Maes v Hancox (A219/02) [2003] ZAWCHC 43 (3 September 2003)

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[2003] ZAWCHC 43
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Maes v Hancox (A219/02) [2003] ZAWCHC 43 (3 September 2003)

IN THE HIGH COURT OF SOUTH
AFRICA
REPORTABLE
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO.: A219/02
In
the matter between:
DANIEL
JOZEF JULES MAES
Appellant
and
MATTHEW
HENRY HANCOX
Respondent
_______________________________________________________________________
_
JUDGMENT DELIVERED : 3
SEPTEMBER 2003
________________________________________________________________________
BOZALEK
J
The appellant appeals against
an order made by the magistrate, Knysna, dismissing an application
brought by the appellant in which
he sought, principally, that an
agreement of settlement entered into between himself and the
respondent be made an order of that
court. The application was
dismissed with costs on the attorney and client scale. In addition,
the appellant also appealed against
the magistrate's finding that he
had the power to strike out offending material from the appellant's
replying affidavit and, in
the alternative, appeals against the
magistrate's finding on the merits of the striking out application
and the costs order made
pursuant thereto. The appellant also
appeals against the decision by the magistrate allowing the
respondent a postponement but
abandoned this during argument.
Background
A brief summary of the
litigation which led up to the appeal is necessary. At all
material
times the appellant was either the plaintiff or the applicant in the
court
a
quo
and the respondent was the defendant or the respondent. I shall
refer to the parties throughout as the appellant and the respondent.
In April 1998 the appellant
sued the respondent for damages of approximately R17 000
arising from the sale during the previous
year of an immovable
property. The trial proceeded initially on the merits of the claim
and in April 2001 the appellant obtained
judgment in his favour. It
would appear that even at that early stage the litigation was not
straight-forward but had been characterised
by a series of
applications and counter applications.
In
July 2001 the quantum of the damages suffered by the appellant was
settled in an exchange of letters between the parties' respective
attorneys. The terms of the settlement were that the appellant
would receive payment of a sum comprising the cost of certain

planking plus the amount of a bill of costs taxed in his favour less
the amounts of two smaller bills of costs taxed in favour of
the
respondent. The costs of the planking had still not been
determined but the terms of the settlement provided that if the
parties could not reach an agreement "
regarding
the costs of the planking and the labour thereto an independent
expert approved by both parties must determine the costs"
.
The
appellant's attorney proceeded to draw a bill and have his client's
costs taxed. He grew impatient however when, approximately
a month
and a half after conclusion of the settlement, the respondent's
legal representative had not, as he had been requested,
taxed his
client's two smaller bills of costs. Nor had he furnished
"
suggestions
concerning the finalisation of the capital claim"
as had been requested by the appellant's attorney.
In late September 2002 the
appellant launched an application in which he sought the following
relief:
(1) that
the settlement agreement be made
an
order of court
alternatively
that the appellant be permitted to place the matter on the roll for
hearing in order to determine the quantum of his claim;
(2) that the
respondent be ordered within a stipulated time to furnish quotations
by "
three
suitably recognised and independent companies or contractors to give
effect to the determination of the quantum (i.e the planking
and the
labour)"
;
(3) that the
respondent be ordered to serve his bill of costs within a stipulated
time failing which "
it
shall be considered that the (respondent) has no such bill of costs"
;
(4) costs on an attorney and
client scale;
(5) that the appellant be
permitted to proceed against the respondent for his taxed costs
immediately after expiry of the period referred
to in prayer (3)
above;
(6) alternative relief.
As an initial observation one
notes that the appellant's relief confusingly veers between seeking
to enforce the settlement agreement
and repudiating same.
Thus commenced a further round
of time-consuming and costly litigation. Both parties briefed
counsel and the initial application
heard by the court was for a
postponement at the instance of the respondent. Although opposed,
the application was duly granted.
Each party's attorney testified
in the proceedings.
The next step was that the
respondent gave written notice of an application to strike out large
portions of the appellant's replying
affidavit. Argument first
ensued as to whether the court had jurisdiction to entertain such an
application and this question too
was decided in favour of the
respondent. Eventually argument was heard in respect of the
striking out application and then in
respect of the merits of the
matter and the judgment, now appealed against, was delivered.
Acrimony
has been evident throughout the litigation, if not between the
parties then certainly between their legal representatives
. This
was reflected particularly in the opposing affidavit filed by the
respondent's legal representative to which I shall return
in due
course. It is noteworthy that in the entire proceedings now under
appeal not a word has been said by the appellant and
the respondent
themselves. Instead, the affidavits which were exchanged and what
little
viva
voce
evidence
was given came from the mouths of the parties' legal
representatives.
The striking out application
On appeal the appellant
maintained his contention that the magistrates court, being a
creature of statute does not have the power
to, and is precluded
from, entertaining the striking out application.
It
was contended on the basis of case law (See
Hydromar
(Pty) Ltd v Pearl Oyster Shell Industries (Pty) Ltd
1976 (2) SA 384
(C) at 386H-387A) that as the magistrates court is a
creature of statute its jurisdiction must be deduced from the four
corners
of the Magistrates’ Court Act, Act 32 of 1944 (as amended)
and that in the absence of any reference to such a power in that act
and the rules promulgated thereunder, a magistrate does not have
jurisdiction to entertain an application for the striking out
of,
inter
alia
,
argumentative and new matter from affidavits in motion proceedings.
The appellant’s counsel
pointed out that, unlike in the case of a summons in respect of
which rule 17(6)(a) provides for an application
to strike out any
argumentative, irrelevant, superfluous or contradictory matter
contained therein, a similar provision in respect
of motion
proceedings is conspicuously absent.
That
contention however, fails to have regard to the fact that, in the
absence of an inconsistent express provision, authority may
be
implied, as well as that it is recognized that when the Magistrates’
Court Act confers jurisdiction its purpose is not to
be defeated
because of a failure to have specifically mentioned the ancillary
powers that may be necessary to give effect thereto
(See:
Hatfield
Town Management Board v Mynfred Poultry Farm (Pty) Ltd
1963
(1) SA 737
(SR) at 739F-H;
S
v K
1997
(1) SACR 114
(C) at 114c-e;
Makwanazi
v Bivane Bosbou (Pty) Ltd and three similar cases
1999 (1) SA 765
(LCC) at 768D-E).
Section 12(1) of the
Magistrates’ Court Act imbues magistrates with the power to hold a
court and to exercise the powers and perform
the duties conferred or
imposed upon them by any law for the time being in force within the
province in which their district is
situate.
It is axiomatic that when
holding a court magistrates must do so in accordance with the
accepted procedures applicable to the particular
proceedings serving
before them and in compliance with the rules of evidence recognized
by common law, provided for in statute
law or enunciated by the
courts.
17. Section 2 of the Civil
Proceedings Evidence Act 25 of 1965 – the provenance whereof, in
this province, can be traced to section
34 of Ordinance 72 of 1830 –
provides as follows:
‘
No
evidence as to any fact matter or thing which is irrelevant or
immaterial and cannot conduce to prove or disprove any point or
fact
in issue shall be admissible.
’
Section
24(1)(d) of the Supreme Court Act, 59 of 1959, furthermore provides
that the proceedings of an inferior court may be assailed
on review
on the basis of,
inter
alia
,
the admission of inadmissible or incompetent evidence.
It is generally accepted that
argumentative matter falls under irrelevant matter.
19.
What is the situation as regards new matter in replying affidavits?
The
affidavits in motion proceedings fulfil a dual purpose namely, to
place the essential evidence in support of or in opposition
to the
granting of the relief claimed before the court and to define the
issues between the parties (See:
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999
(2) SA 279
(W) at 323G). It is trite that founding affidavits must
contain the essential averments on which an applicant’s cause of
action
is based, as in the absence thereof, a respondent would not
know what the case is that has to be met (See:
Derby-Lewis
and Another v Chairman Amnesty Committee of the TRC
2001 (3) SA 1033
(C) at 1052C-E). A respondent’s responses to the
averments in a founding affidavit delineates the issues between the
parties.
On the other hand the purpose of a replying affidavit is to
deal with the averments made by the respondent in an answering
affidavit
(See:
Bayat
& Others v Hansa & Another
1955 (3) SA 547
(N) at 553C-E). Except where the averments in an
answering affidavit provide additional grounds for the relief claimed
(See:
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stanger
1976 (2) SA 701
(D) at 705A-C) an applicant is not permitted to make
out a new cause of action in a replying affidavit or to supplement
averments
that should have been included in the founding affidavit.
In my view, new matter not
covered by the exception alluded
to above or not germane to the issues delineated by the founding and
answering affidavits, falls
squarely within the ambit of section 2 of
the Civil Proceedings Evidence Act and would be inadmissible.
In a civil trial a magistrate
makes rulings as regards the admissibility of evidence as
and when the need arises. In
the case of an application entailing the filing of founding,
answering and replying affidavits (but
not necessarily limited to
such proceedings), the only practical expedient is an application to
strike out the offending material.
The
recognized authors on civil procedure in the magistrates’ courts
accept that magistrates have the power to entertain applications
to
strike out offending material from affidavits (
The
Civil Practice of the Magistrates’ Court of South Africa: Jones &
Buckle
(9ed),
Vol 2, pages 12-13 and
Burgerlike
Prosesreg in die Landdroshowe,
at pages 828-829).
22.
In view of the aforegoing I incline to the view that the submission
that magistrates do
not have
jurisdiction to entertain applications for the striking out of,
inter
alia
,
argumentative and new matter in motion proceedings, does not have any
merit.
As far as the merits of the
application are concerned the respondent objected to no less than
nine portions of the appellant's replying
affidavit on the grounds
that the material contained therein was new, irrelevant or
argumentative. It is unnecessary to recount
the details of the
material objected to or the precise grounds upon which the
objections were sustained. Whilst I do not necessarily
agree in
full with the magistrate's analysis of what justified striking out,
in my view there is no doubt that certain portions
of the affidavit
fell to be excluded on the grounds that they sought to introduce new
matter or amounted to no more than argument.
The appellant's counsel contended that the respondent
had failed to show that he would suffer prejudice should the
offending material
not be struck out. Whilst it is correct that a
court will not grant an application for striking out unless it is
satisfied that
the applicant will be prejudiced in his case, such
prejudice does not have to be so substantial that, if the offending
allegations
remain, the objecting party's chance of success will be
reduced. As
was stated in
Vaatz
v Law Society of Namibia
1991 (3) SA
563:
‘
It
is substantially less than that. How much less depends on all the
sircumstances; for instance, in motion proceedings it is necessary
to answer the other parties allegation and a party does not do so at
its own risk. If a party is required to deal with scandalous
or
irrelevant matter the main issue could be side-tracked. But if such
matter is left unanswered the innocent party may well be
defamed.
The retention of such matter would therefore be prejudicial to the
innocent party.
’ *(At 566J-567B).
In my view the very fact that
in certain instances the appellant sought to introduce new material
into his replying affidavit
which could not be dealt with by the
respondent in the normal course constituted prejudice and for that
reason alone deserved
to be struck out.
It
was also contended on behalf of the appellant that argumentative
material introduced into the replying affidavit was elicited
by the
content and abusive tone of the respondent's answering affidavit.
Whilst much of the answering affidavit
was
objectionable, the appellant's proper course of action was not to
reply in kind but rather to have applied to strike out what
he
considered to be the offending portions of the respondent's
affidavit. Indeed given the tone and content of the opposing
affidavit by the respondent's legal representative I am at a loss
to understand why such a step was not taken.
In the result I can see no
reason why this court should interfere with the magistrate's
rulings in regard to the striking out
application.
THE MERITS OF THE MAIN APPLICATION
In the founding affidavit the
appellant's attorney set out the terms of the settlement and his
fruitless efforts to have the respondent's
legal representative tax
the bills of costs owing to his client and make an offer in respect
of the costs of the planking and
related labour costs. It was
however only in the appellant's replying affidavit that his
attorney spelt out what had been implied
in the founding affidavit
viz that, in his view at least, an impasse had been reached in the
enforcement of the settlement agreement
leaving the appellant with
no choice but to approach the court for the relief sought.
Leaving
aside the questions of whether the application was premature and
whether there was a sound legal basis for the relief
sought, the
tone and content of the affidavits filed on behalf of the appellant
was unexceptionable. Unfortunately the same
cannot be said of the
opposing affidavit deposed to by the respondent's attorney.
Amongst the allegations he made against the
appellant's attorney
were the following: the attorney was "
onbewus
van die terminologie 'redelik'";
the attorney "
reeds
karnuffel is met sy kwelsugtige aansoek rakende die beslaglegging";
the attorney and/or the appellant considered themselves as
"
hoogwaardig"
and were "
compulsive
litigants"
.
These examples are by no means exhaustive and merely give an
indication of the vituperative tone and content of the affidavit.
These
accusations and adjectives were used in support of allegations that
the application was vexatious, premature and unnecessary.
Few, if
any, relevant facts were introduced in the affidavit. No
explanation at all was given by the respondent's attorney
as to why
he had not drawn his client's bills of costs or taken any steps
towards determining the planking and labour costs for
which his
client was liable. In my view the overall tone of the affidavit
was gratuitously insulting and argumentative. My
criticism of the
affidavit should not be understood as suggesting that the
respondent's opposition to the application was not
justified or
that all of the points made in support of the respondent's
opposition were without merit. As was stated however
in a
different context in
Vaatz’s
case,
to the extent that the allegations made by the respondent's legal
representative were well-founded, these could and should
have been
advanced in measured and respectful terms and certainly did not
have to be clothed in offensive language. (Ibid p.
569 I - J).
In dismissing the application
the magistrate found that the appellant's prayer for the deed of
settlement to be made an order
of court was misconceived since the
settlement agreement itself did not provide that it could be made
an order of court. He
held also that the appellant was not
entitled to any relief despite the fact that at a late stage in the
proceedings the appellant
moved for the addition of a further
alternative prayer to prayer 1 which read:
‘
Alternatively
that the settlement agreement be noted
and/or
settlement agreement be made a judgment of court, and/or the
settlement agreement be set aside on such directions for the
further
prosecution of the action as the court may deem fit.
’
(my underlining)
Furthermore the magistrate
awarded the respondent costs on the attorney client scale but
proffered no reasons for this decision.
The provisions of the
Magistrates’ Court Rule 27 which deal with withdrawal, dismissal
and settlement read, so far as they are
relevant, as follows:
‘
….
(6) Application may be made
to the court by any party any time after entry of appearance and
before judgment to record the terms
of any settlement of an action
without entry of judgment agreed to by the parties. If the terms of
settlement so provide, the
court may make such settlement an order
of court.
(7) Such application shall
be on notice, except when the application is made in court during
the hearing of any proceeding in the
action at which the other party
is represented or when a written waiver (which may be included in
the statement of the terms of
settlement) by such other party of
notice of the application is produced to the court.
(8) At
the hearing of the application the applicant shall lodge with the
court a statement of the terms of settlement signed by
all parties
to the action and, if no objection thereto is made by any other
party, the court shall note that the action has been
settled on the
terms set out in the statement and thereupon all further proceedings
in the action shall, save as hereinafter provided,
be stayed.
(9) When
the terms of settlement provide for the future fulfilment by any
party of stated conditions and such conditions have not
been
complied with by the party concerned, the other party may at any
time within 12 months after the first mentioned party has
so failed
to comply, apply for the entry of judgment in terms of the
settlement. Such application shall be on notice to the party
alleged to be in default, setting forth particulars of the breach by
the respondent of the terms of settlement.
(10) After hearing the
parties the court may:
(a) dismiss
the application;
(b) give judgment for the
applicant as specified in the terms of the settlement;
(c) set
aside the settlement and give such directions for the further
prosecution of the action as it may deem fit;
(d) make
such order as may be just as to the costs of the application.
’
of the
application.
”
Clearly, in my view, the
subrules provide a graduated system for the recordal and if
necessary, the enforcement of settlements
with a view to minimizing
disputes that may arise therefrom.
The
magistrate found that the exchange of correspondence between the
parties which contained the terms of their agreement did
not
constitute a deed of settlement. In this he was clearly wrong.
Neither party ever contended that a settlement had not been
arrived
at and the letters constituting the settlement agreement were
signed by the parties' duly authorised legal representatives.
Rule
2 defines a "
party"
as including the attorney or counsel appearing for any such party
and therefore the requirements of Rule 26(8) were satisfied.
It
is settled law that a compromise may be effected by the parties to
a dispute themselves, or by their agents or attorneys.
See the
authorities referred in
Wille’s
Principles of South African Law
8th edition p. 489 footnote 876. The settlement in question must
obviously be a settlement which intends to bring an end to
the suit
as a whole and that requirement has clearly been met in the present
instance. See
Siebert
and Honey v Van Tonder
1981(2) SA 146 (O) at 148D.
However, the terms of the
settlement in question clearly did not provide for it to be
made an order of court. For
that reason alone the main relief sought by the appellant
namely,
that the settlement agreement be made an order of court, was
misconceived and was correctly refused by the magistrate.
In my
view, having regard to the provisions of Rule 27 quoted above, the
balance of the alternative relief initially sought by
the appellant,
viz
the setting of the matter down for the determination of quantum, was
similarly misconceived. The parties had entered into a binding
agreement of settlement which provided, in the absence of agreement,
for an independent expert to determine the quantum. The effect
thereof, in the absence of an express or implied reservation of the
right of the appellant to proceed upon the original course
of
action, was to bar proceedings on the original cause of action and
had the effect of
res
judicata
.
Mothle v
Mathole
1951(1) SA 785 (T) at 789 A - C.
Apart therefrom, the parties
had agreed in effect that quantum would, failing agreement thereon,
be determined by an independent
expert.
Notwithstanding
the general principle referred to above, a compromise or
transactio
is subject to the ordinary laws of contract and can be set aside on
the usual grounds available to an aggrieved party which would
include fraud,
iustus
error
and impossibility of performance.
Blou Bul
Boorkontrakteurs v McLachlan
1991(4)
SA 283.
However no such allegations
were made by the appellant whose case went no further than that the
respondent was dragging its heels
in complying with the settlement
agreement and that an impasse had been reached.
Accordingly the relief sought
that the appellant be permitted to place the matter on the roll for
the determination of the quantum
of his claim, as well as the
relief that the respondent be ordered to furnish quotations in
respect of the cost of the planking
and labour within a stipulated
time, was correctly refused by the magistrate. For the same
reasons the prayer that the respondent's
bill of costs be
disregarded unless served within a stipulated time was similarly
destined to fail.
Apart
from any other consideration the appellant's seeking of the
specific performance envisaged in prayer 2 was premature. The
settlement agreement imposed on both parties an obligation to
attempt to reach agreement regarding the costs of the planking
and
the labour and only thereafter, if the parties were unsuccessful in
such attempts, were the services of an independent expert
"
approved
by both parties
"
to be obtained in order to determine such costs. A reading of the
papers indicates no attempt by the appellant to reach
agreement on
the said costs, not even so much as a suggestion on his behalf as
to what amount would be appropriate.
It
would seem, however, that in the course of arguing the application
in the court
a
quo,
the appellant's counsel recognised the risk that the relief sought
was misconceived and moved for an amendment to prayer 1 as
set out
in paragraph 31 above in terms of prayer 5 of the application
(which sought
"Alternative
relief"
).
This amendment was sought at a
late stage, during the appellant's counsel's reply. Nonetheless,
the respondent's counsel did
not object to the proposed amendment
as he would have been fully entitled to do. In his earlier
address to the court furthermore,
the respondent's counsel
explicitly conceded, on two occasions, that at best the appellant
could ask the court to record or note
the terms of the agreement.
In
my view it was competent for the appellant to have sought the
relief that "
the
settlement agreement be noted"
in terms of the prayer for alternative relief despite the fact that
it was not initially spelt out in the application. The founding
affidavit clearly establishes that the appellant was relying on a
settlement agreement and was seeking in the first place to
enforce
it. The respondent did not dispute the settlement or that its
terms had not been fulfilled. Furthermore, the respondent's
counsel's concessions that the appellant was at most entitled to
record or note the judgment may well have elicited the expanded
prayer for the alternative relief sought by the appellant in the
form of the amendment which in itself was not opposed by
respondent's
counsel. cf
Combustion
Technology (Pty) Ltd v Technoburn (Pty) Ltd
2003 (1) SA 265.
Unfortunately
the court
a
quo
not only failed to rule on the amendment sought but failed to
mention or consider whether the appellant was entitled to that
particular substantive relief. In my view this omission on the
part of the magistrate constituted an error. Further, in my
view,
although the granting of such relief to the appellant would not
have immediately broken the impasse, actual or perceived,
it would
at least then have signalled to the respondent that the appellant
had embarked upon a course of action which could ultimately
lead to
the entry of judgment against respondent of the terms of the
settlement agreement.
Such a course of action is
provided for by rule 27(9) which holds that where the terms of
settlement provide for the future fulfilment
by any party of stated
conditions and which have not been complied with by the party
concerned, the other party may apply for
the entry of judgment in
terms of the order. In the present case, had the court recorded or
noted the terms of the settlement,
it would have been open to the
appellant at a later stage to take steps in terms of subrule 27(9)
as soon as he was able to clearly
demonstrate that he had fulfilled
his obligations in terms of the settlement agreement and that
respondent was in clear breach
of his obligations. For the
reasons I have set out above, this stage had not been reached at
the time that the appellant launched
the application which is the
subject of this appeal.
In my view then the magistrate
erred in dismissing the application. Instead, he should have
granted the appellant relief in terms
of the amended relief sought
late in the application namely that the settlement agreement be
noted.
COSTS
As I have mentioned the only
relief to which the appellant was entitled was sought late in the
day and was relatively insubstantial
in relation to the sweeping
(and in part contradictory) relief initially sought by the
appellant in the application. In the
ordinary course of events I
would for these reasons have been inclined to deprive the appellant
of the costs of the application.
However, the circumstances of
this matter are far from ordinary, marked as it is by
ill-considered and ill-tempered litigation.
Both parties and their legal
representatives must carry blame for this state of affairs.
Nonetheless the most distressing feature
of this matter is the
insulting and scandalous nature of the opposing affidavit filed by
the respondent's attorney. Accordingly,
in part as a mark of this
court's disapproval of such conduct, I would award the costs of the
application to the appellant.
Certainly there is no justification
at all for the magistrate's decision to award the costs of the
application to the respondent
on the scale of attorney and client.
The magistrate furnished no reasons for this award. I do not
accept the argument that
he must be taken to have exercised a
discretion in this regard simply by reason of the fact of his
decision taken together with
the further fact that he declined to
include the costs of counsel in such award thereby indicating, so
it was agreed, that he
applied his mind to the matter.
For the reasons which I have
already given I see no grounds to interfere with the orders made by
the magistrate in respect of
the subsidiary applications. As
regards the costs of the appeal itself, since the appellant has
achieved substantial success
I can see no reason why he should not
be awarded the costs thereof.
Finally, and at the risk of repetition, I must record
my dismay that a dispute of such minor proportions has led to such
a proliferation
of litigation with a concomitant mushrooming of
costs.
In the result I would uphold
the appeal with costs and would substitute the following order:
(1) The
terms of the settlement agreement entered into between the appellant
and the respondent as set out in annexures "A"
and "B"
to the founding affidavit of H J Pama in the application in Knysna
Magistrate's Court case
no.
1614/01 are recorded in terms of rule of court 27(6) and (8).
(2) The appellant
(applicant in the application) is awarded the costs of the
application.
For the sake of clarity the
costs award in paragraph (2) above does not include the costs of
counsel.
…………………………………
.
BOZALEK
J
VAN
REENEN J:
I
agree, and it is so ordered.
_______________________________
VAN
REENEN J