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[2022] ZAMPMBHC 65
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Lekwa Local Municipality and Another v Afri-Infra Group (Pty) Ltd (2597/2018) [2022] ZAMPMBHC 65 (8 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 2597/2018
REPORTABLE:NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
8 August 2022
In the matter between:
LEKWA
LOCAL MUNICIPALITY
First
Applicant
GERT
SIBANDA DISTRICT MUNICIPALITY
Second Applicant
and
AFRI-INFRA
GROUP (PTY) LTD
Respondent
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This matter concerns two interlocutory applications brought in terms
of Uniform Rule
of Court 30. These applications have been launched
separately by the First and Second Applicants, jointly referred to as
the Applicants
otherwise and depending on the context, individually
as Lekwa and Gert Sibanda. Common between these applications is the
complaint
that the Respondent (“Afri-Infra”) has
irregularly amended its particulars of claim as contemplated in Rule
30.
[2]
Afri-Infra opposes the applications on various grounds, principally
that the two applications
were brought late without condonation
applications. Afri-Infra says this mindful of Gert Sibanda’s
application for condonation
for the Rule 30(2)(c) Application but
contends that without an application for the late service of the Rule
30(2)(b) Notice, the
condonation for the Rule 30(2)(b) is stillborn
and therefore vain.
[3]
In the case of Lekwa, the application for condonation was only served
on Afri-Infra
the day before the hearing, consequently it could not
be before Court on the date of hearing. Besides, Gert Sibanda too had
not
applied to condone its late delivery of the Rule 30(2)(b) Notice
and as such, it was as good not having been there.
[4]
As the matter unfolded in Court, it soon emerged that the application
between Lekwa
and Afri-Infra was, to the extent that its condonation
application was served on Afri-Infra the day before the hearing,
prematurely
before Court. In consequence of those developments in
Court, Counsel for Lekwa conceded that the application should not
have served
before Court on that date. The question between those two
simmered down to costs. Following argument on the subject, Counsel
for
Lekwa ultimately agreed that Lekwa would bear costs as at the
scale between attorney and client. An order in those terms was
accordingly
made against Lekwa and it exited the proceedings leaving
Gert Sibanda and Afri-Infra to proceed with the matter.
FACTUAL MATRIX
[5]
Afri-Infra instituted an action (“the main action”)
against the Applicants
seeking payment based on
negotiorum
gestio
. When it appointed its attorneys
of record, the matter had already commenced. It alleges that it
sought guidance and was advised
to radically amend its
particulars
of claim in the main action between it (as Plaintiff) and the
Applicants) as Defendants) to ensure that it was in line
with the
requirements of
negotiorum gestio
,
the remedy on which it was relying for its claim. Following the
advice
,
Afri-Infra delivered notice of its intention to amend its particulars
of claim, as envisaged in Rule 28. The Rule 28 notice was
served on
Gert Sibanda on 6 September 2021. The notice gave Gert Sibanda ten
days within which to raise objection to the proposed
amendments.
[6]
The ten-day period expired on 20 September 2021. Noting that no
objections were forthcoming,
the proposed amendments were perfected
and the amended particulars of claim were subsequently served on Gert
Sibanda on 21 September
2021. The amended particulars of claim
accordingly became part of the record without any objection from Gert
Sibanda. Afri-Infra
alleges that the amendment was regularly served
in terms of the Uniform Rules of Court. Twenty-five Court days after
service of
the amended particulars of claim, the Applicants served
separate notices in terms of Rule 30(2)(b) of the Uniform Rules of
Court.
Gert Sibanda then proceeded to serve the Rule 30(2(c)
Application on 15 December 2021.
ISSUES
[7]
It is evident from the above factual background and a matter of
common cause between
the parties that the sole issue for
determination is whether or not Gert Sibanda has made a case for the
setting aside of the alleged
irregular step as contemplated in Rule
30. Associated with the issue above is whether or not Gert Sibanda
can be condoned for the
late launching of the Rule 30 without an
application excusing the late service of the Rule 30(2)(b) Notice. I
intend to deal with
this issue alone without traversing other matters
raised by both parties as it could be dispositive of the whole case.
LEGAL FRAMEWORK
[8]
The application involves Rule 30, consequently it will make sense to
cite the Rule
in full as I will make extensive reference to it. It is
headed: Irregular proceedings, and 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 sub rule (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 fifteen days after the expiry of
the second period mentioned
in paragraph (b) of sub rule
(2).
(3)
If at the hearing of such application the court is of opinion that
the proceeding or step is
irregular or improper, it may set it aside
in whole or in part, either as against all the parties or as against
some of them, and
grant leave to amend or make any such order as to
it seems meet.
(4)
Until a party has complied with any
order of court made against him in terms of this rule, he
shall not
take any further step in the cause, save to apply for an extension of
time within which to comply with such order.
”
[9]
As such, the jurisdictional requirements pertaining to Rule 30 are
that:
9.1
The Applicant must not have taken a further step in the cause while
mindful of the irregularity
of the step taken by the other party;
9.2
The notice in terms of Rule 30(2)(b) must be given within ten days of
becoming aware of
the alleged irregularity;
9.3
The application in terms of Rule 30(2)(c) is to be delivered within
fifteen days after expiration
of the ten-day period afforded to a
litigant to remove the cause of complaint;
9.4
Rule 30 applies to irregularities of form, and not matters of
substance;
9.5
Rule 30 does not apply to omissions, but only to positive steps or
proceedings;
9.6
Proof of prejudice is a pre-requisite in succeeding with an
application in terms of Rule
30.
[10]
In
Klein
v Klein
[1]
the following was held at 651
E to G:
“
Secondly,
if the proviso is to work in practice, it seems to me that
'knowledge' must be distinguished from appreciation. The 'knowledge'
referred to in the proviso is in my view knowledge that a step has
been taken, whether or not coupled with an appreciation
that the
step was irregular or improper. See the observations of Kannemeyer JP
in Minister of Law and Order v Taylor NO
1990
(1) SA 165 (E)
with
regard to Rule 30(1) as amended in South Africa. The fact that in the
present case the plaintiff and her attorney failed to
appreciate that
defendant's notice of set down was out of time accordingly affords
no escape from the operation of the proviso.
”
EVALUATION
[11]
On 6 September 2021, Afri-Infra served its intention to amend its
particulars of claim wherein
it afforded Gert Sibanda a 10-day period
within which to object to the intended amendments. The 10-day period
came and went as
it lapsed on 20 September 2021 without Gert Sibanda
raising any objections. Afri-Infra perfected the amendment and served
the particulars
of claim on the following day, 21 September 2021.
[12]
It was only twenty-five days after service of the particulars of
claim that Gert Sibanda Served
the Rule 30(2)(b) Notice alerting
Afri-Infra of the alleged irregular step. Quite evidently, the
service of the notice was well
out of time constituting an
impermissible step especially in circumstances where it was not
accompanied by an application seeking
to condone the unpunctuality.
As though that was not sufficient, the Rule 30(2)(c) Application was
launched on 15 December 2021,
almost 15 days out of time. To the
extent that Gert Sibanda contended that knowledge alone of the step
taken by the other party
to the proceedings is insufficient, Klein
supra
is authority that appreciation of the irregular nature
of the step is not a requirement.
[13]
Also before this Court is an application for condonation of the late
filing of the Rule 30(2)(c)
by Gert Sibanda. I find myself in
agreement with Afri-Infra that the condonation application is hollow
if it, as it does, seeks
to condone the Rule 30(2)(c) Application
without a condonation of the first irregular step - service of the
Rule 30(2)(b) Notice
outside of the 10-day period. In this sense the
Rule 30(2)(c) Application is unsustainable as it has no anchor. Thus,
an order
condoning its late service will be meaningless.
[14]
I have alluded that Afri-Infra has mounted various challenges to the
application of Lekwa but
Lekwa’s failure to overcome this first
hurdle renders this point dispositive of the entire matter.
Accordingly, I do not
deem it necessary to traverse the other grounds
upon which the challenges are founded. The resolution of the matter
is as candid
as described and the least said the better.
COSTS
[15]
I have already stated that I gave a punitive costs order against
Lekwa firstly, for not seeking
condonation for the late service of
the Rule 30(2)(b) Notice and secondly, for coming to Court while
aware that its condonation
application for the Rule 30(2)(c)
application was improperly before Court. Gert Sibanda is in no
different position notwithstanding
that it purported to have a
condonation application for the late launching of the Rule 30(2)(c)
Application. This should not have
happened and borders on gross
negligence and therefore extravagant on the time of the Court and
litigants. For these reasons Gert
Sibanda cannot escape a punitive
cost order.
[16]
Against that background it is befitting to make the following order:
1.
The application in terms of Rule 30(2)(c) is dismissed; and
Gert
Sibanda is liable for the costs of Afri-Infra on the scale as between
attorney and client.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 08 August 2022 at 10:00.
APPEARANCES:
Counsel for the
Applicant:
Adv
KK Maputla
Instructed
by:
Mohlala Attorneys
Counsel for the
Respondent:
Adv GF Heyns
SC
Instructed
by:
Krugel
Heinsen Inc
Date of Judgment:
08 August 2022
[1]
1993
(2) SA 648
(BGD)