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2024
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[2024] ZAFSHC 233
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Superdoc One CC v Louw (5177/2021) [2024] ZAFSHC 233 (9 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 5177/2021
In
the matter between:
SUPERDOC
ONE CC
Applicant
and
DENNIS
LOUW
Respondent
CORAM:
MB NEMAVHIDI AJ
HEARD
ON:
09
MAY 2024
DELIVERED
ON:
27 JUNE
2024
*
JUDGMENT
BY:
MB NEMAVHIDI AJ
Introduction
[1]
In this matter applicant seeks relief from this court to condone its
non-compliance with the rules,
services, time limits and directives
of this court in filing its replication within the specific timeframe
in terms of the uniform
rules of court.
Summary
of facts
[2]
The applicant instituted action against the respondent on or about 10
September 2022 as a result
of a breach of contract/agreement on the
part of the respondent. The applicant issued a combined summons which
was issued by his
legal representatives who, at that stage, were Van
der Berg Van Vuuren Attorneys. The respondent duly filed and served
its plea
which included two special pleas raised, namely,
locus
standi
and prescription to the applicant’s combined summon
on the 29
th
of September 2022. The applicant, in terms of
rule 25(1) of the uniform rules of court, had to file its
replication, if any, within
fifteen days after the service of the
plea which would have been the 28
th
of October 2022.
[3]
The applicant in his condonation application stated that he did not
have money to pay his attorney
of record at that specific time. As a
result, they withdrew. This was the case on several occasions. He
admits that respondent
will not be prejudiced if the
ipso facto
bar is removed; rather, his replication will merely crystalize the
issues in the pleadings. In fact, the respondent will be afforded
an
opportunity to either answer or respond to his replication.
Furthermore, the applicant states that, as
dominus litis
, it
is pivotal to reply to the respondent’s special plea in support
of his claim and not leave the special plea unanswered.
[5]
The prescription applicant states that he only became aware of the
fact that the debt was due
in January 2019. With reference to
locus
standi
the respondent alleges that the applicant (Superdoc One
CC) being a juristic person may not directly or indirectly hold
membership
interest in a corporation in terms of the Close
Corporation Act 69 of 1984 (the Act). The respondent avers that the
applicant holds
100% of membership interests in Superdoc One CC, and
as such, the applicant should have brought the action. The appellant
refers
to Section 33(1) of the Act, which provides that a member’s
interest can be acquired directly from the close corporation,
or from
an existing member or his estate. In these premises, Superdoc One CC
has the required
locus standi
to bring the main action.
Respondent’s
opposing affidavit.
[6]
The Respondent states that the applicant filed its application one
year and six months late and
is of no purpose. Consequently, it is
not necessary. In addition, the applicant’s attorneys withdrew
as attorneys of record
on 16 May 2023. They easily could have filed
the replication within the required fifteen days in October 2022.
Strangely, the respondent
also filed a counterclaim against the
applicant on 29 September 2022 which prompted Messrs Van der Berg Van
Vuuren to file a plea
on the 20
th
of October when the
applicant’s replication became due. The applicant appointed Van
Eden Attorneys on 25 July 2023, but he
does not give an explanation
why they could not attend to the filing of the replication, and those
attorneys withdrew as attorneys
of record on 29 September 2023.
[7]
On 20 February 2023, Van Eden Attorneys served a notice as attorneys
of record for the applicant.
The respondent avers that the manner in
which the applicant has conducted this litigation has been
prejudicial to him and that
applicant’s
bona fides
are
questionable. For example, the applicant was requested to provide
discovery on 7 February 2022 but only complied on 25 July
2023. The
application to compel discovery was taxed and allocated in the total
amount of R22 352.50 but, to date, the applicant
has failed to make
payment of the taxed costs. As such, the respondent wants to have his
counterclaim against applicant finalized
soon.
The
applicable principles
[8]
The court explained that judicial discretion vested in a court in
granting condonation as follows
:
‘
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus, a slight delay and a good explanation may help to
compensate for prospects of success which
are not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the
respondent’s interest in
finality must not be overlooked.’
[1]
[9]
These principles have consistently been applied by the court in
dealing with condonation applications
.
[2]
Factors
which normally weigh with this court in considering an application
for condonation include the degree of non-compliance,
the explanation
thereof, the importance of the case, a respondent’s interest in
the finality of the judgment, and the avoidance
of unnecessary delay
in the administration of justice.
[10]
The Constitutional court in
Grootboom
v National Prosecuting Authority and Another
[3]
held that:
‘
In
this court the test for determining whether condonation should be
granted or refused is the interest of justice. If it is in
the
interest of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so, it
will not be
granted. The factors that are taken into account is that in that
enquiry include:
(a)
The length of the delay,
(b)
The explanation or cause for the delay,
(c)
The prospects of success for the party
seeking condonation
(d)
The importance of the issue(s) that the
matter raises,
(e)
The prejudice to the other party/parties,
and
(f)
The
effect of the delay in the administration of justice.’
[4]
[11]
Where the degree of non-compliance is flagrant and substantial,
condonation may be refused irrespective of
the prospects of success.
If the explanation for such flagrant and substantial non-compliance
is manifestly inadequate or there
is no explanation at all, the
prospects of success need not be considered.
[5]
This is, without a doubt, such a case.
[12]
The applicant was 18 months late with the filing of its replication
as required by Rule 25 of the Uniform
Rules of this court. He blames
his impecunious state which caused his attorneys of record to
withdraw their services. However,
it is strange that, despite this
aversion, his attorney of record, Van der Berg Van Vuuren Attorneys,
managed to file a plea relating
to the respondent’s
counterclaim, yet omitted to deliver the applicant’s
replication which was due on 22 October 2022,
the same date on which
the plea was filed. The conduct of the applicant is indicative of its
unwillingness to timeously file its
replication.
[13]
In the result:
1.
The application for condonation is
dismissed.
2.
The applicant to pay costs on a Rule 67(A)
scale.
MB NEMAVHIDI AJ
Appearances
For
the Plaintiff:
Adv
EE Barlow
Instructed
by:
Van
Eeden Attorneys
Bloemfontein
For
the Fourth Defendant:
Mr
AJ Maree
Instructed
by:
Mc
Intyre Van der Post Attorneys
Bloemfontein
[1]
Melane
v Santam Insurance Co Ltd
1962 (4) SA 532 (A).
[2]
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and
Others; National Director of Public Prosecutions and Another
v
Mulaudzi
[2017]
ZASCA 88; [2017] 3 All SA 520 (SCA).
[3]
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37; 2014 (2) SA 68 (CC).
[4]
Ibid para 50.
[5]
NSS obo
AS v MEC for Health, Eastern Cape Province
[2023] ZASCA 41
;
2023 (6) SA 408
(SCA).