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2012
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[2012] ZAGPPHC 160
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Wallis and Others v Eskom Holdings Ltd and Another (36986/2009) [2012] ZAGPPHC 160 (13 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 36986/2009
DATE:13/08/2012
In
the matter between:
D
WALLIS
...............................................................................................................
1st Applicant
DC
WALLIS
.............................................................................................................
2nd
Applicant
CF
WALLIS
.............................................................................................................
3rd
Applicant
and
ESKOM
HOLDINGS
LTD
....................................................................................
1st Respondent
LIBRA
LANDSCAPE & CLEANING SERVICES
CC
.......................................
2nd
Respondent
JUDGMENT
[1]
This is an application for rescission of the order granted by this
court on 7 September 2010 whereby plaintiffs' claims against
first
defendant were dismissed and plaintiffs (the current applicants) were
ordered to pay the costs of the action including the
costs of the
application. It is common cause that this application for rescission
is brought in terms of the common law. As the
applicants' claims as
against the first respondent only, were dismissed, no relief is
claimed against the second respondent.
[2]
The deponent on behalf of the applicants is the managing director of
the personal injury department of MacRobert Incorporated,
Mr LE
Scott. According to Mr Scott's affidavit MacRobert Incorporated
("MacRobert") received an instruction from Adendorf
Attorneys Incorporated ("Adendorf") of Tyger Valley,
Bellville, Western Cape, to issue summons against the first and
second defendants on their behalf. At that stage MacRobert was merely
acting as a "post box" for Adendorf. The matter
was
allocated to one Deirdre Swanepoel, a professional assistant in Mr
Scott's department. Summons was issued and first defendant
("respondent") duly entered appearance to defend. On 12
April 2010 respondent served a request for further particulars
for
trial on Adendorf care of MacRobert. On 6 May 2010 respondent's
Pretoria correspondent attorney addressed a fax to the said
Deirdre
Swanepoel, requiring the applicants' reply to the request for further
particulars by 13 May 2010. On 12 May 2010 the said
Pretoria
correspondent of respondent again addressed a fax to Deirdre
Swanepoel requiring the applicants' reply to the request
for further
particulars by 15 May 2010, in response to a request for an extension
of time apparently deriving from the applicants'
attorney. On 19 May
2010 respondent's attorney served MacRobert with a notice of motion
in an application to compel the applicants
to reply to the
respondent's request for further particulars for trial. This
application was set down for hearing on 16 July 2010.
On 16 July 2010
the respondent's application to compel was granted and a filing sheet
with the court order was served on MacRobert
on 5 August 2010.
[3]
It is common cause that the applicants failed to react in any way to
the service of the court order compelling their reply to
the request
for further particulars. On 25 August 2010 respondent's attorney
served on MacRobert an application for the dismissal
of the
applicants' claim against respondent. This application was set down
for hearing on 7 September 2010. On 7 September 2010
the respondent's
application for a dismissal of the applicants' claims was granted and
the applicants' claims against the respondent
were dismissed with
costs. On 10 September 2010 respondent's attorney addressed a fax to
second defendant's attorney of record
advising that the application
to dismiss the applicants' claims against the respondent had been
granted.
[4]
In his replying affidavit Mr Scott states that he takes no issue to
the chronology set out by respondents' attorney in paragraph
4 of the
answering affidavit. In the founding affidavit Mr Scott stated that
upon receipt of the instruction from Adendorf, the
matter was
allocated to the said Deirdre Swanepoel and a file was opened under
her reference and she dealt with the matter. He
himself had no
knowledge of the matter and was not involved in the matter at all at
this stage of the proceedings. However, on
14 July 2010 he received a
telephone call from a director of Adendorf, enquiring whether he
would be prepared to take the file
over as the instructing attorney
and to liaise directly with the applicants with regard to the
continuation of the matter. He was
prepared to do so. He requested Ms
Adendorf to forward the entire file contents in the possession of
Adendorf to him, to enable
him to bring himself up to date with the
matter and to do the necessary in preparation for the upcoming trial,
which had been enrolled
for 12 November 2010. At that stage he also
requested his secretary to obtain the office file from Deirdre
Swanepoel and to advise
the latter that he will in future deal with
the file. However, Deirdre Swanepoel was on leave at that time and he
could not discuss
the matter with her. Upon receipt of the
correspondent's file contents he requested his secretary to sort,
index and paginate the
file in preparation for the upcoming trial
date and also reserved senior counsel for that purpose. He states
that he was at no
stage aware of the fact that an application to
compel the delivery of further particulars had been served or that an
order compelling
the delivery of such particulars has been obtained
by the respondent.
[5]
Mr Scott furthermore states that upon receipt of the file contents
from Adendorf it became clear that all the notices and pleadings
were
not in the file and his secretary requested a candidate attorney at
MacRobert's, Verusha Naidoo, to obtain copies of the documents
that
were not on the file and to ensure that a full set of pleadings,
notices and other documents was available. Ms Naidoo communicated
with the respondent's attorney of record as well as with second
defendant's attorney of record. Her file notes indicate that the
court file was not available and that she arranged with second
defendant's attorneys to obtain copies of the various outstanding
documents that were required and to have them collected on 13
September 2010. However, as Ms Naidoo was hospitalised during the
weekend preceding 13 September 2010 she apparently made arrangements
with another candidate attorney to collect the documents.
The latter
merely put the documents on her desk after collecting same.
[6]
On 15 September 2010 and during a social conversation with a certain
senior advocate, Mr Scott, for the first time, became aware
of the
dismissal of applicants' claims. Upon subsequently inspecting the
file he noticed for the first time the application to
compel as well
as the court order granted in this respect and the application to
dismiss applicants' claim and the court order
in that regard. These
documents were all among the bundle of documents obtained by the
candidate attorney, Ms Naidoo. As Ms Naidoo
was still on sick leave
the office file and the documents uplifted were not returned to him.
Upon inspecting the documents he also
noted that a letter was
addressed to Ms Naidoo by first respondent's attorney of record
annexing a copy of the application to dismiss.
Also this letter was
never brought to his attention.
[7]
Having gained knowledge pertaining to the documentation as aforesaid
Mr Scott immediately addressed a letter to respondent's
attorney in
which he made certain suggestions and proposals which are not
relevant to the current issue. Mr Scott furthermore avers
that it was
at all times the intention of the applicants to pursue their claims
and that they were unaware of the order compelling
them to deliver
further particulars and what followed thereupon. Mr Scott accordingly
submits that what had occurred was due to
a bona fide error,
oversight, and administrative errors. Confirmatory affidavits by Ms
Swanepoel, Ms Naidoo and one of the applicants
(on behalf of all
three applicants) were duly filed, confirming the averments made by
Mr Scott relating to each, respectively.
In essence, none of these
affidavits contains anything in addition to what had already been
stated by Mr Scott in his affidavit.
[8]
Mr Mulligan, on behalf of respondent, argued that no reasonably
acceptable explanation had been put forward by the applicants.
More
in particular, it was pointed out that subsequent to a request to
that effect respondents' attorneys on 12 May 2010 granted
MacRobert
an extension to file a reply to the request for trial particulars i.
e. from 13 to 15 May 2010. This is indicative of
the fact that Ms
Swanepoel was aware of the request for trial particulars. However,
nowhere in the founding papers is any effort
made to explain Ms
Swanepoel's failure regarding these issues. In a similar vein,
applicants have not offered a satisfactory explanation
for their
failure to take action pursuant to the copy of the application to
dismiss the action which was e-mailed to Ms Naidoo
on 6 September
2010. Mr Scott (so the argument goes) merely deals with matters as
from 14 July 2010. Hence, no explanation of any
kind whatsoever is
proffered for McRobert's failure to deal with the issues prior to
that date or, for that matter, Adendorf's
lack of action.
[9]
In Colyn v Tiaer Food Industries Ltd t/a Meadow Feed Mills (Cape)
2003 (6) SA 1
CSCA) at 9E - F it was stated:
"With
that as the underlying approach the courts generally expect an
applicant to show good cause (a) by giving a reasonable
explanation
of his default; (b) by showing that his application is made bona
fide; and (c) by showing that he has a bona fide defence
to the
plaintiff's claim which prima facie has some prospect of success."
With
regard to the question whether "good cause" had been shown
in that matter, Jones AJA remarked as follows:
"[12]
I have reservations about accepting that the defendant's explanation
of the default is satisfactory. I have no doubt
that he wanted to
defend the action throughout and that it was not his fault that the
summary judgment application was not brought
to his attention. But
the reason why it was not brought to his attention is not explained
at all. The documents were swallowed
up somehow in the offices of his
attorneys as a result of what appears to be inexcusable inefficiency
on their part. It is difficult
to regard this as a 'reasonable'
explanation. While the courts are slow to penalise a litigant for his
attorney's inept conduct
of litigation, there comes a point where
there is no alternative but to make the client bear the consequences
of the negligence
of his attorneys (references omitted). Even if one
takes a benign view, the inadequacy of this explanation may well
justify a refusal
of rescission on that count unless, perhaps, the
weak explanation is cancelled out by the defendant being able to put
up a bona
fide defence which has not merely some prospect, but a good
prospect of success." (at 9F - 10A).
[10]
I am of the view that, in the current instance, applicants'
attorneys' conduct likewise amounts to "inexcusable inefficiency
on their part". I also agree that "it is difficult to
regard this as a reasonable explanation." There simply is
no
explanation on record why, how, or for what reason, applicants'
attorneys, whilst being fully aware of the request for particulars
for trial (as is apparent from the request for an extension of time)
did not react thereto. Ms Swanepoel's lack of action is glossed
over
in applicants' papers. Not the slightest attempt to explain her
conduct is put forward. This lack of action on MacRobert's
part is
directly and causally connected to the eventual dismissal of
applicants' claim. At the very least an affidavit by Ms Swanepoel
explaining the neglect should have been filed. What had happened
prior to 14 July 2010 is shrouded in uncertainty. Mr Scott's
acceptance of responsibility is, without any doubt, professionally
correct and laudable. But such an acceptance of responsibility
does
not in itself suffice and, moreover, does not cure the defects in the
applicants' case. I am, therefore, of the view that
applicants have
not shown good cause by giving a reasonable explanation for the
default. I am furthermore of the view that this
is an instance where,
however unfortunate it may be, the litigants will have to bear the
consequences of the negligence of their
attorneys.
[11]
With regard to the remarks made by Jones AJA in Colvn v Tiaer Food
Industry supra to the effect that "... perhaps, the
weak
explanation is cancelled out by the defendant being able to put up a
bona fide defence which has not merely some prospect,
but a good
prospect of success", it must be borne in mind that those
remarks were made with regard to an application for the
rescission of
summary judgment. I am of the view that, having reached the
conclusions as aforesaid, I need not decide whether applicants
succeeded in showing a prima facie prospect of success. However, I
wish to remark (albeit obiter) that there seems to be no good
reason
why a plaintiff need not show in the application itself that a prima
facie prospect of success does exist. In my view the
latter
requirement has not been satisfied by the applicants. The references
in the applicants' papers in this regard merely boil
down to
averments that it would be for a trial court to decide whether there
is merit in applicants' claim and that it was at all
times the
intention of the applicants to pursue their claim. Although I was
urged by counsel on behalf of the applicants that cognisance
could
and should be taken of the pleadings to the extent that they show
that plaintiffs do have a prima facie case, the requirement
of
"prospect
of success" in an application for rescission cannot be satisfied
with reference to the pleadings only.
I
make the following order:
The
application is dismissed with costs.
T
J Kruger AJ