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[2022] ZAECBHC 23
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Member of the Executive Committee Department of Education and Another v Despatch Preparatory School (496/2020) [2022] ZAECBHC 23 (16 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BISHO
REPORTABLE
CASE
NO: 496/2020
DATE
HEARD: 4 AUGUST 2022
DATE
DELIVERED: 16 AUGUST 2022
In
the matter between:
MEMBER
OF THE EXECUTIVE COMMITTEE
DEPARTMENT
OF EDUCATION
1
ST
APPLICANT
HEAD
OF DEPARTMENT, DEPARTMENT
OF
EDUCATION
2
ND
APPLICANT
and
DESPATCH
PREPARATORY SCHOOL
RESPONDENT
JUDGMENT
NOTYESI
AJ
INTRODUCTION
[1]
The applicants have launched this application in terms of rule 27(3)
of the uniform
rules of the court seeking for an order condoning
their late filing of the defendant’s plea. The application is
opposed by
the respondent on the basis that the applicants have
failed to make out a case for the grant of condonation. The
applicants are
the defendants in the main action and the respondent
is the plaintiff.
[2]
For the sake of convenience, I will refer to the parties as they
appear in the main
action.
BRIEF
BACKGROUND
[3]
The plaintiff has instituted an action against the defendants seeking
payment of monies
allegedly owing in respect of fee exemptions
imposed in terms of the South African Schools Act (“
SASA
”).
The summons was issued on 2 September 2020. Service of the summons
was effected upon the defendants on 4 September 2020.
The defendants
served and filed their notice of intention to defend on 7 October
2020.
[4]
Pursuant to the service of the appearance to defend, the defendants
did not file their
plea and thus prompted the plaintiff to file a
notice of bar. The notice of bar was served on 11 November 2020.
[5]
For the reasons that are not immediately clear, on 26 November 2020,
the plaintiff,
before a plea could be filed, delivered notices in
terms of rule 35 and rule 37. Following delivery of the aforesaid
notices, the
plaintiff served an agenda for pre-trial conference, in
which he set out issues for which the defendants must agree. On 7
April
2021, the plaintiff served what purports to be a rule 37
minute.
[6]
Subsequent to all the above steps taken by the plaintiff, the
defendant served and
filed his plea on 13 April 2021. The defendant,
upon realising that he was under bar, simultaneously delivered the
plea, with the
condonation application and the leave for the
upliftment of the bar. The condonation application is opposed by the
plaintiff.
[7]
The defendant’s basis of the application could be summarized as
follows:
7.1
Pursuant to receipt of the summons at the head office in Zwelitsha,
the case was allocated to Tania Marili
Snayers, the person who
deposed to the affidavit in pursuit of condonation;
7.2
Once the matter was allocated to Tania M Snayers, she started to
conduct investigations and enquiries from
the relevant officials at
the district office in Port Elizabeth. During those investigations of
the matter, Ms Snayers experienced
a series of challenges because the
matter dates back from 2017. She could not obtain the relevant
documents and records which would
be necessary for a decision on
whether to defend or settle the matter.
[8]
According to Ms Snayers, her challenges in filing the plea, were, in
addition to those
problems relating to the absence of documents and
records, compounded by the unavailability of some officials who had
knowledge
about the matter. Some of the officials, according to Ms
Snayers, had already taken leave and others relocated to other
places.
Whilst Ms Snayers was confronted with the above challenges,
there was an outbreak of the Corona virus resulting in the lockdown
of the country.
[9]
Ms Snayers was only able to consult with witnesses who had knowledge
on the matter
during March 2021 and whereafter, on 24 March 2021, she
instructed the State Attorney to brief a counsel. The consultation
with
the counsel took place on 7 April 2021. On the strength of the
counsel’s advice and opinion, the defendants were confident
to
defend the matter and a plea was accordingly prepared.
[10]
In response to the defendants’ case for condonation, the
plaintiff contends, in the main,
that the defendants have not
provided a reasonable explanation for the delay and that, the
defendants’ application is not
bona fide
, but a mere
stratagem to delay the plaintiff’s claim and that the plaintiff
would be severely prejudiced if the defendants
are granted
condonation and leave to file their plea. In addition to those
submissions, the plaintiff avers in the answering affidavit,
that the
defendants have been guilty of a reckless and intentional disregard
for the rules of court and that the defence proffered
by the
defendants is weak.
CONDONATION
[11]
Rule 27 deals with extension of time and removal of bar and
condonation. In terms of sub rule
3, the court may, on good cause
shown, condone any non-compliance with the rules. In terms of section
173 of the Constitution
[1]
, the
High Court has inherent power to protect and regulate its own
processes taking into account the interest of justice. Rule
27
provides for different situations in which the rule can be invoked,
and these are:
“
(a)
in the absence of agreement between the parties, the extension or
abridging of any time-
(i)
prescribed by the rules;
(ii)
prescribed by an order of court;
(iii)
fixed by an order of court extending or abridging any time (subrule
(1));
(b)
the extension or abridging of any time referred to in paragraph (a)
above, before
or after the time prescribed or fixed (subrule (2));
(c)
the recalling, varying or cancelling of the results of the expiry of
any time prescribed
or fixed, whether such results flow from the
terms of any court order or from the rules (subrule (2));
(d)
condonation of any non-compliance with the rules (subrule (3));
(e)
the revival of a rule
nisi
which has been discharged by default of appearance by the applicant
(subrule (4)).
[2]
”
[12]
The applicant who seeks condonation is required to provide a full,
detailed and accurate account
of the reason for the delay to enable
the court to understand and assess such delay. If the delay is time
related, the date, duration
and the extent of the problem that
occasioned such delay, should be set out.
[3]
In other words, a full and reasonable explanation, which covers the
entire period of delay, must be given. The second requirement
is that
the applicant should satisfy the court that he has a
bona
fide
defence.
[13]
Generally, a bar may be removed by consent of parties under rule 27,
although there is no obligation
on the party who has barred to
consent to the removal.
DISCUSSION
[14]
The parties approach to litigation in this application is
unsatisfactory and raises concerns.
Firstly, the plaintiff, having
served a notice of bar on 11 November 2020, proceeded to issue rule
35 and rule 37 notices, and
in the process, drafted rule 37 minutes.
There was no basis for all these steps in the absence of a plea. The
effect of a notice
of bar is that the defendant, if he still fails to
deliver a plea, would then not be in a position to deliver his plea
until such
time that the bar has been uplifted.
[15]
In this case, the plaintiff enthusiastically filed all these notices
notwithstanding its own
resolve of barring the defendant to the
extent of opposing the grant of the condonation application and the
upliftment of the bar.
All the notices were premature.
[16]
The defendants’ supporting affidavit for condonation and
upliftment of the bar is woefully
lacking and slovenly drafted.
Necessary averments are inelegantly and insufficiently set out. There
is no detailed explanation
which covers dates, duration and extent of
the problems raised by Ms Snayers. Ms Snayers is merely making
nebulous statements in
relation to the challenges that she had
occasioned in relation to the filing of the plea. This court expected
that the defendants
would have given a detailed account regarding
their failure to heed the notice of bar after they timeously filed a
notice to defend.
[17]
The deafening silence on the reasons why the defendants could not
even communicate their challenges
to the plaintiff is also of
concern. I am not satisfied that the defendants have given a
satisfactory explanation regarding the
failure to file a plea for the
duration of five months. However, the matter must not end there, for,
I must still consider the
strength of the defence proffered by the
defendants on the merits.
[18]
The defendants have raised a special plea to the plaintiff’s
claim. Their special plea
is that there is non-compliance with the
provisions of section 3(2)(a) read with section 3(3)(a) of
Institution of Legal Proceedings
Against Certain Organs of State Act
40 of 2002 (“
the Act
”). This defence is valid and
dispositive of the plaintiff’s claim, if successful during the
trial. Secondly, the defendants,
in their plea, raises an issue of
policy interpretation in their resistance of the plaintiff’s
claim. That defence raises
an important issue of policy consideration
and carries, on its own, public interest.
[19]
On the basis of the above, in my view, the defendants are raising a
strong defence to the plaintiff’s
claim. I also do take into
account that the plaintiff did not apply for default judgment
subsequent to the service of the notice
of bar and expiry of time in
connection thereto.
[20]
I agree with Mr Mayekiso, counsel for the defendants, in his
submissions that the effect of refusing
the condonation and the
upliftment of the bar, would amount to denying the defendants an
opportunity to place their defence before
court. In the circumstances
of this case, such a step would not be in the interest of justice and
the defendants’ rights
under section 34 of the Constitution
would be unjustifiably infringed.
[21]
In my view, this is a case in which, although the explanation is
inherently poor, but nonetheless,
condonation should be granted. I
also take into account that the plaintiff has effectively conducted
itself as if it has abandoned
its notice of bar when it decided not
to apply for default judgment after the expiry of the period in the
notice of bar, but instead,
decided to issue notices under rule 35,
rule 37, agenda for a pre-trial conference and minutes of the
pre-trial conference. The
plaintiff’s conduct, carefully
considered, leads to one conclusion, that it has intended for a fully
ventilated trial of
issues. That conclusion finds support from the
plaintiff’s own showing. The plaintiff’s opposition of
the condonation
is opportunistic and unreasonable. No default
judgment has been obtained in which instance, it could be reasonably
inferred that
the plaintiff is defending such judgment and would be
prejudiced in the circumstances.
CONCLUSION
[22]
I am satisfied that the defendants have made out a case for the grant
of condonation and the
upliftment of the bar. This conclusion is not
reached lightly in view of my remarks about the poor explanation
given by the defendants
for the non-compliance with the rules. This
aspect will impact on costs.
COSTS
[23]
The defendants are seeking indulgence of the court. The general rule
in such cases is that ‘the
applicant for the indulgence should
pay all such costs as can reasonably be said to be wasted, because of
the application, such
costs to include the costs of such opposition
as is in the circumstances reasonable and not vexatious or
frivolous’. I do
take into account in this regard, that the
defendants did not seek for consent of the plaintiff regarding the
upliftment of the
bar. There were no correspondences in which the
defendants explained the challenges it faced. The challenges were
only set out
in the supporting affidavit, which on its own, is so
poorly prepared and woefully lacking in detail. The defendants should
pay
the costs.
ORDER
[24]
In the result, it is ordered that:
1.
The application for condonation of the late filing of the defendants’
plea is granted;
2.
The notice of bar dated 11 November 2020, is hereby uplifted and the
defendants are granted
leave to file their plea in the main action
within a period of 15 (fifteen) days of the date of this order,
should they be so inclined
or advised; and
3.
The defendants’ shall pay all costs occasioned by the
condonation application and the
upliftment of the bar, which costs
must exclude the preparation of the plaintiff’s answering
affidavit.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the plaintiff
: Ms Burger
Instructed
by
: Nolands Law Attorneys
c/o Hutton & Cook
75 Alexandra Road
KING WILLIAMS TOWN
Ref: Mr G C Webb
Counsel
for the defendants :
Mr Mayekiso
Instructed
by
: State Attorney
c/o Shared Legal
Services
32 Alexandra Road
KING WILLIAMS TOWN
Ref: 679/20-P10 (Mrs
Yako)
[1]
Constitution
of the Republic of South Africa, 1996, (Act No: 108 of 1996)
[2]
Erasmus
Superior Court Practice Second Edition Van Loggerenberg Volume 2
notes under rule 27 and the cases cited therein –
[original
service] D1-321
[3]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 477E- G, See Erasmus supra at D1 -
323