About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 10
|
|
Safety and Security Sector Education Training Authority v Mastofusion (Pty) Ltd (5555/2016) [2018] ZALMPPHC 10 (19 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE…19/03/08……
SIGNATURE:………….
CASE
NO: 5555/2016
In
the matter between:
SAFETY
& SECURITY SECTOR EDUCATION
TRAINING
AUTHORITY
APPLICANT
And
MASTOFUSION
(PTY) LTD
RESPONDENT
JUDGMENT
KGANYAGO
J
[1]
The applicant (defendant in the main action) has brought an
application for condonation for the late delivery of its objection
in
terms of Rule 28(3) to the respondent’s (the plaintiff in the
main action) notice of amendment of its particulars of claim
dated
23
rd
March
2017. The respondent is opposing the applicant’s application.
[2]
According to the applicant, on the 2
nd
March 2017 it delivered a notice of exception to the respondent’s
particulars of claim. The respondent in turn served its
notice of
intention to amend its particulars of claim on the 24
th
March 2017. The applicant was supposed to have delivered its
objection to the respondent’s intended amendment on or before
the 7
th
April 2017. The applicant realized on the 8
th
April 2017 that it has been labouring under a misapprehension that it
was supposed to deliver its objection by Monday the 10
th
April 2017. Upon realizing its misapprehension it immediately
prepared the present application for condonation. The applicant also
served its objection on the respondent on the 10
th
April 2017.
[3]
The application for condonation was duly served on the respondent. On
receipt of the application, the respondent wrote a letter
to the
applicant’s attorneys notifying them that their notice of
motion was defective. The applicant served an amended notice
of
motion on the respondent on the 8
th
May 2017. The respondent served its notice to oppose on the 22
nd
May 2017 and its opposing affidavit on the 13
th
June 2017.
[4]
In its answering affidavit the respondent has raised a point
in
limine
of non-compliance with the rules. However, this point
in
limine
was abandoned by the respondent when the matter was argued before the
Court on the 21
st
February 2018. The respondent raised another point
in
limine
from the bar arguing that the applicant’s heads of arguments
were defective. The respondent also abandoned this point
in
limine.
[5]
On the merits of the applicant’s application, the respondent
has submitted that the applicant’s attorney did not
exercise
great care towards the matter, and was therefore in willful default.
The respondent is of the view that the applicant
will not suffer any
prejudice if condonation is not granted, and also that the applicant
has no prospects of success with its objection
to the respondent’s
intended amendment to its particulars of claim.
[6]
It is trite that condonation is not to be had merely by asking, a
full detailed and accurate account of the causes of delay
and their
effects must be furnished so as to enable the Court to understand
clearly the reasons and to assess the responsibility.
It must be
obvious that if the non-compliance is time-related then the date,
duration and extent of any obstacle on which reliance
is placed must
be spelled out. (See
Uitenage
Transitional Local Council v South African Revenue Services 2004(1)
SA 292 (SCA
)
at paragraph 6).
[7]
Factors which are usually taken into consideration by the Court in
determining an application for condonation include the degree
of
lateness, the explanation therefore, the prospects of success and the
importance of the case. (
See
Melane v Santam Insurance
1962 (4) SA 531
(A) and Dengetenge Holdings
(PTY) LTD v Southern Sphere Mining and Development Company Ltd
& Others [2013]ZASCA 5).
[8]
A party seeking condonation should, whenever he realizes that he has
not complied with the Rule of this Court, apply for condonation
without delay. The applicant was supposed to serve its objection on
the respondent’s intended amendment by the 7
th
April 2017. It realized on the 8
th
April 2017 that it has not complied with the rules of this Court. On
the 10
th
April 2017 it served its application for condonation on the
respondent. In my view the applicant did not delay in filing its
application
after realizing that it did not comply with the rules of
this Court.
[9]
A full, detailed and accurate account of the causes of delay must be
furnished. The applicant’s legal representative has
taken this
court into confidence and stated that he had been labouring under a
misapprehension that the objection should be delivered
by the 10
th
April 2017. The question is whether the conduct of the applicant’s
attorney in failing to serve the objection timeously amounted
to
negligence on his part.
[10].
It is trite law that negligence on the part of the attorney will not
necessarily exonerate the litigant. In this case the
applicant’s
attorney was aware that he was supposed to file an objection and had
a wrong date in mind on which he had to
serve the applicant’s
objection. In my view, the applicant’s attorney’s conduct
does not amount to negligence
but was merely an honest mistake. The
attorney who had deposed the affidavit for the condonation
application has given a full explanation
of what caused the delay.
The applicant when it realizes that it was out of time, it was only
one day late. In my view the applicant
was not extremely out of time
of serving and filing its objection. The Court is satisfied that the
applicant’s explanation
is adequate.
[11]
The relief which the respondent is seeking against the applicant
involves public funds. Therefore, this matter in my view is
of public
importance.
[12]
The applicant has already served and filed its objection to the
respondent’s intended amendment to its particulars of
claim. On
perusal of the said objection, the applicant is having a fairly good
chance of prospects of success. However, that will
be determined
after the matter was properly argued in Court.
[13]
The respondent in opposing the applicant’s application has also
relied on technical grounds. The respondent argues that
they want to
see this matter been finalized speedily. In my view it does not seem
that the respondent will suffer any prejudice
if condonation is
granted, as it is still having an opportunity to oppose the
applicant’s objection.
[14]
The respondent in opposing the applicant’s application for
condonation has relied on the case of
Rabie
v De Wit (A320/12) [2013] (WCC
)
at paragraph 17 where the court said:
“
Thus
in Trans-Africa Insurance Ltd, supra, the requirement of prejudice
was reaffirmed by Schreiner JA, who quoted with approval
what was
held by a Full Bench in Foster v Carlis and Houthakker in a similar
context:
‘
It
seems to me impossible to construe the rule otherwise than as
conferring upon the court the power to condone any such irregularity
or impropriety because the contrary view would convert the latter
part of the rule into an instruction to the court to set aside
the
irregular or impropriety proceedings…It seems to me, therefore
that the court is entitled to overlook in proper cases
any
irregularity in procedure which does not work any substantial
prejudice to the other party [emphasis added]”
[15]
In my view the Rabie v De Wit case is self-defeating to the
respondent’s case. The principle as formulated in that case
is
that the Court has a discretion to overlook any irregularity in
procedure which does not cause prejudice to the other party.
I
have already held in paragraph 13
supra
that the respondent will not suffer any prejudice if the applicant’s
condonation application is granted. The failure by the
applicant to
timeously serve and file its objection relates to procedure. The
Court is therefore satisfied that the applicant has
shown good cause
why its condonation application should be granted.
[16]
In
the result the following order is made:
16.1 The
applicant’s application for condonation for late delivery of
its objection in terms of Rule 28(3) to the respondent’s
notice
of amendment of its particulars of claim dated 23
rd
March
2017 is granted with costs.
_________________________
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION,
POLOKWANE
Appearances
1.
For
the applicant
:
Adv TF Mathibedi
SC
2.
Instructed
by
:
Maboku Mangena Attorneys
3.
For
the Respondents
:
Adv Maake
4.
Instructed
by
:
Myburg Ralenala Attorneys
5.
Date
of Argument
:
21
st
February 2018
6.
Date
of Judgment
:
20
th
March 2018