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[2023] ZAFSHC 381
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Director of Public Prosecutions v Mofokeng (R 3751/2022) [2023] ZAFSHC 381 (6 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
R 3751/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS
APPLICANT
And
MOSEBETSI
RICHERD MOFOKENG
RESPONDENT
JUDGMENT
BY:
MOLITSOANE, J
HEARD
ON:
05 OCTOBER 2023
DELIVERED
ON:
06 OTOBER 2023
INTRODUCTION
[1]
This is a condonation application. The
Applicant seeks an order condoning the late filing
of the answering
affidavit in the review application pending before this court. The
review application is enrolled for hearing
on 16 October 2023. The
parties will be referred to as cited above.
BRIEF
BACKGROUND
[2]
The Respondent instituted an
application in terms of Rule 53 of the Uniform Rules of this
court.
The purpose of the review application is to impugn and set aside the
decision of the Regional Court Magistrate. The Applicant
in this
application was cited as the Second Respondent in the main
application. The following sets out the events which led to
these
proceedings before me:
i.
On 10 August 2022, the review application was
served on the Applicant. The Applicant filed the intention to oppose
on 23 August
2022.
ii.
The review application was enrolled for hearing
on 15 September 2022 by the Respondent. On this day, however, the
Respondent removed
the application. The matter was subsequently
enrolled for hearing on other dates. At all material times here to,
when the review
application was set down for hearing, there was no
record
of
the decision Regional Court Magistrate.
iii.
It is the case for the Applicant that she
became aware of the filed
record on 20 January 2023. On the
same day, the Respondent filed the answering affidavit,
which
is the subject of the dispute between the parties before me.
[3]
It is necessary to refer to the
following:
On
18 May 2023, the Respondent instituted an application in terms of
Rule 30 read with Rule 30A. In the notice served in terms of
Rule 30
read with Rule 30A the following allegations are made:
1.
The alleged answering affidavit by
the Second Respondent was not served on the Applicant and or the
First Respondent and therefore
its filing constitutes and irregular
step.
2.
The Second Respondent’s
answering affidavit was filed
extremely
late
with the Registrar of
the Honourable Court in particular that of the Presiding Judge/s
without it being first served. This is an
irregular step and
constitutes a flagrant disregard of the rules on service process and
more so when its contents addresses irrelevant
issues as will be
dealt with later.
3.
The Second Respondent’s
answering affidavit was filed out of time in that the Notice of
motion by the applicant under Rule
53 (Review) was served on the
Second Respondent on the 10
th
August 2022
.
(my emphasis) The Second Respondent filed its intention to oppose on
the 23
rd
August 2022 at 10:54.
4.
In terms of Rule 53(5) any Respondent
who opposes such an application is obligated to file its answering
affidavit within 30 days.
The Second Respondent did not do so. In the
circumstances the 30 days in terms of Rule 53 (5) (b) in September
2022.
The Second Respondent’s
answering affidavit was filed without it being condoned by the
Honourable Court
(my
emphasis) and or condonation raised, it therefore constitutes an
irregular step.
5.
The degree of lateness is extreme and
unexplained as it runs to about 105 court day (almost 4 months). The
Second Respondent’s
failure to apply for condonation
application and merely filing constitutes irregular step/s and
prejudices the Applicant
[5]
The application in terms of Rule 30 was
heard by Mhlambi and at the time of the hearing
of this application,
judgment has not been delivered. During the hearing of this
application, I asked both Counsels to address
me on the effect, if
any, of the Rule 30 application on the current application. It has to
be borne in mind that the Respondent
argues that the answering
affidavit was filed out of time.
The submission of
the
Applicant is that the filing of the application was effected within
time. According to the Applicant no condonation application
is
necessary pertaining to the answering affidavit. The Applicant
further contends that if this court were to find that the filing
of
the answering affidavit was done outside the prescribed time limits,
then in that case, the Applicant submits that a proper
case was made
for this court to grant condonation.
[6]
It is in my view unnecessary to
deal with the issue of condonation. The Rule 30 notice
dearly
indicates that the dispute in the application before Mhlambi; J is
that the time of the filing of the answering affidavit
in the review
application is central to the application before him. The issues
raised in that application are the same as the ones
raised in the
application before me.
[7]
The Respondent in this case did
not patiently raise the issue of
lis pendens
. The evidence as
well as the submission before me, however, point to its relevance.
The following is in my view pertinent in the
two applications: (a)
That there is a pending litigation between the parties with reference
as to whether the answering affidavit
was filed within time or not;
(b) That the dispute is between the parties before me; (c) The
dispute is based on the same cause
of dispute;( d) And the dispute is
in respect of the same cause of action. However, on this aspect, it
does not mean that the form
of relief claimed must be identical. -
See Amler’ s Precedents of Pleadings, 9
th
ed by LTC Harms.
[8]
One of the rationales for a plea
of
lis pendens
is to avoid courts giving conflicting
decisions. In the notice in terms of Rule 30 the Respondent contends
that the answering affidavit
was filed out of time, in this case, the
Applicant contends that it was not. A determination of this issue
must be made by my brother
Mhlambi and myself in these proceedings. A
possibility exists that we may come to different findings. This
should not be allowed
to happen.
[9]
In my view, the interests of
justice demands that the application between Mhlambi, J be
finalised
first as it was argued first and only then, can this matter be
further adjudicated upon. For this reason, I decline to
make any
finding at this stage and I order as follows:
ORDER
1.
The application is removed from the roll pending the finalisation of
the application in terms of the
Uniform Rule 30 read with Rule 30A;
2.
The costs stand over for later adjudication.
P.
E MOLITSOANE, J
On
behalf of the Plaintiff:
Adv.
E.B ONTONG
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
On
behalf of the Defendant:
Mr.
TT HLAPOLOSA
Instructed
by:
SMO
Seobe Attorneys
BLOEMFONTEIN