Special Investigating Unit and Others v Lekabe (GP09/2019; GP/22/2021) [2025] ZAST 6 (4 March 2025)

IN THE SPECIAL TRIBUNAL ESTABLISHED IN TERMS OF SECTION 2(1) OF

THE SPECIAL

INVESTIGATING UNIT AND

SPECIAL TRIBUNALS ACT 74 OF 1996

(REPUBLIC OF SOUTH AFRICA)

CASE NO.: GP09/2019

In the interlocutory application for amendment between: -

THE SPECIAL INVESTIGATING UNIT (SIU)

First Applicant

THE MINISTER OF

POLICE

Second Applicant

THE MINISTER OF

JUSTICE AND

CORRECTIONAL SERVICES

Third Applicant

THE MINISTER OF

HEALTH

Fourth Applicant

And

KGOSISEPHUTHABATHO

GUSTAV LEKABE

Respondent

CASE NO: GP09/2019

In re:

THE SPECIAL INVESTIGATING UNIT First Plaintiff

THE MINISTER OF

POLICE

Second Plaintiff

CORRECTIONAL SERVICES

Third Plaintiff

and

KGOSISEPHUTHABATHO

GUSTAV LEKABE

First Defendant

Consolidated with:

CASE NO: GP/22/2021

THE SPECIAL INVESTIGATING UNIT First Plaintiff

THE MINISTER OF HEALTH Third

Plaintiff

CORRECTIONAL SERVICES

Fourth Plaintiff

HASSAN EBRAHIM

KAJEE

Second Defendant

JUDGMENT

Introduction.

[1] The applicants have launched an application in terms of Rule 30(1) of the Uniform Rules of Court being an application to remove causes of complaint.

Chronology.

[2] On 7 and 8 February 2025 the respondent in these proceedings and the first defendant in the action between the parties, Mr Lekabe, forwarded a notice referring to some 40 parties as Third parties whom he wished to join to the proceedings. The said Notices were not issued by the Registrar of the Special Tribunal. On 11 February 2025, the respondent issued the same ‘NOTICE TO THE ABOVE-NAMED THIRD PARTIES’ now signed by the Registrar of the Tribunal. The respondent sought to rectify the signature point by issuing the notice through the Registrar of the Special Tribunal. He dispatched the signed Notices by email and included the applicants.

[3] On the same day the applicants, the applicants (plaintiffs in the main action) delivered a notice in terms of Uniform Rule 30 (1) and (2) to remove the cause of complaint thereby affording the respondent (first defendant in the main action) an opportunity to withdraw the proposed Third Party Notices. The irregular proceeding rule of the Uniform Rules of Court in relevant part provides as follows.[1]

[4] The reasons for the complaint were listed in the Notice to Remove the complaints. These included that the Notice had not been issued by the Registrar of the Tribunal. Further reasons included the fact that in terms of Rule 13 of the Uniform Rules of Court, the Notices had to be served by the Sheriff as required in terms of Rule 13(1)(b). Pleadings had closed on 21 September 2021 with the delivery of the applicants’ replication to the respondents respondent’s plea. In view of the fact that the pleadings had closed, the respondent in terms of Rule 13(3) (b) should have sought leave to issue the Third Party Notices. He did not do so. The respondent relies on Rule 10 of the Tribunal Rules for service of the Notices. To dispatch Notices by email is permissible in terms Rule 6(1) (c) of the Rules. However, one cannot utilise a hybrid process. Once

something is issued in terms of the Uniform Rules of Court then the method of service it determined by the relevant Uniform Rule.

[5] The respondent was invited to withdraw the Notices. On 17 February 2025 he advised the applicants that he refused to do so and opposed the relief sought. On 20 February 2025 the applicants launched an application to remove the cause of complaint and the Notice of Motion stipulated that the applicants intended to make application on 26 February 2025 for the hearing of the matter.

[6] On 21 February 2025 the respondent filed a Notice of withdrawal of ‘Third Party Notices.’ It did not stipulate which Notice was being withdrawn whether it was the one of 7 February or the one of 11 February 2025.

[7] The respondent submitted that there could be no doubt that he was withdrawing the Notices of 11 February 2025. He submitted that the Notices of 7 and 8 February were a nullity as they had not been stamped and issued by the Registrar of the Tribunal and that they did not serve before the Tribunal.

[8] The matter was then set down for hearing for Wednesday 26th February 2025. The applicants in their Notice of Motion asserted that they wished to set aside the Notice dated 7 February 2025 which was emailed by the first respondent to some of the intended third parties. There is no reference in the application to the now issued notice of 11 February 2025. Mr Joubert SC on behalf of the applicant’s submitted that it is the same notice now only bearing the signature. So, he submits it made no difference that the date of the 11 February did not appear in the Notice of Motion. It is noted that the withdrawal of the Notice was filed on 21 February 2025.

[9] The applicants seek that the respondent be ordered to pay the costs of the Rule 30 proceedings on an attorney-client scale including costs of two counsel.

[10] On Monday 20 February 2025 the respondent issued a fresh application for leave to join the third parties. It was duly stamped.

[11] During the course of argument the applicants indicated that it may well be that the Special Tribunal does not have the jurisdiction to issue Third Party Notices and it was a point they were considering raising if the respondent persisted in joining third parties. They mention this point because the respondent has submitted that the applicant’s do not have locus standi to object or receive documentation as the lis was between him and the intended third parties. The respondent argued that in the absence of a third party procedure in the Tribunal Rule it was permissible to apply the High Court procedure, as Rule 28 of the Tribunal Rules permitted this where there was a lacuna in the Tribunal Rules.

[12] The applicants’ attorney during the course of 21 February 2025 sent a letter to the respondent describing that he is an admitted and experienced attorney and was simply issuing process without regard to the Rules. The letter records that the respondent on the night of 20 February and at 21h00 despatched an application for leave to join third parties without having it issued by the Registrar of the Tribunal. This was a reference to the 7 February 2025 letter. As at 20 February 2025 the respondent had not withdrawn the Notices forming part of the irregular proceeding application. The applicants had already filed their heads of argument and considered that the matter would proceed.

[13] The applicants submit that it is clear that the respondent conceded the irregular procedure by withdrawing the Notices and this contention was further supported by the fact that the respondent had circulated a fresh application seeking leave to join the intended third parties.

[14] The respondent persists in his submission that the papers pertaining to the third party issue do not concern the applicants and do not have to be served on the applicants. In relation to the question of service by the deputy sheriff, the respondent places reliance on Rule 6(1) (c) whereby the Rules make provision for service of Tribunal process by email. He submits therefore that this is sufficient of itself and does not require service by deputy sheriff.

[15] This submission by the respondent must be weighed against the provision of Rule 10(1) of the Tribunal Rules which stipulates that an application must be served on all the parties to the application. Accordingly, it would be proper that the applicants as dominus litis be served with all the papers. In addition, nowhere in the Uniform Rules of Court is a plaintiff precluded from receiving service of all documents. Although the Tribunal Rules do not refer to an interlocutory application therefore the word application must embrace all applications.

[16] The applicants argue that the respondent is using a hybrid process by picking some parts from Uniform Rule 13 and Tribunal Rule 6 (1) (c) to contend that serving by email is sufficient. As stated Tribunal Rule 10(1) applies to all the parties. The respondent contends that the Tribunal Rule has not been challenged and set aside, so it must apply.

10 Applications

10(1) (a) Every application other than one brought ex parte must be brought on notice of motion supported by affidavit and as near as may be in accordance with Form 2 of the First Schedule of the Tribunal Rules. Copies of the notice of motion and all annexures thereto, must be served upon every party to the application.

[17] The applicants indicate that they are considering raising a jurisdictional point should the respondent persist in issuing Third Party Notices. Based on an interpretation of the Act, the applicants argue that the Tribunal’s jurisdiction only extends to a lis between the state and the individual. The respondent in seeking to join others to this litigation is acting in his private capacity. The applicants contend that Section 4(1) (c) of the Act only permits state institutions to obtain relief. This point foreshadows a further opposed application, if the respondent persists.

[18] The respondent argued that the pleadings were not closed as at a case management meeting there was a discussion about interlocutory applications and the applicants conceded that the pleadings were not closed. He submitted that he did not need leave to serve the Third Party Notices. It is clear from the minutes that the applicants did not concede that the pleadings were still open and could not have done so as the pleadings had already closed in 2021. It is noted that the minutes only referred to interlocutory proceedings.

Evaluation.

[19] The applicants contend that the respondent stubbornly persisted in his refusal to remove the irregular notices and they seek an order that the application be granted and that he pay costs on an attorney client scale for two counsel, one being a senior counsel.

[20] The applicants point out that the respondent is a seasoned and experienced attorney and is litigating irrationally and recklessly. His litigation strategy is unmeritorious. He is an obdurate litigant and his conduct should not be countenanced by the Tribunal.

[21] It is the applicants’ case that the respondent who is a qualified attorney is litigating recklessly and only belatedly withdrew the purported Third Party notice after the matter was set down.

[22] The respondent submits that the Notice of 7 February 2025 was never before the Tribunal so there should be no costs order. He is the one who should be awarded costs. He submits that the applicants are misguided as there never was a Notice of 7 February 2025 to set aside as an irregular proceeding.

[21] The respondent contends that the Notice of 7 February 2025 was a nullity from inception and could not be set aside. Further there was no new Notice of Irregularity in relation to the Third Party Notice of 11th February 2025 and therefore the applicants should never have set the matter down.

Conclusion.

[22] In this matter the applicants were driven to proceed with their application as the Notice of withdrawal was only served on 21 February 2025. The applicants had already filed heads of argument by then.

[23] The question is once the Notice of Withdrawal came in, should they have removed the matter from the Roll as it was set down for 26 February 2025. This raises a complex issue as the Notice from the respondent did not specify which Notice was being withdrawn, it was either the Notice of 7 or 11 February 2025. The respondent on the other hand was adamant that the Notice of 7 February 2025 was a nullity and should never have been considered by the applicants. So, the only Notice he could have referrd to was that of 11 February 2025.

[24] In my view these parties have drawn their proverbial lines in the sand and neither would be prepared to write a letter or make a phone call to resolve the slightest impasse between them. The filing of the Heads of Argument and the simultaneous withdrawal Notice on 21 February 2021 places the issue of costs on a knife edge.

[25] I must also take into account that there are disputed versions between the parties as to the status of the Notice of 7 February and the one of 11 February 2025. The case which the respondent had to meet in his understanding was the Notice of 11 February 2025. The Heads of Argument also seek that the Notice of 7 February 2025 be set aside. What of the Notice of 11 February 2025. As confirmed by the respondent’s conduct in seeking leave to issue Third Party Notice to the intended recipients, it must be accepted that he intended to withdraw the Notice of 11 February 2025. It is also clear on the respondent’s version that as at 20 February he intended relying on the Notice of 11 February 2025. It was only on 21 February 2025 that he then sought leave to join Third parties.

[26] In Rvrn Crushing Wilson J stated that:

[10] …where an application is necessary, costs will generally follow the result of that application. But there is no obligation on a litigant who cures the irregularity before an application to set it aside becomes necessary to tender the costs occasioned by the irregular step. Those costs will be costs in the main proceeding.

[11] …The position is underpinned by at least two sound considerations of policy. The first is that litigants who commit irregularities ought to be encouraged to cure them quickly and cheaply without running the risk of an adverse costs order. Irregular steps, so long as they are corrected promptly, are a foreseeable hazard of litigation which ought generally to be dealt with as part of the costs order that the court ultimately makes in the main proceeding.

[12] The second consideration is that the purpose of rule 30A is to avoid 'excessive formality and point-taking' and 'to enable the parties to get on with the litigation by curing between themselves any prejudice caused' by an irregularity (If every withdrawal of an irregular step gave rise to a subsidiary claim for costs, litigation would soon descend into absurdity.[2]”

[27] In this matter the applicants were driven to set the matter down. The above dictum refers to a situation where the irregularity is cured before it becomes necessary to set the matter down. It is a matter of common sense and policy that litigants should be encouraged to cure irregularities speedily. This did not happen in this case. The further consideration is whether the point taken by the applicants was excessively formal.

[28] This entire process of adding third parties to this litigation is fraught with problems. In essence the respondent went ahead without proper consideration of the Rules of either the Tribunal or the Uniform Rules of Court. This is not a suitable matter for the costs to be determined in the main proceedings. It is a true interlocutory application and the costs must be considered at this stage.

[29] The respondent’s conduct in this interlocutory application demonstrates that he has elected to adopt a hybrid process and has litigated without strict compliance to either the Rules of the Tribunal nor of the Uniform Rules. He has issued a Notice for leave to join parties with an accompanying affidavit explaining why he wishes to join some 40 third parties. His Notice of withdrawal did not specify which Notice was being withdrawn. This must be weighed against the fact that on receiving the Notice of an irregular proceeding he did not respond knowing as he had already prepared a fresh Notice now issued by the Registrar. At the very least he should have specified which Notice was being withdrawn.

[30] Furthermore the Notice of 7 February 2025 had already been dispatched to at least one person so it was a current legal process out there that had to be dealt with. The applicants’ application to set aside the Notice and letter of 7 February 2025 had to be done. The question it raises then is whether this application by the applicants suffices to deal with the Notice of 11 February 2025. That Notice was withdrawn by the time the matter was argued. Again in the absence of specifying which Notice was being withdrawn a specific order is required in relation to the Notice of 11 February 2025.

[31] The remaining question is whether the applicants were justified in persisting in their application to set aside the Notice of 7 February 2025 and not in addition the Notice of 11 February 2025. As at date of the hearing of the application being 26 February 2025 the Notice of 7 February 2025 was still current albeit that the respondent contends a Third Party procedure has nothing to do with the applicants and that it was a nullity. I accept that there are two Notices out there and one of them cannot be left in limbo. This is the appropriate time to deal with both Notices. Both Notices are clearly defective in terms of the correct procedure required for their correct issuance. It would be excessively formalistic to deal with only one Notice when the respondent’s withdrawal Notice did not expressly convey which of the two Notices were being withdrawn. A state of uncertainty still prevails although the respondent contends that it is the Notice of 11 February that been withdrawn

Costs

[32] This is an interlocutory application which is of importance to the applicants and the respondent. However, it is an application that does not consist of complex legal issues. In my view it does not justify the engagement of two counsel. Because of the importance of the matter, it justify the engagement of a senior counsel. Furthermore, although the respondent appears to lurch from one poorly conceived and ill prepared legal procedure to the next, his conduct cannot be said to be such as to justify an attorney client award of costs.

[33] The respondent clearly fumbled and tried to rectify the situation by issuing a fresh Notice then with drawing it and then issuing a Notice to seek leave to join Third parties. It was a catalogue of errors none of which can be regarded as a cavalier disregard of the Rules. It was a misguided attempt to bring himself within the ambit of the Rules. I also take into account that the respondent is an experienced attorney, but his fumbling and trying to rectify the situation with ill conceived procedures cannot be said to be wilful at this stage. The respondent cannot, however, endlessly lurch from one ill conceived procedure to the next. He has the necessary skills as an attorney to research his intended steps carefully and to take legal advice from experienced counsel.

Order

1. The application is granted.

2. Both Notices of 7 and 11 February 2025 are hereby set aside.

3. The respondent is ordered to pay the costs of one counsel being senior counsel.

_____

JUDGE M VICTOR

PRESIDENT OF THE SPECIAL

TRIBUNAL

APPEARANCES

Attorney for the applicants: Mr Pearton, Gildenhuys Malatji Attorneys

Counsel for the applicant: Adv JD Joubert SC and Adv V Fouche

The respondent: Mr K G Lekabe appeared in person

Date of hearing: 26 February 2025

Date of Judgement: 4 March 2025

Mode of delivery: this judgment is handed down by sending it by email to the parties’ legal representatives, loading on CaseLines and release to SAFLII and AFRICANLII. The time for delivery is deemed to be 14H00.

[1] 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 10 days of becoming aware of the step, by written notice afforded his opponent an 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). 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. 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,

[1] 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 10 days of becoming aware of the step, by written notice afforded his opponent an 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). 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. 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,

[2] Rvrn Crushing (Pty) Ltd v Gdf Incorporated Consultants (Pty) Ltd 2024 (1) SA 269 (GJ)