Malebye v Head of the Department of Transport and Roads: North- West Provincial Administration (882/05) [2006] ZANWHC 31 (4 May 2006)

Malebye v Head of the Department of Transport and Roads: North- West Provincial Administration (882/05) [2006] ZANWHC 31 (4 May 2006)

The court found that the answering affidavits of the First and Third Respondents were filed prematurely and out of sequence, contrary to the procedure prescribed by Rule 53 of the Uniform Rules of Court. The Applicant was entitled to the full record before being required to supplement his founding affidavit, and only thereafter should the Respondents file their answering affidavits. However, the court exercised its discretion to condone the irregular step due to the lengthy delays in the matter and the absence of substantial prejudice to the Applicant. The court held that the interlocutory application was justified and awarded costs against the First and Third Respondents to mark the...

Citation
[2006] ZANWHC 31
Parties
Applicant: Nchaupe Solomon Malebye; Respondent: Head of the Department of Transport and Roads: North West Provincial Administration; Respondent: Tebogo Rakgoale NO; Respondent: Head of the Department of Public Works: North West Provincial Administration
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
4 May 2006
Case Number
882/05
Procedural Posture
Interlocutory Application / Application to Set Aside Answering Affidavits as Irregular Steps Under Rule 30
Outcome
The application to set aside the answering affidavits is dismissed, but costs are awarded to the Applicant.
Judges
R D Hendricks
Legal Topics
Uniform Rules of Court Rule 53, Uniform Rules of Court Rule 30, Premature Filing of Affidavits, Review Proceedings, Supplementary Affidavit
Civil Procedure Uniform Rules of Court Rule 53 Uniform Rules of Court Rule 30 Premature Filing of Affidavits Review Proceedings Supplementary Affidavit

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Nchaupe Solomon Malebye

Applicant

Head of the Department of Transport and Roads: North West Provincial Administration

Respondent

Tebogo Rakgoale NO

Respondent

Head of the Department of Public Works: North West Provincial Administration

Respondent

Procedural Posture

Interlocutory Application / Application to Set Aside Answering Affidavits as Irregular Steps Under Rule 30

Legal Issues

  1. 1 Whether the answering affidavits filed by the First and Third Respondents were irregularly and prematurely delivered contrary to Rule 53(4) and (5).
  2. 2 Whether the premature filing of answering affidavits should be set aside under Rule 30.
  3. 3 Whether the Applicant suffered substantial prejudice due to the irregular step.

Ratio Decidendi

The court found that the answering affidavits of the First and Third Respondents were filed prematurely and out of sequence, contrary to the procedure prescribed by Rule 53 of the Uniform Rules of Court. The Applicant was entitled to the full record before being required to supplement his founding affidavit, and only thereafter should the Respondents file their answering affidavits. However, the court exercised its discretion to condone the irregular step due to the lengthy delays in the matter and the absence of substantial prejudice to the Applicant. The court held that the interlocutory application was justified and awarded costs against the First and Third Respondents to mark the...

Court Disposition

The application to set aside the answering affidavits is dismissed, but costs are awarded to the Applicant.

Orders

  • The answering affidavits filed on behalf of the First and Third Respondents stand.
  • The Applicant shall file his supplementary affidavit, if any, within ten days from the date of this order.