Esau v Sujean Property Investments (Pty) Ltd and Another (C61/2022) [2024] ZALCCT 39 (11 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

Case no: C61/2022

In the matter between:

DESMON ESAU Applicant and SUJEAN PROPERTY INVESTMENTS (PTY) LTD First Respondent REDFERN TRUST ENTERPRISES (PTY) LTD Second Respondent

Heard: 11 September 2024

Delivered: 11 September 2024

Summary: Application to set aside as an irregular step the filing of an interlocutory application in which separate matters are consolidated and parties joined without a court order

JUDGMENT

GANDIDZE, AJ

Introduction

[1] The first and second respondents herein, Sujean Property Investments (Pty) Ltd and Redfern Trust Enterprises (Pty) Ltd respectively,

collectively referred to as the respondents, seek an order, in terms of Rule 30 of the Uniform Rules of Court, to have an interlocutory

application brought by the applicant, Mr Desmond Esau, declared an irregular step and for an order setting aside that application.[1] The applicant who is representing himself[2] did not file an answering affidavit but filed heads of arguments in which he opposes the application. At the hearing of the matter he sought to hand up an answering affidavit which he claimed the respondent’s attorneys had refused to accept. The answering

affidavit in question was not admitted into evidence. There is no reason why the applicant did not e-mail the answering affidavit to the respondent’s attorneys before he served his heads of argument in the matter. Even though Ms de Waal urged the Court to determine the application as an unopposed one, the Court took into account that the applicant filed heads of argument in which he opposed the relief sought. The application was therefore opposed.

[2] The context in which the respondents have brought the Rule 30 application will become clearer once the background facts are out of the way.

Background

[3] The applicant has a pending unfair dismissal claim in this Court against the first and second respondents. On 23 November 2023, this Court granted the applicant condonation for the late referral of that claim to this Court. When the application under determination was brought, the parties were awaiting a directive from the Registrar on the convening of a pre-trial conference, after which a trial date would be allocated.

[4] After the applicant was granted, condonation as described above, he served on the respondent’s attorneys, Guy & Associates, an affidavit titled ‘Applicants affidavit regarding the Financial Intelligence Centre Act Compliance,’ dated 6 December 2023. The affidavit was filed under Case No C303/2021 as well as Case No C61/2022.

[5] The former case number is in respect of an unfair discrimination claim which the applicant brought against the respondents involved in C61/2022, and a third respondent, as discussed below. This Court dismissed that claim, leave to appeal was refused and a petition to Labour Appeal Court also filed. The applicant has not instituted any further proceedings in respect of that claim, with the effect that it is considered closed and cannot be revisited by this Court.

[6] In the applicant’s affidavit which forms the subject matter of these proceedings, the respondents are cited as first and second respondents. A third respondent, CR McCarthy Properties (Pty) Ltd is also cited. This is the same third respondent cited in the unfair discrimination case. A fourth respondent is also cited, being Guy & Associates, who are the first and second respondent’s attorneys of record.

[7] Without setting out in great detail the contents of the affidavit, the following issues are raised therein:

7.1 there is an admission that the applicant was assisted with drafting the affidavit.

7.2 that the fourth respondent, as the first and second respondent’s attorneys, are in contravention of section 21(1) of Financial

Intelligence Centre Act (FICA)[3] which prohibits accountable institutions from having clients whose identity has not been verified. This relates to the fact that

Michelle Coreen McCarthy (McCarthy) who deposed to opposing affidavits in the applicant’s condonation application referred

to above, as well as another application in case number C303/2021, is alleged to have claimed to be a Director of first and second

respondents, whereas the CIPC records reflect that she is a Director of only the first respondent. According to the applicant, had the fourth respondent discharged its duties in terms of FICA, it would have realised that McCarthy was not a Director of the first respondent and would not have taken the first respondent on as a client.

7.3 that McCarthy committed perjury by stating under oath that she is a Director of the first respondent when she was not and should face imprisonment for misleading the Court in the affidavits she deposed to.

7.4 that all the documents filed on behalf of the first respondent must be struck out, with the consequence that there will be no opposition to the applicant’s claim against the first, second and third respondents and for default judgment to be granted in the current matter, C61/2022 as well as in case number C303/2021, together with costs.

[8] In a letter dated 14 December 2023, Guy & Associates addressed a “with prejudice’ letter to the applicant taking issue with:

8.1 the affidavit received which refers to two case numbers when the two matters have not been consolidated.

8.2 reference to case number C303/2021 which is finalised and therefore interlocutory applications can no longer be entertained.

8.3 that the interlocutory application in C61/2022 seeking entirely unrelated relief is not appropriate and is irregular.

8.4 the misjoinder of the ‘third and fourth respondents.’

8.5 that the issue of McCarthy’s title was Director was explained on affidavit and the matter was closed.

8.6 that applicant was becoming a vexatious litigant.

8.7 demanding the withdrawal of the interlocutory affidavit failing which an application would be brought in terms of Rule 30(2)(b) of the Uniform Rules of Court.

[9] The applicant did not withdraw the affidavit as demanded, prompting the respondents to file the current application. The applicant’s claim that he did not receive this notice is rejected. It was sent to the same e-mail address that he is using to communicate with the respondent’s attorneys. Even if one accepts that he did not receive the notice, he received the respondent’s heads of argument in which it was clearly spelt out to him that the filing of the affidavit was an irregular step.

[10] The current application was filed on 24 January 2024.

[11] On 29 January 2024, the applicant filed a ‘Notice of Motion application to set aside respondent’s application w.r.t irregular step’, in which he records the relief sought is ‘The applicant’s application to be granted’ and other ancillary relief. The Notice of Motion refers to a supporting affidavit filed in support of the application but the only

supporting affidavit on file is the one that l have referred to above, the filing of which is sought to be set aside on the ground

that it constitutes an irregular step.

Analysis

[12] Rule 30 of the Uniform Rules of Court deals with irregular proceedings and provides that a party to a cause in which an irregular step has been taken by the other party may apply to court to set it aside.

[13] The first ground on which the respondents contend that the affidavit filed by the applicant constitutes an irregular step is the misjoinder of the third and fourth respondents. There is merit to this contention. There is a procedure for joining parties to pending court proceedings, which is that an application for joinder must be brought. No application was brought join the third and fourth respondents to case number C61/2022. That should be the end of the matter regarding the citation of the third and fourth respondents, which renders it unnecessary to refer to the test for joinder and whether the third and fourth respondents should be joined to the proceedings.

[14] The second problem for the applicant is that he consolidated two cases without following the correct procedure to have matters consolidated, which he cannot do. For that reason there is no need to consider whether the matters can in fact be consolidated. In any event C303/2021 was finalised and cannot be consolidated with a matter that is pending.

[15] The third issue relates to the alleged contravention of FICA by Guy & Associates, in having the first respondent as a client without verifying its identity. Above l have already found that Guy & Associates cannot be joined to these proceedings in the manner that the applicant has sought to join it to the proceedings. As Guy & Associates are not a party before court, no order can be issued against the firm, whether in the terms sought by the applicant or on any other terms.

[16] But more importantly, the order sought in respect of Guy & Associates, as clarified in the heads of argument filed by the applicant, is one in terms of which this Court seeks guidance from the Financial Intelligence Centre (FIC) on whether Guy & Associates contravened FICA. The applicant has not referred to the relevant provision in terms of which this Court must seek guidance from another institution. In any event this Court is capable of making its own decisions in matters that it has jurisdiction over and certainly does not need guidance from FIC on this matter.

[17] The applicant has also not addressed why he is of the view that this Court has jurisdiction to make FICA related findings against Guy & Associates. In his heads of argument be called on the Court to refer the matter to a Court with jurisdiction but does not explain why he has not referred the matter to a Court with jurisdiction, and instead chose to raise the matter with this Court.

[18] The applicant also seeks an order that McCarthy perjured herself. McCarthy is not a party to the proceedings before Court and therefore the Court cannot issue any orders against her. But more importantly, McCarthy deposed to affidavits in the condonation application which was decided in the applicant’s favour. A finding that those affidavits are null, and void would serve no purpose. As regards the affidavit in C303/2021, that matter was finalised and cannot be revisited by the Court in these circumstances.

[19] In so far as the applicant submits that he is entitled to default judgment against the first and second respondents in Case No 61/2022, the procedure for applying for default judgment is simple, as set out in the Rules of this Court. Until such an application is filed, there is no default judgment application for the Court to consider. In any event the respondents filed a response opposing that claim. The Court cannot be asked to ignore that response and grant default judgment.

[20] In his heads of argument the applicant has raised several new issues, viz questioning the Commissioner of Oaths before whom McCarthy deposed to the affidavits, questioning the authority of the deponent to the founding affidavit in support of the Rule 30 application, alleging a disregard of the rules of the CCMA and this Court by the respondents, and even questioning who Ms de Waal is acting for in the proceedings. The allegations show a propensity to litigate

vexatiously.

[21] The respondent’s application to declare the affidavit filed by the applicant as an irregular step succeeds and that affidavit is set aside. The issues raised in that affidavit do not concern the first and second respondents, the only parties that are properly before Court in this matter.

[22] One final issue that needs to be addressed is costs. The applicant was notified that unless he withdrew his affidavit, which was an irregular step, this application would be brought. He did not heed that advice. Instead of withdrawing the application as demanded, he filed yet another document, which he called a Notice of Motion seeking an order that ‘the application be granted’. That was a reference to his affidavit. Why this Notice of Motion was filed long after the affidavit and instead of simultaneously is not explained. The filing of the affidavit was ill-conceived. While this Court should not issue costs orders lightly so as not to discourage litigants from having their disputes ventilated, there are cases where costs orders will have the effect of deterring litigants from litigating without considering whether there is any merit to their claims. The applicant’s affidavit is one such pleading that should never have been filed. Previously the applicant filed and later withdrew another interlocutory application against the first and second respondents. The applicant’s conduct borders on abuse of court processes. The first and second respondents should not have been put through the expense of bringing the Rule 30 application.

[23] Notwithstanding the above, l have reluctantly decided against ordering the applicant to pay costs in respect of this interlocutory application in the belief that going forward he will seriously consider the consequences from a cost perspective should he file another interlocutory application and ultimately it is found to be without merit.

[24] In the premise, I make the following order:

Order

1. The affidavit filed by the applicant, dated 6 December 2023, constitutes an irregular step and is set aside.

2. There is no order as to costs.

T Gandidze

Acting Judge of the Labour Court of South Africa

Appearances

Applicant: In person

Respondent: Ms. E de Waal

Instructed by: Guy & Associates

[1] I say this mindful that the orders sought by the applicant in the affidavit sought to be declared an irregular step are against Guy & Associates and Ms. MacCarthy, who are not parties in C61/2022.

[2] The affidavit filed on behalf of the respondents allege that Mr Esau informed their attorneys of record that he has legal representation

but that he refused to disclose the identity of the legal representative. In oral argument Mr Esau informed the court that a

certain Mr Stevens is assisting him with ‘English’.

[3] Act No 38 of 2001.