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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2013] ZAKZPHC 20
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Brite Season Trading t/a Freight All v Govender (AR 9/2013) [2013] ZAKZPHC 20 (13 May 2013)
1
NOT REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: AR 9/2013
In the matter between:
BRITE SEASON TRADING T/A FREIGHT ALL
.............................
Appellant
and
SITHAMBARAN GOVENDER
.......................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
GORVEN J
[1] In this matter, the appellant
instituted action against the respondent and three other defendants
out of the Magistrate's Court
for the Regional Division of
KwaZulu-Natal, Durban, by no earlier than 25 February 2011. The
respondent entered a special plea
to this action. The special plea
relied on an order issued out of the High Court on 18 November 2008.
This order arose from an
application launched by the appellant
against the respondent and the first and second plaintiffs in the
action in which the following
material relief was sought:
‘
(a) That the First and or Second Respondent
is interdicted, restrained and prohibited from paying out the amount
of R115 000.00
to the Third Respondent under Momentum Investo
investment plan contract number 01 002526884, which is underwritten
by the Second
Respondent and ceded to the First Respondent by the
Applicant pending an action to be instituted against the Third
Respondent;
(b) That the Applicant is directed to institute an
action against the Third Respondent within thirty days (30) from the
grant of
this order.’
The order of 18 November 2008 granted this relief.
[2] The action instituted by the appellant, and to which
the special plea was taken, is that action envisaged in both
paragraphs
(a) and (b) of the order in question. It is not necessary,
for the purposes of the appeal to calculate when precisely the 30 day
period referred to in paragraph (b) of the order elapsed. This is so
because on any calculation, that period clearly elapsed more
than two
years prior to the action being instituted. The action was launched
without any application for condonation being sought
by the
appellant. The special plea prayed that the appellant's action be
dismissed with costs.
[3] The magistrate, in the court
a quo
, upheld
the special plea and dismissed the action with costs. It is against
this order that the appellant is appealing.
[4] In this matter, no evidence was necessary since
there is no dispute as to the date upon which the High Court order
issued, neither
is there any dispute as to the date upon which action
was instituted in the Magistrate's Court. There is further no dispute
that
no application for condonation was launched by the appellant. It
was the appellant who applied for the High Court order which was
ultimately granted. In other words, the appellant chose to limit the
time within which to bring its action against the respondent.
A court
order may not simply be ignored. One placing time limits on the
parties is no exception to this rule. In the case of
Muller
v NewZealand Insurance Company Ltd
1
the court ordered the plaintiff to deliver further
particulars within four days after service of the order on the
plaintiff. The
plaintiff failed to do so and the action was
dismissed. Likewise, in a matter governed by time limits fixed by the
rules, a defendant
who became aware of a default judgement granted
against him failed to launch an application for rescission timeously
and the out
of time application was dismissed as a result.
2
Even if a court order has not been complied with, an
application for condonation can be launched and, if good cause is
shown, a
court can condone non-compliance and extend the time limit.
[5] In the present matter, the appellant simply ignored
the court order. Absent an application for condonation for
non-compliance,
the action was instituted beyond the period granted
in the court order. This means that the magistrate was correct in
upholding
the special plea and dismissing the action with costs. The
appeal must fail. In the result, the appeal is dismissed with costs.
___________________________
GORVEN J
I agree:
___________________________
MNGUNI J
DATE OF HEARING: 13 May 2013
DATE OF JUDGMENT: 13 May 2013
FOR THE APPELLANT: M Nhlangulela instructed by MONDLI
NHLANGULELA ATTORNEYS
FOR THE RESPONDENT: VINESH BADRI & PARTNERS.
1
1965
(2) SA 569
(D).
2
Nair
v Naicker
1942 NPD 3.