Eastern Cape Division, Grahamstown)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

REPORTABLE

CASE NO: 138/2017

In the matter between:

MINISTER OF POLICE APPLICANT

AND

ZAMIKHAYA MQAMELO RESPONDENT

JUDGMENT

RENQE AJ:

[1] This is an application brought in terms of rule 30 of the Uniform Rules of Court for the setting aside of the respondent’s particulars of claim. The applicant, who is the defendant in the main action brought the application on the

basis that Mr S K Maqambayi (Maqambayi), who signed the particulars of claim on behalf of the respondent, was not admitted, enrolled or entitled to practice in the Eastern Cape Division, Grahamstown. The applicant further alleged that the respondent failed to comply with rule 18 (10) of the Uniform Rules of Court. The matter served before me on 21 February 2019. After hearing argument presented and on 22 February 2019 I granted an order dismissing the application. These are my reasons.

[2] In order to put the matter into proper perspective it is necessary to give a brief summary of the background facts which prompted the launching of this application. The applicant is the Minister of Police of the Republic of South Africa, who as stated supra, is the defendant in the main action. The respondent is Zamikhaya Mqamelo, the plaintiff in the main action. For the sake of convenience the parties shall henceforth be referred to as the applicant and the respondent. The respondent instituted an action for damages wherein he sued the applicant on the basis of vicarious liability for the alleged wrongful and unlawful conduct of members of South African Police Service. The course of action arose on 5 January 2016 and the combined summons was issued in this Court on 17 January 2017. The particulars of claim annexed to the combined summons were signed by Maqambayi, an admitted attorney with a right of appearance1 .

1 Certified in terms of s 4 (2) of the Right of Appearance in Courts Act No 62 of 1995.

[3] On 10 March 2017 the applicant entered an appearance to defend. The applicant also served a notice in terms of rule 30 of the Uniform Rules of Court alleging that the particulars of claim constituted an irregular proceeding in that they do not comply with rule 18(1)2 of the Uniform Rules of Court. The applicant contended that Maqambayi was not admitted, enrolled and entitled to practice in the Eastern Cape Division, Grahamstown but only in Mthatha Local Division. According to the applicant Maqambayi’s name does not appear on the roll of attorneys admitted, enrolled and entitled to practice in the Eastern Cape Division, Grahamstown. As a result thereof, so the applicant avers, the particulars of claim did not comply with rule 18(1) of the Uniform Rules of Court.

[4] The applicant contended that in the Eastern Cape Province there are three rolls of attorneys comprising first, of attorneys who were enrolled in the old Republic of South Africa; secondly, those who were enrolled in the old Ciskei Division and lastly, those who were enrolled in old Transkei Division. The applicant submitted that the three rolls have not yet been consolidated into one roll for the Eastern Cape Division. As a result thereof, so the applicant avers, the attorneys who were admitted, enrolled and entitled to practice in the old Transkei and Ciskei, with their main seats in Mthatha and Bisho, respectively, are prohibited from signing any pleadings in the Eastern Cape, Grahamstown, until such time as they have been enrolled to practice in this Division.

2 18 Rules relating to pleading generally, provides that:

(1) A combined summons, and every other pleading except a summons, shall be signed by both an advocate and an attorney or, in the case of an attorney who, under section 4(2) of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), has the right of appearance in the Supreme Court, only by such attorney or, if a party sues or defends personally, by that party. …

[5] On 5 April 2017 the applicant filed another notice in terms of rule 30 of the Uniform Rules of Court. In this notice the applicant alleged that the respondent’s particulars of claim did not comply with rule 18 (10)3 of the Uniform Rules of Court in that the respondent had failed to (i) specify the date of his birth; (ii) set out the effects and duration of the disabilities; (iii) set out how his past and future medical expenses were made up.

[6] In opposing the application the respondent contended that attorneys who were admitted in the old Transkei and Ciskei Divisions form part of the Eastern Cape Division. In this respect the respondent submitted that the word “Division” referred to in rule 14 of the Uniform Rules of Court should be understood to mean “Province”. With regard to the alleged non-compliance with Rule 18 (10), the respondent contended that the application to set aside the particulars of claim was brought after the applicant had taken further steps to advance the proceedings. The respondent submitted that the applicant took further steps as

3 Rule 18 (10) provides that:

A plaintiff suing for damages shall set them out in such manner as will enable the defendant reasonably to assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify his date of birth, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practicable state separately what amount, if any, is claimed for— (a) medical costs and hospital and other similar expenses and how these costs and expenses are made up; (b) pain and suffering, stating whether temporary or permanent and which injuries caused it; (c) disability in respect of—

(i) the earning of income (stating the earnings lost to date and how the amount is made up and the estimated future loss and the nature of the work the plaintiff will in future be able to do); (ii) the enjoyment of amenities of life (giving particulars); and stating whether the disability concerned is temporary or permanent; and (d) disfigurement, with a full description thereof and stating whether it is temporary or permanent.

4 … [An] attorney shall mean an attorney admitted, enrolled and entitled to practice as such in the division concerned… .

envisaged in rule 30 (2) (a) by filing notices in terms of rule 35 (14) and 36 (4) of the Uniform Rules of Court. It was argued, by so doing, the applicant nullified reliance on non-compliance with the provision of rule 18(10) of the Uniform Rules of Court. The notices in question were served upon the respondent on 14 March 2017.

[7] The parties agreed at the commencement of the hearing of the application that Maqambayi was an attorney who was admitted, enrolled and entitled to practice in the old Transkei Division or Eastern Cape High Court, Mthatha.

[8] The first issue which calls for determination is whether or not an attorney admitted, enrolled and entitled to practice in the old Transkei Division or Eastern Cape High Court, Mthatha is entitled to practise in the Eastern Cape Division, Grahamstown. The second issue was raised in the alternative and in the event of the court holding that Maqambayi was entitled to practice in this Division. The second issue for consideration is whether or not the applicant took further steps in the proceeding with the knowledge of the irregularity as envisaged in rule 30(2)(a) of the Uniform Rules of Court. Should the applicant succeed with the first issue, there will be no need for the court to deal with the second issue.

[9] The historical background of the structure of our courts is apposite to a proper ventilation of the issues. With the advent of the democratic constitutional dispensation in 1994, the Republic inherited a fragmented court structure and an infrastructure which was largely derived from a colonial history and which was further fragmented to serve the segregation objectives of the apartheid order.5 After 1994 however, the homelands created for apartheid edifice ceased to exist and in their place nine provinces were established.

5See the preamble in Superior Courts Act 10 of 2013.

[10] In terms of Item 16 (6) (a) of Schedule 6 of the Constitution, it is provided that :

“As soon as is practical after the new Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.” Notwithstanding this constitutional imperative to rationalise our court structures and composition, as envisaged item 16 (6) (a) of Schedule 6 of the Constitution, supra, the status quo remained in so far as the Eastern Cape Province is concerned . Prior to the enactment of the Superior Courts Act 10 of 2013 (the Act), which came into operation on 23rd of August 2013, there were three provincial divisions in the Eastern Cape, which were , the Ciskei Division, the Eastern Cape Division and Transkei Division. The old Transkei and Ciskei Divisions, were renamed in terms of the repealed Renaming of High Courts Act 30 of 2008. The Bisho High Court was renamed as Eastern Cape High Court, Bisho and Mthatha High Court was renamed as Eastern Cape High Court, Mthatha.

[11] After 23 August 2013 each of the nine provinces in the Republic had its own Division with a name matching that of the province, with some provinces having more than one seat.6 Thus s 6 (1) of the Act created a single division for each province. The three Eastern Cape Provincial Divisions accordingly fell under one Division, which is called Eastern Cape Division, with its main seat in Grahamstown7. The Act also repealed s 27 of the Republic of Ciskei Constitution Decree No 45 of 1990, which dealt with the constitution and powers of the Supreme Court of Ciskei. It further repealed s 44 of the Republic

6 See s 6 (1) (a)–(i) of the Superior Courts Act. 7 Section 6 (1) of the Superior Courts Act reads : The High Court of South Africa consists of the following Divisions: (a) Eastern Cape Division , with its main seat in Grahamstown.

of Transkei Constitution Act No 15 of 1976, which established a Supreme Court of Transkei. In terms of s 50 (1) of the Act, the Eastern Cape High Court, Bisho became a local seat of the Eastern Cape Division; Eastern Cape High Court, Mthatha became a local seat of the Eastern Cape Division, Eastern Cape High Court, Port Elizabeth became a local seat of the Eastern Cape Division, Eastern Cape High Court, Grahamstown became the main seat of the Eastern Cape Division.

[12] Section 1 of the Act defines the word division as “any Division of the High Court”. In terms of s 6(2) of the Act each division of the High Court consists of a Judge President and one or more Deputy Judge President(s), as determined by the President, each with specified headquarters.

[13] As stated above Eastern Cape High Court, Mthatha became a local seat of the Eastern Cape Division .It bears emphasising that it is not a separate Division, it has neither its own Judge President nor its own separate rules, practices or manuals. With the establishment of the unified Eastern Cape Division the Transkei Division ceased to exist. In my view, it follows that the rights of the attorneys who were admitted, enrolled and entitled to practice in the old Transkei Division continue to have the right to practice in this Division. This is due to the fact that the Transkei Division in which they were entitled to practice became part of the newly constituted Eastern Cape Division. Having regard to the rules of interpretation of documents, including statutes as recently restated by Wallis JA in Natal Joint Municipal Pension Fund8 the word “division concerned” as contemplated in rule 1 of the Uniform Rules of Court,

8 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA) at para 18.

“…The “inevitable point of departure is the language of the provision itself”, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

in this matter refers to the Eastern Cape Division, its local and main seats, not to the old regime Transkei Division, which has ceased to exist.

[14] The applicant’s argument that Maqambayi is not entitled to practice in this Division is premised on erroneous notion that until such time he is enrolled in the main seat in Grahamstown, he is prohibited from practising therein. Such an interpretation is inconsistent with the Constitution which is aimed at the creation of a unified South Africa and adhering to such an interpretation would lead to results contrary to the purpose of the Act. Furthermore, it smacks of a desire to cling to the discriminatory policies of apartheid past. This argument is unsustainable and fails to appreciate that the main aim of our Constitution is to do away with the segregations of the past. One of the cornerstones of apartheid system was the creation of the homeland system and the new Constitution is aimed at bringing to an end this system and creating one unified democratic country. Since Maqambayi is an admitted attorney who was enrolled in the old Transkei Division or the Eastern Cape High Court, Mthatha, which Division has since become part of the Eastern Cape Division, I find no merit to the applicant’s contention that he is ineligible or not entitled to practice in any seat of this division.

[15] Having come to the conclusion that Maqambayi is entitled to practice in this Division, if he is still a fit and proper person in terms of the Legal Practice Act 28 of 2014. I turn to the consideration of the second issue which is, whether or not there was compliance with Rule 18(10). In the event that there was no compliance, whether such has become superfluous given the fact that the applicant has taken further steps.

Rule 30(2) of the Uniform Rules provides that:

“An application in terms of sub rule (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) … (c) … …” [16] A further step in the cause is some act which advances the proceedings one stage nearer completion.9 Steps taken in preparation for trial, such as requesting particulars for trial, serving a notice to produce, and convening and attending a pre-trial conference, are further steps in the cause.10 In casu, the applicant filed a notice in terms of rule 35 (14) of the Uniform Rules of Court , calling upon the respondent to produce for inspection the notice in terms of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 referred to in the particulars of claim. Another notice was also filed in terms of rule 36(4) of the Uniform Rules of Court requiring the respondent to make available medical records, or documentary information relevant for the assessment of damages claimed. After the aforementioned notices were filed a second rule 30 notice was filed alleging that the particulars of claim were not in compliant with rule 18(10) of the Uniform Rules of Court. I am of the view that when the second rule 30 notice was filed, the applicant had taken a further step in the cause with the knowledge of irregularity as contemplated in rule 30(2) of the Uniform Rules of Court.

[17]In respect of costs, it is a general rule that costs ordinarily follow the result. The Constitutional Court held in Ferreira v Levin NO and Others11 that:

“The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the

9 Erasmus Superior Court Practice: Volume 2 (Loose-leaf, 2 ed) at D1-354. 10 Ibid. 111996 (2) SA 621 (CC) at 624B-D para 3.

award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer, and the second that the successful party should, as a general rule, have his or her costs. Even this second principle is subject to the first. The second principle is subject to a large number of exceptions where the successful party is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of parties, the conduct of their legal representatives, whether a party achieves technical success only, the nature of the litigants and the nature of the proceedings.”

[18] It clear from the above that there are exceptions to the general rule. A successful party may be deprived of its costs. In casu, the matter was postponed on 09 May 2017 and 06 June 2017. Both postponements were occasioned by the unavailability of the respondent. It was submitted that the respondent is an indigent person who could not be traced by his attorneys of record and this resulted to the postponement of the matter. In light of what have been said immediately above, it is my view that it would be unfair to mulct either party with a costs order regarding the aforementioned postponements.

[19] I accordingly confirm the order I made on 22 February 2019. For ease of reference the order I made was in the following terms:

1. The application is dismissed; 2. The applicant is ordered to pay costs of this application, excluding the costs occasioned by the postponements on 09 May 2017 and 06 June 2017; 3. In respect of the costs occasioned by the postponements on 09 May 2017 and 06 June 2017, each party is ordered to pay its own costs.

______RENQE FY

ACTING JUDGE OF THE HIGH COURT

DATE HEARED: 21 FEBRUARY 2019

DATE OF ORDER: 22 FERUARY 2019

DATE JUDGMENT HANDED DOWN: 11 JUNE 2019

FOR THE APPLICANT: ADVOCATE GOREMUSANDU

INSTRUCTED BY: MESSRS ENZO MEYERS ATTORNEYS

100 HIGH STREET

GRAHAMSTOWN

REF: AF BASSON/j g/MO48

FOR THE RESPONDENT: ADVOCATE S.H MALIWA

INSTRUCTED BY: BB NYANDA ATTORNEYS

12 NELSON MANDELA DRIVE

MTHATHA

C/O CAPS PANGWA & ASSOCIATES

110 HIGH STREET ESKOM BUILDING

GRAHAMSTOWN