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[2020] ZAWCHC 61
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Hill NO and Another v Brown (3069/20) [2020] ZAWCHC 61 (3 July 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 3069/20
In
the matter between
TRACY
HILL N.O.
FIRST
PLAINTIFF
LINDIWE
FLORENCE KAABA N.O.
SECOND
PLAINTIFF
And
MARK
BROWN
DEFENDANT
Coram:
Rogers J
Enrolled:
26 June 2020
Delivered:
3 July 2020 (by email
to the parties and release to SAFLII)
JUDGMENT
Rogers
J
[1]
The plaintiff contends
that the defendant’s delivery of a rule 23(1)(
a
)
notice was an irregular step which should be set aside in terms of
rule 30(1). It is not in dispute that on 15 April 2020 the
plaintiff
served a valid notice of bar in terms of rule 26
[1]
or that the defendant’s rule 23(1)(
a
)
notice was served on the last day of the five-day period specified in
rule 26. The question is whether the service of the rule
23(1)(
a
)
notice was a valid response to the notice of bar.
[2]
The parties sensibly
agreed that I could adjudicate this matter on the papers without oral
argument.
[3]
As applied to a
defendant’s response to a combined summons (which is our
situation), the relevant provisions of the rules
are these:
(a) In terms of rule 19 a
defendant has 10 days from service of the summons to deliver a notice
of intention to defend.
(b) In terms of rule 22(1) he
must file his plea (with or without a claim in reconvention) or
exception (with or without an application
to strike out) within 20
days after serving his notice of intention to defend.
(c) Rule 23(1) permits two
distinct grounds of exception,
viz
that the particulars of
claim are vague and embarrassing or that they lack averments
necessary to sustain an action.
(d) If the defendant wishes to
except on the first of these grounds (the vague and embarrassing
ground), rule 23(1)(
a
) requires him, as a precursor to the
exception, to afford his opponent an opportunity of removing the
cause of complaint within
15 days. The defendant’s notice to
this effect must be served within 10 days of receipt of the combined
summons. (The latter
time-limit was introduced by an amendment to
rule 23(1) which came into force on 22 November 2019, and is shorter
than the period
previously allowed.)
(e) If the plaintiff replies to
the notice and the defendant considers that the reply does not remove
the cause of complaint, the
defendant must file his exception within
10 days of receipt of the plaintiff’s reply. If there is no
reply, the defendant
must file his exception within 15 days from the
date on which such reply was due.
(f) If a defendant fails to
deliver his ‘pleading’ within the time laid down in the
rules, the plaintiff may, in terms
of rule 26, serve a notice
requiring him to deliver his pleading within five days after delivery
of the notice. If the defendant
fails to do so, he is barred and the
case proceeds as an unopposed matter unless the defendant succeeds in
having the bar lifted
in terms of rule 27.
[4]
An exception is a
‘pleading’ (
Haarhoff
v Wakefield
1955 (2)
SA 425
(E);
Tyulu
&
others
v Southern Insurance Association Ltd
1974
(3) SA 727
(E) at 729B-D;
Icebreakers
No.83 (Pty) Ltd v Medi Cross Health Care Group (Pty) Ltd
[2011] ZAKZDHC 15;
2011 (5) SA
130
(KZD) para 2). Like a plea, a properly drawn exception concludes
with a prayer for relief (
Marais
v Steyn & ʼn ander
1975
(3) SA 479
(T) at 483A;
Barclays
National Bank Ltd v Thompson
1989
(1) SA 547
(A) at 552H), typically – in the case of an
exception to particulars of claim – a prayer that the exception
be upheld
with costs and that the particulars of claim be set aside.
[5]
Accordingly, the
‘pleading’ contemplated in rule 26 covers – in the
case of a defendant who has failed to plead
to particulars of claim –
a plea as contemplated in rule 22(1) or an exception as contemplated
in rule 22(1) read with 23(1).
Either of these is a valid response to
the rule 26 notice, and the defendant will not be barred.
[6]
A defendant’s notice
in terms of rule 23(1)(
a
)
affording the plaintiff an opportunity to remove an alleged cause of
complaint is simply that, a notice. It claims no relief.
It does not
call for adjudication. If the plaintiff removes the alleged cause of
complaint, the notice has served its purpose and
receives no further
attention in the case. If the plaintiff does not remove the alleged
cause of complaint but the defendant decides
not to follow up his
notice with an exception, the notice likewise receives no further
attention. If the plaintiff fails to remove
the alleged cause of
complaint and the defendant files an exception, it is the exception,
not the preceding notice, that the court
adjudicates.
[7]
Accordingly, I agree with
Yekiso J’s judgment in
McNally
NO & others v
Codron
& others
[2012] ZAWCHC 17
that
a notice in terms of rule 23(1)(
a
)
is not a pleading (and see also
De
Bruyn v Mile Investment 307 (Pty) Ltd & others
[2017]
ZAGPPHC 286 paras 25-26). The contrary is scarcely arguable.
[8]
If a defendant is to avoid
being barred pursuant to a notice in terms of rule 26, he must file a
‘pleading’, ie a plea
or an exception. A rule 23(1)(
a
)
notice, which is merely a precursor to an exception (which may or may
not be delivered), is not a proper response.
[9]
When regard is had to the
various time-limits contained in the rules, there is nothing
anomalous in this conclusion. The rules require
a defendant promptly
to form a view as to whether the particulars of claim are vague and
embarrassing. Under the amended rule 23(1)(a)
he is given 10 days
from receipt of the particulars of claim to serve his rule 23(1)(
a
)
notice. The period given to the defendant to serve such a notice is
the same as the period given to him to file his notice of
intention
to defend. If he does not deliver a rule 23(1)(
a
)
notice within that period, he has 20 days from the filing of his
notice of intention to defend to deliver his plea or exception,
though in this event an exception would have to be confined to a
contention that the particulars of claim lack the necessary averments
to sustain an action.
[10]
It must be observed that
in relation to a defendant’s response to service of a combined
summons, the reduced time-limit specified
in the recently amended
rule 23(1)(
a
)
for the service of a notice to remove alleged causes of complaint may
be unreasonably short. Previously the rules provided that
a defendant
should serve such a notice within the period allowed for his plea or
exception (ie the pleading subsequent to the particulars
of claim).
Under the amended rule he must deliver the notice within 10 days of
receipt of the combined summons. A defendant also
has 10 days, from
receipt of the combined summons, to obtain legal representation and
deliver a notice of intention to defend.
Since without legal advice a
defendant is unlikely to know whether or not the particulars of claim
are vague and embarrassing,
one would expect the time-limit for
serving such a notice to run from the date on which notice of
intention to defend is served
rather than from the date on which the
defendant receives the combined summons.
[11]
Be that as it may, the
amended rule is unambiguous. In practice, sensible plaintiffs are
unlikely to object to a rule 23(1)(
a
)
notice delivered a few days later than the strict limit imposed by
the amended rule, but for present purposes the important point
is
that the framers of the rules plainly did not intend that a defendant
should have a leisurely period to assess whether or not
particulars
of claim are vague and embarrassing. In the circumstances, a
defendant can hardly complain if, after the expiry of
the 20-day
period allowed for a plea or exception, his opponent delivers a
notice of bar having the effect of making the subsequent
service of
rule 23(1)(
a
)
notice irregular. In such a case, a rule 23(1)(
a
)
served after delivery of the notice of bar would,
ex
hypothesi
, be at least
20 days out of time.
[12]
The court has a discretion
whether or not to set aside an irregular step, and the presence or
absence of prejudice is usually decisive.
In my view, the plaintiff
will clearly be prejudiced if the rule 23(1)(
a
)
notice is allowed to stand. The defendant, as appears from his
attorney’s heads of argument, considers that the notice is
valid, from which it would follow that on the defendant’s view
he would be entitled to file an exception if the plaintiff
fails to
remove the alleged causes of complaint.
[13]
On a proper construction
of the rules, however, the defendant has not filed a proper response
to the notice of bar and should now
be under bar. If the irregularity
of the rule 23(1)(
a
)
notice is confirmed by this court and the notice set aside, the
parties will know where they stand. The defendant, if he wishes
to
oppose the case, will have to apply in terms of rule 27 to have the
bar lifted and will need to show good cause. Whether or
not the
defendant will be able to show good cause is not something on which I
can form an opinion, because I do not know what facts
the defendant
will advance in support of a rule 27 application.
[14]
In the circumstances I
make the following order:
(a) The defendant’s notice,
purportedly in terms of rule 23(1)(
a
), dated 22 April 2020 is
declared to be an irregular step and is set aside.
(b) The defendant must pay the
plaintiff’s costs in the rule 30 application.
___________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Plaintiffs
C
C Bester
Instructed
by
Webber
Wentzel
15
th
Floor, Convention Tower
Heerengracht
Foreshore
Cape
Town
For
Defendant
R
P Gerhold
Gerhold
and Van Wyk Attorneys
Bryanston
c/o
Docex Cape Town
124
Adderley street
401
Constitution House
Cape
Town
[1]
The parties did not deal with the possible
implications of Covid-19 measures.
The defendant delivered
his notice of intention to defend on 2 March 2020. He had twenty
(court) days within which to file a plea
or exception. By virtue of
para 5(
c
) the Covid-19 directions promulgated by the Minister
of Justice and Correctional Services in the
Government Gazette
on
26 March 2020, the running of this 20-day period was suspended as
from midnight on 26 March until 31 March when the said directions
were superseded by new directions, also promulgated in the
Government Gazette
, which omitted the said para 5(
c
).
By my calculation, the 20-day period thus expired on 1 or 2 April
2020, depending on whether one includes or omits the day
of 31 March
in the calculation. Although the notice of bar was dated 2 April
2020, it was only served on 15 April 2020, and was
thus validly
served.