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[2021] ZAWCHC 153
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City of Cape Town v ICT Works (Pty) Ltd (8049/19) [2021] ZAWCHC 153 (11 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NUMBER:
8049/19
In the matter between:
CITY OF CAPE
TOWN
Plaintiff/Applicant
And
ICT WORKS (PTY) LTD
Defendant
/Respondent
JUDGMENT
DELIVERED ELETRONICALLY DATED 11 AUGUST 2021
KUSEVITSKY, J
[1]
The Plaintiff is the Applicant in an application
in terms of Rule 30 of the Uniform Rules of Court, to set aside the
Defendant’s
composite Rules 23 and 30 notice and its related
exception in terms of Rule 23. I will interchangeably refer to the
parties as
either Applicant or Plaintiff or Defendant/Respondent as
the case may be.
[2]
The Plaintiff’s complaint is two fold; its
complaint relates to the
composite
nature of the notice and secondly that in any event, the subsequent
exception does not follow the procedure envisaged, nor the
terms of
the initial notice.
[3]
The Defendant on the other hand contends that a
composite notice is appropriate and that it is not necessary for a
notice of exception
to follow a notice to remove a cause of
complaint,
verbatim
.
[4]
The parties agreed that only the Rule 30
application should proceed and this is the matter that stands to be
adjudicated.
[5]
Since counsel for Defendant is located in
Johannesburg, the parties requested a virtual hearing of the matter.
Unfortunately, due
to technical constraints at the High Court, the
virtual hearing could not take place and I decided that the matter,
which is a
simple one, would be adjudicated on the papers.
Background
[6]
On 10 May 2020, the Plaintiff
issued
summons
against
the
Defendant. The Plaintiff’s claim arises out
of a contract between it and the Defendant pursuant to a tender for
the design,
supply and installation of the Plaintiff’s “
MyCiti
”
bus fare system. The Plaintiff alleges that the Defendant breached
the contract by failing to properly integrate the system
or ensure
that adequate fraud detection components
were
installed,
allowing
operators
to
tamper
with
the
system
and misappropriate more than R 33
million.
[7]
In response to the summons and particulars of
claim, the Defendant on 13 June 2019 delivered a “
notice
to remove cause of complaint in terms of Rule 23
(1) and Rule 30
”
(“
the composite notice
”).
The composite notice stated that the Plaintiff’s particulars of
claim are “
vague and embarrassing or
lack averments which are necessary to sustain an
action, alternatively, are irregular for
lack of
particularity
.”
[8]
Various grounds are set out in the composite
notice. The Plaintiff alleges that the Defendant however did not
distinguish between
the so-called “
vague
and embarrassing
” grounds - grounds
indicating that the particulars lack averments necessary to sustain a
cause of action; and
grounds
upon
which
the
particulars
were
allegedly
“
irregular
for
lack
of particularity
” within the meaning of
Rule
30.
[9]
This led the Plaintiff’s attorneys to
direct an email to the Defendant’s attorneys on 1 July 2019
requesting an extension
of time so that it could discern the exact
nature of the complaints raised. The request for extension was
refused by the Defendant
in an email dated 3 July 2019. In a
subsequent email dated 5 July 2019, the Plaintiff’s attorneys
wrote to the Defendant’s
attorneys requesting them to “
advise
as to which
aspects
of
your
client’s
notice
of
13
June
2019
are
raised
in
terms of Rule 23, and which are raised in
terms of Rule 30
.” The Defendant’s
response was that the “
entire notice
and, particularly pages
6
to
9,
paragraphs
1
to 16 relate
to
both
Rule
23
and
to
Rule
30
”.
[10]
The Plaintiff says the above response “
only
served to exacerbate the confusion
” as
no attempt was made to distinguish between complaints in terms
of
Rule
23 and
complaints
in
terms
of
Rule
30
,
or
to
provide any basis for the complaints in terms of
Rule
30.
[11]
A further email was sent to the Defendant’s
attorneys advising that the complaints raised could not relate to
both Rule 23
and to Rule 30. They maintained that Rules 23 and 30
envisaged entirely different procedures and time limits, and could
not be
‘
entrained simultaneously in
relation to the various complaints.”
They
requested the Defendant to revert as to which procedure related to
the various complaints raised.
[12]
The Defendant’s attorneys responded by
email on 9 July 2019 stating that “
both
forms of relief can be applied for simultaneously, either together or
in the alternative…our client will seek its relief…in
accordance
with
Rule
23
simultaneously
with
Rule
30
”.
The
email
quoted the case of
Persons Listed in Schedule
“A” to the Particulars of Claim vs Discovery Health and
Others
in support of this contention.
[1]
[13]
The Plaintiff contends that
Persons
Listed in Schedule “A”
is not
authority for the “
simultaneous
”
procedure adopted by the Defendant. It argues that whilst Murphy J
acknowledged that the Defendants in that matter had adopted
what they
described as a “
two in one
”
procedure, the appropriateness
of
such
procedure
was
not
considered
by
the
Court,
nor was it endorsed in the
ratio
decidendi
. I agree
with this contention.
[14]
In
any
event,
the
Plaintiff
contends
that
the
practice
in
this
Division
is
that a defendant has
a choice of remedies: it may either bring an application in terms of
Rule 30, or raise an exception in terms
of Rule 23 (1). The Plaintiff
avers that these “
remedies
are distinct and require different adjudication
.”
[15]
The Plaintiff further contends that, even if
Persons Listed in Schedule “A”
is
authority that the procedures in Rules 23 and 30 may be initiated in
a single notice, it cannot be a basis to lump such complaints
together amorphously
to
be
dealt
with
“
simultaneously.
It argues that if
a
single
notice
is
used,
then a bifurcated procedure would be necessary. The origins and basis
of the different complaints would need to be carefully
distinguished
in the initial notice, and the applicable time limits followed. The
Plaintiff avers that the “
distinction is
no mere technicality”
as the two rules
have different requirements in relation to
prejudice.
[16]
In responding to the composite notice, the
Plaintiff avers that it is unable to ascertain, which alleged
complaints arose in terms
of Rule 23; which alleged complaints arose
in terms of Rule 30; the time limits applicable to each;
and the procedure to be followed in each
instance.
[17]
The Plaintiff also points out that, to the extent
that the Defendant seeks to rely on a “
two
in one
” procedure, but does not
distinguish between the various complaints on the basis that “
the
entire notice… Relates to both Rule 23 and to Rule 30
”,
the Defendant was out of time in terms of Rule 30, and no condonation
has been sought by the Defendant in this regard.
[18]
Despite the above, the Defendant ignored the
Plaintiff’s requests to address the confusion and categorise
its complaints,
and instead simply delivered an exception in terms of
Rule 23 (1) on 9 July
2019.
[19]
The Plaintiff contends that not
only
was
the
Defendant’s
exception
in
and
of
itself
irregular
given
the
irregularity of the composite notice, but it also compounded the
confusion by significantly reformulating the
exception/complaints prefigured in the
composite notice.
[20]
Given
the
above,
the
Plaintiff
on
22
July
2019
delivered
a
notice
in
terms
of
Rule
30
(2)
(b)
requiring
the
Defendant
to
remove
various
irregularities
including:
20.1
To
the extent that the Defendant’s complaints were raised in terms
of
Rule
30,
they
were
raised
after
the
expiry
of
the
10
day
time
period in terms of Rule 30 (2)
(b);
20.2
The
Defendant’s exception as delivered differed materially from the
exception prefigured in the composite
notice;
20.3
The
Defendant’s exception failed to specify which complaints are
raised in terms of Rule 30, and which are vague and embarrassing
and/or lack averments necessary to sustain a cause of action, and
accordingly does not comply with Rules 23 (1)
and/or (3) and/or Rules 18 (1) – (4); and
20.4
To
the extent that complaints were raised in terms of Rule 30, the
procedure adopted in the Defendant’s exception does not
accord
with the procedure set out for such complaints in Rule 30.
[21]
It is common cause that no response was delivered
to the Plaintiff’s Rule 30 notice, and no attempt was made to
rectify any
of the complaints raised. This application was launched
on 15 August
2019. No
answering affidavit was delivered in the Rule 30 application, and
there is consequently also no reply.
[22]
In its Heads of
Argument, the Respondent, in reply to the email requesting what
aspects of the notice related to Rule 23(1) and
which to Rule 30,
averred that the entire notice related to Rule 23(1) and to Rule 30.
The
Applicable Law
[23]
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. An exception
that a
pleading is vague and embarrassing strikes at the formulation of the
cause of action and not its legal validity.
[2]
[24]
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.
[25]
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.
[26]
Rule 30
[3]
provides
inter alia
that a party to a cause in which an
irregular step has been taken by the other party may apply to
Court to set it aside.
An application in terms of sub-rule (1) shall
be on notice to all parties specifying particulars of the
irregularity or impropriety
alleged and may be made only if; 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;
and the application is delivered within fifteen days after the expiry
of the second period
mentioned in paragraph (b) of sub-rule (2), i.e.
within 20 day of the notice.
[27]
The Applicant argues
that
Persons Listed
in Schedule “A” to the Particulars of Claim vs Discovery
Health
is not
authority for the proposition that an Applicant who has complaints in
terms of Rule 30, as well as in terms of Rule 23, may
raise them in a
composite
notice.
[28]
It argues that whilst paragraph 6 of the
judgement accepts that a party may proceed by way of
a
so-called
“
two
in
one
”
procedure,
the
issue
as
to
whether
such procedure was appropriate was not raised or
argued, nor was such a procedure endorsed by the Court.
[29]
In any event, they submit that the correct
procedure is that, if a party has complaints on the “
vague
and embarrassing
” ground in terms of
Rule 23, as well as in terms of Rule 30 (e.g. in relation to the
provisions of
Rule
18),
then
the
Defendant
has
a
choice
of
remedies:
he
or
she
may either bring an application in terms of Rule
30 to have the pleading set aside as an irregular step, or raise an
exception in
terms of Rule 23.
[30]
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.
[4]
[31]
It is common cause that Rule 30 applies only to
irregularities of form and not to matters of substance.
[5]
A party is also not obliged to invoke the rule in order to have
proceedings set aside on the ground of irregularity, but may avail
himself of any other remedy available to him under the rules.
[6]
In its heads of argument, the Defendant averred that it was no longer
persisting with the Rule 30 procedures and that the present
application is an exception in terms of Rule 23(1) only.
[7]
I will however be referring to both procedures as initially raised in
the Rule 30(2)(b) notice.
The
appropriateness of the composite notice
[32]
The general issue complained of is that the
composite notice does not distinguish between the so-called
vague
and embarrassing
grounds and grounds upon
which the particulars were allegedly irregular for lack of
particularity within the meaning of Rule 30.
[33]
It is common cause in the practice in this
division, that a composite notice is allowed to be filed in terms of
Rule 23 and Rule
30. Such a composite notice however has to
specifically state which items complained of fall foul under a
vague
and embarrassing
complaint, or a complaint
that a pleading lacks averments to sustain an action or defence as
the case may be. It is trite that
the remedies in relation to Rule 23
and Rule 30 are based on separate and distinct complaints requiring
different adjudication.
[8]
The crucial distinction between Rule 28 and Rule 30 are: (a) an
exception that a pleading is vague and embarrassing may only
be taken when the vagueness and embarrassment strikes at the root of
the cause of action as pleaded; whereas (b) Rule 30 may be
invoked to
strike out the claim pleaded when individual averments do not contain
sufficient particularity; it is not necessary
that the failure
to plead material facts goes to the root of the cause of action.
[9]
[34]
If a party complains that a pleading is vague and
embarrassing, the party complaining must give notice to the other to
remove the
cause of the complaint. This is so because a
complaint that a pleading is vague and embarrassing usually goes to
the whole
of the cause of action and it must be demonstrated by the
excipient to be vague which a party so excepting would be embarrassed
to plead to. It is also common cause that both rules delineate
different time periods within which action to remedy the complaint,
should be taken.
[35]
It is trite that exception should be dealt with
sensibly and not in an overly technical manner.
[10]
Rule 23(3) specifically provides that wherever an exception is taken
to any pleading, the grounds upon which the exception is founded
shall be clearly and concisely stated. This sub-rule obliges the
excipient to state in clear an concise terms the particulars upon
which his exception is based and it is not sufficient merely to state
that the summons discloses no cause of action or is
vague and
embarrassing.
[11]
An excipient is also bound to the grounds of exception set out in his
notice of exception and will not be permitted at the hearing
of the
exception to rely on different grounds or to raise a difference
exception.
[12]
[36]
I therefore cannot agree with the Respondent’s
contention that an ‘entire notice relates to both Rule 23 and
Rule 30
for the reasons advanced above. Such a composite notice, or
two-in-one procedure must clearly comply with the requisite
requirements
and time periods applicable to the relevant rules. In
any event, since the composite notice is simply a notice, the
subsequent
exception in terms of Rule 23(1) having been filed, and
the complaint relating to Rule 30
[13]
abandoned, I will now turn my attention to the complaints
raised in Plaintiff’s Rule 30(2)(b) application.
First and
Fourth complaints
[37]
The first complaint relates to the time periods,
with the Defendant’s notice in terms of Rule 23 (1) and Rule
(30), the composite
notice having being delivered on 13 June 2019 and
the Defendant’s exception delivered on 9 July 2019.
[38]
Insofar as the Defendant’s complaints were
raised in terms of Rule 30, it is clear they were raised after the
expiry of the
10-day period in terms of Rule 30(2)(b). There are
several cases where our courts have held that an exception is a
pleading and
as such, a notice of bar is necessary before a Plaintiff
can object to an exception on the grounds that it was filed out of
time.
[14]
I am not aware that the Defendant has been placed on bar, accordingly
this complaint has no merit. In any event, since the Defendant
has
abandoned this complaint, this enquiry is academic.
Second and
remaining complaints
[39]
The second complaint is that the exception
differs from the exception prefigured in the composite notice and
does not comply with
Rules 23 (1) or 23(3) or Rules 18(1) to (4). It
is apparent from the grounds raised in the exception, that it is
couched
or formulated in a way which is different to the formulation
described in the composite notice. The complaint therefore is that
the framework, structure and formulation differs from the composite
notice.
[40]
An exception, being a pleading, must be clear and
concise and contain sufficient particularity in order to inform a
party of the
hindrance complained of. Generally, both parties would
have an idea about the nature or substance of the complaint. The
Plaintiff
knows and understands its cause of action. Here, the
complaint by the Plaintiff is not so much that it is unaware of the
substance
of the complaint, but rather by its formulation or the
manner in which it is pleaded. I am not of the view that this
argument
has merit. I deal with some of the complaints raised
in relation hereto.
[41]
The Plaintiff complains that two grounds of the
composite notice are not contained in the exception. I am of the view
that the exclusion
of two grounds in the exception as raised in the
initial composite notice is not prejudicial to the Plaintiff. This
however would
have been a different case if the contrary had been the
case.
[42]
The Plaintiff also complains about
contractual clauses referred to in the Defendants exception not
appearing in the extract attached
to the particulars of claim, yet
fail to indicate which clauses they are and what paragraphs are being
referred to. Paragraph 2.2.7
avers that paragraph 6.1 of the
Defendant’s exception Is not referred to in the composite
notice. Paragraph 6.1 cannot be
read in isolation. Paragraph 6 and
the sub paragraphs thereof refers to mediation and the allegation
that the Plaintiff failed
to meet a pre-condition under the contract
to institute proceedings. It is apparent that the composite notice
refers an allegation
that the Plaintiff failed to plead material
facts to support a claim which is pre-condition to claiming costs. It
is trite that
a party is required to plead in a manner that is a
clear and concise statement of the material facts of the matter. It
is not required
that
all
of the facts relied on must be pleaded, but must be done in a manner
in which a party is able to know what case to meet. In
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
[15]
,
the Appellate division held that a cause of action does not
comprise every piece of evidence which is necessary to prove
each
fact, but rather every fact which is necessary to be proved.
[43]
With regard to paragraphs 2.2.8 and 2.2.9, the
Plaintiff complains that the exception raised has not been referred
to in the Defendants
composite notice alternatively that it is a
reformulation of grounds in the composite notice. In my view, as long
as the substance
of the complaint is apparent, it matters not if the
formulation or structure of the complaint has been changed.
[44]
Given the above, I am of the view that the
Defendant’s exception in terms of Rule 23(1) contains
sufficient particularity
and averments in order for the Plaintiff to
remedy the deficiencies as raised therein and does not constitute an
irregular step
as contemplated.
[45]
In the circumstances, the Plaintiff’s
notice in terms of Rule 30 (2)(b) is dismissed with costs.
ORDER
In the
result, the Plaintiff’s application in terms of Rule 30(2)(b)
is dismissed with costs.
DS
KUSEVITSKY
Judge of the
Western Cape High Court, Cape Town
Counsel for Applicant:
Advocate Mark Greig
Instructed by: Webber
Wentzel
Counsel for Respondent:
Advocate Bruce Berman
Instructed by: LNP
Attorneys
[1]
Persons
Listed in Schedule “A” to the Particulars of Claim vs
Discovery Health [2009] 2 All SA 479 (T).
[2]
Trope v South
African Reserve Bank 1993 (3) SA 264 (A) at 269I
[3]
Erasmus: Superior Court Practice
2
nd
ed. pD1-351
[4]
Tracy Hill
N.O and one other v Mark Brown, Case 3069/20 WCHC 3 July 2020 at
para 6
[5]
Singh v
Vorkel
1947 (3) SA 400
(C) at 406
[6]
Erasmus,
Superior Court Practice D1-352;
[7]
It avers the notice refers to
Rule 30 in the heading, the body of the notice is appropriate to
Rule 23(1)
[8]
Absa Bank Ltd
v Boksburg Transitional Local Council
1997 (2) SA 415
(W) at 418E-H
[9]
Jowell v
Bramwell-Jones And Another
1998 (1) SA 836
(W) at 902F-G
[10]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) at 465 H.
[11]
Sydney Clow &
Co. Ltd v Munnik
1965 (1) SA 626
(A) at 6343G; Erasmus at D1-309
[12]
Inkin v
Borehole Drillers
1949 (2) SA 366
(A) at 373
[13]
In the
composite notice
[14]
Felix and
Another v Nortier NO and others
1994 (4) SA 502
(SEC) at 506 E
[15]
1922 AD 16
at
23 quoted in Evins v Shield Insurance Co. Ltd
1980 (2) SA 814
(A) at
838 E-F