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2024
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[2024] ZAFSHC 214
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Copiso v Minister Correctional Services and Others (5364/2023) [2024] ZAFSHC 214 (18 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:5364/2023
In
the matter between
VUSIMUSI
MOSES COPISO
PLAINTIFF
and
THE
MINISTER, CORRECTIONAL SERVICES
1
St
DEFENDANT
THE
NATIONAL COMMISSIONER,
CORRECTIONAL
SERVICES
2
nd
DEFENDANT
THE
REGIONAL COMMISSIONER
CORRECTIONAL
SERVICES
FREE
STATE & NORTHERN CAPE
3
rd
DEFENDANT
Bench:
MOLITSOANE, J
Heard:
13 MAY 2024
Delivered:
18 JULY 2024
ORDER
1.The application is
dismissed.
2. There is no order as
to costs.
JUDGMENT
Molitsoane
J
[1]
In this interlocutory application the
defendants essentially seek that this court grant relief to the
effect that the step taken
by the Plaintiff is irregular within the
ambit of rule 30, read with rule 18(12) as it lacked the necessary
particulars as required
by rule 18(14) and/or rule 18(10).
[2]
The issues for determination are numerous,
namely, that the defendant’s application was not supported by
affidavit; that it
was out of time; and that the defendants have not
made out a case for an irregular step as the particulars of claim
have been amended.
It is unnecessary to deal with all issues raised
as it will be apparent later in this judgment.
[3]
The
plaintiff issued summons against the Defendants based on a claim for
alleged unlawful, wrongful assault, torture and detention
against the
defendants. He claims damages in the amount of R5 000 000.00. The
defendants entered appearance to defend after which
the defendants on
25 January 2024 caused a Notice in terms Rule 30(2)
(b)
[1]
to be served on the plaintiff. This is the first rule 30 notice filed
by the defendants. The plaintiff in the said notice averred
that the
plaintiff’s particulars of claim was an irregular step within
the ambit of rule 30(1) as read with rule 18(12) because
it lacks the
necessary particulars as required by rule 18(4) and/or rule18(10).
[4]
Simply put, the defendants contend as
follows: a) On a claim for personal injury, the plaintiff failed to
provide the nature and
duration of the disability alleged; b) On a
claim for pain and suffering, the defendant did not plead whether the
pain and suffering
was temporary or permanent; c) On the claim for
loss of amenities of life the plaintiff did not give the full
particulars of such
and also failed to indicate whether the
disability was temporary or permanent; and d) On the claim for loss
of future medical costs,
the plaintiff did not plead how the loss of
future medical expenses is made up.
[5]
On 13 February 2024, the plaintiff then
served a notice of Intention to amend the
particulars
of claim. The said notice was intended to address the issue raised
above. The said notice did not afford the defendants
the opportunity
to object to the amendment as envisaged in rule 28(2). On 26 February
2024, the defendants served and filed with
the Registrar the second
notice in terms of rule 30 styled ‘Irregular step’.
[2]
This notice is dated 23 February 2024.
[6]
The
record indicates that there is a document termed ‘Amendment of
Particulars of Claim’ dated 28 February 2024 from
the
plaintiff’s attorneys
[3]
in the court file (the first
‘
amendment’).
How this document found its way into the court file is unclear. This
document does not appear to have been signed
or filed as it bears no
proof of service or even the stamp of the Registrar. It is also not
signed by the plaintiff’s attorneys
as required by the rules.
The second rule 30 notice was later withdrawn by the defendants on 4
March 2024. The next day, 5 March
2024, the plaintiff purported to
affect the amendment by filing what he termed ‘Amendment of the
Particulars of Claim’
[4]
(the second ‘amendment’).
[7]
On
3 April 2024 the defendants served a third document in terms of Rule
30 styled ‘
Irregular
Step’
on the plaintiff
[5]
. While it
appears to have been served on 3 April 2024 on the defendants’
attorneys, the stamp of the Registrar indicates
that it was filed at
court on 11 March 2024. From this, one can only speculate that it was
filed at court before it was served.
This third rule 30 notice, while
filed at court on 3 April 2024, is dated 29 February 2024. The
defendants then enrolled the matter
for hearing.
[8]
About
70 years ago, in
Trans-African
Insurance Company v Maluleke
[6]
the court sounded the following concern with reference to slack when
in comes to court rules:
‘
No
doubt parties and their legal advisors should not be encouraged to
become slack in the observance of the Rules, which are an
important
element in the machinery for the administration of justice. On the
other hand technical objections to less than perfect
procedural steps
shall not be permitted, in the absence of prejudice, to interfere
with the expeditious and, if possible inexpensive
decision of cases
or their merits.’
[9]
The legal representatives of the parties on
both sides have displayed a nonchalant attitude in the way that they
handled this matter.
This can clearly be seen in filing of
unnecessary documents and the time when they were served and/or
filed. This is prejudicial
to the interests of their clients. An
interlocutory application that should have been dealt with a long
time ago has been on the
roll with no end in sight. The notice
of intention to defend in this matter was served on 6 November 2023.
Nothing happened
thereafter until 25 January 2024 when the defendants
served the first notice of an irregular step. The fact that the
defendants
entered appearance to defend on 6 November 2023 clearly
indicates that they had received the summons by then and were aware
of
its contents. The complaints raised in their rule 30 notice were
clearly discernible by then. Rule 30 afford a party to a cause
of
action in which an irregular step has been taken by any other party
to apply to court to have it set aside. Uniform rule 30(2)
(b)
however provides,
inter alia
,
that such application may only be made if ‘the applicant has,
within 10 days of becoming aware of the step, by written notice
afforded his opponent the opportunity of removing the cause of
complaint within 10 days.’ This first Rule 30 notice was served
outside of the 10 days prescribed by the rules.
[10]
This first notice of an irregular step was
not accompanied by any application for condonation. Any application
based on it would
not be properly before court. On 13 February 2024
the plaintiff served a Notice of Intention to Amend his particulars
of claim.
It is clear from the said notice and the purported
amendment filed later that it was intended to cure the complaint
referred to
in the first Notice of an Irregular step. The Notice of
Intention to Amend was defective. It made no provision for the
defendants
to object to the amendment as envisaged in rule 28(2).
Apparently, the defendants then decided to serve the second Notice of
Irregular
step which they withdrew. Because the said notice was
withdrawn, nothing turns on it. The plaintiff then purported to
effect an
amendment. by filing amended particulars of claim on
28 February 2024.
[11]
As indicated above, another Notice of Irregular Step was served on 3
April 2024. At the end of the day, one
wonders which ‘Notice of
Irregular Step’ was set down for hearing, Is it the one served
on 25 January 2024 or the one
of 3 April 2024. Both have not been
withdrawn. Both raise the same issues and are replicas of each other.
In my view, this application
stands to be dismissed on this point
alone.
[12]
The granting of costs lies in the discretion of the court. From the
above it is clear that all parties were
to blame in the way the
litigation unfolded in this case, especially with regard to the
belated complaint of the defendants. In
his quest to cure the source
of the complaint, the plaintiff also brought his share of the blame
in the way he attempted to effect
the amendment of the pleadings. He
flouted Rule 28. I hold the view that none of the parties are
entitled to costs.
Order
[13]
In the result:
1
The application is dismissed.
2
There is no order as to costs.
P.E.
MOLITSOANE, J
For
the Applicant:
Adv.
SE MOTLOUNG
Instructed
by:
The
State Attorney
BLOEMFONTEIN
For
the Respondent:
Adv.
P Dube
Instructed
by:
Mokhomo
Attorneys
BLOEMFONTEIN
[1]
See
pages 24-28 of the indexed and paginated record.
[2]
See
pages 33-36 of the indexed and paginated record.
[3]
See
page 40-47 of the indexed and paginated record.
[4]
See
pages 54- 57 of the indexed and paginated record.
[5]
See
pages 48-51 of the indexed and paginated record.
[6]
Trans-African
Insurance Company v Maluleke
1956 (2) SA 237
(A).