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[2016] ZAGPPHC 200
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Oosthuizen v Minister of Police (21578/12) [2016] ZAGPPHC 200 (12 April 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
12/4/16
CASE
NO: 21578/12
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
T
OOSTHUIZEN PLAINTIFF
AND
MINISTER
OF
POLICE DEFENDANT
JUDGMENT
MAVUNDLA.
J.
[1]
This matter was set down for hearing on the 22 March 2016. However,
on the day of trial, the plaintiff, without filing a substantive
application, sought a postponement of the matter, without tendering
costs, as it is traditionally expected of a party seeking a
postponement, further seeking a punitive costs order against the
defendant on attorney and client scale contending that the defendant
is to blame for the plaintiff s predicament in seeking the
postponement.
[2]
The reasons advanced for the postponement are that:
2.1
The
defendant was on the 16 October 2013 ordered,
[1]
inter
alia,
to:
(a)
to amend its plea on or before the 18 November 2013;
(b)
reply to the plaintiffs pre-trial questions as contained in the
pre-trial minutes conference held on the 11 September 2012,
on or
before the 18 November 2018;
(c)
reply to the plaintiff s request for further particulars for purposes
of trial on or before the 18 November 2013;
(d)
file and serve its supplementary discovery affidavit on or before the
18 November 2013;
(e)
bring a substantive application seeking condonation for failure to
comply with the conditions set out above, should he fail
to comply
with the current Court Order.
2.2
the defendant filed:
(a)
its notice of intention to amend its plea on the 19 November 2013;
(b)
its amended
plea in terms of rule 28(7) on the 4 March 2016.
[2]
(c)
replied to
the plaintiff's request for further particulars on the 19 November
2013.
[3]
(d)
its
supplementary discovery affidavit on the 15 March 2016,
[4]
which contained additional documentation not initially discovered.
[5]
The additional documentation included copies of the bank notes
allegedly found in the possession of the plaintiff on the day of
his
arrest.
2.3
It was further submitted that:
(a)
the defendant's late complying with the court order of the 16 October
2013, although it was one day late, is an irregular 'step
which was
not preceded by an application for condonation;
(b)
the filing of the intention to amend its plea and the supplementary
discovery affidavit was also prejudicial to the plaintiff's
preparation for trial in that it was served few days before the trial
date.
[3]
The defendant opposed the application for postponement, contending
that although it was one day late in serving the notice of
intention
to amend and the reply to the plaintiff's further particulars it had
substantially complied with the Court order. It
further contended
that the plaintiff, by filing various notices it had taken certain
procedural steps to advance the proceedings
and thereby condoned the
defendant's late amended plea. It was further submitted that the
plaintiff filed a request for further
particulars for purposes of
trial-quantum on the 23 February 2016. It was further contended on
behalf of the defendant that the
plaintiff at all relevant times knew
what case it had to meet because the plaintiff has on more than one
occasion furnished with
the police docket. The plaintiff failed to
request to be furnished with the relevant bank notes much earlier.
[4]
It is common cause that the defendant filed its notice of intention
to amend its plea and the reply to the plaintiff's request
for
further particulars on the 19 November 2013, one day late. The
plaintiff on the 22 November 2013 proceeded to file a notice
in terms
of rule 30(2)(b) contending that the defendant's service and filing
on the 19 November 2013 was an irregular step, inviting
the defendant
to remove the cause complained of.
[5]
Whilst it is so that the defendant did not apply for condonation, its
notice of intention to amend its plea was one day late.
In my view,
the defendant, although having been one day late, had substantially
complied with the Court order. The defendant was
in contempt of a
court order, in filing outside the 18 November and without bringing a
substantive application. That does not make
the filing an irregular
step, as contemplated in rule 30(2((b). At worst for the defendant,
it was in contempt of a court order.
[6]
In the matter of
Clement
v Clement
[6]
Lord Denning L.J.
is
cited as having said,
inter
alia,
in
the matter of
Hadkinson
v Hadkinson
1952
(2) A.E.R. at 571 that:
“
It
is wrong thing for a Court to refuse to hear a party to a cause and
it is only to be justified by grave considerations of public
policy.
It is a step which a Court will only take when the contempt itself
impedes the course of justice and there is no other
effective means
of securing his compliance ... Applying this principle, I am of the
opinion that the fact that a party to a cause
has disobeyed an order
of Court is not of itself a bar to his being heard,...”
[7]
In my view, the Court has an inherent power to condone noncompliance
with its order. In this regard vide s173 of the Constitution
[7]
.
In casu,
the
defendant has substantially complied with the order to file its
amended plea, save for the fact that it was one day late. In
my view,
the fact that there was this substantial compliance, and no
inordinate delay, it can be inferred therefrom that there
was no
deliberate intent to be in contempt of the Court order.
[8]
I further bear in mind the fact that the plaintiff was accused of
being in possession of allegedly counterfeit money, although
the
charges were withdrawn. It is a matter of public policy that those
accused of serious crimes, must be brought to book. It is
for the
prosecutors, not the police, to decide whether there is enough
evidence to secure a prosecution.
In
casu,
it
would be travesty of justice, in my view, were the defendant to be
barred from presenting its defence simply because it was one
day late
in filing its amended plea. The plaintiff on the other hand would not
be prejudiced were this Court to uplift the
"ipso
facto
bar"
because, in any event he was seeking a postponement. I accordingly
find that the defendant's notice of intention to amend
its plea filed
on the 19 November 2013 was substantially in compliance with the
Court Order and therefore the lateness of one day,
in the exercise of
this Court's inherent discretion, is condoned. In this regard, my
view is bolstered by the decision in the matter
of
Mynhardt
v Mynhardt
[8]
the
Court held that besides its powers in terms of Rule 27(3) to grant
condonation, through its inherent powers.
[9]
Assuming that I am wrong in the conclusion reached herein above,
which is not conceded, there is merit in the contention by
the
defendant that the plaintiff by filing various notices, had thereby
condoned the defendant's noncompliance with the Court order
regarding
the filing of its amended plea. It is common cause that the plaintiff
filed the following notices:
9.1.
Notice in terms of Rule 35(9) served on 04 November 2014;
9.2.
Notice in terms of Rule 35(10) served on 11November 2014;
9.1.
Notice in terms of rule 37(1) dated 02 March 2016;
9.2.
Notice in terms of Rule 37(2)(a) served on 02 March 2016;
9.3.
Notices in terms of rule 35(3) served on 12 March 2015 et 02 March
2016,
inte alia;
9.4.
Notice in terms of Rule 36(6)(a) served on 02 March 2016;
9.5.
Notice in terms of Rule 35(12)) served on 09 March 2016;
9.6.
Notice in terms of Rule 35(10) served on 04 March 2016.
[10]
In my view, the filing of the aforesaid notices amounted to
procedural steps which advanced the proceedings forward. The
plaintiff
has therefore, in my view, condoned the defendant's belated
notice of intention to amend its plea filed on the 4 March 2016.
[11]
It is common cause that the defendant filed on the 19 November 2013 a
purported supplementary affidavit. An affidavit is a
written
statement sworn to by the deponent in the presence and before a
commissioner of oath who has authority to take such oath.
The
commissioner must state underneath his name that the deponent has
sworn before him that he or she understands the oath and
considers it
binding on his conscience. In this regard vide
Goodwood
Municipality v Rabie;
[9]
Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of
South Africa.
[10]
In casu,
the
document is not signed or deposed to by the deponent nor commissioned
by the commissioner of oath, nor does it reflect the names
of the
deponent and the commissioner of oath. This document can hardly be
regarded as an affidavit as prescribed by Regulations
Governing the
Administration of an Oath or Affirmation R1258 gg21 July 1972.The
document is not an affidavit and is
pro
non scripto
because
it is materially flawed.
[12]
In the matter of
Cyril
Smiedt (Pty) Ltd v Lourens
[11]
it was
held that the irregularity envisaged by rule 30 is a procedural step
which advances the proceedings forward. In the matter
of
Monumental
Art Co v Kenston Pharmacy (Pty) Ltd
[12]
it was
held that the subrule30 (1) does not apply when the irregularity step
complained of in the proceedings amount to a nullity
or the defect is
such that the opposing party cannot cure the defect even though he
were to waive his right to object thereto.
In
casu,
the
supplementary affidavit of the defendant is fundamentally flawed and
is therefore
pro
non scripto.
That
being the position, it still remains a fact that the defendant has
not complied with the Court order to file its supplementary
affidavit. However, the plaintiff contended that the supplementary
affidavit filed on the 15 March 2016
[13]
contained the alleged fake notes found in the possession of the
plaintiff. It was further contended that the purported discovery
affidavit contained further documents which were not discovered
earlier, and as a result the plaintiff is prejudiced in its
preparation
for trial by such late discovery.
[12]
The supplementary affidavit filed by the defendant on the 19 November
2013 is a defective. In the matter of
Cyril (Pty) Ltd v Lourens
(supra)
1966(1) SA 150 (OPD) at 152 E it was held that rule 30
envisages a procedural step taken which advances the case forward. A
defective
affidavit is a nullity and does not advance the proceedings
any further. It was further held in this Cyril matter (supra) that an
annexure of an unsworn statement to an affidavit is not an irregular
proceeding under the sub rule 30(2)(a). Accordingly I find
that the
purportedly filed supplementary affidavit is fundamentally flawed and
there is no irregularity, as contended by the plaintiff.
All it means
is that there was no compliance with the Court order and therefore
the defendant will have to bring a substantial
application to file
its supplementary affidavit.
[13]
It is trite that a party, who seeks a postponement, must bear the
costs occasioned by the postponement. It is equally trite
that a
party seeking to amend its pleadings must bear the costs occasioned
by the amendment
[14]
.
In
casu,
the
plaintiff having raised the issue of irregularity, failed to have
this issue ventilated in the un-opposed motion court and preferred
to
have it canvassed on the trial date. Certainly the plaintiff was
remiss in this regard and has contributed to the matter being
postponed. Equally too, the defendant was also remiss in failing to
file a proper supplementary discovery affidavit. The defendant
failed
to discover well in advance to the trial date all documents, such as
the copies of the money allegedly found in the possession
of the
plaintiff. That as much was conceded by the defendant in the minutes
of the pre-trial conference held on the 17 March 2016
[15]
.
I am, however, of the view that the defendant was more remiss in
various ways than the plaintiff. For instance, defendant failed
to
make full disclosure of the docket contents and chose to do so
piecemeal. It also failed to amend its plea timeously well on
time
and only did so on the 4 March 2016 although it filed its notice of
intention to amend on the 19 November 2013. In the circumstances
it
is proper that the defendant should be mulcted with costs on attorney
and client scale.
[14]
In so far as the postponement is concerned, this is a matter falling
within the court's discretion. In my view the circumstances
of this
case dictate that, although the plaintiff did not file an application
for postponement, supported by an affidavit, the
dictates of fairness
and justice warrant that this Court in the exercise of its discretion
should grant the postponement, as it
did.
[15]
In the result the following order is made:
1.
That the matter is postponed
sine die;
2.
That the defendant is ordered to file a substantive application for
condonation of the late filing of its supplementary discovery
affidavit within 10 days of the delivery of this order.
3.
That the defendant is ordered to pay the costs occasioned by the
postponement on attorney and client scale.
________________________
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE
: 22 MACRH 2016
DATE
OF JUDGMENT : 12 APRIL 2016
PLAINTIFF'S
ADV
: ADV M FOURIE
INSTRUCTED
BY
: GILDENHUYS LESSING MALATJIE INC
DEFENDANT'S
ADV : ADV N
MTSHWENI
INSTRUCTED
BY
: STATE ATTORNEY PRETORIA (Ref 6093/11/Z9/SR
[1]
Bundle A-Pleadings pages 1-104 paginated pages 103-104.
[2]
Bundle A-Pleadings pages 1-104 paginated pages 16-20.
[3]
Bundle A-Pleadings pages 1-104 paginated pages 75-80.
[4]
Bundle B -General Notices pages 1-105 paginated pages56-105.
[5]
Vide pre-trial conference minutes dated 17 March 2016 paginated 58
-68 in particular admission at paginated page 66 of Bundle
A-Pleadings page 1-104.
[6]
1961 (3) SA 861
(TPD) at 864H- 865.
[7]
Constitution of the Republic of South Africa , Act I 08 of 1996.
[8]
1986 (1) SA 456
(TPD) at 463H.
[9]
1954 (2) SA 404
(C) at 4068-F
[10]
1999 (2) SA 279
(T) at 336A-B.
[11]
1966(1) SA 150 (CPD) at 152E.
[12]
1974 (2) SA 376
(C) at 3790-G.
[13]
Bundle B- General Notices Pages -1-105 at paginated pages 56-105.
[14]
Vide Rule 28(9) of the Uniform Court Rules.
[15]
Bundle A-pleadings pages 1-104 at paginated page 52 clause 9.5; et
Minutes of pre-trial conference held on 22 March 2016, paginated
pages 58-68 in particular page 66 clause 9.5.