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[2022] ZAKZPHC 21
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MEC For Health, The Kwazulu-Natal Province and Others v Medical Information Technology SA (Pty) Ltd (7535/19P) [2022] ZAKZPHC 21 (8 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 7535/19P
In
the matter between:
THE
MEC FOR HEALTH, FOR THE
KWAZULU-NATAL
PROVINCE
FIRST APPLICANT/DEFENDANT
HEAD
OF DEPARTMENT, DEPARTMENT OF
HEALTH,
KWAZULU-NATAL
SECOND APPLICANT/DEFENDANT
KWAZULU-NATAL
DEPARTMENT OF
HEALTH
THIRD APPLICANT/DEFENDANT
and
MEDICAL
INFORMATION TECHNOLOGY SA (PTY) LTD RESPONDENT/PLAINTIFF
Coram:
Koen J
Heard:
27 May 2022
Delivered:
8 June 2022
ORDER
The
application is dismissed and the defendants jointly and severally are
directed to pay the plaintiff’s costs of the application,
such
costs to include the costs of senior counsel where employed.
JUDGMENT
Koen
J
[1]
The central issue at the heart of this application is whether an
excipient would be entitled to demand that an exception be
determined
by a court without considering subsequent amendments effected to the
pleadings excepted to. The applicants seek to achieve
that result by
maintaining that the notice of intention to amend the pleadings
excepted to, and the amended pages filed pursuant
to that notice
after no objection had been recorded, constitute irregular steps or
proceedings for the purposes of rule 30 of the
Uniform Rules of
Court, and that they should be set aside as such with costs.
Relevant
background
[2]
The
respondent/plaintiff instituted an action against the
applicants/defendants jointly and severally for payment of the sum of
R29 916 324.
[1]
On 31 October
2019 the defendants, who are represented by the State Attorney, gave
notice of their intention to defend the action.
Their appearance to
defend did not however appoint an address for service of notices and
pleadings in the action.
[3]
The
defendants delivered a plea to which the plaintiff replicated on 12
November 2020. The defendants on 25 November 2020 delivered
an
exception to the plaintiff’s replication ‘on the ground
that the first alternative claim is bad in law, does not
disclose a
cause of action and is otherwise defective on the following grounds.’
The grounds for the exception were then
set forth in paragraphs 1 and
2 of the exception. It is not necessary to have regard to these
grounds for the purposes of this
judgment, as this judgment is not
concerned with the merits of the exception.
[2]
[4]
At the time the exception was delivered the parties were apparently
preparing for mediation. The mediation yielded a partial
settlement
of the claim and resulted in further discussions. It was agreed
between the parties that the exchange of pleadings would
be suspended
during this time, on condition that if the discussions would not
result in the resolution of the matter by 15 February
2021,
litigation would ensue.
[5]
On 26 April
2021 the plaintiff served a notice of intention to amend its
particulars of claim and its replication on the defendants’
attorneys. The notice recorded that unless written objection to the
proposed amendments was delivered within 10 days of delivery
of the
notice, the amendments would be effected.
[3]
The notice also included a tender by the plaintiff to pay the wasted
costs occasioned by the amendments. The time for objecting
to the
proposed amendments accordingly expired on 11 May 2021.
[6]
When no
objection to the proposed amendments was received, the plaintiff
effected the amendments by serving the amended pages incorporating
the amendments on the defendants, according to the formal receipt
stamp, at 11h03 on 13 May 2021. The amendment accordingly took
effect
on that day.
[4]
[7]
On the same day, 13 May 2021, according to the receipt stamp at
15h32, the defendants delivered the first notice in terms of
rule
30(2)
(b)
complaining that by delivering its notice of
intention to amend dated 20 April 2021, the plaintiff took an
irregular step.
The notice required that the plaintiff remove this
cause of complaint within 10 days of receipt of the notice, failing
which the
defendants would apply to court to have the plaintiff’s
notice of intention to amend set aside in terms of rule 30(1).
[8]
The grounds upon which it was alleged in the defendants’ notice
in terms of rule 30(2)
(b)
that the plaintiff’s
notice of intention to amend constituted an irregular step, were as
follows:
‘
(I)
On 25
th
November 2020 the Defendants delivered the
Exception in terms of Rule 23 (1) in respect of the Plaintiffs
Replication.
(II)
The basis for the Exception was that the First and Second alternative
claims respectfully
(sic) are bad in law, do not disclose a cause of
action or are otherwise defective.
(III)
In terms of Rule 23 (1) the Excipient may set the Exception down for
hearing in terms
of paragraph (f) of sub-rule (5) of Rule 6.
(IV)
Paragraph (f) (i) of Rule 6 provides that where no answering
affidavit, or notice in terms of
sub-paragraph (iii) of paragraph
(d), is delivered within the period referred to in sub-paragraph (ii)
of paragraph (d) the Applicant
may within five days of expiry thereof
apply to the Registrar to allocate a date for the hearing of the
application.
(V)
Sub-paragraph (iii) provides that if the Applicant fails to apply
within the appropriate
period aforesaid the Respondent may do so
immediately upon expiry thereof. Notice in writing of the date
allocated by the Registrar
must be given by the Applicant or
Respondent, as the case may be to the opposite party within five days
of notification from the
Registrar.
(VI)
The Exception has not been adjudicated upon and has not been set down
for hearing by either party
as the parties had agreed to engage in a
mediation process scheduled and completed on the 8
th
December 2020.
(VII)
In terms of the mediation agreement the pleadings were held in
abeyance.
(VIII)
In February 2021, the parties were still engage on the progress of
the status of payment as recorded in
the settlement agreement.
(IX)
The Defendants prayed that the Exception be upheld as the exception
dealt with the root of the
Plaintiff’s cause of action and the
relief sought was Plaintiff’s first and alternative claims be
dismissed with costs.
(X)
The Defendants’ Exception must be adjudicated upon before any
further steps can be
taken by either party.
(XI)
The Plaintiffs Notice to Amend seeks to ignore the exception taken
and concurrently attempts
to cure the defects raised by the exception
without leave of the court.
(XII)
In the premises the Plaintiff’s Notice to amend is accordingly
irregular and premature.’
[9]
On 20 May 2021 at 15h29 the defendants served a second notice in
terms of rule 30(2)
(b)
complaining that the plaintiff by
delivering its notice of intention to amend dated 20 April 2021 and
effecting the amendments
by delivering amended documents on 13 May
2021, took irregular steps. This notice likewise required that the
plaintiff remove the
causes of complaint within 10 days failing which
they would apply to have the plaintiff’s notice of intention to
amend and
the filing of the replacement pages set aside in terms of
rule 30(1). The grounds advanced in support were identical to those
previously
raised in their previous rule 30(2)
(b)
notice.
[10]
At 14h10 on 26 June 2021 the defendants served the application
presently before this court. In this application the defendants
seek
the following relief:
‘
1.
That insofar as it may be necessary the Defendants’ failure to
comply with the
time periods in terms of Rule 30 is hereby condoned;
2.
That the Plaintiff’s Notice to Amend in terms of Rule 28 dated
20 April
2021 and the delivery of the Amended Pages dated 07 May 2021
be set aside as an irregular step;
3.
That the Plaintiff is ordered to pay the costs of this Application.
4.
Further and/or alternative relief.’
The
applicable rules of court
The
address for service of documents on the defendants
[11]
The relevant provisions of rule 19(3) provide:
‘
(3)
(a)
When a defendant delivers notice of intention to defend, defendant
shall therein give defendant's full residential or business
address,
postal address and where available, facsimile address and electronic
mail address and shall also appoint an address, not
being a post
office box or poste restante, within 15 kilometres of the office of
the registrar, for the service on defendant thereat
of all documents
in such action, and service thereof at the address so given shall be
valid and effectual, except where by any
order or practice of the
court personal service is required.
(b)
The defendant may indicate in the
notice of intention to defend whether the defendant is prepared
to
accept service of all subsequent documents and notices in the suit
through any manner other than the physical address or postal
address
and, if so, shall state such preferred manner of service.
(c)
The plaintiff may, at the written
request of the defendant, deliver a consent in writing to the
exchange or service by both parties of subsequent documents and
notices in the suit by way of facsimile or electronic mail.
(d)
If the plaintiff refuses or fails to
deliver the consent in writing as provided for in paragraph
(c)
,
the court may, on application by the defendant, grant such consent,
on such terms as to costs and otherwise as may be just and
appropriate in the circumstances.’
[12]
The defendants did not indicate in their notice of intention to
defend whether they were prepared to accept service of all
subsequent
documents and notices through any manner other than at the address
which they subsequently used for service, nor was
any other preferred
manner of service indicated. Indeed, the notice of appearance to
defend failed to appoint an address within
15 km of the office of the
registrar. Subsequent notices and pleadings have however been served
on the State Attorney, care of
its satellite office at the second
floor of the Magistrate’s Court Building at 302 Church Street,
Pietermaritzburg, or to
Cajee, Setsubi Inc in Pietermaritzburg.
Either one of these became the physical address where service of
notices and pleadings
were and came to be effected. In argument
before me Mr Mtambo accepted that service was validly effected on the
defendants at the
satellite address.
[13]
There was
furthermore no indication that the parties agreed to, or the
defendants having entered an appearance to defend, thereafter
expressly requested that the pleadings be exchanged by email,
although it appears that the service of pleadings and notices was
often accompanied, sometimes prior to being delivered
[5]
in accordance with the Uniform Rules, by being transmitted by email.
For the purposes of calculating the dies for the delivery
of notices,
and adjudicating this application, regard must therefore be had to
the dates when the pleadings and notices were served
at the physical
address appointed by the plaintiff in its summons, and at either of
the addresses used by the defendants during
this litigation for
service, and where receipt was formally acknowledged. That was
accepted by counsel on both sides. In what follows
below I shall,
unless otherwise expressly qualified, refer to and base this judgment
on these dates, and not on the dates when
documents were allegedly
emailed.
The
amendment of the plaintiff’s particulars of claim and
replication
[14]
The relevant provisions of rule 28 provide:
‘
(1)
Any party desiring to amend a pleading or document other than a sworn
statement, filed in connection with any proceedings, shall
notify all
other parties of his intention to amend and shall furnish particulars
of the amendment.
(2)
The notice referred to in subrule (1) shall state that unless written
objection to the proposed amendment is delivered within
10 days of
delivery of the notice, the amendment will be effected.
(3)
. . .
(4)
. . .
(5)
If no objection is delivered as contemplated in subrule (4), every
party who received notice of the proposed amendment shall
be deemed
to have consented to the amendment and the party who gave notice of
the proposed amendment may, within 10 days after
the expiration of
the period mentioned in subrule (2), effect the amendment as
contemplated in subrule (7).’
(6)
. . .
(7)
Unless the court otherwise directs, a party who is entitled to amend
shall effect the amendment by delivering each relevant
page in its
amended form.’
[15]
The plaintiff duly served its notice of amendment on the defendants
on 26 April 2021. The 10 days for lodging any objection
to the
proposed amendments accordingly expired on 11 May 2021. This is not
disputed by the defendants. The defendants’ objection
to the
notice of amendment is not to the content thereof, but that it
constitutes an irregular step or proceeding and falls to
be set aside
as such because their exception had not yet been adjudicated. Barring
it being found to be an irregular step or proceeding
and set aside as
such, the notice of amendment is valid and would lead to a valid
amendment of the plaintiff’s particulars
of claim and
replication. The defendants have never otherwise objected to or
suggested that the amendments that were sought, and
subsequently,
pursuant to the notice of amendment effected, were otherwise
objectionable or improper.
The
provisions of the rules governing the present application
[16]
In relation to an application such as the present, rule 30 provides:
(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;
(b)
the applicant has, within ten days of
becoming aware of the step, by written notice afforded his
opponent
an opportunity of removing the cause of complaint within ten days;
(c)
the application is delivered within 15
days after the expiry of the second period mentioned in paragraph
(b)
of subrule (2)..’
The
defendants’ non-compliance with the provisions of rule 30 and
condonation
[17]
The defendants have not identified the aspects in which they failed
to comply with rule 30 and in respect of which they seek
condonation.
They simply submitted in argument that condonation was sought insofar
as necessary. The extent of any possible non-compliance
with the
rules possibly requiring condonation accordingly had to be teased out
of the papers. These are considered below.
The
first notice in terms of rule 30(2)(b)
[18]
In terms of rule 30(2)
(b)
the defendants’ first notice
had to be filed within 10 days of becoming aware of the irregular
step (ie the notice of intention
to amend served on 26 April 2021),
namely on or before 11 May 2021. The first notice was only served on
13 May 2021, two days
later.
[19]
The submission advanced was that it is not the date of service of the
notice of intention to defend on the defendants’
satellite
office from which the 10 day period for filing the first notice
should be calculated, but, the rule provides, that this
had to be
done within 10 days from the date from which the defendants, as
applicants, had become ‘aware of the step’.
This date, it
was argued,
ex facie
the founding affidavit in the
application, was when the deponent, being the State Attorney dealing
with the matter, became aware
of the notice of intention to amend,
which she states was when a hard copy thereof was received by her on
3 May 2021.
[20]
The
reference to ‘becoming aware of the step’, as the date
from which the time period for the service of a rule 30(2)
(b)
commences to run, does not require that the actual litigant, that is
the ‘applicant’ in the rule 30(1) application
must have
become aware of the irregularity of the step. Becoming aware of the
irregularity means after becoming aware that the
step that is
irregular, had been taken, and not after becoming aware of the
irregularity of the step.
[6]
Litigation, by its very nature is conducted by attorneys as agents on
behalf of litigating parties and the knowledge of the attorney
as the
agent of the litigant is imputed to the litigant, whether as
constructive knowledge, or otherwise. To reach any other conclusion
would be to introduce too much uncertainty in the litigation process
and create an unworkable situation. Knowledge of procedural
steps
must be ascribed to a litigant and its agents when they occur, and by
the exercise of reasonable care and skill, could and
would come to
the knowledge of that litigant. By parity of reasoning, the service
of the notice of intention to amend at the chosen
satellite office of
the State Attorney in Pietermaritzburg must be imputed to the
defendants, as it is through the exercise of
reasonable care that
their attorney could and should have been aware of the existence of
the notice of intention to amend having
already been served on 26
April 2021.
[21]
Accordingly, the first notice was served two days late, and
condonation was required to be applied for in respect thereof.
[22]
It is trite
law that a party seeking condonation must provide a full and
acceptable explanation for every period in respect of which
the
default exists. In
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
amicus curiae)
[7]
the
Constitutional Court held that:
‘
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire
period of delay.
And, what is more, the explanation given must be reasonable.’
[23]
The defendants’ attorney explains that notwithstanding the
plaintiff’s notice
to amend bearing the date stamp of the State
Attorney, Durban on 26 April 2021:
(a)
she received a hardcopy of the plaintiff’s notice of intention
to
amend served on 26 April 2021, only on 3 May 2021, that is 3 court
days later;
(b)
that the notice had previously been sent to her by email on 21 April
2021
but that she was at the time experiencing problems with her
computer which had crashed resulting in her not having sight of the
notice of intention to amend until 3 May 2021;
(c)
she confirms that the notice was properly served on 26 April 2021 and
had been received in the registry of the State Attorney in Durban on
30 April 2021;
(d)
she prepared a memorandum to counsel on 5 May 2021, but ‘missed’
the messenger and got the brief to counsel only on 11 May 2021;
(e)
that:
‘
[a]t
about this stage the pleadings were temporarily suspended by
agreement between the parties as the parties were engaged in
mediation in an attempt to resolve the matter. The Defendants
Exception was also not set down for hearing in light of the
agreement.
The mediation was partially successful . . . in April 2021
the Plaintiffs filed a Notice to Amend both the Particulars of Claim
and the Replication.’
This
appears to be in conflict with the allegation earlier in her
affidavit that ‘should the further discussions not result
in
the resolution of the matter by 15 February 2021 litigation would
resume.’
[8]
(f)
the defendants on 12 May 2021 prepared the first notice in
terms of rule 30 which was served on 13 May 2021;
(g)
she submits that the first notice was delivered timeously, taking
into
account the date she actually became aware of the notice, namely
3 May 2021.
(h)
she concludes that if there was a delay, it was not an unreasonable
one
and ‘at most one of approximately one week’ which she
submits cannot cause any prejudice to the plaintiff as the plaintiff
has always been aware of the fact that an exception was taken, ‘that
such exception must be adjudicated upon before any further
proceedings’, that ‘notwithstanding such exception,
Plaintiff proceeded to amend the pleadings which amendments make
reference to the exceptions taken’, and finally, that ‘the
exception must be dealt with first and depending on the
success
thereof, Plaintiff may be given leave to amend the pleadings.’
[24]
However, even if the lack of knowledge of service of the plaintiff’s
notice of amendment on 26 April 2021 could be excused
because of
internal procedures in the office of the State Attorney, there is no
satisfactory response for the delays which ensued
when the attorney
‘missed’ the messenger who was to deliver the brief to
counsel. There is no explanation why, having
missed the messenger on
6 May 2021, she could not have expedited the delivery of the brief to
counsel by other means of conveyance.
[25]
I am not satisfied that this delay has been explained satisfactorily,
albeit that it was ultimately one of short duration.
As will appear
below, that is however not the only basis on which this application
should be refused, even if I am wrong in concluding
that this delay
was not explained satisfactorily.
The
second notice in terms of rule 30(2)(b)
[26]
In accordance with the provisions of the rule the defendants’
second notice had to be filed within 10 days of becoming
aware of the
irregular step (the amended pages served on 13 May 2021), namely on
or before 27 May 2021. This was served timeously.
The
application in terms of rule 30(1) pursuant to the first notice in
terms of rule 30(2)(b)
[27]
In accordance with the provisions of rules the 10 day period to
remove the causes of complaint in respect of the first notice
in
terms of rule 30(2)
(b)
served on 13 May 2021 expired on 27 May
2021. Hence, the application in terms of rule 30(1) had to be served
within 15 days thereafter,
that is on or before 18 June 2021. It was
served late on 26 June 2021 only.
[28]
Mr Mtambo however argued that the irregularity of the plaintiff’s
notice of intention to amend was also raised in the
second notice in
terms of rule 30(2)
(b)
as by then the second alleged
irregularity of filing the amended pages had also occurred, and that
it is the date of the service
of the second notice which is to be
used in calculating the time for serving the application in terms of
rule 30(1). I respectfully
disagree with that submission. Although
the application seeks the setting aside of both the notice of
intention to amend and the
filing of the amended pages in one
application, the setting aside of the notice of amendment as
allegedly irregular is a separate
and distinct act of the filing of
the amended pages pursuant to the notice of intention to amend. The
defendants could not unilaterally
decide, even when the prospect of a
potentially second irregular step arose, to simply ignore the time
limits prescribed for enforcing
the relief foreshadowed in the first
notice. The provisions of rule 30(1) were not complied with in
respect of the notice of intention
to amend constituting an alleged
irregular step. The application in terms of rule 30(1) should
have been served by 18 June
2021, but was only served on 24 June
2021. Condonation would accordingly be required.
[29]
There is no explanation whatsoever for the delay in bringing the
application in terms of rule 30(1) from when it should have
been
brought, that is from 18 June 2021, until the application was
eventually brought on 26 June 2021. Nor is there an explanation
on
oath, even one that the attorney might have understood that the
second notice had somehow replaced the first notice insofar
as it
concerned the notice of intention to amend, as was argued.
[30]
There is accordingly no basis to grant condonation for the late
filing of the rule 30(1) application in respect of the
filing of
the plaintiff’s notice of intention to amend.
The
application in terms of rule 30(1) pursuant to the second notice in
terms of rule 30(2)(b)
[31]
The 10 day period to remove the causes of complaint in respect of the
second notice in terms of rule 30(2)
(b)
served on 20 May 2021
expired on 3 June 2021, hence the application in terms of rule 30(1)
had to be served on or before 25 June
2021. It was served timeously
on 24 June 2021.
[32]
However, even if I am wrong in concluding that condonation was
required in respect of the first notice, and that the delays
had not
been adequately explained in regard to that first notice and the
application required to be brought thereafter in terms
of rule 30(1),
then the defendants’ lack of prospects of success nevertheless
become dispositive of the application
for condonation and the
substantive relief claimed itself. A party’s prospects of
success is always an important consideration
when deciding whether
condonation should be granted. Condonation should be refused in this
application, if for no other reason
and even if the delays could
otherwise be excused, but because the defendants’ application
to set aside ‘the Plaintiff’s
Notice to Amend dated 20
April 2021’ and ‘the delivery of the Amended Page dated
07 May 2021’ lacks prospects
of success. The lack of prospects
is also dispositive of the application, considerations of condonation
apart. It is to the merits
of the relief claimed that I then turn.
The
merits
[33]
The purpose of pleadings is to properly define the issues in dispute
between the parties. The oft quoted truism is that the
pleadings are
made for the court, and not the court for the pleadings. If a
pleading is in some way deficient, then an amendment
will, subject to
certain limited exceptions, generally be allowed if the amendment
will allow a proper ventilation of the true
issues in dispute. The
exceptions will include where there is prejudice of the nature of
which the law takes cognizance, to the
party against whom the
amendment is sought and which cannot be remedied by an appropriate
costs order. This may for example
include where an admission
previously made on the pleadings is sought to be withdrawn and the
evidence to prove the facts previously
admitted, is no longer
available.
[34]
No such prejudice has been raised by the defendants. Indeed, the
defendants have not suggested that they would object to the
proposed
amendments, if they followed upon a successful hearing of the
exception and a court having authorised the plaintiff to
amend its
pleadings.
[35]
The complaint by the defendants seems to be that if they are allowed
to argue the exception successfully, that it could bring
an end to
the litigation on those pleadings. But that is not the correct
approach to be followed. Even if the exception was to
be heard and
upheld, a court would invariably allow the plaintiff to amend its
pleadings.
[36]
Whether the
defendants could possibly succeed with an exception on potentially
defective pleadings, should not be the issue. The
issue must always
be whether the particulars of claim and replication as amended, raise
legally triable issues. If, after the amendments
were effected, the
pleadings still did not raise triable issues, then the defendants’
remedy was to have objected to the
proposed amendments, or having
failed to do so, to persist with the exception and to enrol it for
hearing, or to raise whatever
other remedy would be open to it.
[9]
But that is not what the defendants have done. Instead, the
defendants seek to exclude the amendments, so it can hopefully
succeed
with its exception. But that will be a pyrrhic victory,
except that it might result in a costs order, as a court upholding an
exception
will invariably grant leave to the plaintiff in any event,
to amend its pleadings, even if that relief was not claimed
specifically.
[10]
And even
where a court may limit the scope of the amendment without notice of
intention to amend being required to be given pursuant
to an
exception,
[11]
an amendment on
notice allowing time for objection is generally always available. All
the plaintiff did was to anticipate such
a possible result, or simply
to avoid any potential argument and the delay that would result, and
to expedite the litigation process.
[37]
At best for the defendants they might be entitled to the wasted costs
occasioned by the exception and amendments, but they
will have
appropriate remedies in that respect. The costs occasioned by the
amendments were tendered in the notice of amendment.
The defendants’
remedy was not to apply to have the notice of amendment and the
subsequent amended pages set aside as irregular
steps, which they are
not.
Conclusion
[38]
The application accordingly falls to be dismissed.
Costs
[39]
The plaintiff has been successful. There is no reason why the costs
should not follow the result. The plaintiff has however
sought an
order that the costs be on the attorney and client scale, including
the costs of senior counsel.
[40]
The application has been ill conceived, but it does not, in my view,
display deliberate conduct that justifies a punitive costs
order on
the attorney and client scale. In coming to that conclusion I am
alive to the fact that an application need not be frivolous
by design
to attract a punitive costs order. I am furthermore alive to the fact
that this ill- conceived application has resulted
in a delay of a
number of months. The plaintiff’s claim will attract interest.
[41]
As regards the prayer for the costs of senior counsel, the defendants
have employed senior and junior counsel. It is reasonable
and
appropriate that the costs order made should include the costs of
senior counsel.
Order
[42]
In the result, the following order is made:
The
application is dismissed and the defendants jointly and severally are
directed to pay the plaintiff’s costs of the application,
such
costs to include the costs of senior counsel where employed.
________________________
KOEN
J
APPEARANCES
For
the applicants/defendants:
Mr
M S Mtambo
(The
heads were prepared by Mrs J M Singh SC and Mr M S Mtambo)
Instructed
by:
State
Attorney (KZN)
Ref:
Ms Y Gangat 24/7443/19/M/P36
c/o
State Attorney (KZN) Satellite Office
2
nd
floor, Magistrate’s Court Building
302
Church Street
Pietermaritzburg
For
the respondent/plaintiff:
Mr
A C Botha SC
Instructed
by:
Werksmans
Attorneys
c/o
Shepstone and Wylie
Pietermaritzburg
(Ref:
JTM/mm/WEKK17055.32)
[1]
The parties shall hereinafter be referred to as in the action.
[2]
This judgment is similarly not concerned with the merits of the
amendments which were sought and effected.
[3]
That was in proper compliance with the provisions of rule 28(2) of
the Uniform Rules of Court.
[4]
Fiat
SA (Pty) Ltd v Bill Troskie Motors
1985
(1) SA 355
(O) at 358C;
Van
Heerden v Van Heerden
1977 (3) SA 455
(WLD) at 457H.
[5]
‘
Deliver’
is defined in the Uniform Rules of Court to mean ‘serve copies
on all parties and file the original with
the registrar.’
[6]
Minister
of Law and Order v Taylor NO
1990
(1) SA 165 (E).
[7]
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
amicus curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC) para 22;
SA
Express Ltd v Bagport
(Pty) Ltd
2020 (5) SA 404
(SCA) para 34.
[8]
This
contradiction was accepted to be incorrect during argument.
[9]
Zwelibanzi
Utilities (Pty) Ltd t/a Adams Mission Service Centre v TP Electrical
Contractors CC
[2011]
ZASCA 33
para 15.
[10]
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993
(2) SA 593
(A) at 602D.
[11]
Trustee
Insolvent Estate Mark William v Bank of Africa Limited
(1911)
32 NLR 36.