[14]
Obviously, neither Mr Kamwi’s concession in regard to having taken further steps in the matter
nor the alleged lack of prejudice suffered by the applicant is derived from the papers filed in the matter, not even from the respondent’s
own heads of argument. What is more is that the bold argument that the applicant has not been prejudiced lacks amplification and
substance. In any event, it is submitted by Mr Mokhatu that the applicant has suffered (and continues to suffer) a financial prejudice
and hence it has an interest to have the main action finalized without having to wait for an uncertain event to occur. Moreover,
nowhere does the respondent refute the applicant’s argument that when the respondent took its first further step on August
1, 2007, by filing a request for further particulars, it did so with full knowledge of the applicant’s alleged irregularity.
It is common cause that the respondent’s initial Rule 30 application was launched on April 10, 2008, a period of about eight
months and nine day’s from the time that the first further step was taken. This is a violation of Rule 30(1) where a party
to a cause in which an irregular step or proceeding has been taken by any other party may, within fifteen days after becoming aware
of the irregularity, apply to Court to set aside the step or proceeding. This would obviously be after the expiry of the ten-day
period of notice to remove the irregularity in terms of section 30(5). There is here not even an application by the respondent for
condonation of its non-compliance with Rule 30(1). Clearly, the non-observance of Rule 30 makes the respondent’s application
of April 10 an irregular proceeding.
[15]
A further argument proffered by Mr Mokhatu is that, unlike the applicant’s Rule 30 application,
the respondent’s similar application was not in conformity with the provisions of Rule 30(5) as it failed to afford the applicant
an opportunity to remove the alleged irregularity within the prescribed time limit of ten days. It is, therefore, contended that
the respondent’s Rule 30 application of April 10, is defective because of failure to observe subrule (5). Mr Mokhatu cites
the cases of Gauiseb v Minister of Home Affairs 1996 NR 90 and v Malama-Keen 2008 NR 11 at 13f–g for purposes of comparison.
[16]
It seems obvious to me that Mr Mokhatu’s submission rests on Gauiseb’scase, There is, however, a sharp contrast between that case, which had to do with Rule 23(1), and the present case which relates to Rule
30(5). The contrast is readily discernible in that the proviso to Rule 23(1) is couched in peremptory terms whereas Rule 30(5) is
not. In terms of subrule (5), a party that invokes Rule 30 against another party should give notice to his opponent to afford him
an opportunity to remove the cause of complaint within ten days of becoming aware of the irregularity. Although the subrule is not
peremptory, it should, nevertheless be complied with for the reason that non-compliance will, in the ordinary course, result in an
award of costs against the defaulting party and probably a dismissal of the application. One of the purposes of the subrule is to
prevent unnecessary applications being brought and to put a defaulting party on notice as to the consequences of his default. See:
and Others v Fhirer & Son 1982 (3) SA 353 at 361A–B. In an appropriate case, however, the court can condone non-compliance with the requirement. See: ’scase, at 360G – 361B. Anyhow, in the question of condoning the respondent’s non-compliance with subrule (5) of Rule 30 does not arise in the absence of an application
for condonation.
[17]
The final issue for consideration is the respondent’s second Rule 30 application for an order that
the applicant’s application aforesaid is an irregular proceeding which falls to be set aside. This application, which has seemingly
been brought out of a lack of appreciation of the full import of Rule 30, is also irregular, unnecessary and utterly misconceived.
It is wholly uncalled for, and even vexatious, for a party to launch a multiplicity of similar interlocutory applications before
the first one is ventilated and disposed of. In any event, the findings pertaining to the respondent’s first application are
equally applicable to the second one. Consequently, the respondent will be unable to escape the consequences of its conduct.
[18]
Under the circumstances, the following order is made:
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