VECO MA-BATHO EPPY BODIA

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION: MTHATHA CASE NO. 1278/2013 VECO MA-BATHO EPPY BODIA Applicant And DZONGI CIVIL CONSTRUCTION KSD LOCAL MUNICIPALITY OR TAMBO DISTRCT MUNICIPALITY First Respondent Second Respondent Third respondent JUDGMENT BROOKS J [1] On 29 April 2016 the applicant issued a notice of motion in which it claimed the following relief: 1. That the applicants failure to serve notice envisaged in section 3 (1) and (2) of the Institution for Legal Proceedings 1

2 against Certain Organ of the State Act 40 of 2002 be and is hereby condoned. 2. That OR Tambo District Municipality be and is hereby joined as third Defendant in the main action. 3. That Honourable court grants such further and/or alternative relief. (sic) [2] The notice of motion was issued within the context of an action instituted by the applicant against Dzongi Civil Construction (Pty) Ltd (the first respondent) and King Sabata Dalindyebo Municipality (the second respondent). [3] Whilst the wording employed in prayer 1 of the notice of motion is loose and unspecific, there can be no doubt on a reading of the founding affidavit as a whole that the relief is directed against the O.R. Tambo District Municipality only. Paragraphs 4 to 8 thereof read as follows: 4. I have through my attorney of record instituted action against first and second respondent and have complied with section 3(1) and (2) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of I submit that third respondent was not served with a statutory notice as provided by section 3 of Act 40 of

3 6. Statutory notice was served on first and second respondents on 13 June I do state that the degree of noncompliance with Act 40 of 2002 will not prejudice the respondents. 7. The reason for such delay was that I had no knowledge that O.R. Tambo District Municipality was responsible for the drains in Mthatha. This information only became known to me at the beginning of March 2016, and realised that it is necessary to join the municipality in the proceedings. 8. It is my humble submission that I have made out a case upon which the Honourable Court condone such omission as I have prospects of success in this matter. (sic) [4] On 17 October 2016 the second respondent served and filed a notice of opposition entitled Notice to Oppose (Joinder Application). It is supported by an answering affidavit in which the second respondent claims that there is a contradiction between paragraphs 4 and 6 of the founding affidavit and that, in the result, the second respondent does not know whether or not the application is directed against it. [5] Inasmuch as the second respondent is already a party to the action, there is no explanation for confusion in the minds of those acting for the second respondent as to whether the application for joinder targets the second 3

4 respondent or not. Indeed, there can be no legitimate basis upon which the application for joinder of an additional defendant can prejudice the second respondent. Yet, the notice of opposition is filed deliberately and specifically to that end. [6] Importantly, the second respondent s own answering affidavit indicates that in reality the second respondent knows very well that the relief claimed in the notice of motion is relief against the third respondent OR Tambo District Municipality. Paragraph 15 thereof states: The allegation in paragraph 7 exonerates the second respondent of any liability in view of the fact that the municipality that deals with drainage is now identified by the plaintiff. This means that there was a misjoinder of the second respondent. There are no prospects of success therefore against the second respondent. There was no reason why the second respondent was cited. The balance is denied. [7] This paragraph indicates unequivocally that the second respondent understands that the applicant seeks the joinder of O.R. Tambo District Municipality. It also indicates the view held by the second respondent that it has good prospects of success in the main action. In these circumstances, no reason emerges for the second respondent s opposition to the joinder. [8] As far as the condonation element of the application is concerned, allegations about the confusion in the mind of the second respondent are based 4

5 opportunistically upon the looseness of the terminology employed in prayer 1 of the notice of motion. An intelligent reading of the founding affidavit as a whole indicates clearly that the applicant seeks condonation for its failure to comply with the provisions of section 3 of Act 40 of 2002 in respect of the party to be joined, OR Tambo District Municipality. To this element, too, there could be no valid opposition by the second respondent. [9] Whilst the second respondent s opposition to the application must fail, costs cannot follow the result. In its notice of motion the applicant does not seek costs of suit in the event of unsuccessful opposition by the second respondent. In the circumstances, it was always at risk that it may bear the increased costs of the application caused by one of the respondents opposing it unsuccessfully. [10] In argument, Mr Kunju, who appeared on behalf of the second respondent, submitted that although unsuccessful in its opposition to the application the second respondent was entitled to a costs order in its favour. This entitlement, he submitted, was based on the entitlement of the second respondent to oppose the application because of the confusion it identified in the founding affidavit and because of the looseness of the notice of motion. I am not in agreement with the submission. Whilst there was some looseness in the notice of motion, the founding affidavit made it clear what the application was all about. There was no room for confusion on the part of the second respondent. Its opposition to the joinder was without foundation and its purported opposition to the condonation element, which was imported through the back door under the notice of opposition to the joinder application, was 5

6 misplaced. In such circumstances, the second respondent is not entitled to an order that the applicant pay the second respondent s costs. [11] However, that is not the end of the enquiry. Although the notice of motion was addressed to the third respondent, it is not clear whether or not the application was served upon it. No return of service has been included in the court file. The notice of motion is not endorsed in any way which would indicate receipt of the application papers by any other mechanism. Accordingly, it is not clear whether or not the third respondent is aware of these proceedings. [12] The whole purpose of section 3 of Act 40 of 2002 is to afford an organ of state with a reasonable opportunity to investigate the circumstances surrounding any claim which is contemplated by a litigant against it. Where there has been non-compliance with the section, the court will only grant condonation in limited circumstances. It must be clear that there would be no prejudice to the organ of state were condonation to be granted. This cannot be assessed where the organ of state has not had an opportunity to give consideration to the potential claim as set out, albeit belatedly, in a notice issued in terms of section 3 of Act 40 of 2002 and has not had an opportunity to consider and respond to the basis for a litigant s concomitant application for condonation. 1 [13] In the circumstance, condonation cannot be granted on the application papers as they stand. In my view, it would be in the interest of justice were this matter would be postponed to enable the applicant to amend its notice of motion, to issue a notice to the third respondent in terms of section 3 of Act 40 1 MADINDA v MINISTER OF SAFETY AND SECURITY 2008 (4) SA 312 (SCA) 320 I-J; MINISTER OF AGRICULTURE AND LAND AFFAIRS v CJ RANCE (PTY) LTD 2010 (4) SA 109 (SCA) 117G 118B; PREMIER, WESTERN CAPE v LAKAY 2012 (2) SA 1 (SCA) 10G-H and 12C D. 6

7 of 2002 for inclusion in the application papers and to serve the amended application, in the long form, upon the third respondent by the way of the sheriff. In this manner, the purpose of the provisions of section 3 of Act 40 of 2002 may yet be achieved and the door remains open for the applicant to obtain condonation for its belated compliance with the section. [14] The following order will issue: 1. The application is postponed sine die. 2. The applicant is granted leave to amend the application for both joinder and condonation in respect of the third respondent and to serve the amended application upon the third respondent in terms of the Uniform Rules of Court. 3. There shall be no order as to costs. RWN BROOKS JUDGE OF THE HIGH COURT 7

8 Appearances For the applicant: of MR. LW QINA LW QINA INCORPORATED Applicant s Attorneys, Office No 14 1 ST Floor, Tshezi Building, 42 Madeira Street MTHATHA For the first respondent: No Appearance. For the second respondent: Instructed by ADV V KUNJU S BOOI & SONS Respondant s Attorneys Office No 3, Clublink Building 28 Madeira Street, MTHATHA Date heard: 10 August 2017 Date delivered: 15 August