About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 276
|
|
Philip v Estate Agency Affairs Board (39922/12) [2013] ZAGPPHC 276 (2 October 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 39922/12
DATE:
2013 April 26
DATE:02/10/2013
TIMOTHY DAVID
PHILIP
.............................................................................................
APPLICANT
and
THE ESTATE AGENCY AFFAIRS
BOARD
.........................................................
RESPONDENT
JUDGMENT
MABUSE
I:
1.
When this matter came before me on 25 April 2013 it conflated two
applications, one an application for leave to appeal against
the
whole of the judgment and order that I had made on 10 August 2012 in
an unopposed motion court and the other an application
for
condonation for the late filing of the application for leave to
appeal. After I had listened to arguments and submissions from
both
sides on 25 April 2013,I dismissed both applications on 26 April
2013 and promised to furnish reasons later.
These
are therefore my reasons for the orders that I made on 26 April 2013.
2.
For purposes of convenience I will refer to the parties by the
appellations under which the applicant, an adult Pretoria
businessman,
brought his original unopposed application. It will only
be appropriate, for the purpose of clarity, that I start with what
happened
on 10 August 2012. On the said day, the applicant approached
the court by way of a notice of motion issued by the registrar of
this court on 10 July 2012 and sought the following orders against
the respondent:
"(1)
That the decision of the board of the respondent on 5 December 2011
not to approve legal costs and interest in respect
of claim no.
92Q16751C instituted by the applicant be set aside.
(2)
That the respondent be directed to pay to the applicant interest in
respect of his claims no. 92016751C in the amount of R472,
491.00 and
legal costs in the amount of R120, 272.27. Alternatively that the
decision of the board of the respondent on 5 December
2011 not to
approve legal costs and interest in respect of claim no. 92016751C
instituted by the applicant be set aside and referred
to the board
for reconsideration.
(3)
Costs of the application.
(4)
Further and alternative relief
3.
The purpose of the applicant's application was therefore to seek an
order in terms of which this court reviewed and set aside
the
respondent's decision to refuse to pay interest and legal costs and
to order the respondent to pay a sum of R472, 491.00 in
respect of
interest and a further amount of R120,272.27, this in respect of
legal costs. Accordingly the crisp issue between the
parties was
whether the applicant was entitled to claim payments of interest and
legal costs from the respondent or whether the
respondent was obliged
to pay the applicant's legal costs and interest.
4.
In the said notice of motion, the applicant had invited the
respondent, if it wished to oppose the said application, to file
and
serve on the applicant's attorneys of record its notice of intention
to oppose the application on or before 8 August 2012 and,
having done
so, to furnish its version to Applicant's claim by filing its
answering affidavit, if any, within 10 (ten) days of
filing its
notice to oppose. In the same notice of motion, the respondent was
warned that should the applicant not receive the
said notice of
intention to oppose on or before the aforementioned date, the matter
would be enrolled for hearing on 10 August
2012. For inexplicable
reasons the respondent failed to file its notice to oppose and its
answering affidavit. For these reasons
on 10 August 2012 when the
matter came before me I granted the applicant, by default, the orders
that he had sought in the notice
of motion. In view of the fact that
the matter appeared on the unopposed roll and in view furthermore
that, for reasons that were
to the court unknown at the time, there
was no appearance for the respondent I furnished no reasons for the
order that I had granted
in favour of the Applicant. It is customary
in such unopposed matters to make orders without giving reasons at
all or immediately.
The fact that no reasons accompanied the order
does not however prevent a party from requesting reasons in terms of
Uniform Rule
49 (1) (b), especially where such party contemplates
seeking leave to appeal.
5.
Now turning back to the applicant's notice of motion, the Applicant
had attached his unmarked founding affidavit to the notice
of motion.
In the said founding affidavit he had set out his cause of action as
follows. During October 2008, Tutor Trust, a firm
of liquidators, was
appointed by the Master of the High Court as trustees in the
insolvent estate of one D P Venter. Tutor Trustees
in turn appointed
Venditor Auctioneers ("Venditors") to sell a property of
the said insolvent estate, namely Erf 286
Mamanthane Street,
Erasmusrand, Pretoria ("the property"). As their name
clearly indicated Venditors were auctioneers
and not estate agents.
6.
Venditors had sold the said property to the applicant on the
following
terms,
among others, that the total purchase price would be the sum of R
1,310,000.00 of which the sum of R130, 000.00 was pavable
as deposit.
The said deposit was indeed paid by the applicant to Venditors on 24
October 2008. The balance of R'l, 180, 000.00
was pavable, and indeed
paid to Venditors on 28 November 2008, under Ihe iollowing
circumstances. Subsequent to paving the said
deposit of RI30, 000.00,
the applicant received an electronic mail from a certain Karin
Coetzee ("Coetzee"), Venditors'
specific factor, in which
she had requested the applicant to pav the said balance of the
purchase price into Venditors' Trust Account.
Acting on the strength
of the said electronic mail, the applicant obliged and on 28 November
2008 deposited the balance of the
purchase price as directed by
Coetzee's electronic mad
7.
It turned out later that the said amount was misappropriated and
stolen by the said Coetzee while she was still acting as Venditors’
specific agent and while the said amount was still in the books ot
Venditors. I his discovery was made by the applicant, as a
consequence of an inordinate delay in the transfer of ownership of
the said property into his names. Following such delay he approached
a firm of attorneys who had been instructed to process the transfer
of the property and made enquiries with them about the excessive
delay. Then he was told by one R. I 11 is ot the relevant firm of
attorneys that the whole amount of Rl, 180, 000.00 had not been
paid
over to them and for that particular reason the attorneys were unable
to process the transfer of the property into his names.
8.
The applicant's attorneys of record investigated the matter and
discovered on 5 May 2009 that the said Coetzee had not only stolen
money from other clients which had been paid into the trust account
of Venditors but also the sum of R1 180, 000.00 which the applicant
had paid on 28 November 2008. What is of crucial importance to this
matter is that on 25 June 2009, the applicant lodged a complaint
against Venditors and at the same time a claim with the respondent
for the refund of the money. This claim was registered by the
respondent as G20040471. It was directed against Venditors. This
claim was lodged with the respondent within a period of three
months
after the applicant had become aware of the theft of his money, as
enjoined by the provisions of s.l8(3)(a) of the Estate
Agency Affairs
Act No. 112 of 1976 ("the Act").
9.
On 31 July 2009, one Mr Pierre Olivier of the respondent, the person
who had apparently been dealing with the matter for the
respondent,
sent an electronic mail to the applicant's attorneys in which he
stated that: "It is confirmed that your client
is to proceed
with further civil action against the relevant agent/agency in order
to exhaust those options available to him."
Over and above the
applicant was advised to lay criminal charges against the said
Coetzee.
10.
On 6 October 2009 the respondent sent the applicant the following
email: "In light of the above, it is confirmed that the
original
consideration stands as you have yet to provide substantiating
evidence that an estate agent, acting in such capacity,
had
contravened the Act and therefore the Board remains without the
necessary jurisdiction to pursue further investigations herein.
It is
acknowledged that your client will proceed to exercise his several
remedies against, I assume Venditor and!or Ms. Coetzee
and it is
respectfully requested that you provide the Board with details of any
progress made herein, as and when available, bearing
in mind that
failure to successfully recover the amount from the parties above
through civil action does not automatically grant
the Board with the
necessary jurisdiction. In closing we advise that this matter will be
diarized indefinitely pending the submission
of evidence relating to
those aspects raised in previous correspondence to you. I trust the
above to have clarified the Board and
its position herein and urge
you to contact me directly should you have any queries in this
regard."
In
this email the respondent quiet clearly called for more information
from the applicant obviously to enable it to investigate
the matter.
It required the applicant to satisfy the respondent that Coetzee was
an estate agent and that she had at all material
times acted in that
capacity.
The
respondent also requested the applicant to submit proof that indeed
Coetzee had contravened the provisions of the Act. The respondent
emphasized furthermore that the applicant should proceed to exercise
his civil remedies against Venditors and/or Ms. Coetzee.
11.
The applicant was able to obtain an affidavit by one Sheryl Scott
about the status of the said Coetzee. This affidavit did not
however
assist the applicant in as much as it did not prove that the said
Coetzee was a registered agent. So the duty to satisfy
the respondent
either that Coetzee was a registered agent or acted as an agent fell
on the applicant. The applicant was only able
to establish that
Coetzee acted as an agent by reference to an affidavit of one Styger.
This affidavit constituted part of the
papers of the applicant's
urgent application lodged against Venditors on 13 May 2009. In the
said affidavit the said Styger had
stated in paragraph 2.8 on pages
9-10 that:
"Although
she assured me that it was a full disclosure that she gave an
undertaking to repay every sent, it only later turned
out that this
was merely the tip of iceberg. She undertook to close her Star Choice
Account and begged me to give her an opportunity
to make good the
shortages. She urns earning commissions of between R60 000.00 - R100
000.00 per month, from which this payments
would be made."
The aforementioned statement was
sufficient to satisfy the respondent that Coetzee had actually acted
as an agent for Venditors.
In this way, the applicant had satisfied
the test that was laid down by the full court's decision of Estate
Agent Board v Mahadeo
1991(3) S.A. 49 NDP. In this authority, the
court stated that the criterion for determining whether a person was
an estate agent
was not the nature of her work he or she did but
whether or not such a person held himself or herself out as an agent
or advertised
that he or she was such a person who rendered the
services listed in paragraphs a(i)- iv of the definitions in the Act.
12.
For reasons that I will deal with hereunder the applicant was
subsequently compelled to re-lodge the claim with the respondent
against Venditors and Coetzee on 18 November 2010 which claim was
registered by the respondent this time as G2017651C. The applicant
re-lodged the claim this time at the request of the respondent. A
little over a year from the date on which the applicant lodged
his
claim, and in particular on 5 December 2011, the Board of the
respondent decided to approve the claim in the sum of Rl, 180,
000.00. It resolved, however, to exercise its discretion in terms of
the Estate Agency Affairs Act 1976 against the applicant in
respect
of the claim for payment of interest and legal costs.
13.
For the following reasons, the applicant held the respondent
responsible
for
his legal costs and interest. In his founding affidavit the applicant
put it this way:
"20.1
It is my respectful submission that the respondent had a discretion
to immediately attended (sic) to my claim without
insisting that I
should first exhaust all civil and criminal remedies. They however
insisted that all civil and criminal avenues
first be followed by
myself before they were prepared to give attention to my claim. This
resulted, on their instructions, in the
incurrence of an enormous
amount of legal costs and I, as a layman, was not able to comply with
the request of the respondent,
without enlisting the services of an
attorney.
20.2
This caused a delay in the consideration and payment of my claim for
a period of more than 2 and a half years, during which
period 1
suffered enormous financial losses due to the fact that 1 was out of
pocket with more than a million rand and without
any residents”
14.
In insisting on the applicant exhausting all his civil and criminal
remedies, it is clear that the respondent relied on the
provisions of
s.91 of the Act. The said section provides as follows:
"91
The board may, at any time after the commission of any theft, or any
failure to comply with the provisions of s. 32(1),
in respect of
which a claim relating to the fund arose, receive such claim and may,
subject to the provisions of s. 18, settle
such claim: Provided that
no person shall without the permission of the board commence any
action against the board, unless or
until the claimant has exhausted
all relevant rights of action and other legal remedies available at
his estate agent in respect
of whom the claim arose and against all
other persons liable in respect of the loss suffered by such
claimant."
14.
In the first place, the respondent has the power, in terms of the
provisions of s. 8(b) of the Act, to frame and publish, with
the
approval of the Minister of Trade and Industry, a code of conduct
which shall be complied with by the estate agents and to
take such
steps as may be necessary or expedient to ensure such compliance. In
terms of the provisions of s. 33 of the Act, the
respondent has done
so. The respondent, that is the Estate Agency Affairs Board, derives
its existence from the provisions of s.
2 of the Act. Its objects
have been clearly set out in s. 7 of the Act as follows:
"Having
due regard to the public interest, the objects of the Board shall be
to -
(a)
maintain and promote the standard of conduct of the estate agents;
and
(b)
regulate the activities of the estate agents."
15.
It was wrong, disingenuous and ill-advised for the respondent to
advise the respondent, as he did in the email dated 31 July
2009, to
proceed with all further civil action against the relevant
agent/agency in order to exhaust those options available to
him. That
approach was wrong for the simple reason that on 25 June 2009 the
applicant lodged a claim with the respondent in terms
of the
provisions of s. 18(3) of the Act. The said section provides that:
"3.
No person shall have any claim against the board in respect of a
theft or failure referred to subsection (!) unless -
(a)
the claimant has, within 3 months after he became aware of such theft
or failure or by the exercise of reasonable care should
have become
aware of such theft or failure, giving notice in writing to the board
of such claim;
(b)
the claimant has, within six months after a written demand was sent
to him by the board, furnished to the board such proof as
the board
may reasonably require:
Provided
that if the board is satisfied that, having regard to all the
circumstances, a claim was lodged or the proof required by
it was
furnished as soon as practicable, it may in its discretion extend any
of the periods referred to in this subsection”
16.
As soon as the claim reaches the board, it must receive the board's
attention. The board must not only acknowledge receipt of
the claim
but must, in addition, report to the applicant that the claim is
receiving attention. The board must also undertake to
revert to the
claimant or applicant with the result of its investigation. The
purpose of informing
the
claimant about its final decision is to enable such a claimant to
decide whether or not to persist with his claim and pursue
it by way
of commencing action against the board or against the estate agent
that stole his money or against both. The board has
the power to
investigate the claim and in terms of the provisions of s.l8(3)(b) to
call for further evidence or information which
will enable it to make
a determination from the applicant, as it did by its electronic mail
dated 6 October 2009 and also during
the conversation of 14 October
2010. Having obtained all the relevant information, the board must
then consider its merits and
decide whether it will accept or reject
the claim. At that stage the respondent should not advise the
claimant to exhaust all the
relevant rights of action and other
remedies available against the estate agent in respect of whom the
claim arose and against
all other persons in respect of the loss
suffered by such claimant. It may not do so before it has
finalised
its investigations into the matter. In other words the board may not
advise a person who has lodged a claim in terms of
the provisions of
s.18 to "exhaust all the relevant rights of action and legal
remedies'' before it has completed its investigation
of the claim.
The Board may only give such advice in circumstances set forth in
s.19 of the Act.
17.
The law and authorities that deal with the provisions of s. 26 of the
Attorneys Act No. 53 of Act 79 ("the Attorneys Act")
are in
my view, to a substantial extent, akin to the provisions of s. 18 (3)
of the Act. Section 26
of
the Attorneys Act provides as follows:
"Purpose
of the fund. Subject to the provisions of this Act the fund shall be
applied for the purpose of reimbursing persons
who may suffer
pecuniary loss as a result of-
(a)
theft committed by a practitioner, his candidate attorney or his
employee, of any money or other property entrusted by or on
behalf of
such persons to him or his candidate attorney or employee in the
course of his practice or while acting as an executor
or
administrator in the estate of a deceased person or as trustee in an
insolvent estate or in any other similar capacity; and
(b)
theft of money or other property entrusted to an employee referred to
in paragraph (cA) of the definition of "estate agent"
in
section 1 of the Estate Agent's Act, 1976 (Act No. 112 of 1976), or
an attorney or candidate attorney referred to in paragraph
(d) of the
said definition, and which has been committed by any such person
under the circumstances contemplated in those paragraphs,
respectively, and in the course of the performance-
(i)
in the case of such employee, of an act are contemplated in the said
paragraph (cA); and
(ii)
in the case of such an attorney or candidate attorney, of an act
contemplated, subject to the provisions thereof in the said
paragraph
(d)."
18.
On the other hand the provisions of s. 18 of the Estate Agency
Affairs Act
No.
112 of 1976 state as follows:
"Applications
of moneys in fund-
(1)
Subject to the provisions of this Chapter, the fund shall be held and
applied to reimburse persons who suffer pecuniary loss
by reason of-
(a)
theft of trust money, committed after commencement of this Act, by an
estate agent;
(b)
the failure of the estate agent to comply with s. 32(1) or 32(2)e."
Section
48(1) of the Attorneys Act provides as follows:
"No
person shall have a claim against the fund in respect of any theft
contemplated in s. 26 unless-
(a)
written notice of such claim is given to the council of the society
concerned and to the board of control within three (3) months
after
the claimant became aware of the theft or by exercise of reasonable
care should have become aware of the theft; and
(b)
within 6 months after a written demand has been sent to him by the
board of control the claimant furnishes the board with such
proof as
the board may reasonably require."
In SVV Construction (Pty) Ltd v
Attorneys Notaries and Conveyancers Fidelity Guarantee Fund 1993(2)
SA 577 CPD King J, as he then
was, found that the effect of s.
48(l)(a) of Act 53 of 1979, like the provisions of s.18(3) of the
Act, was to deprive a person
of a claim against the respondent which
he would otherwise have had and for which s. 18(3)
made
provision, unless such a person gave a written notice thereof within
the prescribed period. The court had the following to
say about such
a provision:
"It
is clear on authority that such a provision has to be strictly
construed."
In Benning v Union Government
(Minister of Finance)
1914 AD 180
at 185 Innes JA, as he then was, is
reported to have said:
"Conditions
which clog ordinary right of an aggrieved person to seek the
assistance of a court of law should be strictly construed
and not
extended beyond the cases to which they expressly apply."
For
record purposes this authority of SVV Construction (Pty) Ltd v.
Attorneys, Notaries and Conveyancers Fidelity Guaranteed Fund
dealt
with a claim against the Attorney Notary and Conveyancers Fidelity
Guaranteed Fund. The plaintiff in the said case had, in
terms of s.
26(a) of the Attorneys Act claimed from the fund payment of the sum
of R38 000,00 allegedly entrusted to an attorney
who at the time was
practising as such in the cause of the practice.
19.
It is now as clear as crystal that, when the respondent informed the
applicant on 31 July 2009 to "proceed with all further
civil
action against the relevant agent!agency in order to exhaust those
available to him", the respondent had misread the
provisions of
s. 19(1) of the Act. The said section only provides that no person
shall, without the permission of the board, commence
any action
against the board unless and until the claimant has exhausted all
relevant rights of action and other legal remedies.
It is equally
clear that by lodging a claim in terms of the provisions of s.
18(3)(a) the applicant did not thereby commence any
action against
the board. In terms of the provisions of s. 18(3) the respondent is
afforded an opportunity to investigate the claim,
to establish its
veracity, to ask for further information and thereafter to decide
whether it will settle the matter and avoid
incurring costs or
whether it will reject the claim.
20.
Instead of investigating the matter the respondent wrongfully sent
the applicant on a wild goose chase and thereby caused him
to incur
fruitless and unnecessary expenditure when by the exercise of
reasonable care the respondent should have investigated
and assessed
the matter and, having done so, accepted or rejected the claim before
sending the applicant to court. The applicant's
need to take action
would have been avoided had the respondent given the applicant's
claim proper attention. The applicant contended
therefore that the
respondent's advice was wrong. It was his case that the respondent
should be held responsible for his legal
costs and interest for the
said wrong advice.
21.
There is a paucity of details as to what Mr Pierre Olivier's precise
position
was
with the respondent. It is unknown whether he was someone who was
imbued with the practical knowledge of the law, especially
the Act,
and the concomitant ability to interpret and apply it correctly or
whether he was layman entrusted with the onerous task
to interpret
and apply the provisions of the Act when he was not equipped with the
requisite skill or knowledge. If he had no personal
competence to
deal with the situation involving the Applicant's claim it was, in my
view only incumbent upon him to ask professional
or legal advice
before advising the applicant to "proceed with further action
against the agent/agency". He was in my
view negligent and such
negligence is in law imputed to the respondent for exposing the
public to Mr Pierre Olivier without supervising
or training him.
22.
In the circumstances I am inclined to agree with the applicant that
had the respondent attended to his claim immediately, and
not given
him the advice contained in the email of 31 July 2009 by Pierre
Olivier, there would have been no need for the applicant
to incur the
expenses and the interest it did. The matter would have been quickly
and inexpensively resolved. I am fortified in
this conclusion by Durr
v. Absa Bank Ltd and Another 1997(3) ALL SA 1(A). It is for this
reason that judgment by default was granted
against the respondent in
favour of the applicant on 10 August 2012.
23. APPLICATION FOR LEAVE TO APPEAL
On
20 October 2012 the respondent delivered its application for leave to
appeal against "the whole judgment and order of his
lordship Mr.
justice Mabuse handed down on 10 August 2012." The said notice
of appeal contained the grounds on which the respondent
wished to
challenge "the judgment and order" of 10 August 2012. For
record purposes I set out the respondent's grounds
in the said notice
of the application for leave to appeal as follows:
"In
granting the applicant the relief sought, in prayers (a), (b) and (c)
in its notice of motion,
(a)
The application sought to review the decision of the respondent of 5
December 2012, to exercise its discretion not to approve
the
applicant's claim for interest and cost;
(i)
The decision of the respondent is not administrative action;
(ii)
The applicant's notice of motion is fatally defective in that amongst
other things, it did not comply with and was not in the
form
described by Rule 53 of the Uniform Rules;
(iii)
The founding affidavit does not make out a case for non-compliance
with
the procedure in Rule 53 in favour of the employment of the procedure
prescribed
in Rule 6.
(b)
The Applicant failed, in the founding affidavit, to set out grounds
upon which he relied for the relief sought in the notice
of motion;
(i)
The founding affidavit does not set out the factual basis on which
the Respondent is in law entitled to review the relief sought;
(ii)
The founding affidavit does not set out the legal basis on which the
revieiw of relief sought is premised;
(c)
The application is served out of time alternatively not within
reasonable time from time of knowledge of a decision;
(i)
The Applicant, on his version, knew of the decision on 5 December
2012;
(ii)
The application commencing the review proceedings, was served on 20
July 2012 being 208 days after the decision;
(iii)
No application for a case for condonation for the late filing of the
review proceedings is made."
24.
By way of a supplementary notice of leave to appeal delivered on 2
November 2012 the respondent supplemented its grounds of
appeal.
25.
On 19 April 2013 the respondent delivered its application for
condonation for the later filing of its application for leave
to
appeal. This application for condonation was delivered three days
before the matter was heard on 25 April 2013. Both the applications
for leave to appeal and condonation were opposed by the applicant who
had delivered an opposing affidavit. The target of the applicant's
opposing affidavit was the application for leave to appeal. This
affidavit contained nothing that related to the application for
condonation by reason of the fact that according to the applicant it
was delivered late.
26.
In an affidavit deposed to by Jimmy Frans Baloyi ("Mr. Baloyi"),
the respondent's executive manager enforcement in
support of its
application for condonation, the respondent set out facts that it
should have set out in the answering affidavit
referred to in
paragraph 4 above. The test at this stage was whether or not there
were any prospects of success if the respondent
were granted leave to
appeal and not what the respondent's case was. It was never the
respondent's case in the whole founding affidavit
deposed to by the
said Mr. Baloyi that another court seized with the same set of facts
would decide differently. Although not decisive,
the court took into
account the conduct of the same Mr. Baloyi after the order of 10
August 2012.
27.
Mr. Greef, counsel for the applicant, raised three points in limine
against
the
respondent's application for leave to appeal. He submitted that if
the court should uphold the following two points in limine,
the court
should refuse the application for leave to appeal with costs. The
first point in limine that he raised was that the judgment
of 10
August 2013, being default judgment, the respondent should have
attacked it by way of an application for rescission which
application
the respondent should have launched within 20 days after it had
become aware of the order. Rule 31(2)(b) of the Uniform
Rules of the
Court provides that:
"A
defendant may within 20 days after he or she has knowledge of such
judgment apply to caught upon notice to the plaintiff
to set aside
such judgment and the court may, upon good caution, set aside the
default judgment on such term as to it seems made."
According
to the applicant, the respondent became aware of the order of the
court on 17 August 2013 through a letter dated 17 August
2013 from
his attorneys to the respondent and to which was attached a copy of
the relevant court order. This letter was forwarded
to the respondent
per facsimile on the same date.
28.
Mr. Greef argued furthermore that instead of bringing an application
for rescission as set forth in the said Rule 31(2) (b),
the
respondent chose to deliver, on 30 October 2012, a notice of appeal
and on 2 November 2012 a supplementary notice of application
for
leave to appeal. He developed his argument further that the
respondent sought to note an appeal against a default judgment
that
was granted in an unopposed motion court during which no reasons were
furnished by the court. He
bemoaned
the fact that the respondent fashioned out grounds of appeal without
the full judgment as if the court had given reasons
for its order.
In
its application for leave to appeal the respondent had addressed the
merits of the applicant's case as if it (the respondent)
had placed a
version before the court and the court had considered such a version.
On 10 August 2012 the respondent had placed
no version before the
court.
29.
Mr. Louw, counsel for the respondent, submitted in turn that the
respondent wished to note an appeal in terms of s.20 of the
Supreme
Court Act 59 of 1959 and on that basis it was not necessary that the
respondent should first approach the matter by way
of an application
for rescission.
30.
In accepting the submission made by Mr. Louw I found that it was not
necessary that the respondent should bring an application
for
rescission of the order of 10 August 2012. As long as the respondent
was satisfied that the order was final in effect and not
susceptible
to be altered by the court of the first instance, secondly was
definitive of the rights of the 39922/12 - sn 24 JUDGMENT
parties and
finally it had the effect of disposing of at least a substantial
portion of the relief the applicant claimed in his
notice of motion
heard on 10 August 2012, the respondent could note an appeal against
the order.
See
Van Streepen and Gems v. Transvaal Provincial Administration 1987(4)
S.A. 569 AD at pages 586 to 587. See also Zweni v. Minister
of Law
and Order 1993(1) S.A. 523 AD at 532H to 533E. There was therefore no
merit in the applicant's first point in limine. This
particular point
in limine could not be sustained. The application for leave to appeal
could
therefore not be refused on that basis only.
31.
As for the argument that the respondents launched its application
for leave to appeal without reasons, I am also of the view
that there
is no merit in this argument. The respondent was satisfied without
reasons of the court that it was able to formulate
its grounds of
appeal. It was sufficient if the respondent set out its grounds of
appeal clearly and succinctly and in unambiguous
terms so as to
enable the court and the applicant to be fully informed of the case
the respondent sought to make out and which
the applicant had to meet
in opposing the respondent's application for leave to appeal. See
Songono v. Minister of Law and Order
1996(4) S.A. 384 (E) at 395J to
386A. There is no rule of law that obliges a party to first have a
judgment or the reasons before
preparing its application for leave to
appeal or nothing prevents a party from 39922/12 - sn 25 JUDGMENT
preparing
an application for leave to appeal without the benefit of the
judgment or reasons. Even if I am incorrect in making this
conclusion, the test is as set out by Leach J in the Songono v.
Minister of Law and Order matter supra and 1 accept it.
32.
The applicant's second point in limine was that the application for
leave to appeal should be brought within 15 days after the
prospective applicant has become aware of the order. A party who
wishes to note or to apply for leave to appeal must do so within
15
days after the date of the order appealed against failing which he
must bring an application for condonation for the late filing
of the
application for leave to appeal. The application for condonation must
be substantial. In the notice of motion, the other
party must be
afforded an opportunity to file its opposing affidavit on the
applicant as required by the provisions of Uniform
Rule 6 (5).
33.
In this case, the respondent brought an application for condonation
on 19 April 2013 in the afternoon and three days before
the
application for leave to appeal could be heard. In its application
for condonation, the respondent failed to provide any period
within
which the applicant was obliged to respond. At the hearing of this
application no request was made by the respondent to
postpone the
matter so as to enable the applicant to deliver its opposing
affidavit. Despite the fact that Mr. Greef had pertinently
raised
this point, Mr. Touw did not deem it necessary to postpone the matter
for that purpose. Instead he was content to argue
the matter
notwithstanding the shortcomings in the respondent's notice of
motion. This notice of motion was fatally flawed. The
court had no
choice but to dismiss the application for condonation on this ground
only. Mr. Louw himself had no submissions to
make against this point.
34.
THE APPLICATION FOR LEAVE TO APPEAL
Mr.
Greef submitted that, because the respondent's application for leave
to appeal was not accompanied by a proper application for
condonation
for the late filing of same, it had no leg to stand on and that it
should be dismissed with costs. I agreed with him.
35.
In addition he argued that, because of the written undertakings made
by the respondent in its correspondence with the applicant's
attorneys after the respondent had been notified of the order of the
court, it was otiose for the court to grant any leave to appeal
to
the respondent.
36.
I set out the said undertakings as follows. As already indicated
somewhere supra immediately after the court had granted the
applicant
the order on 10 August 2012, the applicant accordingly informed the
respondent by way of a letter dated 17 August 2012
of the said order.
Attached
to the said letter was the order of the court dated 10 August 2012.
There was no response received by the applicant from
the respondent
as a result of which the applicant's attorneys had no choice but to
issue a writ of execution on 28 August 2012.
37.
On 6 September 2012 the Sheriff served a copy of the writ of
execution on the respondent and demanded from Mr. Baloyi satisfaction
of the said writ of execution. He was unable to pay the judgment debt
and costs and as a result the sheriff attached some of the
respondent's goods. On 7 September 2012 the applicant's attorneys
received a telephone call from Mr. Baloyi who requested that
the
sheriff's return of service in the matter be forwarded to him. This
was done. A copy of the letter dated 17 August 2012 was
also
forwarded to him. When the applicant's attorneys received no joy or
no response whatsoever from the respondent they instructed
the
sheriff to remove the goods he had attached.
38.
When the sheriff arrived at the premises of the estate of the
respondent on 26 October 2012 Mr. Baloyi contacted the applicant's
attorneys on not less than nine occasions in an effort to persuade
them to request the sheriff not to proceed with the removal.
The
reason for doing this was, as indicated by Mr. Baloyi, that the chief
executive officer of the respondent was in Cape Town
at the time and
he had to obtain instructions from him.
He
therefore requested the applicant's attorneys to keep the matter in
abeyance until the Monday 29 October 2012 when the money
would then
be paid to the applicant's attorneys. The applicant's attorneys were
reluctant to agree to this verbal undertaking and
insisted that this
promise be put in writing and that the respondent should submit a
written undertaking that the money would be
paid on Monday before
close of business day. Mr. Baloyi then informed the applicant's
attorneys that he had telephonically communicated
with the chief
executive officer who had instructed him to submit a letter to the
applicant's attorneys that the respondent would
make payment of the
judgment not later than close
of
business on Monday 29 October 2012.
39.
In his email dated 26 October 2012 the applicant's attorneys had
written the following email to the respondent:
"Dear
Mr. Baloyi
Kindly
confirm that payment will be for:
1)
Judgment amount of R592 763.27;
2)
Sheriff's account for attachment R396.94;
3)
Sheriff's waisted costs for today (account will be supplied as soon
as we receive it from the client).
Once
you confirm the above we will take instructions from client.
Yours
faithfully"
The
said email was forwarded by the applicant's attorneys to the said Mr.
Baloyi at 12h41. At 12h44 on the same date Mr. Baloyi
wrote the
following letter to the applicant's attorneys:
"Dear
Mr. Greyvenstein
I
confirm payment by the EAABf or the amounts mentioned in the email
below.
Regards
Jimmy
F Baloyi
Acting
Executive Manager / Enforcement."
At
12h58 the applicant's attorneys wrote the following electronic mail
to Mr. Baloyi and sent a copy thereof to Tim Philip:
"Dear
Mr. Philip
Please
find attached hereto the correspondence between myself and the EAAB.
Instructions regarding the removal of the attached goods
are awaited
urgently. Kindly regards Greyvenstein."
Needless
to say no payment was received on Monday 29 October 2012, instead on
30 October 2012 the respondent delivered its notice
of application
for leave to appeal.
40.
Although these undertakings were made long after the court made its
order a court is, in my view, entitled to take such subsequent
undertakings into account in determining whether or not the
respondent has any prospect of success on appeal. A court should not
merely ignore these undertakings merely because they were not the
applicant's cause of action and were not part of the reason why
a
court granted the order. Undertakings tend to prove that a party that
makes them has accepted the order of the court and should
therefore
be treated as proof that such party has made them in order to abide
by the order of the court.
42.
I was not persuaded that another court seized with the same set of
facts would decide differently and hence the orders that
I granted on
26 April 2013.
MABUSE
JUDGE OF THE HIGH COURT
Appearances:
Applicant's
Attorneys: CH Greyvenstein Attorneys
Applicant's
Counsel: Adv. H. Greef
Respondent's
Attorneys: Knowles Husain Lindsay Jnc
do
Friedland Hart Solomon & Nicolson
Respondent's
Counsel: Adv. H. Louw
Date
Heard: 25 April 2013
Date
of Judgment: 26 April 2013