MEC for Helth, Eatern Cape Provincial Government and Another v Marasha obo Marasha (2301/2016) [2025] ZAECMHC 81 (26 August 2025)

Case Note

MEC for Health, Eastern Cape Provincial Government and Another v Marasha (2301/2016) [2025] ZAECMHC ___; 26 August 2025

Reportability

This judgment is reportable because it clarifies the circumstances in which a defendant whose defence has been struck out may still invoke Uniform Rule 21 to demand further particulars, and it stresses the constitutional dimension of litigants’ rights of access to courts under section 34. The decision delivers important guidance on the peremptory nature of Rule 21(2), the limits of interlocutory relief once a party’s plea has been struck out, and the punitive costs consequences flowing from dilatory conduct by organs of state. Owing to the frequency with which state departments resist claims for contractual or delictual damages by relying on procedural objections, the judgment has wide practical as well as doctrinal significance.

The court also expounds on the meaning of “delivery” in Rule 1, confirms that service without filing is insufficient, and re-examines the content of “strict necessity” in Rule 21(2). These are matters of recurring importance across the superior courts, warranting publication.

Finally, the ruling underscores judicial intolerance of abuse of process by state litigants, aligning with Constitutional Court authority on the duty of public officials to assist the courts in upholding legality. This constitutional dimension adds to its precedential weight and renders the judgment of general public importance.

Cases Cited

Thompson v Barclays Bank DCO 1969 (2) SA 160 (W)
Schmidt Plant Hire (Pty) Ltd v Pedelli 1990 (1) SA 398 (D)
Hardy v Hardy 1961 (1) SA 643 (W)
PJ v HJ (A55/2022, Full Bench Free State, 10 November 2022) (unreported)
Swart v De Beer 1989 (3) SA 622 (E)
Shalala v Klerksdorp Town Council and Another 1969 (1) SA 582 (T)
Schierhout v Minister of Justice 1926 AD 99
African Product (Pty) Ltd v AIG South African Ltd 2009 (3) SA 473 (SCA)
National Credit Regulator v Opperman and Others 2013 (2) SA 1 (CC)
Kilburn v Tuning (Pty) Ltd 2015 (6) SA 244 (SCA)
Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC)
South African Transport and Allied Workers Union v Garvas and Others 2013 (1) SA 83; 2012 (8) BCLR 840 (CC)
Ndaba v Ndaba 2017 (1) SA 342 (SCA)
African Development Bank v TN 2019 (2) SA 437 (GP)
Social Justice Coalition v Minister of Police 2022 (10) BCLR 1267 (CC)
DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA)
Minister of Safety and Security v Slabbert 2010 (2) All SA 474 (SCA)
Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A)
Van Rensburg v Condoprops 42 (Pty) Ltd 2009 (6) SA 539 (E)
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
Wilson v Die Afrikaans Pers Publikasies (Edms) Bpk 1971 (3) SA 455 (T)
Kalil NO and Others v Mangaung Metropolitan Municipality and Others 2014 (5) SA 123 (SCA)
Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng 2013 (5) SA 24 (SCA)

Legislation Cited

Constitution of the Republic of South Africa, 1996 – section 34
Right of Appearance in Courts Act 62 of 1995
(No other statutory enactments were substantively applied beyond the Uniform Rules.)

Rules of Court Cited

Uniform Rules of Court: Rules 1, 18, 21, 22, 26, 29, 30A, 35(14)

HEADNOTE

Summary

The Eastern Cape High Court dismissed an interlocutory application by the MEC for Health and the Superintendent-General for Health, Eastern Cape. The applicants sought an order striking out the respondent’s claim because she allegedly failed to supply further particulars requested after their defence had already been struck out.

Acting Judge Zono held that the applicants had neither delivered a valid request for particulars in terms of Rule 21(2) nor shown that any particulars were “strictly necessary” to prepare for trial after their plea had been removed. Consequently, the purported request was a nullity and could not ground relief under Rule 21(4).

The court emphasised the peremptory nature of Rule 21, reaffirmed the meaning of “delivery” as both service and filing, and denounced the applicants’ dilatory tactics. The application was dismissed with punitive costs on the attorney-and-client scale.

Key Issues

Whether a party whose plea has been struck out may still invoke Rule 21 to compel further particulars from its opponent.

Whether mere service, without filing, satisfies the requirement of “delivery” under the Uniform Rules.

The scope of the phrase “strictly necessary” in Rule 21(2) and its application when no defence remains.

The appropriateness of punitive costs where an organ of state abuses interlocutory procedure to delay finalisation of claims.

Held

The court held that once a defence has been struck out there is no longer a “case” for the defendant to prepare, rendering any request for further particulars unnecessary and legally impermissible.

Service without filing is inadequate; absent proper delivery no entitlement to relief under Rule 21(4) arises.

Rule 21(2) is framed in peremptory terms; non-compliance renders the ensuing steps a nullity.

The applicants’ conduct was dilatory, vexatious and an abuse of the process, warranting punitive costs.

THE FACTS

The respondent instituted action in July 2016 for payment of salary and benefits due to her as Deputy Director: Nursing at Dr Malizo Mpehle Hospital. The applicants entered a plea comprising bare denials but failed to comply with discovery obligations under Rule 35(14). On 6 November 2018 the court declared them in contempt of an earlier compulsory order, struck out their defence and granted judgment in favour of the respondent on the merits, leaving quantum outstanding.

Despite having no extant plea, the applicants served (but did not file) a notice on 14 November 2024 purporting to demand further particulars from the respondent to “prepare for trial”. When the respondent ignored the demand, the applicants served a Rule 30A notice alleging irregularity and thereafter launched the present interlocutory application seeking to strike out the respondent’s entire claim with costs.

The respondent opposed, asserting that the applicants were disentitled to particulars because their defence had been struck out, the request was not delivered, and any particulars sought were not strictly necessary. The record contained no copy of either the request or the Rule 30A notice.

THE ISSUES

The court had to decide first whether the applicants had complied with the formal requirements of Rule 21(2) so as to become entitled to an order striking out the respondent’s claim. Second, it had to determine whether, substantively, a party whose defence has been struck out can demand further particulars for trial preparation where no defence remains. Third, it needed to consider the proper costs order in light of the applicants’ conduct.

ANALYSIS

Acting Judge Zono began by rehearsing the wording of Rules 1, 18 and 21. He stressed that “delivery” entails both service on all parties and filing with the registrar; failing either limb means the document is not delivered. Because the applicants never filed the request, there was non-compliance, and the request was a nullity.

The court then examined the purpose of further particulars: to avoid trial by ambush and enable a party to prepare its existing case. Drawing on Thompson v Barclays Bank and Hardy v Hardy, the court noted that bare denials cannot found a legitimate call for particulars; still less can a defendant deprived of any plea demand detail. Without a pleaded defence, there is nothing to prepare, so the test of “strict necessity” in Rule 21(2) cannot be met.

The judge emphasised the peremptory language of the rule, citing Shalala v Klerksdorp Town Council and Schierhout v Minister of Justice. Non-compliance with a peremptory requirement yields nullity, not a mere irregularity. He rejected the applicants’ submissions that pleadings had closed, invoking authorities on litis contestatio and noting that once the defence was struck out the matter became undefended. Accordingly, the applicants had no standing to compel particulars or to seek the drastic remedy of striking out the claim.

Finally, the judgment deplored the applicants’ repeated postponements and procedural skirmishes, relying on Constitutional Court dicta in Social Justice Coalition v Minister of Police and Gauteng Gambling Board v MEC. Such conduct undermines section 34 rights and clogs court rolls.

REMEDY

The application was dismissed in its entirety. The first applicant (the MEC) was ordered to pay the respondent’s costs on the punitive attorney-and-client scale. The court considered this necessary to mark its disapproval of the abusive litigation strategy and to deter similar future conduct by state litigants.

LEGAL PRINCIPLES

A request for further particulars under Rule 21(2) must be both served and filed; service alone does not constitute delivery as defined in Rule 1.

Rule 21(2) is peremptory; failure to comply renders any subsequent application under Rule 21(4) a nullity.

Further particulars are available only where they are “strictly necessary” to prepare an existing pleaded case. A defendant whose plea has been struck out cannot establish such necessity and therefore lacks entitlement to particulars.

Courts will not grant drastic relief such as striking out a claim without previous recourse to less invasive remedies, especially where the applicant is itself in default.

State litigants have a constitutional obligation to assist, not obstruct, the courts. Where their conduct is dilatory or abusive, punitive costs are an appropriate sanction.

These principles reaffirm the constitutional imperative of efficient, fair and inexpensive litigation and the strict observance of procedural rules designed to achieve that goal.