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[2022] ZAECMHC 44
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Member Of The Executive Council: Responsible For Health In The Eastern Cape v Caka; In re: Caka v Member Of The Executive Council: Responsible For Health In The Eastern Cape (4947/2017) [2022] ZAECMHC 44 (22 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Case No.: 4947/2017
In the matter between:
THE MEMBER OF THE
EXECUTIVE COUNCIL:
RESPONSIBLE FOR HEALTH
IN THE EASTERN
CAPE
Applicant
and
LUNTUKAZI
CAKA
Respondent
IN RE:
LUNTUKAZI
CAKA
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE COUNCIL:
RESPONSIBLE FOR HEALTH
IN THE EASTERN
CAPE
Defendant
JUDGMENT
CHITHI AJ:
Introduction
[1]
This is an application in which the applicant who is the defendant in
the main action seeks
condonation for the late delivery of its notice
in terms of
r
ule 30 (2) (
b
)
and the late delivery of its application in terms of
r
ule
30(1) of the Uniform Rules of Court (‘The Ruleś’)
This application was set down simultaneously with the application
in
terms of rule 30(1).
[2]
The respondent who is the plaintiff in the action is resisting the
application on a number
of grounds including
inter alia
that
(a) the application was made out of time; (b) the purported notice in
terms of the provisions of
r
ule 30
(2)(
b
) does not comply with the
provisions of the
r
ule as it does not
stipulate what steps the plaintiff ought to have taken and what the
consequences would be in the event of her
not taking any such steps
and that the irregularities complained of are those related to
substance rather than form.
[3]
At the commencement of the proceedings both parties agreed that if
this court was not inclined
to grant condonation it would be
unnecessary to pronounce on the application in terms of
r
ule
30(1).
[4]
It would now be apposite to divert and refer specifically to the
provisions of
r
ule 30 which provide as
thus:
“
30
Irregular Proceedings
(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 fifteen days after the expiry
of the second period mentioned in paragraph (
b
) of subrule
(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.
…”
The factual background
[5]
On 24 October 2017 the respondent issued summons out of this Court
commencing an action
for the delictual damages arising from medical
negligence at All Saints Hospital at eNgcobo where the
p
laintiff
was admitted in order to give birth.
[6]
The applicant delivered its notice of intention to defend the action
on 04 December 2017.
On 05 December 2017 the applicant delivered a
notice in terms of
r
ule 30 (2((
b
)
setting out fourteen causes of complaint which it alleged constituted
an irregular step. However, what the applicant’s notice
in
terms of
r
ule 30 (2)(
b
)
glaringly omitted was to call upon the respondent to remove the
causes of complaint within ten days as contemplated in terms of
the
r
ule. The notice further omitted to
caution the respondent what the consequences would be in the event of
her failure to remove the
causes of complaint. The consequences of a
failure to remove the causes of complaint which must be specifically
spelt out in the
notice in terms of
r
ule
30 (2) (
b
) is an application in
terms of
r
ule 30 (1), which must be
instituted within fifteen days after the expiry of the ten-day period
within which the causes of complaint
ought to have been removed.
[7]
The respondent did not react in any manner whatsoever to this notice
in terms of
r
ule 30 (2) (
b
),
quite understandably in my view in that she was never called upon to
remove the causes of complaint, which means, when simply
put, she was
never afforded an opportunity to correct what the applicant
considered to be incorrect.
[8]
On 23 January 2018, the applicant instituted an application in terms
of
r
ule 30(1) of the rules
inter alia
for the setting aside of the
r
espondent’s
particulars of claim as constituting an irregular step
together with other ancillary orders including an order affording the
r
espondent a period of 10 days following
the service of the order upon her to deliver her amended particulars
of claim as well as
an order that the respondent be ordered to pay
the costs of the application.
[9]
On 30 January 2018 the respondent delivered a notice of her intention
to oppose the application.
On 13 February 2018 the matter was set
down on the unopposed roll. However, in the applicant’s
instance, the matter was removed
from the roll with the applicant
being ordered to pay the wasted costs occasioned by the adjournment.
On 22 February 2018 the applicant
applied for a date on the opposed
roll for the hearing of the application in terms of
r
ule
30 (1). On 08 March 2018 the applicant delivered a notice of set down
of the
r
ule 30 (1) application setting
the matter down on the opposed roll for 10 May 2018. Confronted with
the application in terms of
r
ule 30 (1)
on the 09 May 2018 the respondent delivered heads of argument.
[10]
For the present purposes it only suffices to mention the points which
are raised
in limine
in those heads of argument. The
r
espondent contends that in terms of the
provisions in
r
ule 30(2) an application
may only be made if the applicant has, within 10 days of becoming
aware of the irregular step afforded
the other party the opportunity
of removing the cause of complaint within 10 days and the application
is delivered within 15 days
after the expiry of the 10-day period.
[11]
The respondent goes on to argue that in the present matter the
applicant’s initial notice was served
on 5 December 2017 and
the 10-day period therefore lapsed on the 19 December 2017 and the
application therefore had to be filed
on or before 12 January 2018
which the applicant had failed to do. The respondent further argues
that the application is fatally
flawed in that the applicant’s
purported notice in terms of the provisions of
r
ule
30 (2)(
b
) does not comply with
the provisions of the
r
ule in that it
does not stipulate what steps the respondent ought to have taken and
what the consequences would be in the event
of her not taking such
steps.
[12]
It is trite
that the time periods which are referred to in
r
ule
30 must be strictly adhered to.
[1]
The applicant having chosen to give notice objecting to the way the
respondent’s particulars of claim were couched, it was
required
to do so strictly in accordance with the rule of court which was
applicable namely,
r
ule
30 (2)(
b
)
by affording the respondent 10 days within which to rectify the
causes of complain so identified. The applicant did not do so
and
consequently its notice in terms of
r
ule
30 (2)(
b
)
cannot be seen as anything but is on its own an irregular step. The
r
espondent
further contended that since the application was instituted out of
time such an application had to be dismissed without
any further ado
where no condonation was sought.
[2]
[13] On
10 May 2018 the matter was adjourned
sine die
with the
a
pplicant being ordered to pay the
wasted costs occasioned by the adjournment including the costs of the
employment of two counsel.
Confronted with these legal difficulties
the applicant was constrained to institute an application for
condonation for the late
delivery of its application in terms of
r
ule
30 (1) which application it duly delivered on 11 May 2018. For the
purposes of this judgment what happened after the delivery
of the
applicant’s application for condonation is unnecessary and
therefore would not be ventured into.
Applicable
l
egal
p
rinciples on a
c
ondonation
a
pplication
[14]
Now turning to the issue of the applicant’s condonation
application, it is important to first identify
the legal principles
applicable to such an application.
[15] In
accordance with the provisions of
r
ule
27 (1) of the
R
ules, this
C
ourt
may in the absence of an agreement between the parties, upon
application on notice and on good cause shown, make an order
extending or abridging any time period prescribed by the
R
ules
or by an order of court or fixed by an order extending or abridging
anytime for doing any act or taking any step in connection
with any
proceedings of any nature whatsoever upon such terms as to it seems
meet.
[16]
The approach which the courts have always taken in determining
whether good cause has been shown is the one
which was enunciated by
Holmes JA where the following was stated:
‘
I
n
deciding whether sufficient cause has been shown, the basic principle
is that the
[c]ourt
has a discretion
,
to be exercised judicially upon a consideration of all the facts
,
and in essence
it
is a matter
of
fairness
to both sides. Among the facts usually relevant are the degree of
lateness, the explanation therefo
r
,
the prospects of success, and the importance of the case. Ordinarily
these facts are inter-related
:
they are not individually decisive, for that would be a piecemeal
approach incompatible with a true discretion
...
’
[3]
[17]
The factors
which are usually weighed by the court in considering applications
for condonation were restated in the matter of
Federated
Employers Fire Co. and General Insurance Co. Ltd & Another v
McKenzie
[4]
to include the degree of non-compliance, the explanation therefore,
the importance of the case, the prospects of success, the
respondent’s interest in the finality of his judgement, the
convenience of the
c
ourt
and the avoidance of unnecessary delay in the administration of
justice.
Condonation is not
there for the mere asking
[18]
It is trite
that condonation is not there for the mere asking.
[5]
A party is required to make out a case entitling it to the court’s
indulgence. It must give a full, detailed, and accurate
account of
the causes of the delay covering the entire period of the delay.
[6]
Where the delay is due to the intentional disregard, indifference or
gross negligence of party’s legal representatives, condonation
may be refused.
[7]
In the end,
the explanation for the delay must be reasonable enough to excuse the
default.
[8]
Condonation
application must be filed without unreasonable delay
[19]
Condonation
should be applied for without delay when a litigant becomes aware
that condonation is required.
[9]
In
SA
Express Ltd v Bagport (Pty) Ltd
[10]
although in the context of an appeal Plasket JA re-affirmed this
trite position and confirmed that an appellant should whenever
he
realises that he has not complied with a Rule
of
Court apply for condonation as soon as possible.
[20] As
much as the
a
pplicant’s attorneys
must have realised that the application in terms of
r
ule
30 (1) was out of time they failed to bring the application as soon
as possible as would have been expected of prudent attorneys.
They
waited to be prompted by the respondent’s heads of argument
which were delivered on 09 May 2018 with the matter having
been set
down for hearing on 10 May and only on 11 May did they institute the
application for condonation for the late filing of
their notice in
terms of
r
ule 30 (2)(
b
)
and application in terms of
r
ule 30 (1).
[21]
What
compounds the applicant’s position is that despite having been
prompted by the respondent’s heads of argument which
were
delivered on 09 May 2017 that condonation was a pre-requisite, the
applicant persists in its replying affidavit that the respondent’s
insistence to the filing of the condonation application was
unreasonable.
[11]
The
applicant persisted with this contention despite having been referred
to reported cases emanating from this division which
make the
position abundantly clear that condonation is a pre-requisite.
[12]
Conduct of
representatives
[22]
In
Saloojee
[13]
Steyn CJ stated the following in relation to delays occasioned at the
instance of legal representatives:
‘
I should point
out, however, that it has not at any time been held that condonation
will not
in
any circumstances be
withheld if the blame lies with his attorney. There is a limit beyond
which a litigant cannot escape the results
of his attorney’s
lack of diligence or the insufficiency of the explanation tendered.
To hold otherwise might have
a
disastrous effect
up
on the
observance of the Rules of this Court. Considerations
ad
misericordiam
should not be allowed to become an invitation to
laxity. In fact, this Court has lately been burdened with an undue
and
increas
ing
number of applications for condonation in which the failure to
comply with the Rules of this Court was due to neglect on the part
of
the attorney. The attorney, after all
,
is the representative whom the litigant has chosen for himself
,
and there is little reason why, in regard to condonation of a failure
to comply with a Rule of Court, the litigant should be absolved
from
the normal consequences of such a relationship, no matter what the
circumstances
of the failure are.’
[23]
In
Finbro
Furni
shers
(Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others
[14]
Hoexter JA also re-emphasised the oft-repeated judicial warning that
there is a limit beyond where a litigant cannot escape the
results of
his attorney’s lack of diligence or the insufficiency of the
explanation tendered.
[24]
What lies at the centre of this application are delays which were
occasioned either by the office of the
state attorney in dispatching
the summons and the particulars of claim in this matter to the
applicant’s attorneys, and/or
by the members of the staff in
the offices of the applicant’s attorneys in forwarding the
relevant files with the summons
and particulars of claim to the
relevant attorneys in the offices of the applicant’s attorneys
and/or the attendance of this
matter by the relevant attorneys and
senior partners in the offices of the applicant’s attorneys
after the relevant files
were forwarded and allocated to them. It
would therefore be fitting of me also to echo the oft-repeated
judicial warning that there
is a limit beyond which a party cannot
rely on their legal representative’s lack of diligence or
negligence.
[25]
These are therefore the lenses through which I must consider this
application when exercising my discretion
on whether to grant
condonation for the late delivery of the applicant’s notice in
terms of
r
ule 30 (2)(
b
)
as well as an application in terms of
r
ule
30 (1). I am cognisant that these factors are not individually
decisive but are inter-related and must be weighed against each
other. I now turn to consider each of the factors.
The length of the
delay
[26]
The applicant delivered its notice of intention to defend the matter
on 04 December 2017 and its notice in
terms of
r
ule
30 (2)(
b
) was delivered on 05
December 2017. The applicant contends that if its notice in terms of
r
ule 30 (2)(
b
)
was held not to have been delivered timeously, with the period within
which it ought to have been delivered reckoned from the
date of issue
of summons then the application would only be six days late. I do not
understand that to be the respondent’s
gripe with the notice.
The respondent’s gripe with the notice is in relation with the
regularity of the notice. I am
therefore prepared to assume in
the applicant’s favour that its notice in terms of
r
ule
30 (2)(
b
) was timeously delivered
and only to that extent the applicant did not need to apply for
condonation.
[27]
However, that does not bring an end to the applicant’s
difficulties. The question is, was the
applicant’s notice in
terms of
r
ule 30 (2)(
b
)
regular and prepared strictly in accordance provisions of
r
ule
30. In order to answer that question, I am constrained to have to
examine the applicant’s notice in terms of
r
ule
30 (2)(
b
) and whether it complied
with clear and strict provisions of
r
ule
30 as the applicant either in the papers before me or during argument
Solomonically avoided to address that issue. In my considered
view
the applicant’s notice in terms of
r
ule
30 (2)(
b
) was not regular and
prepared strictly in accordance provisions of
r
ule
30. To bring the applicant’s notice in terms of
r
ule
30 (2)(
b
) within the purview of compliance with
r
ule
30 it should have concluded as follows:
“
NOW THEREFORE
in terms of Rule 30 (2)(b) the Defendant affords the Plaintiff an
opportunity of removing the causes of complaint
within (10) ten days
after the delivery of this notice. TAKE NOTICE FURTHER THAT should
the Plaintiff fail to remove the causes
of complaint within the
period stipulated above, the Defendant will apply to the above
Honourable Court for an order that the Plaintiff’s
particulars
of claim
dated 23 October 2017
be set aside in terms of Rule 30 (1).”
[28] As
I said before, the applicant’s failure in its notice in terms
of
r
ule 30 (2)(
b
)
to afford the respondent an opportunity of removing the causes of
complaint within ten days and to warn her of the consequences
of not
removing such causes of complaint should have been the end of the
matter as such notice itself would constitute an irregular
step
susceptible to be set aside. In my view it was completely unwise of
the applicant’s attorneys to persist with this application
on
the face of this glaring omission on the applicant’s notice in
terms of
r
ule 30 (2)(
b
)
and to allow what is primarily a minor child’s claim to be
delayed for more th
an
four years. I
highly doubt that the applicant’s application in terms of
r
ule
30(1) even if it was not opposed would have succeeded or granted with
such a glaring omission in the notice in terms of
r
ule
30 (2)(
b
). On this point alone it
would have been enough of me to refuse condonation and dismiss this
application with costs. However, I
would proceed to consider other
factors which are relevant in the determination of an application for
condonation.
[29] On
23 January 2018 the applicant instituted an application in terms of
rule 30(1) of the Rules. The parties
are not consonant on when was
the applicant required to have instituted its application in terms of
ru
le 30(1). The applicant contends that
the fifteen-day period within which the applicant had to institute
the
r
ule 30(1) application began to run
on 20 December 2017 and the application ought to have been instituted
on 15 January 2018. The
respondent on the other hand contended that
the fifteen-day period within which the applicant had to institute
the
r
ule 30(1) application began to run
on 19 December 2017 and the application ought to have been instituted
on 12 January 2018. The
applicant’s calculation is with respect
incorrect. I am therefore in agreement with the respondent that the
r
ule 30(1) application ought to have
been instituted on or before 12 January 2018. The applicant’s
application was only
delivered on the 23 January 2018.
[30]
The applicant contends that it was merely six days late in the
delivery of its application in terms of
r
ule
30 (1) and submits that this is not a significant delay and any such
delay was not prejudicial to the respondent. This delay
whether it
was six days or more must be considered together with other factors
in particular the explanation for the delay, the
applicant’s
prospects of success, prejudice and most significantly the
respondent’s interest in the finality of her
judgement, the
convenience of the
c
ourt and the
avoidance of unnecessary delay in the administration of justice. It
would be amiss of me if I were to only consider
this period of six
days or more which has been described as insignificant and not to
have regard to the prejudice which has been
caused to the respondent
and the unnecessary delay which has been caused in the adjudication
of this matter on its merits which
could have been avoided, had the
applicant been willing to take a careful look at the rule 30 (2)(b)
notice. What would have been
an insignificant delay has resulted in
this matter being delayed for more than four years merely because
what ought to have been
done within the prescribed time periods was
not done by the applicant. Consequently, I cannot ignore the time
period which has
lapsed pursuant to the applicant’s application
in terms of
r
ule 30 (1) having been
instituted more particularly if the application was instituted solely
for the purposes of delay.
[31] In
looking at the length of the delay I am also obliged to consider the
period between the service of the
summons upon the office of the
state attorney on 30 October 2017 and when the applicant’s
notice in terms of
r
ule 30 (2)(
b
)
was delivered on 05 December 2017. The time period before the
delivery of the applicant’s notice in terms of
r
ule
30 (2)(
b
) is relevant in order to
suss the applicant’s attitude towards the respondent’s
claim. So too is the period after the
institution of the application
in terms of
r
ule 30 (1). Had this period
pre and post the delivery of the applicant’s notice in terms of
r
ule 30 (2)(
b
)
and the applicant’s application in terms of
r
ule
30(1) been irrelevant it would not have been ventilated in the
applicant’s affidavit.
[32]
Inordinate
delays in litigation no doubt have serious repercussions for all who
are involved in the litigation. These repercussions
were aptly
adumbrated by Didcott J, although in a different context in
Mohlomi
v Minister of Defence
[15]
as thus:
‘
In
ordinate
delays in litigating damage the interests of justice. They protract
the disputes over the rights and obligations sought
to be enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
in the end it is always possible to adjudicate
satisfactorily on
cases that have gone stale. By then witnesses may no longer be
available to testify. The memories of ones whose
testimony can still
be obtained may have faded and become unreliable. Documentary
evidence may have disappeared. Such rules prevent
procrastination and
those harmful consequences
of
it.’
[33]
Although Didcott J said this in a different
context and that context having been in relation to the notices which
have to be given
before the institution of any litigation against
state entities, his
dictum
is equally apt in this case and
in any other case for that matter. This
dictum
specifically speaks to the prejudice
which is suffered by all in litigation. I imagine that the prejudice
inordinate delays in matters
involving minor children allegedly born
with cerebral palsy must be suffering is quite severe. This must be
very distressing for
care givers of such minor children. For they may
have to live with the anxiety of not knowing whether the disabled
minor child
will live to see another day.
[34]
Back now to the time periods. The period between the service of the
summons upon the office of the state
attorney on 30 October 2017 and
15 November 2017 is not accounted for. Ms Fundiswa Ncula who deposed
to a confirmatory affidavit
on behalf of the applicant simply alludes
to the fact that on 07 and 08 May 201
8
r
espectively she tried to contact the offices of the state
attorney telephonically to ascertain the reason for the delay in
sending
the summons and particulars of claim to the applicant’s
attorneys, however, her call went unanswered on both days.
[35]
The other period which is unaccounted for is the period between the
15 and 30 November 2017. In relation
to this time period Ms Ncula
asserts that the summons and particulars of claim w
ere
received by the applicant’s attorneys on the 15 November 2017
as this is apparent from the covering letter from the office
of the
state attorney, dated 14 November 2017, and enclosing summons in 46
matters including this one. She further asserts that
she received
instructions from the Senior Manager: Legal Services, Mlungisi Mlambo
to forward the summons and particulars of claim
to the attorneys in
the office of the applicant’s attorneys on 30 November 2017,
which she did on the same day. This was
the first time that the
summons and particulars came to her attention. She checked the
records of the office of the applicant’s
attorneys, and there
is no indication of what happened to the summonses and particulars of
claim between 15 and 30 November 2017.
Once again, this time period
which is of critical importance is not accounted for by the
applicant.
[36] At
the risk of speculating, I surmise that part of the reasons why the
consortium involving the applicant’s
attorneys was tasked to
handle this kind of litigation on behalf of the applicant was to
ensure efficient management of this litigation.
One would then be
left to wonder if what happened in this matter indeed amounts to an
efficient management of this kind of litigation.
The explanation for
the delay
[37] As
I said before there has been no explanation for the period between 30
October 2017 to 14 November 2017
when the summons was served upon the
offices of the state attorney up to the time when the summons and the
particulars of claim
were dispatched to the applicant’s
attorneys to attend to this matter and 45 other matters. There is
also no explanation
for the period between the 15 and 30 November
2017. The only explanation which has been proffered is in relation to
the period
between 30 November 2017 and 23 January 2018.
[38] It
is not in dispute that the applicant’s notice in terms of
r
ule
30 (2)(
b
) was delivered on 05
December 2017. What this means is that the respondent had ten days to
remove the causes of complaint, had
the notice not been defective,
reckoned from 06 December 2017. This ten-day period would have lapsed
on 19 December 2017. The fifteen-day
period within which the
applicant had to institute its application in terms of
r
ule
30(1) therefore commenced to run on 20 December 2017. The applicant
has not indicated how it has calculated the
dies
for it to
conclude that the
r
ule 30(1) application
ought to have been instituted on 15 January 2018. If the fifteen-day
period is reckoned from 20 December 2017,
fifteen days would have
lapsed on 12 January 2018.
[39]
The applicant asserts that the period between 19 December and 16
January is regarded as
dies non
for pleadings and although it
does not apply to other notices, unless the matter is urgent, general
cognisance is taken of the
fact that this period is in recess when
many attorneys’ offices are closed. In that regard the deponent
to the applicant’s
affidavit was advised by her correspondent
attorneys (in a different matter) that many of the firms in the
Eastern Cape were closed
for Christmas holidays and that they were
experiencing difficulties serving documents. This is far from being
correct as this period
only applies in respect of notices of
appearance to defend and to oppose; and not to pleadings and other
notices of the like nature.
[40]
The
deponent to the
a
pplicant’s
affidavit refers to a senior partner who was responsible for the
matter only having returned on 11 January 2018.
However, and quite
conspicuously she does not mention who this senior partner was nor
did she cause this senior partner to depose
to a confirmatory
affidavit to confirm what the deponent states. To that end I am
constrained to have to reject these assertions
as nothing but
inadmissible hearsay evidence. It is trite that a confirmatory
affidavit is necessary where a deponent refers to
crucial evidence
originating from another person.
[16]
What further exacerbates the applicant’s difficulties is that
if one considers the
r
ule
30(1) application it is a replica of the applicant’s notice in
terms of
r
ule
30 (2)(
b
).
The only difference is what constitutes the face of the application
and the end of the application. The portion which is the
face of the
application comprises what constitutes the order sought. It
constitutes the first page and goes up to half of the second
page.
What is then contained from half of page two up to half of page 16 is
the replica of the grounds as contained in the applicant’s
notice in terms of
r
ule
30 (2)(
b
).
Then half of page 16 constitutes the ending of the application. Page
17 sets out the addresses of the attorneys and that of the
Registrar.
Effectively three pages had to been drawn up and superimposed on what
was a notice in terms of
r
ule
30 (2)(
b
).
The deponent to the applicant’s affidavit should have been able
and could easily have prepared the
r
ule
30(1) application and had it delivered on or after 20 December 2017
as she was required in terms of
r
ule
30 (2)(
b
)
but chose not to do so. Alternatively, the deponent to the
applicant’s affidavit must have been able and could easily have
prepared the
r
ule
30(1) application without the intervention of a senior partner, and
had it delivered on or before 15 January 2018 which she
contends was
the date the
r
ule
30(1) application ought to have been instituted. She chose not to do
so.
[41]
Further and in any event with all things being equal in view of the
simple task which had to be performed
the deponent was well within
her rights pursuant to the return of the senior partner on 11 January
2018 to prepare the
r
ule 30(1)
application as there was nothing much to be done and have it
presented to the senior partner for his or her consideration
after
hours. As if that was not enough the deponent to the applicant’s
affidavit does not say that her correspondent attorneys
attempted
service upon the respondent’s correspondent attorneys and found
the offices closed. In my considered view what
has been proffered as
an explanation does not amount to a reasonable, acceptable, and
satisfactory explanation. Accordingly, I
reject such explanation.
Prospects of success
[42]
The prospects of success are immaterial if no reasonable and
acceptable explanation has been provided for
the delay. Equally if
there are no prospects for success, no matter how good the
explanation for the delay, an application for
condonation should be
refused.
[43] If
one considers the fact that the applicant’s notice in terms of
r
ule 30 (2)(
b
)
is defective as it was not done strictly in compliance with
r
ule
30 as it does not afford the respondent an opportunity of removing
the causes of complaint within ten (10) days, this simply
means that
the applicant has no prospects of succeeding in its application in
terms of
r
ule 30(1) or put differently
never stood any chance of having the application granted by the court
even if it was not opposed. Consequently,
the notice itself is
irregular. In the circumstances there would have no need whatsoever
for any the time to have been wasted up
to this far had the applicant
taken counsel that the notice is non-compliant. I therefore find that
this application was instituted
solely for the purposes of delay. So,
based on this ground alone the applicant does not have any prospects
of success on the merits
of the application.
[44]
When the court enquired from the applicant’s counsel as to the
respects in which the applicant would
be prevented from being able to
plead to the particulars of claim merely by a failure of the
respondent to set out what her occupation
was in the particulars of
claim. The applicant’s counsel correctly conceded that the
applicant could not possibly be prevented
from being able to plead to
the particulars of claim merely based on that omission.
[45]
While the second complaint is in relation to the summons not
disclosing that the respondent is suing in her
personal capacity and
in her representative capacity as the mother and the natural guardian
of the minor child the applicant does
not seek to have the summons
set aside. This is strange in the sense that this fact is not
disclosed in the summons and it is disclosed
in the particulars of
claim. So, if the applicant’s complaint was genuine, it should
have also sought to have the summons
set aside.
[46]
The applicant’s fourteenth complaint in essence relates to the
respondent’s claim in her personal
capacity for emotional shock
having prescribed. When the court specifically enquired from the
a
pplicant’s counsel why should
this complaint not form part of a special plea, he was not
forthcoming.
[47] If
one considers all the other the complaints those complaints relate to
substance rather than form. Since
the court has a discretion which
must be exercised judicially and on consideration of what is fair to
both sides even if the applicant’s
application in terms of
r
ule
30(1) was instituted timeously, I would have exercised my discretion
not to grant it. The applicant’s objections overall
are of a
technical nature in relation to less than perfect procedural steps
and they do not work any substantial prejudice to the
applicant.
Prejudice
[48]
There has clearly been prejudice to the respondent in this case
in that a defective notice in terms
of
r
ule
30 (2)(
b
)
which does not strictly comply with the provisions of
r
ule 30 has been allowed to hamstring and detain what is
primarily a minor child’s claim from advancing. This procedural
step
which is premised on a defective foundation was meant to compel
the respondent to correct what was perceived as defects in her own
pleadings. However, when defects were pointed out to the applicant in
this very document which contained the applicant’s
complaints
at the very early stages of the litigation, namely on 09 May 2018,
the applicant refused to backdown and fought to the
bitter end in
relation to what is glaringly obvious. This interfered with a case
which could have been
adjudicated expeditiously
and inexpensively
on its real
merits. It has resulted in what is primarily a minor child’s
claim being delayed for more than four years and
surely to the
prejudice of the disabled minor child. This kind of litigating is
unacceptable and must be condemned.
[49]
For all the reasons I have enumerated above the applicant’s
application for condonation stands to fall.
Although I have cursorily
adverted to the merits of the applicant’s application in terms
of
r
ule 30(1) under prospects of success
since, I am not inclined to grant the applicant condonation it
therefore goes without saying
that I would not proceed to consider
the merits of the application.
Costs
[50]
The general rule regarding
costs is that the costs follow the event
. I do not see
any reason why I should depart from that rule.
[51] I
enquired from the parties whether it would not be appropriate that I
should direct the applicant to deliver
its plea within a particular
timeframe, if I was not disposed to grant condonation. The
applicant’s counsel submitted that
that issue must be left out
to be dealt with in terms of the rules. The respondent’s
counsel on the other hand submitted
that I should direct the
applicant to file its plea within 20 days. In view of the delay of
more than four years since summons
were issued in this case and this
case primarily being a minor child’s claim it is in the
interests of justice that I direct
the applicant to deliver its plea
within 20 days from the date of this judgment.
Order
[52] In
the result, I make the following order:
(a) The
application for condonation is dismissed with costs.
(b) The
applicant is directed to deliver its plea within 20 days from the
date of this judgment.
M. M. CHITHI
ACTING JUDGE OF THE HIGH
COURT
APPEARANCES
Counsel for the
a
pplicant: Adv.
Dwayi
Instructed by:
Norton
Rose Fulbright SA Inc.
15 Alice Lane, Sandton
c/o Smith Tabata
Attorneys
34 Stanford Terris
Mthatha
Counsel for
r
espondent:
Adv.
Badli
Instructed by:
Mpambaniso
Attorneys
63 Grey Street
Queenstown
c/o Makaula Zilwa
Attorneys
8 Raziya Street
Mthatha
Heard on:
13
October 2022
Delivered: 22
November 2022
[1]
Uitenhage
Municipality v Uys
1974
(3) SA 800
(E) at
802G.
[2]
Minister
of Law and Order v Taylor NO
1990
(1) SA 165
(ECD) at 168 B - C.
[3]
Melane
v Santam Insurance Co-Ltd
1962
(4) SA 531
(A) at 532 C - F
.
[4]
1969 (3) S
A
360
(A) at
362F-G
.
[5]
Department
of Transport & Others v Tasima (Pty) Ltd
2017
(2) SA 622
(CC) para 52
.
[6]
Ethekwini
Municipality v Ingonyama Trust
2014
(3) SA 240
(CC)
para
28
.
[7]
Burton
v Barlow Rand
Ltd,
t/a Barlow
s
Tract
or
and
Machinery
Co
1978
(4) SA 794
(
T
).
[8]
Van Wyk
v Unitas Hospital
and
Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) para 22
.
[9]
Rennie
v Kamby Farms (Pty) Ltd
1989
(2) SA 124
(A) at 129G
;
Napier
v Tsapera
s
1995 (2) SA 665
(A) at
671B-D;
Saloojee
and Another, NNO v Minister of Community Development
1965
(2) SA 135
(A) at 138H
;
Mulaudzi
v
Old
Mutual Life Assurance Co South Africa Ltd
and
Others
2017
(6) SA 90
(SCA) para 26
.
[10]
2020 (5) SA 404
(SCA) para 14
.
[11]
See: Indexed papers: paragraph 9: page 86.
[12]
See:
Taylor
NO
(note
2 above) at 168B where Kannemeyer JP stated
―
‘
I
am satisfied that all that amendment to the Rule does, and all that
it was intended to do, is to alter the unsatisfactory situation
under the original Rule where time could start to run against the
aggrieved party before he knew that a step tainted with
irregularity,
had in fact been taken. In the present case, giving
the above meaning to the words ‘becoming aware’, the
application
to set aside the summons was brought out of time. The
applicant has not sought condonation in this respect and the
application
must be dismissed.’
[13]
Saloojee
(note
9 above)
at
141
C - E
.
[14]
1985
(
4
)
SA 773 (A) at 787G - H
.
[15]
[1996] ZACC 20
;
1997
(1) SA 124
(CC) para 11
.
[16]
Drift
Supersand (Pty) Ltd v Mogale City Local Municipality
[2017]
ZASCA 118
(22 September 2017) para 31