Biggs v Cousins
| Jurisdiction | South Africa |
| Judge | Tshiki J |
| Judgment Date | 15 July 2014 |
| Docket Number | 3323/2013 |
| Court | Labour Court |
| Hearing Date | 06 March 2014 |
| Citation | 2014 JDR 1478 (LC) |
Tshiki J:
INTRODUCTION
The applicants herein had earlier approached this Court for an order, inter alia, setting aside the summons issued by the third and fourth respondents herein against them. The basis for their application is, inter alia, that the summons constitutes an irregular step (under Rule 30) as an unsustainable abuse of civil process of the High Court. Also granting a declaratory order that the determination of the substitute Directors (third and fourth respondents) made on 22nd April 2013, is lawful, final and binding on first to tenth respondents and that the loan accounts referred to therein are by virtue of the land allocation therein equalised. That
2014 JDR 1478 p2
Tshiki J
application was opposed by the respondents (third and fourth respondents herein) on various grounds.
That application was argued before me on the 6th March 2014 after which I reserved my judgment. Whilst the judgment was still reserved and on the 10th April 2014 the applicants herein filed the present application seeking permission to file further affidavits relating to the loan account determination of the first and second respondents. The second application was couched in the following terms:
directing the first and second applicants to file such supplementary affidavits within ten (10) days of the granting of this order;
granting leave to the first and second applicants (and any of the respondents who choose to do so) to submit further written and oral arguments to me as the Judge they believe is already seized with the matter;
ordering that costs of this application be costs in the cause;
further and/or alternative relief.
It should be noted and for obvious reasons, that this application to file further affidavits should be decided before the judgment that was reserved on the 6th March 2014.
Should this application be successful I will have to first grant the applicants herein leave to amend their papers in the main action which is sought to be set aside by the respondents in the main application before considering the main application.
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Tshiki J
Respondents (applicants in the main application) Van Deventer and Addo Afrique Safari Lodge, have opposed this application on the grounds, inter alia, that:
In terms of the contents of annexure "GVD3" on page 74 of the papers herein, the parties had agreed on the correctness of the Loan Accounts Balances as at 13th December 2012.
The Court order endorsing the parties' agreement relative to and inclusive of the Settlement Agreement was agreed to by the parties. The order of the Court referred to herein was marked as "GVD1".
In terms of claim 2 of annexure "A" to annexure "GVD1", the Substitute Directors had to determine the respective loan accounts of the parties which would include the loan accounts of the first and second applicants as well as the loan accounts of the third and fourth respondents. Their decision would be final and binding on the parties.
In terms of the contents of annexure "GVD3" the applicants and third and fourth respondents, in writing, accepted the loan accounts determinations as aforesaid.
On the 22nd April 2013, first and second respondents in terms of clause 8 of annexure "A" to annexure "GVD1" published their determination to equalise the loan accounts of the first and second applicants and those of third and fourth respondents.
According to respondents herein the information disclosed by applicants is irrelevant and immaterial to the real issue to be determined in the main application to set aside the summons. In other words the present application, even if granted, does not further the applicants' cause in the main application to set aside the summons as an irregular proceeding.
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Tshiki J
Applicants herein have replied to the respondents' answer. I have noted that the replying affidavit consists of 17 pages against the founding affidavit consisting of seven pages, whilst the respondents' answering affidavit consists of 12 pages.
It is trite practise that all the necessary allegations upon which the applicant relies must appear in his or her founding affidavit. This is so, because the applicant will generally not be allowed to supplement the founding affidavit by adducing supporting facts in a replying affidavit. This is so, especially in interlocutory applications of this nature which is specifically dealing with amendment and or with the filing of additional affidavits. In this case the applicants' replying affidavit consists of a repetition of facts already dealt with in the founding affidavit and for reasons stated in paragraph 9 supra I need not deal with the specific therein. This practise should be discouraged at all costs because it amounts to the abuse of the Court process. In Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA 4-7 (SCA) at 439G-H Schultz JA in a similar issue remarked as follows:
"There is one other matter that I am compelled to mention - replying affidavits. In the great majority of cases the replying affidavit should be by far the shortest. But in practice it is very often by far the longest - and the most valueless. It was so in these reviews. The respondents, who were the applicants below, filed replying affidavits of inordinate length. Being forced to wade through their almost endless repetition when the pleading of the case is all but over brings about irritation, not persuasion. It is time that the Courts declare war on unnecessarily prolix replying affidavits and upon those who inflate them."
A reply in the form of the length and contents of the applicants' reply herein is an abuse of the Court process and should be discouraged by an order striking out the irrelevant portions thereof. In some cases it would be proper to have the whole
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