dawood j - saflii
TRANSCRIPT
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION: MTHATHA)
CASE NO. 2545/2017
In the matter between:
MPISI MATSHAYANA APPLICANT
And
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE 1ST
RESPONDENT
THE SUPERINTENDENT-GENERAL, DEPARTMENT
OF EDUCATION, EASTERN CAPE PROVINCE 2ND
RESPONDENT
THE DISTRICT DIRECTOR, BUTTERWORTH 3RD
RESPONDENT
THE DISTRICT: LEGAL SERVICES
MR EDWARD SCHEUN, DEPARTMENT OF EDUCATION,
EASTERN CAPE PROVINCE 4TH
RESPONDENT
MKHUSELI NONDLAZI 5TH
RESPONDENT
JUDGMENT
DAWOOD J:
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1. The parties elected to deal with this matter as a whole inclusive of the
interlocutory and main applications.
2. The parties’ stance in this regard has necessitated a practical approach to the
adjudication of the disputes between the parties in order to deal with the
merits of the main application in an expeditious pragmatic and just an
equitable manner.
3. The applicant herein had brought a rule 30 application and the 1st to 4
th
respondents had brought an application for condonation.
4. The 1st to 4
th respondents had brought an application for joinder of the 5
th
respondent in order to seek cost orders against him personally in respect of
the applicant’s rule 30 application and the application for condonation. They
elected to join him as a respondent, not as a third party. Such an order was
granted.
5. The firth respondent then, it is common cause, filed his answering affidavit
out of time.
6. The 1st to 4
th respondents (and not the applicant) served the 5
th respondent
with a rule 30 notice and upon no formal application for condonation
forthcoming brought an application in terms of rule 30 as against the 5th
respondent.
7. The applicant did not seek any costs orders as against the 5th
respondent.
8. The applicant and 1st to 4
th respondents had reached agreement with regard
to the rule 30 application and the application for condonation save that the
1st to 4
th respondents had sought a costs order against the 5
th respondent in
respect of those costs.
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9. The applicant consented to the late filing of the answering affidavits by the
first to fourth respondents being condoned and that the applicant be granted
leave to withdraw the rule 30 application as against the 1st to 4
th respondents.
10. The only outstanding issue in that regard was the issue of who was to pay
those costs. In order to make that determination the rule 30 application
brought by the 1st to 4
th respondents as against the 5
th respondent needs to be
considered at this stage.
11. I shall now deal with the rule 30 application brought by the 1st to 4
th
respondent wherein they sought to set aside the 5th
respondent’s affidavit
filed on the 17 May 2019 as an irregular proceeding.
a) The fact that this affidavit was filed out of time is common cause.
b) The 5th
respondent however alleges that it has applied for condonation in
the answering affidavit itself and referred this Court to paragraphs 42
and 43 of the 5th
respondent answering affidavit at pages 127 and 128
which reads as follows:
“this affidavit, is filed late by about 2 (two) days. Not 1 (one) party will be
prejudiced by this. The lateness has been occasioned by the fact that I am
deposing to this affidavit whilst in East London. Counsel drafted and sent these
papers by email to me. At the time of receipt of the papers on my email, I was
out of office on a work mission in Port Elizabeth and East London. I called
Counsel on Wednesday 15 May 2019 and enquired about the papers, I
unfortunately did not get him. I tried again on Thursday 16 May 2019 in the
afternoon. I got through to him and he informed me that he had emailed the
papers to me during the course of the weekend on Sunday, 12 May 2019.
Unfortunately, I had not had access to my email since Friday 10 May 2019
when I left my office and thereafter travelled to Port Elizabeth on Monday
morning, 13 May 2017.
On learning that the papers were lodged in my electronic mail address, I
arranged for my secretary to print, scan and email same to me so I could print,
depose and serve the respondents’ attorney in East London whilst enroute to
Mthatha. I accordingly, apply for this Court to extend my period for the
service of this affidavit upon the respondents’ attorneys to Friday, 17 May
2019 and filing at Court to Monday, 20 May 2019.”
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c) It is evident from the reading of this affidavit that what the 5th
respondent sought was an extension of the dies not technically the
condonation for the late filing of the affidavit. He nonetheless sought an
indulgence from the court recognizing that he had not compiled with the
rules of court.
d) There was no formal application for condonation technically, though a
case was made out to condone the late filing, if regard is had to the
contents of the relevant paragraphs and he uses the word apply.
e) Counsel for the 5th
respondent was accordingly correct in his head when
he conceded that there was no application for condonation but that he
sought condonation from the bar even though in argument he went on to
say that those paragraphs were an application for condonation,
presumably relying on the words “apply for the court to extend the
period”.
f) The first to fourth respondents accordingly had correctly stated that there
was an irregularity.
g) I am not certain that the court can extend the dies in any event as the
time periods are stipulated in the rules. The court can only condone non-
compliance with the rules where a case has been made out.
h) The fifth respondent failed to remove the cause of complaint or bring the
necessary application for condonation.
i) The rule 30 application was accordingly correctly launched.
j) The 5th respondent, albeit only in argument from the bar asked the court
to take cognizance of the averments made in paragraphs 42 and 43 as
referred to above and grant condonation.
k) Whilst accepting that Quinn SC argument that it was bizarre to ask the
court to have regard to the impugned affidavit in support of such an
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application he also recognized the court could exercise its discretion in
this regard.
l) The 1st to 4
th respondents relied upon Hano Trading CC v JR 209
Investments (Pty) Ltd and Another1 for the proposition that the late filing
could not be condoned in the absence of an application for condonation
and is regarded as pro non scripto. It was inter alia held in that case as
follows:
“Rule 6(5)(e) establishes clearly that the filing of further affidavits is only
permitted with the indulgence of the court. A court, as arbiter, has the sole
discretion whether to allow the affidavits or not. A court will only exercise its
discretion in this regard where there is good reason for doing so.
This court stated in James Brown & Hamer (Pty) Ltd (previously named Gilbert
Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H, that: ‘It is in the interests of the administration of justice that the well-known and well
established general rules regarding the number of sets and the proper sequence of
affidavits in motion proceedings should ordinarily be observed. That is not to say
that those general rules must always be rigidly applied: some flexibility,
controlled by the presiding Judge exercising his discretion in relation to the facts
of the case before him, must necessarily also be permitted. Where, as in the
present case, an affidavit is tendered in motion proceedings both late and out
of its ordinary sequence, the party tendering it is seeking not a right, but an
indulgence from the Court: he must both advance his explanation of why the
affidavit is out of time and satisfy the Court that, although the affidavit is
late, it should, having regard to all the circumstances of the case,
nevertheless be received. Attempted definition of the ambit of a discretion is
neither easy nor desirable. In any event, I do not find it necessary to enter upon
any recital or evaluation of the various considerations which have guided
Provincial Courts in exercising a discretion to admit or reject a late tendered
affidavit (see e.g. authorities collated in Zarug v Parvathie, 1962 (3) SA 872
(N)). It is sufficient for the purposes of this appeal to say that, on any approach to
the problem, the adequacy or otherwise of the explanation for the late
tendering of the affidavit will always be an important factor in the enquiry.’
It was then later stated by Dlodlo J in Standard Bank of SA Ltd v Sewpersadh &
another 2005 (4) SA 148 (C) in paras 12-13: ‘The applicant is simply not allowed in law to take it upon himself and (to) file an
additional affidavit and put same on record without even serving the other party
with the said affidavit. . .
Clearly a litigant who wished to file a further affidavit must make formal
application for leave to do so. It cannot simply slip the affidavit into the Court file
1 2013 (1) SA 161 (SCA) at paras 11-14.
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(as it appears to have been the case in the instant matter). I am of the firm view that
this affidavit falls to be regarded as pro non scripto.’
To permit the filing of further affidavits severely prejudices the party who
has to meet a case based on those submissions. Furthermore, no reason was
placed before the court a quo for requesting it to exercise a discretion in
favour of allowing the further affidavits. Consequently the court a quo was
correct in ruling that the affidavits were inadmissible.” (My added
emphasis.)
m) This decision however dealt with the position where further affidavits
were sought to be introduced not with the filing of answering affidavit
that was filed out of time although it was also filed out of time and
accordingly does not change the position regarding the issue of prejudice
and the fact that the court in any event dealt with the requirement of
prejudice therein indicating that it is a relevant consideration.
n) The relevant portions of ‘Rule 30 - Irregular Proceedings
(2) An application in terms of subrule (1) shall be on notice to all parties specifying
particulars of the irregularity or impropriety alleged, and may be made only if-
(a) the applicant has not himself taken a further step in the cause with knowledge
of the irregularity;
(b) the applicant has, within ten days of becoming aware of the step, by written
notice afforded his opponent an opportunity of removing the cause of complaint
within ten days;
(c) the application is delivered within 15 days after the expiry of the second
period mentioned in paragraph (b) of sub rule (2).
(3) If at the hearing of such application the court is of opinion that the proceeding or step
is irregular or improper, it may set it aside in whole or in part, either as against all the
parties or as against some of them, and grant leave to amend or make any such order as to
it seems meet.”
(a) Prejudice
In De Klerk2 the court had this to say:
2 De Klerk v De Klerk 1986 (4) SA 424 (W) at p 426.
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“The prejudice which is relevant for the purposes of Rule 30 (1) requires more than that. It
is true that on receipt of the notice of bar the attorney had to read it, to consider it, and to
decide what to do next. But at the point where that decision was taken, he had to take the
correct decision. At the point of making that decision (by which time most of the effort
and costs already alluded to had come into being), he had to be led by the prejudice which
his client would suffer if he did not bring a Rule 30 application. He had to decide whether
his client would be prejudiced in the further conduct of the case if an irregular step, which
I will take the present notice to be, is not set aside. When the matter comes before Court,
that is the nature of prejudice, which the Court in turn, should assess. If that is not the true
test, the Court will have to continue hearing inappropriate applications, which are too
frequently presented in this Court. An example is a recent application to set aside as an
irregular step a request to attend a Rule 37 pre-trial conference. The grounds of the
application were that the request had been delivered before the close of pleadings. The
aforesaid limited extent of essentially financial prejudice would also have been present.
But nothing really detrimental would come out of simply not responding to the said
request. Because of the absence of prejudice, that application was refused. I have no
grounds to believe that other Judges would have had a different approach to that matter.
It must again be emphasised that Rule 30 (1) applications should succeed only if there is
prejudice related to proceeding with the litigation. See SA Metropolitan
Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O).”
In Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others3 it was held that:
“During argument Mr Ginsburg did not press for an order in the Rule 30 application and
took up the attitude that he would concentrate on the real issue: the composition of the
record which is the real object of the counter-application. Nevertheless, I did not
understand Mr Ginsburg to abandon the relief sought in the Rule 30 application.
Mr Van der Linde ultimately also did not press for relief in terms of prayer 1 of the
applicant’s counter-application. He also concentrated on the composition of the record,
which is the subject of prayer 2 of the counter-application (as amended during argument).
With regard to the Rule 30 application Mr Van der Linde pointed out that such an
application will be granted only where the irregular step would cause prejudice to the
applicant seeking to set it aside. In support of this argument he referred to Trans-African
Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 276F-H; SA Metropolitan
Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 333D-F and
333H-334E; De Klerk v De Klerk 1986 (4) SA 424 (W) at 426F-427B; Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabriek GmbH 1991 (1) SA 823 (T) at
824G-H and Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty)
Ltd t/a L H Marthinusen 1992 (4) SA 466 (W) at 469G. The prejudice that is referred to is
prejudice which will be experienced in the further conduct of the case if the irregular step
3 1999 (2) SA 599 (T) at p 611.
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is not set aside. There is no prejudice if the further conduct of the case is not affected by
the irregular step and the irregular step can simply be ignored.”
In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO4 the court
held the following:
“Where such prejudice is absent, a decision to set the irregular proceeding aside will not
be given. On the contrary, the irregularity may be overlooked. Cf Herbstein and Van
Winsen The Civil Practice of the Superior Courts in SA 3rd ed at 386 and in particular
the decisions in Distins Seed Cleaning and Packing Co (Pty) Ltd v Stuart Wholesalers
1954 (1) SA 383 (N); Marais v Century Insurance Co Ltd 1960 (3) SA 33 (W). In Theron
v Haylett 1917 WLD 140 the Court, whilst emphasising the need for precision in regard
to a summons, said:
“the principle is that unless the person on whom a summons is served can show he has been
prejudiced by formal defects the summons should stand”.
Such an approach would be in accordance with the view that
“objections to less than perfect procedural steps should not be permitted, in the absence of
prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on
their real merits.””
In Minister of Prisons and Another v Jongilanga5 the court had the following to
say:
“The Court is given a general discretion to condone any non-compliance with the Rules of
Court by Rule 27 (3). In addition to such general discretion the Court also has the power
to condone an irregular proceeding in terms of Rule 30(1) read with Rule 30 (3).
…
It would then appear that the Rules which had to be applied by BOTHA J in Pincoos’ case
gave the learned Judge no discretion to condone the irregularity, whereas Rule 30 with
which we are presently concerned does give such discretion to the Court.
Having come to the conclusion that the summons in the present matter is not a nullity, it
remains for me to consider whether, in the exercise of my discretion, I should condone the
defects.
4 1981 (4) SA 329 (O) at p 334.
5 1983 (3) SA 47 (E) at pp 52 and 56-7.
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Counsel for the respondent submitted that I should condone the irregularity, while counsel
for the applicant argued that even should I hold that the summons is not a nullity, I should
refuse to condone and should set the summons aside. There is no substantive application
by the respondent for condonation before me but in the final paragraph of the affidavit of
Mr Ntonga filed on behalf of the respondent it is prayed that the irregularity be condoned.
The question of possible condonation was fully argued before me and accordingly I do not
consider a formal application to be essential in the present matter. See O’Donoghue’s case
supra at 39F.
It does not seem to me that the applicants have been prejudiced by the fact that the
address for service furnished in the summons is irregular. The defect may have
caused the applicants inconvenience, but this does not mean they have been
prejudiced. It was argued by counsel for the applicants that the applicants were
prejudiced by the irregularity in that no valid address was furnished where the respondent
would accept service of documents and that accordingly it was not possible to serve
process on the respondent. However, as I see the position, the applicants were not without
a remedy, they were entitled to approach this Court for relief under Rule 30, as they have
in fact done. Should I condone the irregularity and order that the summons be amended to
furnish a proper address for service, the defect will be remedied and the applicants will be
in no worse position than they would have been in had a proper address for service been
furnished in the first instance.
Were it not for the fact that if the summons is set aside it will be possible for the
applicants to raise the defence of prescription should the respondent issue a fresh
summons in this matter, I do not think that any Court would have hesitated to
condone the irregularity in the summons. It would have been pointless to set the
summons aside. As was said in Trans-African Insurance Co Ltd v Maluleka 1956 (2)
SA 273 (A) at 278F:
“No doubt parties and their legal advisers should not be encouraged to become slack in
the observance of the Rules, which are an important element in the machinery for the
administration of justice. But on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of prejudice, to interfere with
the expeditious and, if possible, inexpensive decision of cases on their real merits.”” (My
added emphasis.)
o) There clearly has been an irregularity and parties should not be
permitted to float the rules of court and the time periods prescribed
therein or there will be total chaos and the administration of justice
would be prejudiced and thrown into disarray.
p) The first to fourth respondents have not set out any factors
demonstrating any prejudice and none is found in this case especially
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since the fifth respondent was mindful of the delay and sought an
indulgence in his papers.
q) The fact of the matter is that the 5th
respondent did not comply with the
rules of court and did not file his affidavit timeously.
r) The 5th
respondent was obliged to do so and his failure to do so is per se
prejudicial to the administration of justice. The rules of court cannot
lightly be disregarded.
s) However, I accept that the 5th
respondent delay was not deliberately or
intended to disregard the rules but as stated in his affidavit due to
circumstances beyond his control.
t) It is in accepting his explanation that this Court finds that indeed there
was an irregularity but it is not one that warrants his affidavits being
regarded as pro non scripto.
u) The first to fourth respondents in any event would not as of right have
been entitled to reply thereto and the applicant clearly had no interest in
the dispute between the first and fourth respondent and made it clear that
they were not seeking any costs order against the fifth respondent.
v) There accordingly would be no prejudice to the first to fourth
respondents if the affidavit was admitted despite the irregularity.
w) On the other hand, the fifth respondent would be severely prejudiced if
the affidavit was not admitted as an adverse costs order may be made
against him based on the uncontroverted averments by the first to fourth
respondents.
x) In the exercise of my discretion and having regard to the fact that no
prejudice was demonstrated to the first to fourth respondents I am
despite the irregularity disposed to allow the affidavit and condone the
late filing thereof in the exercise of my discretion having regard to the
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fact that the parties want the entire matter disposed off and it would not
in the circumstances be in the interest of justice to direct the 5th
respondent to file an application for condonation.
y) The 1st to 4
th respondent could have accepted the explanation furnished
for the late filing as contained in the 5th respondent affidavit and the fifth
respondent could have simply brought an application for condonation
when he was served with the rule 30 notice. It is unfortunate that this
Court had to be burdened with this application in circumstances where
sense could have prevailed.
z) In the circumstances of this case I am not disposed to making any costs
order in favour of either party since each had been partially successfully
and both could have obviated the need for such an application.
aa) In the circumstances I make the following order in respect of the rule 30
application launched by the 1st to 4
th respondents as against the 5
th
respondent.
(i) The late filing of the affidavit by the fifth respondent constitutes an
irregular step.
(ii) The 1st to 4
th respondents have failed to demonstrate that such late
filing was prejudicial to them.
(iii) The late filing of the fifth respondent affidavit is condoned.
(iv) Each party to pay his or its own costs in respect of this
interlocutory application.
12. I now turn to the issue of costs in respect of the rule 30 application launched
by the applicant against the 1st to 4
th respondents and the application for
condonation brought by the 1st to 4
th respondents for the late filing of their
answering affidavit prior to getting into the merits of the main application.
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The 1st to 4
th respondents have confirmed that they are not seeking a costs
order against the 5th respondent, in respect of the main application.
a) The main contention by the 1st to 4
th respondents is that they acted swiftly
throughout and had not been made aware of the court orders and the notice
in terms of rule 30 and even the rule 30 application or even the initial order
placing them on terms to file answering affidavits because the same was not
brought to their erstwhile attorney, the fifth respondent who was the person
to whom the file had been allocated.
b) They most certainly would have brought an application for condonation
timeously and obviated the need for the rule 30 application if they were
made aware of the notice by their then representative of the 5th respondent
who was in the employ of the state attorney’s office.
c) They accordingly aver that his breach was of such a nature that it warranted
a punitive cost order against him personally and that the 1st to 4
th
respondents should not be held liable for these costs. In the main application,
the heads of argument of the first to fourth respondents had the following to
say in this regard at paragraphs:
“3.3 The conduct of the litigation on behalf of the Department passed through the
hands of several attorneys employed by the State Attorney, Mthatha, including Mr
Nondlazi who appears to have been instructed to attend to the matter by the Head of
the Office of the State Attorney, Mthatha, Mr Tshitshi.
3.3.1 In Lushaba v MEC for Health, Gauteng the court held that:
“It is so that the legal representatives sometimes make errors of law, omit to comply
fully with the rules of court or err in other ways related to the conduct of the
proceedings. This is an everyday occurrence. This does not, however, per se
ordinarily result in the Court showing its displeasure by ordering the particular legal
practitioner to pay the costs from his own pocket. Such an order is reserved for
conduct which substantially and materially deviates from the standard expected
of the legal practitioners, such that their clients, the actual parties to the
litigation, cannot be expected to bear the costs, or because the Court feels
compelled to mark its profound context. Examples are, dishonesty, obstruction of the
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interests of justice, irresponsible and grossly negligent conduct, litigating in a
reckless manner, misleading the Court, gross incompetence and a lack of care.”
3.4 The Constitutional Court ordered the office of the State Attorney,
Pretoria to pay costs de bonis propriis on a scale as between attorney and client in
circumstances where the State Attorney failed to file affidavits in terms of an Order
of Court from which the Court inferred that the MEC was ‘not interested in assisting
the Court in resolving important constitutional litigation’, but where in truth a
recently qualified and inexperienced attorney in the employ of the State
Attorney had failed to read the directives issued by the Registrar of the
Constitutional Court had to do with the failure of the State Attorney to provide
an explanation for ‘a lamentable want of professional responsibility’. The
constitutional court held:
“[54]. An order of costs de bonis propriis is made against attorneys where a Court is
satisfied that there has been negligence in a serious degree which warrants an
order of costs being made as a mark of the Court’s displeasure. An attorney is an
officer of the court and owes a court an appropriate level of professionalism and
courtesy. Filing correspondence from the Constitutional Court without first reading
it, constitutes negligence of a severe degree. Nothing more need be added to the
sorry tale already related to establish that this is an appropriate case for an order of
costs de bonis propriis on the scale as between attorney and client. The order is
made against the office of State Attorney, not personally against the attorney
concerned. This Court’s displeasure is primarily directed against the Office of
State Attorney in Pretoria, where systems of training and supervision appear to be
woefully inadequate.”
3.4.2 In this regard it should be remembered that while the Department was obliged
to utilize the services of the State Attorney, Mthatha, the Department did so through
its own attorneys who are employees of the Directorate of Legal Services who
represented the Department’s attorney and was bound to perform ‘work as is by law,
practice and custom performed by attorneys’.
3.5 In appropriate circumstances, our Courts have not hesitated to order attorneys
to pay costs de bonis propriis. This is achieved through the exercise of a wide and
unfettered discretion in relation to costs and is frequently ordered without notice to
the attorneys after a consideration of his conduct as it merges from the papers and/or
the evidence. Even persons who are not parties can be ordered to pay costs.
3.6 Accordingly, Nondlazi, alternatively the State Attorney, Mthatha, failed to
inform the Department of the Order of this Honourable Court of 4 July 2017 and the
Applicant’s Rule 30 (2) notice nor did they react appropriately or at all. This resulted
in the Applicant’s Rule 30 application. The application should not have been
necessary. The cause of complaint would not have arisen in the first place, and in the
second place, would have been cured by a simple condonation application on very
different grounds to those concerning the negligence of Nondlazi and the Office of
the State Attorney, Mthatha. In consequence, the Department applies for costs
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against Nondlazi in his personal capacity, alternatively against the Office of the State
Attorney, Mthatha.” (My added emphasis.)
d) The 5th respondent resisted this explaining inter alia, that he was on sick
leave when the initial order was taken and was not informed of its contents
and he was also not aware of the rule 30 notice. Other members of the state
attorney’s office dealt with the matter from time to time until it was taken
away from him.
e) The fifth respondent also did not receive some of the correspondence from
the 4th respondent and there was a delay in getting instruction.
f) He cannot be held responsible for other members of his office failing to
report to him.
g) He admittedly did not personally follow up on what had occurred in the
matter in his absence despite the fact that the matter was allocated to him.
h) There was no negligence on his part personally and most certainly none that
warranted the court showing its displeasure by making a de bonis propriis
costs order against him.
i) The first to fourth respondents joined him personally and not the office of
the state attorney in their bid to seek a costs order against him.
j) They have failed to demonstrate that a costs de bonis propriis order is
warranted as against him personally.
k) I am in the circumstances of this case not satisfied that his individual contact
warrants a personal punitive cost order against him personally de bonis
propriis.
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l) That being the case and in light of the fact that there is a concession that the
applicant correctly brought the rule 30 application the 1st to 4th respondents
are to pay such costs.
m) The applicant did not oppose the condonation application launched by the 1st
to 4th respondents but would nonetheless have incurred costs in the perusal
of the application and making that decision not to oppose.
n) They accordingly would have incurred some costs and are entitled to the
costs attendant thereto.
o) The 1st to 4
th respondents are accordingly liable to pay to the applicant such
costs as were reasonably incurred in the application for condonation brought
by the 1st to 4
th respondents.
p) These costs would be the costs of a single counsel as the interlocutory
matters were not complex.
q) I shall make no order as to costs as between the 1st to 4
th respondents and the
fifth respondent in any of the interlocutory applications.
13. For the sake of completeness. I make the following order at this stage in
respect of the interlocutory applications.
a) ORDER in respect of the interlocutory applications as between the
applicant and the 1st to 4
th respondents.
i) The applicant is granted leave to withdraw its rule 30 application.
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ii) The first to fourth respondents to pay the cost in respect of the
application jointly and severally the one paying the other or others
to be absolved.
iii) The first to fourth respondents late filing of their answering
affidavit be and is hereby condoned.
iv) The first to fourth respondents are directed to pay such costs as
were reasonably incurred by the applicant in respect of the
condonation application.
v) There shall be no order as to costs in respect of either the rule 30
application or the condonation application as between the first to
fourth respondents and the fifth respondent.
14. I now turn to the main application. The applicant herein sought the
following relief:
“1. That the 1st to 3
rd Respondents’ failure or delay in effecting Applicant’s
appointment as principal of Dayimane Junior Secondary School (the School),
Dutywa District be and is hereby declared unlawful, invalid unreasonable and of no
force and effect.
2. That the 1st to 2
nd Respondent be and is hereby directed to effect the
Applicant’s employment contract as principal of the school retrospectively with
effect from date of appointment, being, 1st February 2017.
3. That the 1st to 3
rd Respondents be and are hereby directed to pay the
Applicant’s salary with effect from 1st February 2017 with all the emoluments
attached thereto and continued to do so until the Applicant reaches his retirement
age or resigns from the Department of Education.
4. That the letter written by the 4th
Respondent (Mr Edward Scheun), dated 24th
May 2017 be and is hereby set aside and be regarded as pro non scripto.
5. That the 1st to 3
rd Respondents be and are hereby directed to pay costs of this
application on an attorney and own client scale, such costs to include the
appointment of two counsel and the 4th
respondent pay costs on the same scale in
the event of him opposing the application.”
15. It is trite law that in order for a contract to come into existence there has to
be an offer and an acceptance. It is evident that the acceptance only occurred
in July 2017. No contract came into existence between the parties prior to
17
that date. The applicant was not even aware of the offer until May and
accordingly could not have accepted the offer. The fact that the letter was
written in January is not sufficient to bring about the existence of a contract.
16. In Jafta v Ezemvelo KZN Wildlife6 it was inter alia held:
“The common law requirements for an acceptance of an offer
Unequivocal Acceptance
Under the common law, the first requirement for an acceptance of an offer is that it
must be clear, unequivocal and unambiguous.
…
The second requirement for acceptance of an offer under the common law is that it
must correspond with the offer. Schoeman v IT Management Advisory Services (Pty)
Ltd (2002) 23 ILJ 1074 (LC); [2002] 7 BLLR 672 (LC), a case which Mr Pammenter
for Wildlife referred to the court, is distinguishable from the facts of this case. On the
facts, Landman J found that there had not been a meeting of the minds on material
terms of the agreement. In contrast, in White v Pan Palladium SA (Pty) Ltd 2005 (6)
SA 384 (LC); (2006) 27 ILJ 2721 (LC), another case which Mr Pammenter referred
to the court, even though the parties had not finalized material terms of the contract,
such as the vehicle through which the applicant would be employed, the court found
that an employment contract did exist.
…
Mode of Acceptance
The third requirement under the common law for acceptance of an offer is that the
acceptance must be made in the mode prescribed by the offeror. In Schoeman above,
the parties had stipulated that the agreement had to be in writing and signed by both
parties. As these formalities were not fulfilled, Landman J found that no agreement of
employment had come into existence.
…
Communicate to Offeror
The fourth requirement under the common law is that the offeree has to
communicate acceptance of the offer to the offeror.
…
Acceptance Received?
6 [2008] 10 BLLR 954 (LC); (2009) 30 ILJ 131 (LC) at paras 32-3, 41, 46, 50 and 100.
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The onus of proof is on the party who alleges that a contract exists. Parties
conclude a contract when they consent to be bound to its terms. Consent arises
when one party accepts an offer from the other party. The offeree must
communicate acceptance of the offer in a manner stipulated by the offeror,
unless the offeror expressly dispenses with the communication of acceptance.” (My
added emphasis.)
17. The 1st to 4
th respondents have correctly argued inter alia that:
“…
If formalities are prescribed for the formation of the contract of employment, they
must be observed. It cannot be disputed that for the formation of a contract of
employment in this matter the offer of employment had to be extended to the
Applicant and the Applicant was required to sign a certificate of acceptance of the
offer of employment.
…
It follows that no contract can arise from an uncommunicated offer. This much is
clear in logic and in law.
It is common cause that the offer to employ the Applicant was only formally
extended to him on 25 July 2017 and that he accepted the offer on 1 August 2017. It
is therefore clear that a contract of employment between the Applicant and the
Department only came into existence on 1 August 2017 on which day the
applicant assumed duties and in writing informed the department that he had
accepted the offer of employment. The applicant would therefore only be entitled
to remuneration from 1 August 2017.” (My added emphasis.)
18. The applicant was accordingly not entitled to the payment of any salaries
from February 2017 as no contract of employment had come into existence
at that time.
19. The applicant has correctly argued that had it not been for the application
being launched the 4th respondent may not have revisited the contents of his
letter and in all likelihood he may not have been employed.
20. The challenge in respect of the contents of the letter was correct and if it
had not been withdrawn in the affidavit would have been granted.
21. The applicant in his affidavit had inter alia:
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a) Alleged that he had duly complied with all the requirements to be
appointed.
b) That the letter of appointment that he received in May provided for him
to be appointed in Feb and thus he was entitled to his salary from that
date.
c) The applicant set out who makes these appointments and to whom it was
delegated.
d) The letter sent on behalf of the department indicated that because he had
resigned he was not eligible for appointment.
e) Stated that there is no such policy.
f) Pleaded that the guidelines for re appointment of teachers resigning and
re-entering the system do not specify that educators who have resigned
cannot be re-appointed.
g) Contended that in the circumstances the letter written should be set aside
as pro non scripto as it is baseless and not supported by any legislation.
h) He further contended contrary to what was stated in the letter the
Superintendent General had delegated his powers of appointment to the
Cluster Chief Director.
i) The 4th respondent in his affidavit concedes:
(i) That he was incorrect in his stance regarding re employment where
he states “I have since investigated the matter properly and can
confirm that there are no objections to the appointment of the
applicant”.
(ii) States that the letter had never been formally communicated to the
applicant and that was the reason that the applicant had not
completed a certificate of acceptance which he was required to do
and indicate when he is ready to commence.
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(iii) States he is not certain where the applicant bases his claim that he
is entitled to be appointed retrospectively.
(iv) He went on to say that the department cannot agree to the
retrospective appointment of the applicant as no contract of
employment at the time and the applicant did not render any
services.
(v) He admitted that the governing body and the panel recommended
the applicant for the position of principal.
(vi) He also admitted that the Cluster Chief Director had the delegated
power to appoint the applicant to the position of principal at the
school.
(vii) He stated that he had to investigate the lawfulness of the
appointment.
(viii) He stated that it is not necessary for the court to grant the relief
which the applicant is seeking with regard to the setting aside of
the letter as he has admitted that the delegation is lawful.
j) The applicant in its reply stated:
(a) That the only reason he did not assume duties was that they did
not give him the letter.
(b) He went on to say that it was the conduct of the department that
led him to launching the application.
(c) He confirmed that he assumed duties in August.
k) In light of the 4th
respondent’s stance in the affidavit it is unnecessary to
make the order with regard to ruling that the letter should be regarded pro
non scripto.
l) However, it was warranted at the time of the launching of the application.
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m) The first to fourth respondents have remedied the position by offering the
applicant employment so their conduct is no longer unlawful.
n) The application clearly was necessary and the applicant did attempt to
resolve the matter internally prior to launching the application.
o) The matter warranted two counsel as demonstrated by the fact that both
parties utilized two counsel.
p) The costs of the main application accordingly warrant costs of 2 counsel.
q) The conduct of the respondent does not warrant costs on the scale of
attorney and client.
r) They acted on the advice of the 4th
respondent who was not intentionally
obstructive or misleading but appeared to genuinely believe his erroneous
exposition of the law as expressed in his letter to be correct at that time.
There is accordingly no basis for an attorney/client costs order against
any of the respondents.
s) The respondents made no tender for costs even on a party and party scale
despite the concessions made in the affidavit and the tender of
employment.
t) They however successfully resisted the order in respect of the payment of
arrear salaries and the punitive costs order.
u) They could have obviated incurring further costs by tendering payment of
the application on a party and party scale and they however elected to ask
for the dismissal of the application with costs.
v) The applicant was substantially successful in that he was appointed and
which in all likelihood would not have occurred had he not launched the
application.
w) The applicant’s claim in respect of arrear salaries is understandable. It
may have been misconceived as no agreement came into existence, this
22
was wholly due to the fact that the letter of appointment was not brought
to his attention it appears as a result of the stance adopted by the 4th
respondent regarding his re-employment as expressed in the letter sent to
his attorney.
x) The applicant most certainly would have accepted the offer had it been
conveyed to him.
y) The applicant’s stance accordingly is not unreasonable although not
correct in law and thus not entitling him to the relief in respect of salaries
from February.
z) The applicant:
aa) Has since been employed by the first respondent.
bb) The impugned letter has been withdrawn.
cc) Is not entitled to the salaries from February 2017 since there was no
employment contract in existence at that time.
dd) There is accordingly no need to make any order in terms of the notice
of motion save for the issue of costs.
ee) I accordingly make the following order in respect of the main
application:
A) The 1st to 4
th respondents are directed to pay the applicant’s costs in
respect of the main application such costs to include the costs of 2
counsel and to include all reserved costs in respect of the main
application.
________________________
DAWOOD J
JUDGE OF THE HIGH COURT
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DATE HEARD: 28 MAY 2020
DATE DELIVERED: 27 AUGUST 2020
FOR THE APPLICANT: MR MSTHABE
APPLICANT’S ATTORNEYS: N.Z. MTSHABE INC.
137 YORK ROAD
MEEG BANK BUILDING
MTHATHA
FOR THE RESPONDENTS: MR BODLANI
RESPONDENT’S ATTORNEYS: CHANGFOOT VAN BREDA INC
FIRST, SECOND THIRD AND
FOURTH
C/O POTELWA & COMPANY
43 WESLEY STREET
MTHATHA