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[2022] ZAFSHC 136
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Mokohare Local Municipality and Another v South African Local Authorities Pension Fund In re South African Local Authorities Pension Fund v Mokohare Local Muni (4145/2021) [2022] ZAFSHC 136 (9 June 2022)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 4145/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:NO
In
the matter between:
MOHOKARE
LOCAL MUNICIPALITY FIRST
APPLICANT
and
THE MUNICIPAL MANAGER:
MOHOKARE SECOND
APPLICANT
MUNICIPALITY
(MR SELBY SELEPE)
and
SOUTH
AFRICAN LOCAL AUTHORITIES RESPONDENT
PENSION
FUND
In
re:
SOUTH
AFRICAN LOCAL AUTHORITIES APPLICANT
PENSION
FUND
and
MOHOKARE
LOCAL MUNICIPALITY FIRST
RESPONDENT
THE
MUNICIPAL MANAGER: MOHOKARE SECOND
RESPONDENT
MUNICIPALITY
(MR SELBY SELEPE)
JUDGMENT:
MOLITSOANE,
J
HEARD
ON:
26
MAY 2022
DELIVERED:
09
JUNE 2022
[1]
This is a condonation application for the late filing of the
answering affidavit.
Contrary to the practice in this Division this
application is not brought with the main application.
[1]
This application is opposed.
[2]
For convenience the parties will
be referred to as follows; the Applicant will be referred
to as “the
SALAPF” and the respondents will jointly be referred to as “the
Municipality”. It is contended
that the Municipality failed to
make payments which were due to SALAPF as a member. The parties then
referred a dispute to the
Pension Fund Adjudicator (the PFA). On 30
July 2020 the PFA handed down a determination in which the
Municipality was compelled
to pay some specified monies over to the
SALAPF. It is contended that the Municipality thereafter failed to
comply with the determination.
[3]
On 08 September 2021 the SALAPF issued the contempt of court
proceedings. The Municipality
signified their intent to oppose this
application on 05 October 2021. The answering affidavit was due on 26
October 2021.
[4]
On 27 October 2021 the attorney for the
Municipality requested an indulgence to file the answering
affidavit
by 12 November 2021. On 08 November 2021 the SALAPF granted the said
indulgence. The answering affidavit was not filed
by end of business
day on 12 November 2021.
[5]
On 17 November 2021 the Municipality requested a further indulgence.
On the same day
the SALAPF informed the Municipality that should it
wish to file the answering affidavit, condonation for the late filing
should
be sought.
[6]
The answering affidavit was duly filed 23 days later, on 29 November
2021. On 11 March
2022 the SALAPF filed its replying affidavit and
dealt with allegations raised in the answering affidavit.
Notwithstanding filing
the replying affidavit, SALAPF persisted with
its stance that the answering affidavit was filed out of time hence
this condonation
application.
[7]
The issue for determination is whether there is a need for
condonation for the late
delivery of the answering affidavit. If the
answer is in the affirmative, then in that case whether condonation
should be granted.
[8]
The filing of an answering affidavit outside the prescribed limits
and without seeking
condonation is an irregular step.
[2]
[9]
Uniform Rule 30(1) and (2)(a) provides that:
(1) A party to a cause in
which an irregular step has been taken by any other party may apply
to court to set it aside.
(2) An application in
terms of subrule (1) shall be on notice to all parties specifying
particulars of the irregularity or impropriety
alleged, and may be
made only if-
(a) the applicant has not
himself taken a further step in the cause with knowledge of the
irregularity;
[10]
The SALAPF elected not to challenge the filing of the answering
affidavit as an irregular step
as envisaged in Rule 30. It however
dealt with the allegation in its replying affidavit in full. The
acquiescent stance also compounded
by filing a replying affidavit may
rightly be seen as an agreement to condone the delay in the filing of
the answering affidavit.
Having taken a step in the furtherance of
bringing the application to finality the SALAPF cannot thereafter
complain of the irregular
filing of the affidavit.
[11]
I align myself with the following sentiments in Ardamurchan
Estates
[3]
:
“ …
where…an
answering affidavit is delivered out of time and an applicant takes a
further step by delivering a replying affidavit,
that applicant is in
the same position as an applicant who has agreed in terms of Rule
2791) to afford a respondent an extension
for the delivery of the
answering affidavit.”
[12]
In opposing the condonation application the SALAPF has not
demonstrated any prejudice it suffered
by the late filing of the
answering affidavit. It in fact dealt fully with the answering
affidavit without any complaint. I accordingly
find that the filing
of the replying affidavit disposed of the need for condonation. This
application was unnecessary but same
was prompted by SALAPF. In my
view an order of costs will not be warranted at this stage seeing
that the Municipality sought an
indulgence to file an answering
affidavit. I make this order:
ORDER
1.
The application is struck off the roll.
2.
Costs of this application will be costs in the
cause.
P.E.
MOLITSOANE, J
On
behalf of the Applicant:
Adv. N. Ralikhuvhana
Instructed
by: Webbers
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv.
M.C. Louw
Instructed
by: Peyper
Attorneys
BLOEMFONTEIN
[1]
The
main application is for contempt of court.
[2]
Ardnamurchan
Estates (Pty) Ltd v Renewables Cookhouse Wined Farms 1 (RF) (Pty)
Ltd and Others [2021] 1 ALL SA 829 (ECJ).
[3]
Para [36] (supra).