Minister of Police v Bacela (275/2019) [2020] ZAECBHC 19 (8 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

CASE NO: 275/2019

Date heard: 27 August 2020

Date delivered 8 September 2020

In the matter between:

MINISTER OF POLICE

Applicant / Defendant

and

NOBESUTHU IRENE BACELA

Respondent / 2nd Plaintiff

JUDGMENT

LOWE, J:

INTRODUCTION

[1] Respondent is second Plaintiff in the action she brings against Applicant (Defendant) for loss of support arising from the death of her life partner (F.L. Ngwane) arising from the alleged unlawful, alternatively negligent conduct of Defendant’s employees.

[2] On issue and service of summons Applicant/Defendant launched an interlocutory application in terms of Rule 30A(1) on the grounds that Respondent had failed in her particulars of claim to comply with Rules 18(4) and 18(6), seeking an order directing Respondent to amend her particulars of claim accordingly.

[3] In due course, Respondent having ignored this notice, Applicant filed a notice in terms of Rule 30A(2) seeking an order that Respondent amend her particulars of claim, failing which these be struck out and her claim thus dismissed.

[4] The objection is in essence that Respondent’s claim is in fact a claim based on contract and not merely as a result of her alleged relationship with an unmarried life partner, and that the details hereof require to be pleaded.

[5] The application is opposed on various bases, but centres around the claimed wrong procedure in evoking Rule 30A as opposed to Rule 30. It is argued that the application is ill-founded on this basis alone.

[6] If this is correct it is unnecessary to enter into the merits or otherwise of the remaining issues.

THE RULE 30A AND 30 ISSUE

[7] Rule 18(12) reads as follows:

“If a party fails to comply with any of the provisions of this rule, such pleading shall be deemed to be an irregular step and the opposite party shall be entitled to act in accordant with rule 30.” [1]

[8] If the pleading fails to comply with Rule 18 and is vague and embarrassing, Defendant may either bring a Rule 30 proceeding or raise an exception in terms of Rule 23(1)[2].

[9] These are however strictly separate complaints requiring separate adjudication. The Rule 18 objection rests on the rule requiring

specific particulars to be set out in the claim, the prejudice required for the setting aside of the pleading is prima facie established by Rule 30[3].

[10] Rule 30 clearly applies to “irregular proceedings” and is the rule referred to, in terms, in Rule 18(12), in the event of non-compliance with Rule 18.

[11] Rule 30 reads as follows:

“30 Irregular proceedings

(1) A party to a cause in which an irregular step has been taken by any other party may apply to court to set it aside.

(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 fifteen days after the expiry of the second period mentioned in paragraph (b) of subrule (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.

(4) Until a party has complied with any order of court made against him in terms of this rule, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.”

[12] The rule can only be used if the conditions referred to in Rule 30(2) are satisfied. This is of importance to this matter as there are strict provisions applicable, in breach of which, the rule may not be utilised. If the stipulated periods have elapsed the rule cannot be used unless extending under Rule 27(3).

[13] Clearly then it was open to Applicant to utilise Rule 30 and/or Rule 27 (3). The question is however whether Applicant could ignore both and utilise Rule 30(A).

[14] Rule 30A reads as follows:

“30A Non-compliance with rules

(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, or with an order or direction made in a judicial case management process referred to in rule 37A, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days from the date of delivery of such notification, to apply for an order—

(a) that such rule, notice, request, order or direction be complied with; or

(b) that the claim or defence be struck out.

(2) Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice be made to the court and the court may make such order thereon as it deems fit.”

[15] It is to be noted immediately that this rule has far less stringent requirements than Rule 30(2), notably time limits, and importantly the “further steps” issue in Rule 30(2)(a).

[16] An example of the use of this rule would be an application to enforce compliance with Rule 35(12), which does not have its own remedy and should be preceded by a Rule 30(A)1 notice[4].

[17] Rule 30A provides a general remedy for non-compliance with the rules.

[18] In ABSA Bank Ltd v The Farm Klippan 490 CC [5] the Court made it clear that if a provision in the rules provides a specific remedy for non-compliance with the rule, a party need only follow the specific rule and need not give notice in terms of, or follow, Rule 30A.

[19] Harms, Civil Procedure in the Supreme Court: LexisNexis provides that:

“The rule applies only if compliance with the rules is sought and then only if the relevant rule does not have its own inbuilt procedure

such as rule 21(4), which provides for an enforcement procedure in the event of a failure to provide particulars for trial.[6]

...

Under rule 30A, a party making a request, or giving a notice, to which there is no response by the other party, may through a further notice to the other party warn that after the lapse of 10 days, application will be made for an order that the notice or request be complied with, or that the claim or defence be struck out, as the case may be. Failing compliance within the 10 days mentioned,

application may then be made to court and the court may make an appropriate order.”

[20] This makes complete sense as the remedies provide for non-compliance with the rules which have their own requirements, benefits and disadvantages which should then be utilised.

[21] As support for the view expressed, Harms (supra) refers to Norman & Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd [7]; Houtlands Investments (Pty) v Traverso Construction (Pty) Ltd [8].

[22] In this regard it must be remembered that Rule 30A was introduced subsequent to these cases. Prior to its repeal on 13 December 1996, Rule 30(5) provided a remedy for the situation when a party failed to timeously comply with a notice in terms of the rules. Rule 30A was introduced in 1998.

[23] Rule 30(5) read as follows:

“Where a party fails to comply timeously with a request made or notice given pursuant to these Rules the party making the request or giving the notice may notify the defaulting party that he intends after the lapse of seven days applying for an order that such notice or request be complied with, or that the claim or defence be struck out. Failing compliance within the seven days, application may be made to Court and the Court may make such order thereon as to it seems meet.”

[24] As will be noted the wording of the repealed Rule 30(5) is very similar to Rule 30A(1).

[25] In Norman & Co Ltd (supra) [9] Trollip J held, referring to Rule 30(5), that:

“In my view Mr. Kirk-Cohen's contention is correct. In Rule 21 (6) special provision is made in the particular case where a party fails to furnish timeously the particulars requested. According to the plain and unambiguous language of the Rule, the other party is then entitled to apply to Court for relief without any further delay or without any further notice. On the other hand Rule 30 (5) is of general application to cases where a party fails to comply with any request made or notice given pursuant to the Rules. The general rule therein laid down is that, before applying to Court, the other party must give seven days' notice of his intention to do so. In that respect it differs from Rule 21 (6). But being the general Rule, I do not think Rule 30 (5) was intended to override or amend the special provision in Rule 21 (6), for the principle or presumption is that generalia specialibus non derogant. As Steyn on Uitleg van Wette, 3rd ed., at pp. 175, 176, says, that principle applies not only as between different statutes but also as between different provisions in the same statute.

Mr. Preiss tried to counter the application of that principle by maintaining that Rule 30 (5) is not contrary but rather supplementary to Rule 21 (6) and they should, therefore, be read together. But, for the reason given above, they are in fact conflicting or contradictory, and therefore create a fit situation for the application of the maxim. Moreover there are indications that the result reached by its application is indeed what must have been intended. As Mr. Kirk-Cohen submitted, the general rule in Rule 30 (5) was obviously intended to apply in all those cases where a particular Rule did not itself provide for a special sanction for non-compliance with a notice or request, as, for example, in Rules 14 (5), 14 (9), 36 (2) and 37 (1). But where such special sanction was provided as, for example, in Rules 21 (6) and 35 (7), that was to apply instead of Rule 30 (5). To try to read such Rules with and subject to Rule 30 (5) would be not to supplement them but to supersede or destroy them. In fact, if Rule 30 (5) does apply then Rule 31 (6) would have been quite unnecessary and can be ignored. That could never have been the intention. I think that Rule 21 (6) was specially inserted so as to avoid having to give the further seven days' notice required by Rule 30 (5), probably in order to expedite the close of pleadings.

Mr. Preiss pointed out that under Rule 21 (6) it was possible to apply at once for the dismissal of the action or the striking out of the defence. He maintained that such a drastic sanction could hardly have been contemplated without the need for first giving some prior notification such as the seven days in Rule 30 (5). But the answer to that submission is that the Court is not bound on such an application to enforce such a drastic sanction. It is given a wide discretion. It can make 'such order as to it seems meet,' and the power to dismiss the action or strike out the defence is merely an alternative to the power to order the delivery of the particulars. The Court would ordinarily order the latter, and only resort to the former as the ultimate sanction as where, for example, it was clear that the defaulting party had abandoned the litigation.

For these reasons then I think the contention for the plaintiff is correct and it is entitled to the costs of the application.”

[26] It seems to me that this reasoning is similarly applicable in this matter.

[27] In Houtlands (supra) [10], the following was said:

“The first of these complaints is not that the original notice of motion was not properly served. It is clear from the documents before me that the notice of motion and notice of set down of the application were served upon a member of the staff of respondent's

attorneys of record as shown by the signed and dated receipts endorsed upon the notices in accordance with Rules of Court 4 (1) (a) bis and 4 (6) (b). The complaint is that there was insufficient notice by applicant of its intention to bring the application. The complaint is groundless. I am in respectful agreement with the decision of TROLLIP, J., in Norman & Co. (Pty.) Ltd. v. Hansella Construction Co. (Pty.) Ltd., 1968 (1) SA 503 (T), that Rule of Court 21 (6) permits an application for an order to compel the furnishing of further particulars without notification prior to the service of the notice of motion upon the defaulting party, of the applicant's intention to bring the application. The general requirement of Rule of Court 30 (5), that an applicant for an order to compel compliance with a request or notice given pursuant to the Rules of Court must notify the defaulting party that he intends after the lapse of seven days to apply for the order,

does not override but gives way to the special provisions of Rule of Court 21 (6) relating to an application to compel further particulars where no such notification is required. There may very well be cases were it would be circumspect in the circumstances of the case for an applicant to warn a defaulting respondent that an application is to be launched and to allow a further period of grace before bringing the application, but an applicant is not obliged by the Rules of Court to do so, nor have any circumstances been brought to my attention to suggest that this is a case where applicant can be faulted for not giving such notice.”

[28] Again this is support for the view expressed in Harms quoted above.

[29] ABSA Bank (supra) [11] was correctly summarised as follows:

“The provisions of Rule 30A of the Uniform Rules of Court and those Rules which provide a specific remedy for non-compliance with the Rules are conflicting or contradictory. The result must be that the general yields to the special. If this general Rule 30A derogated from the Rules which contain a specific remedy, it would only serve to curtail and frustrate the expeditious completion of litigation. The effect would be to afford a party an extra ten Court days (in essence two weeks) to comply with the Rules or to respond to a notice or request. A further effect would be to exacerbate the already high cost of litigation. Rule 30A has an important place in the Rules in that it provides a remedy where none exists elsewhere. However, it could not have been intended by the drafters of Rule 30A to jettison the existing and effective remedies provided in the specific remedy Rules. If it was so intended, it would render such remedies nugatory. Accordingly, an application may be made in terms of Rules which provide a specific remedy for failure to comply therewith without the applicant first having to give notice in terms of Rule 30A or to follow the provisions thereof.”

[30] I am aware that in Moulded Components & Rotomoulding SA (Pty) Ltd v Coucourakis [12] it was held that an application in terms of (then) Rule 30(5) was appropriate where there was non-compliance with Rule 35(12), even

though this contains its own remedy (a negative sanction for non-compliance: the document may not be used same with the leave of

the Court). This is however in my view completely distinguishable as the Rule itself does not remedy the situation where the documents are not produced and Applicant wishes to compel same.

[31] In the result it is my view that Rule 18(12) read with Rule 30 is in fact in conflict with and contradictory to Rule 30A. It seems to me perfectly clear that the procedure referred to in Rule 18(12), that an irregular step is to be dealt with in terms of Rule 30, is a specific rule with its own requirements and time limits. Rule 30A is a rule of general application as to non-compliance with the Rules. As pointed out in Norman (supra) it can hardly be that Rule 30A was intended to override or amend the special provision of Rule 18(12), as read with Rule 30, as per the presumption generalia specialibus non derogant.

[32] The Rules in this regard are in fact in conflict. If a party fails to meet the time limits in Rule 30, or takes a further effective step with knowledge of the irregularity (absent time extension by a Court), the party may no longer take the point of an irregular step. It would make no sense then that Rule 30 could then simply be bypassed to Rule 30A with far less stringent requirements.

[33] The requirement that Rule 30 be utilised for a Rule 18 breach is precisely what must have been intended by the Rules as to the result sought to be achieved. To hold otherwise would effectively supersede Rule 18(12), read with Rule 30, which cannot have been the intended result.

[34] It seems to me that the very purpose of Rule 18(12), with Rule 30, is to fast track the process with specific remedies spelt out with the denial of the remedy in the event of the requisite conditions not being satisfied.

[35] In the result the procedure adopted by Applicant in this matter is impermissible.

[36] Costs should follow the result relevant to the application.

ORDER

[37] The application is refused with costs.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearances

Obo Applicant / Defendant:

Adv A M Da Silva

Instructed by:

State Attorney, King William’s Town

Obo Respondent:

Adv M Mayekiso

E.L. Soci Attorneys, East London

c/o S.Z. Sigabi & Associates, King William’s Town

[1] Minister van Wet en Order v Jacobs 1999 (1) SA 944 (O) at 945 D – F.

[2] Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd 1992 (4) SA 466 (W) at 469 F – J.

[3] ABSA Bank Ltd v Boksberg Transitional Local Council 1997 (2) SA 415 (W) at 418 F – H; Sasal (supra) at 470 H – I; Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en Andere 2001 (2) SA 790 (T) 796; Mkhize: In re Mbuyazi v The Premium of the Province of KwaZulu-Natal (822/2013) [2014] ZASCA 2014 (28 November 2014).

[4] Machingawuta and Others v Mogale Alloys (Pty) Ltd and Others 2012 (4) SA 113 (GSJ)

[5] 2000 (2) SA 211 (W) at 215 A – B.

[6] Norman & Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd 1968 (A) SA 503 (T); Houtlands Investments (Pty) Ltd v Traverso Construction (Pty) Ltd 1976 (2) SA 261 (C).

[7] 1968 (1) SA 503 (T).

[8] 1976 (2) SA 261 (C).

[9] Page 504

[10] Page 262/3.

[11] (As per Headnote.)

[12] 1979 (2) SA 457 (W)