About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 231
|
|
Auditor - General of South Africa v Municipal Manager of Mohokare Municipality and Another (6061/2022) [2024] ZAFSHC 231 (8 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No. 6061/2022
In
the matter between:
THE
AUDITOR - GENERAL OF SOUTH AFRICA
APPLICANT
And
THE
MUNICIPAL MANANGER OF MOHOKARE
MUNICIPALITY
FIRST
RESPONDENT
MOHOKARE
MUNICIPALITY
SECOND
RESPONDENT
CORAM
:
MAJOSI, AJ
HEARD
ON:
16
MAY 2024
DELIVERED
ON
:
08 AUGUST 2024
JUDGMENT
I
INTRODUCTION
[1]
The applicant seeks an order in terms of Rule 30 and Rule 30A wherein
the respondents’ plea in
the main action be set aside or
alternatively, that its notices in terms of these rules be complied
with or that respondents’
defence to their claim be struck out.
The applicants also seek an order condoning the late filing of this
application. The Respondents
are opposed to the application.
II
BACKGROUND
[2]
The applicant(plaintiff) instituted action proceedings against the
respondents on the 5 December
2022 for unpaid auditing fees. An
amendment was made to the particulars of claim after the respondents
alleged that the applicant’s
claim is vague and does not
disclose a cause of action. After no plea was received, a notice of
bar was served on the respondents(defendants).
A plea was filed on
the 7 of June 2023 wherein they raised exceptions to the amended
summons in that it still did not disclose
a cause of action.
[1]
The respondents did not deliver their exception or set the matter
down for a hearing after no response was received from the applicant.
[4]
In response thereto, the applicant filed a notice in terms of Rule 30
and Rule 30A on the 22 June
2023 as they deemed the now respondent’s
plea an irregular step. The respondents were afforded 10 days to
remove the irregularity
and to comply with the Uniform Rules of
Court, failure which, an application would be made within 10 days to
have their plea set
aside.
[2]
They however did not set the matter down for hearing, but, wrote a
letter to the respondents on the 31 of October 2023
[3]
informing them that they will afford the respondents a grace period
until 3 November 2023 to rectify the irregularity before they
(applicant) set the matter down for hearing of the irregular step.
[4]
[5]
The applicants themselves did not, after this “grace period”
set down the application
in terms of Rule 30 and 30A or hearing
either. They opted to file their application in terms of rule 30 and
rule 30A on the 11
of January 2024. The application became opposed
and the matter was set down for hearing of the application preceded
with a condonation
application for the late filing thereof.
[6]
The applicants allege that as the respondents did not file an actual
exception to their amended
particulars of claim and they cannot
replicate to a plea wherein an exception has been raised until such
time the respondents have
complied with rule 22.
[5]
Therefore, their plea must be set aside or struck out and at the
minimum, they must be ordered to comply with the notice file and
an
exception with or without an application to strikeout as it
constitutes an irregular step.
[6]
[7]
The respondents contend that the applicant did not make out a proper
case for condonation as the
application is 118 days late and the
total period of delay is not explained for the court to condone their
non - compliance.
[7]
They
further stated that the applicant’s cause of compliant is
devoid of any merit and there is nothing barring them from
replicating or amending their particulars of claim as would have been
the case in the event of an exception application and the
applicant
suffers no prejudice.
[8]
III
DISCUSSION
[8]
Rule 27 states that in the absence of an agreement between the
parties, the court, may on application
and on good cause shown,
condone any non- compliance with the rules in connection with any
proceedings and make an order which
it deems fit.
The
party seeking must furnish an explanation of his default sufficiently
fully to enable the court to understand how it really
came about, and
to assess his conduct and motives.
[9]
[9]
Rule 30 - Irregular proceedings
(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 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.
[10]
30A Non-compliance with Rules and Court Orders
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant
thereto, or with an order or direction made
by a court or in a 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, request, order or direction be complied with; or
(b)
that
the claim or defence be struck out.
(2)
Where a party fails to comply within the period of 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.
[11]
Rule 23 - Exceptions and applications to strike out states the
following:
(1)
Where any pleading is vague and
embarrassing, or lacks averments which are necessary to sustain an
action or defence, as the case
may be, the opposing party may, within
the period allowed for filing any subsequent pleading, deliver an
exception thereto and
may apply to the registrar to set it down for
hearing within 15 days after the delivery of such exception: Provided
that —
(a)
where a party intends to take an exception
that a pleading is vague and embarrassing such party shall, by
notice, within 10 days
of receipt of the
pleading,
afford the party delivering the pleading, an
opportunity to remove the cause of complaint within 15 days of such
notice; and
(b)
the
party excepting shall, within 10 days from the date on which a reply
to the notice referred to in paragraph (a) is received,
or within 15
days from which such reply is due, deliver the exception.
[10]
[12] It
is so that the respondents alleged in their plea that the amended
particulars of claim are not only vague
and embarrassing, but, it
does not disclose a cause of action and these are pertinently listed
as exceptions within their plea.
In the same breath, they have
also pleaded to the amended particulars of claim and raised further
defences. Rule 23 outlines the
procedure to be followed when an
exception is raised. This specifically includes affording the
respondent the opportunity to remove
the cause of complaint failure
which, the matter ought to be set down for hearing of an exception.
[13]
Now instead of doing so, respondents opted to file a plea wherein in
they raised the exceptions and in fact,
prayed that the court upholds
the exception and the applicant’s amended particulars of claim
be struck out with costs. Although
their plea was a correct response
to the notice of bar, raising an exception in this manner, in my
view, can only be seen as non-compliance
with the rules which require
them to file a notice, file an actual exception should the applicant
not comply and thereafter, set
down the matter for a hearing.
[14]
The respondents were alerted to this fact on the 22 of June 2023
already but choose to do nothing to rectify
this state of affairs. In
addition to this, further correspondence took place to remind them
that should they not comply, an application
for an irregular step
would be brought as they failed to comply with the rules. It is also
evident from this correspondence that
the applicant stalled in
bringing this application to avoid the cost of bringing the
application. In my view, this constitutes
good cause to condone their
delay in bringing the application.
[15]
The exceptions raised in the plea cannot be replied to with a plea in
replication by the applicants for several
reasons. Firstly, they have
not been given notice thereof. Secondly, they have not been provided
with a time period to further
amend their particulars of claim and
lastly, they have not been given the opportunity as required by rule
23 to actually reply
to the exception. This has all the hallmarks of
prejudice that the applicant suffers herein with the respondent’s
non-compliance
with rule 22 and rule 23. Accordingly, I find that the
respondents failed to comply with the rules in terms of Rule 30A.
[16]
It is trite that costs follow the result and I am not persuaded to
deviate from this established practice.
Although both parties
initially sought costs on a punitive scale, they later acknowledged
that the nature of the proceedings do
not warrant such an order. I
hereby exercise my discretion and order that costs be awarded to the
applicant on a party and party
scale.
IV
ORDER
[17]
Accordingly, I make the following order:
1.
The Applicant’s late filing of the
application in terms of Rule 30 and Rule 30A is condoned.
2.
The Respondents are ordered to comply with
Applicant’s notice in terms of Rule 30 and Rule 30A within 15
days of this order.
3.
The Respondents shall pay the costs of this application on a party
and party scale.
OR
MAJOSI, AJ
On
behalf of the Applicant
Adv.
M. Van der Westhuizen
Instructed
by:
c/o
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Respondents
Adv.
A. Sander
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
[1]
Indexed
bundle, p5, Founding affidavit, paragraphs 4 and 5.
[2]
Ibid,
paragraphs 6 -7.
[3]
Indexed
bundle, Annexure FA2.
[4]
Founding
affidavit, paragraph 8- 10
[5]
Applicant’s
heads of Argument, paragraphs 18-19; Van den Heever NO v Potgieter
NO 2022(6) SA 315 (FB).
[6]
Ibid
paragraphs 11 -13.
[7]
Respondents
Answering Affidavit paragraphs 4 – 12.
[8]
Ibid,
paragraphs 26 – 31.
[9]
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353A; Ford v
Groenewald
1977 (4) SA 224
(T) at 225H.
[10]
My
own emphasis.