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Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email, by being uploaded to
the CaseLines system.
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JUDGMENT
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[1] This is an application for striking out brought by the applicant in terms of Rule 30
and Rule 30A of the Uniform Rules of Court . Which application is opposed by the
Respondent.
Brief background
[2] On or about February 2021 the Applicant served its notice of motion wherein it
sought to compel the Respondent to provide certain documentation the very purpose
being to set aside the Respondent’s purported taxed bill of costs. The Respondent
entered its notice of intention to oppose the matter on or about 02 March 2021. The
Respondent failed to file its answering affidavit and the Applicant proceeded to deal
with the matter without the Respondent’s answering affidavit.
[3] Applicant proceeded to file its head of arguments electronically on or about 21 July
2021. On or about October 2021 , the Applicant wrote an email -letter requesting the
Respondent to file its head of arguments herein failing which the Applicant would
proceed without the Respondent’s heads of argument to apply for a court date thereof.
The Respondent failed to file its heads of argument as such the Applicant proceeded
to apply for a hearing date.
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[4] On the day of set down, 07 February 2022 before Honourable Judge Mbongwe ,
the Respondent made appearance through Adv AC Barreiro and sought
postponement. On the day of set down t he Respondent was ordered by this Court to
file its heads of argument within 20 (twenty) days, that being on or before 07 March
2022. On 08 March 2022 Respondent filed its heads of argument electronically to the
Applicant. This was a day out of the court ordered date. According to the Applicant the
Respondent did not comply with the Court Order. On 09 March 2022 the Respondent
served its answering affidavit.
[5] The Applicant refers to Rules 30 and 30A in its application to strike out the
Respondent’s answering affidavit and to dismiss the Respondent’s application for
condonation. Rule 30 of the Uniform Rules of the Court states as follows1:
(1) A party to a cause in which an irregular step has been taken by any other party may apply
to court to set it aside.
(2) An application in terms of subrule (1) shall be on notice to all parties specifying particulars
of the irregularity or impropriety alleged, and may be made only if —
(a) the applicant has not himself taken a further step in the cause with knowledge of
the irregularity;
(b) the applicant has, within ten days of becoming aware of the step, by written notice
afforded his opponent an opportunity of removing the cause of complaint within ten
days;
(c) the application is delivered within fifteen days after the expiry of the second period
mentioned in paragraph (b) of subrule (2).
(3) If at the hearing of such application the court is of opinion that the proceeding or step is
irregular or improper, it may set it aside in whole or in part, either as against all the parties or
1 Uniforms Rules of the Court.
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as against some of them, and grant leave to amend or make any such order as to it seems
meet.
(4) Until a party has complied with any order of court made against him in terms of this rule, he
shall not take any further step in the cause, save to apply for an extension of time within which
to comply with such order.
[6] Rule 30A of the Uniforms Rules of the Court states as follows2:
“(1) Where a party fails to comply with these Rules or with a request made or notice given
pursuant thereto, or an order or direction made by a court or in any judicial case management
process referred to in rule 37A, any other party may notify the defaulting party that he or she
intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an
order-
(a) that such rule, notice or request be complied with; or
(b) that the claim or defence be struck out.
(2) Where a party fails to comply within 10 days, contemplated in subrule (1), application may
on notice be made to the court and the court may make such order thereon as it deems fit.”
[7] The Respondent has brought an application in terms of Rule 27(1) of the Uniform
Rules of Court (the Rules) for condonation for late filling of i ts answering affidavit.
Among the reasons canvassed is that the Applicant’s PAIA application was fatally
defective. The Applicant was made aware through an email of this defect, but the
Applicant ignored the email and proceeded with instituting legal proceedings. It was
for this reason that the Respondent could not respond to a defective application.
[8] The Respondent argues that the condonation application cured any non-
compliance under Rules 30 and 30A and that the condonation application would now
require adjudication prior to the hearing of the application to strike out brought by the
2 Uniforms Rules of the Court.
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Applicant. And that at the time that the tender was made to the Applicant, the first
application in terms of rule 30 and/or 30A had not been set down for hearing. The
Respondent further argues that the delivery of an application for condonation after the
institution of an application in terms of Rule 30 does not render the condonation
application irregular, it merely dictates that the merits of the application to strike out
are rendered moot.
[9] As regards Rule 30 and 30A applications the Respondent argues that the Applicant
has in its application failed to show any prejudice in the conduct of the Respondent.
That prejudice is an essential consideration when determining applications to strike
out. The Respondent addressed with prejudice correspondence to the Applicant on 9
June 2022, tendering the Applicant’s wasted costs of:
1. the Rule 30 and/or 30A notice dated 18 March 2022;
2. the Rule 30 and/or 30A application dated 28 April 2022; and
3. the Rule 30 and/or 30A notice dated 24 May 2022.
[10] The Respondent argues further that despite the Respondent’s tender for wasted
costs as stipulated in para 9 above, the Applicant persisted in having the first and
second applications set down for hearing in the opposed court. That on the facts in the
present matter, it was unnecessary for the Applicant to have brought this application
and persisted with it despite the Respondent having tendered wasted costs for earlier
applications taking note of the fact that the Respondent had instituted a condonation
application. That t he Applicant should have withdrawn the application on ce the
Respondent filed the condonation application.
[11] The Applicant in its objection of the condonation application brought by the
Respondent argues that the condonation application constituted an irregular step in
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so far as the first application to strike out had already been instituted. The Applicant
refers to Rule 30 or Rule 30A in its head of arguments, to object to the Respondent’s
filling of condonation and also for striking out the Respondent’s late filed answering
affidavit.
[12] The Applicant is requesting this Court to declare the filing of the condonation
application by the Respondent an irregular step in terms of Rule 30 and or 30A of the
Uniform Rules of Court and strike it out.
[13] I will start with the request by the Applicant that this Court dismiss the application
for condonation by the Respondent. As regards the condonation application made by
the Respondent, I can neither rule thereon neither can I rule on its effect on the strike
out application as the application is not before me. A condonation application needs to
be properly adjudicated upon. In Uitenhage Transitional Local Council v SA
Revenue Services3 Hefer JA at 297 I-J said the following:
“… Condonation is not to be had merely for the asking; a full, detailed and
accurate account of the cause of the delay and their effects must be furnished
so as to enable the Court to understand clearly the reasons and to assess the
responsibility. It must be obvious that, if the non-compliance is time-related then
the date, duration and extent of any obstacle on which reliance is placed must
be spelled out.”
[14] It is for the same reasons advanced by Hefer JA above that I will focus only on
Rule 30A application, the application to strike out as made by the Applicant. The
3 2004 (1) SA 292 (SCA).
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Applicant was able to demonstrate that there was a delay by the Respondent and the
filling of its answering affidavit.
[15] The argument advanced by the Respondent for not filing an answering affidavit is
that it at all times was of the understanding that the matter was on an unopposed roll.
I find this argument lacking substance and logic. It is not the forum that dictates and
determines the behavior of a party in civil proceedings but rather it is the other way
around, meaning it is the behavior of the party that dictates ultimately determining the
forum. It is an ironic paradox and a contradiction in terms for the Respondent to argue
that it was under the impression that the matter was on an unopposed roll hence it did
not file an answering affidavit while on or about March 2021 the Respondent filed a
notice of intention to oppose.
[16] It is this behavior by the Respondent of filing its notice of intention to oppose that
directed and resulted in the matter being placed on an opposed roll. The Respondent
is expected to know the consequences of its actions and steps it takes in civil
proceedings. It is incongruous for the Respondent to now claim that it did not know
that the matter was on an opposed roll. I find no substantive reasons as to why it took
Respondent more than a year to file its answering affidavit. The Respondent’s
explanation for the delay is inadequate.
[17] As regards the other reason put forward by the Respondent that the application
by the Applicant was fatally defective, hence it could not reply to a defective
application. I also find this not to be persuasive as there are processes under the
Uniform Rules of this Court which the Respondent could have used to address the
defect referred to. Again, I find this to be very superfluous and spurious.
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[18] Again, the Respondent failed to comply with the order of this Court made by
Honourable Judge Mbongwe and there are no reasons provided for non -compliance
thereof. In my view, the Respondent’s non explanation for non-compliance with the
court order further confirms its abominable behavior. Again, it is m y view that the
Respondent’s degree of non -compliance with the rules and orders of court is grave
and is one that this Court will not condone. In Fakie N.O. v CCII Systems (Pty) Ltd4,
the Supreme Court of Appeal, per Cameron JA, held:
“It is a crime unlawfully and intentionally to disobey a court order… a founding
value of the Constitution – ‘requires that the dignity and authority of the courts,
as well as their capacity to carry out their functions, should always be
maintained’.
[19] The Applicant refers to both Rule 30 and Rule 30A in its application. In many
instances the Applicant uses the phrase “and or” when referring to these two Rules. It
appears that the Applicant is not certain which Rule is to be used to strike out the
Respondent answering affidavit and which Rule is applicable to dismiss the application
for condonation as an irregular step. The Applicant should note that Rule 30 deals with
irregular step while Rule 30A deals with non -compliance. However, this does not in
any way jeopardise the Applicant’s case as it kept on referring to both Rules at all
times in its request for the dismissal of the condonation application and again for the
striking out of the Respondent’s answering affidavit.
[20] Legal certainty and effective litigation are protected by the legislator . The Rules
are there to ensure effective litigation, any unwarranted derogation therefrom cannot
4 [2006] ZASCA 52 at para 6.
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be condoned. The mantra “justice delayed is justice denied ” is not applicable only in
criminal cases, it is applicable also in civil matters. The unnecessary delay caused by
the Respondent is unwarranted and the Applicant has certainly been prejudiced by
this lackadaisical conduct of the Respondent.
[21] Strydom J in Gefen and Another v De Wet N.O. and Another at para 27 stated
that:
“a striking out of a defence is a drastic remedy and, accordingly, the court must
be appraised 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…[include amongst others]
the reasons for non -compliance with the rules, request, notice, order or
direction concerned”.
[22] The court in Wilson v Die Afrikaanse Pers Publikasies (EDMS) BPK5 at 462 H-
463 B held as follows:
“The striking out of a defendant’s defence is an extremely drastic step which
has the consequences that the action goes forward to a trial as an undefended
matter. In the case if the orders were granted it would mean that a trial court
would eventually hear this action without reference to the justification which the
Defendant has pleaded and which it might conceivably be in a position to
establish by evidence. I am accordingly of the view that very grave step will be
5 1971 (3) SA 455 (T).