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[2004] ZACC 26
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Dudley v City of Cape Town and Another (CCT 5/04) [2004] ZACC 26; - (15 June 2004)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
5/04
LILIAN
DUDLEY Applicant
versus
THE CITY
OF CAPE TOWN First Respondent
IVAN
TOMS Second Respondent
Decided
on : 15 June 2004
________________________________________________________________________________
JUDGMENT
________________________________________________________________________________
THE
COURT:
[1] A
few minutes before judgment was due to be delivered in this matter,
the Court received documents from the City of Cape Town,
the
respondent herein, stating that its opposing affidavit, copy of which
was attached, had been lodged with the Court on 27 February
2004 by
telefax transmission. As a result of these developments, when the
matter was called in Court, it was stood down to enable
the Court to
consider the opposing affidavit.
[2]
Apart from opposing the grant of leave to appeal, the respondent in
its opposing affidavit sought an order for costs. Having
considered
the opposing affidavit we were satisfied that there was no reason to
alter the order that we had proposed to make. The
Court accordingly
made an order refusing leave to appeal and made no order as to costs.
These are the supplementary reasons for
the order made.
[3] On
their face the documents filed by the respondent indicate that the
opposing affidavit was sent by telefax transmission to
the office of
the Registrar on 27 January 2004. Enquiries to the office of the
Registrar, however, revealed no record of receiving
the opposing
affidavit. The opposing affidavit appears to have been sent at the
time when the Court was moving to the new premises.
There is also no
record of the original opposing affidavit having been lodged with the
office of the Registrar. Nor does the respondent
say that it
subsequently lodged the hard copy of the opposing affidavit with the
Registrar. As a result, the opposing affidavit
was not brought to the
attention of the Court until a few minutes before it was due to
deliver judgment.
[4]
The lodging of the documents by telefax transmission is governed by
Rule 1(4) of the Rules of this Court which provides:
“
Notices, directions or other communications in
terms of these rules may be given or
made by registered post or by facsimile or other
electronic copy: Provided that, if a
notice or other communication is given by electronic
copy, the party giving such
notice or communication shall forthwith lodge with the
Registrar a hard copy of the
notice or communication, with a certificate signed by
such a party verifying the date
of such communication or notice.”
[5] It
is plain from this rule that the respondent was required to lodge
with the Registrar a hard copy of the opposing affidavit.
The
importance of the proviso needs to be stressed. The purpose of the
proviso is to ensure that if the documents sent by facsimile
do not
reach the Court for any reason, at least there is a hard copy in the
Court file bearing the date stamp of the Court reflecting
the date on
which it was received. There is no indication in the letter by the
respondent’s attorneys that they lodged the
hard copy as
required by the proviso.
[6] In
addition, there was no compliance with Rule 1(3) which provides:
“
Any reference in these rules to a party having to
sign documents shall be construed
as including a reference to a legal representative
representing such party, and a
reference to lodging documents with the Registrar as
including prior service of such
documents on other parties and the lodging of 25 copies
of all relevant documents
and an electronic version thereof that is compatible
with the software used by the
Court, with the Registrar.”
This
sub-rule requires the party to lodge 25 copies of the documents to
enable all judges to have access to documents when lodged.
This was
also not done. So even if the opposing affidavit was sent by telefax
transmission, it was not lodged with the Court.
[7]
Thus, it is clear from these rules that the sending of a document by
telefax transmission does not relieve the party of the
obligation to
lodge hard copies of the document concerned. In these circumstances
there was no compliance with the rules of this
Court.
[8]
In any event, the Court was and remains satisfied that this is not an
appropriate case to award costs against the applicant.
The applicant
is an individual who is seeking to vindicate her rights. She raises
an important issue concerning the proper interpretation
of the
Employment Equity Act.
1
The decision on that issue may have an impact beyond the applicant.
In these circumstances it is undesirable to award costs against
the
applicant. Accordingly, the Court, refused to award costs against the
applicant.
Chaskalson
CJ, Langa DCJ, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J,
Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob J.
1
Act 55 of 1998.