Nonxuba v Ramsamy (5008/07) [2008] ZAFSHC 18 (3 April 2008)

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[2008] ZAFSHC 18
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Nonxuba v Ramsamy (5008/07) [2008] ZAFSHC 18 (3 April 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 5008/07
In
the matter between:-
ZUKO
MACK MICHAEL NONXUBA
Applicant
and
JUSTICE REICHLIN
RAMSAMY
Respondent
_____________________________________________________
HEARD ON:
6
MARCH 2008
JUDGMENT
BY:
EBRAHIM,
J
DELIVERED ON:
3
APRIL 2008
[1] This matter commenced
with an application for an order to compliance with a notice in terms
of Rule 14 of the Uniform Rules of
this Court but has resolved itself
into a spat about costs.
[2] Both the applicant
and the respondent are attorneys who acted for one Mgoduka in an
action for delictual damages against the Road
Accident Fund.
[3] Pursuant
to the merits being conceded by the Road Accident Fund, Mgoduka
terminated the respondent’s mandate to continue acting
for him and
engaged the services of the applicant who furnished the respondent
with an unconditional undertaking on 2 May 2006 to
settle the
respondent’s taxed attorney/client bill of costs upon finalisation
of the litigation.
[4] The respondent’s
bill of costs was taxed in May 2007 and in October 2007 the
respondent instituted action against the applicant
in this Court for
payment thereof. The action was defended by the applicant and
thereafter an application for summary judgment was
enrolled for
hearing. That application was dismissed with costs on an
attorney/client scale in favour of the applicant in this matter
and
has no relevance to this application save for the role it played in
the chronology of events leading up to the delivery by the
applicant
of his Rule 14(5)(a) notice requiring disclosure of the names and
addresses of the proprietor/proprietors or partner/partners
of the
respondent. That notice was delivered on 19 December 2007 and notice
of the set down of the summary judgment application
for hearing for
24 January 2008 was served on the applicant on 11 December 2007.
[5] The respondent failed
to reply to the Rule 14(5)(a) notice within the stipulated ten days
and the applicant then launched the
present application on 24 January
2008 for an order directing the respondent to comply therewith and
pay the costs of the application
on an attorney/client scale. On 19
February 2008, after the dismissal of the summary judgment
application, the respondent delivered
its reply to the Rule 14(5)(a)
notice, thus making an order for compliance with the Rule 14(5)(a)
notice superfluous. This application
then proceeded to be argued on
the question of costs only.
[6] On behalf of the
applicant, Mr. Schuring’s main contention was simply that the
respondent had ignored the provisions of Rule
14(5)a) which required
compliance within ten days of the receipt of the notice and on that
ground alone had to be visited with a
punitive costs order. He
referred me to the well known authority of
REID
N.O. v ROYAL INSURANCE CO
1951 (1) SA 713
(T), in support of this submission and in particular
to p. 720 C – D thereof where Roper J had the following to say:
“
In
the present case the application has been brought under a complete
misconception as to the function of particulars, and it also
had the
effect of unnecessarily delaying the further prosecution of the
action, and in the circumstances I feel that the plaintiff
ought to
have his costs as between attorney and client.”
Mr. Schuring likened the
circumstances of the present application to the circumstances
prevailing in the
REID
matter, albeit that that case dealt with a request for further
particulars, and argued that the respondent’s delay in furnishing
a
response to the Rule 14 notice had the effect of delaying the further
prosecution of the action, causing the applicant prejudice
and to
incur unnecessary costs by having to launch the present application.
He urged this Court to make a special costs order on
an
attorney/client scale against the respondent as a mark of its
displeasure at the respondent’s conduct. Such an order, he argued,
would also protect the applicant and cure the applicant of any
prejudice it suffered as a result of what he termed was the
respondent’s
wilful disregard of the Rules of this Court.
[7] Mr. Gilliland, on
behalf of the respondent, submitted that the present application was
entirely misconceived as there was no obligation
upon the respondent
to reply to the applicant’s Rule 14 notice as that notice was an
irregular step in the main proceedings in
view of the fact that it
was filed with the registrar and served on the respondent on 19
December 2007 at a time when the applicant
was fully aware that a
summary judgment application had been enrolled for hearing on 24
January 2008 and that, consequently, all
further steps in the
prosecution of the main action would be stayed pending the outcome of
the summary judgment application. He
submitted that these
circumstances would effectively then have absolved the respondent
from replying to the applicant’s notice
in terms of Rule 14 at
least until the dismissal of the summary judgment application. In
support of these submissions I was referred
to the decision in
VAN
HEERDEN v SAMARKAND MOTION PICTURE PRODUCTIONS
1979 (3) SA 786
(T) where it was held by Myburgh J at 789 C – E:
“
It
seems to me that the purpose of the summary judgment proceedings is
to test the
bona
fides
of the entering of
appearance to defend, meaning that the right to defend is in issue in
such proceedings. Reference has also been
made to Rule 32 (7) which
provides as follows:
‘
(7)
If the defendant finds security or satisfies the Court as provided in
subrule (3), the Court shall give leave to defend, and the
action
shall proceed as if no application for summary judgment had been
made.’
The meaning of this sub-rule, in my
view, includes by implication that the action shall not be proceeded
with pending the Court's
finding that it has been satisfied in terms
of sub-rule (3).”
At p. 789 G – H and at
p. 780 A – B the learned Judge went on to state the following:
“
The
judgment by BOSHOFF J in
Louis
Joss Motors (Pty) Ltd v Riholm
1971 (3) SA 452
(T) deals with the rescission of a summary judgment
claimed under Rule 31 (2) (b). The relevant passage appears at 454D
which reads
as follows:
‘
A
defendant must, under Rule 21 (1), deliver a plea within a stated
period of time and, if he fails to deliver the plea within that
period of time, or within any extended time allowed by the Rules, the
plaintiff may, in terms of Rule 26, by notice served upon him
require
him to deliver the plea within three days after the day upon which
the notice is delivered. If the defendant fails to deliver
the plea
within the three days, or within such further period as may be agreed
upon between the parties, he is in default of filing
such plea and is
ipso facto barred. It is only then that it can be said that the
defendant is in default of a plea in the sense the
words are used in
sub-rule (2) (a) of Rule 31. A defendant is certainly not in default
of a plea where he has delivered notice of
an intention to defend and
is prevented from proceeding with his defence by an application for
summary judgment under and by virtue
of the provisions of Rule 32.
The fact that he was absent and not represented in Court when the
application for summary judgment
was heard and granted, does not make
the judgment a default judgment of the kind contemplated by Rule 31.
In actual fact the defendant
had an attorney acting for him, notice
of the application was delivered to him and the plaintiff had
complied with the requirements
of the Rule entitling him to summary
judgment. The judgment is a final judgment and there is nothing in
the Rules making it provisional.’
From
this judgment it is clear that the election by the plaintiff to bring
summary judgment proceedings stays the running of any period
in terms
of Rule 22.”
This judgment was relied
on and quoted with approval by Levinsohn J in the matter of
KHAYZIF
AMUSEMENT MACHINES CC v SOUTHERN LIFE ASSOCIATION LTD
1998 (2) SA 958
(D).
[8] I am in agreement
with counsel for the respondent that although these decisions were
concerned primarily with the provisions relating
to the filing of a
plea in terms of Rule 22 of the Uniform Rules of Court, the same
principles would be instructive when it come
to the filing of an
exchange of notices and pleadings in terms of Rule 14. He urged me
to dismiss the application and award costs
on a punitive scale of
attorney and client against the applicant on account of the latter’s
abuse of the process of the Court in
bringing an application which is
both vexatious and unreasonable in the circumstances of this case.
[9] On analysing the
chronological sequence of events which preceded the hearing of the
summary judgment application, the following
was common cause between
the parties:
1. That a firm of
attorneys in Bloemfontein known as Andries Spangenberg was the
attorney of record on behalf of the respondent in
the main action and
that the applicant’s firm Nonxuba Inc represented the applicant.
2. On 23 November 2007
the respondent’s attorneys, undoubtedly acting on the respondent’s
instructions, wrote to the applicant’s
attorney. I quote from the
body of that letter:
“We
refer to the above matter and the Application for Summary Judgment
that was set down for hearing on the above mentioned date.
Kindly take note this matter has been
removed from the roll. A copy of the Notice of Removal from the Roll
was also delivered at
your offices.
It is our instructions that the main
action will proceed.”
3. On 7 December the
respondent issued an instruction to Andries Spanbenberg. I quote
from the body of that letter:
“Your correspondence dated 6
December 2007 refers.
The
respondent wants to argue the matter.
Please set the matter down for
argument on the 2....
th
of January 2008 and serve a notice on the other side.
Kindly
advise us about the rules regarding the filing of Heads of
Arguments.”
The precise date of
hearing requested is not clear but is irrelevant for the purposes of
the present application.
[10] Mr. Gilliland argued
that this letter was an indication of the insistence of the present
applicant, who was the respondent in
the summary judgment application
and to whom the present respondent referred in his aforesaid letter
to Spangenberg dated 7 December
2007, that the summary judgment
application proceed despite the present respondent’s instruction
that the main action be proceeded
with. Mr. Gilliland contended that
the reason for this was the respondent’s obvious acceptance of the
bona
fides
of the applicant’s defence to the summary judgment application.
Despite this, the present applicant chose to proceed with the
summary
judgment application on an opposed basis for reasons best known to
himself.
[11] Mr. Schuring, in
reply, contended that there was no proof before this Court that it
was in fact the case that the summary judgment
application proceeded
at the instance of the present applicant and referred me to the
judgment of my colleague Musi J in that application
and specifically
to the order for attorney/client costs made in favour of the present
applicant.
[12] I am loath to
comment on the said judgment and will merely confine myself to making
the comment in passing that a different costs
order might have
resulted in that case had the learned Judge been favoured with the
correspondence I have referred to in this judgment.
On the
probabilities it is clear to me that the present respondent would not
have had reason to enrol the application for summary
judgment unless
urged to do so by the applicant himself.
[13] With
this in mind, I turn now to the specifics of this application and
have concluded that the application was indeed misconceived
and
should never have been lodged. I say so for the following reasons:
1. In accordance with the
authorities I have quoted, the summary judgment application stayed
all further procedural steps in the action.
2. The
applicant’s Rule 14 notice was thus an irregular step and should
not have been taken prior to the dismissal of the summary
judgment
application.
3. Having
been taken, there was no obligation on the respondent to reply
thereto, and any obligation to do so would only have arisen
on
dismissal of the summary judgment application and then only upon the
expiry of ten days from the date of such dismissal.
4. The
applicant took a further procedural step at a time when he was aware
that the summary judgment application had been set down
for hearing.
The notice of set down was dated 10 December 2007 and served on the
applicant on 11 December 2007. The Rule 14 notice
was dated 19
December 2007 and served on the respondent’s attorneys on even
date. It was the applicant, therefore, who evinced
a wilful and
contemptuous disregard for the process of court and for the Uniform
Rules of this Court. He then went ahead and compounded
that abuse by
launching this application. Such conduct must rightly be visited
with a punitive costs order.
[15] In the result the
application is dismissed and the applicant is ordered to pay the
respondent’s costs on an attorney/client
scale.
_____________
S. EBRAHIM, J
On
behalf of Applicant: Adv. C. Schuring Instructed by:
Nonxuba
Inc.
BLOEMFONTEIN
On
behalf of Respondent: Adv. J.G. Gilliland
Instructed
by:
Andries
Spanbenberg Inc.
BLOEMFONTEIN
/sp