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[2023] ZAFSHC 204
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Phumelela Local Municipality v Telkom SA SOC Limited (5327/2022) [2023] ZAFSHC 204 (31 May 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
Number
5327/2022
Reportable:yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
In
the matter between:
PHUMELELA
LOCAL MUNICIPALITY
Applicant
and
TELKOM
SA SOC LIMITED
Respondent
CORAM:
BERRY, AJ
HEARD
ON:
25 MAY 2023
DELIVERED
ON:
This
judgment was handed down electronically by email to the parties'
representatives and by release to SAFLII. The date and time
for
hand-down is deemed to be 15h00 on 31 MAY 2023.
RULE
30A JUDGMENT
[1]
I informed the legal representatives of both parties that I was
previously employed
by the Respondent and left its employ voluntarily
at the end of 2011.
[2]
Both parties confirmed that they did not have any objection if I
heard the matter.
[3]
The Respondent issued summons against the Applicant and brought an
Application for
Summary Judgment on 7 March 2023.
[4]
The Respondent attached a document which purports to be an Affidavit,
in support of
the Summary Judgment Application in terms of Rule
32(2)(a). I refer to the document as an “Affidavit” for
ease of reference.
[5]
The Applicant takes issue with the “Affidavit” in that
the deponent states
in the introduction to the Affidavit:
“
I,
the undersigned,
AMAN
BALWANTH
Do
hereby make oath and say that…”
[6]
At the end of the Affidavit the Commissioner of Oath states:
“
I
hereby certify that the deponent has acknowledged that he knows and
understands the content of this affirmation, which was signed
to
before me at Midrand on this the 7
th
day of March 2023, the regulations contained in government notice
number 3619 of 21 July 1972 and 1648 of 19 Aug 1977 having been
complied with.”
[7]
The “Affidavit” was affirmed at a Police Station and the
official SAPS
stamp is affixed next to the Commissioner of Oath’s
signature.
[8]
The Applicant filed an Application in terms of Rule 30A(1)(b) to
strike out the claim,
in that the Respondent did not comply with
Rules 32(2)(a), 32(2)(b) and 32(4).
[9]
In terms of Rule 32(2)(a), 32(2)(b) and 32(4) a Plaintiff may bring
an Application
for Summary Judgment, after a Defendant has delivered
a plea.
[10]
The Application for Summary Judgment must be supported by an
Affidavit containing certain averments.
[11]
The Affidavit is the only evidence that may be adduced at the hearing
of the Summary Judgment
Application in terms of Rule 32(4).
[12]
The Applicant submits that the “Affidavit” does not
comply with Rule 32 in that it
is not an Affidavit, nor an
Affirmation, as provided for in the Regulations made in terms of Sec
10 of the Justices of Peace and
Commissioners of Oaths Act 16 of
1963.
[13]
The Applicant’s main contention is that the word “oath”
contained in the heading
to the declaration contradicts the
affirmation taken by the Commissioner of Oaths. It therefore does not
constitute an oath nor
an affirmation, as required by the
Regulations.
[14]
The Respondent submits that the Rule 30A Application should be
disposed of at the same time the
Summary Judgment Application is
heard. The Court ordered that it should be heard separately and that
the Rule 30A Application must
be heard separately on 25 April 2023.
[15]
The Respondent referred the Court to Erasmus, Superior Court Practice
RS 20, 2022, D3-8, where
it is stated that a Court has a discretion
to condone non-compliance with the Regulations, as it is directory
and not peremptory.
[16]
The Applicant submits that the Regulations draw a distinct
differentiation between an oath and
an affirmation and therefore the
document before Court cannot be regarded as an oath or an
affirmation.
[17]
The Applicant’s contention is that the document placed before
the Commissioner purports
to be an oath, whilst the Commissioner
attested to an affirmation, thus the Commissioner did not fulfil his
obligations to ascertain
what the deponent was attesting to.
[18]
In ABSA Bank v Botha NO
[1]
the
Court held that the Applicant in Summary Judgment proceedings bear
the onus to prove that the document is an Affidavit.
[19]
In
Parys-Aan-Vaal
Woonstelle (Pty) Ltd and Another v Plexiphon
[2]
,
Daniso J dealt with a matter where the Commissioner did not delete
the word “she” in the certificate.
“
[12]
The commissioner of oaths has omitted to delete the inapplicable
gender. It is the applicant’s case
that
ex facie
the
affidavit it is unclear whether the deponent is a male or female. The
deponent has merely been described as a manager and on
the
certificate by the commissioner of oaths the deponent is identified
as a “
he/she
.” The applicant argues that in the
light of the afore-mentioned defects the court would be unable to
give effect to the presumption
of regularity for the purposes of
assuming that the oath was sworn to and signed in the presence of the
commissioner of oaths.
[20]
The Court held that the failure of the Commissioner to delete the
appropriate gender justified
an inference that the deponent did not
appear before the Commissioner.
[21]
The Court relied on the peremptory requirements of rule 6(5)(d)(ii)
of the Uniform Rules of the Court
which provides that any person who
opposes the grant of an order sought in the notice of motion must
deliver an answering affidavit
in response to the applicant’s
case.
[22]
An Affidavit is a written declaration sworn to by the deponent in the
presence of a commissioner of
oaths.
[23]
Regulation 4(1) reads:
Below
the deponent's signature or mark the commissioner of oaths shall
certify that the deponent has acknowledged that he knows
and
understands the contents of the declaration and he shall state the
manner, place and date of taking the declaration.
[24]
The provisions of Regulation 4(1) are directory, not peremptory in
that failure to comply can
be condoned at the discretion of the Court
where it is clear from other indications in the document that an oath
was in fact administered
by the commissioner of oaths.
[25]
Regulation 1(1) reads:
An
oath is administered by causing the deponent to utter the following
words:
“
I
swear that the contents of this declaration are true, so help me
God.”
[26]
Regulation 1(2) reads:
An
affirmation is administered by causing the deponent to utter the
following words:
“
I
truly affirm that the contents of this declaration are true.”
[27]
Regulation 1(1) and 1(2) requires from the Commissioner to ascertain
whether the
deponent is making the declaration under oath; or wishes
to affirm that the declaration is true.
[28]
An oath requires different words to be said by the deponent than what
is required
when the deponent affirms that the declaration is true.
[29]
The Commissioner has a duty to ascertain what the deponent wishes to
do by asking
him whether he wishes to take the oath; or would prefer
to affirm the truth of the declaration.
[30]
The Commissioner must then ask the deponent to make the appropriate
statement either
in terms of Regulation 1(1) or Regulation 1(2).
[31]
The Commissioner did not confirm whether the deponent was making a
declaration under
oath, or an affirmation that the declaration is
true.
[32]
The failure to ascertain whether the deponent was taking the oath or
making an affirmation,
supports the inference that the Commissioner
did not properly administer the oath or an affirmation.
ORDER
[33]
The following order is made:
1.
The Founding Affidavit attached to
Respondent’s Application for Summary Judgment delivered on 07
March 2023 does not meet
the requirements to constitute an Affidavit
or an Affirmation.
2.
The Respondent’s Application for
Summary Judgment is struck out.
3.
The Respondent is ordered to pay the
costs of this Application.
AP
BERRY, AJ
APPEARANCES:
For
the Applicant:
Adv.
NG Laubscher
Instructed
by:
Lizel
Venter Attorneys
c/o
Mcintyre Van Der Post Attorneys
BLOEMFONTEIN
For
the Respondent:
Adv.
M Desai
Instructed
by:
Govender
Patel Dladla Inc
c/o
Webber Attorneys
BLOEMFONTEIN
[1]
ABSA
BANK V BOTHA NO 2013 (3) SA 563 (GNP).
[2]
Parys-Aan-Vaal Woonstelle (Pty) Ltd and Another v Plexiphon 115 CC
(3489/2021)
[2022] ZAFSHC 2
(20 January 2022).