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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1620/2015

In the matter between:

MEC FOR PUBLIC WORKS AND ROADS

NORTH WEST PROVINCE                                                                       Applicant      

And

S E REDELINGHUYS                                                                                Respondent

In re:

S E REDELINGHUYS                                                                                Plaintiff

And

MEC FOR PUBLIC WORKS AND ROADS

NORTH WEST PROVINCE                                                                       Defendant

J U D G M E N T

GURA J:

Introduction

[1]        The applicant seeks a court order:

                        “1.        Condoning the failure by the Commissioner of Oaths to the Founding Affidavit of LESEGO KEOBAKILE SEBEKEDI to attach his signature to the copies for court and the respondent.

                         2.        Alternatively thereto, permitting the said LESEGO KEOBAKILE SEBEKEDI to re-attest her affidavit before the same Commissioner of Oaths or before the Registrar of this Honourable Court.

                        3.         Re-instating the application for the uplifting of the Bar in the above matter.

                        4.         Staying the hearing of the respondent’s application for default judgment pending the finalisation of this application and any subsequent application for the upliftment of the Bar.

                        5.         Granting to the respondent the costs of this application and the coats of any postponement occasioned thereby, save the costs of any unnecessary opposition.

                        6.         Granting the applicant such further or alternative relief as the above Honourable Court may deem fit.”

Factual background

[2]        The present application is concerned with an affidavit which was sworn before a Commissioner of Oaths, all the pages were initialled by the deponent and the Commissioner but the Commissioner omitted to sign the original copy of the founding affidavit. The affidavit was tendered by the applicant in support of an application for the upliftment of a Bar. The court hearing the application for the upliftment of the Bar dismissed the application and struck the matter off the roll on the grounds of the defective affidavit. The applicant now wishes to have the matter rectified.

[3]        The deponent to the founding affidavit in this matter, Ms Seletedi, who is an attorney in the State Attorney’s office explains the circumstances under which the Commissioner made the alleged omission.

4.

            “On the 29^th July 2016 an application for the upliftment of the Bar on the   applicant was served on the respondent’s attorneys of records. I was the deponent to the Founding Application in that matter. I attended at the office of the Commissioner of Oaths, Mr Dipela on the 28 July 2016 armed with three copies of the Founding Affidavit. I took the oath before the Commissioner. I saw the commissioner of Oaths initial each page of my affidavit. It will be seen from the original affidavit which is in the court file that the commissioner of Oath initialled every page of the affidavit including the annexures which runs to 34 pages. However it appears that he simply overlooked to add his signature at the end of the affidavit. I had no reason to suspect that he had not appended his signature to the original affidavit. I believe that the affidavit had been correctly signed and did not check each page. The fact that the Commissioner of Oaths initialled every page of the affidavit and supporting documents is proof that the document was before him. Since the total documents before the Commissioner of Oaths amounted to more than 100 pages (3 copies), I respectfully submit that it is understandable that he overlooked a signature on one page.

5.

            When I received the respondent’s answering affidavit alleging non-signature by the Commissioner I telephoned the respondent’s attorney and spoke to a lady in employment there, whose name I cannot remember and agreed to send her a properly signed document, which I promptly proceeded to do.

6.

            When I attended at court for the purpose of indexing and paginating the documents the same lady informed me that there was no need to do so as she would attend to that. I had no objection. Had I attended to the pagination of the record I would have taken steps to rectify the matter. I had good reason to believe that the court’s papers were in order and saw no reason to check them.

7.

            I concede that it is a serious matter for an affidavit to be lacking in the required details. However I submit that it is not so serious a matter as to unsuit the defendant from contesting a claim which exceeds R5 000 000.00 (Five Million Rands) especially for a fault which is not of its doing.”

The version of the respondent

[4]        The respondent opposes applicant’s application for condonation on primarily the following grounds:

                 4.1    The court does not have jurisdiction to entertain the application since it does not have the inherent power to condone non-compliance with statutory provisions (i.e. Justice of Peace and Commissioners of Oaths Act No.16 of 1963 (“The Act”) and the Regulation 4 in terms of section 10 of the Act. The Act does not provide for its own condonation procedure similar to that of for example section 3(4) of the Institution of Legal Proceedings against certain Organs of State Act No.40 of 2002 alternatively such a condonation procedure if provided for was not followed by applicant;

                 4.2    Insofar substantial compliance with Regulations 1 to 4 would suffice given that they are directory as opposed to peremptory in nature, it was conceded on behalf of applicant before the court striking the application that its non-compliance with regulation 4 is fatal to (proceeding with) its application. Suffice it to also mention that no arguments were presented pertaining to substantial compliance with regulation 4 before aforementioned court which would have been the appropriate forum to have done so. The foregoing was canvassed in respondent’s answering affidavit and applicant never replied thereto;

                 4.3    Substantial compliance with Regulation 4 is not an issue for determination in current application and the court who struck the application for non-compliance with the Act is functus officio. If applicant contended that the latter court erred in striking the matter for aforementioned reason (i.e. non-compliance), an appeal would have been the appropriate remedy. In this regard furthermore, and insofar applicant now contends that the Commissioner initialled every page of the affidavit under scrutiny (which affidavit forms the subject-matter of this application) but merely omitted his signature, same was specifically denied in the answering affidavit and applicant never delivered a replying affidavit after having been invited to do so by respondent in her answering affidavit. It was similarly never established at the hearing of the removal application that a Commissioner initialled every page of the affidavit, or that the second set of initials were those of a Commissioner;

                 4.4    Accordingly, after the court hearing the objection as to respondent’s non-compliance with Regulation 4 struck the removal of bar application for non-compliance with said regulation, without any argument being advanced on behalf of applicant for substantial compliance in order for that court to “condone” the non-compliance, applicant had to bring its removal of bar application de novo;

                 4.5    The application before court is for condonation, presumably as contemplated by Uniform Rule 27. Sub-rule 27(3) grants the court wide powers and a discretion for condoning non-compliance with its own rules and regulate its own procedures. Sub-rule 27(3) does not entitle a court to condone non-compliance with statutory provisions. [Refer inter alia: Mame Enterprise (Pty) Ltd v Publications Control Board 1974 (4) SA 217 (W) 220 - elaborated upon below]

                 4.6    The proper commissioning and attestation of affidavits is prescribed by the Justice of Peace and Commissioners of Oaths Act No. 16 of 1963 (“the Act”) and the Regulations issued in terms thereof (more specifically in terms of section 10 of the Act). [See: GN R1258 of 21 July 1972, amended by GN R1648 of 19 August 1977, by GN R1428 of 11 July 1980 and by GN R774 of 23 April 1982]

                 4.7    Regulation 4 reads:

                                         4(1)     Below the deponent’s signature or mark the commissioner of oaths shall certify that the deponent has acknowledged that he knows and understands the contents of the declaration and he shall state the manner, place and date of taking the declaration.

                                         (2)       The commissioner of oaths shall –

(a)    Sign the declaration and print his full name and business address below his signature; and

(b)     State his designation and the area for which he holds his appointment or the office held by him if he olds his appointment ex officio.

                4.8    The Act does not provide for its own condonation procedure similar to that of for example the Institution of Legal Proceedings against Certain Organs of State Act No.40 of 2002 alternatively such a condonation procedure if provided for was not followed by applicant. [Compare: Section 3(4) Institution of Legal Proceedings against Certain organs of State Act No.40 of 2002]

                 4.9    Insofar substantial compliance with Regulations 1 to 4 would suffice given that they are directory as opposed to peremptory in nature, it was conceded on behalf of applicant before the court striking the application that its non-compliance with regulation 4 is fatal to (proceeding with) its application. Suffice it to also mention that no arguments were presented pertaining to substantial compliance with regulation 4 before aforementioned court which would have been the appropriate forum to have done so. Be that as it may, substantial compliance is not an issue for determination in current application. The relevance of the foregoing, however, is the confirmation of the undisputable fact that applicant’s non-compliance was with a statutory provision (as opposed to a rule of court).

              4.10    In absence of a specific procedures for condonation provided for by the Act (and/or its Regulations) that was breached, and applicant’s initial application for removal of bar having been struck and not dismissed by reason of such non-compliance, applicant was obliged to institute its removal of bar application de novo since this purported application for condonation falls outside the ambit of the court’s powers and discretion to condone applicant’s non-compliance with Act 16 of 1963 (and the Regulations issued in terms of section 10 thereof, as amended from time to time). Thus, the application in its current form has no legal basis.

              4.11    For these reasons it is respectfully submitted that applicant’s current endeavour is bad in (and not allowed for by) law, and accordingly this honourable court does not have the necessary jurisdiction to entertain the application since it does not have the inherent power to condone non-compliance with statutory provisions especially in absence of any evidence of or argument for substantial compliance with directory (not peremptory) statutory provision. Moreover, the appropriate forum that struck applicant’s removal of bar application and that could have considered such substantial compliance and condonation is now functus officio, reinforcing the idea that applicant stands to bring its removal of bar application de novo.    

The applicant’s submissions

[5]        In his heads of argument, the applicant’s counsel argued as follows:

                                 9.    The respondent in its lengthy answering affidavit has made much of the contention that there cannot be condonation of a contravention of a statutory provision. The procedure for the attestation of oaths is set out in the regulations which are of delegated legislation. The courts have consistently held that regulations made pursuant to the Justice of the Peace and Commissioner of Oaths Act, Number 16 of 1963 are directory only. This is supported by a full bench decision of the Northern Cape in S v Munn 1973 (3) 734 (NC)

                                        After considering the history of oath-taking as part of our procedural law, Van den Heever J, as she was then, went on to say at 737H that:

                                        “Compliance with the regulations provides a guarantee of acceptance in evidence of affidavits attested in accordance therewith, subject only to defences such as duress and possibly undue influence, where an affidavit has not been so attested, it may still be valid provided there has been substantial compliance with the formalities in such a way as to give effect to the purpose of the legislator as outlined above.”

                        10.       In S v Msibi 1974 (4) 821 (T) (a full bench) it was held that:

“In a suitable case, where the requirements have not been complied with, the court may refuse to accept the affidavit concerned as such or to give any effect to it. The question should in each case be whether there has been substantial compliance with the requirements.” (Headnote).

                        11.       The view set out above were echoed by Nestadt J in Lohrman v Vaal Ontwikkelingsmaatskappy 1979 ALL SA 416 (T) AT 423

                                    Where he says that:

                                    “the court has a discretion to refuse to receive an affidavit attested otherwise than in accordance with the regulations depending upon whether substantial compliance with them has been proved or not.”

The full bench judgment in Msibi’s case was approved of.

12.    Herbstein and Van Winsen, the Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, (fifth edition) at page 451 recognises that the provisions of the said regulations are directory and not peremptory and that the court has a discretion as to how it deals with the matter.

13.    In the present case the oath was administered and both the deponent and the Commissioner of Oaths initialled every page. It is submitted that these factors signify substantial compliance. A satisfactory explanation has been presented to show how this took place.

14.    The respondent has not disputed that this Honourable Court has the power to order that the affidavit be re-attested. On this ground alone, the second prayer to the Notice of Application should be granted.

15.    ___ ___ ___”

Analysis of facts by Court

[16]     In casu my Brother Hendricks J heard the application for the upliftment of Bar on 8 June 2017. The present applicant was the applicant in that matter. The court dismissed the application (for the upliftment of Bar) with costs. No appeal was noted against that judgment. What is important is that the court on (8 June 2017) made a finding that the reason for its conclusion was the defective “affidavit” which had been made by Ms Seletedi, the deponent in the present application. It is this very same “affidavit” which served before Hendricks J that I am requested to reconsider.

[17]     In some of the prayers before me the applicant prays for an order:

                         “1.       Condoning the failure by the Commissioner of Oaths to the Founding Affidavit of LESEGO KEOBAKILE SEBEKEDI to attach his signature to the copies for court and the respondent.

                           2.      Alternatively thereto, permitting the said LESEGO KEOBAKILE SEBEKEDI to re-attest her affidavit before the same Commissioner of Oaths or before the Registrar of this Honourable Court.

                           3.      Re-instating the application for the uplifting of the Bar in the above matter.

                           4.      Staying the hearing of the respondent’s application for default judgment pending the finalisation of this application and any subsequent application for the upliftment of the Bar.

                           5.      ___ ___ ___ ___

                           6.      ___ ___ ___ ___”

 [18]    The decision of Hendricks J dismissing the application for the upliftment of the bar is a final decision which can be revisited only by a court of appeal. This Court has no power to give an order whose effect is to permit the applicant to re-instate the very same application (for the uplifting of the Bar). The submission by Advocate Rossouw SC for the respondent, that this Court has no jurisdiction over this matter, is therefore well founded.

[19]     The very same application which serves before me now should have been directed to Hendricks J before he could dispose of the application for the uplifting of Bar on 8 June 2017. In my view, what the applicant is attempting to do now is to use this Court as a court of review or a court of appeal. The application before me falls to be dismissed in its entirety. The respondent asked this Court for an order of costs on a punitive scale against the applicant. I am not satisfied that a case has been made out for a punitive cost order.

Conclusion

[20]     Under the circumstances, the application is dismissed with costs.

_______________      

SAMKELO GURA                                                                     

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

APPEARANCES:

DATE OF HEARING:                             29 MARCH 2018                 

DATE OF JUDGMENT:                         12 NOVEMBER 2018

COUNSEL FOR APPLICANT:               ADV H LEVER SC  

COUNSEL FOR RESPONDENT:           ADV ROSSOUW SC

ATTORNEYS FOR APPLICANT:           STATE ATTORNEY

ATTORNEYS FOR RESPONDENT:      W J COETZER ATTORNEYS

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