Summary of Judgment

Introduction

The proceedings concerned an interlocutory application brought by the respondents (in the main application) for leave to file a further (fourth) set of affidavits in motion proceedings. The interlocutory dispute arose within a pending review application in which the applicant, Mr Martin Dippenaar, sought judicial review of a decision by correctional services authorities to transfer him as a prisoner from a correctional facility in Upington to a facility in Kimberley.

The parties were Mr Dippenaar as applicant in the main review, and the Minister of Correctional Service together with various correctional services officials and committee chairpersons as respondents. The judgment recorded that, for clarity, the parties would be referred to as in the main application.

Procedurally, an interim interdict had already been obtained by Mr Dippenaar: a rule nisi was issued on 27 February 2015 and later confirmed on 28 August 2015, preventing the transfer pending the outcome of the review. The costs of the interim interdict were ordered to be costs in the review application. The review application was duly instituted, opposed by the respondents, and an answering affidavit was filed. The present interlocutory application concerned whether the respondents should be permitted to file additional affidavits addressing a ruling by the Judicial Inspectorate for Correctional Services (JICS) that had been attached to the applicant’s replying affidavit in the review.

The general subject-matter of the dispute in the main application remained the lawfulness and procedural compliance of the transfer decision; however, the present judgment dealt only with the procedural question of additional affidavits (and the related question of costs in the interlocutory application).

Material Facts

The court accepted that the main review was brought on the basis, in broad terms, that transferring the applicant from Upington would remove him from proximity to his family. The applicant also relied on the contention that he was studying architecture through an external institution and had access in Upington to a mentor who could visit periodically, whereas he alleged he would not have equivalent access in Kimberley. In addition, he alleged that the respondents had not complied with statutory formalities in deciding on the transfer.

Before the review was launched, a complaint was lodged with JICS by Ms Rita Strauss on behalf of her brother Mr DP Strauss and the applicant. JICS, by letter authored by Mr James Madiga dated 23 March 2015, ruled that the “mandatory procedures” contemplated in section 43 of the Correctional Services Act 111 of 1998, read with regulation 25 and “B order 1 chapter 2”, had not been complied with.

It was undisputed that this JICS ruling was not available to the applicant when he launched the founding papers in the main review. It was also acknowledged by the respondents that the JICS ruling was available to them before they finalised their answering affidavit in the main application. After it later came into the applicant’s possession, it was attached to the applicant’s replying affidavit in the review proceedings.

The respondents’ stance, as recorded by the court, was that Mr Madiga had misunderstood and/or misconstrued certain documents and had failed to consult relevant personnel to clarify issues before making the JICS ruling. The respondents therefore sought leave in the interlocutory application to file a rejoinder (a fourth set of affidavits) to address what they contended were errors in the JICS ruling and the applicant’s reliance on it.

As to the reason why the respondents did not deal with the JICS ruling earlier, the deponent to the respondents’ founding affidavit in the interlocutory application explained that the ruling had been present during a consultation (apparently relating to the interim interdict) on 24 March 2015, where a hard copy was placed on the table. The respondents’ counsel later indicated that he may have missed it, did not remember seeing it, and that if he had seen it he would have dealt with it. The review application itself was launched shortly thereafter on 25 March 2015. The respondents’ deponent further explained that because the papers in the interim interdict and review were substantially similar, the respondents considered a further full consultation unnecessary, dealt with differences telephonically, and believed the concerns raised by JICS had been addressed, albeit without engaging directly with the JICS ruling. The deponent stated there was no intention to withhold anything from the court.

The applicant opposed the interlocutory application, contending (through counsel) that email correspondence referred to in the founding papers should have alerted the respondents to address the JICS ruling in their answering affidavit. The court, however, characterised the annexed email (annexure “DIP3”) as seeking confirmation of compliance, rather than expressing doubt that the legislation had been complied with.

Legal Issues

The central legal question was whether the court should exercise its discretion under Rule 6(5)(e) of the Uniform Rules of Court to permit the filing of further affidavits beyond the ordinary sequence in motion proceedings. This required determination of whether the respondents provided a proper and satisfactory explanation for not dealing with the JICS ruling earlier, whether their omission could be attributed to mala fides or culpable remissness, and whether permitting additional affidavits would cause prejudice to the applicant that could not be adequately addressed, including through costs or by allowing responsive affidavits.

A secondary issue concerned the appropriate costs order for the interlocutory application: whether the costs should stand over as costs in the review, or whether the applicant—having opposed an indulgence sought by the respondents—should be awarded the costs of opposing the interlocutory application.

The dispute was primarily one of procedural law and the application of a discretionary standard to the facts explaining the omission and assessing prejudice, rather than a determination on the merits of the transfer review itself.

Court’s Reasoning

The court started from the principle that the filing of additional affidavits in motion proceedings is not automatic and depends on the court’s discretion under Rule 6(5)(e), which expressly provides that the court may permit further affidavits. The court treated the applicable standard as articulated in Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W), namely that where an explanation is furnished which negates mala fides or culpable remissness as the reason facts were not put up earlier, the court should tend toward allowing the affidavits so that the party can place its full case before the court. The court further identified, consistent with that authority, two important constraints: there must be a proper and satisfactory explanation for the lateness, and the court must be satisfied that no irremediable prejudice will be caused to the opposing party.

Applying those principles, the court evaluated the respondents’ explanation for failing to address the JICS ruling in the answering affidavit. The court emphasised two considerations in rejecting the applicant’s opposition as determinative. First, the deponent giving instructions for the respondents was described as a lay person in law and court practice, and the court accepted that there was “clearly a miscommunication” between her and counsel. Secondly, the court analysed the email correspondence relied upon by the applicant and found it did not itself assert non-compliance but merely sought confirmation of compliance, thereby weakening the contention that the respondents were put on clear notice to deal directly with the JICS ruling.

The court also considered that the applicant’s opposition might have carried more weight if either the respondents’ counsel had in fact had sight of the JICS ruling (and still failed to address it), or if the deponent had been legally qualified, because in those circumstances the importance of addressing the ruling should have been apparent. On the evidence before it, however, the court held there was no basis to find mala fides or culpable remissness on the part of the respondents or their counsel, and accepted that the respondents had provided a proper and satisfactory explanation for the omission.

On prejudice, the court concluded that allowing a fourth set of affidavits would not prejudice the applicant in a manner that could not be addressed. The applicant had indicated that, if the respondents were allowed to file a rejoinder, he might wish to file a further reply (a surrejoinder). The respondents did not object. The court regarded it as fair and reasonable to allow both the rejoinder and, if the applicant wished, a surrejoinder, thereby addressing procedural fairness concerns.

On costs, the court framed the question as whether it was reasonable for the applicant to oppose the respondents’ request for leave. Although the respondents sought that costs be costs in the review, the court accepted the applicant’s submission that the respondents were seeking an indulgence, and that—given the explanation advanced—it was not unreasonable for the applicant to oppose the application. The court therefore awarded the applicant his party-and-party costs in the interlocutory application.

Outcome and Relief

The court granted the respondents leave to file a fourth set of affidavits in the main application within 10 days of the date of judgment. The court granted the applicant leave to file a reply to that further affidavit (a surrejoinder) within 15 days of the respondents filing their additional affidavits.

The respondents were ordered, jointly and severally, to pay the applicant’s party-and-party costs of the interlocutory application.

Cases Cited

Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W).

Legislation Cited

Correctional Services Act 111 of 1998, section 43. Regulation 25 (promulgated under the Correctional Services Act 111 of 1998). “B order 1 chapter 2” (as referenced in the JICS ruling described in the judgment).

Rules of Court Cited

Uniform Rules of Court, Rule 6(5)(e).

Held

The court held that the filing of further affidavits in motion proceedings is subject to the court’s discretion under Rule 6(5)(e), to be exercised in accordance with the guiding approach that further affidavits should generally be allowed where a satisfactory explanation is provided for the omission, where the omission is not attributable to mala fides or culpable remissness, and where no prejudice will be caused that cannot be remedied.

On the facts, the court found that the respondents provided a satisfactory explanation for not dealing with the JICS ruling earlier, that there was no basis to infer mala fides or culpable remissness, and that any potential prejudice could be addressed by permitting the applicant to file a surrejoinder. The respondents were accordingly granted leave to file a fourth affidavit, and the applicant was granted leave to respond. The applicant was awarded costs of the interlocutory application because it was reasonable to oppose the indulgence sought by the respondents.

LEGAL PRINCIPLES

The court applied the principle that, although motion proceedings ordinarily proceed on a defined sequence of affidavits, further affidavits may be permitted where the court, exercising its discretion under Rule 6(5)(e), is satisfied that the party seeking to file further material provides a proper and satisfactory explanation for why the material was not filed earlier.

The discretion is guided by the approach that the court should generally incline towards allowing a party to place its full case before the court if the explanation negates mala fides or culpable remissness, and if the opposing party will not suffer prejudice that cannot be remedied, including by procedural accommodation (such as permitting a further replying affidavit) and, where appropriate, a suitable costs order.

The judgment also illustrates that, even where further affidavits are allowed in the interests of proper ventilation of issues, the party seeking that indulgence may still be ordered to pay costs if the opposition was reasonable in the circumstances.