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[2024] ZAECBHC 7
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Harry v Booi and Another (482/2022) [2024] ZAECBHC 7 (8 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No. 482/2022
In
the matter between:-
ANDILE
GATTERY
HARRY
Applicant/Plaintiff
and
DETECTIVE
NOZUKO BOOI
First
Respondent/First Defendant
MINISTER
OF POLICE
Second
Respondent/Second Defendant
JUDGMENT
BANDS
J:
[1]
The
applicant, as plaintiff, sued the first and second respondents, as
defendants, for damages arising out of an alleged defamation,
contending that on or about 6 April 2022 at the Boxer Superstore,
Peddie, Eastern Cape, the applicant was wrongfully and maliciously
defamed by the first respondent, who at all relevant times was acting
within the course and scope of her employment with the second
respondent.
[2]
The
applicant, at paragraph 10 of his particulars of claim, in dealing
with his compliance with section 3(1) of the Legal Proceedings
against Certain Organs of State Act 40 of 2002 (“
the
Act
”), pleads that:
“
The
plaintiff has complied with the statutory provisions relating to
notice to an organ of state prior to the institution of proceedings.
Notwithstanding demand and/or statutory notice delivered to the
minister of police in terms of the Institution of Legal Proceedings
against Certain Organs of State Act read with the State Liability Act
the defendant has refused, ignored, and/or neglected to pay
the
aforesaid sum or any portion of it.
”
[3]
This
was met with a special plea of non-compliance by the respondents, the
gravamen of which appears from paragraphs 3 to 5 thereof,
which read
as follows:
“
3.
The
2
nd
defendant herein is not in receipt of
the notice contemplated by section 3(1) of Act 40 of 2002 and has not
consented to the institution
of legal proceedings without such
notice.
4. Alternatively,
the said notice has not been served on the National Commissioner and
the Provincial Commissioner
as required by Act 40 of 2002.
5.
In
the premises, the plaintiff has failed to comply with section 3(1) of
Act 40 of 2002 and his claim stands to be dismissed with
costs.
”
[4]
In
response, the applicant filed a replication attaching the required
statutory notices addressed to National and Provincial Commissioner
of the South African Police Services, together with proof of their
transmission via registered mail. For reasons discussed
later,
it is necessary to quote the body of the replication:
“
AD
SPECIAL PLEA FOR NON-COMPLIANCE WITH ACT 40 OF 2002
AD
PARAGRAPHS 1-2 OF THE SPECIAL PLEA
1.
The
contents of these paragraphs are admitted.
AD
PARAGRAPHS 3-5 OF THE SPECIAL PLEA
2.
The
contents of these paragraphs are denied.
3.
In
amplification thereof, the plaintiff sent the required statutory
notices to the National and Provincial Commissioner of the South
African Police Services in line with the Act 40 of 2002. The
plaintiff attaches hereto letters to the National and Provincial
Commissioner dated the 14
th
April 2022 as annexures “AGH1” and “AG2”,
respectively.
4.
The
above referred letters were sent to the National and Provincial
Commissioner via registered mail. The Plaintiff attaches
hereto
copies of registered mail postage slip
(sic)
,
to the National and Provincial Commissioner which were sent on the
28
th
April 2022 as annexures “AGH3” and “AGH4”,
respectively.
”
[5]
The
respondents, being satisfied that the applicant had complied with the
statutory provisions, gave notice of their intention to
amend their
plea, which ultimately had the effect of the withdrawal of the
special plea, without a tender for costs.
[6]
Aggrieved,
the applicant gave notice of her intention to apply for an order that
the respondents pay the costs occasioned by the
withdrawal of their
special plea in accordance with rule 41(1)(c) of the Uniform Rules of
Court. The respondents opposed
the application. It is
this dispute, with which I am seized.
[7]
At
this juncture I must mention that the costs forming the subject
matter of the dispute between the parties are limited to those
incurred in the drafting and delivery of the applicant’s
replication, which is hardly extensive in its ambit (as is evident
from the above). This was conceded by the respective counsel
appearing on behalf of the parties. That the matter escalated
into a full-blown opposed application, with the incurrence of the
unnecessary costs attendant upon doing so, which must far outweigh
the costs forming the subject matter of this application, can hardly
be said to be justifiable. Moreover, the resultant loss
of
valuable court time, and resources is regrettable.
[8]
This
is aggravated by the fact that the application was, in my view,
ill-conceived from inception given that the applicant’s
reliance on rule 41, in the circumstances of this case, is
misplaced. This is an aspect which escaped both parties.
Uniform
Rules 41(1)(a) and 41(1)(c) and their applicability
[9]
The
relevant subsections to the Rule provide as follows:
“
41(1)(a)
A
person instituting any proceedings may at any time before the matter
has been set down and thereafter by consent of the parties
or leave
of the court withdraw such proceedings, in any of which events he
shall deliver a notice of withdrawal any may embody
in such notice a
consent to pay costs; and the taxing master shall tax such costs on
the request of the other party;
(b) …
(c)
If
not such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an order
for costs.
”
[10]
Self-evidently,
in order to seek redress under rule 41(1)(c), the subject matter of
the withdrawal must constitute a “
proceeding
”
within the context of rule 41(1)(a). The general principle is
that the party withdrawing is liable to pay the costs
of the
proceedings unless very sound reasons exist as to why the other party
should not be entitled to his/her costs. The
reason for this is
manifest and appears from the headnote of
Germishuys
v Douglas Besproeiingsraad
,
[1]
which correctly reflects what is stated by van Rhyn J at 300D-E:
“
Where
a litigant withdraws an action or in effect withdraws it, very sound
reasons must exist why a defendant or respondent should
not be
entitled to his costs. The plaintiff or applicant who withdraws
his action or application is in the same position
as an unsuccessful
litigant because, after all, his claim or application is futile and
the defendant, or respondent, is entitled
to all costs associated
with the withdrawing plaintiff’s or applicant’s
institution of proceedings
.”
[11]
It
is this hurdle that the applicant in the present matter does not
pass, for the simple reason that a special plea, by its very
nature,
is a special defence raised on the pleadings by a defendant, which
has as its object the delay of proceedings or the quashing
thereof
[2]
- a special plea is neither
instituted
by a defendant, nor does its withdrawal amount to a withdrawal of a
“
proceeding
”
for the purposes of rule 41(1)(a).
[12]
Whilst
the reason for this appears to me to be axiomatic, the fact that
neither party was alive to this aspect in the present proceedings,
both of whom enjoyed legal representation, seems to illustrate that a
certain level of confusion regarding the interpretation and
applicability of the rule prevails. For this reason, I deal, in
brief, with the interpretation of the subrule under consideration.
[13]
The
Supreme Court of Appeal, in
Chetty
v Hart
[3]
reiterated the well-established approach to statutory interpretation
as follows:
“
It
is helpful to reiterate that the method of attributing meaning to the
words used in legislation involves, as a point of departure,
examining the language of the provision at issue, the language and
design of the statute as a whole and its statutory purpose.
So when
the lawmaker uses particular words to achieve its purpose they must
be given effect. In so doing a court will apply ordinary
rules of
grammar and syntax. It is not permissible to ignore or distort the
meaning of the words to achieve its purpose. For
in so doing a
court will be substituting its own words for those of Parliament.
But if the words used are reasonably capable
of bearing more
than one meaning, the consequences of the divergent interpretations
must be examined so that a meaning that is
likely to further rather
than hinder its purpose is adopted. In this regard a meaning
that is more sensible and business
like is to be preferred over one
that has a contrary effect.
”
[14]
Simply
put, and as repeatedly endorsed by the Constitutional Court, a
purposive approach is to be adopted in statutory interpretation
with
the wording of the provision in question being construed harmoniously
with the apparent scope and objects of the law.
[4]
[15]
The
court in
De
Lange v Provincial Commissioner of Correctional Services, EC,
[5]
whilst considering
section 276A(3)
of the
Criminal Procedure Act 50
of 1977
, held that “
proceedings
”,
for the purposes of
rule 41(1)(a)
are those envisaged by the rules
“
in
which there is a lis between the parties, one of whom seeks redress
or the enforcement of rights against the other.
”
As the applicant had no right enforceable against the respondent in
the proceedings under
section 276A(3)
, the court rejected the
applicant’s contention that they constituted proceedings
falling within the ambit of
rule 41.
[16]
The
word “
proceedings
”
is not defined in the rules of court, however the definitions of
“
action
”
and “
application
”,
in
rule 1
, provide a suitable starting point for the enquiry. Whilst
an “
action
”
is defined as a proceeding commenced by summons, an “
application
”
means a proceeding commenced by notice of motion or other forms of
applications provided for by
rule 6.
It follows, somewhat
obviously, that the aforesaid are proceedings for the purposes of
rule 41.
This is congruous not only with the finding of the
court in
De
Lange
,
but also with the definition of “
legal
proceedings
”
as contained in Black’s Law Dictionary,
[6]
being “
[a]ny
proceedings authorised by law and instituted in a court… to
acquire a right or to enforce a remedy
.”
The word “
instituting
”,
which precedes the words “
any
proceedings
”
in
rule 41(1)(a)
, denotes the commencement of such proceedings.
[17]
Where
the confusion appears to arise is the reference to, and
categorisation of, a particular step, or series of steps (which
step/s
neither constitute/s the institution of an action nor an
application), within the broader context of the enforcement
proceedings
as a “
proceeding
”
in itself, for the purposes of
rule 41.
This could never be so.
[18]
The
correct meaning to be attributed to the word “
proceedings
”
is further illustrated with reference to the Afrikaans text of the
rule, which reads as follows:
“
41(1)(a)
Iemand wat 'n geding ingestel het, kan dit voor
terrolleplasing te eniger tyd en daarna met die toestemming van
die
partye of verlof van die hof, terugtrek. In elke geval moet hy 'n
kennisgewing van terugtrekking aflewer, en hy kan daarin
inwillig om
koste te betaal. Die takseermeester takseer die koste op versoek van
die ander party.
[19]
In
drafting
rule 41(1)(a)
, the Rules Board utilised the word “
geding
”
for “
proceedings
”,
which directly translates into English as a “
lawsuit
”.
Accordingly, in amplification of the findings of court in
De
Lange
, and with the risk of being
tautologous, there can be no doubt that what the rule envisages are
the withdrawal of legal proceedings
instituted by way of action or
application (proceedings) in the High Court, in which there is a
lis
between the parties, the purpose of which is to seek redress or the
enforcement of rights against the other. Upon the withdrawal
of
such proceedings, the
lis
between
the parties comes to an end. Notwithstanding this,
rule
41(1)(c)
provides a mechanism whereby a successful litigant, by
reason of the withdrawal, is able to pursue the costs associated with
the
proceedings.
[20]
This
is dissimilar to the position with follows the withdrawal of a
special plea, in which the
lis
between the parties remains extant.
In such circumstances, the court seized with the proceedings is best
placed to deal with
the costs associated with the withdrawal as part
of its enquiry into costs at the conclusion of the proceedings.
To attribute
any other meaning to the word under consideration,
within the context of the rule and with due regard to its purpose,
would be,
at best, non-sensical and arbitrary leading to untenable
results.
Conclusion
[21]
Having
come to the above conclusion, the respondents were not bound by
rule
41(1)
in withdrawing their special plea. Concomitantly, the
remedy provided for under
rule 41(1)(c)
is not available to the
applicant and accordingly the application must fail.
[22]
In
light of the fact that neither party to these proceedings was alive
to the above issue, coupled with what I have stated in paragraphs
[7]
and [8] of this judgment, I am of the view that it would be
appropriate that each party should be ordered to pay their own
costs
of the application.
[23]
Accordingly,
the following order is issued:
1.
The
application is dismissed.
2.
Each
party is ordered to pay their own costs of the application in terms
of Uniform
Rule 41(1)(c).
I
BANDS
JUDGE
OF THE HIGH COURT
Date
heard:
29 February
2024
Date
of judgment: 8
April 2024
For
the applicant:
Mr C Nohaji
Instructed
by:
Cinga Nohaji Inc.
36 Chamberlain Road
Berea
East London
For
the respondents: Adv C.C Young
Instructed
by:
State Attorney
Old Spoornet Building
17 Fleet Street
East London
[1]
1973
(3) SA 299 (NC).
[2]
Brown
v Vlok
1925
AD 56.
[3]
2015 (6) SA 424 (SCA).
[4]
Cool
Ideas 1186 CC v Hubbard and Another
2014
(4) SA 474
(CC);
and
BE
obo JE v MEC for Social Development, Western Cape
2022
(1) SA 1
(CC).
[5]
2002
(3) SA 674.
[6]
Bryan
A Garner
Black’s
Law Dictionary
9
ed.