Troubled BAC goes to CoA

Bame Piet | Tuesday December 9, 2014 16:08

In a letter dated December 5, 2014 to the applicant Patrick Matlho Attorneys, BAC lawyers Collins Newman and Company state their client’s intention to appeal Justice Terrence Rannowane’s ruling of November 28.

As a result of BAC and Belshane Property Pty (Ltd) being at each other’s throats over a P3 million-debt arising from services rendered under a contract signed over five years ago, the former’s property is to be attached.

Last week deputy sheriff Joseph Kokeletso attached and boarded BAC property and only relented after intense negotiations between the management of the institution, its lawyers, and Registrar of the High Court.

However, Patrick Matlho for Belshane Property was unfazed and has vowed to continue with the sale of BAC goods on December 18 as advertised in the newspapers last Friday.

 On behalf of BAC, Colllins Newman and Co. wrote him a letter: “We request that your client should not proceed with any further steps to execute the default judgment pending the hearing of the appeal, including the advertisement of the attached goods. Should your client not agree with our request, we bear instructions to launch an application for stay of execution on an urgent basis.”

However, yesterday Matlho hit back: “We have managed to consult client about your letter today and our instructions are clear and explicit: we must proceed with the execution of the valid Order/Default judgment, as your appeal is simply academic. For avoidance of doubt and in the event you are not aware, we have advertised the attached goods for sale on 5th December, Friday Mmegi, Volume 31 and Sunday Standard 07-13th.”

In their notice to appeal, the BAC lawyers state that they were suited to represent BAC and institute urgent application to set aside judgment granted on July 3, 2014.  

They are of the view the court misdirected itself in not acknowledging them as BAC attorneys, which led to its award of the default judgement.

“The court found that the Appellants attorneys had no authority to act on its behalf. However, the appellant had filed a power of attorney and company resolution which resolution had been taken giving authority and ratifying all of the attorneys actions well prior to the learned judge having considered the application and making and delivering his judgment. This negated the possibility thereafter repudiating the process and denying its authority, which the judge adopted as the object for requirement that a power of attorney and company resolution ought to have been filed,” Dineo Makati-Mpho of Collins Newman and Co said in the papers.

She added that the judge failed to exercise his discretion judiciously in dealing with the application to set aside the default judgment.

“The learned judge did not give proper balance to the requirements for granting of such application, namely, whether the appellant had explained its default and set out good prospects of success and that where the prospects for success are good as in the case of Appellant, the scales ought to have been tilted in favour of the Appellants, technical points of law being excepted,” she stated.

She further argued that there was evidence, confirmed by the court that the issuance by Registrar of a date for the roll call of August 11, 2014 on June 24 after the filing of an urgent application for default judgment on June 23 was a pure example of the right hand not knowing what the left hand was doing.

She said the judge failed to exercise his discretion in favour of BAC that the conduct by the Registrar could mislead any person to believe that no application for default judgment had been filed.  Furthermore, the matter was progressing in terms of Rules of the High Court.

She stated: “The court erred in failing to find that the matter was urgent when appellants attorney found out on 11 August that default judgment had been entered and explained that the application would have been moved in the normal course but for the fact that the Respondent’s attorneys moved to attach the appellants property on August 21, 2014 with express intention to remove such property and that the application was converted into an urgent one and moved before the learned judge by 22 August 2014.”

However, Matlho rubbished Makati-Mpho’s letter stating that Collins Newman and Co. had no mandate or power of attorney to prosecute.

 “The appellants grounds of appeal are argumentative and narrative in nature rendering them irregular and invalid as they contravene Rule 18 (1 and 3) of Court of Appeal rules,” Matlho said.

He argued that the reliefs sought by the appellant to set aside the judgment granted on July 3 2014, was not only premature, but also inappropriate. He said the November 28 ruling related to Stay of Application as applicants rescission was never heard or pronounced upon.