Moloi v Minister of Police and Another (2000/2020) [2021] ZAFSHC 100 (22 April 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

n the matter between: Case

number: 2000/2020 KGOLOKOE ISHMAEL MOLOI and THE MINISTER OF POLICE THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Plaintiff 1st Defendant 2nd Defendant

CORAM:

DAFFUE, J

HEARD ON: 22 APRIL 2021

JUDGMENT BY: DAFFUE, J

DELIVERED ON: 22 APRIL 2021

This judgment was handed down electronically by circulation to the parties’ representatives by email as agreed with them.

The time and date for hand down is deemed to be 17h00 on 22 APRIL 2021.

I INTRODUCTION

[1] This application has been set down for hearing on the opposed motion court roll, but it is in essence an unopposed matter. It does not really deserve the court’s attention. However, counsel for all the parties filed heads of argument and the plaintiff is entitled to obtain finality and certainty.

II THE PARTIES

[2] The plaintiff is Mr Kgolokoe Ishmael Moloi who instituted action against the two defendants based on two separate causae, the first in respect of unlawful arrest and detention (against the first defendant only) and the second in respect of malicious

proceedings against first and second defendants.

[3] The Minister of Police is the first defendant in the action and the second defendant is the National Director of Public Prosecutions.

III THE RELIEF CLAIMED

[4] There is no proper application for relief before the court, neither in terms of Rule 30, nor in terms of Rule 30A. It appears from the irregular procedure adopted by defendants that they seek an order in terms whereof “the claim or defence be struck out.”[1] Anyone with a little bit of legal knowledge will immediately recognise that such a request is non-sensical.

IV CHRONOLOGY OF EVENTS

[5] The plaintiff decided to enrol the matter for determination. He cannot be blamed for acting accordingly. The following is a chronology of relevant events:

5.1 Plaintiff issued summons in June 2020. Service was effected on the defendants and the State Attorney during the same month.

5.2 On 17 July 2020 defendants served their notice of intention to defend through the offices of the State Attorney.

5.3 Plaintiff, whilst making use of the prescribed form 27, gave notice of his opposition to mediation in accordance with Rule 41A for the following reasons:

1. defendants did not even respond to the statutory letter of demand served upon them in terms of s 3(1) of Act 40 of 2002;

2. in order to successfully mediate, it is necessary for the defendants to discover the relevant SAPS docket pertaining to the criminal case; and

3. plaintiff does not have financial resources to afford the costs of a mediator.

5.4 On 25 August 2020, long after the expiry of the period of 10 days referred to in Rule 30, defendants served a notice on plaintiff in terms of Rule 30(2)(b).[2] According to this notice the plaintiff’s particulars of claim is “an irregular step within the ambit of Rule 37A, as it does not afford the defendants an option to exercise the alternative process of mediation as set out in the rule.”

Plaintiff was afforded an opportunity to remove the cause of complaint within 10 days from the date of the notice.

5.5 On 18 September 2020 defendants filed a document with the heading “Irregular Proceeding,” apparently relying on Rule 30A, instead of issuing an application as provided for in Rule 30. It is defendants’ case that in so far as plaintiff has been given the opportunity to remove the cause of complaint, which he failed to do, they may apply

for setting aside of the particulars of claim on the basis that it is an irregular step within the ambit of Rule 30A(1). This document is not a notice of motion and the heading refers to the parties as plaintiff and first and second defendants respectively.

No supporting affidavit is attached to this document, but the following relief is claimed:

“Wherefore the applicants apply for an order:

(a) that such rule or notice be complied with; or

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

In order to arrive at the non-sensical relief sought, the defendants aver that plaintiff did not comply with the requirements of Rule 30A and that he did not afford them “an opportunity to refer the matter to a judicial case management process referred to in rule 37A.” These are outrageous allegations, bearing in mind that judicial case-flow management only comes into play in this division upon closure of the pleadings and the application for a trial date.

5.6 On 28 September 2020 the plaintiff filed a notice in terms of Rule 6(5)(d)(iii). In terms hereof plaintiff notified defendants that the so-called application in terms of Rule 30 is opposed and that he intended to raise the following questions of law:

1. The summons was duly served on defendants together with the requisite form 27 pertaining to Rule 41A;

2. Defendants failed to file a plea, but instead served a notice in terms of Rule 30, indicating that the summons constituted an irregular step due to non-compliance with Rule 37A;

3. Rule 37A deals with judicial case-flow management which only applies after close of pleadings and when a trial date is applied for;

4. The notice with the heading, “Irregular Proceeding”, is bad in law and the purported application stands to be dismissed with costs.

5. A punitive costs order will be sought, the reason being that the State Attorney was forewarned in correspondence between the parties that the step taken was bad in law.

V POINTS TAKEN BY DEFENDANTS

[6] Mr Motloung submitted in his heads of argument that Rule 10 of the Free State Rules provides that exceptions and interpleaders shall be set down for hearing on a Friday. Consequently, the plaintiff incorrectly set down the present matter on the opposed roll for hearing on a Thursday. We are not dealing with either an exception – Rule 23 - or an interpleader – Rule 58. Therefore, the matter could not have been set down for hearing on a Friday. Mr Motloung readily conceded this during oral argument. In any event, defendants, who purportedly act in accordance with either Rule 30 or Rule 30A, were duty-bound to get finality and set the matter down for hearing, but failed to take any steps to obtain finality. The Rules are made for the court and not vice versa. There is no reason why this matter should not be entertained now and finalised.

[7] There is no acceptable version before the court, indicating that plaintiff failed to comply with Rule 41A, contrary to Mr Motloung’s submission. The returns of service on the State Attorney and the Provincial Commissioner of Police clearly state that the Notice of Opposition to Mediation was served on them. Defendants were entitled, if not obliged, to file a founding affidavit in support of their purported application, but failed to present any evidence. They also failed to respond to plaintiff’s notice in terms of Rule 6(5)(d)(iii) wherein it was specifically pleaded that Rule 41A was duly complied with.

VI EVALUATION OF THE DOCUMENTATION AND SUBMISSIONS ON BEHALF OF THE PLAINTIFF

[8] Rule 30 inter alia states as follow:

“(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 10 days of becoming aware of the step, by written notice afforded his opponent and opportunity of removing the cause of complaint within 10 days;

(c) the application is delivered within 15 days after the expiry of the second period mentioned in paragraph (b) of subrule (2).” (emphasis added)

The defendants did not afford plaintiff an opportunity to remove any cause of complaint within 10 days after becoming aware of the alleged irregular step. I already dealt with this and confirm that no application for condonation for the non-compliance with the Rule has been filed. This should have been the end of the matter.

[9] The reliance in the notice on Rule 37A, as if plaintiff has taken an irregular step by issuing the summons, is astonishing. It is devoid of any merit and nothing more needs to be said in this regard, save to say that Rule 37A procedure only applies after the close of pleadings.

[10] Rule 30A reads as follows:

“(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 a 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.”

[11] There is no evidence whatsoever that plaintiff has failed to comply with any Rule, but in any event, defendants failed to launch an application supported by an affidavit to show why the plaintiff’s claim (not his defence as set out in the document) be struck out. Rule 6(1) states that any application must be brought on notice of motion supported by an affidavit. The striking out of a claim is a drastic remedy and the court must be appraised of sufficient facts to enable it to exercise its discretion in favour of such order. Therefore, an affidavit setting out relevant factors such as prejudice, to name but one, should be dealt with.[3]

[12] Rule 41A(2)(a) and (c) read as follows:

“(2)(a) in every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.

(c) The notices referred to in paragraphs (a) and (b) shall be substantially in accordance with Form 27 of the First Schedule and shall clearly and concisely indicate the reasons for such party’s belief that the dispute is or is not capable of being mediated.” (emphasis added)

[13] The defendants may have taken cognizance of Rule 41A(3). This subrule provides that notwithstanding the parties’ opposition to mediation, a Judge, or a Case Management Judge referred to in Rule 37A, or the court, may at any stage before judgment direct the parties to consider referral of a dispute to mediation, whereupon the parties may agree to refer the dispute to mediation. The reference in Rule 41A(3) to mediation has nothing to do with the complaints raised by the defendants in casu. Their complaints are really frivolous.

[14] Mr Motloung submitted that Rule 41A should be interpreted as if the plaintiff was obliged to provide an option to defendants to indicate within 30 days whether or not they wanted the matter to be referred to mediation. He suggested an approach similar to the conciliation process in labour matters. The CCMA shall not deal with a matter on arbitration unless a conciliation process was followed prior to the arbitration hearing. The language of Rule 41A is clear and unambiguous. Plaintiff acted accordingly and did not take any irregular step. It is evident from both notices that it is not defendants’ case that plaintiff failed to comply with Rule 41A.

[15] Defendants have caused an unnecessary delay of 8 months. They should have filed their plea early in August 2020 and it is now close to the end of April 2021. Plaintiff warned them about the irregular procedure undertaken by them, but they elected not to withdraw the notices.

[16] The defendants’ non-compliance with the Rules cannot be countenanced. The Rules have been flouted. Mr Motloung submitted that Rule 41A is still new and there is no case law in respect of the Rule. Therefore, he submitted that, even if the application is to be dismissed, defendants should not be penalised with costs. The defendants’ attorney did not want to heed the advice of plaintiff’s attorney. The two notices relied upon by defendants’ attorney are irregular and a waste of time and resources. This matter did not warrant the attention of the court, but the plaintiff had to enrol it to get the action going forward. A punitive costs order is called for and such an order shall follow. There is no reason why the plaintiff made use of Gauteng counsel while there are numerous advocates available in Bloemfontein that could have dealt with a simple application as the one in casu. It was not necessary to consult with the plaintiff or take any special instructions in order to argue the matter. I have been informed from the bar that the Pretoria attorney also attended the hearing. The transport and accommodation costs, if any, of plaintiff’s attorney and counsel shall be disallowed and not taxable even on the scale as between attorney and client.

VII ORDER

[17] The following order is issued:

1. Defendants’ purported application in terms of Rule 30A is dismissed with costs on an attorney and client scale, such costs to exclude the travelling and accommodation costs of plaintiff’s Pretoria attorney and counsel.

_______________

J P DAFFUE, J

On behalf of Plaintiff : Adv JC van Eeden

Instructed by

: Loubser van Wyk Inc

c/o Jacobs Fourie Inc

Bloemfontein

On behalf of the Defendants : Adv S Motloung

Instructed by

: State Attorney

[1] See document with heading, “Irregular Proceeding,” on p 34 of the record

[2] Record, p 31

[3] See Erasmus Superior Court Practice 2nd ed at D1 - 358