Rossouw v FJ Senekal Inc. and Others (2183/2019) [2020] ZAFSHC 129 (13 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case Number: 2183/2019

In the matter between:

PIETER JACOBUS ROSSOUW

Applicant

And

FJ SENEKAL INC.

1st Respondent

EUGENE FREDERICK SAFFY N.O.

2nd Respondent

CHAVONNES BADENHORST ST CLAIR

COOPER N.O.

3rd Respondent

DONOVAN THEODORE MAJIEDT N.O

4th Respondent

MOLELEKWA ASHWORTH TAU N.O.

5th Respondent

JUDGMENT BY: CHESIWE, J HEARD ON: 25 JUNE 2020 DELIVERED ON: 13 AUGUST 2020

[1] The applicant (Plaintiff in the main action) seeks condonation for the failure to timeously bring an application in terms of Rule 30 of the Uniform Rules of Court.

[2] The respondents (defendants in the main action) are opposing the application.

[3] The applicant seeks the following relief in the notice of motion:

“5.1 That the failure of the applicant to file an application to court within 15 days period stipulated in terms of the Uniform Rule 30 be condoned.

5.2 That the time period for filing of such application in terms of Rule 30 be extended for a further period of 10 days of the order of court.

5.3 That the applicant is ordered to pay the costs of this application, save any opposition thereto and of opposed such respondents who oppose this application then be ordered to pay the costs thereof.

5.4 further and/or alternative relief.”

[4] Background on this matter is that the applicant’s claim against the respondents is based on a contract that the parties entered into a partially oral and partially written agreement, which subsequently ended with a claim of defamation. For purposes of this

application, I would not get into the merits of the main action.

[5] The issue for determination is whether the applicant made out a proper case for the granting of condonation.

[6] It is well settled that in considering condonation applications, the court has a discretion to be exercised judicially upon a consideration of all the facts and in essence it is a question of fairness for both sides.

[7] Condonation is not a mere formality and it is not to be had “merely for the asking”.[1] The court has to take into consideration the degree of lateness, the reasons for lateness, prospects of success and prejudice to the respondents.[2] The applicant must show that it did not wilfully disregard the time frames provided for in the Rules of court.

[8] When considering an application for condonation, the court has to weight the factors applicable to that case. In Mulaudzi v Old Mutual Life Assurance Company (South Africa) Ltd,[3] the court said the following: “A full detailed and accurate account of the cause of the delay and their effects must be furnished so as to enable the court to

understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in considering an

application for condonation include the degree of non-compliance, the explanations thereof, the importance of the case, a respondent’s

interests in the finality of the judgment of the court, the convenience of this court and the avoidance of unnecessary delay in

the administration of justice.”

[9] In MEC for Education KZN v Shange,[4] it was stated that: “The court is to exercise a wide discretion that ‘good cause’ may include a number of factors that are entirely dependent on the facts of each case, and the prospects of success of the intended claim play a significant role.” In Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd,[5] Majiedt AJA at par 33 said: “a court may grant condonation if it is satisfied that the three requirements have been met. He continued at para 35 as follows: “in general terms, the interests of justice play an important role in condonation applications.”

[10] In an unreported matter of M.D. Marais v Minister of Safety and Security and the MEC for Roads and Transport (case no.1521/2010) Jordaan J, of this Division held that: “Any explanation is not ordinarily just regarded as acceptable only because it is a full explanation. That full explanation must be acceptable as well.”

[11] Advocate Ackerman, on behalf of the applicant submitted in oral argument that there was miscommunication between the attorneys as during 10 December 2019 to 15 January 2020, most Legal Practices are closed and are on holiday. He further submitted that the client cannot be penalised due to the attorney’s negligence. He mentioned that the applicant has met the requirements for condonation in that the applicant has prospects of success and that it is in the interest of justice that the application be granted.

[12] Adv. Berry on behalf of the respondents submitted in oral argument that the applicant was not honest in the rest of the delay to launch the application, as the applicant does not explain what happened from 10 December 2019 to 15 January 2020. He argued that the explanation about the virus and firewall that affected the computers of the applicant’s legal representative could not be true. Adv. Berry explained that emails that have an attachment with a virus will be blocked and marked as spam. He said the applicant is not explaining why the same email when it was sent the second time was not blocked by a virus. He submitted that if condonation is granted, the parties will continue into circle of litigation, which will prejudice the parties in terms of legal fees. He submitted that the applicant’s reliance on Rule 18(6) is misguided as it is applicable where the parties were in dispute over a contract and in this instance, Meepo is not party to the litigation. He submitted that the application for condonation be dismissed with costs.

[13] The applicant in his founding affidavit explained the delay as follows:

“6.13 The response of the respondents was sent through on 22 October 2019 and instructions were requested as to whether or not to proceed with a new Rule 30 Notice, due to the fact that the irregular steps has not been complied with. A copy of this email is annexed hereto as annexure FA10.

6.14 On 28 October 2019 a letter was received in terms of which it was requested that the Rule 30 Application must be enrolled and a date was requested for same. A copy of the letter is annexed hereto as annexure FA11.

6.16 On 8 November 2019 a letter was written to Claassens & Van Niekerk in terms of which it was indicated that condonation will need to be sought for the non-compliance of Rule 30….”

6.20 The email of 20 November 2019 was however blocked by our firm’s firewall and did not come to my attention. A copy of the email is annexed hereto as annexure FA13.

6.21 The counsel who is involved in this matter from the outset on behalf of the applicant left to go abroad on 29 November 2019, and was therefore not available for consultation and the preparation of such application. In telephonic communication it was decided that in the light of the festive season ahead of us, it will be better to keep the matter in abeyance up until the New Year, especially in light of the fact that the applicant will have to be the deponent to the application in terms of Rule 30.

6.23 On 21 January 2020 it again come to my attention that a letter was sent through on 7 January 2020 which was once again blocked by our fire-wall. A copy hereto is annexed as annexure FA15.

6.24 Upon enquiring from our IT Department as to why the emails are blocked, I was informed that if the anti-virus picks up any suspicious attachments the email is diverted to quarantine. It therefore never comes to the recipient’s attention as has happened twice in this specific matter.”

[14] Condonation may be refused where there has been fragrant breach of the rules, especially if there is no proper explanation given by an applicant. The applicant should satisfy the court that it is to exercise discretion in its favour. In Melanie v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 B-E, the following was said: “in deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Ordinarily these facts are interrelated, they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success, there would be no point in granting condonation. Any attempt to formulate a rule thumbs would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s

interests in finality must not be overlooked.”

[15] As already stated, these factors should not be considered in a piecemeal fashion, but cumulatively so that the court can determine whether sufficient cause has been shown to grant condonation.

[16] The respondents filed a plea to which the applicant intended to file a notice in terms of Rule 30. However, it appears from the papers that the Rule 30 was not filed timeously as the applicant was under the impression that the Notice in terms of Rule 30 was communicated to the attorneys of the respondents. The applicant further raised a defence that the computers in the office had a virus and a firewall blocked emails, thus resulting in the documents not been send through to the corresponding attorneys. Counsel on behalf of the applicant further submitted that the negligence of the attorneys should not be attributed to the applicant.

[17] Annexure FA13 (page 13) which was intended to be communication to Attorney Kruger, confirming that the applicant will proceed with the Rule 30, seems not to have reached Attorney Kruger. A second letter, annexure FA15 (page 42-43) was send to Kruger on 7 January 2020, indicating that the applicant will proceed with the Rule 30 application, as well as an application for

condonation. The applicant raised a further defence that due to the festive period, it was decided that the matter best stand over until January 2020. This resulted in another delay before the condonation application could be instituted. According to the respondents, the applicant had to bring the Rule 30 application before 23 October 2019, but only filed it on 14 February 2020, thus making the application late by seventy nine days.

[19] The period of delay is not the only aspect to consider, but if it is found that there is no reasonable and acceptable explanation for the delay in filling the application, then it is such that condonation as a whole cannot succeed. In the present application, the applicant in my view, gave a full explanation of the delay, as well as the timelines of the delay. The explanation given by the applicant is reasonable and acceptable.

[20] Bearing in mind that it is not only the explanation of the delay, but if there are prospects of success in the main action,

which determines whether condonation should be granted. Adv. Ackerman submitted with reference to a matter of Federated Trust v Botha,[6] that it should be trite that technical objections to less than perfect procedural steps, should not be permitted in the absence of prejudice. He submitted that the applicant has shown good cause, as well as full explanation of the delay, including the fact that the applicant has prospects of success in the main action.

[21] Adv. Berry on behalf of the respondents argued that the averments by the applicant that the contract was partially written and partially oral and that the applicant has not complied with Rule 18, he said that in itself showed that there is no good cause for the applicant’s case, neither is there any prospects of success. He submitted that the contract relations is between the applicant and Meepo, and thus there is no contractual relationship between the applicant and the respondents. He further submitted that the contractual relationship between the applicant and Meepo constitutes evidence to determine the truth of the averments made by the respondents. Based on that evidence, Adv. Berry submitted that the applicant had no prospects of success.

[22] It is evident that the applicant in the particulars of claim relied on the contract to establish whether the statements made by the respondents are true or not. These statements can only be established by the respondents. The parties are still in dispute over the terms of the contract. In De Vos v Cooper and Ferreira,[7] the court said the following with regard to the requirements for condonation: “In considering… condonation…., the factors usually weighed by the court include the degree of non-compliance, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interests in the finality of his judgment, the convenience of the court and the avoidance of unnecessary delay…”

[23] It is clear from the founding affidavit that the applicant’s intention was to pursue the Rule 30 notice. The correspondence

between the attorneys confirmed that there was always intention to pursue the application. The applicant clearly explained the problems it encountered with regard to the computer virus, including the issue of the festive season. I have no reason to doubt the applicant’s explanation. In my view it is a full explanation and it is acceptable.

[24] It is my overall impression that, based on the facts and circumstances of the application, I should exercise my discretion in favour of the applicant. I have no reason doubt that good cause exists. It would therefore be in the interests of justice that the applicant be granted the relief sought.

COSTS

[25] The basic rule is that costs are in the discretion of the court. This discretion is wide, though not unfettered and must be exercised judicially upon consideration of the facts. And the purpose of a costs award to a successful party is to indemnify him for the expenses to which he had been put through having been unjustly compelled either to initiate or to defend litigation.[8] A cost order is not intended to be compensation for a risk to which one has been exposed but a refund of expenses actually incurred.

[26] The guiding principles as set out in Watken v Eggelshaw,[9] was summarized as follows:

“(a) The court’s overriding objective in considering costs is, as in everything else, to do justice between the parties;

(b) In many cases, that objective will be fulfilled by making an award of costs in favour of the “winning” party where a “winner” is readily apparent. In any event, the “follow event” rule can still be useful starting point;

(c) it is mistake, however, to strain overmuch to try to label one party as the “winner” and one the “loser” when the complexity or other circumstances of the litigation do not readily lend themselves to analysis in these terms;

(d) The discretion as laid down in art 2 of the Civil Proceedings Law 1956 is a wide one and ought not to be treated as fettered by any particular supposed rule of practice, other than that the discretion should be exercised judicially and broadly in accordance with the guiding principles referred to in AEI Rediffussion Music LTD v Phonographic Performance LTD [1999] 1 WLR 1507; [1999] 1 ALL ER 299;

(e) It is, accordingly, open to the court to have regard to any and all considerations that may have any bearing on the overriding objective of doing justice. Its task is to take an overview of the case as a whole;

(f) It is implicit in this that, even though a party would otherwise be regarded as having been “successful” justice may require that costs should not automatically follow the event.” (my emphasis)

[27] The applicant had tendered costs save if there was no opposition by the respondents. The respondents did opposed the application and cannot be faulted for having opposed to protect their interests in this matter. In exercising my discretion and taking into consideration the court’s overriding objective in considering costs, as in everything else, it is to do justice between the parties. I will deviate from the usual successful party being awarded costs, and ordered that each party pays their own costs in respect of the condonation application.

ORDER

[28] I accordingly order as follows;

1. The condonation application is granted;

2. The filing of the Rule 30 application is extended for a period of 10 days of the order of court;

3. Each party to pay their own costs.

_____________

S, CHESIWE, J

On behalf of the Applicant: Adv. Gf Ackerman

Instructed By: Claassen Van Niekerk

C/O Phatshoane Henney Attorneys

Bloemfontein

On behalf of the Respondents: Adv. AP Berry

Instructed By: FJ Senekal Attorneys

[1] Uitenhage Transnational Local Council v South African Revenue Services, 2004 (1) SA 292 (SCA) at para (6).

[2] Melanie v Santam Insurance Ltd 1962 (4) SA 531 (A) at 532 c-f; Dengentenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd [2013] 2 ALL SA 251 (SCA) at para [11].

[3] 2017 (6) SA 90 (SCA) at para [26].

[4] 2012 (5) SA 313 (SCA).

[5] 2010 (4) SA 109 (SCA).

[6] 1978 (3) SA (SCA) at 645

[7] 1999 (4) SA 12 (SCA) at 1298 D – F.

[8]See Payen Components South Africa Ltd v Bovic Gaskets CC 1999 (2) SA 409 (W) 417 D.

[9] (2) [2002 JLR 1]