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2024
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[2024] ZAECBHC 23
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Geronimos Investments CC t/a Buffalo Flats Spar v Members of the Executive Council for the Department of Health Province of the Eastern Cape (230/2011) [2024] ZAECBHC 23 (3 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – BHISHO)
Reportable
/
Not
Reportable
Case no.:230/2011
Matters heard on: 29
August 2024
Judgment delivered on:
03 September 2024
In
the matter between:
GERONIMOS
INVESTMENTS CC t/a
BUFFALO
FLATS
SPAR
Applicant
and
MEMBERS
OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT
OF HEALTH: PROVINCE OF THE
EASTERN
CAPE
Respondent
JUDGMENT
BRODY
AJ
1.
This is an application for condonation for the late filing of the
applicant’s
answering affidavits to two pending applications
which have been lodged by the respondent, namely:
1.1
A rule 30(2)(c) application; and
1.2
A rule 30A (2) application.
2.
It was common cause in argument that this court was not required to
deal with
the merits of the two pending applications, however, only
the issue of condonation for the late filing of answering affidavits.
3.
It was further common cause that the applications were interlocutory
in nature
and as contemplated in rule 6(11).
4.
Rule 6(11) provides as follows:
“
Notwithstanding
the aforegoing sub-rules, interlocutory and other applications
incidental to pending proceedings may be brought
on notice supported
by such affidavits as the case may require and set down at a time
assigned by the Registrar or as directed
by a Judge.”
5.
There is no prescribed time period in rule 6(5), and it was common
cause in argument
that the time period for answering an application
is a “
reasonable time
”.
6.
A further important factor in this matter is that the respondent had
brought
the two applications, however, did not take any steps to set
them down.
7.
In terms of rule 15 of the practice directives, a party is entitled
to apply
to set the matter down if the applicant fails to do so.
8.
I was advised by Mr Mati, acting on behalf of the applicant, that the
dispute
between the parties has been bedevilled by at least five
applications, various objections, and rule 30 notices.
9.
Mr Marty also argued that the present dispute between the parties, in
regard
to condonation, could also be dealt with in terms of rule 37A
and when the matter is dealt with at case flow management.
10.
Although the argument in this matter was prolix, and complicated, the
facts in the matter,
and principles applicable, are relatively
simple.
11.
The applicant brought an application to amend its particulars of
claim and the respondent
filed a notice to oppose, but did not file
an answering affidavit, which then triggered the set-down of the
matter on the uncontested
opposed roll for the 2
nd
of
August 2022.
12.
The respondent then filed a rule 30A(1) notice.
13.
The respondent then objected to the set-down as same being an
irregular step and eventually
proceeded with the rule 30(2)(c)
application, which was based on the set-down of the matter.
14.
The respondent also then proceeded with an application in terms of
rule 30A(2) on the basis
that the applicant had not complied with my
brother Lowe’s order of the 5
th
of October 2021,
wherein he ordered that the applicant was to amend its papers within
five days of the order.
15.
Although the applicant is of the view that it is not necessary to
bring an application for
condonation, given the absence of time
periods in the rules, as a prudent and pragmatic approach, decided to
bring the applications
for condonation.
16.
The applicant alleges no prejudice to the respondent if condonation
were to be granted.
17.
The respondent argued in its opposing affidavit that the applicant
had not consolidated
the two applications in terms of rule 11 of the
rules of court and that there were no prospects of success in that
the applicant
had not complied with Lowe J’s order dated the
5
th
of October 2021 timeously.
18.
The respondent also argued in its answering affidavit that the
previous notices of intention
to amend had not been followed through
and therefore until they had been withdrawn, the present amendment
could not proceed.
19.
The respondent also argued that the applicant had previously replaced
its original particulars
of claim, and in that event, the original
claims had been withdrawn and that the newly sought particulars of
claim, (to be amended)
result in a prescribed claim.
20.
The applicant, in its replying affidavit, which was essentially
comprised entirely of legal
argument, alleged that it had in fact
complied with Lowe J’s order, as a notice of intention to amend
had been filed within
two days of the order being granted.
21.
It also pleaded that there was no prejudice to the respondent and
that the delay in bringing
the present application, and the filing of
the opposing affidavits, was not gross in that it was only
thirty-eight days out of
time.
22.
The issue of the time periods was comprehensively dealt with by my
sister Hartle (AJ) (as
she then was). In the matter of
Farrington
Farming vs Volcano Agro Sciences (Pty) Ltd
, an unreported
judgment, handed down on the 18
th
of March 2010. As both
counsel were not aware of this judgment I handed a copy to them and
they considered the judgment during
the tea-break.
23.
In that judgment, Hartle J, found that rule 6(5) is a less cumbersome
procedure and allows
for an expeditious disposition of litigation.
24.
At paragraphs [40] and [41], she stated the following:
“
[40]
In my view the authorities are against the proposition that simply by
virtue of an interlocutory application becoming
opposed, a respondent
is entitled to the benefit of as much time as would be afforded to
him in an ordinary opposed application.
Such an interpretation would
be absurd given the nature and necessity of interlocutory
applications especially when invoked as
a tool to enable parties to
advance the main action. Rule 6(11) is an exclusionary sub-rule,
(distinguished from the rest of rule
6) which provides a
sui
generis
model and procedure for simple interlocutory and
other applications incidental to pending proceedings.
[41]
It would be entirely inconsistent with the nature of, particularly an
application to compel…
for a respondent to profit from his own
tardiness, by claiming that he is entitled to hold out for the
maximum period that rule
6(5)(d) will allow for the exchange of
affidavits in ordinary opposed motion, and then for the set down to
be delayed further while
a formal request is made on the basis
provided for in Eastern Cape Rule 3. Such opportunism can never be
countenanced. It is trite
law that, in order for justice to be done,
the uniform rules must be interpreted so as to provide for the speedy
and inexpensive
resolution of disputes.”
25.
She further found the following:
“…
in my
view a respondent has no
right
to be allowed the
more extensive time periods applicable to such applications.”
26.
I am therefore in agreement with both counsel in this matter that a
reasonable period is
required in terms of the commentaries and the
authorities relating to interlocutory applications.
27.
I am also in agreement with Mr Mati that amendments can be sought at
any stage before a
trial commences, (and even during a trial) subject
to the issue of prejudice and that if a litigant does not persist
with a proposed
amendment, it simply lapses.
28.
I agree with Mr Sishubu that rule 37A is not applicable to the
present application in that
case flow management is an administrative
process which allows for the preparation of matters for trial. It is
not a process for
applications to compel or for applications to
postpone.
29.
I am persuaded that the thirty-eight days, referred to by the
applicant is not an excessive
period and especially having regard to
the fact that the respondent failed to set down the two applications
and also did not take
those two applications any further.
30.
Even if the present application to amend were to be dismissed, this
will not prevent the
applicant from seeking a further amendment
before the trial date. This same rule would be applicable to the
respondent.
31.
In the interests of justice, and in the interests of bringing this
matter to finality without
the incurring of any further exorbitant
costs, I am inclined to grant condonation for the late filing of the
two affidavits.
32.
In regard to the issue of costs, Hartle J had the following to say in
the Farrington Farming
(Pty) Ltd matter:
“
[47]
With regard to the issue of costs, I believe that it would be proper
to reserve these for determination of the
court hearing the
application. Similarly, I hold that the question whether it was a
wise and reasonable precaution to have engaged
the services of two
counsel should fall to be determined by the court hearing the
interlocutory application.”
33.
Many of the issues raised by Mr Sishuba in regard to the condonation
application should
ideally be raised in the application to amend. As
indicated above, I was not required to deal with the issues relating
to that
application, however, was only required to deal with this
condonation application.
34.
In the result I issue the following orders:
1.
The late filing of the applicant’s answering affidavits in the
rule 30(2)(c)
and rule 30A(2) applications are condoned.
2.
The issue of the costs of the application for condonation, including
the scale
of costs, are reserved for determination by the court
hearing the application to amend.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
:
Adv. Mati
Instructed
by
:
Messrs Gravette Schoeman Attorneys
8
Queens Road
KING
WILLIAM’S TOWN
(Ref.:
M. Moodely/RMS/18/MAT 6713)
Counsel
for the Respondent
:
Adv. Sishuba
:
The State Attorney
c/o
Shared Legal Services
Office
of the Premier
32
Alexander Road
KING WILLIAM’S
TOWN