put forward by
the applicants, approve of
it. Control of security is, in my view, a procedural aspect focused
on giving effect to the rule. It
falls squarely within the powers of
the court to grant security.
19.
An order or judgment is erroneously granted in the absence of a
party if, irrespective of whether or not such judgment or order
is
otherwise correct, the absent party was not notified or did not know
of the date of hearing. In my view, Mr Kotze’s affidavit
does
satisfy the touchstone on two bases. Firstly there exists a serious
paucity of the explanation of the applicants' absence
at Court on 28
January 2013. Secondly there is no indication in his affidavit that
he did not know that the matter was on the roll
on 28 January 2013.
20.
From the inception of the First and Second Respondents' application
for security until its conclusion before Bertelsmann J on
28 January
2013, the Applicants attorneys had, in my view, adopted a supine
attitude to the matter. In the first place, after the
said
Respondents' attorneys had demanded the furnishing of security from
them they did not respond. The Respondents brought an
application,
had it served on them, and even served the notice of set down for the
matter on them and they still did not respond.
Their first counsel
appeared at court on 17 January 2013 without any answering affidavit
and demanded that matter be removed from
the roll. This shows clearly
that either he was brought late onto the case or he was ill prepared
to proceed with the matter. To
accommodate the Applicants’
counsel the court postponed the matter to 18 January 2013. On this
day a new counsel appeared
on behalf of the Applicants. Still he was
not ready to proceed with the matter and it is for that reason that
after he had made
his submissions he requested the court to grant him
an opportunity in order to supplement his oral submissions by way of
an affidavit.
The matter was then postponed especially for that
purpose to the 28th of January 2013 and the Applicants were ordered
to file an
answering affidavit. On the 28th January 2013 there was no
appearance for the applicants and the affidavits that the court had
ordered to be filed had not been filed. All this can be attributed
not to the Applicants themselves but the attorneys.
21.
Rule 42(1 )(a) is a procedural step designed to correct
expeditiously a wrong judgment or order. These are circumstances in
which the relief, under rule 42(1 )(a) may be granted, namely (1) if
there was an irregularity in the proceedings; (2) if the court
lacked
competence; (3) if at the time it made the order complained of the
court was unaware of the existence of factors that could
have
influenced it to decide differently or against the making of such an
order. In the absence of these factors, which are jurisdictional
in
nature, the court lacks the necessary discretion either to rescind or
even to perfect the order.
22.
As I have pointed out earlier, the Applicants' main complaints with
the order of 31 January 2013 are firstly, the two changes
that were
made to the order of 28 January 2013, secondly, the result flowing
from the change to the first paragraph of the said
order vis avis the
second paragraph, and thirdly, the presence of the word “consent"
in the order. The first change
involves the insertion of the words
“in the application for security” after the words
“applicants in the first
sentence of the first paragraph with
the result that that paragraph then reads as follows:
“
An
amount of R200 000.00 to be paid into the applicants m the
application for security."
23.
The second change involves deleting the words “First and/or
Second Respondents” in the third paragraph of the order
dated
28 January 2013 and the insertion therein of the words, I believe,
“Applicants” in the application for security
with the
result that it reads as follows:
“
Any
cost orders obtained by the above named applicants in the application
for security."
It
will be recalled or noted that while the change in the first
paragraph is left as it is the second paragraph does not, in some
respects, make any sense.
24.
I have already dealt with the usage of the word "consent"
earlier in the judgment. It is however important to place
it on
record that the word '“consent” seems to have come even
with the original draft order that was placed before
the court. It is
unfortunate.
25.
Even with the imperfections that Mr. Savvas referred to he gave a
clear indication that all that the current applicants are
dissatisfied with is the fact that the security be kept in trust of
the Respondents' trust account. I have dealt with this matter
earlier.
26.
About this application for rescission of the order of Mr.
Bertelsmann of 31 January 2013, Mr. Putter, for the First and Second
Respondents, submitted that this court is not at liberty to interfere
with the judgment of Bertelsmann J. He submitted that if
the
Applicants are not happy with the order, their remedy lies in noting
an appeal against it. Initially Mr. Savvas had referred
this court to
the authority of Zweni v Minister of Law and Order 1993(1) S.A. 523
in support of his argument that the order that
the court made on 31
January 2013 is an interlocutory order and therefore not appiicable.
Mr. Putter however referred the court
to the authority of Bookworks
(Pty) Ltd v Greater Johannesburg TM Council 1999(4) S.A. 799 in
particular at page 803. By way of
abridgement his view is that the
order that the court made on 31 January 2013 is appealable and he
relies on this authority. I
will refer to a few paragraphs of the
said authority. At page 803 paragraph E the court stated that:
“
The
Supreme Court of Appeal held that the refusal of an application for
security for costs is appealable: Shepstone & Wylie
and Others v
Geyser NO 1998(3) S.A. 1036 (SCA). The question whether the granting
of such an application is appealable was expressly
left open (at
1042G). In my view, for the reasons which follow, the latter type of
order is also appealable."
27.
In paragraph D at page 803 the court had stated and set out the
three essential issues which arose from the decision appealed
against. Firstly it is the order given by the court below appealable,
secondly, what is the test on appeal and thirdly, is the
test
satisfied. We are only concerned with the first issue, that is
whether the order that Bertelsmann J made on 31 January 2013
is
applicable. On page 804 the court stated as follows:
“
/4s
regards the first part of the relief: where an applicant's
entitlement to security and a respondent's obligation to provide
it
has been determined by a Court, such order is final it complies with
the three requirements laid down in Zweni v Minister of
Law and Order
1993(1) SA 523 (A) at 5321-533A, viz is not susceptible of alteration
by the Court of first instance; it is definitive
of the rights of the
parties; and it disposes of at least a substantial portion of the
relief claimed in the main proceedings (i
e the application for
security)."
28.
I am satisfied that on the strength of these two authorities this
judgment of 31 January 2013 is final in nature and therefore
appealable.
29.
Mr. Putter has asked for costs against the Applicants on attorney and
client scale on the basis that in an email by Borris (Mr.
Putter
indicated that Borris is the Applicants’ counsel) dated 19
October 2013 to one Murray, this I presume to be the Applicants’
attorney of record, and copied to the First and Second Respondents'
attorneys, Mr. Borris used obscene language against them. I
am not
sure if I must punish the Applicants for the sins of their legal team
which are not in any way related to the manner in
which the
Applicants themselves conduct their litigation. I want to assume that
this is a side issue; it does not entitle the court
to unduly punish
the Applicants, It is not something that fall, I presume, within the
Applicants' mandate to use such language.
For that reason I am just
disinclined to grant the application for costs as prayed for by Mr.
Putter.
30.
Mr. Borris himself had argued against granting costs in respect of
two counsel on the basis that only one counsel argued the
matter. I
do not think that this argument merits any further consideration.
That is in any event not the test.
31.
Finally Mr. Putter had expressed the First and Second Applicants’
desire to increase or ask for a review of the amount
of security and
to have it increased before the registrar. He has asked the court to
order the registrar to consider the increase
of the security in terms
of the provisions of Rule 47(6) of the Uniform Rules of Court. From
the reading of Rule 47(6) it would
appear that the first and second
respondents do not require any court order in order to enable the
registrar to determine any increase
in the amount of security. The
said Rule reads as follows:
“
The
registrar may, upon the application of the party in whose favour
security is to be provided and on mortus to interested parties,
increase the amount thereof if it is satisfied that the amount
originally furnished is no longer sufficient; and its decision shall
be followed."
32.
The Applicants have not made any good case for the relief they seek.
Accordingly I make the following order:
1.
The application for rescission is dismissed with costs, which costs
shall include the costs of two counsel.
2.
The main application is hereby stayed until the applicants have
complied with the court order dated 31 January 2013.
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicants: Adv. B.G. Savvas
Instructed
by: Venn & Mu I ter A ttorneys
Counsel
for the 1st and 2nd Respondents: Adv. S.J. Grobier (SC)
Adv.
LGF Putter
Instructed
by: Hirshowitz Fiionis Attorneys
Counsel
for the 5th Respondent: Adv. S Mitchell
Instructed
by: Matsemeia, Krause & Ngubeni Inc.
Counsel
for intervening party: Adv. S. Du Toit (SC)
Adv.
J.J. Meiring
Instructed
by: Knowles Husain Lindsay Inc.
Date
Heard: 10 June 2013
Date
of Judgment: 2013 - 06-10