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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: 3366/2013

DATE HEARD: 19 JUNE 2014

DATE DELIVERED: 24 JUNE 2014

NOT REPORTABLE

In the matter between

FRANCES LYDIA BECKER                                                                                       Applicant

and

MEC FOR THE DEPARTMENT OF ECONOMIC

DEVELOPMENT & ENVIRONMENTAL AFFAIRS                                        First Respondent

KOUGA MUNICIPALITY                                                                          Second Respondent

ST FRANCIS LINKS                                                                                    Third Respondent

Amendment of pleadings – Rule 28(5) – failure to object - amendment only effected when amended pages filed. Litigant not ipso facto barred from filing amended pleadings outside of time period provided for in Rule 28. Where so filed susceptible of challenge in terms of Rule 30 - effect of failure to challenge.

Promotion of Access to Information Act – access to record of private body – access granted – dilatory and unmeritorious defence raised – punitive costs order warranted.

JUDGMENT

GOOSEN, J.

[1] The applicant is the joint owner of a smallholding which is situated in the immediate vicinity where the stand river mouths into the Kromme River estuary in St Francis Bay. In November 2007 the Sand River flooded causing damage to properties situated on the St Francis Links Golf Estate and to the R33 road linking St Francis Bay to Cape St Francis. The applicant’s property was not damaged. In July 2011 severe flooding occurred in the St Francis Bay area and the Sand River again flooded. On this occasion the bridge over the river on the R33 was washed away and a substantial volume of sand and debris was deposited on the applicant’s property resulting in the destruction of indigenous vegetation on the applicant’s property.

[2] The Eastern Cape Regional Office of the Department of Water Affairs investigated the flood and the damage caused as a result of the flood. A report was prepared by the department. The report was produced in January 2012. The report contains the following assessment of what may have given rise to the damage caused by the flood:

As a result of the damages experienced during the August 2006 and November 2007 flood events, whereby property was flooded and inundated with sand, both on the St Francis Links Golf Estate and in St Francis Bay, it was decided to divert (some of) the storm (flood) water from the dune slacks draining towards the Links Golf Estate, and St Francis Bay to the adjacent Sand River catchment. It appears that the construction of this diversion was undertaken by the St Francis Links Golf Estate with the knowledge and approval of the Kouga Local Municipality and DEDEA. This diversion transferred the excess (?) storm water to the said dune slack depression in the Sand River catchment (“the dam”) from the remnants of the “the dam.” It appears to have contained a relatively large volume of water – the major cause of the damage.

[3] It is not apparent from the founding affidavit when this report came to the attention of the applicant. Be that as it may. As a result of the views expressed in the report, the applicant made application in terms of section 18 (1) of the Promotion of Access to Information Act, Act 2 of 2000 (hereafter referred to as “PAIA”) to the first respondent during March 2013. The applicant requested access to records relevant to the application to divert water into the Sand River catchment area. A similar application was made to the second respondent during April 2013. On 8 May 2013 the applicant served a notice in terms of section 18 of PAIA requesting similar information from the third respondent. It is not relevant for present purposes to deal with the responses, or lack of responses by the first and second respondents since the application came to be settled between the applicant and the first and second respondents. It suffices to record that the applicant was required to lodge an appeal in terms of section 74 of PAIA and, in the light of the failure by all of the respondents to furnish the requested information was obliged to launch this application to compel production of the requested information. This application was commenced on 20 November 2013.

[4] In response to the applicant’s request for information the third respondent replied by way of a letter dated 8 May 2013, addressed to the applicant’s attorneys by the third respondent’s attorney. In that letter the third respondent took the view that:

It appears that the purpose of your request is to obtain information for litigation to follow (paragraph D2 of your request). Kindly note that the Act does not apply to records, if those records are required for criminal or civil proceedings. [Section 7 (1) (a)].

The information requested in D1 is brought well outside the 90 day period within which to bring the request in terms of Act No. 3 of 2000. It appears from the content of annexure “A” that your client became aware of the action, or might reasonably have been expected to have become aware of the action n middle January 2012.

For the reasons set out hereinabove, your request for information is refused.

[5] Following the commencement of this application the third respondent filed a notice of opposition on 9 December 2013. No opposing affidavits were filed.

[6] In its notice of motion the applicant sought orders for the production of the requested information only against the first and second respondents, although the terms of the notice of motion indicated that it seeks a cost order against all of the respondents. On 17 January 2014 the applicant filed a notice of intention to amend its notice of motion. The amendment foreshadowed in that notice effected an amendment to each of the paragraphs introducing reference to the third respondent. The effect was to indicate the applicant’s intention to seek substantive relief also against the third respondent. No objection was made to the proposed amendment. It appears that nothing further was then done in relation to the application. On 6 March 2014 the applicant filed its amended notice of motion in accordance with the notice of intention to amend referred to earlier. Again nothing further transpired on the part of the respondents. No opposing affidavits were filed and no steps were taken pursuant to the filing of the amended notice of motion. The applicant applied for a date for hearing and on 16 April 2014 a notice of set down, setting the hearing down for hearing on 19 June 2014, was served and filed.

[7] The applicant filed its heads of argument and the matter was enrolled for hearing on 19 June 2014. Shortly before the matter was to be heard the third respondent made application for condonation for the late filing of its heads of argument. The heads of argument are drawn on the basis that the third respondent takes two points in limine. Annexed to the affidavit filed in the condonation application is a letter dated 29 May 2014. The letter is headed “Notice of Irregular Step in terms of Rules 28 (7) and 30 (2) of the Uniform Rules of Court”. The content of the letter reads as follows.

1. This letter serves as a notify (sic) that the applicant failed to observe the requirements of rule 28 in that she failed to effect a proposed amendment with in the stipulated time in accordance with sub rule (7).

2. The applicant’s notice to amend was served on the 17^th of January 2014. Having regard to rule 28 (7), she should have served her amended pages on or before 14 February 2014. Hence, by serving her amended pages on the 17th of April 2014, she took an irregular step in the proceedings.

3. The applicant is hereby afforded the opportunity to remedy the irregularity within 10 (TEN) days from date.

4. Should he fail to remedy the irregularity wit in 10 (TEN) days, we shall initiate an application in terms of rule 30 to remedy the irregular step.

5. You are hereby called upon to agree that the notice in terms of rule 30 be served out of time without necessitating condonation application in order to have a cause of complaint dealt with prior to the hearing of this matter and without having to incur the additional cost of a formal condonation application and that of a postponement, at the expense of either of/or both parties.

6. If this letter is met with silence and the applicant fails to rectify the irregularity and afford our client an extension of time without a condonation application, we shall serve a notice in terms of rule 30, together with a condonation application upon expiry of the 10 (TEN) day period.

7. We await your reply.

[8] The reply is not annexed. I was however informed that it was to the effect that the third respondent should do as it is advised to do. No application in terms of rule 30 together with a condonation application was initiated. Instead the third respondent raised the legal argument in its heads of argument that the amendment was of no force and effect. It also raised another legal point relating to the alleged failure to comply with the provisions of the Promotion of Administrative Justice Act , Act 3 of 2000 (referred to as PAJA), which I deal with hereunder.

[9] The thrust of the third respondent’s objection was that the applicant’s failure to file its amended notice of motion within the time period provided for in rule 28 (5) had the effect that such amendment had lapsed and, accordingly, that on the notice of motion as it originally read no substantive relief was sought against the third respondent. Accordingly, so it was submitted, this court could not grant such order against the third respondent.

[10] Rule 28(5) regulates the procedure by which an amendment of pleadings is effected where no objection to such amendment is filed. It provides as follows:

If no objection is delivered as contemplated in sub rule (4), every party who received notice of the proposed amendment shall be deemed to have consented to the amendment and the party who gave notice to the proposed amendment may, within 10 days of the expiration of the period mentioned in sub rule (2), effect the amendment as contemplated in sub rule (7).

[11] Sub rule (7) provides that:

Unless the court otherwise directs, a party who is entitled to amend shall effect the amendment by delivering each relevant page in its amended form.

[12] The third respondent argued that once the time period provided for in rule 28 (5) expires without an amendment being effected the amendment lapses. Ms. Veldsman, on behalf of the third respondent, relied inter-alia on Van Heerden v Van Heerden 1977 (3) SA 455 (W) and Fiat SA (Pty) Ltd v Bill Troskie Motors 1985 (1) SA 355 (O), in support of this proposition.

[13] In the Van Heerden matter a notice of intention to amend particulars of claim was met with no objection. The amendment sought to introduce an alternative claim. The particulars of claim were not thereafter amended. A notice of bar was then served on the defendant, placing the defendant under bar of pleading to the alternative claim. The defendant brought an application in terms of rule 30. The court found that an amendment to a pleading only takes effect upon delivery of the amendment. The court said the following at 457H:

Dit skyn of dit die bedoeling is om, anders as die geva van ‘nn bevel nadat ‘n aansoe aan die Hof gerig is, die feit van wysiging van die lewering daarvan binne ‘n gestelde tyd afhanklik te maak.

[14] The position relating to amendments after a court order is now regulated by rule 28 (6) which provides that:

Unless the court otherwise directs, and amendment authorised by an order of court may not be effected later than 10 days after such authorisation.

[15] The court in the Van Heerden matter found that because the plaintiff had not delivered an amendment as required by rule 28 (5) the further steps taken by the plaintiff constituted irregular steps. This finding was also based on other grounds not relevant to the present matter. The court was not called upon to decide what the effect of delivery of an amendment outside of the stipulated time period would be. It accordingly did not find, and is therefore not authority for the proposition, that the amendment lapses, as was suggested by Ms Veldsman.

[16] The Fiat SA matter was also not called upon to consider that issue. That matter concerned the question whether the granting of leave to amend by a court ipso facto constitutes an amendment of the relevant pleadings.  The court held that it does not.

[17] In my view, both the Van Heerden and the Fiat SA judgments are directly against the proposition which the third respondent seeks to advance. The effect of those judgments is that absent the delivery of amended pages pursuant to rule 28 (5) read with sub rule (7) there is in fact no amendment. Accordingly, the failure to deliver an amendment within the stipulated time period cannot have the effect that such “amendment” lapses. Rule 28 (5) confers on a party seeking to amend its pleadings a right to do so in the light of the absence of an objection and a deemed consent to such amendment. If a party who has that right does not exercise the right then there is no amendment. That was the position in the Van Heerden matter. Where a party exercises the right to amend pursuant to no objection and a deemed consent, but does so outside of the time period stipulated in rule 28 (5) such step may constitute an irregular step.

[18] In this instance, unlike the van Heerden matter, the applicant did indeed effect the amendment in accordance with its notice of intention to amend to which there had been no objection. It did so in March 2014. Following the filing of the amended notice of motion the third respondent took no steps in relation to the fact that the amendment was effected outside of the time period stipulated in rule 28 (5). The third respondent only reacted on 29 May 2014 when, by its own admission, it could not exercise its right to object in terms of rule 30 because it was out of time. Indeed, it was pointed out in argument that the letter of 29 May 2014 was formulated as it was precisely because the third respondent could not act in accordance with the provisions of rule 30. In the letter the third respondent indicated its intention to bring a substantive application for condonation and an application in terms of rule 30. This it did not do. It contented itself with raising the legal objection to the amended notice of motion as a point in limine in argument before this court. There is therefore no explanation before this court as to why the third respondent did not react to the allegedly irregular filing of the amended notice of motion timelessly and within the time periods provided for in rule 30. Furthermore no grounds, apart from those advanced in argument, are advanced as to the basis of the alleged irregularity and its effect upon the proceedings.

[19] Ms Veldsman contended that, notwithstanding the failure to act in accordance with rule 30 she was nevertheless entitled to raise the legal point in limine. It may indeed be so that in the ordinary course it is open to a party to deal with irregular proceedings by way of an objection in limine at the hearing of the matter. The difficulty however in this matter is that the force of the objection is significantly blunted by the fact that the third respondent took no action in relation to the allegedly irregular step executed by the applicant. Indeed, more than two months elapsed before the third respondent purported to take any action in that regard. Furthermore, what the third respondent objects to is an amendment to which it consented. Not surprisingly it was not suggested that the late filing of the amended notice of motion caused any prejudice to the third respondent.

[20] In Presto Parcels v Lalla 1990 (3) SA 287 (E) the court found, at 289J, that “it is not open to a litigant who has consented to an amendment and allowed it to be incorporated in the pleadings thereafter to argue that the court should disregard it without going into the merits.”  In this instance the third respondent did not object to the notice of intention to amend. It also took no steps in relation to the late filing of the amended notice of motion. The effect of not objecting to the notice of intention to amend is that the third respondent is deemed to have consented to such amendment. The effect of not objecting to the allegedly irregular step taken by the applicant is similarly that it must be accepted that the applicant was allowed to incorporate the amendment in its pleadings. The third respondent’s objection now is that the amended notice of motion must be disregarded because “the amendment has lapsed”. As already indicated, there is no basis for such proposition.

[21] In my view the failure by a litigant to act in accordance with its intention to amend pleadings within the stipulated time period does not ipso facto preclude such party from thereafter filing its amendment. All that may be said is that a litigant who conducts himself in that manner exposes himself or herself to the possibility that a party may object on the basis that such constitutes an irregular step. Where there is no such objection there can, in principle, be no objection to the court dealing with the matter on the basis of the amended pleadings. Parties are in any event at liberty to agree to amendments of pleadings. Furthermore, rule 28(7) confers upon the court a discretion to permit the filing of an amendment outside of the time periods provided for in the rules. That much is apparent from a reading of the plain language of the sub rule itself. In the applicant’s answer to the third respondent’s application for condonation for the late filing of its heads of argument, the applicant requests condonation, to the extent necessary, for the late filing of its amended notice of motion. The affidavit explains that the late filing was due to an administrative error in the office of the applicant’s attorney. It also indicates that there can be no prejudice whatsoever to the third respondent should such condonation be granted. I agree. The applicant’s founding affidavit makes out a case for the relief sought against the third respondent. The sequence of events described hereinabove make it clear that the third respondent has, for a considerable period, had notice of the applicant’s intention to seek relief against it. The third respondent filed a notice of opposition yet filed no opposing affidavits, notwithstanding the apparent defence upon which it sought to rely, as indicated in the letter addressed to the applicant’s attorneys on 8 May 2013.

[22] It is apparent from a careful reading of the circumstances in which this matter has come to be argued that the third respondent has adopted a dilatory approach to the matter. It was conceded by the third respondent’s counsel that the third respondent’s  stance set out in the letter of 8 May 2013 was without merit (see MEC for Roads and Public Works, Eastern Cape and another v Intertrade Two (Pty) Ltd 2006 (5) SA 1 (SCA) at paragraph 12).

[23] It follows from what I’ve set out above that there is no merit in the third respondent’s first point in limine. What remains to be considered is the second point.

[24] As I understood it, the third respondent argued that the applicant had failed to act in accordance with the provisions of PAJA inasmuch as she had failed to bring the request for information within a period of 90 days of discovering the nature of the administrative act which she seeks to challenge. The point is obscure. This application is not brought in terms of the provisions of PAJA. It is a request for access to a record held by a private body brought in terms of the provisions of PAIA. The time periods and the procedures prescribed in the latter Act apply. Whether or not the applicant, should she be advised to bring a review application in due course, is able to establish compliance with the provisions of PAJA is a wholly different matter that has no relevance to determination of whether the applicant is entitled to access to the record which she seeks from the third respondent. There is accordingly no merit at all in the second point in limine.

[25] It follows, in the light of these conclusions, that the applicant is entitled to the order that she seeks in terms of the amended notice of motion.  I shall, in making the order exclude reference to the first and second respondents since separate orders were made against them on 19 June 2014, by agreement between the applicant and those respondents.

[26] The only question that remains is that of costs. It was argued on behalf of the applicant that it would be appropriate, having regard to the third respondent’s conduct of these proceedings, to order the third respondent to pay costs on a punitive scale.

[27] In Claase v Information Officer, South African Airways (Pty) Ltd 2007 (5) SA 469 (SCA)  at par 11 the court remarked on the need for public and private bodies to respond appropriately to requests for access to records.

In MEC for Roads and Public Works (supra) this Court expressed the view that where a record of information is requested in terms of s 50 and the State body or private person or institution obdurately and unreasonably refuses to furnish it in circumstances where it obviously should have, the court may make a punitive award of costs to marl its displeasure (in paras [20] and [21] of that judgment. The conduct of SAA in this case in my view warrants such an order. Section 9 of the Act states that one of the objects of the Act is:

‘(d) (T)o establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible….’

I emphasise the words ‘swiftly’ and ‘effortlessly’.

[28] In this matter too, the third respondent responded to the request for access to the records by raising, under cover of its attorney’s letter, a “defence” without any merit. It has then sought to advance technical and dilatory defences even in the face of concessions made by the first and second respondents who have furnished relevant records in their possession to the applicant.  Such conduct in my view warrants a punitive costs order.

[29] I accordingly make the following order:

The third respondent is ordered:

1.    To furnish the applicant alternatively that any other person entity to divert water from the dune slack draining towards St Francis Links Golf Estate and St Francis Bay adjacent to the Sand River catchment area;

2.    To furnish the applicant with the particulars of the decision to breach the dune slack depression in the River catchment are adjacent to the St Francis Links Golf Estate;

3.    To furnish the applicant with the details of person(s) who authorized the diversion referred in paragraph 1 above and who authorized the breaching of the dune slack depression referred to in paragraph 2 above;

4.    To furnish the applicant with the details of the persons or entities who constructed the diversion referred to in paragraph 1 above and who breached the dune slack depression referred to in paragraph 2 above;

5.    To pay the applicant’s costs on a scale as between attorney and client.

G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances:                   For the Applicant

                                                Adv B. P. Pretorius

                                                Instructed by Christo Swanepoel Attorneys

                                                c/o Greyvensteins Attorneys

 

                                                For the Third Respondent

                                                Instructed by Spangenberg Attorneys

                                                c/o Dean S Murray Attorneys

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