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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 70/07

In the matter between:

WILLIAM LUCKY GARE ….........................................................APPLICANT

and

ROYAL BAFOKENG ECONOMIC BOARD ….........................RESPONDENT

DATE OF HEARING : 08 DECEMBER 2011

DATE OF JUDGMENT : 22 DECEMBER 2011

FOR THE APPLICANT : ATTY T PILLAY

FOR THE RESPONDENT : ADV SWART

JUDGMENT

LANDMAN J:

Introduction

[1] This is an application for rescission of a judgment granted by this court by default on 10 February 2009. The applicant is William Lucky Gare, the plaintiff in the action, to whom I shall refer as “the plaintiff”. The respondent is the Royal Bafokeng Economic Board, which is the first defendant in the action. The other defendants are not cited as respondents but I accept that they are intended to be respondents. The other defendants have the same attorney. No objection was raised by Mr Swart, counsel for the first respondent. I shall refer to the respondent/s as “the defendants”.

Good cause shown

[2] The plaintiff is obliged to show “good cause” for the rescission of the judgment. Smalberger J (as he then was) in HDS Construction (Pty) Ltd v Wait 1979 (2) SA 298 (E) at 300 H – 301 A said:

“In determining whether or not good cause has been shown, and more particularly in the present matter, whether the defendant has given a reasonable explanation for his default, the Court is given a wide discretion in terms of Rule 31 (2) (b). When dealing with words such as ‘good cause’ and ‘sufficient cause’ in other Rules and enactments the Appellate Division has refrained from attempting an exhaustive definition of their meaning in order not to abridge or fetter in any way the wide discretion implied by these words (Cairn's Executors v Gaarn 1912 AD 181 at 186; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 352 - 3). The Court's discretion must be exercised after a proper consideration of all the relevant circumstances.”

The facts

[3] The common cause facts (save where otherwise indicated) are the following:

(a) The plaintiff instituted action against the defendants. The plaintiff’s attorneys Pillay and Shabangu Inc were located in Pretoria. A correspondent was appointed in Mafikeng.

(b) The defendants sought discovery of plaintiff’s documents. A discovery affidavit was not forthcoming. The defendants sought an order compelling disclosure.

(c) Mr Pillay wrote to his Mafikeng correspondent on 28 August 2008 requesting them to deliver a discovery affidavit, signed by plaintiff. This was the last time Mr Pillay was in contact with his correspondent.

(d) On 4 September 2008 an order was granted compelling discovery

(e) The discovery affidavit was filed on 5 September 2008.

(f) The defendant sought inspection of the documents and served a notice in terms of Rule 35(6) on the Mafikeng correspondent. Mr Pillay received this notice. On 7 October 2008 he wrote to the Defendants’ attorneys noting the costs of providing copies.

(g) On 10 December 2008 the defendants delivered a Rule 30A notice on plaintiff’s correspondent. Mr Pillay received this notice. The plaintiff did not respond to this notice.

(h) The Rule 30A application was served on the plaintiff’s correspondent on 30 January 2009.

(i) Pillay and Shabangu Inc closed down in January 2009. Mr Pillay took over the file and moved to another office.

(j) There was no appearance for the plaintiff when the application was heard. On 12 February 2009 an order striking out the defence was granted with costs.

(k) The plaintiff’s correspondent withdrew on 12 February 2009 and provided Pillay and Shabangu Inc’s last known address as Burlan Offices, 41 Bureau Lane, Pretoria. The firm allegedly owed its Mafikeng correspondent money.

(l) A writ of execution was served upon plaintiff in 2011. This caused the plaintiff to seek out Mr Pillay through the offices of the Law Society. This application for rescission was processed by Mr Pillay.

Why was an inspection not tendered and the application not opposed?

[4] On the plaintiff’s version, his attorney, Mr Pillay, should be able to explain both why an inspection of the documents was not tendered and why the application was not opposed. The plaintiff puts up the facts in the founding affidavit and Mr Pillay confirms them. Mr Pillay says that Pillay and Shabangu Attorneys Inc closed the firm in January 2009 without notifying the plaintiff. Mr Pillay kept the file.

[5] Mr Pillay, who appeared on behalf of the plaintiff at the rescission hearing, submitted a number of reasons for the failure to oppose the Rule 30A application:

(a) The withdrawal of plaintiff’s correspondent at Mafikeng.

This cannot be the reason for not tendering the documents and for not opposing the application. The correspondent only withdrew after the order had been made on 12 February 2009. In a later letter to the defendants’ attorneys, dated 12 July 2010, the correspondent says they were unable to contact Pillay and Shabangu Inc and were unable to obtain instructions. This also means that Pillay and Shabangu Inc or Mr Pillay did not contact them. The letter of 12 July is attached to the answering affidavit. The plaintiff did not file a replying affidavit. Mr Pillay therefore does not deal with this.

(b) The breakdown between the plaintiff and his boxing manager.

This does not explain why no appearance was made to oppose the application in terms of Rule 30A. The breakdown occurred at some unspecified date after August 2008. It is alleged that the cause of the default was the manager’s wanton and malicious failure in advising the plaintiff on the progress of the matter.

(c) The plaintiff says that Mr Pillay addressed various requests to the manager for further instructions.

These requests have not been disclosed. As the blame for the absence of instructions is placed on the plaintiff’s erstwhile manager the communications should have been disclosed. The plaintiff was challenged to do so. But did not take up the challenge. This tends to indicate that the allegations cannot be substantiated.

(d) Filing and service of documents at entities and addresses that no longer exist.

All the relevant documents were filed with the correspondent.

(e) Defendants’ non–compliance with the rules.

I am not able to ascertain in what way the defendants failed to comply with the rules unless Mr Pillay is referring to the application in terms of Rule 30A. But even so, this does not explain the failure to comply with the request to inspect the documents or the failure to oppose the application.

(f) The closure of the law firm was not brought to plaintiff’s attention.

This is perhaps the strongest point advanced. But it is unclear whether Mr Pillay means to submit that the plaintiff himself was not informed about the closure of Pillay and Shabangu Inc. The plaintiff relied on his manager and Mr Pillay allegedly communicated with the manager although none of the communications have been produced.

[6] There are other factors which are troublesome. The plaintiff does not even tender inspection of the documents. His failure to do so is pointed out to him by the defendants’ attorneys in the answering affidavit but no replying affidavit is filed and still no tender is made.

[7] The last contact the plaintiff had with his attorneys in Pretoria was on 9 August 2009. His next contact was some 4 years later after he received the writ. This indicates a lack of interest in the action. The acrimonious end to his relationship with his manager would surely have peaked his interest to discover what was happening to his claim.

[8] Plaintiff did not disclose his contact details to Mr Pillay after they had changed. More particularly he did not do so after he and his manager had an acrimonious falling out.

[9] The deponent to the answering affidavit has made several serious allegations as to the plaintiff’s intention to pursue the action. There has been no reply to these allegations. Mr Pillay submitted that the defendants made a tender as regards one of plaintiff’s claims. This, he submits, proves that the plaintiff has a good claim and that he would not abandon his action. This averment does not appear in the founding affidavit.

[10] I need not decide whether or not the defendants were entitled to rely on Rule 30A as I am prepared to rescind the order and the consequent orders. But I should point out that Epstein AJ had an opportunity consider this question in the matter of ABSA Bank Ltd v The Farm Klippan 490 CC and Eikenhof Plastics Bottling Company (Pty) Ltd and Others v BOE Bank Ltd (formerly known as NBS Boland Bank Ltd) 2000 (2) SA 211 (W) upon which Mr Pillay relies. The learned judge does not state that Rule 30A may not be used where another rule provides a specific remedy. The decision is to the effect, as the passage cited below shows, that a litigant need not also comply with Rule 30A.

Epstein AJ says at 214F to 215B:

"However, now that Rule 30A is a self-contained and independent Rule, with some variation in the wording of its predecessor, the question is whether this new Rule deserves a different interpretation to that given to Rule 30(5) in its relationship to those Rules which provide a specific sanction for non-compliance. In my view, it does not. The same considerations which applied to Rule 30(5) are apposite in regard to Rule 30A. The provisions of Rule 30A, on the one hand, and those Rules which provide a specific remedy for non-compliance, on the other, remain conflicting or contradictory. The result must be that the general yields to the special. If this general Rule, that is Rule 30A, derogated from the Rules which contain a specific remedy (which I will henceforth term ‘the specific remedy Rules), it would only serve to curtail and frustrate the expeditious completion of litigation. The effect would be to afford a party an extra ten court days (in essence two weeks) to comply with the Rules or to respond to a notice or request. A further effect would be to exacerbate the already high cost of litigation. Rule 30A has an important place in the Rules, in that, as I have stated, it provides a remedy where none exists elsewhere. However, it could not have been intended by the drafters of Rule 30A to jettison the existing and effective remedies provided in the specific remedy Rules. If it was so intended, it would render such remedies nugatory. The remedies in the specific remedy Rules have always been effective and there is no reason to denude them of their efficacy. I, therefore, find that an application may be made in terms of those rules which provide a specific remedy for failure to comply therewith without the applicant first having to give notice in terms of Rule 30A or to follow the provisions thereof."

[12] But Mr Pillay has not been frank with this court. I am unable to understand the true reason for the plaintiff’s failure to allow an inspection of the documents and his failure to oppose the rule 30A application. The plaintiff has been lax in not maintaining contact with his attorney. Part of the blame lies at the door of his manager and part lies at the door of his attorney. But the plaintiff’s conduct did not cause the order in terms of Rule 30A to be granted.

[13] A litigant cannot always escape the effects of his attorneys’ negligent handling of a matter. But here the plaintiff may well be in the same position as this court is in. The plaintiff may be trying to understand why no action was taken at the relevant time. The failure to tender inspection cannot simply be laid at plaintiff’s door. He is a boxer and he relies upon Mr Pillay. The plaintiff would probably not know that his attorney must candidly explain what went wrong. The defendants do not allege that they will suffer irreversible prejudice if the judgment is set aside and the litigation resumed. I will exercise my discretion in favour of the plaintiff.

[14] As far as costs are concerned the defendants’ opposition to the application was reasonable. It is only fit that the defendants be awarded their costs of opposition. The circumstances indicate that the plaintiff’s attorney should pay the defendants’ costs de bonis propriis.

[15] In the premises I make the following order:

(1) Condonation for the late filing of this application is granted.

(2) The order granted on 12 February 2009 is rescinded and the applicant is granted 10 days from the date of this order to file an answering affidavit.

(3) The taxed bill of costs and any actions taken pursuant to such bill of costs, including any execution process is suspended with immediate effect.

(4) Costs of the application in terms of Rule 30A are reserved for decision by the court which will hear the application or for the trial court should the application not proceed.

(5) Mr Thesigan Pillay is to pay the respondents’ costs incurred in opposing the application for rescission de bonis propriis.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE APPLICANT : LABUSCHAGNE ATTORNEYS

FOR THE RESPONDENTS : KGOMO MOKHETLE & TLOU

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