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[2010] ZAFSHC 34
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Lotter v KSO Financial Services (Pty) Ltd (1021/09) [2010] ZAFSHC 34 (18 March 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.:
1021/09
In the case between:
MATTHEUS JOHANNES
LOTTER
Appellant
and
K S O FINANCIAL
SERVICES (PTY) LTD
Respondent
CORAM:
EBRAHIM J et
LEKALE,
AJ
JUDGMENT:
LEKALE, AJ
_______________________________________________________
HEARD ON:
8 MARCH 2010
_______________________________________________________
DELIVERED ON:
18
MARCH 2010
_______________________________________________________
INTRODUCTION:
[1] This judgment deals,
ante
omnia
,
with an application for condonation of the late prosecution of an
appeal against a summary judgment granted against the appellant
in
the Magistrate’s Court, Koppies on the 14
th
August 2008.
[2] The respondent
opposes the application on, primarily, the grounds that no adequate
and acceptable explanation for the delay
involved has been furnished
and that the appeal enjoys no reasonable prospects of success.
BACKGROUND:
[3] On or about the 18
th
February 2008 the respondent issued summons for the recovery of an
amount of R1 238 000,00 against the appellant on the basis of
a Deed
of Suretyship and a Finance Agreement concluded with a company viz.
African Spirit of which the appellant used to be the
sole director.
[4] The appellant entered
appearance to defend the said action and the respondent proceeded to
apply for summary judgment. In opposition
of the application in
question the appellant delivered an affidavit.
[5] After hearing the
application the Magistrate granted the same and found that:
“
Dit is so dat die verweerder
kan gee die geskiedenis oor die verloop wat met African Spirit gebeur
het, maar die aard van sy verweer
en die gronde van sy verweer is so
vaag dat ek nie kan bevind dat hy enigsins ‘n verweer het nie.
Hy erken die bestaan van
die ooreenkoms met KSO maar dan later in sy
opponerende eedsverklaring kom ontken hy nou weer die regsgeldigheid
van hierdie dokumente.
Hy wil op twee stole gelyk sit. Die feit wat
geopenbaar is in hierdie verklarings openbaar nie ‘n bona fide
verweer nie.”
[6] Feeling aggrieved by
the judgment the appellant caused a notice of appeal to be delivered
on the 15
th
August 2008 and, further, had a request for the reasons for the
judgment made in terms of Rule 51 of Magistrate’s Courts
rules
on the same date.
[7] The record of the
proceedings was made available by the transcription services provider
on the 6
th
November 2008.
[8] On the 18
th
February 2009 the appellant became aware that his attorney had
omitted to prosecute the appeal by requesting a date for the hearing
of the same within 40 days from the date of noting the appeal as
prescribed by Rule 50(4) (a) of the Uniform Rules of Court (the
Rules).
[9] The application for
condonation was, thereafter, launched by way of motion on or about
the 27
th
February 2009. The reason for the delay in prosecuting the appeal is
attributed solely to the applicant’s attorney in the
papers.
MERITS OF THE
APLICATION:
[10] The onus is on the
appellant, as the applicant, to show good cause for condonation in
terms of Rule 27(3) of the Rules.
[11] As the Court
observed in
Shawzin
v Laufer
1968(4) SA 657 (A) @ 663 B
:
“
[g]ood cause … is ex
natura rei impossible to define and always depends on the
circumstances of each case.”
[12] Among the
circumstances that may be considered in determining whether or not
good cause exists for condonation are the reason
or the explanation
for the delay and the prospects of success in the appeal.
(see generally
Melane
v Santam Insurance Co. Ltd
1962(4) SA 531 (A))
.
REASONS FOR THE
DELAY:
[13] The degree of
lateness involved herein is excessive insofar as the appellant was
required to prosecute the appeal within 40
days calculated from the
15
th
August 2008 and the condonation application was filed on the 27
th
February 2009. The 40 day period expired on the 13
th
October 2008.
[14] The reason for the
delay is effectively given as ignorance of the law on the part of the
appellant’s attorney insofar
as he (the attorney) deposed that
he was under the impression that he had taken all the steps necessary
to prosecute the appeal
timeously.
[15]
Mr.
Cothill
for the respondent contends, in effect, that there was flagrant
disregard for the rules and gross negligence warranting dismissal
of
the application without further ado.
PROSPECTS OF
SUCCESS:
[16]
Mr.
Cronje
for the appellant submitted at length that, although the appellant’s
opposing affidavit which served before the Magistrate
was not a model
of clarity and consistency, its effect was that both the appellant
and African Spirit were not indebted to the
respondent because the
debt had been paid in full.
[17]
Mr.
Cothill
,
on his part, effectively contended on behalf of the respondent that
it was not evident from the relevant affidavit that the appellant’s
case was that the debt had been extinguished.
[18] For the appellant it
was, further, pointed out that the magistrate applied too strict a
test when he determined whether or
not the appellant had a bona fide
defence to the respondent’s claim.
[19] It was, further,
common cause between the parties that no certificate of balance
referred to in the Finance Agreement and the
Deed of Suretyship was
before the magistrate when the relevant judgment was granted.
[20] Rule 14(1)(c) of the
Magistrate’s Court Rules requires the defendant, in the
appellant’s position, to satisfy the
court by affidavit that he
has a
bona
fide
defence and, further, prescribes that such an affidavit should
disclose the
nature
and
grounds
of the defence
or counterclaim.
[21] The parties were,
further, in agreement that what is required of the defendant in
summary judgment proceedings is
“to
set out in his affidavit sufficient facts which, if proved at the
trial, will constitute an answer to the plaintiff’s
claim.”
(see
Marsh
and Another v Standard Bank of SA Ltd
2000(4) SA 947 (w) @ 949 C
).
FINDINGS:
[22] When all is said and
done the Court is satisfied that none of the remissness and
ineptitude involved in the prosecution of
the appeal is attributable
to the appellant.
[23] The question is,
however, whether or not there has been a flagrant disregard for the
Rules and lack of acceptable explanation
of the same such as to
expose and saddle the appellant with the consequences of
“his
attorney’s lack of diligence or the insufficiency of the
explanation tendered.”
(see
Saloojee
and Another NNO v Minister of Community
Development
1965 (2) SA 135
(A) @ 141 C
and
Blumenthal
and Another v Thomson NO and Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) @ 121I-122B)
[24] The Court is
satisfied that the facts
in
casu
are distinguishable from the facts in
Saloojee
and Another
(supra),
Blumenthal
and Another
(supra) and
Darries
v
Sheriff,
Magistrate’s Court, Wynberg and Another
1998(3) SA 34 (SCA)
insofar as:
[24.1] in Darries (supra)
the attorney never asserted in his affidavits that he was
unacquainted with the relevant Rules of Court.
He, in fact, lied
about the relevant matters;
[24.2] in Blumenthal
(supra) the attorney’s neglect to observe the Rules of Court
persisted even after he had become aware
of the fact that he did not
know them;
[24.3] in the present
matter the attorney effectively asserted his ignorance of the Rules
but acted within a reasonable time after
discovering his handicap.
Although he was, at all times material to the appeal, under the duty
to acquaint himself with the relevant
Rules, his bona fides is
evidenced by the demonstrable intention to prosecute the appeal
exhibited by the steps taken, albeit
insufficient, in order to bring
the matter to finality.
[25] The aforegoing,
however, does not relieve a practitioner who accepts instructions, of
the duty to familiarise himself with
applicable law.
[26] With regard to
prospects of success it is clear from case law that
“…
a Court can only exercise its discretion in the defendant’s
favour
[in
an application for summary judgment]
on the basis of the material placed before it and not on the basis of
mere conjecture or speculation.”
(see
Soil
Fumigation Services v Chemfit Technical
Products
2004(6) SA 29 (SCA) @ 39J-40A
).
[27] As
Mr.
Cronje
correctly conceded, the fact that the appellant vacillated in his
affidavit submitted in opposition of the application for summary
judgment has a bearing on the
bona
fides
of his defence.
[28] The history that the
appellant painstakingly sketched out in the said affidavit does not
support the conclusions he reached
when he effectively deposed, inter
alia, that he questions the validity and enforceability of the
Finance
Agreement
and the
Deed
of Suretyship
.
In this regard it should be noted that, as a background, he
effectively pointed out that a finance agreement was concluded with
African Spirit and he also signed as surety.
[29] The appellant blew
hot and cold in his opposing affidavit. He approbated and reprobated
at the same time when he, inter alia,
deposed that the respondent
agreed to collect from the company’s clients and, in the same
breath, maintained that both him
and the company were not indebted to
the respondent in any amount whatsoever.
[30] His affidavit is,
with respect, a model of inconsistency insofar as he, inter alia,
deposed that he did not know what happened
with regard to collection
of debts owing to African Spirit because he and other members of
staff attached to the company were sidelined
and left out but, on the
other hand, he maintained that no money was owing to the respondent.
[31] Most, if not all, of
the appellant’s material averments are collectively
destructive and cannot stand together insofar
as he, inter alia,
effectively raises prematurity as a dilatory plea to the claim but
still maintains that no money was owing by
him or the company. In
this regard it is worth noting that the appellant deposed to the
relevant affidavit that he was assured
that no steps would be taken
against him until collections had been made.
[32] In short the
Magistrate’s Court was effectively left to speculate and glean
the appellant’s defence from the affidavit
without the
appellant coming out clearly on the nature and grounds of his
defence. It is not apparent,
ex
facie
the appellant’s opposing affidavit, that his defence is that
the debt has been paid in full.
[33] The contention that
no certificate of balance was before the magistrate when the judgment
was granted does not, in my view,
advance the appellant’s case
any further. The aforegoing prevails because such a certificate was
not, in law, a pre-requisite
for the granting of the relevant
judgment. It was meant, in the court’s judgment, to assist the
respondent where it so elects
to secure provisional sentence or
summary judgment. For the purposes of summary judgment, what was
required by Rule 14(2)(a) of
the Magistrate’s Court Rules, was
an affidavit verifying the cause of action and the amount claimed.
(see generally
Nedbank
Ltd v Van der Berg and Another
1987(3) SA 449 (W)
).
[34] The absence of such
a certificate of indebtedness or balance before the court simply
meant that the respondent, as the applicant
for summary judgment, was
not relying on it in its quest for judgment. A verifying affidavit
was, instead, delivered in support
of the application as required by
Rule 14(2)(a).
[35] There, thus, exist
no reasonable prospects of success in the appeal. To grant
condonation in
casu
,
when no such prospects exist, would be an exercise in futility.
(see
Rashavha
v Van Rensburg
2004(2) SA 421(SCA)
).
ORDER:
[1.] For the aforegoing
reasons the application for condonation is dismissed.
[2.] The appeal is
dismissed with costs.
[3.] Summary judgment in
the sum of R1 238 000-00 together with interest at the rate of 15,5 %
p.a calculated from 4
th
of August 2006 to date of payment and costs on an attorney and client
scale entered in favour of the Respondent is confirmed.
L.J
LEKALE, AJ
I agree,
S
Ebrahim, J
For the appellant: Adv R
Cronje
Instructed
by:
Stander,venter &
Kleynhans
For
the respondent: Adv C Cothill
Instructed
by:
Kramer Weihmann &
Joubert