REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
(1)
(2)
(3) REPORTABLE: ~NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
........................ .....
........................ . ~
DATE 3 FEBRUARY 2025 SIGNATURE ............................. .
In the matter between:
MEC FOR SPORTS ARTS AND CULTURE ,
LIMPOPO
PREMIER OF LIMPOPO PROVINCE
-and-
DUMELA DEVELOPMENT FORUM
PNG CONSTRUCTION
MULAMULA HASANI THOMAS CASE NUMBER: 1942/2019
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
2
JUDGMENT
BRESLER AJ:
Introduction:
[1] The matter came before court on a preferential basis. The First and Second
Applicants are the First and Second Responden ts in the main application (herein
after referred to the 'Applicants') for inter a/ia the review and setting aside of the
First Applicant's decision to build a community library at Mulamula Village and not
at Dumela Village, and ancillary relief (hereinafter referred to as the 'Review'). The
First Respondent in the current proceedings is the Applicant in the Review
(hereinafter referred to as the 'First Respondent').
[2] The First Applicant applies for condonation for the late filing of its Answering affidavit
to the Review. From the onset, it stands to be noted that this matter has a
considerable procedural history. The Review was issued during March 2019. The
Notice of Motion is comprised of Part A and Part B. Part A entails interdictory relief
pending finalisation of Part B of the Review. Part A was launched on an urgent
basis. It does not appear from the papers before court that relief in Part B was
diligently pursued at all relevant times as it has not been finalised notwithstanding
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a considerable time having expired since the inception of the matter. It was also
intended to be enrolled on the ordinary roll and not on an urgent basis.
[3] Subsequent to the delivery of the Review, and on the 4th of April 2019, the
Applicants delivered a Notice to Abide. It stands to be noted that the Notice to Abide
do not pertinently refer to Part A or Part B of the Review. The First and Second
Applicant did not file any opposing affidavit at that stage. On the 9th of April 2019,
the matter came before the Honourable Judge Kganyago. He struck the matter
from the urgent roll due to lack of urgency. It is evident that this only related to the
Part A of the Review.
[4] On the 4th of June 2019, the matter came before the Honourable Judge Muller, who
again struck the matter from the roll with costs. It is again clear that only Part A was
enrolled for hearing.
[5] Part B of the Review was then enrolled for hearing on the opposed roll on the 26th
of May 2022 before the Honourable MG Phatudi J (as he was then). According to
the First Applicant, this belated enrolment approximately 3 (three) years after the
striking of Part A of the Review, prompted the First Applicant to deliver its Answering
affidavit, incorporati ng an explanation, and appropriate prayers, addressing the late
filing of the said affidavit. At the hearing of the Review, the First Respondent raised
an objection to the admissibility of the First Applicant's answering papers on the
basis that the First Applicant has delivered a Notice to Oppose and a Notice to
Abide, these two notices being mutually destructive .
4
[6] Upon hearing arguments on behalf of both parties, the Court directed inter alia that
the First Applicant is to launch a substantial application for condonation within 10
(ten) days addressing the late filing of its Answering affidavit.
[7] This application was launched and enrolled for hearing on the 7th of June 2023. On
this day, the matter came before the Honourab le Madam Justice Naude-Odendaal
J. She upheld the point in limine that the affidavit in support of the application for
Condonation does not comply with the provisions of the Justices of Peace and
Commissioners of Oaths Act, Act 16 of 1963 in that the Commissioner of Oaths
practices in Polokwane but attended to the commissioning in Pretoria on an
unstated date in June 2022. The matter was consequently struck with costs.
[8] Hereafter, it appears that the matter was again enrolled for hearing on the opposed
roll on 24 October 2023. The matter was again heard by the Honourable MG
Phatudi J (as he was then), who directed that the First Respondent must launch an
application for condonation within 10 (ten) days from the date of the said order.
[9] The current application for Condonation was eventually served on the 8th of
November 2023 and was heard by this court on the 28th of October 2024.
[10] The First Respondent delivered its answering affidavit on the 31st of May 2024,
substantially out of time. The Answering affidavit was not accompan ied by a
substantial application for condonation, nor was any endeavour made to apply for
the condonation of the late filing thereof, notwithstanding the pertinent objection
raised in the Replying affidavit of the First Applicant.
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Issues that require determination:
[11] This Court is called upon to determine:
10.1 If the delivery of the Notice to Abide delivered by the First Applicant,
negates the Applicant's right to deliver an Answering affidavit;
10.2 If condonation should be granted for the filing of the First Applicant's
Answering affidavit; and
10.3 If condonation should be granted for the late filing of the First
Responden t's Answering affidavit to the Condonat ion application.
The Applicable Legal Principles:
[12] The law pertaining to condonation is well known and often quoted in proceedings of
this nature. The High Court has an inherent right to grant condonation where
principles of justice and fair play demand it and where the reasons for non
compliance with the time limits has been explained to the satisfaction of the court.1
The courts have refrained from attempting to frame a comprehensive definition of
1 SA Shipping Co Ltd v Liquidators Promotors Ltd 1918 TPD 606; SWA Munisipa/e Personee/
Vereniging v Minister of Labour 1978 (1) SA 1027 (SWA); Yunnen Engineering CC v Chater 2006 (5)
SA 571 (T)
6
what constitutes good (and sufficient) cause for the granting of condonation as this
would hamper the court in exercising its discretion.2
[13] In United Plant Hire (Pty) Ltd v Hills3 the principles upon which the court exercises
its discretion have been stated as follows:
'It is well settled that, in considering applications for condonation, the court
has a discretion , to be exercised judicially upon a consideration of all the facts;
and that in essence it is a question of fairness to both sides. In this enquiry,
relevant considerations may include the degree of non-compliance with the
rules, the explanation therefor, the prospects of success on appeal, the
importanc e of the case, the respondent 's interest in the finality of the
judgment, the convenience of the court, and the avoidance of unnecessary
delay in the administration of justice. The list is not exhaustive. '
[14] In Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae)4 the following was stated:
'This court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is in the interest of justice to
grant condonation depends on the facts and circumstances of each case.
Factors that are relevant to this enquiry include, but are not limited to the
2 Erasmus, Superior Court Practice, Revision Service 3, 2016 on D1 -670
31976 (1) SA 717 (A) at 720 E-G
4 2008 (2) SA 472 (CC) at 477A-B
7
nature of the relief sought, the extent and cause of the delay, the effect of the
delay on the administration of justice and other litigants, the reasonableness
of the explanation for the delay, the importance of the issue to be raised in the
intended appeal and the prospects of success. '
[15] In Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others5 the Constitutional Court held that in determining whether condonat ion may
be granted, lateness is not the only consideration. The test for condonation is
whether it is in the interest of justice to grand condonation.
[16] In Ferris v FirstRand Bank, 6 the court again confirmed that lateness is not the only
consideration and that the test for condonat ion is whether it is in the interest of
justice to grant it.
[17] In casu, the First Applicant explained that the Notice to Abide related to Part A of
the Review only. This Court has no reason to believe that this explanation is untrue
or contrived. Be that as it may, it appears from the papers before Court that the
First Respondent has neither delivered a Notice in terms of Uniform Rule 30, nor
did the First Respondent apply for the striking out of the affidavit. Of particular
importance is the fact that the First Respondent does not raise any substantial
prejudice that may be suffered by it should the Answering affidavit be allowed into
the record of the proceedings.
5 2010 (2) SA 181 (CC)
6 2014 (3) SA 39 (CC)
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[18] Although somewhat different circumstances , the Western Cape High Court has
stated in the case of Clairison's CC v MEC for Local Government,
Environmental Affairs and Development Planning and Another7 held that a
respondent is entitled to set out his position on an application. The court also deals
extensively with the filing of the said affidavit potentially being an abuse of the court
process but ultimately finds that no such abuse is present.
[19] Likewise, in the current matter, the First Applicant explicitly sets out why the
answering affidavit was delivered at this late stage. There was a considerable
change in circumstances. The project has long since been finalised. This prompted
the delivery of the Answering affidavit.
[20] As to the Notice to Abide that was previously delivered, it was already indicated
herein before that the Court accepts the explanation from the First Applicant that
the intent was to only abide to Part A being granted.
[21] A further aspect that is of relevant to this matter, is the fact that the Court has
already, on no less than two occasions , directed that an application for condonation
should be delivered. It follows that the Court, by implication, already found that it is
procedurally possible to file an Answering affidavit provided condonat ion is granted.
[22] In this Court's view, condonation for the late filing of the affidavit and allowing the
First Applicant to file the said affidavit, is undeniable related to the current status
quo on the project forming the subject of the Review. The Court hearing the Review
in due course must be apprised of all relevant facts to enable that court to make a
7 2012 (3) SA 128 (WCC)
9
just and equitable finding and to determine the appropriate remedy should the
Review ultimately be successful. That court will be at a serious disadvantage should
the information contained in the Answering affidavit of the First Applicant simply be
ignored.
[23] On this basis, it follows that the interest of justice demands that condonat ion be
granted. The First Applicant has extensively dealt with the reason why it delayed
in delivering its Answering affidavit and have shown to have a reasonable prospect
of succeeding in the opposition of the Review.
[24] As to the fact that the First Respondent failed to deliver any application for
condonation , notwithstand ing being some 6 months out of time with the delivery of
their Answering affidavit, this Court is of the view that the said Answering affidavit
should be disregarded as it is not properly before court.
[25] In the case of Uitenhage Transitional Local Council v SA Revenue Services8
the Supreme Court of Appeal held:
'... condonation is not to be had merely for the asking; a full, detailed and
accurate account of the cause of delay and their effects must by furnished so
as to enable to Court to understand clearly the reasons and to assess the
responsibility. It must be obvious that, if the non-compliance is time-related
8 2004 (1) SA 292 (SCA) at 2971 -J
10
then the date, duration and extent of any obstacle on which reliance is placed
must be spelled out. '
[26] In casu the First Respondent did not launch any substantial application for
condonation. On this basis, the Answering affidavit stands to be disregarded .
Costs:
[27] In an application for condonation costs is normally awarded against the party
seeking an indulgence. In this matter this court is of the view that neither party came
to court with proverbial clean hands. The First Applicant, although successful with
its application for condonation , has caused a considerably delay in prosecuting the
application itself due to its inaccuracy and inadequacy of its papers. It stands to be
noted that the First Responden t has been appropriately compensa ted by means of
the cost orders granted in this matter to date and this Court therefore need not deal
with the cost implication of the previous appearances.
[28] Likewise, the First Respondent failed to address its failure to comply with the
timeframes enunciated in the Uniform Rules of Court. It is a classic example of the
pot calling the kettle black. The First Respondent wants to penalise the First
Applicant for its failure to observe the Uniform Rules, whilst making themselves
guilty of the same oversight.
[29] Under these circumstances , this Court is of the view that it would not be in the
interest of justice if the First Applicant carry the costs of these proceedings ,
Order: 11
notwithstanding them asking an indulgence from the Court. A more reasonable
approach would be to order each party to pay its own costs. This might also serve
as a deterrent to the parties in the future not to burden the rolls unnecessa rily with
papers that do not conform to legal prescripts.
[30] In the result the following order is made:
30.1 The First Applicant 's late filing of its Answering affidavit to the Review
is condoned.
30.2 Each party is ordered to pay its own costs pursuant to the Application
for Condonation.
M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
APPEARANCES:
FOR THE FIRST APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
DATE OF HEARING
DATE OF JUDGMENT 12
Adv. S Mbhalati
The State Attorney
Polokwane
MChuene@justice.gov.za
TMasete@justice.gov .za
Adv. L Nkoana
Hundzukani Maluleke Attorneys
Malamulele
info@hmattorneysinc.co.za
kulani@mabokoattorneys.co.za
28 October 2024
3 February 2025