Ntleleko v Member of the Executive Council for the Department of Health Eastern Cape Province
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Notyesi AJ |
| Judgment Date | 09 May 2023 |
| Citation | 2023 JDR 1524 (ECM) |
| Hearing Date | 26 April 2023 |
| Docket Number | 2665/2017 |
| Court | Eastern Cape Division |
Notyesi AJ:
Introduction:
The Applicant, relying upon the provisions of Uniform rule 35(7), [1] sought of an order directing the Respondent to comply with notices served upon her in terms of
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subrules 35(1), [2] 35(8) [3] and 35(10). [4] In addition for an order of compliance with the aforementioned rules, the Applicant had sought an order directing the Respondent to deliver her discovery affidavit within a period of five days and a costs order. The application to compel was uncontested. There was no notice in terms of rule 30A or any form of notice issued prior to the application to compel. The Applicant relied solely on notices served upon the Respondent in terms of the aforementioned rules. On 25 April 2023, I granted an order compelling the Respondent to comply with the notices, although declining to grant the costs order indicating that my reasons for doing so would follow. These are my reasons.
The parties:
The Applicant is the Plaintiff in the main action and the Respondent is the Defendant. Pleadings in the action had been closed.
Issues:
The questions for determination were:
whether the Applicant ought to have complied with Uniform rule 30A; and
whether the Applicant was entitled to a costs order.
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Background:
On 19 June 2017, the Applicant instituted a delictual claim against the Respondent. The claim is defended by the Respondent and in that regard, a plea was filed on 11 September 2017. Pleadings were thereafter closed. On 19 October 2017, the Applicant served and filed notices in terms of Uniform rules 35(1), 35(8) and 35(10) and the Applicant's discovery affidavit. There was no reply by the Respondent to the Applicant's rule 35 notices.
The Applicant, aggrieved by the non-response of the Respondent to the notices, served and filed an application to compel on 27 November 2017. It is not clear from the papers of what happened to the aforesaid application. On 11 April 2023 the applicant instituted the present application which she set down for hearing before court on 25 April 2023. After hearing the application, I issued the following order:
That the Respondent is directed to file a discovery affidavit within fifteen (15) days from the date of service of this order.
There shall be no order as to costs.
Reasons for order in paragraph 2 shall follow.'
Legal framework:
The failure to comply with notices under Uniform rule 35 is at the heart of the present application. This is a procedural aspect of litigation. In Khunou & Others v Fihrer & Sons, [5] Slomowitz AJ said the following about civil procedure in general and the Rules of Court in particular:
'The proper function of a Court is to try disputes between litigants who have real grievances and so see to it that justice is done. The rules of civil procedure exist in order to enable Courts to perform this duty with which, in turn, the orderly functioning, and indeed the very existence, of society is inextricably interwoven. The Rules of Court are in a sense merely a refinement of the general rules of civil procedure. They are designed not only to allow litigants to come to grips as expeditiously and inexpensively as possible with the real issues between them, but also to ensure that the Courts dispense justice uniformly and fairly, and that the true issues which I have mentioned are clarified and tried in a just manner. . . .
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It follows that the principles of adjectival law, whether expressed in the Rules of Court or otherwise, are necessarily flexible. Unfortunately, this concomitant brings in its train the opportunity for unscrupulous litigants and those who would wish to delay or deny justice to so manipulate the Courts' procedures that their true purpose is frustrated. Courts must be vigilant against this and other types of abuse. What is more important is that the Court's officers, and especially its attorneys, have an equally sacred duty. Whatever the temptation or provocation, they must not lend themselves to the propagation of this evil, and so allow the administration of justice to fall into disrepute.'
In Szedlacsek v Szedlacsek; Van der Walt v Van der Walt; Warner v Warner, [6] Leach J, dealing with Uniform rule 21(4), which is akin to the provisions of Uniform rule 35(7), said:
'It is clear from the final words of this subrule, emphasized in italics above, that this Court retains a discretion to grant or refuse an order for the delivery of further particulars. An applicant is accordingly not entitled to an order compelling a reply as of right should the opposing party fail to deliver further particulars timeously or sufficiently, but must set out sufficient information to enable the Court to consider whether or not to exercise its discretion in his favour. It is impossible to lay down any test which can be slavishly applied to determine whether an order compelling delivery should be granted as each case must turn upon its own particular facts and circumstances, but it seems to me that in most cases it would probably be wholly insufficient for a party seeking relief under Rule 21(4) to rely solely upon the other party's failure to timeously comply with the ten-day time period laid down by Rule 21(2).Furthermore, in my opinion, although there is no specific requirement for an applicant proceeding under Rule 21(4) to give notice of his intention to bring an application under that subrule (that having been the case even prior to the repeal of Rule 30(5), which required that notice to a defaulting party be given of an application for an order compelling compliance with a notice of request - see for example Khunou's case supra at 360, Norman & Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd 1968 (1) SA 503 (T) and Erasmus Superior Court Practice B1-139), it is of course sound practice for a party to call upon his opponent to remedy a default or failure to timeously comply with a request for particulars for trial and to put him to terms before leaping into Court and incurring substantial costs in an application of this nature. Accordingly, a Court will be slow to come to a party's aid by granting an order directing the opposing party to comply with
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a notice or request where no such earlier demand has been made. In my view, an application to compel compliance with a procedural step should really be regarded as a last option, to be exercised when other reasonable and far less costly alternatives have been unsuccessful and the defaulting party has shown himself to be unreasonably dilatory.'
In Khunou & Others v Fihrer & Sons, [7] Slomowitz AJ in relation to the repealed Uniform rule 30(5) said:
'I agree that the Rule is one which ought in general to be complied with, and I do not question that a failure to comply with it in the ordinary course affect the matter of costs and probably result in the application itself being dismissed. One of the purposes of the Rule is to prevent unnecessary applications being brought and to put a defaulting party on notice as to the consequences of his default. Whether, however, the failure to comply with...
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