The Mbombela High Court issued an order against the Nelspruit Golf Club on Wednesday 3rd April interdicting the club from interfering with the Pro Shop’s rights in terms of its lease with the club.
The Pro Shop brought an urgent application on 2nd April subsequent to the club’s management committee embarking on a series of actions that infringed the rights of the Pro Shop to conduct certain exclusive rights at the club. The application was brought subsequent to the Pro Shop’s attorney, mr Gerrie Groenewald having written various letters to the club in an attempt to avoid litigation an curb costs. The club and its attorneys refused to co-operate.
The urgent application was launched when 30 brand new Club golf carts, to the value of approximately R2,4 million, were delivered to the club on 27 March with the obvious intention of doing business in opposition with the Pro Shop. In his affidavit opposing the urgent application, Mr Angelo Sabastian, the club captain, denied that the club had purchased or taken delivery of the carts. He alleged that it was merely a mistaken delivery. It later transpired that the carts were on the same day taken to a holding facility of Smith Power, the agent’s of Club Car in Riverside, because a forklift was allegedly not available to off-load the carts from the trucks.
The Court held that the notice of demand, dealing with alleged breaches of the lease by the Pro Shop, was defective and unlawful. The Court granted the application and ordered the club to pay the Pro Shop’s legal costs.
Christo Smith appeared in the proceedings on instructions of Gerrie Groenewald Attorneys.
The court a quo when dealing with s 38(1) said “…utilization of an ex parte application as a matter of must and right may not get the pleasure of the court unless there are facts justifying the bringing of any application on ex parte and or in camera’. Furthermore, the court a quo went on to say “[a]s I said, bringing the present application in terms of s 38 for possible forfeiture under s 48 read with section 50 of the POCA without giving notice, amounts to an abuse”.
The court a quo dealt with some of the provisions of the Practice Directives of the Mpumalanga Division of the High Court 1 of 2016 and said: ‘[p]aragraph 2.5.5.2 of Mpumalanga Division of the High Court provides that; “ex parte applications, that is applications enrolled without notice being given to the affected party or parties; will not be enrolled and heard; except where such notice is not required by and will not adversely affect any person”. In addition paragraph 2.5.5.3 provides that “any ex parte application will only be enrolled and heard in exceptional circumstances, which must clearly and concisely be set out in the founding affidavit”’. The court a quo was of the view that the s 38 application must comply with the provisions of the Mpumalanga Division of the High Court practice directives.
The SCA held that : The practice directive is subordinate to any relevant statute, the common law and the Uniform rules and it cannot be applied to restrict or undermine any piece of legislation, the Uniform Rules of Court or the common law. Practice directives deal essentially with the daily functioning of the courts and, their purpose is to supplement the rules of court. In this case, the court a quo afforded the practice directive statutory force overriding both s 38 of the POCA and rule 6(4)(a) of the Uniform rules which is impermissible. The practice directive should not negate the provisions of s 38 and rule 6(4)(a) of the Uniform rules.
The question now arises as to how this judgment will affect other provisions of the Practice Directives that seemingly are in conflict with the rules of court. One such matter is the practice that matters may not be postponed sine die by agreement between the parties but have to be postponed to a specific date and case managed. This directive is seemlingly inconsistent with the Uniform rules of Court. Rule 41(3) states that
(3) If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly.
In addition Rule 27(1) states as follows :
27(1) In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.
Both rules imply postponement by agreement between the parties.
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