Maluti-A-Phofung Municipality v Prellex 192 CC t/a Prellex 192 Consulting Services (5186/07) [2009] ZAFSHC 95 (25 September 2009)

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[2009] ZAFSHC 95
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Maluti-A-Phofung Municipality v Prellex 192 CC t/a Prellex 192 Consulting Services (5186/07) [2009] ZAFSHC 95 (25 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5186/07
In
the
matter
between:-
MALUTI-A-PHOFUNG
MUNICIPALITY
Applicant
and
PRELLEX
192 CC t/a
Respondent
PELLEX 192
CONSULTING SERVICES
(CK2004/058223/23)
JUDGMENT
BY:
MOLEMELA,
J
DELIVERED
ON:
25
SEPTEMBER 2009
[1] This is an opposed
application for condonation for the late filing of the applicant’s
notice of objection to the respondent’s
notice of intention to
amend its summons.
[2] The
respondent issued summons for R396 818.00 and obtained default
judgment for payment of the aforesaid amount. The applicant
then
brought an application for rescission of that judgment. By mutual
consent, an order for rescission of judgment was granted,
after which
the respondent served and filed its declaration.
[3] The
respondent then served a rule 28 notice notifying the applicant of
its intention to amend paragraphs 1 and 2 of the summons,
the
intention being to bring the amount stated in the summons in line
with the one mentioned in the declaration. After the expiry
of the
prescribed 10-day period within which the applicant could file an
objection to the proposed amendment, the respondent proceeded
to
amend the summons in accordance with the notice of intention to
amend. On the same day, the applicant then filed its notice
of
objection to amend the summons. The respondent accordingly filed a
notice in terms of rule 30 on the basis that the notice
filed by the
applicant was irregular. The applicant then brought this application
for condonation of its late filing of the objection.
The only relief
prayed for in that application is that the applicant’s
non-compliance with the rule 28 time-limits be condoned.
[4] If
the relief sought by the applicant were to be granted, then the
applicant’s non-compliance would be condoned. The problem
here
is that the applicant filed its notice of objection four days too
late, by which time the summons had already been properly
amended in
accordance with the rules. Granting an application for the
condonation of the late filing of the notice of objection
would
therefore not change the fact that the summons has already been
amended. This on its own is a sufficient ground to dismiss
this
application.
[5] As
stated above, the applicant only seeks condonation of its late filing
of the objection to amend. No other remedy is sought.
Assuming I
was prepared to grant the relief sought, such relief would serve no
useful purpose for the applicant as it has not
sought an order
“varying or cancelling the amendment”. The granting of such a
relief would, clearly lead nowhere. This, in
my view, is another
ground on which this application falls to be dismissed.
[6] It is trite law that
for condonation to be granted, “good cause” must be shown. The
court has a discretion to grant condonation
and in exercising this
discretion has regard to:
6.1
the
degree of non-compliance;
6.2
the
explanation of the delay;
6.3
the
prospects of success;
6.4
the
importance of the case;
6.5
the
nature of the relief;
6.6
the
other party’s interest in finality;
6.7
the
convenience of the Court;
6.8
the
avoidance of unnecessary delay in the administration of justice;
6.9 the
degree of negligence of the persons responsible for the
non-compliance
SEE:
HARMS:
CIVIL PROCEDURE IN THE SUPREME COURT at p. B-182 (par. B27.7 – at
fn. 17 to 20)
The degree of
non-compliance is slight – being only five days.
The
explanation for the delay (not filing an objection on
6
November 2008
,
but only on
10
November 2008
)
is that one of the applicant’s officials was not available to
provide full instructions. This explanation is, in my view, wholly

insufficient.
T
he
Applicant avers that for the whole period between
23
October 2008
and
6
November 2008
he could not obtain instructions, which he got by
6
November 2008
,
but only filed the objection on
10
November 2008
.
There is thus an absolute dearth of explanation for the passing of
time since
23
October 2004
.
[7]
The
Applicant’s current complaint is that the Respondent, by way of the
amendment, introduced a new cause of action and should
have issued a
fresh summons and complied with Act 40 of 2002. The respondent is
adamant that it actually did not introduce a new
cause of action.
[8] I
n
the original summons, the cause of action was set out as follows:
“
Payment
of the sum of R396 818,00 (three hundred and ninety six thousand
eight hundred and eighteen rand) in respect of services
rendered by
Plaintiff to Defendant during the period February 2007 to July 2007
on Defendant’s special instance and request.”
As
already amended, it now reads:
“
Payment of
the sum of R310 852,00 (three hundred and ten thousand eight hundred
and fifty two rand) in respect of services rendered
by Plaintiff to
Defendant during the period February 2007 to July 2007 on Defendant’s
special instance and request.”
It is
for exactly the same period, namely services rendered
‘…
during the period February 2007 to July 2007 …’
.
In effect only the amount was changed. An invoice, i.e. no. 8, was
attached to the declaration. This invoice 8 is for the amount
of
R310 852-00). Respondent’s claim is thus for R310 852-00 arising
from its invoice 8, relating to serviced rendered in the
period
20/3/07 to 28/6/07. Respondent’s claim is not for R396 818-00
relating to its invoice 7, as stated in the summons, relating
to
services rendered in the period 16/3/07 to 4/5/07.
What
is more critical, in my view, is
that
both invoices 7 and 8 related to
services
rendered
albeit for placing certain people in different positions employment.
It is thus obvious that the Respondent in the amendment does
not rely
on a new cause of action.
[
10] In
my view, the amendment that has already been effected, does not
introduce a new cause of action at all. There are thus no
prospects
of success. As stated before, the explanation for the late bringing
of the condonation application was also not satisfactory.
I find that
the applicant has not made a proper case for the granting of
condonation.
I accordingly grant the
following order:
The
application is dismissed with costs.
___
_________________
M.B. MOLEMELA, J
On
behalf of the
applicant: Adv.
M.J. Ponoane
Instructed by:
Ponoane
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. H.J. Benade
Instructed by:
Naudes
BLOEMFONTEIN
/sp