Magwentshu v Minister of Safety & Security (2248/12) [2013] ZAECMHC 18 (26 September 2013)

Magwentshu v Minister of Safety & Security (2248/12) [2013] ZAECMHC 18 (26 September 2013)

The court held that the delivery of two notices of intention to defend by different attorneys did not constitute an irregular step under Rule 30, as the language of Rule 19(1) is directory and permissive, not peremptory. The notices themselves complied with the requirements of Rule 19 and did not advance the proceedings nearer completion. The plaintiff suffered no prejudice as a result of the alleged irregularity, and the objection was of a highly technical nature. The Rule 30 application was unnecessary, and non-litigious remedial options could have been pursued. The court exercised its discretion to dismiss the plaintiff's application and granted the defendant's application regarding...

Citation
[2013] ZAECMHC 18
Parties
Plaintiff: Siwaphiwe Magwentshu; Defendant: Minister of Safety & Security
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
26 September 2013
Case Number
2248/12
Procedural Posture
Civil Procedure / Rule 30 Applications Regarding Irregular Steps and Notices to Defend
Outcome
Plaintiff's Rule 30 application dismissed; defendant's Rule 30 application granted in part.
Judges
Z.M. Nhlangulela
Legal Topics
Rule 30 Irregular Steps, State Liability Act, State Attorney Act, Notice of Intention to Defend, Prejudice Requirement, Costs Award
Civil Procedure Rule 30 Irregular Steps State Liability Act State Attorney Act Notice of Intention to Defend Prejudice Requirement Costs Award

Case Brief

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Parties

Siwaphiwe Magwentshu

Plaintiff

Minister of Safety & Security

Defendant

Procedural Posture

Civil Procedure / Rule 30 Applications Regarding Irregular Steps and Notices to Defend

Legal Issues

  1. 1 Whether the delivery of two notices of intention to defend by different attorneys constitutes an irregular step under Rule 30.
  2. 2 Whether the plaintiff suffered prejudice as a result of the alleged irregularity.
  3. 3 Whether the notice to plead and notice of bar served by the plaintiff were regular steps given the pending Rule 30 application.

Ratio Decidendi

The court held that the delivery of two notices of intention to defend by different attorneys did not constitute an irregular step under Rule 30, as the language of Rule 19(1) is directory and permissive, not peremptory. The notices themselves complied with the requirements of Rule 19 and did not advance the proceedings nearer completion. The plaintiff suffered no prejudice as a result of the alleged irregularity, and the objection was of a highly technical nature. The Rule 30 application was unnecessary, and non-litigious remedial options could have been pursued. The court exercised its discretion to dismiss the plaintiff's application and granted the defendant's application regarding...

Court Disposition

Plaintiff's Rule 30 application dismissed; defendant's Rule 30 application granted in part.

Orders

  • The plaintiff’s Rule 30 application is dismissed.
  • Paragraph (a) of the defendant’s Rule 30 application is granted.