CASE NO. 10/2003

IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

G MAYET, THE HEAD OF THE DEPARTMENT OF
SOCIAL SERVICES, ARTS, CULTURE AND SPORT FOR	1ST APPLICANT
THE NORTH WEST PROVINCE			(1st Third Party/2nd Defendant)

MLE MOTLHABEDI, THE DEPUTY DIRECTOR OF THE	2ND APPLICANT
RESPONDENT			(2nd Third Party/3rd Defendant)

MEC FOR SOCIAL SERVICES, ARTS, CULTURE		3RD APPLICANT
& SPORTS FOR THE NORTH WEST PROVINCE		(Defendant/1st Defendant)

and

SUNLYN INVESTMENTS (PTY) LTD		RESPONDENT
										(Plaintiff/Applicant)

______________________________________________________________________
REASONS FOR JUDGMENT
______________________________________________________________________

MOGOENG  JP.

[1]	This matter came before me on 01 December 2005.  After listening to counsels’ submissions, I made the following order:
“a)	The application for a postponement is refused with costs;
  b)	The first and second Applicants’ application for condonation for the late launching of the Rule 30 application is refused;
  c)	The application for the setting aside of the Rule 13 Notice is dismissed; and
  d)	The first and second Applicants are to pay the Respondent’s costs on an attorney and own client scale.”

[2]	The first Applicant is Mr G. Mayet, the Head of the Department of Social Services, Arts, Culture and Sport for the North West Province.  He has been joined as the second Defendant in the main action and is sued in his personal capacity.  The second Applicant is Mr Motlhabedi, a Deputy Director in the abovementioned Department.  He has been joined as the third Defendant in the main action and is also sued in his personal capacity.  The third Applicant is the Member of the Executive Council (“MEC”) responsible for the abovementioned Department and is the first Defendant in the main action.  No relief is sought against the MEC in this application.  She was cited merely as an interested party.  The Respondent is Sunlyn Investments (Pty) Ltd, a company duly incorporated in terms of the company laws of the Republic of South Africa, and is the Plaintiff in the main action.  For the sake of convenience, I will refer to the parties as they are in the present proceedings, that is Messrs Mayet and Motlhabedi and the MEC will be referred to as the first, second and third Applicants respectively, and Sunlyn Investments (Pty) Ltd as the Respondent.

[3]	The Respondent has instituted action against the third Applicant in which it claims two payments.  The first is for the rental allegedly owed for the communication equipments leased to the third Applicant by the Respondent.  The second payment relates to the amount which the Respondent paid to the supplier for the aforementioned equipments.  The Respondent alleges, in the main action, that it entered into a rental agreement with the second Applicant as a duly authorised representative of the third Applicant’s Department.  It further alleges that the first Applicant approved a resolution regarding the rental of the equipment.  The third Applicant denies the allegation that the second Applicant was duly authorised to bind her Department contractually.

[4]	In consequence of the third Applicant’s denial, and since the pleadings had already closed, the Respondent filed a notice of intention to apply for leave to serve a third party notice in terms of Rule 13(1)(b) on the first and second Applicants.  This notice was served on both the first and second Applicants personally on 28 July 2004.  They were required to file a notice of intention to oppose, if they so desired, on or before 14 September 2004.  They failed to do so.  On 23 September 2004, the Respondent moved the application for leave to serve the Rule 13(1)(b) notice.  The application was granted by Mogagabe AJ on the same date.  The granting of the application meant that the first and second Applicants were now joined as Defendants in the main action.  The Respondent sues them in their personal capacities for the alleged fraudulent misrepresentations that the Respondent acted upon to its detriment, by concluding the rental agreement with the third Applicant and by performing in accordance with its terms.

[5]	On 10 March 2005, the first and second Applicants served the Rule 30(2)(b) notice on the Respondent.  They in essence alleged that the Respondent was not entitled to issue a third Party notice on them, which it served on them on 01 December 2004, and that the Respondent had taken an irregular step and therefore requested the Respondent to remove the cause of complaint.  The Respondent refused to comply with the request.  The first and second Applicants threatened to apply to Court for the setting aside of the alleged irregular step.  The Respondent informed the Applicants that it would oppose the application.  The first and second Applicants failed to comply with Rule 30(2)(b).  They only delivered their application on 22 June 2005, which is more than two months after the expiry of the period within which they ought to have launched their application as stipulated by Rule 30(2)(b).  Thereafter they made no apparent effort to set the matter down.

[6]	On 07 November 2005 the Respondent took it upon itself to set the matter down for hearing on 01 December 2005.  The notice of set down was received by the first and second Applicants’ attorneys’ office on 08 November 2005, which is more than three weeks prior to the date of hearing.

[7]	On the date of hearing, Dr Senatle appeared on behalf of the first and second Applicants and Mr Nigrini appeared on behalf of the Respondent.  Dr Senatle was only briefed to move the application for postponement.  In support of his submission, he relied on the affidavit of Ms Dineo Matsheka, the first and second Applicants’ attorney, in which she states that she was in Potchefstroom on 08 and 09 November 2005 when the notice of set down was served on her office.  She further states that their receptionist mistakenly put the notice on the pigeon-hole of her colleague with a similar surname (Matsheke) instead of her own.  That colleague was on study leave for three weeks.  The set down only came to the attention of Ms Dineo Matsheka on 28 November 2005.  She immediately telephoned her counsel, Advocate Matjila of the Pretoria Bar, who informed her on 29 November 2005 that he would not be available on the date of hearing due to other Court commitments.  She then telephoned the Respondent’s attorney and  tried to solicit an agreement to a postponement of the matter and tendered the costs of the postponement.  Her request was rejected and the Respondent’s attorney suggested that she rather make a substantive application for postponement.

[8]	It is trite law that a litigant has no right to a postponement.  An Applicant for postponement seeks an indulgence from the Court.  He or she must satisfy the Court that it should grant him or her, such indulgence.  He or she must fully explain the true reason for his or her non-preparedness.  (See  1974 (2) SA 409 (C) at 411H;   2000 (4) SA 110 (CC).)

[9]	I do not find the above explanation to be satisfactory.  Common sense dictates that the remaining attorneys in the State Attorney’s office would have regularly checked Matsheke’s pigeon-hole while she was on leave for three weeks to ensure that her matters, which required immediate attention were dealt with timeously.  The notice of set down in this matter would then have come to their attention and they would have passed it onto the right person.  Failure to do so smacks of some dereliction of duty by the office as a whole.  I reject the above explanation which suggests that there are no systems in place in the State Attorney’s office to ensure that urgent matters are given the necessary attention in the absence of the attorney in charge of the particular matter.  Not only did the first and second Applicant fail, for a long time, to enrol their own application, even after the Respondent had taken the initiative to enrol it, they still did not prepare for the hearing by briefing counsel to argue the matter.  They only briefed him to apply for a postponement as if it was there for the asking.  Their overall handling of the matter is very unsatisfactory.

[10]	Even on the assumption that the set down was received by Ms D. Matsheka as late as is alleged, I do not believe that Advocate Matjila is the only counsel who could argue the matter properly.  The matter is not complicated and could have been   competently handled by any other available counsel.  The attorney for the first and second Applicant has not said that she made any attempts to brief another counsel but was not successful.  If she could brief Dr Senatle to argue the application for a postponement, she could as well have briefed him to argue the merits.  In case Dr Senatle’s commitments did not allow him to prepare properly so as to be able to represent the Applicants, no reason was advanced as to why any other counsel was not briefed to deal with the application that was launched by the Applicants themselves.  For these reasons, I dismissed the application for postponement.

[11]	After the dismissal of the application for postponement, Dr Senatle withdrew from the matter since his mandate had come to an end.  Mr Nigrini then addressed the Court on the merits of the Rule 30 application.  He first dealt with the Applicants’ application for condonation.  The second issue he addressed was whether the action taken by a litigant in compliance with a valid Court order may in law, be relied on for a Rule 30 application on the grounds that the compliant action is an irregular step?

[12]	The first and second Applicants have included a prayer for condonation in their notice of motion.  This application is necessary since their Rule 30 application is more than two months late.  However, nowhere in their affidavits do they state the reasons why their application was not delivered timeously as required by Rule 30(2)(c).  Here, too, the first and second Applicants are seeking an indulgence from the Court.  It is their duty to satisfy the Court that good or sufficient cause exists on the strength of which their non-observance of the provisions of Rule 30(2)(c) should be condoned.  As Steyn CJ held in  1965 (2) SA 135 (A) at 138E:

“.  .  . condonation of the non-observance of the Rules of this Court is by no means a mere formality.  It is for the applicant to satisfy this Court that there is sufficient cause for excusing him from compliance .  .  .”

	The Court was not given any reason for condoning the first and second Applicants’ non-compliance with the Rules.  The absence of any explanation indicates that there is no good cause for excusing their non-compliance with the Rules.

[13]	I now turn to the issue of whether the first and second Applicants can validly contend that the Respondent took an irregular step where judgment has already been granted regarding the issue which constitutes the basis for the alleged irregular step.  In  1981 (4) SA 329 (O) the Court held (at 333G-H) that the object of Rule 30 “is to provide a procedure whereby a hindrance to the future conduct of the litigation, whether created by non-observance of what the rules of Court intended or otherwise, is removed”. 

[14]	It is apparent from this observation that a hindrance to the future conduct of litigation must be removed before judgment is granted.  In the present matter judgment authorising the step taken had already been granted when the notice was served.  The Respondent no longer has the power, assuming that what he did amounts to an irregular step, to remove the perceived hindrance.  Only the Court has the power to remove the ‘hindrance’ upon application for rescission of judgment by the first and second Applicants.  No such application has been made.  Consequently, the Court order granting leave to serve the third party notice on the first and second Applicants stands.  Only this Court, and not the Respondent, can set aside that order which authorises the third party notice.  I am satisfied that the application in terms of Rule 30 is devoid of substance and must, therefore, be dismissed.

[15]	I now turn to the issue of costs.  The Respondent has asked that an order for costs be made against the first and second Applicants on an attorney and client scale.  It has been held that an order of costs on the scale as between attorney and client is an unusual and punitive order and one that should only be made in extreme cases (See  1965 (3) SA 131 (E) at 137A-B).  A Court grants the order to mark its disapproval of a litigant’s gross non-compliance with the rules of Court.  The conduct of the first and second Applicants constitutes a flagrant disregard for the Rules of this Court.  It is the duty of this Court to ensure that its Rules are observed by litigants.  The first and second Applicants delayed for more than two months before launching their Rule 30 application.  No explanation was advanced for the delay.  A simple reading of Rule 30 in conjunction with the Court order should have made it clear to the Applicants that acting in terms of an existing Court order cannot amount to taking an irregular step.  It is absurd to suggest otherwise.  For these reasons I granted an order of costs on the scale as between attorney and clients against the first and second Applicants.

__________________
M.T.R.  MOGOENG
JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING    			:  01 DECEMBER 2005
DATE OF JUDGMENT						:  30 MARCH 2006

COUNSEL FOR APPLICANTS	    	:  DR SENATLE
COUNSEL FOR RESPONDENT			:  ADV  D.K. NIGRINI

ATTORNEYS FOR APPLICANTS		:  THE STATE ATTORNEY
ATTORNEYS FOR RESPONDENT			:  SMIT STANTON INC.