About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 232
|
|
Minister of Justice & Constitutional Development v Setumo Force Security CC (A894/13) [2015] ZAGPPHC 232 (30 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
APPEAL CASE NO:
A894/13
DATE: 30 March 2015
IN THE MATTER
BETWEEN
THE MINISTER OF
JUSTICE & CONSTITUTIONAL
DEVELOPMENT
...............................................................................................................................
Appellant
and
SETUMO FORCE
SECURITY
CC
..............................................................................................
Respondent
JUDGMENT
LEGODI, J
[1] This is an
appeal against the decision of Ismail J delivered on the 8 October
2012 in terms of which he dismissed the appellant’s
purported
application for amendment of its plea. The appellant is the defendant
in an action instituted by the respondent in terms
of which the
respondent claims payment against the appellant in the sum of R12 521
367.
[2] The appeal is
with the leave of the court a quo, such leave having been granted on
the 9 October 2012. The appellant however,
failed to file the notice
of appeal, deliver the record of the proceedings and request for
trial date for the hearing of the appeal
timeously as required in
terms of Rule 49. There is thus an application for condonation in
terms of which relief is sought in the
following terms:
“
1
That the late
filing of the notice of appeal be condoned;
2. That the
appeal against the judgment of Honourable Justice Ismail delivered on
the 9 October 2012 be reinstated;
3. No order as to
costs unless opposed by the Respondent; and
4. Further and or
alternative relief or both.”
[3] At the start of
the hearing of this appeal, the attorney for the respondent persisted
with his opposition to the granting of
condonation. The appeal was
therefor heard and argued at the same time with the application for
condonation.
CONDONATION
[4]
In terms of Rule 27(3), the court may on good cause shown, condone
any non-compliance with the Rules of Court. The court has
a wide
discretion which must, in principle, be exercised with regard also to
the merits of the case as a whole
1
.
The applicant should file an affidavit satisfactorily explaining the
reasons for the non-compliance with the prescribed time limits.
In
this regard the applicant must furnish a reasonable explanation
sufficiently full to enable the court to understand how the
noncompliance really came about, and assess the applicant’s
conduct and motive
2
.
The applicant must satisfy the court on oath that he is bona fide and
not with the object of delaying the opposite party’s
case
3
.
The applicant must satisfy the court that the claim or defence is not
ill-founded, is based upon facts, which must be set in outline
which,
if proved, would constitute an action or defence
4
.
The grant of indulgence to the defaulting party should not prejudice
the other party in any way that cannot be compensated for
by a
suitable order as to the postponement and costs.
[5] There are
therefore two requirements to be met in an application for
condonation. These are the reasons for the delay or factors
for the
non-compliance with the Rules and on the other hand, the applicant
for condonation must satisfy the court that there are
prospects of
success on merits, in this regard, on the merits of the present
appeal.
REASONS FOR
FAILURE TO COMPLY WITH SUB-RULES (2), (6) (a) AND (7) (a) OF RULE 49
[6] The application
for leave to appeal was granted on the 9 October 2012. In terms of
Rule 49 (2), if leave to appeal to the full
court is granted, the
notice of appeal shall be delivered to all the parties within 20 days
after the date upon which leave was
granted or within such longer as
may upon good cause shown be permitted. The appellant delivered the
notice of appeal only on the
9 November 2012. It is common cause
that, the applicant was out of time by three days.
[7] In terms of
subrule (6) (a) of Rule 49, within sixty days after delivery of a
notice of appeal, an appellant shall make written
application to the
registrar of the division where the appeal is to be heard for a date
for the hearing of such appeal and shall
in terms of subrule (7) (a)
at the same as the application for a date for the hearing of an
appeal in terms of subrule (6) (a)
of the rule is filed, file with
the registrar three copies of the record for the appeal and shall
furnish two copies to the respondent.
[8] The appellant
failed to comply with all of the provisions of sub-rules (6) (a) and
(7) (a) and thus the present application
for condonation. The notice
of application for a date of hearing of the appeal and the record
were delivered simultaneously with
this application on the 4 November
2013. The matter was initially on behalf of the appellant handled by
the office of the State
Attornet. The State Attorney was instructed
by the appellant upon having been served with the summons. The
deponent to the founding
affidavit in the present application is an
employee of the appellant. She is employed as a legal administrative
officer. Initially,
the file was handled by another administrative
officer in the office of the appellant. The officer, one Mr Jiyane,
was subjected
to a disciplinary process and he subsequently resigned.
There was no one in the office who specifically dealt with the
matter.
The case was ultimately allocated to the deponent during the
beginning of September 2013. On the 11 September 2013, she received
a
letter from one Mr Modukanele who was handling the matter on behalf
of the appellant at the State Attorney’s office. She
was
informed that the matter had been set down for trial on the 11
November 2013. In other words, the respondent instead of setting
down
the appeal for hearing, or approaching the court for an order that
the appeal has lapsed, set the matter down for trial.
[9] In the letter of
11 September 2013 Mr Modukanele asked the appellant to attend
consultation with counsel on the 16 September
2013. The deponent
tried to establish the circumstances under which the matter was set
down for trial after leave to appeal was
granted on the 8 October
2012. On several occasions, she could not get hold of Mr Modukanele
until on the 16 September 2013 when
they met for consultation with
counsel. He conceded that he did not take the necessary steps to
prosecute the appeal due to huge
volume of files allocated to him in
the State Attorney’s office. The deponent was also informed
that Mr Modukanele was previously
admitted in a hospital for stress
related illness.
[10] During
consultation on the 16 September 2013, it also transpired that there
was a pre-trial conference arranged for the 17
September 2013 before
the Deputy Judge President. Mr Modukanele was then instructed to
request for a postponement of the trial
scheduled for the 11 November
2013. That was to enable the appellant to apply for the revival of
the appeal. The pre-trial conference
was held on the 17 September
2013 and minutes thereof were prepared and signed.
[11] Mr Modukanele
had previously failed to respond to the enquiries by the respondent’s
attorney. As a result, a complaint
was lodged with the Deputy Judge
President. A preferential trial date was arranged. The letter of
complaint to Deputy the Judge
President is an annexure to the
founding affidavit in this condonation application. It is clear that
Mr Modukanele neglected his
professional obligations towards the
appellant, the respondent and the court and had failed to deal with
the matter diligently
on behalf of his client.
[12] Upon further
perusal of the file, it emerged that Mr Modukanele had applied for
the transcription of the record of the proceedings
of the 8 and 9
October 2012 only on the 20 September 2013. The appellant was not
privy to any communication between the State Attorney
and the
respondent’s attorneys and the delays inherent in the conduct
of Mr Modukanele.
[13] As a result of
the conduct of Mr Modukanele in the State Attorney’s office,
its mandate was terminated and new private
attorneys and counsel were
instructed to take over the file. There were missing papers on the
file and as a result the court’s
file had to be uplifted and
further copies made. Within two weeks after having taken over the
file, the record was prepared. The
trial scheduled for the 11
November 2013 was ultimately postponed.
[14] The respondent
moves from the premise that the explanation is inadequate. As a
matter of principle, failure by an attorney
to execute his or her
mandate expeditiously and efficiently cannot be a good cause for
condonation. However, it is unprofessional
conduct for any attorney
not to report promptly to his client about progress on any matter
entrusted to him or her. For example,
failure to timeously amend the
appellant’s plea resulted in the judgment of the 8 October 2012
when Ismail J dismissed the
purported application for amendment of
the appellant’s plea. As if that was not enough, the State
Attorney neglected to timeously
note the appeal and to ensure that
the time-limits set out in sub-rules (6)(a) and (7)(a) are met. This
is not the case where client
fails, refuses and or neglects to give
proper instructions to the attorney. But, again, the mistakes by an
attorney are often imputed
on the client especially when it comes to
costs. However, whilst the explanation for the default may not be
satisfactory, the prospects
of success on appeal in the present case
are very strong. That is an important requirement for condonation. I
prefer not to deal
with the merits of the appeal now, but rather to
deal with the merits when dealing with the appeal hereunder. It
suffices for now
to mention that the condonation application should
be granted.
THE APPEAL
[15] The judgment
appealed against is the dismissal of the appellant’s purported
application for the amendment of its plea.
The grounds of appeal can
be summed up as follows:
15.1 That the court
a quo erred in dismissing the appellant’s application to amend
its plea when there was no such application
before it;
15.2 That the court
a quo erred in refusing to grant the appellant the opportunity to
bring an application for leave to amend its
plea seen in the light of
the respondent’s notice of objection.
15.3 That the court
a quo erred in law by finding that the appellant must proceed on
trial with a plea that did not represent the
true defence and or
version.
15.4 Alternatively
that the court a quo erred in law in finding that the trial should
proceed under circumstances where the real
issues would not have been
ventilated, thereby leading to a miscarriage of justice and;
1.5 That the court a
quo erred in law in making a finding that the delay in bringing the
amendment was enough to refuse the amendment
despite not having
evidence before him on the reasons for the delay.
BACKGROUND
[16] During December
2004 the appellant issued a security tender referred to in the papers
as “BID 29”. The main purpose
of the tender was to
control access to prevent unauthorized access of person or persons,
vehicles and dangerous objects onto the
State property in order to
safeguard people, property and premises referred to as “additional
guarding services”. The
bid price was indicated as R31 303
440.00. The respondent participated in the bid and submitted all
necessary documentations required
by the appellant. The respondent
together with four other bidders were informed in a letter dated 18
February 2005 that they were
nominated based on merits, to
participate in the bid for the provision of the guarding services
subject to certain conditions.
The conditions were that they attend a
briefing session on 23 February 2005 from 10h00 to 10h55. That at the
meeting they will
be issued with a contract for the services to be
rendered which they will take back with them and if they agree to the
contract
they will provide the appellant with three original signed
copies by no later than Friday 25 February 2005 at 12h00. That they
were required to submit a letter at the meeting of the 23 February
2005 confirming that they will be able to put up the required
R150
000 insurance fee per annum on the commencement date of service which
was to be on the 1 April 2005.
[17] On the 3 March
2005, the appellant sent a letter to the respondent and it reads as
follows:
“
Our
meeting of Wednesday 23
rd
February 2005 refers:
•
At
this meeting representatives of your company were issued with a copy
of the contract governing the condition of services relating
to this
Bid.
•
It
is a condition of this contract document that your company must
remunerate your employees in terms of Government Gazette no.
25075
dated 13 June 2003, as emended.
•
On
perusal of your documentation the Department note that you do not
comply with this requirement.
In terms of the
stipulation of this requirement the Department have no alternative
but to inform you that the Department cannot
continue with engaging
your firm for the provision of said services (Memorandum of Agreement
Regarding- The Security Service RFB
No 2004 29- page 12 paragraph
12)”
[18] On the 8 March
2005 the appellant sent another letter to the respondent. In the
letter, is recorded:
“
Your
facsimile dated 7 March 2005 in respect of the above-mentioned matter
refers:
Due to the fact
that Setumu Force Security CC was not awarded Bid No.:RFB 2004 29
this Department cannot reconsider your bid due
to the fact that it
has been discovered that your company does not comply with the terms
and conditions as stipulated in the legislation
governing the
remuneration of employees. It is a condition of the contract, RFB
2004 29, that potential/nominated/short listed
Service Providers to
the Department must remunerate their employees in terms of the
relevant legislation.
In view of the
above-mentioned facts, your request cannot be favorably considered”.
[19] Subsequent
thereto, the respondent launched an application under case number
10290/05 against the appellant. In terms of the
notice of motion, the
respondent sought an order declaring and confirming the existence of
the alleged contract between the appellant
and the respondent,
alternatively a claim for damages resulting from the appellant’s
alleged breach of the said contract.
The applicant opposed the
application. Its contention was that the respondent was never awarded
the tender in question. The application
against the appellant was
dismissed with costs. According to the respondent, the court further
stated that the dismissal of the
application was tantamount to an
absolution from the instance. I may mention that the proceedings
under case number 10290/05 were
not made available to us.
[20] On the 3 March
2008, the respondent instituted action proceedings against the
applicant. It claimed payment in the sum of R12
521 376.00 in damages
being for loss of profit due to the alleged cancellation of the
contract. On the 25 September 2009 the appellant
delivered its plea.
In the plea, the appellant admitted the existence of the contract. It
however pleaded that the contract has
been cancelled due to the
respondent’s failure to comply with the special condition in
terms of which the respondent was
required to pay its security guards
wages in accordance with Government Gazette No. 25075 dated the 13
June 2003. In other words,
the respondent failed to set up a minimum
monthly basic wage for its employees as prescribed for the area
concerned for the security
officer trade. That is, employees must be
paid within seven (7) days in the new calendar month after the
services has been rendered
for the previous month, failing which the
service will be terminated with immediate effect. About 8 admissions
of the existence
of the contract are said to have been made in the
appellant’s plea.
[21] The trial was
first set down for hearing on the 8 February 2012. On that date, and
during the roll call, the matter was removed
from the roll on the
suggestion that the parties were entering into settlement
negotiations or that the matter has been settled.
The nature of the
settlement was never divulged. During or about April 2012, the
respondent enrolled the matter again for trial
on the 8 October 2012.
On the 5 October 2012 the appellant delivered its notice of intention
to amend paragraphs 4 to 9 of its
plea by substituting them in their
entirety. In the proposed amendment, the appellant pleaded that there
was no contract concluded
and that the respondent was never awarded
Bid 29. On the 8 October 2012, being the date of the trial, the
respondent filed notice
of objection to the proposed amendment. The
ground of the objection was that the intended amendment of the
appellant’s plea
seeks to withdraw admissions previously made.
After a lengthy argument, the application for amendment was
dismissed. It is against
this dismissal that the appeal was noted. I
now turn to deal with the grounds of appeal stated in paragraphs 15.1
to 15.5 of this
judgment.
WAS THERE AN
APPLICATION FOR AMENDMENT BEFORE THE COURT A QUO?
[22] Subrule (10) of
rule 28 provides that the court may, notwithstanding anything to the
contrary in this rule, at any stage before
judgement grant leave to
amend any pleading or document on such other terms as to costs or
other matters as it deems fit. In terms
of subrule (1) of Rule 28, a
party desiring to amend any pleading or document other than a sworn
statement, filed in connection
with any proceedings, shall notify all
other parties of his intention to amend and shall furnish particulars
of the amendment.
That is what the appellant did on the 5 October
2012 when it served notice of its intention to amendment. If no
objection is delivered
within 10 days of the delivery of the notice
in terms of subrule (1), the amendment will be effected. The
respondent delivered
its objection on the morning of the 8 October
2012. In compliance with subrule (3), the respondent stated in the
objection the
grounds thereof. Subrule (4) provides that if an
objection which complies with subrule (3) is delivered within the
period referred
to in subrule (2), the party wishing to amend may
within 10 days lodge an application for leave to amend. This became
the bone
of contention in the court a quo.
[23] It is clear
from subrule (4) that the 10 days referred to in the subrule and the
application for leave to amend is only triggered
if an objection is
noted in terms of subrule (2) read with subrule (3). Secondly, the
party objecting would also be bound by its
ground of objection which
in terms of subrule (3) must be clearly and concisely stated.
Therefore once the respondent acted in
terms of subrules (2) and (3),
the trial was bound to be postponed in order to allow the appellant
to bring an application on notice
as envisaged in subrule (4). Such
an application is an interlocutory application in terms of Rule
6(11). It provides as follows:
“
(11)
Notwithstanding the aforegoing subrules, interlocutory and other
applications incidental to pending proceedings may be brought
on
notice supported by such affidavits as the case may require and set
down at a time assigned by the registrar or as directed
by
a
Judge”.
[24] This is what
counsel for the appellant in the court a quo asked for. For example
counsel for the appellant in the court a quo,
expressed himself as
follows:
",..
When they then
object, it is improper to then come and try to give evidence from the
bar.
When there is
an objection, you must then bring an application and
that is what I am saving
.
If there was no objection,
we
were proceeding
today. That is why I am I am not asking for a postponement.
If
there is an objection,
there
must be an application
and
there is an objection, we know that. M’Lord I understand the
frustration of the plaintiff. I would also be frustrated.
It must be
frustrating from 2005 and still there is no justice for you, but the
affidavit will explain precisely what went wrong
when. It is improper
at this stage when there is objection, for a ruling to be made at
this stage to be made that notice of amendment
is not allowed. That
would be irregular. There is a notice of objection, we can’t
withdraw a submission
so
we have to bring an application
”
.
The
underlining is my own emphasis.
[25] As regard the
withdrawal of the admissions and possible mistakes that could have
been made by the State Attorney and counsel
so instructed by it,
counsel for the appellant further argued in the court a quo as
follows:
“
Secondly,
your Lordship doesn’t know who is at fault at this stage. Is it
the attorney; your Lordship can’t say that
because there is no
evidence and we can’t give evidence from the bar,
there
has to be evidence under oath and
we
request
the opportunity”
.
The
underlining is my emphasis.
[26] It is clear
from the quotations above that counsel for the appellant never argued
for the hearing of the application to amend
the appellant’s
plea. All what he asked for was the opportunity to file a substantive
application as envisaged in subrule
(4) of rule 28 and also if need
be, the opportunity to withdraw the admissions.
[27] In my view, the
court a quo dealt with this matter as if there was an application for
leave to amend the appellant’s
plea. That appears from its
judgment wherein is stated:
“
What
I have to consider in this matter is that there is an application for
amendment before this court. Mr Mothepe had argued that
the fact that
there is a notice for amendment and an objection, the matter must be
heard. He is correct in that, the rules state
that”.
[28] I have not been
able to find on the papers such application for amendment. The
proposed intention to amend in terms of subrule
(1) is not an
application to amend. The application to amend, is in terms of
subrule (4), triggered by the objection in terms of
subrule (2) read
with subrule (3). Further in the judgment, the court a quo stated:
“
Although
Mr Mothepe on behalf of the defendant rightly urged that this is not
an application for a postponement ...Mr Mothepe is
correct when he
said that there is no application for a postponement before me,
however I must look at the cold facts and reality
of the
situation...”
[29] The closest to
what is quoted above is found in the submission by counsel for the
appellant in the court a quo. The submission
went around like this:
“
M’Lord,
I should say that I am not asking for postponement and I will
motivate why I say that. It happens in litigation that
you bring
intention to amend, the other party does not object, he allows the
amendment, we proceed with the trial. If there was
no objection, that
is what would happened. It
was
anticipated that
it will be an objection, because we bring an amendment. One has to
inform the other party, even if it was three
weeks ago,
we
would still be in
the same position because three weeks, coming back,
we
would still not be
having enough days to file in terms of the rules. Rule 28(1) simply
says, if you want to amend, give notice.
Rule 28(2) says that you
shall mention that they have ten days. You have not (sic) discretion
there. When they then object, it
is an objection, you must then bring
an application and that is why I am not asking for a postponement. If
there is objection,
there must be an application...”
[30] At the risk of
repetition, it is clear that the appellant’s counsel in the
court a quo never asked for the amendment.
He might have wanted to
suggest that he was not asking for a postponement. But, the effect of
his submission in wanting to comply
with the provisions of subrule
(4) was to force a postponement. But clearly there was no application
for an amendment of the plea.
Therefore the court a quo had nothing
to dismiss.
REFUSAL TO GRANT
THE APPELLANT THE OPPORTUNITY TO APPLY FOR LEAVE TO AMEND ITS PLEA
[31] This ground has
a bearing on the merits of the application for leave to amend which
the appellant intends to launch in terms
of subrule (4) of rule 28.
On the first ground alone, the appeal should be disposed of in favour
of the appellant. Effectively
the appellant wanted to withdraw
whatever admissions it could have made regarding the alleged
existence of the contract between
the appellant and respondent. In
amending the plea and if need be in withdrawing the admissions, the
appellant intends pleading
that there was never a tender awarded to
the appellant.
[32] The proposed
plea must be seen in context. It is not a new thing to the
respondent. It first surfaced in the letter of the
8 March 2005
addressed to the respondent. In that letter, the appellant
specifically told the respondent that ‘due to the
fact that
Setumu Force Security CC was not awarded Bid no RFB2004 29’ and
that the respondent cannot therefor reconsider
the bid. Subsequent
thereto and still in 2005, the respondent attempted to reassert its
rights in terms of the alleged agreement.
It applied for a
declaratory order to confirm the existence of such alleged contract.
The application against the appellant was
dismissed with costs.
[33] I need to be
careful not to express myself in such a manner that I am
misunderstood to be making a final determination on the
proposed
amendment and the merits of the case as a whole. The cause of action
as pleaded appears to be based on the nomination
letter quoted in
paragraph [16] of this judgment and the subsequent alleged award of
the tender. The alleged award of the tender
is not specifically
pleaded in the particulars of claim, but is pleaded in paragraph [8]
of the answering affidavit opposing the
condonation application as
follows:
“
8.
The respondent complied with all the set conditions, which included
the completion and signature of the service level agreement.
The
respondent was awarded the tender in respect of Limpopo Province”.
[34] The alleged
award of the tender contended for the respondent should be seen in
context. The context is that the nomination
or short-listing was
subject to certain conditions some of which contained in annexure B,
that is, the Memorandum of Agreement,
in terms of which the appellant
was to be satisfied that compliance with minimum wage in terms of
Government Gazette no. 25075
dated 13 June 2003 has been met. In the
proposed amendment paragraph 11 is couched as follows:
“
11.1
The defendant denies that annexure “D” constitute a
cancellation of
the
contract
.
11.2 Annexure “D”
specifically states that the defendant “cannot continue with
engaging” the plaintiff,
meaning that the defendant cannot
continue contracting the plaintiff despite it having been nominated
or short-listed initially.
11.3 The
defendant pleads further that its legal position on the plaintiff’s
bid was further clarified in its letter dated
08 March 2005 attached
hereto as annexure “X".
11.4 Annexure “X”
made it clear that other than being short-listed, the plaintiff’s
bid was never accepted by
the defendant and there was consequently no
binding agreement between the plaintiff and the defendant”.
[35] Annexure “X”
is the letter quoted in paragraph [18] of this judgment. It therefore
appears that it would be the
appellant’s case that the tender
was not awarded to the respondent for failure to meet the criteria as
set out in the Government
Gazette aforesaid. The court a quo did not
seem to have seriously considered the merits of the case and the
defence the appellant
wants to plead in the proposed amendment. That
is, it overemphasized the delay in bringing the proposed amendment
and in doing
so, dealt with the matter as if there was an application
for leave to amend before it. In its judgment, it stated:
“
When
I look at the notice of amendment on its own, I am inclined to agree
that this is a matter that runs into the millions, but
I cannot look
at the amendment and ignore what transpired on the 8th February. On
the 8th February, at the very best for the defendant,
they were given
an indulgence, at the very worse for the defendant, the matter was
settled. Therefore, the hearing of the 8th February
is of cardinal
importance as to whether this amendment ought to be granted or not.
Having said that, had it not been for what happened
on the 8
th
February I would have granted the defendant the opportunity to amend
and ordered the defendant to pay the cost, but for what transpired
on
the February”.
[36] I do not think
the defence raised in the proposed amendment can be said to be
ill-founded or not bona fide. The attorney for
the respondent further
argued that the appellant is not entitled to substitute its plea and
in doing so, introduce a new defence.
He referred us to a number of
authorities. I do not intend to deal with them specifically. It
suffices to mention that the defence,
if introduced, would not be a
new defence. It is a defence that was raised previously in the other
proceedings concerning the same
parties. But for one reason or the
other, the state attorney who delivered the plea, decided not to
raise it as a defence. Instead,
the state attorney on behalf of the
appellant, acknowledged the existence of a tender agreement between
the appellant and the respondent.
The appellant is entitled to plead
a defence which is in accordance with its evidence. To hold the
appellant to a defence which
is not in accordance with its evidence,
will, in my view, be contrary to the provisions of section 34 of the
Constitution. It provides
that everyone has the right to have any
dispute that can be resolved by the application of law, decided in a
fair public hearing
before a court, or where appropriate, another
independent and impartial tribunal or forum. If it was to be proved
that no tender
was awarded, and or that the respondent did not meet
the criteria attached to the tender, that would constitute a good
defence
to the appellant’s case. But, again, I am not making a
final determination. The appeal must therefore succeed.
COSTS
[37] In paragraph
[22] of this judgment I referred to the provisions of Rule 28(10).
The appellant was entitled to bring the application
for amendment at
any time before judgment. On the 8 October 2012, parties spent
several hours in the court a quo arguing whether
or not the appellant
should be given the opportunity to apply for leave to amend its pleas
as envisaged in Rule 28(4). It was argument
prompted by the filing of
intention to amend the plea in terms of Rule 28(1). That notice was
delivered on Friday the 5 October
2012 when the matter was scheduled
for trial on Monday 8 October 2012. The appellant found itself in
that position because its
attorney from the State Attorney did not
expeditiously and diligently ensure that the appellant’s case
is taken care of.
It was for this reason that during argument on the
8 October 2012, counsel for the appellant tendered a punitive costs
order for
wasted costs occasioned by the late filing of notice to
amend in terms of Rule 28(1). Mr Ellis SC, on behalf of the
appellant,
conceded that a punitive costs order would have been
justified.
[38] As regards the
application for condonation, the merits of the appeal are such that
one would have expected the respondent not
to persist with its
opposition to the granting of the condonation. The stronger the
prospects of success on appeal the lesser the
emphasis on failure to
give satisfactory explanation for non-compliance with the provisions
of Rule 49. Therefore, the opposition
was unwarranted. Ordinarily the
innocent party in an application for condonation is compensated by an
order of costs in his or
her favour. That is, the guilty party seeks
the indulgence of the court and any prejudice to the innocent party
is compensated
by an order of costs. However, the respondent in the
circumstances should be denied of such costs. The order that each
party should
pay his or her own costs with regard to the application
for condonation, would, in my view, be appropriate.
[39] Consequently I
would make an order as follows:
39.1 The application
for condonation for the late filing of the notice to appeal is hereby
granted;
39.2 The appeal is
hereby reinstated. Each party in the application for condonation to
pay his or her own costs.
39.3 The appeal is
hereby upheld with costs, such costs to include the costs of two
counsel;
39.4 The decision of
the court a quo dismissing the appellant’s purported
application for amendment of its plea, is hereby
set aside and
substituted as follows:
“
39.4.1
The trial is hereby postponed sine die;
39.4.2 The defendant
is hereby directed to deliver its application for the amendment of
its plea in terms of Rule 28(4) within ten
days from date hereof;
39.4.3 The defendant
to pay the costs occasioned by the postponement on an attorney and
own client scale.”
M F LEGODI
JUDGE OF THE HIGH
COURT
I AGREE
W R C PRINSLOO
JUDGE OF THE HIGH
COURT
I AGREE
C PRETORIUS
JUDGE OF THE HIGH
COURT
FOR THE APPELLANT:
ADV. P Ellis SC, assisted by, ADV.JA Motepe
INSTRUCTED BY:
LINGENFELDER & BALOYI INC.
Building 7,
Atterbury Estate
19 Frikkie De Beer
Street
Menlyn, PRETORIA
Tel: 012 348 5908
Ref: KS
Baloyi/LK/KD0105
FOR THE RESPONDENT:
MR. I MOTLOUNG
INSTRUCTED BY:
MALULEKE SERITI MAKUME
MATLALA INC.
C/O LEDWABA INC.
614 Centenary
Building
23 Bureau Lane
Cnr Andries Street,
PRETORIA
Tel: 082 576
8497/082 86 7801
Ref:
LLL/CIV/148/ERL
1
Gumede
v
Road
Accident Fund
2007
(6) SA 304
(C) at 307 C-308 A.
2
Silber
v
Ozen
Wholesalers (Pty) Ltd
1954
(2) SA 345
(A) at 353A.
3
Smith
No v Brummer NO
1954
(3) SA 352
(O) at 358A.
4
Ford
v
Groenewald
1977
(4) SA 224
(T) at 226 A - C.