---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

 

(1)    REPORTABLE: YES/NO

(2)     OF INTEREST TO OTHER JUDGES: YES/NO

(3)     REVISED.

 

 Case Number: 909/2014

30/8/2019

 

In the matter between:

 

BONDEV (MIDRAND) (PTY) LTD                                                            Applicant

 

and

 

CHRISTINA MARIA SYBELLA VAN BLERK                                        First Respondent

THE REGISTRAR OF DEEDS, PRETORIA                                           2^ND Respondent

THE STANDARD BANK OF SOUTH AFRICA LIMITED                    3^RD Respondent

JUDGMENT

 

Coram:           van Greunen AJ

Heard:            28 August 2019

Delivered:      30 August 2019

 

1.         INTRODUCTION

1.1      On 13 June 2019 the Applicant enrolled the Main Application as well the Application for leave to file a further supplementary affidavit simultaneously by way of a Notice of Enrolment for the 26^th of August 2019 under the following circumstances, as set out in the Notice of Enrolment:

"1.       The Notice of Motion was served on the Respondents on 7 April 2014;

2.         The Respondents did not serve their Answering Affidavits and Default Judgement was granted against them on 14 Mqy 2014.

3.         The Respondents brought on application . on the 17 August 2015, to rescind the Default Judgement granted on the 14 May 2014;

4.         On 4 November 2014 the Applicant served its opposing affidavit;

5.         On 30 January 20Is. the Respondent served its replying affidavit;

6.         The Applicant served and filed its indices on 28 May 2019 on the attorneys of the Respondent:

7.         On 28 May 2019 the Applicant served and filed its practice note and heads of argument on the attorneys of the Respondent:

8.         The Respondent failed to file its heads of argument."

 

1.2       Although an index of a Bundle A and B was found on the Court file, the main application was not properly indexed and paginated.

1.3       The matter before Court furthermore consisted of a Notice of Motion (the "New" Notice of Motion) caused by the Applicant on or about the 2^nd of October 2018 for the following relief:

"1.       The Applicant is granted leave to file this affidavit as a further Supplementary Affidavit;

2.         The first respondent s permitted to file on answering affidavit to the supplementary affidavit within 15 days;

3.         Relief be granted as prayed for in the applicant's notice of motion in paragraph 1, 2 and 3, subject thereto that the property had already been transferred and paid by the applicant;

4.         In respect of the counter application the applicant seeks and order for dismissal of the counter claim with costs:

5.         In the event that the Court finds that the Applicant's application should be dismissed and the counter application granted, the applicant prays for an order for restitution that the relief granted in the counter application shall be subject to the full restitution and payment by the respondent in the following amounts:

5.1    The purchase price in the amount of R390 000.00 plus VAT:

5.2    The levies as follows:

5.2.1      Up and until 10 September 2014 in the amount of R14,052.

5.2.2      From September 2014 to September 2018 in the amount of R95,929.50.

 

5.3    The rates and taxes:

5.3.1        From 01/10/2014 to 31/01/25 in the amount of R1 3,338.33;

5.3.2        From 2014 to September 2018 in the amount of R93,894.85;

5.3.3        Any further amounts paid in respect of the property by the applicant.

5.4      Costs of the application in the event of it being opposed;

5.5      Further and/or alternative relief."

 

1.4       What is further before Court. which was accepted to be heard simultaneously together with the Application by the Applicant for the leave to file a further Affidavit and supplementary relief referred to supra is an Application by the First Respondent to declare the Notice of Enrolment irregular.

1.5       The Application brought by the First Respondent and the relief sought is as follows:

“1.     That the Applicant be ordered to comply with the provisions of Rule 28 of the Uniform Rules of Court before amending its notice of motion. and more specifically prayers 3 to 5.5 thereof dated 2 October 2018, within S (FIVE) days of this order.

2.        That in the event of the Applicant failing to comply with the order in 1 above. on order that prayers 3 to 5.5 of the Applicant's notice of motion struck out.

3.        That the Applicant's 'NOTICE OF ENROLLEMENT: OPPOSED MOTION ROLL' be deemed to be irregular or improper and be set aside in terms of Rule 30(3) of the Rules.

4.        That the Applicant be ordered to pay the costs of this application on the scale as between attorney and own client.

5.        Further and/or alternative relief.

6.        An order that the above Honourable Court seems meet."

 

1.6        It has been submitted that as the two matters referred to as aforesaid needs to be dealt with first and will influence how the main application is dealt with, the index and pagination of the main application or rather the failure to index and paginate the court file became irrelevant to some extent and the two applications. i.e. the Irregular Proceedings Application as well as the Application for leave to file a supplementary affidavit was to be heard simultaneously.

1.7        I pause at this juncture to record that the First Respondent was called to the hearing on 26 August 2019 court for the adjudication of the Application for leave to file a further affidavit together with the main application and thus necessitated the preparation of the First Respondent to meet the main application as well.

 

2.           BACKGROUND

2.1      The Main Application is for the re-transfer of a property know as Erf 1643 Midstream Estate. Extension 9 ("the Property") from the First Respondent back into the name of the Applicant.

2.2       The First Respondent launched a counter application for cancellation of the Deed of Transfer to the Applicant pursuant to a Default Judgment previously granted and subsequently rescinded to transfer the Property back to the First Respondent and for the deletion of condition B in the Deed of Title and for costs of the counter application.

2.3       For purposes of this judgment and having regard to the fact that the main application must still be argued, I will not deal further therewith for purposes of this judgment.

2.4       The Application by the Applicant to file a further Supplementary Affidavit !the "New" Notice of Motion) and the necessity for same to be allowed was submitted by the Applicant to be as follows:-

2.4.1         new facts have arisen after the initial issuing of the main application, which has a direct impact on the facts and circumstances;

2.4.2         new case law, which has a direct bearing on the matter has since become available, which will also have a direct bearing on the matter;

2.4.3         when the previous affidavits were filed in the matter, there were conflicting decisions in this Court as to the nature of the right created by the title condition. The weight of the authority in this division was that the title condition created a real right;

2.4.4         the Supreme Court of Appeal handed down judgment on 2 October 2017 in another matter involving an identical title condition. It was determined that the applicant's right to claim retransfer of the property constituted a debt that is subject to a 3 year prescription period;

2.4.5         on 28 August 2018 the same issue was argued in a different matter before the Constitutional Court. Judgment has been reserved;

2.4.6         for present purposes, the matter is approached on the law as it now stands (pending judgment of the Constitutional Court) that the applicant's claim is indeed a debt;

2.4.7         in order to determine the issue of prescription in the present matter with reference to all the facts, the applicant seeks leave to introduce into evidence the extension agreement concluded between it and Pandowe (Second Owner of the property) when the latter acquired the property and the agreement of sole between the First Respondent and Pandowe's insolvent estate on auction;

2.4.8        the First Respondent was challenged in the Applicant's Answering Affidavit to her counter-application to produce the sale agreement concluded between her and Pandowe. The First Respondent did not. The Applicant was provided with a copy thereof by the Liquidators of Pandowe which it now seeks to introduce in the papers;

2.4.9        the documents, read together with the documents already on record, show that the Applicant's claim has not prescribed ;

2.4.10       the facts and issues in the matter changed substantially since 2014, when transfer of the property was registered in the name of the Applicant. The Applicant spent a substantial amount on rates and taxes, Homeowners levies and the purchase price on the property. It was submitted that the property cannot revert to the First Respondent, if the application is dismissed without full restitution;

2.4.11      the Applicant consented that the First Respondent is entitled to file an Answering Affidavit to the Supplementary Affidavit if leave should be granted to allow the further affidavit to be filed.

 

2.5       The Applicant further dealt with the prescription and restitution issues raised in the main application in detail.

2.6       I accept that the evidence and the allegations in the supplementary affidavit may have a bearing on the outcome of the matter and a court should have a full disclosure of all relevant facts in the interests of justice.

2.7        The main contention to the "New" Notice of Motion is the admission of prayer 5, as set out in the Notice of Motion to which the First Respondent submits should have been dealt with in accordance with Rule 28.

2.8        The First Respondent did not file an affidavit resisting the Applicant's Application to Leave to file a Supplementary Affidavit but filed a Notice of Intention to Oppose.

2.9        On 12 June 2019 the First Respondent served a Notice in terms of Rule 30A(1). The essence of the objection was that the ancillary relief set out an application for leave to supplement ought to have been introduced by on amendment.

2.10    On the 41h of July 2019 the First Respondent served a Notice in terms of Rule 30(2)(b) raising the same objection set out in the Rule 30A( l) notice as well as the enrolment of the "New" Notice of Motion together with the main application.

2.11      On 25 July 2019 the First Respondent served an application for the following orders:

 

"1.       That the Applicant be ordered to comply with the provisions of Rule 28 of the Uniform Rules of Court before amending its notice of motion. and more specifically prayers 3 to 5.5 thereof doted 2 October 2018. within S (FIVE) days of this order .

2.          That in the event of the Applicant foiling to comply with the order in 1 above, an order that prayers 3 to 5.5 of the Applicant's notice of motion struck out .

3.          That the Applicant's 'NOTICE OF ENROLLEMENT: OPPOSED MOTION ROLL' be deemed to be irregular or improper and be set aside in terms of Rule 30(3) of the Rules.

4.         That the Applicant be ordered to pay the costs of this application on the scale as between attorney and own client.

5.         Further and/or alternative relief.

6.         An order that the above Honourable Court seems meet."(sic)

 

2.12      The basis of the First Respondent's Application is summarised as follows:

2.12.1          The Applicant's notice of motion contains both prayers for interlocutory relief (prayers 1 and 2 thereof}, as well as prayers for final relief in the main application which does not appear in the original notice of motion

2.12.2           The Applicant has not followed any of the prescribed procedures required by Rule 28 of the Rules for purposes of amending its notice of motion but has instead simply effected the amendments unilaterally.

2.12.3           Further confusion has resulted from the fact that the Applicant apparently elected to enrol its prayers for interlocutory relief in terms of prayers 1 and 2 thereof together with the main application.

2.12.4        The necessary consequence of this decision is that the main application would need to be enrolled on the opposed motion roll simply to be postponed in order to give effect to the interlocutory relief (in the event that the Applicant is successful therein) sought in the amended notice of motion.

2.12.5          Notwithstanding the exchange of multiple correspondences between parties' legal representatives, the Applicant hos not to date hereof addressed this issue. Consequently, a notice in terms of Rule 30A(l) was served on the Applicant's attorney on 12 June 2019. The 10 days allotted in terms of Rule 30A for the Applicant to comply with the provisions of Rule 28 of the Rules expired on 27 June 2019. No attempts has been made by the Applicant to comply with the provisions of Rule 28 of the Rules .

2.12.6          Despite being made aware of the Applicant's failure to comply with the provisions of Rule 28, the Applicant's attorney has subsequently enrolled his client ' s defectively amended notice of motion on the opposed roll by serving a Notice of Enrolment: Opposed Motion Roll on 2 July 2019.

2.12.7          To address this irregular step. a notice in terms of Rule 30{2) (b) was served on the Applicant's attorney on 4 July 2019.

2.12.8          To date hereof the Applicant has failed to comply with the provisions of Rule 28 of the Rules with regard to the amendment of its notice of motion dated 2 October 2019, and has further failed to remove the matter from the opposed roll pending the adjudication of this dispute as embodied in the notice in terms of Rule 30A(1).

 

2.13     It is accepted that on the 281h of July 2016 the exchange of court papers in the matter was finalised . However. the Applicant did not enrol the matter. Although the main application's papers are not in order as alluded to aforesaid. it is accepted that the papers exchanged between the parties consisted of the following :-

2.13.1        a Notice of Motion, Founding Affidavit and appendices;

2.13.2          returns of service and certain court orders;

2.13.3          the First Respondent's Answering Affidavit and its appendices;

2.13.4          a Notice of Counter Application;

2.13.5          the Applicant's opposition to the counter application consisting of the notice of intention to oppose and the Answering Affidavit in the Counter Application; and

2.13.6          the First Respondent's Replying Affidavit in the Counter Application.

 

2.14      During October 2018 the Applicant delivered a "New" Notice of Motion for the relief, as set forth earlier herein. The Applicant then bound the 11New" Notice of Motion and Supplementary Affidavit into the court papers, without first obtaining relief from this Court to do so and enrolled the matter on the opposed roll (the main application together with the "New" Notice of Motion), not withstanding that the First Respondent gave notice that it would object thereto.

2.15      It was submitted by the Applicant that the "New" Notice of Motion and Supplementary Affidavit are both irregular and incompetent for the following reasons:-

2.15.1       that the Rules of Civil Procedure does not provide for a counter-claim to a counter-claim.[1]

2.15.2       furthermore, it is submitted:-

a)          That it is not legally competent for an applicant to apply (in an inadmissible counterclaim to a counterclaim) that the relief sought in the original notice of motion must be granted, as the Applicant seeks to do in prayer 3 of the "New" Notice of Motion - especially not in different terms to that contained in the original Notice of Motion.

b)           That If the Applicant sought to have the relief set out in the original Notice of Motion changed to provide for new circumstances , then it should have complied with the provisions of rule 28 of the Uniform Rules of Court in amending the original Notice of Motion.

c)            Further That no counter application is required when the order that is sought is merely the dismissal of the counter application, and the Applicant's counterclaim to dismiss the First Respondent's counterclaim (set out in prayer 4 of the "New" Notice of Motion) thus also falls foul of the principles set out in Levy, sup ra. It is, with respect, a brutum fulmen and similarly incompetent.

d)           That the relief sought in prayer 5 of the “New” Notice of Motion is clearly a counterclaim against a counterclaim, and is thus patently incompetent.

 

2.15.3       the First Respondent further claimed prejudice. It is the First Respondent's argument that, by the refusal by the Applicant to follow the prescribed procedure relating to amendments and the delivery of further affidavits and thereafter the subsequent enrolling thereof on the opposed roll had precluded the First Respondent from raising issues to which it is entitled by law to do. i.e. Rule 28 of the Uniform Rules of Court process.

a)        The provisions of Rule 28(1)and (2) applies to any intended amendment to a notice of motion.[2]

b)        The First Respondent shall be deprived of an opportunity to object to the intended amendment of the notice of motion by the Applicant.

c)        The second notice of motion does not state that the Applicant intends to apply in terms of Rule 28(10) to the court at the hearing of the main application for the amendment of the original inotice of motion. Had the Applicant indicated that such an application would be brought the First Respondent would still have had an opportunity to object.[3]

d)         The First Respondent provides cogent reasons why the hearing of the main application cannot proceed at this stage.[4]

 

2.16      It is submitted by the First Respondent's counsel that if the Applicant followed the provisions of the Uniform Rules of Court to amend it's Notice of Motion, it would have had the opportunity to object to the intended amendment and the matter would have been dealt with in accordance with the principles to amendment of court papers for a Notice of Motion.

2.16      The First Respondent was thus forced into the delivery of Notices in terms of Rule 30A and 30(2)(b) by the irregular conduct of the Applicant.

2.17      It has been stated by the Applicant's counsel that the relief sought in the "New" Notice of Motion and specifically paragraph 5 thereof, that the cause thereof was not mode out in the Founding papers and the Court would have not been able to provide such relief under the further. and/or alternative relief as set forth in the original Notice of Motion.

2.18      The First Respondent's further prejudice is alleged to be that the main application has been enrolled, together with the "New" Notice of Motion and substantial costs had been incurred by the irregular conduct of the Applicant in preparation to meet these applications against it.

2.19      The First Respondent’s position is that the Applicant should have formally applied for leave to file a further affidavit separately.[5] [6] [7] [8]

2.20      The First Respondent further relies upon Chapter 13.10 of the Practice Manual, which stipulates on which basis the Applicant should hove dealt with an Application that contained a "New" Notice of Motion:-

"1.         Where the respondent has failed to deliver on answering affidavit and has not given notice of intention only to raise a question of law (rule 6(5)(d)(iii) or a point in limine. the application must not be enrolled for hearing on the opposed roll.

2.           Such on application must be enrolled on the unopposed roll. In the event of such on applicotion thereafter becoming opposed (for whatever reason), the application will not be postponed as a matter of course. The judge hearing the matter will give the necessary directions for the future conduct of the matter.

3.            The notice of set down of such an application must be served on the respondent's attorney of record ."

 

2.21      It is further argued that the approach taken by the Applicant compelled the First Respondent to:-

2.21.1      to prepare for a hearing of the application for leave to deliver the further affidavit, whereupon there will be a postponement of the matter; and

2.21.2      to also prepare for the main application should the application for leave to deliver the further affidavit not be granted.

 

3.            CONCLUSION

3.1        I must agree that. as the main application was also set down together with the "New "Notice of Motion", the preparation for the hearing of the main application by the First Respondent clearly amounted to wasted costs and could have been dealt with more pragmatically by the Applicant and its attorneys. It follows that the First Respondent should not be burdened with these wasted costs.

3.2        I now turn to the First Respondent's Application:

3.2.1    I agree with the First Respondent's submissions that the enrolment of the "New" Notice of Motion together with the main application is irregular as no leave was granted by this court for the allowance of the further affidavit if such main application was to be heard .

3.2.2    The possible prejudice to the First Respondent is clear in that he had to prepare not only for an application for the leave to file a further affidavit, but also possibly for the main matter if such leave was granted.

3.2.3    It is trite in low that o party must be know the case that he has to meet . The conduct in the applicant in this regard neglected to have regard thereto.

3.2.4    However, in the interest of justice it is of importance for the court to have regard to all information that might be relevant in the conduct of the matter which may have an influence on the outcome of the matter. I am thus inclined to allow the filing of the Supplementary affidavit and grant the indulgence sought by the Applicant in this regard.

3.2.5    Rule 30(3) allows as follows:

(3)     If at the hearing of such application the court is of opinion that the proceeding or step is irregular or improper, it may be set aside in whole or in part, either as against all parties or as against some of them, and grant leave to amend or make any such order as to it seems meet"

3.2.6    From the plain reading of the Rule aforesaid it is clear that the court has a wide discretion.[9]

3.2.7    I note the Applicant's contention that the First Respondent should have pursued its objection and irregularity in the beginning when the “New" Notice of Motion was initially served. I agree it would have potentially expedited the matter to finality. Similarly if the Applicant followed due process and enrolled its application for leave to file a further affidavit together with ancillary relief before enrolling the main matter. even on an unopposed basis which it seemingly was entitled to as the First Respondent did not file any opposing papers to the application and did not take any step further in terms of Rule 30 at that point in time, the matter could have been expedited to finality. Both parties are to blame for the slow progress of the matter.

3.2.8    However. the irregularity to be decided upon is mainly the Enrolment of the “New" Notice of Motion together with the main application and ancillary new relief sought.

3.2.9    No doubt that the parties and their legal advisors should not be encouraged to become slack in their observance of the Rule which forms an important element of the machinery for the administration of justice. But on the other hand technical objections to less that perfect procedural steps should not be permitted, in the absence of prejudice, to interference with the expeditious and. if possible, inexpensive decision of cases on their real merits.[10]

10. It is clear the prejudice if the matter was allowed to be heard as intended by the Applicant in accordance with the Notice of Enrolment, the First Respondent would be prejudiced severely and cannot be allowed.

11. I accept the First Respondent's proposition the allowance of prayer 3 to 5, and especially 5 of the "New" Notice of Motion would be tantamount to an amendment of the initial relief sought and should follow the process laid out in Rule 28 for Amendments.

3.2.12 The court has a discretion and it is not intended that an irregular step should necessarily be set aside.[11]'

3.2.13 The discretion of the court should be exercised judicially on a consideration of the circumstances and what is fair to both sides.[12]

3.2.14 Having regard to the interests of justice and possible prejudice I om inclined to partially agree with the proposition of the First Respondent. If the Applicant was allowed to proceed as intended I accept that the First Respondent would be prejudiced.

15. I am also inclined to allow the delivery of the further affidavit in the interests if justice to allow for all facts and circumstances to be before the court which may the main matter finally and is mindful of any prejudice the Applicant may suffer if not allowed. The Applicant is reminded that its case should be made out in the founding papers.[13] This remain for the court adjudicating upon the main application eventually to decide thereupon.

16. I am however convinced by the proposition of the First Respondent that the further ancillary relief sought and specifically paragraph 5 of the "New" Notice of Motion would constitute and amendment and in order to allow such amendment the Applicant is to follow the Rules of the Court and any practise directives in this regard.

 

ORDER

4          Therefore, I make the following order:

4.1       The Applicant shall bear the wasted costs of the First Respondent occasioned by the enrolment of the main application.

4.2       The Applicant is granted leave to file the further supplementary affidavit.

4.3       The Respondents are permitted to file their answering affidavits to the supplementary affidavit within 15 days.

4.4       The Applicant is to pay the costs of the application for leave to file a further affidavit and the costs occasioned with the irregular proceedings application of the First Respondent on a party and party scale.

4.5       The Applicant's further prayers set forth in the "New" notice of motion is to be dealt within accordance with the procedures laid down in Rule 28 of the Uniform Rules of Court.

 

 

JOHAN VAN GREUNEN

ACTING JUDGE

---