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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 11 September 2015

CASE NO: 28064/14

In the matter between:

LONG BEACH HOME OWNERS ASSOCIATION                                                       Applicant

and

GREAT KEI MUNICIPALITY, AMATHOLE DISTRICT,

EASTERN CAPE                                                                                             First Respondent

SURVEYOR GENERAL FOR

THE PROVINCE OF THE EASTERN CAPE                                              Second Respondent

REGISTRAR OF DEEDS FOR

THE PROVINCE OF THE EASTERN CAPE                                                  Third Respondent

DEPARTMENT OF ECONOMIC DEVELOPMENT

ENVIRONMENTAL AFFAIRS AND TOURISM

(PROVINCE OF THE EASTERN CAPE)                                                     Fourth Respondent

MEMBER OF THE EXECUTIVE COUNCIL FOR

ECONOMIC DEVELOPMENT, ENVIRONMENTAL AFFAIRS

AND TOURISM (PROVINCE OF THE EASTERN CAPE)                               Fifth Respondent

DEPARTMENT OF AGRICULTURE, FORESTRY AND

FISHERIES (REPUBLIC OF SOUTH AFRICA)                                              Sixth Respondent

MINISTER OF AGRICULTURE, FORESTRY AND FISHERIES                 Seventh Respondent

G SMULDERS                                                                                              Eighth Respondent

EJ HARRIS                                                                                                     Ninth Respondent

T THOMAS                                                                                                     Tenth Respondent

M DENISON                                                                                              Eleventh Respondent

MINISTER OF WATER AND ENVIRONMENTAL AFFAIRS                       Twelfth Respondent

JUDGMENT

MURPHY J

1.         The fourth and fifth respondents sought an order, by way of an interlocutory application in terms of rule 30(1), striking out the applicant’s supplementary replying affidavit as an irregular step. On 9 September 2015, after hearing argument, I handed down the following orders:

i)          The application in terms of rule 30 is dismissed with costs on the scale of attorney and own client.

ii)         It is directed that the applicant’s application for leave to file a supplementary replying affidavit shall be heard together with the main application, and that the supplementary affidavit and application for leave shall be bound in the record of the main application.

What follows are my reasons for making the orders.

2. The fourth respondent is the Department of Economic Development, Environmental Affairs and Tourism of the Eastern Cape (“the Department”). The fifth respondent is the Member of the Executive Council (“the MEC”) for the Department. I will refer to the fourth and fifth respondents collectively as the Department. The applicant is the Long Beach Homeowners Association. I will refer to it as the Homeowners Association.

3. The principal dispute in the main application, which has been set down for hearing in January 2016 in the third court, is a challenge by the Homeowners Association to an appeal decision of the MEC. The Homeowners Association seeks to have the decision of the MEC reviewed, set aside and substituted by a decision of the court granting the Homeowners Association authorisation for a development in the Eastern Cape. The Department is opposing the application on the grounds that the decision of the MEC refusing authorisation is rational and based upon relevant and appropriate environmental considerations and principles.

4. The issue before me was a narrow and relatively straightforward one.

5. The Department contended that the Homeowners Association took an irregular step by filing and binding into the record a supplementary replying affidavit without first obtaining the permission of the court before doing so. As stated, it sought an order setting aside   the alleged irregular step and the striking of the supplementary replying affidavit from the record.

6. The Homeowners Association in its heads of argument furnished a comprehensive explanation for its decision to file a supplementary replying affidavit, which I discuss more fully later in this judgment. The explanation was foreshadowed by various averments in the replying affidavit.

7. The Homeowners Association was obliged to file its replying affidavit, and did so, by 18 December 2014. However, because of the intervention of the holiday season, it was unable to include in the replying affidavit all the information it needed to offer in reply to the averments in the answering affidavit. Accordingly, in paragraph 6  of the replying affidavit, it reserved its rights to file a supplementary replying affidavit as follows:

“It is important for me to stress to the Court that our lawyers advised us to file replying affidavits on time, i.e. in December 2014 and to reserve our right to supplement those replying affidavits to the extent that not all of the information needed for the replying affidavits was available to us in December 2014. I accept that although we have reserved our right to supplement the replying affidavit, the decision as to whether a supplementary affidavit is admissible or not ultimately rests with the court. I have therefore been advised to bring a formal substantive application in which an order is sought that the supplementary affidavit be admissible.”

8. On 12 March 2015 the Homeowners Association filed the supplementary replying affidavit together with an application for leave to file further affidavits in terms of rule 6(5)(e), which application it set down to be heard simultaneously with the hearing of the main application.

9. Rule 6(5)(e), in addition to setting the time period for filing a replying affidavit in application proceedings, provides that “the court may in its discretion permit the filing of further affidavits”.

10. By notice dated 31 March 2015, the Department filed its notice of intention to oppose the Homeowners Assocition’s application to file supplementary replying affidavits.

11. On 1 April 2015 the Homeowners served the indices of the main application from which it is apparent that it had bound into the record not only its application for leave to file the supplementary replying affidavits but also the supplementary replying affidavits themselves.

12. On 20 April 2015 the Department served upon the attorneys of the Homeowners Association a notice in terms of rule 30(2)(b) affording it an opportunity to remove the cause of complaint wihtin 10 days. The notice noted that the applicant had given notice in the replying affidavit of its intention to file a supplementary replying affidavit at a later stage, and complained that the applicant did not seek the consent of the respondents for an extension of time limits before delivery of the replying affidavit or for consent to file two sets of replying affidavits. Nor did the applicant make application for the extension of the time limits in terms of rule 27. The nub of the Department’s objection is spelt out in paragraphs 8-11 of the notice which read as follows:

“8. Notwithstanding the fact that the Applicants have not been granted leave to file such further affidavits by this Honourable Court, the Applicants have on 1 April 2015 served the main index and indices to each volume from which it is apparent that the Applicant has bound into the record not only its application for leave to file further documents, but also the so-called “Supplementary Replying Affidavits”, contrary to Rule 6(5)(e).

9. The Registrar has no authority to allow the filing of the further affidavits, because the leave of the Court must first be obtained.

10. This step of the Applicant, to simply file the papers and to incorporate same in the record,   is irregular.

11. Not only does the step reflect disrespect for the above Honourable Court and amount to an abuse of court process, the Respondents are prejudiced by the approach adopted by the Applicants in that new and objectionable evidence contained in the Supplementary Replying affidavits is put before Court asa part of the record, to which the Respondents are unable to respond.”

When the Homeowners Association did not comply with the request, the Department delivered its application in terms of rule 30(1) on 7 May 2015.

13. The Department’s application falls to be dismissed on the ground that the conditions precedent for a valid application in terms of rule 30 are not present. Rule 30(2)(a) provides that an application may be made under rule 30(1) only where the applicant has not itself taken a further step in the cause with the knowledge of the irregularity.

14. When the Homeowners Association set out its intention to file a supplementary replying affidavit in its replying affidavit, the Department responded by way of a letter dated 10 February 2015 that it objected to the intended filing of the supplementary replying affidavit.

15. After the Homeowners Association filed the supplementary replying affidavit and the concomitant application for leave on 12 March 2015, the Department, on 31 March 2015, filed its notice to oppose the filing and the application. It did that three weeks before delivering its notice in terms of rule 30(2). It accordingly took a further step in the cause (the filing of the notice of opposition) with knowledge of the irregularity.  

16. There was some attempt to argue that the binding into the record and inclusion in the index of the supplementary replying affidavit and the application for leave on 1 April 2015 (rather than the filing on 12 March 2015) was in fact the irregular step, which occurred after the Department filed its notice of opposition on the previous day. The argument is disingenuous and formalistic. The Department wanted more than the removal of the supplementary replying affidavit from the index and paginated record. A proper reading of paragraphs 8-11 of the notice indicates that the Department wants the supplementary replying affidavit to be struck from the record and particularly to deny the Homeowners Association the opportunity to seek leave for the filing of it at the time the main application is argued. It objects not only to the binding of the papers into the record, but to the filing and the set down of the application on the same date as the main application. Consequently, the  step to which the Department objected took place on 12 March 2015, and by filing its notice of opposition when it did, on 31 March 2015 the Department took a further step with knowledge of the irregularity. It is accordingly precluded from making this application, and the court has no jurisdiction to rule on the application for want of compliance with the jurisdictional facts. That then is the end of the matter and the application in terms of rule 30(1) should be dismissed on that ground alone.

17. But whichever way one might frame and characterise the alleged irregular step, and the relief sought in relation to it, the application is without merit and would have been dismissed in any event had the jurisdictional pre-conditions been fulfilled. The allegations of irregularity comprise, in my view, formalistic and technical point taking of poor order. And, quite frankly, the application is a waste of taxpayers’ money. It therefore may be of some value to set out my reasons for holding that view.

18. If the sole purpose of this proceeding was for the additional papers to be removed from the paginated bundle and for the index to be amended, as the Department would have   it, the application would be a pedantic exercise, in that all that is being asked for is the   construction of a seperate documentary record for the application for leave to admit the affidavits. There are no evident advantages in that; or certainly not such as to justify a full blown interlocutory application to achieve it. The true purpose of the exercise though, as I have said, is to have the supplementary replying affidavit struck out and to compel the Homeowners Association to bring an application for leave under rule 6(5)(e) prior to the hearing of the main application. While that too may prove a wasteful and costly exercise, there is at least a modicum of legitimacy to the argument.

19. In the replying affidavit the Homeowners Association set out in lucid and comprehensive detail why it could not address three issues raised in the answering affidavits. The first relates to the number of trees that will be affected by the development. The sixth respondent, the Department of Agriculture, Forestry and Fisheries (“DAFF”), appears to have raised legitimate environmental concerns in that regard. The Homeowners Association believes that DAFF may have misunderstood the exact scope and extent of the development and states that only a few trees will be affected. The DAFF is worried that far more are involved.

20. In the replying affidavit, the Homeowners Association explained that the architectual plans of the relevant owner, the eco-architect and the owner himself, were not available over the holiday season to provide the pertinent information in relation to the affected trees. It disclosed that both persons and the documentation would be available in the new year and more time was therefore required. The Homeowners Association also wanted to use the services of a land surveyor who could provide a fuller and more accurate picture, but could do so only in February 2015. 

21. The second issue was one raised by the Department regarding the authority of the   deponent to the founding affidavit. The deponent set out in the replying affidavit that he acquired authorisation by way of a telephonic round robin meeting of the members of the association. The meeting had to be conducted telephonically because many of the members had gone on holiday and were not physically available to meet. The members re-affirmed the deponent’s authority and he undertook to file a signed resolution ratifying his authority by way of the intended supplementary replying affidavit to be filed in the new year. 

22. The third issue related to the Department’s legitimate concerns about the severity of the impact of the development and the apprehension expressed by its experts in the answering affidavit about “dune slumping”. The Homeowners Association explained in the replying affidavit that it was difficult to get a specific expert report to counter the view of the Department’s experts at that time of the year and indicated that as it had to file a supplementary replying affidavit to deal with the other issues it would provide an expert report dealing with the question of dune instability then as well.

23. In its conclusions in reply, the Homeowners Association emphasised that it appreciated that sensitive environmental issues are at stake in the development. The point, however, is that a high level of skill, expertise and technical know-how is required to place the correct data before the court. The interests of justice, it submitted, would be better served by allowing it to put expert data before the court by means of a supplementary replying affidavit once it could reasonably acquire that evidence.

24. The Respondent’s first objection to the course of conduct proposed by the Homeowners Association, as appears from its rule 30 notice, was that the latter did not approach it for an extension of the time limits, nor did it request consent for the filing of supplementary papers. In its letter of 10 February 2015, it expressed the view that the Homeowners Association should launch a separate application, distinct from the main application, which it intended to oppose since no exceptional circumstances existed that warranted the filing of further affidavits.

25. The Department’s other objection though, as we have seen, is that it considers it irregular for the Homeowners Association to have incorporated the supplementary replying affidavit into the record for the purpose of arguing it together with the main application without first obtaining the prior leave of the court. Such it maintains reflects disrespect to the court, an abuse of process and hence an irregular step.

26. The Department bases its stance on case law authority, some of which is dated and others distinguishable from the facts of this case. In Transvaal Government v The Standerton Farmers’ Association 1906 TS 21, Innes CJ issued what was in effect a practice directive for this division. The report contains no discussion of the facts or issues which arose in the case. The court merely intimated that the proper practice in motions and applications, in 1906, was that after any affidavits in support of the application had been filed, the respondent should file his opposing affidavits, then the applicant his in reply. The court stated:

“No further affidavits should be received by the Registrar. If either party desires on good grounds to file further affidavits they should be tendered from the Bar. The convenient course would be to supply the opposite side with copies of any affidavits proposed to be so tendered.”

27. The general rule was affirmed in Joseph and Jeans v Spitz and Others 1931 WLD 48, but in that case Greenberg J was prepared to treat an affidavit that had been filed without leave of the court as if it had been tendered from the Bar and objected to by the opposing party. What this general practice achieved is that prior to the hearing of the main application the parties would be aware of the content of the additional affidavits by   the tendering party, but the judge would be in the dark until the main application was called in court. The further affidavits would then be handed up from the Bar together with a motion setting out good cause for their admission into evidence. This practice, the Department believes, should continue in the present day. The Homeowners Association takes the view that it is better for the judge to be furnished with the supplementary affidavit together with the application for leave to admit it prior to the calling of the application, so that he or she is not ambushed and will be in a better position to rule upon the admission of the additional affidavits at the hearing of the main application in light of the pleadings as a whole.

28. The other cases relied upon by the Department do not support the proposition that leave to admit a supplementary affidavit must always be sought prior to the hearing of the main application, before such affidavit can be bound into the record, or otherwise the affidavit must be handed up from the Bar. Hano Trading CC v JR209 Investments (Pty)   Ltd 2013 (1) SA 161 (SCA) says nothing in that regard, beyond making the point that the filing of supplementary affidavits must be with the leave of the court and will be admitted, or not, at its discretion. In Standard Bank of SA Ltd v Sewpersadh and Another 2005 (4) SA 148 (C) Dlodlo J refused to admit an affidavit where leave for its admission had not been sought by application nor served on the other party. The learned judge quite correctly held that it is insufficient to simply file an additional affidavit and put the same on the record in such circumstances. But those facts are distinguishable from those in the present case. Here the Homeowners Association did not try to slip an affidavit into the record. It gave notice of its intention to proceed in the manner it chose, informed the respondents and the court of its intention to file supplementary replying affidavits before it did so, indicated that it would seek leave in that regard and understood that the admission of the supplementary affidavit would be at the discretion of the court. It served both the affidavits and its application for leave on the respondents, tendered a full explanation and only then bound the documents into the record.

29. The key question raised by the Department is whether it is necessary for a party seeking such an indulgence to bring a separate application to be set down at a time   prior to the main application for prior determination, or whether it is permissible for the applications to be heard together. The simple answer is that it is a matter within the discretion of the court. It is trite that the court is the arbiter with the sole discretion to allow for the filing of further affidavits in terms of rule 6(5)(e). The rule does not explicity    indicate when the court must permit the filing of further affidavits, or that it should do so before they are placed on record. It no doubt can grant leave before the affidavits are filed. And, at first glance, I see no reason in principle why it cannot condone the filing of further affidavits subsequent to their being filed of record. The court “may in its discretion permit” the filing which will occur or which already has occurred. That   discretion must be exercised judicially in light of all the relevant circumstances. Some guidance is found in James Brown & Hamer (Pty) Ltd (Previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H where the Appellate Division stated:

“It is in the interests of the administration of justice that 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. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the court: he must both advance his explanation for why the affidavit it is out of time and satisfy the court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor desirable......It is sufficient for the purposes of this appeal to say that on any approach to the problem, the adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an important factor in the enquiry.”

Although these dicta say nothing about whether leave should be obtained from the court before filing, or otherwise the affidavits must be handed up from the Bar, the point is underscored that the court will always have a wide discretion in these matters. That   being the case, it cannot be considered irregular per se for the tendering party to file an application for leave together with the supplementary affidavit and to set the application for leave down with the main application in the hope of persuading the judge to exercise his or her discretion to grant leave for the affidavit to be admitted; especially if the affidavit in question is a replying affidavit to which the respondent ordinarily would not have a right to answer. Should such an affidavit introduce new or impermissible matter beyond the legitimate content of a replying affidavit, other remedies will be available to the respondent.

30. In the present case, the Homeowners Association did not file additional affidavits raising additional issues. The course followed by it has caused no prejudice to the Department. All the Homeowners Association has done is to divide its reply into two parts, the second part being delayed by a few months, but delivered almost a year before the main application is set down for hearing. The supplementary replying affidavits deal with issues arising in the answering affidavits which the Homeowners Association for practical reasons was unable to answer within the stipulated time frames. It basically needed more time to put information before the court. It gave notice that it intended to do that, it clearly explicated the issues and identified what precisely it proposed to do. This is not a case where it hoped by way of additional affidavits to raise additional issues not foreshadowed in the founding affidavit to which the Department would be denied a right to respond. The additional information in the supplementary replying affidavits is part of the replying affidavit which was supplied at a later date, on notice being given of its intended late filing, and for which late filing the Homeowners Association will seek condonation on good cause shown.

31. Litigants before this court proceed as the Homeowners Association has proceeded on a daily basis. The approach it followed is an accepted and long acknowledged practice in this division. A party does not need to seek the consent of other litigants to deliver a supplementary affidavit. It requires the leave of the court, which the court will grant or refuse in the proper exercise of its discretion. Arguing the application for leave to admit additional affidavits together with the main application is efficient and cost effective. In most instances it would be unduly technical and formalistic to file an application explaining why a party wishes to file additional affidavits and then later to tender those affidavits separately. It ordinarily will be better practice for the application for leave, filed together with the affidavits in question, to be heard with the main application in order to allow the court to make the decision in relation to the supplementary affidavits with a fully pleaded application before it. For that reason it is also accepted practice for the additional sets of affidavits themselves to set out the facts on which leave is sought. The Homeowners Association has acted in accordance with that practice. There may be instances though where the application for leave should be heard before the main application because good grounds exist to do that. It will depend on the facts and circumstances. But the choice of a party to follow the former course rather that the latter, or vice versa, will not constitute an irregularity.

32. I was accordingly not pursuaded that the Homeowners Association had taken an irregular step. But even were one to categorise it as such, this would not be a case in which the relief sought should be granted. Rule 30 gives the court the power to set aside an irregular step or to make any order as to it seems meet. In other words, it may condone an irregular step and give directions as to how the particular step should be dealt with. The court has a discretion and it is not intended that an irregular step should necessarily be set aside. The court is entitled to overlook in proper cases any irregularity especially where there is no evident substantial prejudice to the other party. The point has already been made that the Department will not suffer any prejudice. It is not in a worse position after receiving the supplementary replying affidavit in March 2015 than it would have been had it received the relevant information in December 2014. It has received proper replies to its answering affidavit, except in two parts rather than one, a year before the main application is set down. The Department has no right to deal with the averments whether in the reply or in the supplementary replying affidavit by way of an additional answering affidavit. It nonetheless is equally at liberty to seek an indulgence to do so if good grounds exist. There is no evidence that the late filing of the supplementary replying affidavit has delayed the set down of the main application or has impeded the Department in the preparation of its heads of argument in the main application. In short, the Department on face value is complaining about nothing and has spent a considerable sum of the taxpayers’ money doing it.

33. During the course of argument it became apparent that the real cause of concern for the Department is that it may itself want to file an additional affidavit in response to the supplementary replying affidavit. It believes that the supplementary affidavit raises new impermissible matter. Understandably then, it would like to know if the affidavit will be admitted. A ruling that the affidavit is not admissible will obviate the need to deal with it. There is no evidence before me permitting a conclusion or finding that the supplementary replying affidavit introduces anything new or puts up facts that ought not to be contained in a replying affidavit. But if it does, the best way to approach the matter is not by way of a rule 30 application aimed at striking out the affidavit because leave has not been sought prior to its filing. The correct thing to do would be to bring an application to strike out the affidavit or its offending averments on the ground that it contains impermissible matter. Alternatively, the respondents could approach the Deputy Judge President for a directive that the application for leave to file further affidavits be set down for hearing prior to the main application. Absent such, as I have said, the approach followed by the Homeowners Association is a pragmatic and convenient one, and in most cases will be the best way to proceed. While the affidavits   may technically have been “filed”, they will not be considered admitted until the leave of the court is granted; and a decision by the court to admit the affidavits will in effect retrospectively condone the filing and binding into the record in non-compliance with the strict letter of rule 6(5)(e), if that, on the basis that good cause was shown in the application for leave to file. The approach followed by the Homeowners Association, as I have said, is fairly standard practice in this division and is not an irregular step.

34. The Homeowners Association has prayed for a punitive costs order. There are two reasons why such an order should be granted. First of all, the papers in the rule 30 application are not in order. The Department filed a partial record of the main application consisting of about 400 pages of a total of more than 1500, excluding the notice of motion and the founding affidavit of that application. The heads of argument filed by counsel made reference to pages and affidavits not included in the part of the record furnished, thereby causing the court inconvenience in its preparation. The Department cannot complain about irregularity on the part of its opponent and then itself ignore the rules regarding the construction of the record and the form and contents of heads of argument to be filed.

35. More compellingly though, a punitive costs order is justified on account of the wasteful nature of this application. Government has a special duty not to litigate adversarially and not to take unmeritorious technical points of this kind. This application aims at preventing obviously relevant evidence from being placed before the court and the Department has spent considerable resources to do so. Both the President of the Republic and the Minister of Finance have recently called upon politicians and civil servants to observe greater prudence in incurring expenditure. Our country finds itself in economically constrained circumstances and it behoves all responsible functionaries to act to ensure that the public deficit is kept within acceptable limits. While no doubt the MEC has acted on advice, this court would respectfully urge the MEC to avoid ill-conceived litigation. There will come a time when the courts will have to consider awards of costs de bonis propriis against government functionaries who engage in wasteful litigation. Furthermore, not only is this application financially wasteful, it detracts from the merits of the Department’s case. It creates the impression that the   Department is acting tactically to avoid full ventilation of the evidence in the main application, giving rise, unjustifiably perhaps, to a cascading inference that the Department has a weak case. That obviously is strategically imprudent in instances when the Department might indeed have a good case. Still, this ill-conceived application has put the Homeowners Association to unnecessary expense and it is entitled for that reason to recover a greater share of its costs.

36. For the aforegoing reasons I issued the order of 9 September 2015 set out in paragraph 1 above.

MURPHY J

JUDGE OF THE HIGH COURT

 

Heard On: 9 September 2015

For the Applicant: Adv K Hopkins

Instructed By: Messrs BKM Attorneys

For the Respondents: Adv F Petersen

Instructed By: State Attorney, East London

Date of Judgment (Reasons): 11 September 2015

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