Corporate Accountability and Human Rights: Aligning South African Business Practices with Constitutional Values
March 4, 2023
Litigation
Case Focus: Rule 30 Proceedings – A Review of Afrocentric Projects And Services (Pty) Ltd T/A Innovative Distribution V State Information Technology Agency (SITA) SOC Ltd And Others [2023] ZACC 2
Rule 30 of the Uniform Rules which governs proceedings in our High Courts, provides for a party in a matter in which an irregular step has been taken by any other party to apply to court to set it aside. Any application made by a party in terms of sub-rule 1 must be on notice, and must specify particulars of the irregularity or impropriety alleged.
The launching of the application is subject to certain caveats, namely
- the applicant has not himself taken a further step in the cause with knowledge of the irregularity;
- the applicant has, within ten days of becoming aware of the step, by written notice afforded his opponent an opportunity of removing the cause of complaint within ten days;
- the application is delivered within fifteen days after the expiry of the second period of 10 days mentioned above.
If at the hearing of such application the court is of the opinion that the proceeding or step is irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as to it seems meet.
Until a party has complied with any order of court made against him in terms of this rule, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.
Rule 30(3) contemplates a two-stage process. A court must first satisfy itself that the proceeding/step is irregular or improper. If it is so satisfied, it has the wide powers to set the proceeding aside in its entirety or in part, grant leave to amend or make any order as it deems fit.
Notwithstanding the wide, discretionary powers of the court in Rule 30 proceedings, in the matter of Afrocentrics Projects and Services (Pty) Ltd T/A Innovative Distribution V State Information Technology Agency (Sita) Soc Ltd And Others, the Constitutional Court drove home the fact that court orders granted in these proceedings must provide certainty and finality. In this matter, the Constitution Court dealt with the interpretation and application of Rule 30 proceedings, and in particular the competency of the judgment granted in the High Court.
The first and second respondent concluded a procurement agreement for the procuring of information and communications technology (ICT) software for organs of state (the “SITA agreement”). The third respondent was appointed as a fulfilment agent, with its function being to assist organs of state with their administration, orders and payments. In order for the applicant to have access to the relevant information in terms of the SITA agreement, a Partner agreement was entered into between the applicant and the second respondent.
The second respondent terminated both the fulfilment agent agreement and the Partner agreement with the applicant. The applicant subsequently launched a review application to the High Court seeking an order setting aside the termination of these agreements.
In response to the main application, the second respondent gave the applicant written notice for the applicant to comply with rule 30(2) and rule 30A (1). The causes of complaint against the application were as follows:
In response to the main application, the second respondent gave the applicant written notice for the applicant to comply with rule 30(2) and rule 30A (1). The causes of complaint against the application were as follows:
- The relief sought by the applicant is contradictory and mutually destructive.
- The applicant’s challenge to the validity of the first respondent’s procurement mandate is baseless.
- The relief sought by the applicant under rule 53 of the Rules is not competent under the circumstances.
- The declaratory relief that the applicant seeks is incompetent.
- The applicant’s claim for damages is irregular.
The applicant failed to remove the causes of complaint and the second respondent consequently brought interlocutory applications in terms of rules 30(1), 30A and 6(11) to have these aspects of the applicant’s main application set aside for allegedly being irregular and non-compliant with the Rules.
Ultimately the High Court found that the applicant’s main application was irregular and improper. The applicant applied to the High Court for leave to appeal against the judgment but this application was dismissed with costs.
The foundation of the applicant’s challenge to the High Court judgment was that the intention of the Court was clearly to set aside the main application by way of the rule 30 order, as the Court had adjudicated on matters of substance in the course of dealing with the rule 30 application.
The second respondent conceded that the High Court did not properly deal with the rule 30 application in that, despite having found that the second respondent had proved it would be prejudiced in the further conduct of litigation if the irregularities in the main application were not removed, it failed to set aside the application. The second respondent requested that the matter be remitted to the High Court for the sole purpose of the High Court dealing with the rule 30 application and making an appropriate order. It urged the Constitutional Court not to deal with the merits of the application, as that would be premature.
The issue before the Constitutional Court to be determined was whether the High Court had made a competent order.
In dealing with the aforesaid issue the Court referred to Section 34 of the Constitution, namely a party’s right of access to courts equates to having a justiciable dispute decided by a court. The Court held that an order granted by a Court gives insight into the reasoning of the Court, how it dealt with the different and often competing submissions before it, and why it came to a particular conclusion. However, it is ultimately the order of the court that brings finality to the proceedings.
The High Court order was found to be ambiguous and incomplete, merely stating that the proceedings are irregular, but not stating whether there are set aside, whether the party in default is given leave to amend, etc. The parties are therefore left in a state of uncertainty as to the status of the matter.
Accordingly, the Constitutional Court held that the High Court did not make an order in the terms that rule 30 contemplates. A proper determination of the rule 30 application is required and, in the circumstances the proper remedy is to grant the applicant leave to appeal and to refer the matter to the High Court for it to consider the rule 30 application de novo.
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