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[2024] ZALMPPHC 82
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A & F Investments (Pty) Ltd v D & L Family Projects and Maintenance (Pty) Ltd (HCA43/2023) [2024] ZALMPPHC 82 (30 July 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: HCA 43/2023
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED: YES/NO
Date:
30/07/2024
Signature:
In the matter between:
A & F INVESTMENTS
(PTY) LTD
APPELLANT
AND
D & L FAMILY
PROJECTS AND
RESPONDENT
MAINTENANCE (PTY) LTD
JUDGMENT
NGOBENI AJ
INTRODUCTION
[1] The appellant is A &
F Investments (Pty) Ltd, a private company incorporated in accordance
with the laws of South Africa
with registration number 81/06832/07,
with registered physical address as 1[...] C[...] Drive, Nirvana,
Polokwane, Limpopo Province.
[2] The respondent is D &
L Family Projects and Maintenance (Pty) Ltd T/A DLF Projects, also a
private company incorporated
in accordance with the laws of South
Africa with registration number 2015/106469/07, with registered
physical address as 6 D[...],
1[...] A[...] Street, Bendor,
Polokwane.
[3] This is an appeal
against the decision of the Magistrate of the Civil District Court
sitting in Polokwane, who dismissed a request
for default judgment,
for the reasons that will be clearer in this judgment. The matter
came before the court
a quo
by way of an action in which the
appellant (plaintiff in the court
a quo
) claimed damages
arising from arrear rental payments, which emanated from a written
lease agreement that was entered into between
the parties.
[4] The respondent
(defendant in the court
a quo
) was absent in court on the
trial date, hence the request by the appellant that the matter be
proceeded with on a default judgment
basis in terms of Rule 32(2) of
the Rules Regulating the Conduct of Proceedings in the Magistrates’
Courts of South Africa
(the Rules).
GROUNDS OF APPEAL
[5] The grounds of appeal
by the appellant are summarised as follows:
(i)
The court
a
quo
erred in not accepting that the
respondent was notified through e-mails about the trial date. The
court
a quo
refused to be addressed from the bar by the legal representative of
the respondent about the said e-mails. The court
a
quo
even refused to see the e-mails
that showed that the respondent was notified about the trial date,
and the court
a quo
therefore erred in finding that the respondent did not know about the
trial date,
(ii)
The court
a
quo
erred in granting a final order by
dismissing the request for default judgment without considering the
merits of the case.
IN ISSUE
[6] The issue is whether
the court
a quo
correctly dismissed the request for default
judgment, based on failure by the legal representative of the
respondent to comply
with the provisions of Rule 52A of the Rules, or
whether an explanation that the respondent was notified about the
trial date,
in the absence of compliance with Rule 52A justified that
the matter be proceeded with in the absence of the respondent. Rule
52A
notice (Notice) pertaining to the withdrawal by the legal
representative of the respondent was not served on the respondent.
Rule
52A in the main makes provision for the procedure that must be
followed by an attorney who withdraws from representing his/her
client in a case.
PROCEEDINGS IN THE COURT
A QUO
[7] In the court
a quo
the matter was set down for trial on 27 October 2022. The respondent
was absent, but its legal representative, Ms Mantjane was
present.
The legal representative of the appellant was also present. When the
matter was called, Ms. Mantjane addressed the court
to the effect
that they are withdrawing as attorneys of record for the respondent
due to the fact that the respondent was not cooperative.
She told the
court that the respondent knew about the trial date as that was
communicated to the respondent through e-mails by
her.
[8] It appears from the
record of the proceedings that the Rule 52A Notice of withdrawal
which was prepared was served on the legal
representative of the
appellant, in court on that day of trial. The legal representative of
the appellant took no issue with the
service of that Notice on them
on the trial date, because her view was that the Notice served no
purpose for the proceedings that
were before court on 27 October
2022, due to the fact that the matter was set down for trial, and the
respondent knew about the
trial date according to her.
[9] The court
a quo
did not accept the e-mail messages which Ms. Mantjane wanted to hand
in from the bar, because the court was concerned about compliance
with Rule 52A. It became clear from Ms. Mantjane’s address that
provisions of Rule 52A were not complied with, in as far
as service
of the Notice of withdrawal on the respondent is concerned.
[10] The court
a quo
raised the issue that the Rule 52A Notice should have been served on
the respondent because its legal representative was withdrawing.
Ms.
Marais, for the appellant argued that irrespective of the fact that
the appellant should have been served with the said Notice
of
withdrawal, the respondent should have been in court for trial
purposes because the respondent was notified about the trial
date.
[11] The legal
representative of the appellant further addressed the court and
argued that the provisions of Rule 52A are not applicable
because the
matter had already been set down for trial, and the respondent knew
about the trial date. The argument by the appellant
was that Rule 52A
is applicable at any stage of the proceedings, but once the matter is
set down for trial and the parties are
notified, the said Rule cannot
be applicable at that stage of the proceedings.
[12] There was a
protracted discussion or rather exchange of views between the legal
representative of the appellant and the Court
as to whether the
matter should be proceeded with in terms of Rule 32(2), or be dealt
with on the basis that provisions of Rule
52A were not complied with.
It is clear from the record of the proceedings that the legal
representative of the appellant was so
persistent with her argument
that Rule 32(2) is the one that was applicable to the proceedings, to
an extent that the court ended
up acceding to the fact that the
matter be proceeded with in terms of Rule 32(2).
[13] The court
a quo
proceeded with the matter well knowing that it was not satisfied
about the fact that Rule 52A was not complied with. That is evident
from the written reasons from the learned Magistrate which were
requested and provided in terms of Rule 51(1) of the Rules for
purposes of this Appeal. On paragraphs 9 and 10 of the reasons for
judgment the court
a quo
stated that:
“
(9)
…the fact that there was no delivery of notice of withdrawal
on the defendant, there is no need for this court to consider
whether
plaintiff complies with Rule 32 or not.
(10) As a result of what
I stated above, the court makes the following order:
10.1 Default judgment in
terms of Rule 32(2) of the Magistrates’ Court Rules is refuse.
(
sic
).
10.2 No Costs order”.
APPLICABLE LAW
[14] Rule 52A reads as
follows:
52A Notice of
withdrawal, appointment or substitution as attorney of record
(1)
(a)
Where an
attorney acting in any proceedings for a party ceases so to act, such
attorney shall forthwith deliver notice thereof to–
(i) such party at the
party's last known address, which address shall be stated in the
notice;
(ii) the registrar or
clerk of the court; and
(iii) all other parties
to the proceedings:
Provided that the notice
to the party for whom such an attorney acted shall be served in
accordance with the provisions of rule
9(9).
(b)
The notice contemplated in paragraph
(a)
(i)
shall inform the said party to appoint an address for service of
subsequent documents and notices on him or her, and to notify
all
other parties and the registrar or clerk of the court of such address
within 10 days of the notice, such address being a–
(i) physical address,
which address shall, in places where there are three or more
attorneys or firms of attorneys practicing
independently of one
another, be within 15 kilometres of the courthouse;
(ii) postal address;
and, where available,
(iii) facsimile address
and electronic mail address.
(c)
The notice to the registrar or clerk of
the court shall state the names and addresses of the parties notified
and the date on which
and the manner in which the notice was sent to
them.
(d)
Notwithstanding the withdrawal of an
attorney as the attorney of record for a party in any proceedings,
all subsequent documents
in the proceedings shall be served on such
party in accordance with the rules relating to service: Provided that
the party whose
attorney has withdrawn and who has failed to provide
an address within the period of 10 days stated in paragraph
(b)
shall be liable for the payment of the
costs occasioned by subsequent service on such party in terms of the
rules relating to service,
unless the court orders otherwise.
(2)
(a)
Save as may
be otherwise provided for in rules 5 and 13, whenever an attorney
acts on behalf of any party in any proceedings, such
attorney shall
notify all other parties of–
(i) the attorney's name
and physical address, which address shall, in places where there are
three or more attorneys or firms of
attorneys practising
independently of one another, be within 15 kilometres of the
courthouse;
(ii) the attorney's
postal address; and, where available,
(iii) the attorney's
facsimile address and electronic mail address.
(b)
The provisions of this subrule apply,
with appropriate variations, to an attorney appointed as a substitute
to a party's previous
attorney.
(3) Upon receipt of a
notice in terms of subrule (1) or (2), the address of the attorney or
of the party, becomes the address of
such party for the service of
all subsequent documents in such proceedings, but any service duly
effected elsewhere before receipt
of such notice shall,
notwithstanding such change, for all purposes be valid, unless the
court orders otherwise.
[Rule 52A inserted by GN
R1318 of 30 November 2018 (wef 10 January 2019).]
[15]
The provisions of Rule 52A are to a large extent similar to those in
Rule 16 of the Uniform Rules of Court
[1]
on the steps which legal practitioners must follow when withdrawing
from cases, and what is expected from a litigant whose legal
representative has withdrawn from a case.
[16] Rule 52A is an
insertion to the Rules, which was mainly enacted to give the issue of
withdrawals by legal representatives to
be more effective in terms of
informing their clients, as well as other parties or their legal
representatives, about the termination
of their involvement in their
cases, which came into operation on 10 January 2019. It is also
mandatory to file the notice of withdrawal
with the Registrar or
Clerk of the Court with the information required in terms of Rule
52A(1)(c).
[17] Provisions of Rule
52A are an important and proper mechanism to help in reducing
unnecessary backlog of cases because the legal
representatives are
compelled to inform their clients about their withdrawals, and also
to guide them about the steps to follow
thereafter. The parties must
be timeously notified to ensure that they may instruct other legal
representatives in time to proceed
with their cases. It is not
desirable that a legal practitioner may just abandon a case by not
returning to court when expected
in court and not even file a Notice
of withdrawal as expected.
[18] The parties have the
right to be formally notified by their legal representatives whom
they would have appointed, that they
are no longer appearing for them
and what they need to do to proceed with litigation either on their
own, or to appoint new legal
representation. The withdrawal must not
be done in court without the necessary Notice, because that might
deprive other parties
to the litigation to have information for
further engagement with the party whose legal representative
withdrew, and that might
cause unnecessary delays in the finalisation
of the case. The court may even make a cost order against the party
who brought about
the delay.
[19]
The facts of the case at hand are distinguishable from the facts
in
Thoka
v Ricket
[2]
,
in that the defendant in the
Thoka
case
could not be traced or found by its legal representatives at its last
known address. The Full Bench found, understandably so,
that if the
plaintiff could not be traced, it would be prejudicial to the other
parties not to proceed with the matter in the search
of an absent
litigant. In the case at hand the respondent could be traced, hence
the address by its legal representative that the
respondent was not
cooperative. Case law dealing with this subject or similar related
facts could not be detected.
[20] Rule 52A(iii) states
that the Notice must be served in terms of Rule 9(9). Rule 9(9) reads
thus:
9 Service of process,
notices and other documents
“
(9)
(a)
Service of any notice, request,
statement or other document which is not process of the court may be
effected by delivery by hand
at the address for service given in the
summons or appearance to defend, as the case may be, or by sending it
by registered post
to the postal address so given: Provided that,
subject to rules 5 and 13, service of such notice, request, statement
or other document
may be effected by sending it by facsimile or
electronic mail to the facsimile address or electronic mail address
given in the
summons or notice of intention to defend, as the case
may be.
(b)
An address for service, postal address,
facsimile address or electronic address so given as contemplated in
paragraph
(a)
may
be changed by the delivery of notice of a new address and thereafter
service may be affected as provided for in that paragraph
at such new
address.
(c)
(i)
Service by registered post under this subrule shall, until the
contrary appears, be deemed to have been affected at 10 o'clock
in
the forenoon on the fourth day after the postmarked date upon the
receipt for registration.
(ii) Chapter III,
Part 2
of the
Electronic Communications and Transactions Act, 2002
is
applicable to service by facsimile or electronic mail.
(d)
Service under this subrule need not be
effected through the sheriff”.
[21] The party on whom
Rule 52A
Notice has been served has a duty to appoint a new address
from which it will receive service of documents, and all the parties
involved in the case and the Registrar or Clerk of the Court must be
informed about the new address at which service would be received
by
notice within 10 days of the service of the
Rule 52A
Notice. The
simple reason for that is that documents or process cannot be served
at the address of the erstwhile legal representatives.
[22]
Service by electronic mail is clearly adequate, as was in
Acqui
38 (Pty) Ltd and Blue Risk Management (Pty) Ltd
[3]
where the Notice of withdrawal complied with Uniform
Rule 16
, as it
was transmitted electronically to the respondent, and the court found
that the respondent was adequately informed of the
withdrawal by its
legal representative, and the respondent was therefore obligated to
appoint a new service address within 10 (ten)
days.
[23] It is also important
to explain the issue of service in relation to the provisions of
section 26
of Chapter III, Part 2 of the Electronic Communication and
Transactions Act 25 of 2002 (ECTA), which reads as follows:
Acknowledgement of
receipt of data message
“
26.
(1) An acknowledgement of receipt of a data message is not necessary
to give legal effect to that message.
(2) An acknowledgement of
receipt may be given by-
(a) any communication by
the addressee, whether automated or otherwise; or
(b) any conduct of the
addressee, sufficient to indicate to the originator that the data
message has been received”.
[24] In the
Acqui 38
case, that was quoted above, the application of the provisions of
section 26 of ECTA, was clearly applied where the legal
representative
of the respondent presented to the court the ‘read
receipt” messages which showed that the e-mails that were sent
to
the respondent containing the notice of withdrawal was read. The
numbering in the
Acqui
38
judgment was clearly missed,
and so was the last sentence on paragraph 21 of the judgment, but be
that as it may the judgment is
quoted for the logical reasoning on
the issue of service, and circumstances under which a legal
practitioner can rely on section
26 of ECTA, to show the court that
there was service of the notice of withdrawal electronically, on the
basis that the message
was read.
DISCUSSION
[25] The provisions of
Rule 52A are peremptory in as far as service of the Notice on the
party who is being renounced is concerned.
Whenever a legal
representative withdraws from assisting a party to the proceedings in
a case, that litigant must be notified irrespective
of the stage of
the proceedings, so that that litigant can know as to how to continue
with the case, and for the other parties
not to communicate with
legal representatives that are no longer acting for that litigant.
[26] Section 34 of the
Constitution of the Republic of South Africa, 1996, guarantees access
to courts, in that it states that everyone
has the right to have any
dispute that can be resolved by the application of law decided in a
public hearing before a court or,
where appropriate another
independent and impartial tribunal or forum. The respondent in the
case at hand is also entitled to such
access.
[27] The importance of
the service of the Notice was also evident when the matter came
before this Court as well, in that the respondent
was still not
present and not represented in this Appeal proceedings. The
respondent never appeared in this Appeal proceedings,
nor
represented. It is therefore imperative that Courts must enforce
compliance with Rule 52A, irrespective of the stage of the
proceedings, as long as the proceedings are not concluded.
[28] The appellant raised
the applicability of Rule 32(2) instead of Rule 52A in the
proceedings in the court
a quo
. This court has to deal with
that aspect as well.
[29] Rule 32(2) reads as
follows:
32 Non-appearance of a
party - withdrawal and dismissal
“
(1)
…,
(2) If a defendant or
respondent does not so appear, a judgment (not exceeding the relief
claimed) may be given against him or her
with costs, after
consideration of such evidence, either oral or by affidavit, as the
court deems necessary.
(3) …,
(4) … “.
[30] The court
a quo
,
even though it was not satisfied with the compliance with the
provisions of Rule 52A, it eventually allowed that the name of the
respondent be called inside and outside court. The court
a quo
went further to allow that the proceedings be proceeded with in terms
of Rule 32(2), and heard the submissions that were made by
the
appellant regarding the action. The legal representative of the
appellant continued to address the court on the action in the
absence
of the respondent seeking an order by default. That was a
misdirection by the court
a quo
to allow default judgment
proceedings to continue despite non-compliance with Rule 52A.
[31] This court notes
from the record of the proceedings in the court
a quo
the
rather demeaning utterances of the legal representative of the
appellant to the learned Magistrate on page 14. On paragraph
10 of
the record she told the court that it seems that she had to repeat
herself maybe ten times, because the question that the
court was
supposed to ask was why was the defendant not before court, and not
ask technical things about what the Notice was saying
and all those
things. That was a rather disdainful manner of engaging with the
court, showing no respect when addressing the court.
[32] The court
a quo
delivered a written judgment, and on paragraphs 6 and 9 of the
judgment, the court
a quo
clearly indicates that the
provisions of Rule 52A were not complied with, and as such there was
no need for it to consider proceeding
with the matter in terms of
Rule 32(2). The court
a quo
after being addressed on the
merits of the case, eventually refused the request for default
judgment. In the reasons for judgment,
the learned Magistrate states
that she never dealt with the application in terms of Rule 32(2)
because there was no compliance
with rule 52A.
[33]
That is despite the fact that the learned Magistrate allowed the
legal representative of the appellant to address her on the
merits.
Rule 32(2) gives the court the discretion to direct as to how the
matter should proceed. The learned Magistrate allowed
the plaintiff
to address her on the merits of the case. The amount claimed was for
arrear rental, and that amount was clearly ascertainable
as that
emanated from a written contract that the parties entered into. It is
trite that no evidence under oath is necessary to
be led if the claim
is for a liquidated amount
[4]
in
default judgment proceedings, unless if the court so orders.
[34] In the case at hand
by calculation the amount allegedly owed could be easily
ascertainable, and that is probably the reason
why the legal
representative of the appellant just addressed the court, and the
court allowed that without directing differently
as to how it wanted
to hear evidence except to order the legal representative of the
appellant to proceed by addressing it. One
can safely say that the
court was satisfied with just being addressed, and probably because
the amount could also be clearly ascertainable.
[35] The learned
Magistrate misdirected herself in that once addressed on the merits
of the claim, which she allowed, then judgment
should have been
delivered on the merits. There was no need for the learned Magistrate
to hear the merits of the action, if she
was not satisfied that
certain requirements or procedural aspects with regard to service of
documents were not done in accordance
with the Rules, the court
a
quo
should have at least dealt with the matter in terms of Rule
60(2), by ordering compliance by at least giving the erstwhile legal
representative of the respondent an opportunity to comply with Rule
52A, without excusing her.
[36] The legal
practitioner who complies fully with Rule 52A need not come back to
appear in court just to notify the court about
their withdrawal as
that would not be necessary, because it might be that a new legal
practitioner has taken over the matter, and
all the parties involved
were notified and the matter is ready to be proceeded with. It might
also be that the litigant has decided
to proceed on their own, but
that must be communicated to all the parties involved, and more
importantly the address of service
of subsequent documents and
notices.
[37] In accordance with
Rule 52A, an attorney may be allowed to withdraw from a case once the
court is at least satisfied that:
(i)
the attorney has delivered a Notice of
withdrawal to the last known address of the party he/she represented
informing the party
about his/her withdrawal, and that address must
be stated in the Notice,
(ii)
the said Notice must have been served in
terms of Rule 9(9) of the Rules,
(iii)
the said Notice must have also been
delivered on the Registrar or Clerk of the Court, and all parties
involved in the proceedings,
(iv)
the contents of the Notice shall inform the
party whose attorney withdrew, to appoint an address for service of
subsequent documents
and notices on the said party. The Notice shall
also inform the said party that he/she shall inform all the parties
involved in
the case, the Registrar and the Clerk of the Court about
the new address, within 10 (ten) days of receipt of the Notice of
withdrawal
from the party’s attorney,
(v)
the
Notice shall also inform the said party that the physical address
that is chosen by that party must be within 15 (fifteen) kilometers
of the Court House, if there are three or more attorneys practicing
independently of each other in the area of his/her physical
address
[5]
,
(vi)
the Notice shall also inform the party to
state in the Notice, his/her postal address, facsimile address and
electronic mail address,
and
(vii)
the Notice filed with the Registrar or
Clerk of the Court shall state the names and addresses of the parties
that were notified,
and the dates and manner in which they were
notified.
[38] The above
requirements are a guideline on withdrawals by attorneys, and
responsibilities of litigants after such withdrawals,
unless if the
merits of the case dictate differently. The said guidelines may also
be applicable to a legal practitioner who qualifies
to get
instructions directly from litigants.
ORDER
[39] In the result, the
following order is made:
(i) The Appeal is upheld,
(ii) The judgment granted
by the learned Magistrate dated 16 November 2022 is set aside,
(iii) The matter is
referred back to the Magistrates’ Court for hearing, before
another Magistrate,
(iv) The notice of set
down in terms of Rule 22(3), must be served on the respondent with
the date, time and place of hearing,
(v) No order as to costs.
J.T. NGOBENI
Acting Judge of the
High Court
I agree
E. MASHAMBA
Acting Judge of the
High Court
It is so ordered
Appearances
Counsel
for the Appellant
:
Advocate W.H. Young
Instructed
by
:
Tar Attorneys of Polokwane
Counsel
for the Respondent
:
No appearances
Instructed
by
:
No appearances
Date
of the hearing
:
24 May 2024
Date
of judgment
:
30 July 2024
Judgment
transmitted electronically
[1]
16
Representation of Parties
(1) If an attorney acts
on behalf of any party in any proceedings, such attorney shall
notify all other parties of this fact and
shall supply an address
where documents in the proceedings may be served.
(2)
(a)
Any party
represented by an attorney in any proceedings may at any time,
subject to the provisions of rule 40, terminate such
attorney's
authority to act and may thereafter act in person or appoint another
attorney to act in the proceedings, whereupon
such party or the
newly appointed attorney on behalf of such party shall forthwith
give notice to the registrar and to all other
parties of the
termination of the former attorney's authority, and if such party
has appointed a further attorney to act in the
proceedings, such
party or the newly appointed attorney on behalf of such party shall
give the name and address of the attorney
so appointed.
(b)
If such party does not appoint a
further attorney, such party shall in the notice of termination
appoint an address within 25
kilometres of the office of the
registrar and an electronic mail address, if available to such
party, for the service on such
party at either address, of all
documents in such proceedings as well as such party's postal or
facsimile addresses where available.
[Para.
(b)
substituted by GN R3397 of 12 May 2023 (wef 19 June 2023).]
(3) Upon receipt of a
notice in terms of subrule (1) or (2), the address of the attorney
or of the party, as the case may be,
shall become the address of
such party for the service upon such party of all documents in such
proceedings, but any service
duly effected elsewhere before receipt
of such notice shall, notwithstanding such change, for all purposes
be valid, unless the
court orders otherwise.
(4)
(a)
Where an
attorney acting in any proceedings for a party ceases so to act,
such attorney shall forthwith deliver notice thereof
to such party,
the registrar and all other parties: Provided that notice to the
party for whom such attorney acted may be given
by facsimile or
electronic mail in accordance with the provisions of rule 4A.
(b)
The party formerly represented must
within 10 days after the notice of withdrawal notify the registrar
and all other parties of
a new address for service as contemplated
in subrule (2) whereafter all subsequent documents in the
proceedings for service on
such party shall be served on such party
in accordance with the rules relating to service: Provided that the
party whose attorney
has withdrawn and who has failed to provide an
address within the said period of 10 days shall be liable for the
payment of the
costs occasioned by subsequent service on such party
in terms of the rules relating to service, unless the court orders
otherwise.
(c)
The notice to the registrar shall
state the names and addresses of the parties notified and the date
on which and the manner in
which the notice was sent to them.
(d)
The notice to the party formerly
represented shall inform the said party of the provisions of
paragraph
(b)
.
[Rule 16 amended by GN
R235 of 18 February 1966, by GN R2021 of 5 November 1971 (wef 15
November 1971), by GN R2164 of 2 October
1987
(subsequently repealed
by GN R2642 of 27 November 1987 (wef 31 December 1987)), by GN R2642
of 27 November 1987 (wef 1 January
1988) and by
GN R960 of 28 May 1993
(wef various dates) and substituted by GN R1318 of 30 November 2018
(wef 10 January 2019).]
[2]
(Case
number HCA37/2022) [2023] ZALMPPHC 42 (15 June 2023)
[3]
(30443/2022)
[2023] ZAGPPHC 1414 (22 December 2023).
[4]
Ramalephatsho
Industries CC and Another v Nyumba Mobile Homes & Offices (Pty)
Ltd (1719/2015)
[2023] ZAFSHC 510
(29 December 2023).
[5]
In
the Uniform Rules of Court the address that is chosen by the party
whose legal representative withdrew, must be within 25 kilometers
of
the court house if there are three or more attorneys practicing in
that area independently of each other.