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2024
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[2024] ZAGPJHC 590
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MEC for Provincial Department of Infrastructure Development v Pro-Plan Consulting Engineers (Pty) Ltd (2023/050619) [2024] ZAGPJHC 590 (24 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 2023-050619
1. REPORTABLE: YES / NO
2. OF INTEREST TO OTHER
JUDGES: YES/NO
3. REVISED.
In
the matter between:
THE
MEC FOR THE PROVINCIAL DEPARTMENT
OF
INFRASTRUCTURE DEVELOPMENT
Applicant/Defendant
and
PRO-PLAN
CONSULTING ENGINEERS (PTY) LTD
Respondent/Plaintiff
Coram:
Maenetje AJ
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and uploading on
Caselines. The date and time for handdown is deemed to be 10h00 on 24
June 2024.
JUDGMENT
Maenetje
AJ:
Introduction
[1]
The applicant brings an application for condonation for the late
filing of a plea, for lifting the bar and leave to file
a plea within
five days from the date of the order. The respondent opposes the
application, essentially on the basis that the applicant
has failed
to make out a good case for condonation and the lifting of the bar.
The
facts and contentions
[2]
The chronology of events is fairly straight forward. The respondent
served summons on the applicant on 7 June 2023. The
applicant
delivered a notice of intention to defend on 13 June 2023. The
defendant’s plea was due on 12 July 2023. For no
apparent
reason, the applicant filed another notice of intention to defend on
27 June 2023. Instead of the respondent objecting
to this as an
irregular step, it wrote to the applicant and afforded it an
opportunity to file its plea on 25 July 2023. The applicant
failed to
file the plea within the extended time frame. On 26 July 2023 the
respondent filed a notice of bar. This afforded the
applicant five
days in which to file the plea under bar. The five days expired on 3
August 2023. The applicant failed to file its
plea on 3 August 2023.
[3]
The explanation offered by the applicant’s attorney, i.e. the
state attorney, for failing to file the plea under
bar is that Mr
Mncube, the state attorney, prepared a plea to be filed and signed it
on 31 July 2023. He instructed his professional
assistant to have the
plea filed on 31 July 2023. He explains that unbeknown to him, the
professional assistant did not file the
plea on 31 July 2023 or at
any time prior to 3
August 2023.
[4]
Mr Mncube explains that he only discovered that a plea had not been
filed as per his instructions on 16 August 2023 when
the respondent
served an application for default judgement. He then sent an email to
the attorney for the respondent to explain
that he had given an
instruction for the plea to be filed on 31 July 2023 and attached the
signed plea to his email. He explains
further that after
discovering that the plea had not been filed and, instead, the
respondent had delivered an application for default
judgement, he
initiated the process for the appointment of counsel to deal with the
matter. Due to the procurement processes that
need to be followed
within the office of the State Attorney, it took until 12 October
2023 for counsel to be briefed.
[5]
Once briefed, counsel then needed to consider a voluminous amount of
documents and consult with various officials of the
applicant to get
instructions to enable him to prepare the necessary papers to oppose
the application for default judgement and
to bring the present
application for condonation and for the lifting of the bar. The
documents that were considered included
a transcript of a recording
of a meeting between the applicant and the respondent on 27 January
2022 where the issues regarding
the non-payment of invoices to the
respondent, which form the basis of the claim against the applicant,
were discussed. The applicant
explains that the recording was
provided to counsel on 6 November 2023. It was urgently transcribed
and printed over the weekend
of 11 November 2023. The availability of
the transcript enabled counsel to finalise this application on 14
November 2023.
[6]
The applicant explains that it has a genuine defence to raise against
the claim by the respondent. In summary, it says
that the services
for which invoices were raised where not authorised. This were for
additional services that were not approved.
The additional services
were not incorporated into the agreement between the applicant and
the respondent as deliverables nor as
chargeable items. It explains
that the claim is for a significant amount of over R4 million and
that it would be appropriate for
the applicant to be given the
opportunity to defend the action. It also says that the agreement
between the parties, which forms
the basis of the respondent’s
claim, contains an arbitration clause. Part of the special defences
that it shall raise is
that it is permitted to defend the action and
that the matter should be referred to arbitration.
[7]
In response to the argument by the respondent that the plea that has
so far been filed, which is the plea signed on 31
July 2023, does not
raise the special plea of arbitration, counsel for the applicant
responded that after the extensive consultations
held to prepare for
the present application, the plea that was filed under bar is likely
to be amended.
[8]
The applicant submits that it has provided a reasonable explanation
for its default, i.e. in failing to file its plea
on time even after
the notice of bar was delivered. It submits that it stands to suffer
significant prejudice if it is not permitted
to defend the action,
whereas the respondent will be able to obtain judgment in its favour
if indeed its case is not answerable.
Evaluation
[9]
The court
has a wide discretion to condone the delay in filing a plea and to
lift a bar on good cause shown. The courts have not
attempted to
formulate an exhaustive definition of what constitutes good cause
because to do so would hamper unnecessarily the
exercise of
discretion. The applicant must file an affidavit and satisfactorily
explain the delay. The explanation must enable
the court to
understand how the omission or delay came about. The question of
prejudice should be properly addressed. Prejudice
to the respondent
must not be such that it cannot in any way be compensated for by a
suitable order as to postponement and costs.
The application must be
bona fide, and made with the intention to proceed and not to delay.
The applicant must satisfy the court
that it has a bona fide defence
or that its action is not ill-founded. Facts must be set out that
demonstrate this.
[1]
[10]
The applicant has provided facts that properly explain how the
default came about. The conduct of the state attorney
leading to the
default is not satisfactory. The state attorney ought to have
followed up to ensure that the professional assistant
had filed the
plea on 31 July 2023. But this is not the only consideration. The
applicant has set out sufficient facts that demonstrate
sufficiently
that it genuinely intends to proceed and defend the action and that
it has a bona fide defence. Also, the prejudice
that the respondent
will suffer if relief is granted to the applicant is a delay in the
matter. This delay can be compensated by
a costs order against the
applicant. There is no need for postponement because the matter is
still far from being set down for
trial.
[11]
An
additional factor is the importance of the case. The claim of over R4
million will be satisfied from public funds. The applicant
had to use
the office of the State Attorney to defend the action because that
office has the legal mandate to represent the state
in legal
proceedings such as the present.
[2]
There is no complaint that the applicant acted in any negligent
manner that led to the default. It would be unfair to the applicant
in such circumstances to visit the omissions of the applicant’s
attorneys for the default and to penalise it by refusing
condonation.
[12]
Given that
the omission has been properly explained, facts have been set out to
show that the applicant has a bona fide defence
and intends to
proceed and not merely to delay, the importance of the case,
including the public funds that would be involved in
satisfying
default judgment when the applicant may have a defence, and there was
no intentional disregard of the Rules of court,
I conclude that it is
in the interests of justice to grant condonation and to uplift the
bar.
[3]
Costs
[13]
The court has a discretion regarding costs – to be exercised
judicially. The respondent gave the applicant generous
opportunities
to file its plea. The applicant failed to file its plea timeously
despite the generous indulgences. The explanation
given for the delay
in appointing counsel after the default was discovered is not
entirely satisfactory and unnecessarily delayed
the filing of this
application. There is no explanation by the state attorney whether it
was possible to obtain deviations from
procurement processes in order
to expedite the appointment of counsel. It is also not explained why
documents were not readily
made available by the time that counsel
was appointed. For instance, it is not explained wby the
transcription of the important
meeting was only done in November and
not earlier. Surely, the gathering of documents and information to
enable counsel to advise
and to prepare the application did not have
to wait until counsel was eventually appointed.
[14]
My view is that the respondent was justified in these circumstances
to oppose the application. The applicant has been
afforded the
indulgence despite this bona fide opposition. The delay that will be
occasioned by the indulgence granted will prejudice
the respondent by
causing further delays in the finalisation of its claim. It is
deserving to compensate the respondent for this
delay by an order for
costs against the applicant.
[15]
In the circumstances, I made the following order:
(1) The bar is
removed.
(2) Condonation is
granted for the late filing of the applicant’s plea.
(3) Leave is
granted to the applicant to file its plea within five days of the
date of this order.
(4) The applicant
is to pay the costs of the application.
NH
MAENETJE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing :
7 June 2024
Date
of judgment :
24 June 2024
For
the applicant/defendant:
M Mkhatshwa
Instructed
by the State Attorney, Johannesburg
For
the respondent/plaintiff: MS
Patel
Instructed
by Alan Jose Inc
[1]
Erasmus
Superior
Court Practice
Service
39, 2012, at B1-171.
[2]
Zuma v
Democratic Alliance and Another
(1028/2019)
[2021] ZASCA 39
;
[2021] 3 All SA 149
(SCA);
2021 (5) SA
189
(SCA) (13 April 2021) para 33.
[3]
See
South
African National Roads Agency Limited v City of Cape Town
(66/2016)
[2016] ZASCA 122
;
[2016] 4 All SA 332
(SCA);
2017 (1) SA
468
(SCA) (22 September 2016) paras 80-81 for the factors to
consider in determing the interests of justice in condonation cases.