Sneller Verbatim/ct
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO: 2002 J3232.00
20020419
In the matter between
SUPERB MEAT MARKET SUPPLIES CC Applicant
and
C MARITZ Respondent
______________________________________________________
J U D G M E N T
______________________________________________________
LANDMAN J:
1. Mr Charl Maritz instituted proceedings in this court
against Superb Meat Supplies CC. Pleadings were
exchanged, a pretrial conference was held and after
two postponements, the matter was finally enrolled for
hearing on 12 March 2001.
1.
2. Mr Maritz and his attorney attended on the day of the
trial. The CC was not represented on this day and
judgment by default was granted. Mr Maritz' attorney
communicated this to attorney Majola who acted on
behalf of the CC. He did this on the same day and was
advised that an application for rescission would be
made.
3. When the application for rescission was not served by
30 May 2001, a writ was issued out of this court. On
29 June 2001 an application for rescission was made. I
shall refer to this as the first rescission
application. The founding affidavit is made by
attorney Majola. A supporting affidavit is attached
from Mr Schreiber, a member of the CC. It is dated 27
June 2001 and, was or states that it was, attested
before the sheriff, Thaba 'Nchu. The application was
opposed. Replying affidavits were filed by attorney
Majola, and Mr Schreiber. The affidavit of Mr
Schreiber is dated 4 February 2001. It was or purports
to have been attested before a commissioner of oaths
who is an attorney practising in Bloemfontein.
4. This matter ie the first rescission application was
enrolled for hearing on 14 February 2002. It was
struck off the roll with the costs to be paid by the CC
on attorney and client scale.
5. On 15 March 2002 an application was made to stay the
writ of execution and for related relief. It was
accompanied by a single affidavit, that of Mr
Schreiber. The affidavit, was or states that it was,
signed by Mr Schreiber and that it was attested before
the sheriff of Thaba’ Nchu. This application was not
served on Mr Maritz or his attorneys, but came to their
notice. It was opposed and was dismissed with costs
although I have not found a note to this effect on the
court file.
6. On 12 April 2002 the CC launched a second application
for rescission. This was done on an urgent basis to
rescind the judgment which this court granted on 12
March 2001. The application was also to stay the writ
of execution and for related relief. This application
was opposed. An answering affidavit was filed and the
matter came before me on 18 April.
7. Mr Williamson, who appeared for Mr Maritz, submitted
that the first rescission application was still pending
and thus it was not competent for this court to
entertain the second application. He submitted that,
in any event, that part of the second rescission
application to stay the writ was res iudicata because
judgment had been delivered in a similar application.
8. The essence of the CC's case for rescission and for
staying the writ is that the first two applications are
nullities. They were not authorised by the CC. Mr
Schreiber admits signing the affidavit of 27 June 2001,
but says he did not read it and did not attest to it
before the commissioner of oaths who signed it. He
says attorney Majola told him the document which he
signed was necessary to obtain a new date for hearing
of the case. He says he was unaware that the judgment
had been granted against the CC. Mr Schreiber says
that the replying affidavit, which is in his name, is
fraudulent. He did not sign it.
9. Mr Schreiber also says that he did not sign the
affidavit relating to the application to stay the writ
and therefore he did not attest to it before a
commissioner.
10. I am of the opinion that the first application for
rescission was authorised. Mr Schreiber knew he was
authorising some application or step to be taken in
this court. If he did not bother to read the papers,
he cannot be heard to say he did not authorise the
application. I am troubled about the alleged
fraudulent replying affidavit, but that does not
detract from the authorisation to institute the first
application.
11. Mr Blignaut, who appeared for the CC, submitted that if
I found the application to be authorised, his client
tendered to withdraw the application and to pay the
costs. I therefore proceed on the basis that the first
rescission application has been withdrawn and note that
the CC tendered to pay the costs.
1.
12. As far as the application of 15 March to stay the writ
is concerned, I am unable to find on the papers that it
was properly authorised. The probabilities are that
attorney Majola proceeded without instructions. He
should explain the allegations of fraudulent conduct.
The papers have been faxed to his firm, but he has
decided on the advice of an advocate, who seems to have
been briefed at one stage to act for the CC, not to
make a statement.
13. I return to the merits of the only application before
me, namely the second rescission application, which
also includes a prayer for the writ to be stayed. It
is common cause that the CC has on paper a bona fide
defence and therefore prospects of success. The main
issue is whether the CC was in wilful default of
appearance on 12 March 2001 and whether the judgment in
question was granted erroneously.
14. The CC's case is that it was only on 28 February 2002
that it became aware of the judgment. It then made
diligent enquiries at the firm of attorneys
representing it as to what was happening. By 18 March
2002, when the sheriff came to remove the attached
goods, the promises made by this firm had not
materialised. Mr Schreiber telephoned attorney Majola
and was told that he would come to the CC's offices.
He did not arrive. The CC paid the sheriff R40 000 to
retain its goods. When contacted, Mr Majola said he
was on his way to court to obtain a stay of the writ.
Several other conversations took place. Mr Schreiber
concluded that attorney Majola was lying to him. At
20:00 attorney Majola told Mr Schreiber that the
application had been prepared with the help of counsel.
On 19 March attorney Majola told Mr Schreiber that the
CC had lost the case "on a technical point and that he
planned to go to Johannesburg the following day to
repeat the application on Friday 22 March 2000".
15. On 21 March the CC terminated the mandate of attorney
Majola and his firm and engaged its present attorney.
The CC also obtained the file and attended a meeting
with its current attorney, attorney Majola and one of
his partners, attorney Meyer.
16. The extent of attorney Majola's prima facie fraudulent
activities became apparent and resulted in the present
application. Mr Maritz is adamant that the goods
should be removed and sold. One can understand his
attitude, because the cause of action in this case
arose in July 1999.
17. I am satisfied that this application is an urgent one
and that it was formulated in such a way, with regard
to time periods, that Mr Maritz had an adequate
opportunity to answer it as indeed he has done.
18. The history of the matter related above also provide
grounds for condoning what is a very late application
to rescind the order of this court made on 12 March
2001. The CC submits that the rescission application
should be granted on the following grounds: I read from
page 108 of the papers paragraph 9:
"I submit on behalf of the applicant that the default
judgment was erroneously granted in that:
9.2.1 the applicant, due to the conduct and neglect of
its former attorney Majola, did not have the
opportunity to draft a proper statement of defence, nor
did it have the opportunity to present its evidence or
argument in respect of its defence to the honourable
court or to crossexamine the respondent properly;
9.2.2 I submit that if such opportunities were afforded
to applicant, judgment would in all probability not
have been granted against the applicant;
9.3 I submit that the applicant was not in wilful default
as the applicant was never informed by Majola of the
setdown of the hearing as explained above.
9.4. I furthermore submit that the applicant has a bona
fide defence against the claim of the respondent for
the reasons stated above and humbly pray that the
honourable court afford the applicant the opportunity
to present its defence in a proper manner.”
19. There is nothing in this passage or anywhere else in Mr
Schreiber's affidavit which justifies the complaint
that the presiding judge granted the judgment
erroneously. There is indeed no suggestion that the
presiding judge erred in any way whatsoever. The fact
that the matter may have been tried and may have
resulted in judgment in favour of the CC clearly does
not justify the inference that the presiding judge
granted the judgment erroneously.
20. Mr Schreiber is incorrect in saying that the CC did not
have an opportunity to draft the statement of defence.
The statement of defence has been filed, a pretrial
conference by fax was held and the minute of that
conference has been filed. There is no allegation that
the statement of defence or the minute is fraudulent.
21. Was the CC in wilful default? The fact that the first
rescission application has been withdrawn does not wipe
the slate clean. At best for the CC there is before
the court an unsworn document which refers to the
affidavit of attorney Majola and although Mr Schreiber
says he did not read it, he signed it with the
intention that it would be used in this court.
22. In this document Mr Schreiber says that he had an
appointment to attend a pretrial consultation on 10
March 2001, but he became indisposed and sought the
assistance of Dr Setlogelo. A certificate issued by Dr
Setlogelo, was eventually provided to Mr Maritz’s
attorney after an inexplicable delay. It is dated 10
March 2001. Mr Schreiber was diagnosed as having
appendicitis, but after further examination he was told
that he was suffering from gastritis. He had followup
consultations with Dr Setlogelo.
23. This diagnosis and the indisposition is challenged in
the answering affidavit to the first rescission
application and in an affidavit by a specialist. Mr
Schreiber now denies that he saw Dr Setlogelo and it
can be inferred although the papers are not entirely
clear on this that Mr Schreiber was not ill on 12
March, being the date of the trial.
24. But the alleged indisposition of Mr Schreiber was not
the cause of the nonappearance at the trial on 12
March. Attorney Majola requested the postponement from
attorney Van den Bergh who acted for Mr Maritz.
Attorney Van den Bergh refused to agree to the
postponement. Attorney Majola says that then he told
attorney Van den Bergh that he would appoint a
correspondent in Johannesburg to appear and move for a
postponement. Attorney Van den Bergh in his affidavit
of 19 September 2001 confirms this part of attorney
Majola's affidavit. According to attorney Majola he or
his correspondent, an attorney Samuels practising in
Johannesburg, had a miscommunication and noone
appeared for the CC on the first day of the trial.
This would be of little consequence, because unknown to
the correspondent he or she would be there to put
forward a fraudulent reason for the postponement,
namely that Mr Schreiber was indisposed. Can this be
laid at the CC's door? Even if the CC was unaware of
the proposed fraudulent reason for requesting a
postponement on 12 March 2001, Mr Schreiber has
condoned that by recklessly signing the document on 27
June 2001, which he knew was going to be presented to
this court and which would have influenced the court's
staff or a judge dealing with this matter.
25. A further fact pointing to wilful default on the part
of the CC is to be found in Mr Schreiber's affidavit.
He says and I read from page 97, paragraph 5.1 to 5.3:
"5.1 The respondent instituted an action against the
applicant in August 1999 from this honourable court.
On receipt of the respondent's statement of case I, on
behalf of the applicant, instructed Majola Steyn Meyer
to act on its behalf.
5.2 My present attorney Mr Coetsee, inspected the court
file on 27 March 2002 and established the following:
5.2.1 The matter was enrolled for hearing by the
registrar of this court on 2 June 2000, and was
apparently postponed by agreement between the parties.
5.2.2 The matter was reenrolled for hearing on 30
October 2000 and was again postponed by agreement. The
reason for the postponements are unknown to me as
Majola never informed me of the aforesaid set downs.
5.2.3 The matter was enrolled for the third time for
hearing on 12 March 2001.
5.3 Majola never informed me that the matter was enrolled.
Shortly after 12 March 2001 Mr Majola arrived at my
office with a bundle of documents."
26. It seems improbable that the CC did not have any
contact with its attorney between August 1999 and 12
March 2001 so that it was unaware of the postponements
and trial dates and general progress of the matter,
including the drafting of a statement of response. One
would expect the respondent, which faces a claim for
R322 000 00 in round terms, together with the claim
for enforcement of payment of a salary of R40 000 per
month, to monitor the litigation very carefully. But
the CC does not say that it has had any contact with
its attorney at all during this period. The members of
the CC would know if there was contact. Moreover they
have attorney Majola's file and his notes. The CC is
content to blame attorney Majola, prima facie with
good reason for some of the defects, but this does not
absolve the CC from abandoning its case entirely to its
attorney. This disinterest amounts to wilful default.
The CC through Mr Schreiber's willingness to recklessly
place false evidence before the court, is a factor that
I cannot ignore in considering where the equities and
justice lie. I am extremely mindful of the allegedly
fraudulent activities of attorney Majola, but in some
respects, minor as they may be, there is corroboration
for some of the statements that attorney Majola has
made. This is to be found in attorney Van den Bergh's
affidavit.
27. Finally I should mention that the CC's predicament was
not caused in any way by Mr Maritz or his
representatives.
28. In the result:
1. the application is dismissed;
2. the applicant in this application (Superb Meat Supplies
CC and attorney NN Majola and his firm) are ordered to
pay the respondent's cost, jointly and separately, the
one pay, the other to be absolved;
3. that portion of the order in paragraph 2 referring to
NN Majola and his firm is provisional and becomes final
unless attorney Majola and his firm deliver an
objection and file an affidavit within ten days of this
order;
4. the Registrar is directed to send a copy of this
judgment and the papers in this matter to (a) The Law
Society of the Free State for attention regarding the
activities of attorney Majola and that of the attorneys
who acted as commissioners of oath, (b) the Board for
Sheriffs for attention regarding the attestation of the
affidavits by the sheriff concerned, and (c) to Majola,
Steyn & Meyer Incorporated.
SIGNED AND DATED AT BRAAMFONTEIN THIS 24 TH DAY OF APRIL
2002.
_______________
AA Landman
Judge of the Labour Court of South Africa
Adv JP Blignaut instructed by Dirk
Coetsee Attorneys.
Adv A Williamson instructed by Willem
Van Rensburg Attorneys.
18 April 2002.
19 April 2002.