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[2019] ZAECPEHC 48
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van Sensie v Minister of Police (1658/2015) [2019] ZAECPEHC 48 (6 August 2019)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
–
PORT ELIZABETH
Case
No.: 1658/2015
In
the matter between:
SHADLEY
CRAIG VAN SENSIE
Applicant
And
MINISTER
OF POLICE
Respondent
JUDGMENT
REVELAS
J
:
1.
The defendant, in an action for damages
arising out of the plaintiff’s arrest and detention on 7
December 2013, seeks relief
in terms of Rule 30 of the Uniform Rules
of Court. The defendant applies for an order to set aside the
plaintiff’s application
for leave to amend his particulars of
claim as an irregular step.
2.
The trial proceedings commenced on 5
December 2018 and was postponed
sine die
on 6 December 2018, after the mother of
the plaintiff testified. It is common cause that the plaintiff was a
minor at the time of
his arrest. The case for the defendant is that
none of the police officers involved in his arrest and detention, and
further detention
were aware of the fact that he was a minor.
3.
The plaintiff’s mother, Mrs Maria van
Sensie, testified that she went to the Police Station where her son
was detained after
his arrest. She testified that despite the fact
that she informed a female police officer (not named) in the charge
office that
the plaintiff was a minor, he was not released into her
custody.
4.
The defendant objected to this evidence on
the basis that it introduced issues not pleaded and the matter
thereafter was postponed
sine die
.
5.
The defendant objected to the applicant’s
plaintiff’s notice of his intention to amend his particulars of
claim which
was subsequently filed. The plaintiff thereafter filed an
application for leave to amend his particulars of claim. The
defendant
then filed the present application in terms of Rule 30(1),
seeking an order to set aside the application for leave to amend the
plaintiff’s particulars of claim as an irregular step.
6.
The defendant argues that since the
amendment seeks to introduce a new cause of action, it is a
substantial application. The defendant
submits that the plaintiff’s
application seeking leave to amend his particulars of claim ought to
have been supported by
an affidavit, and since it was not, Rule 30(1)
applies. Further, the defendant asserts that the question of whether
or not the
amendment sought would be allowed, is to be decided in a
separate hearing, if the application to have the application for
leave
to amend set aside the application for leave to amend his
particulars of claim is dismissed.
7.
In my view, the defendant misunderstood the
purpose and rather limited application of Rule 30(1).
Rule 30 reads:
“
A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.”
[8]
In the commentary on this rule in
Erasmus
,
Superior Court Practice (B1-190) the learned authors state that
“
[the] irregular step contemplated
by the sub-rule must be a step which advances the proceedings one
stage near to completion. The
sub-rule
does
not apply
to
omissions
, but to positive steps
in the proceedings.”
(emphasis
added) The same authors, in the same paragraph also conclude that an
“
annexure of an unsworn
statement
to an affidavit is
also named as a step which is not an irregular proceeding under this
rule”.
It follows, in my view,
that the omission to attach an affidavit to an interlocutory
application for leave to amend particulars
of claim is not
per
se
irregular and ought not to be dealt
with under Rule 30(1). The rule has found application where a proper
power of attorney has not
been filed, proper service by a summons has
not been effected, an address for service of documents had not been
set out in the
summons, the pleadings were not signed in accordance
with the rules, or did not comply with the rules as to form (see
Erasmus
,
Superior Court Practice B1-190C where the aforesaid list is
tabulated). The examples mentioned are examples of matters of mere
formality, all of which could readily be corrected or remedied by
taking the appropriate action or step and dispose of the complaint
raised in the Rule 30(1) application finally and bringing the parties
one step closer to completion of the procedural aspects of
the case
in question.
[9]
In the present application, the purpose behind the defendant’s
application is an
attempt to thwart the granting of an amendment to
pleadings. Even if the plaintiff had indeed filed an affidavit, in
accordance
with the misplaced application in terms of Rule 30(1),
that would not have disposed of the complaint. It does not fall in
the category
of examples as tabulated above, where the Rule 30(1)
would apply. The question whether the amendment should be granted
would still
be open for determination.
[10]
The appropriate step which ought to have been taken by the defendant
in response to the application
for leave to amend the plaintiff’s
pleadings, was to argue and raise its objections during the
application for an amendment.
The defendant has thus unnecessarily
caused (and insisted upon) two separate hearings for the same relief,
thus duplicating the
costs in this matter. Such conduct clearly calls
for a punitive costs order.
Order:
1.
In the circumstances, the application in
terms of Rule 30(1) is dismissed.
2.
The defendant is ordered to pay the
plaintiff’s costs on a scale as between attorney and client.
_____________________
E REVELAS
Judge
of the High Court
Appearances
:
For
the Applicant: Adv. Paterson instructed by Lexicon Attorneys,
Port Elizabeth
For
the Respondents: Adv. Ntsepe instructed by the Office of the
State Attorney, Port Elizabeth
Date
heard: 30 July 2019
Date delivered: 6 August 2019