The Latest Urgent Notice of Motion

As at 4th December 2020

I am not a sore loser – I was brought up to play fair. The corollary of which means I expect others to play fair. We received the latest urgent notice of motion on the night of Thursday 26 November 2020. We had to submit our intention to oppose  by the Monday. The answering affidavit needed submitting the next day. Not a lot of time if you have to find, appoint and brief an attorney and advocate. Worse still if you have to find a legal team with correspondents at the High Court. Even worse if the application is an abuse of court process and merely a delay tactic.

Representing Oneself in High Court

The last urgent notice of motion cost us R224,678. We simply did not have that sort of money sitting in the bank to throw at this one. As a result we had no choice but to represent ourselves. Judges don’t like it, but it is your right. Vexatious litigants hope for this situation – to wear you out or deplete your funds. It may even be part of the applicant’s strategy to put notices of motion on the urgent roll. Being on the urgent roll means the respondents’ legal representatives probably have to work overtime. And, as if legal representation is not costly enough, weekend rates are even worse.

Abuse of Court Process

This notice of motion was never urgent. How the applicant managed to get the notice on the urgent roll is questionable. There was no date set down for an arbitral hearing and hence absolutely no urgency. There was no raging fire requiring immediate court intervention. Who allowed this abuse of court process? This was not the first, or last time, we’ve seen this behaviour from this litigant.  Read our post Vexatious and Frivolous Litigation giving more details on the litigation process.

Our Opposition

The arbitrator was the first respondent. As an arbitrator he is prevented from involvement save to say he “will abide by the court’s decision“. Any opposition was left up to us.

Our opposition included a number of reasons.

• Firstly, the developer / applicant had included in the urgent notice of motion ALL the damages in the Statement of Claim for the arbitration. They wrongly included the damages to actually fix the house. The developer should ONLY have mentioned the damages that the developer deemed “special” damages.
• Secondly, the developer wanted the arbitrator removed. The arbitrator had ruled that he could arbitrate on all the damages. But, the developer did not like that ruling. The applicant was a bit confused though. Their plea was to remove the arbitrator. They then contradicted themselves and wanted him to make “any award that he deems appropriate”.
• To understand why arbitration is so important, the Bill of Quantities to fix the house is R1,83 million.
• Other losses exceed R1,5 million.
• We are talking a lot of money. Important to remember is that the builder has been paid in full. More important is the fact that we have a house we cannot occupy.

Request a Teams Hearing

Since Covid came into our lives, it is normal practice for hearings to be via the internet. In December 2020 the second wave was in full swing. As we are both over 60 years of age we were loathe to travel. We requested a Teams hearing. It so happens we had already sat in on 1 previous Teams hearing. Of course, the hearing was with this litigious developer and another urgent notice of motion!

Be that as it may, the judge did not grant us a remote hearing. Why? The judge said it took too much time to set up!

Arbitrator’s Legal Representatives

The Arbitrator’s legal team were smart. They had written to the applicant’s legal team saying they would ask for the matter to be struck off the urgent roll. Also, they would ask for a punitive costs order. It turned out these were empty threats.

Horse Trading

The applicant’s and arbitrator’s legal teams did some horse trading. The horse trading was over the arbitration costs and the threat of a punitive costs order. As a result, nothing more was done to remove the matter from the urgent roll and the abuse of court process continued. But the applicant got the arbitrator to say he would abide by the court’s decision. The arbitrator then had no costs order threat against him.

Payment of Arbitration Costs to Date

The arbitrator is a highly respected builder. He employed a large reputable law firm to represent him. His legal representative objected to the urgency of the motion, suggesting it was an abuse of court process. But, they arranged for the draft order to include payment of the arbitrator’s invoices to date.

• I did not want the arbitrator removed. In fact we hoped the arbitration would be complete by year-end 2020.
• The applicant wanted the arbitrator removed. Surely then the applicant should pay the full costs of the arbitration to date? After all, we have to start the whole arbitration process again, from scratch.

Phoning Court

These are some of the phone calls. I have a record of all the calls between me, the Judge and his secretary.

Call 1

I phoned the High Court to make sure the registrar had received our Answering Affidavit and supporting documents. No one answers the registrar’s phone so I ended up calling the judge’s secretary. I did not realise at the time, but the person who answered the phone was the judge himself. The voice seemed sympathetic. This person seemed to understand our situation. He agreed we had not been given much time. Also, he suggested we go to the Johannesburg High Court to get a pro bono advocate to represent us. Then he told me to call back after 3.30 to speak to the secretary.

Call 2

At 3.30 I called back. The secretary immediately put me through to the judge: I realised this was the voice I had spoken to earlier. From what he was saying I was convinced he was going to postpone the hearing. He instructed me to give all our contact details to the secretary. She would call me the next day when the advocate was around.

The Draft Order

The judge also asked if I had seen the draft order? No I hadn’t because the applicant’s legal team shared nothing with us even though we were representing ourselves.

The next day, Thursday, came and went without a word and without a call. But this was the day of the hearing! I did however receive a copy of the draft order prepared by the applicant’s attorney. I immediately responded with our own draft order:

DRAFT  ORDER

Having perused the papers filed of record and having heard counsel on behalf of the applicant,

IT IS HEREBY ORDERED THAT:

 

1. The Applicant’s non-compliance with the ordinary rules of this Honourable Court is not condoned.

2. The Applicant’s application is dismissed.

3. The Applicant shall pay the costs of this application.

4. The Applicant shall not receive further and/or alternative relief.

Another Conversation with The Judge

Friday, 4th December at midday I called the secretary as we still had heard not a word. Again I was put through to the judge. He said he could not postpone the matter as it was urgent. Strange after our first conversation regarding the urgent notice of motion?

I told him I had seen the draft order. I added that I did not think I should be responsible for the arbitrator’s invoices as in paragraph 4 of the draft order. The Judge responded, “I overlooked that. I will remove it”. And then he said that I should not try to protect the arbitrator (odd phraseology) as the arbitrator has written a letter admitting he is not qualified to arbitrate in these matters. How very odd. Be that as it may, who am I to argue with a judge? He then said I should not worry about the invoices as the arbitrator has admitted he is not qualified and he therefore has no right to bill us.

The Arbitrator’s Alleged Letter

I immediately emailed the arbitrator’s and applicant’s representatives reminding them that we were representing ourselves and to send me a copy of this letter.

It turns out the arbitrator wrote no such letter. And the judge left in paragraph 4 ordering us to pay the invoices! (The invoices arrived on the following Monday!)

Did the Judge really make the judgement and pass an order based on a letter that does not exist and that no one else has seen?

Apply to Get The Judgement Overturned

The judge’s secretary wrote to me telling me to apply to get the judgement overturned. What a waste of time: all the honourable justice had to do was postpone the hearing as he had indicated. Or, at the bare minimum he could have called us when the advocate was around as he said he would.

This matter shows how easy it is to abuse court processes. But also, one wonders why did the Judge not insist on seeing the alleged letter?

What is going on in this [unnamed] High Court? Whatever it is, it is not altogether healthy. 

Letters to Court

Letter from the Arbitrator’s Representative

We have noted that this application has been set down on an urgent basis for Thursday, 3 December 2020, and that your client seeks inter alia an order in the following terms:

2.1            setting aside our client’s ruling that the second and third respondents’ claim for special damages is arbitrable, and falls within our client’s jurisdiction …

 2.2            .. a declaratory order be issued in terms whereof it is declared that the special damages do not fall within the ambit/scope of the arbitration clause contained in the Building Agreement dated 23 September 2016 and is therefore not arbitrable;

2.3            .. our client be removed from office …

2.4            .. the costs of the application be borne by our client, alternatively … jointly and severally. 

3. We place on record that:

3.1            Our client was duly appointed as an arbitrator …

3.3            Our client further confirmed .. his decision in this regard was final …;

3.4            … there is no hearing date presently set for the arbitration. 

 4.             In view of the above, it is clear to us that there is no basis for urgency and this application amounts to a blatant abuse of the process. …

Letter to the Secretary

Dear Mrs Zxxx

I am really concerned about the letter that Judge xxxxxx refers to where Mr Arbitrator states himself that he is not qualified to rule on these special damages.

Is it possible for Judge xxxxxx to postpone this matter and say it is not urgent? WW [law firm] is even of the opinion that the matter is not urgent.

If the Applicant wants the special damages removed surely the arbitrator can continue to rule on the ordinary damages? 

There should be no need for the arbitrator to be removed from the whole arbitration.

Yours faithfully,

Letter from the Secretary

As you are aware that the order has been granted today.  Unfortunately the Judge says he has to remain impartial in this matter he cannot advise you on what legal steps to take further.

The best for you to do is to make an application to court to set aside.

Kind regards,

Removing an Arbitrator

It is very unusual to remove an arbitrator – so rare that it is usually only in a case of death. Even when the developer tried to appoint their own arbitrator, they never complained about the arbitrator and his conduct.

So how did this applicant get rid of a highly respected arbitrator so easily?

• Judges on the urgent roll are expected to hear numerous cases each day.
• Did the judge make a ruling on a letter that does not exist?
• Once the judge heard there was “a letter” he took the next step and removed the arbitrator. But he was very remiss not to see and validate such vital “evidence”.
• Why did the judge hear only the applicant’s side when he knew we were opposing? Also, he had said he would call us when the advocate was around.
• Certainly, the judge did not read our answering affidavit.
• What was the judge’s reasoning?

We have had to employ an attorney to get these answers. Unfortunately we may only get the answers at the end of January 2021.

Another New year with no house, no occupation certificate and the cowboy builder and unethical developer have been paid in full!

In Conclusion

The bottom line is that the developer/applicant does not want to be judged by a peer in the building industry. They can probably pull the wool over a judge’s eyes but a peer can see exactly how badly the house has been built.

Post Script

At the end of January 2021 the Judge gave the reasons for his ruling. He never mentioned the arbitrator’s alleged letter. His reason was that we did not appear at court. I have a record of all the calls between me, the judge and his secretary. At no point did we ever say we would be in court.

On 2 June 2021 the matter was set down to be re-heard. However the developer’s advocate removed the court papers from the allocated judge’s pigeonhole. Where did he put them? In the urgent judge’s pigeonhole! What is the attraction to the urgent court roll and urgent notices of motion? What an abuse of court process.

We now have to wait to 10 August 2021 to have the hearing. See our post Here We Go Again to read about further court action regarding the arbitration.