Daytay (Pty) Ltd v Magra Process Engineering (Pty) Ltd (1919/2022) [2024] ZANWHC 282 (14 November 2024)

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION,

MAHIKENG

CASE NO.: 1919/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

DAYTAY (PTY)

LTD

APPLICANT

and

MAGRA PROCESS ENGINEERING (PTY)

LTD

RESPONDENT

ORDER

(i) The applicant’s claim against the respondent under case number 1919/2022 be and is hereby reinstated, the applicant’s noncompliance with the 10 (ten) day period to deliver its notice of intention to amend, as ordered by Petersen J in his court order dated 17 February 2023 be and is hereby condoned;

(ii) The applicant is granted leave to amend its particulars of claim in accordance with the notice of intention to amend annexed to the founding affidavit as annexure “WR1”, by delivering the aforesaid notice within 5 (five) days from date of this order;

(iii) The applicant be and is hereby ordered to pay the costs of this application on a party and party scale, Scale “B”

JUDGMENT

MASIKE AJ

INTRODUCTION

[1] Daytay (Pty) Ltd, the applicant herein and plaintiff in the main action approaches this Court for relief in the following terms:

“1. That the applicant’s claim against the respondent under case number 1919/2022 be reinstated and that the applicant’s non – compliance with the 10 (ten) day period to deliver its notice of intention to amend, as ordered by the above Honourable Court per the court order dated 17 February 2023, be condoned; and

2. That leave be granted to the applicant to amend its particulars of claim in accordance with the notice of intention to amend annexed to the founding affidavit as annexure “WR1”, by delivering the aforesaid notice within 5 days from date of this order;

3. In the alternative to prayer 1 and 2 above, that the order of the above Honourable Court dated 17 February 2023, be varied in terms of the provisions of Rule 42(1)(b) to rectify the error and omission at paragraph 2 of the said court order to include the words “of service” and in order state as follows:

2. THAT: The Plaintiff is provided an opportunity to, within 10 court days from date of service of this order, amend its particulars of claim to sustain a cause of action, failing which the Plaintiff’s claim shall ipso facto be dismissed with costs

4. In the further alternative to prayer 3, and in the event that the above Honourable Court is disinclined to grant prayer 3 above, that the order of the above Honourable Court, dated 17 February 2023, be rescinded in terms of the Uniform Rules of Court or the common law in order to afford the applicant the opportunity to amend its particulars of claim as provided for by Rule 28(1)

5. That the respondent be ordered to pay the costs of the application, only in the event of opposition;

6. Further and/or alternative relief.”

FACTS

[2] On 17 February 2023, Petersen J granted an order upholding the exception raised by the respondent and affording the applicant 10 days to amend its particulars of claim failing which the applicant’s claim shall be ipso facto be dismissed with costs (“the order of Petersen J”).

[3] According to Mr. Schalk Willem Roeland (“Mr. Roeland”), the deponent to the founding affidavit in support of the application of the applicant and also the attorney of the applicant. The order of Petersen J did not come to his attention until 10 March 2023.

[4] On 10 March 2023, an email was forwarded to the attorneys of the respondent requesting an indulgence of 10 days for the applicant to file its notice of intention to amended its particulars of claim. The request was refused by the attorneys of the respondent on 16 March 2023.

[5] The corresponding attorneys of the applicant received the order of Petersen J on 25 February 2023 in their pigeonhole. The copy of the order of Petersen J was forwarded to the instructing attorneys of the applicant on 25 February 2023 by way of email. The email address which was used was willie.roeland@swrattorneys.co.za.

[6] The email address used to forward the order of Petersen J is not the correct address of Mr. Roeland. Mr. Roeland states that the correct email address is swrattorney – singular, not swrattorneys – plural.

[7] Mr. Roeland states that on 25 January 2023, the notice of set down of the exception and heads of argument were sent to his office by e-mail, the e-mail address used was his personal email being willie.roeland@swrattorney.co.za.

[8] Mr. Roeland states he never received the email of 25 January 2023 and was unable to locate the email after a diligent search from his inbox. He assumes that the email never reached his inbox for a number of reasons all of which are speculative.

[9] Counsel was instructed on 10 March 2023 to proceed with an application for condonation and reinstatement, alternatively variation of paragraph 2 of the order of Petersen J. The papers in the application were received on 22 March 2023 and Mr. Roeland proceeded to have the affidavit signed and commissioned on 23 March 2023.

[10] The respondent has opposed the application. The answering affidavit of the respondent is deposed to by the sole director of the respondent Mr. Walters Francois Du Toit (“Mr. Du Toit”).

[11] From the reading of the answering affidavit deposed to by Mr. Du Toit, it is common cause that on 27 September 2022, the respondent excepted to the applicant’s particulars of claim. On 16 January 2023, the respondent caused to be served a notice of set down upon the applicant’s corresponding attorneys indicating that the matter will be heard on 17 February 2023. On 24 January 2023, the respondent caused to be served on the corresponding attorneys of the applicant a practice note and heads of argument.

[12] Mr. Du Toit states the intended amendment is bad in law in that it does not remove the complaint in the exception, in that it remains unclear what services were rendered, when and how the amounts claimed were calculated.

THE LAW

[13] Rule 27(1) of the Uniform Rules reads as follows: “In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order

extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging 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.”

[14] Rule 27(2) of the Uniform Rules reads as follows: “Any such extension may be ordered although the application therefor is not made until after the expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as to it seems meet so as to the recalling, varying or cancelling of the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.”

[15] Rule 41(2)(a) and (b) of the Uniform Rules reads as follows: “The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary – (a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; (b) an order or judgment in which there is an ambiguity, or patent error or omission, but only to the extent of such ambiguity, error or omission.”

[16] Rule 31(2)(b) reads as follows: “A defendant may within 20 days after acquiring knowledge of such judgment apply to court upon notice to the plaintiff to set aside

such judgment and the court, may upon good cause shown, set aside the default judgment on such terms as it deems fit.”

[17] At common law, a judgment can be set aside on the following grounds:

(a) Fraud;

(b) Justus error;

(c) In certain exceptional circumstances when new documents have been discovered;

(d) Where judgment has been granted by default; and

(e) In the absence between the parties of a valid agreement to support the judgment, on the grounds of justa causa.

[18] An application for rescission of judgment on common – law grounds must be brought within a reasonable time.

ANALYSIS

[19] At the hearing of the matter, the applicant was represented by Advocate Smit (“Ms. Smit) and the respondent was represented by Advocate Hitge (“Mr. Hitge”).

[20] Ms. Smit for the applicant informed the Court that the applicant does not take issue with the exception. This was a fair concession to make. The attorneys of the applicant had in any event in their e-mail to the attorneys of the respondent dated 10 March 2023, indicated they requested “a further 10 ten days in order to amend” their particulars of claim. This on its own implies the applicant did not have an issue with the exception.

[21] With this concession having been made, I deem it not necessary to deal with prayer 4 of the notice of motion. The relief sought in prayer 4 is for rescission of the order of Petersen J. A party cannot both approbate and reprobate, it is either the applicant takes issue with the order of Petersen J and moves for an order rescinding the order or the applicant does not take issue with the order.

[22] The conduct of a party’s case at the trial of an action is in the entire control of the party’s counsel. Counsel has the authority to compromise the action or any matter in it unless he or she has received instructions to the contrary. (See: Hlobo v Multilateral Motor Vehicle Accident Fund 2001 (2) SA 59 (SCA) at paragraph 11).

[23] By virtue of her appointment to move the application on behalf of the applicant. The Court is satisfied that Ms. Smit has the usual authority that applies to the office of counsel for a party, which includes the authority to compromise the action or any matter in it.

[24] I now turn to the relief sought in prayer 3 in the notice of motion. It is a fundamental principle of our jurisprudence that a court order must be effective and enforceable, and it must be formulated in language that leaves no doubt as to what the order requires to be done. (See: Eke v Parsons 2016 (3) SA 37 (CC) at 65E – G).

[25] Not only must the order be couched in clear terms, but its purpose must be readily ascertainable from the language used. (See: Eke v Parsons supra at 58F).

[26] An ambiguity or a patent error or omission has been described as an ambiguity or an error or omission as a result of which the judgment granted does not reflect the real intention of the judicial officer pronouncing it; in other words, the ambiguous language or the patent error or the omission must be attributable to the court itself. (See: Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) at 86C – D).

[27] At the hearing of this matter, Mr. Hitge highlighted that the order of Petersen J is not before the court. This is indeed the position, the applicant did not attach a copy of the order of Petersen J to its founding affidavit or the replying affidavit.

[28] I am accordingly not in a position to make a determination if the order of Petersen J contains an ambiguity or a patent error or omission which renders the order not to be effective, enforceable and it is formulated in a language that leaves doubt as to what the order requires to be done.

[29] I now turn to deal with the relief sought in prayer 1 and 2 of the notice of motion. The deponent to the affidavit in support of the notice of motion of the applicant has stated that he did not receive the email dated 25 January 2023 which contained the notice of set down, heads of argument of the respondent.

[30] The order of Petersen J was never served on the attorneys of the applicant. It was left in the pigeonhole of the corresponding attorneys of the applicant on 25 February 2023. The order was forwarded to the wrong email address on 25 February 2023 by the corresponding attorneys of the applicant.

[31] The attorneys of the applicant requested an indulgence from the attorneys of the respondent on 10 March 2023 for a further ten days in order to amend their particulars of claim. This request was refused on 16 March 2023. On 10 March 2023, Mr. Roeland instructed counsel to proceed with the application for condonation and reinstatement, alternatively the variation of paragraph 2 of the order of Petersen J.

[32] The notice of motion, supporting affidavits and notice of intention to amend were received from counsel on 22 March 2023 and Mr. Roeland immediately proceeded with the necessary action to have the affidavits signed and commissioned and institute the application.

[33] The deponent to the answering affidavit of the respondent, Mr. Du Toit, has not grappled with the averments I have referred to in paragraphs 29 to 32 hereinabove. The respondent cannot content itself in its answering affidavit with bare or unsubstantiated denials. (See: Room Hire Co (Pty) Ltd v Jeppe Street Mansion (Pty) Ltd 1949 (3) SA 1155 (T) at 1163)

[34] If the respondent in the answering to the founding affidavit of the applicant fails to admit, deny, confess and avoid, allegations in the applicant’s affidavit, the court will, for purposes of the application accept the applicant’s allegations as correct. (See: Ebrahim v Georgoulas 1992 (2) SA151 (B) at 153D)

[35] Mr. Hitge submitted that the order sought in prayer 1 and 2 of the notice of motion is competent. Mr. Hitge however pointed out that the order of Petersen J is not before the court and for that reason the matter cannot be heard. Ms. Smit in reply submitted that it is common cause that Petersen J handed down a order on 17 February 2023 upholding the exception and affording the applicant 10 days from the date of the order to amend its particulars of claim to sustain a cause of action, failing which the applicant’s claim shall be ipso facto be dismissed with costs.

[36] There is a difference between prayers 1 and 2, and prayers 3 of the notice of motion. In prayer 3 of the notice of motion, the Court is being asked to interpret the order of Petersen J and make a finding as it relates to the language used by Petersen J in his order dated 17 February 2023, this would require an interrogation and interpretation of the order.

[37] Prayers 1 and 2 of the notice of motion read as follows: “(1) That the applicant’s claim against the respondent under case number 1919/2022 be reinstated and that the applicant’s non – compliance with 10 day period to deliver its notice of intention to amend, as ordered by the above Honourable Court per the court order dated 17 February 2023, be condoned; and (2) That leave be granted to the applicant to amend its particulars of claim in accordance with the notice of intention to amend annexed to the founding affidavit as annexure “WR1”, by delivering the aforesaid notice within 5 days from date of such order;”

[38] The court is not being asked to interpret the order of Petersen J in prayers 1 and 2. What is being asked of the Court is for an order extending the period for the applicant to comply with the order of Petersen J.

[39] Mr. Hitge asserts, the explanation tendered by the applicant for failing to comply with the order of Petersen J within the period of 10 days is not a proper explanation. The Court was referred to the decisions of Salooje and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A) and Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37. The reliance on Salooje is in support of the contention that there is a limit beyond which a litigant cannot escape the results of his attorneys lack of diligence or the insufficiency of the explanation tendered.

[40] The Court has considered the explanation of what occurred from the period when the order of Petersen J was received by the corresponding attorneys of the applicant on 25 February 2023, when the order of Petersen J was forwarded to the wrong email address on 25 February 2023, when the office of Mr. Roeland became aware of the order of Petersen J on 10 March 2023 and the steps immediately taken on 10 March 2023. The response of the attorneys of the respondent on 16 March 2023 and the date on which Mr. Roeland received the papers drafted by counsel on 22 March 2023. The Court is satisfied that the applicant has dealt with the full period of the delay.

[41] On the issue of the wrong email address being used by the corresponding attorneys of the applicant when forwarding a copy of the order of Petersen J. A copy of the email dated 25 February 2023 which was forwarded to willie.roeland@swrattorneys.co.za, the wrong email address, was attached to the founding affidavit of the applicant. A litigant who asks for an indulgence should be scrupulously accurate in his or her statement to the court, and other neglectful acts in the history of the case are relevant to show his attitude and motives. (See: Junkeeparsad v Solomon and Another (unreported, GJ case nos 37003/2019 and 37456/2019 dated 7 May 2021 at paragraph 7).

[42] Having considered the Salooje judgment, I am not convinced the human error that occurred in this matter can be equated to what transpired in Salooje.

[43] Mr. Hitge further informed the Court that the intended amendment is vague and embarrassing. The Court has considered the notice of intention to amend annexed to the application. At paragraph 7.4 of the notice of intention to amend, specific reference is made to services and the customary and reasonable rate of the applicant for such services. The notice of intention to amend further includes a table at paragraph 4 detailing how the amount of R 3 008 261.82 was arrived at.

[44] The respondent is not precluded from relying on the provisions of Rule 35(12) and (14) or Rule 23(1)(a) if the respondent is of the view, it is not in a position to plead to the amended particulars of claim.

COSTS

[45] The application before the Court is an application for the grant of an indulgence. The general rule in such cases is that the applicant for the indulgence should pay all such costs as can be said to be wasted because of the application, such costs to include the costs of opposition as is in the circumstances reasonable and not vexatious or frivolous. (See: Myers v Abramson 1951 (3) SA 438 (C) at 455G)

[46] Ms. Smit submitted that costs should be ordered against the applicant on a party and party scale, Scale “B”. Mr. Hitge submitted that the scale as to costs is at the discretion of the Court.

ORDER:

[47] Resultantly, the following order is made: -

T

MASIKE

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE FOR HEARING : 30

AUGUST 2024

DATE OF JUDGMENT : 14 NOVEMBER 2024

FOR APPLICANT :

ADVOCATE D SMIT

INSTRUCTED BY : MAREE &

MAREE ATTORNEYS

11 AGATE AVENUE

RIVIERA PARK

Email Address : lit2@maree-mareeattorneys.co.za

FOR RESPONDENT :

ADVOCATE MG HITGE

INSTRUCTED BY :

NIENABER & WISSING ATTORNEYS

4204 PALMER

CRESCENT

LEOPARD PARK

GOLF ESTATE

MAHIKENG

Email Address : charl@nwatt.co.za