Public Servants Association of South Africa and Others v Premier, Free State Province and Others (5198/2005, 2428/2006) [2006] ZAFSHC 37 (5 October 2006)

IN THE HIGH COURT OF SOUTH AFRICA(ORANGE FREE STATE PROVINCIAL DIVISION)Case Numbers: 5198/2005 & 2428/2006In the matter between:PUBLIC SERVANTS ASSOCIATION OF1stApplicantSOUTH AFRICA AND OTHERSANSIE NEL2ndApplicantANNA CAROLINA VAN WYK3rdApplicantMARIA ELIZABETH VENTER4thApplicantANNE JOAN HILDER5thApplicantALIDA SUZANNA BAKEMA6thApplicantLEON JOHANNES SMITH7thApplicantandTHE PREMIER, FREE STATE PROVINCE1stRespondentAND OTHERSTHE MEC FOR SAFETY, SECURITY ANDLIAISON: FREE STATE PROVINCE2ndRespondentTHE HOD FOR SAFETY, SECURITY ANDLIAISON: FREE STATE PROVINCE3rdRespondent_____________________________________________________JUDGMENT:EBRAHIM, J_____________________________________________________HEARD ON:28 SEPTEMBER 2006_____________________________________________________DELIVERED ON:5 OCTOBER 2006_____________________________________________________[1] This is an application to set aside as an irregular step in terms of Rule 30 of the Rules of this courtinter alia,a Notice of Intention to Amend the Notice of Motion in review proceedings instituted in this court, and to which I shall refer, where necessary in this judgement as “the main application”.[2] I shall refer for the sake of convenience to the parties as they are referred to in the main application. The relevant background to this interlocutory application is the following:(i) The applicants filed a Notice of Intention to Amend their Notice Motion in the main application. This is the first Notice of Intention to Amend filed by the applicants.(ii) The respondents objected to this notice.An application for Leave to Amend was then launched. This application was filed out of time.The application for Leave to Amend was then set down for hearing on the 15thJune 2006 when it was argued before me. Counsel for both applicants and the respondents filed detailed heads of argument on the merits of the application and in addition, counsel for respondents dealt in his heads of argument with reasons why condonation should not be granted to the applicants for failing to timeously lodged their application for leave to amend as provided for in Rule 28(4) of the Uniform Rules of this court.After hearing argument I dismissed the application for Leave to Amend on the grounds that it was not properly before court, that it was out of time. Hence it was my finding that the applicants had not made out a proper case for condonation for failing to keep within the proper time limits in bringing the application for Leave to Amend. The application for Leave to Amend was therefore dismissed and the applicants were ordered to pay the costs thereof including the wasted costs of the day’s hearing.Thereafter on the 18thof July 2006 the applicants filed a second Notice of their Intention to Amend the Notice of Motion in the main application. The gist of this notice is precisely in the same terms as the first Notice of Intention to Amend in respect of which they had subsequently applied for Leave to Amend.[3] In argument it was contended for on behalf of the respondents who bring the present interlocutory application that in view of the fact the same issue arises in respect of both notices to amend, the second Notice to Amend is irregular, the matter having already been adjudicated upon and that therefore it must be set aside, together with the Amended Notice of Motion and the notices setting the main application down for hearing on the 17thof August 2006 and the 24thof August 2006. In the alternative it was argued that should the respondent not succeed in persuading me in this regard, then the respondent’s failure to timeously object to the intended amendment must be condoned, the Amended Notice of Motion set aside and the respondents be given leave to file their notice of objection to the second Notice of Intention to Amend.[4.]4.1 With the onset of argument on behalf of the respondents Mr. Claasen first attempted to persuade me that the order I had made on the 15thof June 2006, dismissing the application for Leave to Amend and ordering costs against the applicants, was in fact a dismissal only of the application for condonation and not a dismissal on the merits of the application for Leave to Amend and that, accordingly the application for Leave to Amend still formed part of the record. His argument had its basis in the contention that two separate and distinct applications were being argued before me and that I had dealt merely with the one dealing with condonation dismissing it on its merits for lack of good cause shown by the applicants. His submissions in this regard were misconceived and wisely, he did not pursue the argument when his attention was drawn to the specific and clear wording of my judgment in that matter and to the fact that, although twofold, the application was a single one dealing principally with the issue of the question of leave to amend. He was also informed that during argument on the 15thof June 2006 oral submissions on the merits of the proposed amendments had been made by both counsel in the matter. He was then constrained to concede that it was usual practice for an application for condonation to be included in another substantive application such as an application for Leave to Amend and there was nothing irregular in that procedure. That being so on the further reading of my judgment given on the 15thof June 2006 he conceded that the judgment had dealt with the application for Leave to Amend in its entirely and not exclusively with the application for condonation.4.2 In the alternative, the respondents argue that the issue of the amendment had already been decided on its merits when I gave judgment on the 15thJune 2006 and accordingly, that in itself, was sufficient for the respondents to be entitled to the order they sought setting aside the second Notice of Intention to Amend and the subsequent Amended Notice of Motion. He premised this argument on the identical nature and content of both notices of Intention to Amend. I am not in agreement with Mr. Claasen’s submissions in this regard as it is clear from the judgment which was handed down in that application that the matter was decided on the basis that no reference whatsoever was made in the application for condonation by the deponent thereto to the failure to timeously lodge the application for Leave to Amend and no explanation at all was furnished therefor. For this reason it was found that no good cause had been shown explaining the delay and accordingly the application was dismissed with costs. In addition, the application for condonation was not decided distinctly and separately from that of the application for Leave to Amend. The whole application was dismissed with costs. The applicants were accordingly entitled to start afresh with a new procedure to amend their Notice of Motion in accordance with Rule 28.[5] I turn now to the respondent’s application for condonation for failing to timeously lodge a notice of their intention to object to the proposed second amendment. Laxity and/or confusion and/or disorganisation and/or inefficiency does not in my view amount to good cause shown which is the sole test in deciding such applications. This is trite law and needs no affirmation. The second Notice of Intention to Amend was served on the Office of the State Attorney representing the respondents on the 18thof July 2006 and specifically addressed to the attorney who represented the respondents during argument on the 15thJune 2006. No affidavit by that attorney was attached to the respondent’s present application in support of the allegations made by the deponent to the founding affidavit in support of the application. The respondent’s explanation for its failure to timeously lodge its objection to the applicant’s proposed amendment is that the attorney handling the matter had resigned and the new incumbent of the office was not informed timeously of the service of the second Notice of Intention to Amend. It was argued that the relevant file in the matter passed through the hands of several attorneys at different times and in different offices and the filing Notice of the Amendment only reached the attention of the attorney designated to deal with this matter on the 3rdof August 2006 by which time the amendment had been effected. Thereafter a search was embarked upon for the file in the matter and it was argued by the respondents that the size of the office of the state attorney was such and the volume of files was such that such confusion does result. The relevant file was eventually located where it had been placed in a blank file without any writing on it. To my mind such conduct smacks of negligence and inefficiency and is wholly irresponsible. I find the respondent’s explanation to be wholly unsatisfactory such that it cannot suffice to amount to good cause shown. The file appears to have been misplaced as a result of inexcusable inefficiency on the part of some member of staff of the office of the state attorney. Moreover, the fact that the applicants addressed the second Notice of their Intention to Amend their Notice of Motion to a specific attorney in that office was not challenged by the respondents and therefore it must be taken to be common cause. Yet, no explanation was preferred by the attorney concerned or anyone else for that matter as to why the notice did not come to his attention timeously. In the result the application for condonation must accordingly also fail.[6] This however is not the end of the matter. During argument it became clear that on failing to receive any notice of objection after the prescribed 10 day period therefor had lapsed, the applicants filed the amended pages amending its Notice of Motion in the main application and served the respondent therewith. Thereafter without waiting for the lapse of the prescribed period of 15 days the applicants set the main application down for hearing on its amended papers for the 17thof August 2004. This was indeed an irregular step and justifies its setting aside. However, as it is common cause that on that day the parties agreed to a postponement to the 24thof August 2006, no order to set aside the notice of set-down for the 17thAugust 2006 would be competent in the circumstances. The only question which arises is one of costs and in view of the agreed postponement, I am inclined to make no order as to costs for the 17thAugust 2004. As far as the costs for the 24thof August 2004 are concerned, I think that that is a matter which requires full argument and debate at the hearing of the main application.[7] Accordingly the following order is made:1. The application to set aside the Notice of Intention to Amend dated the 18thof July 2006 and the subsequent Amended Notice of Motion is dismissed.2. The application to set aside the notice of set-down for the 17thof August 2006 and the 24thof August 2006 is dismissed.3. The costs of this interlocutory application is to borne by the respondents.4. The wasted costs of the hearing of the 24thof August 2006 in the main application is reserved for determination at the hearing of the main application.5. No order as to costs is made in respect of the hearing of the 17thof August 2006._____________S. EBRAHIM, JOn behalf of the applicants: Adv. J.P. DaffueInstructed by:Lovius BlockBLOEMFONTEINOn behalf of the respondents: Adv. J. Y. ClaasenInstructed by:State AttorneyBLOEMFONTEIN/em

IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Case Numbers: 5198/2005 & 2428/2006

In the matter between:

PUBLIC SERVANTS ASSOCIATION OF1stApplicant

PUBLIC SERVANTS ASSOCIATION OF

st

SOUTH AFRICA AND OTHERS

ANSIE NEL2ndApplicant

ANSIE NEL

nd

ANNA CAROLINA VAN WYK3rdApplicant

ANNA CAROLINA VAN WYK

rd

MARIA ELIZABETH VENTER4thApplicant

MARIA ELIZABETH VENTER

th

ANNE JOAN HILDER5thApplicant

ANNE JOAN HILDER

ALIDA SUZANNA BAKEMA6thApplicant

ALIDA SUZANNA BAKEMA

LEON JOHANNES SMITH7thApplicant

LEON JOHANNES SMITH

and

THE PREMIER, FREE STATE PROVINCE1stRespondent

THE PREMIER, FREE STATE PROVINCE

AND OTHERS

THE MEC FOR SAFETY, SECURITY AND

LIAISON: FREE STATE PROVINCE2ndRespondent

LIAISON: FREE STATE PROVINCE

THE HOD FOR SAFETY, SECURITY AND

LIAISON: FREE STATE PROVINCE3rdRespondent

LIAISON: FREE STATE PROVINCE

_____________________________________________________

JUDGMENT:EBRAHIM, J

JUDGMENT:

HEARD ON:28 SEPTEMBER 2006

HEARD ON:

DELIVERED ON:5 OCTOBER 2006

DELIVERED ON:

[1] This is an application to set aside as an irregular step in terms of Rule 30 of the Rules of this courtinter alia,a Notice of Intention to Amend the Notice of Motion in review proceedings instituted in this court, and to which I shall refer, where necessary in this judgement as “the main application”.

inter alia,

[2] I shall refer for the sake of convenience to the parties as they are referred to in the main application. The relevant background to this interlocutory application is the following:

(i) The applicants filed a Notice of Intention to Amend their Notice Motion in the main application. This is the first Notice of Intention to Amend filed by the applicants.

(ii) The respondents objected to this notice.

An application for Leave to Amend was then launched. This application was filed out of time.The application for Leave to Amend was then set down for hearing on the 15thJune 2006 when it was argued before me. Counsel for both applicants and the respondents filed detailed heads of argument on the merits of the application and in addition, counsel for respondents dealt in his heads of argument with reasons why condonation should not be granted to the applicants for failing to timeously lodged their application for leave to amend as provided for in Rule 28(4) of the Uniform Rules of this court.After hearing argument I dismissed the application for Leave to Amend on the grounds that it was not properly before court, that it was out of time. Hence it was my finding that the applicants had not made out a proper case for condonation for failing to keep within the proper time limits in bringing the application for Leave to Amend. The application for Leave to Amend was therefore dismissed and the applicants were ordered to pay the costs thereof including the wasted costs of the day’s hearing.Thereafter on the 18thof July 2006 the applicants filed a second Notice of their Intention to Amend the Notice of Motion in the main application. The gist of this notice is precisely in the same terms as the first Notice of Intention to Amend in respect of which they had subsequently applied for Leave to Amend.

An application for Leave to Amend was then launched. This application was filed out of time.

The application for Leave to Amend was then set down for hearing on the 15thJune 2006 when it was argued before me. Counsel for both applicants and the respondents filed detailed heads of argument on the merits of the application and in addition, counsel for respondents dealt in his heads of argument with reasons why condonation should not be granted to the applicants for failing to timeously lodged their application for leave to amend as provided for in Rule 28(4) of the Uniform Rules of this court.After hearing argument I dismissed the application for Leave to Amend on the grounds that it was not properly before court, that it was out of time. Hence it was my finding that the applicants had not made out a proper case for condonation for failing to keep within the proper time limits in bringing the application for Leave to Amend. The application for Leave to Amend was therefore dismissed and the applicants were ordered to pay the costs thereof including the wasted costs of the day’s hearing.Thereafter on the 18thof July 2006 the applicants filed a second Notice of their Intention to Amend the Notice of Motion in the main application. The gist of this notice is precisely in the same terms as the first Notice of Intention to Amend in respect of which they had subsequently applied for Leave to Amend.

The application for Leave to Amend was then set down for hearing on the 15thJune 2006 when it was argued before me. Counsel for both applicants and the respondents filed detailed heads of argument on the merits of the application and in addition, counsel for respondents dealt in his heads of argument with reasons why condonation should not be granted to the applicants for failing to timeously lodged their application for leave to amend as provided for in Rule 28(4) of the Uniform Rules of this court.

After hearing argument I dismissed the application for Leave to Amend on the grounds that it was not properly before court, that it was out of time. Hence it was my finding that the applicants had not made out a proper case for condonation for failing to keep within the proper time limits in bringing the application for Leave to Amend. The application for Leave to Amend was therefore dismissed and the applicants were ordered to pay the costs thereof including the wasted costs of the day’s hearing.Thereafter on the 18thof July 2006 the applicants filed a second Notice of their Intention to Amend the Notice of Motion in the main application. The gist of this notice is precisely in the same terms as the first Notice of Intention to Amend in respect of which they had subsequently applied for Leave to Amend.

After hearing argument I dismissed the application for Leave to Amend on the grounds that it was not properly before court, that it was out of time. Hence it was my finding that the applicants had not made out a proper case for condonation for failing to keep within the proper time limits in bringing the application for Leave to Amend. The application for Leave to Amend was therefore dismissed and the applicants were ordered to pay the costs thereof including the wasted costs of the day’s hearing.

Thereafter on the 18thof July 2006 the applicants filed a second Notice of their Intention to Amend the Notice of Motion in the main application. The gist of this notice is precisely in the same terms as the first Notice of Intention to Amend in respect of which they had subsequently applied for Leave to Amend.

[3] In argument it was contended for on behalf of the respondents who bring the present interlocutory application that in view of the fact the same issue arises in respect of both notices to amend, the second Notice to Amend is irregular, the matter having already been adjudicated upon and that therefore it must be set aside, together with the Amended Notice of Motion and the notices setting the main application down for hearing on the 17thof August 2006 and the 24thof August 2006. In the alternative it was argued that should the respondent not succeed in persuading me in this regard, then the respondent’s failure to timeously object to the intended amendment must be condoned, the Amended Notice of Motion set aside and the respondents be given leave to file their notice of objection to the second Notice of Intention to Amend.

[4.]

4.1 With the onset of argument on behalf of the respondents Mr. Claasen first attempted to persuade me that the order I had made on the 15thof June 2006, dismissing the application for Leave to Amend and ordering costs against the applicants, was in fact a dismissal only of the application for condonation and not a dismissal on the merits of the application for Leave to Amend and that, accordingly the application for Leave to Amend still formed part of the record. His argument had its basis in the contention that two separate and distinct applications were being argued before me and that I had dealt merely with the one dealing with condonation dismissing it on its merits for lack of good cause shown by the applicants. His submissions in this regard were misconceived and wisely, he did not pursue the argument when his attention was drawn to the specific and clear wording of my judgment in that matter and to the fact that, although twofold, the application was a single one dealing principally with the issue of the question of leave to amend. He was also informed that during argument on the 15thof June 2006 oral submissions on the merits of the proposed amendments had been made by both counsel in the matter. He was then constrained to concede that it was usual practice for an application for condonation to be included in another substantive application such as an application for Leave to Amend and there was nothing irregular in that procedure. That being so on the further reading of my judgment given on the 15thof June 2006 he conceded that the judgment had dealt with the application for Leave to Amend in its entirely and not exclusively with the application for condonation.

4.2 In the alternative, the respondents argue that the issue of the amendment had already been decided on its merits when I gave judgment on the 15thJune 2006 and accordingly, that in itself, was sufficient for the respondents to be entitled to the order they sought setting aside the second Notice of Intention to Amend and the subsequent Amended Notice of Motion. He premised this argument on the identical nature and content of both notices of Intention to Amend. I am not in agreement with Mr. Claasen’s submissions in this regard as it is clear from the judgment which was handed down in that application that the matter was decided on the basis that no reference whatsoever was made in the application for condonation by the deponent thereto to the failure to timeously lodge the application for Leave to Amend and no explanation at all was furnished therefor. For this reason it was found that no good cause had been shown explaining the delay and accordingly the application was dismissed with costs. In addition, the application for condonation was not decided distinctly and separately from that of the application for Leave to Amend. The whole application was dismissed with costs. The applicants were accordingly entitled to start afresh with a new procedure to amend their Notice of Motion in accordance with Rule 28.

[5] I turn now to the respondent’s application for condonation for failing to timeously lodge a notice of their intention to object to the proposed second amendment. Laxity and/or confusion and/or disorganisation and/or inefficiency does not in my view amount to good cause shown which is the sole test in deciding such applications. This is trite law and needs no affirmation. The second Notice of Intention to Amend was served on the Office of the State Attorney representing the respondents on the 18thof July 2006 and specifically addressed to the attorney who represented the respondents during argument on the 15thJune 2006. No affidavit by that attorney was attached to the respondent’s present application in support of the allegations made by the deponent to the founding affidavit in support of the application. The respondent’s explanation for its failure to timeously lodge its objection to the applicant’s proposed amendment is that the attorney handling the matter had resigned and the new incumbent of the office was not informed timeously of the service of the second Notice of Intention to Amend. It was argued that the relevant file in the matter passed through the hands of several attorneys at different times and in different offices and the filing Notice of the Amendment only reached the attention of the attorney designated to deal with this matter on the 3rdof August 2006 by which time the amendment had been effected. Thereafter a search was embarked upon for the file in the matter and it was argued by the respondents that the size of the office of the state attorney was such and the volume of files was such that such confusion does result. The relevant file was eventually located where it had been placed in a blank file without any writing on it. To my mind such conduct smacks of negligence and inefficiency and is wholly irresponsible. I find the respondent’s explanation to be wholly unsatisfactory such that it cannot suffice to amount to good cause shown. The file appears to have been misplaced as a result of inexcusable inefficiency on the part of some member of staff of the office of the state attorney. Moreover, the fact that the applicants addressed the second Notice of their Intention to Amend their Notice of Motion to a specific attorney in that office was not challenged by the respondents and therefore it must be taken to be common cause. Yet, no explanation was preferred by the attorney concerned or anyone else for that matter as to why the notice did not come to his attention timeously. In the result the application for condonation must accordingly also fail.

[6] This however is not the end of the matter. During argument it became clear that on failing to receive any notice of objection after the prescribed 10 day period therefor had lapsed, the applicants filed the amended pages amending its Notice of Motion in the main application and served the respondent therewith. Thereafter without waiting for the lapse of the prescribed period of 15 days the applicants set the main application down for hearing on its amended papers for the 17thof August 2004. This was indeed an irregular step and justifies its setting aside. However, as it is common cause that on that day the parties agreed to a postponement to the 24thof August 2006, no order to set aside the notice of set-down for the 17thAugust 2006 would be competent in the circumstances. The only question which arises is one of costs and in view of the agreed postponement, I am inclined to make no order as to costs for the 17thAugust 2004. As far as the costs for the 24thof August 2004 are concerned, I think that that is a matter which requires full argument and debate at the hearing of the main application.

[7] Accordingly the following order is made:

1. The application to set aside the Notice of Intention to Amend dated the 18thof July 2006 and the subsequent Amended Notice of Motion is dismissed.

2. The application to set aside the notice of set-down for the 17thof August 2006 and the 24thof August 2006 is dismissed.

3. The costs of this interlocutory application is to borne by the respondents.

4. The wasted costs of the hearing of the 24thof August 2006 in the main application is reserved for determination at the hearing of the main application.

5. No order as to costs is made in respect of the hearing of the 17thof August 2006.

_____________

S. EBRAHIM, J

On behalf of the applicants: Adv. J.P. Daffue

Instructed by:

Lovius Block

BLOEMFONTEIN

On behalf of the respondents: Adv. J. Y. Claasen

State Attorney

/em