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[2022] ZAGPPHC 287
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JC vd Linde & Venter Projects (Pty) Ltd v Bespoke Kitchens & Designs (Pty) Ltd and Another (38726/20) [2022] ZAGPPHC 287 (10 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 38726/20
Reportable:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:
YES
In
the matter between:
J
C vd LINDE
&
VENTER PROJECTS
(PTY) LTD
APPLICANT
and
BESPOKE
KITCHENS
&
DESIGNS
(PTY)
LTD
FIRST
RESPONDENT
ADV
A.J.R
BOOYSEN
SECOND
RESPONDENT
Judgment
MANYATHI
AJ
[1]
This
is
an
application
in
terms
of
Rule
30
of
the
rules
of
court.
The
Applicant argues
that the
First
Respondent failed
to
comply with the
requirements
of Uniform Rule 53 in the main review application. That the First
Respondent delivered the answering affidavit out
of prescribed
sequence
and that a
consequence of the delivery of said answering affidavit amounts to an
irregularity.
[2]
The Applicants submissions are that
the record of the Arbitration as was
conducted
by the Second Respondent
was
not dispatched to the Registrar and that led to parties confronting
the correctness of the proceedings conducted by the Second
Respondent.
[3]
The First Respondent does concede
that the record of the proceedings of the arbitration conducted by
Second Respondent
were
not dispatched to the parties, specifically the Applicant. They argue
that there was no need for such a dispatch for the following
reasons:
1.
That the arbitration was decided on
papers, no evidence was led.
2.
That the Applicant was already in
possession of the record of proceedings and that therefore there was
no need to make the record
of the arbitration of proceedings
available to the applicant.
3.
That as a result all parties had
identical copies of the
arbitration
record.
[4]
The First Respondent argues that the
Rule 30 Application by the Applicant is all delaying tactics. That if
it happened that the
Applicant placed incomplete or inaccurate record
before the court, the Respondent would have brought this to the
Applicants attention
in an informal manner to correct the defect.
That the Rule 30 Application was not necessary in these
circumstances. That alternatively
the Applicant should have waived
the procedural benefits afforded to it in terms of Rule 53 which it
did not require. Sub-rule
53(1)(b) requires the party whose decision
is being challenged to dispatch records of such proceedings to be
corrected or set aside,
and this is primarily intended to operate in
favour of, and for the benefit of an applicant in review proceedings.
The purpose
of the record is to enable the parties and the
courts full access to the proceeding in order to adjudicate the
lawfulness of
the
decision-making
process.
It
allows the
Applicant
to
interrogate the decision
and
if
necessary,
supplement
his
grounds
for
review.
In
such
a
situation all the parties will have
identical copies of the proceedings
which
will
be regarded as
correct by the Registrar.
[5]
It is common cause between the
parties that Rule 53(1)(b) was not followed. Neither was any
application for condonation done. The
First Respondent contends that
this failure could have been rectified in more informal ways between
the parties. Unfortunately
only the Applicant had the right to
waiver, not the Respondent. In this matter the Applicant did not
waive
his
right.
[6]
It is also common cause that Rule 30
deals with procedural aspects, not
with
the merits of the main application. Civil proceedings have
rules that guide the procedures to be followed. The parties
to
civil
litigation
are expected to follow the rules.
Failure to follow the rules will lead to chaos, to the extent
that everyone will do as they
please and thereby render the rules of
court useless.
[7]
The Rules of Court are there for two
reasons.
1.
To structure the proceedings to be
followed by the parties involved in litigation, and
2.
To set the timeframes within which
these processes should occur.
[8]
In the event one of the parties for
one or the other
reason
fails to comply with the rules within
the proscribed time periods, and the rule makes provision for the
party to seek condonation
for this lapse, the court should be
approached to request condonation.
[9]
It is the applicants procedural right
to obtain the copy of the arbitration proceedings. This right
was not complied with.
Neither did he waive his right to obtain
such records. The First Respondent was notified of the irregularity,
but failed to remove
the irregular procedure.
[10]
Having read the papers filed and having heard the submissions made by
the parties legal representatives, I am of the view that
the
following order is appropriate.
ORDER
1.
That the answering affidavit was
filed prematurely and is hereby declared an irregular step and set
aside on terms of Rule 30(1)
of the Uniform Rules
of
Court.
P
MANYATHI
ACTING
JUDGE
OF
THE
HIGH
COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on Caselines. The
date for
hand-down is deemed
to
be 10/02/2022.
APPEARANCES
For
the Applicant:
Adv
TP Kru
g
er
SC
Instructed by:
Johan
N
y
sschens
Attorne
y
s
For
the First Respondent: Adv C Gordon
Instructed
by:Quinn Attorneys Inc
Date
of hearing:
12 October 2021
Date
of judgment:
10 Februa
ry
2022