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[2016] ZAECBHC 8
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Nyaniso v Head of Department of Sports, Recreation, Arts and Culture Eastern Cape Province and Another (643/2014) [2016] ZAECBHC 8 (27 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 643/2014
In
the matter between:
YISEHLELI
EDWARD NYANISO
Applicant
And
HEAD
OF DEPARTMENT OF SPORTS,
RECREATION,
ARTS AND CULTURE
EASTERN
CAPE PROVINCE
First
Respondent
MEC
FOR THE DEPARTMENTS OF SPORT
RECREATION,
ARTS AND CULTURE
EASTERN
CAPE PROVINCE
Second
Respondent
JUDGMENT
MBENENGE J:
Background
[1]
Does the remedy concerning an applicant’s failure to set out
facts in an affidavit upon
which the applicant relies for relief and
to annex a document to an affidavit to which reference is made in the
affidavit lie in
proceeding with a rule 30 application?
[2]
The questions posed above have arisen in the context of an
interlocutory application incidental
to an application launched on 21
November 2014 and in which the applicant, an erstwhile employee of
the Department of Sports, Recreation,
Arts and Culture in the Eastern
Cape Provincial Government (the Department), seeks, as against the
respondents, an order “
[c]ondoning the late filing of
[the]
application
” and compelling the respondents “
to
pay monies due to the [a]pplicant in the sum of R68 137.85 for
overtime
[performed]
during the period between years 2003 to
2008
” (the main application).
The main application
[3]
The affidavit filed in support of the relief sought in the main
application is not a model of
clarity. In that affidavit the
applicant has alleged:
“
4.1
First and foremost this is, in the main, an application to order the
[Department] to pay my outstanding overtime
monies which amounts to
R68 137.85. The interlocutory application for condonation for
the late filing of this application
is also sought.
4.2
The amount claimed is the overtime money that I worked for which I
was at the employ of the [Department]
for the period between years
2003 to 2008. I was under persal number, 52[…] (a copy
of the outstanding overtime schedule
is attached herein marked YEN
‘1’)
4.3
In 2004 I was transferred from the Department of Transport to join
[the Department]. During our
transfer it transpired that there
was an outstanding amount due to me for overtime that I was supposes
to receive. That has
never happened. (Attached herein a
memorandum of agreement dated 05
th
October 2004 YEN ‘2’)
4.4
In 2010 I requested the office of Financial Administration to
investigate as to what ever happened to
my overtime money as I lodged
a claim for the said money against [the Department]. An
investigation was conducted and it
was proven that I never received
the said money. I attach herein a copy of a letter dated 08
th
June 2010 marked ‘YEN3.’
4.5
There have been numerous efforts on my part to be paid what is due to
me. In 2012 I received an
acknowledgement letter from the
Office of the MEC promising to investigate the matter. This
again has never materialised
or produced results. I attached
herein a copy of the letter dated 12
th
June 2012.
4.6
In 2013 I was also invited to attend an Annual Financial Statements
Project by [the Department] to discuss
outstanding overtime issues
which I attended. Resolutions were taken to pay my overtime
money but the same was never effected
(I attach herein an Expenditure
Approval Form and overtime policy marked ‘YEN .)
4.7
Despite the commitment by the Department’s Officials who are
responsible for the payment of its
employees for work done, I retired
in June 2013 without receiving my overtime money to date.
Wherefore I pray for an
order as prefixed to the Notice of Motion.” Sic.
Rule 30 proceedings
(the interlocutory application)
[4]
Three matters became of concern to the respondents, resulting from
the manner in which the applicant’s
case, the upshot of which
is quoted above, has been presented namely-
(a)
the fact that there was paucity of information from the applicant’s
founding affidavit as
to why condonation for the late launch of the
main application is being sought; and
(b)
the failure by the applicant-
(i)
to annex to the founding affidavit the alleged letter of 12 June 2012
referred to in paragraph
4.5 of the affidavit; and
(ii)
to provide pages 6 and 7 of annexure “
YEN4
” to the
founding affidavit.
[5]
The respondents thereupon invoked rule 30(2)(b) of the Uniform Rules
of Court (the Rules) pointing
to the shortcomings adumbrated in
paragraph [4] above and calling upon the applicant to remove those
causes of complaint on pain
of the applicant’s notice of motion
in the main application being “
set aside as an irregular
proceeding.
”
[6]
When the respondents’ rule 30(2)(b) notice did not yield the
intended result, the respondents
launched the instant
interlocutory application seeking, in the main, an order declaring –
(a)
that the applicant’s notice of motion (in the main application)
be set aside; and
(b)
the main application a nullity.
[7]
The affidavit filed in support of the interlocutory application
raises the following contentions:
“
10.
It is evident from the irregularities as set out … that the
respondents' opposition to the main
application
will be prejudiced
[1]
to a substantial degree.
11.
Should [the] applicant’s notice of motion be set aside as an
irregular proceeding, the applicant
will be obliged to institute
application proceedings afresh. Such proceedings will have to
be served on the relevant respondents
in the normal course.”
Sic.
[8]
At the opportune stage notice to oppose the interlocutory application
was delivered. On
the hearing date counsel appearing for the
parties informed me, from the Bar, that the applicant’s causes
of complaint had
since been removed, resulting in the parties
pursuing a contest on the issue of costs.
Legal position –
costs
[9]
It is trite law that a judgment for costs involves a decision on the
merits, and that a claim
for costs cannot stand alone.
[2]
In its simplified form, the question for consideration translates to
whether it is the applicant or the respondents who would
have been
successful had the interlocutory application been pursued to its
logical conclusion. That is what I turn to deal
with.
Was rule 30 the
appropriate remedy?
[10]
Rule 30, which is at the heart of these proceedings, affords a party
to a cause to which an irregular step
has been taken by any other
party the right to apply to court to set the irregular step aside.
[11]
Much as rule 30 was intended as a procedure whereby a hindrance to
the future conducting of the litigation,
whether created by
non-observance of what the Rules intended or otherwise, is
removed,
[3]
the rule applies to
irregularities of form and not those of substance.
[4]
Also, the rule does not apply to omissions, but to positive steps or
proceedings. The irregular step contemplated by
rule 30 must be
a step that advances the proceedings one step nearer completion.
[5]
[12]
One of the requisites for the grant of an order pursuant to the
invocation of rule 30 is the presence of
prejudice. Besides the
factors mentioned in rule 30(2),
[6]
the applicant must satisfy the court that she/he will suffer
prejudice relating to the continuation of the litigation if the
irregularity
is not removed.
[7]
[13]
In my review, the respondents’ attack to the applicant’s
notice of motion and the affidavit filed
in support of the relief
sought in the notice relates to a matter of substance. The
failure by a party to make allegations
in the party’s founding
affidavit constitutes a shortcoming of substance than an irregularity
of form. After all, it
was available to the respondents to
raise an obligation
in
limine
that the founding affidavit does not make out a case for the relief
claimed. In that event, the court would be empowered,
in the
exercise of its discretion, to direct that the preliminary point be
disposed of first.
[8]
Such
an order will be made when the issue is one of substance disposing of
the case in whole or in part.
[9]
In
Kahn
the court held that:
“
It
brooks of no doubt that a court is empowered, in the exercise of its
discretion, to direct that a preliminary point be disposed
of first
in motion proceedings. It will be ordered when the issue is one
of substance that may dispose of the matters as
a whole, or at least
of a substantial portion thereof
.
”
[10]
[14]
Therefore, the respondents should, in pursuit of their complaint that
no allegations were made in the affidavit
in support of the prayer
for “
condonation
of [the] late filing of the application”,
have
delivered an answering affidavit,
inter
alia
,
raising a preliminary issue that, contrary to the provision of rule
6(1) of the Rules,
[11]
the
applicant’s founding affidavit does not make out a case for the
relief claimed.
[15]
This brings me to the next issue – whether the mere failure by
a litigant to annex a document to an
affidavit to which reference is
made in the affidavit constitutes an irregular step or procedure.
That shortcoming is, in
my view, an omission, and does not constitute
a positive step or procedure in the manner contemplated in rule 30.
Annexing
a document to an affidavit is, in any event, a matter of
evidence, and not a procedural matter. The respondents could,
if
they sought to avoid the more cumbersome
[12]
but more appropriate rule 35(12),
[13]
have achieved what they sought by the mere stroke of a pen by writing
a letter to the applicant’s camp pointing to the inadvertence
and requesting them to furnish the outstanding documents.
[16]
There is a further reason why rule 30 should not have been invoked.
The respondents have not demonstrated
how and why the failure to
furnish them with the outstanding documents caused prejudice relating
to the continuation of the litigation,
had the causes of complaint
not been removed. In the affidavit filed in support of the rule 30
application the respondents concluded
that the irregularities would
result in them suffering prejudice “
to a substantial
degree
”. No particularity was however given in regard
to that.
[17]
I have already pointed out above as to what should befall an
application wherein allegations in support of
the relief claimed have
not been made. As Mr
Nabela
,
counsel for the respondents argued, the failure on the part of the
applicant to make allegations supportive of a particular prayer
instead placed the respondents at an advantage. They should
simply have raised a preliminary issue dispositive of the particular
prayer (relating to condonation) in their answering affidavit.
It has always been a cardinal rule of practice that technical
objections to less than perfect procedural steps should not be
permitted, in the absence of prejudice, to interfere with the
expeditious
and, if possible, inexpensive decision of cases on the
merits.
[14]
Conclusion
[18] In
all these circumstances, the rule 30 application was not the
appropriate procedure for the respondents’
causes of complaint
and should thus have not seen the light of day. The respondents
would thus have not been the successful
litigants had the application
been determined on the merits.
[19]
For these reasons, the respondents are directed to pay the costs of
the rule 30 application.
S M MBENENGE
JUDGE OF THE HIGH
COURT
Counsel
for the Applicant:
Mr
N Nabela
Instructed
by:
Messrs
Mquqo Attorneys
East
London
C/O
Messrs Bacela Bukula Attorneys
King
Williams Town
Counsel
for the Respondents:
Mr
D T Young
Instructed
by :
The
Bhisho State Attorney
East
London
C/O
King Williams Town
Date heard: 22 September
2016
Judgement
del
ivered: 27 September 2016
[1]
My
emphasis.
[2]
Nxumalo
v Mavundla
2000 (4) SA 349
(D) at 352F.
[3]
SA
Metropolitan lewensversekeringsmaatskappy Bpk v Louw NO
1981
(4) SA 329
(O) at 333G-H.
[4]
Van
Loggerenberg,
Erasmus
Superior Court Practice
,
JUTA Vol 2 at D1 – 351;
Singh
v Vorkel
1947 (3) SA 400
(C) at 406;
Odendaal
v De Jager
1961 (4) SA 307
(O) at 310F-G;
Nel
and Others NNO v McArthurs and Others
2003 (4) SA 142
(T) at 149; and
Cochrane
v City of Johannesburg
2011 (1) SA 553 (GSJ).
[5]
Cyril
Smiedt (Pty) Ltd v Lourens
1966 (1) SA 150
(O) at 152E;
Korapi
v Moeti
1993 (4) SA 184 (BGD).
[6]
Namely,
(i) that the applicant has not himself taken a further step in the
cause with the knowledge of the irregularity; (ii)
the applicant has
within ten days of becoming aware of the step, by written notice
afforded his opponent an opportunity of removing
the cause of
complaint within ten days; and (iii) the application is delivered
within fifteen days of the expiry of the second
period mentioned in
paragraph (b) of sub-rule (2).
[7]
De
Klerk v De Klerk
1986 (4) SA 424
(W) at 426i;
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999
(2) SA 599
(T) at 611.
[8]
Reymond
v Adbulnabi
1985 (3) SA 348
(W) at 349E.
[9]
Brian
Kahn v Samsudin
2012 (3) SA 310
(GSJ) at 313B-C.
[10]
Ibid
at
para [4]. Footnotes omitted.
[11]
The
rule provides that “
[s]ave
where proceedings by way of petition are prescribed by law every
application must be brought on notice of motion supported
by an
affidavit as to the facts upon which the applicant relies for
relief.
”
[12]
The
cumbersomeness stems from the fact that rule 35 regulating discovery
of document is applicable to application proceedings
insofar as the
court may direct (see rule 35(12)).
[13]
Rule
35(12), in relevant part, provides:
“
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 … affidavits
reference is made to any document … to produce
such document
… for his inspection and to permit him to make a copy …
thereof.”
[14]
LAWSA
III paragraph 7 and the authorities referred to therein.