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[2015] ZAGPPHC 972
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IBR Fire Protection CC t/a IBR Fire v Minister of Labour and Others (70285/13) [2015] ZAGPPHC 972 (7 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
7/8/15
CASE
NUMBER: 70285/13
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
IBR
FIRE PROTECTION CC
t/a
IBR
FIRE APPLICANT
and
THE
MINISTER OF
LABOUR 1ST
RESPONDENT
SABS
COMMERCIAL SOC
LIMITED 2ND
RESPONDENT
Coram:
HUGHES J
JUDGMENT
Heard
on: 10 February 2015
Delivered
on: 07 August 2015
HUGHES
J
1.
I encountered this matter on the opposed roll. The applicant sought
that the answering affidavit filed by the second respondent
("respondent") on 23 April 2014 be set aside. Further, that
the matter proceed as unopposed and that the respondent pay
for the
costs of this application.
2.
Briefly, the applicant sought to interdict the respondent from
implementing an on-site verification checklist together with
ancillary relief. The application papers were
served on the respondent on 28 November 2013. The respondent filed
and served its intention to defend on 5 December 2013. The matter was
on the unopposed roll on 17 February 2014. The matter became
opposed
and was removed from the roll with cost to be cost in the
application.
3.
On 8 January 2014 the respondent sought the applicant to produce
certain documents in terms of Rule 35(12) of the Uniform Rules
of
Court. The applicant served its reply thereto on the respondent on 29
January 2014. On 24 April 2014 the respondent served its
answering
affidavit dated 23 April 2014.
4.
The respondent having failed to file it's answering affidavit in
terms of Rule 6(5) (d) (ii), within the prescribed time, and
even
within the extended time allowed by the applicant, the applicant on 8
May 2014 served upon the respondent a notice in terms
of Rule 30.
5.
The applicant contends that the respondent having failed to comply
with Rule 6 should have sought leave and condonation to file
its
answering affidavit which was out of time.
6.
On 10 June 2014, the applicant, served its notice of motion in the
present application and a notice with the heading,
"Notice
of
Enrolment
unopposed
roll
-
Rule
30A 18 August 2014".
The
respondent filed and served on 10 July 2014 its intention to oppose
the applicant's application in terms of Rule 30A. On 1 August
2014
the respondent served its answering affidavit to the Rule 30A
application.
7.
On 13 August 2014 the applicant caused a notice headed,
"Notice
of removal unopposed
roll
-
Rule
30A
18 August
2014",
to be served on
the respondent. This notice requested the removal of the matter set
down on the unopposed roll for Monday 18 August
2014.
8.
The matter was then eventually set down as an opposed motion and
heard on 10 February 2015.
9.
The applicant sought the answering affidavit of the respondent of 23
April 2014 be set aside. In doing so, the applicant caused
a notice
as is set out below to be served upon the respondent:
"
NOTICE
IN TERMS OF RULE 30
KINDLY
TAKE NOTICE THAT the Second Respondent has failed to comply with the
provisions of Rule 6(5) (d) (ii) and has filed its Answering
Affidavit beyond the time-limits allowed.
TAKE
NOTICE FURTHER THAT the Second Respondent has not sought the consent
of the Applicant for such late-filling, nor does it address
the issue
of condonation in the Answering Affidavit.
TAKE
FURTHER NOTICE the Second Respondent's conduct constitutes an
irregular step, and it is afforded 10 (ten) days to remove the
cause
of complaint."
10.
However, the applicant's notice of motion with the relevant founding
affidavit attached thereto was headed
"FOUNDING
AFFIDAVIT
-
RULE
30A".
Further, the relief sought at paragraph 4 of the papers is as
follows:
"4.
RELIEF SOUGHT
4.
1 The
applicant
seeks
the following
relief
-
4.
1.1
Setting aside the Answering Affidavit
of the Respondent
dated 23 April 2014 (and filed 24 April 2014);
4.1.2
Ordering that the matter proceed
on an unopposed
basis;
4.1.3
That
the
Respondent
be
ordered
to
pay
the
Costs
of
this Application;
4.1.4
Further and/or alternative relief "
11.
The premise upon which the applicant sought the order above is set
out in paragraph 5.2 and 5.3 which reads as follows:
"5.2
On
8 May
2014
the
Applicant
supplied
a
Notice
in
terms
of
Rule
30(2)
(b), within the time-periods
set out by the Rules of
Court;
and
5.
3
The
Respondent has
failed to
cure
the
non-compliance and
has
not sought condonation for the later filling
of such Affidavit."
12.
The applicant argues that it served a notice in terms of
"Rule
30"
which the respondent concedes it received. The
respondent takes issue that it did not receive a notice in terms of
Rule 30A. The
applicant submits that it matters not if the notice was
headed Rule 30A or Rule 30(2)(b}, what is of importance is the
request
made therein, and the details of the steps complained of.
Further, it is clear from the Rule 30 notice that the applicant's
complainant
lies in the late filing by the respondent of its
answering affidavit on 24 April 2014 in the absences of seeking
condonation.
13.
The applicant further argues that the defence raised by the
respondent is technical in nature and that the respondent cannot
argue that it was at a loss as to what to do because it is clearly
set out in the Rule 30 notice.
14.
The argument on behalf of the applicant is that Rule 30(2) makes
provisions for a request or an opportunity to remove the compliant
and makes provision for irregular steps having been taken. Whilst,
Rule 30A on the other hand is a catch all for non-compliance
with the
Rules. In this case the applicant alleges that the respondent is
guilty of non-compliance with the time limits set out
in Rule 6(3).
15.
However, in the applicant's heads of argument the applicant submits
that the correct rule to be applied is in fact Rule 30A
which deals
with non-compliance with the rules rather than an irregular step. All
that was necessary for the respondent to do was
to file its
condonation application for the late filing of its answering
affidavit, which it failed to do. Instead it chooses to
adopt an
"over-technical
approach".
The
applicant finally argues that it has made out a case for the
relief sought and the answering affidavit to be struck out.
16.
The respondent argues that on a reading of paragraphs 5.2 and 5.3
supra,
of the applicant's founding affidavit, it is
evident from the applicant's founding affidavit that an application
in terms of Rule
30(2)(b) was sought to get the respondent to
"cure
the
non-compliance".
The respondent
argued that this is further substantiated by the applicant's
submission that a Rule 30(2)(b) notice was served upon
the respondent
within the time set out in that rule.
17.
The respondent contends that the applicant has now recanted the case
it made out in its founding papers, based on Rule 30 (2)(b)
to now
seek relief in terms of Rule 30A. This is borne out in the
applicant's heads of argument. The respondent argues this cannot
be
done as the procedure adopted by the applicant falls within that
required in terms of Rule 30, that is why the applicant delivered
the
Rule 30 (2) notice. The procedure required in terms of Rule 30A was
not followed.
18.
In any event the respondent argues that both Rule 30 (2) and Rule 30A
are not the correct Rules to follow in the circumstances
of this
case. The applicant's complainant lies in the respondent failing to
file it answering affidavit timeously in terms of Rule
6 (5) (d) (ii)
and the remedy to deal with the non-compliance lies within Rule 6 (5)
(f).
19.
The respondent argues that the applicant is not entitled to relief
sought when it has failed to use the mechanism at its disposal
in
Rule 6. This rule sets out how one deals with the non-compliance
complained of. The respondent stressed that the applicant cannot
place reliance on Rule 30A, as this rule caters for those rules which
do
not have a built in specified mechanism to deal with transgressions
within that rule.
20.
The respondent submitted that the applicant has failed to mention the
timeframe of grace provided by the applicant to the respondent
to
file its answering affidavit. The entire process engaged by the
applicant was embarked upon after the respondent filed it answering
affidavit and not before. Clearly, from the applicant's conduct and
from its papers, no prejudice is alluded to or even mentioned.
In the
circumstances, the respondent seeks that the application be dismissed
with cost as the application contemplated in terms
of Rule 6(5)(f),
that is applicable is not before the court. The time contemplated in
terms of Rule 30 has come and gone and there
was no notice given as
contemplated in Rule 30A.
21.
Rule 6(5)(f) reads as follows:
(f)
Where no answering affidavit, or notice in terms of sub-paragraph
(iii) of paragraph
(d),
is delivered within the period
referred to in sub-paragraph (ii) of paragraph
(d)
the
applicant may within five days of the expiry thereof apply to the
registrar to allocate a date for the hearing of the application.
Where an answering affidavit is delivered the applicant may apply for
such allocation within five days of the delivery of his replying
affidavit or, if no replying affidavit is delivered, within five days
of the expiry of the period referred to in paragraph
(e)
and
where such notice is delivered the applicant may apply for such
allocation within five days after delivery of such notice. If
the
applicant fails so to apply within the appropriate period aforesaid,
the respondent may do so immediately upon the expiry thereof.
Notice
in writing of the date allocated by the registrar shall forthwith be
given by applicant or respondent, as the case may be,
to the opposite
party.
22.
On my reading of Rule 6(5)(f) it is evident to me that if there is
non compliance with the filing of an answering affidavit,
in
terms of this rule, the plaintiff is at liberty to set the matter
down on the unopposed roll. Let's turn to examine Rule 30A
upon which
the applicant seeks to rely.
The
Rule reads as follows:
30A
Non-compliance with rules
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant thereto, any
other party may notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such
rule, notice or request be complied
with or that the claim or defence be struck out.
(2)
Failing compliance within 10 days, application may on notice be made
to the court and the court may make such
order thereon as to it seems
meet.
[Rule
30A inserted by GN R881 of 26 June 1998.]
23.
As the heading illustrates Rule 30A is a general rule to deal with
non compliance with rules. It therefore is applied if
there is
non-compliance with any of the rules of court. The question to be
asked, can this rule, that is Rule30A, be used if a
rule has within
it specified mechanisms set out to deal with non-compliance of that
specific rule? The answer lies in the case
below.
24.
In
ABSA
BANK LTD
v
THE
FARM KLIPPAN
490
cc
2000
(
2)
SA 211
(W)
at 213H-I and 214H-215A EPSTEIN AJ
stated the following:
"
What
is now clear
is that Rule 30A
is
the
procedure
to
use where
a
party wishes
to
c
ompel
compliance
with
a
notice
or
request
given
in
terms
of
those
Rules
which
have
no
s
pecial
remedy
for failing
to
comply
or
respond thereto.
But the question to be decided is whether Rule 30A, which is now
a Rule which stands alone, overrides or supersedes those Rules
which have a specific remedy for non-compliance ...
...The
provisions of Rule 30A, on the one hand, and those Rules which
provide a specific remedy for non-compliance, on the other,
remain
conflicting or contradictory. The result must be that the general
yields to the special. If this general Rule, that is Rule
30A,
derogated from the Rules which contain a specific remedy (which I
will henceforth term 'the specific remedy Rules'), it would
only
serve to curtail and frustrate the expeditious completion of
litigation. The effect would be to afford a party an extra ten
Court
days (in essence two weeks) to comply with the Rules or to respond to
a notice or request. A further effect would be to exacerbate
the
already high cost of litigation.
Rule
30A has an important place in the Rules, in that, as I have stated,
it provides a remedy where none exists elsewhere.
However,
it
could
not have
been intended
by
the
drafters
of
Rule
30A to jettison the existing and effective remedies
provided in the specific remedy
Rules.
If it was so intended, it would render such remedies nugatory. The
remedies in the specific remedy Rules have always
been
effective and there is no reason to denude them of their efficacy."
That
underlined is my emphasis.
25.
I align myself with the sentiments expressed by Epstein AJ above.
26.
Adv. Tsatsawane for the respondent, argued that in these
circumstance, the applicant had the advantage of a specific mechanism
at its disposal, that is Rule 6(5)(f), it should have utilized same,
intend of going on a confused tangent applying Rule 30(2)
and then
opting to rely on Rule 30A.
27.
It is trite that in cases of this nature I have a discretion when
exercising my powers, in doing so I take cognisance of the
fact that
the applicant has not advised in its papers or in argument what,
period of extension had been granted to the respondent.
This would
have been helpful to ascertain why the applicant saw it fit to
pursued this current application some thirty days after
the
respondent filed its answering affidavit.
28.
Adv. Tsatsawane argued that the applicant did not want to deal
with the merits after it received the answering
affidavit
and that might be why the confusion in pursuing the Rule 30(2) and
Rule 30A application arose. As things stand, in my
view there is
merit in his agreement.
29.
In the circumstances as there is no indication that the respondent
filed outside the period of extension and the fact
that
the applicant only proceeded with this application sometime after the
respondent filed its answering affidavit, it is
my view that as Rule
6(5) (f) was not initiated by the applicant the answering affidavit
stands. The applicant is to file its replying
affidavit to the
respondent's answering affidavit.
30.
The applicant seeks to strike out the respondent's answering
affidavit and in doing so engaged in unnecessary litigation, swing
from Rule 30(2) to Rule 30A, in an attempt to have the answering
affidavit removed from the proceedings. No reason is advanced
for the
indulgence granted to the respondent and thereafter perusing this
application, after the respondents filled its answering
affidavit.
31.
Taking the factors mentioned above I make the following order:
30.1
The application is dismissed with costs.
________________________
W.
Hughes
Judge
of the High Court