Minister of Rural Development and Land Reform v Griffo CC (A724/14, 12440/2011) [2019] ZAGPPHC 385 (8 August 2019)
- Citation
- [2019] ZAGPPHC 385
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Wright, Mothle, Louw
- Case number
- A724/14, 12440/2011
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Wright, Mothle, Louw
- Case number
- A724/14, 12440/2011
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the Minister had raised a bona fide and reasonably triable issue of fraud in the new affidavit, which justified the granting of condonation and reinstatement of the appeal. The orders striking out the defence and refusing rescission/amendment were set aside, and the Minister was granted leave to amend the plea. The court considered the frustration of the respondent but determined that the interests of justice required the matter to proceed on its merits, with the amended plea to be delivered within 10 court days. Costs were awarded against the Minister for the appeal and related applications, including those before Bertelsman J and reserved costs on appeal.
Court disposition
Appeal reinstated and upheld; previous orders set aside; leave to amend plea granted; costs awarded against the appellant.
Orders
- Condonation is granted, the appeal is reinstated and upheld.
- The orders of Bertelsman J (4 November 2013), Kubushi J (27 November 2012), and Barn J (17 September 2012) are set aside.
- The appellant is granted leave to amend the plea as sought; the amended plea must be delivered within 10 court days of this judgment.
- The appellant is to pay the costs of the respondent on the party and party scale, including those of senior counsel where so employed, in the present appeal and all related applications, including reserved wasted costs on appeal.
02
Material facts
Parties
Minister of Rural Development and Land Reform
Appellant Counsel: Adv KM MokotediGriffo Trading CC
Respondent Counsel: Adv De Villiers SC03
Procedural history
Posture
Civil Appeal / Appeal Against Orders Striking Out Defence and Refusing Rescission/amendment
04
Questions and positions
Legal issues
- 01
Whether the appellant should be granted condonation and reinstatement of the appeal.
- 02
Whether the orders striking out the Minister's defence and refusing rescission/amendment should be set aside.
- 03
Whether the Minister should be granted leave to amend the plea to include a defence based on fraud.
- 04
Whether costs should be awarded against the Minister.
Party arguments
- Applicant
- The Minister argued that the orders striking out the defence and refusing rescission/amendment were unjust, as new evidence had emerged indicating a bona fide triable issue of fraud. The Minister denied placing the orders and receiving the goods, and sought leave to amend the plea and to lead further evidence. The Minister also requested condonation and reinstatement of the appeal, citing procedural delays and the complexity of the matter.
- Respondent
- Griffo Trading CC opposed the Minister's applications, criticising the conduct of the Minister's staff and the State Attorney for delays and procedural failures, including failure to make discovery. Griffo denied all allegations of fraud and maintained that the orders should stand, expressing frustration at the slow progress and repeated applications by the Minister.
05
Court’s reasoning
Legal principles
- 01
General principles of South African civil procedure
A party may be granted condonation and reinstatement of an appeal where a bona fide triable issue is raised and the interests of justice require it.
- 02
Uniform Rules of Court; case law on rescission
Failure to make discovery may justify striking out a defence, but rescission may be granted if new evidence reveals a genuine dispute.
- 03
Uniform Rules of Court; Moolman v Estate Moolman 1927 CPD 27
Amendment of pleadings should be allowed where it serves the interests of justice and does not prejudice the opposing party.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the Minister had raised a bona fide and reasonably triable issue of fraud in the new affidavit, which justified the granting of condonation and reinstatement of the appeal. The orders striking out the defence and refusing rescission/amendment were set aside, and the Minister was granted leave to amend the plea. The court considered the frustration of the respondent but determined that the interests of justice required the matter to proceed on its merits, with the amended plea to be delivered within 10 court days. Costs were awarded against the Minister for the appeal and related applications, including those before Bertelsman J and reserved costs on appeal.
Obiter and limits
- The court noted the lengthy and complicated nature of the papers and the understandable frustration of the respondent with the conduct of the Minister's staff and the State Attorney.
- It would be premature to rule now on the admissibility of evidence at trial; the new evidence on fraud forms the basis for the amendment and will be considered in due course.
Court disposition
Appeal reinstated and upheld; previous orders set aside; leave to amend plea granted; costs awarded against the appellant.
- Condonation is granted, the appeal is reinstated and upheld.
- The orders of Bertelsman J (4 November 2013), Kubushi J (27 November 2012), and Barn J (17 September 2012) are set aside.
- The appellant is granted leave to amend the plea as sought; the amended plea must be delivered within 10 court days of this judgment.
- The appellant is to pay the costs of the respondent on the party and party scale, including those of senior counsel where so employed, in the present appeal and all related applications, including reserved wasted costs on appeal.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
CASE NUMBER: 12440/2011
APPEAL CASE NO: A724/14
8/8/2019
In the matter between:
THE
MINISTER OF RURAL DEVELOPMENT
Appellant
AND
LAND REFORM
and
GRIFFO
TRADING CC
Respondent
JUDGMENT
WRIGHT J
1. Griffo Trading CC, the respondent in this appeal instituted action as early as 2011 against the Minister of Rural Development and Land Reform, who is the present appellant. Griffo sought payment for goods allegedly sold and delivered to the Minister 's department. Pleadings closed but the Minister failed to make discovery despite an order by Barn Jon 17 September 2012 compelling discovery. On 27 November 2012 Kubushi J struck out the Minister's defence and granted judgment against the Minister for failure to discover.
2. The Minister launched an application to rescind the orders of Barn J and Kubushi J. The Minister, at the same time applied for leave to amend the plea. Bertelsman J dismissed these applications. The typed, signed judgment of Bertelsman J is dated 28 October 2014, an ex-tempore judgment having been delivered on 4 November 2013.
3. Thereafter, the Minister applied for leave to appeal the order of Bertelsman J and for leave to lead further evidence. Bertelsman J granted leave to appeal to the present court (including leave on the question of leading further evidence) at least partly because he was to some extent moved by the detailed allegations of fraud against Griffo contained in an affidavit belatedly setting out in detail a defence based on fraud. This affidavit forms the basis for the amendment to the plea and the request to lead further evidence. Briefly, the appellant denies placing the orders and denies receiving the goods. While Griffo strongly denies these allegations there is in my view, a bona fide and reasonably raised triable issue. Having taking into account the contents of the new evidence for the Minister on the question of fraud there is no need to make a specific order concerning this evidence. It would be premature to rule now on the admissibility of evidence at trial.
4. It is common cause that the appeal has lapsed but there is an application before us for reinstatement. The papers before us are
lengthy and complicated. Griffo criticises the conduct of the Minister's staff and that of the State Attorney. One understands the frustration of Griffo in the perhaps at times slow moving pace in the State Attorney's office. On balance, I would not penalise the Minister other than to award costs against the Minister in the present appeal and in the proceedings leading up to it.
ORDER
1. Condonation is granted, the appeal is reinstated and it is upheld.
2. The order of Bertelsman J of 4 November 2013, that of Kubushi J of 27 November 2012 and that of Barn J of 17 September 2012 are set aside.
3. The appellant is granted leave to amend the plea as sought. The amended plea is to be delivered within 10 court days of the handing down of this judgment.
4. The appellant is to pay the costs of the respondent on the party and party scale, including those of senior counsel where so employed, in the present appeal (including the condonation and reinstatement applications) and in all the applications before Bertelsman J (including the application for leave to appeal and the application to lead further evidence).These costs also include those of one previous set of wasted costs on appeal when costs were reserved.
MOTHLE
J
I agree
LOUW
J
APPEARANCES
For the Appellants: Adv KM Mokotedi
For the Respondent: Adv De Villiers SC
Date of hearing: 7 August 2019
Date of judgment: ?
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