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[2018] ZAECMHC 25
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Maphukatha v Alfred Ndzo District Municipality (2654/16) [2018] ZAECMHC 25 (20 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 2654/16
Heard
on: 08/03/18
Delivered
on: 20/03/18
In
the matter between:
SIKHOKHELE
MAPHUKATHA
Applicant
and
ALFRED
NDZO DISTRICT MUNICIPALITY
Respondent
JUDGMENT
NHLANGULELA
DJP
[1]
These are interlocutory proceedings in which the Applicant (the
Plaintiff in the action proceedings) issued a document titled:
“Notice In Terms Of Rule 35 (3)” calling upon the
Respondent (the Defendant) to make available within 10 days certain
documents, namely:
(i)
the application form that was submitted by the Plaintiff for the
position as per the
advertised post;
(ii)
the defendant’s staff establishment; and
(iii)
the defendant’s recruitment and selection policy.
[2]
The Applicant states in his founding affidavit that the purpose of
the Rule 35 (3) notice is to enable him to file a plea to
the
Respondent’s counterclaim.
[3]
In response to the Rule 35 (3) notice the Respondent filed a further
discovery affidavit, believing the Rule 35 (3) notice to
be requiring
of it to furnish further and better discovery of documents over and
above those that it had discovered pursuant to
the Applicant’s
earlier Rule 35 (1) notice.
[4]
In the initial discovery affidavit the Respondent had discovered the
following documents: (i) the pleadings; (ii) internal advert
of
vacant positions; and (iii) recruitment and selection policy.
In the further discovery affidavit the following documents
were
discovered: (i) originals of all process filed in the action;
(ii) originals of all correspondence posted and/or delivered;
and
(iii) copies of all documents discovered as such where the original
has been mislaid or can no longer [be found] for whatever
other
reason. Notwithstanding such discovery the Applicant brought
the present application seeking a relief in the following
terms:
“
1.
The respondent be required to discover the documents as requested by
the Applicant
(
Plaintiff
in the Main Action
)
in terms of Rule 35 (3) of the uniform rules of this Honourable Court
within ten (10) days of service of this order upon it, failing
which
the Applicant be authorised to approach this Court on the same
papers, duly supplemented, for an Order Striking out the Respondent’s
defence (
Defendant
in the Main Action
)
in the action and for judgment by default.
2.
that the respondent be ordered to pay costs of the application.
3.
Further and/or alternative relief.
”
[5]
The Respondent objects to the relief sought on the ground that both
the notice of motion and founding affidavit on which the
application
is predicated were not signed by the legal representatives of the
Applicant and the Applicant respectively. Although
these
objections were raised pertinently in the answering affidavit, they
were not explained adequately in the replying affidavit.
The
Applicant only made a bare denial that the papers before the Court
are now signed, but without giving full explanation on how
it came to
be that papers not signed on the date of launching of the application
on 23 May 2017 have now been signed. The
copies of the founding
papers that were served upon the Respondent remain unsigned.
The irresistible conclusion to be drawn
is that the Applicant and/or
those legally representing him quickly signed the papers that had
been filed on 23 May 2017 sometime
after notification was given in
the answering affidavit that the founding papers were unsigned.
In the final analysis the
affidavit of the Applicant offends the
provisions of Regulation 3 (1) of the Regulations governing the
Administration of an Oath
or Affirmation, GN R1258 in GG 3619 of 21
July 1972 as amended to the extent that the copy that was served
shows that the Commissioner
of Oaths signed the affidavit without the
deponent being present in front of him. On those basis I accept
the submission
advanced on behalf of the Respondent that the
application falls to be dismissed on the authority of the cases of
Nkondo
v Minister of Police and Another
1980 (2) SA 362
(0) at 364A-B; and
Goodwood
Municipality v Rabie
1954
(2) SA 404
(C) at 406C, that an affidavit not attested to on oath or
affirmed in terms of regulations cannot be treated as the evidence.
[6]
On the merits of the application I am in agreement with the legal
representative of the Respondent that the Rule 35 (3) notice,
a
pre-trial step, is an incorrect process to be used in calling for
discovery of documents for the purpose of pleading to the
Respondents’ counter-claim. The provisions of Rule 35
(12) or, alternatively, Rule 35 (14) must have been used instead.
The reason for the Rule 35 (3) notice is borne out of the allegations
made by the Applicant in paragraph 9 of the founding affidavit
which
read:
“
It is
respectfully submitted that the required documents are very crucial
to the main action more particularly for purposes of pleading
to the
counterclaim raised by the Respondent.”
[7]
On the Applicant’s own showing the relief that he seeks cannot
be granted. On the face of a clearly incorrect procedure
having
been adopted, it was submitted on behalf of the Applicant that, in
essence, it matters not whether Rule 35 (3) or Rule 35
(6) (and by
implication Rule 35 (12) or Rule 35 (14) was used because the
documents are sought to be used towards preparation for
trial in due
course. These submissions cannot be sustained because they
undermine the function that each of the sub-rules
serves in action
proceedings; and especially that the prejudice suffered by the
Respondent due to non-compliance will be undermined.
The
orderly management of trials by the Courts will also be undermined.
[
8
]
The difficulty experienced by the Applicant in this matter lies in
the unfortunate misconstruction, and the consequent misapplication,
of the provisions of Rule 35 (3).
[9]
Therefore the costs of the application must be paid by the Applicant.
[10]
In the result the following order shall issue:
The application
is dismissed with costs.
_________________________
________________________
Z. M. NHLANGULELA
DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel for the
Plaintiff :
Mr
Mzileni
:
c/o Bala Mzileni & Associates
MTHATHA.
Counsel the
Defendant
:
Adv.
Mgidlana
Instructed
by
: T.L. Luzipho
Attorneys
MTHATHA.