REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO.: 52986/2016 (1) REPORTABLE: 'fES I NO (2) OF INTEREST TO OTHER JUDGES: '!'ES I NO (3) REVISED: ¥ES I NO

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DATE

In the matter between:

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MARTHINUS DANIEL OOSTHUIZEN

VANTICENTO (PTY) LTD

and

MARIE BESTER

Heard: 16 October 2017

Delivered: 20 October 2017

VAN DER SCHYFF AJ :

JUDGEMENT

1 sr APPLICANT

2 ND APPLICANT

RESPONDENT

[1] The Applicant in this matter applied to Court to set aside an irregular step in terms

of Uniform Court Rule 30(1 ). The application was brought on notice and not supported by

an affidavit. Certain annexures accompanied the application.

The general background to the application

[2] On 7 July 2016 Applicants delivered a notice of motion in the main application in

case number 52986/16 at the offices of the Respondent's attorneys of record . (During

argument counsel for the Respondent indicated that it was agreed between the parties that

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the service could be effected by serving the notice of motion at the Respondent's attorneys

of record's offices.)

[3] The notice of motion indicated that the Applicants have appointed Dempster

McKinnon Incorporated as their attorneys of record. The address of Le Roux Du Plessis,

1007 Saxby Avenue, Eldoraigne, Centurion, Pretoria, was provided as the address at

which Applicants would receive notice and service of all documents in these proceedings.

It is important to note the wording of Uniform rule 4A:

'4A. Delivery of documents and notices.-(1) Service of all subsequent documents

and notices, not falling under rule 4 (1) (a), in any proceedings on any other party to the

litigation may be effected by one or more of the following manners to the address or addresses

provided by that party under rules 6 (5) (b), 6 (5) (d) (i), 17 (3), 19 (3) or 34 (8), by-

(a) hand at the physical address for service provided; or

(b) registered post to the postal address provided; or

(c) facsimile or electronic mail to the respective addresses provided.

(2) An address for service, postal address, facsimile address or electronic address mentioned

in sub-rule (1) may be changed by the delivery of notice of a new address and thereafter service

may be effected as provided for in that sub-rule at such new address.

(3) Chapter 111 , Part 2 of the Electronic Communications and Transactions Act, 2002 (Act No.

25 of 2002) is applicable to service by facsimile or electronic mail.

(4) Service under this rule need not be effected through the sheriff.

(5) The filing with the registrar of originals of documents and notices referred to in this rule shall

not be done by way of facsimile or electronic mail. '

[4] Applicants' attorneys of record did not receive any notice to oppose the application.

However, and to their surprise, they received a notice in terms of Uniform rule 35(12)

dated 20 July 2016.

[5] Since Applicants had not been served with a notice of intention to oppose, prior to

receiving the Rule 35(12) notice, Applicants' attorneys of record served a notice in terms of

Uniform rule 30(2) on Respondent's attorneys of record upon receipt of the Rule 35(12)

notice.

[6] It needs to be mentioned that the Rule 35(12) notice was served on the Applicants

by e-mail.

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[7] On 28 July 2016, Respondent's attorneys of record wrote a letter to Applicants'

attorneys of record. It is clear from the content of this letter that the Rule 30(2) notice came

as a surprise to Respondent's attorneys of record. They wrote: 'The aforesaid seems

awkward. We take the liberty of appending hereto a notice of intention to oppose not only

served on both your known e-mail addresses but also filed at the court on 8 July 2016.'

[8] It is apparent from this letter that the Respondent's attorneys held the view that by

attaching the notice of intention to oppose to the e-mailed letter dated 28 July 2016, they

have removed the cause of the complaint.

[9] Respondent's attorneys of record, clearly under the impression that they were now

re-delivering the notice of intention to oppose, stated in the letter to which they attached

the notice of intention to oppose: 'In light of the aforesaid you are called upon to file a

notice of withdrawal of your notice of objection, same within 10 (Ten) days from date

hereof and tender the costs for the fatally flawed effort in absence whereof we hold

instruction to apply to court.'

[1 O] Applicants' attorneys of record replied in a letter dated 1 August 2016 and merely

informed Respondent's attorneys of record that the notice of intention to oppose is 'fatally

defective and as such our Rule 30(2) notice stands'.

[11] What transpires from the correspondence between the parties is that Applicants'

attorneys of record did indeed not receive any notice of intention to oppose from

Respondent's attorneys of record prior to the notice of intention to oppose attached to the

e-mail dated 28 July 2016.

[12] It also becomes clear that the Respondent's attorneys of record intended to deliver

the notice of intention to oppose via e-mail but used the wrong e-mail addresses.

[13] That the Applicants' attorneys were distressed by the allegations that e-mails were

sent which they did not receive, is evident from the fact that they engaged the services of

an internet specialist whose account amounted to more than R23 000. After an in-depth

investigation into the Applicants' attorneys of record 's electronic mail system, the internet

specialist noted that the Respondent's attorneys used the wrong e-mail addresses when

they endeavoured to serve the notice of intention to oppose the first time.

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[14) It is apparent from Applicants' replying affidavit and the oral argument of their

counsel that one of the aspects that really irks Applicants' attorneys is the fact that

Respondent's attorneys never explained how it came about that the wrong e-mail

addresses were used.

[15] The attorneys of record became combatants on their clients' battlefield. Had the

Applicants' attorneys of record accepted the notice of intention to oppose as attached to

the e-mail of 28 July 2016 we might not have been here today. Had the Respondent's

attorneys of record conceded that a mistake was made when the notice of intention to

oppose was served not only by e-mail (a mode of service not in accordance with the

information provided in the Applicants' notice of motion in the main application) but also

sent to not one but two wrong e-mail addresses, and apologised, the matter could have

been sorted out.

[16] The correspondence attached as annexures by both parties indicates very clearly

that as the matter progressed, the relationship between the respective attorneys' firms

became tense, and deteriorated to the extent of being hostile.

[17) Frustrated by the Respondent's lack of respect reflected in their refusal to offer an

apology or explanation as to how it came about that the notice of intention to oppose was

sent to the wrong e-mail addresses, and now being out of pocket in excess of R23 000

clearly affected the Applicants' attorney's agreeability to condone the service of the notice

of intention to oppose attached to the letter dated 28 July 2016.

[18) As a consequence the court has to decide on the 'Application to set aside irregular

step in terms of Rule 30(1)' .

[19) Many valuable hours have already been spent on this application. The court is not

going to waste any more time by lecturing the legal representatives on the duty of courtesy

owed towards opposing practitioners.

[20) The Applicants requested the court not to grant condonation to the Respondent for

the late filing of the answering affidavit.

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[21] The Applicants did not convince the court that they will be prejudiced if the court

does accept the Respondent's answering affidavit. In the interest of justice and the

furtherance of respective parties' interests, the court condones the late filing of the

Respondent's answering affidavit.

[22] The Applicants' attorney of record additionally states in his replying affidavit that he

'does not believe that Malan (the deponent of the Respondent's answering affidavit) has

either personal knowledge of this matter or that he is encumbered with the administration

of the matter'. Since more than one attorney can be involved in a matter and in light of the

fact that the application was not brought by way of notice of motion supported by an

affidavit containing specific statements which refer to specific persons' conduct, the court

cannot hold that the deponent of the Respondent's answering affidavit is not properly

suited to provide an exposition of the facts under oath to the extent that he did.

[23] From the application, brought only on notice and its annexures, it is evident that the

Applicants' complaint is the delivery of a Rule 35(12) notice without the latter being

preceded by service of a notice of intention to oppose.

[24] It is common cause that the Applicants' attorneys of record did receive a notice of

intention to oppose attached to a letter e-mailed to them on 28 July 2016. From the

correspondence attached to the application it is evident that the Respondent's attorneys of

record were under the mistaken belief that the latter had been served on the Applicants by

e-mail prior to the service of the Rule 35(12) notice.

[25] It is important to note that the Applicants' attorneys of record do not have a problem

with the mode of delivery of the of the Rule 35(12) notice, but with it being delivered

without a notice of intention to oppose being delivered first. Since the notice in terms of

Rule 35(12) was also delivered by e-mail and the mode of delivery accepted, or at the very

least condoned by Applicants' attorneys of record in this instance, the issue of delivery or

service of the notice of intention to oppose via e-mail becomes moot.

[26] Applicants' attorneys of record became aware of Respondent's intention to oppose

the main application when they received the Rule 35(12) notice. This was confirmed when

the notice of intention to oppose was subsequently attached to the letter dated 28 July

2016 and sent to them via e-mail.

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[27] Technically, it would be impossible to find that there was no irregular delivery of the

Rule 35(12) notice before 28 July 2016 because there was, in fact, no delivery at all of the

notice of intention to oppose prior to that date.

[28] However, Harms SC of the High Court, remarks in the well-known Civil Procedure

in the Superior Courts (Lexis Nexis, July 2017 - SI 59) para 830.8:

'In order to succeed with the application [in terms of Rule 30(1 )] , the party who applies

for the proceedings to be set aside has to suffer prejudice relating to the continuation of the

litigation.'

[29] That this is the correct view is evident from case law (See De Klerk v De Klerk 1986

(4) SA 424 0N); Rabie v De Wit [2013] JOL 30203 0fVCC)). It was similarly held by the

Free State High Court in Fuku v Mpoka A137/2013, decided in September 2013 para 8,

that '(i)f no substantial prejudice is caused by an irregular step, it might be better to ignore

it since an application to set it aside may well be dismissed' .

[30] In Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F-H it was

stated:

'No doubt parties and their legal advisers should not be encouraged to become slack in

the observance of the Rules, which are an important element in the machinery for the

administration of justice. But on the other hand technical objections to less than perfect

procedural steps should not be permitted, in the absence of prejudice, to interfere with the

expeditious and, if possible, inexpensive decision of cases on their real merits.'

[31] After careful consideration of the notice and the affidavits filed in this matter I

conclude that the irregularity complained of by the Applicants' attorneys of record is a

classic example of a 'technical' objection. In addition, Applicants' attorneys of record have

not convinced me that the Applicants have 'suffered prejudice in relation to the

continuation of the litigation' due to the irregularity complained of.

[32] The court is of the opinion that the prejudice that the parties to this matter suffered,

if any, was equally occasioned by their respective attorneys' intolerance towards each

other.

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[33] In deciding the order as to costs the court takes into consideration that the

Respondent's attorneys of record decided, out of their own accord and without reverting to

the Applicants' attorneys, to serve the notice of intention to oppose by email; the notice of

intention to oppose was initially sent to incorrect e-mail addresses and the delivery of the

Rule 35(12) notice came as a total surprise to the Applicants' attorneys of record; the

Respondent's attorneys of record regarded the attachment of the notice of intention to

oppose to the letter of 28 July 2016 as proper service of the notice; despite being

requested to do so Respondent's attorneys of record never provided an explanation as to

how it came about that the notice of intention to oppose was sent to wrong e-mail

addresses and the Rule 35(12) notice to the correct e-mail address; and that the

Applicants' attorneys of record accepted and acted upon the e-mail service of the Rule

35(12) notice but insisted that a notice of intention to oppose has not been delivered.

I THEREFORE MAKE THE FOLLOWING ORDER:

1. The application for setting aside an irregular step in terms of Rule 30(1) is dismissed.

2. The notice of intention to oppose attached to the letter dated 28 July 2016 must be

regarded as being properly served.

3. The service of the Rule 35(12) notice is regarded to have occurred after the notice of

intention to oppose had been delivered;

4 The Applicants' attorneys of record must act in their discretion and according to their

instructions in terms of the Rule 35( 12) notice within 1 O (TEN) days from the date of

this order.

5 Respondent is ordered to pay the costs pertaining to the Rule 30(2) notice.

6 Applicants are ordered to pay the costs of the Rule 30(1) application.

~~&FF Acting Judge of the High Court