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2021
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[2021] ZALMPPHC 32
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MEC for Department of Health, Limpopo Province and Another v Sithole (1590/2017) [2021] ZALMPPHC 32 (7 July 2021)
INTHE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION,POLOKWNE
CASE
NUMBER:1590/2017
THE
MEC FOR DEPARTMENT OF HEALTH,
1
ST
APPLICANT
LIMPOPO
PROVINCE
DR.
MP CHABA AND 67 OTHERS
2
ND
APPLICANT
And
MAPIKWA
SITHOLE
RESPONDENT
JUDGEMENT
AML
PHATUDI J
Introduction
[1]
This court is vested with wide inherent power to, among others,
indulge or prohibit litigants from having access to courts
[1]
under certain circumstances.
[2]
In this application, the applicants approaches this court with this
Court’s Uniform Rule 27 hat in their hands for an indulgence
in
setting aside the respondent’s Notice of Bar and they be
granted leave to file their plea within five (5) days from the
date
of this court’s order. They tender costs occasioned by this
application only in the event of it being unopposed. The
respondent
opposes the application.
[2]
The applicants are defendants in the main action and the respondents,
the plaintiff. For convenience, the applicants will
be referred to as
defendants and the respondent as the plaintiff.
[3]
Litigation can be tedious and expensive. However, the rules of court
may secure the inexpensive and expeditious completion
of litigation
if adhered to and applied to the letter. Ponnan JA penned in Centre
for Child Law
[3]
that
ordinarily, strong grounds would have to be advanced to
persuade a court to act outside the powers provided for
specifically in the rules.
Factual
Backround
.
[4]
Mapikwa Daniel Sithole (the plaintiff) was appointed in 2011 by
Department of Health, Limpopo Province, as a Senior Clinical
Manager
at Mecklenburg Hospital, Sekhukhune District, Limpopo. He instituted
an action on 20 June 2018 against the MEC for Limpopo
Department of
Health and 68 Others, who are medical practitioners and other health
service providers, for reduction of his rural
allowance and commuted
overtime which resulted in a breach of a valid employment contract
concluded by and between the plaintiff
and Limpopo Department of
Health.
[5]
The plaintiff’s action is defended by the defendants who are
duly represented by the State Attorneys. The defendants excepted
to
the plaintiff’s summons. The exception and other
in limine
points raised were dismissed with costs on 16 November 2018. Saddened
by the order, the defendants sought leave to appeal. Leave
to appeal
was placed on the roll of 20 March 2019. On the said date, the court
struck the matter off the roll due to non-appearance
of the parties.
The defendants alleges that there was no time allocated specifically
for the hearing. They assumed that the matters
would be heard at
10h00. Their counsel found that the matter had been struck off the
roll at 09h30.
[6]
The defendants’ attorney handling the matter alleges that he
drafted the application for reinstatement of the leave
to appeal. The
drafted notice got misplaced by the office cleaners.
[7]
On 06 June 2019, the plaintiff served the defendants with a Notice of
Bar. On 11 June 2019, the defendants countered with
Rule 30 notice
contending that the plaintiff’s notice of bar is an irregular
step. The plaintiff opposed the Rule 30 application
and
simultaneously filed his default judgment application with the
Registrar. Thereafter the matter became dormant until 24 June
2020.
[8]
On 24 June 2020, the plaintiff’s new attorney of record wrote a
letter, after placing themselves on record, to the
defendants and
enquired if they still pursue their Rule 30 application filed
relating to the “irregular step” in respect
of the notice
of bar served by the erstwhile plaintiff’s attorneys. The
defendants exercised their rights to remain silent.
Puzzled by the
defendants’ silence, the plaintiff’s attorneys again
enquired from the defendants by letter dated 03
July 2020 if they
still pursue their notice. Once again, the plaintiff was never
favoured with a response.
[9]
On 17 July 2020, the plaintiff filed his notice to oppose and
answering affidavit to plaintiff’s Rule 30 application.
The
defendants responded by their letter dated 27 July 2020 asking for
indulgence to file their plea and offered to withdraw Rule
30 notice.
Instead of withdrawing their Rule 30 notice, the defendants filed
this Rule 27 application for “extension of time,
removal of bar
and condonation”. On 6 August 2020, the plaintiff filed its
opposition to the defendants’ Rule 27 application.
Law.
[10]
The extension of time, removal of bar and condonation applications
are governed by the provisions of Rule 27 of the Uniform
Rules of
this Court. The Rule empowers the court, in the absence of the
agreement between the parties, to make an order extending
or
abridging any time prescribed by the rules
on
good cause shown
by the applicant on notice.
[4]
The rule further provides that ‘the court may, on good cause
shown, condone any non-compliance with these rules’.
[5]
[11]
It is trite law that condoning no-compliance with the rules of court
or direction is an indulgence. The court has a judicial
discretion
whether to grant condonation. There are factors this court usually
considers in an application for condonation. They
include, but not
limited to- the degree of non-compliance with the time frame
stipulated in the rules; the explanation of such
non-compliance which
may be considered as a good cause; and the avoidance of unnecessary
delay in the administration of justice.
Above all factors adumbrated,
the Constitutional Court held that the standard for considering
an application for condonation
is the interest of justice.
[6]
[12]
In Uitenhange Transitional Local Council v South African Revenue
Services
[7]
, the Supreme Court
of Appeal stated that
“
Condonation is not
to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the court to understand clearly the reasons
and to assess the responsibility [that is bestowed
on it in
exercising its judicial discretion]’.
Issue
[13]
The issues to be determined is whether it will be in the interest of
justice to set the plaintiff’s Notice of Bar aside
and condone
the late filing of the defendants’ plea.
Evaluation
[14]
The plaintiff’s action morphed, with the effluxion of time,
into an arduous legal battle in which the plaintiff demonstrates
his
eagerness in bringing the matter to finality on the one hand and, on
the other, the defendant’s quest to recover from
the slump
occasioned by Mangena’s AJ judgement dismissing their exception
to the plaintiff’s particulars of claim.
The defendants’
slump left them wanting on what procedure to take.
[15]
It is common cause that the defendants filed leave to appeal
Mangena’s AJ judgement. The application was struck off the
roll
due to non-appearance on the day it ought to have been heard. It is
common practice that applications for leave to appeal
are heard
either at 09h30 or 14h00
[8]
. The
Judge normally directs, in consultation with the parties concerned,
as to the date and time for hearing of their application.
The
defendants’ contention that they thought the application would
be heard at 10h00 has not been supported by any evidence.
The
defendants should at least take this court into their confidence by
attaching the set down depicting the time they allege was
allocated
for hearing. This aspect is, in any event, moot because the
defendants have abandoned their application for leave to
appeal.
Setting
aside of the Notice of Bar
[16]
The plaintiff served the defendants with a notice of bar on 6 June
2019. Instead of delivering their Plea, the defendants served
the
plaintiff with Rule 30 application alleging that it is an irregular
step to file a notice of bar “whilst the application
for leave
to appeal is pending.” In my view, the defendants were correct.
[17]
The defendants withdrew the said Rule 30 application on 27 August
2020. The issue of that application has since become moot.
In any
event, the plaintiff had already applied for a judgement by default
on 16 July 2020. This prompted the defendants to bring
this Rule 27
application served on the plaintiffs on 30 July 2020.
[18]
It is not clear as to what happened between 6 June 2019 to 16 July
2020. However, the defendants’ founding and replying
affidavits
are riddled some unfathomable emotions that, in my view, removed
their focus from showing the good cause for their delay
and
concentrated on personal attacks of the opponent’s legal
practitioners. Both parties’ legal practitioners got themselves
tangled in one another’s personal attacks. The language is
unpalatable. I loath to venture in their personal attacks.
What
caused the delay
[19]
It is common cause that the parties paused their litigation after
service of the plaintiff’s Notice of Bar on 06 June
2019. None
acted on the matter for a year. Both parties resumed with their
communique after 24 June 2020. The defendants are not
coming out
clear on record what made them to be late with the filing of their
plea. All the defendants says is that “the
matter became
dormant until 25 June 2020 when we were served with notice of
substitution. We then requested advise from counsel
on our served
notice in terms of Rule 30 which was served”.
[20]
The defendants conceded that they are bared. This is what the
defendants say:
“
As a result of the
above, the defendants were
ipso facto
barred from entering its
plea as there is no pending interlocutory application in court as
previously stated”
[21]
The defendants concede that absent the application for reinstatement
of application for leave to appeal Mangena’s AJ
judgment, they
are,
de facto
and
de jure
, barred from pleading. It is
common cause that the defendants are way out of time [a period of a
year] in as far as the degree
of non-compliance with the time frame
stipulated in the rules. There is no evidence as to what occasioned
such non-compliance with
the Rules. There is further no evidence that
would bring to the fore the explanation of such non-compliance which
may be considered
as a good cause. Tipping the scales, there is no
evidence led as to the steps they took to avoid the unnecessary delay
in the administration
of justice.
Interest
of justice
[22]
The concept ‘interest of justice’ is very elastic. It can
bent either way to suit the circumstances. In determining
the
interest of justice, the nature of the relief sought; the extent and
cause of the delay; the effect of the delay on the administration
of
justice and other explanation for the delay, the prospects of
success, must be considered.
[9]
[23]
It is common cause that the matter became dormant from June 2019 to
June 2020. The plaintiff became represented by new set
of attorneys
when communique resumed.
[24]
The umpteenth exchange of communique morphed from both parties
seeking succour to progression in the matter to an arduous legalese
battle to which this court frown upon. Of importance is whether there
are any prospects of success in favour of the defendants.
[25]
The defendants’ attorney penned around 27 July 2020- in their
quest to ask for the plaintiff’s indulgence and said:
‘
We ….
hereby as the defendants request indulgency in serving our plea after
notice of bar within 5 days of your granting
of indulgency and offer
to withdraw our Rule 30 Application with costs….’
[26]
In response thereto, the plaintiff had this to say:
“
We, however, are
unable to agree with you in granting you indulgence to file your plea
as you have all along been aware or should
have been aware that you
had to deliver your plea. It further does not look like you have any
justifiable defence to our client’s
claim, at least with
regards to the merits of the matter. Unless you can demonstrate any
prima facie
defence, granting you any further indulgence will
be amounting to us joining you in your tirade of playing delaying
tactics in
this matter as you have demonstrated by your conduct that
you are not litigating this matter with the requisite enthusiasm and
zeal expected from an officer of court”.
[27]
The defendants alleged that they have the prospect of success in the
main application. In their quest to set out their prospects
of
success, the defendants says that the quantified amount claimed by
the plaintiff is excessive. The defendants further says that
“in
assessment of damages for alleged defamation… it is important
to bear in mind that the primary purpose is not
to enrich the
aggrieved party but to offer him or her some much needed solatium for
his or her injured feeling.”
[28]
It is clear from the defendants’ evidence that they are more
concerned with quantification of the claim and not the merits
on
their liability or the cause of action
per se
. There is no
evidence on “reasonable prospects of success” on the
merits of the case as set out in the particulars
of claim.
Quantification of the claim is often considered after the
determination of the defendants’ liability occasioned
by the
causes of action. The quantum is still to be determined during
progression of the litigation. The defendants are still having
the
lifeline in disproving quantification as claimed by the plaintiff.
The defendants have not made out a case entitling them to
an
indulgence.
Costs
[29]
It is trite law that costs follow the event. The plaintiff succeeds
with the opposition of defendant’s application in
terms of Rule
27 of Uniform Rules of this Court. The plaintiff is thus entitled to
his costs occasioned by this application.
Order
[30]
The Applicant’s(defendants in the main action) application in
terms of Rule 27 of the Uniform Rules of this Court relating
to the
setting aside of the plaintiff’s Notice of Bar and condonation
for the late filing of their Plea is dismissed with
costs.
AML
PHATUDI
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicants:
Adv.
E.K. Tsatsi SC
Instructed
by:
State
Attorneys
TNkwana@justice.gov.za
For
the Respondent:
Adv
Mpshe SC
Instructed
by:
Maoba
Attorneys Inc
info@maobalaw.co.za
mamaoba@webmail.co.za
Heard
on:
19
April 2021
Delivered: This judgment
was handed down electronically by circulation to the parties’
representatives by email and release
to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 7 July 2021
[1]
Section 34 of constitution provides everyone has the right to have
any dispute that can be resolved by the application of law
decided
in a fair public hearing before a court or, where appropriate,
another independent and impartial tribunal or forum
[2]
Eke
v parsons
2016 (3) SA 37
CC
[3]
Centre
for Child Law v Hoerskool Foschville 2016 92) SA 121 (SCA)
[4]
Rule
27(1)
In
the absence of agreement between the parties, the court may upon
application on notice and on good cause shown, make an order
extending or abridging any time prescribed by these Rules or by an
order of court or fixed by an order extending or abridging
any time
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.
[5]
Rule
27(3)
[6]
Fraser
v Naude
1999 (1) SA 1
CC ; [para 7]; Brummer v Gorfil Brothers
Investments ( Pty) LTD and Others
[2000] ZACC 3
;
2000 (2) SA 837
CC; Vanwyk v
Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
CC [para 20]
[7]
2004
(1) SA 292
SCA (para 6)
[8]
Clause 11.8- Limpopo: Practice Directions: Applications for leave to
appeal are normally enrolled for 9:30 or 14:00.
[9]
Grootboom
v NPA (2013) ZACL 37