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IN THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

 

CASE NO: 1042/2017

Reportable:   NO

Circulate to Judges:                                   NO

Circulate to Magistrates:                     NO

Circulate to Regional Magistrates:               NO

 

In the matter between:-

ASSUPOL LIFE                                                                        Plaintiff         

 

and

 

MARTIN’S ZEERUST NORTH WEST (PTY) LTD                    Defendant

 

CORAM:                    MFENYANA J

Summary:     Rescission – order erroneously granted – Rule 42(1)(a) of the Uniform Rules of Court – non-compliance with the rules and practice directives – striking out – averments scandalous, insulting and defamatory.

 

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 03 November 2023 at 10h00.

ORDER

 

(1)          The application for rescission is dismissed.

 

(2)          The application to strike out paragraphs 4 to 8, 10, 11.2 and 11.3 of the plaintiff’s answering affidavit is dismissed.

 

(3)          The applicant / defendant shall pay the costs of the rescission application and the striking out application on attorney and client scale.

 

(4)          The Registrar of this Court is directed to provide a copy of this judgment to the Legal Practice Council to conduct an investigation into the conduct of Tiroyaone Leonard Seeletso.

           

JUDGMENT

 

Mfenyana J

 

Introduction

 

[1]        There are three applications before this Court. The first application is brought by the plaintiff, and the remaining two, by the defendant. For ease of reference, in these proceedings the parties are referred to as in the main action, as plaintiff and defendant.

 

[2]        In the first application, the plaintiff seeks an order that the defendant’s defence be struck out, and that judgment be entered in its favour. In the second application, the defendant seeks an order rescinding and setting aside the order of Snyman J, [as she then was, now Reid J] issued on 11 August 2022 on the ground that it was granted against bonos mores, the Uniform Rules, and the Practice Directives of the Northwest High Court. Lastly, in the third application, the defendant seeks an order striking out certain paragraphs of the plaintiff’s answering affidavit in relation to the second application. 

 

[3]        The matter has a long history dating back to 22 May 2017, when the plaintiff issued a summons against the defendant in terms whereof the plaintiff claimed a specified sum of money in respect of a written agreement concluded between the parties on 16 April 2014.

 

[4]        The defendant has defended the action, and that claim is pending before this Court.

 

[5]        Pleadings having been closed, the plaintiff on 25 January 2018 delivered notices in terms of Rule 35(1)(6)(8) and (10), requiring the defendant to, inter alia, file its discovery affidavit within 20 days thereof. The defendant failed to file its discovery affidavit.

 

[6]        On 11 February 2020, the plaintiff issued an application in which it sought an order compelling the defendant to file its discovery affidavit.  That application was heard on 5 March 2020, and an order was granted compelling the defendant to file its answering affidavit within 10 days. The defendant was ordered to pay the costs of the application. The defendant failed to comply with the order within the stipulated time.

 

[7]        On 6 July 2022, the plaintiff issued the first application, seeking an order for the defendant’s defence to be struck out and that judgment be entered in favour of the plaintiff. The matter was enrolled on the unopposed roll for 11 August 2022.

 

[8]        On 22 July 2022, the defendant filed its discovery affidavit, followed by a notice on 29 July 2022, to oppose the first application. On 8 August 2022 the defendant delivered its answering affidavit in respect of that application.

 

[9]        On 11 August 2022 the matter served in the unopposed motion court before Snyman J [now Reid J]. On that day, the plaintiff sought a postponement of the matter to the opposed roll for the reason that the matter had become opposed, and the plaintiff wanted to file a replying affidavit. The defendant sought to oppose the postponement of the matter to the opposed roll. Ultimately, the matter was postponed to the opposed roll for 16 February 2023, with costs to be in the cause.

 

[10]      Aggrieved by the postponement of the matter, the defendant on 30 August 2023 issued the second application, seeking an order rescinding and setting aside the order of 11 August 2023.  The plaintiff opposed the application and filed its answering affidavit.  

 

[11]      On 12 October 2022, the defendant filed its replying affidavit in respect of the rescission application (second application), together with a further application (third application) in which it seeks to strike out specific paragraphs of the answering affidavit filed by the plaintiff, on the basis that they are inter alia, scandalous, and defamatory.

 

[12]      When the applications served before me on 16 February 2023, I postponed the application for the striking out of the defence (main application) and dealt with the two remaining applications, namely, the rescission application, and the incidental application for the striking out of specific paragraphs in the plaintiff’s answering affidavit, as it became apparent that the issue of the striking out of the defendant’s defence was, to a great extent, dependent on the outcome of the rescission application.

 

I now deal with the two applications in turn.

 

Application for rescission of the order dated 11 August 2023

 

[13]      The application is premised on the provisions of Rule 42(1)(a) that the order was erroneously sought and erroneously granted.  According to the defendant, the error lies in the contention that the court ought not to have postponed the matter and should have granted a punitive cost order against the plaintiff for non- compliance with the Rules of Court and the Practice Directives.

 

[14]      It is necessary to set out the terms of the order issued on 11 August 2022.  It reads as follows:

 

“IT IS ORDERED

1.    THAT:       The matter be and is hereby postponed to the 16^th

day of the FEBRUARY 2023 to the opposed roll;

 

2.    THAT:       Costs in the cause.

 

[15]      It is the defendant’s contention that the order ought not to have been granted as the plaintiff sought a postponement after setting down an opposed application on the unopposed roll.  

 

[16]      In the notice of motion the defendant’s attorney states that the basis for the rescission application is that the ‘order issued by Snyman J [now Reid J] is against the boni mores, the Uniform Rules and the Practice Directives of this division. It further states that the order should be replaced with an order striking off or removing the application from the roll for non- compliance with the Rules and the Practice Directives. For this proposition, the defendant relies on the understanding that the pleadings had not closed as the plaintiff had not filed a replying affidavit ‘as required by Rule 6(5)(e), whereafter the plaintiff would, according to the Practice Directives; be required to apply for a date of hearing. Further reliance is placed on Rule 29, to the effect that the plaintiff was not entitled to obtain a date of hearing ‘before close of pleadings’, as this is contrary to Rule 29, and is a ‘serious violation of civil procedure’. In this regard I must state that Rule 29 only pertains to the close of pleadings and notices of set down in trials. It has no application in motion proceedings, as this is adequately dealt with in Rule 6.

           

[17]      In the affidavit in support of the application, the deponent, Tiroyaone Leonard Seeletso, sets out several grounds for the rescission of the order, namely:

 

            “(a)      That the order was erroneously granted;

 

            (b)       that is against the court rules and practice directives and boni mores;

 

(c)        that it is an interference with the separation of power regarding the duties and the Office of the Registrar;

 

(d)       that it is the promotion of disregarding the court rules and practice directives;

 

(e)       that it is a violation to a right to fair trial and the right to access to court;

 

(f)         that it promotes unfair treatment between practitioners when others are expected to comply with the rules and at the same time other being allowed to disregard the court rules and the practice directives and it’s a financial prejudice to clients as they are the ones paying the legal costs towards their unfair and prejudice by the court through the 11 AUGUST 2022 court order.”

 

[18]      Seeletso contends that as the defendant had served its answering affidavit to the plaintiff’s application, it was not open to the plaintiff to set the matter down on the unopposed roll for 11 August 2022, and “disregard the civil procedure of filing its replying affidavit and allow the pleadings to be closed and to apply for the date of hearing on the opposed roll as required by the civil procedure.”(sic)

 

[19]      Seeletso goes further to state that the court was required to investigate when the answering affidavit was filed, and whether the plaintiff had filed its replying affidavit and complied with the Practice Directive, particularly, Practice Directive 4(1) (1.2) and 21 (2)(a) of the North West High Court as well as Rule 6(5)(e). Further, he avers that “the powers of granting a date of hearing lies with the Registrar once the application for date of hearing has been made.”(sic)

 

[20]      Notably, the deponent takes a swipe at the court, which he states has set a bad precedent and nullified the Rules of Court and the Practice Directives by granting the order. Of grave concern, the deponent accuses the court of violating the Constitution[1]. In paragraph 9.4 the deponent states:

 

“I submit that failure of the court to remove the matter from the roll and make a punitive costs order against the respondent /plaintiff is a clear protection of the respondent/plaintiff by the court which is a serious violation of section 34, 35 and section 165 of the Constitution… .”

 

[21]      In resisting the application, the plaintiff avers that the application is frivolous and vexatious, and an abuse of the process of the court. The plaintiff further avers that the two counsel instructed by the defendant appear to have been ill- instructed, as the attorney who instructed them (Seeletso) ‘does not know the Uniform Rules and the Practice Directives. In this regard, the deponent, Helgard Petrus Raubenheimer makes specific reference to the ‘scurrilous allegations’ made by Seeletso against the court and its judicial officers, and avers that the deponent’s conduct should be referred to the relevant authorities for investigation.

 

[22]      Turning to the merits, the plaintiff denies that the order was erroneously sought or erroneously granted as the defendant’s two counsel were in attendance at court when the order was granted. The plaintiff avers that the application was enrolled on the unopposed motion roll for 11 August 2022, after the defendant failed to comply with the order of 5 March 2020 directing the defendant to file its discovery affidavit. It was only on 22 July 2022 that the defendant complied with the order, at which point the application had already been issued and served on the defendant. He further avers that it was only on 8 August 2022 that the plaintiff filed an answering affidavit after complying with the order.  Raubenheimer further averred that on 11 August 2023, the two counsel who appeared on behalf of the defendant argued that the matter be struck off the roll with costs of two counsel when there was no basis for such.

 

[23]      The plaintiff further avers that the plaintiff wanted to file a replying affidavit as the matter had become opposed.  As to the defendant’s contention that only the Registrar is empowered to allocate dates, the plaintiff contends that the Registrar was indeed approached, and allocated a date on the opposed roll, in accordance with the practice of this Court. He states that the plaintiff handed up a management note to the court as confirmation of the allocation of the date by the Registrar.  As such, the serious allegations made by the defendant against other attorneys and judicial officers, are without substance as everything was done in accordance with the practice of the court, he adds. He concluded that it was on that basis that Snyman J [now Reid J] made the order postponing the matter to the opposed roll.

 

[24]      The jurisdictional requirements for an order under Rule 42(1)(a) are that the order must have been erroneously sought or granted in the absence of the applicant or any party whose rights are affected by such judgment or order. The defendant bears the onus to prove that the order was erroneously sought or erroneously granted.[2]

 

[25]      It is common cause that the order was not granted in the absence of the defendant, having been represented by two counsel briefed by its attorney. 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 2021 ZACC 28, the Constitutional Court reaffirmed that both jurisdictional requirements as set out in Rule 42(1)(a) must be shown to exist. That is to say, the defendant must show that the order sought to be rescinded was granted in its absence, and that it was erroneously sought or erroneously granted.

 

[26]      The court further stated that in order to show that an order was erroneously granted, an applicant seeking rescission must show that at the time the order was made, there existed a fact which, if the judge had been aware of it, would have induced such judge not to grant the order.

 

[27]      I align myself with the principles enunciated above. On the facts of the present application, the defendant has failed to demonstrate that the order was granted erroneously. There are no facts which existed, and which were they to be brought to the attention of the court, would have induced the court not to grant the order. This is for the simple reason that the matter, albeit in the unopposed motion court, was opposed by the defendant and its two counsel made submissions and argued against the granting of the order. The defendant has also failed to show that the order was granted in his absence, as I have already observed. The converse is in fact true.

 

[28]      What is more, is that even if the rescission were to be granted, it would serve no purpose as the matter cannot revert to the unopposed motion court, as it is opposed. The defendant’s contention that the order was in favour of the plaintiff is also devoid of any merit. It was the defendant who flouted the Rules, in failing to file its discovery affidavit, and in not complying with a court order, and lastly, in filing opposing papers, a day before the hearing of the matter.  That is what precipitated the postponement. As regards costs, these are within the discretion of the court, and the court ordered that they be in the cause. The application for rescission thus falls to be dismissed.  

 

Affidavit in support of the rescission application

 

[29]      It would be remiss of me not to make observations on the content of the affidavit deposed to by the defendant’s attorney of record, Seeletso. The affidavit is littered with insults and profanity directed at Snyman J [now Reid J], the plaintiff’s attorneys, and “white attorneys.” Such language has no place in this Court and dare I say, in the profession. Ironically, it is the self-same Seeletso who cries foul and has brought an application seeking to strike out what he refers to as paragraphs which are “scandalous, insulting, defaming and attacking” his integrity without justification.

 

[30]      It does not take much to recognize that Seeletso’s conduct falls short of the standard expected of a legal practitioner and is grossly unprofessional. When such disdainful conduct is directed at judicial officers and the courts, it makes it all the more reprehensible. Such conduct amounts to scandalising the Court. In S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC), Kriegler J stated that the judiciary cannot function properly without the support and trust of the public[3]. With specific reference to the crime of scandalising the court, the learned judge further observed: 

 

“(The)manner of conducting the business of the courts is intended to enhance public confidence. In the final analysis it is the people who have to believe in the integrity of their judges. Without such trust, the judiciary cannot function properly; and where the judiciary cannot function properly the rule of law must die. Because of the importance of preserving public trust in the judiciary and because of the reticence required for it to perform its arbitral role, special safeguards have been in existence for many centuries to protect the judiciary against vilification. One of the protective devices is to deter disparaging remarks calculated to bring the judicial process into disrepute.”[4]

 

This is not to say that the judiciary is spared from accountability, but any criticism must be within limits and based on facts and sound reasoning while seeking to maintain the integrity of the judicial system, and  enhance public confidence. A case in point is the reference made by the deponent to the violation of the defendant’s rights in terms of section 35 of the Constitution, by the court. Section 35 relates to arrested, detained and accused persons, and has no bearing on the order granted by Snyman J [now Reid J]. The insults hurled at Snyman J [now Reid J] were not warranted.  For this reason, a copy of this judgment must be circulated by the Registrar of this Court, to the Legal Practice Council, to investigate Seeletso’s conduct.

 

Application to strike specific paragraphs of the answering affidavit

 

[31]      In the third application, the defendant seeks an order that paragraphs 4 to 8, 10, 11.2 and 11.3 of the plaintiff’s answering affidavit be struck out. I do not deem it necessary to set out the contents of these paragraphs save to state that in response to Seeletso’s remarks and averments as contained in the rescission application, the plaintiff refers to the application as ‘stillborn’, frivolous and vexatious and an abuse of the process of the court. Raubenheimer further casts doubt on Seeletso’s averments that he is an attorney and calls into question his conduct in making the scurrilous allegations against Snyman J [now Reid J] and other legal practitioners, which he goes further to state, is without basis. Further, Raubenheimer questions Seeletso’s understanding and lack of knowledge of the Rules and the Practice Directives he refers to in his affidavit.

 

[32]      Curiously, Seeletso relies on the Code of Conduct for legal practitioners, which inter alia prohibits legal practitioners from using disparaging, defamatory language and invective in composing pleadings, and from recklessly making averments or allegations which are not substantiated by information given to the legal practitioner. By contrast, he does not consider himself bound by the same code of conduct.

 

[33]      I have already found that the contents of the affidavit by Seeletso are shocking and unwarranted. The upshot of it is that there can be no merit in the incidental application brought by the defendant in this regard. Save to state that Seeletso is the author of his own calamity, nothing, in my view, in the stated paragraphs warrants striking out as offensive matter. They are in full compliance with Rule 18 which pertains to the manner of pleading in general.

 

Costs

 

[34]      It bears mentioning that the conduct of the defendant’s attorney in these proceedings has been nothing short of deplorable and an abuse of the process of the court. This is despite having demonstrated that he is aware of the Code of Conduct applicable to legal practitioners, as he sought to rely on it when the shoe pinched.

 

[35]      The issues raised on behalf of the defendant are issues of law, which ordinarily fall within the expertise and purview of Seeletso as the defendant’s attorney. He has shown no regard for the process of this Court, which he recites in so far as it may apply to any other legal practitioner, but himself.

 

Order

 

[36]      In the result, I make the following order:

 

(1)        The application for rescission is dismissed.

 

(2)        The application to strike out paragraphs 4 to 8, 10, 11.2 and 11.3 of the plaintiff’s answering affidavit is dismissed.

 

(3)        The applicant / defendant shall pay the costs of the rescission application and the striking out application on an attorney – and - client scale.

 

(4)        The Registrar of this Court is directed to provide a copy of this judgment to the Legal Practice Council to conduct an investigation into the conduct of Tiroyaone Leonard Seeletso.

 

 

 

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTHWEST DIVISION, MAHIKENG

Appearances:

For the plaintiff:	M Wessels
Instructed by:	Van Rooyen Tlhapi Wessels Inc.
Email:	litigation@vtwinc.co.za
	litigation2@vtwinc.co.za
For the defendant:	S Leshilo
Instructed by:	TL Seeletso Attorneys
Email:	tseeletsoatt@gmail.com
Reserved:	16 February 2023
Handed down:	03 November 2023

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