Office of Public Protector and Another v Mkhwebane (2024/023495) [2024] ZAGPPHC 577 (21 June 2024)

Office of Public Protector and Another v Mkhwebane (2024/023495) [2024] ZAGPPHC 577 (21 June 2024)

The court held that rule 53(4) is designed to allow an applicant to amend the notice of motion and supplement the founding affidavit only insofar as it relates to the grounds of review revealed by the record. The respondent's amended notice of motion and supplementary affidavit introduced new causes of action, including contempt of court and striking out affidavits, which are extraneous to the review and not permitted under rule 53(4). The respondent failed to follow the procedure under rule 28 for such amendments, thereby depriving the applicants of proper notice and the opportunity to object. This conduct constituted an irregular step and prejudiced the applicants. The court exercised...

Citation
[2024] ZAGPPHC 577
Parties
Applicant: Office of the Public Protector; Applicant: Kholeka Gcaleka; Respondent: Busisiwe Mkhwebane
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 June 2024
Case Number
2024/023495
Procedural Posture
Review Application / Application to Set Aside Irregular Step Under Rule 30 and 30 a
Outcome
The respondent's amended notice of motion and supplementary affidavit were declared irregular and set aside. Costs were awarded to the applicants, including the costs of two counsel. The respondent was granted 10 days to file compliant pleadings under rule 53(4).
Judges
Janse Van Nieuwenhuizen
Legal Topics
Uniform Rules of Court, Rule 53 Review, Irregular Proceedings, Amendment of Pleadings
Civil Procedure Administrative Law Uniform Rules of Court Rule 53 Review Irregular Proceedings Amendment of Pleadings

Case Brief

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Parties

Office of the Public Protector

Applicant

Kholeka Gcaleka

Applicant

Busisiwe Mkhwebane

Respondent

Procedural Posture

Review Application / Application to Set Aside Irregular Step Under Rule 30 and 30 a

Legal Issues

  1. 1 Whether the respondent's amended notice of motion and supplementary affidavit comply with rule 53(4) of the Uniform Rules of Court.
  2. 2 Whether the introduction of new causes of action and relief unrelated to the grounds of review constitutes an irregular step.
  3. 3 Whether the applicants have suffered prejudice as a result of the respondent's conduct.

Ratio Decidendi

The court held that rule 53(4) is designed to allow an applicant to amend the notice of motion and supplement the founding affidavit only insofar as it relates to the grounds of review revealed by the record. The respondent's amended notice of motion and supplementary affidavit introduced new causes of action, including contempt of court and striking out affidavits, which are extraneous to the review and not permitted under rule 53(4). The respondent failed to follow the procedure under rule 28 for such amendments, thereby depriving the applicants of proper notice and the opportunity to object. This conduct constituted an irregular step and prejudiced the applicants. The court exercised...

Court Disposition

The respondent's amended notice of motion and supplementary affidavit were declared irregular and set aside. Costs were awarded to the applicants, including the costs of two counsel. The respondent was granted 10 days to file compliant pleadings under rule 53(4).

Orders

  • The respondent’s amended notice of motion dated 26 April 2024 and supplementary affidavit dated 29 April 2024 are declared irregular and non-compliant with the Uniform Rules of Court and are set aside.
  • The respondent is ordered to pay the costs of the application, including the costs of two counsel.