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[2013] ZAECMHC 18
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Magwentshu v Minister of Safety & Security (2248/12) [2013] ZAECMHC 18 (26 September 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 2248/12
Heard on: 02/09/13
Delivered on: 26/09/13
In the matter between:
SIWAPHIWE MAGWENTSHU
.................................................................
Plaintiff
and
MINISTER OF SAFETY & SECURITY
.................................................
Defendant
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] On 22 October 2012 the plaintiff issued summons
against the defendant seeking payment of delictual damages arising
out of bodily
injuries sustained in an alleged wrongful assault. The
defendant, being an organ of state, delivered a notice of intention
to defend
on 29 November 2012 through the office of the State
Attorney, Mthatha acting in terms of Rule 19 of the uniform rules of
the Court.
It bears mentioning that the summons had been served at
the office of the State Attorney as the plaintiff was obliged to do
so
in terms of
s 2(2)
of the
State Liability Act 20 of 1957
, which
reads:
“The plaintiff or applicant, as the case may be, or his or her
legal representative must, within seven days after a summons
or
notice instituting proceedings and in which the executive authority
or a department is cited as nominal defendant or respondent
has been
issued, serve a copy of that summons or notice on the State
Attorney.”
[2] The office of the State Attorney is an established
legal practice in terms of the State Attorney Act 56 of 1957 whose
function
is, in terms of s 3 (1) thereof, the performance in any
court of work on behalf of the Government of the Republic.
[3] What appears clearly from the
State Liability Act
and
State Attorney Act is that the State Attorney is by operation of
law the attorney to represent the Minister of a government department
in court. The Minister has no statutory authority to appoint an
attorney in the private practice to act for him/her. The provisions
of s 8(1) of the State Attorney Act does not alter this legal
position. Section 8(1) reads:
“The State Attorney or the person in charge of a branch or the
State Attorney’s office shall be entitled in the exercise
of
his functions aforesaid to instruct and employ as correspondent any
attorney or other qualified person to act in any legal proceedings
or
matters in any place in the same way and,
mutatis mutandis,
subject to the same rules, terms and conditions as govern attorneys
in private practice, and shall be entitled to receive and recover
from such correspondent the same allowances as he would be entitled
to do if he were an attorney in private practice.”
[4] On 03 December 2012 the private firm of attorneys, S
C Vutula & Company (Vutula) delivered a second notice of
intention
to defend on behalf of the defendant. This notice triggered
the bringing of an application under Rule 30(1) at the instance of
the plaintiff wherein he seeks a substantive relief in the following
terms:
“(a) Declaring the Defendant’s delivery of Notices of
Intention to Defend dated 29
th
November 2012 and 3
rd
December 2012; from different firms of Attorneys with respect to the
same matter, an irregular step.
(b) Directing the Defendant to remove or withdraw one of the Notices
of Intention to Defend from either firm of Attorneys…”
[5] The precursor to the Rule 30(1) application were two
Rule 30A notices served upon both the State Attorney and Vutula on 10
January
2012 in which the complaint of the plaintiff is stated to be
that the filing of two notices to defend is an irregular step that
must be removed by the defendant by withdrawing the first notice to
defend that was filed on 29 November 2012 within ten days,
failing
which an application would be brought in court against the defendant
for the setting aside of the second notice of intention
to defend.
[6] It would be proper to interpose at this stage to
deal with the second application filed in terms of Rule 30(1) at the
instance
of the defendant. On 08 April 2013, whilst the plaintiff’s
Rule 30(1) application was set down for hearing before the opposed
motion court on 29 August 2013, the plaintiff filed a notice to plead
in terms of Rule 26 calling upon the defendant to deliver
its plea to
the plaintiff’s claim within 5 days, failing which it would be
barred from filing any pleading. The notice was
served upon Vutula.
The defendant took the view that the plaintiff was disentitled from
calling for a plea as the first Rule 30(1)
application had suspended
filing of further pleadings until that application was resolved by
the court. This attitude led to the
launching of the second Rule
30(1) application against the plaintiff. As a result both
applications landed in this court on 29
August 2013 for
determination. I ordered that both applications be argued
simultaneously by consent between of the parties.
[7] It may also be mentioned that after the plaintiff
had delivered a Rule 30(1) application to the office of the State
Attorney
on 19 February 2013 at 08h23 a notice to withdraw as an
attorney of record was delivered by the State Attorney at 15h37. That
notice
reads:
“Be Pleased To Take Notice That defendant’s attorneys
herein hereby give their notice of withdrawal as attorney of
record.
Further Notice That defendant’s attorney last known address is
Vuthula and Associates, Nobahle House, Madeira Street, Mthatha."
[8] In argument, it was submitted by
Mr Mtshabe
,
counsel who appeared on behalf of the plaintiff, that the first Rule
30(1) application turns only on the determination of costs
because
the withdrawal by the State Attorney has the effect of validating
only the notice of intention to defend that was filed
by Vutula on 03
December 2012. It was submitted, by extension, that since the
withdrawal of the State Attorney rendered academic
the determination
of validity of the notice to defend filed by the State Attorney on 29
November 2012, the notice of bar served
upon Vutula ought to be
treated as a regular step. On these submissions the Court was urged
to, firstly, order that the plaintiff
was entitled to the costs of
the first application and, secondly, to dismiss the second
application with costs.
Mr Mtshabe
had the second bite of the
cherry with regard to the second application. He submitted that in
any event the second application
falls to be dismissed by reason that
the defendant suffered no prejudice due to the filing of the notice
to plead. In this regard
the Court was asked to apply the judgment of
Eksteen J in
Minister of Safety And Security and 2 Others v Bebeto
Mxhego
Case No. 1181/2012 (ECM) dated 14/05/2013 (unreported). I
will deal with that case later on.
[9]
Mr Vutula,
who appeared on behalf of the
defendant, submitted that plaintiff’s attack is directed to the
notices to defend, not the legal
representation of the defendant by
the State Attorney and Vutula. He contended that the notices to
defend were not irregular and
the filing thereof was meant to show
that the two attorneys had been qualified by the defendant to
represent it in defence of the
plaintiff’s claim. He referred
to the commentary on Rule 30 by Erasmus:
Superior Court Practice,
at B1-90 contending that the filing of a second notice of
intention to defend did not offend against the principle as
adumbrated
in the case of
Nationale Aartappel Koöperasie Bpk
v Price Waterhouse Coopers Ing En Andere
2001 (2) SA 790(T)
that
in Rule 30 applications filing of a document would be irregular if it
advances the proceedings one step nearer completion.
Further,
authorities referred to were the cases of
SA Metropolitan
Lewensversekeringsmaatskappy Bpk v Louw N.O.
1981 (4) 329 (O),
De
Klerk v De Klerk
1986 (4) SA 424
(W);
Gcezengana
v
Eagle Insurance Co Ltd
1995 (2) SA 69
(Tk) in support of the
submission that the Rule 30 application should succeed only when
there is prejudice suffered which relates
to proceedings with
litigation. The case of
Mxhego, supra,
which
Mr Mtshabe
referred to re-states these principles.
[10] With regard to the second Rule 30(1) application
Mr
Vutula
submitted that since an order setting aside the notice of
intention to defend filed by Vutula Attorneys would terminate the
mandate
between those attorneys and the defendant, in consequence of
which any step taken by Vutula in the proceedings would amount to a
nullity
ab initio
, the notice of bar was an irregular step.
[11] The provisions of State liability Act and State
Attorney Act, to which I have already referred, present a peculiar
scheme of
legal representation when it comes to the organs of state
of which the defendant is one. It came as no surprise to me that the
issue of legal representation of the defendant by two sets of
attorneys was not pursued during arguments. If it is so that it was
within the legal rights of the State Attorney to appoint Vutula as a
correspondent there ought to have been no reason for the plaintiff
to
be confused or prejudiced by the filing of two notices of intention
to defend.
[12] The argument advanced on behalf of the plaintiff is
that the notices constitute an irregular step because they offend
against
the provisions of Rule 19(1) which allows the defendant in a
civil action to, either personally or through an attorney, deliver
one notice of intention to defend. The provisions of the sub-rule
read:
“Subject to the provisions of section 27 of the act, the
defendant in every civil action shall be allowed 10 days after
service of summons on him within which to deliver a
notice
of
intention to defend, either personally or through
his attorney
:
Provided that the days between 16 December and 15 January, both
inclusive, shall not be counted in the time allowed within which
to
deliver a notice of intention to defend.” (Underlining is mine
for emphasis).
[13] I do not agree with that interpretation because
although the words “notice” and “attorney”
are couched
in singular the language employed in the sub-rule is
merely directory and permissive. It is neither peremptory nor
preventive of
the State Attorney and the correspondent, Vutula, from
delivering notices to defend. The notices themselves are not
irregular because
the contents thereof meet all the requirements of
Rule 19. It seems to me that the plaintiff’s objection would,
at best,
be that the notices are a prolix, rather than objectionable
on their substantive nature or for non-compliance with the days
within
which they were delivered. If they are a prolix as suggested
by
Mr Vutula,
the proper remedy available to the plaintiff
would be to claim the costs thereof at the stage of taxation of the
bills of costs.
[14] I do not regard the delivery of a notice of
intention to defend as a step advancing the proceedings nearer
completion. The
courts have long ago expressed this attitude. In
Petterson v Burnside
1940 NPD 403
at 406 Broome J said:
“In my opinion a step in the proceedings is some act which
advances the proceedings one stage nearer completion. Thus the
entry
of appearance would not be a step in that sense, but would merely be
an act done with the object of qualifying the defendant
to put
forward his defence. Similarly an objection taken with the object of
ensuring that the security required by law will be
available to the
objector is merely any act which places the objector in a position to
resist the petition.”
[15] The purpose of the Rule 30(1) application was
stated by Flemming J in the case of
S.A. Metropolitan, supra,
at
333G-H as follows:
“I have no doubt that Rule 30(1) was intended as a procedure
whereby a hinderance to the future conduct of the litigation,
whether
it is created by non-observance of what the Rules of Court intended
or otherwise, is removed.”
This
dictum
has been followed in a long line of
decided cases, including the case of
Mxhego, supra.
[16] In this case the notice of intention to defend
delivered by the State Attorney or Vutula, or by both such attorneys,
would
never be a hinderance in the taking of further steps to bring
the proceedings nearer to completion. The plaintiff could have
delivered
further pleadings undeterred by any of the two notices of
intention to defend, thus making the Rule 30(1) application
unnecessary.
Discussions could have been entered into in a meeting or
through correspondence to dispel any confusion that the notices might
have caused to the plaintiff. That was not done. The plaintiff
suffered no prejudice in my view. The objection taken by it towards
the notices to defend was of a highly technical nature, a reason that
is not good enough in piloting a Rule 30(1) application.
As observed
by the Court in
Trans-African Insurance Co Ltd v Maluleka
1956
(2) SA 273
(A) at 278F:
“… technical objections to less than perfect procedural
steps should not be permitted, in the absence of prejudice,
to
interfere with the expeditious and, if possible, inexpensive decision
of cases on their real merit.”
[17] Even if the Court were to find that the delivery of
the notice to defend by Vutula was an irregular step it would still
be
vested with discretion in terms of Rule 30(3) to set the notice
aside or not to do so (
Northern Assurance Co. Ltd v Sonidaka
1960
SA 588
(A);
Uitenhage Municipality v Uys
1974 (3) SA 800
(E)
at 803(A-C). And it was held in
Consani Engineering (Pty) Ltd v
Anton Steinecker Maschinenfabrik GmbH
1991 (1) SA 823
(T) at
824G-I; and
S.A. Metropolitan, supra,
at 334A-C that prejudice
is a prerequisite to succeed to an application in terms of Rule 30.
[18] In this case the nature of prejudice allegedly
suffered by the plaintiff is not set out in the founding affidavit.
In any event
the steps taken by the plaintiff after the receipt of
the second notice to defend, and beyond, do not disclose any
prejudice. The
lodgment of Rule 30 application was not necessary. As
observed in the case of
De Klerk, supra,
when non-litigious
remedial options could have been taken by the objector to obviate the
lodging of a Rule 30 application, and
were not taken, the application
will be refused.
[19] The case of
Mxhego, supra,
re-states the
principle of law that when in a Rule 30 application prejudice is
absent, a decision to set the irregular proceeding
aside will not be
given; the irregularity may be overlooked. There the objector (the
Minister) to a replying affidavit delivered
by Mxhego out of time
brought a Rule 30 application asking the court to set the replying
affidavit aside on the basis that it was
an irregular step. It was
found that the Minister had suffered no prejudice due to the late
filing of the replying affidavit. It
was held that the objection that
the late filing of the replying affidavit was an irregular step was
correct, but the step did
not warrant that it be set aside as the
Minister had suffered no prejudice. The costs of the application were
awarded against the
Minister.
[20] The case of
Mxhego
does not assist the
plaintiff in this case regardless of the fact that the State Attorney
later on withdrew its notice to defend.
The withdrawal did not remove
a hinderance as envisaged in the case of
S.A. Metropolitan, supra
.
The same cannot be said about the second application. I do not see
how the defendant could have been expected to deliver a plea
in the
circumstances where it had been prevented by the plaintiff’s
Rule 30 application from doing so. In my view as long
as the first
application was not resolved the defendant would not be entitled to
arrogate to itself a right to deliver a plea.
By the same token the
plaintiff could not demand filing of a plea without the directive(s)
of the court issued at the hearing of
the first application. To the
extent that the issuance of the notice of bar was not authorized by
the Court, it shall be of no
force and effect.
[21] Paragraph (a) of the notice of motion in the first
Rule 30 application cannot be granted for the reasons that have
already
been given. It is indeed correct that paragraph (b) of the
same notice of motion has been rendered academic due to the
withdrawal
of the first notice of intention to defend. The defendant
has achieved success in the first and second Rule 30 applications.
[22] In the result the following order shall issue:
The plaintiff’s Rule 30 application be and is hereby
dismissed.
Paragraph (a) of the defendant’s Rule 30 application be and
is hereby granted.
The plaintiff to pay the costs of both Rule 30 applications,
except the costs incurred on 02 September 2013 in respect of the
defendant’s appearance in court for the second Rule 30
application.
__________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the plaintiff : Adv N. Z. Mtshabe
c/o N.Z. Mtshabe Inc
MTHATHA.
Attorney for the defendant : Mr S.C. Vutula
c/o S.C. Vutula & Co
MTHATHA.