SUMMARY
| This was an interlocutory application made in terms of rule 30A(1) of the Uniform Rules of Superior Court Practice (“the uniform rules of court”) wherein the Minister of Safety and Security (“the Applicant”) sought an order striking out an answering affidavit deposed to by Mzukisi Tyali (“the First Respondent”). |
| The main application was made in terms of the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, 19 of 1988 (“the PIE Act”), wherein the First Respondent was ordered to file her answering affidavit by 23 July 2010. |
| This was an interlocutory application made in terms of rule 30A(1) of the Uniform Rules of Superior Court Practice (“the uniform rules of court”) wherein the Minister of Safety and Security (“the Applicant”) sought an order striking out an answering affidavit deposed to by Mzukisi Tyali (“the First Respondent”). The main application was made in terms of the provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, 19 of 1988 (“the PIE Act”), wherein the First Respondent was ordered to file her answering affidavit by 23 July 2010. The First Respondent filed her answering affidavit (“the first affidavit”) on 26 July 2010 and same was served on the Applicant on 04 August 2010. The first affidavit was not preceded by a notice of intention to oppose. The First Respondent thereafter instructed new attorneys to serve a notice of intention to oppose on the Applicant which was attended to on 14 September 2010. The new attorneys also filed a new answering affidavit two days later (“the second affidavit”). On 21 September 2010, the Applicant wrote a letter to the First Respondent inviting her to “regularise” the fact that an affidavit (being the first affidavit) had already been served on him before the second affidavit. On 22 September the First Respondent’s attorneys explained that they were not aware of the existence nor the filing of the first affidavit and invited the Applicant to ignore “any affidavits not served by their office.” In response to the above, the Applicant, on 06 October 2010, filed a notice in terms of rule 30A(1) calling upon the First Respondent to formally remove the “cause of the complaint” being the filing of a second affidavit by the First Respondent, without her having acquired leave from the court to do so, in contravention of rule 6 of the uniform rules of court. The First Respondent requested again, on 15 October 2010, that the Applicant ignore the first affidavit and respond only to the second affidavit. The Applicant responded by stating that the first affidavit was a “legitimate court document” and could not simply just be “wished away.” On 26 October 2010, the First Respondent filed a notice formally withdrawing the first affidavit. The Applicant then proceeded to file a rule 30A(2) notice in which he persisted with his complaint that the second affidavit was filed in contravention of rule 6 of the uniform rules of court. The Applicant thus applied for an order striking out the second affidavit. The First Respondent opposed the application and argued that the first affidavit had been formally withdrawn and that prior to that, the Applicant had been requested to ignore the first affidavit. The First Respondent further argued that she was not in violation of rule 6 and that no leave from the court was necessary as she had not filed a “further” affidavit and furthermore, that the Applicant could not be prejudiced as he, at all material times, knew to ignore the first affidavit. |
HELD
The court held that it was not aware of any provision which precludes a party from withdrawing an affidavit or which establishes a requirement that before withdrawing an affidavit, a party should first seek leave of the court to withdraw such affidavit.
| The court held that it was not aware of any provision which precludes a party from withdrawing an affidavit or which establishes a requirement that before withdrawing an affidavit, a party should first seek leave of the court to withdraw such affidavit. The court referred to President Versekeringmaatskappy v Moodley in which Hiemstra J held that, amendments involving a withdrawal of an admission should be treated on the same basis as all other amendments, and further noted that: “The withdrawal of an admission is usually more difficult to achieve because (1) it involves a change of front which requires a full explanation to convince the court of the bona fides thereof, and (2) it is more likely to prejudice the other party, who had by the admission been led to believe that he need not prove the relevant fact and might, for that reason, have omitted to gather the necessary evidence.” The court dismissed, with costs, the Applicant’s application to strike out the second affidavit as there was never a point where the Applicant had alleged or argued that the First Respondent had changed tack or withdrawn admissions in the second affidavit. The Applicant, the court further stated, also neglected to set out exactly how the First Respondent contravened rule 6 of the uniform rules of court nor why an order in terms of rule 30A(2) aught to be granted. |
VALUE
It would appear that the judgment suggests that, provided that a new affidavit does not change tack from or withdraw admissions made in a previous affidavit, withdrawing the previous affidavit and filing the new affidavit in its place, without the leave of the court, does not amount to a prima facie contravention of rule 6 of the uniform rules of court.
Written by Phathu Ratshitanga Checked by Andrew Lawrie
