IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 4097/2022
In the matter between:
MORABA STEPHEN RAMUSI Applicant
and
MINISTER OF JUSTICE AND First respondent
CORRECTIONAL SERVICES
GOVERNMENT EMPLOYEES PENSION FUND Second respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The applicant is a former employee of the first respondent . He was employed as
a Court Manager for the Bizana Magistrate s’ Court and resigned from this employ ment
in August 2021. When his resignation benefits were not paid to him by the first and
second respondent s, he brought an application on 22 August 2022 in which he sought
an order declaring the first respondent ’s failure to pay his leave gratuity and its failure to
submit to the second respondent his pension benefit withdrawal forms unlawfu l. He
further sought an order interdicting the first respondent from withholding the payment of
his leave gratuity .
[2] The applicant further sought an order directing the first respondent to pay his
leave gratuity with interest at the legal rate of 7% per annum , from 01 September 202 1
to date of payment . He also sought an order directi ng the first respondent to submit to
the second respondent his pension withdrawal forms ; and an order directing the second
respondent to pay his pension benefit within 30 days of receipt of such pension
withdrawal forms from the first respondent .
[3] On 25 October 2022 , this Court granted an order by agreement between the
parties in which it partially settled the dispute.1 In the order, the court directed, inter alia ,
that the applicant’s leave gratuity and a portion of his pension benefit be paid to him.
Further i n terms of the court order, the second respondent was authorized to withhold
an amount of R864 748.94 from the applicant’s pension benefit . It appears from the
papers filed of record that the first respondent had alleged that those pension benefits
were withheld following the institution of an investigation into the applicant’s alleged
financial misconduct.
[4] A counter application was heralded by the first respondent, in which it would
assert its entitlement to the withheld amount of R864 748.94 . Hence, the court order
also determined time frames for the filing of the said counter application . At the time of
hearing this application, t he first respondent ha d not filed the counter application.
[5] When the order of Majiki J was granted , Mr Manana represented the applicant
and Mr Mapekula represented the first respondent. They still represent the applicant
and the first respondent, respectively , in these proceedings . It is necessary, for reasons
1 The order was granted by Majiki J and for the sake of brevity and convenience it will be referred to as
“the order of Majiki J” or “the court order” .
that will become clearer later on in this judgment, that I reproduce the terms of the court
order, and they were as follows :
“1. The first respondent is directed to calculate and pay the applicant’s leave
gratuity to his chosen bank account within fifteen (15) days of this order.
2. The first respondent is hereby directed to forward and submit to the 2nd
respondent the applicant’s withdrawal documents, claim forms and/or any
other document that would enable the second respondent to process the
applicant’s pension benefits; within fifteen days of this order.
3. The second respondent is hereby [directed] to freeze and/or withhold an
amount of Eight Hundred and Sixty -Four Thousand Seven Hundred and
Forty Eight Rand and Ninety -Four cents (R864 748.94) from the pension
benefits which are due and payable to the applicant prior effecting any
payment of pension benefits which are due and payable to t he applicant
pending the finalization of the main application and the counter application
still to be launched.
4. The 2nd respondent is hereby directed to pay the applicant the remainder
of his pension benefits (after having deducted and/or withholding t he
amount mentioned in paragraph 3 above) to his chosen banking account
within fifteen (15) days after receiving the documents mentioned in
paragraph 2 above.
5. The 1st respondent is hereby directed to deliver its answering affidavit(s), if
any, and/or i ts counter application within thirty (30) days of this order.
6. The costs shall be reserved for determination by the court entertaining the
main application and counter application.”
[6] The first respondent complied with the terms of the order in so far as it related to
the submission of pension withdrawal forms to the second respondent and the
processing and payment of the applicant’s leave gratuity . The second respondent also
paid the portion of the applic ant’s pension benefit which the court order directed it to
pay. The amount of R864 748.94 is still withheld by the second respondent. No
determination was made in the court order regarding the interest of 7% per annum that
the applicant sought on his leave gratuity.
[7] The applicant has now approached this Court for an order directing the second
respondent to pay to him the withheld amount of R864 748.94 and directing the first
respondent to pay interest on the leave gratuity at the legal rate of 7% per an num from
01 September 2021 to date of payment . In substantiating this relief, he contends that
since the first respondent has failed to file its counter application as directed in the court
order, there is no legal basis on which the second respondent still withholds the amount
of R864 748.94 .
[8] The second respondent did not partici pate in the hearing of this application when
it served before me on 22 August 2024. Only t he first respondent oppose s the granting
of the relief that the applicant seeks. Even though the founding affidavit suggests that
the process initiating these proceedings would be served on the second respondent at
the State Attorney ’s Office, the notice to oppose that was filed by the State Attorney’s
Office specifies that it was only in respect of the 1st respondent .
[9] The first respondent’s answering affidavit and heads of argument were out of
time and it sought condonation of their late filing . Such condonation was granted. I set
out hereunder a brief factual background and further litigation history to this application
after the court order.
Factual background and further litigation history
[10] During the subsistence of the employment of the applicant a s Court Manager at
the Bizana Magistrates ’ Court, the first respondent instituted an investigation following
allegations that the applicant had committed financial misconduct . The alleged
misconduct involv ed unauthorized use of a state vehicle ; forgery of the signature on the
forms authorizing the use of state vehi cles; and irregular bookings on weekends at a
Bed and Breakfast accommodation facility in Kokstad. The said bookings were further
alleged to have been irregularly approved by a junior staff member of his office. The first
respondent alleged that as a resul t of the applicant's alleged misconduct, it suffered loss
in the sum of R864 748.94.
[11] While the investigations were underway, the first respondent instituted
disciplinary proceedings which could not be continued after the resignation of the
applicant. Criminal proceedings were subsequently instituted against the applicant , and
they are still pending in the Regional Court of Mthatha.
[12] None of the applicant’s resignation benefits were paid to him. The first
respondent took a decision to put the payment of the applicant’s leave gratuity on hold
pending the finalization of the investigation, but it later overturned this decision and
issued an instruction that the applicant’s leave gratuity be paid to him.
[13] Further delays in payment of his leave gratuity which subsequently arose
impelled the applicant to bring an application before this Court on urgent basis on 22
August 2022 in which he sought an interdict that would compel the first respondent to
pay his le ave gratuity and to finalize the process entailed in paying out his pension
benefit. The application was heard on 30 August 2022 and o n that day, it was removed
from the roll for lack of urgency.
[14] After the order of Majiki J was granted, the applicant set the matter down for
hearing on 30 May 2023. On this day, it was postponed sine die with the respondent
being allowed to file its answering affidavit and counter application within 30 days of the
court’s order. The matter serv ed before court again on 08 August 2023, whereupon it
was postponed to 22 August 2023 . It was again enrolled for hearing on 29 August 2023,
on which date it was removed from the roll with the first respondent being ordered to
pay the wasted costs.
[15] An explanation given by the applicant in his replying affidavit regarding what
transpired in court on 08 August 2023 suggests that on that day the application was
postponed ‘due challenges in the office of the Registrar ’. These challenges have not
been specified.
[16] By notice dated 03 July 2024 , the matter was eventually set down for hearing on
22 August 2024 . On this day it served before me .
The case for the applicant
[17] In support of the relief that he now seeks , the applicant makes these principal
assertions : since the first respondent has, as of the date of hearing of the application,
not filed its counter application to assert its claim to the withheld amount of
R864 748.94 , there is no legal basis for the con tinued withholding of this portion of his
pension benefit .
[18] It is worth mentioning that despite the evolution of the applicant’s cause of action
pursuant to the order of Majiki J, no amendment was at any stage made to the notice of
motion nor were supplementary papers filed as would meet the exigencies of his case
after the partial settlement of the matter. On 22 August 2023, the applicant delivered a
four-paged document titled “ notice of set down ” (the notic e of set down) and dated 21
August 2023 , with the content that I reproduce below:
“BE PLEASED TO TAKE NOTICE that this matter is set down for hearing on
Tuesday 29 August 2023 at 09H30 for a final order in terms of paragraphs 1, 2
and 4 as reflected below in that:
WHEREAS the first respondent d elivered a notice of its intention to oppose on 30
August 2022 and subsequently failed to deliver its answering papers to the main
application;
WHEREAS the matter served before this Honourable Court on Tuesday 25
October 2022 and stood down until 28 Octobe r at the instance of the first
respondent which indicated that it wanted to consult and obtain instructions, and
whereas the parties sought an order by consent with the first respondent having
sought and obtained an indulgence to deliver its answering aff idavit and a
counter -application if any within 30 days of grating of the order;
WHEREAS the first respondent failed to deliver its answering affidavit and a
counter application resulting to the applicant setting the matter down for hearing
on 30 May 2023, and whereas the first respondent sought and obtained a further
indulgence of 30 days within which to deliver its answering affidavit and a counter
application, if any;
WHEREAS the first respondent has failed to deliver its answering affidavit and its
count er application, with the applicant setting the matter down for hearing on
Tuesday 08 August 2023;
WHEREAS the first respondent did not appear in Court on 08 August 2023
despite having been properly served with a notice of set down; and whereas the
court ha ving considered the fact that the matter has since evolved from its date
of inception and advising and directing that because of this evolution the
respondents should be notified regarding the order which the applicant intends
seeking due to the first resp ondent’s failure to deliver an answering affidavit and
a counter application it indicated it intended to delivering and non -compliance
with the directives of the Honourable Court; and
WHEREAS on 08 August 2023 the matter was postponed to 22 August 2023 and
could not be enrolled on that date due to administrative challenges facing the
office of the Registrar.
NOW THEREFORE BE PLEASED TO TAKE NOTICE that on Tuesday 29
August 2023 the applicant s hall seek a final order in the following terms:
1. Directing the second respondent to release and pay to the applicant
together with investment returns and interest, if any, that may have
accrued, within (10) days of granting and service of this order upon it by
applicant’s attorneys, an amount of R864 748.94 Eight hundred and sixty
four thousand seven hundred and forty eight rand and ninety four cents)
being the amount the second respondent was directed to freeze and or
withhold pending the finalization of th e matter in terms of an order of this
Court dated 25 October 2022.
2. Directing the first respondent within ten (10) days of granting of this order
and service of it upon it by applicant’s attorneys to the first respondent’s
attorneys to pay interest to the a pplicant at a legal rate of 7% per annum
on the amount of leave gratuity that became due, owing and payable to
the applicant calculated with effect from 1 September 2021 to date of
payment.
3. Directing the first respondent to pay costs of the application in cluding
costs that were reserved on 25 October 2022 including costs of 28
October 2022 being the date the matter was stood down up to at the
instance of the first respondent at the scale as between attorney and
client. ”
Case for the respondent
[19] In its answering affidavit, the first respondent alleges that the interdictory relief
that the applicant seeks has become moot since his leave gratuity and part of his
pension benefit were paid to him in compliance with the court order . The first
respondent f urther takes issue with the fact that even though his leave gratuity and a
portion of the pension benefit were paid to him, the applicant set the matter down for
hearing on several occasions. According to the first respondent, this amounts to an
abuse of c ourt process.
The issue to be determined
[20] The primary issue that the parties invited this Court to determine is whether the
applicant has made out a case for the relief he seeks. That being the case, t he litigation
history that I have set out above also raises procedural issues which equally require my
attention. When the application served before me , Mr Manana and Mr Mapekula were
invited to make submissions regarding these procedural issues as well .
The parties’ s ubmissions
[21] Mr Mana na accepted that the relief that the applicant initially sought has evolved
since the order of Majiki J, and therefore, a substantial part of it has become moot. I
invited Mr Manana to make submissions regarding whether there was before me a
proper application for the relief that the applicant seeks and which he has set out in the
notice of set down dated 2 1 August 2023.
[22] It was his submission in this regard that this Court must exercise its discretion
and grant the relief that the applicant seek s as further or alternative relief in the light of
‘the alleged unfair and oppressive treatment ’ that he has suffered because of the
conduct of the first respondent. In short, Mr Manana asked this Court to overlook the
unconventional manner in which the applicant persists with the relief that he seeks after
the partial settlement of the dispute . In buttressing this argument, he further submitted
that the notice of set down was filed pursuant to directions given by the court on 29
August 2023.
[23] Mr Mapekula agreed that since the first respondent has complied with the order
of Majiki J in so far as the payment of the applicant’s leave gratuity a nd a portion of his
pension benefit is concerned , the interdictory relief sought has become moot. Regarding
the applicant’s persistence with his claim of interest and the release of the withheld
amount of R864 748.94 , together with interest thereon and investment returns, Mr
Mapekula submitted that since this relief only appears in the applicant’s replying
affidavit, this Court must disregard it as it was not foreshadowed in a notice of motion
and founding affidavit. He further submitted that it was open to the applicant to
appropriately supplement its papers in order to pursue the new relief.
The applicable legal principles
[24] It is trite that a litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable the court to adjudicate the
dispute. These procedures are in the main contained in the rules of each court. The
Uniform Rules regulate form and process of the High Courts.2 These rules confer
procedural rights on litigants and also help in creating certainty in procedures to be
followed if relief of a particular kind is sought.3 Equally trite is the principle that g iving the
other party notice of proceedings that have been instituted against them is the
cornerstone of our justice system.4
[25] Application proceedings are initiated by notice of motion w hich must be as near
as possible with Form 2(a). This is in terms of Rule 6(5) which provides, in part, as
follows:
2 Mukaddam v Pioneer Foods (Pty) Ltd and Others (CCT 131/12) [2013] ZACC 23; 2013 (5) SA 89 (CC);
2013 (10) BCLR 1135 (CC) (27 June 2013).
3 Ibid, para 31.
4 Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (RA) 892B -C.
‘(5) (a) Every application other than one brought ex parte shall be brought on
notice of motion as near as may be in accordance with Form 2(a) of the First
Schedule and true copies of the notice, and all annexures thereto shall be served
upon every party to whom notice thereof is to be given.
(b) In a notice of motion the applicant shall —
(i) appoint an address within 25 kilometres of the offic e of the registrar and an
electronic mail address, if available to the applicant, at either of which addresses
the applicant will accept notice and service of all documents in such proceedings;
(ii) state the applicant’s postal or facsimile addresses wher e available; and
(iii) set forth a day, not less than 10 days after service thereof on the respondent,
on or before which such respondent is required to notify the applicant, in writing,
whether respondent intends to oppose such application, and shall furt her state
that if no such notification is given the application will be set down for hearing on
a stated day, not being less than 10 days after service on the said respondent of
the said notice:
Provided that —
(aa) for the purposes of this subrule, the d ays between 21 December and 7
January, both inclusive, shall not be counted in the time allowed for delivery of
the notice of intention to oppose or delivery of any affidavit;
(bb) the provisions of subparagraph (aa) shall not apply to applications brough t
under subrule 6(12) of this rule and applications brought under rule 43.
(c) If the respondent does not, on or before the day mentioned for that purpose in
such notice, notify the applicant of an intention to oppose, the applicant may
place the matter on the roll for hearing by giving the registrar notice of set down
before noon on the court day but one preceding the day upon which the same is
to be heard.
(d) . . .’
[26] As held i n Gallacher v Norman’s Transport Lines (Pty) Ltd 5 the provisions of
Rule 6(5) are peremptory.
[27] It is indeed so that i n our constitutional dispensation , everyone is guaranteed
access to a competent court to have their dispute resolved by the application of law and
decided in a fair manner .6 This guarantee does not include the right to choose the
method of approaching and placing a dispute before a partic ular court. The
determination of the process to be followed when litigants approach courts is left in the
hands of the courts.7
Discussion
[28] Since Mr Manana and Mr Mapekula accept ed that a substantial portion of the
relief that the applicant sought in the notice of motion 22 August 2022 has been
overtaken by events, I shall not have to pronounce on the mootness of that relief. In the
discussion that follows, and in the light of the v iew I hold of this matter, I first deal with
whether there is before me a proper application for the relief that the applicant now
persists with.
[29] The document dated 22 August 2023 titled “notice of set down” was indubitably
meant by the applicant to initiate proceedings for the ‘evolved cause of action ’, so to
speak. The applicant confirms as much in the final supplementary heads of argument
that were filed on his behalf.
5 1992 (3) SA 500 at 502D.
6 Section 34 of the Constitution , Act 108 of 1996.
7 Mukkadam , supra, paragraph 1.
[30] I am not unmindful of the principle that the rul es of courts are used as tools to
facilitate access to courts rather than hindering it. Their primary function is the
attainment of justice. I am equally alive to the duty of this Court to allow a measure of
flexibility in its application of the procedur al requirements set out in the Uniform Rules in
the interests of justice.8 This does not mean that the parties and their legal
representatives are to be exonerated from their duty of assidu ously observing the Rules
of Court which are an important element in the machinery for the administration of
justice. T he present case is not one of those cases where circumstances permit a
deviation from the procedural rules without causing prejudice to the other party. I
elaborate below.
[31] In the notice of s et down , the applicant impermissibly conflates a notice of the
proceedings, and the relief sought (a notice of motion) and the facts on which he relies
for this relief (which would appropriately be stated in an affidavit ).
[32] Significantly, w hat the document that the applicant relies upon in pursuing his
cause of action o mits to do , is to give the first and second respondent s an opportunity to
oppose the relief by filing their notice s of opposition and answering affidavit s. The fact
that the first respondent filed its answering affidavit, albeit out of time, does not detract
from this fact . This I say because the said answering affidavit could only have been in
answer to the applicant’ s founding affidavit dated 22 August 2022 which culminated in
the order of Majiki J . As I have already mentioned, the issues that arose from the
applicant’s founding affidavit have since evolved into the relief that he seeks to pursue
by the document title d “notice of set down”.
[33] A reading of the Eastern Cape Practice Directives (Joint Rule 3(1)(c)) and
Uniform Rules 6(5)(f )(iii) and 29(2)(b) suggests that a notice of set down is a document
to be filed informing the opposite party of the date allocated by the Registrar on which
8 PFE International and Others v Industrial Department Corporation of South Africa Ltd ([2012] ZACC 21;
2013 (1) SA 1 (CC); 2013 (1) BCLR 55 (CC) , para 30 .
the matter will be heard. It comes as no surprise that the first respondent did not
pertinently deal with any of the matters set out in the notice of set dow n in it answering
affidavit .
[34] It is so that the first respondent failed to file its counter application. Two issues
arise from this. The first one is that the counter application has a life of its own, hence ,
its non -filing by the first respondent would not bar this Court from determining the main
application where that main application is properly before court . The first respondent’s
failure to file its counter application could only be indicative of its disinterest in asserting
its rights in the same proceedings .
[35] The second issue, which in my view is paramount, is that once the court
substantially settled the dispute , in part, as set out in the order of Majiki J, new rights
and obl igations were created for the parties, respectively. T he first respondent’s counter
application could no longer be in relation to the relief that he initially sought in the notice
of motion that was filed before the order of Majiki J. For practical intents and purposes ,
as well as logic, the applicant had to redefine its cause of action pursuant to the partial
settlement. Having done so, it had to give proper notice of this new cause of action to
the respondent s and an opportunity for the respondents to fully deal with it . Mr Manana
accepted that this was an appropriate course of action.
[36] The applicant mentions in the ostensible notice of set down that the court, on 29
August 20023, directed that the first respondent be given notice of his new cause of
action after the partial settlement by the order of Majiki J . No record of proceedings of
this day was produced at the hearing of this application . Even accepting that th e court
so directed, I hasten to state that what the court would have meant by th at direction
certainly did not entail the filing of the document titled “notice of set down ” whose
contents I have quoted above. The court certainly did not mean that a new ca use of
action and the factual basis in support of that cause of action could be set out in a
document such the one that the applicant seeks to rely on.
[37] The notice of set down is patently anomalous, and it was filed in flagrant
disregard of the Rules of Court which apply to applications of the kind that the applicant
brought before this Court on 22 August 2022 . It is difficult to fathom why no amendment
was effected to the notice of motion in circumstances where the relief that is now
persisted w ith is substantially no longer the same relief that the applicant initially sought .
It is in a proper notice of motion (as amended to meet the exigences of the case ) that
the applicant should have set out the ‘evolved cause of action ’ or relief. The facts on
which he seeks to rely for the relief that he now seeks would appropriately be set out in
such further or supplementary affidavit s as would be permitted, to which the first and
second respondents would have an opportunity to respond.
[38] All of this is apart from the fact that the relief that is delineated in the notice of set
down seems inchoate to the extent that the interest and investment returns that the
applicant seeks on the withheld amount have not been quantified. In fact, the app licant
makes no assertion that such interest and investment returns have , based on one or
more grounds, actually accrued . He merely asks, without more, that this Court makes
an order for the payment of the withheld amount together with “investment returns and
interest, if any, that may have accrued”.
[39] I turn to deal with Mr Manana ’s submission that I am entitled to grant the
applicant the relief he now seeks as ‘further or alternative relief’. It is trite law that for a
party to be entitled to an order in terms other than those set out in the notice of motion
or summons or declaration in the case of action proceedings, such an order must be
clearly indicated in the founding affidavit (or in the pleadings) and it must be establishe d
by satisfactory evidence on the papers .9
[40] As Tindall JA10 once said (in the context of a review of action proceedings ),
asking for such other relief as the court may deem best for the plaintiff is of such effect
that every right to which the plaintiff may in any way be entitled upon the allegations in
9 Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) at 112D.
10 Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 .
his claim, is thereby considered to be included in the prayer.11 This principle holds true
in application proceedings.
[41] The difficulty I have with the submission made by Mr Manana is that there is no
notice of motion and supplementary papers before me and therefore no proper factual
basis for the relief that the applicant persists with.
[42] I note that in his replying affidavit, the applicant cursorily deals with his
entitlement to the payment of the withheld amount “with such interest and investment
returns as may have accrued”. I have already mentioned that nothing further is alleged
by the applicant as the basis for his entitlement to such r elief. It must be emphasized
that it is not in the replying affidavit that a party makes out his/her case. It is i n the
founding affidavit that an applicant is expected to disclose facts that would make out a
case for the relief sought and sufficiently inform the other party of the case it is required
to meet.12 Furthermore, i t is to the founding affidavit that the judge will look to determine
what the complaint of a litigant is.13
[43] The applicant had a period of nearly two years to properly prosecute the relief
that remained after the order of Majiki J. While I agree with Mr Manana ’s submission
that the new relief came about as a result of the court order, this did not exonerate the
applicant from the duty to afford the respondents an opportunity to fully deal with it.
[44] As regards the second respondent, in as much as it may be accepted that it has
chosen not to oppose this application from the beginning , the applicant was bound by
the Rules of this Court to notify it of the date on which the application was to be heard.
Assuming that the applicant moved from the premise that the second respondent is an
organ of state,, then, he was bound by Rule 23 (m) of the Eastern Cape Practice
Directives (the Joint Rules of Practice). In terms of this joint rule, in all cases in which
11 Id at 286.
12 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and
Others 1999 (2) SA 279 (T) at 323F – 324J.
13 Director of Hospital Services v Mistry 1979(1) SA 626 at 635H – 636A.
judgment by default is soug ht against the State (which will include applications where
the State has failed to timeously file either a notice of opposition or its opposing papers)
a notice of set down is to be served on the State Attorney at least five days prior to the
hearing.
[45] On a proper reading of the papers and documents filed of record, the notice to
oppose the application was filed by the Office of the State Attorney only in respect of the
1st respondent and it was signed by a legal representative from that office in his/her
capacity as ‘the respondent’s ’ attorney. Even though the second respondent was
properly served with the notice of motion and founding papers upon its Legal Clerk at its
offices in Pre toria, t he notice of set down in which the applicant sets out the new relief,
is directed to the Registrar of this Court and the Office of the State Attorney as
‘Attorneys for the first respondent ’. It makes no mention of the second respondent. Not
only was the second respondent not informed of the date of hearing of 29 August 2023,
but it was also not informed of the new or ‘evolved cause of action ’.
[46] Furthermore, it is not readily discernible that the second respondent was
informed of the further date of hearing of 22 August 2023. The notice dated 03 July
2024 by which the matter was set down for hearing before me on 22 August 2024,
though served on the Office of the State Attorney, makes no mention of the second
respondent. On the face of it, it is directed to the Registrar of this Court and the Office of
the State Attorney as “the defendant’s attorneys.” Even assuming that reference to “the
defendant” was an error on the drafter of the notice of set down, it is still unclear
whether such r eference would be to the “respondents” in plural or a particular
respondent. Taken as it is, the notice of set down relates to one opposing party.
[47] If I were to accept the invitation by Mr Manana and grant the relief that the
applicant has set out in the so -called notice of set down , floodgates would be opened,
and the fundamental rules of procedure in applications such as the present would be
adulterated . Mr Manana ’s invitation must therefore be declined.
Costs
[48] When this matter appeared before Majiki J on 25 October 2022, the question of
costs was reserved for determination by the court that would hear the application. The
order I make below is not dispositive of the application on the merits . Therefore, it is not
necessary to make an order regarding the costs that were reserved on 25 October
2022.
[49] This fact notwithstanding, Mr Mapekula submitted that since the applicant
persisted with a relief that was not properly brought before Court, this Court ought to
show its disapproval of the applicant ’s flagrant disregard of the Rules of Court to the
extent set out in this judgment , by making an adverse cost order against him. There is
merit in the submission made by Mr Mapekula in this regard.
[50] In the result, I make the following order:
1. The application is struck from the roll , with costs. Such costs will exclude the
costs reserved on 25 October 2022.
__________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the applicant : Adv MC Manana
Instructed by: T. NDALA ATTORNEYS
c/o 43 Wesley Street
MTHATHA
Counsel for the first respondent : Adv. SST Mapekula
Instructed by: THE OFFICE OF THE STATE ATTORNEY
94 Sisson Street, Old Broadcast House
Fortgale
MTHATHA
Date heard : 22 August 2024
Date delivered : 18 February 2025