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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: UM 47/2019

In the matter between:-

JOF SUPERMARKET (PTY) t/a SPAR MAHIKENG                       Applicant

and

PRIMECO MEAT WHOLESALE (PTY) LTD                                    1st Respondent

H C ACKERMAN IN HIS CAPACITY AS

SHERIFF OF THE MAGISTRATE’S COURT

FOR THE DISTRICT OF MAHIKENG                                               2nd Respondent

JUDGMENT

LAUBSCHER AJ

INTRODUCTION

[1]      This matter came before this Court as an urgent application in terms of which the Applicant requested interim relief as set out in the notice of motion, which comprised of two parts, i.e. Section A - the interim relief, and Section B – relief of a permanent nature to be adjudicated upon by the undermentioned Magistrates Court. The interim relief which the Applicant requested can be summarised as follows:

1.1        Firstly, a prayer for condonation in terms of the provisions of Rules of 6 (12).

1.2        Secondly, that a warrant of execution issued under Case number 106/2018 in the Magistrate Court for the District of Mahikeng, held at Mmabatho, be suspended pending the outcome of Section B[1] of the notice of motion, which is to be adjudicated upon by the aforementioned Magistrates Court.

1.3       The third prayer in the notice of motion pertains to the cancellation of a sale of execution which were scheduled for 3  of April 2019 at 10h00.

1.4       The fourth prayer in the notice of motion requests that the second and third prayer in the notice of motion be operative  with    immediate    effect,    pending    the  outcome   of   the aforementioned application to the Magistrates Court as per Section B, for the rescission of the default summary judgment which led to the execution steps as referred to in the second  and third prayers of the notice of motion.

1.5       The Applicant also, in prayer five of the notice of motion, requests that the costs of this application be costs in the rescission application referred to in Section B of the notice of motion.

[2]              The application was opposed by the First Respondent, firstly on the basis of lacking urgency and secondly on the merits thereof. Mr Wessels appeared on behalf of the Applicant, being Jof Supermarket (Pty) t/a Spar Mahikeng and Mr Smit appeared on behalf of the First Respondent, being Primeco Meat Wholesale (Pty) Ltd. The other parties cited in this application did not oppose, nor appear in this application. It must be mentioned that apart from a short founding affidavit delivered by the Applicant, the parties argued and the Court utilise the founding, answering and replying papers filed by the parties in the Magistrate’s Court application for the rescission of the default summary judgement order, as referred to in Section B of the notice of motion.

RELEVANT BACKGROUND

[3]      The relevant background to the matter is as follows:

3.1        The First Respondent issued a simple summons against the Applicant under Case number 106/2018 in the above referred to Magistrate Court for  the payment   of   the   amount   of   R154 722,37.  The Applicant defended the summons.

3.2       Subsequent to the filing of the notice of intention to defend the action, the First Respondent proceeded to file and launch an application requesting summary judgment against the Applicant. This application was launched in terms of the provisions of rules 14 of the Magistrate’s Court Rules.

3.3      As a result of a comedy of errors which occurred in the offices of the Applicant’s attorney, the summary judgment application was not opposed by the Applicant and the First Respondent obtained summary judgement against the Applicant by default.

3.4      The First Respondent took steps to execute the default judgement, hence the launching of this urgent application.

[4]              In the chain of events which gave rise to the launching of this application it is important to make reference to the following  high-water marks, especially when one considers the chronology of the matter in dealing with the question of urgency.  In this regard the following:

4.1        The first issue that one needs to refer to is the contents of Annexure “JS7” annexed to the founding affidavit. The importance of this annexure is that it contains a comprehensive explanation as to the reasons for the Applicant’s default in not duly defending the summary judgment application.

4.2        This annexure also deals with an important issue in that it informs the First Respondent of “…a number of procedural errors [with the summary judgement application] that will be addressed in due course”. This passage refers to certain procedural errors that are contained in the First Respondent’s application for summary judgment.

4.3       The next document of import is Annexure “JS11” annexed to  the founding affidavit. The import of Annexure “JS11” is the fact that the First Respondent communicates to the Applicant that the signing of an “acknowledgment of debt” and the payment of a first instalment in terms of this acknowledgement of debt by one Mr Jaco Van Wyk Joubert (hereafter “Joubert”)[2] will render the First Respondent amenable to consent to the rescission of the default summary judgment against the Applicant. Mr Wessels submitted that Joubert was not a director of the Applicant nor did he act on behalf of the Applicant. If one has regard to the contents of the acknowledgement of debt this submission is warranted.

4.4     The next important piece of evidence is presented by Annexure “E” to the answering affidavit. Annexure “E” to the answering papers is a comprehensive recordial of the chronology of the matter. It also, importantly so, notify the Applicant of the fact  that an execution sale is scheduled for the 3 April 2019. It again deals with the signing of the acknowledgement of debt by Joubert and more importantly the fact that such acknowledgement of debt has at that stage not been signed by Joubert.

4.5     It is also important to draw attention to the third page of Annexure “E” which records the following: “In light thereof that your client still wants to apply for rescission of the judgment herein, we urge you to contact writer as a matter of extreme urgency please, failing which we have no alternative but to instruct the Sheriff to proceed with the removal and proceed with the sale in execution. We trust that it will not be necessary and look forward to receive your urgent response.”

4.6      Subsequent to this letter being address by the First Respondent to the Applicant, the acknowledgement of debt was still not signed and the First Respondent proceeded with the execution steps.

4.7     The acknowledgement of debt was eventually signed by Joubert at the end of February 2019 and the first two instalments were paid in accordance with the terms of the said acknowledgement of debt.

4.8      On 15 March 2019 the Applicant’s attorney wrote to the First Respondent attorney recording the fact that the acknowledgement of debt has now been signed on 27 February 2019.

4.9      It is therefore clear that the contents of Annexure “E” prompted Joubert to sign the acknowledgement of debt. In this regard reference can be made to the contents of Annexure “JS10” annexed to the founding affidavit. What is important about Annexure “JS10” is the fact that it is therein recorded by the Applicant’s attorney that in view of the   fact that the acknowledgement of debt has now been signed and that the payment of the instalments due have been made, that the execution steps can be suspended and that the consent to the rescission of the default summary judgment can follow.

4.10      The contents of paragraph 7 of Annexure “JS10” is equally important. It informs the First Respondent that the Applicant will have no option but to proceed with an application to suspend  the warrant of execution, as well as an application of rescission of the default summary judgement should the First Respondent not proceed to consent to the rescission of the said default judgment and suspension of the execution steps in this matter.

4.11    Annexure “JS10” stipulated a deadline for a response from the First Respondent. This deadline was 10H00 on  Monday  the 18th of March 2019.

4.12    The deadline passed without any response from the First Respondent. A conversation between the attorneys acting on behalf of the Applicant and First Respondent took place, but no undertaking was provided by the First Respondent not to proceed with the execution steps. i.e. the sale on 3 April 2019.

4.13     This conversation took place on the 20th of March 2019 at which time it became evident and clear to the Applicant that the First Respondent is not going to give the undertaking as requested in paragraph 7 and paragraph 8 of Annexure “JS10” and that the First Respondent is in fact of the intention to proceed with the sale in execution.

4.14     Three court days later the Applicant proceeded to launch the urgent application in the Magistrate’s Court to stay  the execution steps (in terms of Section A of its notice of motion) and to rescind the default summary judgement (in terms of Section B of its notice of motion). The said application was founded by a founding affidavit to which this Court  already made mentioned and it was opposed by means of an answering affidavit attested to on behalf of the First Respondent. A  replying affidavit was also filed. All these processes were conducted in the Magistrate’s Court.

4.15     However, when the matter was set down for hearing in the Magistrate Court on 2 April 2019 the presiding magistrate, for some unfathomable reason decided that he is not willing to adjudicate the application and he proceeded to postpone the matter to 3 April 2019, i.e. the day of the execution sale.

4.16    These actions which transpired in the Magistrate’s Court prompted the Applicant to immediately turn to this Court for the relief as requested in this application. These facts are fully set out in the founding affidavit delivered by the Applicant in this application.

THE ISSUE OF URGENCY

[5]              At the hearing of this application by this Court, the parties firstly addressed the issue of urgency.

[6]              The Court proceeded to adjudicate the issue of urgency in accordance with the principles laid down in inter alia the following matters:

6.1      Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms)  Bpk[3]  wherein the Appellate Division (as  it then was) stated the following: “In my view, in order to persuade the Court that the matter is urgent the Applicant must in the founding affidavit set out sufficient facts to enable the Court to decide whether urgent relief should be granted, in addition to making averments on the urgency the Applicant must set out facts that would support those averments. In dealing with this issue, the Court  will,  of course, consider  the substance of  the affidavit and not the technical requirements. In other words the Court will look at the totality of the evidence set out in the founding affidavit and then from there deduct from a reasonable inference that those facts support the case for urgency.”

6.2     IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another[4] the Court   held  that:   “The  circumstances  that  an applicant avers render a matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course must, in terms of Rule 6(12)(b), be set fourth explicitly in the supporting affidavit.”

6.3     

Eniram (Pty) Ltd v New Woodhome Hotel (Pty) Ltd[5]  wherein the following was stated: “I regard it as desirable that an Applicant seeking to dispense with the ordinary procedure should set out in his affidavit that he regards the matter as one of urgency, and should  refer  explicitly to  the circumstances on which he bases this allegation and the reasons why he claims that he could not be afforded substantial relief at the hearing in due course.” [6](Court’s emphasis)

[7]                   The manner in which the courts have interpreted the provisions of Rule 6(12)(a) and (b) in the past is trite. [7]

[8]                   In this instance it was clear, in the view of the Court, that the Applicant will not be able to “…be afforded substantial relief at the hearing in due course…” and the facts to support this contention on behalf of the Applicant were set out by the Applicant.

[9]              Having applied the above referred to principles which governs the exercise of the Court’s discretion to grant condonation in terms of Rule 6(12) to an applicant, the Court was satisfied that the matter is in fact one of urgency and that the relief as prayed for in prayer 1 of the notice of motion can be extended to the Applicant. The reasons for this  finding being:

9.1    The chronology, as comprehensively referred to above, supported the Applicant’s contention that the matter was in fact urgent.

9.2      The Applicant was bona fide and acted reasonably in believing that once the acknowledgement of debt is signed by Joubert, the First Respondent will not proceed with the execution steps.

9.3     Once it became evident that the First Respondent is not staying the execution steps, the Applicant acted with haste to bring the urgent application firstly before the Magistrate’s Court and when that court acted in the peculiar manner that it did, to this Court. On both axes of bringing the matter before the Magistrate’s Court and bringing this matter before this Court, the Applicant acted with haste.

THE MERITS OF THE MATTER

[10]          Having established urgency in the matter the parties proceeded to deal with the merits of the matter. Mr Smit on behalf of the First Respondent raised the issue of lis alibi pendens. Mr Wessels responded by confirming that the interim relief for which the Applicant is praying in this Court (section A in the urgent application before the Magistrate’s Court as amplified by the papers filed in this Court) has been withdrawn in the Magistrate’s Court. The Court was satisfied that the Applicant was bona fide and accepted Mr Wessels’ submissions in this regard. The Court was accordingly of the view that it should proceed to adjudicate the merits of the matter.

[11]          Mr Wessels argued that on the basis of the facts set out in the founding affidavit (which have been encapsulated in the Court’s reference to the chronology of the matter) the Applicant has a reasonable prospect of success in rescinding the default summary judgement and as such should be granted the interim relief. Mr Wessels addressed the trite requisites for obtaining interim relief.  These requirements are:

11.1      a prima facie right;

11.2      a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

11.3      that the balance of convenience favours the granting of an interim interdict; and

11.4       that the applicant has no other satisfactory remedy.[8]

[12]          Mr. Smit, in turn proceeded to argue that the Applicant has no prospect of success for the rescission of the default summary judgement because by signing the acknowledgement of debt Joubert became a co-principal debtor with the Applicant both jointly and severally liable   for the payment of the judgment debt as obtained in terms of the default summary judgement.  Mr Smit relied on the operation of what  he called the principle of “pre-emption” to find his aforestated  argument.

[13]               In dealing with this argument raised on behalf of the First Respondent this Court must look at who is Joubert and what (if anything) is the effect of the action(s) which he took in this matter on the case now advanced by the Applicant. Joubert is not a director of the Applicant. He is married to the sole director of the Applicant and it is clear from the papers that Joubert was a member of a close corporation by the name of Founad Trading 91 CC, t/a “Jof Hyper Meat”.

[14]               The aforementioned close corporation is a different entity from the Applicant, which is a private company and is named Jof Supermarket (Pty) Ltd t/a “Spar Mahikeng”.

[15]               As such, Joubert held no office at the Applicant. Mr Smit however pointed out that Joubert is involved in the operations of the Applicant as its manager. That issue was also ventilated in the papers before the Court and to this end it is clear that the acknowledgement of debt which was signed by Joubert was not signed in his capacity as manager of the Applicant, nor on behalf of or in any capacity representing the Applicant. Joubert signed the acknowledgement of debt in this personal capacity.

[16]               However, and returning to the argument advanced by Mr Smit. The argument goes that because Joubert signed the acknowledgement of debt in terms of which he acknowledges liability for the default summary judgement debt, Joubert and the Applicant became “co- principal” debtors for the payment of the said debt. As a result of the Applicant being a “co-principal debtor” with Joubert, so the argument goes, they are both jointly and severally liable for the payment of the default summary judgment debt. As such, the Applicant is not permitted to raise and advanced defences for the rescission of the default judgment.  The principle of “pre-emption” accordingly applies.

[17]               It is of importance to duly interpret and place the contents of the acknowledgement of debt in perspective.

[18]               The Applicant deals with the status and contents of the acknowledgement of debt in paragraph 32.1 to paragraph 32.3 of the founding affidavit and that is on page 70, these paragraphs read as follows: 

“32.1 It is a document that was drafted by plaintiff and emanates from plaintiff’s attorneys;

32.2        Mr Joubert acknowledged personal liability for the repayment of the debt of Founad;

32.3         It is a document concluded between Mr Joubert and plaintiff  and has no bearing on defendant.”

[19]               What is important regarding the issue stated by the Applicant regarding the acknowledgement of debt is that the document was  draft by the Plaintiff, it emanates from the First Respondent’s attorneys’ offices, a fact which is acknowledged by the First Respondent.

[20]               The Applicant also makes the point that Joubert acknowledge liability for the repayment of the debt in his personal capacity and that the acknowledgement of debt has according to the Applicant no bearing on the Applicant.

[21]               The First Respondent disagrees with this view adopted by the Applicant and in paragraph 17 of the answering affidavit, on page 86, the First Respondent deals with the matter and contends that the acknowledgement of debt has a direct and clear bearing on the Applicant.

[22]               In the replying papers the Applicant reiterated its submission as made in the founding affidavit.

[23]               It is clear from the contents of the acknowledgement of debt itself that the document was not signed on behalf of the Applicant nor is it the Applicant that acknowledges responsibility for the payment of the debt in the said document.

[24]               In the acknowledgement of debt Joubert in his personal capacity undertakes the liability to pay the debt as reflected by the default summary judgment. In fact, the Applicant at all times disputed its liability  for  the  payment  of  the  debt. The situation  is  different in respect of Joubert. He acknowledges liability for the payment of the debt in his personal capacity.

[25]               The acknowledgement of debt does not negate the Applicant’s aforestated position regarding the debt.

[26]               Even if the signatory Mr Joubert who signed the acknowledgement of debt by the signing of acknowledgement of debt became a co- principal debtor with the Applicant for the payment of the debt represented by the default summary judgment then the following needs to be taken in to account:

(a)      The Applicant never acknowledged liability for the payment of the debt, in fact the Applicant throughout the proceeding and throughout the papers and in correspondence going back to 20 August 2018 (as per Annexure “JS7” on page 46 of the papers) commence to dispute its liability in terms of the simple summons.

(b)      The Applicant was not a party to the acknowledgement of debt signed by Joubert and the act of signing the acknowledgement of debt by Joubert was therefore in the view of this Court wholly independent of any action by the Applicant.

(c)        By signing the acknowledgement of debt, Joubert cannot bind the Applicant, nor restrict the Applicant’s rights to:

(i)         dispute its liability for the debt represented by the default summary judgment or;

(ii)       take the necessary steps to rescind the default summary judgment granted against it, as it is endeavouring to do in Section B of the application  to the Magistrate Court.

[27]               Mr Smit also referred this Court to the judgment in the matter of Li Ka v Oriental Global Logistics South Africa (Pty) Ltd In re: Oriental Global Logistics South Africa (Pty) Ltd v Li    (24319/2014) [2017] ZAGPPHC 707 (26 October 2017). He contended that the above referred to case serves as authority for the argument which he raised premised on the principle of “pre-emption”.

[28]               This Court considered the contents of this judgment and more particularly the paragraphs thereof emphasised by Mr Smit, i.e. paragraphs 17 and 18 of the said judgment.

[29]               The  facts  presented  to  the  Court  in  the  Li Ka  v  Oriental Global Logistics South Africa (Pty) Ltd differs materially from the facts in  this matter.  In the Li Ka v Oriental Global Logistics South Africa (Pty) Ltd matter a director signed an acknowledgement of debt in his personal capacity to acknowledge his indebtedness for a debt incurred by a company of which he was a director. The Court found that the said director in his person capacity and the company therefore become “co-principle  debtors”.  However,  in  the  Li  Ka  v  Oriental Global Logistics South Africa (Pty) Ltd matter the other principal debtor (the company) did not dispute that it was liable for the debt. Both the company and the director in his personal capacity therefore acknowledged their indebtedness. This is not the case in casu. As stated above the Applicant throughout the proceedings disputed that it owed the First Respondent the debt presented in the summons.

[30]               As such the Li Ka v Oriental Global Logistics South Africa (Pty) Ltd serves as no authority to bar the Applicant form raising its defences against the First Respondent’s claim.

[31]               A further issue which concerns this Court regarding the principle of “pre-emption” raised by the First Respondent is that this issue was not raised as such by the First Respondent in the papers before this Court and Mr Wessels argues in this regard that the Applicant could accordingly not properly deal with same.  Mr Wessels is correct.

[32]               The final nail in the coffin of this argument raised by the First Respondent, is the fact that the First Respondent is at liberty to hold Joubert liable on the basis of the acknowledgement of debt which he has signed in favour of the First Respondent, should he failed to adhere to the terms and conditions thereof.

[33]               This neatly brings one to the prospects of success on the merits of the application for the rescission of the default summary judgement, as presented in section B of the notice of motion and which stands to be argued before the Magistrate’s Court.

[34]               The test to be applied in order to succeed with such a rescission of a default judgment is well known. The applicant must explain his or her default and set out of a defence to the claim which is good in law.[9]

[35]               As to the explanation of the default the Applicant fully explain the fact that the Applicant is not to blame for the default and that the Applicant in fact provided its attorney with instructions to defend the matter. Things went array in the offices of the attorney and it is clear from the facts that the attorney took the blame for the delay. There is no need to further rub salt in the wounds of the attorney by making more of this issue than to state that in argument Mr Smit, correctly so, did not argue that the explanation for the default was open to attack.

[36]               As to the defences which the Applicant are raising against the default granting of the summary judgment application is that the Applicant denies that its liable towards First Respondent for the payment of the amount as claimed in the simple summons, because the Applicant, so the Applicant’s version goes, did not “do business with” the First Respondent and the Applicant did not purchase the goods (represented by the claim set out in the simple summons) from the First Respondent.

[37]               The Applicant states that Founad Trading 91 CC, t/a “Jof Hyper Meat” (the close corporation of which Joubert was the member) conducted the business with First Respondent and this close corporation was the entity who in fact purchase the goods from the First Respondent. As such, it is the close corporation who should have been the defendant in the Magistrate Court action.

[38]               This contention made by the Applicant is supported by the annexures annexed to the simple summons itself, as well as Annexure “C” and Annexure “D” annexed to the answering affidavit. All these annexures indicate that the business relationship  was in fact between the  First Respondent  and Founad Trading  91 CC, t/a “Jof  Hyper Meat”.For the purpose of setting out a bona fide defence for the purposes of rescinding a default judgement (and in fact for resisting a summary judgement application) the ex facie contents of the documents referred to above will suffice.

[39]               In fact, paragraph 9.1 of the First Respondent answering affidavit supports the Applicant’s version. This paragraph confirm that  business was conducted between the First Respondent and Founad Trading 91 CC, t/a “Jof Hyper Meat”. It states: “It is  denied  the Plaintiff and Defendant had no direct business dealings with each other. In this regard I state that Mr Jacob Joubert, husband of the deponent, Candice Ann Joubert, informed me telephonically after ordering meat for Jof Hyper Meat, that he bought Spar Mafikeng and that Plaintiff must deliver the meat ordered to Spar Mafikeng. I attach hereto marked Annexure “C” copies of the acknowledgments of receipt by Spar Mafikeng of consignments so received. The stamp of receipt is quite light but can be seen just above the terms on the invoices.”

[40]               It is the view of this Court that the averment made by the First Respondent in this paragraph differentiates between “Jof Hyper Meat” and “Spar Mahikeng” and it confirms that business dealings were in fact conducted between the First Respondent and “Jof Hyper  Meat”. This should be read in conduction with Annexure “C” and Annexure “D” to the answering papers, as already alluded to which reflects invoices raised by the First Respondent to made out and addressed to “Jof Hyper Meat” and “Jof Hyper Payments”.

[41]               The Applicant also argues that the Magistrate Court could not have granted the summary judgement in the first place as a result of the fact the affidavit which was filed in support of the application for summary judgment did not conform to the provisions of Rule 14(2)(a) and Rule 14(2)(b) of the Magistrate’s Court Rules.

[42]               Rule 14(2)(a) of the Magistrate’s Court Rules reads as follows: “The plaintiff shall within 15 days after the date of service of notice of intention to defend, deliver notice of application for summary judgment, together with an affidavit made by plaintiff or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his or her opinion there is no bona fide defence to the action and that notice of intention to defend has been served solely for the purposes of delay.” (Court’s emphasis)

[43]               Rule 14(2)(b) of the Magistrate’s Court Rules reads as follows: “A copy of the served notice of intention to defend must be annexed to such affidavit.” (Court’s emphasis)

[44]               It must be noted that Rule 14(2) was recently amended and amplified by GNR.507 of 27 June 2014 and by GNR.318 of 17 April 2015.

[45]               Form 8 to Annexure “A” annexed to the Magistrate’s Court Rule and which sets out the “Affidavit in support of application for summary judgment” was also amended to make provisions for the revised and newly included contents of Rule 14(2)(a) and Rule 14(2)(b). This was also done by means of GNR.318 of 17 April 2015. The revised pro forma affidavit, set out in Form 8, now requires inter alia the following contents:

“(a)       I am the plaintiff (or state the relationship on which the authority to represent the plaintiff is based) in this action and am duly authorised to make this affidavit, the contents of which are within my personal knowledge.

(b)        I  verify  that  the  defendant  is  indebted  to  me/to  the plaintiff in the amount of R x and on the grounds stated  in the summons.

(c)       I believe that the defendant does not have a bona fide defence to the claim and that the notice of intention to defend has been served solely for purposes of delay.

(d)     A copy of the notice of intention to defend served on (date) is annexed hereto.” (Court’s emphasis)

[43]               According to the Applicant the affidavit: (a) does not conform to the requirements set out in Rule 14(2)(b) of the Magistrate’s Court Rules and (b) the confirmation required in terms of Rule 14(2)(a) and as set out in paragraph 2 of the affidavit filed by the First Respondent is a confirmation by the deponent in his personal capacity that the debt is due and not that the debt is to the First Respondent, which is a private company and thus a separate legal entity.

[44]               The First Respondent in response to these allegations deny that the affidavit supporting the application for summary judgment did not comply with Rule 14. The First Respondent states that a copy of the notice of intention to defend was annexed to the summary judgement application as a whole, as evidence by the index which accompanied the summary judgement application.

[45]               To this end, the First Respondent argued that it substantially complied with the provisions of Rule 14(2)(b).

[46]               The Applicant’s argument was simply that the provisions of Rule 14(2)(a) and more so that of Rule 14(2)(b) were peremptory and as such the First Respondent was compelled to comply therewith. The matter is not that simple if one starts to dissect the view of the Courts when it comes to “peremptory” legislation.  This will be evident below.

[47]               From this index it is clear that the notice of intention to defend was annexed to the application, but not to the affidavit, nor did the affidavit comply with the contents of Form 8, as no reference was made in the affidavit to the notice of intention to defend as required in terms of Form 8.

[48]               The Applicant is however correct. The pro forma affidavit reflected in Form 8 requires the following:

(a)       The deponent must make an election (as per paragraph b of the pro forma affidavit as whether the “…defendant is indebted to me/to the plaintiff in the amount of R x…”.  In the present case the deponent incorrectly states that the Applicant is indebted to the deponent instead of the First Respondent. The incorrect election was accordingly made by the deponent.

(b)      The notice of intention to defend as filed by the Applicant must be (i) referred to in the affidavit and (ii) a  copy  thereof must be annexed to the affidavit.   Form 8  clearly requires same and the contents of Rule 14(2)(b) is cast in peremptory terms.

[49]               As to the First Respondent argument that it substantially complied with the provisions of Rule 14(2)(b) because the notice of intention to defend the action was annexed to the summary judgement  application, the following:

(a)      In establishing whether or not statutory requirements have been complied with emphasis has in the past been placed on the manner in which the statutory requirement has been cast. Statutory requirements were classified as either peremptory or directory.

(b)    Substantial compliance instead of exact compliance with peremptory statutory requirement is required.  In  the  matter  of  JEM  Motors  Ltd  v  Boutle  and  Another[10]  the following was stated regarding this issue:

“Notwithstanding that these provisions are in positive terms and there is no express sanction as regards non- compliance with them (cf Sutter v Scheepers 1932 AS 165 at  174). I cannot  doubt  that  they  are  imperative  in  the sense that there must be adequate publication before a valid consent can  be granted.       Their object is to give any interested persons a  proper opportunity  of objecting. On the other hand I also do not doubt that if there is such compliance with the prescribed provisions regarding publication as will operate to afford adequate notice to any person who might be interested in objecting then there  will be  a  compliance  so  substantial  that  it  will  be sufficient compliance even through there has not been exact compliance.” (Court’s emphasis)

and at 327 H:

“I venture, with respect, to suggest that to say that substantial compliance with procedural provisions will only suffice when they are directory (Ex parte Slabbert 1960 (4) SA 677 (T) at 678H) does not appear to be justified by anything that was said in Ex Parte Bosh and Another 1959 (2) SA 163 (C). That provisions which are merely directory can be ignored altogether without fatal results  appears from the case of Sutter v Scheepers itself. It is clear from the cases (I need refer only to The Messenger of the Magistrate’s Court, Durban v Pillay 1952 (3) SA 678 (A) and  Fineberg  v  Pietermaritzburg  Liquor  Licensing Board 1952 (4) SA 415 (A)), that what must first be ascertained are  the  objects  of  the   relative  provisions. Imperative provisions, merely because they are imperative will not, by implication, be held to require exact compliance with them where a substantial compliance with them will achieve all the objects aimed at.” (Court’s emphasis)

(c)      

In Maharaj and Others v Rampersad[11]  the following was stated:

“The inquiry, I suggest, is not so much whether    there has been  ‘exact’,  ‘adequate’  or  ‘substantial’  compliance with this injunction      but rather whether there has been  compliance therewith. This            inquiry postulate an application of the injunction to the fact and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be.  It is quite conceivable  that  a  court  might  hold that, even though the position as it is not identical with what it ought to be, the injunction has nevertheless been complied with. In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance. Cf JEM Motors Ltd v Boutle and Another 1961 (2) SA 320 (N) at 327-8.” (Court’s emphasis)

(d)     A similar view was expressed in Stadsraad van Vanderbijlpark v Aministrateur Transvaal[12]:

“It seems to me that for the purposes of this part of the case one may assume that Mr Osborn’s contention is correct that the provisions of ss 26 and 27, regs 6 and 7, and the Second and Third Schedules are peremptory and that the advertisements and notices did not furnish exactly the particulars prescribed in the respective Schedules.  On that assumption the important question is (in the light of the authorities quoted above) whether or not the notices gave sufficient particulars to afford adequate notice to  any person who might be interested in objecting to amendment 1/110.   It seems to me that there can be no question   that the object of making the provisions that the advertisements would be published and the notices given is to afford such notice.  In my view the notices  were  sufficient to  achievethat purpose.” (Court’s emphasis)

and at 193H:

“In my view the result is that this is not a case where the fact that the requirements of the Second and Third Schedules were not met exactly should be held to invalidate all the proceedings leading up to the granting of the Administrator’s approval of the amendment, including the two hearings before the Vereeniging Council and the Townships Board.   To take that view would be   sacrificing substance  to  form  (cf  Essack  v  Pietermaritzburg  City Council  and  Another  1971  (3)  SA  946  (a)  at 962F-G).”

(Court’s emphasis)

(e)     Du Plessis The Re-Interpretation of Statutes[13] proposes an approach which lays less emphasis on the question whether the provision is peremptory or merely directing  and more emphasis on the intention of the “lawgiver”. He states that:

“It is generally accepted that noncompliance with a peremptory provision results in a nullity, while noncompliance  with  a  directory  provision  does  not. The matter is not all that   simple however. There  are,  on the hand, decisions intimating that substantial compliance with directory provisions is still required while there are, on the other hand, also decisions to the effect that substantial compliance with peremptory provisions can in certain circumstances suffice. These apparently conflicting   views tend to blur any clear–cut distinction between   peremptory and directory provision, and it has therefore also been said that a  final  decision  on the results  of  non–  or   defective compliance cannot merely depend on invoking a traditional label, but “must ultimatel depend upon the proper construction  of  the  statutory  provision  in  question,  or in other words, upon the            intention of the lawgiver as ascertained from the language, scope, and purpose of  the enactment  as  a  whole  and  the  statutory  requirement in particular.   In other words, no hard and fast rules to  cover conceivable circumstance can be suggested.” (Court’s emphasis)

(f)       The approach advocated by Du Plessis is supported by Kellaway  Principles  of  Legal  Interpretation[14]  where the following is stated:

“However, even where there is an “express” requirement, this does not necessarily mean in “identical words” to  those used in the statute. The question is not so much whether there has been “exact” compliance, as whether there has been compliance.”

(g)      In  Weenen  Traditional  Local  Council  v  Van  Dyk[15] the municipality instituted action against Van Dyk in the Magistrate’s Court for the non-payment of rates on immovable property. Van Dyk defended the matter on the basis that the municipality failed to comply with the statutory requirements set out regarding the publication of a notice, once a week, for two consecutive weeks, specifying the amount at which the rates have been assessed by the municipality and the final date for the payment thereof. The municipality did not publish the said notices. Olivier JA held that the distinctions traditionally drawn between peremptory and directory provisions, and whether strict as opposed to substantial compliance is required, were of little assistance in dealing with cases such as the one at hand. It was also held that a ‘common- sense approach’ should instead be followed which involves asking  the  question  whether  the  actions  taken  by  the authority amounts to compliance with the provisions of the statute. To establish whether the actions taken amount to compliance, the actions of the authority had to be measured against: “...the intention of the Legislature as ascertained from the language, scope and purpose of the enactment as a whole and the statutory requirements in particular.”

(h)       This approach was also adopted in Toyota South Africa Motors (Pty) Ltd v Commissioner, South African Revenue Service[16] where the following is said by Howie JA:

“We are dealing here with non-compliance with a statutory provision laying down the time within which an appeal from the decision of the Special Court must be noted. It is of no practical assistance to seek to classify the provisions as peremptory or  directory. The  enquiry is  simply:  what did the Legislature intend?” (Court’s emphasis)

(i)      In this regard consideration should also be extended to the matter of Beck and Others v Premier, Western Cape and Others[17]. In this case Rose-Innes J found it unnecessary to determine the peremptory or directory nature of the provision in question (a notice requirement regarding an application for the removal of title deed conditions). Rose- Innes J instead pointed out that the powers of the minister (in deciding whether such conditions should be removed) were discretionary in nature. The statute required that all interested parties (including the applicant and objectors) had a right to be heard before the taking of the decision. The right of objectors (specifically other property owners and residents in the area) to be heard also existed by  virtue of the common law due to the fact that they could be prejudicially affected by such an application.

(j)       In the matter Observatory Girls Primary  School and Another  v Head of  Department of Education, Gauteng[18] the Court drew a distinction between peremptory and directory provisions, but held that even if the provisions in question (relating to the procedure for the appointment of teachers) were peremptory, the real question was whether the purpose of the legislation had been achieved (i.e. whether there had been substantial compliance). The purpose of the legislation in that matter was “...to ensure that there is a fair and transparent procedure in place for appointing teachers to fill vacancies...”. This purpose, the Court held, had been fully achieved.

[50]               Can it be said that the purpose of Rule 14(2)(a) and (b) has been achieved in this matter if one compares the contents of the summary judgement application with the contents of the said rules?

[51]               The answer is negative. In fact, in this instance, the view of this Court is that substantial compliance hardly enters the fray. This is a case of non-compliance, rather than substantial compliance. 

[52]               There is a difference between non-compliance and substantial compliance. For an argument premised on substantial compliance to succeed, there must at least be a degree of compliance, albeit not exact compliance, but a measure of compliance in order to trigger the investigation as to the intention of the legislature and the exercise of the judicial discretion as to whether the intention was achieved in the circumstances.

[53]               In this instance, the requirements set by the legislature were not complied with. Cadit quaestio. The  summary  judgement  application brought against the Applicant was fatally defective and this fact constitutes a complete defence to the Applicant.

[54]               As such, the Applicant has a prospect of success in the rescission application. This Court is also satisfied that the requirements for obtaining interim relief, as referred to above, have been established by the Applicant. In any event, apart from raising the issues referred to herein above, the First Respondent did not content that the Applicant failed to meet any other requirement sets for obtaining the interim relief.

ORDER

[55]               Having the regard to the above-mentioned facts and legal principles, this Court hereby makes the following order;

[56]               It is hereby ordered that:

(1)      Pending the outcome of Section B of the application launched by the Applicant under Case nr. 106/2018  in the Magistrate Court for the District of Mahikeng held in Mmabatho-

(1.1)     The warrant of execution issued under case 106/2018 in the above referred to Magistrate Court is hereby suspended;

(1.2)     The sale in execution scheduled for  3 April 2019 at 10 o’ clock is hereby cancelled,

(2)      Cost of this application to be costs in the Section B application referred to in paragraph one of this order.

N G LAUBSCHER

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING:                                 03 APRIL 2019

DATE OF JUDGMENT:                              02 MAY 2019

COUNSEL FOR APPLICANT:                   MR M. WESSELS

COUNSEL FOR FIRST RESPONDENT:   ADV P. SMIT

ATTORNEYS FOR APPLICANT:               VAN    ROOYEN    TLHAPI    WESSELS

INC.

ATTORNEYS FOR FIRST RESPONDENT: HERMAN SCHOLTZ ATTORNEYS

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