Summary of Judgment

1. Introduction

This judgment concerns an interlocutory procedural application in the Gauteng Local Division, Johannesburg, in which the applicant, Murray & Roberts Construction (Pty) Ltd, sought an order setting aside the respondent’s notice of set down as an irregular proceeding under the Uniform Rules of Court.

The underlying litigation is a damages action instituted by the plaintiff, Tendai Nyamakuti, against Murray & Roberts Construction (Pty) Ltd. After defending the action, Murray & Roberts issued a third party notice joining Waco Africa (Pty) Ltd t/a Form-Scaff as third party. The third party delivered a notice of intention to defend but did not deliver a plea within the prescribed time periods. The plaintiff, frustrated by delays in pleadings, proceeded to obtain a trial date and served a notice of set down for trial.

The procedural history relevant to the application was that, after the plaintiff applied for a trial date, Murray & Roberts delivered a notice in terms of Rule 30 objecting that the step was irregular because pleadings were not closed. Despite this, the plaintiff served and filed a notice of set down on 2 August 2017 enrolling the matter for trial on 24 April 2018. The third party only delivered its plea on 2 November 2017. The present application sought to have the notice of set down set aside.

The general subject-matter of the dispute before the court was therefore whether the plaintiff’s act of procuring a trial date and setting the matter down while third party pleadings were outstanding constituted an irregular step warranting setting aside, and whether any resulting prejudice justified the relief sought.

2. Material Facts

It was common cause that the plaintiff sued the defendant for damages and that the defendant defended the action. It was also common cause that the defendant joined a third party by way of third party notice, and that the third party entered an appearance to defend.

It was not in dispute that the third party failed to deliver its plea within the prescribed time limits. The plaintiff, dissatisfied with the delays and the failure to adhere to time periods for pleadings, applied for a trial date.

It was further common cause that the defendant delivered a notice in terms of Rule 30 contending that the plaintiff’s application for a trial date was irregular because pleadings had not closed. Notwithstanding that objection, the plaintiff served and filed a notice of set down dated 2 August 2017, enrolling the matter for trial on 24 April 2018.

A further objective chronological fact relied on by the court was that the third party only delivered its plea on 2 November 2017, after the notice of set down had already been served.

The defendant asserted that it would be prejudiced if the trial proceeded on the enrolled date because the matter was complicated and involved engineering issues requiring expert investigation and preparation. The plaintiff, by contrast, contended that pleadings between the plaintiff and defendant had closed, that any further steps against the third party were for the defendant to pursue given the lis between them, and that the defendant had ample time (from August 2017 to April 2018) to prepare, including by delivering expert notices timeously in accordance with the rules.

3. Legal Issues

The central legal questions were whether the plaintiff’s procurement of a trial date and service of a notice of set down when third party pleadings were outstanding constituted an irregular step for purposes of the Uniform Rules, and, if so, whether the notice of set down should be set aside on that basis.

The dispute primarily concerned the application of procedural rules to largely common-cause procedural facts, together with an evaluative determination regarding prejudice and whether the court should grant procedural relief that would affect the progress of the trial.

A further issue was the practical procedural consequence of Rule 13(7) regarding third party proceedings, including how the roles of “plaintiff” and “defendant” are to be regarded in relation to third party pleadings, and what that implied for the steps required to close pleadings before trial allocation.

4. Court’s Reasoning

The court approached the matter from the premise that procedural rules exist to facilitate, rather than obstruct, the administration of justice. It endorsed the established principle that the rules exist for the courts, and not the courts for the rules, and that the rules’ object is to secure a fair hearing and the expeditious completion of litigation.

In addressing the third party dimension, the court referred to Rule 13(7), which regulates how the ordinary pleading rules apply in third party proceedings. The rule provides, in substance, that to the extent the third party’s plea relates to the claim of the party issuing the third party notice, that party is regarded as plaintiff and the third party as defendant; and to the extent the third party’s plea relates to the plaintiff’s claim, the third party is regarded as a defendant and the plaintiff must file pleadings as provided for in the rules. This framework was part of the context for determining whether, procedurally, a trial date could properly be sought when the third party had not pleaded.

On the question whether the plaintiff acted irregularly, the court accepted the defendant’s submission that the plaintiff had remedies available to compel the third party to plead, and it concluded that the plaintiff took an irregular step by applying for a trial date before pleadings were closed, thereby breaching the rules. However, the court treated that conclusion as not dispositive of the Rule 30 application, because it considered that procedural breaches do not inevitably result in setting aside steps where doing so would not advance justice.

In that regard, the court relied on the approach articulated in Ncoweni v Bezuidenhout 1927 CPD 130, emphasising that procedural rules are devised to administer justice and not to hamper it, and that a construction that assists the administration of justice should be preferred where possible. The court also relied on Arendsnes Sweefspoor CC v Botha 2013 (3) SA 399 (SCA), where the Supreme Court of Appeal stressed, in the constitutional era, that procedural rules must be interpreted with justice and fairness as considerations of prime importance, while also recognising that rules have statutory force and aim to secure the inexpensive and expeditious completion of litigation.

Applying those principles, the court evaluated whether the defendant would suffer prejudice if the trial proceeded on 24 April 2018. It accepted the plaintiff’s contention that the defendant had been informed of the trial date on 2 August 2017 and therefore had ample time to prepare, including to engage experts and comply with expert-notice timelines. The court was unpersuaded by the defendant’s claim that it could not prepare within the period available, especially given that the summons had been issued as far back as September 2016.

The court also took into account the timing of the Rule 30 application. It noted that it was not clear why the defendant did not prosecute the application immediately after receiving the notice of set down, and it drew an inference, from the application being brought close to the trial date, that it was intended to hamper the course of justice to the plaintiff’s prejudice. While the court stated that disregard of the rules should not be condoned merely because of the defendant’s delay, it held that procedural non-compliance would only be condoned if it did not interfere with the course of justice, and it concluded that granting the relief sought would unjustifiably impede the finalisation of the matter.

In summary, although the court accepted that the plaintiff’s step was procedurally irregular, it exercised a discretion against setting aside the notice of set down because it found no real prejudice to the defendant in proceeding on the allocated trial date, and because the application appeared calculated to delay the litigation.

5. Outcome and Relief

The court dismissed the application to set aside the notice of set down.

The court ordered the applicant (Murray & Roberts Construction (Pty) Ltd) to pay the costs of the application.

Cases Cited

Ncoweni v Bezuidenhout 1927 CPD 130.

Arendsnes Sweefspoor CC v Botha 2013 (3) SA 399 (SCA).

Legislation Cited

No specific statute was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 30.

Uniform Rules of Court, Rule 13(7).

Held

The court held that, although the plaintiff had taken an irregular procedural step by applying for a trial date before the pleadings were closed (given the outstanding third party plea at the time), the applicant had not established prejudice sufficient to justify setting aside the notice of set down. The court further held that the application, brought late in the timeline leading up to trial, appeared designed to delay the proceedings, and that justice and fairness favoured allowing the trial to proceed as enrolled. The application was therefore dismissed with costs.

LEGAL PRINCIPLES

Procedural rules are intended to further the administration of justice, not to frustrate it; courts should interpret and apply the rules with the aim of securing a fair hearing and the expeditious resolution of disputes.

Even where a litigant has taken an irregular step, the setting aside of that step is not automatic; the court must consider whether granting relief would promote justice and fairness, including whether the complaining party has demonstrated prejudice and whether the relief would unduly hamper the progress of litigation.

In third party proceedings, Rule 13(7) frames the procedural relationships for pleading purposes by treating the party issuing the third party notice as plaintiff vis-à-vis the third party (to the extent the third party’s plea relates to that party’s claim), and by treating the third party as a defendant in relation to the plaintiff’s claim to the extent applicable; this informs how pleadings are to be completed and managed procedurally.

A court may refuse procedural relief where the timing and context indicate that the application is likely intended to delay or hamper the course of justice, particularly where the matter has been pending for a substantial period and a trial date has long been known to the parties.