Ramabele v Maseela and Others (CIV/APN/223/03 CIV/APN/127/98)

Case No: 
Media Neutral Citation: 
[2004] LSHC 29
Judgment Date: 
17 February, 2004


CIV/APN/223/03 CIV/APN/127/98


In the matter between:








Delivered by the Hon Mr Justice T, Nomngcongo on the 17th day of February 2004

Applicant has applied in terms of Rule 30 of the High Court Rules to set aside the 1st respondents answering affidavit as an improper or irregular proceeding or step in that it was filed out of time.

The first respondent opposes the application on the ground that, that application too is fatally flawed in that it is not supported by an affidavit contrary to the mandatory provisions of Rule 8(1) of the Rules of Court. It is also attacked on the ground that it does not comply with Rule 8(8) in that the applicant has not provided an address of service nor has he provided the time within which the respondent should file his intention to oppose and /or file an answering affidavit if any. The latter point was not pursued in argument. I do not propose to deal with it either as it seems to me an extremely technical one.

In response to the first attack applicant says that in interlocutory applications such as the present one there is no need to file any affidavits. He relies for this proposition on Rule 8 (21) that provides:

"Notwithstanding anything to the contrary contained in this Rule, interlocutory and other applications incidental to pending proceedings may be brought on notice accompanied by such affidavits as may be required and set down at a time assigned by the Registrar or as directed by a judge."

Thus, it is clear that while in every application one must, in terms of Rule 8(1) file an affidavit together with the notice of motion this is not necessarily so in the case of an interlocutory application. The applicant need only file such affidavit as may be required. In interpreting a similar provision the South African Courts have held that it is appropriate not to file any affidavits in an


interlocutory application if the matter may be decided on the papers alone without recourse to them. This saves on costs. (See Selepe v Santam Insurance Co. Ltd. 1977 (2) SA 1025(D) at 1028 E-H. and Chelsea Estates & Contractors CC v Speed - O -Rama 1993 (1) SA at 202 A-G) I entirely and with respect agree.

The question remains however when may an affidavit be required. This is an application to set aside a proceeding as irregular or improper. The ground for setting it aside is that it is out of time. This fact can be established by gleaning the papers and it cannot be seriously contested. There would be no need in my view to file an affidavit on matters that the record speaks to in interlocutory applications.

I have no doubt in this case that an irregularity has been established in that the answering affidavit was filed out of time contrary to Rule 8 (b). But then that is not the end of the matter. Rule 30(3) goes on to provide that:

"If at the hearing of such application the court is of opinion that the proceeding or step is irregular or improper, it may set 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 such order as it deems fit, including any


order as to costs".

This rule gives the court a discretion whether to set aside an irregular or improper, proceeding or not even if such has been established, as in casu. In exercising that jurisdiction many factors come into play but their purport is whether any substantial prejudice would be occasioned to a party if the impugned proceeding is allowed. If not the application may be dismissed and in a proper case even with costs for as it was held by Schriener J.A. in Trans-African Insurance Co. Ltd v Maluleka 1956 (2) SA 273 (A) at 278 F - G:

".......technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and if, possible, inexpensive decision of cases on their real merits." See also Herbstein and Van Winsen. The Civil Practice of The Supreme Court of South Africa 4th Ed. p.561 and the authorities referred to therein.

The first respondent in this case filed his notice of intention to oppose on the 10th June 2003. The applicant became aware of the notice on the 9th as it is practice among practitioners to sometimes deliver process to their opponents before filing it in court. He had fourteen days within which to file his answering affidavit, that is up to 24th June. He did not do so until the 3rd July. The applicant appears to have signed and acknowledged receipt thereof on the


same day at 12.45 p.m. Having received the answering affidavit applicant then apparently served upon the respondents a notice in terms of Rule 30 on the 14th July. However, the notice was not filed of record until the 8th August.

It seems to me that applicant is extremely tardy in his approach to things when it suits him. This is hardly consistent with a man who has approached court on an urgent basis. On this basis I think he can hardly be heard to complain about time limits when proceedings cannot be faulted in all other respects. There are serious issues in the main application that have been raised by the answering affidavit. I would not shut them out where I have not been shown that applicant would be prejudiced by allowing them to be heard late rather than on time.

Finally it dawned on me as I was concluding this judgment that in fact I need never have gone this far with this judgment. My attention was drawn to a note on the file by my brother Monapathi J. He had on the 9th June ordered that the matter be post-poned to the 11th August and extended the rule nisi in the matter to that date to enable the respondents to file their answering affidavits. No time limit within that period had been set for the respondents to do so. The 3 rd


of July was well within that time. In view of this the application was totally misconceived in the first place and I should never have hesitated to dismiss it.

I dismiss it with costs.



For Applicant : Mr Mahlakeng

For 1st Respondent: Mr Nteso