Moraba Stephen Ramusi v Minister of Justice and Correctional Services and Another

The applicant, a former Court Manager at Bizana Magistrates' Court, resigned in August 2021. When his resignation benefits (leave gratuity and pension) were not paid, he brought an urgent application in August 2022 seeking payment. The first respondent had withheld benefits pending investigation into alleged financial misconduct involving unauthorized use of state vehicles, forgery, and irregular accommodation bookings, allegedly causing loss of R864,748.94. On 25 October 2022, Majiki J granted an order by agreement partially settling the dispute, directing payment of leave gratuity and part of pension benefits, but authorizing the second respondent to withhold R864,748.94 pending a counter-application by the first respondent. The first respondent was directed to file its counter-application within 30 days but failed to do so. The applicant then sought to have the withheld amount released and interest paid on his leave gratuity. He filed a document titled "notice of set down" dated 21 August 2023 setting out new relief, rather than properly amending his notice of motion or filing supplementary papers.

• Whether the applicant properly instituted proceedings for the relief sought after the partial settlement of the original application
• Whether a 'notice of set down' can substitute for a proper notice of motion and founding affidavit in application proceedings
• Whether the court can grant relief not properly foreshadowed in a notice of motion as 'further or alternative relief'
• Whether the respondents were given proper notice of the evolved cause of action and opportunity to oppose
• The proper application of Uniform Rule 6(5) governing application proceedings

The application was struck from the roll with costs (excluding costs reserved on 25 October 2022).

Where an application has been partially settled by court order and new issues or relief arise, the applicant must properly amend the notice of motion and file supplementary papers to clearly set out the evolved cause of action and give respondents proper notice and opportunity to oppose in accordance with Rule 6(5) of the Uniform Rules. A notice of set down, which is merely a document informing parties of the hearing date, cannot substitute for a proper notice of motion and founding affidavit. Relief not properly foreshadowed in a notice of motion and founded on facts set out in a founding affidavit cannot be granted as 'further or alternative relief'. The provisions of Rule 6(5) governing application proceedings are peremptory and must be complied with to ensure parties receive proper notice and opportunity to respond, which is a cornerstone of the justice system.

The court observed that the first respondent's failure to file its counter-application would not bar the court from determining a properly constituted main application, as the counter-application has a life of its own. The court also noted that once a court order substantially settles a dispute in part, new rights and obligations are created for the parties and any subsequent counter-application could no longer relate to the relief initially sought. The court remarked that it is in the founding affidavit, not the replying affidavit, that an applicant must disclose facts making out the case for relief sought. While acknowledging the principle that rules of court should facilitate rather than hinder access to justice, the court emphasized that parties and their legal representatives have a duty to assiduously observe the Rules of Court as an important element in the machinery for the administration of justice.

This case reinforces the fundamental importance of strict compliance with the Uniform Rules governing application proceedings in South African courts, particularly Rule 6(5). It clarifies that where an application is partially settled by court order and new issues arise, a litigant cannot simply file a notice of set down setting out new relief, but must properly amend the notice of motion and file supplementary papers giving respondents proper notice and opportunity to respond. The judgment emphasizes that while courts have discretion to apply procedural rules flexibly in the interests of justice, this does not excuse wholesale disregard of fundamental procedural requirements. The case also illustrates the principle that new relief must be clearly indicated in the notice of motion and founding affidavit, not merely in a replying affidavit. It serves as a warning against procedural shortcuts and confirms that proper notice to all parties, including organs of state, remains the cornerstone of the justice system even where parties may have chosen not to actively oppose proceedings.