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[2012] ZAGPPHC 220
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Masemola v Minister of Police In re: Mapodile v Minister of Police (15290/2011,15291/2011) [2012] ZAGPPHC 220 (14 September 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NUMBER: 15290/2011
DATE:14/09/2012
In
the matter between:
V
J
MASEMOLA
..................................................................................
PLAINTIFF
and
MINISTER
OF
POLICE
.......................................................................
DEFEDENT
In
Re:
CASE
NUMBER: 15291/2011
In
the matter between:
R
M
MAPODILE
..................................................................................
PLAINTIFF
and
MINISTER
OF
POLICE
......................................................................
DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
Two matters, case number 15290/2011 and case number 15291/2011, were
set-down for hearing before me on the 22 August 2012. The
parties had
at a pre-trial conference held on the 29 August 2011 agreed that the
two matters must be consolidated and heard together
for purposes of
the merits. A day before the hearing the parties concurred that
because of certain discrepancies in the pleadings
the cases should
not be proceeded with and must be postponed sine die. The parties
could however, not agree about costs.
[2]
On the said date two applications were placed before me, namely, an
application to consolidate the two cases under case number
15291/2011
and an application to postpone the consolidated case sine die. Both
applications were granted. The issue of costs, in
regard to the
postponement was left for my determination.
[3]
The plaintiff's counsel contended that the defendant occasioned the
postponement and should bear the wasted costs. The defendant's
counsel was initially of the view that costs should be costs in the
cause. However, when the plaintiffs' counsel insisted on the
costs
being borne by the defendant, he then argued for the wasted costs to
be awarded against the plaintiffs because they requested
the
postponement.
[4]
According to the plaintiffs' counsel the matter had to be postponed
because, firstly, the defendant did not effect its amendment
to the
plea in time; secondly, the defendant's discovery was defective and
the documents discovered were inadequate and illegible;
lastly, the
defendant had not replied to the plaintiffs' request for further
particulars.
[5]
I am of the opinion that this is not a case where costs should be
awarded to either of the parties in this matter. Both parties
adopted
a laissez faire attitude in the manner they handled the pleadings and
left it too late for proper service to be effected
in respect of the
pleadings mentioned by the plaintiffs' counsel.
[6]
On the 8 June 2011, more than a year before the hearing of this
matter, the defendant's attorneys were served with a notice
to
discover. They, however, faiied to discover within the time
stipulated in the notice. The plaintiffs' attorneys did not raise
this issue with the defendant's attorneys. Nor did they take
advantage of rule 35 (7) of the Uniform Rules of Court to compel the
defendant to discover.
[7]
The parties held a pre-trial conference on the 29 August 2011. On the
same date the defendant's attorneys were served with another
rule 35
(1) notice. The defendant failed to discover and again the plaintiffs
did not compel it.
[8]
On the 12 July 2012 the defendant served the plaintiffs with a notice
of intention to amend its plea. The plaintiffs did not
object to the
proposed amendment. The defendant failed, however, as required by the
rules, to effect the amendment within the time
stipulated. This
resulted in the plaintiffs not being able to effect consequential
amendments to their pleadings.
[9]
The parties held another pre-trial conference on the 8 August 2012
where the plaintiffs' attorneys raised the defendant's failure
to
effect the amendment and to file its discovery. The parties agreed
that the defendant would discover on or before 16h00 on the
16 August
2012.
[10]
On the same day, that is the 8 August 2012, the plaintiffs served the
defendant with a request for further particulars. It
was further
agreed, at that conference, that the defendant would consider the
request and decide the course to take. The plaintiffs
were to be
advised of the course taken on or before 16h00 on the 20 August 2012,
that is, two days before trial. As at the date
of trial the defendant
had as yet not reverted to the plaintiffs. The plaintiffs' counsel
contended that this request was occasioned
by the defendant's failure
to discover. This argument, in my view, is not sustainable. The
plaintiffs' way out of this impasse,
if indeed there was an impasse,
was, as explained hereunder, to compel the defendant in terms of rule
35 (7) to discover. There
was no need for them to request further
particulars if as their counsel say they were trying to remedy the
defendant's failure
to discover.
[11]
On the 13 August 2012 the defendant effected the amendment to its
plea. In terms of rule 28 (8) the plaintiffs had fifteen
days within
which to effect any consequential amendments to its pleadings,
however, the amendment was effected only five court
days before the
trial date. The plaintiffs' counsel contended that the amendment was
effected out of time and as such the plaintiffs
had to start the
whole process afresh. Whilst on the other hand the defendant's
counsel was of the opinion that it had filed timeously.
My view is
that at this late a stage nothing could really be accomplished. If
the amendment was effected in time, the plaintiffs
would not have had
sufficient time to effect any consequential amendments to their
pleadings. If the amendment was effected out
of time the defendant
would also not have had enough time to apply for condonation for
effecting the amendment out of time or for
extension of time within
which to effect the amendment. In both these scenarios postponement
was unavoidable.
[12]
On the 14 August 2012, four court days before the trial date the
defendant served its discovered documents. There was, however,
no
proper discovery according to the plaintiffs' counsel because,
firstly, the discovery was not on oath as required in terms of
rule
35 (1) and (2) and secondly, the discovered documents were inadequate
and not legible. His contention was that discovery was
very important
and without it the matter would not be proceeded with. Failure by the
defendant to file proper discovery, according
to him underscored the
importance of discovery and the matter ought to be postponed. He
referred me to the judgment in
BURGER v KOTZE & ANOTHER
1970 (4) SA 302
(W).
[13]
The defendant's counsel on the other hand contended that the
defendant had discovered within the time agreed to at the pre-trial
conference and that the issue of the eligibility and the inadequacy
of the documents should have been taken up with the defendant
before
the date of trial.
[14]
My view, however, is that both counsel's argument does not have
merit. Both parties were in default. The defendant failed to
discover
within twenty days after service of (he ru
:
e
35
(1) notice on it. The notice was served twice and each time the
defendant failed to comply.
[15]
The plaintiffs on the other hand also had a duty to have raised the
defendant's failure to discover by compelling it to do
so in terms of
rule 35 (7). They could have used this process anytime since 7 July
2011, twenty days after the first service, or
at the least since 27
September 2011, twenty days after the second service, but they failed
to do so. They had almost a whole year
within which to implement this
process. A party must take reasonable steps in the circumstances of
the case to avoid a postponement,
and should not be self-righteous
and remain silent when he or she knows the other party is in default,
especially when such a default
has continued over a lengthy period,
as in this case. See
WEBSTER v WEBSTER
1992 (3) SA 729
(ECD)
at 734F - H.
[16]
I, respectfully, differ with the reasoning of Colman J in
BURGER v
KOTZE & ANOTHER
supra, that, the plaintiff in such
circumstances is under no obligation to make use of a remedy
available to him or her under rule
35 (7). It has been held that the
rules are not an end in themselves to be observed for their own sake.
They are provided to secure
the inexpensive and expeditious
completion of litigation before the court. See
Federated Trust Ltd
v Botha
1978 (3)SA 645 (A) at654D-F.
[17]
In this instance, the plaintiffs being not satisfied about the
defendant's discovery, the available remedy for them then was
to
compel the defendant for a proper discovery in terms of rule 35 (7)
or to try to cure the illegibility and inadequacy of the
discovered
documents by using the rule 35 (3) process. However, I am mindful of
the fact that the time left then would not have
been enough to can
accommodate any of these two processes. In such circumstances, a
postponement was inevitable.
[18]
To my mind, both parties were at fault. They had been aware of the
date of trial since 6 September 2011, almost a year before
the trial,
and should have circumvented this postponement. My view is that each
party must as a result bear its own costs for this
postponement.
[19]
Consequently I make the following order:
19.1
Each party to pay own costs.
E.M.
KUBUSHI
HEARD ON THE : 22 AUGUST 2012
DATE
OF JUDGMENT : 13 AUGUST 2012
PLAINTIFFS'
ATTORNEYS : L J LESO ATTORNEYS
PLAINTIFFS'
COUNSEL : ADV H VAN TONDER
DEFENDANT'S
ATTORNEYS : STATE ATTORNEY, PRETORIA
DEFENDANT'S COUNSEL : ADV Z Z
MATEBESE