In casu, there is really no aspect of the matter that has
not been dealt with, or commented upon before.
In particular, the applicant used a format that is foreign
to our Rules. The respondent objected. The objection was taken as far back as
the notice of opposition. It was persisted with in the ...
In casu, there is really no aspect of the matter that has
not been dealt with, or commented upon before.
In particular, the applicant used a format that is foreign
to our Rules. The respondent objected. The objection was taken as far back as
the notice of opposition. It was persisted with in the heads of argument.
Finally, it was pressed on with at the hearing. But throughout all these
stages, the applicant steadfastly refused to acknowledge any wrong doing. It
has argued that its format substantially complies with the Rules. It has
consciously and deliberately, so it seems to me, refrained from applying for condonation.
But with the weight of authorities against such a stance,
what has been the applicant's argument?
The applicant's argument before me was that this was the
return day of the provisional order. It argued that the respondent had
consented to the grant of the provisional order and that the provisional order
had been predicated on the very same application now sought to be impeached.
Furthermore, the argument went on, this court had also seen it fit to grant the
provisional order on the basis of the same application. Therefore, the argument
concluded, the respondent was now disbarred from raising the challenge.
In my view, the applicant's argument is illusory.
That the respondent consented to the provisional order
being granted on the basis of a defective application, or that this court had
gone on to grant the provisional order, did not, in my view, disbar the
respondent from raising the objection on the return day. There are a number of
reasons for my saying this. The defective application gave notice of an
application for an order in terms of the draft. One goes to the draft order. It
was on the return day, the day when the final order was being sought, that the
actual application would be moved and the substantive relief sought. It was on
the return day that the respondent would be called upon to show cause why its
writ of execution should not be set aside. It was on the return day that the
respondent would show cause why its legal practitioner of record should not be
ordered to pay the costs of suit personally, or, in the alternative, why it
should not itself pay them at the higher scale.
In other words, the actual application would happen on the
return day.
Given the somewhat summary fashion with which issues are
inevitably dealt with in urgent applications, a respondent might consider it
futile to contest the fact that the applicant might have established some prima
facie right worthy of interim protection by the court. A respondent might
decide that an applicant's fear of an irreparable might be found to be
reasonable by the court. It might also decide that the balance of convenience
might be found to favour the applicant, and so on. So the respondent might
decide to reserve its rights to fight the real battle on the return day.
Therefore, I do not read anything into the respondent's consent to the granting
of the provisional order, or the fact that this court went on to actually grant
it. The respondent was entitled to raise the objection on the return day.
Nothing was decided by the provisional order.
