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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

CASE NO: 14130/2020

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

DATE OF ORDER: 20 OCTOBER 2022

DATE OF JUDGEMENT: 17 FEBRUARY 2023 -

 

In the matter between:

 

KAAP AGRI BEDRYF LTD                                                                                     Applicant

 

And

 

WELBEPLAN BOERDERY (PTY) LTD                                                      First Respondent

 

GERHARD NIEUWOUDT OLIVIER                                                      Second Respondent

 

ARBITRATOR                                                                                           Third Respondent

 

JUDGMENT

 

This matter has been heard virtually and is otherwise disposed of in terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

 

VERMEULEN AJ

 

[1]        This matter came before me as an application to make an award handed down in arbitration proceedings in the Applicant's ("Kaap Agri”) favour against the First- and Second Respondents (" Welbeplan Boerdery" and "Olivier" respectively), an order of Court ("the main application" ). The arbitration proceedings were conducted before the Third Respondent ("the Arbitrator").

[2]        The main application is opposed by the Welbeplan Boerdery and Olivier who in addition to having filed an opposing affidavit, also filed a counter-application in which they sought that the arbitration award to be set aside in terms of section 33(1) of the Arbitration Act (“the counter- application”). The counter application was not filed within the 6 weeks period provided in section 33(2) of the Arbitration Act, and Welbeplan Boerdery and Olivier will need to obtain condonation for the late filing in terms of section 38 of the Arbitration Act. The counter-application is opposed by the Kaap Agri who filed an Answering Affidavit in opposition thereto. No Replying Affidavit has been filed by Welbeplan Boerdery and Olivier in the counter-application to date. If no replying affidavit is filed, the court will, for the purposes of the application, accept the allegations in Kaap Agri’s affidavit in answer to the Welbeplan Boerdery and Olivier’s founding affidavit (in the counter application) as correct.[1]

[3]        At the time that the main and counter-application were allocated to me to be heard on the opposed Motion Court roll, there were no attorneys of record for Welbeplan Boerdery and Olivier and their previous attorneys had filed a formal Notice of Withdrawal as Attorneys of record on the 3^rd of August 2022. In the premises the Respondents did not participate in the filing of a Joint Practice Note (or any practice note for the hearing of the 17^th October 2022) nor complied with a directive of this Court to file a hard copy of the Heads of Argument prior to the hearing of the matter. On the contrary there was no indication that Welbeplan Boerdery and Olivier would be represented at the hearing.

[4]        When the matter was to be heard on Monday, the 17^th of October 2022, Welbeplan Boerdery and Olivier were again represented by both Senior and Junior Counsel and I was advised that a new attorney of record is now representing Welbeplan Boerdery and Olivier. It appears that the same morning, 17 October 2022, a new attorney of record was appointed who came on record for them. I was advised by Senior Counsel appearing for Welbeplan Boerdery and Olivier that Welbeplan Boerdery and Olivier intend to apply that the main and counter application be postponed sine die and that for that purpose a substantive application for postponement was in the process of being finalised. Although neither the Court nor Kaap Agri had at that time been provided with a signed copy of the substantive application for postponement, Senior Counsel who appeared on behalf of Kaap Agri advised the court that Kaap Agri will oppose any application for postponement. In the premises arrangements were made for the exchange of affidavits in the application for postponement and the matter stood down for argument.

[5]        I wish to note that Senior Counsel appearing for Welbeplan Boerdery and Olivier advised the Court that both Junior and Senior Counsel and their attorneys only had a mandate to represent Welbeplan Boerdery and Olivier in their application for postponement and held no instructions to oppose the main application and to argue the counter-application on their behalf. Should the application for postponement thus be refused they will withdraw from and request to be excused from any participation in the proceedings further.

[6]        Between the 17^th of October 2022 and the date of the hearing of the application for postponement (19 October 2022) Welbeplan Boerdery and Olivier filed their signed substantive application for postponement. The founding papers of this application together with annexures thereto is in extent of 314 pages. An opposing and replying affidavit have also been filed. The matter came before me as an opposed application for postponement.

[7]        The application for postponement was argued at length on the 19^th October 2022. Judgement was reserved and after I had an opportunity to consider all submissions made by counsel as well as all the affidavits and documents that served before me, I dismissed the application for postponement and ordered Welbeplan Boerdery and Olivier to pay the costs of the application. At the time that I gave this order Welbeplan Boerdery and Olivier were represented by junior counsel merely to note the order and after the order he excused himself from the proceedings. In Welbeplan Boerdery and Olivier’s absence counsel for Kaap Agri continued to argue both the main application and its opposition to the counter application. I subsequently dismissed the counter application and made the Arbitral award an order of court in terms of the main application and ordered Welbeplan Boerdery and Olivier to pay the costs in respect of both applications.

[8]        I have been requested by Welbeplan Boerdery and Olivier to provide reasons for the dismissal of the application for postponement, the dismissal of the counter application and making the arbitral award an order of court in the main application. These are my reasons.

 

A. - Application for Postponement:

[9]        In McCarthy Retail Ltd v Short Distance Carriers CC [2] the Supreme Court of Appeal once again reaffirmed some of the principles to be taken into account in adjudicating upon an application for a postponement:

“It is also in the public interest that there should be an end to litigation. Accordingly, in order for an applicant for a postponement to succeed, he must show a ‘good and strong reason’ for the grant of such relief: Centirugo AG v Firestone SA (Pty) Ltd 1969 (3) SA 318 (D) at 320 C – 321. The more detailed principles governing the grant and refusal of postponement have recently been summarised by the Constitutional Court in National Police Service Union & Others v Minister of Safety and Security & Others 2000 (4) SA 1110 (CC) at 1112 C – F as follows: ‘The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the court. Such postponement will not be granted unless this court is satisfied that it is in the interest of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the court and cannot be secured by mere agreement between the parties. In exercising that discretion, this court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed”. [3]

[10]      It is accepted that there is no numerus clausus of factors to be considered by the Court in adjudicating upon an application for postponement. By way of example the Constitutional Court in the matter of Lekolwane v Minister of Justice & Constitutional Development [4] added the following factors to be considered in granting a postponement namely, the broader “public interest” and “the prospect of success on the merits”.[5]

[11]      It is further trite that an application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. [6]

[12]      In the exercise of the court’s discretion and in order to determine whether or not it would be in the interests of justice to allow the postponement, I am of the opinion that in addition to the factors referred to in the case law above, the court would be remiss not to have regard to the history of the litigation between the parties which already commenced in 2016, the conduct of the parties in the litigation to date, Welbeplan Boerdery and Olivier’s prospect of success on the merits in their opposition of the main application and their counter application, whether the present application for postponement was brought timeously, and whether Welbeplan Boerdery and Olivier’s true reason for their unpreparedness were provided. [7]

[13]      In addition to the affidavits that were filed in the main application, counter application and the present application for postponement, the court was also provided with an application for liquidation that was issued by Kaap Agri against Welbeplan Boerdery under case number 58886/20, in this division (second application for liquidation). The second application for liquidation was also referred to in the affidavits filed in the other applications. In the history of the litigation as set out in the judgement below, the court had regard to the conduct of the parties as it appears from any of these proceedings.

[14]      Although the history in respect of the litigation between the parties is protracted, I deem it necessary to refer comprehensively thereto as it is clearly indicative of a stratagem that was adopted by Welbeplan Boerdery and Olivier to cause delay.

A.1 - History of Litigation:

[15]      The litigation between the parties commenced when Kaap Agri instituted an action against Welbeplan Boerdery and Mr Olivier in the Western Cape High Court on the 25^th of May 2016 under case number 8267/16 for payment of an amount of R18 410 991.18 premised upon a written agreement to provide credit facilities to the Welbeplan Boerdery (the “Cape High Court Action”).

[16]      In this action Kaap Agri applied for summary judgement on the 30^th of June 2016.

[17]     Welbeplan Boerdery and Olivier on two occasions during 2016 brought substantive applications for postponement of the summary judgement proceedings. Annexed to Welbeplan Boerdery and Olivier’s founding papers in the present application for postponement they annexed the affidavits that were utilised by them for this purpose.[8] From these affidavits it is evident that:

[17.1]            On the 15^th July 2016, Olivier deposed to an affidavit to procure the first postponement. At that time Welbeplan Boerdery and Olivier admitted some liability to Kaap Agri, but disputed the total amount claimed. To properly quantify the amount of liability a postponement of 7 weeks was requested to finalise an audit. In this regard Olivier stated:

“Eerste Verweerder is, met die kennis tans tot my beskikking, klaarblyklik ‘n bedrag aan Eiser verskuldig, maar ek is tans nie in staat om namens Eerste Verweerder die spesifieke bedrag te kwantifiseer nie, uit hoofde van die omstandighede soos hieronder uiteengesit. Om daardie rede word hierdie eedsverklaring gemaak met die doel om die Agbare Hof te versoek om die aansoek om summiere vonnis uit te stel ten einde Eerste Verweerder in staat te stel om die korrekte bedrag verskuldig te kan bereken.[9]

“Ek erken gevolglik dat goedere en/of dienste aan Eerste Verweerder verskaf is vir die periode sedert krediet aan Eerste Verweerder verleen is, en ek erken voorts dat ek die borgskap onderteken het waarop die Eiser steun. Die korrekte bedrag is egter in dispuut.”[10]

“My ouditeur, Mnr van der Walt is tans in die proses om te bereken wat die korrekte bedrag is wat verskuldig is deur die Eerste Verweerder, maar is sodanige proses uit hoofde van die omstandighede en tydsverloop nog nie afgehandel nie. Ek en Eerste Verweerder word deur Mnr van der Walt geadviseer dat finalisering van die oudit proses voormeld van voormelde dokumentasie binne ‘n verdere periode van sewe weke afgehandel behoort te wees, na afhandeling sal Eerste Verweerder en ek verifieer en betaling tender binne verdere verloop van een week.”[11]

“Uit hoofde van voormelde feite smeek Eerste Verweerder en ekself dat die aansoek om summiere vonnis uitgestel word vir ‘n periode van ten minste sewe weke en tender ons gesamentlik en afsonderlik die koste verspil as gevolg van ons aansoek om hierdie uitstel”[12].

[17.2]            This application for postponement was opposed by Kaap Agri. In an affidavit deposed to by Leopoldus Ignatius Human, Group Manager: Financial Services (Human) dated 22^nd of July 2016 he inter alia stated:

“Uit die ondersoek wat ek geloods het, het dit geblyk dat die Verweerders in verskeie sivielregtelike aangeleenthede in meer as een afdeling van die Hooggeregshof betrokke is asook in verskeie Landdroshowe oor die land. Daar is ook ‘n aantal bedrogklagtes gelê teen die Tweede Verweerder. Weens die tydsbeperking waaronder ek verkeer handel ek nie in detail hiermee nie, maar meld ek dat dit duidelik is uit die onbetwisbare feite van hierdie geval dat die Verweerders poog om die hofproses te misbruik deur ‘n aansoek om uitstel te bring in omstandighede waar daar geen bona fide feite ter ondersteuning daarvan bestaan nie en waar die aansoek om uitstel self nie bona fide is nie.”

[17.3]  In the affidavit of Human, Kaap Agri made serious allegations of fraudulent misrepresentations against Welbeplan Boerdery and Olivier. These allegations are prominent throughout the various litigation proceedings to date. These allegations even feature in the present application for postponement. On the view that I adopt of the present application for postponement, I do not think it is necessary for the court to express any view in respect of these allegations.

[17.4]            Welbeplan Boerdery and Olivier were successful in procuring their first postponement of the summary judgement application. On the 19^th of July 2016 the Court postponed the application for summary judgement.

[17.5]            On the 31^st of August 2016 Olivier deposed to a further affidavit which he filed to supplement his affidavit opposing summary judgement, and in support of another application to postpone the application for summary judgement proceedings for a second time. In this affidavit Olivier averred that the exact liability of Welbeplan Boerdery to Kaap Agri could only be determined by way of expert evidence to be led at a trial.[13] Welbeplan Boerdery and Olivier also placed in dispute the interest calculations and again claimed that the interest dispute could only be resolved at a trial, with expert evidence to be led.[14]

[17.6]            The summary judgement application was postponed for a second time on the request of Welbeplan Boerdery and Olivier.

[17.7]            The summary judgement application was set down for a third time on the 1^st November 2016. On this day Desai J, by agreement between the parties, made an order in terms whereof summary judgement in the Cape High Court Action was granted in favour of Kaap Agri for the amount of R6 719 497.36 and leave was granted to Welbeplan Boerdery and Olivier to defend the remainder of the Cape High Court Action (the “Desai consent order”). [15] It was further agreed in the Desai consent order that Kaap Agri would not be allowed to proceed with any steps of execution premised on this judgement on or before the 5^th of December 2016. It is important to note that the Desai consent order was not made in the absence of Welbeplan Boerdery or Olivier. Both were duly represented by Counsel in those proceedings.

[18]      Welbeplan Boerdery and Olivier did not pay the amount of R6 719 497.36 in terms of the Desai consent order. Welbeplan Boerdery and Olivier annex to their present application for postponement an affidavit deposed to by a representative of Kaap Agri, Daniel Wilhelmus Beukes (Beukes), as Annexure “FA4”. From this affidavit it is evident that:

[18.1]            Pursuant to the Desai Judge summary judgement, Kaap Agri was a judgement creditor of Welbeplan Boerdery.

[18.2]            At that stage the registered address of Welbeplan Boerdery was in the Western Cape Province and unaware of the fact that the registered address was moved to Gauteng, Kaap Agri launched in the Cape High Court an application for the winding-up of Welbeplan Boerdery. This application was opposed, and a point was taken that the registered address was moved to Gauteng and that the Cape High Court does not have jurisdiction.

[18.3]            In the process of withdrawing the application for liquidation in the Cape High Court and instituting a new application the above Honourable Court, Welbeplan Boerdery on the 14^th of December 2016 adopted a resolution to commence with voluntary business rescue proceedings.

[18.4]            On the 5^th of May 2017 Kaap Agri brought a successful application in the Pretoria High Court to set aside the resolution to commence with business rescue proceedings and to put Welbeplan Boerdery in liquidation. This application was launched under case no. 31255/2017 (“the first liquidation application”).

 [18.5]           On the 24^th of July 2017 Kaap Agri procured a provisional order for winding-up of Welbeplan Boerdery in the first liquidation application.

[18.6]            When the liquidators that were appointed over Welbeplan Boerdery wanted to take charge of the farm of Welbeplan Boerdery over which Kaap Agri had registered a mortgage bond, Olivier launched a spoliation application, which application was successfully opposed and subsequently dismissed.

[18.7]            It was under these circumstances that the parties entered a deed of settlement wherein it was agreed:

[18.7.1]    that Welbeplan Boerdery pay the amount of R6 719 497.36 for which Kaap Agri had procured summary judgement in the High Court Action in terms of the Desai consent order;

[18.7.2]    that the provisional liquidation order be discharged and the first application for liquidation be withdrawn; and

[18.7.3]    the matter be referred to arbitration.

A copy of the deed of settlement was annexed as Annexure “FA2” to the Founding Affidavit in the present application for postponement.

[19]      By consent between the parties this deed of settlement was made an order of Court in the above Honourable Court under case no. 31255/2017 before Rabie J (the Rabie consent order), the provisional order for liquidation was discharged and the first application for liquidation withdrawn. In the deed of settlement:[16]

[19.1]            It was recorded that Kaap Agri instituted the Cape High Court Action against Welbeplan and Olivier to enforce claims under the aforesaid credit facilities.[17]

[19.2]            The parties agreed[18] that the Cape High Court Action be stayed, pending a referral to arbitration of the cause of action in the Cape High Court Action, on the basis which inter alia included that:

“(c) the action, together with the costs of the liquidation and all matters relating to the liquidation, including the costs of the appointed liquidators, will form the subject matter of the arbitration”.

(d) the pleadings in the various matters will serve as the pleadings in the arbitration, subject to the right of Kaap Agri to file replying papers in the liquidation application by no later than 28 February 2018”.

[19.3]            It was agreed that the deed of settlement will be made an order of Court in the Cape High Court Action and the first application for liquidation, whereafter Kaap Agri will withdraw the first application for liquidation[19].

[19.4]            The first application for liquidation was withdrawn, the provisional order for liquidation discharged and the compromise was made an order of Court by consent on the 22^nd of February 2018 in terms of the Rabie consent order.[20]

[20]      Again it is important to note that at the time the Rabie consent order was made, Welbeplan Boerdery and Olivier were represented by counsel and the order was not made in their absence.

[21]      On a proper interpretation of the deed of settlement it is evident that the issues that were referred to arbitration by the parties were the issues as contained in the Cape High Court action. All other aspects only related to costs, including the costs in relation to the first application for liquidation proceedings. This is borne out by the fact that provision was made that Kaap Agri would withdraw the first application for liquidation against Welbeplan Boerdery and which application was indeed withdrawn. The relevance of the aforementioned will become apparent from what was argued before me in the present application for postponement as discussed below.

[22]      In the plea that was filed by Welbeplan Boerdery and Olivier in the Cape High Court action, Welbeplan Boerdery and Olivier did not take issue with the locus standi of the Applicant.

[23]      On the 19^th of October 2018 Kaap Agri deemed it necessary to proceed to give notice to amend its particulars of claim in the Cape High Court action to elaborate on the issue of locus standi. No objection was filed by Welbeplan Boerdery or Olivier in respect of the proposed amendment and on the 19^th of November 2018 the amendment was affected by Kaap Agri. Neither Welbeplan Boerdery nor Mr Olivier affected any consequential amendments to their Plea in response to this amendment. As the pleadings in the Cape High Court action stood before the Arbitrator, Kaap Agri’s locus standi was therefor never placed in issue.

[24]      The 18^th of March 2019 was the first date that was procured for the commencement of the arbitration proceedings before the Arbitrator.

[25]      From the history of the litigation between the parties it is evident that Welbeplan Boerdery and Olivier on numerous occasions changed legal representatives. It appears that at the time when the arbitration proceedings were scheduled to commence in March 2019 that Welbeplan Boerdery and Olivier had already employed not less than 13 different firms of attorneys from time to time. I could not find any cogent explanation for their modus operandi. It appears that this conduct persisted even after the commencement of the arbitration proceedings and persisted as late as the date upon which the main application and counter application were to be heard before me.

[26]      From the history it further appears that in the weeks leading up to the commencement of the arbitration on the 18^th of March 2019, Welbeplan Boerdery and Olivier were again unrepresented and failed to appoint new attorneys.

[27]      From the Answering Affidavit which was filed in the counter-application by Kaap Agri (to which no Replying Affidavit was filed) it appears that:

[27.1]            In view of Welbeplan Boerdery and Olivier’s history to engaged various firms of attorneys, in succession, and in view thereof that in the weeks preceding the arbitration they were unrepresented, it was so obvious to Kaap Agri that Welbeplan Boerdery and Olivier would attempt to postpone the arbitration proceedings it, as a pre-emptive move, prior to the hearing of the arbitration prepared a chronology list and an affidavit to oppose any application for postponement by them.

[27.2]            On the first day of arbitration on the 18^th of March 2019, Olivier appeared in person and indeed requested a postponement. The essence of Olivier’s argument for postponement was that at that particular point in time and in the weeks immediately preceding the arbitration hearing, neither he nor Welbeplan Boerdery could procure sufficient funds to engage a new legal team.

[27.3]            Evidently Olivier advised the Arbitrator that a windfall was around the corner and if the matter was postponed there would be sufficient funds in future to engage a new legal team. It was also argued that necessary amendments to their pleadings would have to be brought about and that Welbeplan Boedery contemplated to institute a counter-claim in the arbitration proceedings.[21]

[28]      Welbeplan Boerdery and Olivier successfully obtained a postponement of the arbitration.

[29]      Welbeplan Boerdery and Olivier have annexed to the Answering Affidavit which they have filed in opposition to the main application, the award which the Arbitrator made in postponing the arbitration proceedings on the 18^th of March 2019.[22] In his award the Arbitrator inter alia stated as follows:

“Hierdie is ‘n aansoek om uitstel deur die Tweede Verweerder, wat ook optree namens die Eerste Verweerder, wat in persoon verskyn. Die saak is neergesit vir vyf dae vir verhoor. Die uitstel word gebring op die basis dat die Verweerders op hierdie stadium nie regsverteenwoordiging het nie. Dit is vir my duidelik dat die rede vir die afwesigheid van regsverteenwoordiging geheel en al te wyte is aan die optrede of versuim van die Verweerders en dat die Eiser geen verwyt daavoor kan kry nie.”

[30]      It further appears from the reasons provided at that stage by the Arbitrator that although Welbeplan Boerdery and Olivier requested a postponement of the Arbitration without any substantive application, he deemed it in the interest of justice to afford them a further opportunity to bring their case before him with proper legal representation. Notwithstanding when the Arbitrator postponed the matter:

[30.1]            Olivier and Welbeplan Boerdery were ordered to pay R600 000.00 in respect of costs incurred to that date. The R600 000.00 had to be paid in two instalments of R300 000.00 each. The first instalment was to be paid on the 18^th of April 2019 and the second on the 18^th of May 2019.[23]

[30.2]            The arbitration was again postponed for 5 days to commence on the 11^th of November 2019.

[30.3]            The award provided that if Welbeplan boerdery and Olivier failed to pay any of the two instalments it would be regarded that their defence be struck and Kaap Agri would be entitled to apply for an award in terms of the total capital amount on an unopposed basis.

[31]      Welbeplan and Olivier failed to make the first payment of R300 000.00 on the 18^th of April 2019 which caused Kaap Agri to proceed with an application for an award in terms of the total capital amount on an unopposed basis. At the time when Olivier and Welbeplan Boerdery received the application for an award, they affected payment of the first instalment. In the application for an award it was stated that the arbitration was postponed on the 18^th of March 2019 until the 11^th of November 2019. Olivier received the application for an award and responded thereto in writing a letter in which he offered the excuse that the true reason for not making payment of the first instalment on time was that he did not have the banking details of Kaap Agri.[24]

[32]      Subsequent to postponement of the arbitration proceedings in March 2019, it appears from correspondence exchanged between the parties that the Arbitrator was no longer available for the 11^th November 2019 and he attempted to arrange new dates. The following email correspondence was annexed to the counter application :

[32.1]            On the 12^th of June 2019 Mr Heyns from Kaap Agri directed an email to Olivier at Olivier’s email address at gerhardolivierboerdery@gmail.com. In this email Olivier is advised that the Arbitrator indicated that he was available to proceed with the arbitration the weeks commencing the 25^th November 2019, 2^nd of December 2019 and/or 9^th of December 2019. Olivier was requested to advise which weeks he was available. [25]

[32.2]            Kaap Agri received no reply to that email and on the 25^th of June 2019 Mr Heyns again directed an email to Olivier to the same email address wherein Olivier was advised that the Arbitrator had now indicated that he was available to proceed with the arbitration on any of the last two weeks in January 2020 or the first week in February 2020. Again Olivier was requested to indicate his availability.

[32.3]            On the same date the Arbitrator directed a further email to all relevant parties including to Olivier at the same email address wherein he advised that the parties should consider that the arbitration proceed the week commencing on the 3^rd of February 2020.

[32.4]            Heyns on behalf of Kaap Agri responded to the Arbitrator’s email and informed the Arbitrator and Olivier, at the same email address, on the 25^th of June 2019 that the 3^rd of February 2020 be reserved for proceeding with the arbitration.

[32.5]            On the same date the Arbitrator responded and notified all the parties including Olivier, at the aforementioned email address, that the week commencing on the 3^rd of February 2020 is reserved for the arbitration.

[32.6]            On the 20^th of November 2019 the Arbitrator directed another email to all parties, inclusive to Olivier at his email address, wherein he enquired whether everything was on track for the arbitration to proceed. (it is noted that this email was directed 9 calendar days subsequent to the date upon which the arbitration was initially provisionally postponed to be the 11^th of November 2019).

[33]      Neither Welbeplan Boerdery nor Olivier responded to any of the aforementioned emails at the time.

[34]      On the 3^rd of January 2020, a month prior to the commencement of the arbitration, Mr Olivier directed an email to the Arbitrator (directed from Olivier’s aforementioned email address) wherein he inter alia advised the Arbitrator as follows:

“Beste Regter

Ek was vannaand besig om deur my e-posse te lees en toe vind ek hierdie email vanaf uself in my spam op my gmail account.

Regter, bogenoemde datum geallokeer sal nie werk nie. In Desember ontvang ek boodskap terug vanaf prokureur (Frank Cohen) se selfoon na navraag oor moontlike konsultasie. Whatsapp boodskap terug vanaf assosiaat by sy firma op sy selfoonnommer wat aandui dat (Frank) nie meer voortaan beskikbaar is vir konsultasies vorentoe nie, weens die feit dat sy mediese omstandighede verander het. Ek het ‘n screenshot van whatsapp boodskap aan vir u kennisname en record. Ek het in 2019 met hom gekonsulteer om as opdraggewende prokureur toe te tree tot aangeleentheid. Dit was vir my ‘n groot skok en baie onverwags.

Daar was reeds laas jaar met twee advokate gepraat wat gebrevetteer sou word vir arbitrasie. Die junior advokaat en senior advokaat se kontak waar senior advokaat aangedui het dat sy eerste datum waar hy beskikbaar sal wees vir vyf dae arbitrasie met voorafgaande week vir voorbereiding tweede week in November sal wees (dit sal nou weer bevestig moet word).

So ek sal op geen manier regspan bymekaar kan kry om gereed te wees vir 3 Februarie 2019 nie. Soos uself weet mag ek as klient nie advokate direk kontak sonder prokureurs se teenwoordigheid nie. Die firma wat ek nou al nader om in Frank Cohen (prokureur) se plek aangeleentheid oor te neem, open eers op 13 Januarie 2020. Ek sal dan op daardie stadium hul kantore besoek, waar ek sal reel dat senior prokureur, datum met uself en teenkant ooreenkomstig skeduleer ten opsigte van voortgesette arbitrasie afhandeling.

Soos deur Regter se direktief toegeken moes Verweerders R600 000.00 betaal vir vorige uitstel – omdat teenkant reg was om voort te gaan en dat Verweerders regsverdediging beskikbaar gehad het nie. Met direkte direktief dat Verweerders regte op verwere sou verloor, as Verweerders nie binne tydperk (datum) toegeken sou betaal nie. Ek het ingestem namens Verweerders en dit so aanvaar en betalings gevolglik gedoen. Omdat Regter my verseker het dat ek wel geleentheid sal kry om met behoorlike regsverdediging my saak te kan stel en vir regverdige verhoor sonder benadeling van regte. Dus (dis) versoek ek dat Regter datum allokeer op 20 Januarie 2020 nadat beskikbaarheid behoorlik bevestig kon word deur prokureur van Advokate se beskikbaarheid voor op 17 Januarie 2020. Kommunikasie sal gevolglik vloei vanaf 13 Januarie 2020, nadat die firma formeel op rekord gekom het”.

[35]      In an email of Kaap Agri dated 10^th January 2020 directed to Welbeplan Boerdery, Olivier and the arbitrator, Kaap Agri not only advised that any application for postponement would be opposed but comprehensively dealt with their grounds of opposition.

[36]      On the same date, 10^th January 2020, the Arbitrator advised Welbeplan Boerdery and Olivier in an email that they needed to bring a substantive application for postponement.

 [37]     Although Welbeplan Boerdery and Olivier knew already since the 10^th January 2020 that Kaap Agri would be opposing any application for postponement and that they were required to bring a substantive application for postponement, they delayed the bringing of such an application for postponement until after business hours on Friday the 31^st of January 2021. I could not find any explanation for this delay.

[38]      The application for postponement was argued before the Arbitrator who dismissed the application upon inter alia the following reasons:

[38.1]            The defence that was already raised in the pleadings in the Cape High Court action by Welbeplan Boerdery and Olivier against Kaap Agri’s claim was essentially premised upon the defective invoicing which would allegedly be borne out by the testimony of an expert witness. The reason advanced for postponement of the application for summary judgement, already at that stage, was to enable the expert to finalise his report. That was already in August 2016, but until now (March 2020) no such report has ever come to light;

[38.2]            At the time of the first hearing of the arbitration proceedings on 18^th of March 2019, Welbeplan Boerdery and Olivier asked for a postponement to obtain legal representation and to file a counter-claim against the claimant. No counter-claim was ever introduced;

[38.3]            When problems arose during 2020 in respect of the proceeding of the arbitration on the 11^th of November 2019 various email correspondence were exchanged between the parties in respect of which emails Olivier, at an email address to which he consistently used, were copied into every mail. Since Mr Olivier was invited to respond and did not respond and it was assumed that he had no objection on the new agreed upon date, 3^rd of February 2020. (I have already dealt with these correspondence in paragraph 32 above);

[38.4]            On the 3^rd of January 2020 Olivier responded for the first time. In this email Mr Olivier mentioned that he only received the email of the 20^th of November 2019 in his spam file that evening (3^rd of January 2020). No mention was made by Mr Olivier by any of the previous correspondence that was exchanged during June 2019. In response to this email, Mr Heyns from Kaap Agri dated the 10^th of January 2020 advised Mr Olivier in no uncertain terms that any application for another postponement would be strenuously opposed. In light of Mr Heyns’s letter, the Arbitrator communicated to Mr Olivier, on the same date (10 January 2020) that the arbitration proceedings would proceed on 3 February 2020 unless Mr Olivier and Welbeplan Boerdery brought a fully motive application for postponement. Despite having been so advised, nothing happened and Welbeplan Boerdery and Olivier only filed the application after hours on the 31^st of January 2020 (a lapse of more than 21 days).

[39]      I cannot fault the reasons provided by the Arbitrator in dismissing the application for postponement. On the contrary I agree with what the arbitrator said in paragraph 10 of the reasons for his judgement where the Arbitrator inter alia held as follows:

“The founding affidavit raises more questions than answers, questions such as the following: in light of the order postponing the matter to 11 November 2019, albeit provisionally, how could Olivier possibly have thought that the matter was not postponed to a fixed date? If Mr Olivier did not know that the matter was postponed to November 2019 or that the date was changed to 3 February 2020, how could he possibly instruct Mr Cohen to enquire about the availability of Counsel for unknown dates? And if Mr Cohen knew that the matter was postponed to November 2019 but not that the date was changed, how is it possible that Mr Cohen just ignored the November date. What did Mr Cohen do in the meantime to prepare the Defendants’ case? What happened, for instance to, the counter-claim that Mr Olivier proposed to file? Or to the notice of the expert evidence which would provide the answer to Kaap Agri’s claim? Why is it that Mr Olivier simply ignored the emails exchanged on 25 June 2019, which fix the date of hearing, in his founding affidavit despite the fact that reference was made to this exchange in the letter by Mr Heyns of 10 January 2020? When this was pointed out in the opposing affidavit on behalf of Kaap Agri, Mr Olivier’s explanation was that the emails of 25 June 2020 also landed in his spam file. But I regard this as a patent unlikelihood. Why would Mr Olivier receive every mail that suited him while everyone that did not suit him would land in his spam file, when all of these emails were directed to the same address? Moreover, even if Mr Olivier’s version is to be accepted, the question remains why the services of senior counsel were only sought between 20 and 30 January and why the application for postponement was only brought after hours on Friday the 31^st. “

(my emphasis)

[40]      I also wish to refer to the comment of the Arbitrator in par 16 of his reasons where he stated as follows:

“16.   This patent dishonesty on the part of Mr Olivier self-evidently cast a long shadow over his bona fides, which constitutes an essential requirement for the success of his postponement application …” [26]

[41]      The arbitration proceeded in the absence of Welbeplan Boerdery and Olivier and the arbitrator made an award in favour or Kaap Agri for payment in the amount of R23 122 831.74.[27]

[42]      Now being faced with such a substantial award one would, at the very least, have expected that Welbeplan Boerdery and Olivier would approach any further litigation with diligence and vigilance. In addition, having used the excuse that he has experienced problems with his emails (that ended up in the spam bucket) one would have expected Olivier to take extreme caution to ensure that he receives all communications from both Kaap Agri as well as Messrs Vezi De Beer whom he has appointed as Welbeplan Boerdery’s registered and last known address.

[43]      On 26^th of January 2020 Kaap Agri issued the main application to make the award an order of Court. It appears from a search document annexed as Annexure “B” to the Founding Affidavit in the main application that Welbeplan Boerdery’s registered address was still at Vezi & De Beer Inc., at 319 Alpine Way, Lynnwood, Gauteng. It is apparent that on the 2^nd of March 2020 the main application was duly served upon the registered address of Welbeplan Boerdery.[28] It also appears that on the 28^th of February 2020 the application was sent by way of email to Olivier at Olivier’s aforementioned email address.

[44]      Neither Welbeplan Boerdery nor Olivier opposed the main application and a date was allocated by the Registrar of the above Honourable Court to argue the main application on the 17^th of November 2020 on an unopposed basis. It comes as no surprise that on the 5^th of November 2020, only a few days before the hearing of the main application on the unopposed roll, Welbeplan Boerdery and Olivier filed a Notice of Intention to Oppose the main application.[29] This was more than 7 months after the main application was served on them. Needless to say, the matter now becoming opposed, the hearing of the main application needed to be postponed.

[45]      On the 25^th of November 2020 Olivier and Welbeplan Boerdery’s Answering Affidavit in the main application was due but no Answering Affidavit was filed.

[46]      In the interim Kaap Agri proceeded with and issued the second application for the liquidation of Welbeplan Boerdery on the 9^th of November 2020. In this regard:

[46.1]            In the Notice of Motion notice was given that the Applicant intended to proceed with the second application for liquidation on the 4^th of May 2021 if the application was not opposed;

[46.2]            No notice of opposition was filed and the second application for liquidation was set down for argument on the unopposed roll for the 4^th May 2021. Once again, a mere two days before the hearing of the second application for liquidation, Welbeplan Boerdery and Olivier filed a Notice of Intention to Oppose that application. Again, Welbeplan Boerdery and Olivier through their actions caused that that application had to be removed from the unopposed roll and set-down on the opposed roll.

[46.3]            Welbeplan Boerdery and Olivier filed their Answering Affidavit in opposition to the second liquidation application on or about the 21^st of May 2021.

[47]      On the 17^th of August 2021 the main application was again set down for hearing on the unopposed Motion Court roll due to the absence of any Answering Affidavit filed by Olivier or Welbeplan Boerdery.

[48]      The hearing of the main application on this date was again derailed due to the belated actions of Olivier and Welbeplan Boerdery. On the previous day, 16^th of August 2021, Welbeplan Boerdery and Olivier filed their Answering Affidavit in the main application and filed their counter-application for review. These documents were filed approximately 17½ months after the main application was served upon Welbeplan Boerdery and Olivier.

[49]      On the 18^th of October 2021 Kaap Agri filed its Answering Affidavit to the counter-application. As I have already noted above no Replying Affidavit has been filed in the counter-application. On the same date Kaap Agri also filed its Replying Affidavit in the main application.

[50]      On the 3^rd of December 2021 Kaap Agri filed and served its Heads of Argument, practice note and list of authorities in order to proceed with applying for a date for the hearing of the main and counter-applications.

[51]      Welbeplan Boerdery and Olivier failed to file their Heads of Argument within the ten-day period as provided for in the Practice Manual of this division, which period expired on the 19^th of January 2022. In view thereof that Kaap Agri could not apply for a date of hearing of the main and counter applications without Welbeplan Boerdery and Olivier having filed their heads of argument, it was compelled to launch an application on or about the 28^th of June 2022 to compel Welbeplan Boerdery and Kaap Agri to file their Heads of Argument. This application was duly served upon Olivier and Welbeplan Boerdery on the 11^th of July 2022. This application was not opposed and was set down for hearing for the 7^th of June 2022. On this date Retief AJ under case number 14130/20 made an order compelling Welbeplan Boerdery and Olivier to file their Heads of Argument within 3 days of that order being served on them.

[52]      This order was served upon Welbeplan Boerdery and Olivier on the 11^th of July 2022.

[53]      Notwithstanding the order to compel, Welbeplan Boerdery and Olivier failed to file their Heads of Argument and an application to strike Welbeplan Boerdery and Olivier’s defence was enrolled for hearing on the 5^th of August 2022. The application to strike was served upon Welbeplan Boerdery and Olivier on the 11^th of July 2022.

[54]      On the 4^th of August 2022, one day prior to the hearing of the application to strike Welbeplan Boerdery and Olivier filed an Answering Affidavit to the application to strike. In the Answering Affidavit Mr Olivier inter alia states:

“4.9   …. The Heads of argument in the above matter have now been completed and filed.”;

“4.12 In the light of the fact that the Respondents have filed their heads of argument, I am of the respectful view and I have been advised, that the main application dealing with the arbitral award should now be dealt with on its merits”.

[55]      No explanation is offered why that opposing affidavit was filed at such a late time.

[56]      It appears that Welbeplan Boerdery and Olivier engaged the services of a senior counsel and Heads of argument were indeed filed in both the main and counter applications on the 4^th August 2021.

[57]      The notice of set down for the hearing of the main and counter applications was served by Kaap Agri on Welbeplan Boerdery and Olivier on the 7^th of September 2022. Service was affected on Olivier on the email addresses which he had utilised successfully in the past and which were again nominated by Olivier as the addresses where he would accept service of further process. The notice of set down was in addition personally served on the last known address as was indicated in the notice of withdrawal which was filed by their last attorneys of record on the 4^th of August 2022 wherein Kaap Agri was advised as follows:

“Be pleased to take further notice that the physical address of the Defendant is:

319 Alpine Way

Lynnwood

Gauteng”

[58]      It further appears that on the 7^th of October 2022 Kaap Agri sent a proposed joint practice note to Olivier at the email addresses which were nominated as well served a copy thereof personally on the last known address. No response was received.

[59]      The aforementioned constitutes the background to the bringing of the application for postponement that now served before me.

Present application for postponement:

[60]      As I have indicated above, the first mention that was made to either Kaap Agri or the Court about a possible application for postponement of the main and counter applications was at the calling of this matter at roll call on the 17^th of October 2022. This was also the first time that the reasons for which the postponement were required were disclosed since the launching of the main application.

[61]      In the Founding Affidavit used in support of the application for postponement it is stated that the purpose of the application is threefold namely:

[61.1]            to obtain a postponement of the main and counter-application;

[61.2]            to have an opportunity to supplement Welbeplan Boerdery and Olivier’s grounds upon which they rely in the counter-application for the setting award of the award. Although it was provided for in paragraph 3.2 of the Founding Affidavit and in the Notice of Motion that they already at this stage seek leave to supplement, it was submitted by Senior Counsel who appeared on their behalf that at this stage they only request a postponement in order to apply for the supplement thereof;

[61.3]            to obtain a postponement to permit applications to be made to the Western High Court for the reviewing and setting aside of the Desai consent order in the Cape High Court action and an application to be made to the above Honourable Court for the reviewing and setting aside of the Rabie consent order.

[62]      For the reasons that I will indicate below, Welbeplan Boerdery and Olivier have not provided a full and satisfactory explanation of the circumstances that give rise to the application for postponement.

[63]      In essence the reasons for their non preparedness are the following:

[63.1]            The attorneys who represented them from the 7^th July 2022, Messrs Jacobson and Levy attorneys, withdrew on the 5^th August 2022 due to financial difficulties experienced at that time. At the time Jacobson & Levy withdrew as their attorneys Olivier was under the impression the matter will only be enrolled for hearing approximately 8 months later.

[63.2]            When Jacobson & Levy withdrew, Messrs Vezi De Beer Inc were nominated as the address where they will receive service of process and Olivier also nominated his personal email addresses. On the 1^st September 2022 Olivier received notification that his email’s account storage was full, which problem he was only able to rectify on the 12^th October 2022 when he deleted some emails on advice of an IT specialist employed at Incredible connection in Menlyn. Pursuant thereto, on the 12^th October 2022 he received 2 notices from Messrs Vezi De Beer.

[63.3]            Olivier proceeded to employ his present attorneys Messrs Van Hulsteyns on the 13^th October 2022 who were provided with the notice of set down by Messrs Vezi De Beer on the same date which notice were already served upon them on the 7^th September 2022.

[63.4]            Although Olivier was provided with proof that the notice of set down was also sent to both his nominated email addresses on the 6^th September 2022, he denies having received same due to the problem experienced with his email.

[63.5]            Olivier he had no access to the case line system.

[63.6]            Due to Kaap Agri having stopped their facilities the raising of funds to engage legal representatives has throughout been a major problem.

[64]      Welbeplan Boerdery and Olivier commenced their explanation for their non preparedness from July 2022. Having regard to the reasons for which the postponement is sought, such an explanation does not suffice. Welbeplan Boerdery and Olivier should have provided an explanation why they did not take the contemplated steps which they now wish to do (applications for rescissions and supplement of the counter application) since the award was handed down in February 2020 alternatively at the time or since the counter application and answering affidavit to the main application were filed by them on the 16^th August 2021. Presently no explanation for any period before July 2022 has been provided.

[65]      As I have indicated above in the exercise of the court’s discretion and in order to determine whether or not it would be in the interests of justice to allow the postponement, I am of the opinion that the court would be remiss not to have regard to the history of the litigation between the parties which already commenced in 2016 and in particular the conduct of Olivier and Welbeplan Boerdery in the litigation to date.

[66]      What has become apparent is that throughout the history of the litigation between the parties, Olivier and Welbeplan Boerdery have appointed new attorneys and ended their mandates when it suited them. In this regard the allegations of Kaap Agri in paragraph 10 of the answering affidavit filed in opposition to the counter application stands uncontested where it states that at the time the arbitration proceedings commenced, Olivier and Welbeplan Boerdery had appointed no less than 13 sets of attorneys. It is apparent that the said modus operandi continued post the arbitration proceedings, the latest attorneys to come on record on the day the matter came before me. Olivier’s attempt to explain that the reason throughout was the difficulty with access to finances since 2015 with respect does not have substance. It is noteworthy that only when it suits them, Welbeplan Boerdery and Olivier suddenly find sufficient funds to employ new attorneys and even senior counsel to take the necessary steps at the most belated hour, usually within a very short period before the litigation is to proceed, to finalise documents, to draft applications for postponements or to file the required process to secure a postponement of the matter or to avoid adverse orders. As indicated above on their own version they even had sufficient funds to procure a second and third opinion post the arbitration proceedings in respect of the review application. It will with respect be difficult in any proceedings to justify that the vast amount of different attorneys employed by them does not form part of a bigger strategy to cause delay. Kaap Agri described this modus operandi as a regular trick of Olivier and Welbeplan Boerdery to orchestrate a postponement. I am inclined to agree.

[67]      Having regard to the conduct of Welbeplan Boerdery and Olivier in respect of the history of the litigation between the parties, one would have expected that at the times when Olivier and Welbeplan Boerdery were unrepresented, they would have been more diligent to ensure that they stay fully informed with the legal process. This they clearly did not do. It appears from the history of the litigation above that typically when Welbeplan and Olivier would terminate their attorneys’ services they would adopt a supine approach and do nothing to enquire as to the status of the litigation in the interim or implement any steps to ensure that the litigation reach finality. This is exactly what transpired before the Arbitrator when he granted the first postponement of the arbitration in March 2019. Nothing was done by Olivier or Welbeplan Boerdery to enquire about the furtherance of the arbitration and to implement the necessary steps to ensure that they would be ready to proceed to finalise the arbitration (whether in November 2019 or February 2020). It was only after the lapse of 9 months after the postponement, approximately 1 month before the continuance of the arbitration, that Olivier suddenly commenced communicating with the arbitrator. The same transpired in the present litigation. Once Olivier and Welbeplan had filed both their answering affidavit in the main application and their counter application on 16^th August 2021 their attorneys once again withdrew and they themselves did nothing to further the litigation or to enquire what the status of the litigation was. On the contrary since 16^th August 2021 I am of the opinion that the burden was even higher upon them as they had now instituted a counter application and was responsible that the said counter application be properly enrolled and finalised before court. It was only in August 2022 (1 year later) when Kaap Agri intended to apply that Welbeplan and Oliviers’ opposition to the main application be struck and their counter application be dismissed (due to their failure to file heads of argument) that they again used the same tactic, appointed a new attorney, filed heads of argument, secured the postponement of the hearing of the main and counter applications, and again terminated the attorneys’ services. Since the 4^th August 2022 when their heads of argument were filed I could not find any iota of evidence which indicate any steps taken by Olivier or Welbeplan Boerdery to enquire what the status of the litigation was (inclusive of their own counter application), whether the applications been set down for hearing, whether it was necessary to put any steps in place to ensure that the litigation, or even only their counter application, reach finality.

[68]      In addition the reasons provided why the notice of set down of the present proceedings was not timeously brought to Welbeplan Boerdery and Olivier’s attention is also not properly explained by them at all:

[68.1]            Welbeplan and Olivier nominated the offices of Messrs Vezi De Beer attorneys as the address where they would receive service of the further process. (I wish to mention that this address is not a mere address of a lay person but the address of a firm of attorneys). Kaap Agri complied with this direction and duly served the Notice of Set down upon the said attorneys. This is not a matter where the notice of set down was for some or other reason somehow swallowed up in the offices Messrs Vesi De Beer and that they did not attempt to inform Olivier thereof. On the contrary it appears that Messrs Vezi De Beer did attempt to send the notices to Olivier without any success. There is no explanation by Olivier what he did in the period since he appointed their offices as a service address to ensure that he stayed properly informed of any steps take in the legal process. No mention is made of a single telephone call directed to the said offices to direct any enquiries. Similarly the papers are absent of any explanation why the offices of Messrs Vezi De Beer would not or could not phone Olivier to advise him of the notice of set down. It is evident that Olivier’s explanation is that post appointing the said address as their service address, he did absolutely nothing to ensure that they stayed informed of the process. It is difficult to regard this as a reasonable explanation.

[68.2]            Similarly Olivier nominated his personal email addresses where he would accept service of process. Again, Kaap Agri complied with this request and the notice of set down was duly served on these addresses on the 6^th September 2022. At the very least one would have expected that post the problems which Olivier experienced with his emails that gave rise to his application to postpone the arbitration proceedings in February 2020, that he would take extra care and be diligent to ensure that his emails functioned properly to ensure he received all process. At the very least one would have expected that once he realised that he had a problem with his emails, which on his version occurred as early as 1^st September 2022 he at the very least would have informed Kaap Agri’s attorney and even Messrs Vezi De Beer of the problem and made an alternative arrangement to receive any process in the interim. This was not done and again the papers are absent any explanation why it was not done or could not be done. The application is also absent of any explanation why from the 12^th September 2022 until the 10^th October 2022 (a period of approximately one month) when he approached an IT specialist, Olivier did not do anything to rectify his predicament.

[68.3]            The arbitrator already remarked in his reasons for dismissing the application for postponement of the arbitration proceedings that it is strange that “Olivier would receive every mail that suited him while everyone that did not suit him would land in his spam file, when all of these emails were directed to the same address?” I want to add that it is extremely convenient that close to the continuation of the litigation, Olivier experience problems with his email and wishes to use such problems as an excuse to justify a postponement. I find this explanation is under the circumstance completely improbable.

[68.4]            We also know from the answering affidavit that was filed in opposition to Kaap Agri’s application to compel the filing of heads of argument, that by the 13^th July 2022 Welbeplan Boerdery and Olivier were at least represented by attorneys (Messrs Jacobson & Levy again) and counsel. It was during this time that their heads of argument were finalised and filed on the 4^th August 2022. From the heads of argument it is evident that Welbeplan Boerdery and Olivier was assisted by senior counsel. I could not find any explanation in the present application for postponement why the steps which Welbeplan Boerdery and Olivier now wish to take, in respect of which the postponement is sought, could not be taken at that time, or at the very least between that time and the hearing of the application before me (a period of approximately 2 ½ months).

[69]     I believe the principles that were laid down by the Appellate Division in Saloojee and Another, NNO v Minister of Community Development[30] are applicable to the matter at hand. Although the Appellate Division in that matter adjudicated upon an application for condonation the same principles apply to the present matter where an indulgence is sought for a postponement. It was inter alia held that:

[69.1]            “There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence, or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this Court. Considerations ad misericordiam should not be allowed to become an invitation to laxity.”

[69.2]            “A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney (cf. Regal v African Superslate (Pty.) Ltd., supra at p. 23 i.f.) and expect to be exonerated of all blame; and if, as here, the explanation offered to this Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself.”

[70]     Although the Appellate division in that matter dealt with a litigant who was represented by an attorney, these principles are even more applicable where the lack of diligence is directly ascribed to the litigant’s own actions. In the present matter Welbeplan and Olivier cannot even hide behind the ineptitude or remissness of their own attorneys. All the blame is upon themselves. Having regard to the history of the litigation between the parties above, the conduct of Welbeplan Boerdery and Olivier in the litigation and also the fact that their counter application was already filed more than a year late, it is evident that it should have been obvious to them that the stage was reached where it was obvious that they cannot sit passively by without so much as directing any reminder or enquiry and expect to be exonerated of all blame.

[71]     In the face of these facts, I cannot find that Welbeplan Boerdery and Olivier’s explanation for their non preparedness was reasonable and acceptable. On the contrary, it appears to me that they deliberately adopted a supine approach to the litigation once their heads of argument were filed. This conduct is consistent with their conduct throughout the litigation and arbitration proceedings between the parties. A defendant who bona fide intends to defend an action against him does not sit supine, waiting for others to inform him of what is transpiring with his case, and irrationally assume, when he is not so informed, that the case has miraculously gone away.

[72]     This Court has held, in De Wet & Others v Western Bank Ltd[31] that defendants have a responsibility to communicate with their legal representatives and that they "cannot divest themselves of their responsibilities in relation to the action and then complain vis-á-vis the other party to the action that their agents, in whom they have apparently vested sole responsibility, have failed them.” In that case the Court rejected the defendants’ explanation that they took it for granted that their attorney would protect their interests. It held that they had demonstrated a complete lack of interest in the proceedings and were the authors of their own conduct[29] .[32] It strikes me that similar conclusions can be drawn with regard to the applicant’s conduct in the present case.

[73]     I also need to have regard to Welbeplan Boerdery and Olivier’s prospect of success on the merits in their opposition of the main application and their counter application, and whether Welbeplan Boerdery and Olivier’s true reason for their unpreparedness were provided. [33]

[74]      From the content of paragraphs 5 and 6 of the Answering Affidavit filed in opposition to the main application it is evident from the content of that affidavit as it presently stands that Welbeplan Boerdery and Olivier’s opposition to the main application is solely premised upon them being successful with their counter application for the review of the reward. It is also for this reason that the court is requested not to make a finding in the main application until the counter application has been finally determined.

[75]      Should I therefor find that there is no reasonable prospects of success in the counter application their opposition to the main application must also fail.

[76]      It is common cause that the counter application is an application for the review of the Arbitrator’s award in terms of section 33(1) of the Arbitration Act 42 of 1965 that provides:

“33 Setting aside of award

(1) Where-

(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or

(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or

(c) an award has been improperly obtained,

the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.

(2) An application pursuant to this section shall be made within six weeks after the publication of the award to the parties: Provided that when the setting aside of the award is requested on the grounds of corruption, such application shall be made within six weeks after the discovery of the corruption and in any case not later than three years after the date on which the award was so published.

[77]      Section 33(2) provides that such an application shall be made within six weeks after the publication of the award to the parties. It has not been disputed that Welbeplan Boerdery and Olivier received publication of the award on the 7^th February 2020, being the date of the award. Accordingly the prescribed period for the bringing of such an application lapsed on the 20^th March 2020.

[78]      Welbeplan Boerdery and Olivier only filed and served their counter application for review on the 16^th August 2021, a period of just less than 17^th Months after the expiration period had lapsed. In an attempt to overcome this predicament Welbeplan Boerdery and Olivier requests condonation in terms of section 38 of the Arbitration Act that provides:

“38 Extension of periods fixed by or under this Act

The court may, on good cause shown, extend any period of time fixed by or under this Act, whether such period has expired or not.”

[79]      The question is thus whether Welbeplan and Olivier were successful to show good cause as required by the Act.

[80]      In paragraph 47 of the counter application Olivier provides their reasons to obtain an extension of time in terms of section 38 of the Arbitration Act;

[80.1]            In paragraph 47(1) read with paragraph 47(3)(1) of the counter application Olivier states that on 17^th February 2020 he consulted with attorney Mendelssohn. He continues to state that he also consulted with senior counsel and even paid a deposit for his fees. Olivier then continues that he provided attorney Mendelssohn with instructions to proceed with an application for review. Attorney Mendelssohn apparently advised him that the necessary steps to do so were taken. In support of this he refers to the content of the answering affidavit filed in opposition to the second liquidation application. Olivier states that it was only during July 2021 that he realised that attorney Mendelssohn had not taken the necessary steps to bring review proceedings. In support of this he refers to the answering affidavit filed in opposition to the second liquidation application.

[80.2]            I do not agree with Olivier that the content of the answering affidavit filed in opposition to the second application for liquidation provides support to Olivier’s explanation above. I believe his explanation read with the content of the said answering affidavit creates more questions than answers:

[80.2.1]    From the history of the litigation between the parties it is evident that by May 2021 Olivier had been involved in various forms of litigation with Cape Agri since May 2016. He was inter alia involved in two applications for postponement of the summary judgement proceedings and an application for spoliation aforementioned. These applications necessitated deposing to affidavits. To state that he has merely instructed attorney Mendelssohn to proceed with an application to review and set aside the arbitral award, and merely accepted that it had been done without the necessity to depose to any affidavits or without any further enquiries is completely improbable in the circumstances;

[80.2.2]    The improbabilities must be considered in circumstances where:

[80.2.2.1]        there was an arbitral award against them for payment in a substantial amount of R23 122 831.74[34];

[80.2.2.2]        the arbitral award was already made in their absence due to a failed application for postponement premised upon their unpreparedness to proceed with the arbitration;

[80.2.2.3]        they had a history in the past to request indulgences by way of applications for postponements due to their unpreparedness;

[80.2.2.4]        on Olivier’s own version they were represented by both attorney Mendelssohn and senior counsel in February 2020. Olivier states that he had even paid a deposit for senior counsel’s fees. No explanation is provided by Olivier why an attorney and senior counsel who has been placed in funds would not execute their instructions. On the contrary why attorney Mendelssohn would even proceed to lie to Olivier that their instructions were properly executed. Olivier offers no explanation for the alleged actions or lack of actions of attorney Mendelssohn and senior counsel;

[80.2.2.5]        in paragraph 47.3.1 Mr Olivier states that he already consulted with attorney Mendelsohn on the 17^th of February 2020 in respect of the review application.

[80.2.2.6]        although Olivier allegedly provided instructions to attorney Mendelssohn to proceed with the review application, for reasons that are not explained, Olivier did not proceed with attorney Mendelssohn at that time but continued to consult with VFF Attorneys between the 27^th of February 2020 until the 10^th of March 2020. In addition, he further states that he requested and only received copies of the transcripts on the 24^th of February 2020. It is improbable that the application for review would have been commenced with and finalised before being in possession of such transcripts.

[80.2.2.7]        On the 5 or 6^th of June 2020 Olivier allegedly sought a second opinion from Werksmans.

[80.2.2.8]        Similarly after having sought a second opinion at the beginning of June 2020, Olivier states that on the 7^th of September 2020 he contacted another firm of attorneys, Knowles Husain Lindsay Incorporated for a further opinion.

[80.2.2.9]        although Olivier is silent on when attorney Mendelssohn and senior counsel would have completed and issued the application for review, logic dictates that same must have been finalised before he changed attorneys on the 20^th February 2021 which would have been improbable as discussed in paragraph 73.2.1.6 above..

[80.2.2.10]      As the consultation with VVF attorneys as well as the request for further opinions from Werksmans and Knowles Husain Lindsay Inc were offered to explain the delay for the late bringing of the application for review, the only reasonable deduction is that the consultations and opinions related to the review application.

[80.2.2.11]      If Olivier is to be believed that he was under the impression that an application for review was already at that time finalised and filed by attorney Mendelssohn, the immediate question is why it would have been necessary for Olivier to consult with another attorney about the same application and to obtain a second and even a third opinion from different firms of attorneys. In the alternative if Olivier wanted to consult with VVF attorneys or obtain further opinions from other firms of attorneys in respect of the prospects of success of his application for review that was at time finalised by attorney Mendelssohn, Olivier would surely have been in possession of such application to provide it to the various firms of attorneys to provide their opinions thereon or rather would have realised that he could not provide the other firms with such application as attorney Mendelssohn did not file the required application.

[80.3]            I find Olivier’s explanation totally unconvincing.

[80.4]            The improbabilities stack even higher if one has regard that in March 2020 no notice to oppose the main application that was launched on the 26^th February 2020 was filed by Welbeplan Boerdery and Olivier. Only when Kaap Agri set the main application down for hearing on the unopposed motion roll for the 17^th November 2020, do Welbeplan Boerdery and Olivier file their notice of intention to oppose on the 4^th November 2020. Although the filing of their answering affidavit was due by the 25^th November 2020 no answering affidavit is filed at this time. In the main application Kaap Agri requests to have the award of the arbitrator made an order of Court. If there was a pending application for review at that time, as alleged by Welbeplan and Olivier, the main application would have been in the form of a counter application alternatively mention of the pending review would have been made in Kaap Agri’s founding papers as Kaap Agri’s application could not be finalised pending the alleged review. This was not the position. Either the attorneys acting for or Welbeplan and Olivier or Welbeplan Boerdery and Olivier themselves would at the very latest at this time have realised that no application for review was instituted by attorney Mendelssohn. Notwithstanding Welbeplan and Olivier waited another 8 months before they file their answering affidavit to the main application and counter application for review on 16^th August 2021.

[80.5]            In the premises I am of the opinion that the reference to the “pending review” application and the elaboration of the grounds for review and the sequelae of a successful application for review as referred to in paragraphs 13, 55 and 57 of the answering affidavit filed in opposition to the second liquidation application count against Olivier. The detailed reference to the “review application” is indicative that on the 21^st May 2021 an application for review had been finalised but once again without any explanation it was decided not to file such an application at that time. Having regard to the history of Welbeplan Boerdery and Olivier to wait until the last moment to file papers I am not surprised by such modus operandi, especially as the counter application was indeed only filed on the 16^th August 2021.

[80.6]            In addition to the above the delay is further explained by Olivier as follows:

[80.6.1]    In paragraph 47.3.1 Mr Olivier states that he already consulted with attorney Mendelsohn on the 17^th of February 2020 in respect of the review application. For reasons that are not explained he did not proceed with attorney Mendelssohn at that time but consulted with VFF Attorneys between the 27^th of February 2020 until the 10^th of March 2020. He further states that he requested and received copies of the transcripts on the 24^th of February 2020. These were a few days after the award by the Arbitrator and I cannot fault his vigilance to act so quickly subsequent to such award. No explanation is provided why Olivier did not persist with any of these attorneys’ services at that time.

[80.6.2]    Olivier provides no explanation for the lapse of time until the next chapter in the events which transpired on the 5 or 6^th of June 2020 when he allegedly sought a second opinion from Werksmans (a period of more than 3 months that lapsed). No explanation is provided why he did not continue with their services.

[80.8.3]    Similarly after having sought a second opinion at the beginning of June 2020, Olivier states that on the 7^th of September 2020 he contacted another firm of attorneys, Knowles Husain Lindsay Incorporated, for a further opinion. Once again there is a glaring absence of any explanation why he did not continue with their services and for the lapse of a further three months.

[80.6.4]    Another two months lapsed for which no explanation is provided. On the 4^th of November 2020 Olivier appoint his new attorneys, Jacobson & Levy. Again no explanation is provided why Olivier did not proceed with the services of Jacobson & Levy in November 2020.

[80.6.5]    I have already dealt with Olivier’s attempted explanation for providing instructions to his legal team to proceed with an application for review in February 2020 in paragraphs 73.1 and 73.2 above. I find this explanation unconvincing.

[80.6.6] Olivier proceeds in paragraph 47.2 and explain that he was only able to secure a legal team to defend the main application, and to prepare the counter-application over the long weekend in August 2021 and first consulted with them on the 11^th of August 2021.

[80.7]            It is a trite principle in respect of showing good cause that it is expected of a party to provide a full and satisfactory explanation of the delay.

[80.8]            In Chetty v Law Society, Transvaal[35] Appellate Justice Miller had occasion to deal with the expression “sufficient cause” or “good cause” :

“The appellant's claim for rescission of the judgment confirming the rule nisi cannot be brought under Rule 31 (2) (b) or Rule 42 (1), but must be considered in terms of the common law, which empowers the Court to rescind a judgment obtained on default of appearance, provided sufficient cause therefor has been shown. (See De Wet and Others v Western Bank Ltd  1979 (2) SA 1031 (A) at 1042 and Childerly Estate A Stores v Standard Bank of SA Ltd  1924 OPD 163.) The term "sufficient cause" (or "good cause") defies precise or comprehensive definition, for many and various factors require to be considered. (See Cairn's Executors v Gaarn  1912 AD 181 at 186 per INNES JA.) But it is clear that in principle and in the long-standing practice of our Courts two essential elements of "sufficient cause" for rescission of a judgment by default are

(i)            that the party seeking relief must present a reasonable and acceptable explanation for his default; and

(ii)           that on the merits such party has a bona fide defence which, prima facie, carries some prospect of success. (De Wet's C case supra at 1042; PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith NO v Brummer NO and Another; Smith NO v Brummer 1954 (3) SA 352 (O) at 357 - 8.)

It is not sufficient if only one of these two requirements is met; for obvious reasons a party showing no prospect of success on the merits will fail in an application for rescission of a default judgment against him, no matter how reasonable and convincing the explanation of his default. An ordered judicial process would be negated if, on the other hand, a party who could offer no explanation of his default other than his disdain of the Rules was nevertheless permitted to have a E judgment against him rescinded on the ground that he had reasonable prospects of success on the merits. “

(my emphasis)

[80.9]            I am of the opinion that the same principle is to be applied in respect of good cause in the present case. It has been held that an explanation must be furnished of the default, sufficiently full to enable the Court to understand how it really came about, and to assess the party’s conduct and motives.[36]

[80.10]          A full and reasonable explanation which covers the entire period of delay must be provided. [37]

[80.10.1] In Ingosstrakh v Global Aviation Investments (Pty) Ltd[38] the Supreme Court of Appeal held that:

“[21] Rule 27 of the Uniform Rules deals with the extension of time, removal of bar and condonation. In terms of rule 27(3) the court may, on good cause shown, condone any non-compliance with the rules. Thus, in order to succeed in this regard, Ingosstrakh would be expected to show good cause why condonation should be granted for its failure to deliver its plea. Generally, the concept of 'good cause' entails a consideration of the following factors: a reasonable and acceptable explanation for the default; a demonstration that a party is acting bona fide; and that such party has a bona fide defence which prima facie has some prospect of success. Good cause requires a full explanation for the default so that the court may assess the explanation. I consider each of the above requisites, in turn.”

(my emphasis)

[80.10.2]  The Constitutional Court also phrased it as follows in the Van Wyk v Unitas Hospital[39]:

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay and what is more, the explanation given must be reasonable.” [40]

[80.10.3]  In Special Investigating Unit and Another v Engineered Systems Solutions (Pty) Ltd[41]the Supreme Court of Appeal summarised the present test to be applied as follows:

“[29] The reasonableness of the delay is assessed by considering the explanation for the delay, which must cover the entire period of the delay. ‘Where the delay can be explained and justified, then it is reasonable, and the merits of the review can be considered . . . But . . . where there is no explanation for the delay, the delay will necessarily be unreasonable’.[18]

[30] Where the delay is found to be unreasonable, there must be a basis for a court to exercise its broad discretion to overlook it. This must be gathered from the available facts.[19] In this evaluation a number of factors must be taken into account. The first ‘is potential prejudice to affected parties as well as the possible consequences of setting aside the impugned decision. The potential prejudice to affected parties and the consequences of declaring conduct unlawful may in certain circumstances be ameliorated by [the Court]’s power to grant a just and equitable remedy and this ought to be taken into account’.[20] The second factor to be considered is the nature of the impugned decision. This entails ‘a consideration of the merits of the legal challenge against that decision’.[21] Navsa JA in South African National Roads Agency Ltd v City of Cape Town[22] highlighted the point that the merits of the impugned decision are a critical factor in determining whether it is in the interests of justice to condone the delay. That ‘would have to include a consideration of whether the non-compliance with statutory prescripts was egregious’.[23] A third factor to be considered is the conduct of an applicant.’ 

 

[80.11]          Applying these principles it is evident that Mr Olivier and Welbeplan Boerdery have dismally failed to provide a reasonable explanation that constitutes an essential element of good cause to condone the delay for the bringing of the review application. As indicated there are various periods of time for which no explanation is offered. It is clear that Welbeplan Boerdery and Olivier adopted an indifferent attitude to the award that adversely effected their rights. The same principles as enunciated in paragraphs and 70 and 71 above are again applicable. Welbeplan Boerdery and Mr Olivier unreasonably delayed from the end of February 2020, being the same month wherein they received knowledge of the award. In the premises they did not show good cause to extent the six weeks period as provided for in terms of Section 38 of the Arbitration Act. That should be the end of the review application.

[80.12]          Insofar as I may be wrong and insofar as I need to decide whether there is any basis for me to exercise my broad discretion to overlook the unreasonable delay, this must be gathered from the available facts. I am satisfied that in the present matter there are no facts present to justify that I exercise my broad discretion to overlook it.

[80.12.1]  Firstly, having regard to the history of the litigation between the parties and in particular Welbeplan Boerdery and Olivier’s conduct in the litigation, and having regard to the remarks already made above in respect of the present application for postponement as well as the remarks that were made by the arbitrator in dismissing the second application for postponement that served before him, with which remarks I agree, I am of the view that the late filing of the review application was a mere continuance of their mala fide actions to frustrate Kaap Agri in reaching finality of the main application and in reaching finality of the litigation in general. These actions are a direct reflection on the bona fides of Welbeplan Boerdery and Olivier, or more in particular their lack thereof. In the premises their conduct is a relevant factor which I must consider.

` [80.12.2]           It was contended that Welbeplan Boerdery and Olivier did not receive reasonable notice of the arbitration as was required in terms of Section 15(2) of the Arbitration Act. This argument is premised on the basis that Welbeplan Boerdery and Olivier only received notice of the arbitration on the 3^rd of January 2020. I do not agree. This aspect was fully argued and duly adjudicated upon by the Arbitrator in the application for postponement that served before him. I am satisfied that there is no substance in this point. If the version of Welbeplan Boerdery and Olivier is to be accepted they would have been fully prepared in all respects to continue with the arbitration in November 2019. De facto we know that the arbitration did not proceed on that date but was set down for hearing for the 3^rd of February 2020. When Welbeplan Boerdery and Olivier, therefore learned on the 3^rd of January 2020 (accepting for a moment their version as correct) that the arbitration would only proceed on the 3^rd of February 2020, they would have been fully prepared in their preparations of the arbitration that should have been proceeded with in November 2019 already. More than a month’s notice merely to refresh their preparation would surely constitute, “reasonable notice” as contemplated in terms of Section 15(2) of the Act.

[80.12.3]  Welbeplan Boerdery and Olivier contend that the Arbitrator incorrectly applied the provisions of Rule 39(1) of the Uniform Rules of Court which provides “If, when a trial is called, the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim insofar as the burden of proof lies upon him and judgement shall be given accordingly, insofar as he has discharged such burden. Provided that where the claim is for a debt or liquidated demand, no evidence shall be necessary unless the Court otherwise orders”.

[80.12.4   Although it may be that the parties did not formally agree that the provisions of the Uniform Rules of Court be applied by the Arbitrator, what is evident is that Welbeplan Boerdery and Olivier were well aware that such rules were indeed applied, and they had no objection thereto during the arbitration proceedings. Kaap Agri correctly pointed out in paragraph 22.2 of the Replying Affidavit filed in the main application that in a letter which was written by Olivier to the Arbitrator on the 26^th of February 2019, which letter was annexed as Annexure “REP2” to the Replying Affidavit filed in the main application, Olivier confirmed to the Arbitrator that the Uniform Rules apply. They cannot blow hot and cold at the same time.

[80.12.5]  It is only now that the shoe pinched that Welbeplan Boerdery and Olivier suddenly have an objection to the application of the rules. I agree with the submission of Mr van der Merwe that in utilising the Uniform Rules as a yard stick, the honourable Arbitrator would had at the very least be utilising rules which were inherently fair and reasonable to both parties.

[80.12.6]  It is important to note that this aspect was duly considered by the arbitrator prior to making his order in favour of Kaap Agri. I also agree with Mr Van Der Merwe that in terms of our common law no evidence in any event had to be presented by Kaap Agri to the arbitrator in respect of the liquidated quantum.

[80.12.7]  An arbitration is, of course, a quasi-judicial proceeding.[42]. The precepts which govern the procedure in judicial proceedings apply to an arbitration.[43]

[80.12.8]  In Baliso v FirstRand Bank Ltd t/a Wesbank[44] the Supreme Court of Appeal in paragraph 12 inter alia held as follows:

“[12]     In terms of our civil procedure, default judgement for a debt or liquidated amount is granted on an acceptance of the allegations as set out in the summons without any evidence. Where the claim is not for a debt or liquidated amount, the courts may, after hearing evidence, grant judgement. This is usually only evidence on the amount of unliquidated damages. The reason for not hearing evidence on the other factual allegations made in the summons or particulars of claim is that, because the claim is not opposed, it may be accepted that those allegations are admitted or not disputed.”

(my emphasis)

[80.12.9]  In the present matter, the claim as it appeared before the learned Arbitrator was for a debt or a liquidated amount. After the application for the postponement was dismissed, the legal representatives of Welbeplan Boerdery and Olivier withdrew and neither Olivier or any other representative of Welbeplan Boerdery were present at the arbitration proceedings. They were in wilful default. Pursuant to Section 15(2) of the Arbitration Act the arbitrator may rightfully proceed in their absence, as he did. At that time there was no longer any opposition from either Welbeplan or Olivier and there could be no objection for the Arbitrator who adjudicated upon the matter on a default basis not requiring any evidence in respect of the amount claimed.

[80.12.10]            Mr Cilliers for Welbeplan Boerdery and Olivier argued with reference to Wilton v Gatonby and Another[45] that the arbitrator was not allowed, even in wilful default of Welbeplan and Olivier, merely to accept the certificate as prima facie evidence of the debt or liquidated amount claimed.

[80.12.11]            In that matter Levy AJ stated as follows[46]:

“Section 15(2) of the Act empowers the arbitration tribunal to proceed in the absence of a party who fails to attend the proceedings after receiving reasonable notice of the time when and place where the arbitration will be held without showing good and sufficient cause for such failure. The explanation offered by first respondent's attorneys for his decision not to attend the tribunal is without any substance whatsoever and probably motivated by a desire to defeat the arbitration and does not constitute good or sufficient cause for his decision to remain absent.

While authorising the arbitration tribunal to proceed in the absence of a party in wilful default, the Act lays down no requirements for the manner in which such proceedings may be continued. Nevertheless the language of the Act suggests strongly that the tribunal should not simply issue an award as though entering judgment under the Rules of Court but rather should proceed to hear such evidence as may be tendered. There is no indication in the submission to arbitration or in the various procedural matters agreed upon between the parties for the better conduct of the arbitration that any of the Rules of the Supreme Court would be of application or would govern their proceedings. Short of an express agreement between the parties, any award resolving the dispute between the parties should be made only on the available evidence. The arbitrator's decision to hear no evidence at all resulted in an award being made simply as a procedural consequence of respondent's wilful absence from the arbitration and without the arbitrator bringing his mind to bear upon the issues between the parties as defined in the pleadings. In Arbitration in South Africa by Butler and Finsen it is said at 159-60 that:

'Where the defendant is in default of attending the hearing and the arbitrator decides to proceed, he will have to receive sufficient evidence and argument, whether oral or written, from the claimant and possibly other witnesses in support of the claimant's claim before he will be entitled to make an award in the claimant's favour.'

[80.12.12]            The present matter is clearly to be distinguished from the Wilton matter. In the Wilton matter the court found that the Rules of Court did not apply to the arbitration proceedings. As I have indicated above it was clear that all parties accepted that the Rules of court regulated the Arbitration proceedings. It is also apparent that this aspect was duly considered by the arbitrator prior to making the award. Secondly in the present matter evidence was indeed presented to the arbitrator in respect of the amount claimed by way of the affidavit of Beukes and Beukes who gave evidence himself and that the arbitrator considered the evidence. Kaap Agri did not merely rely upon the certificate presented.

[80.12.13]            The affidavit that was prepared and provided to the Arbitrator is annexed as Annexure “DWBA4” to the Answering Affidavit in opposition to the counter-application. It is noteworthy that in paragraphs 6 and 7 of that affidavit Mr Beukes stated as follows:

“6.        I have been advised that the claim of Kaap Agri is not a claim for damages, but a claim for a liquidated amount, and that there is in law, no requirement upon Kaap Agri to actually lead evidence on the entire matter.

7.         Nonetheless, Kaap Agri was advised to, ex cautela abundanti, prepare this affidavit, to serve as evidence before the Arbitrator, in order to deal with the issues which were in dispute on the pleadings”.

[80.12.14]           In paragraphs 20 – 30 of that affidavit Mr Beukes elaborately dealt with the quantification of the claim and then in paragraph 30 thereof stated as follows:

“To the extent necessary this affidavit is therefore also an affidavit and a certificate to certify under the applicable legislation that the outstanding balance claimed by Kaap Agri is correct ….”

[80.12.15] It has been held that an arbitrator may deviate from rules of evidence as observed in a court of law provided in doing so he does not disregard the substance of justice.[47] I am satisfied that the arbitrator did not exceed this boundary in the present matter.

[80.12.16] It has been held that in cases where the arbitrator admits that which is not evidence, even where he knows it is inadmissible at law, the court will in its discretion refuse to set aside the arbitrator’s award if his decision did not amount to misconduct but a mere mistake.[48]

[80.12.17] I am satisfied that the Arbitrator was duly entitled to deal with the liquidated claim on the basis that it did and that there is no merit in this ground of review raised by the Respondents.

[80.12.18]           Welbeplan and Olivier also claimed that they had specifically placed in dispute the locus standi of Kaap Agri to institute the initial claim. I do not agree with this submission. As I have already indicated above, on a proper interpretation of the settlement agreement that was entered into between the parties and which settlement agreement formed the subject of the Rabie consent order, it was the pleadings within the Cape High Court action that was referred to arbitration. At no stage in these pleadings did either Welbeplan Boerdery or Olivier raise a dispute in respect of the locus standi of Kaap Agri. This issue plainly did not serve before the Arbitrator. Welbeplan Boerdery and Olivier had more than sufficient time to amend their pleadings whether by way of a substantive amendment or whether by way of a consequential amendment (after Kaap Agri amended their particulars of claim) to bring an issue of locus standi before the Arbitrator.

[80.12.19]           Welbeplan Boerdery and Olivier also claim that they had objected to an amendment of Kaap Agri’s particulars of claim which should have been argued. Once again I do not agree. This aspect is comprehensively dealt with in the Answering Affidavit filed in response to the counter-application by Kaap Agri, after which affidavit no Replying Affidavit was filed. In the Answering Affidavit Kaap Agri states as follows:

[80.12.19.1]    Kaap Agri utilised Rule 28 and followed the time periods within the said rule to affect an amendment;

[80.12.19.2]    No objection was filed within the time periods allowed for objections in terms of Rule 28;

[80.12.19.3]    Consequently the amendment was affected by the delivery of the amended pages.

[80.12.19.4]   Only after the amendment had been affected, an objection arrived. The objection was accordingly completely out of time.

[80.12.20]            Although I have not been provided with the relevant notices of amendment and/or objection, the allegations of Kaap Agri are not disputed and I must accept it as correct. As I have already indicated above, in a letter which was written by Olivier to the Arbitrator which letter was annexed as Annexure “REP2” to the Replying Affidavit filed in the main application, Olivier confirmed to the Arbitrator that the Uniform Rules apply, with specific reference to Kaap Agri’s application for amendment.

[80.12.21]      I am satisfied that there is not a reasonable prospects of success on any of the grounds raised by Welbeplan Boerdery and Olivier.

[80.12.22]       In the matter of State Information Technology Agency SOC Ltd v ELCV Information Services (Pty) Ltd & Another[49] the Supreme Court of Appeal again reiterated the position with respect of the reviewing of Arbitrator’s awards as follows:

“Whether the arbitrator came to an incorrect conclusion is irrelevant in review applications. It would appear that the appellant conflates appeals and reviews thus blurring the difference. A review of an arbitrator’s award does not deal with the merits, but the manner in which a decision was reached. It does not concern whether the decision was right or wrong. An appeal, on the other hand, amounts to a rehearing of the matter and the Appeal Tribunal is restricted to the record of proceedings before it, unless the status provides otherwise”.

[80.12.23]      In the matter of Khum MK Investments & BIE Joint Venture (Pty) Ltd v Eskom Holdings SOC and 1 Other case no. 30169 of 2018 High Court of South Africa, Gauteng Local Division, Johannesburg from par. 34 again reaffirmed the principles to be applied with a review application of an arbitral award as follows:

“[34]            A finding that an arbitrator committed a factual error leading him to a wrong conclusion is insufficient to render an arbitral award reviewable. Such an error only renders an arbitral award reviewable if it results from failure by the arbitrator to act in terms of his mandate. The word ‘misconduct’ does not extend the bona fide error or fact or law by the arbitrator. It is only where a mistake is so gross or manifest as to evidence misconduct, mala fides or partiality on the part of the arbitrator that it renders the award reviewable.

[35] The court’s disagreement with the arbitrator’s decision on the basis that it is incorrect is irrelevant. The arbitrator’s decision is not reviewable because it is wrong. An arbitrator is allowed to be wrong. The applicant must not only allege that the arbitrator’s decision was legally wrong. It must show that no reasonable arbitrator could have a decision on the material before him”. [50]

[80.12.24]      Welbeplan Boerdery and Olivier’s present counter-application for review does not comply with these tests and hence does not have a reasonable prospect of success.

[80.13]          I am also of the opinion that a postponement will not assist Welbeplan Boerdery and Olivier with the actions they wish to take if the postponement is granted:

[80.13.1]  In respect of the applications to be instituted to set aside the Desai and Rabie orders I am also of the opinion that such applications do not have a reasonable prospect of success. As I have already remarked above, Welbeblan Boerdery and Olivier were represented by their legal representatives at the time Welbeplan Boerdery and Olivier entered into the relevant agreements with Kaap Agri and when the Agreements were made consent orders in the respective courts.

[80.13.2]  Welbeplan Boerdery and Olivier seek the rescission of the order in terms of either rule 42 (1) (a) of the Rules or the common law.

[80.13.3]  It is trite that the court has the power to rescind its orders or judgment in terms of rule 42 (1) (a) and (b), which provides as follows:

“Variation and rescission of orders

(1)        The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary: (a) an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; (b) an order or judgment in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission; (c) an order or judgment granted as the result of a mistake common to the parties. (2) Any party desiring any relief under this rule shall make application therefor upon notice to all parties whose interests may be affected by any variation          sought.

(3) The court shall not make any order rescinding or varying any order or   judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed."

[80.13.4]  The import of rule 42 was explained by the Constitutional Court in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others.[51] To satisfy the requirements of rule 42 (1) (a) of the Rules, the applicant must show the existence of both the requirements that the order or judgment was granted in his or her absence and that it was erroneously granted or sought. However, the court retains the discretion to grant or refuse the rescission to rescind an order having regard to fairness and justice.

[80.13.5] The requirement that the judgment was erroneously granted is generally satisfied when the applicant can show that at the time the order was made, there existed a fact that, had the court a been aware of, it would not have been inclined to grant the order. In the premises accepting Welbeplan Boerdery and Olivier’s ground of rescission as correct, the correct rule for such an application for rescission would in the premises be Rule 42(1).

[80.13.6] However, none of the orders were granted in Welbeplan and Olivier’s absence and hence they would not be able to rely on the provisions of Rule 42(1).

[80.13.7]  In addition, for an applicant to succeed in a rescission application under the common law, he or she is required to prove that there is "sufficient" or "good cause" to warrant rescission. In the Zuma matter (supra), the Constitutional Court restated the two requirements that need to be satisfied under the common law as being the following:

"First, the applicant must furnish a reasonable and satisfactory explanation for its default. Second, it must show that it has a bona fide defence which prima facie carries some prospect of success on the merits. Proof of these requirements is taken as showing that there is sufficient cause for an order to be rescinded. A failure to meet one of them may result in refusal of the request to rescind."

[80.13.8]  Again, both orders were granted in their presence and not by default. In addition, where Welbeplan and Olivier intended using the common law they would again be required to show good cause, which will include an explanation for their delay to bring the applications at such a late stage. For reasons which I have already dealt with above I am not convinced that they would be able to provide a satisfactory reason for such delay.

[80.13.9]  I also believe that the settlement agreement reached between the parties that was subsequently made an order of court in terms of the Rabie consent order clearly constitutes a compromise that were made an order of court by consent between the parties. Van der Merwe, Van Huyssteen, Reyneke en Lubbe in their handbook Contract General Principles[52] describes a compromise as follows:

“Compromise (settlement, transactio) is an agreement whereby a dispute which may or may not involve litigation – characterized by uncertainty as to the existence of terms of a legal relationship, is settled by the parties who agree to regulate their relations in a particular way, often by creating a new set of obligations between them. [53] The purpose of a compromise is to terminate uncertainty and to inconvenience costs and risk inherit in resorting to other methods of resolving disputes.[54]

[80.13.10]            In the matter of Elmarie Slabbert v The Member of the Executive Council for Health and Social Development of Gauteng Provincial Government [55] the Supreme Court of Appeal held inter alia as follows:

“[8]       ... a compromise agreement may also be set aside if the parties to the agreement laboured a common mistake. However, a unilateral mistake on the part of one party that does not flow from a misrepresentation by the other, does not allow for the former part to resile from a consent agreement.” [56]

and further as follows:

“[15]     The compromise agreement thus cannot be set aside on the basis of mutual error if there was no mutual error. The MSC cannot rely on her own mistake to avoid a contract which was in any event initiated by her. This unilateral mistake accordingly did not amount to iustus error. As stated by Christie:

‘However material the mistake, the mistaken party will not be able to escape from the contract if his mistake was due to his own fault. The principle will apply whether his fault lies in not carrying out the reasonable necessary investigations before committing himself to the contract that is, failing to do his homework’.

[16]      The court a quo was correct that the court cannot ignore facts placed before it, but these facts must sustain one of the established grounds on which a compromise agreement can be rescinded. Although a High Court has inherent discretion, it can never exercise it against recognised principles of substantive law. Our constitutional dispensation does not afford courts a carte blanch to ignore substantive law and grant orders couched as being in the ‘interests of justice’. Moreover, certainty and finality are key elements of justice. Parties to a comprise agreement accept an element of risk that their bargain might not be as advantageous to them as litigation might have been. This element of risk is inherent in the very concept of compromise. It, however, does not afford parties the right to go back on the bargain for unilateral mistakes. Settlement agreements have as the underlining foundation the benefit of orderly and effective administration of justice. Courts cannot allow for consent orders to be set aside for reasons not sanctioned by applicable legal principles.

[17]      A court also does not have a discretion to set aside a consent order where there are no grounds for setting aside the underlining agreement of compromise pursuant to which the consent order was made. In Botha this court found as follows (par. 13):

‘In Theron NO. v United Democratic Front (Western Cape Region) & Others 1984 (2) SA 532 (C) at 536 G, this court held that a court has a discretion whether or not to grant an application for rescission under rule 42(1). But whereas here, the court’s order recorded the terms of a valid settlement agreement there is no room for it to do so.’[57]

[80.13.11]            These principles are directly applicable to the matter in casu. Clearly this is not a case of common mistake between the parties. If Welbeplan Boerdery and Olivier were mistaken about the locus standi of Kaap Agri the mistake was due to their own fault in not carrying out the reasonable necessary investigations before committing themselves to the settlement agreement.

[80.13.12]            Another ground raise for their postponement is to supplement the grounds upon which the Respondents rely on the counter-application for the setting aside of the award. For this purpose Welbeplan Boerdery and Olivier attack the amount of the award, that was awarded by the Arbitrator. Although it is contended that the amount of the award, R23 122 831.74 which Kaap Agri contented at the arbitration proceedings was due and owing on the 29^th of January 2020, it is submitted by Welbeplan Boerdery and Olivier that this amount could never have been the indebtedness at that time.

[80.13.13]            I agree with Mr van der Merwe who appeared on behalf of Kaap Agri that any attempt to adduce further evidence is not there for the mere asking.

[80.13.14]            It is trite law that in application proceedings a party cannot take upon itself to simply file further affidavits without first having obtained the leave of the Court to do so. [58] It is only in exceptional circumstances that a fourth set of affidavits will be received.[59] In each case there should be a proper and satisfactory explanation which negatives mala fides or culpable remissness as to why the facts or information have not been put before the Court at an earlier stage [60] and the Court must be satisfied that no prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs.

[80.13.15]            In Nick’s Fishmonger Holdings (Pty) Ltd v Fish Diner in Bryanston CC[61] the Court inter alia mentioned a list of factors which would be considered with such an application. One of the factors listed is the stage which the particular litigation has reached and the general need for finality in judicial proceedings.

[80.13.16]            Within the application for postponement Welbeplan Boerdery and Olivier contend that it appears “at face value” to them that the amount as certified in the certificate of balance was incorrect. Olivier further states that at this stage he can do no more than put up the “rudimentary analysis set out in the affidavit in view thereof that Kaap Agri could not have seriously contended that the amount of certified of balance was the amount owed by Welbeplan Boerdery.” Olivier then continues to state that they require the assistance of a “suitable expert to investigate the matter to enable them to present evidence in support of what they suspect to be in obviously incorrect amount”.

[80.13.17]            I agree with Mr Van Der Merwe that the fundamental problem which Welbeplan Boerdery and Olivier will face is that the underlying facts to be introduced as the basis for the alleged rescission application, were facts known to Welbeplan Boerdery and Olivier since the time when the summary judgement proceedings were opposed in the Cape High Court action. They had more than sufficient time to properly investigate the quantum and to make use of the services of any expert which they wished to employ. This they purposely chose not to do.

[80.13.18]            I am of the opinion that Welbeplan Boerdery and Olivier had more than sufficient time to properly investigate the quantum claim by Kaap Agri in the arbitration proceedings. As I have already indicated above, already at the time when Kaap Agri applied for summary judgement in the Cape High Court proceedings, Olivier and Welbeplan Boerdery in their first application for the postponement of such summary judgement proceedings disputed the amount claimed by Kaap Agri and in addition made mention of an investigation to be conducted by their accountant which investigation was supposed to be finalised within a period of 7 weeks.

[80.13.19]            In addition as I have already mentioned that on the 31^st of August 2016 Olivier deposed to a further affidavit in the summary judgement proceedings wherein he again averred that the exact liability of Welbeplan Boerdery to Kaap Agri could only be determined by way of expert evidence to be led at the trial.

[80.13.20]            At no stage within the proceedings in the Cape High Court action nor in the proceedings before the Arbitrator, did either Welbeplan Boerdery or Olivier took any steps to appoint an expert to investigate and determine the alleged correct amount that was owed by Welbeplan Boerdery to Kaap Agri.

[80.13.21]       For the reasons as fully set out above I am not satisfied that Welbeplan Boerdery and Olivier will be able to provide a proper and satisfactory explanation which negatives mala fides or culpable remissness as to why the facts or information have not been put before the Court at an earlier stage.

[80.13.22]       Having regard to the aforementioned I am of the opinion that there is no prospects in any application by Welbeplan Boerdery and Olivier in future to convince a Court that their counter-application for review be supplemented.

[80.13.23]       I wish to mention that during argument when I posed to Mr Cilliers the potential problem that on the merits Welbeplan Boerdery and Olivier were doomed due to the long lapse of time before instituting the application for review he argued with reference to the Milton case supra that even if the counter application was doomed Welbeplan Boerdery and Olivier could still validly oppose the main application by way of raising the grounds of review as their defences in the opposing affidavit. When I enquired from Mr Cilliers whether the answering affidavit was complete in that respect Mr Cilliers, however, conceded that the answering affidavit was not complete and needed to be supplemented and that for this purpose Welbeplan Boerdery and Olivier still need the postponement. In order to supplement the answering affidavit Welbeplan Boerdery and Olivier will again incur the same obstacles discussed in paragraph 78.13.13 to 78.13.22 above.

[81]      In the premises I am satisfied that the application for postponement be dismissed with costs.

[82]      For the reasons aforementioned Iam also satisfied that

[82.1]            The counter application launched by Welbeplan Boerdery and Olivier be dismissed and they are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of the counter application; and

[82.2]            The award made by the Arbitrator in the arbitration proceedings between Kaap Agri and Welbeplan Boerdery and Olivier, attached as annexure “D” to the founding affidavit in the main application, be made an order of court and Welbeplan Boerdery and Olivier are ordered to pay costs of the main application, jointly and severally, the one paying the other to be absolved,;

 

P VERMEULEN

ACTING JUDGE OF THE HIGH COURT

 

This judgment by the judge whose name is reflected herein is delivered and submitted electronically to the parties/their legal representatives by e-mail. This judgment is further uploaded to the electronic file on this matter on caselines by the Judge or his/her secretary. The date of the judgment is deemed to be 17 February 2023.02.24

APPEARENCES

 

Counsel for the Applicant:                           Adv. M P Van der Merwe SC

Instructed by :                                              Kellerman Joubert Inc c/o Macrobert Inc

Counsel for the Respondents:                      Adv.PG Cilliers SC

Adv HP Pretorius

Instructed by                                                Van Hulsteyns Attorneys c/o Lee Attorneys

Date heard:                                                  21 October 2022

Date of Judgment:                                        17 February 2023

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