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[2011] ZAFSHC 168
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Thabo Mofutsanyana District Municipality v Uncle Mass Tuck Shop (A333/10) [2011] ZAFSHC 168 (31 October 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. :
A333/10
In
matter between:
THABO MOFUTSANYANA DISTRICT
MUNICIPALITY
…......................
Appellant
and
UNCLE MASS TUCK SHOP
…............................................................
Respondent
CORAM:
KRUGER, et C. J. MUSI, JJ
HEARD ON:
31 October 2011
_____________________________________________________
JUDGMENT BY:
C.J.MUSI, J
DELIVERED ON:
31
October 2011
[1] This is an appeal
against the judgment of the magistrate Lindley who dismissed the
appellant’s action in terms of Rule
27(5) of the Magistrates’
Court Rules. The respondent does not oppose the appeal. It filed a
notice wherein it indicated
that it will abide by this court’s
decision.
[2] On 11 June 2008 the
appellant instituted action against the respondent for the recovery
of regional services council levies
in terms of the Regional Services
Councils Act 109 of 1985 (the RSCA).
[3] On 24 June 2008 the
respondent filed its plea wherein it denied that it did business
under the name Uncle Mass Tuck Shop. It
further denied that it owes
the appellant any money in terms of the provisions of the RSCA.
[4] During August 2008
the respondent filed an application in terms of Rule 27(5) for the
dismissal of the claim. The matter was
set down for hearing on 29
September 2008. Belatedly, on 15 September 2008, the appellant filed
a request for further particulars
to the defendant’s plea.
[5] The Rule 27(5)
application was removed from the roll.
[6] On 22 October 2008
the appellant filed a notice of intention to amend its particulars of
claim. The amendment was unopposed
and effected on 20 November 2008.
[7] The Rule 27(5)
application was again enrolled for hearing on 15 December 2008. On
this day the application was, by agreement,
removed from the roll and
the appellant was ordered to pay the wasted costs.
[8] The appellant was
involved in litigation in a number of similar cases in various
magistrates’ courts in the Free State.
Various exceptions were
taken against the appellant’s pleadings in the different
courts, including in proceedings pending
in this court.
[9] The appellant’s
attorneys approached various attorneys acting on behalf of other
defendants, who took similar exceptions
in other cases and suggested
that the proceedings in the Magistrate’s Court be held in
abeyance pending this court’s
decision in the exceptions.
[10] Such an agreement
was reached between the appellant and the respondent. On 3 July 2009
the appellant’s attorneys sent
a letter to the respondent’s
attorney wherein the agreement was recorded as follows:
“
Ons bevestig
dat hierdie saak soos die ander waar u by betrokke is sal oorstaan
tot na afhandeling van die eksepsies in die Hoë
Hof in
Bloemfontein wat in September 2009 geargumenteer gaan word.
Ons bevestig voorts dat geen verdere
pleistukke verwissel sal word nie en dat die partye mekaar nie oor en
weer gebonde sal hou
aan tyd nie.”
[11] On 23 February 2010
this court, per Mocumie J, handed down judgment in the exception
proceedings. See
Thabo Mofutsanyana District
Municipality v Steyn Enslin & Partners; Rudnat (Pty) Ltd; Afgri
(Pty) Ltd
case number 4281/2008.
The
appellant filed an application for leave to appeal against the
judgment.
[12] The respondent
enrolled the Rule 27(5) application for 20 April 2010. It was opposed
and postponed to 6 June 2010 for argument.
[13] The learned
magistrate granted the application in terms of Rule 27(5) on the
basis that the matter has been on the roll for
a long time (more that
two years) and that it is understandable that the respondent wants
finality. He found that the exception
proceedings in this court have
been finalised (afgehandel). The magistrate was also of the view that
the appellant was entitled
to apply for appropriate relief after this
Court pronounced on the exception proceedings.
[14] Mr Van Rhyn on
behalf of the appellant argued, before us, that the respondent, by
consenting not to hold the appellant bound
by the prescribed time
periods, whether pending the exception proceedings in this court or
not, waived its right to invoke the
provisions of Rule 27(5),
secondly that the noting of the appeal suspended the operation of
Mocumie J’s judgment, thirdly
that the respondent ought to have
given the appellant notice of its intention to invoke Rule 27(5) and
afforded the appellant the
opportunity to comply with the provisions
of the Rule and lastly that the reasons given by the appellant for
not enrolling the
matter constituted good and sufficient reasons as
envisaged by the Rule.
[15] Rule 27(5) as it
stood before 15 October 2010 provided as follows:
“
A Defendant,
if the Plaintiff has not within 15 days after the pleadings have been
closed given notice of trial either for a day
not more than 20 days
distant or for the first day obtainable from the Clerk of the Court,
apply to the Court to dismiss the action
and the Court may on such
application either dismiss the action with costs or make such other
order in regard thereto and as to
costs of the application as may be
just.”
[16] It is common cause
that the fifteen day period after the close of pleadings had elapsed
and that the appellant did not give
notice of a trial date at all, by
the time the application was brought.
[17] The purpose of the
Rule is to expedite litigation. If the plaintiff – as dominus
litis – is kept to discernible
and tight time frames,
litigation may be finalised speedily. See
Vonck v Fraserburg
Municipality
1974 (1) SA 777
(CPD) at 785 A-B.
[18] A litigant who does
not adhere to the time frames without an explanation or with a bad
explanation will therefore be penalised
by for example having his
action dismissed. If the plaintiff has not adhered to the time frames
he must place facts before the
court in order to show why he has not
proceeded with the action within the required time. See generally
Vonck v Fraserburg Municipality
supra at 784 G-H.
[19] The rule gives the
magistrate a discretion to dismiss the action or to make any other
order that may be just. The discretion
must be exercised judicially
after taking all the facts and circumstances of the particular case
into consideration. Dismissal
of an action is not invariably
required.
[20] Mr Van Rhyn, on
behalf of the appellant, argued that the respondent waived its right
to rely on Rule 27(5). I do not think
that there was an intention to
waive the right to invoke Rule 27(5) or any other time frames in this
matter. It is clear that the
parties intended to suspend the right to
rely on non-compliance with time limits until the finalisation of the
exception proceedings
in this Court. A waiver of a right, once
communicated to the other side by word or conduct, is irrevocable; it
perishes. See
Glaser v Millnard
1950 (4) SA 587
(W) at 588A-B.
In this matter it is clear that the intention was not to renounce the
right to rely on time limits irrevocably but
only to suspend it until
such time as the High Court proceedings have been finalised.
[21] The explanation
given by the applicant, for not prosecuting the action further, is
the agreement between the parties. The respondent
does not deny the
existence of the agreement. The crucial question to answer in this
matter is what the intention of the parties
was when they agreed to
hold this matter in abeyance until the exception proceedings in this
court are finalised. Put differently
when will the proceedings in
this court be finalised.
[22] The word “afhandel”
or “afgehandel” is defined in the Verklarende
Handwoordeboek van die Afrikaanse
taal (HAT) 4
th
ed 2000 as follows:
“
Afhandel ww.
(afgehandel) klaarmaak, tot ‘n einde bring…”
[23] In
Cooper
& Lybrand v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at
767 E – 768 E the technique of interpreting written instruments
was summarised as follows:
“
According to
the ‘golden rule’ of interpretation the language in the
document is to be given its grammatical and ordinary
meaning, unless
this would result in some absurdity, or some repugnancy or
inconsistency with the rest of the rest of the instrument…
The
mode of construction should never be to interpret the particular word
or phrase in isolation (
in
vacuo
)
by itself… The correct approach to the application of the
‘golden rule’ of interpretation after having ascertained
the literal meaning of the word or phrase in question is, broadly
speaking, to have regard:
to the context in which the word or
phrase is used with its interrelation to the contract as a whole,
including that nature and
purpose of the contract, as stated by
Rumpff CJ supra;
to the background circumstances which
explain the genesis and purpose of the contract, i.e. to matters
probably present to the
minds of the parties when they contracted.
Delmas Milling Co Ltd v Du Plessis
1955 (3) SA 447
(A) at 454
G-H;
Van Rensburg en Andere v Taute en Andere
1975 (1) SA 279
(A) at 305 C-E;
Swart’s
case supra at 200E -201A and
202C,
Shoprite Checkers Ltd v Blue Route Property Managers (Pty)
Ltd and Others
1994 (2) SA 172
(c) at 180I –J;
to apply extrinsic evidence regarding
the surrounding circumstances when the language of the document is
on the face of it ambiguous,
by considering previous negotiations
and correspondence between the parties, subsequent conduct of the
parties showing the sense
in which they acted on the document, save
direct evidence of their own intentions. Delmas Millling case at
455A-C, Van Rensburg’s
case at 303A-C, Swart’s case at
201B, Total South Africa (Pty) Ltd v Bekker NO
[1991] ZASCA 183
;
1992 (1) SA 617
(A)
at 624G, Pritchard Properties(Pty) Ltd v Koulis
1986 (2) SA 1
(A) at
10C-D.”
[24] If the word
“afgehandel” is given its ordinary and grammatical
meaning it would mean that the parties agreed that
the matter is only
held in abeyance until a judge of the High Court pronounces on the
matter and not a day further. This would
clearly lead to an
absurdity, because it would fly in the face of the parties’
clear desire to get a binding precedent on
the issue from a higher
court.
[25] The fact that an
appeal is noted or an application for leave to appeal is made clearly
mean that the matter has not yet been
finalised (afgehandel). An
appeal or an application for leave to appeal against an order has the
effect of suspending the order
in question pending the decision of
the appeal or the outcome of the application for leave to appeal
unless the court which gave
such order, on application by a party,
directs otherwise. See Rule 49(11) of the High Court Rules.
[26] The parties to the
agreement were lawyers acting on behalf of their clients. It must be
assumed, based on the context, that
it must have been within their
contemplation that one of the parties might apply for and be granted
leave to appeal. When an application
for leave to appeal is brought
then clearly the proceedings are not finalised “afgehandel”
until that application is
dismissed and there is no petition or the
Court of Appeal pronounced on the appeal. The Supreme Court of Appeal
gave its judgment
on 29 September 2011 in the matter. See
Thabo
Mofutsanyana District Municipality v Steyn – Enslin &
Vennote, Rudnat (Pty) Ltd Afgri (Pty) Ltd
(639/2010)
[2011] ZASCA
168
(29 September 2011).
[27] When the appellant
argued that it applied for leave to appeal there was nothing to
gainsay it except the respondent’s
denial. The magistrate also
accepted the explanation that there was an application for leave to
appeal pending. That being the
case there was sufficient reason for
the magistrate not to grant the order that he did. The magistrate’s
conclusion that
the agreement lapsed after the judgment of Mocumie J
is clearly wrong. There is another reason why the appeal ought to
succeed.
[28] Rule 27(5) and
similar provisions, if not applied judiciously has the potential of
rendering a litigant’s right entrenched
in section 34 of the
Constitution of the Republic of South Africa 1996 nugatory. Section
34 reads as follows:
“
Everyone has
the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
[29] A judicious approach
to the application of Rule 27(5) must be informed by balancing the
right to finality on the one hand and
the right to have disputes
resolved in a fair public hearing on the other hand. It must be just
i.e. in the interest of justice,
to dismiss the action. If such an
approach is applied it would of necessity mean that the dismissal of
an action should not be
done lightly. It should not be a first
resort. It must be invoked after an inquiry into all the facts and
circumstances including
less restrictive means to bring the matter to
finality.
[30] It is clear from the
magistrate’s judgment that he did not consider any other option
but the dismissal of the action.
Rule 27(5) gives him a discretion to
consider other options which are just under the circumstances. I can
not find that the magistrate
exercised his discretion judiciously. On
this ground too the appeal ought to succeed.
[31] Mr Van Rhyn
contended that the appeal should be upheld with costs, which costs to
include the costs consequent upon the employment
of two counsel.
According to him this matter is of great importance to the appellant.
There are factors that militate against such
an order. This matter is
unopposed. The issues argued, before us, were not complex. In my view
it was not a “wise and reasonable
precaution” for the
appellant to employ two counsel. See
Henry v AA Mutual Association
1979 (1) SA 105
(CPD) at 106H-107B.
[32] I accordingly make
the following order:
a. The appeal is upheld
with costs
b. The magistrate’s
order is set aside and replaced with the following:
“
The
application is dismissed with costs.”
_______________
C.J. MUSI, J
I
concur
_______________
KRUGER,
J
On
behalf of the Appellant: Adv A.J.R. Van Rhyn SC
Assisted
by: Adv M. C. Louw
Instructed
by: Podbielsky Mhlambi Inc
Welkom
On behalf of the
Respondent: No appearance.
/ar