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[2018] ZAECMHC 20
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Ndorum Joint Venture v Minister of Transport, National and Others (1194/2016) [2018] ZAECMHC 20 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO:1194/2016
In
the matter between:
NDORUM
JOINT VENTURE
APPLICANT/PLAINTIFF
AND
MINISTER
OF TRANSPORT,
NATIONAL
& 3 OTHERS
RESPONDENTS/DEFENDANTS
JUDGMENT
DAWOOD,
J:
1.
The
Applicant herein brought an application for an order in the following
terms:
a)
That
the Exceptions filed by the Second and Third Respondent be and are
hereby set aside.
b)
That
the Second and Third Respondent are directed to file their pleas to
the particulars of claim, if, any within 15 days of grant
of this
order.
c)
That
costs of this application are reserved for determination by the trial
court.
2.
At
the hearing of the opposed matter and after argument was presented by
the respondent the applicant sought to amend the relief
sought to
read:
a)
That
the purported exception filed the purported exception filed by the
Third Respondent be and is hereby set aside.
b)
That
the Third Respondent is directed to file its plea to the particulars
of claim (if any) within 15 days of the grant of this
order.
c)
The
Applicant also sought costs of the application despite asking for it
to be reserved for determination by the trial court in
the notice of
motion.
3.
The
Respondent brought a counter application wherein they sought an order
in the following terms:
a)
That
the Third Respondent be granted leave to amend its exception dated 18
April 2017 in line with the proposed amendment in its
notice of
intention to amend dated 12 June 2017
b)
That
the third respondent be condoned for failure to comply with time
periods as contemplated in the rules.
c)
That
any party opposing this application be ordered to pay costs.
d)
Further
and or alternative relief.
4.
I
have taken due cognisance of the voluminous averments made in the
papers and the extremely helpful heads of arguments presented
by both
sides.
5.
For
the sake of brevity I do not propose to refer to them extensively.
6.
Suffice
it to say that the Applicant made cogent arguments that the conduct
of the litigation on behalf of the third defendant was
without doubt
to put it very mildly unacceptable and bordering on an abuse of the
court process.
7.
The
Applicant clearly sought more than simply a dismissal of the
exception so it was correctly argued on his behalf that section
30A
accordingly was not applicable since they did not merely seek the
dismissal of the exception but a direction that the third
defendant
files its plea.
8.
The
Applicant accordingly was not precluded by the provisions of Rule 30
from bringing the present application. This application
went beyond
the ambit of Rule 30 and accordingly their failure to utilise the
provisions of Rule 30A prior to the launching of
the application is
not fatal to the launching of this application nor does it render the
application defective without giving the
Respondent one final
opportunity to put its house in order.
9.
I
however am of the view that it will be going to far if this court
were to preclude the party from utilising procedures such as
an
exception that are provided for in the rules and compel them to file
a plea in exercising its powers in respect of Rule 27.
10.
The
Applicants/Plaintiffs frustrations in the manner in which this
purported exception and the previous ones have been filed is
perfectly understandable having regard to the history of this matter
with the 3
rd
defendant even to date not getting it right and now seeking to amend
and file a proper exception and have the late filing condoned.
11.
The
Third defendant has briefly:
a)
Filed
a notice in terms of Rule 23 (1) on the 27 October 2016
b)
Filed
a second notice in terms of Rule 23 (1) on the 14 February 2017 on
the same terms.
c)
Filed
an exception on the 20 March 2017.
d)
Filed
a notice of withdrawal of exception on the 23 March 2017
e)
Filed
a third notice in terms of Rule 23 (1) on the 23 March 2017
f)
Filed
a second exception not signed in terms of the rules on the 19 April
2017.
12.
The
third defendant has clearly made a mockery of the rules of court and
glibly states that it has not been barred thereby implying
that it
can continue flouting the rules of the court with impunity until the
other party bars them from doing so.
13.
This
attitude on the part of a state organ that has constitutional
obligations is to be frowned upon. The applicant has set out
these
obligations quite clearly in their application papers and it shall
not be repeated herein.
14.
The
Third Respondent/Defendant flouted the rules of court and made a
mockery of the same by flagrantly disregarding the same in
the manner
they utilised the rules.
15.
When
they realised they were out of time instead of applying for
condonation at that stage they simply re-issued their notice to
bring
it back with the ambit of the Rules. They then simply withdrew the
same and filed a further defective one.
16.
The
manner in which they have approached this matter clearly not a
situation that was envisaged in any of the cases referred to
by the
Third Defendant/Respondent.
17.
It
is well after the Applicant launched the application that the third
defendant sought to amend and then brought an application
for
condonation and even at that stage did not properly deal with the
reasons for failing to comply with the rules and filing and
withdrawing the exceptions.
18.
I
however accept at the same time that the Third Defendant has
throughout expressed a firm intention to raise these exceptions and
it cannot be gainsaid that it was indeed communication issues with
their local state attorney, even in the absence of confirmation
to
that effect from the local state attorney, that led to these
exceptions not being properly before court timeously.
19.
I
am extremely loath in the circumstances despite my prima facia views
with regard to the exception, to shut the door on the third
defendant
despite the blundering, inept, inexcusable, and incomprehensible
manner in which this litigation has been was approached
by the Third
Defendant thus far.
20.
I
accordingly, albeit reluctantly, am disposed to grant the Third
Defendant one final indulgence by granting the condonation and
allowing them a final opportunity to file a proper exception in its
amended form within 5 court days of grant of this order despite
the
appalling manner in which the Third defendant has conducted this
litigation thus for which boarders on an abuse of the process
of this
Court.
21.
In
order to further ameliorate the prejudice that the applicant has
suffered as a result of the delays in bringing this exception
to
court, the DJP has agreed that he may be approached on or before the
13
th
April 2018 by the parties to grant this matter a preferential date
for the hearing of the Exception on the opposed roll with the
parties
to be placed on such terms as are deemed appropriate for the filing
of further documents and heads of argument as may be
agreed upon or
ordered.
22.
The
conduct of the third defendant despite the fact that I am albeit
reluctantly, disposed to granting it a final indulgence clearly
warranted the bringing of the application and despite my granting the
indulgence sought by the third defendant as a mark of my
displeasure
of the manner in which the litigation was conducted, I am nonetheless
disposed to in the circumstances of this case
to order the third
defendant to pay the plaintiff’s/applicant’s costs.
23.
I
am further of the view that to bring about finality to this matter
and to prevent further delays being caused by the third defendant
flouting the rules of this Court an exercise of the powers in terms
of Rule 27 is warranted in the event that the third defendant
does
not comply with the order timeously and put its house in order and
file a proper timeous exception.
24.
The
order accordingly will grant the third defendant the indulgence it
seeks but at the same time in the event of its non-compliance
with
the order grant the relief sought by the Applicant.
25.
I
accordingly make the following order:
i)
That
the Third Defendant’s failure to comply with the time periods
contemplated in the rules be and is hereby condoned.
ii)
The
Third Defendant is granted leave to amend its “exception”
dated 8 April 2017 in line with the proposed amended in
its notice of
amendment dated 12 June 2017 and to serve and file its duly signed
and amended Exception within 5 court days of granting
of this order.
iii)
The
Plaintiff and Third Defendant are directed to approach the DJP of
Mthatha on or before the 13
th
April 2018 to accord the matter such preference as he deems
appropriate.
iv)
In
the event of the Third Defendant failing to file his exception within
5 court days of the grant of this order he shall:-
a)
Ipso
facto
be
barred from filing any further exceptions; and
b)
The
Third Defendant shall have to file his plea within 20 court days upon
the lapse of the 5 court days with no further indulgences
being
entertained.
v)
The
Third Defendant is directed to pay the Plaintiff’s/Applicant
costs of the application inclusive of the costs of the hearing
of the
opposed motion on the 15 march 2018 and the filing of heads of
argument and core heads of argument such costs to include
the costs
of two counsel.
__________________________
DAWOOD
J
JUDGE
OF THE HIGH COURT
DATE
HEARD:
15 MARCH 2018
JUDGMENT
DELIVERED:
29 MARCH 2018
FOR
THE PLAINTIFF:
MS OLSEN WITH MR KEMP
PLAINTIFF’S
ATTORNEYS:
SMITH
TABATA ATTORNEY
34 STANDFORD TERRACE
MTHATHA
FOR
THE DEFENDANT:
MR KUNJU – 2
ND
MR
L NMUSI – 3
RD
MR
MTSHABE – 5
TH
DEFENDANT’S
ATTORNEYS:
STATE ATTORNEY
BROADCAST HOUSE
94 SISSON STREET
FORTGALE
MTHATHA; AND
ZILWA ATTORNEYS
SUITE 452 –
4
TH
FLOOR
DEVELOPMENT HOUSE
YORK ROAD
MTHATHA