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2021
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[2021] ZALMPPHC 19
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Mamahule Traditional Authority v Mabyane and Others (2449/2021) [2021] ZALMPPHC 19 (14 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 2449/2021
In the matter
between:
MAMAHULE
TRADITIONAL AUTHORITY
FIRST APPLICANT
and
MANTEBELE
MABYANE
FIRST RESPONDENT
THABO MABYANE
SECOND
RESPONDENT
MMAELE GEOGENA
MATSAUNG
THIRD RESPONDENT
JUDGMENT
AML
PHATUDI J
[1]
This is the applicants’ application for the striking out of the
third respondent’s notice of intention to oppose
and the
answering affidavit filed therewith due to non-compliance with the
time frames set by the applicants in their notice of
motion and the
joinder application filled in terms of Rule 10.
[2]
The factual matrix in this application is that the notice of motion
and the notice in terms of Rule 10 issued by the applicants
calls
upon the respondents to serve their notice of intention to oppose by
no later than 16h00 of 16 April 2021 and their answering
affidavit by
no later than 21 April 2021. The call in the joinder application of
the third respondents is worded: “T
AKE FURTHER NOTICE
”
that if the third respondent if she wishes to oppose the application
to be joined as a third respondent she must do so simultaneously
with
her notice to oppose the main application, including any intention to
oppose the intended application for amendment in court
by close of
business the
16 April 2021
and to file an Answering
Affidavit dealing with both the joinder application and the main
application by no later than the 21 April
2021. In other words, the
time frames in the notice of motion and the joinder application are
the same. The respondents are required
to file their notice to oppose
and answering affidavit(s) on16 April and 21 April 2021 respectively.
[3]
All three respondents are represented by one attorney. The attorney
drafted the notice to oppose on the 16 April 2021 but only
served it
on the 19 April 2021. The applicants only came to know of the
respondents’ intention to oppose the application
on the 19
April 2021. The third respondent is the only party who filed the
answering affidavit. It is clear from her answering
affidavit that
she is not deposing for and or on behalf of the other two
respondents. Technically, the first and second respondents
only filed
their notice of intention to oppose with no answer to the applicant’s
averment in the founding affidavit.
[4]
There respondent did not apply for condonation of the late filling of
her notice of intention to oppose and her answering affidavit.
The
issue before this court is whether the filling of the respondents’
notice of intention to oppose and the third respondents
answering
affidavit should be struck out for non- compliance with time frames
as set out by the applicants in their notice of motion.
[5]
Urgent applications are regulated in terms of Rule 6(12) of the
Uniform Rules of this Division. Rule 6 (12) (a) stipulates that
“in
urgent application the court or a Judge may dispense with the forms
and service provided for in these rules and may dispose
of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable
be in terms of
the rules) as it deems fit.
[6]
Rule 6(12)(a) regulates, firstly, the abridgement of times prescribed
by the rules; secondly, the departure from established
filling rules
and lastly, the seating times of the court. It is trite law that
every urgent application shall be brought on notice
of motion, drawn
in accordance with form 2 (A). The applicant is obliged to indicated
the date or dates by which any party cited
and who is likely to be
affected by the relief sought is called upon to deliver the notice of
intention to oppose as well as the
answering affidavit. The
application must be served on the respondents by the sheriff in one
or other manner stipulated in Rule
4. There are exception, though, to
the said rule. Urgency relates not only to matters of life and death
but also to preservation
of property or the status quo or the
evidence including the commercial interest.
[7]
The principle sets out in the classical case-
Republikeinse
Publikasies (Edms) Bpk v AfrikaansePers Publikansies (Edms)
Bpk
1972
(
1
)
SA
773
(A)
relating to Rule 6 (12) (a), the court
stated:
‘
It is of
importance to state what the effect of this rule is. In the case of
an urgent application an applicant is permitted to
act by way of
notice of motion without taking into account the rules which are
usually applicable. The applicant is, in a certain
sense, taking into
account the circumstances of the case permitted to make his own rules
but “as far as practicable”
in accordance with the
existing rules. Rule 6(12) therefore makes provision for process
subject to rules different from the usual
and when an applicant
appears before a judge in such a procedural manner he must ask the
judge to disregard the rules applicable
to ordinary adjudication. He
is not obliged to go to the judge first to ask permission to act by
means of extraordinary adjudication
because Rule 6(12) expressly
provides that the judge may deal with such a matter when and where he
deems fit.
If an applicant acts in terms of
this rule and informs the respondent that he regards the application
as urgent it follows, in my
view, that the respondent is obliged to
adhere to the chosen dates and times, in the sense that he runs the
risk of an order against
him by default if such dates and times are
ignored, and entitled to provisionally accept the rules which the
applicant has adopted.
When the matter comes before the judge he can
object, but in the meantime, he dares not disregard the rules which
the applicant
has made for himself
. Even if
the rules of court with regard to ordinary adjudication are deemed to
determine that an action is instituted when the
notice of motion is
handed to the registrar in the case of an urgent application the
applicant in the absence of the registrar
may launch the matter
directly to the judge and the judge can disregard the rules of
ordinary adjudication in this connection.
Rule 6(12) (a) provides
that in the case of urgent applications a judge can disregard the
“forms and service” prescribed
by the rules. Delivery of
a notice of motion to the registrar is no “service” but
because in the case of an opposed
motion the applicable form 2(a) in
the first Schedule requires express notice to the registrar and
respondent a judge in an urgent
case when the registrar is not
available can disregard the requirement that form 2(a) be directed to
the registrar’.
[8]
If an applicant acts in terms of this Rule 6(12) (a) and informs the
respondent(s) that he regards the application as urgent,
it follows
that the respondent must obliged, in the sense that he runs the risk
of an order against him/her being granted by default.
The
respondent(s) is obliged to provisionally accept the rules which the
applicant has adopted. When the matters come before court,
the
respondent(s) can object or can apply for condonation for the late
filing of the notices. In the meantime, the respondent(s)
dares not
to disregard the rules which the applicant has made for himself.
[9]
It is common cause that the applicant set its time frames as to when
and how the respondent(s) should serve and file their notice
of
intention to oppose and to file their answering affidavit. It is
further common cause that the respondents only filed their
notice to
oppose on 19 April 2021- three days after the time frames set by the
applicant and the answering affidavit was served
and filed on the 23
of April 2021- two days after the expiry of the date set by the
applicant.
[10]
It is further common cause that the respondent neither filed the
condonation application nor applied from the bar for such
condonation
in respect of the late filing of the said notice of intention to
oppose and/or answering affidavit.
[11]
Counsel for the respondent submits that the abridgment of the rules
sought by the applicant as provided for in terms of rule
6(12) (a),
applies
mutatis mutandis
to the respondents when filing the
opposing papers. I am afraid, I do not agree with his submissions.
[12]
I indicated herein above the principle set out in the Republikansie
that obligates the respondent to adhere to the dates and
times for
filing the opposing papers. If the respondent(s) fail to adhere to
such times then he/she runs the risk of an order against
him or her
by default. Counsel was at pain to persuade me that the rule of
abridgment of the rules-Rule 6(12)(a)- applies
mutatis mutandis.
In the absence of an application for condonation for the late filing
of the respondent’s opposing papers,(such application
can be
moved from the bar especially in any urgent applications), I am
afraid the rule and the law espoused in Republikansei dictates
that
judgment by default may be entered. This, in my view, leave me with
no option but to struck out the third respondent’s
answering
affidavit. The issue to be determine now is the costs.
[13]
It is trite law that costs follow the event. The applicants succeed
with their application and they are therefore entitled
to their
costs. At the commencement of this matter, Mr Mphahlele placed on
record the appointment of two counsel. Considering merits
and
demerits of this matter, I am of the view that this is not as complex
as it would warrant the appointment of two counsel.
[14]
In the result, I make the following order.
Order
14.1
The third respondent’s answering affidavit filed on 23 April
2021 is Struck out with costs on party and party scale.
14.2
The Respondent’s point in limine relating to non-compliance
with Rule 41A is upheld.
14.3
The applicant’s application is struck off of the roll with no
order as to costs.
AML
PHATUDI
JUDGE
OF THE HIGH COURT
Heard:
28 April 2021
Delivered:
28 April 2021
Revised:
14 May 2021