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[2008] ZAWCHC 240
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Vector Logistics (Pty) Ltd v Al Nahar A1- Sanaei CC and Another (7233/2008) [2008] ZAWCHC 240 (14 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
7233/2008
DATE
:
14
AUGUST 2008
In the matter between:
VECTOR
LOGISTICS (PTY) LTD
APPLICANT
and
AL
NAHAR A1 - SENAEI CC
1
st
RESPONDENT
MILAD
MOHAMMED LASHAHB
2
nd
RESPONDENTS
JUDGMENT
ALLIE,
J
In
this matter, I want to first state, before I give my ruling, that I
have, after reading the papers this morning, offered Judge
Veldhuizen, the presiding judge in the matter on 14 May 2008, who in
fact made the draft order an order of court, an opportunity
to hear
this matter himself, given the fact that he was the presiding officer
at the time.
However,
he was unavailable to deal with this matter today, and given the fact
that applicant had counsel that was not from this
division come into
the City to hear this matter, I informed both counsel in chambers
that I could hear the matter, and was prepared
to hear the matter,
even though I was seized with other urgent matters in the fast lane
today
r
primarily to accommodate the fact that we had counsel involved that
was out of town and that I did not want to escalate the costs
unduly
for any party.
However,
I have also explained to counsel in chambers that Judge Veldhuizen
seemed to have a very good recollection of the matter,
I might add
that he went so far as to be able to tell me exactly where the
respondents were trading, and he certainly knew what
had transpired
in this matter and he was certainly of the view that he intended this
matter to be referred for oral evidence and
trial. I informed counsel
of this before the hearing of this matter, and counsel was
nevertheless prepared to allow me to proceed
with the hearing of this
matter
I
mention this at the onset lest there be a situation where I am
accused of having been prejudiced in this matter by the discussions
I
had with Judge Veldhuizen.
My
ruling in this matter is as follows.
It
is firstly necessary for me to determine whether the order granted on
14 May 2008 is clear and unambiguous. I am certainly
of the view
that, from a procedural perspective, it is unclear, and therefore I
am of the view that this Court has the authority
to intervene in
varying this order so as to make it clear for the purposes of
regulating the further conduct of this matter and
therefore for the
purposes of regulating this Court's own procedure, which it has the
authority to do. I am of the view that in
an instance where the order
is unclear, such as this, I may have regard to the record of the
proceedings with a view to establishing
what the presiding officer
intended to order. On my reading of the record of the proceedings, I
have been able to establish not
only what the presiding officer
intended to order, but also what the legal representatives of both
parties were requested by the
presiding officer to prepare as a draft
order. I was also able to establish what the legal representatives,
including the legal
representative of the respondent intended to
convey when presenting the draft order to the Court on 14 May, and I
quote, the legal
representative of applicant said:-
"The
date of 8 September for the hearing of oral evidence has been
obtained from the registrar."
This
representation was made to the Court in the presence of the legal
representative for the respondent. They both acquiesced in
this
representation being made to the Court, while it has subsequently
transpired today, that the respondent argues that that was
not what
the draft order conveyed and was not what the draft intends to
convey. So one of two things must have happened: either
the legal
representatives for the respondent and applicant deliberately sought
to mislead the Court by stating that the draft order
contained
something which it did not contain, or there was a genuine and real
error on the part of the legal representatives in
drafting the order.
In either event, whichever cause of conduct motivated the
draftspersons of this order to draft that order the
way it is, it is
unclear. It is not in the interests of either party nor the
administration of justice and the running of the matter
that it be
left in this unclear state.
So
therefore my ruling is that the relief sought by the applicant in
this matter would serve to regulate the proceedings of this
matter
and to facilitate the hearing of this matter on 8 September. In those
circumstances I am prepared to
GRANT
THE RELIEF SOUGHT BY THE APPLICANT
as prayed for in paragraphs 2, 3 and 4 of the notice of motion.
As
regards paragraph 5 of the notice of motion, namely that the costs of
this application may either be determined by the trial
court, unless
it is opposed, in which case the respondents are ordered to pay the
costs of this application jointly and severally
As
I have indicated in my brief reasons for this ruling today, I am of
the view that the respondents' legal representative was well
aware of
what the presiding judge at the time, Judge Veldhuizen, had asked
them to draft, and they were well aware of thai because
the advocates
came back and told the judge that they had drafted what they were
requested to. Then they in fact drafted something
with serious
omissions. In the circumstances I believe that the respondent was in
fact mischievous in opposing this matter today
and therefore I would
then also grant the order that the respondents jointly and severally
PAY
THE COSTS OF THIS APPLICATION
today.
ALLIE,
J