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[2021] ZALMPPHC 61
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Phaladi v Polokwane Local Municipality (7517/2020) [2021] ZALMPPHC 61 (13 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7517/2020
REVISED:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
In
the matter between:
MADIMOLE
JULIET PHALADI
APPLICANT
And
POLOKWANE
LOCAL MUNICIPALITY
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
On 25
th
November 2020 the applicant went to the traffic
department Polokwane which is a department within the respondent in
order to renew
her driver’s licence. The officials at the
traffic department informed the applicant that they would not process
the renewal
of her driver’s licence as she was having
outstanding traffic fines. The said officials referred the applicant
to the enquiry
desk in relation to those traffic fines as she alleged
that she did not know anything about them. According to the
applicant, the
vehicle in question was driven by her husband advocate
Phaladi. At the enquiry desk she found out that she had several
traffic
fines.
[2]
On confronting her husband about the said traffic fines, her husband
told her that those traffic
fines were invalid as they did not comply
with the provisions of the Criminal Procedure Act (CPA). That led to
the applicant instituting
an urgent application seeking an order that
the respondent be compelled to squash the alleged invalid traffic
fines against the
applicant, and to immediately process the
applicant’s application for renewal of her driver’s
licence.
[3]
The respondent is opposing the applicant’s application and has
raised three points in limine.
The first point in limine is that of
lack urgency; the second one is that of non compliance with section
35 of the General Law
Amendment Act 62 of 1965; and the third one is
that of non compliance with Rule 4 of the Uniform Rules of Court
(Rules). The applicant
has removed her application from the urgent
roll, and that had rendered the respondent’s first and second
point in limine
to be moot.
[4]
The parties have argued the third point in limine. The respondent has
argued that the applicant’s
application was hand delivered at
the respondent’s premises, and was not served by the sheriff of
the court and therefore
it was not properly before court. The
respondent submitted that Rule 4 requires that service of any
documents initiating application
proceedings must be effected by the
sheriff of the court. The applicant has submitted that the
application was urgent and was served
by a practising attorney, who
thereafter deposed a certificate of service in the form of an
affidavit under oath.
[5]
It is common cause that the applicant has initiated her application
on urgent basis, and service
of the application on the respondent was
not effected by the sheriff, but by attorney of record of the
applicant. In terms of Rule
4(1)(a), any document initiating
application proceedings shall be served by the sheriff in the manner
prescribed in that rule.
Rule 4(6) relates to the manner in which
service of a document shall be proved. Rule 4(6)(b) provides that
where service was not
effected by the sheriff, nor in terms of
subrule (3) or (4), service will be proved by an affidavit of the
person who effected
that service.
[6]
In terms of Rule 4(6)(b) it is clear that it is not only the sheriff
who is empowered to serve
court documents. Depending on the nature of
the proceedings, any person can effect service of a document
initiating application
proceedings on condition that the said person
will depose an affidavit describing his/her position and the manner
of service. Even
if it was not the sheriff who has effected the
service, that service must be in compliance with Rule 4(1)(a).
[7]
Rule 6(12)(a) provides that in urgent applications the court or a
judge may dispense with the
forms and
service
provided for in
the rules. In prayer 1 of the applicant’s notice of motion she
is seeking condonation for non-compliance
with the Rules and
dispensing with the form of service by virtue of the urgency of the
matter. In terms of the certificate of service,
the application was
served by Carol Ramahuma who described herself as the legal
representative of the applicant. Carol has also
described the manner
in which she had effected service, the place and date of service. All
these information has been deposed in
the form of an affidavit.
[8]
In
Eniram
(Pty) Ltd v New Woodholme Hotel (Pty) Ltd
[1]
it
was held that a petitioner seeking reliance on the provisions of Rule
6(12) has to include a reference in his affidavit to the
urgency of
the matter and to ask the court explicitly to dispense with the
requirements demanded of an ordinary notice of motion.
In the case at
hand, the applicant in her notice of motion has explicitly asked the
court to dispense with the forms and service
by virtue of the urgency
of the application. As I have already pointed out above, in terms of
Rule 4(6)(b) service of a court document
is not limited to be served
by the sheriff only depending on the nature of the matter been
instituted. Carol has complied with
Rule 4(6)(b) by deposing an
affidavit, and she had also complied with Rule 4(1) by describing the
manner of service in that affidavit.
Under the circumstances, taking
into consideration that the applicant has brought an urgent
application and has specifically asked
the court to dispense with the
manner of service of the application, this court is satisfied that
there was a proper service of
the application on the respondent. The
respondent’s point in limine stands to fail.
[9]
In the result I make the following order
9.1
The respondent’s point in limine of non-compliance with Rule 4
of the Rules is dismissed with costs.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the applicant
Adv
Phaladi SJ
Instructed
by
NC
Ramahuma attorneys
Counsel
for the respondent
Adv
Nemukula LC
Instructed
by
Kgatla
Inc
Date
heard
18
th
August 2021
Delivered
electronically on
13
th
September 2021
[1]
1967(2)
SA 491 (E) at 493B