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[2023] ZAECMHC 21
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Nteleko obo Nteleko v Member of the Executive Council for the Department of Health, Eastern Cape Province (2665/2017) [2023] ZAECMHC 21; 2024 (1) SA 258 (ECM) (9 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case No:
2665/2017
REPORTABLE
In the matter between:
GCOBISA
NTELEKO obo KHAZIMLA NTELEKO
APPLICANT
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF HEALTH, EASTERN
CAPE PROVINCE
RESPONDENT
JUDGMENT
Notyesi AJ
Introduction
[1]
The
Applicant, relying upon the provisions of Uniform rule 35(7),
[1]
sought of an order directing the Respondent to comply with notices
served upon her in terms of subrules 35(1),
[2]
35(8)
[3]
and 35(10).
[4]
In addition for an order of compliance with the aforementioned rules,
the Applicant had sought an order directing the Respondent
to deliver
her discovery affidavit within a period of five days and a costs
order. The application to compel was uncontested. There
was no notice
in terms of rule 30A or any form of notice issued prior to the
application to compel. The Applicant relied solely
on notices served
upon the Respondent in terms of the aforementioned rules. On 25 April
2023, I granted an order compelling the
Respondent to comply with the
notices, although declining to grant the costs order indicating that
my reasons for doing so would
follow. These are my reasons.
The parties
[2]
The
Applicant is the Plaintiff in the main action and the Respondent is
the Defendant. Pleadings in the action had been closed.
Issues
[3]
The
questions for determination were:
(a)
whether
the Applicant ought to have complied with Uniform rule 30A; and
(b)
whether
the Applicant was entitled to a costs order.
Background
[4]
On
19 June 2017, the Applicant instituted a delictual claim against the
Respondent. The claim is defended by the Respondent and
in that
regard, a plea was filed on 11 September 2017. Pleadings were
thereafter closed. On 19 October 2017, the Applicant served
and filed
notices in terms of Uniform rules 35(1), 35(8) and 35(10) and the
Applicant’s discovery affidavit. There was no
reply by the
Respondent to the Applicant’s rule 35 notices.
[5]
The
Applicant, aggrieved by the non-response of the Respondent to the
notices, served and filed an application to compel on 27 November
2017. It is not clear from the papers of what happened to the
aforesaid application. On 11 April 2023 the applicant
instituted
the present application which she set down for hearing
before court on 25 April 2023. After hearing the application, I
issued
the following order:
‘
1. That
the Respondent is directed to file a discovery affidavit within
fifteen (15) days from the date of service
of this order.
2. There
shall be no order as to costs.
3. Reasons
for order in paragraph 2 shall follow.’
Legal framework
[6]
The
failure to comply with notices under Uniform rule 35 is at the heart
of the present application. This is a procedural aspect
of
litigation. In
Khunou
& Others v Fihrer & Sons
,
[5]
Slomowitz AJ said the following about civil procedure in general and
the Rules of Court in particular:
‘
The
proper function of a Court is to try disputes between litigants who
have real grievances and so see to it that justice is done.
The rules
of civil procedure exist in order to enable Courts to perform this
duty with which, in turn, the orderly functioning,
and indeed the
very existence, of society is inextricably interwoven. The Rules of
Court are in a sense merely a refinement of
the general rules of
civil procedure. They are designed not only to allow litigants to
come to grips as expeditiously and inexpensively
as possible with the
real issues between them, but also to ensure that the Courts dispense
justice uniformly and fairly, and that
the true issues which I have
mentioned are clarified and tried in a just manner. . . .
It follows that the
principles of adjectival law, whether expressed in the Rules of Court
or otherwise, are necessarily flexible.
Unfortunately, this
concomitant brings in its train the opportunity for unscrupulous
litigants and those who would wish to delay
or deny justice to so
manipulate the Courts’ procedures that their true purpose is
frustrated. Courts must be vigilant against
this and other types of
abuse. What is more important is that the Court’s officers, and
especially its attorneys, have an
equally sacred duty. Whatever the
temptation or provocation, they must not lend themselves to the
propagation of this evil, and
so allow the administration of justice
to fall into disrepute.’
[7]
In
Szedlacsek
v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner
,
[6]
Leach J, dealing with Uniform rule 21(4), which is akin to the
provisions of Uniform rule 35(7), said:
‘
It
is clear from the final words of this subrule, emphasized in italics
above, that this Court retains a discretion to grant or
refuse an
order for the delivery of further particulars. An applicant is
accordingly not entitled to an order compelling a reply
as of right
should the opposing party fail to deliver further particulars
timeously or sufficiently, but must set out sufficient
information to
enable the Court to consider whether or not to exercise its
discretion in his favour. It is impossible to lay down
any test which
can be slavishly applied to determine whether an order compelling
delivery should be granted as each case must turn
upon its own
particular facts and circumstances, but it seems to me that in most
cases it would probably be wholly insufficient
for a party seeking
relief under Rule 21(4) to rely solely upon the other party’s
failure to timeously comply with the ten-day
time period laid down by
Rule 21(2).Furthermore, in my opinion, although there is no specific
requirement for an applicant proceeding
under Rule 21(4) to give
notice of his intention to bring an application under that subrule
(that having been the case even prior
to the repeal of Rule 30(5),
which required that notice to a defaulting party be given of an
application for an order compelling
compliance with a notice of
request - see for example
Khunou’s
case
supra
at 360,
Norman & Co (Pty) Ltd v
Hansella Construction Co (Pty) Ltd
1968
(1) SA 503
(T) and Erasmus
Superior
Court Practice
B1-139), it is of course
sound practice for a party to call upon his opponent to remedy a
default or failure to timeously comply
with a request for particulars
for trial and to put him to terms before leaping into Court and
incurring substantial costs in an
application of this nature.
Accordingly, a Court will be slow to come to a party’s aid by
granting an order directing the
opposing party to comply with a
notice or request where no such earlier demand has been made. In my
view, an application to compel
compliance with a procedural step
should really be regarded as a last option, to be exercised when
other reasonable and far less
costly alternatives have been
unsuccessful and the defaulting party has shown himself to be
unreasonably dilatory.’
[8]
In
Khunou
& Others v Fihrer & Sons
,
[7]
Slomowitz AJ in relation to the repealed Uniform rule 30(5) said:
‘
I
agree that the Rule is one which ought in general to be complied
with, and I do not question that a failure to comply with it
in the
ordinary course affect the matter of costs and probably result in the
application itself being dismissed. One of the purposes
of the Rule
is to prevent unnecessary applications being brought and to put a
defaulting party on notice as to the consequences
of his default.
Whether, however, the failure to comply with the Rule absolutely
precludes relief being granted in the absence
of condonation is an
issue which I do not have to decide since in my view counsel’s
argument overlooks the facts.’
[9]
The
remarks above, must be borne in mind when considering relief sought
under rule 35(7) of the Uniform rules. The rule provides
as follows –
‘
If
any party fails to give discovery as aforesaid or, having been served
with a notice under subrule (6), omits to give notice of
a time for
inspection as aforesaid or fails to give inspection as required by
that subrule, the party desiring discovery or inspection
may apply to
a court, which may order compliance with this rule and, failing such
compliance, may dismiss the claim or strike out
the defence.’
[10]
In
terms of this rule, the court has a discretion whether or not to
enforce discovery or inspection. In an appropriate case, the
court
may, in the exercise of its discretion, order deferment of discovery
of documents relative to a contingent issue. The court,
in the
exercise of its discretion, must remain alert to the potential abuse
of the discovery process. This may arise if the procedure
is utilised
in
terrorem
to debilitate a respondent by requiring it to incur exorbitant
expenses and to tie up large numbers of qualified staff and
lawyers.
[8]
[11]
Uniform rule 35(7) is an inbuilt procedure
of rule 35 for the enforcement of subrules 35(1), 35(3), 35(6) and
35(8). In terms of
rule 35(7), there seems to be no requirement for a
further notice before approaching Court to apply for compliance with
the provisions
of rule 35, except in relation to rule 35(12).
In this regard, the question would be whether a litigant seeking to
enforce
compliance with subrules 35(1), 35(3), 35(6) and 35(8) would
be compelled to provide a notice prior to the launch of the
application
to compel. There have been differences of opinion in this
regard. The authors are also not in concurrence in their views,
although,
there appears to be an acceptance that non-compliance with
a notice would not lead to the Applicant being deprived of relief
solely
for the reasons that there was no notice prior to the
application to compel.
[12]
In
ABSA
Bank Ltd v The Farm Klippan 490 CC
[9]
the Court held:
‘
I,
therefore find that an application may be made in terms of those
rules which provide a specific remedy for failure to comply
therewith
without the applicant first having to give notice in terms of Rule
30A or to follow the provisions thereof.’
[13]
Uniform rule 30A provides:
‘
(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.
(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.’
[14]
The
remedy under Uniform rule 30A used to be provided by rule 30(5). The
subrule was repealed. Rule 30A provides a general remedy
for
non compliance with the rules. To the extent that the provisions
of rule 30A may be in conflict with a provision in another
rule which
provides a specific remedy for non compliance with that rule, a
party need only follow the provisions of the other
rule, without
first having to give notice in terms of this rule or follow the
provisions of this rule. The court has an inherent
power to dismiss
an action on account of a delay in its prosecution by the plaintiff.
The circumstances under which the court may
do so will depend on the
period of the delay, the reasons therefor and the prejudice suffered
by the other party.
[10]
[15]
According
to Harms
[11]
a notice under
rule 30A must precede an application under rule 35(7).
[16]
With these remarks in mind, I turn to
discuss the issues identified for determination in this application.
Whether the Applicant
ought to have complied with Uniform rule 30A
[17]
On
25 April 2023, there were 106 matters enrolled for hearing in the
unopposed motion court. Half of those matters were applications
to
compel discovery. It has been brought to the Court’s attention
that every unopposed motion court is inundated with the
applications
to compel under Uniform rule 35(7). When these matters are
called, the legal representatives would submit draft
orders in which
consent orders would be sought for the applicant to be granted leave
to withdraw the application and the respondent
to pay costs
occasioned by the application to compel. On this reason, the
inference is irresistible that had prior notice or warning
been
given, to the defaulting party, the matter would have been resolved
without resort to a formal application. On this basis
alone, there is
a need to properly interpret the provisions of rule 35(7) and 30A,
moreso in view of sound practice that litigation
should not be by way
of ambush. In
Szedlacsek
v Szedlacsek
,
[12]
Leach J remarked:
‘
It
is trite that Rules are there for the Court, not the Court for the
Rules and this Court must zealously guard against its Rule
being
abused, particularly by the making of unnecessary procedurally
related applications which are not truly required in order
for
justice to be done or for the speedy resolution of litigation but
which appear to be designed merely to inflate costs to the
advantage
of a practitioner’s pocket.’
[18]
Rules
of Court, like any set of rules, cannot, in their very nature,
provide for every procedural situation that arises. They are
not
exhaustive and moreover, are sometimes not appropriate to specific
cases. The courts retain their inherent power exercisable
within
certain limits to regulate their own procedure and to adapt it and,
if needs be, the Rules of Court, according to the circumstances.
[13]
[19]
I have no qualms and I agree that Uniform
rule 35(7) is a remedy available to a litigant who had sought
discovery under subrules
35(1), 35(3), 35(8) and 35(10) and that it
is an inbuilt remedy under rule 35. I am however, constrained to
disagree that rule 35(7)
is in conflict or that it may be in
conflict with rule 30A. The rules are designed not only to allow
litigants to come to grips
as expeditiously and as inexpensively as
possible, with the real issues between them, but also to ensure that
the courts dispense
justice uniformly and fairly, and that the true
issues are clarified and tried in a just manner. The costs of
litigation are exorbitant
and highly expensive. It is on this basis
that the rules of court should be interpreted with an understanding
that discovery procedures
are intended to assist the parties and to
discover the truth and in doing so to expeditiously resolve disputes
avoiding dilatory
technicalities. In my view, every attempt by all
parties involved must be to ensure that litigation is made less
expensive and
formalistic in nature. The rules must be interpreted to
facilitate the quick mechanism of ensuring that matters serve before
court
for determination and fast resolution of real disputed issues.
[20]
The purpose of Uniform rule 30A is to
provide a remedy where a party failed to comply timeously with a
request made or notice given
pursuant to the rules. The rule provides
a general remedy for non-compliance with the rules and in my view, it
is applicable to
any failure to comply with the rules or request made
or notice given pursuant to the rules, provided that the remedy is
not in
conflict with another rule. When a notice is given for the
delivery of documents within a prescribed period, there is no default
at that stage. The default would only arise once the period given
expires without a response or delivery of the required documents.
Once that occurs, self-evidently, the defaulting party must be warned
about the consequences and be afforded an opportunity to
comply with
the notice or request that has been made.
[21]
In my view, such an approach, would help to
avoid unnecessary litigation and escalation of costs of litigation
for the reason that
the defaulting party would be given a notice of
his default with a demand for compliance. I have no doubt in my mind
that if the
defaulting party persists with his default, despite the
warning or notice, then,
cadit quasio
,
wilfulness or negligence would be inferred. The aggrieved party would
be entitled, without much difficulty, to the relief and
a costs order
for the application to compel that would have become necessary to
enforce compliance with the rules.
[22]
Rule 35(7) does not provide for a further
notice, although it is designed to ensure compliance with the
provisions of rule 35. Bearing
in mind that the object of the rules
is to achieve justice using less expensive means, it cannot be
countenanced that the aggrieved
party would simply leap to court
without demanding compliance with the notice given or request made to
the defaulting party that
an application to compel would be resorted
to as a form of last resort. In these circumstances, rule 30A(1)
provides a remedy
and a reasonable period upon which the defaulting
party should purge the default complained about. There is no basis
for a suggestion
that a notice is not required prior to the
institution of an application to compel. There are more benefits when
a notice is served
prior to the institution of the application to
compel and no prejudice would arise out of simply serving a notice to
the defaulting
party.
[23]
I
agree with the remarks made by Leach J in
Szedlacsek
v Szedlacsek
that ‘although there is no specific requirement for an
applicant proceeding under Rule 21(4) to give notice of his intention
to bring an application under that subrule (that having been the case
even prior to the repeal of Rule 30(5), which required that
notice to
a defaulting party be given of an application for an order compelling
compliance with a notice or request) . . . It is
of course sound
practice for a party to call upon his opponent to remedy a default or
failure to timeously comply with a request
for particulars for trial
and to put him to terms before leaping into court and incurring
substantial costs in an application of
this nature . . . In my view,
an application to compel compliance with a procedural step, should
really be regarded as a last option,
to be exercised when other
reasonable and far less costly alternatives have been unsuccessful
and the defaulting party has shown
himself to be unreasonably
dilatory.’
[14]
[24]
The above proposition also finds support in
Khunou and Others v Fihrer & Sons
where Slomowitz AJ expressed himself as
follows:
‘
I
agree that the rule is one which ought in general to be complied
with, and I do not question that a failure to comply with it
will in
the ordinary course affect the matter of costs and probably result in
the application itself being dismissed.’
[15]
[25]
I do accept that non-compliance with
Uniform rule 30A in an application of this nature, does not
absolutely preclude relief being
granted in the absence of
condonation. However, in my view, rule 30A should be invoked in
circumstances where there is a failure
to comply with a request or
notice given under these rules and that includes Uniform rule 35.
Rule 35(7) confers a discretion to
the court and the court would be
entitled to insist that the defaulting party should be given a prior
notice of the intended application
to compel. Even if the
interpretation of rule 35(7) were to lead to a conclusion that no
notice is required prior to the application
to compel, the rule of
practice demands that a notice of the intention to launch an
application to compel if the default is not
purged, does exist. The
aforesaid notice would need to be reasonable and for this purpose,
the time period prescribed for a notice
under rule 30A, would provide
uniformity and is fair.
[26]
In the present application, there was no
notice and the application to compel was filed without affording
opportunity to the defaulting
party to correct the default. Whilst
the application appeared to have been conceived way back on 27
November 2017, it was not pursued.
The application only served before
court on 25 April 2023. The delay was not explained from the papers.
By now, it must be axiomatic
that the Applicant was obliged to serve
a notice before seeking relief under rule 35(7).
[27]
For the above reasons, the Applicant ought
to have followed the provisions of rule 30A notwithstanding the
provisions of rule 35(7)
which is an inbuilt procedure under rule 35.
On the basis that rule 30A is not peremptory, I granted the main
relief for compliance
with the notices issued under rule 35, although
there was no notice issued under rule 30A. I do sound a warning that
non-compliance
with rule 30A, in circumstances such as these, may
lead to the dismissal of the application with a penalty of costs
against the
Applicant.
Whether the Applicant
was entitled to costs order
[28]
The Applicant had applied for costs in her
application to compel discovery. I refused to grant an order of
costs, notwithstanding
my order granting relief compelling the
Respondent to discover the required documents. There are various
reasons for my refusal
of the order of costs. Firstly, the
application to compel was launched and served without notice.
Secondly, on a proper scrutiny
of papers there was delay in the
launch of the application to compel and there is no explanation for
the delay. More significantly,
the Applicant failed to serve a notice
to the Respondent prior to launching the application to compel. There
was non-compliance
with rule 30A. In my view, the application should
have been preceded with a reasonable notice. The time period provided
in rule
30A(1) would have been a reasonable time for the notice. The
remarks in the cases of
Szedlacsek v
Szedlacsek
and
Khunou
and Others v
Fihrer & Sons
are apposite. For the reason that the application was not opposed, I
considered an order that there should be no order as to costs,
otherwise, if the application was opposed, I would have granted costs
against the Applicant.
Conclusion
[29]
I agree with the statement that, although
there is no specific requirement for an applicant proceeding under
rule 35(7) to give
notice of her or his intention to bring an
application under that subrule, it is sound practice for a party to
call upon his or
her opponent to remedy a default or failure
timeously to comply with a notice to discover documents and to put
him or her to terms
before leaping into court and incurring
substantial costs in an application to compel. An application to
compel compliance with
a procedural step should really be regarded as
a last option, to be exercised when other reasonable and far less
costly alternatives
have been unsuccessful and the defaulting party
had shown herself or himself to be unreasonably dilatory.
[30]
In all the circumstances, I conclude that
in applications to compel discovery, the aggrieved party must first
give a notice in terms
of rule 30A, although, the court would not be
precluded from exercising its discretion under rule 35(7) with great
consideration
of appropriate costs orders, where there is
non-compliance with the requirement of a reasonable notice.
Order
It was upon these reasons
that the Court granted an order in the following terms:
(a)
That the Respondent is directed to file a
discovery affidavit within fifteen days from the date of service of
this order.
(b)
That there shall be no order as to costs.
M NOTYESI
JUDGE OF THE HIGH
COURT (ACTING)
Appearances
Counsel
for the Applicant:
Mr
Melane
Attorneys
for the Applicant:
M
M Holi Attorneys
Counsel
for the Respondent:
No
Appearance
Attorneys
for the Respondent:
The
State Attorney
Date
Heard:
04/26/23
Date
Delivered:
05/09/23
[
1]
Uniform
rule 35(7) reads: ‘If any party fails to give discovery as
aforesaid or, having been served with a notice under
subrule (6),
omits to give notice of a time for inspection as aforesaid or fails
to give inspection as required by that subrule,
the party desiring
discovery or inspection may apply to a court, which may order
compliance with this rule and, failing such
compliance, may dismiss
the claim or strike out the defence’.
[2]
Uniform
rule 35(1) reads: ‘Any party to any action may require any
other party thereto, by notice in writing, to make discovery
on oath
within twenty days of all documents and tape recordings relating to
any matter in question in such action (whether such
matter is one
arising between the party requiring discovery and the party required
to make discovery or not) which are or have
any at time been in the
possession or control of such other party. Such notice shall not,
save with the leave of a judge, be
given before the close of
pleadings’.
[3]
Uniform
rule 35(8) reads: ‘Any party to an action may after the close
of pleadings give notice to any other party to specify
in writing
particulars of dates and parties of or to any document or tape
recording intended to be used at the trial of the action
on behalf
of the party to whom notice is given. The party receiving such
notice shall not less than fifteen days before the date
of trial
deliver a notice–
(a)
specifying the dates of and parties to and the general nature of any
such document
or tape recording which is in such party’s
possession; or
(b)
specifying such particulars as the party may have to identify any
such document
or tape recording not in such party’s
possession, at the time furnishing the name and address of the
person in whose possession
such document or tape recording is’.
[4]
Uniform
rule 35(10) reads: ‘Any party may give to any other party who
has made discovery of a document or tape recording
notice to produce
at the hearing the original of such document or tape recording, not
being a privileged document or tape recording,
in such party’s
possession. Such notice shall be given not less than five days
before the hearing but may, if the court
so allows, be given during
the course of the hearing. If any such notice is so given the party
giving the same may require the
party to whom notice is given to
produce the same document or tape recording in court and shall be
entitled, without calling
any witness, to hand in the said document,
which shall be receivable in evidence to the same extent as if it
had been produced
in evidence by the party to whom notice is given’.
[5]
Khunou
& Others v Fihrer & Sons
1982 (3) SA 353
(W) at 355-6.
[6]
Szedlacsek
v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner
2000 (4) SA 147
at 150A F.
[7]
Above
n 5 at 360-361.
[8]
D
E Van Loggerenberg
Erasmus:
Superior Court Practice
2
ed vol 2 at D1-476.
[9]
ABSA
Bank Ltd v The Farm Klippan
2000 (2) SA 211
(W) at 215A-B.
[10]
Above
n 8 at D1-357.
[11]
Civil
Procedure in the Superior Courts, service issue 54 Volume I at B-248
[12]
Above
n 6 at 149 G-H.
[13]
Above
n 5 at 355.
[14]
Above n 6 at 150C-F.
[15]
Above n 5 at 360H-361A.