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[2013] ZAGPPHC 235
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South African Dental Association NPC v Minister of Health and Others (69766/2011) [2013] ZAGPPHC 235 (5 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF SOUTH AFRICA]
CASE
NO: 69766/2011
DATE:02/08/2013
In
the matter between: -
THE
SOUTH AFRICAN DENTAL
ASSOCIATION
NPC
.......................................................................................
APPLICANT
And
MINISTER
OF
HEALTH
................................................................
FIRST
RESPONDENT
THE
HEALTH PROFESSIONAL COUNCIL
OF
SOUTH
AFRICA
…...........................................................
SECOND
RESPONDENT
THE
CHAIRPERSON PF THE PROFESSIONAL
BOARD
FOR DENTAL THEREAPY AND ORAL HYGIENE
….
THIRD
RESPONDENT
THE
DENTAL ASSISTANT ASSCOIATION
OF
SOUTH
AFRICA
...................................................................
FOURTH
RESPONDENT
ORDER
MAVUNDLA,
J.,
[1]
On the 12 March2013 this Court made the following order:
“
1.
That the application is postponed sine die.
2.
That the postponement is granted on the following terms:
2.1
On or before 13 March 2013, the Applicant shall serve on alt of the
respondents a copy of the documents which were filed by
the State
Attorney on 23 January 2013 in the original order that those
documents were filed with the Registrar of this Court.
2.2
The second and third respondents shall file their answering affidavit
on or before 28 March 2013.
2.3
The fourth respondent shall file any affidavit in response thereto on
or before 15 April 2013.
2.4
The applicant shall file any further affidavit on or before 29 April
2013.
2.5
The applicant shall file its heads of argument on or before 14 May
2013.
2.6
All of the respondents shall file their heads of argument on or
before 28 May 2013.
2.7
The parties shall thereafter jointly approach the Deputy Judge
President of this Division to arrange a special allocation for
the
hearing of the matter in the third motion court on the earliest
available dates after 28 May 2013.
3.
That in respect of the costs of the application for the postponement
each party to pay its own costs;
4.
That in respect of the costs occasioned by the postponement:
(i)
The Second and Third Respondents jointly and severally the one paying
the other to be absolved, to pay 50% of the taxed and
allowed costs
of the First and Fourth Respondents, which costs to include the costs
of two counsel where applicable or of Senior
Counsel where only one
counsel employed;
(ii)
The Applicant (in the main application) to pay 50% of the taxed and
allowed costs of the First and Fourth Respondents, which
costs to
include the costs of two counsel where applicable or of Senior
Counsel where only one counsel employed;
(iii)
The Second and Third Respondents and the Applicant ( in the main
application) each to pay its own costs.”
I
also indicated that the reasons for this order will follow. I now
proceed to set out the reasons.
[2]
The application for the postponement was brought by the second and
third respondents, founded on an affidavit deposed to by
their
attorney of record. For purposes of convenience, the parties have
been referred to as cited in the main application. The
application
for postponement was opposed by the applicant in the main
application.
[3]
It is trite that the party who seeks a postponement must bear the
costs occasioned by the postponement. Equally trite is the
fact that
the matter of costs, is a matter of the discretion of the Court.
[4]
The importance of the main application lies in the very fact that the
review sought is to have a series of regulations, aimed
at
establishing and regulating the profession of Dental Assistant, set
aside. The matter in essence concerns the validity of the
promulgation of the said regulations, in the light of the provisions
of the Health Professions Act 56 of 1974.
[5]
It is common cause that the duty to file the record in terms of Rule
53 of the Uniform High Court Rules rested upon the applicant
in the
main application. The applicant on 20 July 2012 filed a record, which
it considered to be defective. The first respondent
subsequently
remitted further documents to the applicant, as the result of which
the applicant filed a supplementary record. However,
the record
subsequently filed, was dissimilar to the original record.
[6]
The applicant had advised the second and third respondents that it
intended to file a supplementary affidavit.1The applicant
delayed in
providing the supplementary record, notwithstanding request by the
second and third respondent’s to do so.2 This
delay, in my
view, contributed in the second and third respondent’s not
being able to file their answering affidavit much
earlier, resulting
in the need to bring the application for a postponement. Further the
applicant filed dissimilar records and
this also contributed in the
need to apply for the postponement3.
[7]
In my view, the fact that the applicant filed dissimilar records,
contributed in the matter not being trial ready on the 12
March 2013.
The applicant unsuccessfully opposed the application for the
postponement. The first respondent did not oppose the
application for
postponement. In my view, in the circumstances of this case, it is
just and fair that in so far as the costs for
the application for
postponement are concerned, each party should bear its own costs.
[8]
The second and third respondents were initially represented by the
very same attorneys of record. The second and the third respondents
permitted these attorneys to withdraw from the matter4 only to bring
them back on record5. The fact that the
attorneys
were not trial ready on the 12 March 2013, was in my view, caused by
the second and third respondents in not keeping its
attorneys on
record at all times. This also contributed to the said attorneys not
being in a position to file the second and third
respondents’
answering affidavit in time. For this reason the second and third
respondents must be mulcted with the costs
occasioned by the
postponement. However, the applicant also filed dissimilar records
and therefore must also be mulcted with the
costs occasioned by the
postponement. In the circumstances, it is in my view just and fair
that the second and third respondents
on the one hand and the
applicant on the other hand must equally be mulcted with the costs
occasioned by the postponement, as already
done.
[9]
As already indicated herein above, the matter was not trial ready on
12 March 2013. This resulted in the fourth respondent’s
application for provisional joinder not being ventilated.
Consequently, in my view, it is just and reasonable that the
resultant
costs of the fourth respondents of the 12 March 2013 should
be borne by the parties who contributed in the matter not being trial
ready on 12 March 2013. It is for that reason that I ordered that the
applicant on the one side and second and third respondents
on the
other should each pay 50% of the costs occasioned by the
postponement.
[10]
I therefore hand down the reasons.
MAVUNDLA
JUDGE OF THE HIGH COURT
DATE
OF HEARING:12 MARCH 2013
DATE
OF JUDGMENT: 02 AUGUST 2013
APPICANT
S ATT: WERKSMANS ATTORNEYS
APPLICANT'S
ADV: ADV B. E. LEECH S.C. with
ADV.
K.S HOFMEY.
1st
RESPONDENTS’ ATT : STATE ATTORNEYS
1st
RESPONDENTS ADV: T.P. KRUGER
2nd
& 3rd RESPONDENTS, ATT: MODUKA ATTORNEYS
2nd
& 3rd RESPONDENTS, ATT : ADV. T. KMHWANAZI
4th
RESPONDENT S ATT: LAWYEARS FOR HUMA RIGHTS
4th
RESPONDENTS ADV: ADV. DE VOS S.C. with
ADV.
G. SNAYMAN