Danie Louw Handelaars Bk v Neuhoff and Others (1604/2004) [2007] ZAFSHC 62 (30 July 2007)

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[2007] ZAFSHC 62
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Danie Louw Handelaars Bk v Neuhoff and Others (1604/2004) [2007] ZAFSHC 62 (30 July 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case no. 1604/2004
In
the case between:
DANIE LOUW
HANDELAARS BK
Applicant
and
NEUHOFF AND VAN
DEVENTER
First
Responded
PETRUS
JACOBUS ANTON NEUHOFF
Second Responded
_____________________________________________________
HEARD ON:
28
OCTOBER 2005
_____________________________________________________
JUDGMENT:
RAMPAI,
J
_____________________________________________________
DELIVERD ON:
30 JULY 2007
_____________________________________________________
[1] Two applications were
presented to me on Friday the 28 October 2005. The one which was the
main was about leave to appeal the
other which was ancillary to the
main was about condonation. On behalf of the applicants appeared Mr.
D. Louw, the sole director
of the Close Corporation. Mr. Berridge
appeared for the respondents, an incorporated law firm and its former
director. I then reserved
the judgment but neglected to diarise the
file. The judgment remained outstanding until Malherbe JP recently
contacted me while
I was recuperating at home from a surgical
operation. I deeply regret the delay. The delay was due to an
inadvertent oversight
on my part. I apologise to the parties for all
the inconvenience occasioned by my neglent.
[2] I deem it necessary
to detail the historic background of this matter. At one point the
respondents were the plaintiff’s attorneys.
They initially acted
for the plaintiff in a civil dispute between the plaintiff and an
entity called Prolong. For some reason the
relationship between the
applicant and the respondents later broke down. As a result of the
breakdown the respondents withdrew from
the matter.
[3] In that matter the
applicant was sued by Prolong. In turn the applicant filed a counter
claim against Prolong. The applicant
claimed from Prolong an amount
of approximately R2.5 million for payment of an alleged commission
owing by Prolong to the applicant.
That case was heard by H.M. Musi
J who granted absolution from the instance in respect of the
applicant’s counter claim.
[4] The applicant was
aggrieved by an order of absolution from the instance. The applicant
felt that the respondents were responsible
for its unsuccessful bid
to recover the alleged commission from Prolong. The applicant
alleged that the second respondent was obliged
to have finalised the
commission agreement between the applicant and Prolong. Therefore
the applicant held the respondents responsible
for its loss and sued
the respondents in the present matter.
[5] Although the
applicant claimed an amount of R2.5 million from Prolong by way of a
counter claim the applicant as the plaintiff
now claims approximately
R7.8 million against the respondents as the defendants. It must be
pointed out that the applicant’s damages
are purportedly calculated
in accordance with annexure “A” to its particulars of claim. Now
annexure “A” shows an alleged
loss of some R11 million and not
R7.8 million. At the time the matter was argued before me the
applicant had not been able to clarify
the discrepancy between R11
million and R7.8 million despite the respondents’ request.
[6] On the 2
nd
March 2004 the respondents successfully applied for an order in terms
of which I ordered the applicant to furnish security for the
respondents’ costs in the pending action between the parties. On
that occasion advocate C. Sadler appeared for the applicant and
advocate B. Berridge for the respondents. Having heard argument I
ordered the applicants to furnish security in the amount of R150
000,
00. I directed the applicants to furnish such security within thirty
days of the order. It is this order which the applicant
seeks leave
to appeal against.
[7] In terms of the order
I granted on the 2
nd
March 2004 the applicant had to
furnish security for the respondent’s cost in the sum of R150
000,00 within thirty days in default
of which I granted the
respondents leave to apply to this court on the same papers duly
amended for the dismissal of the applicant’s
action.
[8] The thirty day period
provided for in the court order I made on the 2
nd
March
2004 expired on the 19
th
April 2004. The applicant took
no steps whatsoever to comply with the order I made within the time
stipulated therein. Rule 49(1)(b)
provides that an application for
leave to appeal has to be lodged within a period of fifteen days from
the date of the order so appealed
against. The fifteen day period
provided for in this rule expired on the 24
th
March 2004.
By then no leave to appeal application had been filed by the
applicant.
[9] Since the applicant
did not comply with either of the aforesaid two deadlines in terms of
the court order and in terms of the
rules the respondents launch an
application for the dismissal of the applicant’s claim against them
on the 22
nd
April 2004. The dismissal application was
filed under case number 1174/04. It was enrolled for hearing on the
29
th
April 2004.
[10] On the 28
th
April 2004, the day before the respondents’ application for the
dismissal of the applicant’s action was due to be heard the
applicant
terminated the mandate of its new attorneys. At that time
the applicant’s attorney was ascertain Mr. Michael Saltz of Kaplan
and
Saltz Attorneys of Johannesburg.
[11] In his argument
before me, Mr. Berridge submitted that the only reasonable inference
which could be drawn from the applicant’s
conduct whereby he
terminated the mandate of his attorneys a day before the respondents’
were to apply for the dismissal of its
action is that the supposed
termination of the attorneys mandate, the very date before the
dismissal application was due to be heard
amounted to no more than a
deliberately engineered attempt to secure a postponement of the
matter. He argued that this was particularly
so in the light of the
fact that the applicant had taken no steps either to comply with the
order I made or the relevant rule I mentioned
above.
[12] On the 29
th
April 2004 Mr. Louw, the applicant’s sole director, in person
appeared on behalf of the applicant. He told the court that he no
longer had legal representation and could not afford the services of
legal representatives since he was possessed with no funds
whatsoever.
The application for the dismissal of the applicant’s
claim against the respondents was nonetheless postponed until the
13
th
April 2004 so as to enable the applicant to obtain
the services of a lawyer.
[13] By the 13
th
May 2004 the applicant had still not procured the services of a
lawyer. Once again Mr. Louw appeared in person on behalf of the
applicant. At approximately 09h00 on the 13
th
May 2004
Mr. Louw served two documents both entitled Aansoek tot Verlof tot
Appèl upon the respondents’ offices.
[14] The aforesaid
documents or pleadings do not in any measure comply with the
requisites for a notice of application for leave to
appeal but more
importantly such pleadings were in any event hopelessly out of time
and were not accompanied by the requisite application
for condonation
of there lateness.
[15] Notwithstanding such
material defects in the applicant’s pleadings the court granted the
applicant yet a further indulgence
and postponed the matter to the
3
rd
June 2004 and ordered the applicant to deliver the
necessary application for condonation by no later than the 27
th
May 2004.
[16] On the 27
th
May 2004 the applicant then served a document entitled Aansoek vir
Kondonasie. This document itself was irregular. It did not
constitute
a proper condonation application since, among others,
there was no accompanied affidavit detailing the ground upon which
the applicant
contended that it was entitled to a requisite
condonation. In addition to the above yet another document entitled
Aansoek tot Verlof
tot Appèl was also delivered. There were
numerous and voluminous annexure attached to this pleading including
an affidavit. The
merits of the main action between the applicant
and Prolong were canvassed at length. Needless too say that they
were totally irrelevant.
The deponent of the affidavit was none
other than Mr. Danie Louw himself. The affidavit was signed and
sworn to on the 25
th
May 2004.
[17] Once again the
documents on which the applicant relies were irregular. With this
various documents the applicant has made an
attempt to fully argue
the merits not only of its claim against the respondents but also the
case between it and Prolong. This is
impermissible and the document
has to be completely disregarded in its entirety. It has to be born
in mind that the issue before
the court is the question of security
for costs and nothing more.
[18] The applicant’s
deponent has levelled scurrilous and defamatory allegations against
the respondents in its documentations which
are not only irrelevant
but also scandalous and vixations. It is clear to me that these
documents do not represent an accurate or
fair recordal of either the
facts or events. It was wholly improper for the applicant who has
approached these proceedings in the
manner which it has adopted. The
affidavits to which Mr. Louw deposed on the 15
th
May 2004
was particularly couched in distasteful terms.
[19] The order I granted
in favour of the respondents against the applicant on the 2
nd
March 2004 was determined on the bacis of the papers and affidavits
which had been filed in that application. The application through
Mr. Louw is now attempting to raise a host of not only new but also
entirely irrelevant matters in the subsequent papers filed on
behalf
of the applicant. Once again this is improper. At this stage of the
proceedings the plaintiff cannot be allowed to introduce
new matters
into the papers which was not before me at the time when the relevant
application for the furnishing of security for
costs was argued.
[20] What needs to be
determined at this stage is whether firstly there is a proper
application for condonation before me and if so
whether that
application sufficiently explains the inordinate delay on the part of
the applicant so as to persuade me to come to
its assistance yet
again. Secondly, what needs to be determined in relation to the
order for security for costs it whether there
is any reasonable
prospect of another court coming to a different concluding to the one
I reached if leave to appeal is granted.
[21] As I have already
mentioned the applicant’s application for condonation is not an
application for condonation in the true or
proper sense of the word.
Its simply comprises a document which is not deposed to under oath
and therefore properly place the relevant
facts before the court.
The accertions contained in that document even if taken at face value
are still of no assistance to the
applicant since they do not
contained a sufficient explanation for the delay. The condonation
which the applicant requires and purports
to seek is devoid of any
elementary averments to sustain it. I can find nothing in it to
redeem the very weak application for leave
to appeal not. The delay
was quite excessive.
[22] I do not which to
deal with the matter at length. It is a furtile exercise doing so.
In his answering affidavit the second
respondent P.J.A. Neuhoff says
the following at paragraph 36.3:
“
36.3 The
situation becomes even more curious and, with respect, suspicious
when regard is had to annexure “
AA2
”
hereto, being a letter dated 7 May 2004 from Mr Saltz to Mr Louw in
which Mr Saltz states that: “
Due
to your lack of funds herein we are unable to act further on your
behalf
”.
No explanation is proffered as to why, if the plaintiff had
genuinely terminated Mr Saltz’s mandate on 28 April 2004 (as per
annexure “
AA1
”
hereto), Mr Saltz would himself withdraw as attorney of record some
two weeks later due to a lack of funds.”
[23] In my view the
aforegoing averments have substance. On the 28
th
April 2004 the applicant used a ploy to obtain a postponement he did
not deserve by purporting to terminate the mandate of his attorney
.
The same attorney’s letter of the 7
th
May 2004 clearly demonstrates that the mandate never genuinely
terminated at all. The applicants’ latest attorneys Kaplan &
Saltz withdrew because the applicant did not place them in funds.
That is precisely the reason which prompted the respondents also
to
withdraw. It is therefore quite clear that the applicant is
impecunious. There can be no better justification for the order
I
made on the 2
nd
March 2004 for the applicant to provide security for the cost of the
respondents.
[24] It is also
significant to stress that the applicant remained completely supine
since May 2004 and has taken no steps whatsoever
to prosecute its
purported intention to appeal. I get the distinct impression that
the applicant does not have the serious intention
of taking the
matter further on appeal and that his purported wish to have leave to
appeal was simply prompted by the respondents’
application for the
dismissal of the applicant’s action and all the implications of
such decision. Therefore, I am inclined to
refuse both applications.
Here the prospects of success an appeal are so poor that it would
serve no useful purpose to grant the
condonation application, however
meritorious it might have been.
[25] In the light of the
aforegoing I have come to the conclusion that the application for
leave to appeal as well as the application
for condonation was so
fundamentally defective that they both deserve to be dismissed
outright.
[26] Accordingly I make
the following order:
22.1 The applicant’s
application for condonation for the late delayed filing of an
application for leave to appeal is refused.
22.2 The applicant’s
application for leave to appeal is also refused.
22.3 The
applicant is directed to pay to the respondents the costs of both
applications.
_______________
M. H. RAMPAI, J
On
behalf of the applicant: Mr. Danie Louw
Instructed
by:
Danie
Louw Handelaars BK
BLOEMFONTEIN
On
behalf of respondents: Mr. C. Berrigde
Instructed
by:
Webber
Wentzel Bowens
JOHANNESBURG
/em