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[2023] ZAECBHC 37
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Mtwazi v MEC for Education and Others (472/2020) [2023] ZAECBHC 37 (5 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: BHISHO]
CASE
NO.: 472/2020
In
the matter between:
LIZO
MTWAZI Plaintiff
AND
MEC
FOR EDUCATION First
Defendant
DIRECTOR
OF PUBLIC PROSECUTIONS Second
Defendant
MINISTER
OF POLICE Third
Defendant
JUDGMENT
NORMAN
J:
[1]
The plaintiff instituted an action against the MEC for Education as
first defendant, the Director of Public
Prosecutions cited as second
defendant and the Minister of Police as a third defendant. The first
and second defendants have pleaded
to the particulars of claim and
this application does not involve them.
[2]
The third defendant objected to the particulars of claim and filed in
that regard a notice in terms of Rule
30(2)(b) wherein he complained
that the plaintiff’s particulars of claim dated 12 August 2020
were irregular. The irregularity
was based on the following grounds
that:
2.1.
In terms of Rule 18(4) of the Uniform Rules of Court every pleading
shall contain a clear and concise statement of the
material facts
upon which the pleader relies for his claim, defence or answer to any
pleading as the case may be with sufficient
particularity to enable
the opposite party to reply thereto.
2.2.
The allegations made by the plaintiff in paragraphs 12 and 13 to the
effect that the members of the police service unlawfully
induced
third parties to implicate the plaintiff in the commission of an
alleged crime and that they persisted with investigating
the
plaintiff without just cause after the charges were withdrawn.
2.3.
It also referred to paragraph 14 wherein an amount of R365 000.00
is claimed for damages suffered and the amount
of R3 million for
contumelia,
deprivation of freedom and discomfort.
2.4
In this regard, the third defendant alleged that plaintiff has not
set out material facts showing that the conduct
of the third
defendant caused him to incur such costs and/or that there are no
facts justifying the damages being sought for
contumelia
, and
or deprivation of freedom.
[3]
It was also alleged that the plaintiff failed to set out material
facts establishing a link between the damages
sought and the conduct
of the members of the service. In this regard the particulars of
claim, according to the third defendant
do not comply with the
provisions of Rule 18(4) and are thus irregular. They further
contended that the non-compliance with the
provisions of that rule is
prima facie
prejudicial to the third defendant and it afforded
the plaintiff ten days within which to remove the cause of complaint.
[4]
The notice was issued on 28 September 2020 and it had been served on
the plaintiff on 25
th
September 2020. Plaintiff did not
react to the plaintiff’s notice and on 23 October 2020 the
third defendant brought an application
in terms of Rule 30(1) wherein
he sought the following orders:
“
1.
That the plaintiff’s/respondent’s particulars of claim
filed under Case No. 472/2020 be declared an irregularity
for
non-compliance with Rule 18(4) of the Uniform Rules of Court.
2.
That the plaintiff’s particulars of claim be set aside.
3.
That the plaintiff be directed to deliver amended particulars of
claim which comply with rule 18(4) in so far as its claim
relates to
the third defendant within ten (10) days of receipt of the order
sought herein.
4.
That failing delivery of the amended particulars of claim within the
period referred to in paragraph 3 within the period
referred to in
paragraph 3 above, the plaintiff shall be ipso facto barred from
doing so and the third defendant may, on the same
papers duly
amplified, if necessary apply for the plaintiff’s claim to be
dismissed.
5.
That plaintiff is ordered to pay the costs of this application.”
[5]
The application was brought on notice and was supported by an
affidavit deposed to by the third defendant’s
legal
representative. The affidavit repeated the contentions raised in the
rule 30 notice and it is not necessary for me to repeat
them herein.
The third defendant contended that the failure by the plaintiff to
comply with the provisions of Rule 18(4) is prejudicial
to him
because the third defendant is not certain of the legal and factual
basis of the plaintiff’s claim and is unable to
plead thereto.
He sought an order in terms of the notice.
[6]
The application was duly served on the plaintiff and he simply filed
a notice to oppose and nothing else.
He had been afforded 15 days
within which to file an answering affidavit. He failed to do so.
[7]
Ms Booysen appeared for the third defendant as the applicant and Mr
Poswa appeared for the plaintiff as the
respondent. Ms Booysen
submitted that there has been compliance with the provisions of Rule
6 in that the application itself was
brought on notice and it was
supported by an affidavit. She further submitted that on the issue of
the non-compliance with Rule
18(4), she referred the court to the
decision of
McKenzie
v Farmers Corporative Meat Industries Ltd
[1]
where
the court held that “
the
particulars of claim must contain every fact which would be necessary
for the plaintiff to prove in order to support his right
to the
judgment of the court”.
[8]
She further submitted that the facts that must be set out must be
such that the relief prayed for flows from
them and can properly be
granted otherwise the particulars of claim will be excipiable for
failure to disclose a cause of action.
In this regard, she relied on
Buchner
v Johannesburg Consolidated Investments Co. Ltd
[2]
.
[9]
She submitted that a closer scrutiny of the pleadings shows that
plaintiff failed to set out the material
facts showing that the
conduct of the third defendant caused him to incur legal costs and/or
to suffer damages as claimed. The
plaintiff also failed to establish
a link between the damages claimed and the conduct of the members of
the South African Police
Services. She submitted that in this case
the third defendant has acted properly in that he did not ignore the
irregularity as
if it was a nullity but instead he applied to court
to have it set aside. In this regard, she relied on
Gibson
& Jones (Pty) Ltd v Smith
[3]
.
She
submitted that the third defendant is entitled to costs of the
application.
[10]
Mr Poswa, on the other hand, submitted that it was not necessary for
the plaintiff to respond to the application because
the application
was out of time since it was only heard two years later. He submitted
that because of the delay and failure on
the part of the third
defendant to apply for condonation for the late filing of the
application, this court should refuse the relief
sought. On that
basis alone, he argued, the court should deprive the third defendant
of his costs.
[11]
He submitted that Rule 30 is time bound and a party is obliged to
comply with the time frames set out therein. In this
regard, he
referred to Rule 30(2)(b) and (c) where ten days is set out for the
cause of compliant to be removed. A period of fifteen
days is set
after the expiry of that period to enable the party with a complaint
to deliver the application. He further submitted
that the third
defendant did not simply seek to set aside those paragraph that
relate only to the third defendant but sought to
set aside all the
particulars of claim. He relied on
SA
Metropolitan Lewensversekeringsmaatskaapy Bpk v Louw
N.O.
[4]
that the object of Rule 30(1) was to ensure that any hinderance to
the future conduct of litigation is removed.
[12]
He submitted that the third defendant could easily deny the
allegations made but it was not necessary for it to bring
this
application. In this regard, he submitted that the court should
dismiss the application with costs. He further submitted that
if the
court is inclined to grant the relief sought relating to irregular
proceedings, the court must still deprive the third defendant
the
costs of the application because of its failure to seek condonation
in circumstances where the delay was inordinate. He further
argued
that the application was filed prematurely and for that reason the
application should be dismissed.
[13]
In reply, Ms Booysen conceded that because only a few paragraphs
relate to the third defendant the court may not set
aside all the
particulars of claim but only the paragraphs relating to the third
defendant.
Discussion
[14]
Erasmus
in
Superior
Courts Practice
[5]
states that the necessity to plead material facts does not have its
origin in the rules of court but it is fundamental to the judicial
process that the facts have to be established. The court, on the
established facts applies the rules of law and draws conclusions
as
regards the rights and obligations of the parties. A summons that
propounds the plaintiff’s own conclusions and opinions
instead
of the material facts is defective
[6]
.
[15]
Rule 18(4) reads:
“
18
Rules relating to pleading generally
1.
………
2.
……….
3
……….
4.
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies
for his claim, defence
or answer to any pleading, as the case may be with sufficient
particularity to enable the opposite party
to reply thereto.”
[16]
The plaintiff alleged in relation to the third defendant the
following:
“
9.
As a result of the first defendant’s conduct plaintiff was
arrested by members of the third defendant and held
in custody for
seven days until he was granted bail and prosecuted for fraud and
money laundering charges in the Magistrates Court
at Zwelitsha where
later charges were withdrawn on 28 September 2019.
10.
. . . . .
11.
. . . . .
12.
Members of the third defendant unlawfully induced third parties to
implicate plaintiff in the commission of an alleged
crime.
13.
Members of the third defendant, without just cause, persisted with
investigating the plaintiff after the charges were
withdrawn.
14.
Plaintiff suffered damages as a result of the defendants’
conduct in the sum of R3 365 000.00 for contumelia,
deprivation of freedom and discomfort suffered by the plaintiff.”
[17]
Although there are detailed facts given where the allegations relate
to the first and second defendants, no such detail
is given where the
allegations are directed at the third defendant.
[18]
In
Graham
v McGee
[7]
the
court held that: “
the
facts set out by a pleader must constitute the premises for the
relief sought i.e. they must be such the relief prayed for flows
from
them, and can properly be granted. Otherwise the summons will be
excipiable as disclosing no cause of action.”
The plaintiff is also expected to set out details of the relief he
seeks.
[19]
Having had regard to all these factors I find that there is merit in
the application. It is only the extent of the relief
sought that will
be affected by the order I intend to make. The reason why all the
allegations in the particulars of claim cannot
be set aside is
because the first and second defendants have already delivered their
pleas. Therefore, issues between plaintiff
and those defendants have
crystallised and joined.
[8]
This rule 30 application cannot be extended to affect their cases.
Most importantly it will not be in the interests of justice
to set
aside the allegations relating to them, especially where the Rule
30(2)(b) notice specifically addressed the third defendant’s
complaints only.
[20]
On the condonation issue, and as aforementioned the rule 30 (2) (b)
notice and the application were delivered on 28 September
2020 and 23
October 2020, respectively. Plaintiff was given 10 days in terms of
the notice to remove the causes of complaint. The
ten days expired on
12 October 2020. The fifteen days for bringing the application would
have lapsed on 02 November 2020. Mr Poswa
correctly submitted that
the application was brought prematurely. However, he linked the
period relating to condonation to the
date of the hearing of the
application, that with respect has no bearing on the time frames set
out in Rule 30.
[21]
The insurmountable difficulty that faced the plaintiff is that he
remained supine although he had knowledge that the application
was
brought three days earlier than the period prescribed in rule 30.
Plaintiff had been properly served with the notice and the
application. He simply filed a notice to oppose and did not file an
answering affidavit to the founding affidavit. A date for the
allocation of the hearing of the application was requested from the
registrar on 29 January 2021, the same day that the request
was
served on the plaintiff. Clearly there was ample time for the
plaintiff to take whatever steps he wished to take to protect
his
interests. He failed to do so. Ms Booysen submitted that the court
should condone such non- compliance because it was raised
in
argument.
[22]
Plaintiff also failed to file an answer to the allegations made by
the third defendant in the rule 30 application. Those
facts alleged
by the third defendant remain uncontroverted. He also failed to
demonstrate any substantial prejudice to it as a
result of the three
days as aforementioned. Considering the circumstances of this case,
it will be fair to both parties to ensure
continuation and progress
of this litigation by granting condonation albeit sought from the
Bar
[9]
,
especially where the objection was not raised in accordance with the
rules of court.
Costs
[23]
For these reasons, even though the relief that was sought was broad,
there would be no justification to deprive the third
defendant of his
costs. Ms Booysen correctly conceded that the court cannot grant the
entire relief that is being sought. I accordingly
find no reason to
depart from the normal rule that costs should follow the event.
ORDER
[24]
In the circumstances I accordingly grant the following Order:
24.1
That the plaintiff’s particulars of claim in so far as
they relate to the third defendant and the allegations made in
paragraphs
12, 13 and 14 are accordingly declared to constitute an
irregularity for non-compliance with Rule 18(4) of the Uniform Rules
of
Court.
24.2
That those paragraphs (12, 13 and 14) in the particulars of
claim are set aside in so far as they relate to the third defendant.
24.3
Plaintiff is directed to deliver the amended particulars of
claim which comply with the provisions of Rule 18(4) in so far as the
claim relates to the third defendant within ten (10) days of receipt
of the order sought herein.
24.4
Failing delivery of the amended particulars of claim within
the period referred to in paragraph 3 above, plaintiff shall be
ipso
facto
barred from doing so and the third defendant may, on
the same papers, duly amplified, if necessary, apply for the
plaintiff’s
claim to be dismissed.
24.5
That the plaintiff is ordered to pay costs of this
application.
T.V
NORMAN
JUDGE
OF THE HIGH COURT
Matter
heard on
: 30
November 2023
Judgment
Delivered on : 05
December 2023
Appearances:
For
the PLAINTIFF
: MALUSI
& CO.
7 TECOMA STREET
BEREA
EAST
LONDON
C/O
POTELWA & CO.
17 ARTHUR STREET
KING
WILLIAMS TOWN
REF:
Mr Dlanjwa/MTW/civ
TEL:
043 722 9316/7
FOR
THE DEFENDANTS : THE STATE
ATTORNEY
17 FLEET STREET
OLD
SPOORNET BUILDING
CNR
FLEET & STATION STREET
EAST
LONDON
REF:
617/20-P8 (Mr Spondo)
TEL:
043 706 5100
C/O
:
SHARED LEGAL SERVICES
OFFICE OF THE PREMIER
32
ALEXANDRA ROAD
KING
WILLIAMS TOWN
EMAIL:
lioisaacs@justice.gov.za
[1]
McKenzie
v Farmers Corporative Meat Industries Ltd
1922
AD 16
at 23.
[2]
Buchner
v Johannesburg Consolidated Investments Co. Ltd
1995
(1) SA 215
(T) at 217 E.
[3]
Gibson
& Jones (Pty) Ltd v Smith
1952
(4) SA 87 (T).
[4]
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw N.O.
1981
(4) SA 329
(O) at 333 G-H.
[5]
Erasmus
Superior Court Practice 2
nd
Edition, Volume 2, under Rule 18 (4)
[6]
Buchner
v Johannesburg Consolidated Investment Company Ltd
1995
(1) SA 215
(T); see also
Moaki
v Reckitt & Colman (Africa) Ltd and another
1968 (3) SA 98
(A) at 102 A: where the Appellate Division held that
facts and not evidence must be pleaded and the subrule makes it
clear that
material facts only should be pleaded.
[7]
Graham
v McGee
1949
(4) SA 770
(D) at 778.
[8]
Potgieter
v Rondalia Assurance Corporation of SA Ltd
1970(1)
SA 705 (N) at 710A
[9]
Northern
Assurance Co Ltd v Somdaka
1960
(1) SA 588
(A) at 595.