in the high court of south africa - saflii · the defendant’s rule 35(14) notice, the defendant...

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.:680/18

SANNIEGRAAN CC PLAINTIFF (Registration Number: 1989/036350/23) and MINISTER OF POLICE DEFENDANT

JUDGMENT

LAUBSCHER AJ

INTRODUCTION

[1] “The fighting was so fierce because the stakes were so low!” This

adaptation of the famed comment made by U.S. foreign policy figure

and Nobel laureate Henry Kissinger with regard to academic politics is

par excellence applicable to the subject matter of this judgement.

Reportable: YES/NO Circulate to Judges: YES/NO Circulate to Magistrates: YES/NO Circulate to Regional Magistrates: YES/NO

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[2] This subject matter of this judgement is money. The legal costs to be

more exact and to be even more specific, the costs relating to three

interlocutory processes within an action in terms of which the Plaintiff,

Sanniegraan CC sued the Defendant, the Minster of Police for the

payment of damages.

[3] The sole question of costs in relation to three interlocutory processes

were argued before this Court on 18 April 2019. Me Swiegelaar

appeared on behalf of the Plaintiff and Mr Scholtz appeared on behalf

of the Defendant. This Court shall proceed to refer to the parties as in

the main action in view of the fact their roles as respectively being an

applicant or respondent were different during the course of the three

interlocutory processes, as is evident from the interlocutory

applications themselves.

[4] For the purpose of adjudicating the question of what an appropriate

order as to costs is in respect of each of the three interlocutory

applications, it is not necessary to deal in any sort of detail with the

nature or merits of the Plaintiff’s claim against the Defendant. Suffice

to state that the Plaintiff is endeavouring to hold the Defendant

vicariously liable for damages which the Plaintiff allegedly suffered as a

result of the averred breach of a legal duty by an official of the

Defendant.

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[4] The three interlocutory applications were the following:

4.1 an application launched by the Plaintiff on 3 August 2018

in terms of Rule 30A(2) of the rules of this Court for the

striking out of the Rule 7(1) notice which the Defendant

delivered on 30 May 2018 (hereafter “the first

interlocutory application”);

4.2 an application in terms of Rule 35(14) launched by the

Defendant against the Plaintiff to compel the Plaintiff to

avail the documents requested in the Rule 35(14) notice to

the Defendant (hereafter “the second interlocutory

application”); and

4.3 an application launched by the Defendant in terms of the

provisions of Rule 30A on 14 December 2018 against the

Plaintiff to set aside a notice of bar which the Plaintiff

delivered on 21 November 2018 (hereafter “the third

interlocutory application”).

[5] On 11 April 2019, this Court made the following order by agreement

between the Plaintiff and the Defendant:

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“1. THAT: The Applicant’s application for the striking out of the

Respondent’s notice of bar dated 20 NOVEMBER 2018 and

delivered on 21 NOVEMBER 2018 be and is hereby

postponed to THURSDAY, the 18th day of APRIL 2019 for

argument in respect on the costs thereof to be heard together

with argument on the Respondent’s application in terms of

Rule 30A(2) for the striking out of the Applicant’s Rule 7(1)-

notice and the Applicant’s application to compel the

Respondent to avail the documents required in the Applicant’s

Rule 35(14)-notice to the Applicant, which applications were

on 8 NOVEMBER 2018 by the Honourable Mr Acting Justice

Petersen by agreement between the parties postponed to

Thursday, 18 APRIL 2019 for argument.

2. THAT: The Applicant’s replying affidavit in his application for the

striking out of the Respondent’s notice of bar dated 20

NOVEMBER 2018,and delivered on 21 NOVEMBER 2018 if

any, and his heads of argument in respect of the aforesaid

application as well as the other two applications referred to in

paragraph 1 (supra) and the Respondent’s heads of argument

in respect of the Applicant’s application for the striking out of

the Respondent’s notice of bar dated 20 NOVEMBER 2018

and delivered on 21 NOVEMBER 2018 have to be delivered

by not later than 12h00 on TUESDAY, 16 APRIL 2019.

3. THAT: The Respondent has to avail copies of the documents

required in the Applicant’s Rule 35(14)-notice by not later than

TUESDAY, 23 APRIL 2019 to the Applicant.

4. THAT: In the event that the Applicant is satisfied that the Respondent

has duly complied with the Applicant’s Rule 35(14)-notice, the

Applicant has to deliver his plea by not later than TUESDAY, 7

MAY 2019.

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5. THAT: In the event that the Applicant is not satisfied that the

Respondent has duly complied with the Applicant’s Rule

35(14)-notice, the Applicant has to notify the Respondent

accordingly by not later than TUESDAY, 30 APRIL 2019.

6. THAT: The Respondent has to comply by not later than TUESDAY, 7

MAY 2019 with the Respondent’s notice as contemplated in

paragraph 4 (supra).

7. THAT: In event of the Respondent failing to comply with the order as

set out in paragraph 5 (supra), the Applicant has to lodge an

application to compel the Respondent to comply with the

aforesaid order by not later than Tuesday, 21 MAY 2019,

which application will be dealt with in accordance with the

Rules of this Honourable Court applicable to interlocutory

applications.

8. THAT: The wasted costs occasioned by the postponement of the

Applicant’s application for the setting aside of the

Respondent’s bar dated 20 NOVEMBER 2018 and delivered

on 21 NOVEMBER 2018 to be costs in the aforesaid

application.”

[6] It is inter alia evident from the above referred to order that:

6.1 the Plaintiff was ordered to avail copies of the documents

referred to in the Defendant’s Rule 35(14) notice by no

later than Tuesday 23 April 2019. However, and as is

evident from the contents of the chronology set out in

detail below the Plaintiff already on 10 April 2019

answered the Rule 35(14) notice delivered by the

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Defendant and availed certain documents to the

Defendant;1;

6.2 upon the receipt of the said documents, and if the

Defendant is satisfied that the Plaintiff has complied with

the Defendant’s Rule 35(14) notice, the Defendant must

deliver its plea by no later than 7 May 2019;

6.3 should the Defendant not be satisfied with the response of

the Plaintiff to the Rule 35(14) notice, the Defendant must

notify the Plaintiff accordingly, in which instance the

Plaintiff must comply with such a notice, failing which the

Defendant may take steps to compel the Plaintiff to comply

with the Rule 35(14) notice.

[7] As is evident from the contents of the above referred to order that

merits of the interlocutory applications are no longer germane and as

such, the only outstanding issue is the question of what an

appropriate order is as to costs in respect of each of the three

interlocutory applications.

RELEVANT CHRONOLOGY

1 See paragraph [23] below.

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[8] In order to adjudicate the question of costs in this mater it is of

importance to have regard to the chronology of relevant events.

These events are set out below.

[9] The combined summons in this matter was served upon the

Defendant on 5 April 2018. The Defendant delivered its notice of

intention to defend the action on 7 May 2018 and accordingly and in

terms of the provisions of Rule 22(1) the Defendant’s plea was due to

be delivered by 4 June 2018.

[11] On 30 May 2018 and thus four days before the Defendant’s Plea was

due on 4 June 2018, the Defendant delivered:

11.1 a notice in terms of Rule 7(1) wherein the Defendant

disputed the authority of the Plaintiff’s attorneys to act on

its behalf and required them to prove their authority; and

11.2 a notice in terms of Rule 35(14) in terms of which the

Defendant requested the Plaintiff to avail the following

documents to the Defendant for the purposes of pleading:

“(a) The CIPC document confirming registration of

the Plaintiff.

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(b) A copy of the title deed of Portion 50 (a Portion

of Portion 24) of the farm Korannafontein 350,

Registration Division I.O., North West Province.

(c) The municipal zoning certificate that the

aforesaid land is registered for agricultural

purposes.

(d) A copy of the affidavit of Mr Jardim as drafted

by Mr GHB Foster which had apparently been

provided to Warrant Officer Kitty.

(e) A copy of the order of Landman J dated 20 July

2015.

(f) The sheriff’s return of service as to how the

order of Landman J dated 20 July 2015 had

been served.

(g) A copy of the order of Gura J dated 8 October

2015.

(h) A copy of all pleadings under case number

216/2015.”

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[12] On 29 June 2018, the Plaintiff responded to the Rule 7(1) by

delivering a notice in terms of the provisions of Rule 30A(1) to the

Defendant, objecting to the Rule 7(1) notice because, so the Plaintiff

averred, the Rule 7(1) notice should have been delivered by no later

than 19 April 2018, i.e within 10 days after it has “…come to the

notice of a party that such person is so acting…”.

[13] In terms of the Rule 30A(1) notice delivered by the Plaintiff, the

Defendant was afforded a period of 10 days to apply for condonation

for the late delivery of the Rule 7(1) notice, failing which the Plaintiff

informed the Defendant that it will proceed to apply for the striking out

of the Rule 7(1) notice.

[14] It is important to note that the heading of this notice delivered by the

Plaintiff reads as follows: “Plaintiff’s notice in terms of Rule 30A(1) in

respect of Defendant’s notice in terms of Rule 7(1)” (Court’s

emphasis) it must also be noted that Rule 30A(1) does not prescribe

a time period within which to deliver the Rule 30A(1) notice, as

opposed to the provisions of Rule 30(2)(b) which does, i.e. 10 days.

There could have been no doubt in the mind of the Defendant that the

Plaintiff is invoking the provisions of Rule 30A and not that of Rule 30.

The reason why this Court emphasises this fact, will be evident below

and once this Court commences to deals with the argument raised by

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the Defendant to resist the Plaintiff’s further steps in terms of Rule

30A.

[15] As stated above, the Defendant’s Rule 7(1) notice was delivered on

30 May 2018 and thus more than 10 days after the summons were

served on the Defendant’s attorneys. No application for condonation

was made by the Defendant to traverse the 10 day time period as

stipulated in terms of Rule 7(1).

[16] On 3 August 2018, the Plaintiff proceeded with an application in

terms of the provisions of Rule 30A(2) to have the Defendant’s Rule

7(1) notice struck out. This application constitutes “the first

interlocutory application”. The Plaintiff requested that the costs of

the application be awarded to the Plaintiff on an attorney and client

scale.

[17] The Defendant on 15 August 2018 opposed the aforementioned

application. The basis set out in the answering affidavit of the

Defendant (which was delivered on 4 October 2018 instead of 20

September 2018, as per an order made by the Honourable Madam

Justice Kgoele, dated 23 August 2018 and to which this Court will

refer again below) for opposing the relief requested by the Plaintiff

was premised on the argument that Rule 30(2)(b) prescribes a 10 day

time period for the filing of a notice and accordingly the Plaintiff’s Rule

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30A(1) notice was filed out of time. The Defendant also applied the

time period of 15 days, as stated in Rule 30(2)(c), to the Rule 30A(2)

application launched by the Plaintiff. As stated above, the Plaintiff did

not invoke the provisions of Rule 30.

[18] As indicated above, the court order by the Honourable Madam Justice

Kgoele ordered the Defendant’s answering affidavit to be delivered on

20 September 2018. No application for condonation for the late filing

of the answering affidavit was made by the Defendant, although the

Defendant did address the issue in the answering affidavit. In the

contents of the answering affidavit the deponent on behalf of the

Defendant did request the Court to condone the late filing of the

answering affidavit.

[19] In terms of the order made by Kgoele J on 23 August 2018, the

Plaintiff’s Rule 30A application was then set down to be argued on 8

November 2018.

[20] By this time in the chronology of events the Plaintiff had not

responded to the Defendant’s notice in terms of Rule 35(14). On 4

October 2018 the Defendant filed an application to compel the

Plaintiff to avail the documents as set out in the Defendant’s Rule

35(14) notice to the Defendant. This application constitutes “the

second interlocutory application”. The Defendant did not request

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a punitive cost order against the Plaintiff in this application. The

Plaintiff on 2 November 2018 filed an answering affidavit to resist this

application by the Defendant. In the answering affidavit the Plaintiff

raise the issue that the Defendant delivered the application to compel

the Plaintiff to avail the documents requested in terms of Rule 35(14)

some 81 court days after the delivery of the documents were due (as

per the provisions of Rule 35(14)). The Plaintiff requested that the

Defendant’s application be dismissed with costs calculated on an

attorney and client scale.

[21] A further issue raised by the Plaintiff in the above referred to

answering affidavit is the fact that Defendant’s plea was due on 4

June 2018. Yet, so the Plaintiff argued, the Defendant only during

October 2018 sought to compel the Plaintiff to avail the documents

which the Defendant avers it require to formulate its plea. In

paragraph 12.1 of the answering affidavit the Plaintiff states its

defence to the Defendant’s application to compel the Plaintiff to avail

the documents requested in terms of Rule 35(14) to the Defendant:

“12.1 I respectfully contend that the Applicant was not entitled to

lodge the application to compel in that:

12.1.1 none of the documents required by the

Applicant in his Rule 35(14)-notice are

relevant to a reasonably anticipated issue in

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the civil action as contemplated in Rule 35(14)

of the Rules of this Honourable Court as they

will not provide the Applicant with a defence to

the Respondent’s claim against him; and/or

12.1.2 the documents required by the Applicant in his

Rule 35(14)-notice had already been furnished

to the Applicant and there is thus no reason or

need for the Respondent to furnish it again to

the Applicant.”

[22] The remainder of the contents of the answering affidavit filed by the

Plaintiff is dedicated to motivating the contents of paragraph 12.1

thereof, as referred to above.

[23] However, and notwithstanding the contents of the above referred to

paragraph 12.1, the Plaintiff, on 10 April 2019, filed a reply to the

Defendant’s notice in terms of Rule 35(14). This response is

comprehensive in nature and it is not clear to this Court why this

response was not delivered by the Plaintiff earlier and prior to it being

necessary for the Defendant to launch an application to compel the

Plaintiff to respond to the Rule 35(14) notice. The Plaintiff’s response

reads as follows:

“TAKE NOTICE that the Plaintiff hereby make copies of the following

documents available to the Defendant for inspection:

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1. Computer-printouts of CIPC search documents issued in

respect of the Plaintiff on 24 April 2014;

1.1 13 June 2015, being the date on which the

cause of action of the Plaintiff in the

abovementioned matter has arisen; and

1.2 to date no changes was made to the

membership of the CC.

2. Deed of Transfer T79784/2014 in terms of which Portion

50 (a Portion of Portion 24) of the farm Korannafontein

350, Registration Division I.Q., North West Province,

measuring 68,4996 hectare (“the farm”) has been

registered in the name of the Plaintiff on 10 October

2014.

3. A municipal zoning certificate confirming that the farm is

registered for agricultural purposes.

4. An affidavit drafted by Mr GHB Foster of Messrs Foster

Attorney, 12 Otto Street, Ottosdal, North West, the

attorneys of record of the Plaintiff herein, for Mr JAP

Jardim (“Jardim”), the only member of the Plaintiff and

deposed and attested to by the latter on 13 June 2015,

which was submitted by Jardim on 13 June 2013 to the

South African Police Service at Ottosdal, North West in

support of a complaint of a contravention of the

Trespass Act, Number 6 of 1959, laid by Jardim on

behalf of the Plaintiff in respect of the unlawful invasion

of the farm, which was registered under Ottosdal CAS

77/6/2015.

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5. The order granted by the Honourable Mr Justice

Landman on Monday, 20 July 2015 in the matter of

Sanniegraaan CC (Registration number

1987/036350/23) versus The Unlawful Occupiers of

Portion 50 (a portion of Portion 24) of the farm

Korannafontein 350, Registration Division I.O., North

West Province and Tswaing Local Municipality, case

number M216/2015 and his judgment delivered on

Wednesday, 23 July 2015.

6. The returns of service issued by the Sheriff of this

Honourable Court in respect of the service of the order

granted by the Honourable Mr Justice Landman on

Monday, 20 July 2015.

7. The order granted by the Honourable Mr Justice Gura

on 8 October 2015 in the matter Sanniegraan CC

(Registration number 1989/036350/23) versus Itumeleng

Malutsi, Lelo Nxaxa, Monti Motsuenyane, Thabiso

Botlhako, the Unlawful Occupiers of Portion 50 (a

portion of Portion 24) of the farm Korannafontein 350,

Registration Division I.O., North West and Tswaing

Local Municipality, case number M216/2015.

8. The documents of record filed in the matter referred to in

paragraph 8 (supra), are available for inspection at Smit

Stanton Attorney and are available to the Defendant to

make copies thereof.”

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[24] Whilst the adjudication of the Defendant’s application to compel

compliance with its notice in terms of Rule 35(14) (which were

launched on 4 October 2018 and defended on 2 November 2018, as

referred to above) was still pending, the Plaintiff on 21 November

2018 delivered a notice of bar in terms of the provisions of Rule 26

affording the Defendant 5 days within which to file a plea, or be barred

from doing so. In this regard one should keep in mind that:

24.1 the delivery of the Defendant’s plea was already due on 4

June 2018; and

24.2 on 30 May 2018 the Defendant delivered the notice in

terms of Rule 7(1) wherein the Defendant disputed the

authority of the Plaintiff’s attorneys to act on its behalf and

required them to prove their authority and the notice in

terms of Rule 35(14) in terms of which the Defendant

requested the Plaintiff to avail documents to the Defendant

for the purposes of delivering its plea.

[25] On 26 November 2018 the Defendant responded to the above

referred to notice of bar delivered by the Plaintiff, by delivering a

“Notice in terms of Rule 30 and 30A”. In terms of this notice the

Defendant stated that the Plaintiff has taken an “irregular step”,

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alternatively did not complied with the rules of court in the following

manner:

1. On 21 November 2018 the Plaintiff filed a notice of bar.

The aforesaid notice of bar constitutes an irregular

step as there is a pending opposed application in

terms of the provisions of Rule 35(14) before the

above Honourable Court.

2. The Defendant needs the documents so requested to file

its plea, and cannot file pleadings without same.

3. Consequently an order in the pending application in terms

of Rule 35(14) is a pre-requisite before further pleadings

can be filed in the proceedings.” (Court’s emphasis)

[26] The Plaintiff did not remove the cause of the Defendant’s

aforementioned compliant and the Defendant proceeded on 14

December 2018 to launch an application requesting that the Plaintiff’s

notice of bar be set aside with costs on an attorney and client scale.

This application constitutes “the third interlocutory application”.

The Defendant’s application was premised on the contents of the

Rule 30 and 30A notice referred to above and of which this Court has

quoted the contents. The Defendant requested that the costs of the

application be awarded to the Defendant on an attorney and client

scale.

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[27] The Plaintiff in turn, opposed this application on 21 January 2019 and

filed an answering affidavit on 19 February 2019. The Plaintiff’s

defence to the Defendant’s application was premised on the argument

that the application launched by the Defendant to compel the Plaintiff

to avail the documents referred to in the Rule 35(14) notice is being

opposed by the Plaintiff, and in any event, so the Plaintiff argued, the

mere deliver of the Rule 35(14) notice do not suspend the running of

the dies in terms of Rule 22(1) (i.e. 20 days from the delivery of the

notice of intention to defend the action) for the delivery of the

Defendant’s plea. The Plaintiff averred that the Defendant’s

application for the setting aside of the notice of bar was “…without

any legal basis and that it is not only ill-conceived and ill-advised but

also constitutes an abuse of the process and that the [Defendant]

consequently has to be ordered to pay the costs thereof on a punitive

scale.” This interlocutory application was then set down for hearing

on 28 February 2019.

[28] Having regard to the aforestated chronology, the legal principles

stated below must be applied to the facts.

THE APPLICABLE LEGAL PRINCIPLES

[29] As stated above this matter only concerns the issue of costs and as

such it is first and foremost opportune to recite certain well-known

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principles pertaining to the making of orders as to costs. The so-

called “basic rule” regarding the making of costs orders was set out in

Kruger Bros & Wasserman v Ruskin2 by Innes CJ and subsequently

followed in numerous matters in order for same to be trite: “the rule of

our law is that all costs – unless expressly otherwise enacted – are in

the discretion of the Judge. His discretion must be judicially

exercised, but it cannot be challenged, taken alone and apart from the

main order, without his permission.”

[30] The corner stone of the above referred to “basic rule” is the fact that

the discretion to award costs and the manner in which it is done rests

with the presiding Judge. The qualification is that this “discretion”

must be judicially exercised. This regard Cilliers The Law of Costs3

states the following: The Appellate Division has more than once laid

down the principle that the court’s discretion must be exercised

judicially upon a consideration of the facts of each case, and that in

essence it is a matter of fairness to both sides. “Judicially” means 2 1918 AD 63 at 69, Graham v Odendaal 1972 (2) SA 611 (A) at 616,

Mouton v Die Mynwerkersunie 1977 (1) SA 119 (A), Claude Neon Lights

(SA) Ltd v Peroglou 1977 (1) SA 575 (C), Christies Fish Supplies (Pty) Ltd

v Ornelas Fishing Co (Pty) Ltd 1978 (3) SA 431 (C), Lornadawn

Investments (Pty) Ltd v Minister van Landbou 1980 (2) SA 1 (A), Bowman

v Howe 1980 (2) SA 226 (W), Steynberg v Labuschagne [1998] 3 All SA

384 (O) at 390, Intercontinental Exports (Pty) Ltd v Fowles

1999 (2) SA 1045 (SCA) at 1055F–G, Coetzee v National Commissioner

of Police 2011 (2) SA 227 (GNP) at 259.

3 LexisNexis, paragraph 2.03

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“not arbitrarily”. It has been held in the leading case of Fripp v Gibbon

1913 AD 354 at 363. that, where the magistrate or judge “brings his

unbiased judgment to bear upon the matter and does not act

capriciously or upon any wrong principle”, a court of appeal may not

interfere with the honest exercise of the discretion. The court’s

discretion is wide, though not unfettered.”

[31] Cilliers4 proceeds to state that: “As far as the exercise of any

discretion is concerned it has been held that there are two enquiries

to be made. The first is to establish the material facts. The second

is to evaluate those facts towards the correct objective.” (Court’s

emphasis)

[32] What is the “…correct objective…” which must be achieved in the

evaluation of the material facts of the matter? The “…correct

objective…” is to effect “…fairness to both sides…”.

[33] The “basic rule” is therefore that the awarding of costs is in the

discretion of the Court. This “basic rule” must be distinguished from

the so-called “general rule”. The “general rule” stipulates that the

costs follows the result, i.e. the successful party is entitled to the

costs.

4 Supra at paragraph 2.03.

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[34] With regard to the “relationship” between the “basic rule” and the

“general rule”, Cilliers proceeds to state: “It has been held on a

number of occasions that the court’s wide discretion in this regard is

not an unlimited discretion. In Levben Products (Pvt) Ltd v Alexander

Films (SA) (Pty) Ltd 1957 (4) SA 225 (SR) at 227 Murray CJ held that

the fundamental principle underlying an award of costs is

twofold. In the first place the award of costs is a matter in which

the trial judge is given a discretion. This discretion must be

exercised upon grounds on which a reasonable person could

have come to the conclusion arrived at. The learned judge

proceeded to hold that, second, there is the general rule that costs

should be awarded to the successful party, a rule which should

not be departed from without good grounds. In Graphic

Laminates CC v Albar Distributors CC 2005 (5) SA 409 (C) at 412

Van Reenen J gave the following exposition of some of the most

important rules relating to awards of costs: ‘It is trite that liability for

costs in civil proceedings is a separate issue that is governed by its

own criteria. The fundamental principle is that liability for costs is

in the discretion of the court that is called upon to adjudicate the

merits of the issues between the parties. (see Kruger Bros &

Wasserman v Ruskin 1918 AD 63 at 69) on the basis of the facts and

circumstances of each individual case (see Cronje v Pelser

1967 (2) SA 589 (A) at 593). In the absence of express statutory

provisions to the contrary, the general rule that costs follow the

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result is subservient to that fundamental principle (see eg

Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd

2003 (1) SA 204 (T) at 215E–F.’” (Court’s emphasis and footnotes

omitted)

[35] As is evident from the contents of the chronology recited above both

parties are calling for costs to be awarded in their favour against the

other party on an attorney and client scale. Cilliers5 states the

following regarding “attorney and client” costs: “The ordinary rule is

that the successful party is awarded costs as between party and

party. An award of attorney and client costs is not lightly granted

by the court: the court leans against awarding attorney and

client costs, and will grant such costs only on “rare” occasions.

It is clear that normally the court does not order a litigant to pay the

costs of another litigant on the basis of attorney and client unless

some special grounds are present. An award of attorney and client

costs is granted by reason of some special considerations

arising either from the circumstances which gave rise to the

action, or from the conduct of the losing party. The list is not

exhaustive. Where the court would in the light of the other facts not

have hesitated to make an award of attorney and client costs, it

refused to do so where there were faults on both sides, as it

considered itself not justified in penalising one side only. The

5 Supra at paragraph 4.09.

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Constitutional Court has said that the granting of punitive costs should

‘…never ... be an easy option’. The Labour Appeal Court has said

that such an award ‘…is exceptional and is intended to be very

punitive and indicative of extreme opprobrium.’ … In Van Wyk v

Millington 1948 (1) SA 1205 (C) it was pointed out that the court’s

reluctance to award attorney and client costs against a party is based

on the right of every person to bring his complaints or his alleged

wrongs before the court to get a decision, and he should not be

penalised if he is misguided in bringing a hopeless case before the

court. If, however, the court is satisfied that there is an absence

of bona fides in bringing or defending an action it will not

hesitate to award attorney and client costs.” (Court’s emphasis

and footnotes omitted)

[36] Turning to the different rules of court which are involved in the factual

matrix of the three interlocutory applications, the following

considerations are of importance:

36.1 Rule 7(1):

(a) Rule 7(1) reads as follows:

“Subject to the provisions of sub-rules (2) and

(3) a power of attorney to act need not be filed,

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but the authority of anyone acting on behalf of a

party may, within 10 days after it has come to

the notice of a party that such person is so

acting, or with the leave of the court on good

cause shown at any time before judgment, be

disputed, whereafter such person may no

longer act unless he satisfies the court that he

is authorised so to act, and to enable him to do

so the court may postpone the hearing of the

action or application.”

(b) The Defendant delivered its notice of intention

to defend the Plaintiff’s action on 7 May 2018

and as such, it must have come to the

“…notice of [the Defendant] that such

person is so acting…” as envisaged in the

provisions of Rule 7(1) at the latest on that

date.

36.2 Rule 30A:

(a) Rule 30A reads as follows:

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“(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.”

(b) Contrary to the provisions of Rule 30(2)(b),

Rule 30A prescribes no time limit within which a

party must deliver the notice as contemplated in

Rule 30A(1). There is also no time limit (again,

contrary to Rule 30(2)(c) of the rules)

prescribed within which an application

contemplated in terms of Rule 30A(2) must be

launched. This application must only be

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launched “…after…” the lapsing of the 10 day

period of grace, afforded for compliance with

the rules, as per the Rule 30A(1) notice.

36.3 Rule 35(14):

(a) Rule 35(14) reads as follows:

“After appearance to defend has been entered,

any party to any action may, for purposes of

pleading, require from the other party to make

available for inspection within five days a clearly

specified document or tape recording in his

possession which is relevant to a reasonably

anticipated issue in the action and to allow a

copy or transcription to be made thereof.”

(b) In respect of non-compliance with a notice in

terms of Rule 35(14), Harms Civil Procedure in

the Superior Courts6 states that: “A notice

under rule 30A and an application to compel

may follow a failure to comply with a request

under this provision.” The same view is shared

6 LexisNexis at paragraph B35.28.

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by Van Loggerenberg Erasmus Superior Court

Practice.7

(c) In respect of the effect of a notice of bar upon a

request in terms of Rule 35(14), both Harms8

and Van Loggerenberg9 shares the view that:

“Delivery of a notice in terms of Uniform

Rule of Court 35(14) requesting the

production of certain documents referred to

in the plaintiff’s amended particulars of

claim does not suspend the five-day time

limit mentioned in the notice of bar.”

(d) As authority for the above referred to view both

writers rely on the matter of Potpale

Investments (Pty) Ltd v Mkhize 2016 (5) SA 96

(KZP). The view expressed by the authors

must accordingly be viewed in the context of

the facts which were under consideration in the

Potpale Investments (Pty) Ltd v Mkhize matter.

7 Juta at D1-482 read with D1-478.

8 Supra at paragraph B35.28.

9 Supra at page D1-478 to D1-480.

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The following is stated in this matter at

paragraphs [20] and [23]:

“[20] The defendant says that it has a right to the

production of the documents and that this would

be negated if the time to deliver a plea was not

suspended. This is not so. In the first place,

neither Protea Assurance nor Unilever held that

the entitlement to the documents was absolute

and that, by necessary implication, the time to

put up a plea or affidavit was suspended until

the notice had been complied with. Secondly,

the defendant is not without remedy. As was

done in Protea Assurance, and as is pertinently

provided for in rule 27(1) and (2), the

defendant could have applied to extend the

time limits within which to deliver the plea

and have brought an application to compel.

He chose not to do so.

….

[23] This reasoning commends itself to me as

applying equally to the present matter. The

delivery of the rule 35 notice did not

suspend the period in which the defendant

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was obliged to deliver a plea or other

document referred to in rule 22. When he was

confronted with a rule 26 notice, he was put to

an election. He could either have done his best

to plead and so have defeated the bar or he

could have applied to extend the time within

which to plead and to compel production of

the documents for that purpose. If he had

pleaded, it would have been open to him to

apply to compel delivery of the documents and,

if so advised, to thereafter seek to amend his

plea. Since he did not plead or apply to extend

the period in which to do so, he was ipso facto

barred on 2 June 2015. There is therefore no

basis for contending that setting down the

application for default judgment amounted to an

irregular step. The interlocutory application

must be dismissed as regards that relief.”10

(e) As to the remedies to the avail of a defendant

who has delivered a notice in terms of Rule

10 Note that in this instance the Defendant brought an application to compel

prior to delivery of the notice of bar and subsequent to the delivery of the

notice of bar delivered a notice in terms of Rule 30 and 30A, which

culminated in an application to set the notice of bar aside.

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35(14) but who is being placed under bar in

terms of Rule 26 prior to compliance with the

Rule 35(14) notice, Harms11 states that: “On

receipt of a rule 26 notice of bar a defendant is

put to an election of either pleading – thereby

defeating the bar – or applying for an extension

of the time within which to plead.”

(f) It must be noted that in the Potpale Investments

(Pty) Ltd v Mkhize12 matter the facts were that

the notice in terms of Rule 35(12) and Rule

35(14) was delivered by the defendant

subsequent to the plaintiff delivering its notice

of bar in terms of Rule 26. It is stated in the

said matter that: “The crisp question is

whether the delivery of the rule 35 notice

suspended the five day period given in the

rule 26 notice in which to deliver a plea.

Apart from a comment made in a textbook,

which I will deal with later, I was not referred to

any authority directly on point. I also did not

11 Supra at paragraph B35.28.

12 Supra at paragraph 4.

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come across any.”13 (Court’s emphasis) The

point being that in the Potpale Investments

(Pty) Ltd v Mkhize matter the five-day bar

period was already running when the defendant

delivered a notice in terms of Rule 35(12) and

(14). This is not the case in casu.

(g) In casu the Defendant’s notice in terms of Rule

35(14) was delivered before the Plaintiff

delivered its Rule 26 notice of bar. In fact and

of material importance in this matter, the

Defendant proceeded to launch an application

to compel the Plaintiff to comply with the Rule

35(14) notice.14 The Plaintiff opposed this

application and filed an answering affidavit.

The adjudication of this application to compel

was pending, when the Plaintiff delivered its

notice of bar.15

(h) In the view of this Court the facts stated in the

premise clearly distinguish this matter from the

13 At paragraph [10] of the Potpale matter.

14 As referred to in paragraph [20] above.


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Potpale Investments (Pty) Ltd v Mkhize

matter.16 The Potpale Investments (Pty) Ltd v

Mkhize matter was correctly decided on its

facts. The facts before this Court is different.

In this matter the crisp question is not

whether the delivery of a Rule 35(14) notice

stay the running of the dies under Rule 26,

but rather whether it constitutes an

“irregular step” to deliver a notice of bar in

terms of Rule 26 under circumstances

16 The facts in this matter is also different from the facts in the matter of

Maseko v Member of the Executive Council, Department of Education

,North West Province16 (1572/2016) [2018] ZANWHC 47 (4 October

2018). In the Maseko matter the plaintiff instituted an action against the

defendant which the defendant defended and on 21 February 2017, the

defendant served a notice in terms of Rule 35(14) on the plaintiff

requesting certain document to be availed to the defendant. On 27

February 2017, the plaintiff replied to the Rule 35(14) notice. The

Defendant was of the view that the response to the Rule 35(14) notice was

“…inadequate and has not properly replied and/or does not constitute a

reply contemplated in Rule 35(14)…”. However, and dissimilar to the facts

in this matter, the defendant did not launch an application to compel the

plaintiff to duly comply with the Rule 35(14) notice. On 8 March 2017 the

plaintiff served a notice of bar on the defendant. The defendant then

delivered a notice in terms of Rule 30(2)(b) wherein it expressed it

dissatisfaction with the manner in which the plaintiff responded to the Rule

35(14) notice as referred to above. The Court, following the dicta in

Potpale Investments (Pty) Ltd v Mkhize found that the Rule 35(14) notice

did not suspend the running of the dies of the bar and the defendant

should have applied for an extension of time for the filing of its plea.

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where an application to compel compliance

with a notice in terms of Rule 35(14) was

launched, defended and the adjudication of

this application is pending.

(i) In casu the Defendant’s application to compel

compliance with the notice delivered in terms of

Rule 35(14) was to compel the Plaintiff to avail

for inspection certain specified documents

“…for purposes of pleading…”. Merely applying

the dictum in the Potpale Investments (Pty) Ltd

v Mkhize matter to the facts in casu will have

the result of the Plaintiff escaping the

consequences of the Defendant’s application to

compel, rendering same nugatory by the

delivery of the Rule 26 notice of bar, of which

the five days stipulated therein will lapse before

the application to compel is adjudicated. This

result is unjust and negate the aim and purpose

of Rule 35(14) and frustrates the “future

conducting of the litigation.”17

17 See SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO

1981 (4) SA 329 (O) at 333 G-H referred to below.

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(j) A further indication that the mere application of

the dictum in the Potpale Investments (Pty) Ltd

v Mkhize matter upon the facts in this instance

will lead to an unjust result is if one considers

the application of the remedy stated in the

Potpale Investments (Pty) Ltd v Mkhize to the

facts in this matter. At the time when the

Defendant launched the application against the

Plaintiff to compel the Plaintiff to avail the

documents stated in the Rule 35(14) notice

there was no need for the Defendant to apply

“…for an extension of the time within which to

plead…” or to request the staying of the dies for

the delivery of the its plea. In fact, the Plaintiff

was inactive from 4 June 2018 until 21

November 2018, a period of more than five

months, prior to the Plaintiff electing to proceed

to deliver a notice of bar. Having regard to the

fact that the adjudication of the application by

the Defendant to compel the Plaintiff to comply

with the Rule 35(14) was at the time of the

delivery of the Rule 26 bar pending, it will be

illogical to expect of the Defendant to apply for

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an extension of time within which to deliver its

plea.

(k) The plaintiff proceeded to deliver the notice of

bar on 21 November 2018 knowing full well that

the adjudication of the Defendant’s application

to compel compliance with its Rule 35(14)

notice is pending. This action by the Plaintiff

accordingly triggered the effect referred to in

paragraph (i) above, i.e rendering the

Defendant’s application to compel compliance

with the Rule 35(14) notice, nugatory if one

departs from the premise that the Rule 35(14)

notice does not suspend the 5 day period

stipulated by Rule 26.

(l) An application to compel the delivery of

document in terms of the provisions of Rule

35(12) was dealt with by the Court in the matter

of Unilever Plc & Another v Polagric (Pty) Ltd.18

In that matter the applicant launched interdict

proceedings based on an alleged breach of its

trademark by the respondent. The respondent

18 2001 (2) SA 329 (C) at 336C–I.

http://www.saflii.org/cgi-bin/LawCite?cit=2001%20%282%29%20SA%20329

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delivered a rule 35(12) notice and, when the

documents were not forthcoming, the

respondent applied to compel their production.

This application did not provide for the staying

of the dies to deliver an answering affidavit. In

that matter Thring J held: “The respondent is

not required to depose to or deliver its opposing

affidavits before it has been afforded an

opportunity of inspecting and copying the

documents referred to in Rule 35(12)’” The

similarities between the provisions of Rule

35(12) and that of Rule 35(14) are clear and the

position stated in respect of Rule 35(12) by

Unilever Plc & Another v Polagric (Pty) Ltd must

find application mutatis mutandis when a party

invoke the provisions of Rule 35(14).

(m) Furthermore, and also differentiating the facts in

this matter from the facts in the Potpale

Investments (Pty) Ltd v Mkhize matter is the

fact that the Defendant upon being confronted

with the Rule 26 notice of bar proceeded on 26

November 2018 (and thus prior to the 5 day

period of the notice of bar expired) to deliver a

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notice in terms of Rule 30 and Rule 30A

claiming that the delivery of the notice of bar

constituted an “irregular step”, alternatively a

non-compliance with the rules.19 This notice

subsequently culminated in the Defendant’s

application to have the notice of bar set aside

which was delivered on 14 December 2018.

The delivery of the notice of bar evidently does

not constitute a non-compliance with the Rules

of Court as contemplated in terms of Rule 30A.

Does it constitutes an “irregular step” under the

circumstances of this case?

(n) The objective of Rule 30 was stated in SA

Metropolitan Lewensversekeringsmaatskappy

Bpk v Louw NO20 where the following was said

by Flemming J: “I have no doubt that Rule 30(1)

was intended as a procedure whereby a

hindrance to the future conducting of the

litigation, whether it is created by a non-


20 1981 (4) sa 329 (O) at 333G-H.

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observance of what the Rules of Court intended

or otherwise, is removed.”21

(o) It is the view of this Court that the delivery of a

notice of bar in terms of Rule 26, as it was done

in casu and under circumstances where the

adjudication of an application to compel the

availing of documents required to formulate a

plea was pending constitutes a defeat of the

aim and purpose of Rule 35(14). The delivery

of the notice of bar in terms of Rule 26 by the

Plaintiff constitutes “…a hindrance to the future

conducting of the litigation… by [the] non-

observance of what the Rules of Court

intended…” and hence an “irregular step”.

(p) By reason of the fact that the Plaintiff has

responded to the Rule 35(14) notice it is not

necessary for this Court to deal with the merits

of the Defendant’s application to compel

compliance with the Rule 35(14) notice more

than this Court has done in paragraph (i) above.

21 Also see Erasmus supra at page D1-351.

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THE FIRST INTERLOCUTORY APPLICATION

[37] The Defendant delivered its Rule 7(1) notice on 30 May 2018 and

thus out of the time period prescribed by Rule 7(1). Having regard to

the fact that the Defendant’s Rule 7(1) notice was delivered out of the

prescribed 10 day time period stipulated by the said rule, the Plaintiff

was correct in launching the actions in terms of Rule 30A which it did,

which include the application in terms of the provisions of Rule 30A(2)

to have the Defendant’s Rule 7(1) notice struck out. The defence

raised by the Defendant to this Rule 30A(2) application, i.e. that the

time limits of respectively 10 days for the notice procedure and 15

days for the launching of an application as prescribed in terms of Rule

30 must be applied to this application, are not sound in law.

THE SECOND INTERLOCUTORY APPLICATION

[38] The Defendant was entitled to utilised and rely on the provisions of

Rule 35(14) to obtain insight into certain documents in order to

prepare the Defendant’s plea. It is evident from the contents of the

Rule 35(14) notice delivered by the Defendant that the documents

referred to in the said notice were germane to the issues in the matter

and required for the purposes of pleading. The Defendant’s

application to compel the Plaintiff to avail the documents as set out in

the Defendant’s Rule 35(14) notice to the Defendant was accordingly

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warranted. In fact, the Plaintiff subsequently by agreement and out of

its own accord complied with the provisions of the Rule 35(14) notice.

The Plaintiff should have done so earlier in the chronology of the

litigation.

THE THIRD INTERLOCUTORY APPLICATION

[39] The delivery of the notice of bar by the Plaintiff at the time when the

adjudication of the Defendant’s application to compel compliance with

the Rule 35(14) notice was pending constituted, as concluded by this

Court above, an “irregular step” as contemplated in terms of the

provisions of Rule 30. The Defendant’s application, under the

prevailing circumstances, to have the Plaintiff’s notice of bar set aside

was therefore sound in law and warranted. The Plaintiff’s defence to

this application premised mainly on the contention that the delivering

of the Rule 35(14) notice do not suspend the running of the dies in

terms of Rule 22(1) is not a sound and sustainable defence under the

circumstances.

[40] In as far as the making of punitive cost orders are concerned, it is

evident from the chronology of this matter that both parties (the

Plaintiff in regard to the first interlocutory application and the

Defendant in regard to the second and third interlocutory applications)

acted in an ill-advised fashion and in an obstructive manner which

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only served to prolong the litigation and incur unnecessary costs.

Punitive cost orders will serve to discourage such actions in future.

[41] The Plaintiff requested a punitive cost order in the first interlocutory

application and the Defendant did the same in the third interlocutory

application. The Defendant did not request a punitive cost order in

the second interlocutory application.

ORDER

[42] Having regard to the above-mentioned facts and legal principles, this

Court hereby makes the following order:

1. In respect of the application in terms of Rule 30A(2)

wherein the Plaintiff applied to have the Defendant’s

notice in terms of Rule 7(1) struck out, the Defendant

is ordered to pay the Plaintiff’s costs calculated on an

attorney and client scale;

2. In respect of the application launched by the

Defendant to compel the Plaintiff to comply with the

notice in terms of Rule 35(14), the Plaintiff is ordered

to pay the Defendant’s costs calculated on a party and

party scale;

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3. In respect of the application launched by the

Defendant to set aside the notice of bar which the

Plaintiff delivered in terms of Rule 26, the Plaintiff is

ordered to pay the Defendant’s costs calculated on an

attorney and client scale.

__________________________

N G LAUBSCHER

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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Appearances: Date of Hearing : 18 April 2019 Judgment Handed Down on : 03 May 2019 Counsel for the Applicant : Adv H. J. Scholtz Instructed by : The State Attorney Counsel for the Respondent : Adv C. Zwiegelaar Instructed by : Smit Stanton Inc.

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