Lekwa Local Municipality and Another v Afri-Infra Group (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BA Mashile J
• Judgment Date: 08 August 2022
• Docket Number: 2597/2018
• Hearing Date: 08 August 2022
• Court: Mpumalanga Division, Mbombela
• Citation: 2022 JDR 2254 (MN)

Mashile J:

INTRODUCTION:

[1]

This matter concerns two interlocutory applications brought in terms of Uniform Rule of Court 30. These applications have been launched separately by the First and Second Applicants, jointly referred to as the Applicants otherwise and depending on the context, individually as Lekwa and Gert Sibanda. Common between these applications is the complaint that the Respondent ("Afri-lnfra") has irregularly amended its particulars of claim as contemplated in Rule 30.

[2]

Afri-lnfra opposes the applications on various grounds, principally that the two applications were brought late without condonation applications. Afri-lnfra says this mindful of Gert Sibanda's application for condonation for the Rule 30(2)(c) Application but contends that without an application for the late service of the Rule 30(2)(b) Notice, the condonation for the Rule 30(2)(b) is stillborn and therefore vain .

[3]

In the case of Lekwa, the application for condonation was only served on Afri-lnfra the day before the hearing, consequently it could not be before Court on the date of hearing. Besides, Gert Sibanda too had not applied to condone its late delivery of the Rule 30(2)(b) Notice and as such, it was as good not having been there.

[4]

As the matter unfolded in Court, it soon emerged that the application between Lekwa and Afri-lnfra was, to the extent that its condonation application was served on Afri-lnfra the day before the hearing, prematurely before Court. In consequence of those developments in Court, Counsel for Lekwa conceded that the application should not have served before Court on that date. The question between those two simmered down to costs. Following argument on the subject, Counsel for Lekwa ultimately agreed that Lekwa would bear costs as at the scale between attorney and client. An order in those

2022 JDR 2254 p3

Mashile J

terms was accordingly made against Lekwa and it exited the proceedings leaving Gert Sibanda and Afri-lnfra to proceed with the matter.

FACTUAL MATRIX:

[5]

Afri-lnfra instituted an action ("the main action") against the Applicants seeking payment based on negotiorum gestio. When it appointed its attorneys of record, the matter had already commenced. It alleges that it sought guidance and was advised to radically amend its particulars of claim in the main action between it (as Plaintiff) and the Applicants) as Defendants) to ensure that it was in line with the requirements of negotiorum gestio, the remedy on which it was relying for its claim. Following the advice, Afri-lnfra delivered notice of its intention to amend its particulars of claim, as envisaged in Rule 28. The Rule 28 notice was served on Gert Sibanda on 6 September 2021. The notice gave Gert Sibanda ten days within which to raise objection to the proposed amendments.

[6]

The ten-day period expired on 20 September 2021. Noting that no objections were forthcoming, the proposed amendments were perfected and the amended particulars of claim were subsequently served on Gert Sibanda on 21 September 2021. The amended particulars of claim accordingly became part of the record without any objection from Gert Sibanda. Afri-lnfra alleges that the amendment was regularly served in terms of the Uniform Rules of Court. Twenty-five Court days after service of the amended particulars of claim, the...