Minister of Defence & Military Veterans and Others v Mollele and Others (6615/12) [2015] ZAGPPHC 761 (27 October 2015)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 66615/12

Date: 27 September 2015

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

MINISTER OF DEFENCE & MILITARY VETERANS FIRST APPLICANT

THE SECRETARY FOR DEFENCE SECOND APPLICANT

THE CHIEF OF THE SANDF THIRD APPLICANT

THE CHIEF OF THE SA AIR FORCE FOURTH APPLICANT

And

KENNETH PULE MOLLELE FIRST RESPONDENT

MPHO MACMILLAN TLATSANA SECOND RESPONDENT

AOA MOKHOSI THIRD

RESPONDENT

BONGUMUSA WELLINGTON PRAISE-GOD MNTAMBO FOURTH RESPONDENT

JUDGMENT

NOWOSENETZ L, AJ

[1] The applicants (respondents in the main case) seek rescission of an order granted on 10 September 2013 (the default order) in favour of the respondents (applicants in the main case). The order per Kubishi J reads as follows:

“1. reviewing and setting aside the administrative decision by the Contract Board with the Department of Defence to apply for a non-contract renewal in respect of the applicants.

2. ... reviewing and setting aside the decision of the respondents not to renew the applicant's (sic) employment contracts when it (sic) expired on 30 June 2012 and not to transfer the applicants from the Military Skills Development System ("MSDS") to the Core Service System ("CSS").

3. ....the respondents jointly and severally, to pay the costs of this application”

[2] The respondents commenced review proceedings against the applicants in 2012 and the applicants filed a notice of intention to oppose on 3 December 2012. On 18 January 2013 an order was granted that the applicants file the records and reasons in terms of Rule 53(1) (b) within 15 days. The applicants were represented at that hearing. This order was complied with by the applicants on 18 February 2013. The respondents filed a supplementary founding affidavit on 23 April 2013.

[3] The applicants failed to file an answering affidavit despite the averment made by the applicants that it was filed on 23 April 2013. This is denied by the respondents and no proof whatsoever was tendered of the existence of such affidavit. On 24 June 2013 an order was granted that the applicants file their opposing papers within 10 days. The applicants were represented at that hearing. This order was not complied with - the applicants failed again to file an answering affidavit. On 12 July 2013 the respondent's attorneys filed a notice of set down scheduled for hearing on the unopposed roll on 7 August 2013 to enforce compliance by the applicants.

[4] On 6 August 2013 the applicants attorney, Mr Matladi attempted to serve the answering affidavit on the respondents' attorneys. The applicants concede that it was incomplete in that no annexures were attached and the issues were not fully dealt with.

[5] On 7 August 2013 an order was granted that the applicants file a condonation application for the late filing of the answering

affidavit within 1O days. The applicants were represented at that hearing. The applicants did not file the condonation application.

[6] On 28 August 2013 the respondents' attorney filed an application for default judgment based on the failure of the applicants to file an answering affidavit. It was served on the State Attorney. On 29 August 2013 the applicants served and filed the answering affidavit but without a condonation application. The applicants were not represented at the hearing before Kubishi J when the default order was granted. However the answering affidavit was before her ladyship.

[7] On 30 May 2014 a provisional order was granted returnable on 22 July 2014 directing the Applicants to comply with the default order and finding them to be in contempt of the Court. The applicants were specifically directed to re-employ the respondents with effect from 1 July 2012 and to transfer them from the MSDS to the CSS.

[8] On 1 July 2014 a committal order was issued against the Applicants. On 2 July 2014 the Applicants obtained a stay of the order dated 1 July 2014 pending a rescission application to be filed within 1O days. This application was filed on 7 August 2014. No relief is claimed in the Notice of motion for the late filing of the answering affidavit and for the setting aside of the committal and contempt orders. It however emerges from the Applicants Founding Affidavit that the purpose of the application includes this relief.

[9] The Applicants bring this application under the common law and also seek condonation for the late filing of the rescission application.

The requirements for rescission at common law are well known and are based on good cause. The requirements are flexible but are basically threefold: There must be a reasonable explanation of the default; the applicant must show bona fides; the applicant must show prospects of success in the main case ie a bona fide or prima facie defence.

[10] The application must be brought within a reasonable time. There is no specified period. For condonation to be granted a reasonable

explanation must be given. However, where there is no reasonable and satisfactory explanation for the delay, the prospects of success are immaterial. See NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC); Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A); Radebe and Others v Protea Furnishers SA (Pfy) Ltd 1994 ILJ 15 323 (LAC); Oldfield v Roth NO And Another (1995) 16 ILJ 76 (LAC)

DELAY AND CONDONATION

[11] The Applicants' Founding Affidavit is deposed by Warrant Officer de Lange who relied on the explanations given by Lt Cnl K Boshoff, a legal officer in charge of this matter and who filed a confirmatory affidavit . He also relies on Mr JJ Matladi of the State Attorney's office, the applicants' attorneys of record whose confirmatory affidavit was only signed by him on 26 May 2015 and handed in at the hearing. Condonation is generally sought "for the lapses herein". The main delays are the late filing of the answering affidavit, the non filing of the condonation application for the filing of the answering affidavit and the condonation application for the late filing of this review application. At least four orders of court have been disregarded by the applicants.

[12] There were interminable delays in appointing counsel, arranging consultations and an incompetent, incomplete, late answering

affidavit was filed by the applicants. Pressure of work is alleged to have played a role. The essence of the explanation for the delay is that Mr Matladi was overwhelmed by volume of work since he assumed his duties on 1 August 2012. The deponent admits to "several lapses as appear from this matter in the proper procedural management and control and attendance to the poor execution of the work occurred on divergent dates".

[13] The applicants admit that Mr Matladi became aware of the default order on 11 December 2013. The applicants became aware of the default order on 8 May 2014. Mr Matladi briefed Counsel in January 2014 and an application for leave to appeal was prepared. Later on senior counsel was instructed and the decision was made to apply for rescission.

[14] The Department did not know about the enrolment on 28 May 2014 for the provisional order to compel and heard about it by chance from another counsel who was present in court. It was also unaware of the set down and order on 1 July 2014. It heard about the order from the media.

[15] The answering affidavit had to be filed by 8 July 2013. It was filed incomplete on 6 August 2014 and again filed on 29 August 2013. The condonation application for the late filing of the answering affidavit for the late filing of the answering affidavit had to be filed by 21 August 2013. The applicant was legally represented at court when the order dated 7 August 2013 was granted. It was filed in this application on 7 August 2014 nearly a year later. Are these condonable omissions? The deponent says "The various Court appearances and Court Orders that were issued as far from the 7th August_2013 were not communicated to the Department by Mr Matladi although constant enquiries and follow ups were made by the Department". From January 2013 the Department made a number of attempts to contact Mr Matladi.

[16] A condonation application is not a mere formality. It should be applied for as soon as possible. It has been repeatedly stated that it should not be assumed that condonation will be granted where the non compliance was due to the negligence of the attorney. Sa/oojee and another NN.O v Minister of Community Development 1962 (2) SA 135 A. In evaluating whether a reasonable explanation has been given by the applicants, the standard applied here is that of a reasonable

person in the position of a legal officer and an attorney. The responsible person for this matter on behalf of the applicants, Lt CNL K Boshoff, was a legal officer and not a lay person. She does not disclose her legal qualifications in her confirmatory affidavit. As a reasonable legal officer she must have a rudimentary knowledge of civil procedure in the High Courts, and an appreciation of the degree of thoroughness and care which is necessary in litigation. It was her duty at the very least to regularly follow up on progress from the applicants' attorney and to take prompt remedial action. If no response was forthcoming from Mr Matladi on a sustained basis any reasonable client would be alarmed. A senior attorney at the State Attorney could have been approached for assistance or a complaint could have been lodged with the Law Society. It was also incumbent on the legal officer to diligently and timeously instruct the attorney so that the required documents could be prepared. The scope of the sheer neglect and gross dereliction of duty in pursuing this litigation by both the applicants and Mr Matladi the attorney is spectacular. Both of them have since 2013 utterly and continuously failed to comply with the rules of court and the various court orders. It is incomprehensible how an attorney could not regard the orders as highly urgent and important.

[17] Astonishing and disconcerting too is the failure of Mr Matladi to regularly and urgently report to the applicants. Most legal

practitioners are overworked. The state attorney is a large office. Mr Matladi does not indicate in his affidavit that he sought

assistance from any of his colleagues or reported that he was having difficulty in dealing with the case.

[18] This application was filed, on the applicants' version, eight months after Mr Matladi became aware of the default order and three months after the applicants became aware of it. The fact that it took so long for Mr Matladi to become aware of the default order is in itself alarming as the Notice of Set Down of the application resulting in the default order was served on the State Attorney on 29 August 2013. Through the exercise of ordinary diligence by investigating the outcome of the default application, the applicants' attorney should have become aware of' it long before December 2014. Of course all this was avoidable had the applicants' attorney opposed the application. No proper explanation is given at all why any of these things were not done.

[19] In NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) the test was set out as follows:

"The approach is that the court has discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degrees of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success. no matter how good the explanation for the delay. an application for condonation should be refused (cf Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765A-C; National Union of Mineworkers & others v Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) at 613E). The courts have traditionally demonstrated their reluctance to penalise a litigant on account of the conduct of his representative but have emphasised that there is a limit beyond which a litigant cannot escape the results of his representative's lack of diligence or the insufficiency of the explanation."(My emphasis)

[20] The degree of neglect is beyond the reach of condonation. The omissions were all eminently avoidable by the exercise of ordinary

and diligent attention to the litigation. None of the lapses can be sufficiently explained except by the total indifference and wilful disregard of the process of this court by both the legal officer of the applicants who was responsible for conducting the litigation as well as the attorney in question. This is a case par excellence where the applicants cannot escape responsibility on account of their attorney's egregious failures to comply time and again with

basic procedural steps in conducting High Court litigation. The conduct of Mr Matladi should be reported to the Law Society of the Northern Provinces for investigation with a view to disciplinary action. It is not necessary to consider the matter further but for completeness the requirements for good cause are considered.

WILFUL DEFAULT

[21] The explanation by the applicants for not appearing in the default application has been considered in the analysis of the condonation

application. None of these reasons show much else than gross neglect and dereliction of duty by the applicants' attorney and egregious non compliances with the Rules and orders of this court.

[22] When the default order was granted, the applicants had filed an answering affidavit but not an application for condonation of the late filing of the answering affidavit. The effect of an affidavit filed out of time is that is not admitted before the court until condonation has been granted. In Waltloo Meat and Chicken (Pty) Ltd v Silvy Luis (Pty) Ltd [2008] ZAGPHC 136; 2008 (5) SA 461 (T) a replying affidavit filed out of time was rejected on the basis of no condonation application having been made. This is particularly so where condonation had to be brought in terms of the order of court dated 7 August 2013 of which the applicants' attorney must have been aware as the applicants were legally represented in court.

[23] The default order has not been shown to have been granted per incuriam and the applicants' conduct leading up to the default order was in my view neglectful and grossly negligent to a sufficient degree to be considered wilful.

PROSPECTS OF SUCCESS

[24] The respondents were all employed by the SAAF as fire fighters on a two year fixed term contract under the MSDS. Their contracts

terminated on 30 June 2012. On 9 February 2012 ten vacancies existed in the CSS of SAAF. These are permanent employment positions. A recommendation dated 9 February 2012 was made by SAAF for the absorption of all of the ten of the ten firemen in the intake of the respondents to be absorbed in the CSS. The positions were identified as financially supported. The respondents applied for the CSS placement. They allege that they handed their applications to W02 Williams who blocked their attempts to file the applications and refused to hand them to the authorities. This is denied by the applicants but it is hearsay. No affidavit rebutting these allegations was made by W02 Williams. The respondents filed a grievance and requested reasons for the failure to appoint them to CCS. The applicants contended that there was no obligation to appoint them and that a resolution was made at a Contract Board for Military Skills Development dated 17 February 2012. It was minuted that "Taking into consideration the strategic force level requirements of the Fire Fighter environment DBSS is compelled to apply for non - contract renewal" in respect of each of the respondents."

[25] The applicants further contend there are prospects of success based on the following: Paragraphs 1and 2 of the default order are not reviewable as the recommendation and the Contract Board meeting are not administrative decisions and the default order is a brutum fulmen: The respondents contend that both abovementioned events constituted reviewable decisions and the respondent had the right to

make representations before an adverse decision was made.

[26] The meaning and scope of an administrative decision as contemplated in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) has been considered and the following principles emerge:

“PAJA defines administrative action as a decision or failure to take a decision that adversely affects the rights of any person, which has a direct, external legal effect. This includes "action that has the capacity to affect legal rights". Whether or not administrative action, which would make PAJA applicable, has been taken cannot be determined in the abstract. Regard must always be had to the facts of each case.”

Viking Pony Africa Pumps (Pfy) Ltd tla Tricom Africa v Hydro-Tech Systems (Pty) Ltd and Another 2011 (1) SA 327 (CC) at paragraph [37].

[27] A preliminary decision in the form of a recommendation may amount to administrative action and also attract the requirement of procedural fairness under section 3 of PAJA. Oosthuizen's Transport (Pty) Ltd v MEG Road Traffic Matters, Mpumalanga 2008 (2) SA 570 (T).

"What gives rise to the right to be heard is the negative impact of the decision on the rights or legitimate expectations of the person claiming to have been entitled to a hearing before the decision was taken."

Walele v City of Cape Town and Others [2008] ZACC 11; 2008 (6) SA 129 (CC).

[28] The question whether an application must be made to an authority as a threshold for justifiability of review, arose in Bhugwan v JSE Ltd 2010 3 SA 335 (GSJ). Claassen J (at paragraph [11]) made provision for the possibility that not all the requisite procedural steps may have taken place and ultimately the facts in each circumstance will have to be evaluated. The applicants have failed to show prima face that the respondents did not apply for placement with CCS. Even if the respondents' applications were not actually placed before the Contract Board, this is not an impediment to a review.

[29] The respondents contend that their rights were disregarded and that they were unable to make any submissions before the Contract Board. The resolution was thus made without considering the respondent's applications for CSS which through no fault of the respondents was not placed before the Contracts Board and was thus not considered. It is highly improbable that this resolution can stand as a valid and lawful administrative act. The prospects of success of the applicants on rescission insofar as they are based on the principles of review are poor. No rational basis was advanced why the respondents were not appointed to CCS and why the recommendation was not confirmed. No sound reason was advanced by the applicants practically or in principle why the default order cannot be implemented. On an overall conspectus, good cause for rescission has not been shown.

ORDER

1. Condonation for the late filing of the applicants' answering affidavit is refused.

2. Condonation for the late filing of the rescission application is refused.

3. The rescission application is dismissed with costs.

4. The Registrar is requested to refer this judgment to the Law Society of the Northern Provinces for disciplinary investigation of Mr Matladi of the State Attorney's office, Pretoria.

Heard on 25 May 2015

Date of the Judgment: 27/10/2015