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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

REPORTABLE:  NO

OF INTEREST TO OTHER JUDGES: NO

REVISED

DATE 28/4/2021

 

CASE NO.: 35962/2020

 

In the matter between:

 

CHONGQING QINGXING INDUSTRY SA (PTY) LTD                         Applicant

 

and

 

MINGYING YE                                                                                       First Respondent

 

PROSPERITY PLASTIC PRODUCTS (PTY) LTD                                Second Respondent

 

ALL OCCUPIERS OF 41 BIRD ROAD  and

58 DUNCAN ROAD, LILIANTON, BOKSBURG                                  Third Respondent

 

LINE METALS (PTY) LTD                                                                     Fourth Respondent

 

JUDGMENT

 

ROBINSON AJ:

[1]          In this matter I raised an issue with Mr Van Tonder who appears for the applicant concerning the absence of affidavits in this application.  The founding affidavit is stated to be sworn to at ChongQing on 3 November 2020.  There is however no indication on the affidavit itself that the oath was taken.

[2]          A document appears in Chinese, which is followed by what is stated to be a notarial certificate and the word ‘Translation’ thereunder.  What appears from this translation is that an applicant, Luo Jiayun, came to “our notary public office and signed the foregoing FOUNDING AFFIDAVIT on November 3, 2020 before me, the notary public’.  The details of the notary, He Wei, of the Chonqing Notary Public Office, the Peoples Republic of China, appear on the document. What does not appear from the document is that the oath was taken or that it was administered by a person entitled in China to do so.

[3]          The absence of an oath on an affidavit is not a mere technicality.  It is indeed the oath that renders a statement admissible as evidence.  See Wingaardt and Others v Grobler and Another 2010 (6) SA 148 ECG at paragraph [9].

[4]          Section 10 of the Justice of the Peace and Commission of Oaths Act 16 of 1963 empowers the Minister of Justice to make regulations which govern the prescribed form and manner for the administration of an oath. Regulation 4(1) is the relevant regulation. The founding affidavit was, on the face of it, not deposed to in accordance with this regulation. Rule 6(1) has therefore been breached and was not complied with.

[5]          Mr Van Tonder asked that the matter be postponed to enable the applicant to ascertain whether the oath had been administered by a person enabled to do so.

[6]          To this, Ms Jacobs of the respondents, submitted that the absence of the oath was a defect which could not be cured.  For this she relied on the decision in Absa Bank Limited  v  Botha N.O. and others 2013 (5) SA 563 GNP.  I do not read that judgment to indicate that the error cannot be rectified. To the contrary, the judgment contemplates that further verifying affidavits might have cured the problem (see [12] of this judgment).

[7]          In this matter Mr Van Tonder could give no indication about whether or when the applicant might be in a position to provide information about whether the oath was taken. No grounds were advanced to justify the inconvenience that this situation must inevitably caused the respondents.

[8]          In the circumstances the applicant has not placed any evidence before court as contemplated in rule 6(1). The application is therefore dismissed with costs.

 

 

R M ROBINSON

Acting Judge of the High

Court, Gauteng Local

Division, Johannesburg

 

 

DATES OF HEARING:                                16 April 2021

DATE OF JUDGMENT:     

 

APPEARANCES:

 

COUNSEL FOR APPLICANT:                    Mr van Tonder

INSTRUCTED BY:                                      Burrows Attorneys

 

COUNSEL FOR RESPONDENT:              Adv Jacobs

INSTRUCTED BY:                                     Edward Sithole & Associates Inc

 

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