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[2022] ZAECMKHC 44
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Cibi and Others v Public Service Commission and Others (3703/2019) [2022] ZAECMKHC 44 (28 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No. 3703/2019
In the matter between: -
SONWABO
CIBI
First Applicant
PIWOKUHLE
ZITSHU
Second Applicant
FIKELWA
SETI
Third Applicant
NOXOLO
MARU
Fourth Applicant
NOMBEKO
MAZWI
Fifth Applicant
JOSHUA
ZWELOBUSI
JITA
Sixth Applicant
LOMEX
MZANELE
SISILANA
Seventh Applicant
NOMTHANDAZO
NTOZAKHE
Eighth Applicant
THULISA
SONJANI
Nineth Applicant
ANITA
MODIKOE
Tenth Applicant
ANDILE
MINI
Eleventh Applicant
NOSIPHIWO
SOMDYALA
Twelfth Applicant
SIYABONGA
STOMPI
Thirteenth Applicant
and
THE
PUBLIC SERVICE COMMISSION
First Respondent
MEC:
DEPARTMENT OF TRANSPORT
Second Respondent
PREMIER:
EASTERN CAPE
Third Respondent
SPEAKER:
EASTERN CAPE LEGISLATURE
Fourth Respondent
Coram:
Bands AJ
Date
heard:
21 July 2022
Delivered:
28 July 2022
JUDGMENT
BANDS
AJ:
[1]
This
application served before me on the opposed motion court roll on
Thursday, 21 July 2022, having been postponed to the said
date, by
agreement between the parties who were present in court on 24
February 2022.
[1]
[2]
The application, in which the applicants,
inter alia
,
seek to review and set aside a report of the first respondent,
entitled “
PSC report on the
investigation into allegations of irregular appointment of staff,
consultants and contractors in the Department
of Transport: Eastern
Cape Province
”, dated November
2019, was issued during the course of December 2019.
[3]
Following
the filing of the first respondent’s answering affidavit on 29
September 2020, and the applicants’ reply thereto
on, what
appears to be,
[2]
30 April 2021,
the matter was enrolled for hearing by the first respondent on 24
February 2022.
[4]
The
Applicants’ erstwhile attorney of record filed a notice of
withdrawal as attorneys of record on 30 June 2021,
[3]
the relevance of which, I return to later.
[5]
When the matter came before the court some
eight months later, on 24 February 2022, the applicants remained
unrepresented. The first
respondent’s counsel, who was present
in court on the said date, advised that the fourth; seventh; and
eighth applicants
appeared in person and sought a postponement of the
matter for the purposes of obtaining legal representation.
[6]
The matter was accordingly postponed, by
agreement between the parties, to 21 July 2022, with the applicants
to pay the wasted costs
occasioned by the postponement. I am further
advised that Beshe J, who was seized with the matter, stressed, to
the aforementioned
applicants, the importance of obtaining legal
representation to enable the matter to proceed on 21 July 2022.
[7]
A notice of acting, on behalf of the third;
fourth; seventh; eighth; and nineth applicants (whom I shall
collectively refer to as
“
the
applicants
”) was filed by the
applicants’ present attorney of record some five months later,
on 21 July 2022, being on the date
of hearing. Strikingly, the notice
of acting was filed more than one year following the withdrawal of
the applicants’ erstwhile
attorney of record.
[8]
As a consequence of the late engagement of
the applicants’ attorney of record, a postponement of the
matter was sought for
the purposes of consulting with “
the
Applicants in order to consult with a Counsel
”.
Whilst the first respondent reluctantly agreed to the belated request
for a postponement, the parties were unable to agree
on the scale of
costs for which the applicants would be liable. The applicants
contended that their liability in respect of the
wasted costs
occasioned by the postponement ought to be on a party-and-party
scale. The first respondent, on the other hand, contended
that this
was an appropriate matter for the award of costs on an
attorney-and-client scale.
[9]
In support of the applicants’
submissions, an affidavit deposed to by the applicants’
attorney of record on the date
of hearing, was handed up from the bar
by the applicants’ counsel. A copy of the affidavit was
simultaneously provided to
the first respondent’s counsel, who
had not previously had sight thereof.
[10]
In argument, the first respondent’s
counsel contended that the attestation clause at the base of the
affidavit, which referred
to the deponent, as “
he
”,
in circumstances where the deponent was recorded as being an adult
female, rendered the affidavit invalid. Accordingly,
so the argument
went, it was not possible to verify whether the affidavit had been
attested to in the presence of the commissioner
of oaths. In the
event of a finding that the affidavit was invalid, no such affidavit
served before the Court.
[11]
Accordingly, the issues which fall to be
determined by me pertain to the validity of the said affidavit; and
the scale of costs
for which the applicants are liable.
Validity
of the affidavit
[12]
Affidavits
must satisfy the requirements set out in the Regulations Governing
the Administering of an Oath or Affirmation
[4]
(“
the
Regulations
”)
promulgated in terms of the Justices of the Peace and Commissioners
of Oaths Act 16 of 1963.
[13]
In terms of Regulation 2(1), read with
2(2), before a commissioner of oaths administers the oath to any
person, he shall ask the
deponent: (a) whether he knows and
understands the contents of the declaration; (b) whether he has any
objection to taking the
prescribed oath; and (c) whether he considers
the prescribed oath to be binding on his conscience. In the event of
the deponent
answering the aforesaid questions in the affirmative,
the commissioner of oaths shall administer the oath.
[14]
For the present purposes, the content of
Regulation 3(1), which requires the deponent to sign the declaration
in the presence of
the commissioner of oaths, is apposite.
[15]
In
Absa
Bank v Botha NO
,
[5]
Kathree-Setiloane J, in the context of summary judgment proceedings,
had an occasion to consider the validity of an affidavit wherein
the
defendant’s principal ground of objection thereto was “
that
the plaintiff’s purported verifying affidavit does not
constitute an affidavit as the deponent to the affidavit, Ms Suney
du
Plessis, declares that she is a female in the affidavit, yet the
commissioner of oaths certifies that she is a male. Ms Du Plessis
specifically declared, in this regard, that she was ‘a major
person in the employment of the Plaintiff as a manageress of
the
Plaintiff’, yet the commissioner of oaths certified that ‘the
Deponent acknowledged that he knows and understands
the contents of
this affidavit…
”
[6]
[16]
The confusion which arose in
Absa
Bank v Botha NO
was compounded by the
reference to the deponent as a manager in the certificate of balance
upon which the plaintiff relied.
[17]
Ultimately, the court, in the exercise of
its discretion, found that the affidavit in question did not
constitute an affidavit for
the purposes of Rule 32(2) for want of
compliance with the Regulations. In coming to such a finding, the
court stressed that it
should not be placed in a situation in which
it was required to speculate as to the gender of the deponent and as
to whether the
affidavit had been sworn to and signed in the presence
of a commissioner of oaths.
[18]
Absa Bank v Botha NO
is
often cited by practitioners as authority for the proposition that
affidavits are invalid simply if there is a disparity between
the
gender selected by the deponent and that selected by the commissioner
of oaths. This is not so.
[19]
It is settled law that the court retains a
discretion to refuse an affidavit which does not comply with the
Regulations, such Regulations
being directory rather than peremptory.
It remains a question of fact in each individual case as to whether
or not there has been
substantial compliance with the Regulations.
[20]
In
Mndiyata
and Others v Umgungundlovu CPA and Others
,
[7]
a recent decision of the Mthatha High Court, the court, in
considering errors in the commissioning of affidavits, stated as
follows
at paragraph [14]:
“
Furthermore,
the second respondent (who deposed to the answering affidavit on
behalf of the respondents) stated at the beginning
of the affidavit
that he is an adult male. There is no evidence that another person
other than the first respondent appeared before
the Commissioner. The
applicants simply ask this court to infer that, as the affidavit
refers to a “she” in the attestation
clause, it could not
have been the first respondent who had signed the affidavit. It will
be noted that the word “she”
forms part of the pre-typed
document that must have been placed before the Commissioner. If the
Commissioner had, for instance,
personally written the word “she”
in the attestation clause, it could have made for a stronger case for
the applicants.
It is, therefore, clear that this must have been an
error on the part of the Commissioner.”
[21]
Similarly, in the present instance, the
attestation clause in question forms part of a pre-typed affidavit,
which I accept was placed
before the commissioner of oaths and did
not emanate from him.
[22]
In
Capriati
v
Bonnox
(Pty) Ltd and Another
,
[8]
the
court was called upon to consider whether an affidavit, which made
specific reference to the deponent being an adult female,
was invalid
in circumstances where the commissioner of oaths omitted to identity
the gender of the deponent in the attestation
clause.
In
considering the court’s discretion arising in such matters, the
court stated,
inter
alia
with reference to
Absa
Bank v Botha NO
,
as follows:
“
[6]
The decision was handed down in the context of a summary judgment
application which, if granted by a court, brings finality
to
litigation as an extraordinary procedural step. It is important to
emphasize, as the judge noted, that the court is vested with
a
discretion to refuse an affidavit which does not comply with the
Regulations. The corollary, in my view, is that a court is vested
with a discretion to condone noncompliance with the Regulations
and to admit an affidavit.
[7]
In Lohrman v Vaal Ontwikkeling
1979
(3) SA 391
(T),
a full bench of this Division, dealt with, amongst others, the
question of substantial compliance with the regulations governing
attestation of affidavits in the context of an application for
summary judgment. Nestadt J said at page 398E-H- 399A:
"I
should have mentioned that the commissioner is described as
being a practising
attorney…it seems to me that where an attorney (who is an
officer of this Court) describes the statement
as being a "beedigde
verklaring", it can and must be accepted that it was sworn to on
oath. To require that, in addition
to these words, there should again
in conjunction with "geteken" be added the word "beedig"
would be to insist
on an unnecessary duplication of allegations.
Even,
however, if this approach be insufficiently formalistic, it
nevertheless seems to me that the document in question is an
affidavit. It is now settled (at least in the Transvaal) that the
requirements as contained in regs 1,2, 3 and 4 are not peremptory
but
merely directory; the Court has a discretion to refuse to receive an
affidavit attested otherwise than in accordance with the
regulations
depending upon whether substantial compliance with them has been
proved
or
not (S v Msibi
1974
(4) SA 821
(T
)).
In Ladybrand Hotels v Stellenbosch Farmers' supra a similar
conclusion was arrived at. In that case the admissibility
of an
affidavit was attacked on the basis that the certification did not
state that the deponents' had signed it in the presence
of the
commissioner of oaths. It was held that the maxim omnia
praesumuntur rite essa acta applied, that there was an onus on
the person who disputes the validity of the affidavit to prove by
evidence the failure to comply with the prescribed formalities
and
that in the absence of such evidence the objection taken failed. In
any event, it was held that if the affidavit was defective
it should
be condoned.
lt
is of course a question of fact in each case whether there has been
substantial compliance or not."
[23]
The
court, at paragraph [8] went on further to state:
"In
the present matter there is no evidence that the founding affidavit
was not sworn to properly except for an allegation
that the omission
indicating the correct pronoun "she" should lead to an
inference that the founding affidavit was not
properly commissioned.
The founding affidavit was attested to by an attorney of this court.
In the absence of evidence to the contrary,
this court accepts that,
the attorney who attested the affidavit of the applicant, who
happens to be an advocate of this court,
complied
substantially with the regulations save for failing to make a
deletion indicating the gender of the applicant.”
[24]
I
see no reason why the same rationale ought not to be applied in the
present instance, where the deponent herself is an attorney
of this
court.
[25]
The
deponent to the affidavit in question is the applicants’
attorney of record, who describes herself as “
an
adult female attorney
”.
Absent any evidence to the contrary, and due regard being had to the
above authorities, I accept that an attorney, when
deposing to an
affidavit, will do so cognisant of, and in compliance with, the
requirements set out in the Regulations. It, of
necessity, follows
that the reference to the deponent as “he” was no more
than an oversight on behalf of the commissioner
of oaths, having been
presented with the typed affidavit.
[26]
On
the facts of the present matter, and in the exercise of my
discretion, I see no compelling reason to depart from the maxim
omnia
praesumuntur rite essa acta
,
and accordingly, the objection to the affidavit must fail.
Costs
[27]
The first respondent complains that the
applicants have been persistently dilatory in the conduct of the
application, warranting
an order of costs on a punitive scale.
[28]
On the other hand, it was submitted from
the bar, on behalf of the applicants, that: (1) they are lay persons;
(2) they would undoubtably
have had difficulties in obtaining legal
representation; and (3) in any event, the applicants had taken heed
of the court’s
advice to obtain legal representation,
regardless of whether or not they were able to proceed with argument
on the date allocated
for same. With this in mind, it was argued on
behalf of the applicants, that a punitive order as to costs would not
be appropriate.
[29]
At this juncture, I am constrained to
mention that the applicants elected not to tender an explanation,
under oath, in respect of
the aforesaid. The only explanation before
me, is that of the applicants’ attorney of record, which I deal
with in detail
later.
[30]
Generally,
a party whose conduct gives rise to the postponement of a matter must
pay the wasted costs occasioned thereby.
[9]
[31]
In
Sublime
Technologies (Pty) Ltd v Jonker and Another
,
[10]
it was held at paragraph [3] as follows:
“
With
regard to costs occasioned by a postponement, the general rule is
that the party which is responsible for a case not proceeding
on the
day set down for hearing must ordinarily pay the wasted costs...
”
[32]
Having
said that, the award of costs is an issue within the discretion of
the court. In considering the court’s discretion,
it was held
in
Fripp
v Gibbon & Co
[11]
that:
“
the
law contemplates that
[the Judge]
should take into consideration the
circumstances of each case, carefully weighing the various issues in
the case, the conduct of
the parties and any other circumstance which
may have a bearing upon the question of costs, and then make such
order as to costs
as would be fair and just between the parties
.”
[33]
In
Plastic
Converters Association of South Africa on behalf of members v
National Union of Metalworkers of SA
,
[12]
which was cited with approval by the Constitutional Court in
Limpopo
Legal Solutions v Vhembe District Municipality
,
[13]
it was held, in the context of non-constitutional matters, that:
“
[t]he
scale of attorney and client is an extraordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible
conduct. Such an award is exceptional and is intended to
be very
punitive and indicative of extreme opprobrium.
[34]
In
Nel
v Davis SC N.O.
[14]
the court, in relation to attorney and client costs, held that:
“
A
costs order on an attorney and client scale is an extra-ordinary one
which should not be easily resorted to, and only when by
reason of
special considerations, arising either from the circumstances which
gave rise to the action or from the conduct of a
party, should a
court in a particular case deem it just, to ensure that the other
party is not out of pocket in respect of the
expense caused to it by
the litigation.
”
[35]
The
learned authors, Cilliers and Loots, and Nel, of
Herbstein
and Van Winsen: Civil Practice of the High Courts of South
Africa,
[15]
set out, by way of example, that:
“
Attorney-and-client
costs may be awarded on the grounds of an abuse of the process of
court; vexatious, unscrupulous, dilatory,
or mendacious conduct on
the part of the unsuccessful litigant;… reprehensible or
blameworthy conduct; an attitude towards
the court that is deplorable
and highly contemptuous of the court; conduct that smacks of
petulance, and that is vexatious and
an abuse of the process of the
court;… as a mark of the court’s disapproval of some
conduct that should be frowned
upon…
”
[36]
Turning to the facts at hand, the only
explanation before this court, is a narration of events as from 9
June 2022, as set out by
the applicants’ attorney of record.
The relevant portions of the affidavit read as follows:
“
3.
On 9 June 2022 I was approach (sic) by the Applicants to represent
them on the matter as their previous
attorney withdrew. I took
instructions and requested the Applicants to collect all the relevant
documents relating to the matter
so that I can peruse before a
preparatory consultation.
4.
On or about 4 July 2022 I received the documents from the Applicants
but could not consult
with them due to the fact that some of the
Applicants opted to seek legal services elsewhere and there was a
division amongst themselves.
5.
On 6 July 2022 while reading the papers I realised that I do not have
adequate time to prepare due to
the fact that I needed to apply my
mind properly on the papers and then consult with each and every one
of the applicants that
I am representing.
6.
On 18 July 2022, I met with the Applicants save for the 4
th
Applicant who was not present and they formally instructed me in this
matter, I then contacted the legal team of the 1
st
Respondent to seek a postponement by agreement. The clients were
prepared to tender costs as the court procedure states that who
seeks
postponement (sic) bears the costs, however we could not reach such
agreement.
7.
On 21 July 2022 I filed and serve (sic) notice of acting. I also
required the services of
a Counsel, however I have not furnished him
with the papers of this matter.
9.
I seek a postponement in order to consult with all the Applicants in
order to consult with
a Counsel. The Respondent will not suffer any
prejudice by the postponement, however the Applicant’s will be
prejudice (sic)
and this court ought to balance the suffering that
will be caused if the Applicant’s (sic) case is not heard.
”
[37]
Given
that the applicants’ attorney of record consulted with the
applicants
[16]
on 18 July
2022, I fail to understand the need for a further consultation as
contended for in paragraph 9 of the affidavit (nor
is such need
explained). This is particularly so in circumstances in which the
proverbial die has been cast in that papers have
already been
exchanged; heads of argument have been filed, in accordance with the
Rules of Court; and the matter is ripe for hearing.
[38]
In essence, the essential basis upon which
the postponement is sought, is founded upon the applicants’
inability to have prepared
for argument of the matter given the late
engagement of their attorney of record.
[39]
Counsel appearing on behalf of the
applicants was unable to provide the court with an explanation as to
what had occurred, between
30 June 2021, being the date on which the
applicants’ erstwhile attorney of record withdrew, and 9 June
2022, being the date
on which the applicants approached their present
legal representative.
[40]
This is a period of almost one year, which
is unaccounted for. In the absence of an explanation, the only
inference that can be
drawn is that the applicants did little, if
anything, to obtain legal representation during this period.
[41]
The lack of explanation is exacerbated by
the fact that the applicants are silent on why legal representation
was not obtained prior
to the hearing of the matter on 24 February
2022, and why adequate steps were not taken to ensure that the matter
could proceed
on 21 July 2022, having personally agreed to the date
some five months prior, and having been expressly warned to do so
timeously,
by Beshe J.
[42]
The account of events is lacking in detail
as to what transpired between 9 June 2022 and 4 July 2022, and more
particularly, it
offers no clarity as to the delay in providing their
attorney of record with the relevant documentation, which had been
requested
some three and a half weeks prior.
[43]
Strikingly apparent from the affidavit is
that as early as 6 July 2022, being three weeks prior to the hearing
of the matter, the
applicants’ attorney had concluded that the
matter would not be able to proceed on 21 July 2022. Notwithstanding
such determination,
an informal request for postponement was only
forthcoming 3 court days prior to the hearing of the matter, and when
same was refused,
an affidavit in support of an application for
postponement, absent a notice of application, was signed on the day
of the hearing
and handed up in court from the bar. The reasons for
such delay are not sufficiently explained and are no more than an
extension
of the previous dilatory approach of the applicants to the
litigation, which in the context of the present matter, deserves the
court’s censure.
[44]
I do not intend reiterating the trite legal
principles in respect of postponement applications, suffice to state
that they are not
for the mere asking; that an applicant is enjoined
to fully explain the reason for his unpreparedness, in order to
satisfy the
court that his unreadiness is not a delaying tactic; and
that such application ought to be brought as soon as the
circumstances,
which might justify such a postponement become known
to the applicant.
[45]
With respect, not only have the applicants
merely paid lip-service to the aforesaid, but their impetus to pursue
the application
to completion is self-evident from the timeline of
events and the applicants’ continued inaction.
[46]
Having considered all of the above, I am
satisfied that the conduct on behalf of the applicants is such that
warrants an order as
to costs on a punitive scale. I see no reason as
to why the first respondent ought to be out of pocket in respect of
the postponement
of the matter on 21 July 2022.
[47]
I have already granted an order for
postponement of the matter to 19 January 2023, and accordingly, the
following order shall issue:
1.
The applicants are jointly and severally
ordered to pay the first respondent’s costs occasioned by the
postponement, on the
scale as between attorney and client.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Third; Fourth; Seventh;
Eighth;
and Nineth applicants: Adv
Mzamo
Instructed
by:
Mgangatho Attorney
100 High Street, Makhanda
For
the First Respondent:
Adv Gaisa
Instructed
by:
Zilwa Attorneys
Office No. 3, 41 African
Street, Makhanda
[1]
The
fourth, seventh, and eighth applicants were present in person,
whilst the first respondent was legally represented.
[2]
Whilst
the Notice of Filing, in respect of the first respondent’s
answering affidavit, is dated 30 April 2021, it does not
contain a
receipt stamp from the offices of the first respondent’s
attorney of record.
[3]
I
make mention of the fact that the said notice is not compliant with
the provisions of Uniform Rule 16(4)(a), read with Rule
7(a) of the
Joint Rules of Practice for the High Courts of the Eastern Cape
Province.
[4]
Promulgated
in Government Gazette 3619, Government Notice R1258 of 21 July 1972,
as amended by Government Notice R1648 of 19 August
1977, Government
Notice R1428 of 11 July 1980 and Government Notice R774 of 23 April
1983.
[5]
2013
(5) SA 563.
[6]
At
paragraph [3].
[7]
Unreported
judgment by Coltman AJ, (1606/20) [2021] ZAECMHC 6 (28 January
2021).
[8]
Unreported
judgment of Petersen AJ, (101816/2016) (2018] ZAGPPHC 345 (10 May
2018).
[9]
See
Ferreira
v Levin N.O.; Vryenhoek v Powell N.O
.
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR 441
(CC) at para
3;
Abbott
v Von Theleman
1997 (2) SA 848
(C) at 854B; and
Mahlangu
v De Jager
1996
(3) SA 235
(LCC) at 246C-E
[10]
2010
(2) SA 522 (SCA).
[11]
1913
AD 354
at 363.
[12]
[2016]
ZALAC 39
, [2016] 37 ILJ 2815 (LAC).
[13]
[2017]
ZACC 14; 2017 (9) BCLR 1216 (CC).
[14]
2016
JDR 1339 (GP).
[15]
5
th
Edition at p 973.
[16]
Save
for the fourth applicant.