Industrial Development Corporation of South Africa v Sooliman and Others

• Jurisdiction: South Africa

Industrial Development Corporation of South Africa v Sooliman and Others
2013 (5) SA 603 (GSJ)

2013 (5) SA p603

Citation	2013 (5) SA 603 (GSJ)
Case No	2013/21466
Court	South Gauteng High Court, Johannesburg
Judge	Sutherland J
Heard	July 17, 2013
Judgment	July 19, 2013
Counsel	L Morison SC (with R Keightley) for the applicant.; N Alli for the first and third respondents.

Flynote : Sleutelwoorde B

Practice — Applications and motions — Urgent application — Application for reconsideration of order granted in person's absence — If affidavit is filed in answer to what was before court when order granted, reply may be filed — But if no answering affidavit is filed, no replying affidavit may be C filed — Uniform Rules of Court, rule 6(12)(c).

Headnote : Kopnota

In this case the applicant applied urgently and ex parte to a high court for an interdict against three of the respondents. The high court granted the order and thereafter the first and third respondents applied to the court for its D reconsideration under Uniform Rule 6(12)(c). In support of the application the first respondent filed an affidavit, in answer to what the applicant had put before the court in asking for the interdict. To this answer the applicant filed a reply, which the first respondent applied to strike out. It contended that a replying affidavit was impermissible in this context. In issue was whether this was so. (Paragraph [4] at 604E – F.) E

The court held that, if a respondent who invoked the rule chose not to put up an answering affidavit, then the applicant likewise had no need or opportunity to put up a reply. However, if the respondent chose to file an answer, then the applicant could file a reply, which was subject to the usual rules. (Paragraph [12] at 606J – 607A.)

Cases Considered

Annotations F

Case law

Basil Read (Pty) Ltd v Nedbank Ltd and Another 2012 (6) SA 514 (GSJ): considered

ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others 1996 (4) SA 484 (W) ([1996] 4 All SA 58): dictum at 486H – 487D applied G

Oosthuizen v Mijs 2009 (6) SA 266 (W): dictum at 269H – 270B followed

Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W): not followed

Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C): referred to H

The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1) SA 215 (SE): considered.

Rules Considered

Rules of court

The Uniform Rules of Court, rule 6(12)(c): see The Supreme Court Act and the Magistrates' Courts Act and Rules (Juta 2012) at 38. I

Case Information

L Morison SC (with R Keightley) for the applicant.

N Alli for the first and third respondents.

An application by a party for reconsideration of an order granted in its absence. The order is in para [35]. J

2013 (5) SA p604

Judgment

Sutherland J: A

Introduction

[1] On 19 June 2013 the applicant procured an interdict against the first, second and third respondents, freezing their bank accounts with the B fourth respondent and attaching certain movable equipment. The order was taken urgently and ex parte. This was the second such order taken, the first being on 4 June 2013, in respect of two trucks.

[2] The order of 4 June has not been challenged. The first respondent, Sooliman, and the third respondent, Akbar, who is the wife of the first C respondent, seek a 'reconsideration' of the order of 19 June, as contemplated by rule 6(12)(c) which expressly provides therefor in the case of an urgent order taken against a person without notice. The two applicants for reconsideration shall be referred to as Sooliman and Akbar, the applicant as IDC. The second respondent, a close corporation of which both other respondents are members, has not sought a D reconsideration.

[3] An affidavit was filed by Sooliman in support of the reconsideration.

May a replying affidavit be admitted by the IDC?

E [4] A preliminary controversy was ventilated about the propriety of an applicant in a rule 6(12)(c) application filing a replying affidavit, which was what IDC had done. An interlocutory application to strike out the replying affidavit was made. It was contended that no replying affidavit was permissible. Reliance was made on the decision in Basil Read (Pty) Ltd v Nedbank Ltd and Another 2012 (6) SA 514 (GSJ).

F [5] There have been several judicial pronouncements on the rule regarding the filing of affidavits in rule 6(12)(c) applications. In Rhino Hotel & Resort (Pty) Ltd v Forbes and Others 2000 (1) SA 1180 (W) at 1182B – D Joffe J held that the ambit of rule 6(12)(c) was such that the papers initially filed were alone permissible for the 'reconsideration'. However, G in The Reclamation Group (Pty) Ltd v Smit and Others 2004 (1) SA 215 (SE) at 218D – F, Froneman J allowed affidavits, ostensibly from both parties, to be admitted. The rationale was that the decision at reconsideration stage had to take stock of the reality that circumstances may have evolved since the order had been granted. The judgment did not address H the question of whether there ought to be a qualitative distinction drawn between an answering affidavit from the aggrieved respondent and a replying affidavit from the successful applicant.

[6] Neither of these two decisions referred to the earlier decision by Farber AJ in ISDN Solutions (Pty) Ltd v CSDN Solutions CC and Others I 1996 (4) SA 484 (W) ([1996] 4 All SA 58) at 487D, where it was stated that:

'Although no hard and fast rule need to be laid down, it seems desirable that a party seeking to invoke the Rule ought in an affidavit to detail the form of reconsideration required and the circumstances upon which it J is based.'

2013 (5) SA p605

Sutherland J

Plainly, Farber AJ encouraged the filing of an affidavit, the better to A inform the court.

[7] Then Wepener AJ (as he then was) in Oosthuizen v Mijs 2009 (6) SA 266 (W) addressed the issue. The judgment usefully and lucidly collects the relevant case law on the subject, and I do not again traverse B the ground thus presented. At 270C in Oosthuizen Wepener J categorically differed from the Rhino Hotel doctrine of 'no affidavits at all', and at 269H – 270B he endorses the approach of Farber AJ in ISDN Solutions, cited above. Wepener J held:

'I am of the view that a court that reconsiders any order should do so C with the benefit not only of argument on behalf of the party absent during the granting of the original order but also with the benefit of the facts contained in affidavits filed in the matter. The applicant filed an affidavit in support of its set down for a reconsideration. The respondent filed an answering affidavit and a reply was served and filed. If a court had to reconsider the order granted on an urgent basis in the D absence of a party, by limiting the hearing to permitting a party to supply additional argument and utilising the record of the original application only, a court would be closing its eyes to the facts placed before it that could have led to a completely different result when the order was originally granted in the absence of the one party. I am consequently of the view that a court should consider all the permissible facts disclosed in the affidavits before it.' E

[8] Saldulker J in Basil Read was called upon to decide whether to allow a hitherto successful applicant to file another affidavit which was designed, on her findings, to 'bolster' the initial case made out, when the aggrieved respondent...