Sebokolodi v Sebokolodi and Others (126/04) [2004] ZANWHC 42 (15 December 2004)

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 126/04

In the matter between:

SERAME KOLOPI ABEL SEBOKOLODI : APPLICANT

AND

ABRAHAM GAOGAKWE SEBOKOLODI : 1ST

RESPONDENT

ERNEST GOPOLANG SEBOKOLODI : 2ND

RESPONDENT

ANDRIES MOLAPONG SEBOKOLODI : 3RD

RESPONDENT

SIMON KHWARAE SEBOKOLODI : 4TH

RESPONDENT

MMABATHO

MOKGOATLHENG

AJ

REASONS FOR JUDGMENT

MOKGOATLHENG AJ

[1] On 16th September 2004 at the hearing of these applications, having heard submissions from the parties, I dismissed the application with costs, upheld the counter application with costs, and dismissed the application for condonation with a costs order against Motlhabani Attorneys the Respondents Attorneys on an attorney and client scale. These orders had a caveat that reasons for judgment would be furnished on request. The reasons now follow.

Ad Application

[2] The Applicant launched an urgent application against the Respondents seeking an order in the following terms:

(a) That the Respondents be ordered to hand over to the Sheriff of the Court four tyres and a battery so that same be handed over to the Applicant.

(b) That the second Respondent be ordered to hand over three goats to the Sheriff of the Court so that same be handed over to the Applicant.

(c) That the second and third Respondents be ordered to hand over to the Sheriff of the Court two ploughs so that same be handed over to the Applicant.

Further the Applicant sought an order interdicting the Respondents from taking possession of or utilising the Applicants:

(i) tractors, implements or diesel, siementaller bull or greyhounds or;

(ii) destroying or damaging the Applicants kraal, farming operations, building improvements, machinery, equipment, and other movables on the Applicant’s farm or;

assaulting, insulting, threatening and/or associating with the Applicant.

[3] The Respondents besides opposing the application launched a counter application wherein they sought:

(a) A declaratory order that a partnership existed between the Applicant and the six Respondents known as the Sebokolodi-family pastoral pursuits that the property the Applicant alleges he owns, forms part of the assets of this partnership.

[4] The Applicant in essence sought a mandement van spolie against the Respondents. In my view the Applicant succeeded in establishing that:

(a) he was in full and undisturbed physical possession of the movables and the 40 hectare farm;

(b) that he was the owner of all the movable property forming the subject matter of this dispute;

(c) that he was unlawfully deprived of and was being spoliated by the Respondents of his property.

(d) that the Respondents were taking the law into their hands, that the Applicant was assaulted.

I pause to mention that at a previous hearing a rule nisi was granted against the Respondents. The return date was by consent extended until this application was finalised on the 16th September 2004.

I granted a final order after finding that the Applicant had established that:

(a) he had a clear right to the movable property, and was the lawful lessee of the 40 hectare farm, from Mr Setlhare;

(b) that the Respondents infringed Applicant’s rights;

(c) that the Applicant despite having reported this matter to the South African Police Services and the local Magistrate, he had not been assisted, that he therefore had no other remedy.

[5] I dismissed the Respondents counter application for the following reasons for their version:

(a) The Respondents failed to show on a balance of probability the existence of a partnership between themselves and the Applicant.

(b) The Respondents failed to show that they brought money, labour, skill or had made any contribution towards the purported establishment of the purported partnership.

(c) The Respondents did not prove the existence of a contract between themselves and the Applicant.

(d) The Respondents did not prove the existence of the purported Sebokolodi family pastoral pursuit partnership or that they jointly conducted a business with the Applicant with the objective to make a profit.

I found that the Applicant was employed by Spoornet for over 40 years. That when he retired he, received a pension in the sum of R190 000.00. He further raised a loan in the sum of R101 722.48. He utilised these funds to start his farming operations. All tractors, motor vehicles, farming implements, stocks, sheep, goats and cattle kraal, diesel and other items were purchased with these funds. The Respondents did not contribute towards the acquisition of this movable property.

Application for Condonation

[6] The main application was set down for hearing on the 10th June 2004. On the 10th June 2004 this matter was postponed due to the fact that the Respondents had not filed their heads of argument. This omission was in contravention of the Court Practice Notice Rule 10. Consequently the matter was postponed to the 5th August 2004. The parties agreed to this postponement on the following terms:

(i) That the Respondents were to pay the amount of R6 000.00 to the Applicant in respect of wasted costs.

(ii) The Respondents were to pay the amount of R6 000.00 on or before the 9th July 2004

The Respondents were precluded from engaging in any legal proceedings in pursuit of this matter before this amount was paid.

This agreement was made an order of court. The Respondents did not comply with the court order in that they failed to effect payment by the 9th July 2004. Payment was effected on the 4th August 2004 after this was pointed out by the Applicant to the Respondents.

[7] The Respondents failed to deliver their heads of argument with the Applicant timeously in terms of the practise convention. The heads of argument were filed out of time and in contravention of the practice notice Rule 10. The Respondents did not launch an application for condonation for failing to comply with the court order of the 10th June 2004.

On the 5th August 2004 this matter was again postponed to the 26th August 2004 after the Court ordered the Respondents to explain their conduct and failure to comply with the court order of the 10th June 2004. The Court specifically ordered that the application for condonation be argued on the 26th August 2004. On the 26th August 2004 by consent the application was postponed to the 16th September 2004, costs were reserved.

[8] The Respondents’ Attorney S M Motlhabani deposed to the founding affidavit. He states that he attended court on the 10th June 2004 when the matter was postponed. The reason for the postponement was because the Respondents did not deliver their heads of argument. Firstly the reason proffered by Attorney Motlhabani is that he failed to timeously instruct counsel to attend to the drafting of the heads of argument on behalf of the first to fourth Respondents.

Secondly Attorney Motlhabani states that he omitted to diarise the date on which the heads of argument on behalf of the first to fourth Respondents had to be delivered

Thirdly Attorney Motlhabani states that he discovered the fact that the heads of argument were not delivered only after receiving a call from his counsel what the position was regarding this matter on the 9th July 2004.

[9] Attorney Motlhabani states that on the 10th June 2004 after it was agreed that the Applicant’s counsel was to settle the draft order which was to be made an order of court, he left the motion court. The Applicant’s Attorney E V Fuls in his opposing affidavit denies that Attorney Motlhabani left the motion court prior to the draft order being made an order of the court.

[10] Attorney Motlhabani alleges that he was not aware that the court order directed that payment of the amount of R6 000.00 was to be effected on or before the 16th July 2004. Attorney Fuls is adamant that Attorney Motlhabani was present when the agreement was discussed, and when consensus was reached regarding the draft order. Attorney Motlhabani states that on the 29th July 2004 he was not at his office. On the 30th July 2004 he discovered that the heads of argument of the first to fourth Respondents had not been delivered on Thursday the 29th July 2004. He immediately caused the heads of argument to be delivered. Actually the heads of argument were delivered on the 14th September 2004.

[11] Attorney Motlhabani states that on 4 August 2004 he received a call from his counsel, who advised him that Attorney Fuls had called her and advised that the payment of R6 000.00 had not been effected in terms of the court order. Attorney Motlhabani states that he intended to hand over the cheque to the Applicant’s Attorney on the 5th August 2004. He states that his counsel advised him that in terms of the court order of the 10th June 2004 payment of R6 000.00 was to be effected on or before the 16th July 2004, that he was however not aware thereof.

[12] Attorney Motlhabani states that he only discovered after the 5th August 2004 that the court order was inadvertently filed by his clerk in another file and not in the file of the first to fourth Respondents. He did not have knowledge that he was to pay the amount of R6 000.00 on or before the 9th July 2004. The failure to deliver the heads of argument timeously according to Attorney Motlhabani was as a result of the fact that his receptionist failed to hand the heads of argument to the messenger for delivery, but had decided to keep same over for him to sign on his return to the office on the 30th July 2004.

Evaluation of Evidence

[13] Rules 27 (i) read with 27(3) provide that, the Court may on good cause shown condone any non-compliance with these rules. The court has a discretion which must be exercised judicially on a consideration of all the facts. The granting of condonation in essence is a matter of fairness to both sides. The Applicant bears an onus to prove good cause as a jurisdi etional prerequisite as envisaged by Rules 27(1) and 27(3) before the court can exercises its discretion. Differently stated the Applicant must show that he was not in wilful default. The Applicant is enjoined to furnish a reasonable explanation for his failure to comply with the court order and the rules of court.

[14] Attorney Motlhabani did not file an answering affidavit in response to the serious allegations made by Attorney Fuls against him. It may well be so that Attorney Motlhabani is not obliged to file an answering affidavit. When such as in this case, a material assertion of fact is alleged by Attorney Motlhabani is directly challenged as incorrect or untrue, there is obligation to respond thereto. If there is no response the court is entitled in the absence of any explanation why this serious assailment of Attorney Motlhabani’s assertion of fact and veracity is not refuted, and is left unchallenged, to draw an adverse inference as a result of this failure to respond.

[15] Muller J in McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA (A) at 10D-F states that:

“I accept that “quiescence is not necessarily acquiescience” and that a party’s failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth. But in general, when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute. And an adverse inference will the more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject-matter of the assertion.”.

[16] Attorney Fuls states that Attorney Motlhabani was present, that it was agreed between all the legal representatives of the parties, that is both sets of attorneys and both sets of counsel agreed on the terms of the court order. Further Attorney Full states that the agreement was formulated by the Applicant’s advocate into a draft order, that it was thereafter discussed with the Respondents legal representatives including Attorney Motlhabani who was personally satisfied with the terms of the agreement.

[17] The crux of Attorney Fuls’s assertion is that Attorney Motlhabani was aware of the terms of the court order of the 10th June 2004. Further Attorney Fuls asserts correctly in my view that any advocate who appears on behalf of a litigant may only agree that a draft order be made an order of court only if instructed by his instructing attorney who in turn has received such instructions from his client, the litigant.

[18] The explanation by Attorney Motlhabani that he left the motion court early and that he was not aware of the terms of the draft order, that in essence his counsel agreed to the terms of the order without receiving instructions from him is untenable given the objective proven facts.

[19] In any event Attorney Motlhabani himself states in paragraph 14 of his founding affidavit that after the conclusion of the aforesaid agreement I left the motion court. It is patent that Attorney Motlhabani even on his own version was aware of the contents of and the terms of the draft order made an order of court on 10 June 2004.

[20] In the premises the finding is that Attorney Motlhabani was aware that the payment of the amount of R6 000.00 was to be effected on or before the 9th July 2004.

[21] Attorney Motlhabani does not mention when the Respondents paid the amount of R6 000.00 into his trust account. The Court is therefore entitled in the absence of any explanation to the contrary to infer that Attorney Motlhabani was placed in funds in the amount of R6 000.00 timeously. Attorney Motlhabani failed to file timeously the heads of argument when the matter was set down for hearing on the 10th June 2004. He concedes that it was through his negligence that he failed to instruct counsel timeously to attend to the drawing of the heads of argument, and also failed to diarise the date on which the heads of argument had to be delivered.

[22] Attorney Motlhabani was aware that he had to file heads of argument not later than 5 (five) days before the date of hearing of this matter that is, the heads of argument were to be filed not later than the 28th July 2004. Attorney Motlhabani was aware since at least the 10th June 2004, when he was in the motion court that the reason which caused the postponement was the failure to timeously file the heads of argument. This failure to deliver the heads of argument caused his client to be ordered to pay the amount of R6000.00 in respect of wasted costs, which wasted costs were occasioned by the negligence of Attorney Motlhabani.

[23] Attorney Motlhabani despite this unsatisfactory state of affairs attributable to his negligence and that of his office staff failed to timeously instruct counsel, to settle the heads of argument. Further he failed to see to it that the heads of argument are timeously filed, despite having been ordered by the Court on the 10th June 2004 to provide reasons on the 5th August 2004, why he failed to file the heads of argument timeously.

[24] According to Attorney Motlhabani he only became aware on 30 July 2004 that the heads of argument had not been delivered before the hearing of the 5th August 2004. The heads of argument were not again delivered for the hearing of the 25th August 2004. In fact the heads of argument were only delivered on the 14th September 2004.

[25] Attorney Motlhabani in his affidavit states that on his return to his office on the 30th July 2004 he discovered that the heads of argument had not been delivered. On the 30th July 2004 he immediately caused the heads to be delivered, that on the 30th July 2004 his receptionist still had the heads of argument for him to sign. Attorney Motlhabani does not take the Court into his confidence, and inform the Court of the reason why between the 30th July 2004 and the 13th September 2004 the heads of argument were not delivered.

[26] In the absence of any reasonable explanation to the contrary the Court is entitled to draw an adverse inference regarding the failure by Attorney Motlhabani to explain this lacuna. The only reasonable inference to be drawn from these proven facts is that Attorney Motlhabani was negligent in not filing the heads of argument. The explanation proffered does not extend to the lacuna alluded to, and is therefore not reasonable under the circumstances.

[27] In view of the conduct of Attorney Motlhabani in having failed to comply with the court order of the 10th June 2004 and in view of the negligence of Attorney Motlhabani referred to above the Court had no option but to accede to the Applicant’s prayer for the dismissal of the application for condonation with costs against Attorney Motlhabani on an attorney and client scale.

[28] The conduct of Attorney Motlhabani was improper, unreasonable and irregular in the conduct of these proceedings. No costs order is made against the first to fourth Respondents as there is no allegation of unreasonable conduct against them.

____

R

D MOKGOATLHENG

ACTING

JUDGE OF THE HIGH COURT

DATE OF HEARING : 16 SEPTEMBER 2004

DATE OF REASONS : 15 DECEMBER 2004

COUNSEL FOR THE APPLICANT : G F ACKERMAN

COUNSEL FOR THE RESPONDENTS : C J ZWIEGELAAR

ATTORNEY FOR THE APPLICANT : NIENABER & WISSING

ATTORNEY FOR THE RESPONDENTS: S M MOTLHABANI

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