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[2023] ZAFSHC 458
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Inzalo Enterprise Management Systems (Pty) Ltd v Mantsopa Local Municipality (3832/2023) [2023] ZAFSHC 458 (22 November 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE PROVINCIAL
DIVISION
Reportable
Case
no: 3832/2023
In
the matter between:
INZALO
ENTERPRISE MANAGEMENT SYSTEMS (PTY) LTD
Applicant
[1]
and
THE
MANTSOPA LOCAL MUNICIPALITY
Respondent
[2]
Coram:
Opperman J
Heard:
7 September 2023
Delivered:
22 November 2023. The judgment was
handed down in court and electronically by circulation to the
parties’ legal representatives
via
email and released to SAFLII on 22 November 2023.
The date and time of hand-down is deemed to be 15h00 on 22 November
2023
Summary:
Rule 6(12) – process of
enrollment after matter struck from the roll for lack of urgency –
interlocutory application
to have enrollment of application set aside
as an irregular step – irregular amendment of notice of motion
JUDGMENT
[1]
The judgment turns on the enrollment of an
application after it was struck from the roll for lack of urgency.
[2]
The
Municipality filed and served a notice of interlocutory application
in terms of uniform rule 30(1)
[3]
read with uniform rule 30A(2).
[4]
They maintain enrollment of Inzalo’s application is irregular
and stands to be set aside. Their prayers are:
1.
That the enrollment of the
application, alternatively the notice of enrollment be set aside.
2.
That the applicant in the
main application, Inzalo Enterprise Management Systems (Pty) Ltd,
pays the costs of the application.
[3]
The
two issues whereupon the enrollment of the application is challenged
are that Inzalo amended the notice of motion without doing
so in
terms of the provisions of rule 28
[5]
and the main application was not enrolled in terms of uniform rule
6(5)(a).
[6]
[7]
[4]
The Constitutional Court in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
(CCT
131/12)
[2013] ZACC 23
;
2013 (5) SA 89
(CC);
2013 (10) BCLR 1135
(CC)
(27 June 2013) declared that:
1.
In our constitutional dispensation everyone is
guaranteed access to a competent court to have their dispute resolved
by the application
of law and decided in a fair manner. But this
guarantee does not include the right to choose the method of
approaching and placing
a dispute before a particular court.
The
determination of the process to be followed when litigants approach
courts is left in the hands of the courts
.
(Accentuation added)
[5]
Counsel for Inzalo correctly pointed out in their
heads of argument:
…
There
is no rule dealing with the re-enrolment of an urgent application
struck from the roll. When referring to “
compliance
”
,
it is submitted that the Constitutional Court in
Hawker
had
in mind compliance with the rules of practice of any particular
division. Similarly, proper notice also refers to a new notice
of set
down.
[8]
[6]
Slotting in with the above counsel for Inzalo
voiced an issue that has been a topic of debate for some time:
In
striking a matter off the roll for a lack of urgency, the court
declines to hear it,
declines
to enroll it and somewhat peculiarly strikes it off at the same
time
.
[9]
(Accentuation added)
[7]
The enigma is not new. It has, as will be shown
later, caused erroneous orders in the end. The question is whether a
matter is struck
from the roll for lack of urgency or not allowed
onto the roll for that reason?
Rule 6(12)
(a)
In urgent applications the court or a judge may
dispense with the forms and service provided for in these rules and
may dispose
of such matter at such time and place and in such manner
and in accordance with such procedure (which shall as far as
practicable
be in terms of these rules) as it deems fit.
(b)
In every affidavit filed in support of any
application under paragraph (a) of this sub-rule, the applicant must
set forth explicitly
the circumstances which is averred render the
matter urgent and the reasons why the applicant claims that applicant
could not be
afforded substantial redress at a hearing in due course.
[Substituted by GNR.2133
of 3 June 2022.]
(c)
…
[8]
The legislatively caused dilemma is that in terms
of rule 6(12)(a) the court or judge must rule on urgency before it
may dispense
with the forms and service dictated in the rules. The
matter must be on the roll for the adjudication of the urgency; it is
akin
to an application for condonation.
[9]
The judgment in the case of
PT
Operational Services (Pty) Ltd v Rawu on behalf of Ngwetsana,
2013 (34) ILJ 1138 (LAC) confirmed the fact that
confusion reigns:
[31]
It is unfortunate that Cellier decided to dismiss the application
instead of striking
it from the roll. I have seen many rulings of a
technical or a formalistic nature where the correct order ought to be
striking a matter from the roll,
but the matter
would be
dismissed instead
.
[32]
This also happens in the High Courts and Labour Court especially when
a finding is made
that a matter is not urgent and the Judge refuses
to enrol it. The application is frequently
dismissed for lack of
urgency instead of removed from the roll because of lack of urgency
.
[33]
In Commissioner for
SARS v Hawker Air Services (PTY) Ltd
;
In
Re Commissioner for SARS v Hawker Aviation Service Partnership and
Others,
Cameron JA, as he then was, said the following about such
orders:
“
One of the grounds
on which Patel, J dismissed the application was that at their
inception they had lacked urgency. This was erroneous.
Urgency is a
reason that may justify deviation from the times and forms the rules
prescribe.
It relates to form not substance
and is not a prerequisite to a claim for substantive relief
.
Where an application is brought on the basis of urgency, the rules of
court permit a court ( or a judge in chambers) to dispense
with the
forms of service usually required and to dispose of it “as it
seems meet’ (rule 6(12)(a)). This in effect
permits an urgent
applicant, subject to the court’s control, to forge its own
rules (which must as far as practicable be
in accordance with the
rules). Where the application lacks the requisite element or degree
of urgency, the court can for that reason
decline to exercise its
powers under rule 6(12)(a).
The matter is then
not properly on the court’s roll, and it declines to hear it.
The appropriate order is ordinarily to strike
the application from
the roll
. Thus enables the applicant to set
the matter down again, on proper notice and compliance,”
[34]
Hawker Air Services tells us what the appropriate order should be,
but it is silent on
what the consequences of such an erroneous order
would be where the substantive merits were clearly not dealt with. In
Vena v Vena
, Jones, J discusses Hawker Air Services and
correctly in my view says the following:
“
My understanding
of an order for the dismissal of a claim in circumstances such as
these is that, generally speaking,
it is
equivalent to an order for absolution from the instance, in which
event it is open to an applicant to set the matter down
again
.
In a given set of circumstances,
it may be
that dismissal may amount to a final judgment on an issue, with the
consequence of res judicata
. But that is not
in the normal course where the case turns on a procedural point, and,
I believe, it is not the case here…”
[35]
Although I agree that the appropriate order in a matter where urgency
has not been shown
should be striking the matter from the roll,
it
seems to me that even where the word dismissed is used it does not
necessarily mean that the dismissal amounts to a final order
. One
will still have to enquire, where there is doubt, whether the matter
was dismissed on the merits or not. If it was dismissed
on the
merits, then the order is final. If not, then it is not final. A
finding that a matter is not urgent does not mean that
there are no
merits in the applicant’s case.
Even if a matter is
dismissed for lack of urgency, it can and should be re-enrolled
.
To reason otherwise would be to allow form to triumph over substance.
[36]
The same applies in my judgment to applications for rescission
that are out of time and not accompanied by an application for
condonation
. Although the appropriate order would be to strike it
from the roll, dismissing it does not mean that the merits of the
rescission
application have been considered. A commissioner may only
hear the rescission application if it is accompanied or preceded by a
proper application for condonation. (Accentuation added)
[10]
The confusion that prevails on the differently
worded orders after lack of urgency was ruled in the recent history
of case law,
syphers through to the process that is to be used
to get the real and main application on the roll to cause redress at
a hearing
in due course.
I will contain the judgment to when an
application was struck from the roll for lack of urgency
.
[11]
In
Commissioner for
South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner for South African Revenue Service v
Hawker Aviation
Services Partnership and Others
(379/05)
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA);
[2006] 2 All SA 565
(SCA) (31
March 2006) Cameron JA that wrote for a unanimous court, ruled:
[9]
…Where the application lacks the requisite element or degree
of
urgency, the court can for that reason decline to exercise its
powers under Rule 6(12)(a).
The matter is then not properly on the
court’s roll, and it declines to hear it. The appropriate order
is generally to strike
the application from the roll. This enables
the applicant to set the matter down again,
on proper
notice
and
compliance
. (Accentuation
added)
[12]
Primarily, the Supreme Court of Appeal stated
that: “
The matter is then not
properly on the court’s roll, and it declines to hear it
.”
The Supreme Court of Appeal did not foresee and dictate that the
matter must be struck from the roll in all circumstances
but that the
court may
decline to hear the
application
. This suggests a dismissal
of the application to allow the matter onto the roll. To strike it
from the roll whilst it was not properly
enrolled is a contradiction
in terms. The reliance for the dictum was on
Luna
Meubel Vervaardigers (Edms) Bpk v Makin
1977
(4) SA 135
(W) at 139F-140A.
…
It
will therefore be struck off the roll because it was not properly so
enrolled. The applicant is naturally at liberty to enrol
it for next
week's motion roll, if it so chooses, by filing by Thursday a notice
of set down.
[13]
The Luna Meubels – case is pre –
constitution. The practice to, after a matter was struck from the
roll, re-enroll the
case on the same papers by mere notice of set
down; unamended and in the form and substance of an urgent
application have the real
potential to cause severe constitutional
harm. Affidavits and evidence were prepared in haste and may not be
complete; hearsay
evidence may be admissible in urgent applications
and some other factors may contaminate the application that now
serves on the
roll. There may even be crucial amendments that came to
the fore since as is the case
in casu
.
Heads of argument might not have been filed as is the practice in
opposed applications.
Substance now
becomes an issue too and not only form or process. The effect of the
conundrum on the administration of justice is
substantial and
worrisome
.
[14]
The Supreme Court of Appeal in the Hawker Aviation
– case
supra
referred
to rule 6(6) in footnote 5 of the judgement when they stated: “This
enables the applicant to set the matter down
again, on proper notice
and compliance”. In footnote 5 it is said that:
Cf
Rule 6(6): ‘The court, after hearing an application whether
brought
ex parte
or
otherwise, may make no order thereon (save as to costs if any)
but
grant leave to the applicant to renew the application on the same
papers supplemented by such further affidavits as the case
may
require
.
(Accentuation
added)
[15]
The above clearly allows the application:
1.
To be set down again;
2.
but, on
proper notice
and
compliance
.
3.
A mere notice of set down may not suffice and will
not suffice in the majority of the applications. It might be
procedurally and
constitutionally improper. In compliance with the
audi alteram partem –
dictum; the exception is if orders to substitute,
amend and re-enroll accompanied the order to strike the matter from
the roll.
[16]
“
Proper notice” and “compliance”
bring me to the nature of the application that served on the urgent
roll but was
struck and is now enrolled again for redress at a
“hearing in due course”. It is not an urgent application
anymore
and the application must be defined and the rules applicable
thereto applied to ensure “proper notice” and
“compliance”.
“In due course” suggests at a
proper time and this should be in terms of the rules.
[17]
There
are many kinds of applications, and each has its own rules applicable
to litigate with. Erasmus
[10]
correctly recognizes and differentiates between different
applications:
General.
In terms of rule 1
‘application’ means ‘a proceeding commenced by
notice of motion or other forms of applications
provided for by rule
6.’ Rule 6 makes provision for the following distinct
applications:
(a)
applications on notice and, in this
regard —
(i) unopposed
applications;
(ii) opposed
applications, which may further be divided into those that can
properly be
(b)
ex parte
applications;
(c)
interlocutory and other applications incidental to pending
proceedings;
(d)
urgent applications;
(e)
application for the striking out from
any affidavit matter which is scandalous,
vexatious or irrelevant;
and
(f)
counterapplications.
Every application must
comply with the provisions of rule 62.
[18]
All the above said, the answer to the order
when lack of urgency was ruled lies in rule 6(12)(a) itself; it is an
application
sui generis
to enroll the matter as one of urgency and
to dispense with the forms and service provided for in the uniform
rules of court. This
specific legislatively unique application is on
the roll and stands to be granted or dismissed before the case on the
merits of
the main application may continue
.
[19]
Dismissal of the rule 6(12)(a) – application
is not dismissal of the merits of the main application. It is an
application
to rule on form and not substance.
[20]
The order after the issue of urgency was heard,
adjudicated and rejected is proposed to read
:
The application in terms
of rule 6(12)(a) to enroll the matter as one of urgency and to
dispense with the forms and service provided
for in the uniform rules
of court; is dismissed.
[21]
Nothing prevents the court from making any other
and further orders at the same instance and in addition to the order
above and
as will be suitable to the facts and circumstances of the
case to direct the way forward and on the process.
[22]
When an additional order on form and process has
not been made or requested by any of the parties, the enrollment must
be in accordance
with the nature of the application and the rules
applicable thereto.
In casu
,
it is clearly an opposed application and rule 6(5)(a) finds
application. Rule 6(5)(a) is peremptory in its direction on form and
process.
[23]
The amendment to the notice of motion suffers the
same fate. The amendment cannot be effected and then enrolled on the
same papers
on a notice of set down; the amendment is crucial and
substantive and must be made in terms of the rules. Rule 28 must be
adhered
to. A rule 28 – application is an application that is a
procedural entity of its own; just as any other application
identified
by Erasmus and Harms with reference to the rules and case
law above.
[24]
If the application in its amended form was brought
in terms of rule 6(5)(a) and anew with sufficient time for the
Municipality to
reply; there could be no objection thereto. Hence the
importance of setting the matter back on the roll in a procedurally
sound
and legitimate manner. This brings me to the facts of this case
and the arguments proffered.
[25]
5
May 2023
:
The issues in this judgment eventuated from case number: 1582/2023
,
the
case on which the 5 May 2023 – order (“The original
order”),
[11]
was issued.
The application enrolled by Inzalo sought among other orders for the
cancellation and re-advertisement of a tender.
The main application
now is for declaring the non-compliance of the original court order
to be contempt of court (“The contempt
of court –
application/main application”).
[26]
25 July 2023
:
Inzalo launched an urgent application during which it enrolled for
hearing before the duty judge dealing with urgent matters on
1 August
2023, the main – application for contempt of court to be
declared.
[27]
The content of the notice of motion of the urgent
application of Inzalo on 1 August 2023 shows, and as appears from
prayer 1 of
the notice of motion; that Inzalo sought condonation for
non-compliance with the requirements of the uniform rules of court,
specifically
relating to form, process and service.
[28]
12pm on 25 July 2023
.
Inzalo stipulated severely abridged time periods for the giving of
the notice of intention to oppose the application and for filing
of
answering affidavits. So severe was the application that was issued
on 25 July 2023 that the Municipality had to give notice
of its
intention to oppose on or before 12pm on 25 July 2023; the
application was served not on the Municipality, but on the attorney
per email at d[...]@matlhoincorporated.co.za; the Municipality was
further required to file its answering affidavit on or before
13h00
on 27 July 2023 and as noted above, the matter was enrolled for
hearing on 1 August 2023.
[29]
31 July 2023
:
Notwithstanding their best efforts, the Municipality only managed to
file and serve an answering affidavit on 31 July 2023. In
paragraph
33 of the answering affidavit the Municipality's deponent stated in
unambiguous terms the issues regarding the severely
truncated time
periods:
33.
It is by now
well-established that the Applicant may not act unreasonably towards
the Court or the Respondent. There is nothing reasonable in the
aforesaid conduct of the Applicant. Leaving itself 2 weeks, at
worst,
to draw the urgent application and then affording the Respondent only
48 hours, is manifestly unreasonable. The conduct
remains
unreasonable even with the additional time that the respondent took
to file this answering affidavit. And to avoid uncertainty,
the
Respondent is prejudiced by the Applicants aforesaid conduct.
[30]
1 August 2023
:
The content of the application for amendment shows that the
application will be moot without the amendment. This is the
application
for amendment dated 31 July 2023 and filed and served on
1 August 2023 in terms of rule 28 and apparently to have been heard
on
1 August 2023:
KINDLY TAKE NOTICE THAT
AT THE HEARING OF THIS MATTER the Applicant intends to amend its
amended notice of motion, dated 22 June
2021, in terms of Rule 28(8)
of the Uniform Rules of Court, as follows: -
1.
By inserting a new prayer as new prayer 1A after
the existing prayer 1 and before the existing prayer 2 as follows:
“
1A
.
Declaring the
Respondent to be in contempt of the court order handed down by His
Lordship Justice Mhlambi on 5 May 2023.”
2.
By renumbering the prayers sequentially in
numerical order consequent upon the amendments as aforesaid.
3.
A
copy of the amended notice of motion appears at Annexure A
hereto.
[12]
[31]
1 August 2023
:
Mhlambi J, after consideration of the evidence and arguments, struck
the main application from the roll for lack of urgency. Crucial
is
the fact that Mhlambi J refused to condone the deviation from the
prescribed time periods stipulated in rule 6 and the “adaption”
of Form 2(a) to suit the urgent application. This is the order:
Having considered the
documents filed of record and having heard the legal practitioners,
IT IS ORDERED THAT:
1. The application
is struck off the roll with costs.
[32]
Inzalo was thereafter in law obligated by the
order of the court, absent any other direction in the court order, to
comply with
the prescribed time periods, manner of service and Form
2(a). T
he court heard
the applicant on the issue of urgency and ruled on the issue. The
court declined and refused to grant condonation
for the
non-compliance with the normal rules of the court pertaining to the
form, process and service. It signifies that the applicant
must
comply with the prescribed rules of court pertaining to applications.
[33]
4
August 2023
:
Inzalo did not do this; they did not comply with the prescribed rules
of court pertaining to applications.
Inzalo’s
contempt of court application (the main application) was hereafter
set down on 4 August 2023 for hearing on 24 August
2023.
[13]
The matter was simply enrolled by notice of set down on 4 August 2023
in the same form and with the same content as the urgent
application.
[34]
15 August 2023
:
The Municipality served a notice in terms of rules 30/30A on 15
August 2023. Two complaints came to the fore; namely, (i) that
Inzalo
enrolled the contempt application without first amending its notice
of motion after the matter was struck from the urgent
court roll on 1
August 2023, and (ii) that Inzalo did not afford the Municipality the
ordinary court time periods to file an answering
affidavit in the
contempt application.
[35]
The Municipality demanded that Inzalo remove the
complaints within the usual period of ten days prescribed by rules 30
and 30A of
the uniform rules of court, failing which the Municipality
threatened to bring its exception. The
dies
set in the notice expired on 25 August 2023, that
is a day after the hearing of the pending contempt application on 24
August 2023.
[36]
17 August 2023 and 20 August 2023
:
The second urgent application served before the court. It was the
case for the Municipality that on the evening of 16 August 2023,
its
counsel became aware that the time periods in the notice were an
oversight. The Municipality launched an urgent application
on 17
August 2023 to amend the time periods in the notice from 25 August
2023 to 22 August 2023; two days before the hearing of
the contempt
application.
[37]
This did not make sense since the complaints
cannot effectively, practically and procedurally be removed before
the 24
th
of
August 2023. I noted in the judgment of this urgent application that
the application seems to be still born and moot; the prejudice
to
Inzalo grave and the effect on the administration of justice real.
The urgent application for the condonation of the amended
dies
was unsuccessful.
[38]
24 August 2023
:
The main application served on the opposed motion court roll but was
postponed. This is the order:
Having
considered the documents filed of record and having heard the legal
practitioner/ss,
IT
IS ORDERED BY AGREEMENT THAT:
1.
The matter is postponed to the opposed roll of 7 SEPTEMBER 2023.
2.
The Applicant will, if so advised, file supplementary heads by
Wednesday 30 August 2023.
3.
The Respondent will file heads of argument on Friday 1 September
2023.
4.
None of the parties abrogate any rights they may have to still
argue any irregularity in the process followed.
5.
The costs of the postponement shall be determined on 7 September
2023.
[14]
[39]
7 September 2023
:
The Municipality now again applies by means of an interlocutory
application for the enrollment of the application, alternatively
the
notice of enrollment to be set aside and that the applicant in the
main application pays the costs of the application as per
the relief
set out in the prefixed notice of application in terms of the
provisions of rule 30(1) read with rule 30A(2). Added
to the above
the Municipality argues that Inzalo also finds itself guilty of a
further irregularity in the proceedings; namely
that it purported to
amend the notice of motion without doing so in terms of the
provisions of rule 28. It also never moved an
application to amend in
court when the urgent matter served
in
facie curiae
.
The result is simply that the notice of motion has not been amended.
The Municipality argues that if for whatever reason an argument
can
be made that the amendment exists, which would be legally
incompetent, then the “amendment” also constitutes an
irregular step in the proceedings and stands to be set aside.
[40]
The proposition of the
Municipality is that the main application cannot simply be enrolled
for substantive redress in due course
if there was not compliance
with rule 6(5)(a). It is now an opposed application and not an urgent
opposed application.
[41]
The hypothesis of the Municipality is that an
urgent opposed application in terms of rule 6(12) is not an opposed
application in
terms of rule 6(5)(a).
[42]
Important is that the challenge lies against
process, form, service and now; substance.
[43]
The
audi alteram
partem
–
dictum has been negated
by the one-sided amendment of the notice of motion and the setting
down of the matter without further ado
on both issues.
[44]
The assertion of the Municipality is that there
exists a severe difference between the two processes and if not
applied in courts
for what it is; real prejudice and confusion in the
process itself may be the result. The effective presentation and
adjudication
of the evidence will suffer. It will cause injustice and
affect the right to a fair hearing.
[45]
Counsel for Inzalo in their attack against the
arguments of the Municipality maintains that the
Municipality
has not subsequently to the urgent application, whether formally or
informally, indicated that it wished to supplement
its proffered
opposition to the merits of the application. Instead, what it has
done is to raise an argument by means of a rule
30 - notice,
indicating that it views the re-enrollment in the ordinary course of
the same application as irregular.
[46]
The
Municipality, according to Inzalo, contends that Inzalo first had to
give notice of its intention to amend its notice of motion
(in terms
of rule 28 or otherwise), wait out the ten - day legislatively
allotted
dies
and
then place the matter on the roll in the event of no objection. “…Or
something else. The defence is thus a technical
one, which
pontificates that Inzalo was not entitled to simply re-enrol the
matter in the ordinary course.”
[15]
[47]
Inzalo
submits that the only true question is if they are entitled to have
enrolled the matter in accordance with the practice directives
of
this court in the ordinary course after its claim of urgency had
failed? And, according to them, the answer is a resounding
positive.
Consequently, the main application is to be adjudicated. They did not
refer the court to the applicable practice directives.
The only
practice directives that exist are not applicable to the issues
in
casu
.
[16]
It might be that they refer to the Luna Meubels – dictum
supra.
As
pointed out above; the dictum on this issue is constitutionally
outdated.
[48]
The applicant is
dominus
litis
and
if they elected to bring the matter back onto the roll in a manner
that is not in service of the administration of justice;
they may not
expect the respondent to rectify the error. If they applied rule
6(5)(a) all the litigation would not have erupted.
The necessity of
an application for an amendment would have fallen away. The argument
proposed that
the
Municipality
had not subsequently to the urgent application, whether formally or
informally, indicated that it wished to supplement
its proffered
opposition to the merits of the application and that the main
application must be heard in the absence of such applications,
is
wrong.
[49]
Rule 6(5)(a) directs peremptory so, that:
Rule 6(5)(a)
Every
application other than one brought
ex
parte
shall
be brought on notice of motion as near as may be
in accordance with Form 2(a) of the First Schedule and true copies of
the notice,
and all annexures thereto, shall be served upon every
party to whom notice thereof is to be given.
[Substituted by GG 39715
of 19 February 2016 and by GNR.3397 of 12 May 2023.] (Accentuation
added)
[50]
All applications other than
those brought
ex
parte
must
be brought on notice of motion as near as possible in accordance with
the prescribed form.
The
prescribed form is Form 2(a) and not a notice of set down
.
Form
2(a)
Notice
of motion
(To
Registrar and Respondent)
IN
THE HIGH COURT OF SOUTH AFRICA
( .
. . . . . . . . . . DIVISION)
In
the matter between:
Applicant
and
Respondent
TAKE
NOTICE that .......................... (hereinafter called the
applicant) intends to make application to this Court for an
order:
•
(a)
.....................................................................................................
•
(b)
.....................................................................................................
•
(c)
.....................................................................................................
(here
set forth the form of order prayed) and that the accompanying
affidavit of .............................................
(or
petition where required by law) will be used in support thereof.
TAKE
NOTICE FURTHER that the applicant has been appointed
..................................................................
(here
set forth an address referred to in rule 6(5)(b)) at which he will
accept notice and service of all process in these proceedings.
TAKE
NOTICE FURTHER that if you intend opposing this application you are
required (a) to notify applicant's attorney in writing
on or before
the ..................... (b) and
within
fifteen days after you have so given notice of your intention to
oppose the application, to file your answering affidavits,
if any;
and further that you are required to appoint in such notification an
address referred to in rule 6(5)(b) at which you will
accept notice
and service of all documents in these proceedings.
If
no such notice of intention to oppose be given, the application will
be made on the
.................................................................
at
...................(time).
DATED
at ................................... this
............................... day of ................ 20......
...............................................................
Applicant
or his/her Attorney
(address)
[Form
2(a) amended by GN R2410 of 30 September 1991 and substituted by GN
R3[sic] of 19 February 2016 (w.e.f. 22 March 2016).] (Accentuation
added)
[51]
A rule 6(12) – application and a rule
6(5)(a) – application is not only distinguishable in form but
also in substance
and thus purpose, preparation and nature. It aims
to obtain different relief through different processes at specific
times and
instances. Each case is to be adjudicated on its unique and
particular facts.
[52]
The right of access to courts is essential in a
constitutional democracy under the rule of law and specifically so in
terms of section
34 of the Constitution of the Republic of South
Africa, 1996: “Everyone has the right to have any dispute that
can be resolved
by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and
impartial
tribunal or forum.”
[53]
The right of access to courts that is a
fundamental right, is eclipsed by the right to justice that also
entails,
inter alia
,
a fair trial or hearing. Section 34 of the Constitution refers to the
application of law decided in
a fair
public hearing
.
[54]
This case is a reminder that the rules of courts
and litigation must be proper and may not cause trials or hearings to
become chaos.
The
audi alteram partem
–
dictum is sacrosanct.
[55]
In conclusion:
1.
This is the order proposed to be made after the
court adjudicated that an application in terms of rule 6(12) lacks
urgency:
The application in terms
of rule 6(12)(a) to enroll the matter as one of urgency and to
dispense with the forms and service provided
for in the uniform rules
of court is dismissed.
2.
Any additional orders to amend, substitute or
augment the papers, the process and
dies
may be issued at this stage.
3.
Absent further orders by the court the application
may only be enrolled in correlation and compliance with the rules
applicable
to it and on due notice.
[56]
The enrollment that was effected on 4 August 2023
by notice of set down constitutes an irregular step causing manifest
prejudice
to the Municipality and the administration of justice and
stands to be set aside with costs, including the costs occasioned by
the employment of two counsel. Inzalo will have to comply with the
rules pertaining to the enrollment of an application and, if
applicable, an amendment to a notice of motion. Imperative is that
the main application to declare the conduct of the Municipality
to be
in contempt of a court order, is not the subject of the dismissal
that will follow in the order below; the matter may be
enrolled with
proper notice and in compliance with the rules.
[57]
The Constitutional Court in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
supra,
again:
30.
In
Chief Lesapo v North West Agricultural Bank and Another
,
this Court underscored the importance of access to courts in these
terms:
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated and
institutionalized mechanisms to resolve disputes, without resorting
to self-help. The right of access to court is a bulwark against
vigilantism, and the chaos and anarchy which it causes. Construed in
this context of the rule of law and the principle against
self-help
in particular, access to court is indeed of cardinal importance. As a
result, very powerful considerations would be required
for its
limitation to be reasonable and justifiable.” (Footnote
omitted.)
31.
However, a litigant who wishes to exercise the right of access to
courts is
required to follow certain defined procedures to enable the
court to adjudicate a dispute. In the main these procedures are
contained
in the rules of each court. The Uniform Rules regulate form
and process of the High Courts. The Supreme Court of Appeal and this
Court have their own rules. These rules confer procedural rights on
litigants and also help in creating certainty in procedures
to be
followed if relief of a particular kind is sought.
32.
It is important that the rules of courts are used as tools to
facilitate access
to courts rather than hindering it. Hence rules are
made for courts and not that the courts are established for rules.
Therefore,
the primary function of the rules of courts is the
attainment of justice. But sometimes circumstances arise which are
not provided
for in the rules. The proper course in those
circumstances is to approach the court itself for guidance. After
all, in terms of
section 173 each superior court is the master of its
process.
[58]
ORDER
1.
The
enrollment
of the main application for hearing is irregular and set aside.
2.
The applicant in the main application, Inzalo Enterprise Management
Systems (Pty)
Ltd, to pay the costs of the application that shall
include the costs of two counsel.
M
OPPERMAN J
APPEARANCES
For
the applicant in the rule 30/30A – application
N
SNELLENBURG SC
S
REINDERS
K
MOTSELEBANE
Matlho
Attorneys
BLOEMFONTEIN
For
the respondent in the rule 30/30A – application
S
GROBLER SC
Di
Siena Attorneys
Sandton
c/o
Honey Attorneys
BLOEMFONTEIN
[1]
“
Inzalo”.
Inzalo is the applicant in the main application.
[2]
“
The
Municipality”. The Municipality is the applicant in the rule
30/30A – application. This is the application that
stands to
be adjudicated here.
[3]
30
Irregular proceedings
(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.
[Subrule (1) substituted
by GN R2164 of 2 October 1987, by GN R2642 of 27 November 1987 and
by GN R1883 of 3 July 1992.]
(2) An
application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity
or impropriety
alleged, and may be made only if —
(a) the
applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b) the applicant
has, within ten days of becoming aware of the step, by written
notice afforded his opponent an opportunity
of removing the cause of
complaint within ten days;
(c) the
application is delivered within fifteen days after the expiry of the
second period mentioned in paragraph (b) of
subrule (2).
[Subrule (2) substituted
by GN R1883 of 3 July 1992 and amended by GN R2047 of 13 December
1996.]
(3) If at the
hearing of such application the court is of opinion that the
proceeding or step is irregular or improper,
it may set it aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave to amend
or make any such order as to
it seems meet.
(4) Until a party
has complied with any order of court made against him in terms of
this rule, he shall not take any further
step in the cause, save to
apply for an extension of time within which to comply with such
order.
[Subrule (4) substituted
by GN R2164 of 2 October 1987 and by GN R2642 of 27 November 1987.]
(5) . .
[Subrule (5) deleted by
GN R2047 of 13 December 1996.]
[4]
30A
Non-compliance with Rules and Court Orders
[Heading
substituted by GN R2133 of 3 June 2022.]
(1) Where a party
fails to comply with these rules or with a request made or notice
given pursuant thereto, or with an
order or direction made by a
court or in a judicial case management process referred to in rule
37A, any other party may notify
the defaulting party that he or she
intends, after the lapse of 10 days from the date of delivery of
such notification, to apply
for an order —
(a) that
such rule, notice, request, order or direction be complied with; or
(b) that the
claim or defence be struck out.
[Subrule (1) substituted
by GN R2133 of 3 June 2022.]
(2) Where a party
fails to comply within the period of 10 days contemplated in subrule
(1), application may on notice be
made to the court and the court
may make such order thereon as it deems fit.
[Rule
30A inserted by GN R881 of 26 June 1998 and substituted by GN R842
of 31 May 2019.]
[5]
28
Amendments to pleadings and documents
(1)
Any party desiring to amend any pleading or document other than a
sworn statement,
filed in connection with any proceedings, shall
notify all other parties of his intention to amend and shall furnish
particulars
of the amendment.
(2)
The notice referred to in subrule (1) shall state that unless
written objection
to the proposed amendment is delivered within 10
days of delivery of the notice, the amendment will be effected.
(3)
An objection to a proposed amendment shall clearly and concisely
state the
grounds upon which the objection is founded.
(4)
If an objection which complies with subrule (3) is delivered within
the period
referred to in subrule (2), the party wishing to amend
may, within 10 days, lodge an application for leave to amend.
(5)
If no objection is delivered as contemplated in subrule (4), every
party
who received notice of the proposed amendment shall be deemed
to have consented to the amendment and the party who gave notice
of
the proposed amendment may, within 10 days of the expiration of the
period mentioned in subrule (2), effect the amendment
as
contemplated in subrule (7).
(6)
Unless the court otherwise directs, an amendment authorized by an
order of
the court may not be effected later than 10 days after such
authorization.
(7)
Unless the court otherwise directs, a party who is entitled to amend
shall
effect the amendment by delivering each relevant page in its
amended form.
(8)
Any party affected by an amendment may, within 15 days after the
amendment
has been effected or within such other period as the court
may determine, make any consequential adjustment to the documents
filed by him, and may also take the steps contemplated in rules 23
and 30.
(9)
A party giving notice of amendment in terms of subrule (1) shall,
unless
the court otherwise directs, be liable for the costs thereby
occasioned to any other party.
(10)
The court may, notwithstanding anything to the contrary in this
rule, at any stage before
judgment grant leave to amend any pleading
or document on such other terms as to costs or other matters as it
deems fit.
[Rule
28 substituted by GN R181 of 28 January 1994.]
[6]
The
Municipality’s heads of argument from pages 2 to 18.
[7]
Rule
6 Applications
(1)
Every application
must be brought on notice of motion supported by an affidavit
as to
the facts upon which the applicant relies for relief.
[Subrule
(1) substituted by GN R2133 of 3 June 2022.]
(2)
When relief is claimed against any person, or where it is necessary
or proper
to give any person notice of such application, the notice
of motion must be addressed to both the registrar and such person,
otherwise it must be addressed to the registrar only.
(3) . . .
[Subrule (3) repealed by
GN R2133 of 3 June 2022.]
(4) (a)
Every application brought
ex parte
upon notice to the
registrar supported by an affidavit as aforesaid
must be filed with the registrar
and set down, before noon on the
court day but one preceding the day upon which it is to be heard. If
brought upon notice to
the registrar, such notice must set forth the
form of order sought, specify the affidavit filed in support
thereof, request the
registrar to place the matter on the roll for
hearing, and be as near as may be in accordance with Form 2 of the
First Schedule.
[Paragraph (a)
substituted by GN R2133 of 3 June 2022.]
(b)
Any person having an interest which may be affected by a decision on
an application being brought
ex
parte
, may deliver
notice of an application for leave to oppose, supported by an
affidavit setting forth the nature of such interest
and the ground
upon which such person desires to be heard, whereupon the registrar
must set such application down for hearing
at the same time as the
initial application.
(c)
At the hearing the court may grant or dismiss either of or
both such applications as the case may require or may adjourn
the
same upon such terms as to the filing of further affidavits by
either applicant or otherwise as it deems fit.
(5) (a)
Every application other than one brought
ex parte
shall be
brought on notice of motion as near as may be in accordance with
Form 2(a) of the First Schedule and true copies of
the notice, and
all annexures thereto, shall be served upon every party to whom
notice thereof is to be given.
[Paragraph (a)
substituted by GN R3397 of 12 May 2023.]
(b)
In a notice of motion, the applicant shall —
(i) appoint an address
within 25 kilometers of the office of the registrar and an
electronic mail address, if available to the
applicant, at either of
which addresses the applicant will accept notice and service of all
documents in such proceedings;
(ii) state the
applicant’s postal or facsimile addresses where available; and
(iii) set forth a day,
not less than 10 days after service thereof on the respondent, on or
before which such respondent is required
to notify the applicant, in
writing, whether respondent intends to oppose such application, and
shall further state that if no
such notification is given the
application will be set down for hearing on a stated day, not being
less than 10 days after service
on the said respondent of the said
notice;
Provided that —
(aa)
for the purposes of this subrule, the days between 21 December and 7
January, both
inclusive, shall not be counted in the
time allowed for delivery of the notice of intention to oppose or
delivery of any affidavit;
(bb)
the provisions of subparagraph (aa) shall not apply to applications
brought under subrule
6(12) of this rule and applications brought
under rule 43.
[Paragraph (b)
substituted by GN R1055 of 29 September 2017 and by GN R3397 of 12
May 2023.]
(c)
If the respondent does not, on or before the day mentioned
for that purpose in such notice, notify the applicant of
an
intention to oppose, the applicant may place the matter on the roll
for hearing by giving the registrar notice of set down
before noon
on the court day but one preceding the day upon which the same is to
be heard.
(d)
Any person opposing the grant of an order sought in the notice of
motion shall —
(i) within the
time stated in the said notice, give applicant notice, in writing
that such person intends to oppose the
application, and in such
notice appoint an address within 25 kilometers of the office of the
registrar and an electronic mail
address, if available to such
person, at either of which addresses such person will accept notice
and service of all documents,
as well as such person’s postal
or facsimile addresses where available;
(ii) within 15
days of notifying the applicant of intention to oppose the
application, deliver such person’s answering
affidavit, if
any, together with any relevant documents; and
(iii) if such person
intends to raise any question of law only such person shall deliver
notice of intention to do so, within
the time stated in the
preceding sub-paragraph, setting forth such question.
[Paragraph (d)
substituted by GN R2133 of 3 June 2022 and by GN R3397 of 12 May
2023.]
(e)
Within 10 days of the service upon the respondent of the
affidavit and documents referred to in sub-paragraph (ii)
of
paragraph (d) of subrule (5) the applicant may deliver a replying
affidavit. The court may in its discretion permit the filing
of
further affidavits.
(f)
(i) Where no answering affidavit or notice in terms of
sub-paragraph (iii) of paragraph (d), is delivered within the
period
referred to in sub-paragraph (ii) of paragraph (d) the applicant may
within five days of the expiry thereof apply to the
registrar to
allocate a date for the hearing of the application.
(ii) Where an answering
affidavit is delivered the applicant may apply for such allocation
within five days of the delivery of
a replying affidavit or, if no
replying affidavit is delivered, within five days of the expiry of
the period referred to in paragraph
(e) and where such notice is
delivered the applicant may apply for such allocation within five
days after delivery of such notice.
(iii) If the applicant
fails so to apply within the appropriate period aforesaid, the
respondent may do so immediately upon the
expiry thereof. Notice in
writing of the date allocated by the registrar shall be given by the
applicant or respondent, as the
case may be, to the opposite party
within five days of notification from the registrar.
[Subparagraph (iii)
substituted by GN R3397 of 12 May 2023.]
(g)
Where an application cannot properly be decided on affidavit the
court may dismiss the application or make such order as it
deems fit
with a view to ensuring a just and expeditious decision. In
particular, but without affecting the generality of the
aforegoing,
it may direct that oral evidence be heard on specified issues with a
view to resolving any dispute of fact and to
that end may order any
deponent to appear personally or grant leave for such deponent or
any other person to be subpoenaed to
appear and be examined and
cross-examined as a witness or it may refer the matter to trial with
appropriate directions as to
pleadings or definition of issues, or
otherwise.
(h)
. . .
[Paragraph (h) repealed
by GN R2133 of 3 June 2022.]
(6)
The court, after hearing an application whether brought ex parte or
otherwise, may make no order thereon (save as to costs if any) but
grant leave to the applicant to renew the application on the
same
papers supplemented by such further affidavits as the case may
require.
(7) (a) Any
party to any application proceedings may bring a counter-application
or may join any party to the same
extent as would be competent if
the party wishing to bring such counter-application or join such
party were a defendant in an
action and the other parties to the
application were parties to such action. In the latter event the
provisions of rule 10 will
apply.
(b)
The periods prescribed with regard to applications apply to
counter-applications: Provided that the court may on good cause
shown postpone the hearing of the application.
(8)
Any person against whom an order is granted ex parte may anticipate
the return
day upon delivery of not less than twenty-four hours’
notice.
(9)
A copy of every application to court in connection with the estate
of any
person deceased, or alleged to be a prodigal, or under any
legal disability, mental or otherwise, must, before such application
is filed with the registrar, be submitted to the Master for
consideration and report; and if any person is to be suggested to
the court for appointment as curator to property, such suggestion
must likewise be submitted to the Master for report. Provided
that
the provisions of this subrule do not apply to any application under
rule 57 except where that rule otherwise provides.
(10)
The provisions of subrule (9) further apply to all applications for
the appointment
of administrators and trustees under deeds or
contracts relating to trust funds or to the administration of trusts
set up by
testamentary disposition.
(11)
Notwithstanding the aforegoing subrules, interlocutory and other
applications incidental
to pending proceedings may be brought on
notice supported by such affidavits as the case may require and set
down at a time assigned
by the registrar or as directed by a judge.
(12) (a) In urgent
applications the court or a judge may dispense with the forms and
service provided for in these rules
and may dispose of such matter
at such time and place and in such manner and in accordance with
such procedure (which shall as
far as practicable be in terms of
these rules) as it deems fit.
(b)
In every affidavit filed in support of any application under
paragraph (a) of this subrule, the applicant must set forth
explicitly the circumstances which is [sic] averred render [sic] the
matter urgent and the reasons why the applicant claims that
applicant could not be afforded substantial redress at a hearing in
due course.
[Paragraph (b)
substituted by GN R2133 of 3 June 2022.]
(c)
A person against whom an order was granted in such person’s
absence in an urgent application may by notice set down
the matter
for reconsideration of the order.
(13)
In any application against any Minister, Deputy Minister, Member of
an Executive
Council, officer or servant of the State, in such
capacity, the State or the administration of any province, the
respective periods
referred to in paragraph (b) of subrule (5), or
for the return of a rule nisi, must be not less than 15 days after
the service
of the notice of motion, or the rule nisi, as the case
may be, unless the court has specially authorized a shorter period.
(14)
The provisions of rules 10, 11, 12, 13 and 14 apply to all
applications.
(15)
The court may on application order to be struck out from any
affidavit any matter which
is scandalous, vexatious or irrelevant,
with an appropriate order as to costs, including costs as between
attorney and client.
The court may not grant the application unless
it is satisfied that the applicant will be prejudiced if the
application is not
granted.
[Rule 6 substituted by
GN R3 of 19 February 2016 and amended by GN R2133 of 3 June 2022.]
[8]
At
paragraph 2.11 of their heads of argument: Enrollment.
[9]
At
paragraph 2.12.1 of their heads of argument: Enrollment.
[10]
Erasmus:
Superior
Court Practice
,
CD-Rom & Intranet: ISSN 1561-7467, Internet: ISSN 1561-7475,
Jutastat e-publications, 19 November 2023 at “Rule 6
Applications” on RS 21, 2023, D1-50. Also see Harms: Civil
Procedure,
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 6 APPLICATIONS. Last Updated: August
2023 - SI 77 at “
B6.2
Kinds of applications”, Jutastat.
[11]
Page
71 of the record indexed on 30 August 2023: “INDEX”.
Inzalo in this application is the applicant in case number
1582/2023. On 5 May 2023, Mhlambi J from this court, issued an order
against the Mantsopa Local Municipality, the applicant
in
casu
.
It is this order that Inzalo now claim that the Municipality does
not comply with and is in contempt of. The order reads as
follows:
Having considered the
documents filed of record and having heard the legal practitioners,
IT IS ORDERED THAT:
1. The
Respondent shall cancel and re-advertise the tender for the supply
of Hosting, supply, delivery, installation
and commissioning of
MSCOA compliant Financial Management and Internal control system to
the Municipality that complies with
MFMA Circular 80, which
stipulates the requirements of the municipal financial systems and
processes in support of the Municipal
Standard Chars of Accounts
(MSCOA) and all subsequent MFMA MSCOA circulars as promulgated,
under Bid Number: MLM-27/23/24
(“the Tender”)
including the specified statutory time periods;
2. The
Respondent is ordered to provide the applicant with the proof of
information in respect of the Tender
within 5 days of this court
order. Proof of the Respondent’s compliance with MSCOA
obligations in terms of the Circulars
issued by the National
Treasury in respect of the appointment and replacement of the
Respondent’s financial management
system and service provider
including but not limited to compliance with:
2.1 MFMA Circular
no. 123
2.2 MFMA Circular
no 80 and annexure B thereto.
3. The
Respondent shall pay the costs of this application on the attorney
and client scale including the cost
of counsel.
[12]
Pages
234 to 245 of the record indexed on 30 August 2023: “INDEX”.
[13]
Pages
253 to 254 of the record indexed on 30 August 2023: “INDEX”.
[14]
Page
255 of the record indexed on 30 August 2023: “INDEX”.
[15]
Paragraph
1 and specifically paragraph 1.4 of their heads of argument:
Enrollment.
[16]
Source:
Erasmus,
Superior
Court Practice
/Volume
3: Practice Directions/Part G Free State/G1 Free State Rules/Rules
regulating the conduct of the proceedings of the Orange
Free State
provincial division of the High Court of South Africa — GN 820
of 2007/14. Striking off the Roll URL:
http://jutastat.juta.co.za/nxt/gateway.dll/scpr/650/719/720/721/734?f=templates$fn=default.htm
on
20 November 2023.
14. Striking off
the Roll
14.1
If a matter is struck off the roll on the ground of nonappearance
of a party, it
is regarded as finally disposed of and can be
reinstated upon presentation of an explanation under oath as to why
there was no
appearance.
14.2
Once an Appeal has been struck off the roll, the registrar returns
the record to the
clerk of the court.
14.3.1
In all criminal appeals where the appellant’s heads of
argument have not been handed in on the
date when the dies therefore
have expired, the state may request that the appeal be struck off
the roll because of such failure.
14.3.2
An application for striking off does not affect the discretion of
the court to deal with the appeal and/or
an application for
condonation, which includes hearing the appeal or deciding it by
virtue of the Court’s inherent review
powers.
14.3.3
Where the state has applied for the striking off of an appeal, but
thereafter an application for condonation
of the appellant’s
failure is filed and/or where heads of argument are then filed by
the appellant, the state also has
to file heads of argument, even
though the appellant’s heads of argument were not timeously
filed.
14.3.4 Where
the state has applied for the striking off of the appeal and where
no condonation application and/or
heads of argument were filed by
the appellant, the state is not obliged to file heads of argument
unless the presiding judge
requests the state to do so.