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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

1.      REPORTABLE: NO

2.      OF INTEREST TO OTHER JUDGES: NO

3.      REVISED

                                                CASE NO: 45597/2019

 

 

In the matter between:

 

BIOMERIEUX S.A 69280                                                                                    First Applicant

 

BIOMERIEUX SOUTH AFRICA                                                                       Second Applicant

(PROPRIETARY) LIMITED

 

and

 

JOHANNES MOGAU NGOBENI                                                                      Respondent

 

In re:

 

JOHANNES MOGAU NGOBENI                                                                      Plaintiff

 

and

 

BIOMERIEUX S.A 69280                                                                                    First Defendant

 

BIOMERIEUX SOUTH AFRICA                                                                       Second Defendant

(PROPRIETARY) LIMITED

 

(This judgment is handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 13 December 2021.)

 

JUDGMENT

 

A.            INTRODUCTION

1.             The Applicants, Biomerieux S.A 69280, the First Applicant and Biomerieux South Africa (Proprietary) Limited, the Second Applicant (“the Applicants”) approached the Court seeking a number of indulgences in order to repel an amendment to a pleading filed by the Respondent. In essence, the Applicants prays for the Court to overlook instances of non-compliance with the time limits set out not only in the Rules of Court, but also stipulated in a Court Order which stipulated certain time-frames for filing pleadings in the main action instituted by the Respondent herein 

2.             This is an application based on Rule 30 in which  the Court is asked to reject the Respondent’s amendment of its pleadings on the basis that such was an irregular step filed in defiance of an objection filed pursuant to Rule 28(3)3. The main legal ground posited on which the Court ought to grant the indulgences is that the Court should not be technical in its approach when considering non-compliance with prescripts governing the conduct of Court proceedings.[1]  There is a Counter-Application.

3.             In the Notice of Motion, the Applicants lists the following issues for determination:

3.1      the Court condones the failure by the First Applicant (the First defendant in the main action) to comply with the provisions of paragraph 5.4 of the interim ex parte order of his Lordship Mr Acting Justice Mphaga, dated 27 June 2019, and accepts the Notice of Appointment of Attorneys of Record” dated 9 September 2019, as notification of the first applicant (the first defendant in the action) intention to defend the action.

3.2      In the alternative to prayer 1 above,  the Court condones the failure by the first applicant ( the first defendant in the main action) to comply with the provisions of paragraph 5.4 of the interim ex parte order of his Lordship Mr Acting Justice Mphaga, dated 27 June 2019, and accepts the “notice of Intend to Defend:, dated 26 March 2020, as ratification of the first and second applicants (the first and second respondents in the action) intention to defend.

3.3      The Court condones the failure by the defendants (the applicants herein) in respect of the process of electronic filing of the Defendant’s Rule 28(3) Notice of Objection to the plaintiff’s intention to amend his intendit, which notice of objection was dated and filed (and served) on 16 March 2020.

3.4          It is declared that the defendant’s Rule 28(3) Notice of Objection to the plaintiff’s intention to amend his intendit, which notice of objection was dated and filed (and served) on 16 March 2020, was correctly and timeously served, filed and delivered and constitutes a proper objection to the intended amendment, in terms of the Rules of Court.

3.5          The defendant’s Notice in terms of Rule 30A, which is dated11 May 2020, pertaining to the plaintiff’s purported amendment of its intendit, is upheld and the plaintiff is ordered, in terms of Rule 30A(1), to comply with the provisions Rule 28(4) and that the plaintiff’s purported amended pages be set aside, alternatively, that the plaintiff’s claim be struck;

3.6          The plaintiff is directed to respond to the defendant’s notice of objection in such a manner as the plaintiff deems appropriate and within 15 (fifteen) days of the date of this Order, alternatively, within such time as the Court directs.

3.7          The defendants; further notice in terms of `rule 30A, which notice is dated 2 July 2020, pertaining to the plaintiff’s purported service of a Notice of Bar, is upheld and the plaintiffs’ purported notice of bar, dated 2 July 2020, is set aside.

3.8          The plaintiff is ordered to pay the defendant’s’ costs in this application, in the event of the plaintiff’s opposing any aspect thereof, on such scale as the above honourable Court may deem appropriate.

3.9          At the above Honourable Court grant such further and/or alternative relief as it may deem required or appropriate under the circumstances. (my emphasis).

B.            FACTUAL BACKGROUND

4.             The application arises from a series of events precipitated by a soured employment relationship between the Respondent/Plaintiff and the First defendant.  It appears from a perusal of the record that there exist an ongoing lis between the parties on that score and the Courts had to deal with numerous technical processes as outlined hereunder arising  from an ex parte application in this Court  launched by the Plaintiff/Respondent during January 2019, the seeking, inter alia, attachment of rights, title and interest in shares by the First Applicant (First Defendant in the action) and leave to institute proceedings by way of Edictal Citation.

5.             The chronology of events is as follows will shed light. The order was served on the first applicant on or about 1^st August 2019. On 9 September, a written notification of appointment of attorneys of record on behalf of the First Defendants in the action was served. On or about 27^th June 2019, an Interim Ex Parte order was granted by His Lordship Mr Acting Justice Mphaga. On or about 5^th July 2019, there was an attachment of shares held by First Applicant in Second Applicant.  On the 16^th July 2019,the order was served on Second Applicant/Defendant in South Africa.  On or about 18^th July 2019, a written notification of appointment of attorneys of record on behalf of the Defendants in the action was served. On 1^st August, the order was served on First Applicant in France. On or about 9^th September. A written notification of appointment of attorneys of record on behalf of the First defendant in the action was served.

6.             On the 4^th October 2019, an application for reconsideration of the ex parte order served before his Lordship Mr Acting Justice Millar. The reconsideration was granted and the application dismissed with costs. On 18^th October, an application for leave to appeal was dismissed with costs. On the 11^th October 2019, Defendants file Notice of Exception n terms Rule 23(1) to the Intendit. On 11 November 2019, Plaintiff (Respondent herein) files the first notice of intention to amend Intendit. On 5^th February 2020, Plaintiff purports to file amended pages to effect first amendment (Irregular?).  On 26 February 2020, Defendants file Notice to Remove Causes of Complaint in terms of Rule 30A (1) and (2)(b) in re irregular service of first amended pages. On 4 March 2020, Plaintiff files Notice of Withdrawal of Notice of Intention to Amend. On 4 March 2020 Plaintiff files Second Notice of Intention to Amend. On 16 March 2020, the Court issues an “Urgent Directive In Respect of Restricting Access to Court In Light of COVID-10”. On 18 March 2020. Defendants serve Notice to object to Amendment In Terms of Rule 28(3) and file same by email with the Registrar of the Court. On 19 March 2020, Defendants files hard copy of Notice to Object to Amendment in terms of Rule 28(3) in Court.   On 24 March 2020, the Plaintiff purports to file Amended Pages to effect the Second Amendment (Irregular).  On 26 March 2020, Defendants formally file Notice of Intention To Defend ex abundante cautela (8 Months after the Mphaga Order). On 26 March 2020 Defendants again file hard copy of Notice to Object to Amendment in terms of Rule 28(3) in Court, pursuant to Plaintiff’s refusal to accept any document in absence of having received a formal notice of intention to defend.  ON 27 march 2020, a Nationwide State of Disaster was declared and Level 5 lockdown implemented.  On 27 March 2020 plaintiff (Respondent herein) demands that present application for condonation be instituted by Applicants herein (Defendants in the main action).  On 11 May 2020, Defendants file Notice to Remove Causes of Complaint in terms of Rule 30A(1) and (2)(b) (irregular service of Second Amendment). 

7.             On 2 July 2020, Plaintiff purports to file a Notice of Bar in terms of Rule 26. On 2 July 2020, Defendants’ file Notice to remove Causes of Complaint in terms of Rule 30A (1) and (2)(b) in re irregular Notice of Bar. On 31 August 2020 Applicants file an Application for condonation. On 17 September 2020, Respondents filed Answering Affidavit together with a Counter Application. On 2 December 2020 Applicants file a Replying Affidavit. On 2 February 2021, Respondents’ attorneys requested the Applicants to file Heads of Arguments.  On 17 February 2021, respondents requests Heads. On 19 February 2021 Applicants confirm it will file Heads by 26 February.. On 1 March 2021, Respondents requests filing of Heads.  On 2 March, Applicants file Heads and Respondents filed their heads on 21 March 2021.  On 31 March 2021, Respondents’ requested. Applicants’ to set the matter down for a hearing. On 8 April 2021, Respondents requested Applicant to set the matter down for a hearing. On 3^rd August 2021, Applicant Notice of Set Down is uploaded on Caselines. The period between the setoff processes indicates a rather lax attitude and serious administrative shortcomings or conscious disregard for Rules as submitted by Respondent. on the part of the Applicants/Defendants, hence, the multifaceted requests for condonation.

C.   ANALYSIS OF RELIEF SOUGHT

8.    The present application was uploaded on Caselines on the 3^rd August 2021, four months after the Respondents had requested the Applicants to set the matter down and finally heard on the 11 November 2021. In the Founding Affidavit, the Applicants submit that the application “intends to achieve a number of objectives, amongst others, to formalise an aspect pertaining to an interim ex parte order granted in the defendant’s absence and further address and remedy instances of non-compliance with the Rules of this Court”.[2]  

9.             After the hearing on 10 November 2021, the Court requested the Parties to submit supplementary heads of argument to address some of the queries raised by the Court. Both Applicants and Respondent responded accordingly, and the Court is grateful for the clarification contained in those submissions.

10.          For a lucid assessment of the submissions, the issues raised will be considered seriatim.

10.1      Non-Compliance with Rules and Court Order: Notice of Intention to Defend

10.1.1         The Applicants failed to file a Notice of Intention to Defend after serving a Notice of Appearance as Attorneys of Record acting on behalf of the Defendants in the main action. According to the Chronology of Events filed on record, the written notification of appointment attorneys of record on behalf of defendants (sic) was filed on 18 July 2019 after the interim ex parte order by Mphaga AJ was served on the Second Defendant on the 16 July 2019.[3] The Order directed the first Defendants to deliver its notice of intention to defend the action within one month of service of the Citation and Intendit upon it.

10.1.2         The Notice of Intention to Defend was subsequently filed on the 26 March 2020, seven months after filing notice to act as attorneys of record with knowledge of the contents of the Order of Mphaga AJ. The Defendant now seek condonation for the failure to comply with both the Rule 16 and the Order by Mphaga AJ. The reasons for the delay are stated as, inter alia, the flurry of activity in relation to the attachment of shares in the Second Defendant, owned by the First Defendant, and the linguistic and geographical hurdles faced as the First Defendant is a Company based in France. It became an administrative nightmare to coordinate efforts and obtain instructions to reconsider the Mphaga AJ Order. Yet during this time correspondence was abound between the parties’ representatives. An application for reconsideration was launched which was granted in part, and appeal processes prosecuted further.

10.1.3          Mr Molepo for the Respondent submitted that during this ensuing period, Defendants’ were aware of the provisions of the Mphaga AJ Order in respect of filing of the Notice of Intention to Defend.  As a result, the Court must consider both the Notices of Appearance as Attorney of Record, dated 9 September 2019, as notification of the first applicant intention to defend the action, and alternatively, condone the failure to comply with the Mphaga AJ Order. The Court accepts the “Notice of Intention to Defend: dated 26 March 2020, as notification of the first and second applicant’s intention to defend such action as evincing an intention to defend, and treat the former as the latter.

10.1.4         In response, the Respondent (Plaintiff in the main action) submitted in his Answering that he does not oppose the late filing of the Notice of Intention to Defend, and has given consent to the late filing of the respective Notices of Intention to defend even though the Applicants never sought his consent.[4] He relied on the provisions of Rule 27(1) which stipulates that “in the absence of agreement between the parties, the Court may upon application on notice and good cause shown, make an order extending…any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.”

10.1.5         Even though the Applicant never sought this consent, there was evidence that his legal representatives have indicated such to the Applicants in correspondences dated 19 March 2020 and 27 march 2020 respectively. As a result, an application for condonation was unnecessary.[5] Counsel for Applicants’ Mr Anthonie P Jansen van Vuuren submitted that the purported acquiescence by the Applicant is not bona fide and cannot be reconciled with the provisions of Rule 30A.  He submitted that he need pursue the issue in order to formalise intention to defend the action so as to secure an order for costs.

10.1.6          A determination of the issue raised by the Applicants must necessarily revolve on the interpretation of the prescripts under consideration on one hand, and compliance with the requirements of a condonation application on the other. Notice of Appearance as attorney of record is provided for in Rule 16.  Rule 16(10 provides that “if an attorney acts on behalf of any party in any proceedings, he shall notify all other parties of his name and address”. Subrule 3 provides that the address provided in “such a notice becomes the address of such party for service upon him of all documents in such proceedings…” The wording and context of this rule makes it clear that service of documents is the main objective of the rule.

10.1.7         Rule 19, on the other hand, provides for delivery of notice of notice of intention to defend. In Ananastassiades v Central Mining and Investment Corporation, the Court held that a Defendant who desires to defend an action must file a notice of intention to defend: he cannot approach by any other means except to deliver the notice.[6] Failure to do so may attract a judgment by default.

10.1.8         The Rules of Court are designed to facilitate an expeditious and inexpensive resolution of litigation.[7] The Rules are to be interpreted and applied in a manner “that will facilitate the work of the Courts and enable litigants to resolve their disputes in a speedy and inexpensive manner”.[8] Furthermore, “the primary function of the Rules is the attainment of justice”.[9] Section 173 provides for the powers of Courts to protect and regulate this function. The Rules of Court “are designed to ensure a fair hearing and should be interpreted in such a way as to advance and not reduce the scope of the right to a fair trial entrenched in Section 34 of the Constitution”.[10]

10.1.9         In Motloung and Another v The Sheriff, Pretoria East and Others, the SCA revisited the interpretive approach when faced with a condonation application where a pleading is the subject of a claim of defectiveness or nullity.[11] The established approach is that the departure point is the wording of the provision. Yet the interpretation of the provisions must considered in the context of the Rules viewed collectively.[12] “A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There are three important interrelated riders to this general rule:

(a)    That statutory provisions should always be interpreted purposively;

(b)    The relevant statutory provisions must be properly contextualised; and

(c)    All statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity.”[13]

10.1.10     Counsel for Applicant’s implored the Court to adopt a purposive approach and conclude that the circumstances indicate that the Notice as Attorney of Record must be interpreted to mean a Notice of Intention to Defend. This approach is at odds with the canons of statutory constructions enunciated above. The two are separate and distinct processes clearly worded without any ambiguities and designed to achieve distinct, specific objectives. They cannot be interposed. As a result, the Court cannot condone the notion that the “Notice o Appearance of Attorneys of Record” dated 9 September 2 notification by the first applicant (the first defendant in the action) intention to defend the action.[14]

10.1.11     As already indicated, Applicants filed their Notice of Intention 7 months after receiving of the Order by Mphaga AJ. The Applicants were still empowered under Rule 19(5) to deliver such a notice, which they failed to do, and consequently consciously or unconsciously fell foul of the explicit requirement of the Mphaga AJ Order. The Applicants had numerous interactions with this Order during the period leading to this application. Despite its clear wording, Applicants chose to ignore it. In fact, it was the Respondents who had to implore the Applicants to take further steps in an attempt to reach finality. Litigants who choose to ignore Court orders do so at their own peril.

10.1.12     In the Founding Affidavit, Applicants acknowledge the failure to serve the Notice of Intention to Defend on behalf the defendants and proffered an apology.[15] In my opinion, Applicants should have taken the matter a step further, and sought consent from the Respondent in accordance with Rule 17 (3). The reasons provided, in the circumstances, do not meet the requirements of good cause necessary for a successful condonation application. In any event, the Respondent had indicated that consent to deliver the Notice without the need for an application to formalise the Notice of Intention to Defend for purposes of securing costs in that regard cannot be a justifiable reason to engage the Court on a moot point.[16]

10.2    Electronic Filing of Rule 28(3)

10.2.1      On or about 21 October 2019, the Applicants; lodged a Rule 23(1) Notice, indicating grounds of exception in respect of allegations contained in the Plaintiff’s Intendit. The Plaintiff responded by filing a Notice of Amendment of the Intendit dated 11 November 2019. The Plaintiff filed a Notice to Withdraw the amendments on 4 March 2020 after objections by Applicants.  Plaintiff issued a Second Intention to Amend and served on 4^th March 2020. This Second Amendment, according to Applicants’, contained “a withdrawal by the Plaintiff of an admission in respect of the identity of his employer”.[17] This withdrawal prompted the Applicants to lodge another Notice of Objection in terms of Rule 28(3), which had a deadline of 18 March 2020. 

10.2.2      Applicants failed to meet the deadline for filing an objection as alluded to above, this is ascribed to the “confusion” emanating from the COVID-19 lockdown and the ensuing directive in respect of filing processes. As a result, Applicant failed to attend to Court to issue the Notices, but instead emailed, on the 18^th March 2020,  to the Caseline email address as well as to the secretary of the Honourable Judge President.[18]  The Applicants; submits that as a result of the confusion caused by the restrictions, Heads of Courts urged the parties to “avoid unnecessarily complicating litigation through overly technical objections”.[19] Consequently, the Notice of Objection was timeously filed under the circumstances.

10.2.3      The Respondent (Plaintiff in the main case) counters by submitting that the Applicants did not deliver the Notice of Objection in accordance with the Rules. In terms of the Rule 1, delivery means service of the relevant court document and filing of the original with the Registrar of the Court.  Rule 4A (5) of the Rules Board for Courts of Law Act provides that “the filing with registrar of originals of documents and notices referred to in this rule shall not be done by way of facsimile or electronic mail”. Accordingly, the Notice of Objection was filed with the Registrar on the 20 March 2020 and again on the morning of 26 March 2020, while the deadline was 18^th March 2020. 

10.2.4      As regards the “prohibition” to enter the `court building, Respondent submitted that Applicant misconstrued the Directive: only the issuing of new matters was a subject of the prohibition. Indeed, the Respondent did attend to Court, to file its Amended on the 24 March 2020, emanating from the failure to properly deliver a Notice of Objection. Within the context of the drastic consequences of the Notice of Objection, in the absence of cogent reasons explaining the delay to timeously deliver such, Respondent, in my opinion, is justified to deliver its Amended Pages on the 24^th March. The confusion regarding access or lack of access to the Court building, coupled with the unsatisfactory justification for not adhering to well know known stipulated procedures for delivering Court documents, negate reasonableness.

10.2.5      The Applicants’ urge this Court to find to justify a condonation for non-compliance. Rule 27(3) provides that the Court may condone any non-compliance with the Rules on good cause shown. The Court is vested with a wide discretion to determine what constitutes “good cause” under  the circumstances of the case.[20] It is incumbent for the Applicants to proffer a satisfactory explanation and allow the Court to assess his conduct and motives, as the case may be.[21] A number of caveat have developed as guidelines on granting condonation. For example, the Court will refuse to grant an application where there is an indication that the Applicant, from the facts of the case, demonstrates an intentional disregard of the rules of court or that the application is not bona fide but made with an intention of delaying the opposite party’s claim.[22]

10.2.6      The Applicants seek for the Court to “condone any oversight, error or mistake in respect of the electronic filing of the Defendants’ Notice of Objection upon the email addresses of the Registrar of the above Honourable Court”.[23] The Respondent, however, argues that given the history of the delay, and the technical points taken by the Applicant, the Court must regard the objection as a strategy to further delay and frustrate the conduct of litigation. There is substance in this submission. The explanations proffered by the Applicants, although eliciting some sympathy, failed the threshold required for a showing of good cause under the circumstances. The failure to comply in the instance is “an example of the breach of a peremptory provision which leads to nullity.”[24]

 

10.3    Rule 30A Notice

10.3.1        The Applicants’ Rule 30A was filed in response to the Respondents’ filing of an amendment. The objection is directed against what the Respondent submitted is an error in citation of the First Defendant as opposed to the Second Defendant as the party with whom the Respondent had signed a contract with not only that, but the Applicants had failed to raise the issue in the first amendment that was lodged, but chose to attack that amendment on the incorrect citation of the annexures attached thereto.   

10.3.2        The insistence by the Applicants that the amendment to correct an error in the citation is a withdrawal of an admission is not sustainable. The Applicants knew or ought to have known what the Respondents’ (Plaintiff in the main action) misquoted, given the similarities of the names of the Applicants’ (Defendants in the main case). Yet they is a “factual enquiry which can be established in due course during the litigation”.[25]

10.3.3        Rule 30A provides for a compliance process where a party defaults to remedy a defect. Failure to remedy non-compliance can attract an order to strike off the claim or defence, as the case may be.  The Court adjudicating an Rule 30A application may make such order as to it seems meet. Upholding the objection under consideration attracts a disastrous result. Plaintiff’s claim may be struck off. That could not be in the interest of justice: “the rules of procedure of this Court are devised for the purpose of administering justice and not of hampering it, and where the rules are deficient, I shall go as far as I can in granting orders which would help to further the administration of justice”.[26] Similarly, “technical objections to less that perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and possible, inexpensive decision of cases on their real merits”,[27]

10.3.4        In summary, the requirements of Rule 27(3) and Rule 30 are presently not met. There is good cause shown for condonation, especially when adjudicated with the standards enunciated by the Motloung Court.  The interests of justice will not be served by allowing overly technical objections which prima facie are designed to frustrate a proper conduct of the litigation, while simultaneously hampering the proper administration on our Court system, which is bursting at the seams with frivolous

11.          There was also a need to address the Notice of Bar filed by the respondent. In light of the concessions made, and the ruling of this Court, it is not necessary to delve into its consideration.

Accordingly, I make the following Order:

(a)       The Order dated 26^th October 2021 is hereby recalled;

(b)       The Application is dismissed;

(c)       The Applicants must file its Plea within 15days of receipt of this Order;

(d)       The Applicants to pay the cost of the Application.

 

PHETOLE SEKHULA

                                                                 ACTING JUDGE

GAUTENG DIVISION, PRETORIA

 

Head on:  26 November 2021

Judgment delivered: 13 December 2021

 

 

Appearances

 

Applicant’s Counsel             :           Adv. AP Jansen van Vuuren

Instructed by                         :           Snymans Attorneys

:         swalker@labournet.com

 

Respondent’s Counsel        :           D Molepo

Instructed by                         :         Edward Nathan Sonnenbergs Inc.

:       dmolepo@ensafrica.com

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