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2023
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[2023] ZAFSHC 476
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Mofokeng v Regional Court Magistrate Nekosi N.O. and Another (3751/2022) [2023] ZAFSHC 476 (7 December 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
Case No: 3751/2022
In
the matter between:
MOSEBETSI
RICHERD MOFOKENG
Applicant
and
THE
REGIONAL COURT MAGISTRATE C NEKOSI N.O.
1
st
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS
2
nd
Respondent
HEARD
ON:
15 JUNE 2023
JUDGMENT
BY
:
MHLAMBI, J
et
LEKHOABA, AJ
DELIVERED
ON:
07 NOVEMBER 2023
Introduction
[1] The
applicant approached this court seeking an order in the following
terms:
1.
The answering affidavit deposed to by John
Victor De Bruyn filed on behalf of the second respondent on 20
th
January 2023 with the Honourable Court is struck off the record of
the review proceedings and set aside in its entirety.
2.
That the second respondent’s
purported heads of argument filed on behalf of the second respondent
on the 20
th
January 2023 with the Honourable Court is struck off the record of
the review proceedings and set aside in its entirety.
3 That
the second respondent be directed to pay the costs of this
application including costs of counsel.
3.
Further and/or alternative relief.
The founding affidavit
[2]
In his founding, the applicant stated that on 8 August 2022 a review
application was issued and served on
the first and second respondents
on 10 August 2022. The second respondent served the applicant with
its notice of intention to
oppose the application on 23 August 2022.
As the matter was opposed, it was removed from the roll on 15
September 2022. As the
second respondent failed to file its answering
affidavit by 4 October 2022, the application was set down for hearing
on 2 November
2022 on the unopposed roll and was allocated 23 January
2023 as the date of hearing.
[1]
[3]
Upon his counsel’s advice, the applicant filed all records at
his disposal to assist the court as the
firs respondent was
recalcitrant and did not file the records as the magistrate who made
the decision under the Rule 53 review.
[2]
On 20 January 2022, the second respondent filed an answering
affidavit without serving it on his attorney’s office. This
step the applicant regarded as irregular and necessitated the present
application.
[3]
[4]
By agreement between the parties, the application was postponed to 29
May 2023 to enable the parties to follow
due process and file the
necessary interlocutory applications.
[4]
On 6 February 2023 the applicant filed and served notices in terms of
Rules 30 and 30A on the second respondent.
[5]
The second respondent has so far failed to react to these notices.
[6]
He has not filed a reply to the irregular answering affidavit as such
a step would condone the second respondent’s non-compliance
with the Rules.
[7]
The decision
to proceed with the irregular proceedings against the second
respondent, was galvanised by the first respondent’s
failure to
furnish the required records despite the applicant’s attempts
to obtain them from him.
[8]
The legal frame work
Rule 53 Reviews
[5]
In
Vereeniging
Van B0-Gronsse Mynamptenare Van Suid-Africa v President of the
Industrial Court and Others
[9]
,
it was stated that it was clear from the provisions of Rule 53 (3),
(4) and (5) that a respondent was not obliged to take any
step to
oppose the application for review until it had been furnished with a
copy of the record of the proceedings. In
Turnbull-Jackson
v Hibiscus Coast Municipality and Others
[10]
it
was stated that a Rule 53 record is an invaluable tool in the review
process. It helps shed light on what happened and why; give
the lie
to unfounded after the fact justification of the decision under
review in substantiation of as yet not fully substantiated
grounds of
review and in the performance of the review in courts function.
The answering
Affidavit
[6] The
second respondent stated in the answering affidavit that on 8 August
2022, when the applicant launched
this application in terms of Rule
53 of the Uniform Rules, the application was filed without the
required record of proceedings
to be reviewed. The notice to oppose
the application was filed without an answering affidavit because the
second respondent was
of the view that it would be premature to file
such an affidavit since the record of proceedings to be reviewed was
absent. The
procedure followed by the applicant was therefore flawed.
[7] The
application was removed from the court roll on 15 September 2022 but
was set down for hearing on 3 November
2022. The record of
proceedings was as of this date not yet filed. An uncertified record
of proceedings was only filed by the applicant
in November/December
2022 and the applicant filed a supplementary affidavit on 1 December
2022.
[8]
Both the uncertified record of proceedings and supplementary
affidavit were not served on the second respondent.
In the week of
the 16th to the 20
th
of January 2023 the second respondent
enquired about the court file but could not locate it. It was only
found by the Judge’s
clerk on 20 January 2023. On a perusal of
the uncertified record of proceedings, the second respondent
discovered that the record
was incomplete but continued to file the
answering affidavit and heads of argument. The filing of the
answering affidavit was
ex abudanti cautela
seeing that the
applicant had already filed the record and a further affidavit that
were not served on the second respondent. The
latter wanted to avoid
the applicant from obtaining an oppressive order which could
prejudice it.
Discussion
[9] It
is evident that the applicant is aggrieved by the second respondent’s
failure to file an answering
affidavit at the appropriate time having
filed a notice of intention to oppose the application. It would
appear that the applicant’s
case is premised on the following:
“
3.4
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) expired
on the 4th October 2022.
3.5
The
second respondent’s answering affidavit was filed without it
being condoned by the honourable court and or condonation
application
filed, it therefore constituted an irregular step and not in
compliance of the Rules.”
[11]
[10
]
Uniform Rule 53(4) stipulates that an applicant may, within 10
days after the registrar has made the record available to him, by
delivery of a notice and accompanying affidavit, amend, add to or
vary the terms of such applicant’s notice of motion and
supplement the supporting affidavit. Uniform Rule 53(5)(b) provides
that should any officer desire to oppose the granting of the
order
prayed in the notice of motion, such officer such shall, within
30 days after the expiry of the time referred to in
subrule (4)
above, deliver any affidavits such party may desire in answer to the
allegations made by the applicant.
[11]
Nowhere in his affidavits did the applicant
mention that the registrar had made the record available to him to
allow the smooth
flow of the process. It goes without saying that the
applicant’s calculation of the time within which the second
respondent
should have filed its answering affidavits is wrong. The
steps taken by the applicant were premature and uncalled for. There
is
no substance in the application and it must therefore fail.
[12] It is trite that the
successful party is entitled to the costs.
[13] The following order
therefore ensues:
The
application is dismissed with costs.
MHLAMBI, J
On
behalf of the Applicant:
Mr
TT Hlapolosa
Instructed
by:
SMO
Seobe Attorneys
21
Reid Street
Westdene
Bloemfontein
On
behalf of the 2
nd
respondent:
Adv.
EB Ontong
Instructed
by:
Director
of Public Prosecutions
Ground
Floor
Waterfall
Building
Bloemfontein
[1]
Paragraphs 4.7 and 4.8 of the FA.
[2]
Paragraph 4.9 of the FA.
[3]
Paragraphs 4.11 and 4.12 of the FA.
[4]
Paragraph 4.3 of the FA.
[5]
Paragraph 4.14 of the FA.
[6]
Paragraph 4.16 of the FA.
[7]
Paragraph 5.1 of the FA.
[8]
Paragraph 5.2 of the FA.
[9]
1983 (1) SA 1143
(T) at 1145E; Fizik Investments (Pty) Ltd t/a
Umkhombe Security Services v Nelson Mandela Metropolitan University
2009(5) SA
441 (SE).
[10]
2014 (6) SA 592
(CC)
[11]
Applicants heads of argument on page 3.