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[2009] ZAGPPHC 148
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Magagula v Minister of Safety and Security (33714/08) [2009] ZAGPPHC 148 (17 November 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
DATE: 17 November 2009
CASE NO: 33714/08
UNREPORTABLE
In
the matter between:
O
MAGAGULA PLAINTIFF
AND
MINISTER
OF SAFETY AND SECURITY DEFENDANT
J
U D G M E N T
PHATUDI
(J)
[1] The plaintiff
instituted these legal proceedings against the Defendant claiming
delictual damages he sustained as a result of
his unlawful and
wrongful arrest occasioned by members of the South African Police
Services.
[2] At the commencement
of the hearing, Mr Geach, counsel for the Plaintiff, placed on record
that this matter was before Ismail
AJ on the 29 April 2009. He
submitted that the court ordered separation of merits and quantum as
envisaged in terms of Rule 33
(4) of the Uniform Rules of this court.
[3] Mr Geach further
placed on record that determination of liability and special plea is
what is before this court. He further
placed on record that the
Plaintiff was ordered to bring a condonation application for the late
filling of notice as required in
terms of Section 3 of
INSTITUTION
OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGAN OF STATE ACT 40 OF 2002
(the Act). The matter was then postponed
sine
die
with the sole purpose of bringing such application. The Plaintiff
was, a result thereof, mulcted with punitive costs.
[4] Subsequent thereto.
Mr Geach handed in a copy headed;
“
PLAINTIFF
REPLICATION (AS AMENDED)”
dated 7 February 2007. It is noted that the said “Replication”
has neither been signed by the Plaintiff nor the Plaintiff’s
legal representative and has not been served on the Defendant.
[5] Mr Mokotedi, counsel
for the Defendant, objected to the handing in of the said document.
He placed on record that on the 29
April 2009, the special plea was
fully argued before Ismail AJ. He further said that the Plaintiff
then requested for postponement
to afford them (Plaintiff) an
opportunity to bring an application for condonation of the late
filling of
“NOTICE
OF INTENDED LEGAL PROCEEDING TO BE GIVEN TO ORGAN OF STATE”
as provided in terms of Section 3(4) (a) of Act 40 of 2002.
[6] He further submitted
that nowhere in the papers or the record is there a do we find
“
NOTICE
OF INTENTION TO AMEND REPLICATION.”
He said he is surprised to note the handing in of document dated 7
February 2007 purporting to amend the replication.
[7] Mr Mokotedi further
submitted that since the order dated 29 April 2009 up to and until 16
November 2009, there is no application
for condonation that was
served on the defendant. He referred me to and read the provisions
of Section 3(1) (a) and (b) as well
as those of subsection 4 (a) on
record.
[8] Further thereto, Mr
Mokotedi submitted that no application for condonation in terms of
Section 3(4) (a) of Act 40 of 2002 was
instituted despite the court
order of 29 April 2009. He further submitted that the document
handed in is not an application but
a pleading (replication).
[9] He submitted further
that the application must be supported by affidavit explaining, among
others,
“Why
the notice in terms of Section 3(1) (a) and (b) read with subsection
2(a) was not instituted within 6 months”.
He said that there is not
such an application before court.
[10] He lastly submitted
that the Defendant had indicated to the Plaintiff that they will
still raise the special plea which they
intend that it be dealt with
before considering liability when the matter stood down on 11
November 2009.
[11] Mr Mokotedi finally
submitted that the special plea be upheld with costs
de
boniis propriis
in that,
11.1 The Special plea was
argued before Ismail AJ on the 29 April 2009.
11.2 The court postponed
the matter
sine
die
to afford the Plaintiff an opportunity to bring an application for
condonation of the late filing of the notice envisaged in terms
of
Section 3(1) (a) and (b) read with subsection (2) (a) of Act 40 of
2002.
11.3 The Plaintiff
applied for date of trial and proceeded to set the matter down
instead of bringing the application as ordered.
11.4 He referred me to
Khan
v Mzovuyo Investments (Pty) ltd
1991 (3) SA 47
(TKCD
)
where the court awarded costs
de
boniis propriis
due to the Plaintiff’s
“attorneys
slack and unconcerned handling of his client’s case…
namely to enrol the matter while it was not right
for hearing…
and postponed on previous occasion, amounts to such unreasonable
conduct as to warrant the present order as
to costs.”
[12] In rebuttal
thereto, Mr Geach conceded that there is no formal application for
amendment. He, from the bar, drafted and handed
in a hand written
“NOTICE
OF INTENTION TO AMEND”
seeking an order to amend the replication by deleting “the
second sentence of First paragraph (AD paragraph 1) and by adding
the
following at the end of paragraph 2.2, alternatively Plaintiff seeks
condonation in terms of Section 3(4) of Act 40 of 2002.
[13] He referred me to
paragraph 4, 5 and 8 of Particulars of Claim and a letter of
intention to sue as the evidence that the court
should consider as
being relevant for application for condonation.
[14] He further submitted
that the idea of handing in the
PLAINTIFF
REPLICATION (AS AMENDED)
is to bring the amendment to the pleadings. He submitted that the
said “amendment” be accepted, alternatively, the
application as per hand written
NOTICE
OF INTENTION TO AMEND
handed in be accepted.
[15] He conceded that the
Plaintiff sought postponement on the 29 April 2009 with the sole
purpose of applying for condonation of
late filing of the notice
envisaged in terms of Act 40 of 2002.
[16] He, however,
submitted that no where has it been stated that a “Notice of
Motion” application be brought.
[17] Mr Geach further
referred me to the Pre-trial minute dated 11 November 2009 indicating
that there is,(i) “no complaint”
of non formal
application and (ii) that there is no suggestion that special plea be
separated from the determination of liability.
[18] On perusal of the
Court Order dated 29 April 2009, as noted on the Court’s file,
it is ordered:
“
3. Matter is postponed sine
die. Plaintiff to pay wasted costs on attorney and client basis.
Plaintiff to bring
application for condonation for late filing of Notice of intended
proceedings against organ of state.”
[19] I further noted that
the last portion was not recorded by the Registrar when typing the
order. It is however, common cause
that the matter was so postponed
with the sole purpose of granting the Plaintiff an opportunity to
bring an application for condonation
of the late filing of the
NOTICE
OF INTENDED LEGAL PROCEEDINGS TO BE GIVEN TO ORGAN OF STATE.
[20] It is further common
cause that this order was occasioned by the argument advanced by the
Defendant on its Special Plea.
[21] Mr Geach concedes
that there is no such application before court but handed in
PLAINTIFF’S
REPLICATION (AS AMENDED).
[22] The issue to
consider is what the court on 29 April 2009 meant by
“Plaintiff
to bring application for condonation for late filing of Notice”
as envisaged in term of Section 3 (1) (a) and (b) read with
subsection (2) (a) of ACT 40 OF 20023.
[23] I am of the view
that the court (on 29 April 2009) intended the Plaintiff to bring an
application on “Notice” supported
by affidavit as
required in term of Rule 6 (II) of the Uniform Rules of this court
which provides that
“
Notwithstanding the aforegoing
subrules, interlocutory and other applications may be brought on
notice supported by such affidavits…,
as the case may require
and set down as directed by the judge.”
[24] In my view, I find
that my brother Ismail AJ’s order intended the Plaintiff to
state its “reasons” for late
filing of the notice as
required, on affidavit to enable the sitting court to consider
whether to grant such condonation or not.
[25] The “evidence”
set out in paragraph 4,5 and 8 referred to by Mr Geach as sufficient
in granting the condonation,
is not “evidence under oath”
and thus could not be accepted by the court. The court (on 29 April
2009) would have accepted
paragraph 4, 5, and 8 of Particulars of
Claim as sufficient enough to proceed with the determination of
liability if the said “evidence”
was sufficient for the
court to proceed. I am not inclined to accept the amended replication
as same is not signed by Counsel or
Plaintiff’s attorney with
right of appearance in the High Court or the Plaintiff himself. The
rules provide that the pleadings
be signed by the counsel or
Plaintiff himself. This has not been done.
[26] Having considered
the plaintiff’s concession of not having brought the said
application as ordered, I find the Plaintiff’s
conduct to be
slack to set this matter down while the matter is not ripe for
hearing. Mr Mokotedi submitted that the Plaintiff,
instead of filing
the application for condonation, he, on the 6 May 2009 applied for
trial date. He, on the 15 July 2009 proceeded
to set the matter down
with pre trial minute being served on 4 November 2009. This court is
not in a position to determine liability
and adjudicate on the
special plea without the said application for condonation.
[27] In my final
analysis, I find the Plaintiff to have failed to bring the
application for condonation for the late filing of the
NOTICE
OF INTENDED LEGAL PROCEEDINGS AGAINST THE ORGAN OF STATE
as
envisaged in terms of Section 3 (4) (a) of Act 40 of 2002, and as
such, the matter stand to be removed from the roll.
[28] It is trite that
costs follow the event. The Plaintiff’s conduct of setting the
matter down without bringing the application
for condonation as
ordered, warrant a punitive cost order.
[29] I as a result,
thereof, make the following order;
[29.1] The matter is
removed from the roll;
[29.2] Plaintiff is again
ordered to bring an application, supported by affidavit, for
condonation for late filing of notice as
envisaged in terms of
Section 3 (4) (a) of Act 40 of 2002 within 10 days from date hereof;
[29.3] Plaintiff is
ordered to pay the Defendant wasted costs including the costs of 11
November 2009 on Attorney and client scale.
AML
PHATUDI
JUDGE
OF THE NORTH GAUTENG HIGH COURT