Coutries v Levergy Marketing Agency (Pty) Ltd and Another, In Re: Levergy Marketing Agency (Pty) Ltd v Coutries and Others (2020/5802) [2020] ZAGPJHC 260 (19 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2020/5802

In the matter between:

COUTRIES, THOMAS DARRYL Applicant

And

LEVERGY MARKETING AGENCY (PTY) LTD 1st Respondent

DLOKWENI MXOLISI 2ND Respondent

In Re:

LEVERGY MARKETING AGENCY (PTY) LTD Plaintiff

COUTRIES, THOMAS DARRYL 1ST Defendant

DLOKWENI MXOLISI 2ND Defendant

JUDGMENT

SEGAL AJ

INTRODUCTION AND BACKGROUND

1. This is an interlocutory application brought by the Applicant (the First Defendant in the civil action under the same case number as this application) [“the action”] against the First Respondent (the Plaintiff in the action).

2. The Applicant approaches this court for two heads of relief, namely: -

2.1. a stay of the action (in which the First Respondent claims the sum of R698 000.00 from the Applicant), pending the final outcome of criminal proceedings against the Applicant in which the First Respondent is the complainant and, to which the Norwood SAPS have allocated a case number CAS 241/2/2020; and

2.2. for the upliftment of the bar to enable the Applicant to deliver his Plea, Exception, Notice to Strike Out and/or Counterclaim within five days of the outcome of the criminal proceedings.

3. The First Respondent counter applies for default judgment against the Applicant on account of his failure to plead after having been served with a Notice of Bar and the expiration of the period permitted for him to do so, in terms of the Uniform Rules of Court.

4. It is common cause that the First Respondent reported a criminal complaint in relation to the conduct of the Applicant and the Second Respondent to the South African Police Services (“SAPS”) during February 2020. The First Respondent alleges that the Applicant together with the Second Respondent perpetrated a fraud upon the First Respondent. The Applicant denies the allegations of fraud on his part.

5. It is also common cause that notwithstanding the fact that the formal complaint was laid in February 2020, no formal charges have been brought by the SAPS against the Applicant or the Second Respondent to date.

6. In addition to having laid criminal charges as set out above, the First Respondent instituted the action, seeking inter alia payment of the sum of R698 000.00 from the Applicant.

7. The Applicant delivered a Notice of Intention to Defend the action after service of the Summons upon him however, he did not plead in accordance with the provisions of the Uniform Rules of Court. In consequence of this failure on the Applicant’s part, the First Respondent delivered a Notice of Bar on 9 April 2020 calling upon the Applicant to plead within five court days, failing which he would be ipso facto barred.

8. The Applicant did not plead on the basis that to do so at this stage would prejudice him in the criminal matter. Consequently, the Applicant has instituted this application.

9. The basis upon which the Applicant so contends, is that he wishes to invoke his right to remain silent in the criminal proceedings. He contends that if he is obliged to plead in the civil proceedings, the state will have comprehensive insight into his defence even before the charge sheet has been finalised thereby enabling the state to gather evidence that may be used against him in the criminal matter.

10. The Applicant asserts that obliging him to plead in the civil action will infringe upon his constitutional right to remain silent and to a fair trial in the criminal proceedings. It is apposite to note that at present no criminal proceedings have been instituted by SAPS, notwithstanding that a complaint had been laid as early as February 2020.

CIRCUMSTANCES IN WHICH A CIVIL COURT MAY STAY PROCEEDINGS

11. The principles which underpin the requirements for a stay of civil proceedings where criminal proceedings on the same facts are

contemplated, are gleaned from the decision of the Supreme Court of Appeal in Law Society of the Cape of Good Hope vs Randell [1] and are as follows:-

11.1. where there are criminal and civil proceedings pending on the same facts, the civil proceedings will be stayed only if the accused can show that he might be prejudiced in the criminal proceedings should the civil proceedings be heard first;

11.2. the court will only grant a stay of civil proceedings where an element of state compulsion is present.

12. The First Respondent argues that in the first instance, the Applicant has not demonstrated that he will suffer any prejudice in the criminal proceedings if he is required to plead in the civil proceedings.

13. Secondly, the First Respondent maintains that in fact no criminal proceedings have in fact commenced against the Applicant.

14. Thirdly, the First Respondent asserts, that in the absence of an element of a compelled response imposed on the party seeking the stay of the civil proceedings, a stay should not be ordered.

15. The Supreme Court of Appeal in the Cape of Good Hope v Randell decision, approved the approach adopted by Nugent J in the case of Davis v Tip N.O. & Others who opined as follows: -

“Civil proceedings invariably create the potential for information damaging to the accused to be disclosed by the accused himself, not leased so, because it will often serve his interests in the civil proceedings to do so. The exposure of an accused person to those inevitable choices has never been considered in this country to conflict with the right to remain silent during criminal proceedings. Where the courts have intervened there has always been a further element, which has been the potential for State compulsion to divulge information. Even then the courts have not generally suspended the civil proceedings but in appropriate cases have rather ordered that the element of compulsion should not be implemented.

In the present case the preservation of the applicant’s rights lies entirely in his own hands and there is no such element of compulsion. What the applicant seeks to be protected against is the consequence of the choices he may be called upon to make.”

16. Accordingly, the mere fact that a litigant may be required to make a difficult choice does not per se entitle him to an automatic stay of the civil proceedings, nor does it necessarily conflict with his right to remain silent or his right to a fair trial during criminal proceedings.

17. If the order as sought by the Applicant in the instant proceedings is granted, it is conceivable that the Applicant may never be criminally charged, and the First Respondent’s action would be suspended indefinitely. Simply put the First Respondent would be placed in the untenable position of being eternally non-suited.

18. The fact that the Applicant has not been criminally charged, must of necessity disentitle him to the relief sought for a stay of the civil proceedings because the stay is premised on remaining extant pending the final outcome of the criminal proceedings. However, the criminal proceedings do not exist.

19. Additionally, and even if criminal charges had been proceeded with and the criminal matter were pending, the Applicant has not demonstrated that he will be sufficiently prejudiced to warrant a stay of the action.

20. Moreover, and in light of the fact that no State coercive means are of application in the action, there is insufficient prejudice of a kind that will justify a stay as sought by the Applicant.

21. The decision is an ultimately discretionary and for reasons set out above, and on the basis of the dicta in the Cape of Good Hope v Randell decision, I do not exercise my discretion in the Applicant’s favour.

SHOULD THE BAR BE LIFTED AND DEFAULT JUDGEMENT GRANTED?

22. In argument, counsel for the Applicant submitted that in the event that the Applicant is unsuccessful in securing a stay of the action, he seeks an order that the bar be uplifted and that he be afforded a period of five days within which to file his Plea, Exception, notice to Strike Out and/or Counterclaim.

23. The First Respondent disagrees. It claims that the lifting of the bar and the grant of an indulgence to the Applicant would redound to its detriment and that it will suffer prejudice of such a magnitude that it cannot be compensated for by an order for costs.

24. Whilst conceding that both the decision to uplift the bar and to grant default judgment in the circumstances of this matter are discretionary, the First Respondent argued that I should not exercise my discretion in favour of the Applicant inter alia in that the Applicant has failed to show good cause for the upliftment of the bar and also because the Applicant did not set out on oath, sufficient facts pertaining to his defence.

25. I was referred to the authority of Lodhi 2 Properties Investments CC & Another v Bondev Developments (Pty) Ltd [2] in support of the contention. The First Respondent asserts that where a court grants default judgment in circumstances such as this, it does not grant judgment on the basis that the defendant does not have a defence but rather on the basis that the defendant has been notified of the plaintiff’s claim and despite such notice, not put up a defence. The First Respondent contends that I must accordingly dismiss the Applicant’s application and grant an order for default judgment together with costs in its favour.

26. The Applicant has not made out a case for the stay of the civil proceedings, it is clear to me that on a conspectus of the application as a whole, the Applicant’s chosen course of action was ill-conceived and without merit.

27. Additionally, the Applicant has failed to satisfy the requirements for the court to exercise its discretion in his favour and uplift the bar which precludes him from pleading. This is so because a fundamental requirement, that the Applicant set out his defence to the claim on the merits under oath, is absent. The high-water mark of the Applicant dealing with his defence is a bare denial. In the absence of a disclosure of a bona fide defence the application for the upliftment of the bar must fail.

Accordingly, I make an order in the following terms: -

1. The Applicant’s application for a stay of the civil action under case number 2020/005802 pending the final outcome of the criminal proceedings against the Applicant under case number SAPS CAS 241/2/20 is dismissed with costs.

2. Default Judgement against the Applicant (First Defendant) is granted for:

2.1. payment of the sum of R698 000.00;

2.2. interest on the aforesaid sums at the maximum legal rate allowed per annum from date of service of summons to date of payment;

2.3. costs of suit.

_______________________

SEGAL

ACTING JUDGE OF THE HIGH COURT

Heard on: 06 October 2020

Judgment Delivered on: 19 October 2020

Appearances

For the Applicant: Adv Wynand naude

Email address: wna@wnlaw.co.za

Cell: 074 159 2653

Attorney for the Applicant:

Marques Soares Fontes Attorneys

98 Vorster Avenue

Glenanda

JOHANNESBURG

Tel: (011) 432 4470/2

Fax (011) 432 4843

C2322

For the 1st Respondent: Adv K C Oldwage

Email address: oldatlaw@mweb.co.za

Cell: 083 564 8317

Attorney for the 1st Respondent:

Mouyis Cohen Inc.

2nd Floor Sala House

12 Fredman Drive

SANDTON

Tel: (011) 783 2573

Fax (086) 625 4534

Email: imouyis@mcinc.co.za

[1] 2013 (3) SA 437 (SCA)

[2][2] 2007 (6) SA 87 (SCA)