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[2013] ZAGPPHC 294
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Stemashan Sphephelo Joint Venture v Member of the Executive Council (âMECâ) for the Department of Local Government and Housing in the Mpumalanga Provincial Government (18722/2010) [2013] ZAGPPHC 294 (15 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 18722/2010
Date:
15 October 2013
In
the matter between:
STEMASHAN
SPHEPHELO JOINT
VENTURE
…......................................................
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL (“MEC”)
…..........................
First
Defendant
FOR
THE DEPARTMENT OF LOCAL GOVERNMENT
AND
HOUSING IN THE MPUMALANGA PROVINCIAL GOVERNMENT
THE
HEAD OF THE DEPARTMENT (“HOD”) FOR
THE
..............................
Second
Defendant
DEPARTMENT
OF LOCAL GOVERNMENT AND HOUSING IN THE
MPUMALANGA
PROVINCIAL GOVERNMENT
JUDGMENT
PRETORIUS
J.
[1]
The defendants applied to court on 14 October 2013, the trial date,
to separate the defendant’s special plea in terms
of Rule 33
(4) and to finalize it before dealing with the merits and the quantum
of the action.
[2]
This notice of motion was filed and served on the plaintiff, a couple
of days before the trial date. The plaintiff replied to
this
application on 11 October 2013, opposing the application. Due to the
short period of time the defendants have not responded
as yet.
[3]
Mr Rautenbach, for the defendants, argued that the application may
dispose of the matter and that it may not be necessary to
go through
a trial.
[4]
The plainitffs counsel, Mr Mokoena, vehemently opposed the
application and urged the court not to grant the relief sought by
the
defendants.
[5]
It is clear from the papers that the notice sent to the defendants in
terms of section 3 of the Institution of Legal Proceedings
against
Certain Organs of State Act 40 of 2002 was out of time, as correctly
conceded by Mr Mokoena. His argument is that the defendants
did not
act as if they were proceeding with the special plea. The plaintiff
therefor accepted that they will not
raise the special plea and continue relying on it.
[6]
I have to agree with defendant’s counsel that there is nowhere
any indication in any correspondence or the pre-trial minute
that the
defendants will abandon the special plea. It is common cause that at
the pre-trial meeting the parties could not agree
that the special
plea should be adjudicated seperately.
[7]
The court would have expected the plaintiff to bring a condonation
application in this instance, which the plaintiff did not
do. It is
not adequate to state in the answering affidavit:
“
To
the extent that it can be found that the Plaintiff/Respondent did not
strictly comply with the Act, I submit that there was substantial
compliance and good faith on the part of the Plaintiff/Respondent to
comply with the Act as evident from the annexures to the answering
affidavit
To
the extent that this honourable court finding that there was no
compliance at all, a point which the Plaintiff/Respondent does
not
concede, the Plaintiff/Respondent seeks this honourable court to
condone the extent of non-compliance with the Act”
[8] However, ! am not prepared to
close the door to the plaintiff as I realize this is an important
action involving a large amount
of money. In Premier Western Cape v
Lakay
2012 (2) SA 1
Cloete JA held at paragraph 14:
“
Condonation
of a procedural irregularity in court proceedings would ordinarily
involve the exercise of such a discretion, because
the court is
master of its own procedure; but the discretion here has nothing to
do with the court's procedure and is conferred
by statute. ”
[9]
If I apply the dictum in the Lakay case where Cloete JA held at par
17:
“
The
minimum requirement is that the applicant for condonation must
furnish an explanation of the default sufficiently full to enable
the
court to understand how it really came about, and to assess his/her
conduct and motives”
then
I must find that the plaintiff has not furnished an explanation
setting out the reasons for not complying.
[10]
It is incumbent on the plaintiff to apply for condonation. This court
will grant the plaintiff the opportunity to apply for
condonation
within 10 days of this judgment.
[11
] The following order is made:
1. The application to have the special
plea adjucated seperately in terms of Rule 33(4) is granted;
2.
The plaintiff is granted the opportunity to lodge a condonation
application for not complying with section 3 of the Institution
of
Legal Proceedings against Certain Organs of State Act 40 of 2002
within 10 days of this order;
3.
Therefater the normal rules of court will apply in regards to the
opposing and replying affidavits (if any);
4.
Costs of this application are reserved;
5.
The action is postponed sine die.
Judge
Pretorius
Case
number: 18722/2010
Heard
on: 14 October 2013
For
the Plaintiff : Adv Mokoena SC
Instructed
by : Werksmans
For
the Defendant : Adv Rautenbach SC
Instructed
by : Coleman
Date
of Judgment : 15 October 2013