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[2021] ZAGPPHC 218
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Ngobeni v Government Employees Pension Fund (2119/2018) [2021] ZAGPPHC 218 (29 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2119/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:29
March 2021
In
the matter between:
RIRHANNDZU
BEATRICE NGOBENI
APPLICANT
and
GOVERNMENT
EMPLOYEES PENSION FUND
RESPONDENT
JUDGMENT
MOGALE,
AJ
INTRODUCTION
[1]
This is an opposed application for the respondent leave to supplement
by the applicant.
[2]
There is a court order granted on the 11
th
December
2019 by Honourable Madam Justice Phahlane where the following was
ordered:
2.1.
The respondent is to, within 5days of service of this order
to comply
with Rule 3(5)(a) of the Uniform Rules of Court, to apply for Leave
from the above Honourable Court to file futher affidavits.
2.2.
In the event that the Respondent fails to comply with the
order in
Paragraph 1 above, that the applicant may return to court, with the
same papers duly supplemented for further relief,
including an order
Striking out the respondents’ opposition to the main
application
ISSUES
TO BE DETERMINED
[9]
The court has to determine whether the respondent complied with the
court
order within 5days of service and obtain leave to supplement.
Whether the court should accept the fact that, the respondent, as
a
party instituted the proceedings has withdrawn leave to supplement.
EVIDENCE
BEFORE COURT
[10]
Advocate Rapeo for the applicant submitted that the respondent failed
to obtain leave
to supplement. Without being granted leave by the
cout to file supplementary affidavit, the respondent filed a
supplementary answering
affidavit on the 17 February 2020. The
applicant further submitted that the respondent cannot merely
supplement prior leave being
granted, further that the respondent
application is defective. The applicant contents that, there is no
basis for these matter
to proceed as there is no compliance with the
rules of court and requested the court to disregard the supplementary
affidavits
submitted without leave being granted. The respondent also
failed to file their heads of arguments
[11]
Advocate Kgomongwe on behalf of the respondent argued that submission
of their heads of
arguments was is not relevant to this matter. That
the respondents initially proposed to supplement their papers dates
28 March
2018 and 29 August 2018 when they seek leave to supplement
from Honourable Madam Phahlane but they changed their minds when they
file Notice of Withdrawal. In terms of Rule 41 they are the dominis
litis in this matter and they have a right to make that decision
without the consent of either the court not the applicants. They will
only need the consent of the applicants if the matter was
set down.
Heads of arguments will be submitted in the main application and
leave to supplement has been withdrawn.
[12]
The respondents also argued that the applicants failed to comply with
the a rules of court
by their failure to Join Norah Refilwe Sesabula
(Matumba) to this proceedings. The court will be paralised to attend
the main application
if there is non-joinder.
13]
Advocate Rapea’s replyed that, application to join Norah
Refilwe Sesabula (Mutamba)
has been granted by the the court as per
court order 11 March 2021, that the matter is postponed to the 27th
October 2021 for Ms
Mutamba to be served and further that the
applicant is the one being prejudiced by all this. Addressing the
issue raised by the
respondents that they filed Notice of Withdrawal
for leave to supplement, the applicant draw the court attention to
the contents
of Notice of Withdrawal which reads as follows:
“
BE PLEASED TO
TAKE NOTICE that the Respondent herein hereby withdraws its Notice of
Motion and Supplementary affidavits dated 29
August 2018 and
28
March 2018”
[15]
The applicant argued that Notice of Withdrawal does not read that it
is a Notice to withdraw
Leave to Supplement, that the wording is not
clear and the respondant cannot argue that this was withdrawing the
present application
[16]
The respondent argued that they filed their supplementary opposing
affidavit by 13th October
2020. The applicants omitted to file their
replying affidavit within the stipulated time frame, as a result, the
respondent argued
that their version stands uncontested and must be
accepted but the court.
EVALUATION
OF EVIDENCE
[17]
It is common cause that the respondant failed to comply with the
court order dated 11 December
2019. The issue which is in dispute is
whether the respondents’ Notice of Withdrawal serves as a
Notice to withdraw leave
to supplement or not
[18]
Rule 41(1)(a) provides that, a person instituting any proceedings may
at any time before
the matter has been set down and therafter by
consent of the parties or leave of the court withdraw such
proceedings, in any of
which events he shall deliver a notice of
withdrawal and may embody in such notice a consent to pay costs.
[19]
I do not agree with the submissions by the respondent that because
they are dominis litis
they did not need any permission or consent of
either the applicant and or the court to withdraw the application.
According to
Rule 41, before the matter has been set down and
thereafter, consent of the parties is needed or leave of court to
withdraw such
proceedings. The issue of costs is supposed to be
addressed also.
[20]
The wording of the Notice of Withdrawal is clear, it is a withdrawal
of notice of motion
and supplementary affidavits dated 29 August 2018
and 28 March 2018. I find that, the repondents notice of withdrawal
is not withdrawing
leave to supplement as ordered by court and
therefore, I am not persuaded that the respondent withdrew the leave
to supplement.
As a result, this court finds that the respondent
supplementary answering affidavit filed without leave of the court be
strike
out.
[24]
I am satisfied that the applicant complied with the rules of court by
Joining Mrs Mutamba to
the proceedings
COSTS
[25]
Applicant has argued that the respondent failed to comply with the
court order, failed to file
heads of arguments and further that he
does not respect the rules of law, as a result, the applicant argued
that punitive costs
should be awarded on an attorney and client
scale. Respo
[25]
It is also an accepted legal principle that cost is in the
discrection of the
court. The basic rules were stated as follows in
Ferreira v Levin NO and Others 1996(2)SA 621 (CC) at 624B-C par 3
“
The Supreme
Court has, over the years, developed
a
flexible approach to
costs which proceeds from two basic principles, the first being that
the award of costs, unless expressly otherwise
enacted, is in the
discrection of the presiding officer, and the second that the
successful party should, as
a
general
rule, have
his or her costs. Even this second principle is
subject
to the first. The
second principle is subject to
a
large number of exceptions where the successful party is deprived
of his or her costs. Without attempting either comprehensiveness
or
complete analytical accuracy, depriving successful parties their
costs can depend on circumstances such
as,
for example, the
conduct of parties, the conduct of their legal representatives,
whether
a
party achieves technical success only, the nature of
litigants and the nature of proceedings
[26]
Given the conduct of the respondent in this matter i was considering
to grant
punitive cost award to in favour of the applicant. However,
in the exercise of my judicial discretion, i am inclined to make a
punitive cost order as requested by the applicant
[35]
In so far as costs are concerned, it should follow the result and be
awarded in favor
of the applicant.
Consequently,
the following order is made:
[35.1]
The application for leave to supplement is dismissed
[35.2]
The respondent is ordered to pay costs.
KJ
MOGALE
ACTING
JUDGE OF THE
GAUTENG
DIVISION,
PRETORA
Electronically
submitted.
Delivered:
This
judgment
was
prepared
and
authored
by
the
Judge whose
name is reflected and is
handed down electronically by circulation to the parties/their legal
representatives by email and by uploading
it to the electronic file
of this matter
on
CaseLines. The date for hand-down is deemed to be 29 March
2021.
Date of hearing:
The matter was heard by way of video conferencing or otherwise, the
matter
may be determined accordingly. The matter was set down for a
court date of 16 March 2021
.
Date of
judgment
: 29 March 2021
Heard on
: 16
March 2021
For the Applicants
:
Adv P Rapea
Instructed by
:
Sekati Attorneys
For
the Respondent
: Adv Kgomongwe
Instructed
by
: State Attorneys
Date
of Judgment
: 29 February 2021