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[2021] ZAKZPHC 74
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Roadmac Surfacing (Pty) Ltd v Sumeil (Pty) Ltd and Another (1403/2020) [2021] ZAKZPHC 74 (23 February 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 1403/2020
In
the matter between:
ROADMAC
SURFACING (PTY)
LTD PLAINTIFF
(REG
NO: 1999/016677/07)
and
SUMEIL
(PTY)
LTD FIRST
DEFENDANT
(REG
NO: 2013/146387/07)
MATHENJWA
VEMBANE SECOND
DEFENDANT
(ID
NO: […])
JUDGMENT
Delivered
on 23 February 2021
Mossop
AJ
1. The
COVID-19 pandemic has wreaked havoc with the ordinary functioning of
the affairs of the citizens of this
country. It would have been
unrealistic to expect that the legal fraternity would, somehow, be
exempt from the fallout of this
relentless virus.
2. I
am called upon to determine two applications: the first involves an
application brought by the plaintiff in
which it seeks an order
setting aside the defendants’ notice in terms of rule 23 of the
Uniform Rules of Court (henceforth
‘
the Rules
’) as
an irregular step in terms of the provisions of rule 30 of the Rules.
The second application is brought at the instance
of the defendants
who seek condonation for the late delivery of the same rule 23
notice.
3. When
the matter was called, I had the pleasure of hearing argument from
Mr. Buys who appears for the plaintiff
and Mr. Schaup who appears for
the defendants.
4. The
key to resolving these two applications lies in determining whether
or not a notice of bar delivered by
the plaintiff was served
prematurely or not. The defendants submit that it was delivered
prematurely whilst the plaintiff claims
that the notice was properly
and timeously delivered. If it was timeously delivered, it is common
cause that the defendants were
barred from delivering their rule 23
notice and the first application must succeed and the second must
fail. If the notice of bar
was delivered prematurely, the defendants
were not under bar and the first application must fail and the second
applicant becomes
redundant as a result.
5. The
answer to whether the notice of bar was served timeously depends,
essentially, on the validity of certain
directives issued by the
Judge President of KwaZulu-Natal (henceforth ‘
the KZN Judge
President
’) and the effect of other directives issued by
the Minister of Justice and Constitutional Development (henceforth
‘
the Minister
’). These directives were intended to
be of application during the hard lockdown that this country was
placed in by the President
of this country on Friday, 27 March 2020.
Before continuing further, it is necessary to briefly allude to the
facts of the matter.
6. Following
a motor vehicle collision involving a construction vehicle belonging
to the plaintiff and a truck
belonging to the first defendant and
which was driven by the second defendant, the plaintiff issued
summons against the defendants
and served it on the first defendant
on 3 March 2020 and on the second defendant on 4 March 2020. By
virtue of their respective
addresses being outside the province of
KwaZulu-Natal and consequently more than 150 kilometres from this
court, the defendants
were given one month within which to deliver an
appearance to defend and thereafter twenty days within which to
deliver their plea
or exception, notice to strike out or
counterclaim, if any.
7. The
defendants entered their joint appearance to defend on 4 March 2020.
They accordingly did not avail themselves
of the extended period
within which to deliver such notice. It followed, therefore, that
their plea was due to be delivered twenty
days thereafter, being by
close of business on 1 April 2020.
8. On
24 March 2020, the Chief Justice of the Republic of South Africa
(henceforth ‘
the Chief Justice
’) delegated certain
of his powers to the Heads of Court in the Superior Courts in terms
of section 8(3) of the Superior Courts
Act 10 of 2013 (henceforth
‘
the Act
’). What was delegated was the authority
to issue such directives as would enable access to courts in relation
to any urgent
matter, bail applications, maintenance and domestic
violence related matters and cases involving matters pertaining to
children.
9. On
25 March 2020, the KZN Judge President issued his first instructions
(henceforth ‘
the KZN Judge President’s first
directions
’). These directions provided,
inter alia
,
that the period 27 March to 17 April 2020 would be regarded in the
High Court for the province of KwaZulu-Natal as
dies non
for
the purposes of time limits prescribed by the Rules.
10. A
day later, on 26 March 2020, the Minister published directions for
the conduct of legal proceedings (henceforth
‘
the Minister’s
first directions
’). The Minister’s first directions
provided that they were to be of effect from midnight on Thursday, 26
March 2020
until midnight on Thursday, 16 April 2020. In terms of
regulation 5(c) thereof:
‘
All
time limits imposed by any rule of court shall be suspended and shall
recommence after the termination or lapsing of the period
of the
National State of Disaster, unless specific orders are granted by
judicial officers in urgent and essential cases.’
11. The
two sets of directives were virtually identical in effect, save for
the fact that the KZN Judge President’s
first directions were
to endure for a day longer than the Minister’s first
directions.
12. The
Minister’s first directions were of short duration. Five days
after they were published, and on 31
March 2020, the Minister
published his second directions (henceforth ‘
the Minster’s
second directions
’). In terms of direction 13 thereof, the
Minister’s first directions were withdrawn. The Minster’s
second directions
themselves, however, made no mention of the
suspension of time periods stipulated by the Rules. With effect from
the date of publication
of the Minister’s second directions,
the time periods prescribed by the Rules were no longer suspended in
terms of the Minster’s
directions.
13. The
KZN Judge President’s directions, however, continued to remain
in effect and were adhered to in the
High Court for the province of
KwaZulu-Natal. On 14 April 2020, after the withdrawal of the
Minister’s first directions,
the KZN Judge President published
amended directions (henceforth ‘
the KZN Judge President’s
amended directions
’). Of significance in the KZN Judge
President’s amended directions is the fact that the length of
the
dies non
was lengthened. The KZN Judge President’s
amended directions now read in this regard:
‘
After
consultation with the Deputy Judge President and the Registrars and
[sic] the following Directives will apply continue to
apply [sic] in
the High Court of KwaZulu-Natal for the period 27 March 2020 till the
end of the lockdown.
The aforesaid period
is to be regarded as dies non for the purposes of the Rules of Court
and any directives for the filing of pleadings,
affidavits or notices
that may be been [sic] issued by Court.’
14. A
further set of directives were published by the KZN Judge President
on 1 May 2020. The issue of
dies non
did not feature in these
directives. This is not surprising, as the issuing of these
directives coincided with the relaxing of
the national lockdown from
level 5 to level 4 as provided in the
Disaster Management Act 57 of
2002
. As the KZN Judge President’s amended regulations were in
place until the end of the lock down, it now followed that the issue
of
dies non
were henceforth ostensibly once again to be
regulated in terms of the Rules.
15. Counsel
for the plaintiff argued that the KZN Judge President’s
directions were inconsistent with the
Minister’s directions and
those of the Chief Justice, were accordingly
ultra vires
and
fell to be disregarded. The argument advanced was that the KZN Judge
President did not have the authority to suspend the time
periods
contemplated by the Rules, only the Chief Justice did. The Chief
Justice himself did not suspend the running of time periods
and
whilst he did delegate certain of his powers as previously described,
the power to suspend the running of time periods was
not one of those
powers delegated.
16. There
are appealing aspects to this argument, and it may well be sound. In
an attempt to fortify the plaintiff’s
argument, Mr. Buys drew
my attention to directives issued by the Judge President of the
Gauteng Division of the High Court (henceforth
‘
the Gauteng
Judge President
’), issued on 2 April 2020, in which the
Gauteng Judge President stated that he did not have the power to
suspend the running
of time periods contemplated in the Rules. It was
urged that I accept this to be the case when determining the issues
before me.
17. The
Gauteng Judge President may well be correct. The Act may not clothe
him with the power to declare
the
national lockdown period to be
dies non.
But
there is a distinguishing feature between what happened in the
Gauteng Division and what happened in the KwaZulu-Natal Division:
the
Gauteng Judge President declined to take a decision to suspend the
running of time limits whereas the KZN Judge President took
that
decision and suspended their running.
18.
In
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
,
[1]
it was held that the proper functioning of a modern State would be
considerably compromised if all administrative acts could be
given
effect to or ignored depending upon the view the subject took of the
validity of the act in question. It was for this reason
that our law
recognised that even an unlawful administrative act was capable of
producing legally valid consequences for so long
as the unlawful act
was not set aside.
19.
The
decision of the KZN Judge President to suspend the time periods
contemplated by the Rules was an administrative act, which,
until set
aside by a court in review proceedings, exists in fact and is capable
of having legally valid consequences. Whatever
suspicions one might
have as to whether the KZN Judge President’s directions were
validly issued, they remain valid administrative
acts until set
aside. In the words of Lord Radcliffe in
Smith
v East Elloe Rural District Council and Others
:
[2]
'An order, even if not
made in good faith, is still an act capable of legal consequences. It
bears no brand of invalidity on its
forehead. Unless the necessary
proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise
upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders.'
[3]
20. There
is no review application before me to declare the KZN Judge
President’s directions to be
ultra vires
: there are only
the two applications as previously described, neither of which seeks
that relief. If that was the issue that I
was required to determine,
there are potentially a number of parties who would presumably
require to make submissions and to be
heard who are not party to
these two applications.
21. It
is beyond question that the KZN Judge President’s directions
were published and given effect to in
the High Court of this province
over the period in question. This is so despite Mr. Buys’
contention that the KZN Judge President’s
amended directions
were not published, alternatively were not easily accessible by his
instructing attorney.
22.
In
the view that I take of the matter, it is not necessary for me to
determine which Judge President was correct. Whether the KZN
Judge
President’s directions were validly issued the fact is that
they were issued, applied and were followed by practitioners
in this
province. To set them aside, or to hold them to have been invalidly
imposed, might have catastrophic consequences for other
litigants and
adverse consequences for the general administration of justice.
[4]
23. I
accordingly find that the KZN Judge President’s directions
remain valid until set aside. It follows
that I must accordingly find
that:
(a) the
earliest date of suspension of the time limits provided for in the
Rules is 27 March 2020, both in
terms of the Minister’s first
directions and the KZN Judge President’s first directions; and
(b) the
latest date until which the time periods contemplated by the Rules
were suspended was 30 April 2020
in terms of the KZN Judge
President’s amended directions, that being the day immediately
preceding 1 May 2020, being the
date upon which the national lockdown
in the country came to an end. It follows that on 1 May 2020, the
dies
commenced running again.
24. The
twenty-day period within which the defendants were required to
deliver their plea commenced running on
5 March 2020, being the day
after service of their notice of intention to defend was effected. As
at midnight on 26 March 2020,
sixteen of those twenty days had
elapsed. The defendants accordingly had a further four days to
deliver their plea after the
dies non
came to an end. I have
already found that this occurred on 1 May 2020. That being the case,
the defendants’ plea was due
by close of business on Thursday,
7 May 2020, as 1 May 2020 was a public holiday which was immediately
followed by a weekend. It
is common cause that the plaintiff’s
notice of bar was delivered on 6 May 2020.
25. On
Thursday, 14 May 2020, the defendants caused a notice in terms of
rule 23 of the Rules to be delivered to
the plaintiff, alleging that
they had a complaint with the manner in which the plaintiff’s
case had been pleaded thereby
rendering the particulars of claim
vague and embarrassing. The plaintiff was given a period of fifteen
days within which to remove
the cause of complaint. This document was
delivered electronically, did not bear the stamp of the Registrar of
this court and was
unsigned.
26. This
prompted the plaintiff to deliver a notice in terms of rule 30 of the
Rules the following day, alleging
that the delivery of the
defendants’ rule 23 notice was an irregular proceeding as the
defendants were allegedly under bar
for failing to deliver their plea
timeously.
27. The
defendants thereafter delivered a signed version of their rule 23(1)
notice on Thursday, 28 May 2020. It
was in all respects identical to
the first, unsigned version that they had delivered, save that it was
now signed and bore the
Registrar’s stamp.
28. On
Monday, 1 June 2020, the plaintiff delivered a notice in terms of
rule 30 of the Rules, again alleging that
the filing of the now
signed rule 23 notice constituted an irregular proceeding on the
principal grounds that the defendants were
under bar and that it was
delivered out of time. This prompted the bringing of the second
application by the defendants, which
sought condonation for the late
delivery of the defendants’ rule 23(1) notice.
29. The
defendants’ attorney referred in his affidavit in the
condonation application to the fact that the
defendants had delivered
an exception to the plaintiff’s particulars of claim. They, in
fact, have not done so. It was agreed
by counsel at the hearing that
no notice of exception has been delivered. It may well be that the
defendants regard the second,
signed notice as the notice of
exception but it is not. It is merely a signed version of the notice
to remove cause of complaint.
At the conclusion of the signed
document, the plaintiff is given fifteen days to remove the cause of
complaint. This is not the
wording of an exception. There is
accordingly no exception before this court.
30. I
consequently find that the plaintiff’s notice of bar was
delivered one day prematurely, being delivered
on 6 May 2020 when the
defendants had until 7 May 2020 to file their plea. Only if they
failed to deliver their plea on that date
could they be placed on
terms in accordance with the provisions of rule 26 of the Rules. It
appears that the plaintiff was simply
unaware of the KZN Judge
President’s amended directions as it has failed to consider
their effect. Mr. Buys acknowledged
in argument that this was the
case. The first application must accordingly fail.
31.
In
the absence of a valid notice of bar, the defendants’ rule
23(1) notice was properly delivered and must be dealt with by
the
plaintiff.
[5]
It follows that the bringing of the second application by the
defendants was unnecessary and I likewise dismiss that application.
32. Both
parties have accordingly felt the lash of defeat. This will be
reflected in the order that I grant, which
is as follows:
(a) The
applicant’s application in terms of rule 30 of the Uniform
Rules of Court is dismissed;
(b) The
defendants’ application for condonation is dismissed;
(c) The
plaintiff is given fifteen days from the date of this order to
respond to the defendants’
rule 23(1) notice;
(d) Each
party is to bear its own costs.
MOSSOP
AJ
[1]
2004 (6) SA 222
(SCA) at para 26.
[2]
[1956] UKHL 2
;
[1956] 1 All ER 855
(HL) at 871G - H.
[3]
Cited
with approval in Jacobs and others v Baumann NO and others
2009 (5)
SA 432
(SCA) at para 20.
[4]
Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board:
Limpopo Province and others
2008 (2) SA 481
(SCA) at para 23.
[5]
Tyulu
v Southern Insurance Association Ltd
1974 (3) SA 726
(ECD) at page
729C – E.