Dibakoane v Head of Department: Department of Culture, Sports and Recreation (Mpumalanga Province) (3309/2020) [2021] ZAMPMBHC 63 (5 October 2021)

IN THE HIGH COURT OF

SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: 3309/2020

(1) REPORTABLE: YES/NO

(2) OF INTREST TO OTHER JUDGES: YES/NO

(3)

REVISED

In the matter between:

PRETTY

FLAVIA DIBAKOANE

Applicant

and

HEAD OF DEPARTMENT:

DEPARTMENT OF CULTURE,

SPORTS AND RECREATION

(MPUMALANGA PROVINCE)

First Respondent

DEPARTMENT OF SOCIAL

DEVELOPMENT

(MPUMALANGA)

Second Respondent

MEC: DEPARTMENT OF

SOCIAL DEVELOPMENT

(MPUMALANGA PROVINCE)

Third Respondent

JUDGMENT

GREYLING-COETZER

AJ

INTRODUCTION

[1] This is an application in terms of Rule 30A read with Rule 6(11), wherein the applicant seeks the first- to third respondents to be directed to comply with Rule 53(1)(b) of the Uniform Rules of Court, by dispatching to the Registrar and the applicant a complete record containing all documents and all electronic records as set out in the applicant’s notice of motion.

[2] The applicant further seeks that the first- to third respondents’ answering affidavit, served on 12 February 2021, be declared an irregular step. From the relief sought it appears that the applicant seeks both an order in terms of Rule 30A as well as Rule 30.

BACKGROUND

[3] The facts of the matter are largely common cause. The applicant instituted review proceedings against the respondents’ decision to terminate the applicant’s employment.

[4] Instead of filing the record as required in terms of Rule 53(1)(b), the respondents filed an answering affidavit on wherein the jurisdiction of the court was challenged on the basis that the applicant seeks to review and set aside the applicant’s purported termination of employment in circumstances where Rule 53 is inapplicable to labour disputes. Nor is it an administrative actions in terms of the provisions of the Constitution, the common law or the The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’)

[5] It is also on these basis that the respondents contend that they need not comply with Rule 53(1)(b).

[6] Pursuant to the respondents’ answering affidavit being filed, and on 25 February 2021, the applicant served a Rule 30A notice wherein she calls upon the respondents to despatch the record within a period of 10 (ten) days. The respondents were further informed that should they fail to do so, the applicant would apply for an order compelling compliance within 5 (five) days.

[7] Peculiarly, this Rule 30A notice also contains statements found in a Rule 30 notice similarly as the relief sought herein. The Rule 30A notice sets out that the answering affidavit amounted to an irregular step, in that the applicant’s notice of motion provided that the record should be furnished and the applicant to supplement its founding affidavit before such an answer ought to be filed.

[8] The respondents did not heed the Rule 30A notice, resulting in this application being launched.

[9] Rule 53 provides as follows:-

“53 Reviews

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or

chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected - (a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and (b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desire to give or make, and to notify the applicant that he or she has done so.

(2) …

(3) ...

(4) The applicant may within ten days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

(5) … (a) … (b) within thirty days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he or she may desire in answer to the allegations made by the applicant.”

[10] Rule 30 applies to irregular proceedings and provides as follows:-

“30 Irregular Proceedings

(1) A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside.

(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 subrule (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.

(4) Until a party has complied with any order of court made against him in terms of this rule, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.”

[11] It is therefore clear that this Rule can only be used if the conditions referred to in sub-section (2) are satisfied.

[12] Rule 30A provides a remedy to parties where a defaulting party has not acted in compliance with the Rules of Court. Rule 30A reads as follows:-

“30A Non-compliance with rules

(1) Where a party fails to comply with these Rules or with a request made or notice given pursuant thereto, or with an order or direction made in a judicial case management process referred to in Rule 37A, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order (a) that such rule, notice, request, order or direction be complied with; or (b) that the claim or defence be struck out.

(2) Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice be made to the court and the court may make such order thereon as to it seems fit.”

[13] This Rule has far less stringent requirements than that of Rule 30(2). An example of the use of this Rule would be an application to enforce compliance with the Rule which does not have its own remedy and should therefore be preceded by a Rule 30A notice.[1] Rule 30A provides a general remedy for non-compliance with the Rules.

RULE 30

[14] As set out supra, Rule 30 has stringent requirements which stand to be met before it can be employed. The notice delivered to the respondents on 25 February 2021 needs to be considered against this backdrop.

[15] Noticeably the heading of the notice refers to Rule 30A as opposed to Rule 30. For as far as aforementioned was merely a typographical error and was indeed an attempt of compliance with Rule 30(2)(b) it is relevant to consider when this application was launched. The current application seems to have been launched on 30 April 2021 and served on 13 May 2021, which is not compliant with the pre-requisite set out in Rule 30(2)(c). Absent an application for condonation, the applicant cannot in the circumstances rely on Rule 30 and is therefore not entitled to the relief sought under prayer 3 of the notice of motion.

RULE 30A

[16] The question whether there has been compliance as contemplated in Rule 30A does not give rise to the exercise of a discretion by the court hearing the application.

[17] As held by the Constitutional Court in Helen Suzman Foundation v Judicial Service Commission,[2] what stands to be determined as an objective question of law or fact, is whether there has been compliance with the rules of court or not. If found that there has been non-compliance, the court is afforded a discretion in terms of Rule 30A(2). This discretion needs to be exercised judicially on a proper consideration of all the relevant circumstances. In exercising this discretion, relevant factors will include (a) the reason for non-compliance with the rules, request, notice, order or direction concerned, and in this regard whether the defaulting party has recklessly disregarded his obligation.

[18] In the present matter it is common cause that the respondents failed to comply with Rule 53 in not making the record available. This however does not automatically lead to an order to compel same. What now stands to be considered are the reasons why the respondents failed to do so, and whether those reasons are sound so as to excuse them from compliance.

[19] It was argued on behalf of the applicant that she is entitled to compliance with Rule 53 and that the in limine point of jurisdiction raised by the respondents is not one which is determined at a preliminary point of the matter. Reliance was placed on the matter of Chirwa v Transnet Ltd and Others[3] wherein Langa CJ in the dissenting judgment held as follows:-

“The determination of whether the dismissal does constitute administrative action is part of the merits of the claim, not a jurisdictional

requirement. The finding, however, rests on the case as pleaded by Ms Chirwa. She formulated her case on the basis of PAJA, and a court must assess its jurisdiction in the light of the pleadings. To hold otherwise would mean that the correctness of an assertion determines jurisdiction, a proposition that this court has rejected.”

[20] It was held in the matter of President of the Republic of South Africa v Democratic Alliance and Others[4] that the President was under a duty to despatch a record of the proceedings relating to the impugned decision to the Registrar of the High Court in which the review was launched. It was also further held that it is not open to the President to take view that Rule 53 does not apply and therefor to ignore the Rule. It is not for him as a litigant to determine whether the Rule applies or not.[5]

[21] According to the applicant, the issue of jurisdiction is one which will be considered once all the pleadings have been filed, and the applicant’s case as it stands is brought in terms of PAJA and the principle of legality and therefore the court has prima facie jurisdiction.

[22] In opposition it was argued on behalf of the respondents that the applicant was a civil servant within the Ministry of the third respondent, whose contract of employment was terminated. The court not enjoying jurisdiction in respect of the cause of action and Rule 53 is wholly inapplicable in labour disputes. Founded on these points in limine the respondents are entitled to avoid compliance with Rule 53(1)(b).

First point in limine: Lack of jurisdiction by the court

[23] It was argued that jurisdiction is the power vested in the court which is to determine and dispose of a matter. The issue of jurisdiction must be resolved before any other issue(s) in the proceedings. It was submitted this is so, because if a court does not have jurisdiction,

it is precluded from dealing with the merits of the matter before it.[6]

[24] According to the respondents, this court, just like the labour court has no jurisdiction to determine the unlawful termination of employment, irrespective of Section 77(3) of the Basic Conditions of Employment Act 75 of 1997 (as amended).

Second point in limine: Non-compliance with Rule 53

[25] It was argued that it is trite law that Rule 53 is crucial for courts to facilitate and regulate applications for review. The record of proceedings enables the applicant and the court to fully appreciate the lawfulness or unlawfulness of the decision maker. In conclusion it was submitted that the Rule regulates reviews in terms of PAJA and cannot be extended to labour reviews.

[26] Section 145 of the Labour Relations Act 66 of 1995, being the exclusive legal framework applicable and available to the applicant, provides that the relevant bargaining council first has to be approached. In this respect the respondents relied on the matter of Chirwa (supra).

[27] The respondents therefore content they are excused from compliance with Rule 53(1)(b), as the court, on the pleadings of the applicant, lacks jurisdiction and Rule 53 is inapplicable.

[28] Ordinarily one would raise an objection to the jurisdiction of the court in trial proceedings by way of a special plea, but where it is apparent from the pleadings that the court had no jurisdiction, the matter may be decided on exception.

[29] In application proceedings affidavits constitute both the pleadings and the evidence, and the manner in which the respondents have elected to raise, at the outset and even before their answering affidavit was filed through correspondence, and thereafter in their answering affidavit, would seem to be akin to that of an exception.

[30] The crucial time for determining whether a court has jurisdiction is the time when proceedings are commenced with, and once jurisdiction is established, it continues to exist to the end of the proceedings, even though the ground upon which it was established has ceased to exist.[7]For purposes of the objection it must be established therefore whether the court had jurisdiction when the proceedings commenced. As held in Chirwa supra the applicants pleadings, being the applicant’s Rule 53 notice and founding affidavit, needs to be considered to determine

whether the court has jurisdiction or not.

[31] In the matter of Communication Workers Union and Another v Telkom SA and Another[8] wherein an objection to the jurisdiction of the court was first raised in the respondent’s heads of argument, it was held that the procedure adopted by the respondent in objecting to the court’s jurisdiction was acceptable because (i) the applicants bore the onus of establishing that the court had jurisdiction and should consequentially have set out sufficient facts in their founding affidavit to justify a conclusion that the court had jurisdiction – the objection was therefore analogous to taking an exception in

action proceedings; (ii) the objective of the Labour Relations Act 66 of 1995 was to create mechanisms for the resolution of labour disputes, and one of these mechanisms is the Labour Court; and (iii) the applicants had not objected to the manner in which the objection to jurisdiction had been raised and had not sought to file any

further evidence.

[32] However aforesaid cannot merely be blindly applied. In casu it is necessary to considered it in respect of the context of Rule 53. It was held in the matter of Helen Suzman Foundation (supra) that an applicant should not be deprived of the benefit of the procedural right to the record unless there is clear justification

therefore. Similarly in the matter of General Council of the Bar of South Africa v Jiba and Others[9] it was held that compliance with Rule 53 regarding time frames and providing a complete record is not just a procedural process, but is a substantive requirement which serves to ensure that the substance of the decision is properly put at the fore at an early stage; any attempt to frustrate this should be met with displeasure by our courts. The procedure allows the applicant to interrogate the decision and if necessary, to supplement his grounds of review under sub-rule (4).

[33] In terms of Rule 53(4) an applicant may, pursuant to receipt of the record, and within 10 (ten) days, deliver a notice and accompanying affidavit, amend, add or vary its notice of motion and supplement its affidavit. From this it is clear that the record informs the pleadings.

[34] Therefore, a jurisdictional challenge, as raised by the respondents, is to be determined on the applicant’s pleadings, but the relevant pleadings herein may be informed by the record. This will result in the pleadings being supplemented through employment of the entitlement set out in Rule 53(4) post receipt of the record.

[35] The question then begs whether a jurisdictional point can effectively be dealt with, within the context of Rule 53, before the record has been filed in circumstance were the record can inform the applicant’s pleadings. The answer is yes provided it is established that the record will not inform the applicant’s pleadings. Differently put, the record will not cause an amendment to the notice of motion or supplementary affidavit which will bring it within the court jurisdiction.

[36] For the court to be able to determine whether the record will or will not inform the pleadings regard needs to be had to the pleadings, that being the notice and founding affidavit by the applicant. So too in the present instance the objection is based thereon that the court does not have jurisdiction when one has regard to the pleadings of the applicant. Unfortunately said pleadings, save for the notice of motion, were not included in the documents placed before me in the present application.

[37] Consequentially and due to the fact that the above question cannot be determined on the papers filed on record, the only available conclusion is that for as far as the record may inform the pleadings, as a foreshadowed by Rule 53(4) the respondents are obliged to file the record before the issue of jurisdiction can be determined.

[38] Ex facie the notice of motion, it appears that in addition to seeking the record and reasons as provided for in Rule 53 the applicant seeks:

38.1 all documentation constituting the record of the employment contract;

38.2 Ministerial Handbook used to employ the applicant;

38.3 all executive summaries together with the full supporting documents of all correspondence sent and received, together with annexures thereto, which has been exchanged in respect of internally within the ranks of the first-, second- and third respondents, externally such as correspondences;

38.4 resolutions by various functionaries, including reports that serve before such functionaries when the resolution or decision was adopted;

38.5 minutes of all various functionaries of the respondents, particularly, the second and third respondents, including mechanical or transcript forms, all schedules, attendance registers of meetings, legal opinions received in respect of the legality or otherwise of the actions of the functionaries of the respondents;

38.6 minutes of discussions at ANC relating to the reasons advanced by the third respondent leading to the termination of the applicant’s contract;

38.7 information on how other support staff were accommodated; and

38.8 all meeting minutes held between the first- and second respondents.

[39] Aforementioned appears to be much broader than one would ordinarily be entitled to in this respect, and as much as the purpose of the record is to enable the applicant to fully assess the lawfulness of the decision making process, the applicant is not entitled to mount a fishing expedition, seek copies of document a kind to discovery nor to seek documents from third parties.[10]

[40] Only the part of the record which is relevant to the decision or ruling sought to be reviewed needs to be furnished.

[41] Cost is ultimately in the discretion of the court. The general rule is that cost follows the event, and that the successful party should be awarded his or her costs. However, in casu the applicant is only partially successful which does not justify the entitlement to costs.

[42] Consequentially, the following order is made:-

1. The first- to third respondents are directed to comply with Rule 53(1)(b) of the Uniform Rules of Court by despatching to the Registrar the records of such proceedings sought to be corrected or set aside, together with such reasons as may be required or desired to give or make, within 15 days of the date of this order.

2. Each party to pay their own cost.

DATE OF HEARING:

31 August 2021

DATE OF JUDGMENT:

5 October 2021

FOR THE APPLICANT:

Adv MM Ncongwane

Instructed by Macbeth Attorneys Inc

E-mail: info@macbethattorneys.co.za

FOR THE RESPONDENTS: Adv S Sethene

Instructed by QQ Mkhatshwa Inc

E-mail: virtuallaw247@gmail.com

pretty@qqma.co.za

[1] Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others 2012 (4) SA 113 (GSJ)

[2] 2018 (4) SA 1 (CC) at par [79]

[3] [2007] ZACC 23; 2008 (4) SA 367 (CC) at par [169]

[4] 2020 (1) SA 428 (CC)

[5] At par [62]

[6] Metlika Trading Ltd and Others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) at par [25]

[7] Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A)

[8] [1999] 2 All SA 113 (T)

[9] 2017 (2) SA 122 (GP) at 161I to 162D – This matter was overturned on appeal in Giba and Another v General Council of the Bar of South Africa and Another 2019 (1) SA 130 (SCA), but not on this point

[10] Stevens and Others v Swart N.O. and Others 2014 (2) SA 150 (GSJ) at 155D