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[2022] ZANCHC 23
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20Twenty Projects (Pty) Ltd v Tsantsabane Local Municipality (404/2016) [2022] ZANCHC 23 (22 April 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 404/2016
Heard:
11/03/2022
Delivered:
22/04/2022
Reportable:
Yes/NO
Circulate
to Judges: Yes/NO
Circulate
to Magistrates: Yes/NO
Circulate
to Regional Magistrates: Yes/NO
In
the matter between:
20TWENTY
PROJECTS (PTY) LTD
Applicant/plaintiff
and
TSANTSABANE
LOCAL MUNICIPALITY
Respondent/defendant
JUDGMENT
Mamosebo
J
[1]
Mr Kevin George Craig Allardyce, a partner of Allardyce and Partners
and the applicant’s
attorney of record, deposed to the founding
affidavit in this interlocutory application whereby the applicant,
20Twenty Projects
(Pty) Ltd, is seeking the following relief:
1.1 to
compel the respondent, Tsantsabane Local Municipality, to deliver a
response to the Notice in terms of
Rule 37(4) served by the applicant
on 13 August 2021;
1.2 to
compel the respondent to deliver its discovery affidavit in
compliance with the applicant’s Rule
35(1) Notice together with
Rule 35(6), 35(8), and 35(10) Notices served on 22 April 2021; and
1.3
Costs on the scale as between attorney and own client.
[2]
The respondent, Tsantsabane Local Municipality, attacked the
application by filing
a Notice in terms of Rule 6(5)(d)(iii) raising
questions of law and submitting that should the answers to those
questions be in
its favour, that that will be dispositive of the
application.
[3]
The questions raised are the following:
3.1
Whether Allardyce and Partners is entitled to prosecute the
application dated 25 October
2021, given that it did not respond to
the defendant’s notice in terms of Rule 7(1) served on 23
September 2021;
3.2
Whether the application complies with the provisions of Rule 6(1)
given that it is contended
that the deponent “
does
not appear to have signed the affidavit before a commissioner of
oaths
”
.
The respondent contends that this is demonstrated by the fact that
the commissioner of oaths was unable to certify whether the
deponent
is either male or female.
3.3
Whether the affidavit complies with the provisions of Regulation 4 of
the Regulations Governing
the Administration of an Oath or
Affirmation, Government Notice R1258, of 21 July 1972 (“the
Regulation”) under section
10 of the Justices of Peace and
Commissioners of Oaths Act 16 of 1963;
3.4
Whether the applicant is entitled to prosecute the application
despite not having complied
with the provisions of Rule 30A(1) and
has not given the 10 days’ prior notice as contemplated by the
Rule;
3.5
Whether, in respect of securing compliance with the request in terms
of Rule 37(4), the
applicant is entitled to rely on undertakings
given at the Rule 37 pre-trial conference, whereas the minutes
thereof have not been
signed.
[4]
It is worth pointing out that at commencement of the hearing, Mr Mike
Louw, for the
respondent, contended that discovery has been complied
with. However, after Mr Rust, for the applicant, denied that his
client
ever received any discovery, Mr Louw was constrained to
concede and retract the submission after his instructing attorney
could
not produce any proof of discovery.
[5]
Mr Louw further made the submission that the pre-trial minute issue
was resolved.
Just to recap, the issue taken by the respondent in
this regard was whether the applicant can rely on undertakings given
at a Rule
37 pre-trial conference whereas the minutes thereof have
not been signed. The applicant served its discovery affidavit on the
respondent
on 28 June 2021. A Rule 37 Pre-trial conference was
conducted virtually on 26 August 2021. Participating for the
plaintiff was
its attorney Mr K Allardyce and for the defendant was
Adv Louw and Att. Johan Terblanche.
[6]
As submitted by Mr Rust, the correct position is that the
respondent’s attorney
has signed the Pre-trial minutes. The
last page of the Pre-trial minute reflects a signature above the name
Peyper Attorneys, defendant’s
attorneys. Of more significance
is the principle articulated by Van Dijkhorst J in
Kerksay
Investments (Pty) Ltd v Randburg Town Council
[1]
confirmed
on appeal on this point in
Randburg
Town Council v Kerksay Investments (Pty) Ltd
[2]
that
if the parties have formulated specific issues in the pre-trial
minutes, the trial court is not entitled to go beyond the issues
as
formulated and decide the case on another basis. The salutary
principle that unless there has been a full investigation of a
matter
falling outside the pleadings and there is no reasonable ground for
thinking that further examination of the facts might
lead to a
different conclusion,
the
parties are held to the issues pleaded, applies equally, if not more,
where the parties have formulated specific issues in the
pre-trial
minutes.
[7]
It is clear to me from the participants in this virtual Pre-trial
conference that
the deponent to the founding affidavit participated.
The respondent’s legal representatives are well aware that he
dealt
with the Pre-trial issues with them. This aspect of the
respondent’s attorney not having signed the minutes should not
have
been raised as a legal issue particularly when the true position
is known that not only were the minutes signed but the purpose
of
Rule 37 being the promotion of effective disposal of the litigation.
The following issues are recorded in the Rule 37 Minute:
7.1
At para 1 that the respondent will deliver its response to the
applicant’s notice
in terms of Rule 37(4) on 30 August 2021;
7.2
At para 2.2 that the respondent/defendant will deliver its discovery
affidavit on or before
15 September 2021 and should it not be able to
do so it would advise the applicant/plaintiff. This has not been
done.
[8]
I gain the impression that abandonment of this aspect at this late
stage, after the
applicant’s counsel argued it, served not only
as an attempt to trivialise it but also, used as a technical
argument, by
the respondent, which is deprecated. In any event, a
party is not entitled to resile from agreements made by his attorney,
without
his knowledge, at a Rule 37 conference.
[3]
Authority
to prosecute the matter by Allardyce and Partners
[9]
The respondent also took issue with the alleged lack of authority of
the applicant
and therefore served a Rule 7(1) notice.
Notwithstanding that the notice was not even served under case number
404/2016 (the case
in casu
) but related to another matter
under case number 2259/2018, the applicant still served and filed
both the resolution giving the
deponent the necessary authority and
the Special Power of Attorney dated and signed by the directors on 15
February 2021. The respondent
abandoned this point at the hearing.
This was a needless and wasteful stratagem.
Whether
the application complies with the provisions of Rule 6(1) given that
it is contended that the deponent ‘does not appear
to have
signed the affidavit before a commissioner of oaths’ and
whether the affidavit complies with the provisions of Regulation
4 of
the Regulations Governing the Administration of an Oath or
Affirmation
.
[10]
The respondent takes issue with the fact that the founding affidavit
does not seem to comply
with Rule 6(1) in that it does not seem as if
the deponent signed the affidavit in the presence of a commissioner
of oaths. Had
that been the case, the argument went, the commissioner
would have correctly classified the applicant either as male or
female.
Further, the said founding affidavit does not seem to comply
with the provisions of Regulation 4 of the Regulations Governing the
Administration of Oath or Affirmation, Government Notice R1258 of 21
July 1972 (as amended) in that the commissioner of oaths failed
to
print his full names and address below his signature; state his
designation; state the area for which he/she holds his appointment;
and the office held by him, if he holds his appointment
ex
officio,
the submission continued.
[11]
The respondents invoked
Absa
Bank Ltd v Botha NO and Others
[4]
contending
that while the gender of the deponent Kevin George Craig Allardyce is
not stated in the body of the affidavit, the commissioner’s
certificate refers to the deponent as “He”, and or “She”
or “His”.
[12]
The deponent in the Absa Bank application for summary judgment stated
that she was a manageress.
Two issues bear mentioning in the Absa
matter that distinguish it from the case before me. First, the fact
that the deponent specified
that she is the manageress conclusively
categorises her as a female. Secondly, summary judgments are
perceived as final in effect
in that they permit the granting of a
judgment or order in a defended action without full pleadings or a
trial. Therefore, to avoid
shutting the door in a litigant’s
face completely, one would rather tread more cautiously before
granting such an order.
As correctly argued by Mr Louw, the deponent
did not specify his gender in the affidavit, therefore, unlike in the
Absa case, it
cannot be inferred that he was not before the
commissioner of oaths without more. Form should never be elevated
above substance.
[13]
The respondent also took issue with the applicant for not having
afforded it a period of 10 days
prior to the notice contemplated in
terms of Rule 30A
[5]
. The
question to be answered is whether or not the applicant’s
e-mail addressed to Mr Louis Radley marked “FA8”
dated 17
September 2021 complies with the provisions of Rule 30A. The e-mail
reads:
“
Dear
Mr Radley
1.
I shall advise my client not to communicate
directly with you.
2.
He did so out of frustration because he feels
that client persistently fails to respond to correspondence from my
office.
3.
I have raised this with you before in the
attached letter but you did not respond.
4.
The pre-trial minutes provides:
a.
That you shall deliver a response to our Rule
37(4) notice on 30 August 2021. You have not done so.
b.
You undertook to deliver your discovery
affidavit on 15 September 2021. You have not done so.
c.
In paragraph 5.2 you shall respond by 15
September 2021 in respect of the issue of who bears the duty to begin
and the onus. You
have not done so.
d.
In paragraph 11.2 it is recorded that you shall
revert on or before 15 September 2021 in respect of the special plea.
You have not
done so.
5.
You have also failed to respond to e-mails
requesting you for your input on the minutes and then your signature.
6.
Your statement that our client is attempting to
intimidate your client is unfounded.
7.
We also reject your blaming the pandemic and
the fact that it is an election year on your client’s failure
to conduct itself
in a professional manner.
8.
We shall provide you with an opportunity to
respond on 20 September 2021 and to deliver your client’s
discovery affidavit
and your client’s response to the Rule
37(4) notice by 20 September 2021.
9.
However if we do not receive the aforesaid plus
the signed minute I shall bring an application to compel and in which
I shall draw
to the court’s attention the manner in which your
client has conducted itself in this litigation through your offices
and
shall seek not only a costs order but a censure of your client’s
behaviour.
Kind
regards
Kevin
Allardyce.”
[14]
Regard being had to the aforementioned e-mail, I do not agree with Mr
Louw, for the respondent,
that there ought to have been compliance
with Rule 30A but rather agree with the contention by Mr Rust that
the failure by the
respondent to discover must be met with Rule 35(7)
that stipulates:
“
(7)
If any party fails to give discovery as aforesaid or, having been
served with
a notice under subrule (6), omits to give notice of a
time for inspection as aforesaid or fails to give inspection as
required
by that subrule,
the
party desiring discovery or inspection may apply to a court, which
may order compliance with this rule
and,
failing such compliance, may dismiss the claim or strike out the
defence.”
[15]
In
S
v Munn
[6]
,
Van
Den Heever J, had an opportunity to consider the regulations for the
administering of oaths by commissioners of oaths and held
that
Regulation 4 is directory and not peremptory, and that the Court has
a discretion to accept the affidavit where substantial
compliance has
been proved. Whether there has been such ‘substantial
compliance’ is a matter of fact, not of law.
[16]
The commissioner of oaths states at the end of the affidavit that the
affidavit was signed and
sworn before him on 15 October 2021. The
first part is the gist of the attack which stems from the following:
‘
the deponent having acknowledged that
he
knows and understands the contents of this affidavit and that
she
has no objection to taking the prescribed oath, and which
he
considers
to be binding on his conscience…’.
There
is nothing in the body of the affidavit and in this attestation that
excludes an error in the use of the pronoun ‘she’.
I am
not persuaded by the contention on behalf of the respondent that the
pronoun confirms that the deponent was not before the
commissioner of
oaths as the other two pronouns correctly refer to Mr Allardyce as
‘he’. In addition the deponent who
was taking the oath’s
full names are “Kevin George Craig Allardyce” who is
addressed as “Mr” in all
the correspondence and court
processes prior to and as the occasion of him taking the oath. These
names and appellation strongly
suggest that the gender of the
deponent is male. Mr Allardyce is an attorney. I would be very
surprised if his colleagues did not
know him.
[17]
The second part of the attack pertains to compliance with Regulation
4(1) whereby the commissioner
is required to sign the declaration,
print his full name and business address below his signature, and
state his designation and
the area for which he holds the appointment
or his office if he has been appointed
ex officio.
The
commissioner of oaths, in this instance, is a member of the South
African Police Service (SAPS) in the Client Service Centre
(formerly
known as the Charge Office), Midrand, holding the rank of constable.
This detail appears in the required area. This is
what appears: The
commissioner’s signature and to the right of the signature is
the abbreviation “
Cst
”
which
the respondents have not challenged as standing for “
Constable
”
and
which I take judicial notice of. Immediately below the abbreviated
rank is his service or force number and immediately thereunder
the
full names of the constable in what appears to be his own
handwriting. Below these details appears the official stamp of the
Client Service Centre. There is therefore no merit in the attack of
the non-compliance in terms of Regulation 4 by the respondent.
[18]
I am consequently satisfied that there has been substantial
compliance with the Regulations.
In the exercise of my discretion, I
apply the maxim
omnia praesumuntur rite esse acta donec probetur
in contrarium
also known as the ‘presumption of regularity’
in that I accept for purposes of this application that the affidavit
by
Mr Kevin George Craig Allardyce was in fact, sworn to and signed
in the presence of the commissioner of oaths.
The
application does not constitute an irregular proceeding
.
[19]
What remains is the question of costs
.
The applicant is seeking costs
de
bonis propriis
against the
instructing attorney of the respondent based on the following:
19.1
The respondent has raised fallacious legal arguments in terms of Rule
6(5)(iii) of the Uniform Rules of Court.
It initially raised the
issue of lack of authority only to be abandoned
later.
This argument can only be taken with the assistance of an attorney.
19.2
Both the respondent’s counsel and attorney made undertakings
during the Pre-trial conference that were
later ignored or denied,
including that the minute was not signed whereas that submission was
misleading.
19.3
To date, the respondent has not discovered whereas its counsel
initially argued that discovery was water
under the bridge as there
was nothing outstanding; that submission was not correct and was
retracted shortly thereafter. It remains
inexplicable then why the
respondent has still not discovered.
[20]
In countering the
de bonis propiis
submissions by Mr Rust for
the applicant, Mr Louw, for the respondent, argued that costs usually
follow the result. Should this
Court find the correct rule to be
complied with to be Rule 30A(1) then the respondent will be entitled
to its costs. Counsel further
submitted that there is no reason why
this Court should award costs on a scale as between attorney and own
client as merits could
not be evaluated from the technical points
taken. Counsel further submitted that, on the papers, there is no
malice on the part
of the respondent that should attract a punitive
cost order. Mr Louw reiterated that he was told that everything had
been resolved
including discovery and was only going to argue costs.
[21]
The submissions by Mr Louw is inconsistent with para 4 of the Rule
6(5)(d)(iii) notice delivered
to the applicants in November 2021,
asking whether, in respect of securing compliance with the request in
terms of Rule 37(4),
the applicant is entitled to rely on
undertakings given at a Rule 37 pre-trial conference, whereas the
minutes thereof have not
been signed. However, the pre-trial minutes
had been signed in September 2021. As I indicated earlier, the relief
was only abandoned
at the hearing when the respondent was caught out
in a lie.
[22]
It remains inexplicable why the respondent has still not discovered
to date hereof. The submissions
by the respondent’s counsel
pertaining to resolved and unresolved issues as well as the failure
by the respondent to honour
the undertaking stemming from the
pre-trial conference are the types of conduct that cause the courts
to show their displeasure
by imposing punitive costs orders. It was
unnecessary for the respondent to have raised the frivolous legal
issues which bordered
on the vexatious but certainly had the effect
of delaying court process and proliferating costs.
[23]
Costs
de bonis propriis
are not easily awarded. There has to
be a serious degree of negligence or exceptional circumstances must
be shown to exist to warrant
such costs. I am of the view that such
elements do not exist in this application. However, the conduct of
the respondent’s
attorney deserves censure.
[24]
In the result, the following order is made:
1.
The respondent is compelled to deliver a response to the Notice in
terms of Rule 37(4) served by the applicant on 13 August 2021 within
10 (ten) days of this order.
2.
The respondent is compelled to deliver its discovery affidavit in
compliance with the Notice in terms of Rule 35(1), 35(6), 35(8) and
35(10) served on 22 April 2021 within 10 (ten) days of this
order.
3.
Costs on a scale as between attorney and own client.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Adv. J.M Rust
Instructed
by:
Haarhoffs
Inc
For
the respondent:
Adv. M.C Louw
Instructed
by:
Duncan
& Rothman
1]
1997 (1) SA 511
(TPD) at
520F – 521E
[2]
1998 (1) SA 98
(SCA) at
104A - B
[3]
MEC for Economic
Affairs, Environment and Tourism, Eastern Cape v Kruizenga and
Another
2010 (4) SA 122
(SCA) para 6
[4]
[2016]
JOL 37101
(GNP);
2013
(5) SA 563
(GNP) at para 10
[5]
Rule 30A stipulates: (1)
Where a party fails to comply with these rules or with a request
made or notice given pursuant thereto,
or with an order or direction
made in a judicial case management process referred to in Rule37A,
any other party may notify the
defaulting party
that
he/she
intends,
after the lapse of 10 days from the date of delivery of such notice,
to apply for an order:
That such rule,
notice, request, order or direction be complied with; or
That the claim or
defence be struck out.
[6]
1973 (3) SA 734
(NC) at
738A – C;
[1973] 4 All SA 96
(NC)