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[2014] ZAFSHC 137
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Mofokeng v Member of the Executive Council of the Free State Government (6011/2010) [2014] ZAFSHC 137 (4 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 6011/2010
In
the matter between:
MOSIUOA
ERNEST MOFOKENG
…...................................................................................
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL OF
THE
FREE STATE GOVERNMENT
(DEPARTMENT
OF EDUCATION)
…..............................................................................
Respondent
CORAM:
LEKALE, J
HEARD
ON:
7 AUGUST 2014
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
4 SEPTEMBER 2014
The
matter was heard on 7 August 2014 and these are reasons for judgment.
INTRODUCTION
AND BACKGROUND
[1]
On 7 August 2014 I dismissed the applicant’s application for
separation of trial issues made in terms of Rule 33(4) of
Uniform
Rules of Court (the Rules) with costs and indicated that reasons
would be furnished on request by either party. The
applicant
filed a request for such reasons on 25 August 2014 and these are,
therefore, my reasons for the order in question.
[2]
The parties are engaged in an action in which the applicant, as the
plaintiff, claims specific performance of a contract for
transportation of learners concluded between the parties.
[3]
On 18 July 2013 the parties held a pre-trial conference in terms of
Rule 37(4) of the Rules whereat they,
inter
alia
, agreed that the issues in dispute
should be separated in terms of Rule 33(4) for trial purposes and
that the trial court shall
first adjudicate the question whether the
respondent, as the defendant, repudiated or lawfully cancelled the
learner transportation
contract and that other issues shall stand
over for later adjudication. The parties, further, agreed at that
conference that the
respondent shall bear the onus of proof and the
duty to begin in respect of the relevant question. In its plea the
respondent raised,
inter alia
,
two special pleas.
[4]
When the matter was supposed to proceed to trial on 20 August 2013
the respondent’s legal team advised the applicant’s
legal
team that they did not consider the respondent bound by the pre-trial
agreement in respect of separation of issues, the onus
and the duty
to begin. The matter was, thus, postponed with costs standing over
for later adjudication.
[5]
On 26 February 2014 the applicant set the matter down for trial on
26, 27 and 29 August 2014. On 23 June 2014 the applicant
launched the
instant application which the respondent opposed vehemently.
ISSUES
IN DISPUTE
[6]
The parties are effectively at variance on whether or not the issue
as to whether the respondent repudiated or lawfully cancelled
the
contract can be conveniently decided separately from any other
question regard being had to the pre-trial agreement and the
two
special pleas raised by the respondent in the action.
CONTENTIONS
BY THE PARTIES
[7]
Mr Pienaar, for the applicant, painstakingly pointed out that the
respondent is bound by the pre-trial agreement and there exists
no
special circumstances for it to resile from the same insofar as it
entered into the same after it had ample opportunity to consider
the
contents, as well as the proposals which were sent to it as a draft
Rule 37 minute on 12 July 2013 with the conference being
held on 18
July 2013. The respondent’s first special plea has not
prospects of success because the applicant’s
claims, both main
and first alternative, are not subject to the provisions of the Legal
Proceedings Against Certain Organs of State
Act 40 of 2002. The
same applies to the second special plea, because the applicant’s
particulars of claim were amended
to indicate that the parties
unsuccessfully attempted to settle the dispute by mediation.
[8]
Mr Khoza submitted for the respondent that the pre-trial agreement
with regard to separation of issues is not binding on the
court
insofar as the separation does not facilitate the disposal of the
matter. In his view, the two special pleas raised
by the
respondent should, in line with the usual practice, be disposed of
ante omnia
.
According to him the application constituted typical abuse of court
process because the issue could have served before the trial
court,
which is the most competent to deal with the same. The agreement
amounts to a wrongly made concession on matters of law
and it can,
thus, not be supported by the court.
APPLICABLE
LEGAL PRINCIPLES
[9]
It is correct, as Mr Pienaar submitted, that a party is not entitled
to resile from an agreement deliberately reached at a Rule
37
conference in the absence of any special circumstances in the light
of the fact that the rule in question was introduced to
shorten the
length of trials, to facilitate settlements between the parties,
narrow the issues and to curb costs.
(See:
MEC for Economic Affairs, Environment
and Tourism, Eastern Cape v Kruizenga and Another
2010 (4) SA 122
(SCA) at 126 [6].)
[10]
It is further true, as Mr Khoza contended, that a concession which is
wrong in law is not binding on the court and the court
does not
hesitate to reject the same.
(See:
Matatiele Municipality and Others v
President of the RSA and Others
2006 (5) SA 47
(CC) at par [67].)
[11]
Where a court is approached to sanction separation of issues, it
bears the duty to satisfy itself that the separation will
serve the
desired purpose and it is not just simply bound by the agreement
between the parties.
(See:
Adlem and Another v Arlow
2013 (3) SA 1
(SCA) at 3E – F.)
[12]
A judge seized with the matter is normally the best competent or
qualified to make the decision as to whether or not the trial
should
proceed in a piece meal fashion.
(See:
Sibeka and Another v Minister of
Police and Others
1984 (1) SA 792
(W) at 794H.)
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[13]
The respondent’s special pleas raise the question whether or
not the applicant could institute action against the respondent,
as
an organ of State, in circumstances where it had not given the
respondent, as the defendant, proper notice in terms of section
3 of
Act 40 of 2002 and the question whether or not the applicant complied
with the provisions of clause 27 of the Learner Transportation
Contract, which requires the parties to attempt to resolve disputes
amicably by mutual consultation before instituting legal actions.
[14]
As correctly submitted for the respondent, such special pleas, if
successful, have the effect of disposing of the matter
ante
omnia
. In fact, where applicable,
Act 40 of 2002 prohibits institution of legal proceedings against
organs of State without a six
months’ notice having been given
to the relevant organ of State. Both special pleas, by their
very nature, deserve
the attention of the court before anything else.
[15]
In my judgment it was, therefore, not convenient to separate the
issues in the manner agreed upon by the parties at the pre-trial
conference. I was, further, persuaded by the respondent that it
was probably wrong in law for the respondent’s legal
representative at the Rule 37(4) conference to concede that the
respondent bears the onus of proof and duty to begin on the issue
in
question.
[16]
Mr Pienaar, effectively, invited the court to consider the merits of
the special pleas raised and I declined to get involved
because only
the trial court is competent, in my view, to adjudicate such pleas.
Sitting as I was, I only had to determine
whether or not it was not
convenient to separate the issues in the manner desired by the
applicant.
[17]
I was also of the view that the trial court was the most competent to
decide the issue of separation in the present matter
for it would be
able to weigh up the advantages of such separation against the
disadvantages with all the relevant information
at its disposal.
[18]
The issue identified by the applicant as deserving of separation is,
in my view, part of the merits of the matter between parties,
while
the special pleas are clearly matters of law which can conveniently
be dealt with
in limine
without touching on the merits of the matter.
COSTS
[19]
In its papers the respondent asked for costs including costs
attendant on employment of two counsel. The applicant, on its
part,
submitted that, in the event of the application being dismissed,
costs be reserved or be directed to fall in the main action
and that
they not include costs of two counsel.
[20]
In argument Mr Khoza correctly conceded that the matter did not
warrant employment of two counsel and that only costs of one
counsel
would be fair and appropriate.
ORDER
[21]
In the result I issued an order dismissing the application with
costs.
______________
L.
J. LEKALE, J
On
behalf of applicant: Adv C.D. Pienaar
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv M.G. Khoza SC
Instructed
by:
State
Attorney
BLOEMFONTEIN