University of North-West Staff Association and Others v Campus Rector of the University North-West and Others (471/2007) [2007] ZANWHC 51 (27 September 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. 471/2007

In the matter between:

UNIVERSITY OF NORTH WEST STAFF ASSOCIATION 1ST APPLICANT

TABANE SAMUEL MATSHEGO 2ND APPLICANT

QHOBELA KITCHNER SEMULI 3RD APPLICANT

THABO SAMUEL MOLELEKENG 4TH APPLICANT

and

THE CAMPUS RECTOR FOR THE NORTH WEST

UNIVERSITY 1ST RESPONDENT

M.P. KHUMALO N.O. 2ND RESPONDENT

THE VICE-CHANCELLOR OF THE NORTH WEST

UNIVERSITY 3RD RESPONDENT

THE NORTH WEST UNIVERSITY MAFIKENG CAMPUS 4TH RESPONDENT

PATRICK DEALE N.O. 5TH RESPONDENT

____________________________________________________________________________

JUDGMENT

MOGOENG JP.

INTRODUCTION

[1] This is an application in terms of Rule 30 of the Uniform Rules of the Superior Courts. The background follows below.

BACKGROUND

[2] The Applicants launched a review application in terms of Rule 53 of the Uniform Rules. The Respondents immediately filed a Notice of Intention to Defend. In line with its obligations in terms of Rule 53. The Respondents subsequently filed a record of the proceedings with the office of the Registrar on 27 March 2007.

[3] Having received the record, the Applicants filed a Notice of Intention to Amend and the Notice of Motion. The amendment took effect on 26 April 2007.

[4] The Respondents then filed a Notice of Intention to Oppose on 21 May 2007 and only filed the Answering Affidavit on 25 June 2007.

[5] The Applicants contend that the Respondents should have filed their Answering Affidavit on 01 June 2007, since they only had 30 days within which to file their affidavit, calculated from 18 April 2007 in terms of Rule 53(5)(b) read with Rule 53(4). The Respondents on the other hand contend that they had 15 days in terms of Rule 53(5)(a), calculated from the date on which the amendment of the Notice of Motion was effected, within which to file a notice of intention to defend. Thereafter, so runs their contention, they had 30 days calculated from the date of expiry of the aforementioned 15 days period, within which to file their answering papers.

THE ISSUE

[6] The issue is, therefore, whether the 30 days within which an answering affidavit has to be filed in terms of Rule 53(5)(b), is to be calculated from the date on which the notice of motion was amended or the date on which the notice of intention to defend, if any, was filed.

THE LAW

[7] Rule 53(4) and (5) provides that:

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

(5) Should the presiding officer, chairman 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 shall─

(a) within 15 days after receipt by him of the notice of motion or any amendment thereof deliver notice to the applicant that he intends so to oppose and shall in such notice appoint an address within eight kilometres of the office of the Registrar at which he 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 may desire in answer to the allegations made by the applicant.”

[8] Kriegler AJA, as he then was, made the following observations about the time periods in Rule 53 as compared to Rule 6 in Jockey Club of South Africa v Forbes [1992] ZASCA 237; 1993 (1) SA 649 (A) at 660I – 661D:

“It is true, as counsel for the Jockey Club pointed out, that the time periods afforded a prospective opponent under subrule (5) are longer than those generally allowed a respondent under Rule 6, viz 15 days for his notice of intention to defend as against five days under Rule 9(5)(b) and 30 days for delivery of answering affidavits as against 10 days under Rule 6(5)(e). In substance however the draftsman of Rule 53 has done no more than to adapt the ordinary procedure under Rule 6 to the special exigencies of a particular kind of application on notice of motion. An applicant is still obliged to proceed by notice of motion; the parties to be joined, cited and served in effect remain unchanged, save that the person officially in possession of the record is to be invited to (i) show cause why the relief sought should not be granted; and (ii) transmit the record to the Registrar. Having regard to the special purpose for which the Rule was intended, those two deviations from the ordinary motion procedure are not only logical but minimal.

The relief sought is to be specified in the notice of motion and the supporting facts are to be embodied in the founding affidavit. Those requirements are in pari materia with those of Rule 6(1). The time period afforded a respondent under rule 53(5)(a) for entry of appearance corresponds with the time allowed under Rule 6(13) to any officer of the State (the most likely if not the invariable target of an application under Rule 53), namely 15 days. And it is not without significance that the time period under both subrules previously was 14 days and that they were amended identically. The circumstance that subrule 53(5)(b) allows a respondent a longer period to deliver his answering affidavit than is allowed under Rule 6(5)(e) is of minimal significance and is in any event consistent with the latitude afforded public officials by Rule 6(13). They, as has been mentioned above, are the usual (if not the invariable respondents in review applications.”

(My emphasis)

The learned Judge appears to have assumed, without deciding the issue, that the same principle that governs the filing of the answering papers in a Rule 6 application also applies to Rule 53. Obviously because Rule 53(5)(b) read with Rule 53(4) did not fall for consideration.

[9] The question still remains, however, whether the 30 days period mentioned in Rule 53(5)(b) is to be calculated from the date of the expiry of the time referred to in subrule (4) or after the expiry of the 15 days referred to in subrule (5)(a).

[10] Subrule (5)(b) comes immediately after subrule (5)(a), which provides that the Respondent has 15 days after receipt of the notice of motion or any amendment thereof to deliver a notice of intention to oppose to the Applicant. And yet subrule (5)(b) does not make any reference whatsoever to subrule (5)(a) or any of its contents. On the contrary, the Rule-makers chose to specifically make a cross-reference to subrule (4). Rule 53(5)(b) basically means that the Respondent’s affidavits may be filed within 30 days after the expiry of the 10 days which the Applicant has within which to amend the notice of motion and supplement his or her or its papers, after receipt of the record. Accordingly, the ordinary meaning of Rule 53(4) read with (5) with specific reference to the filing of the answering papers by the Respondent, is that the Respondent has 30 days within which to file answering papers. The 30 days are to be calculated, not from the expiry of the 15 days referred to in subrule (5)(a), but from the date on which the 10 days stipulated in subrule (4) expires.

[11] This sounds odd. Ordinarily the calculation of the period within which the answering affidavit or a plea in an action should be filed, would commence after the date of the delivery of the notice of intention to oppose (see Rule 6(5)(b), 6(5)(d)(ii), Rule 19(1) and Rule 22(1)). That practice seems to dictate that similarly there should be some kind of a connection or relay between the filing of the notice of intention to defend and the filing of the answering affidavit even in a Rule 53 application, with the result that the period stipulated in Rule 53(5)(b) would have to be calculated with reference to the period stated in subrule (5)(a) rather than the period in subrule (4). As I observed above, Kriegler AJA, as he then was, in the Jockey Club case, seems to have readily assumed that the correlation between Rule 6(5)(b) and Rule 6(5)(e) is also maintained between Rule 53(5)(a) and Rule 53(5)(b), but that is surprisingly, but clearly, not the case. The Rules Board should perhaps re-examine subrule (5) and consider whether or not changes are perhaps necessary there. I will now apply these principles to the facts of this case.

APPLICATION OF THE LAW TO THE FACTS

[12] The record of the proceedings was made available to the Applicants on 27 March 2007. The ten days, contemplated in Rule 53(4), when calculated from 28 March 2007, expired on 12 April 2007. Thirty (30) days, for the filing of answering papers, calculated from 13 April 2007 would have expired on 28 May 2007. These are, however, not the dates that we can rely on in this matter, since the amended Notice of Motion was not filed within the 10 days allowed under Rule 53(4).

[13] The amended notice of motion was filed on 26 April 2007. The Respondents then filed a Notice of Intention to Oppose on 21 May 2007. That was exactly 15 days after the amendment to the Applicants’ papers were effected consequent upon the delivery of the record to them. It therefore accords with the period stipulated in Rule 53(5)(a).

[14] The Respondents then filed their Answering Affidavits on 25 June 2007. This was 25 days from the date on which the Respondents had filed their Notice of Intention to Oppose. Needless to say, calculated after the expiry of 15 days from the delivery of the amendment of the Notice of Motion, it is less than 30 days. For this reason the Respondents contend that they acted within the timeframe in the rule and therefore did not commit any irregular step by filing their answering papers when they did.

[15] However, when regard is had to the clear meaning of Rule 53(5)(b) above, then it means that the 30 days period, within which answering papers are to be filed, should ordinarily have been calculated from 13 April 2007. Since the Respondents were responding to the amendments effected by the Applicants, and those amendments were made on 26 April 2007, then the calculation of the 30 days period must be done only after 26 April 2007. According to my calculations, the 30 days period ran from 30 April 2007 to 11 June 2007. In the result, the Respondents were about 10 days out of time when they filed their opposing papers on 25 June 2007.

[16] Their filing of their answering papers out of time and without even seeking condonation for the late-filing of their papers was indeed an irregular step in terms of Rule 30. The application must, therefore, succeed.

ORDER

[17] Accordingly, the following order is made:

(a) The application succeeds with costs;

(b) The filing of the Answering Affidavits by the Respondents on 25 June 2007 was irregular and is hereby set aside; and

(c) The Respondents are granted leave to apply within 30 days of this order for condonation for the late-filing of their opposing papers.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 AUGUST 2007

DATE OF JUDGMENT : 27 SEPTEMBER 2007

COUNSEL FOR APPLICANT : MR S.E. MONARE

COUNSEL FOR RESPONDENTS : ADV J.J. PRETORIUS

ATTORNEYS FOR APPLICANT : S E MONARE ATTORNEYS

ATTORNEYS FOR RESPONDENTS : SMIT STANTON INC.