Malgas and Others v Minister of Justice and Correctional Services (73418/2016) [2024] ZAGPPHC 185 (21 February 2024)

Malgas and Others v Minister of Justice and Correctional Services (73418/2016) [2024] ZAGPPHC 185 (21 February 2024)

The court found that the condonation application brought by the plaintiffs was not envisaged by the parties or the court when the Rule 33(4) separation order was made. The application was inconsistent with the procedural framework established for the trial, which required the issue of prescription to be determined first, followed by non-compliance with section 3 of Act 40 of 2002 only if prescription was not upheld. The notice of motion for condonation was therefore irregular and improper. The court held that it would be procedurally incorrect to entertain the condonation application alongside the trial on the merits, and accordingly set aside the notice of motion as irregular. Costs were...

Citation
[2024] ZAGPPHC 185
Parties
Plaintiff: Peter Thembekile Malgas; Plaintiff: Alfred Disco Biyela; Plaintiff: Boswell John Mhlongo; Defendant: Minister of Justice and Correctional Services
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 February 2024
Case Number
73418/2016
Procedural Posture
Civil Trial / Rule 30/30 a Application During Trial
Outcome
The plaintiffs' condonation application was declared irregular and set aside. Costs were awarded against the applicants, including costs for two counsel.
Judges
Makhoba
Legal Topics
Condonation Application, Irregular Proceedings, Rule 30, Rule 33 Separation, Urgent Application
Civil Procedure Condonation Application Irregular Proceedings Rule 30 Rule 33 Separation Urgent Application

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 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Peter Thembekile Malgas

Plaintiff

Alfred Disco Biyela

Plaintiff

Boswell John Mhlongo

Plaintiff

Minister of Justice and Correctional Services

Defendant

Procedural Posture

Civil Trial / Rule 30/30 a Application During Trial

Legal Issues

  1. 1 Whether the plaintiffs' application for condonation in terms of section 3(4) of Act 40 of 2002 is procedurally regular during trial.
  2. 2 Whether the notice of motion dated 13 February 2024 constitutes an irregular proceeding under Rule 30/30A.
  3. 3 Whether the court can hear the condonation application in light of the prior Rule 33(4) separation order.

Ratio Decidendi

The court found that the condonation application brought by the plaintiffs was not envisaged by the parties or the court when the Rule 33(4) separation order was made. The application was inconsistent with the procedural framework established for the trial, which required the issue of prescription to be determined first, followed by non-compliance with section 3 of Act 40 of 2002 only if prescription was not upheld. The notice of motion for condonation was therefore irregular and improper. The court held that it would be procedurally incorrect to entertain the condonation application alongside the trial on the merits, and accordingly set aside the notice of motion as irregular. Costs were...

Court Disposition

The plaintiffs' condonation application was declared irregular and set aside. Costs were awarded against the applicants, including costs for two counsel.

Orders

  • The notice of motion dated 13 February 2024 is declared to be irregular and is set aside.
  • The applicants are to pay the costs, including costs consequent upon the employment of two counsel.