Matshayana v Member of the Executive Council, Department of Education and Others (2545/2017) [2020] ZAECMHC 37 (27 August 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION: MTHATHA)

CASE NO. 2545/2017

In the matter between:

MPISI MATSHAYANA

APPLICANT

And

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF EDUCATION,

EASTERN CAPE PROVINCE

1ST RESPONDENT

THE SUPERINTENDENT-GENERAL, DEPARTMENT

OF EDUCATION, EASTERN CAPE PROVINCE

2ND RESPONDENT

THE DISTRICT DIRECTOR, BUTTERWORTH

3RD RESPONDENT

THE DISTRICT: LEGAL SERVICES

MR EDWARD SCHEUN, DEPARTMENT OF EDUCATION,

EASTERN CAPE PROVINCE

4TH RESPONDENT

MKHUSELI NONDLAZI

5TH RESPONDENT

JUDGMENT

DAWOOD J:

1. The parties elected to deal with this matter as a whole inclusive of the interlocutory and main applications.

2. The parties’ stance in this regard has necessitated a practical approach to the adjudication of the disputes between the parties in order to deal with the merits of the main application in an expeditious pragmatic and just an equitable manner.

3. The applicant herein had brought a rule 30 application and the 1st to 4th respondents had brought an application for condonation.

4. The 1st to 4th respondents had brought an application for joinder of the 5th respondent in order to seek cost orders against him personally in respect of the applicant’s rule 30 application and the

application for condonation. They elected to join him as a respondent, not as a third party. Such an order was granted.

5. The firth respondent then, it is common cause, filed his answering affidavit out of time.

6. The 1st to 4th respondents (and not the applicant) served the 5th respondent with a rule 30 notice and upon no formal application for condonation forthcoming brought an application in terms of rule 30 as against the 5th respondent.

7. The applicant did not seek any costs orders as against the 5th respondent.

8. The applicant and 1st to 4th respondents had reached agreement with regard to the rule 30 application and the application for condonation save that the 1st to 4th respondents had sought a costs order against the 5th respondent in respect of those costs.

9. The applicant consented to the late filing of the answering affidavits by the first to fourth respondents being condoned and that the applicant be granted leave to withdraw the rule 30 application as against the 1st to 4th respondents.

10.

The only outstanding issue in that regard was the issue of who was to pay those costs. In order to make that determination the rule 30 application brought by the 1st to 4th respondents as against the 5th respondent needs to be considered at this stage.

11.

I shall now deal with the rule 30 application brought by the 1st to 4th respondent wherein they sought to set aside the 5th respondent’s affidavit filed on the 17 May 2019 as an irregular proceeding.

a) The fact that this affidavit was filed out of time is common cause.

b) The 5th respondent however alleges that it has applied for condonation in the answering affidavit itself and referred this Court to paragraphs 42 and 43 of the 5th respondent answering affidavit at pages 127 and 128 which reads as follows:

“this affidavit, is filed late by about 2 (two) days. Not 1 (one) party will be prejudiced by this. The lateness has been occasioned by the fact that I am deposing to this affidavit whilst in East London. Counsel drafted and sent these papers by email to me. At the time of receipt of the papers on my email, I was out of office on a work mission in Port Elizabeth and East London. I called Counsel on Wednesday 15 May 2019 and enquired about the papers, I unfortunately did not get him. I tried again on Thursday 16 May 2019 in the afternoon. I got through to him and he informed me that he had emailed the papers to me during the course of the weekend on Sunday, 12 May 2019. Unfortunately, I had not had access to my email since Friday 10 May 2019 when I left my office and thereafter travelled to Port Elizabeth on Monday morning, 13 May 2017.

On learning that the papers were lodged in my electronic mail address, I arranged for my secretary to print, scan and email same to me so I could print, depose and serve the respondents’ attorney in East London whilst enroute to Mthatha. I accordingly, apply for this Court to extend my period for the service of this affidavit upon the respondents’ attorneys to Friday, 17 May 2019 and filing at Court to Monday, 20 May 2019.”

c) It is evident from the reading of this affidavit that what the 5th respondent sought was an extension of the dies not technically the condonation for the late filing of the affidavit. He nonetheless sought an indulgence from the court recognizing that he had not compiled with the rules of court.

d) There was no formal application for condonation technically, though a case was made out to condone the late filing, if regard is had to the contents of the relevant paragraphs and he uses the word apply.

e) Counsel for the 5th respondent was accordingly correct in his head when he conceded that there was no application for condonation but that he sought

condonation from the bar even though in argument he went on to say that those paragraphs were an application for condonation, presumably

relying on the words “apply for the court to extend the period”.

f) The first to fourth respondents accordingly had correctly stated that there was an irregularity.

g) I am not certain that the court can extend the dies in any event as the time periods are stipulated in the rules. The court can only condone non-compliance with the rules where a case has been made out.

h) The fifth respondent failed to remove the cause of complaint or bring the necessary application for condonation.

i) The rule 30 application was accordingly correctly launched.

j) The 5th respondent, albeit only in argument from the bar asked the court to take cognizance of the averments made in paragraphs 42 and 43 as referred to above and grant condonation.

k) Whilst accepting that Quinn SC argument that it was bizarre to ask the court to have regard to the impugned affidavit in support of such an application he also recognized the court could exercise its discretion in this regard.

l) The 1st to 4th respondents relied upon Hano Trading CC v JR 209 Investments (Pty) Ltd and Another[1] for the proposition that the late filing could not be condoned in the absence of an application for condonation and is regarded as pro non scripto. It was inter alia held in that case as follows:

“Rule 6(5)(e) establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.

This court stated in James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H, that:

‘It is in the interests of the administration of justice that the well-known and well established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor desirable. In any event, I do not find it necessary to enter upon any recital or evaluation of the various considerations which have guided Provincial Courts in exercising a discretion to admit or reject a late tendered affidavit (see e.g. authorities collated in Zarug v Parvathie, 1962 (3) SA 872 (N)). It is sufficient for the purposes of this appeal to say that, on any approach to the problem, the adequacy or otherwise of the explanation for the late tendering of the affidavit will always be an important factor in the enquiry.’

It was then later stated by Dlodlo J in Standard Bank of SA Ltd v Sewpersadh & another 2005 (4) SA 148 (C) in paras 12-13:

‘The applicant is simply not allowed in law to take it upon himself and (to) file an additional affidavit and put same on record without even serving the other party with the said affidavit. . .

Clearly a litigant who wished to file a further affidavit must make formal application for leave to do so. It cannot simply slip the affidavit into the Court file (as it appears to have been the case in the instant matter). I am of the firm view that this affidavit falls to be regarded as pro non scripto.’

To permit the filing of further affidavits severely prejudices the party who has to meet a case based on those submissions. Furthermore, no reason was placed before the court a quo for requesting it to exercise a discretion in favour of allowing the further affidavits. Consequently the court a quo was correct in ruling that the affidavits were inadmissible.” (My added emphasis.)

m) This decision however dealt with the position where further affidavits were sought to be introduced not with the filing of answering

affidavit that was filed out of time although it was also filed out of time and accordingly does not change the position regarding the issue of prejudice and the fact that the court in any event dealt with the requirement of prejudice therein indicating that it is a relevant consideration.

n) The relevant portions of ‘Rule 30 - Irregular Proceedings

(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 sub rule (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.”

(a) Prejudice

In De Klerk[2] the court had this to say:

“The prejudice which is relevant for the purposes of Rule 30 (1) requires more than that. It is true that on receipt of the notice of bar the attorney had to read it, to consider it, and to decide what to do next. But at the point where that decision was taken, he had to take the correct decision. At the point of making that decision (by which time most of the effort and costs already alluded to had come into being), he had to be led by the prejudice which his client would suffer if he did not bring a Rule 30 application. He had to decide whether his client would be prejudiced in the further conduct of the case if an irregular step, which I will take the present notice to be, is not set aside. When the matter comes before Court, that is the nature of prejudice, which the Court in turn, should assess. If that is not the true test, the Court will have to continue hearing inappropriate applications, which are too frequently presented in this Court. An example is a recent application to set aside as an irregular step a request to attend a Rule 37 pre-trial conference. The grounds of the application were that the request had been delivered before the close of pleadings. The aforesaid limited extent of essentially financial prejudice would also have been present. But nothing really detrimental would come out of simply not responding to the said request. Because of the absence of prejudice, that application was refused. I have no grounds to believe that other Judges would have had a different approach to that matter.

It must again be emphasised that Rule 30 (1) applications should succeed only if there is prejudice related to proceeding with the litigation. See SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O).”

In Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others[3] it was held that:

“During argument Mr Ginsburg did not press for an order in the Rule 30 application and took up the attitude that he would concentrate on the real issue: the composition of the record which is the real object of the counter-application. Nevertheless, I did not understand Mr Ginsburg to abandon the relief sought in the Rule 30 application.

Mr Van der Linde ultimately also did not press for relief in terms of prayer 1 of the applicant’s counter-application. He also concentrated on the composition of the record, which is the subject of prayer 2 of the counter-application (as amended during argument).

With regard to the Rule 30 application Mr Van der Linde pointed out that such an application will be granted only where the irregular step would cause prejudice to the applicant seeking to set it aside. In support of this argument he referred to Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 276F-H; SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 333D-F and 333H-334E; De Klerk v De Klerk 1986 (4) SA 424 (W) at 426F-427B; Consani Engineering (Pty) Ltd v Anton Steinecker Maschinenfabriek GmbH 1991 (1) SA 823 (T) at 824G-H and Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a L H Marthinusen 1992 (4) SA 466 (W) at 469G. The prejudice that is referred to is prejudice which will be experienced in the further conduct of the case if the irregular step is not set aside. There is no prejudice if the further conduct of the case is not affected by the irregular step

and the irregular step can simply be ignored.”

In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO[4] the court held the following:

“Where such prejudice is absent, a decision to set the irregular proceeding aside will not be given. On the contrary, the irregularity may be overlooked. Cf Herbstein and Van Winsen The Civil Practice of the Superior Courts in SA 3rd ed at 386 and in particular the decisions in Distins Seed Cleaning and Packing Co (Pty) Ltd v Stuart Wholesalers 1954 (1) SA 383 (N); Marais v Century Insurance Co Ltd 1960 (3) SA 33 (W). In Theron v Haylett 1917 WLD 140 the Court, whilst emphasising the need for precision in regard to a summons, said:

“the principle is that unless the person on whom a summons is served can show he has been prejudiced by formal defects the summons should stand”.

Such an approach would be in accordance with the view that

“objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.””

In Minister of Prisons and Another v Jongilanga[5] the court had the following to say:

“The Court is given a general discretion to condone any non-compliance with the Rules of Court by Rule 27 (3). In addition to such general discretion the Court also has the power to condone an irregular proceeding in terms of Rule 30(1) read with Rule 30 (3).

…

It would then appear that the Rules which had to be applied by BOTHA J in Pincoos’ case gave the learned Judge no discretion to condone the irregularity, whereas Rule 30 with which we are presently concerned

does give such discretion to the Court.

Having come to the conclusion that the summons in the present matter is not a nullity, it remains for me to consider whether, in the exercise of my discretion, I should condone the defects.

Counsel for the respondent submitted that I should condone the irregularity, while counsel for the applicant argued that even should I hold that the summons is not a nullity, I should refuse to condone and should set the summons aside. There is no substantive application by the respondent for condonation before me but in the final paragraph of the affidavit of Mr Ntonga filed on behalf of the respondent it is prayed that the irregularity be condoned. The question of possible condonation was fully argued before me and accordingly I do not consider a formal application to be essential in the present matter. See O’Donoghue’s case supra at 39F.

It does not seem to me that the applicants have been prejudiced by the fact that the address for service furnished in the summons is irregular. The defect may have caused the applicants inconvenience, but this does not mean they have been prejudiced. It was argued by counsel for the applicants that the applicants were prejudiced by the irregularity in that no valid address was furnished where the respondent would accept service of documents and that accordingly it was not possible to serve process on the respondent. However, as I see the position, the applicants were not without a remedy, they were entitled to approach this Court for relief under Rule 30, as they have in fact done. Should I condone the irregularity and order that the summons be amended to furnish a proper address for service, the defect will be remedied and the applicants will be in no worse position than they would have been in had a proper address for service been furnished in the first instance.

Were it not for the fact that if the summons is set aside it will be possible for the applicants to raise the defence of prescription should the respondent issue a fresh summons in this matter, I do not think that any Court would have hesitated to condone the irregularity in the summons. It would have been pointless to set the summons aside. As was said in Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 278F:

“No doubt parties and their legal advisers should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”” (My added emphasis.)

o) There clearly has been an irregularity and parties should not be permitted to float the rules of court and the time periods prescribed therein or there will be total chaos and the administration of justice would be prejudiced and thrown into disarray.

p) The first to fourth respondents have not set out any factors demonstrating any prejudice and none is found in this case especially

since the fifth respondent was mindful of the delay and sought an indulgence in his papers.

q) The fact of the matter is that the 5th respondent did not comply with the rules of court and did not file his affidavit timeously.

r) The 5th respondent was obliged to do so and his failure to do so is per se prejudicial to the administration of justice. The rules of court cannot lightly be disregarded.

s) However, I accept that the 5th respondent delay was not deliberately or intended to disregard the rules but as stated in his affidavit due to circumstances beyond his control.

t) It is in accepting his explanation that this Court finds that indeed there was an irregularity but it is not one that warrants his

affidavits being regarded as pro non scripto.

u) The first to fourth respondents in any event would not as of right have been entitled to reply thereto and the applicant clearly had no interest in the dispute between the first and fourth respondent and made it clear that they were not seeking any costs order against the fifth respondent.

v) There accordingly would be no prejudice to the first to fourth respondents if the affidavit was admitted despite the irregularity.

w) On the other hand, the fifth respondent would be severely prejudiced if the affidavit was not admitted as an adverse costs order may be made against him based on the uncontroverted averments by the first to fourth respondents.

x) In the exercise of my discretion and having regard to the fact that no prejudice was demonstrated to the first to fourth respondents I am despite the irregularity disposed to allow the affidavit and condone the late filing thereof in the exercise of my discretion having regard to the fact that the parties want the entire matter disposed off and it would not in the circumstances be in the interest of justice to direct the 5th respondent to file an application for condonation.

y) The 1st to 4th respondent could have accepted the explanation furnished for the late filing as contained in the 5th respondent affidavit and the fifth respondent could have simply brought an application for condonation when he was served with the rule 30 notice. It is unfortunate that this Court had to be burdened with this application in circumstances where sense could have prevailed.

z) In the circumstances of this case I am not disposed to making any costs order in favour of either party since each had been partially

successfully and both could have obviated the need for such an application.

aa)In the circumstances I make the following order in respect of the rule 30 application launched by the 1st to 4th respondents as against the 5th respondent.

(i) The late filing of the affidavit by the fifth respondent constitutes an irregular step.

(ii) The 1st to 4th respondents have failed to demonstrate that such late filing was prejudicial to them.

(iii) The late filing of the fifth respondent affidavit is condoned.

(iv) Each party to pay his or its own costs in respect of this interlocutory application.

12.

I now turn to the issue of costs in respect of the rule 30 application launched by the applicant against the 1st to 4th respondents and the application for condonation brought by the 1st to 4th respondents for the late filing of their answering affidavit prior to getting into the merits of the main application. The 1st to 4th respondents have confirmed that they are not seeking a costs order against the 5th respondent, in respect of the main application.

a) The main contention by the 1st to 4th respondents is that they acted swiftly throughout and had not been made aware of the court orders and the notice in terms of rule 30 and even the rule 30 application or even the initial order placing them on terms to file answering affidavits because the same was not brought to their erstwhile attorney, the fifth respondent who was the person to whom the file had been allocated.

b) They most certainly would have brought an application for condonation timeously and obviated the need for the rule 30 application if they were made aware of the notice by their then representative of the 5th respondent who was in the employ of the state attorney’s office.

c) They accordingly aver that his breach was of such a nature that it warranted a punitive cost order against him personally and that the 1st to 4th respondents should not be held liable for these costs. In the main application, the heads of argument of the first to fourth respondents

had the following to say in this regard at paragraphs:

“3.3 The conduct of the litigation on behalf of the Department passed through the hands of several attorneys employed by the State Attorney, Mthatha, including Mr Nondlazi who appears to have been instructed to attend to the matter by the Head of the Office of the State Attorney, Mthatha, Mr Tshitshi.

3.3.1 In Lushaba v MEC for Health, Gauteng the court held that:

“It is so that the legal representatives sometimes make errors of law, omit to comply fully with the rules of court or err in other ways related to the conduct of the proceedings. This is an everyday occurrence. This does not, however, per se ordinarily result in the Court showing its displeasure by ordering the particular legal practitioner to pay the costs from his own pocket. Such an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the Court feels compelled to mark its profound context. Examples are, dishonesty, obstruction of the interests of justice,

irresponsible and grossly negligent conduct, litigating in a reckless manner, misleading the Court, gross incompetence and a lack of care.”

3.4 The Constitutional Court ordered the office of the State Attorney, Pretoria to pay costs de bonis propriis on a scale as between attorney and client in circumstances where the State Attorney failed to file affidavits in terms of an Order of Court from which the Court inferred that the MEC was ‘not interested in assisting the Court in resolving important constitutional litigation’, but where in truth a recently qualified and inexperienced attorney in the employ of the State Attorney had failed to read the directives issued by the Registrar of the Constitutional Court had to do with the failure of the State Attorney to provide an explanation for ‘a lamentable want of professional responsibility’. The constitutional court held:

“[54]. An order of costs de bonis propriis is made against attorneys where a Court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the Court’s displeasure. An attorney is an officer of the court and owes a court an appropriate level of professionalism and courtesy. Filing correspondence from the Constitutional Court without first reading it, constitutes negligence of a severe degree. Nothing more need be added to the sorry tale already related to establish that this is an appropriate case for an order of costs de bonis propriis on the scale

as between attorney and client. The order is made against the office of State Attorney, not personally against the attorney concerned. This Court’s displeasure is primarily directed against the Office of State Attorney in Pretoria, where systems of training and supervision appear to be woefully inadequate.”

3.4.2 In this regard it should be remembered that while the Department was obliged to utilize the services of the State Attorney, Mthatha, the Department did so through its own attorneys who are employees of the Directorate of Legal Services who represented the Department’s attorney and was bound to perform ‘work as is by law, practice and custom performed by attorneys’.

3.5 In appropriate circumstances, our Courts have not hesitated to order attorneys to pay costs de bonis propriis. This is achieved through the exercise of a wide and unfettered discretion in relation to costs and is frequently ordered without notice to the attorneys after a consideration of his conduct as it merges from the papers and/or the evidence. Even persons who are not parties can be ordered to pay costs.

3.6 Accordingly, Nondlazi, alternatively the State Attorney, Mthatha, failed to inform the Department of the Order of this Honourable Court of 4 July 2017 and the Applicant’s Rule 30 (2) notice nor did they react appropriately or at all. This resulted in the Applicant’s Rule 30 application. The application should not have been necessary. The cause of complaint would not have arisen in the first place, and in the second place, would have been cured by a simple condonation application on very different grounds to those concerning the negligence of Nondlazi and the Office of the State Attorney, Mthatha. In consequence, the Department applies for costs against Nondlazi in his personal capacity, alternatively against the Office of the State Attorney, Mthatha.” (My added emphasis.)

d) The 5th respondent resisted this explaining inter alia, that he was on sick leave when the initial order was taken and was not informed of its contents and he was also not aware of the rule 30 notice. Other members of the state attorney’s office dealt with the matter from time to time until it was taken away from him.

e) The fifth respondent also did not receive some of the correspondence from the 4th respondent and there was a delay in getting instruction.

f) He cannot be held responsible for other members of his office failing to report to him.

g) He admittedly did not personally follow up on what had occurred in the matter in his absence despite the fact that the matter was allocated to him.

h) There was no negligence on his part personally and most certainly none that warranted the court showing its displeasure by making a de bonis propriis costs order against him.

i) The first to fourth respondents joined him personally and not the office of the state attorney in their bid to seek a costs order against him.

j) They have failed to demonstrate that a costs de bonis propriis order is warranted as against him personally.

k) I am in the circumstances of this case not satisfied that his individual contact warrants a personal punitive cost order against

him personally de bonis propriis.

l) That being the case and in light of the fact that there is a concession that the applicant correctly brought the rule 30 application the 1st to 4th respondents are to pay such costs.

m) The applicant did not oppose the condonation application launched by the 1st to 4th respondents but would nonetheless have incurred costs in the perusal of the application and making that decision not to oppose.

n) They accordingly would have incurred some costs and are entitled to the costs attendant thereto.

o) The 1st to 4th respondents are accordingly liable to pay to the applicant such costs as were reasonably incurred in the application for condonation

brought by the 1st to 4th respondents.

p) These costs would be the costs of a single counsel as the interlocutory matters were not complex.

q) I shall make no order as to costs as between the 1st to 4th respondents and the fifth respondent in any of the interlocutory applications.

13.

For the sake of completeness. I make the following order at this stage in respect of the interlocutory applications.

a) ORDER in respect of the interlocutory applications as between the applicant and the 1st to 4th respondents.

i) The applicant is granted leave to withdraw its rule 30 application.

ii) The first to fourth respondents to pay the cost in respect of the application jointly and severally the one paying the other or others to be absolved.

iii) The first to fourth respondents late filing of their answering affidavit be and is hereby condoned.

iv) The first to fourth respondents are directed to pay such costs as were reasonably incurred by the applicant in respect of the condonation

application.

v) There shall be no order as to costs in respect of either the rule 30 application or the condonation application as between the first to fourth respondents and the fifth respondent.

14.

I now turn to the main application. The applicant herein sought the following relief:

“1. That the 1st to 3rd Respondents’ failure or delay in effecting Applicant’s appointment as principal of Dayimane Junior Secondary School (the School), Dutywa District be and is hereby declared unlawful, invalid unreasonable and of no force and effect.

2. That the 1st to 2nd Respondent be and is hereby directed to effect the Applicant’s employment contract as principal of the school retrospectively with effect from date of appointment, being, 1st February 2017.

3. That the 1st to 3rd Respondents be and are hereby directed to pay the Applicant’s salary with effect from 1st February 2017 with all the emoluments attached thereto and continued to do so until the Applicant reaches his retirement age or resigns from the Department of Education.

4. That the letter written by the 4th Respondent (Mr Edward Scheun), dated 24th May 2017 be and is hereby set aside and be regarded as pro non scripto.

5. That the 1st to 3rd Respondents be and are hereby directed to pay costs of this application on an attorney and own client scale, such costs to include the appointment of two counsel and the 4th respondent pay costs on the same scale in the event of him opposing the application.”

15.

It is trite law that in order for a contract to come into existence there has to be an offer and an acceptance. It is evident that the acceptance only occurred in July 2017. No contract came into existence between the parties prior to that date. The applicant was not even aware of the offer until May and accordingly could not have accepted the offer. The fact that the letter was written in January is not sufficient to bring about the existence of a contract.

16.

In Jafta v Ezemvelo KZN Wildlife[6] it was inter alia held:

“The common law requirements for an acceptance of an offer

Unequivocal Acceptance

Under the common law, the first requirement for an acceptance of an offer is that it must be clear, unequivocal and unambiguous.

The second requirement for acceptance of an offer under the common law is that it must correspond with the offer. Schoeman v IT Management Advisory Services (Pty) Ltd (2002) 23 ILJ 1074 (LC); [2002] 7 BLLR 672 (LC), a case which Mr Pammenter for Wildlife referred to the court, is distinguishable from the facts of this case. On the facts, Landman J found that there had not been a meeting of the minds on material terms of the agreement. In contrast, in White v Pan Palladium SA (Pty) Ltd 2005 (6) SA 384 (LC); (2006) 27 ILJ 2721 (LC), another case which Mr Pammenter referred to the court, even though the parties had not finalized material terms of the contract, such as the vehicle through which the applicant would be employed, the court found that an employment contract did exist.

Mode of Acceptance

The third requirement under the common law for acceptance of an offer is that the acceptance must be made in the mode prescribed by the offeror. In Schoeman above, the parties had stipulated that the agreement had to be in writing and signed by both parties. As these formalities were not fulfilled, Landman J found that no agreement of employment had come into existence.

Communicate to Offeror

The fourth requirement under the common law is that the offeree has to communicate acceptance of the offer to the offeror.

Acceptance Received?

The onus of proof is on the party who alleges that a contract exists. Parties conclude a contract when they consent to be bound to its terms. Consent arises when one party accepts an offer from the other party. The offeree must communicate acceptance of the offer in a manner stipulated by the offeror, unless the offeror expressly dispenses with the communication of acceptance.” (My added emphasis.)

17.

The 1st to 4th respondents have correctly argued inter alia that:

“…

If formalities are prescribed for the formation of the contract of employment, they must be observed. It cannot be disputed that for the formation of a contract of employment in this matter the offer of employment had to be extended to the Applicant and the Applicant was required to sign a certificate of acceptance of the offer of employment.

It follows that no contract can arise from an uncommunicated offer. This much is clear in logic and in law.

It is common cause that the offer to employ the Applicant was only formally extended to him on 25 July 2017 and that he accepted the offer on 1 August 2017. It is therefore clear that a contract of employment between the Applicant and the Department only came into existence on 1 August 2017 on which day the applicant assumed duties and in writing informed the department that he had accepted the offer of employment. The applicant would therefore only be entitled to remuneration from 1 August 2017.” (My added emphasis.)

18.

The applicant was accordingly not entitled to the payment of any salaries from February 2017 as no contract of employment had come into existence at that time.

19.

The applicant has correctly argued that had it not been for the application being launched the 4th respondent may not have revisited the contents of his letter and in all likelihood he may not have been employed.

20.

The challenge in respect of the contents of the letter was correct and if it had not been withdrawn in the affidavit would have been granted.

21.

The applicant in his affidavit had inter alia:

a) Alleged that he had duly complied with all the requirements to be appointed.

b) That the letter of appointment that he received in May provided for him to be appointed in Feb and thus he was entitled to his salary from that date.

c) The applicant set out who makes these appointments and to whom it was delegated.

d) The letter sent on behalf of the department indicated that because he had resigned he was not eligible for appointment.

e) Stated that there is no such policy.

f) Pleaded that the guidelines for re appointment of teachers resigning and re-entering the system do not specify that educators who have resigned cannot be re-appointed.

g) Contended that in the circumstances the letter written should be set aside as pro non scripto as it is baseless and not supported by any legislation.

h) He further contended contrary to what was stated in the letter the Superintendent General had delegated his powers of appointment to the Cluster Chief Director.

i) The 4th respondent in his affidavit concedes:

(i) That he was incorrect in his stance regarding re employment where he states “I have since investigated the matter properly and can confirm that there are no objections to the appointment of the applicant”.

(ii) States that the letter had never been formally communicated to the applicant and that was the reason that the applicant had not completed a certificate of acceptance which he was required to do and indicate when he is ready to commence.

(iii) States he is not certain where the applicant bases his claim that he is entitled to be appointed retrospectively.

(iv) He went on to say that the department cannot agree to the retrospective appointment of the applicant as no contract of employment at the time and the applicant did not render any services.

(v) He admitted that the governing body and the panel recommended the applicant for the position of principal.

(vi) He also admitted that the Cluster Chief Director had the delegated power to appoint the applicant to the position of principal at the school.

(vii) He stated that he had to investigate the lawfulness of the appointment.

(viii) He stated that it is not necessary for the court to grant the relief which the applicant is seeking with regard to the setting aside of the letter as he has admitted that the delegation is lawful.

j) The applicant in its reply stated:

(a) That the only reason he did not assume duties was that they did not give him the letter.

(b) He went on to say that it was the conduct of the department that led him to launching the application.

(c) He confirmed that he assumed duties in August.

k) In light of the 4th respondent’s stance in the affidavit it is unnecessary to make the order with regard to ruling that the letter should be regarded pro non scripto.

l) However, it was warranted at the time of the launching of the application.

m) The first to fourth respondents have remedied the position by offering the applicant employment so their conduct is no longer unlawful.

n) The application clearly was necessary and the applicant did attempt to resolve the matter internally prior to launching the application.

o) The matter warranted two counsel as demonstrated by the fact that both parties utilized two counsel.

p) The costs of the main application accordingly warrant costs of 2 counsel.

q) The conduct of the respondent does not warrant costs on the scale of attorney and client.

r) They acted on the advice of the 4th respondent who was not intentionally obstructive or misleading but appeared to genuinely believe his erroneous exposition of the law as expressed in his letter to be correct at that time. There is accordingly no basis for an attorney/client costs order against any of the respondents.

s) The respondents made no tender for costs even on a party and party scale despite the concessions made in the affidavit and the tender of employment.

t) They however successfully resisted the order in respect of the payment of arrear salaries and the punitive costs order.

u) They could have obviated incurring further costs by tendering payment of the application on a party and party scale and they however elected to ask for the dismissal of the application with costs.

v) The applicant was substantially successful in that he was appointed and which in all likelihood would not have occurred had he not launched the application.

w) The applicant’s claim in respect of arrear salaries is understandable. It may have been misconceived as no agreement came

into existence, this was wholly due to the fact that the letter of appointment was not brought to his attention it appears as a result of the stance adopted by the 4th respondent regarding his re-employment as expressed in the letter sent to his attorney.

x) The applicant most certainly would have accepted the offer had it been conveyed to him.

y) The applicant’s stance accordingly is not unreasonable although not correct in law and thus not entitling him to the relief in respect of salaries from February.

z) The applicant:

aa) Has since been employed by the first respondent.

bb) The impugned letter has been withdrawn.

cc) Is not entitled to the salaries from February 2017 since there was no employment contract in existence at that time.

dd) There is accordingly no need to make any order in terms of the notice of motion save for the issue of costs.

ee) I accordingly make the following order in respect of the main application:

A) The 1st to 4th respondents are directed to pay the applicant’s costs in respect of the main application such costs to include the costs of 2 counsel and to include all reserved costs in respect of the main application.

________________________

DAWOOD J

JUDGE OF THE HIGH COURT

DATE HEARD:

28 MAY 2020

DATE DELIVERED:

27 AUGUST 2020

FOR THE APPLICANT:

MR MSTHABE

APPLICANT’S ATTORNEYS:

N.Z. MTSHABE INC.

137 YORK ROAD

MEEG BANK BUILDING

MTHATHA

FOR THE RESPONDENTS:

MR BODLANI

RESPONDENT’S ATTORNEYS:

CHANGFOOT VAN BREDA INC

FIRST, SECOND THIRD AND FOURTH

C/O POTELWA & COMPANY

43 WESLEY STREET

[1] 2013 (1) SA 161 (SCA) at paras 11-14.

[2] De Klerk v De Klerk 1986 (4) SA 424 (W) at p 426.

[3] 1999 (2) SA 599 (T) at p 611.

[4] 1981 (4) SA 329 (O) at p 334.

[5] 1983 (3) SA 47 (E) at pp 52 and 56-7.

[6] [2008] ZALC 84; [2008] 10 BLLR 954 (LC); (2009) 30 ILJ 131 (LC) at paras 32-3, 41, 46, 50 and 100.