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[2018] ZAECMHC 12
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August v Minister of Home Affairs (504/2007) [2018] ZAECMHC 12 (30 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 504/2007
In
the matter between:
MASIJADU
CECILIA AUGUST
Plaintiff/Applicant
And
MINISTER
OF HOME AFFAIRS
Defendant/Respondent
JUDGMENT
MAJIKI
J:
1.
“
Lord
how many times shall I forgive someone who sins against me”
,
this matter’s background could be a possible example of a
difficulty similar to what the biblical Peter was battling within
his
mind when he asked Christ this question.
The
initial summons herein was issued on 30 April 2007. This
is probably why on 17 March 2016, this court directed the
Registrar
to give priority to this “long outstanding matter” when
allocating a date for set down.
In
considering the present application I have had to look closely as to
why we are still where we are with it, by doing so, also
giving
appropriate response to the applicant’s invitation to me, to do
so, in her reply to the rule 30 application.
2.
The
applicant approached court in terms of
Rule 30
of the Uniform
Rules of Supreme Court (rules) seeking an order declaring the fifth
defendant’s (respondent herein) filing,
on 14 April 2016, of a
document captioned “defendant’s exception to the
plaintiff’s amended particulars dated
18 November 2014”
to be an irregular step and that it be set aside. The
application is premised on the fact that the
said exception was filed
out of time. The application is opposed by the respondent who
has simultaneously sought an order
postponing the
Rule 30
application and extension of the period for the filing of the
exception to 17 days alternatively, condonation for the late filing.
The application for the extension of this 15 day period for the
filing of the exception to 17 days of the condonation thereof is
in
turn opposed by the applicant.
3.
It
became common cause during the hearing of the matter that when the
respondent filed the exception on 14 April 2016, it was two
days out
of time, of the leave granted to it, to file a plea or subsequent
pleading to the plaintiff’s amended particulars
of claim dated
18 November 2014. The order granting the said leave was made 17
March 2016 following a
Rule 30
application against the
respondent. At that time the respondent was late in her
filing of a plea to the applicant’s
particulars of claim.
Presently after the expiry of the 15 day period of the leave to file
further pleading, granted on 17
March 2016, two days later, on 14
April 2016 the respondent filed the exception, dated 8 April 2016,
without an application for
condonation. On 19 April 2016, the
applicant filed a notice in terms of
Rule 30(2)
complaining
that the filing of the exception was an irregular step, afforded the
respondent an opportunity to remove the cause
of complaint within 10
days, failing which an application in terms of
Rule 30
would
be brought in the present form. On 15 June 2016 the applicant
caused the
Rule 30
application to be set down.
4.
Subsequently,
the respondent filed the notice of motion dated 27 June 2016, seeking
the postponement of the hearing of the
Rule 30
application
sine die
, leave to file an answering affidavit to the
Rule
30
application, extension of the time period granted for the
order of 17 March 2016, alternatively the condonation of the late
filing
of the exception. There is a history to the conduct of
the litigation herein, which led to the order of 17 March 2016.
According to the respondent the said history bears little relevance
to the present application. This cannot be entirely correct,
in
particular in relation to the application for condonation, as
correctly averred by the applicant.
5.
All
the papers relevant to the
Rule 30
application had been filed
and the application for condonation had also been filed. In the
light thereof, there was no need
for the postponement of the hearing
of the
Rule 30
application. The respondent’s
application for leave to file the answering affidavit to this
Rule
30
application was granted.
6.
The
issue for the application is whether the exception should be set
aside as an irregular step and whether for the extension of
the time
period within which to file the exception or condonation for its late
filing should be granted.
7.
It
is common cause that due to ongoing failure for late imparting of
information to the respondent’s department by the State
Attorney’s office, Mthatha (State Attorney) on 14 November 2014
this court made an order that the State Attorney’s
office must
forward all documentation served on it to the director of the
respondent’s department litigation.
On 8 April (two days
before the 12
th
, that being the expiry day of the days of
the order of 17 March 2017), the respondent couriered the exception
to the State Attorney
for the latter to have it filed and served on
11 April 2016. The exception was served timeously after 12h00
on 12 April 2016,
having been received by the State Attorney on that
same date. It was however filed two days later, on 14 April
2016.
8.
The
respondent was however not aware that the exception was not timeously
filed. When it received the notice of set down on
20 June 2016
for hearing on 28 June 2016, as it later transpired in respect of the
present matter, it believed that it was in respect
of the exception.
It
was on 22 June 2016, after investigations prompted by the fact that
28 June 2016 was during recess, when no opposed matters are
sitting,
and the receipt of an index served on the State Attorney on 20 June
2016, that they became aware that it was the present
matter that had
been enrolled; that it was in respect of a new
Rule 30
notice
served by the plaintiff on 19 April 2016. It also transpired
that service of the notice of motion pertaining to the
said
Rule
30
notice had been accepted by the State Attorney on 10 May 2016
and was never transmitted to the respondent.
9.
No
explanation was given by the State Attorney about the failure to
forward the notice of motion and
Rule 30
notice to the
director of the respondent’s department litigation in
compliance with this court order of 14 November 2014.
Similarly, no explanation was given as to why the exception was not
timeously filed, when it had been timeously served on 12 April
2016.
The respondent was therefore not aware of even the notice affording
it an opportunity to remove the cause of complaint
on the 20 June
2016.
10.
According
to the respondent it is incorrect for the applicant to regard the
exception, for the reason that it was filed late, as
constituting a
step “which advances the proceedings one stage nearer
completion”. In its view the respondent
failed to comply
with court order, and, had it been aware that the exception was filed
late, it would have moved an application
for condonation. This is
what was done immediately after the 22 June 2016 discovery. The
respondent has no knowledge of how
it would have removed the cause of
complaint in terms of
Rule 30
when the issue related to
non-compliance with the court order.
11.
The
applicant took issue with the respondent’s seemingly denying or
triviliasing the two day lateness of filing, referring
to it as
technical and constituting no prejudice on the applicant, she was
served timeously.
According
to the applicant the respondent has neither stated what steps it has
taken to deal with the late or non-imparting of information
to her
officials by the State Attorney nor is the said conduct confirmed by
the State Attorney. Furthermore, it is not averred
that same
was not sent timeously to her attorneys of record.
12.
As
regards the
Rule 30
application, a determination has to be
made as to whether it is a justifiable course of action, in the
present circumstances, that
of having been filed beyond the 15 day
period stipulated in the court order. If it is, whether the
applicant has made out
a case for the granting of the application.
13.
Rule
30(1)
provides:
“
party
to a cause in which an irregular step has been taken by any other
party may apply to court to set aside”.
Petse
DJP (as he then was) earlier in this matter when ruling on the
application for condonation for the late filing of the exception
reasoned as follows: “
Although various dicta on judicta;
authorities cited above was made in the non-compliance with the rule
it is my judgment that by
parity of reasoning they apply with equal
force even in relation to non-compliance with orders for the
principles is the same”
I agree with this reasoning
and am also of the view that it should apply in relation to
non-compliance with the time periods
stipulated in the court order.
The failure to comply with the court order of 17 March 2017, in as
far as it relates to the
time frames for the filing of pleadings.
Such would not be contempt of court order in the normal sense, but
more a non-compliance,
specifically relating to the time period
within which to file, as would otherwise have been stated in the
rules. Despite
that, it has been correctly held that an
exception is pleading. However, its filing and the remedy for
non-compliance, in
these circumstances, is a hybreed in a sense,
because the stage requiring a bar already passed when service of
proceeding came
into being at the instance of the court. The
effect of the court order was the re-opening for the filing which was
previously
not lately regulated by the rules. The
Rule 30
application would therefore be an appropriate course of action in the
circumstances.
14.
The
success or otherwise of the
Rule 30
application would be
impacted on by my finding this the application for condonation.
Again the principles applicable in determining
the application for
condonation were clearly restated together with relevant authorities
by Petse ADJP in his judgment. Firstly,
the party seeking
condonation has to place before court cogent reasons explaining in
full why the prescribed time frames could
not be complied with.
Secondly, the application for condonation must be brought immediately
upon realising that she has not
complied with the rules.
15.
The
respondent has applied for leave to file answering affidavit and in
that affidavit also deposed to facts seeking to have her
late filing
of the exception condoned. According to the respondent
she only received the notice of set down on 20 June
2016 having been
served on the state attorney on 15 June 2016. She was of the
view that it was her exception that was to
be heard, the date of set
down being the 28 June 2916. On 22 June2016 she received an
index which indicated that it was a
Rule 30
application that
was enrolled. It was only then that she became aware that her
exception was not filed timeously and there
had been a
Rule 30
notice served already, on 19 April 2016, upon the State
Attorney.
16.
On
the same 22 June 2016, her attorneys addressed the applicant’s
attorneys of record, recording that the respondent would
oppose the
Rule 30
application and that it should be postponed and
tendered costs on an unopposed application scale, amongst others.
On 24 June
2016 the applicant’s attorneys responded advising
that they would proceed with the matter and any application or
representations
with regard thereto should be made in court.
They also turned down a request to have the pleadings and all
correspondence
forwarded to the respondent’s department and her
attorneys, by email. Later in the replying affidavit to the
Rule 30
application the applicant indicated her refusal was
for lack of a substantive application.
17.
On
27 June 2017 the respondent’s signed a notice of motion seeking
a postponement of hearing of the
Rule 30
application and
extension of time within to file, directed in the order of 17 March
2017, alternatively, condonation for the late
filing of the
exception. There is no indication of when it was served but the
notice of application thereto was filed on
28 June 2016.
18.
The
reason for filing the exception two days late, on 14 April 2017, the
filing of the condonation application on 28 June 2016 has
been
furnished to be that the applicant was not aware until 22 June that
the exception was not timeously filed. This has
met strenuous
resistance from the applicant. According to the applicant, the
respondent waited until towards the end of
dies
to prepare the
exception. There is no explanation why the state attorney, who
was timeously served, did not transmit the
Rule 30
notice to
the respondent or her attorneys.
19.
According
to the respondent, immediately when it came to her official’s
attention that the exception did not find its way
to court timeously,
they started the process leading to the application for condonation
dated 27 June 2016.
20.
The
applicant on the other hand is of the view that the respondent has
had a long history of breaches and non-compliance with court
order in
this matter. Petse ADJP had refused a previous application for
condonation and strongly disapproved the conduct
of the respondent.
The respondent continues to flout rules and disobey court orders and
simply ask for condonation thereafter.
Even the order of 17
March was allowing the respondent indulgence on one of her breaches.
The application is not
bona fide
.
21.
It
was submitted on behalf of the respondent during the hearing of
argument that the exception is good. The respondent had
no duty
to oversee the actions of the members of South African Police
Services who arrested the plaintiff. No allegation
has been
made which causally link the respondent to the conduct complained of
by the applicant. There is no link between
the actions of the
respondent, as an authority responsible for issuing the identity
document and the damages the applicant alleged
that she suffered as a
result of being arrested, detained and charged.
22.
I
would like to revert to the issue relating to the history of the
matter. Regarding the most proclaimed judgment of Petse
ADJP,
at Par.7 the learned Judge made the following comment “……
.
there is not a shred of evidence tendered by Gwebindlala as to why
the application for condonation of
Rule 23(1)
notice or exception (depending on whatever the real intention of
Gwebindlala) was not instituted upon him realising that the filling
of the defendant’s
Rule 23(1)
notice on
Monday 2 February 2009 was out of time by the day
”.
The
learned Judge took a swipe at the conduct of the respondent’s
erstwhile attorney for filing condonation after 9 months,
in the
main. Unfortunately, the respondent had to bear the
consequences of the court’s wrath.
23.
Following
the refusal of condonation application the applicant decided to
re-open the matter by amending her particulars of claim.
Further, the order of this court of 14 November 2014
(also sought and granted in circumstances where the respondent
had
failed to comply with the rules) ordering the state attorney to
forward all documentation served on it to the respondent’s
litigation department, together with the request on 22 June 2016,
albeit after circumstances leading to the genesis of issues in
this
matter had occurred, indicate that there had been a problem with the
forwarding of documents by the state attorney to the
respondent.
The respondent has averred that it is a statutory requirement that
the service of documents on the respondent
be effected on that
office, hence over and above, she sought means to ensure that
documents are somehow also forwarded to
her department.
Finally, in this regard, despite the existence of the judgment of
Petse ADJP, this court on 17 March 2017
in the exercise of its
discretion deemed it reasonable and appropriate to allow the
respondent an opportunity to file further pleadings.
24.
The
other relevant aspect in the history of this matter is the conduct of
the applicant herself. She has submitted that the
matter has
taken too long at the instance of the respondent which offends the
principle of finality in litigation. This cannot
be, the
applicant herself has changed the version of her claim no less than
three times since the commencement of her action in
2007 up to 18
November 2014 when her final further amendment to particulars of
claim was filed.
25.
In
the final analysis, I am of the view that despite the many chances
that the respondent has been in breach of the rules in the
conduct of
this matter, I must still arrive at a finding that is informed by the
circumstances specifically relevant to the particular
default at
hand, taking into account the issue of fairness. Unlike in the
matter before Petse ADJP the application for condonation
herein was
made immediately after the respondent became aware that the
Rule
30
application was enrolled. This was communicated to the
applicant’s attorneys on the same day of receipt of the index
of
Rule 30
application, which gave the respondent knowledge
for the first time of late filing of the exception. The
respondent’s
averment, supported by the facts surrounding the
attempts to have documents also forwarded by the applicant to her
officials, remain
undisputed. Those throw out any doubt with
regard to the fact that out relevant documents, timeously served on
the state
attorney were not forwarded to the respondent or her
officials. The state attorney timeously received the exception
and served
it but failed to file it.
26.
I
agree that with the respondent that there is merit in the exception
and is worthy of being tried.
27.
In
the circumstances, I am satisfied that the respondent has made
out a case for condonation for the late filing of the exception.
I also agree that no prejudice was suffered by the applicant.
She was timeously served with the exception. To the applicant’s
comfort, condonation of the respondent’s failure is not granted
without qualification. Unlike Christ’s answer
to Peter’s
question, which said continue to forgive without putting it any
conditions to it. There are fundamental requirements
which had to be
met by the respondent for her to be given another chance.
28.
With
regard to costs, I am mindful of the fact that a party who seeks
indulgence has go to pay the costs for such. However,
in the
circumstances of this case, the applicant was approached on 23 June
advising the rule 30 application would be opposed and
condonation
would be sought for the late on the exception. The removal or
postponement of the matter was requested and unopposed
scale costs
were tendered. The reasons for the request and failure to file
timeously were given in full, but the applicant
decided to have the
matter run full course as an opposed application. When she
unsuccessfully opposed it I find no reason
to spare her from paying
the costs of its opposition.
IN
THE RESULT IT IS HEREBY ORDERED:
1.
The
respondent’s application for leave to file answering affidavit
to the
Rule
30
application is hereby granted.
2.
The late filing of the exception is hereby condoned.
3.
The applicant is hereby ordered to pay the costs of
application for the condonation application.
4.
The
Rule 30
application is hereby dismissed with no
order as to costs of the application being made.
___________________________
B.
MAJIKI
JUDGE
OF THE HIGH COURT
HEARD
ON :
31 AUGUST 2017
DELIVERED
ON: 30 JANUARY 2018
For
the Plaintiff/Applicant: Adv Zilwa SC (Instructed by)
M/s
Mafungo Tshaka Inc.
27
Victoria Street
MTHATHA
For
the Defendant/Respondent: Adv Bofilatos SC
c/o
State Attorneys
Broadcast
House
No.
94 Sissons Street
MTHATHA