IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION CASE: 504/07. In the matter between: MORETELE LOCAL MUNICIPALITY APPLICANT.

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1 IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION CASE: 504/07 In the matter between: MORETELE LOCAL MUNICIPALITY APPLICANT and NKADIMENG BOTLHALE TRAINING AND CONSULTANCY CC RESPONDENT APPLICATION MMABATHO GURA J DATE OF HEARING : 22 November 2007 DATE OF JUDGMENT : 10 March 2008 FOR THE APPLICANT : Adv. S S Maakane FOR THE RESPONDENT : Adv. Kanyane JUDGMENT

2 GURA J: Introduction [1] This is an application for the following relief: 1. That the Respondent s entire pleadings so far, including the simple summons be set aside as being irregular; alternatively constituting an irregular step; ` 2. That the Respondent pays Applicant s costs of the main action incurred so far, on an attorney and client scale; 3. That the Respondent pays the costs of this application on an attorney and client scale; 4. Granting to the Applicant such further and / or alternative relief as the Honourable Court may deem fit. [2] The applicant is the defendant in the main action instituted against it by respondent. The latter is therefore the plaintiff in the main action. Factual Background [3] What follows is the applicant s version. On 13 July 2006 the respondent issued summons in this Court (Case No. 938/06), against Mr A K Dingiswayo, an employee of applicant (as the first defendant) and the applicant (as the second defendant) claiming an amount of R for damages. [4] An attorney, Mr Moses Baloyi of the firm M M Baloyi Attorneys was instructed by applicant to defend the action. An appearance to defend was then entered. [5] During the exchange of pleadings between the parties, applicant realised that there were material differences between the original summons (in the court file) and the copy thereof which was served on applicant and Mr Dingiswayo. The amount claimed was R on the original summons 2

3 and R on its copy. The facts giving rise to the cause of action also had material differences. [6] This action (of 13 July 2006) was later withdrawn by respondent due to several irregularities in the pleadings and countless irregular steps taken by the respondent. These could not be cured in any manner other than withdrawing the action. [7] What follows is a brief history of various steps taken by the parties in the 2006 case, Case 938/06. This information is essential for one to appreciate the basis for some of the prayers in the present application, Case 504/07. As stated earlier, summons were issued on 13 July An entry of appearance to defend was filed by applicant on 15 August On 17 July 2006 already, there was an application for default judgment against applicant due to failure to enter an appearance to defend. The application failed. On 10 August 2006 respondent again attempted to obtain default judgment against the applicant. This application also failed because it did not comply with Practice Note No. 9 and 30 of this Division. [8] On 15 September 2006, respondent issued a Notice of Bar against applicant. Subsequent to that, on 27 September 2006, respondent issued a notice of application for default judgment on the ground that applicant had failed to file a plea. It was set down for hearing on 5 October On 5 October 2006 the matter was removed from the roll and there was no order as to costs. [9] On 3 October 2006 applicant issued a notice in terms of Rule 30(2)(b). The respondent was called upon to remedy certain irregularities in its papers, eg. the pleadings were not signed and whereas the summons and pleadings purported to have been issued by Attorneys M J Pitsoane of 2002 Burlington House, 235 Church Street, Pretoria, the sole practitioner of this firm, M J Pitsoane, denied any knowledge of this case. [10] On 8 November 2006 respondent set down the application for default judgment for hearing on 30 November In the meantime, on 27 November 2006 applicant lodged an application to set aside respondent s pleadings. It was set down for 14 December The parties then agreed that respondent s application which was set down for 30 November 2006, should also be argued on 14 December On this date both applications were postponed, by agreement to 8 February The matter was postponed further, by agreement, sine die. On 5 March 2007 respondent started it 3

4 all over again. It brought an application for summary judgment and set it down for 8 March On the date of hearing of this application, respondent withdrew it. Finally, on the same day (8 March 2007) respondent withdrew its action and tendered wasted costs. [11] On 14 March 2007 respondent again issued the simple summons in the present matter (case No. 504/07). It now claims R , being the agreed, alternatively the plaintiff s customary remuneration owing by the defendant to the plaintiff for services rendered.. In this action again, Mr Baloyi acts for the applicant. [12] On 12 April 2007 applicant filed a notice of intent to defend. Despite this, on 17 May 2007, respondent attempted to obtain judgment by default against applicant. Again on 19 June 2007 respondent filed an application for default judgment which was to be heard on 21 June Three days before respondent lodged this application, on 15 June 2007, applicant served it with a notice in terms of Rule 30 where it was called upon to remedy some irregularity within ten days. The ten days expired on 29 June It was as a result of this conduct on the part of the respondent, that applicant launched the present application on 19 July [13] The respondent raised the following points in limine: 1. David Mamoliki Mfoloe has no authority to depose to an affidavit on behalf of applicant. 2. Mr M M Baloyi; the applicant s attorney, has no locus standi to act for the applicant because he has not been so appointed. 3. There is no proof that applicant resolved to lodge this application. 4. This application is superfluous, vexatious and an abuse of the process of court because it was lodged long after respondent had removed or corrected the irregularities complained of. [14] On the merits, the respondent admits that it did lodge two applications for default judgment. However, it argues, they are no longer pending before any court. They were removed from the roll, by agreement and it tendered wasted costs. It denies that there was any difference as to the actual amount of the claim, in the original as well as the copy of summons. Its claim has always been 4

5 R and not R The Issues [15] The following points call for decision: 1. The authority of Mr Mfoloe 2. The locus standi of Mr Baloyi 3. Was this application authorised? 4. Was it proper for respondent to proceed by way of simple summons instead of combined summons? Authority [16] Rule 7(1) provides: Subject to the provision of subrules (2) and (3) a power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such person may no longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application. The respondent had ten days to raise any objection against the authority of anyone who acts or purports to act for the applicant. Applicant entered appearance to defend in April In my view, the objection is well out of time and what makes matters worse, is that respondent did not deem it fit to seek leave of the court to raise its objection beyond the prescribed time limit. [17] In regard to the authority of attorney Baloyi, the decision in Texeira v Industrial and Mercantile Corporation SA 532 (O) at 538A settles the legal position. Die hof a quo het nie die bevoegdheid gehad om te beveel dat ʼn volmag ingedien 5

6 moet word nie. Al wat Hofreël 52(2) verg is dat die hof oortuig moet word dat die persoon wat namens ʼn party optree, die bevoegdheid het om namens hom op te tree. Die voorlê van ʼn volmag is nie die enigste wyse waarop dit gedoen kan word nie. See further Administrator, Transvaal v Mpoyane and Others SA 407 (W) at 409C. In my view there is nothing in the present form that requires authorisation of an attorney to be embodied in a document styled a power of attorney. At 409E, the learned Judge concluded: I therefore conclude that proof of the authority of the Respondent s attorney is not dependant on the production of a written power of attorney. See also Cekeshe and Others v Premier Eastern Cape, and Others SA 935 (TK D) [18] In any case, the Mayor of the applicant has filed an affidavit where she confirms that the present application was authorised as well as the Municipal Manager (Mfoloe). She confirmed further that the present attorney for the applicant was duly authorised to deal with this matter on behalf of the applicant. [19] It is therefore clear that the Municipal Manager, Mr Mfoloe, was authorised to depose to the founding affidavit. A written resolution as a prerequisite to authority is in any event not a requirement (Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC & Others SA 81 (SE) Was it proper for respondent to commence its action by way of a simple summons? [20] It terms of Rule 17(2) (b), simple summons can only be issued for a debt or a liquidated demand. Combined Summons are issued where the claim is not a debt or liquidated demand (Group Five Building Ltd v Government of the Republic of South Africa SA 787 (TPD) at 791F). It is an irregularity to issue a simple summons for a claim which is not a debt or liquidated demand. 6

7 [21] The original as well as the copy of the summons of the 2006 case clearly purport to have been prepared by respondent. There is no doubt about it. All the particulars on the two documents are the same save the amount of the claim and, to a certain degree the facts giving rise to the cause of action. The Court therefore accepts that the source of these two documents is the respondent and no one else. [22] The following are the facts giving rise to the 2006 case: 7

8 22.1 The copy of the summons The respondent was requested by the present applicant to submit a quotation to act as a facilitator for a Strategic Planning Session. It submitted it. It was then informed that it (respondent) was successful in this tender bid. The respondent then supplied applicant with the session material. Subsequently however, applicant appointed another bidder to render to it the same services in breach of their agreement. The applicant then copied respondent s written material, kept it, and used it. This material was respondent s sole intellectual property. As a result of applicant s breach, respondent suffered damages to the tune of R The original copy of the summons The applicant requested respondent to submit a quotation as a facilitator of a Strategic Planning Session. It submitted a quotation for R which was approved by applicant. Subsequently, on applicant s request, respondent supplied it with the necessary written material. The value of such material was R The applicant then, in breach of the agreement, copied, kept and used this written material. Due to this breach of the agreement, the respondent has suffered damages to the value of R (ie. R R ). 8

9 [23] In the 2007 case the basis for the claim of R is the agreed, alternatively the plaintiff s customary remuneration owing by the defendant to the plaintiff for services rendered.. [24] In my view, the respondent s claim in the 2006 and 2007 cases is not based on services rendered but on breach of the agreement. The facts suggest that respondent was appointed as the facilitator of the strategic planning session and it had to use its written material. However, applicant reneged on this agreement, because respondent never acted as a facilitator of the workshop. All it did was to supply the applicant with written material worth R If these are the facts giving rise to the claim, then this is a claim for damages consequent upon a breach of the agreement. In my view therefore, it was irregular to commence the action with a simple summons. [25] The respondent argued that this application is just vexatious, superfluous and an abuse of the process of court. Its view is that all the alleged irregularities are things of the past. The problem with this argument is that respondent is a very unpredictable litigant. When it realises that there are irregularities in its papers, it purports to withdraw the steps which it has taken only to resuscitate it in the future. This see saw game on respondent s part, boils down to irresponsibility and must be stopped forthwith. The last example of this behaviour is that in its 9

10 answering affidavit to the present application it also lodged a counter application for summary judgment. After respondent had perused the applicant s response to its counter application, it (respondent) withdrew it (the counter application). Nothing prevents it from lodging the same application in few months time. What respondent seems to overlook is that every time that it takes a particular step in the proceedings, applicant has to pay counsel to deal with that particular step. When respondent withdraws whatever step or application which it has taken / lodged, it does not compensate applicant for whatever he spent on its counsel. Costs [26] I have already alluded to the unnecessary costs which respondent has caused applicant. Its behaviour throughout the pleadings is despicable. Clearly, as applicant correctly pointed out, this is a litigant who avoided a trial on the merits, at all costs. Its whole aim was to obtain judgment against applicant at the slightest available opportunity. I am aware that at one stage or the other, respondent tendered wasted costs to the applicant. However, the behaviour of respondent in its totality deserves censure. It disregarded Court Rules; it applied for default judgment more than once when applicant was not in default and one of these applications (for default judgment) was not even served on applicant. Respondent went as far as to reflect the particulars of Attorney Pitsoane on its summons when this attorney or his firm knew nothing about this case. This is a clear case of dishonesty. [27] In the result, the following order is made: 1. The respondent s entire pleadings so far, including the simple summons, are declared irregular and are set aside; 2. The respondent shall pay the applicant s costs on the main action incurred so far on the scale as between attorney and client; and 3. The respondent shall pay the costs of this application on the scale as between attorney and client. 10

11 SAMKELO GURA JUDGE OF THE HIGH COURT Attorneys for the Applicant: M.M. Baloyi Attorneys C/O Hlahla Motlhamme Attorneys 1547 Cnr Tlhoaele & Molamu Street MONTSHIWA Attorneys for the Respondent: Gura Tlaletsi Incorporated No. 38 Carrington Street MAFIKENG 11