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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION: MTHATHA)

CASE NO. 2545/2017

In the matter between:

MPISI MATSHAYANA APPLICANT

And

MEMBER OF THE EXECUTIVE COUNCIL,

DEPARTMENT OF EDUCATION,

EASTERN CAPE PROVINCE 1ST

RESPONDENT

THE SUPERINTENDENT-GENERAL, DEPARTMENT

OF EDUCATION, EASTERN CAPE PROVINCE 2ND

RESPONDENT

THE DISTRICT DIRECTOR, BUTTERWORTH 3RD

RESPONDENT

THE DISTRICT: LEGAL SERVICES

MR EDWARD SCHEUN, DEPARTMENT OF EDUCATION,

EASTERN CAPE PROVINCE 4TH

RESPONDENT

MKHUSELI NONDLAZI 5TH

RESPONDENT

JUDGMENT

DAWOOD J:

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1. The parties elected to deal with this matter as a whole inclusive of the

interlocutory and main applications.

2. The parties’ stance in this regard has necessitated a practical approach to the

adjudication of the disputes between the parties in order to deal with the

merits of the main application in an expeditious pragmatic and just an

equitable manner.

3. The applicant herein had brought a rule 30 application and the 1st to 4

th

respondents had brought an application for condonation.

4. The 1st to 4

th respondents had brought an application for joinder of the 5

th

respondent in order to seek cost orders against him personally in respect of

the applicant’s rule 30 application and the application for condonation. They

elected to join him as a respondent, not as a third party. Such an order was

granted.

5. The firth respondent then, it is common cause, filed his answering affidavit

out of time.

6. The 1st to 4

th respondents (and not the applicant) served the 5

th respondent

with a rule 30 notice and upon no formal application for condonation

forthcoming brought an application in terms of rule 30 as against the 5th

respondent.

7. The applicant did not seek any costs orders as against the 5th

respondent.

8. The applicant and 1st to 4

th respondents had reached agreement with regard

to the rule 30 application and the application for condonation save that the

1st to 4

th respondents had sought a costs order against the 5

th respondent in

respect of those costs.

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9. The applicant consented to the late filing of the answering affidavits by the

first to fourth respondents being condoned and that the applicant be granted

leave to withdraw the rule 30 application as against the 1st to 4

th respondents.

10. The only outstanding issue in that regard was the issue of who was to pay

those costs. In order to make that determination the rule 30 application

brought by the 1st to 4

th respondents as against the 5

th respondent needs to be

considered at this stage.

11. I shall now deal with the rule 30 application brought by the 1st to 4

th

respondent wherein they sought to set aside the 5th

respondent’s affidavit

filed on the 17 May 2019 as an irregular proceeding.

a) The fact that this affidavit was filed out of time is common cause.

b) The 5th

respondent however alleges that it has applied for condonation in

the answering affidavit itself and referred this Court to paragraphs 42

and 43 of the 5th

respondent answering affidavit at pages 127 and 128

which reads as follows:

“this affidavit, is filed late by about 2 (two) days. Not 1 (one) party will be

prejudiced by this. The lateness has been occasioned by the fact that I am

deposing to this affidavit whilst in East London. Counsel drafted and sent these

papers by email to me. At the time of receipt of the papers on my email, I was

out of office on a work mission in Port Elizabeth and East London. I called

Counsel on Wednesday 15 May 2019 and enquired about the papers, I

unfortunately did not get him. I tried again on Thursday 16 May 2019 in the

afternoon. I got through to him and he informed me that he had emailed the

papers to me during the course of the weekend on Sunday, 12 May 2019.

Unfortunately, I had not had access to my email since Friday 10 May 2019

when I left my office and thereafter travelled to Port Elizabeth on Monday

morning, 13 May 2017.

On learning that the papers were lodged in my electronic mail address, I

arranged for my secretary to print, scan and email same to me so I could print,

depose and serve the respondents’ attorney in East London whilst enroute to

Mthatha. I accordingly, apply for this Court to extend my period for the

service of this affidavit upon the respondents’ attorneys to Friday, 17 May

2019 and filing at Court to Monday, 20 May 2019.”

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c) It is evident from the reading of this affidavit that what the 5th

respondent sought was an extension of the dies not technically the

condonation for the late filing of the affidavit. He nonetheless sought an

indulgence from the court recognizing that he had not compiled with the

rules of court.

d) There was no formal application for condonation technically, though a

case was made out to condone the late filing, if regard is had to the

contents of the relevant paragraphs and he uses the word apply.

e) Counsel for the 5th

respondent was accordingly correct in his head when

he conceded that there was no application for condonation but that he

sought condonation from the bar even though in argument he went on to

say that those paragraphs were an application for condonation,

presumably relying on the words “apply for the court to extend the

period”.

f) The first to fourth respondents accordingly had correctly stated that there

was an irregularity.

g) I am not certain that the court can extend the dies in any event as the

time periods are stipulated in the rules. The court can only condone non-

compliance with the rules where a case has been made out.

h) The fifth respondent failed to remove the cause of complaint or bring the

necessary application for condonation.

i) The rule 30 application was accordingly correctly launched.

j) The 5th respondent, albeit only in argument from the bar asked the court

to take cognizance of the averments made in paragraphs 42 and 43 as

referred to above and grant condonation.

k) Whilst accepting that Quinn SC argument that it was bizarre to ask the

court to have regard to the impugned affidavit in support of such an

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application he also recognized the court could exercise its discretion in

this regard.

l) The 1st to 4

th respondents relied upon Hano Trading CC v JR 209

Investments (Pty) Ltd and Another1 for the proposition that the late filing

could not be condoned in the absence of an application for condonation

and is regarded as pro non scripto. It was inter alia held in that case as

follows:

“Rule 6(5)(e) establishes clearly that the filing of further affidavits is only

permitted with the indulgence of the court. A court, as arbiter, has the sole

discretion whether to allow the affidavits or not. A court will only exercise its

discretion in this regard where there is good reason for doing so.

This court stated in James Brown & Hamer (Pty) Ltd (previously named Gilbert

Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D-H, that: ‘It is in the interests of the administration of justice that the well-known and well

established general rules regarding the number of sets and the proper sequence of

affidavits in motion proceedings should ordinarily be observed. That is not to say

that those general rules must always be rigidly applied: some flexibility,

controlled by the presiding Judge exercising his discretion in relation to the facts

of the case before him, must necessarily also be permitted. Where, as in the

present case, an affidavit is tendered in motion proceedings both late and out

of its ordinary sequence, the party tendering it is seeking not a right, but an

indulgence from the Court: he must both advance his explanation of why the

affidavit is out of time and satisfy the Court that, although the affidavit is

late, it should, having regard to all the circumstances of the case,

nevertheless be received. Attempted definition of the ambit of a discretion is

neither easy nor desirable. In any event, I do not find it necessary to enter upon

any recital or evaluation of the various considerations which have guided

Provincial Courts in exercising a discretion to admit or reject a late tendered

affidavit (see e.g. authorities collated in Zarug v Parvathie, 1962 (3) SA 872

(N)). It is sufficient for the purposes of this appeal to say that, on any approach to

the problem, the adequacy or otherwise of the explanation for the late

tendering of the affidavit will always be an important factor in the enquiry.’

It was then later stated by Dlodlo J in Standard Bank of SA Ltd v Sewpersadh &

another 2005 (4) SA 148 (C) in paras 12-13: ‘The applicant is simply not allowed in law to take it upon himself and (to) file an

additional affidavit and put same on record without even serving the other party

with the said affidavit. . .

Clearly a litigant who wished to file a further affidavit must make formal

application for leave to do so. It cannot simply slip the affidavit into the Court file

1 2013 (1) SA 161 (SCA) at paras 11-14.

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(as it appears to have been the case in the instant matter). I am of the firm view that

this affidavit falls to be regarded as pro non scripto.’

To permit the filing of further affidavits severely prejudices the party who

has to meet a case based on those submissions. Furthermore, no reason was

placed before the court a quo for requesting it to exercise a discretion in

favour of allowing the further affidavits. Consequently the court a quo was

correct in ruling that the affidavits were inadmissible.” (My added

emphasis.)

m) This decision however dealt with the position where further affidavits

were sought to be introduced not with the filing of answering affidavit

that was filed out of time although it was also filed out of time and

accordingly does not change the position regarding the issue of prejudice

and the fact that the court in any event dealt with the requirement of

prejudice therein indicating that it is a relevant consideration.

n) The relevant portions of ‘Rule 30 - Irregular Proceedings

(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 ten days of becoming aware of the step, by written

notice afforded his opponent an opportunity of removing the cause of complaint

within ten days;

(c) the application is delivered within 15 days after the expiry of the second

period mentioned in paragraph (b) of sub rule (2).

(3) 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.”

(a) Prejudice

In De Klerk2 the court had this to say:

2 De Klerk v De Klerk 1986 (4) SA 424 (W) at p 426.

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“The prejudice which is relevant for the purposes of Rule 30 (1) requires more than that. It

is true that on receipt of the notice of bar the attorney had to read it, to consider it, and to

decide what to do next. But at the point where that decision was taken, he had to take the

correct decision. At the point of making that decision (by which time most of the effort

and costs already alluded to had come into being), he had to be led by the prejudice which

his client would suffer if he did not bring a Rule 30 application. He had to decide whether

his client would be prejudiced in the further conduct of the case if an irregular step, which

I will take the present notice to be, is not set aside. When the matter comes before Court,

that is the nature of prejudice, which the Court in turn, should assess. If that is not the true

test, the Court will have to continue hearing inappropriate applications, which are too

frequently presented in this Court. An example is a recent application to set aside as an

irregular step a request to attend a Rule 37 pre-trial conference. The grounds of the

application were that the request had been delivered before the close of pleadings. The

aforesaid limited extent of essentially financial prejudice would also have been present.

But nothing really detrimental would come out of simply not responding to the said

request. Because of the absence of prejudice, that application was refused. I have no

grounds to believe that other Judges would have had a different approach to that matter.

It must again be emphasised that Rule 30 (1) applications should succeed only if there is

prejudice related to proceeding with the litigation. See SA Metropolitan

Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O).”

In Afrisun Mpumalanga (Pty) Ltd v Kunene NO and Others3 it was held that:

“During argument Mr Ginsburg did not press for an order in the Rule 30 application and

took up the attitude that he would concentrate on the real issue: the composition of the

record which is the real object of the counter-application. Nevertheless, I did not

understand Mr Ginsburg to abandon the relief sought in the Rule 30 application.

Mr Van der Linde ultimately also did not press for relief in terms of prayer 1 of the

applicant’s counter-application. He also concentrated on the composition of the record,

which is the subject of prayer 2 of the counter-application (as amended during argument).

With regard to the Rule 30 application Mr Van der Linde pointed out that such an

application will be granted only where the irregular step would cause prejudice to the

applicant seeking to set it aside. In support of this argument he referred to Trans-African

Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 276F-H; SA Metropolitan

Lewensversekeringsmaatskappy Bpk v Louw NO 1981 (4) SA 329 (O) at 333D-F and

333H-334E; De Klerk v De Klerk 1986 (4) SA 424 (W) at 426F-427B; Consani

Engineering (Pty) Ltd v Anton Steinecker Maschinenfabriek GmbH 1991 (1) SA 823 (T) at

824G-H and Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty)

Ltd t/a L H Marthinusen 1992 (4) SA 466 (W) at 469G. The prejudice that is referred to is

prejudice which will be experienced in the further conduct of the case if the irregular step

3 1999 (2) SA 599 (T) at p 611.

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is not set aside. There is no prejudice if the further conduct of the case is not affected by

the irregular step and the irregular step can simply be ignored.”

In SA Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO4 the court

held the following:

“Where such prejudice is absent, a decision to set the irregular proceeding aside will not

be given. On the contrary, the irregularity may be overlooked. Cf Herbstein and Van

Winsen The Civil Practice of the Superior Courts in SA 3rd ed at 386 and in particular

the decisions in Distins Seed Cleaning and Packing Co (Pty) Ltd v Stuart Wholesalers

1954 (1) SA 383 (N); Marais v Century Insurance Co Ltd 1960 (3) SA 33 (W). In Theron

v Haylett 1917 WLD 140 the Court, whilst emphasising the need for precision in regard

to a summons, said:

“the principle is that unless the person on whom a summons is served can show he has been

prejudiced by formal defects the summons should stand”.

Such an approach would be in accordance with the view that

“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.””

In Minister of Prisons and Another v Jongilanga5 the court had the following to

say:

“The Court is given a general discretion to condone any non-compliance with the Rules of

Court by Rule 27 (3). In addition to such general discretion the Court also has the power

to condone an irregular proceeding in terms of Rule 30(1) read with Rule 30 (3).

…

It would then appear that the Rules which had to be applied by BOTHA J in Pincoos’ case

gave the learned Judge no discretion to condone the irregularity, whereas Rule 30 with

which we are presently concerned does give such discretion to the Court.

Having come to the conclusion that the summons in the present matter is not a nullity, it

remains for me to consider whether, in the exercise of my discretion, I should condone the

defects.

4 1981 (4) SA 329 (O) at p 334.

5 1983 (3) SA 47 (E) at pp 52 and 56-7.

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Counsel for the respondent submitted that I should condone the irregularity, while counsel

for the applicant argued that even should I hold that the summons is not a nullity, I should

refuse to condone and should set the summons aside. There is no substantive application

by the respondent for condonation before me but in the final paragraph of the affidavit of

Mr Ntonga filed on behalf of the respondent it is prayed that the irregularity be condoned.

The question of possible condonation was fully argued before me and accordingly I do not

consider a formal application to be essential in the present matter. See O’Donoghue’s case

supra at 39F.

It does not seem to me that the applicants have been prejudiced by the fact that the

address for service furnished in the summons is irregular. The defect may have

caused the applicants inconvenience, but this does not mean they have been

prejudiced. It was argued by counsel for the applicants that the applicants were

prejudiced by the irregularity in that no valid address was furnished where the respondent

would accept service of documents and that accordingly it was not possible to serve

process on the respondent. However, as I see the position, the applicants were not without

a remedy, they were entitled to approach this Court for relief under Rule 30, as they have

in fact done. Should I condone the irregularity and order that the summons be amended to

furnish a proper address for service, the defect will be remedied and the applicants will be

in no worse position than they would have been in had a proper address for service been

furnished in the first instance.

Were it not for the fact that if the summons is set aside it will be possible for the

applicants to raise the defence of prescription should the respondent issue a fresh

summons in this matter, I do not think that any Court would have hesitated to

condone the irregularity in the summons. It would have been pointless to set the

summons aside. As was said in Trans-African Insurance Co Ltd v Maluleka 1956 (2)

SA 273 (A) at 278F:

“No doubt parties and their legal advisers should not be encouraged to become slack in

the observance of the Rules, which are an important element in the machinery for the

administration of justice. But on the other hand 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.”” (My

added emphasis.)

o) There clearly has been an irregularity and parties should not be

permitted to float the rules of court and the time periods prescribed

therein or there will be total chaos and the administration of justice

would be prejudiced and thrown into disarray.

p) The first to fourth respondents have not set out any factors

demonstrating any prejudice and none is found in this case especially

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since the fifth respondent was mindful of the delay and sought an

indulgence in his papers.

q) The fact of the matter is that the 5th

respondent did not comply with the

rules of court and did not file his affidavit timeously.

r) The 5th

respondent was obliged to do so and his failure to do so is per se

prejudicial to the administration of justice. The rules of court cannot

lightly be disregarded.

s) However, I accept that the 5th

respondent delay was not deliberately or

intended to disregard the rules but as stated in his affidavit due to

circumstances beyond his control.

t) It is in accepting his explanation that this Court finds that indeed there

was an irregularity but it is not one that warrants his affidavits being

regarded as pro non scripto.

u) The first to fourth respondents in any event would not as of right have

been entitled to reply thereto and the applicant clearly had no interest in

the dispute between the first and fourth respondent and made it clear that

they were not seeking any costs order against the fifth respondent.

v) There accordingly would be no prejudice to the first to fourth

respondents if the affidavit was admitted despite the irregularity.

w) On the other hand, the fifth respondent would be severely prejudiced if

the affidavit was not admitted as an adverse costs order may be made

against him based on the uncontroverted averments by the first to fourth

respondents.

x) In the exercise of my discretion and having regard to the fact that no

prejudice was demonstrated to the first to fourth respondents I am

despite the irregularity disposed to allow the affidavit and condone the

late filing thereof in the exercise of my discretion having regard to the

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fact that the parties want the entire matter disposed off and it would not

in the circumstances be in the interest of justice to direct the 5th

respondent to file an application for condonation.

y) The 1st to 4

th respondent could have accepted the explanation furnished

for the late filing as contained in the 5th respondent affidavit and the fifth

respondent could have simply brought an application for condonation

when he was served with the rule 30 notice. It is unfortunate that this

Court had to be burdened with this application in circumstances where

sense could have prevailed.

z) In the circumstances of this case I am not disposed to making any costs

order in favour of either party since each had been partially successfully

and both could have obviated the need for such an application.

aa) In the circumstances I make the following order in respect of the rule 30

application launched by the 1st to 4

th respondents as against the 5

th

respondent.

(i) The late filing of the affidavit by the fifth respondent constitutes an

irregular step.

(ii) The 1st to 4

th respondents have failed to demonstrate that such late

filing was prejudicial to them.

(iii) The late filing of the fifth respondent affidavit is condoned.

(iv) Each party to pay his or its own costs in respect of this

interlocutory application.

12. I now turn to the issue of costs in respect of the rule 30 application launched

by the applicant against the 1st to 4

th respondents and the application for

condonation brought by the 1st to 4

th respondents for the late filing of their

answering affidavit prior to getting into the merits of the main application.

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The 1st to 4

th respondents have confirmed that they are not seeking a costs

order against the 5th respondent, in respect of the main application.

a) The main contention by the 1st to 4

th respondents is that they acted swiftly

throughout and had not been made aware of the court orders and the notice

in terms of rule 30 and even the rule 30 application or even the initial order

placing them on terms to file answering affidavits because the same was not

brought to their erstwhile attorney, the fifth respondent who was the person

to whom the file had been allocated.

b) They most certainly would have brought an application for condonation

timeously and obviated the need for the rule 30 application if they were

made aware of the notice by their then representative of the 5th respondent

who was in the employ of the state attorney’s office.

c) They accordingly aver that his breach was of such a nature that it warranted

a punitive cost order against him personally and that the 1st to 4

th

respondents should not be held liable for these costs. In the main application,

the heads of argument of the first to fourth respondents had the following to

say in this regard at paragraphs:

“3.3 The conduct of the litigation on behalf of the Department passed through the

hands of several attorneys employed by the State Attorney, Mthatha, including Mr

Nondlazi who appears to have been instructed to attend to the matter by the Head of

the Office of the State Attorney, Mthatha, Mr Tshitshi.

3.3.1 In Lushaba v MEC for Health, Gauteng the court held that:

“It is so that the legal representatives sometimes make errors of law, omit to comply

fully with the rules of court or err in other ways related to the conduct of the

proceedings. This is an everyday occurrence. This does not, however, per se

ordinarily result in the Court showing its displeasure by ordering the particular legal

practitioner to pay the costs from his own pocket. Such an order is reserved for

conduct which substantially and materially deviates from the standard expected

of the legal practitioners, such that their clients, the actual parties to the

litigation, cannot be expected to bear the costs, or because the Court feels

compelled to mark its profound context. Examples are, dishonesty, obstruction of the

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interests of justice, irresponsible and grossly negligent conduct, litigating in a

reckless manner, misleading the Court, gross incompetence and a lack of care.”

3.4 The Constitutional Court ordered the office of the State Attorney,

Pretoria to pay costs de bonis propriis on a scale as between attorney and client in

circumstances where the State Attorney failed to file affidavits in terms of an Order

of Court from which the Court inferred that the MEC was ‘not interested in assisting

the Court in resolving important constitutional litigation’, but where in truth a

recently qualified and inexperienced attorney in the employ of the State

Attorney had failed to read the directives issued by the Registrar of the

Constitutional Court had to do with the failure of the State Attorney to provide

an explanation for ‘a lamentable want of professional responsibility’. The

constitutional court held:

“[54]. An order of costs de bonis propriis is made against attorneys where a Court is

satisfied that there has been negligence in a serious degree which warrants an

order of costs being made as a mark of the Court’s displeasure. An attorney is an

officer of the court and owes a court an appropriate level of professionalism and

courtesy. Filing correspondence from the Constitutional Court without first reading

it, constitutes negligence of a severe degree. Nothing more need be added to the

sorry tale already related to establish that this is an appropriate case for an order of

costs de bonis propriis on the scale as between attorney and client. The order is

made against the office of State Attorney, not personally against the attorney

concerned. This Court’s displeasure is primarily directed against the Office of

State Attorney in Pretoria, where systems of training and supervision appear to be

woefully inadequate.”

3.4.2 In this regard it should be remembered that while the Department was obliged

to utilize the services of the State Attorney, Mthatha, the Department did so through

its own attorneys who are employees of the Directorate of Legal Services who

represented the Department’s attorney and was bound to perform ‘work as is by law,

practice and custom performed by attorneys’.

3.5 In appropriate circumstances, our Courts have not hesitated to order attorneys

to pay costs de bonis propriis. This is achieved through the exercise of a wide and

unfettered discretion in relation to costs and is frequently ordered without notice to

the attorneys after a consideration of his conduct as it merges from the papers and/or

the evidence. Even persons who are not parties can be ordered to pay costs.

3.6 Accordingly, Nondlazi, alternatively the State Attorney, Mthatha, failed to

inform the Department of the Order of this Honourable Court of 4 July 2017 and the

Applicant’s Rule 30 (2) notice nor did they react appropriately or at all. This resulted

in the Applicant’s Rule 30 application. The application should not have been

necessary. The cause of complaint would not have arisen in the first place, and in the

second place, would have been cured by a simple condonation application on very

different grounds to those concerning the negligence of Nondlazi and the Office of

the State Attorney, Mthatha. In consequence, the Department applies for costs

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against Nondlazi in his personal capacity, alternatively against the Office of the State

Attorney, Mthatha.” (My added emphasis.)

d) The 5th respondent resisted this explaining inter alia, that he was on sick

leave when the initial order was taken and was not informed of its contents

and he was also not aware of the rule 30 notice. Other members of the state

attorney’s office dealt with the matter from time to time until it was taken

away from him.

e) The fifth respondent also did not receive some of the correspondence from

the 4th respondent and there was a delay in getting instruction.

f) He cannot be held responsible for other members of his office failing to

report to him.

g) He admittedly did not personally follow up on what had occurred in the

matter in his absence despite the fact that the matter was allocated to him.

h) There was no negligence on his part personally and most certainly none that

warranted the court showing its displeasure by making a de bonis propriis

costs order against him.

i) The first to fourth respondents joined him personally and not the office of

the state attorney in their bid to seek a costs order against him.

j) They have failed to demonstrate that a costs de bonis propriis order is

warranted as against him personally.

k) I am in the circumstances of this case not satisfied that his individual contact

warrants a personal punitive cost order against him personally de bonis

propriis.

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l) That being the case and in light of the fact that there is a concession that the

applicant correctly brought the rule 30 application the 1st to 4th respondents

are to pay such costs.

m) The applicant did not oppose the condonation application launched by the 1st

to 4th respondents but would nonetheless have incurred costs in the perusal

of the application and making that decision not to oppose.

n) They accordingly would have incurred some costs and are entitled to the

costs attendant thereto.

o) The 1st to 4

th respondents are accordingly liable to pay to the applicant such

costs as were reasonably incurred in the application for condonation brought

by the 1st to 4

th respondents.

p) These costs would be the costs of a single counsel as the interlocutory

matters were not complex.

q) I shall make no order as to costs as between the 1st to 4

th respondents and the

fifth respondent in any of the interlocutory applications.

13. For the sake of completeness. I make the following order at this stage in

respect of the interlocutory applications.

a) ORDER in respect of the interlocutory applications as between the

applicant and the 1st to 4

th respondents.

i) The applicant is granted leave to withdraw its rule 30 application.

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ii) The first to fourth respondents to pay the cost in respect of the

application jointly and severally the one paying the other or others

to be absolved.

iii) The first to fourth respondents late filing of their answering

affidavit be and is hereby condoned.

iv) The first to fourth respondents are directed to pay such costs as

were reasonably incurred by the applicant in respect of the

condonation application.

v) There shall be no order as to costs in respect of either the rule 30

application or the condonation application as between the first to

fourth respondents and the fifth respondent.

14. I now turn to the main application. The applicant herein sought the

following relief:

“1. That the 1st to 3

rd Respondents’ failure or delay in effecting Applicant’s

appointment as principal of Dayimane Junior Secondary School (the School),

Dutywa District be and is hereby declared unlawful, invalid unreasonable and of no

force and effect.

2. That the 1st to 2

nd Respondent be and is hereby directed to effect the

Applicant’s employment contract as principal of the school retrospectively with

effect from date of appointment, being, 1st February 2017.

3. That the 1st to 3

rd Respondents be and are hereby directed to pay the

Applicant’s salary with effect from 1st February 2017 with all the emoluments

attached thereto and continued to do so until the Applicant reaches his retirement

age or resigns from the Department of Education.

4. That the letter written by the 4th

Respondent (Mr Edward Scheun), dated 24th

May 2017 be and is hereby set aside and be regarded as pro non scripto.

5. That the 1st to 3

rd Respondents be and are hereby directed to pay costs of this

application on an attorney and own client scale, such costs to include the

appointment of two counsel and the 4th

respondent pay costs on the same scale in

the event of him opposing the application.”

15. It is trite law that in order for a contract to come into existence there has to

be an offer and an acceptance. It is evident that the acceptance only occurred

in July 2017. No contract came into existence between the parties prior to

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that date. The applicant was not even aware of the offer until May and

accordingly could not have accepted the offer. The fact that the letter was

written in January is not sufficient to bring about the existence of a contract.

16. In Jafta v Ezemvelo KZN Wildlife6 it was inter alia held:

“The common law requirements for an acceptance of an offer

Unequivocal Acceptance

Under the common law, the first requirement for an acceptance of an offer is that it

must be clear, unequivocal and unambiguous.

…

The second requirement for acceptance of an offer under the common law is that it

must correspond with the offer. Schoeman v IT Management Advisory Services (Pty)

Ltd (2002) 23 ILJ 1074 (LC); [2002] 7 BLLR 672 (LC), a case which Mr Pammenter

for Wildlife referred to the court, is distinguishable from the facts of this case. On the

facts, Landman J found that there had not been a meeting of the minds on material

terms of the agreement. In contrast, in White v Pan Palladium SA (Pty) Ltd 2005 (6)

SA 384 (LC); (2006) 27 ILJ 2721 (LC), another case which Mr Pammenter referred

to the court, even though the parties had not finalized material terms of the contract,

such as the vehicle through which the applicant would be employed, the court found

that an employment contract did exist.

…

Mode of Acceptance

The third requirement under the common law for acceptance of an offer is that the

acceptance must be made in the mode prescribed by the offeror. In Schoeman above,

the parties had stipulated that the agreement had to be in writing and signed by both

parties. As these formalities were not fulfilled, Landman J found that no agreement of

employment had come into existence.

…

Communicate to Offeror

The fourth requirement under the common law is that the offeree has to

communicate acceptance of the offer to the offeror.

…

Acceptance Received?

6 [2008] 10 BLLR 954 (LC); (2009) 30 ILJ 131 (LC) at paras 32-3, 41, 46, 50 and 100.

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The onus of proof is on the party who alleges that a contract exists. Parties

conclude a contract when they consent to be bound to its terms. Consent arises

when one party accepts an offer from the other party. The offeree must

communicate acceptance of the offer in a manner stipulated by the offeror,

unless the offeror expressly dispenses with the communication of acceptance.” (My

added emphasis.)

17. The 1st to 4

th respondents have correctly argued inter alia that:

“…

If formalities are prescribed for the formation of the contract of employment, they

must be observed. It cannot be disputed that for the formation of a contract of

employment in this matter the offer of employment had to be extended to the

Applicant and the Applicant was required to sign a certificate of acceptance of the

offer of employment.

…

It follows that no contract can arise from an uncommunicated offer. This much is

clear in logic and in law.

It is common cause that the offer to employ the Applicant was only formally

extended to him on 25 July 2017 and that he accepted the offer on 1 August 2017. It

is therefore clear that a contract of employment between the Applicant and the

Department only came into existence on 1 August 2017 on which day the

applicant assumed duties and in writing informed the department that he had

accepted the offer of employment. The applicant would therefore only be entitled

to remuneration from 1 August 2017.” (My added emphasis.)

18. The applicant was accordingly not entitled to the payment of any salaries

from February 2017 as no contract of employment had come into existence

at that time.

19. The applicant has correctly argued that had it not been for the application

being launched the 4th respondent may not have revisited the contents of his

letter and in all likelihood he may not have been employed.

20. The challenge in respect of the contents of the letter was correct and if it

had not been withdrawn in the affidavit would have been granted.

21. The applicant in his affidavit had inter alia:

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a) Alleged that he had duly complied with all the requirements to be

appointed.

b) That the letter of appointment that he received in May provided for him

to be appointed in Feb and thus he was entitled to his salary from that

date.

c) The applicant set out who makes these appointments and to whom it was

delegated.

d) The letter sent on behalf of the department indicated that because he had

resigned he was not eligible for appointment.

e) Stated that there is no such policy.

f) Pleaded that the guidelines for re appointment of teachers resigning and

re-entering the system do not specify that educators who have resigned

cannot be re-appointed.

g) Contended that in the circumstances the letter written should be set aside

as pro non scripto as it is baseless and not supported by any legislation.

h) He further contended contrary to what was stated in the letter the

Superintendent General had delegated his powers of appointment to the

Cluster Chief Director.

i) The 4th respondent in his affidavit concedes:

(i) That he was incorrect in his stance regarding re employment where

he states “I have since investigated the matter properly and can

confirm that there are no objections to the appointment of the

applicant”.

(ii) States that the letter had never been formally communicated to the

applicant and that was the reason that the applicant had not

completed a certificate of acceptance which he was required to do

and indicate when he is ready to commence.

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(iii) States he is not certain where the applicant bases his claim that he

is entitled to be appointed retrospectively.

(iv) He went on to say that the department cannot agree to the

retrospective appointment of the applicant as no contract of

employment at the time and the applicant did not render any

services.

(v) He admitted that the governing body and the panel recommended

the applicant for the position of principal.

(vi) He also admitted that the Cluster Chief Director had the delegated

power to appoint the applicant to the position of principal at the

school.

(vii) He stated that he had to investigate the lawfulness of the

appointment.

(viii) He stated that it is not necessary for the court to grant the relief

which the applicant is seeking with regard to the setting aside of

the letter as he has admitted that the delegation is lawful.

j) The applicant in its reply stated:

(a) That the only reason he did not assume duties was that they did

not give him the letter.

(b) He went on to say that it was the conduct of the department that

led him to launching the application.

(c) He confirmed that he assumed duties in August.

k) In light of the 4th

respondent’s stance in the affidavit it is unnecessary to

make the order with regard to ruling that the letter should be regarded pro

non scripto.

l) However, it was warranted at the time of the launching of the application.

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m) The first to fourth respondents have remedied the position by offering the

applicant employment so their conduct is no longer unlawful.

n) The application clearly was necessary and the applicant did attempt to

resolve the matter internally prior to launching the application.

o) The matter warranted two counsel as demonstrated by the fact that both

parties utilized two counsel.

p) The costs of the main application accordingly warrant costs of 2 counsel.

q) The conduct of the respondent does not warrant costs on the scale of

attorney and client.

r) They acted on the advice of the 4th

respondent who was not intentionally

obstructive or misleading but appeared to genuinely believe his erroneous

exposition of the law as expressed in his letter to be correct at that time.

There is accordingly no basis for an attorney/client costs order against

any of the respondents.

s) The respondents made no tender for costs even on a party and party scale

despite the concessions made in the affidavit and the tender of

employment.

t) They however successfully resisted the order in respect of the payment of

arrear salaries and the punitive costs order.

u) They could have obviated incurring further costs by tendering payment of

the application on a party and party scale and they however elected to ask

for the dismissal of the application with costs.

v) The applicant was substantially successful in that he was appointed and

which in all likelihood would not have occurred had he not launched the

application.

w) The applicant’s claim in respect of arrear salaries is understandable. It

may have been misconceived as no agreement came into existence, this

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was wholly due to the fact that the letter of appointment was not brought

to his attention it appears as a result of the stance adopted by the 4th

respondent regarding his re-employment as expressed in the letter sent to

his attorney.

x) The applicant most certainly would have accepted the offer had it been

conveyed to him.

y) The applicant’s stance accordingly is not unreasonable although not

correct in law and thus not entitling him to the relief in respect of salaries

from February.

z) The applicant:

aa) Has since been employed by the first respondent.

bb) The impugned letter has been withdrawn.

cc) Is not entitled to the salaries from February 2017 since there was no

employment contract in existence at that time.

dd) There is accordingly no need to make any order in terms of the notice

of motion save for the issue of costs.

ee) I accordingly make the following order in respect of the main

application:

A) The 1st to 4

th respondents are directed to pay the applicant’s costs in

respect of the main application such costs to include the costs of 2

counsel and to include all reserved costs in respect of the main

application.

________________________

DAWOOD J

JUDGE OF THE HIGH COURT

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DATE HEARD: 28 MAY 2020

DATE DELIVERED: 27 AUGUST 2020

FOR THE APPLICANT: MR MSTHABE

APPLICANT’S ATTORNEYS: N.Z. MTSHABE INC.

137 YORK ROAD

MEEG BANK BUILDING

MTHATHA

FOR THE RESPONDENTS: MR BODLANI

RESPONDENT’S ATTORNEYS: CHANGFOOT VAN BREDA INC

FIRST, SECOND THIRD AND

FOURTH

C/O POTELWA & COMPANY

43 WESLEY STREET

MTHATHA