REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION , POLOKWANE
CASE NUMBER: 18/2020
(1)
(2)
(3) REPORTABLE: ~NO
OF INTEREST TO THE JUDGES: ~NO
REVISED.
::::::::::::::::::::::::: ~
DATE 25 MARCH 2025 SIGNATURE ............................. .
In the matter between:
SCHOOL GOVERNING BODY: PHASWANA
SECONDARY SCHOOL
WATTSON D. MATSHINGE: ACTING PRINCIPAL
SCHOOL GOVERNING BODY: RALSON TSHINANNE
SCHOOL
ALEX T. MALIAVUSA: ACTING PRINCIPAL
SCHOOL GOVERNING BODY: MBALENI PRIMARY
SCHOOL 1 ST APPLICANT
2ND APPLICANT
3RD APPLICANT
4TH APPLICANT
5TH APPLICANT
2
RONALD T. TSHILONGAMULENZHE: ACTING
PRINCIPAL
NATIONAL ASSOCIATION OF SCHOOL GOVERNING
BODIES, LIMPOPO PROVINCE
-and-
THE HEAD OF THE DEPARTMENT , DEPARTMENT OF
EDUCATION , LIMPOPO PROVINCE
THE CIRCUIT MANAGER , TA TSHIVHASE
DISTRICT DIRECTOR: NG RAMBYANA
THE MEC, DEPARTMENT OF EDUCATION , LIMPOPO
PROVINCE
LUVHIMBI MURAVHA IVY
TSHIPULISO NALEDZANI ENGELINAH
TSHIVHASE TSHIFHIWA GRACE
Delivered 25 March 2025 6TH APPLICANT
7TH APPLICANT
1sr RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
5TH RESPONDENT
6TH RESPONDENT
7TH RESPONDENT
This judgment was handed down electronically by circulation to
the parties' legal representatives by e-mail. The date and time
for hand down of the judgment is deemed to be 25 March 2025
at 10:00 am.
Date heard
Coram 4 November 2024
Bresler AJ
3
JUDGMENT
BRESLER AJ:
Introduction:
[1] The Applicants launched an application for inter a/ia review (the 'Main Application').
Subsequent hereto, and on the 11th of June 2024, an order was granted joining the
5th, 6th and 7th Respondents to the proceedings.
[2] The Applicants now apply for an order allowing them to file a Supplementary
affidavit to the Founding affidavit. It is the Applicants submission that because of
the joinder of these Responden ts, there is a change in the facts that needs to be
presented to Court for purposes of a just adjudication of the matter.
[3] It is furthermore submitted that there is no need to file a substantial application with
a separate Founding affidavit, as the order relating to the Joinder proceedings,
already authorised and contemplated the supplementing of the existing documents
before court.
[4] The First to Fourth Responden ts (hereinafter the 'Respondents ') opposes the
request to file a supplemen tary affidavit. The Respondents submit that the
application suffers from a fatal flaw being that the Notice of Motion seeking to file
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the supplemen tary affidavit, is not supported by a Founding affidavit. The discretion
of the Court to allow the Supplemen tary affidavit is therefore not triggered.
Issues that require determination:
[5] This Court is only called upon to determine if the filing of the Supplementary affidavit
should be allowed.
The Applicable Legal Principles:
[6] Rule 6(5) of the Uniform Rules of Court provides that:
'Within 10 days of the service upon the respondent of the affidavit and
documents referred to in sub-paragraph (ii) of paragraph (d) of subrule (5) the
applicant may deliver a replying affidavit. The court may in its discretion permit
the filing of further affidavits.'
[7] This discretion must be exercised judicially with due regard to the prevailing
circumstanc es of the specific case. The court will exercise its discretion in permitting
the filing of further affidavits against the framework of the fundamen tal considera tion
that a matter should be adjudicated upon all the facts relevant to the issues in
dispute.1
1 Bader v Weston 1967 (1) SA 134 (C) at 138D; Dickinson v South African General Electric Co (Pty)
Ltd 1973 (2) SA 620 (A) at 628F; Cohen NO v Ne/ 1975 (3) SA 963 (W) at 970B
5
[8] Special circumstances may exist where something unexpected or new emerged
from, for instance, the applicant's replying affidavit.2 The Court must however be
satisfied that no prejudice will result in allowing the filing of the supplementary
affidavit which cannot be remedied by the appropriate cost order.
[9] Counsel for the Respondent referred to the matter of Hano Trading CC v JR 209
Investments (Pty) Ltd and Another' where the Supreme Court of Appeal quoted
with approval the following remarks in James Brown & Hamer (Pty) Ltd
(Previously named Gilbert Hamer & Co Ltd) v Simmons N04:
'It is in the interests of the administration of justice that the well known and well
established general rules regarding the number of sets and the proper
sequence of affidavits in motion proceedings should ordinarily be observed.
That is not to say that those general rules must always be rigidly applied: some
flexibility. controlled by the presiding Judge exercising his discretion in
relation to the facts of the case before him. must necessarily also be
permitted. '
(Own underlining)
[1 O] In this Court's view, the intended Supplementary affidavit is not the epitome of
drafting excellence. This does not deter from the fact that the joinder of the 5th of
2 Afric Oil (Pty) Ltd v Ramadaan Investments CC 2004 (1) SA 35 (N) at 38J-39A
3 2013 (1) SA 161 (SCA) at [12]
4 1963 (4) SA 656 (A) at 660D -H
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7th Respondents is common cause and that such joinder inadvertently results in a
need to amend and / or supplement the Founding affidavit.
[11] It is apposite to note that the Respondents only object to the application on the
highly technical ground that the said application is not accompan ied by a Founding
affidavit. It is trite law that a High Court has the right to regulate its own proceedings
to ensure that justice prevails. Judges should be careful of being too pedantic at
the price of sacrificing an equitable result. Under the circumstances, overly
technical objections to proceedings must be disregarded in favour of an expedited
and just finalisation of the matter.
[12] Having regard to the submissions made by the parties' counsels during the hearing
of the matter and thereafter in their supplementary Heads of Argument, this Court
is of the view that it is in the interest of justice that the filing of the Supplementary
affidavit should be allowed.
Costs:
[13] The Applicants are substantially successful in the relief as prayed for in the Notice
of Motion. They are however asking an indulgence which normally presupposes
that the Applicant should be held responsib le for the costs. The Respondents
however failed to file opposing affidavits and, in effect, ambushed the Applicants
without setting out the prejudice that they will suffer should the supplementary
7
affidavit be allowed into the record. Having regard to the circumstances , none can
in any event be perceived by this Court.
[14] On this basis, this Court is of the view that it would be just and equitable if the costs
pertaining to these proceedings follow the outcome of the main application.
Order:
[15] In the result the following order is made:
15.1 Applicants are granted leave to file their Supplementary Founding
affidavit to the Main Application , dated the 18th of December 2020
within 10 (ten) days from the date of this order;
15.2 The Respondents in the Main Application are granted leave to file a
Supplementary Answering affidavit and/ or an Answering affidavit(s) ,
whatever the case may be, (if any), by no later than 20 (twenty) days
from the date of receipt of the Applicant 's papers referred to in
paragraph 15.1 above;
15.3 The Applicants are entitled to file a Replying affidavit(s) , if any, within
15 (fifteen) days from the date of receipt of the Respondents '
Answering and / or Supplementary Answering affidavit referred to in
paragraph 15.2 above.
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15.4 The parties are directed to adhere to the Practice Directives of this
Division pertaining to the filing of Heads of Argument , Practice Notes
and the enrolment of the Main Application on the Opposed roll in due
course.
15.5 The costs of this application shall follow the outcome of the Main
Application in due course.
APPEARANCES:
FOR THE APPLICANTS
INSTRUCTED BY M BRESLERAJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION , POLOKWANE
Adv S Sikhwari SC
Ligege & Associates
plk@ligegeandassociatesinc.co.za
FOR THE FIRST TO FOURTH
RESPONDENTS
INSTRUCTED BY 9
Adv. EN Gaisa
The State Attorney
Polokwane
PMalatji@justice.gov.za