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[2022] ZAGPPHC 253
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JC vd Linde & Venter Projects (Pty) Ltd v Bespoke Kitchens & Designs (Pty) Ltd and Another (38726/20) [2022] ZAGPPHC 253 (22 February 2022)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE;
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
YES
10/2/2022
Case No: 38726/20
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 as 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 Kruger SC
Instructed
by:
Johan
Nysschens Attorneys
For
the First Respondent:
Adv
C Gordon
Instructed by:
Quinn Attorneys Inc
Date of
hearing:
12
October 2021
Date of
judgment:
10
February 2022