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[2018] ZAECMHC 58
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MEC For Health, Eastern Cape Province v Tsomo (3657/2016) [2018] ZAECMHC 58 (19 October 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION - MTHATHA)
Case No: 3657/2016
In
the matter between:
MEC
FOR HEALTH, EASTERN CAPE PROVINCE Applicant
and
TENGILE
TSOMO
Respondent
JUDGMENT
MALUSI
J
:
[1]
The applicant approached court to seek an urgent interim order to
stay execution of a warrant against
movable property. The
application is vigorously opposed by the respondent.
[2]
The background to the application is that on 21 May 2016 the
respondent had instituted action for damages
against the applicant
for medical negligence by the applicant’s employees at Bedford
hospital, Mthatha. On 22 May 2018
the claim was settled and the
agreement between the parties was made an order of court. The
applicant was also ordered to
pay the costs of the action on a party
and party scale. It appears the amount of damages awarded in
the sum of R1 051 394.00
was subsequently paid by the
applicant.
[3]
On 29 May 2018 the respondent served on the applicant a notice of
taxation of his bill of costs.
The applicant did not file an
objection to any item on the bill of costs. The applicant’s
legal representatives aver
that the notice of taxation was not
brought to their attention by the administrative staff in their
offices. On 26 June 2018
the Taxing Master taxed the bill and
allowed the sum of R482 732.92 for costs.
[4]
On 29 June 2018 the respondent’s attorney sent by electronic
mail the taxed bill to the applicant’s
legal representatives.
When no response was forthcoming, a reminder was sent to the same
representatives.
[5]
On 1 August 2018 the respondent’s attorney conveyed a warning
to the applicant’s legal representatives
that applicant will
apply for a warrant of execution if payment of the taxed costs was
not received. This elicited no response
from the applicant’s
legal representatives.
[6]
On 13 August 2018 the applicant caused a warrant of execution against
the respondent’s property
to be issued by the Registrar of this
Court. A copy of the warrant of execution was sent to the head
of legal services of
the respondent on 14 August 2018. He
responded on the same day indicating that he will investigate ‘
what
is the bottleneck for payment of legal fees.’
[7]
On 17 August 2018 the Sheriff attached immovable property belonging
to the respondent. It does
not appear the attachment elicited
any action on the part of the respondent.
[8]
On 30 August 2018 the respondent’s attorney sent a letter to
the applicant’s attorney annexing
the warrant of execution and
Sheriff’s costs requesting that payment be effected. This
elicited no response from the
applicant’s attorney.
[9]
On 1 October 2018 the respondent’s attorney informed the
applicant’s attorney that the Sheriff
has been instructed to
remove the attached property. The applicant’s attorney
only enquired whether or not the requisite
procedures have been
followed in the execution of the warrant. On 2 October 2018 the
Sheriff removed some of the attached
property from the premises of
the applicant. He indicated that he will return on 8 October
2018 to remove the rest of the
attached property.
[10]
The removal precipitated a flurry of activity by the legal
representatives and employees of the applicant.
On 5 October
2018 a letter was sent to the respondent’s attorney requesting
an indulgence to allow the release of the property,
stay of execution
and re-taxation of the bill of costs. On 11 October 2018 the
application was launched when no favourable
response was received to
the request for an indulgence.
[11]
The respondent filed a notice to oppose the application
contemporaneously with an answering affidavit. The
respondent
subsequently filed a notice contemplated in Uniform Rule 35(12)
requiring the applicant to produce a copy of the delegation
of powers
referred to by the deponent in the founding affidavit.
[12] Mr
Kunju, who appeared on behalf of the respondent, submitted that
the applicant had failed to provide the
document requested in the
rule 35(12) notice. The applicant cannot rely on the document
and consequently the application
was not by the applicant but an
official on a frolic of his own. Thus it must be dismissed on
this basis as only the applicant
is empowered by statute to bring the
application.
[13] Mr
Mbiko, who appeared on behalf of the applicant, submitted that these
are not new proceedings but part of the
earlier action proceedings.
He argued that the deponent to the founding affidavit need not be
authorized by the applicant.
[14] Mr
Kunju’s argument morphed into a challenge on the lack of
authority by the deponent. He asserted
that any founding
affidavit in an application by a State official must contain an
averment that he is authorized to bring the application.
[15]
Uniform Rule 35(12) provides that:
“
35(12)
Any party to any proceeding may at any time before the hearing
thereof deliver a notice
as near as may be in accordance with Form 15
in the First Schedule to any other party in whose pleadings or
affidavits reference
is made to any document or tape recording to
produce such document or tape recording for his inspection and to
permit him to make
a copy or transcription thereof. Any party
failing to comply with such notice shall not, save with the leave of
the court,
use such document or tape recording in such proceeding,
provided that any other party may use such document or tape
recording.”
[16]
It has been held that Uniform Rule 35(12) has an automatic,
self-contained sanction of ‘
a
negative nature, being to the effect that a party failing to comply
with the notice shall not, save with the leave of the court,
use the
document in question, provided that any other party may use such
document.’
[1]
If
a litigant is not satisfied with that sanction then resort may be
sought in Uniform Rule 30A according to Hoerskool Fochville.
[17]
Uniform Rule 30A provides:
“
30A
Non-compliance with rules
(1)
Where a party fails to comply with
these rules or with a request made or notice given pursuant thereto,
any other party may notify
the defaulting party that he or she
intends, after the lapse of 10 days, to apply for an order that such
rule, notice or request
be complied with or that the claim or defence
be struck out.
(2)
Failing compliance within 10 days,
application may on notice be made to the court and the court may make
such order thereon as to
it seems meet.”
[18] It
must be pointed out that failing compliance with the notice, an
application may be made to court and the court
may make an
appropriate order. It goes without saying that the time frames
will be truncated as required by the particular
circumstances.
[19] In
this matter, the Rule 35(12) notice sought a document never referred
to in the founding affidavit. The
deponent stated:
“
By
virtue of my appointment and position in the department and the
delegation of powers in the office of the MEC, Eastern Cape Province,
I am duly authorizsed to depose to this affidavit on behalf of the
Applicant.”
[20]
Clearly, the deponent refers to authorization to depose to the
founding affidavit and not ‘
authorization to launch these
proceedings as stated in the Rule 35(12) notice.’
In
my view the failure to reply may be justifiable on this basis.
[21]
Furthermore, the deponent to an affidavit in motion proceedings need
not be authorized by the party concerned to
depose to an affidavit.
It is the institution of the proceedings and the prosecution thereof
which must be authorized.
[2]
As such even if the Rule 35(12) notice related to the document
referred to in the founding affidavit, in my discretion such
a
document is irrelevant and need not be provided.
[3]
[22]
Even if I were wrong, there was no Rule 30A notice filed by the
respondent which would be the jurisdictional factor
for the court to
consider the failure to reply to the Rule 35(12) notice. In
exercising my discretion it appears that absent
the Rule 30A notice
there is no scope for the court to intervene.
[4]
[23] I
have considered the authorities relied upon by Mr Kunju for the
proposition that there must always be an averment
to the effect that
the deponent is authorized. In my view these are
distinguishable. The present matter has the same
case number as
the action proceedings. It was served by applicant’s
attorneys on the respondent’s attorneys and
not initiated in
the manner provided in Rule 6 for new applications. The
respondent did not complain that the applicant had
taken any
irregular step. It appears to me the action for damages will
only be finalized once the damages and costs awarded
by court are
paid in full. On these facts the application is not new
proceedings which needed to be authorized by the applicant.
[24] Mr
Kunju submitted that the application lacks urgency. If there is
any, it is self-created by the applicant
who knew about the warrant
of execution since 14 August 2018 as outlined above.
[25] Mr
Mbiko argued that urgency arose on 2 October 2018 when the Sheriff
removed the applicant’s property.
Before that date there
was none. He also pointed out that the applicant has advertised
a sale in execution scheduled for
25 October 2018 which also creates
urgency for the matter to be heard.
[26] In
my view the matter is urgent. The scheduled sale was six days
away from the date of hearing. There
is imminent harm to the
applicant if the sale proceeds. The applicant may suffer
serious financial consequences if the sale
goes ahead.
[27] It
appears to me the applicant satisfies all the requirements for grant
of an interdict. The practice in
this division is to either
grant or refuse a final interdict when a matter has been fully
argued. The argument in this matter
was protracted and full as
it spread over two days.
[28] The
property removed belongs to the applicant. He has a clear right
for it not to be sold in a flawed legal
process. Mr Mbiko contended
that the process of execution was vitiated by procedural
irregularities. He relied on the State
Liability Act and the
judgment in
Nyathi v MEC for Health, Gauteng & Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC)
2008 (9) BCLR 865
(CC).
[29] I
find merit in the argument. It appears the execution is
invalidated by the procedural irregularities in
failing to comply
with the procedures laid down in Nyathi. The flawed execution
constitutes an injury committed against the
applicant.
[30]
There is no other satisfactory remedy available to the applicant.
He has indicated he intends to apply for
a review of the taxed bill
of costs. He would not get relief from any other remedy.
[31] It
is necessary to convey my displeasure at the conduct of the applicant
before the application was launched.
The respondent had done
everything possible to obtain payment of the costs from applicant.
The correspondence displays indifference
by officials of the
applicant. The application was eminently avoidable if the
applicant’s officials handling the matter
had acted with
diligence and professionalism. The respondent’s attorneys
had taken all the necessary steps to request
payment without having
to execute the warrant. I intend to award costs to the
respondent as a mark of my disapproval of the
conduct of the
officials. I am not persuaded that the conduct is so
‘
reprehensible’
to deserve a costs order on a
punitive scale as requested by Mr Kunju.
[31] In
the result the following order will issue:
31.1 The
attachment and the removal of the applicant’s motor vehicles,
namely, Toyota Hilux 4X4 with Registration No:
[….], Chevrolet
Aveo with Registration No: [….], Ford Icon, 1.6 with
Registration No: [….] and Isuzu Truck
400 with Registration
No: [….] be and is hereby declared unlawful;
31.2 The
respondent be and is hereby directed to immediately release to the
applicant, the applicant’s motor vehicles
or state movable
property referred to in the above paragraphs at no costs at all to
the applicant;
31.3 The
respondent be and is hereby interdicted and restrained from further
unlawfully interfering with the applicant’s
possession of the
aforesaid motor vehicles or state movable property referred to above
paragraph 3.1;
31.4 The
respondent be and is hereby interdicted and restrained from
advertising for sale in execution scheduled for 25 October
2018 the
applicant’s motor vehicles or state movable property referred
to in the above paragraphs;
31.5 The
respondent be and is hereby interdicted and restrained from selling
the applicant’s motor vehicles or state
movable property
referred to in the above paragraphs on a sale in execution scheduled
to take place on Thursday, 25 October 2018;
31.6 The
sale in execution scheduled to take place on Thursday, 25 October
2018 be and is hereby stayed pending the finalization
of the review
application to be instituted by the applicant of the respondent’s
taxed bill of costs;
31.7 The
applicant be and is hereby directed to institute the review
application of the respondent’s taxed bill of costs
within 10
days of this order. Failure to do so will cause the above
orders to lapse and the respondent will be entitled to
initiate the
execution process on the taxed bill of costs.
31.8 In the
event the applicant incurs any costs, being the storage costs, costs
of removal, transportation costs or any costs
whatsoever, the
respondent is held liable for such costs and is directed to pay all
such taxed costs within 14 days from the date
of taxation.
31.9 The
applicant is ordered to pay the respondent’s taxed or agreed
costs on a party and party scale.
T MALUSI
JUDGE OF THE HIGH
COURT
Appearances
:
For the
Applicant:
Adv Mbiko
instructed by
State Attorney
94 Sission Street
Fort Gale
MTHATHA
For
the Respondent:
Adv Kunju
instructed
Mgweshe Ngqeleni Inc
No 18 Park Road
MTHATHA
Heard
on:
16 & 17 October 2018
Judgment
delivered:
19 October 2018
[1]
Centre for Child Law v The
Governing Body of Hoerskool Fochville
[2015] 4 All SA 571
(SCA),
2016 (2) SA 121
at para 15.
[2]
Ganes & Another v Telkom
Namibia Ltd
2004 (3)
SA 615
(SCA) at 624F-H,
Firstrand
Bank Ltd v Fillis & Another
2010 (6) SA 565
(ECP) at para 13.
[3]
Hoerskool Fochvill ibid
at para 18.
[4]
Hoerskool Fochville ibid
at para 17 and the authorities cited therein.