IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)

							CASE NO: 1470/2014
							Date heard: 22 October 2015 
							Date delivered: 29 October 2015
NOT REPORTABLE

In the matter between

INTSIKA YETHU MUNICIPALITY		Applicant

and

THE MAGISTRATE, QUEENSTOWN
(Mrs. Van Papendorp N.O.)			First Respondent

VINCEMUS INVESTMENTS (PTY) LTD
t/a KEMPSTON TRUCK HIRE			Second Respondent

JUDGMENT

PLASKET J:

[1]	During the course of proceedings instituted by the second respondent, Vincemus Investment (Pty) Ltd trading as Kempston Truck Hire (Kempston) against the applicant, the Intsika Yethu Municipality (the municipality), the first respondent, the magistrate presiding in the matter, made an order which the municipality has applied to have reviewed and set aside.

[2]	Kempston had instituted a damages claim against the municipality arising from its letting of two trucks to the municipality. Because Kempston had not given notice of its claim timeously, in terms of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Proceedings Act), it brought an application for condonation in terms of s 3 of that Act.  

[3]	In response to this application, the municipality filed a notice to the effect that it intended arguing certain points of law – that Kempston had not established good cause for its failure to comply with the Proceedings Act and that it had also failed to comply with rule 55 of the Magistrates’ Courts Rules (the rules).
[4]	The magistrate then requested Kempston’s attorney to file a further affidavit in which the delays in bringing the application for condonation were to be explained.  This affidavit was duly filed and led to the municipality bringing an application in terms rule 60A of the rules to have the filing of the supplementary affidavit set aside as an irregular step.  

[5]	After this application was argued, the magistrate made an order in the following terms on 18 February 2014:
‘(a)	Court rules that the filing of the supplementary affidavit by the respondent in contravention of the prescribed procedure is an irregularity, but the court further rules that it condones non-compliance with the procedure to be in the interest of justice; and 
(b)	Court rules that the filing of the notice to raise points in limine by the applicant in today’s application on a previous date is also irregular, but the court further rules that that it condones non-compliance with the procedure and rules to be in the interest of justice; 
(c)	And court orders that the costs of these condonations and argument on the indulgence applications are costs in the cause.’

[6]	This order is the subject of this application. The municipality argues that, for various reasons, it ought to be reviewed and set aside on account of it amounting to a gross irregularity in the proceedings, as contemplated by s 22(c) of the Superior Courts Act 10 of 2013 or because the magistrate admitted inadmissible evidence or incompetent evidence, as contemplated by s 22(d) of the Act.

[7]	The municipality accordingly applies for orders: (a) that the magistrate’s order be reviewed and set aside; (b) that the rule 60A application be remitted to the court below and be heard by a magistrate other than the first respondent; and (c) that any respondent that opposes the application pay the municipality’s costs.

[8]	In my view, the application must succeed for the reasons that follow.

[9]	First, the magistrate, having found that the filing of the supplementary affidavit was an irregular step, purported to condone the irregularity. She had no power in terms of rule 60A(3) to grant condonation. See Kondlo v Eastern Cape Development Corporation ECM 27 February 2014 (case no. CA&R53/2013) unreported, paras 39-47. In any event, no application for condonation appears to have been made.

[10]	Secondly, it seems to me to be fundamentally unfair – and hence irregular – to allow a party to supplement its case once the other side has played its hand. This amounted to allowing Kempston to remedy the defects in its case once the municipality had pointed them out. The irregularity of allowing a party to lead further evidence to cure defects in its case after an application for absolution from the instance appears to me to be an apposite analogy. See in this regard, Standard Trading Co (1960) (Pty) Ltd v Lacey Knitting Mills Ltd 1972 (3) SA 392 (A) at 395B-E; Colman v Dunbar 1933 AD 141 at 162-163.

[11]	Thirdly, the magistrate’s function was to determine the application for condonation in terms of the Proceedings Act that had been brought by Kempston and opposed by the municipality when it filed its notice that it would argue legal points on Kemptston’s papers. It was not her function to call for new evidence that Kempston had not included in its application – to in effect direct Kempston to bring a more complete application than it chose to: Kempston had to stand or fall on its founding papers, certainly once the municipality had indicated its intention of arguing that good cause for condonation had not been established by Kemptston, and the magistrate had to decide the issue on those papers. See Fischer & another v Ramahlele & others 2014 (4) SA 614 (SCA), paras 13-15.

[12]	In the result, the order made by the magistrate on 18 February 2014 must be reviewed and set aside. While it will be apparent from what I have said above that I am of the view that the request for the affidavit in the circumstances of this case amounted to an irregularity, the relief sought is the setting aside of the order that found the filing of the affidavit to be an irregularity, but one that was to be condoned. The result is that, once the order is set aside, the rule 60A application for the filing of the affidavit to be set aside as an irregular step is still pending and has to be decided before the matter can proceed any further. In my view, fairness to all of the parties, including the first respondent, dictates that a magistrate other than the first respondent should hear the rule 60A application. 

[13]	The following order is made.
(a) The first respondent’s order dated 18 February 2014 is reviewed and set aside.
(b) The applicant’s application in terms of rule 60A of the Magistrate’s Court Rules is remitted to the Regional Court, Queenstown for hearing before a magistrate other than the first respondent.
(c) The second respondent is directed to pay the applicant’s costs of this application.

____________________
C Plasket
Judge of the High Court

I agree.

_____________________
G Bloem
Judge of the High Court

APPEARANCES
For the applicant: R Quinn SC instructed by Neville Borman and Botha
For the second respondent: S Cole instructed by Whitesides