State Information Technology Agency SOC Ltd v Forensic Data Analysts (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Potterill J |
| Judgment Date | 08 September 2023 |
| Citation | 2023 JDR 3550 (GP) |
| Hearing Date | 17 July 2023 |
| Docket Number | 19130/2021 |
| Court | Gauteng Division, Pretoria |
Potterill J:
This matter was set down as a special motion for two-days of hearing. The papers compromise more than 736 pages. The heads of argument of SITA is a hefty 84 pages and that of FDA 53 pages. This matter is a prime example of “where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for purposes extraneous to that object.” [1]
The State Information Technology Agency SOC Ltd [SITA] is the defendant in an action for a claim for damages instituted by Forensic Data Analysts (Pty) Ltd [FDA]. In the matter before me SITA launched two Rule 30 applications in terms of the Uniform Rules. In the first Rule 30 application SITA seeks that FDA’s summons and particulars of claim be set aside as nullity. The reasons for this application is fourfold:
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Potterill J
the summons was not correctly issued; the Rule 41A was not served simultaneously with the summons; no notice was given to the State Departments before the summons was issued, and the particulars of claim [POC] did not comply with Rule 18(10). This Rule 30 application is out of time and SITA seeks condonation for the late filing of the application. FDA opposed the granting of condonation submitting that SITA had not shown good cause.
Pursuant to this application FDA filed a counter-application for condonation for the signing of the summons absent a statement regarding the attorney’s right of appearance and a copy of his relevant certificate. Condonation for the late filing of the Rule 41A notice is also sought. Simultaneously FDA applied to be afforded a 10-day period to deliver a notice of intention to amend paragraph 19 of the particulars of claim conditional upon the court finding that FDA’s calculation of its lost profits was not set out in accordance with Rule 18(10). Condonation was also sought for the late delivery of FDA’s replying affidavit in the counter-application.
In the second Rule 30 application SITA seeks to set aside the notice of bar that FDA served on SITA. In response to this application FDA has in terms of Rule 6(15) filed an application that certain paragraphs of SITA’s founding affidavit and relevant annexures be struck out.
The Rule 30 application to set aside the summons and particulars of claim
Were the POC attached to the summons when it was issued by the registrar?
Condonation for the one-day late filing of this Rule 30 application is granted. Counsel for FDA did not belabour the point in oral argument and this application is standing in the way of the claim being finalised, one way or another. Condonation for the late filing of FDA’s replying affidavit in the counter-application is granted on the same basis. Both parties in reply put new evidence before the Court. I have entertained both parties new evidence resulting in no prejudice to either party.
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Potterill J
The complaint lies therein that FDA’s attorney signed the summons on 15 April 2021 without the POC being signed by counsel. The registrar of the court issued the summons on 16 April 2021. FDA’s counsel signed the particulars of claim only on 19 April 2021. On behalf of SITA it was submitted that when the summons was issued it did not, and could not, have had the POC attached because counsel had only signed the POC on 19 April. A candidate attorney, Ms Tyzack of SITA’s attorneys, went to examine the registrar’s file on 7 September 2021. The file contained only the summons and not the 17 pages of POC and the annexures. The photographs of what she found in the file was attached to her affidavit. An affidavit of Mr Makalima was also filed. He too is an article clerk of the attorneys of SITA and he attended to the registrar’s office on 14 September 2021 where a registrar confirmed to him that on the court file, one copy of the summons and POC is retained.
The argument went that the summons was thus not compliant with Rule 17(2)(a) which reads as follows:
(a)
In every case . . . the summons shall be in accordance with Form 10 of the First Schedule, to which summons shall be annexed particulars of the material facts relied upon by the plaintiff in support of the claim, which particulars shall inter alia comply with rule 18.”
In answer to these allegations FDA filed the affidavit of Mr Loch, their attorney. He set out that the POC were drafted on 2 April 2021 and were approved on 12 April 2021. He signed the summons on 15 April 2021. He further stated that he intended for counsel to sign the POC. Ms Duncan, the former article clerk of FDA’s attorneys confirmed that the summons was issued with the unsigned POC as counsel was unavailable to sign the particulars of claim early morning 16 April 2021. As it was during the COVID period there were long queues for issuing and it had to be dispersed to the Sheriff that was on standby for service on that day.
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Potterill J
Ms Manana, the Registrar who issued the summons confirms that she issued the summons and would never issue a combined summons if the POC were not attached. Mr Kganedi, the Head Registrar, confirms that in terms of the directives no combined summons will be issued without the POC attached. He also sets out that with the utilisation of the Caselines system when a document is uploaded onto Caselines then the initialising party had fully complied with the directive. He stated that all court papers must be uploaded onto Caselines. He also under oath stated registrars in the records section are instructed to retain only a copy of the summons in the court file, the POC is not retained in the court file in an attempt to save space in the basement section. He also explained that many court documents go missing from files and one would often encounter an empty file.
In reaction to these affidavits being filed, counsel on behalf of SITA requested this Court to refer the issue whether the POC were attached to the summons when it was issued by the registrar to oral evidence in terms of Uniform Rule 6(5)(g):
“Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and...
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