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[2013] ZAFSHC 5
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Mlenzana v Goodrick & Franklin Inc (4423/2008) [2013] ZAFSHC 5 (7 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4423/2008
In the matter between:-
YOLISWA EUNICE
MLENZANA
....................................................
Plaintiff
and
GOODRICK &
FRANKLIN INC
..................................................
Defendant
_____________________________________________________
HEARD
ON:
6 DECEMBER 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
7 FEBRUARY 2013
_____________________________________________________
[1] These proceedings
concerned an application for leave to appeal. The applicant was
aggrieved by the judgment I gave and the order
I made in favour of
the respondent at the end of the civil hearing. The application was
vigorously opposed.
[2] In the action
proceedings the applicant was cited as the defendant and the
respondent as the plaintiff.
Brevitas causa
I shall refer to
the parties as in convention.
[3] At the commencement
of the hearing the issues of liability were separated from the issues
of quantum. By agreement
inter partes
I made a separation
order in terms of rule 33(4). The trial then commenced. The parties
presented their evidence on the merits.
In due course I made a
determination in favour of the plaintiff.
[4] The judgment
concerning issues of liability was delivered on 14 July 2011. The
order flowing from the judgment was couched in
the following words:
“
Accordingly
I find that the defendant is liable to the plaintiff for such
damages, as may be proved or agreed, plus costs.”
That then completed the
first phase of these civil proceedings.
[5] As regards the second
phase of these civil proceedings, I am given to understand that the
question of quantum has since been
extra-curially negotiated and
privately disposed of. The settlement was subsequently made an order
of the court by my brother Moloi
J on 23 October 2012.
“
IT IS
ORDERED THAT: (By agreement)
1. The defendant shall pay a sum of
R432 500-00 (FOUR HUNDRED AND THIRTY TWO THOUSAND RAND FIVE
HUNDRED)
to the plaintiff’s attorneys for plaintiff’s
damages within 14 (fourteen) days from the date of this order;
2. The defendant pay (sic) the costs
of suit to date.”
[6] In view of such
mutual settlement, the issues of quantum will no longer have to be
judicially adjudicated. It follows, therefore,
that the need to
embark upon the second phase of these proceedings has since fallen
away. The 14 day period as contemplated in
the aforesaid court order
expired on 12 November 2012. Notwithstanding the expiry of the date
on which the debt became due and
payable, the defendant failed to
honour the aforesaid court order.
[7] On 7 November 2012
the defendant filed an application in terms of section 20 Supreme
Court Act 59 of 1959 read together with
Rule 49 Uniform Court Rules
for leave to appeal to the full bench against the whole of my
judgment which was delivered on 14 July
2011.
[8] The defendant’s
application was set down for argument on Thursday 6 December 2012.
The plaintiff opposed the application.
Before me appeared Mr Van Rhyn
SC and Mr Dutton on behalf of the defendant and the plaintiff
respectively. Having heard argument
for and against the grant of
leave to appeal, I summarily made the following order
ex
tempore
:
“
IT IS
ORDERED THAT:
The application for leave to appeal
is refused.
The applicant is ordered to pay the
costs of the application.”
[9] On 12 December 2012
the defendant filed a written request for my reasons in support of
the aforesaid order whereby I dismissed
the application for leave to
appeal.
“
Dear Sir /
Madam
APPLICATION FOR LEAVE TO APPEAL: YE
MLENZANA // GOODRICK & FRANKLIN INC.
We refer to the abovementioned matter
and the application for leave to appeal that was dismissed on 6
December 2012.
We kindly request reasons for the
aforementioned order.
Kind Regards,
W LE ROUX
GOODRICK & FRANKLIN INC
”
This judgment is my
attempt to comply with the defendant’s request.
[10] Still on 12 December
2012 the plaintiff drew up a writ. The next day the registrar issued
the writ.
“
TO: THE
DEPUTY SHERIFF
YOUR ARE HEREBY DIRECTED
to
attach and take into execution movable goods of the Defendant (Road
Accident Fund), and of the same to cause to be realized by
public
auction the sum of R432 500-00 plus interest thereon at the rate of
15,5% fourteen days from 23 October 2012 recovered by
order of this
Court dated 23 October 2012 in the abovementioned case, and also all
other costs and charges in the said case to
be hereafter duly taxed
according to law, besides all your costs thereby incurred.
AND RETURN
this Writ with what
you have done thereupon.”
[11] I reckon the
aforegoing historical background gives an accurate and useful
exposition of important historical events which
followed the
milestone of 14 July 2011.
[12] It has to be kept in
mind that the first phase, as well as the second phase of these
action proceedings, were completed on
14 July 2011 as regards issues
of liability and 23 October 2012 as regards issues of quantum.
[13] As already pointed
out earlier, the defendant now seeks to take the matter on appeal. I
have to stress that the current application
for leave to appeal
concerns the merits only and not the quantum. This much is apparent,
firstly, from the fact that the plaintiff’s
claim has been
quantified and settled and secondly, from the fact that none of the
grounds of appeal relates to issues of quantum
–
vide
notice of this application filed on 7 November 2012.
[14] Mr Dutton took a
preliminary point
in limine
on 6 December 2012. On behalf of
the plaintiff counsel principally submitted that the defendant’s
application had been hopelessly
brought out of time. Accordingly, he
urged me to dismiss it with costs.
Mr Van Rhyn, counsel for
defendant, made no submission to the contrary as far as the
particular legal point was concerned. However
he addressed me at
length on the merits. To the merits I shall revert, it needs be.
[15] An application for
leave to appeal must be made and grounds thereof must be furnished
within fifteen days after the date of
the court sought to be appealed
against (
vide
rule 49(1)(b) Uniform Court Rules). The rule
reads:
“
(b)
When leave to appeal is required and it has not been requested at the
time of the judgment or order, application for such leave
shall be
made and the grounds therefor shall be furnished within fifteen days
after the date of the order appealed against: Provided
that when the
reasons or the full reasons for the court's order are given on a
later date than the date of the order, such application
may be made
within fifteen days after such later date: Provided further
that the court may, upon good cause shown, extend
the aforementioned
periods of fifteen days.”
[16] The 15 day period,
as contemplated in the rule, expired on Thursday 4 August 2011.
During that period there was no application
filed by the defendant
for leave to appeal.
[17]
Where, as in this instance, the issues of quantum have been separated
from the issues of liability and the latter class of
issues
separately adjudicated first and judgment given on the latter issues
only, the judgment so given is immediately appealable
in terms of
section 20(1) of Supreme Court Act 59 of 1959. This is so because a
court order on the merits of a case has a final
and decisive effect
on that first phase or aspect of proceedings -
DAVID
HERSCH ORGANISATION (PTY) LTD AND ANOTHER v ABSA INSURANCE BROKERS
(PTY) LTD
1998
(4) SA 783
(T);
SA
EAGLE VERSEKERINGSMAATSKAPPY BPK v HARFORD
[1992] ZASCA 42
;
1992
(2) SA 786
(A)
.
[18] In
this
matter, July 14, 2011 was a milestone date. The separate judgment in
respect of the issues of liability was handed down on
that day. The
defendant was required to bring the application for leave to appeal
with 15 court days from July 14, 2011. The defendant’s
unencumbered procedural right lapsed on Thursday 4 August 2011. The
defendant failed to exercise its right before 5 August 2011.
Instead
the defendant filed an abortive application on 7 November 2012 in an
endeavour to exercise a right that no longer existed.
[19] The application was,
therefore, filed some 481 calendar days after the date of the
judgment (14 July 2011) and some 459 calendar
days after the expiry
date of its automatic right. Whichever way one looks at the matter,
those were considerable delays.
[20] The defendant is no
ordinary litigant but rather a group of lawyers. This is the one side
of the coin. The other side of the
coin is that the plaintiff is a
poor window and a domestic worker whose husband died at Bethal on 22
June 2004, almost eight years
ago as a result of the bodily injuries
he sustained in a road accident. Previously she was the defendant’s
client. Her third
party claim against the Road Accident Fund became
prescribed on account of the defendant’s remissness.
[21] The defendant’s
right to apply for leave to appeal was extinguished by the effluxion
of time long time ago. The extinction
notwithstanding, the defendant
was not remediless. As from 5 August 2011, the defendant
automatically acquired another procedural
right to seek leave to go
on appeal. The defendant was entitled to bring a separate but
substantive application to have its lateness
condoned.
[22] Together with its
application for leave to appeal, the defendant was required by
procedural law to lodge a formal application
for condonation to fully
explain to all concerned the circumstances which led to its failure
to exercise its automatic right in
terms of the rule. There was
virtually no explanation of any sort. The defendant approached the
court as if it was still business
as usual. However, the defendant
again failed to apply for condonation for the late filing of the
current application. The failure
was yet another breach of the rules.
[23] The result of all
this is that I do not have any clue about the reasons for the
inordinate initial delay of 15 days or the
inordinately long
subsequent delay of 459 days from 5 August 2011 to 6 December 2012.
What can one make out of the way in which
the defendant has gone
about this application?
[24] The court order per
Moloi J obliged the defendant to pay the plaintiff’s claim
within 14 days from the date of the order.
Such period expired on 12
November 2012. The application was made six days before the period
stated in the order was due to expire.
[25]
Herbstein & Van Winsen:
The
Civil Practice of the Superior Courts in South Africa
,
second edition 20 comment about the purpose of the rules:
“
Purpose
of Rules of Court
The rules of court, which constitute
the procedural machinery of the courts, are intended to expedite the
business of the courts.
Consequently they will be interpreted and
applied in a spirit which will facilitate the work of the courts and
enable litigants
to resolve their differences in as speedy and
inexpensive a manner as possible. No doubt parties and their legal
advisers should
not be encouraged to become slack in the observance
of the rules, which are an important element in the machinery for the
administration
of justice. But on the other hand technical objections
to less than perfect procedural steps should not be permitted, in the
absence
of prejudice, to interfere with the expeditious and, if
possible, inexpensive decision of cases on their real merits.”
[26] One thing is very
clear to me. The manner in which the defendant has conducted itself
since my judgment, is not intended to
expedite but rather to retard
the finalisation of this matter. The business of the courts is
adversely affected and the objective
of speedy and inexpensive
resolution of civil disputes is defeated when the rules of court are
flagrantly disregarded as has been
done in this matter. I cannot
ignore what is going on in this application and what has gone on
during the course of the main trial.
To do so would not only
encourage litigants and their lawyers in general, to become slack and
remissive in the observance of the
rules, but would perpetuate
hardship in this particular matter. The conduct of the defendant has
already caused a great deal of
prejudice to the plaintiff.
[27] The entire
proceedings in this matter were characterised by application after
application and objection after objection. None
of them had any
merits. All of them were based on flimsy reasons. They were
deliberated calculated to interfere with the expeditions
and
inexpensive resolution of the dispute. The current application
demonstrates the point very well. The plaintiff has endured
great
prejudice and I find myself unable to tolerate her hardship to
continue any further. The actions of the defendant created
the
perception that there is no serious and honest intention here to go
on appeal. I have a strong suspicion that the whole exercise
is a
scheme, disguised as an application for leave to appeal, to drag the
matter as long and as much as possible.
[28] It is my considered
opinion that if I were to grant the defendant leave to appeal, my
decision would be injudicious and be
compatible with proper exercise
of my basic mandate as a judge, which is to see to it that justice is
done between man and man.
[29] I
am persuaded by Mr Dutton’s principal submission that my
judgment was a final decision and the relative order was instantly
appealable -
VAN STREEPEN &
GERMS (PTY) LTD v TRANSVAAL PROVINCIAL ADMINISTRATION
1987 (4)
SA 569
(A) at 583 H – I per Corbett JA, as he then was.
[30] The defendant’s
automatic right to apply for leave to appeal evaporated into thin air
months ago. On 5 August 2011 that
avenue was locked. On 6 December
2012, the defendant came to court, empty handed. The door remained
locked. There was no key given
to me by the defendant to unlock the
door, let the defendant in and hear the matter. I would, in the
circumstances, uphold the
preliminary point. In my view the point was
well taken.
[31] In view of the
conclusion I have reached, I cannot consider the argument presented
by Mr Van Rhyn in support of the alleged
grounds of appeal. The legal
position was simply that there was logically no valid application for
leave to appeal before. What
was presented to me, disguised as such,
was a misguided and irregular process which deserved to be struck
off, rather than be dismissed.
That, however, is now water under the
bridge.
[32] Those then are the
reasons for the order I made on 6 December 2012 whereby:
32.1. The applicant’s
purported application for leave to appeal was dismissed.
32.2. The applicant was
directed to pay the costs of such an application.
______________
M.H. RAMPAI, J
On
behalf of plaintiff: Adv I T Dutton
Instructed
by:
Nonxuba
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv A J R van Rhyn SC
Instructed
by:
Goodrick
& Franklin
BLOEMFONTEIN
/spieterse