Rustenburg Local Municipality v Are Direng Transport and Labour Hire and Another (UM 90/2020) [2021] ZANWHC 61 (26 August 2021)

IN THE HIGH COURT HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAFIKENG

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

CASE NO: UM 190/2020

In the matter between:

RUSTENBURG LOCAL MUNICIPALITY

Applicant

and

ARE DIRENG TRANSPORT AND LABOUR HIRE

First Respondent

RAMBAIT TRADING ENTERPRISE (PTY) LTD

Second Respondent

DATE OF HEARING : 19 AUGUST 2021

DATE OF JUDGMENT : 26 AUGUST 2021

FOR THE APPLICANT : ADV. NG LAUBSCHER

FOR RESPONDENTS : ADV. F TRYON

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by way of e-mail. The date and time of the handing down of judgment is deemed to be 14h00 on 26 August 2021.

JUDGMENT

PETERSEN J

Introduction

[1] This is an interlocutory application brought by the applicant (the first respondent in the main review application) against the respondents’ (the first and second applicants’ in the main review application). The application is brought in terms of Rule 30 and 30A of the Uniform Rules of Court for the striking out alternatively setting aside of a “Notice of Discovery” delivered by the respondents’ on 3 December 2020. The parties are cited in this judgment, as in this interlocutory application, for ease of reference. The relief sought by the applicant is formulated in the Notice of Motion as follows:

“1. declaring that the “Notice of Discovery” delivered by the First Respondent and the Second Respondent to the Applicant on 3 December 2020 calling upon the Applicant to “make discovery” of certain documents does not comply with the provisions of:

(a) Rule 35(13) of the Uniform Rules of Court;

(b) alternatively Rule 35(12) of the Uniform Rules of Court;

(c) further alternatively constitutes an irregular step in review proceedings conducted in terms of Rule 53 of the Uniform Rules of Court;

and as such, that same be struck out, or set aside in its entirety;

2. costs of the application to be paid by the First Respondent and the Second Respondent, jointly and severally, the one paying the other to be absolved;

3. further and/or alternative relief.”

[2] On 19 August 2021, Adv Tryon, for the respondents’ sought to move an application for a postponement of the application from the bar. The essence of the application was to grant a postponement to allow the respondents’ to file an answering affidavit, which had not been filed as at the date of the hearing. It was placed on record that papers had been sent by way of e-mail to the legal representatives of the applicant, setting out, inter alia, the basis of the application for postponement, on the evening preceding the hearing of this application and on the morning of the hearing. No papers were, however, delivered with the Registrar of this Court, in accordance with the Rules or brought to the

attention of this Court by the Registrar. The application for postponement was refused and the application accordingly entertained

on an unopposed basis.

Background

[3] The respondents’ launched a review application in terms of Uniform Rule 53 (rule 53) to have a decision taken by the applicant reviewed and set aside. The merits of the main review application are not an issue for consideration by this Court and will not be traversed in this judgment to avoid prolix. In terms of rule 53, the applicant was required to deliver the “record and reasons” for the decision sought be to be reviewed and set aside. The applicant duly filed the “record and reasons”. The respondents’ were accordingly entitled to “… amend, add to or vary …” the notice of motion and “... supplement the supporting affidavit …”.

[4] Upon receipt of the record and reasons, the respondents’ failed to invoke the right to request additional documents, which may be relevant to the record in accordance with the prescripts of rule 53. The respondents’ instead, on 3 December 2020, delivered a notice for “discovery” in the main review application. The discovery notice called on the applicant to make discovery of documents identified in the notice, in terms of rule 35, so as to enable the respondents’ to amend the founding papers. The discovery notice was predicated on the contents of the applicants’ answering affidavit delivered in response to Part A of the notice of motion.

The applicable legislation

Rule 53

[5] Rule 53 provides as follows:

“53. Reviews

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected—

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside; and

(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to dispatch, within 15 days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he or she is by law required or desires to give or make, and to notify the applicant that he or she has done so.

(2) The notice of motion shall set out the decision or proceedings sought to be reviewed and shall be supported by affidavit setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings set aside or corrected.

(3) The registrar shall make available to the applicant the record despatched to him or her as aforesaid upon such terms as the registrar thinks appropriate to ensure its safety, and the applicant shall thereupon cause copies of such portions of the record as may be necessary for the purposes of the review to be made and shall furnish the registrar with two copies and each of the other parties with one copy thereof, in each case certified by the applicant as true copies. The costs of transcription, if any, shall be borne by the applicant and shall be costs in the cause.

(4) The applicant may within 10 days after the registrar has made the record available to him or her, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of his or her notice of motion and supplement the supporting affidavit.

(5) Should the presiding officer, chairperson or officer, as the case may be, or any party affected desire to oppose the granting of the order prayed in the notice of motion, he or she shall—

(a) within 15 days after receipt by him or her of the notice of motion or any amendment thereof deliver notice to the applicant that he or she intends so to oppose and shall in such notice appoint an address within 15 kilometres of the office of the registrar at which he or she will accept notice and service of all process in such proceedings; and

(b) within 30 days after the expiry of the time referred to in subrule (4) hereof, deliver any affidavits he or she may desire in answer to the allegations made by the applicant.

(6) The applicant shall have the rights and obligations in regard to replying affidavits set out in rule 6.

(7) The provisions of rule 6 as to set down of applications shall mutatis mutandis apply to the set down of review proceedings.

(my emphasis)

[6] Rule 53(4), in particular, provides the statutory framework for the respondents’ to amend, add to or vary the founding papers. It must be emphasized that by the time the respondents’ filed the “discovery” notice, however, the respondents’ rights in terms of rule 53(4) had expired.

Rule 35(12), 35(13) and 35(14)

[7] In adjudicating this application, it is apposite to have regard to rule 35(12), 35(13) and 35(14), as the respondents’ in fact sought discovery on 3 December 2020, in terms of rule 35.

[8] It is prudent to commence with the prescripts of rule 35(13) which provides that:

“(13) The provisions of this rule relating to discovery shall mutatis mutandis apply, in so far as the court may direct, to applications.” (my emphasis)

[9] Rule 35(12) which gives context to rule 35(13) provides that:

“(12) Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape for his inspection and to permit him to make a copy or transcription thereof.”

Case Law

[10] The application procedure as a general rule does not provide for discovery. However, as rule 35(13) makes it clear, a court may in terms of rule 35(13) direct that the rules relating to discovery shall apply to an application.[1] A court will, then, only in exceptional circumstances direct that the rules of discovery shall apply to application proceedings. The position in this regard is aptly set out in Loretz v MacKenzie[2], and re-affirmed in Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others[3] by Southwood J. In Loretz v MacKenzie, it was said:

“The Rules, and in particular Rule 35(13), provide for a party to seek to have the Rules of discovery made applicable to a particular application. That is an essential prerequisite for a notice in terms of Rule 35(1) and obviously for an application to compel compliance with a notice in terms of Rule 35(1).” (my emphasis)

And in Loretz v Mackenzie, that:

“… the difficulty which the applicant faces in this case is that this Court has already held in the matter of IJ Loretz v RA MacKenzie…

that in the absence of a direction in terms of Rule 35(13) of the Uniform Rules that the provisions of Rule 35 relating to discovery apply to a particular application they do not apply.’ (my emphasis)

Conclusion

[11] The respondents’ discovery notice in terms of rule 35, with due regard to the fact that the respondents’ in any event were out of time in terms of rule 53(4), usurped the discretion of the Court provided in rule 35(13). The exceptional procedure set out in rule 35(13) relating to discovery does not apply to applications without a direction given by the Court.

[12] The applicant is accordingly entitled to the relief sought in this application, on an unopposed basis.

Costs

[13] Costs ordinarily follow suit. In the exercise of my discretion, I do propose to make any order as to costs, considering the fact that the application was for all intents and purposes, unopposed.

Order

[14] Consequently, the following order is made:

(i) It is declared that the “Notice of Discovery” delivered by the First Respondent and the Second Respondent to the Applicant on 3 December 2020 calling upon the Applicant to “make discovery” of certain documents does not comply with the provisions of Rule 35(13) of the Uniform Rules of Court and is accordingly set aside in its entirety.

(ii) No order as to costs.

AH PETERSEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

[1] Premier Freight (Pty) Ltd v Breathetex Corporation (Pty) Ltd 2003 (6) SA 190 (SE) at paragraphs 4-5.)

[2] 1999 (2) SA 72 (T), at 75A-G

[3] 1999 (2) SA 599 (T), at 611G-H