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[2019] ZAECPEHC 82
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Badi and Another v East Cape Cycling and Others (3452/2018) [2019] ZAECPEHC 82 (5 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO: 3452/2018
Date Heard: 22
August 2019
Date
Delivered: 05 November 2019
In
the matter between:
LUKHOLO
BADI
FIRST APPLICANT
IMVELI
CYCLING ACADEMY
SECOND APPLICANT
and
EAST CAPE
CYCLING
FIRST RESPONDENT
CYCLING SOUTH AFRICA
SECOND RESPONDENT
AYANDA
KHESWA – TSIKAYI
THIRD
RESPONDENT
JUDGMENT
JAJI
J:
[1]
The matter serves before me in the form of
applications which are opposed by the respondents. The first
application is to compel
the respondents to file with the registrar
certain documents or information which the applicant contend should
be filed together
with the record of proceedings. The second
application, interlocutory in nature, is that applicants seek an
order setting aside
as an irregular step the answering affidavit
filed by the respondents in the main application.
[2]
Both applications are intertwined arising
out of the main application, being a review application to set aside
decision of the respondents’
tribunal on 04 July 2018.
[3]
BACKGROUND
(i)
APPLICATION TO COMPEL
In this application,
applicants contend that it would be just and equitable to grant an
order compelling the respondents to file
the requested documents.
Applicants contended that given the nature of the documents required,
given that some of them are determinative
of whether or not the
respondents at the time of the disciplinary proceedings subject to
the present review, had the requisite
jurisdiction over the
applicants and further the documents are required to enable
applicants to comply with the Rules of Court.
(ii)
Therefore, applicant seeks an order to furnish
the following documents:
(a)
Proof of payment of the applicants’
application fees and other documentary evidence of the applicants’
registration
with and affiliation to the first respondent for the
periods 2016 to 2017 and 2017 to 2018;
(b)
The full investigation report into the alleged
misconduct on the part of the applicants herein in terms of section
4.1 of respondents’
annexure “AA6” (Cycling South
Africa disciplinary committee procedure);
(c)
The third respondent’s notes and those of
other tribunal members, together with their meeting packs;
(d)
The notes and records relating to considerations
and deliberations of the adjudicators herein, and
(e)
An audio recording of the disciplinary
proceedings under review.
The respondents are
required to furnish with the registrar the requested documents /
information within five (5) days of service
of the order on their
attorney of record and respondents be ordered to pay costs of the
application.
(iii)
APPLICATION TO SET ASIDE AS AN IRREGULAR
STEP THE FILING OF THE ANSWERING AFFIDAVIT BY THE RESPONDENTS IN THE
MAIN APPLICATION
(a)
The issue for the applicant is whether it would
be just and equitable to grant an order setting aside the
respondents’ answering
affidavit as an irregular step given the
fact that the filing of the answering affidavit:
-
Impedes the applicants from constructing a proper
and complete record for purposes of the further conduct of the review
as required
by Rule 53(3) of the Uniform Rules; and
-
Deprives the applicants of the opportunity to
amend / supplement their papers as permitted by Rule 53(4) of the
Uniform Rules. Applicants
thereby sought an order that the
respondents’ answering affidavit dated 11 January 2019, filed
under cover notice dated 15
January 2019 be set aside and respondents
ordered to pay the costs of the application.
[4]
RESPONDENTS’ RESPONSE
(i)
APPLICATION TO COMPEL
The issue for respondents
is whether the documents sought form part of the record. The
respondents seek applicants’ application
be dismissed with
costs.
(ii)
APPLICATION TO SET ASIDE AS AN IREGULAR
STEP, FILING OF THE ANSWERING AFFIDAVIT
(a)
According to the respondents, the issue is
whether the applicants have complied with the peremptory
prescriptions of Rule 30(1)
before bringing the application;
(b)
Whether the answering affidavit was filed
prematurely as contended by the applicants is irregular accordingly.
The respondents seek
the application herein be dismissed with costs.
[5]
FACTS
(i)
On 31 January 2019, applicants filed a notice in
terms of Rule 53(3) specifying the required documents for production
(annexure
“BOA1”);
(ii)
On 01 February 2019, respondents responded
(annexure “BOA2”) that:-
(a)
They have complied with requirements of Rule 53;
(b)
The recording made as an
aide
memoir
does not form part of the record;
(c)
Nonetheless, respondents were prepared to provide
“your client” with a copy available at respondents’
attorneys’
offices.
(iii)
Under cover of the letter, annexure “BOA3”,
dated 01 February 2019, applicants advised respondents and directed
them
to the provisions of Rule 53. In essence advising that the
recording ought to be made available to both court and the applicant.
It is so that the applicant had put respondent on terms and warned of
costs implications;
(iv)
The respondents neglected to produce the
documents despite the notice. Applicant contended that:
(a)
It is prejudiced in that it is unable to comply
for purposes of Rule 53(3) (ie filing of copies of portion of the
record as may
be necessary for review purposes);
(b)
Is deprived right to supplement their founding
affidavit (Rule 53(4)) with the information in the documents that
respondents are
refusing to produce;
(c)
The documents would enable applicants to fully
comply with Rule 53(3) and file supplementary affidavit in terms of
Rule 53(4).
[6]
The respondents disputed that the requested
documents form part of the record:
(a)
It was unable to provide the documents within
fifteen (15) days. It contended that the record was delivered to the
registrar on
14 November 2018;
(b)
It contended that it had no knowledge if in terms
of Rule 53(3), the registrar has made record available to applicants;
(c)
Respondents claimed that the record was available
to the applicants on 14 November 2018 already. Accordingly,
applicants within
10 days of record made available to them, could
amend, add, vary their notices and supplement founding affidavits.
Respondent further
argued that the period to do the above expired on
30 November 2018. Respondents accordingly filed answering affidavits
when no
supplementary affidavit was filed by applicants. There was no
communication from applicants until the answering affidavit was
filed;
(d)
Applicants indicated that they intended to file
supplementary affidavit and contended that the record was incomplete.
The respondents
in response to the requested documents contended
that:-
-
The record filed was complete and accurate;
-
Respondents reminded applicants of Rule 53(4)
regarding applicants’ intention to file supplementary
affidavit;
-
Any attempt to file supplementary affidavit
without procedures of Rule 6(5) / 25(1) and (2) would be irregular;
-
Respondents insisted that an
informal
recording had been made as
an
aide
memoir
to third respondent for purposes
of compiling formal record which was
retained
and
tendering
a copy;
-
Respondents denied that applicants are entitled
to the documents sought. Respondents further denied that the
documents sought form
part of the record and were obliged to produce
them.
Respondents
averred that:
-
The document being proof of payment of
application did not serve before the tribunal;
-
Full investigation report did not serve before
the tribunal;
-
Outcome of investigation being presented, was in
oral evidence;
-
It is not understood the meaning of “meeting
pack”, to the extent that the third respondent made notes as a
further
aide memoir
to
enable her to
prepare
the
formal minutes
for
approval
by
tribunal
,
she has
not retained
these;
-
There are no “
notes
and records”
as requested apart from
what is in the record;
-
Copy of an audio recording was tendered prior to
launch of the application;
-
At paragraph 29 of the answering affidavit,
respondents contend that its affidavit was filed late and were asking
for condonation
for late filing. The contention was that respondents
briefed counsel who was embroiled in a large matter on a national
basis requiring
continuous input and response primarily in
Johannesburg and Pretoria. The counsel did not inform respondents of
the pressure he
was under and that he would not in the short term be
in the position to assist with the opposition to the application.
“Respondents
contended “
we
nevertheless hoped that it would be possible for these papers to be
prepared before the matter was set down as it had been.
”
It tendered wasted costs attended on such postponement occasioned.
Respondents prayed for dismissal of first and seconds
applicants’
application jointly and severally liable for respondents’
costs.
[7]
Factual matrix regarding allegations by
applicants that the filing of respondents’ answering affidavit
is an irregular step
(i)
The applicants contend that the irregular step in
question is that the respondents’ conduct of filing an
answering affidavit
without fully complying with Rule 53(1)(b) and
before applicants’ compliance with Rule 53(3) and 53(4). The
time line
was as
follows:-
(a)
14 November 2018, respondents filed notice of
opposition in respect of the main application;
(b)
14 November 2018, respondents filed a
disciplinary tribunal record with the registrar;
(c)
15 January 2019, respondents filed answering
affidavits;
(d)
On 31 January 2019, applicants filed notice in
terms of Rule 30(2)(b) setting out the irregularity;
(e)
Affording respondents opportunity to remove same,
the notice explained clearly the effect especially in light of the
notice in terms
of Rule 53(3) requesting respondents to produce
certain documents for purposes of complying with Rule 53(3);
(ii)
Respondents’ response is captured in
annexure “LB3” dealing with the application to “remove
cause”.
The applicants responded the same day under cover of
letter “LB4” putting respondents’ on terms
especially regarding
the outstanding audio recording of DC
proceedings in terms of Rule 53.
(iii)
Respondents responded under cover of letter
dated, contents in the form like (“. . . we will not be
engaging in litigation
by correspondence.” “. . . Our
clients have stated their position clearly.” “The
applicant must proceed
as he sees fit.”)
(iv)
The respondents have neither removed the cause
for complaint nor produced the required documents;
(v)
This is so especially in light of the
respondents’ concession that it did not file the audio
recording of DC proceedings.
The applicant submitted that this was an
acknowledgement of non-compliance fully with their obligations in
terms of Rule 53(1)(b)
(
dispatching the full
record of DC proceedings
).
[8]
(i) In its
opposition the respondents contended as stated before that the record
was made available
to applicants for the purposes of complying with
their obligations in terms of Rule 53(3) which to date applicants
have not done;
(ii)
Annexure “DE4” is a claim by the respondents that they
have filed an accurate and complete
record;
(iii)
Sought condonation for the late filing of the
answering affidavit.
[9]
(i) Applicant disputed
that respondents complied with its obligations in terms of Rule 53.
It argued that:-
(a)
An incomplete record was delivered to the
registrar on 14 November 2018;
(b)
Respondents conceded to be in possession of audio
recordings and have not dispatched same to the registrar;
(c)
Respondents filed answering affidavit knowing
fully well that they have not dispatched the audio recording of DC
proceedings;
(d)
No legal justification has been tendered for the
refusal to dispatch the audio recordings in question;
(e)
Nowhere in Rule 53(1)(b) is it required for
applicants to collect parts of the record or the record from the
respondents’
attorney or elsewhere;
(f)
Applicant denied that the audio recording of the
DC does not form part of the record and denied that it had been
produced to applicants
and, in any event, respondents are required to
dispatch same not produce same (
as contended
by the respondents at para 31 of the answering affidavit
).
(ii)
Regarding condonation application, applicants contend that the relief
sought by respondents is governed
by Rule 27 and the application in
this regard should be in terms of Rule 6(1). The application for
condonation had to be brought
on notice of motion supported by
affidavit as to facts upon which applicant relies;
(iii)
No proper case is made or good cause shown for late filing of
respondents’ answering affidavit. The
applicant submitted that
the court must exercise its discretion regarding the condonation
application.
[10]
(i) The applicant
referred court to an SCA decision of
Helen
Suzman Foundation v Judicial Service Commission
2017 JOL 36800
(SCA), regarding:-
(a)
Primary purpose of Rule 53;
(b)
Access to the record of proceedings in which
decision was made;
(c)
Rule 53 operates to the benefit of the applicant;
(d)
It is an important tool in determining
objectively what considerations were probably operative in mind of
the decision maker when
he / she made the decision sought to be
reviewed;
(e)
Applicant
must
be given access to
available information
sufficient for it to make its case
;
(f)
Placing parties in equal footing in the
assessment of the lawfulness and rationality of such decision;
(g)
Rule enables court to perform review function to
scrutinise the exercise of public power for compliance with
constitutional prescripts;
(h)
Court held that the extent of the record must
depend upon facts of each case. In certain cases the decision maker
may be required
to produce full record of proceedings which includes
its deliberations.
(ii)
In
Democratic
Alliance and Others v Acting National Director of Public Prosecutions
and Others
2012 (6) BCLR 613
(SCA)
para 37
, the applicant contended that the
court held as follows:
“
Without
the record a court cannot perform its constitutionally entrenched
review function, . . . litigant’s right in terms
of s 34 of the
Constitution to have a justiciable dispute decided in a fair public
hearing before a court with all the issues being
ventilated, would be
infringed.”
(iii)
The applicant referred court to the
constitution of the first
respondent
regarding application and payment of fees. The
constitution says
“. . . shall automatically lose their
status as an affiliate if their application fees are not paid within
one calendar month
of being called upon to do so in writing by the
ECC treasurer or secretary.”
(iv)
The code of disciplinary procedure document of
the second respondent
provides for “production
of an investigative report which is to be submitted to executive
board member representing the matter
within acceptable time frames as
determined by the commission.
” The
respondents did not do the above.
(v)
Applicant submitted that Rule 53(5)(b) , dealing
with delivery of affidavits in answer to review application provides:
“within
thirty days after the expiry of the time referred to in
sub-rule (4), deliver any affidavits he/she may desire in answer to
the
allegations made by applicant.” In this regard, applicant
referred to the matter of
University of the
North-West Staff Association and Others v The Camps Rector for the
North-West University and Others
(471/2007)
[2008] ZANWHC 18
(05 June 2008) para 10, Mogoeng JP (as he
then was) held that regarding time when respondent’s answering
affidavit is / are
to be filed in terms of Rule 53(5)(b). Rule
53(5)(b) states that respondents’ affidavit may be filed within
30 days after
expiry of the 10 days which the applicant has within
which to amend the notice of motion and supplement his or her or its
papers
after receipt of the record
.”
(vi)
Applicant submitted that in the absence of
evidence of applicants’ application to first respondent,
respondents had no authority
to conduct the disciplinary proceedings
subject to present review over applicants. It is crucial that the
aforesaid evidence be
made available to the applicant and the court;
(vii)
The mandatory investigative report is necessary
that applicants and court be placed in possession of this report to
determine the
fairness or otherwise of the disciplinary process
followed against applicants;
(viii)
The applicant argued that the recording made of
proceedings (as conceded by respondents’ attorneys to be
available) for collection
in their offices, such recording should be
made available to both applicants and court hearing the matter;
(ix)
Failure to provide complete record of proceedings
is prejudicial to applicants as they are not in turn placed in
position to construct
and file complete and proper record for
the purposes of review as required by Rule 53(3);
(x)
Applicants contended that interests of justice,
fairness and openness, transparency dictate that an order be granted
in their favour
in terms of the notice of motion;
(xi)
The respondents in their submission amplified in
its heads of argument repeated the same contentions which are
contained in their
opposing papers, viz:-
(a)
The respondents had advised that an informal
recording had been made as an
aide memoir
to
the third respondent for purposes of compiling the formal record and
tendered a copy to the appellant;
(b)
Documents referred to in prayers 1(i) and (ii) of
the notice of motion did not serve before the tribunal and do not
form part of
the record;
(c)
Documents sought in prayers 1(iii) and (iv) all
of the documents which served before the tribunal are contained in
the record and
neither the third respondent or the member of the
tribunal retained “notes and records”;
(d)
Copy of audio recording made by third respondent
s purely as an
aide memoir
to
the preparation of formal minutes and was tendered to applicants
prior to launch of the application.
[11]
THE LAW
(i)
It is clear from the papers, conceded to an
extent by respondents that the record filed was not complete. The
respondent stated
that “the outcome of investigation being
presented was in oral evidence”. It is therefore necessary to
have the recording
to listen to the oral evidence presented. The copy
of the audio cannot be tendered but to be dispatched in terms of Rule
53. It
is so that an incomplete record is not a record as
contemplated in Rule 53. Applicants have contended that they needed
from respondents
certain documents in order to comply with Rule 53.
So it is not correct for respondents to suggest that applicants were
in a position
to amend, add or vary their notice of motion and
supplement founding affidavit because no complete record was filed by
the respondents;
(ii)
In the matter of
Mark Walters and 19 others v Magistrate T
Swarts and Steenkamp and Others
case no. 2012/38742, South
Gauteng, it was held that Rule 53 does not lend itself naturally or
properly as a mechanism for obtaining
documents from parties other
than those specifically named in Rule 53(1)(b). Rule 53(1)(b)
expressly provides only for the presiding
officer / tribunal whose
decision is sought to be reviewed, to be called upon to produce the
record in question (not the attorneys
of the respondents even though
a tender was made for collection of some documents which tender in
itself is not even mentioned
in the Rule.)
(iii)
The Constitutional Court in
Helen Suzman Foundation v
Judicial Service Commission
20189 ZACC 8,
held
that the respondent (JSC)
must comply
with
Rule 53(1)(b)
of the Uniform Rules and to
deliver the full recordings of the
proceedings sought to be reviewed
in the main application,
including the audio recording and any transcript of the
deliberations
. . . with costs of two counsel. The court
held that there was a need for openness and transparency of the
processes of courts
themselves. “The public is entitled to know
exactly how the judiciary works and to be reassured that it always
functions
within the terms of the law and according to time honoured
standards of independence, integrity, impartially and fairness.”
This should apply to applicants and respondents as the tribunal. It
was held that “exercise of public power, which must be
done
lawfully and rationally.” Generally, the only way to test the
legality of the exercise of this power completely and
thoroughly is
to afford an applicant for review access to
all material relevant
to the exercise of power.
If a public functionary can withhold
information relevant to the decision, there is always a risk that
possible illegalities remain
uncovered and are thus insulated from
scrutiny and review
;
(v)
In re:-
Masetlha v
President of the Republic of South Africa and Another
[2008]
ZACC 6
,
2008 (5) SA 31
(CC), Moseneke DJ stated:-
“
Ordinarily courts
would look favourably on a claim of a litigant to gain access to
documents or other information reasonably required
to assess or
protect a threatened right or to advance a cause of action. This is
so because courts take seriously the valid interest
of a litigant to
be placed in a position to present its case fully during the course
of litigation. Whilst weighing meticulously
where the interests of
justice lie, courts strive to afford a party a reasonable opportunity
to achieve its purpose in advancing
its case. After all, an adequate
opportunity to prepare and present one’s case is a
time-honoured part of a litigating party’s
right to a fair
trial.”
(vi)
It was held in the
Helen
Suzman
matter that the deliberations
(audio recordings herein) are relevant for purposes of Rule 53 record
and that the relevance
must be considered in
respect of their connection to the impugned decision rather than the
pleaded case
. The unfairness suffered by a
review applicant denied access to deliberations (audio recordings,
applicant was not present during
DC proceedings) lies in the fact
that she/he may have been prevented from making the best possible
case. The fact that a number
of other relevant documents and reasons
distilled from deliberations have been provided does not detract from
the unfairness of
withholding other relevant information. The
information that has been withheld may provide evidence of reviewable
irregularities
that are not revealed by the other documentation. That
is why the Rule requires that
all relevant
documentation must be provided
, unless there
is some legally cognisable basis for withholding it.
(vii)
In the matter of
President
of the Republic of South Africa v Democratic Alliance and others
2019 ZACC 35.
The court confirmed the
decision directing the president to disclose reasons, as well as the
relevant part of the record that form
the basis for the decision to
relieve a Minister and deputy of their constitutional
responsibilities. The order from the court
was as follows:
“
2.
The president is to dispatch to the Democratic Alliance’s
attorney within five
court days of the date of this order:
2.1
The record of all documents and electronic records (including
correspondence, contracts
memoranda, advices, recommendations,
evaluations and reports) that relate to the making of the decisions
which are sought to be
reviewed and set aside;
2.1
The reasons for these decisions which are sought to be reviewed and
set aside.”
(viii)
This seems to me to be more detailed and
cumbersome than what is requested by the applicants in the matter at
hand. Inspite of the
above, the Constitutional Court granted the
order to compel. The court held that the request for reasons and the
associated record
owed its appropriateness or relevance, in any court
to the original challenge. It stated that the irrationality or not on
which
the main application hinged could only have been properly
tested with the aid of a range of factual considerations. The court
further
stated that the nature and complexity of the kind of decision
initially sought to be challenged by way of review must first be
closely examined. Regarding the matter at hand, this speaks to issues
of application and fees as well as the mandatory investigative
reports. It must be said that it is inconceivable that the
respondents did not understand what a “meeting pack” was.
Indeed detailed factual considerations would have to be traversed to
do justice to this matter. The Constitutional Court held that
“it
will be noted from the text of Rule 53 that it does not require that
the record be delivered to the applicant for review.
Instead, it
obliges the decision maker to make delivery to the registrar. So once
again in the present matter the tender made by
respondents’
attorney for collection of documents or records is clearly not based
on Rules.
(ix)
The Constitutional Court further held that under
Rule 53, once the review papers are served . . . is obliged to
submit a record
to the registrar. What triggers this obligation is
the service of papers. It is not open to the party to take a view
that Rule
53 does not apply and would therefore ignore the Rule. It
is not for a litigant to determine whether the Rule applies or not.
That
is a function performed exclusively by the courts. In our system
once a Superior Court has declared what a particular law means,
all
parties affected by it are expected to follow the law as interpreted
by the court.
(x)
In
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services and another
(2008) 5 SA 31
(CC)
Re-Masuthla v
President RSA.
The court held that
“And by extension, the right to open justice must include the
right to have access to papers and written
arguments which are
integral part of court proceedings. That must follow axiomatically,
it seems to me, because the public would
hardly be in a position to
properly assess the legitimacy or fairness of the proceedings if they
could observe the proceedings
in open court but were denied access to
documents that provide the basis for court’s decision. In the
matter at hand it is
worse because applicants were not present in the
DC tribunal proceedings.
(xi)
In
Jockey Club of
South Africa v Forbes
1992
ZASCA 237
,
1993 (1) SA 649
(A) at 660 Kriegler AJA (as he then was)
explained “not infrequently the private citizen is faced with
an administrative or quasi-judicial decision adversely affecting
his
rights, but has no access to the record of the relevant proceedings
nor any knowledge of the reasons founding such decision.
Were it not
for Rule 53 he would be obliged to launch review proceeding in the
dark and, depending on the answering affidavit(s)
of the
respondent(s), he could then apply to amend his notice of motion and
to supplement his founding affidavit.
(This is
precisely what the respondents are trying to do herein which is
prejudicial to applicant.)
However, the
learned Judge continued . . . Manifestly the procedure created by
Rule is to applicants’ advantage in that it
obviates the delay
and expense of an application to amend and provide him with access to
record.”
This is what the respondents
are refusing to do
.
(xii)
In
City of Cape Town
v SANRAL
(2015) ZASCA 58
, para 36,
the court held that “in terms of Rule 53, the right to require
the record of the proceedings of a body whose decision is
taken on
review, is primarily intended to operate for the benefit of the
applicant. When an applicant in review proceedings files
its
supplementary affidavit, after having had sight of the record of the
proceedings of a body whose decision is taken on review,
is primarily
intended to operate for the benefit of the applicant. When an
applicant in review proceedings files its supplementary
affidavit,
after having had sight of the record, it is,
in effect fully stating its case for the first time. (This is what
the respondents
in the matter at hand are losing sight of.)
The production of the administrative record is inherently necessary
for court to undertake the task of determining the regularity
of
proceedings sought to be impugned. Without the record, court cannot
perform its function (
Democratic
Alliance v Acting NDPP
2012 (3) SA
486
(SCA) para 37.)
In the
SANRAL
matter, the court held that
“the
animating principle therefore has to be that all courts (I may add
tribunals) records are by default, public documents
that are open to
public scrutiny at all times.”
[12]
The applicants have contended that the filing of
the answering affidavit by respondents fully knowing well that they
did not dispatch
the full record was irregular and was prejudicial to
the applicants. Indeed, it is trite that irregularity must be of such
a nature
that it is calculated to cause prejudice. The applicant has
submitted so in its heads of argument. “While it is not
necessary
for respondents to conduct their proceedings in the strict
legal manner required of inferior courts, they must necessarily do so
in a manner that will be just to all parties. If they do not,
superior courts will interfere and ensure that natural justice is
done.
(Pg 937,
Civil
Practice of the Supreme Court of SA
,
4
th
edition, Van Wisten, Cilliers and Loots.)
[13]
Regarding condonation
,
at paragraph 27, the court in the matter of
Standard
Bank of South Africa v Carien Erasmus
,
case no 56672/2013 stated that: “
the
application is based on Rule 27(1) which provides as follows: (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 anytime prescribed by these rules
or by an
order of court fixed by an order extending or abridging any time for
doing any act or taking any steps in connection with
any nature
whatsoever upon such terms as to it seems to meet.
”
[14]
No such application has been launched in the
present matter:
(a)
It is common cause that the respondent did not
approach applicant’s attorneys or the court for an extension of
time within
which to deliver its answering affidavit. No
correspondence to applicant’s attorneys that respondent’s
counsel was
busy as alleged and no request for indulgence was made;
(b)
The answering affidavit was not accompanied by an
application for condonation or notice for its late filing;
(c)
Applicant’s attorneys were prompted to
serve a notice in terms of Rule 30 of Uniform Rules. Respondent
contended that would
be an irregular step but did not launch any
application seeking necessary condonation;
(d)
It is so that court has a discretion to grant or
not to grant condonation. One of the considerations in the enquiry is
the explanation
therefore and prospects of success on appeal. (
United
Plant Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
A.D at 720 E-F);
(e)
The explanation proffered by respondents is not
satisfactory at all. The name of counsel briefed is not mentioned, it
is not explained
when he/she was briefed, it is not explained
precisely when he/she advised respondents that he/she would not be
available, it is
not clear what contingency measures were taken by
respondents upon realising the non-availability of this counsel. It
is not enough
for respondents to “
nonetheless
hoped that it would be
possible
for the papers to be prepared before the matter was set down”
without arranging for an alternative counsel.
It is not explained why another counsel was not briefed when it was
clear that the
initial counsel would not be available. From the
explanation proffered, it is clear that respondents did nothing even
though they
knew that their erstwhile counsel would not be available
instead they “hoped for the best.”
(f)
In
Immelman v Loubster
en ‘n Ander
1974 (3) SA 816
(A) at
820D, Muller AR said:
“
Dat kondonasie van
die versuim van ‘n appellant om die Hofreëls na te kom nie
net “n bloete formaliteit is nie,
is meermale deur die Hof
beklemtoon.”
See also
Mentjies v
HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 264A-B, Steyn,
HR said:
“
Die Hof Reëls
stel termyne om nagekom te word, nie slegs vir die gerief van die Hof
en om in belang van die regsadministrasie
onnodige vertraging by
gedinge uit te skakel nie, maar ook omdat die partye, met inbegrip
van die teenparty, daar belang by het;
en waar 'n appellant vind dat
hy in versuim geraak het, is dit sy plig om sonder verdere uitstel
aansoek om kondonasie te doen.”
The respondents did none of the
above.
(g)
Explanation of respondents default must be
sufficient
(See
Siber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A
. Herein as stated
above explanation is not sufficient. Clearly in terms of Rule 27(1)
good cause or sufficient cause has not been
demonstrated;
(h)
In
Van Wyk v Unitas
Hospital and Another
(open
Democratic Advice Centre as
amicus
curiae
)
[2007] ZACC 24
;
2008 (2) SA 472
,
the court then dealt with its displeasure where litigants do not
comply with the time-limits or directions setting out the time
limits. Courts are also unhappy with litigants dumping their matters
with their attorneys and failing to make the necessary follow-ups.
Courts have expressed their unhappiness where a litigant blames his
attorney without demonstrating that he or she is not to blame
for the
ineptitude or remissness of his or her attorney. It seems to me that
this is precisely what had transpired in the matter
at hand. Counsel
that was briefed informed respondents’ attorney that he / she
would not be available, that is clear from
the explanation but
nothing was done to circumvent what had transpired herein;
(i)
Most importantly, the respondents did not heed
the warnings of the SCA as alluded in the matter of
Danries
v Sherriff, Magistrate’s Court, Wynberg and Another
1998 (3) SA 34
(SCA), Plewman JA observed that “
the
number of petitions for condonation of failure to comply with the
Rules of Court was a matter of grave concern. (He was referring
to
SCA which should not be different to our courts (High Court).
Regrettably, that trend continues both in High Courts and
Magistrate’s
Courts as evidenced by the number of reported
decisions which the issue has been dealt with. In my view, many
practitioners continue
to believe that condonation is a mere
formality. There is a growing trend, particularly with appeals in
this court, for practitioners
to apply for condonation on the most
flimsy of grounds (as is with the present matter). What is even more
concerning is that in
most cases such applications are made at the
very last minute. In most cases as well, the non-compliance with the
Rules or directions
of a court occur as a result of tardiness on the
part of practitioners and not the litigants themselves.”
This seems to be what had happened in the present matter;
(j)
Clearly, applying the law to the facts of this
case, it becomes abundantly clear that the application for
condonation should fail.
In any event, the prejudice to be suffered
should the answering affidavit be allowed in the present matter is
clear to all and
sundry as alleged by the applicants. I do not have
to repeat same. In any event, it is clear that answering affidavit
was filed
by the respondents knowing fully well that the full record
was not dispatched. It is so that the applicants’ case for
requested
documents has to succeed.
(k)
Clearly on the facts, the full record has not
been dispatched and as such the filing of answering affidavit was
irregular, in any
event, no condonation application was forthcoming
let alone satisfactory explanation.
[15]
COSTS
The
conduct of the respondents in this matter has already been
highlighted by the applicants. Less said about the sarcastic and
sometimes bellicose tone of the correspondence to a colleague is
unjustified. The last time I checked, there was or should be present
a certain decorum amongst colleagues. In any event, putting aside the
matter of litigation between parties, what we experienced
herein was
a classical case of vexatious litigation. The following quote becomes
therefore relevant in the circumstances. “
In
its legal sense ‘vexatious’ mean a frivolous, improper
and instituted without sufficient ground to serve solely as
an
annoyance to the defendant.
” This is
basically what the respondents did herein.
In
Re Allual Greek Ltd CPD
532 at 535, Gardener J
said in context of a
punitive costs order: - “
Now sometimes
such an order is given because of something in the conduct of a party
what the court considers should be punished,
malice, misleading the
court and things like that but I think the order may also be granted
without any reflection upon the party
where the proceedings are
vexatious, although the intent may not have been that they should be
vexatious. There are people who
enter into litigation with the most
upright purpose and a most firm belief in the justice of their cause,
and yet whose proceedings
may be regarded as vexatious when they put
the other side to unnecessary trouble and expense which the other
side ought not to
bear.”
This is
precisely what had transpired herein in the present matter.
Respondents conceding not to have dispatched audio recordings
and
further tendering to produce documents available in their attorneys’
office in flagrant disregard of Rule 53. The discretion
to be
exercised by court regarding costs has to consider the whole case in
totality and as such I am of the view that a punitive
costs order is
justified herein. Costs are indeed in the discretion of the courts
even when parties had agreed on costs.
[16]
(i) Therefore, both
applications by applicants are granted with costs on attorney scale.
Therefore, I order
that:-
(ii)
The respondents are ordered to furnish the registrar with the
following documents:
-
Proof of payment of the applicant’s
affiliation and other documentary evidence of the applicant’s
registration with
and affiliation to the first respondent for the
periods 2016 to 2017 and 2017 to 2018;
-
The full investigation report into alleged
misconduct on the part of first applicant herein in terms of section
4.1 of the respondents’
annexure “AA6”
(Disciplinary Procedures document of the second respondent.)
-
The third respondent’s notes and those of
other tribunal members together with their meeting packs;
-
The notes and records relating to considerations
and deliberations of the adjudicators herein; and
-
An audio recording of the disciplinary
proceedings herein;
(iii)
That the respondents furnish the registrar with the requested
documents and / or information within five
(5) days of service of
this order their attorneys of record;
(iv)
That the respondents’ answering affidavit
dated 11 January 2019 is set aside;
(v)
That respondents are ordered to pay the costs of
both applications on an attorney and client scale.
_______________________
N
P JAJI
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the applicants
:
Adv
Olowookorun
Instructed
by
:
Bukky
Olowookorun Attorneys Inc
7 Bird Street
Central
PORT ELIZABETH
Tel: 041 582 2752
Ref: OT
Olowookorun/LS/BO324
Counsel
for the respondents
:
Adv
Richards
Instructed
by
:
Jock
Walter Inc.
38 3
rd
Avenue
Newton Park
PORT ELIZABETH
Tel: 041 363 5501
Ref: AJ Walter/co/M7697