Mothae v Stabilpave (Pty) Ltd and Others (CIV/APN/101/2003)

Case No: 
Media Neutral Citation: 
[2003] LSHC 108
Judgment Date: 
1 October, 2003




In the matter between:








Delivered by the Honourable Mr Justice T. Nomngcongo on the 1st October. 2003

On the 6th of May 2003, the applicant, Thabang Mothae sought relief from

this court in the following terms:

  1. The Rules of Court concerning forms, notice and service be dispensed with on account of urgency in this matter.


  1. A rule nisi issue returnable on a date and time to be determined by the above Honourable Court calling upon the respondents to show cause why the following order shall not be made final to wit:

    1. Execution of judgment granted by default in the main application on the 24th March 2003 be stayed pending finalization of this matter;

    1. Judgment in the aforesaid main application be rescinded and applicant be granted leave to oppose the said main application.

    1. Respondents be ordered to pay costs hereof in the event of opposing this application.

    1. Applicant be granted further and/or alternative relief.

  1. Prayers 1 and 2(a) hereof operate with immediate effect as interim orders. Relief was granted and a rule nisi issued on the 7th and in terms of the motion returnable on the 26th May 2003.

On the 22nd May the first respondent caused a notice of intention to oppose to be entered. Having done so his clear duty was to either deliver his answering affidavit or to raise a question of law in terms of the mandatory provisions of Rule 8, 10,(b) and (c) which provides as follows:

(10) Any person opposing the grant of any order sought in the applicant's notice of motion shall:

  1. ................

  1. Within fourteen days of notifying the applicant of his intention to oppose the application deliver his answering affidavit (if any), together


with any other documents he wishes to include; and

  1. If he intends to raise any question of law without any answering affidavit, he shall deliver his notice of his intention to do so within the time aforesaid, setting forth such question.

The time aforesaid clearly refers to the fourteen days in (b) above, so that the question of law like the answering affidavit have to be filed within fourteen days.

Instead of proceeding as provided for in this rule, the 1st respondent embarked on the 24th June 2003 on a new course by moving what I can only regard as a counter-application. It is on notice of motion for an order in the following terms:

  1. Authorizing and directing the deputy sheriff of the above Honourable Court to immediately upon receipt hereof, apprehend and keep him custody (sic), the applicant herein for contempt of the order of his Lordship the Honourable Chief Justice Lehohla of the 24th March 2003 until such time that the Deputy Sheriff has performed his duties, alternatively, for such time, that the Honourable Court may deem fit;


  1. Directing and ordering applicant to immediately upon receipt hereof deliver a certain Mercedez Benz Truck, registration number BCT 594 FS vehicle identification number 34310120551577, engine number 35541301613807 to the sheriff (Registrar) of the above Honourable Court;

  1. In the event that the Honourable Court grants rescission herein, an order be made that the vehicle in question be placed in safe custody of the sheriff of this Honourable Court pending the outcome of the action instituted by the 1st respondent in the above Honourable Court against the applicant under case no. CIV/T/274/2003;

  1. Authorizing the 3 rd respondent though his subordinates to give the necessary assistance to the Deputy Sheriff of the above


Honourable Court in execution of this order as he may require.

  1. Ordering and directing applicant to pay costs hereof on an attorney and client scale;

  1. Granting 1st respondent leave to incorporate the contents of its affidavit herein also as an opposing affidavit to the applicant's application for rescission.

  1. Granting 1st respondent such further and/or alternative relief as the above Honourable Court may deem fit.

In amplification of prayer 6 above of his founding affidavit Jacobus Marthines Geyser says at par. 4 thereof:

"In order not to be repetitive and make a bulky set of papers, I beg leave from the Honourable Court to make this affidavit both as a founding affidavit to this application and as an opposing affidavit to the applicant's founding affidavit in his application for rescission of judgment in the main application."


On the 21st July the applicant then applied to court to have the procedure adopted by the 1st respondent, set aside as an irregular or improper step in terms of Rule 30(1) of the Rules of Court which provides:

"(1) Where a party to any cause takes an irregular or improper proceeding or improper step, any other party to such proceedings may within fourteen days of the taking of such step or proceeding apply to court to have it set aside".

Before proceed ing to deal with the procedure that is sought to be impugned I may as well point out that the applicant is time barred and has not applied for condonation.

Leave to depart from the rules of court is an indulgence that cannot be taken for granted. The question that immediately arises is: What happens if leave is not granted as prayed for? That would obviously mean that we are left with an unanswered application for rescission and with the likelihood that it would be granted. We would then be left with a superfluous contempt application with all its ancillary prayers. It is futile to speculate on the further cumbersome ramifications of the unusual


procedure adopted by the 1st respondent herein. However there is one other aspect of it that cannot be ignored and it is in my view quite nefarious.

When the 1st respondent launched this "counter-application" on the 24th June 2003 he was clearly out of time for filing his answering affidavit to the rescission application, he having entered notice of intention to oppose on the 22nd May. In the circumstances it was open for the 1st respondent to apply for condonation, if so advised, for non-compliance. He did not do so. What he did instead was in my view a surreptitious attempt to insinuate this answering affidavit out of time by coupling it with some other unconventional procedure. This is reprehensible and this court will not countenance or condone such conduct. It will be clear in the circumstances that I reject the ostensible motive articulated by the 1st respondent for doubling up a founding affidavit as an answering affidavit. I hold that the motive was as improper as the proceeding itself for being in violation of


Rule 8(10) (b) and (c) in its entirely and every other respect as earlier alluded to.

It has been argued by Mr Mpobole for the 1st respondent, and I have already said so myself that the applicant himself is out of time for impugning the improper proceeding that has been adopted. But the court has a discretion which it of course exercises judicially. Such discretion is provided for in Rule 59 of the Rules of Court as follows:

"Notwithstanding anything contained in these Rules of Court shall always have discretion, it considers it to be in the interests of justice, to condone any proceedings in which the provisions of these rules are not followed."

If I refuse to set aside the obviously irregular and improper proceeding adopted by the 1st respondent, I would in a way be condoning that which I have already censured. That cannot be. The 1st respondent cannot be allowed to extricate himself from the morass that he has landed himself in merely because the application was not timeous. I thus exercise the discretion that I have in favour of the applicant.


In the result the application succeeds and the whole proceeding adopted by the 1st respondent is hereby set aside with costs.



Mr Ts'enoli : Applicant

Mr Mpobole : 1st Respondent