About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 30
|
|
Minister of Police v Kati (CA 15/2024) [2024] ZAECMHC 30 (15 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No: CA 15/2024
NOT REPORTABLE
In
the matter between:
MINISTER
OF
POLICE
Appellant
And
MONGEZI
KATI
Respondent
JUDGMENT
TOKOTA
ADJP
[1]
Drafting of pleadings is a matter of style. However, whatever style
one adopts, the
pleadings must be clear and concise with a measure of
brevity to enable the opposite side and the court to understand what
case,
if any, calls for an answer. Allegations of a repetitive
and contradictory nature can be swept aside in a whirlwind of anarchy
and often obfuscate rather than clarify issues and may result in
erratic judgments. Brevity lubricates the wheels of justice.
It
is trite that affidavits in motion proceedings constitute both
pleadings and evidence.
[1]
As will become clearer in this judgment the pleadings in this matter
fell short of defining the issues for determination in a clear
and
concise manner.
[2]
Although we do not have the benefit of the pleadings in this matter
and moreover the
founding affidavit does not set out in clear and
concise manner what the dispute was between the parties, it can be
gleaned from
the magistrate’s judgment that the respondent was
claiming damages from the appellant arising from his unlawful arrest
and
detention. I assume that at the close of the pleadings, the
appellant was called upon to make the Occurrence Book (the OB),
referred
to as SAPS10, available for inspection by the respondent.
The appellant failed to discover the same.
[3]
According to the magistrate’s judgment on 21 November 2022
appellant was served
with a notice calling upon him to make available
for inspection the OB. He failed to do so. On 20 April 2023 an order
compelling
the appellant to comply was sought and obtained.
[4]
Despite the court order obtained on 20 April 2023 the appellant
failed to comply therewith.
The respondent then on 24 May 2023 served
the appellant with a notice of an application to strike out the
appellant’s defence
which was to be made on19 June 2023.
The appellant failed to appear in court on the date in question. The
application was
then granted in the absence of the appellant.
[5]
On 29 August 2023 the appellant launched an application for the
rescission of the
order of 19 June 2023. The application was
dismissed with costs. This appeal is against that order.
[6]
According to the notice of motion the application that was before the
magistrate was
couched in the following terms:
“
1.
That the late filing of SAPS 10(OB) is hereby condoned.
2.
That the Court order striking off the Defendant’s Defense is
hereby rescended [sic].
3.That
the defense is hereby re-instated.
4.
The Defendant is hereby granted Leave to defend the main action.
5.
The costs be in the cause.
6.
That the Court grants such further and/or alternative relief.”
[7]
As can be seen from the notice of motion the application was for the
condonation of
the late filing of the OB. There was no application
for condonation for the late filing of the rescission application of
the order
dated 19 June 2023. The founding affidavit in support of
the application is bereft of any explanation as to why the appellant
did
not attend court on 19 June 2023. The only explanation proffered
is that the appellant was not in possession of the OB as the same
was
with IPID.
[8]
In the answering affidavit the respondent took the point that the
appellant filed his application
for rescission out of time and there
was no application for condonation for the late filing thereof.
Moreover, no facts were advanced
in the papers upon which the court
could exercise its discretion to reinstate the appellant’s
defence. The appellant made
no attempt whatsoever to deal with the
prospects of success or whether there was any bona fide defence to
the respondent’s
claim.
[9]
In the replying affidavit the appellant belatedly asserted that the
application was
an application for the rescission of the order of 19
June 2023 in terms of Rule 49(8) of the Magistrates’ Court
rules. Consequently,
so he asserted, there was “no need for an
application for condonation if the application is made within a
period of one year
after having knowledge of the order”.
[10]
In the same replying affidavit the appellant raised the point that
the respondent “has
deliberately failed to comply with Rule
60(2) and (3) of the Uniform Court rules.” In the heads of
argument, the attorney
for the appellant contended that: “[s]ince
the appellant failed to avail the SAPS10 timeously, the respondent
applied for
an order for the striking out of the appellant’s
defence and such order was granted by the Honourable Magistrate Meyer
on
the 19
th
of June 2023.”
[11]
At the hearing of the appeal we tried in vain to find out from Mr
Mankanku, who was representing
the appellant, as to what was it that
the respondent did not comply with in terms of rule 60(2) and (3).
The founding affidavit
did not deal with the substance of
noncompliance with rule 60(2) and (3). The magistrate in his judgment
seems to accept that there
was compliance with rule 60 and such a
finding is not attacked by the appellant.
[12]
Rule 60(2) provides that where a party has failed to comply with an
order of the court, any other
party may notify the defaulting party
that he/she intends to apply to court, after the lapse of 10 days of
such notice, for an
order, inter alia, striking out his/her defence.
Rule 60(3) provides that a court can make an order it deems fit
in the circumstances
of the case.
[13]
In any event, the contention that the application for rescission was
brought in terms of rule
49(8) was not covered in the founding
affidavit. Therefore, such contention constituted a new matter in the
replying affidavit.
It should not have been allowed because the
respondent was prejudiced thereby in that he did not have an
opportunity to respond
to it. It has been consistently held that a
new matter cannot be raised in the replying affidavit. See, in this
regard,
Shephard v Tuckers
Land and
Development Corporation
(Pty) Ltd (1)
[2]
.where
it was stated:
'It
is founded on the trite principle of our law of civil procedure that
all the essential averments must appear in the founding
affidavits or
the Courts will not allow an applicant to make or supplement his case
in his replying affidavits and will order any
matter appearing
therein which should have been in the founding affidavits to be
struck out.'
The
Learned Judge continued and said:
'This is not however an absolute rule.
It is not the law of Medes and Persians. The Court has a discretion
to allow new matter to
remain in a replying affidavit, giving the
respondent the opportunity to deal with it in a second set of
answering affidavits.
This indulgence, however, will only be allowed
in special or exceptional circumstances.'
[3]
The respondent in casu was not afforded an opportunity to deal with
the new matter.
[14]
In
Minister of
Environmental Affairs and
Tourism and Others v
Phambili Fisheries (Pty)
Ltd; Minister of Environmental Affairs and Tourism and Others v Bato
Star Fishing (Pty) Ltd
[4]
Schutz
JA remarked:
'There
is one other matter that I am compelled to mention - replying
affidavits. In the great majority of cases the replying affidavit
should be by far the shortest. But in practice it is very often by
far the longest - and the most valueless. It was so in these
reviews.
The respondents, who were the applicants below, filed replying
affidavits of inordinate length. Being forced to wade through
their
almost endless repetition when the pleading of the case is all but
over brings about irritation, not persuasion. It is time
that the
courts declare war on unnecessarily prolix replying affidavits and
upon those who inflate them.'
[15]
In
Van
Zyl and Others v Government of the Republic of South Africa
and Others
[5]
Harms ADP (as he then J was), said:
'A
reply in this form is an abuse of the court process and instead of
wasting judicial time in analyzing it sentence by sentence
and
paragraph by paragraph such affidavits should not only give rise to
adverse costs orders but should be struck out as a whole
. . . mero
motu.'
[16]
Needless to mention that a striking-out of a
defence is a drastic remedy
[6]
and, accordingly, the court must be apprised of sufficient facts on
the basis of which it could exercise its discretion in favour
of such
an order.
It
has been found that the relevant factors, when orders of this kind
are considered, will be (a) the reasons for non-compliance
with the
rules, request, notice, order or direction concerned and, in this
regard, whether the defaulting party has recklessly
disregarded his
obligations; (b) whether the defaulting party's case appears to be
hopeless; and (c) whether the defaulting party
does not seriously
intend to proceed. In addition, prejudice to either party is a
relevant factor.
[7]
[17]
The appellant did not make out a case for the rescission. He never
explained why he did not attend
court on 29 June 2023. He never
explained what his defence was. He never explained the basis upon
which it was alleged there were
prospects of success in the main
case. The contention that the application was based on rule 49(8)
must be rejected for the following
reasons: this is an afterthought
as it is not contained in the founding affidavit; besides, the basis
for reliance on rule 49(8)
is not stated anywhere. Consequently, in
my view, there is an insurmountable hurdle in the 'new' version being
accepted.
It
is trite that the
applicant
must stand or fall by the averments made out in its founding
affidavit.
[8]
[18]
In my view the magistrate was correct in dismissing the application.
Consequently, this court
is not entitled to interfere with that
order. The appeal must fail.
[19]
Accordingly, the following order will issue:
The
appeal is dismissed with costs.
B
R TOKOTA
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
EASTERN
CAPE DIVISION.
I
Agree
M
HINANA
ACTING
JUDGE OF THE HIDH COURT
Appearances:
For
the appellant:
Mr N Mankanku
Instructed
by
N Mankanku Attorneys
For
the respondent:
Mr
M Siwahla
Instructed
by
State Attorney
Date
Heard:
3 May 2024.
Date
delivered:
15 May 2024.
[1]
Minister
of Land Affairs & Agriculture v D & F Wevell Trust
2008
(2) SA 184
(SCA) ([2007] ZASCA 153) para.43;
Seale
v Van Rooyen NO; Prov Govt, NW Prov v Van
Rooyen
NO
2008
(4) SA 43
(SCA) ([2008]
3 All SA 245)
para.10
[2]
1978
(1) SA 173
(W) at 177;
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk
1984
(2) SA 261
(W) at 269A-H;
Swissborough
Diamond Mines (Pty) Ltd v Govt of the RSA
1999
(2) SA 279
(T) at 338.
[3]
Ibid note 2 at 177I-178A
[4]
2003(6) SA 407 (SCA) Para 80.
[5]
2008(3) SA 294 (SCA) Para 46
[6]
Wilson
v Die Afrikaanse Pers Publikasies (Edms) Bpk
1971
(3) SA 455
(T) at 462H;
MEC,
Dept of Public Works v Ikamva Architects
2022
(6) SA 275
(ECB) ([2022]
3 All SA 760)
Para.18
[7]
Smith
NO v Brummer NO; Smith NO v Brummer
1954
(3) SA 352
(O) at 357;
Gefen
and Another v De
Wet
NO and Another
2022
(3) SA 465
(GJ) para.27
[8]
Betlane
v Shelly Court
CC
2011
(1) SA 388
(CC)
(2011 (3) BCLR 264
;
[2010] ZACC 23)
para 29;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA) paras 29 – 30.