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[2013] ZANCHC 13
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Munn v Ocean Echo Properties 333 CC and Others (1760/2012) [2013] ZANCHC 13 (24 May 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGHT COURT)
CASE NO: 1760/2012
Case
Heard: 17/05/2013
Date Delivered:
24/05/2013
In the matter of
ARTHUR
MUNN NO
............................................................................
PLAINTIFF
and
OCEAN
ECHO PROPERTIES 333 CC
.....................................
1
ST
DEFENDANT
GLYNIS
MILLICENT AYSEN
...................................................
2
ND
DEFENDANT
PATRICK
DEON SIMONS
........................................................
3
RD
DEFENDANT
_________________________________________________________
JUDGMENT
ERASMUS AJ
The plaintiff instituted
action against the defendants, jointly and severally, for payment
R1 156 710.74, plus interest
and costs. The defendants
gavenotice of their intention to defend the action on 12 November
2012, after which the plaintiff delivereda
notice of application for
summary judgment.
For purposes of this
judgment I shall refer to the plaintiff in the action as ‘the
Trust’ and to the first, second
and third defendants in the
action as ‘the defendants’.
It
is alleged by the defendants that the notice of application for
summary judgment does not comply with Rule 32(2) in that it
does not
state the date on which its application will be set down for
hearing.
Based on this contention, t
hey
filed
a notice in terms of Rule 30A on 28 January 2013. In
terms of this
notice the Trust was required to
note that the defendants intended on making application for an order
directing the Trust to comply
with the said notice, alternatively an
order setting aside the Trust’s application for summary
judgment should the Trust
not remove the cause for complaint within
10 days of date of receipt of this notice.
The Trust did not
respond to this notice.
The defendants did not
deliver an affidavit in terms of Rule 32(3)(b) in opposition of the
application for summary judgment.
On 1 February 2013 the
application for summary judgment was postponed to 8 February 2013.
On 8 February 2013, by greement between
the parties, Pakati J
postponed this application to the opposed roll of 17 May 2013. The
Trust and defendants were represented
when the application was
postponed.
On 26 March 2013 the
defendants lodged the an application in terms of Rule 30A seeking an
order that the Trust be directed to
comply with Rule 32(2), failing
which the defendants be granted leave to approach the court on the
same papers, duly amplified,
for dismissal of the application for
summary judgment. The defendants also sought a cost order against
the Trust.
The application in terms
of Rule 30A is supported by an affidavit of Nerisha Besesar, the
attorney of the defendants. In terms
of paragraph 3 thereof it
appears as if she deposed to the affidavit in support of an
application to set aside the Trust’s
application for summary
judgment. She states that, notwithstanding the notice to remove the
cause for complaint, the Trust has
failed to remove the irregular
step. She requests the relief set out in the Notice of Motion, which
is, as already set out above,
not setting aside the Trust’s
application for summary judgment.
On 5 April 2013 the
defendants set down the application in terms of Rule 30A for 12
April 2013. The Trust gave notice of its intention
to oppose this
application on 10 April 2013, but did not file opposing papers. On
12 April 2013 this application was also postponed
to 17 May 2013.
Mr Grobler, on behalf of
the Trust, argued that the defendants did not comply with the time
frames laid down in the said rule
in that the application in terms
of Rule 30A was lodged almost two months after the initial notice. I
do not agree. Rule 30A
does not prescribe a fixed period within
which to notify the defaulting party of its intention to seek
compliance with the rules,
as is required in terms of Rule 30(2).
Mr Grobler further
submitted that the application is contrived in that two notices of
application for summary judgment were delivered
on 29 November 2012
and at least one indicated the date when application would be made.
Apart from this, he submitted thatthe
parties agreed for the hearing
of the applications to take place on 17 May 2013. He contends that
this, in itself, indicates
that the cause of the complaint had been
remedied within the 10 day period provided for in the notice in
terms of Rule 30A and
that the defendants were aware when the
application for summary judgment would proceed. He submitted that
theRule 30A application
be dismissed. I agree with these
submissions.
On 12 April 2013, when
the application in terms of Rule 30A was postponed, I specifically
directed counsel for the defendants’
attention to the fact
that the notice of application for summary judgment on the court
file contains the date and time in respect
of when the application
was to be made. In terms of this notice, filed as page 36 of
paginated papers, the date and time of hearing
of the main
application was stated as Friday 1
st
of February 2013 at
10:00. It appears to have been delivered to the defendants’
attorneys of record on 29 November 2012
at 2:55. The date stamp of
the registrar appears to have been affixed to the first page of this
notice on 30 November 2011. I
accept that it was received by the
registrar on 30 November 2012 and that it was on the court file
throughout proceedings.
By the time that the
defendants’ attorney deposed to the affidavit in support of
the application in terms of Rule 30A during
March 2013, the
application for summary judgment had been postponed on two
occasions. If this notice had not been on the court
file, the
defendants would surely have stated this and addressed this issue in
their papers. Had it not been on the court file,
I would further
have expected the defendants to immediately have taken steps to
address this issue in a supplementary affidavit
when counsel’s
attention was directed to the notice on the court file on 12 April
2013. This was not done.
On 15 May 2013, two days
before the hearing of the applications, and after the Trust had
filed heads of argument in respect of
both the applications, the
defendants filed a supplementary affidavit, deposed to by the same
attorney. The purpose of this affidavit
seems solely to allege that
the notice of the application for summary judgment, which forms the
basis of the application in terms
of Rule 30A, ‘has
mysteriously gone astray from the Court’s file’. She
attached, as annexure ‘A’,
a copy of a notice of
application for summary judgment which does not contain a date and
time as to when application for summary
judgment will be made. The
allegation that it ‘had gone mysteriously astray from the
Court’s file’ is not substantiated
by any factual
allegations. There is no allegation that the original annexure ‘A’
(or a copy thereof), was on the
court file at some stage of
proceedings.
In the defendants’
heads of argument respect of the application in terms of Rule 30A,
dated and filed 15 May 2013, the submission/allegation
was made that
the defendants did not receive any notice of the main application
other than annexure ‘A’ to this affidavit.
There is no
such allegation in the defendants’ papers that the notice of
application for summary judgment on the court
file and bound as page
36 of the paginated papers, was never delivered to the defendants.
There is no explanation
in the papers as to why the supplementary affidavit and annexure ‘A’
were only filed at this
late stage of proceedings. I would have
expected the attorney who had deposed to the initial affidavit in
support of the application
in terms of Rule 30A on 12 March 2013 to
have referred to this document and that it should have been attached
to the founding
affidavit, as this forms the basis of the
application.
In response to the
supplementary affidavit and annexure ‘A’, the attorney
of the Trust filed an answering affidavit
on 15 May 2013. He sets
out how it came about that annexure ‘A’ to the
supplementary affidavit by defendants’
attorney, complained of
by the defendants, was delivered to the defendants’ attorney
on 29 November 2012. The mistake pertaining
to the omission of the
date and time was rectified on the same day. This is confirmed by
his clerk. The fact that the notice
of application for summary
judgment on the court file bears the date stamp of the registrar of
30 November 2012, corroborates
the version of the Trust’s
attorney.
Mr Jankowitz argued that
the affidavit of Trust’s correspondent attorney, filed after
the supplementary affidavit on behalf
of the defendants was filed,
should not be allowed. As I have already
stated, the supplementary affidavit of the defendants was only filed
on 15 May 2013.
The defendants offered no explanation for the late
filing of this affidavit. It is the allegations in this affidavit,
if any,
which called for an answer by the Trust. In the exercise of
my discretion, the affidavit on behalf of the Trust was admitted as
evidence in the application in terms of Rule 30A.
It thus appears
ex
facie
the notice of the application for summary judgment (page
36 of the paginated papers) and the affidavit by the attorney of the
Trust that the defendants’ cause for complaint had already
been removed on 30 November 2012.
Even ifI am wrong in
finding that the Trust had delivered the second notice reflecting
the date and time of when application was
to be made, as
contemplated in the rule, I would be entitled to overlook such an
irregularity in procedure if it does not cause
substantial prejudice
to the party complaining of it.
1
Technical
objections 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. As I have already pointed
out, on 8 February 2013, when the main application
was postponed to
17 May 2013, it was done so by agreement between the parties. Both
parties were represented in court during
the postponement. This
being so, the defendants were fully aware of the date and time on
which the application for summary judgment
would proceed, as early
as 8 February 2013.
Mr Grobler requested
that summary judgment be granted as the defendants had not filed an
opposing affidavit, setting out a
bona fide
defence to the
claim of the Trust despite being fully aware that the application
for summary judgment would proceed on 17 May
2013. He submitted that
the defendants’ conduct is aimed at delaying the Trust’s
claim.
Mr Jankowitz argued that
the application for summary judgment must be dismissed,
alternatively that the notice must be struck
out. This is not in
accordance with the relief sought in the notice of motion in the
interlocutory application. The defendants
sought an order that the
Trust be directed to comply with Rule 32(2). Mr Jankowitz further
requested that the defendants be granted
a postponement to file an
opposing affidavit in respect of the application for summary
judgment, should their application in
terms of Rule 30A be
dismissed.
22. The application in
terms of Rule 30A involved procedural issues relating to alleged
non-compliance with the Uniform Court Rules.
The defendants are lay
persons and were reliant on the advice of their legaI representatives
in respect of these issues. I am of
the view that summary judgment,
being the drastic remedy that it is, should not be granted without
affording the defendants the
opportunity to file opposing papers in
respect of the opposition of the application for summary judgment.
23. I make the following
order:
1.
The application in
terms of Rule 30A is dismissed;
2.
The application for
summary judgment is postponed
sine die
;
3.
The defendants are
ordered to file their opposing affidavit(s) in respect of the
application for summary judgment, if any, within
10 days of the date
of this order, failing which the Trust is authorized to enrolthe
application for summary judgment for adjudication
on the unopposed
motion court roll;
4.
The defendants are
ordered to pay the costs in respect of the application in terms of
Rule 30A, which costs shall include the costs
of 17 May 2013.
_________________________
S L ERASMUS
ACTING JUDGE
NORTHERN CAPE DIVISION
For the Plaintiff: AdvGrobler
A Potgieter& Partners, Kimberley
For the Defendants: AdvJankowitz
Van
de Wall & Partners, Kimberley
1
Mynhardt
v Mynhardt
1986 (1) SA 456 (T) op 464A
7