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2004
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[2004] ZAFSHC 119
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Baneng Lesotho (Pty) Ltd v Commissioner of Customs and Excise and Another (4311/2004) [2004] ZAFSHC 119 (21 December 2004)
IN THE SUPREME
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case Nr. : 4311/2004
In
the matter between:
BANENG
LESOTHO (PTY) LTD
Applicant
and
THE
COMMISSIONER OF CUSTOMS AND
1
st
Respondent
EXCISE
THE
CONTROLLER OF CUSTOMS AND
2
nd
Respondent
EXCISE,
FICKSBURG BORDER POST
FICKSBURG,
FREE STATE
HEARD ON:
21
DECEMBER 2004
JUDGMENT:
HATTINGH
J
DELIVERED
ON:
21
DECEMBER 2004
_____________________________________________________
[1] On 10 December the
applicant had notified the respondents that an order in terms of the
Notice of Motion would urgently be sought
on 14 December. On the
latter date the âurgentâ application was postponed to 17
December. On this date the application was
once again postponed to
21 December for hearing of the matter. Counsel were also requested
to file heads of argument timeously.
[2] On 20 December, the
day preceding the hearing of this application and at 15:00 I
requested my secretary to call the respective
attorneys of the
parties, and to ascertain from them why the heads of argument were
not filed timeously. Short after the call respondent
filed his heads
of argument. At approximately 15:15 counsel for applicant, made a
direct telephone call, unasked for, and informed
me that he is
experiencing come of difficulty with the typing of his heads of
argument and that it would be ready at 16:00. I might
add, that the
Court, at that stage, already concluded its preparation for the
hearing of the application on the following day, except
for that
which counsel might contribute in their written arguments.
Unexpectedly, and shortly after 16:00, another telephone call
was
forthcoming from Mr. Grewar. To my dismay he announced that, at the
hearing of the urgent application, on the following day,
he will move
for a motion postponing it. Be that at it may, he did not bother to
file any heads of arguments at all.
[3] At
the hearing, Mr. Grewar, asked that the matter be postponed. The
Court indicated that the application for postponement can
only be
considered, once the matter was enrolled as an urgent application,
and due to the respondentsâ intended opposition and
arrangements
which were then agreed upon between the parties, the application lost
its urgency. This fact was, at last, not contested
by counsel, for
applicant.
[4] As
often happens in urgent applications, permission was sought to enrol
otherwise than in accordance with the Court Rules. The
issue, I must
now decide, is whether irregular enrolment should be permitted.
[5] It would be correct
to condone non-compliance with the rules and permit enrolment if that
is warranted by the need to grant urgent
relief. However, it happens
too frequently that counsel unexpectedly rises with a file in his
hands, and asks that the matter which
would have had some urgency, if
the urgency had not disappeared, should be enrolled, only so that
some postponement and some agreement
in regard of costs should be
ordered. That is ill-founded and blatantly wrong. Vanished urgency
is not a reason for enrolment.
(VENTURE
CAPITAL v MAUERBERGER
1991 (1) SA 96
(W) 98 A.)
[6] Respondentâs
counsel contended that no urgency, whatsoever attached to the
application from its inception. I agree.
[7] (i) Applicant avers
that the matter is urgent on the basis that it has a customer for the
goods in question, and that such goods
are due to be delivered to
such customer. Glaringly, the applicant does not say when.
In the founding
affidavit, paragraph 20.3 avers:
â
The further the detention of the
property of the applicant would lead to a definite financial loss for
the applicant and given the
fact that arrangements for the shipping
of this container and its contents, by sea, have already been made,
the cancellation of such
space on the ship lead to a forfeiture of
the deposit paid in respect thereof, and given the fact that we are
nearing the holiday
season, the possibility of obtaining airfreight
for the shipment is minimal and total cancellation of the shipment
and any further
orders, is therefore not excludedâ.
No documentation in
support of this allegation is attached, not even in the replying
affidavit, after the challenge, posed by respondents
in their
answering affidavit.
The co-called shipping
instruction (Annexure âM19â) does not even contain a date.
The applicant has still
not apprised the Court what the amount of the deposit is that was
already paid, in order to assist the Court
to come to a decision
whether such amounts justifies the applicant approaching the Court
on an urgent basis.
[8] It is incumbent upon
an applicant to set out clearly in his founding affidavit the grounds
of any alleged urgency. This is trite
law.
(LUNA
MEUBEL VERVAARDIGERS (EDMS) BPK v MAKIN AND ANOTHER
1977 (4) SA 135
(W).)
[9] What
applicant in fact did was to approach the Court under the veil of
urgency, which did not exist, bearing in mind that the
course this
application followed, starting off on 10 December to today, 21
December, which was brought about by applicantâs own
delay in
bringing this application to fruition.
[10] The
attitude and approach adopted by the applicant and his legal advisors
by bringing the application, as a matter of urgency,
even out of term
must be discouraged. Especially when during recess a Judge is called
upon to prepare (the application consists
of 155 pages) and to hear
the matter at his own considerable inconvenience.
[11] There
is another aspect, and that is that the application was brought with
unwarranted haste and unfounded urgency. Applicant
(and his legal
advisors) have wrongly adopted the attitude that any matter can just
be brought at any time as a matter of urgency
and on the date of the
hearing of the âurgentâ application, (when the urgency had
disappeared) asks that the matter be enrolled
only, so that some
postponement or procedural arrangement, and the like, should be
ordered. This approach is unjustifiable and untenable.
It merits a
special order as to costs, as a mark of the Courtâs disapproval, of
the conduct of applicant in bringing the abortive
application over
hastily and on ill advised grounds. Applicantâs behaviour amounted
to stubbornness bordering on vexatiousness
and was highly
reprehensible. His conduct smacks of petulance and is vexatious and
an abuse of the process of Court.
[12] Moreover,
applicantâs legal advisors, to persist in the application in such
circumstances, evinced a total disregard for the
rights of the
respondents who were put to great expense in resisting the relief
claimed. Such conduct which is not only preposterous,
but somewhat
reckless, if not vexatious and frivolous and clamours for correction
by means of a punitive order for costs.
(MAHOMED
& SON v MAHOMED
1959 (2) SA 688
(T);
LEMORE
v AFRICAN MUTUAL CREDIT ASSOCIATION AND ANOTHER
1961 (1) SA 195
at 199 E â H;
HAYES
v BALDACHIN AND OTHERS
1980 (2) SA 589
(R);
JAMES
v JOCKEY CLUB OF SA
1954 (2) SA 44
(W) and
MAKHUVA
AND OTHERS v LUKOTO BUS SERVICE (PTY) LTD AND OTHERS
1987 (3) SA 376
(V).)
[13] In
all the circumstances it is in my opinion necessary that an attorney
and client costs order be made, and I do so after careful
reflection.
[14] In
the result applicantâs request for condonation and for enrolment of
the matter is refused with costs on the attorney and
client scale
including the wasted costs occasioned by the postponements on 14 and
17 December.
________________
G.A. HATTINGH, J
On behalf of
applicant: Advocate D. Grewar
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of respondents: Mr. Gough
State
Attorney
BLOEMFONTEIN
/ec /sp