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[2020] ZAECPEHC 39
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Ioannides N.O and Another v Master of the High Court and Others (74/2020) [2020] ZAECPEHC 39 (20 October 2020)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Not
Reportable
Heard: 15 October 2020
Delivered:
20 October 2020
In the matter
between:
Case
No: 74/2020
RENO IOANNIDES
N.O.
First Applicant
RENO IOANNIDES
Second
Applicant
AND
MASTER OF THE HIGH
COURT First
Respondent
MAWABO KMLE
N.O. Second
Respondent
DONNA VAN DER
WESTHUIZEN
Third Respondent
JUDGMENT
Lindoor AJ
[1]
This is an application in terms of the
provisions of Uniform Rule 30 wherein the applicants seek an order
that the third respondent’s
answering affidavit dated 11 June
2020 served and filed on the 12
th
June 2020 be set aside and costs of the application.
[2]
The first applicant, Reno Ioannides is the
executor in the estate of his late father (“the deceased”)
acting under letters
of Executorship issued by the first respondent,
the Master of the High Court on the 18
th
May 2016, under estate number 2411/2016.
[3]
The second respondent is a functionary in
the office of the first respondent. Both the first and second
respondents have filed a
notice to abide by the decision of the
court.
[4]
The third respondent is the mother and
natural guardian of the minor child G[…] v[…] d[…]
W[…], who
was born out of a relationship between the third
respondent and the deceased.
Chronology of
Events
[5]
In this matter, the main application was
issued in January 2020 and enrolled for the 11
th
February 2020. For the purpose of the application before court, I am
not required to deal with the merits of the main application.
[6]
The third respondent filed a notice to
oppose on the 30
th
January 2020, and accordingly, the matter was removed from the roll
for the 11
th
February 2020.
[7]
In the absence of answering papers being
filed by the third respondent, the applicants’ attorney applied
to the Registrar
for the matter to be enrolled on the
“Uncontested-Opposed Roll”, which it was and set down for
the 24
th
March 2020.
[8]
The third respondent was duly given notice
of the set down for the 24
th
March 2020 on the 17
th
March 2020.
[9]
When the matter was heard in motion court
on the 24
th
March 2020, it was stood down by Pakati J, for consideration in
chambers. On the 25
th
March 2020 a chamberbook entry recorded the matter as “not
granted, matter became opposed”.
[10]
The third respondent eventually filed its
answering affidavit on the 12
th
June 2020, which the applicants seek to set aside.
[11]
An application for condonation for the late
filing of the third respondent’s answering affidavit was filed
on the 7
th
October 2020 by her attorneys of record.
[12]
It is contended on behalf of the applicants
that the third respondent has failed to comply with the provisions of
Uniform Rule 6(5)(d)(ii)
by only filing its answering affidavit on
the 12
th
June 2020, when it was due on the 20
th
February 2020. It was further submitted on behalf of the applicants
that the third respondent has also failed to file a substantive
application for condonation for the late filing of its answering
affidavit.
[13]
Counsel for the third respondent, whilst
conceding that the answering affidavit of the third respondent was
filed out of time, submitted
that as no order was granted by the
court on the 24
th
March 2020, the third respondent was not barred from pleading, and in
any event, paragraph 3 of its answering affidavit contains
substantive submissions in support of its application for
condonation.
Condonation
[14]
Although the application for condonation is
not before me for determination, I am in agreement with the
submissions by the third
respondent’s counsel that there is an
application for condonation before court, which is to be heard
simultaneously by the
court hearing the main application.
[15]
Since I have already found that there is
indeed an application for condonation before the court, the only
remaining issue to be
determined is the Rule 30 application.
[16]
Counsel
for the third respondent submitted that there can never be an
irregular step in application proceedings, but could advance
no
authority to support this submission. I cannot agree with this
submission. In
Olgar
v Minister of Safety and Security and Another
[1]
Pickering J (as he then was) with reference to the meaning of the
words “a cause” in Uniform Rule 30(1)
[2]
stated as follows; with reference to
Participation
Bond Nominees (Pty) Ltd v Mouton (3)
[3]
where the court stated as follows as 515D-E:
“
'In
my view the words any cause are used in the widest possible sense and
refer to any judicial proceeding of whatsoever nature”
The
learned judge stated further:
“
The
submission is made in Erasmus supra at B1 – 189, that the
phrase 'a cause' in the present subrule has a similar-wide meaning.
This submission is, in my view, with respect to the learned authors,
clearly correct.”
[17]
I
deal now with the question of prejudice to be suffered by the
applicant, should the answering affidavit not be set aside. Erasmus,
Superior Court Practice at D1 – 354 states, with reference to
the judgment in
Gardiner
v Survey Engineering Pty Ltd
[4]
:
“
Proof
of prejudice is a prerequisite to the success of an application in
terms of Rule 30.”
[18]
It is therefore important for the applicant
to clearly set out in its affidavit and submissions the prejudice to
be suffered should
the irregular step not be set aside. I am not
persuaded that the applicant has proven any prejudice should the
third respondent’s
answering affidavit not be struck out. In
any event, the main application as well as the application for
condonation must still
be argued and adjudicated at a future date. If
condonation is not granted, then the applicant’s affidavit will
be before
the court hearing the matter uncontested.
[19]
Our
courts have on numerous occasions expressed its disapproval of merely
technical objections in the course of litigation. Both
counsel for
the applicants and the third respondent referred the court to the
judgment of Schreiner JA in
Trans-African
Insurance Co Ltd v Maluleka
[5]
:
“
No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules of Court, which
are an
important element in the machinery for the administration of justice.
But on the other hand technical objections to less
than perfect
procedural steps should not be permitted, in the absence of
prejudice, to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits.”
[20]
It is also trite that in applications of
this nature, the court has a discretion, to be exercised judicially,
and after considering
all the facts, whether to strike out a
particular pleading or not. Prejudice to either party is a strong
consideration to be taken
into account.
[21]
It is for this reason that I am not in
agreement that by granting this application, it will be in the
interest of either party in
the ventilation of the proper issues
between them in the main application. What compounds matters further
for the applicants is
that a judge of this court has previously made
an order that the relief sought in the main application could not be
granted as
the matter had become opposed. The fact of the matter is
that the matter is opposed and answering papers have been filed and
are
before court. Whether the late filing of the answering papers
should be condoned or not, falls to be determined by the court
hearing
the main application.
[22]
I accordingly make the following order:
1.
The application is dismissed.
2.
There shall be no order as to costs.
__________________________
J. LINDOOR
ACTING
JUDGE OF THE HIGH COURT
Obo the
Applicants:
Mrs B. Olowookorun, Bukky Olowookorun
Attorneys, 7 Bird Street,
Central, Port Elizabeth
Tel:
041 582 2752
Obo the Third
Respondent: Mr V. Naidu, Legal Aid Centre, Port Elizabeth
North
End, Port Elizabeth
Tel:
041 484 28 00
[1]
2012
(4) SA 127
at 134A-B
[2]
“
(1)
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.”
[3]
1978
(4) SA 508 (W)
[4]
1993
(3) SA 549
(SE) at 551 C
[5]
1956
(2) SA 273
at 278F-G