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[2008] ZAWCHC 281
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Indawo Cape (Pty) Ltd v South African National Road Agency Ltd (16463/2008) [2008] ZAWCHC 281 (31 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
16463/2008
DATE
:
31
OCTOBER 2008
In
the matter between:
INDAWO
(CAPE) (PTY) LTD
and
SANRAL
JUDGMENT
FOURIE,
J
:
This
matter was brought as one of urgency and heard by
Gamble,
A J
,
on 10 October 2008. After hearing argument, the learned judge made
the following orden-
"The
application is struck from the roll and the applicant is ordered to
pay the respondent's costs of today."
The
matter came before me again during the course of this week in Third
Division pursuant to a notice of set-down filed by applicant
on 23
October 2008. The notice of set-down was
accompanied
by a supplementary affidavit of applicant dealing with the aspect of
urgency, as well as applicant's heads of argument.
Respondent
filed what was termed a preliminary answering affidavit in which the
history of the matter is set out and in which It
is contended that
the latest set-down of the application is a nullity, with the request
that the application be dismissed with
costs on the attorney and
client scale.
As
this judgment is given on a Friday, the last day of this week's Third
Division roll, I will only furnish brief reasons for the
order which
I intend to make.
It
is clear from the judgment of
Gamble,
A J
that he struck the
matter
from
the roll due to a lack of
urgency.
In
fact applicant made no allegation at all in compliance with the
requirements of rule 6(12).
It
is common cause that applicant did not, during the proceedings before
Gamble,
A J
,
or at any stage thereafter, apply for leave to renew its application
on an urgent basis as provided in rule 6(6). In fact, as
I
have
mentioned, applicant has merely, of its own accord, re-enrolled the
application which had been struck from the roll due to
a lack of
urgency.
Where
no order is made on an application, as in the instant case where it
has been struck from the roll due to a lack of urgency,
the order is
the equivalent of an order of absolution from the instance, see
Erasmus,
Superior Court Practice B152 - 53
and the authorities there cited.
It
is probabfy for this reason that Cape Court Notice
11.
4
provides as follows:-
"The
judge who deals with the matter which is alleged to be urgent or
semi-urgent to some degree wiU decide whether it is urgent
at all,
and if it is urgent, whether it is urgent or semi-urgent. If it is
held not to be urgent at all, the matter will have to
be set down on
the continuous roll in the usual way."
The
order of
Gamble,
A J
amounts to a finding that the matter is not urgent at all, for had
the learned judge found that it was urgent, he would have dealt
with
it as an urgent application, or have referred it to the semi-urgent
roff if he was of the view that it was only semi-urgent.
By striking
it from the roll, the learned judge, in my view, of necessity held
the matter not to be urgent at all. it then follows
that in terms of
Court Notice 11.4, the matter has to be set down on the continuous
roll in the usual way.
As
I have mentioned previousfy, the only other route available for
applicant in the circumstances would have been to utilise rule
6(6)
by applying for leave to renew the application on an urgent basis,
i.e. on the same papers supplemented by such further affidavits
as
the case may require.
Applicant
did not follow any one of the two routes available to it, but, as I
have already indicated, has re-enrolled the matter
for further
argument on the issue of urgency, which issue
Gamble,
A J
had already disposed of.
It
follows in my view that the application which applicant has
re-enrolled before me this week
r
is fatally defective and cannot be entertained.
In
the circumstances, respondent is the successful party and has asked
me
to
order applicant to pay its costs on the punitive scale of attorney
and client. Having regard to the flawed process followed by
applicant, E can see no reason why respondent should, in the
prevailing circumstances, be out of pocket with regard to its wasted
costs.
In
the result the following order is made;-
1.
The application is
DISMISSED
.
2.
Applicant is to
PAY
RESPONDENT'S COSTS OF OPPOSITION. INCLUDING THE COSTS OCCASIONED BY
THE APPEARANCES ON 29 OCTOBER 2008 AND 31 OCTOBER 2008.
ON THE SCALE
AS BETWEEN ATTORNEY AND CLIENT.
FOURIE,
J