IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2 (1) OF THE SPECIAL INVESTIGATIONS UNIT AND 
SPECIAL TRIBUNALS ACT 74 OF 1996

(REPUBLIC OF SOUTH AFRICA)
 CASE NUMBER: GP07/2021 
In the matter between:	
		
MLANGENI BROTHERS EVENTS CC 	 Applicant	
		
and
		
SPECIAL INVESTIGATING UNIT	First Respondent	
MEMBER OF THE EXECUTIVE COUNCIL: GAUTENG DEPARTMENT OF HEALTH	Second Respondent	

JUDGMENT

Mode of delivery: this judgment is handed down by sending it by email to the parties’ legal representatives and loading on Caselines. The date and time for delivery is deemed to be 11:30am on 7 December 2021.

MODIBA J: 

[1]	Mlangeni Brothers apply in terms of Uniform Rule 30A to compel the Gauteng Member of the Executive for Health (the MEC) to file a record in terms of Uniform Rule 53. 

[2]	The Rule 30A application arises in a review application instituted by the Special Investigation Unit (SIU), acting in its own right in terms of section 4(1)(c) of the Special Investigation Units and Special Tribunals Act 74 of 1996 against Mlangeni Brothers. In the review application, the SIU seeks an order reviewing and setting aside a contract the MEC awarded Mlangeni Brothers on 07 May 2020 for the supply of PPE items. It contends that the contract was unlawfully and irregularly awarded for want of compliance with the applicable constitutional, statutory and regulatory provisions. Mlangeni Brothers have filed a notice of intention to oppose. However, they are in default of filing their answering affidavit. 

[3]	The MEC is cited as a respondent in the review application. She is not opposing it. 

[4]	The MEC is also not opposing the Rule 30A application. She filed a notice to abide.

[5]	The SIU opposes the Rule 30A application. The SIU also contends that the review application is ripe for hearing on an unopposed basis. In the event that the Rule 30A application is dismissed, it is content with the review application being heard on the basis of the papers filed, without oral argument.  

[6]	Mlangeni Brothers contend that the MEC’s has failed to file a record in accordance with the procedure in Rule 53(3) and the document the SIU filed does not constitute a record as envisaged in Rule 53(1). Mlangeni Brothers further contend that the MEC’s failure to file a Rule 53 record is prejudicial to them as they are unable to file an answering affidavit to meet the SIU’s case against them.

[7]	The SIU contends that: 
7.1	the Rule 30A was brought out of time;
7.2	the Rule 30A application is not bona fide;
7.3	the record was duly filed in terms of Rule 53 (3) as confirmed by a supporting affidavit filed on 05 November deposed to by a Department of Health official.  

[8]	Thus, the following issues arise:
8.1	whether the purported record was properly filed in accordance with the procedure set out in Rule 53(3);
8.2	whether the Rule 30A application lacks bona fides;
8.3	whether Mlangeni Brothers make out a case for the relief sought in the Rule 30A application.

COMPLIANCE WITH RULE 30A

[9]	Rule 30A provides: 
“30A Non-compliance with rules
(1)	Where a party fails to comply with these Rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice or request be complied with or that the claim or defence be struck out.
(2)	Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems meet.”

[10]	The SIU instituted the review application on 15 March 2021. The notice of motion calls on the MEC to file a Rule 53 record within 15 days. On 22 April 2021, Mlangeni Brothers filed a notice of intention to oppose. It was due on 22 March 2021. The MEC did not file the record on the due date.

[11]	At a judicial Case Management meeting held on 20 July 2021, the following timeframes were determined by agreement between the parties:

11.1 the MEC would file the Rule 30A record on 10 August 2021. The SIU to facilitate compliance with this directive;

11.2 Mlangeni Brothers would file their answering affidavit on 24 August 2021;

11.3 the SIU would file its replying affidavit on 07 September 2021;

11.4 the SIU would file its heads of argument on 14 September 2021;

11.5 Mlangeni Brothers would file their heads of argument on 21 September 2021;

11.6 the review application would be heard on 11 and 12 November 2021.

[12]	On 10 August 2021, the SIU filed a document it contends constitutes a record of the proceedings. 

[13]	Mlangeni Brothers failed to file their answering affidavit on the date directed by the Tribunal at the July Case Management meeting. On 25 August 2021 being a day after the answering affidavit was due, Mlangeni Brothers explained their delay to the SIU attorneys by way of a letter and made an undertaking to file their answering affidavit. They still failed to do so.

[14]	On 13 and 14 September 2021, Mlangeni Brothers filed a R30A notice, informing the MEC that unless she complies with the Tribunal’s directive to file a record within 5 days, it intends bringing this application. The MEC did not respond to the R30A notice. Mlangeni Brothers brought this application on 29 October 2021.

[15]	Although there is no timeframe in terms of Rule 30A for putting a defaulting party on terms to comply with the applicable rule(s) and for bringing a Rule 30A application in the event that the defaulting party remains in default after it has been given notice to comply with the applicable rule, Mlangeni’s Brothers have been extremely dilatory in their conduct of this matter. It is completely unacceptable for Mlangeni Brothers to ignore the date for filing their answering affidavit and only file a Rule 30A notice almost a month after the contended record was filed and three weeks after its answering affidavit was due. As if that was not depraved enough, they waited another six weeks before bringing the Rule 30A application, setting times for the filing of papers clearly to effectively delay the hearing of the review application. 

[16]	At the July 2021 Case Management meeting, I made it very clear that interlocutory applications ought to be brought timeously to avoid the date of hearing being wasted. 

[17]	Although Mlangeni Brothers’ Rule 30A application has been brought consistently with Rule 30A, their dilatory conduct is intolerable as it frustrates the expeditious nature of Tribunal’s proceedings. 

[18]	In terms of Tribunal Rule 28(1), the Tribunal may adopt any procedure it deems appropriate, including the invocation of Uniform Rules of the High Court.  It is under this Rule that Mlangeni Brothers seek to use Uniform Rule 30A in the Tribunal. The present circumstances, warrant the exercise my discretion to disallow the use of Rule 30A.

WHETHER THE RULE 30A APPLICATION IS BONA FIDE

[19]	For the reasons that follow, I find that the Rule 30A application is not bona fide.

[20]	The sequence of events outlined above, and Mlangeni Brother’s lack of explanation for its dilatory conduct and disrespect for Tribunal Rules reflects lack of bona fides on their part. 

[21]	Their persistence with this application, after the MEC filed an affidavit confirming that the document filed by the SIU constitutes a record of the proceedings is a further indication of their lack of bona fides. 

[22]	Their complaint as formulated in the Rule 30A notice and the Rule 30A application is completely disdainful. They complain that the document filed by the SIU is not a record of the proceedings, chose to completely ignore it and brought an application to compel the filing of a record. The record has been filed and cannot simply be ignored. The appropriate step for Mlangeni Brothers was to seek an order setting aside the record as an irregular step and to compel the MEC to file a proper record. They have failed to do so. 

WHETHER THE PURPORTED RECORD WAS PROPERLY FILED IN ACCORDANCE WITH THE PROCEDURE SET OUT IN RULE 53(3) 

[23]	The purported record was properly filed in terms of Rule 53 by uploading on Caselines as directed at the Case Management meeting. Mlangeni Brothers’ insistence that the MEC ought to have filed copies of the record with the Registrar who would dispatch it to the parties is not only inconsistent with the practical implementation of Rule 53(3), it is also out of touch with the Tribunal Rules and the directives issued in this matter permitting electronic service and filing. 

[24]	Therefore, Mlangeni Brothers’ complaint that the purported record was not properly filed stands to be rejected. 

WHETHER MLANGENI BROTHERS MAKE OUT A CASE FOR THE RELIEF SOUGHT IN THE RULE 30A APPLICATION

[25]	For the reason stated in paragraph 22 above, Mlangeni Brothers do not make out a case for the relief sought in the Rule 30A application. 

[26]	The complaint raised during oral argument, that the documents the SIU seeks to set aside as enumerated in the notice of motion are not attached to the founding affidavit and not included in the record is made belatedly. These complaints ought to have been addressed timeously to allow Mlangeni Brothers to file its answering affidavit timeously. 

[27]	In the premises, the Rule 30A application stands to be dismissed.

[28]	Counsel for Mlangeni Brothers requested that in the event that the Rule 30A application is dismissed, given that pending that application, a party need not take a further step in the proceedings and as such, Mlangeni Brothers did not plead over, the review application should not be heard on an unopposed basis and that Mlangeni Brothers should be allowed to file an answering affidavit. Effectively, Mlangeni Brothers seek an indulgence. The prejudice the SIU stands to suffer if the indulgence is allowed can be compensated by way of a cost order as well as issuing directives to avoid a lengthy effective postponement of the review application. 

COSTS

[29]	Mlangeni Brothers conduct in this application, deserves deprecation by way of punitive costs of the Rule 30A application as well as the wasted costs occasioned by the indulgence to allow them to file an answering affidavit. The wasted costs of hearing the review application are limited to one day as it is unlikely that that application would have been heard over two days.

[30]	In the premises, the following order is made:

ORDER

1.	The Rule 30A application is dismissed with costs on the attorney and client scale.

2.	Mlangeni Brothers shall pay the SIU’s wasted costs of 11 November 2021 on the attorney and client scale.

3.	Mlangeni Brothers shall file their answering affidavit by 20 December 2021.

4.	The SIU shall file its replying affidavit if any, as well as its supplementary heads of argument if necessary by 20 January 2022.

5.	Mlangeni Brothers shall file their heads of argument by 31 January 2022. 

6.	The review application is enrolled for hearing on 7 February 2022. 

________________________________
     JUDGE L T MODIBA
                                MEMBER OF THE SPECIAL TRIBUNAL

APPEARENCES
Counsel for the Applicants:	Adv. A Van Den Heever, assisted by Adv. Douglas Kela		
Attorney for the Applicants:		Mr. T Hadebe of Hadebe Attorneys

Counsel for the 1st respondent:	Adv. O Modisa SC, assisted by Adv. Moja
Attorney the 1st respondent:	Ms. S Zondi, Office of the State Attorney, Pretoria  

Date of hearing: 						11 November 2021
Date of judgment:	 	  				7 December 2021