MFC (A Division of Nedbank Limited) v Grobler (19/01548) [2021] ZAGPJHC 616 (2 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNEBSURG

Case number: 19/01548

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

DATE: 31 OCTOBER 2021

In the matter between:

MFC (A DIVISION OF NEDBANK LIMITED)

Applicant

and

GROBLER, HENDRIK

Respondent

JUDGMENT

SLON AJ

1. On 6 August 2021 I granted an order in the terms sought by the applicant. On 12 August 2021 the respondent (apparently unrepresented at that point) delivered an application for leave to appeal. It appears that the application for leave was not uploaded by the respondent onto CaseLines; and it was not until 20 October 2021 that the application was brought to my attention.

2. The application for leave was delivered in the absence of a request for reasons for the order. I then advised the parties that I would furnish my reasons, whereafter the respondent would be entitled, within five days of the handing down of those reasons, to supplement his application for leave to appeal if he wished, failing which the application would proceed on the grounds already delivered. This judgment now contains those reasons.

3. The main application is based on the respondent’s breach of a settlement agreement dated 23 April 2019 which was made an order of Court by Yacoob J on 21 May 2019. The settlement agreement arose out of an action instituted by the applicant against the respondent on 16 January 2019, which action, in turn, was based on a breach of a vehicle finance agreement concluded between the parties on 13 February 2017.

4. The applicant avers that the respondent breached the settlement agreement by failing to make certain payments in terms thereof and in terms of the finance agreement, therefore triggering an obligation to return the vehicle which was the subject of the finance agreement.

5. No sustainable defence was put up by the respondent in his answering affidavit. The document is peppered with irrelevant objections and spurious arguments. The crux of the matter is that the respondent is in breach of his obligations under both agreements in that no payments have been made by him since May 2019. As at 9 March 2020, the date of the replying affidavit, the arrears amounted to over R70 000. These facts are nowhere in dispute.

6. I see from the electronic file of this matter that it had been enrolled some five or six times before it served before me. In one of those instances, on 29 July 2020, the respondent was ordered by Killops AJ to deliver his practice note and heads of argument within thirty days. He failed to do so.

7. Shortly after my opposed roll for 2 August 2021 was published (in which this application was allocated for hearing on 3 August 2021 at 14:00), an email was received by my secretary, Ms Takalani Vhangani, from the respondent’s email address but apparently written by the respondent’s PA, who is unnamed. The email informed her that the respondent was ill and bed-ridden, as well as in isolation as a result of allegedly having been exposed to Covid-19, and could not deal with the matter at the allocated time. A medical certificate apparently signed by one Dr I D Campbell, was produced. A postponement was requested and the costs were tendered.

8. The applicant’s attorneys addressed a response to this request and pointed out that this was the fourth request for a postponement by the respondent on similar grounds. They opposed the postponement.

9. The doctor’s certificate, apparently signed on 22 July 2021, is an exercise in irrationality. It states, inter alia, that:

‘According to my knowledge as I was informed by he/ she was unable to work from 22/7/21 to 09/8/21 and will attend work on 06/8/21.’

10. How any litigant can present such a plainly confused statement to a Court and expect it to be accepted for purposes of a postponement is beyond me. Nevertheless, there was nothing in the document in its own terms to preclude the respondent from attending the hearing by way of video-conference as scheduled on 3 August 2021 at 14:00. On 29 July 2021 I accordingly directed that the matter be called at that time and that the parties then present such submissions as they would wish.

11. On 2 August 2021 the respondent replied, accepting that he was not precluded from attending the hearing by way of video-conference at the time scheduled; but now stating that a burglary had occurred earlier in the year in which all his computer equipment including two laptops had been stolen. CaseLines had been installed on one of them and he accordingly did not have access to the papers. He said that he was alone and in quarantine at home, and could not let anyone in without risking infecting the latter. He claimed to be ‘helpless’, that it was impossible to take part in the video-conference and that he did not ‘know what else to do’.

12. I considered the position and replied that:

12.1. I was reluctant to postpone the matter any further and wished to dispose of it that week;

12.2. the hearing would be stood down to Friday 6 August 2021 at 09:00;

12.3. the respondent would be heard by way of a telephone call at the same time as the video-conference proceeded, for which purpose the respondent was to furnish his designated telephone number to my secretary and the applicant’s attorney;

12.4. the applicant’s attorney must in good time communicate with the respondent and provide him with all documents, either electronically or in hard copy, of which he was not then in possession and which he required for purposes of the hearing.

13. Nothing further was heard from the respondent until 09:00 on 6 August 2021 when Ms Neuland appeared at the hearing on his behalf. Mr Durandt appeared for the applicant.

14. Ms Neuland informed me that she had not been briefed on the merits of the application and that her brief was solely to apply for a postponement of the hearing – presumably on the strength of the allegations already placed before me by the respondent in his emails. At all events Ms Neuland had nothing to add thereto. Needless to say, the applicant opposed the application.

15. It is trite that a litigant requesting a postponement must present the Court with good and proper reasons therefor and that it is not merely for the asking. There was no doubt in my mind that there were no grounds whatsoever to justify a postponement in this matter. I had at all times kept in mind the respondent’s position as an hitherto unrepresented litigant, apparently ill and deprived of his computer equipment, and had sought to make every fair allowance therefor, but no reason for his not being able to attend the hearing telephonically in order to argue the matter on the merits (such as they were) was ever given. Quite apart from that, the entire approach of the respondent, against what I could glean of the circumstances of the prior postponements, appeared to me to be evasive and obstructive. In my view, both the Courts and applicant had been sufficiently long-suffering and sympathetic to the respondent’s alleged predicaments. By this stage, the applicant was clearly entitled to finality on the strength of a claim to which the respondent had no defence of any nature whatsoever.

16. For these reasons, I granted the order on 6 August 2021.

B M SLON

Acting Judge of the High Court

Gauteng Local Division, Johannesburg

This judgment was prepared and authored by Acting Judge Slon. It is handed down electronically by circulation to the parties or their legal representatives by email and by uploading it to the electronic file of this matter on Caselines.

HEARD ON:

6 August 2021

ORDER MADE ON:

6 August 2021

DATE OF JUDGMENT:

31 October 2021

DATE ON WHICH

JUDGMENT HANDED DOWN: 2 November 2021

For the Applicant: Mr J J Durandt

Instructed by:

N Georgiades Attorney

For the Respondent: Ms S Neuland

Instructed by:

Unknown