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[2010] ZAWCHC 460
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City of Cape Town v Ruslamere Trading (Pty) Ltd (21852/2009) [2010] ZAWCHC 460 (6 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 21852/2009
In
the matter between:
THE
CITY OF CAPE TOWN
….......................................................................
Applicant
and
RUSLAMERE
TRADING (PROPRIETARY) LIMITED
…...............................
Respondent
JUDGMENT
HANDED DOWN ON 6 SEPTEMBER 2010
1.
This is an interlocutory application to set aside a notice of
objection (to a notice of intention to amend) (as well as an
application
for condonation for the non-compliance with the time
period prescribed by Uniform Rule of Court 30(2)(c)), where the
litigants
were, procedurally, literally at cross-purposes.
2.
The
procedural history of the matter is as follows:
(a)
On 16 October 2009 the plaintiff issued summons claiming R512 023,16
in respect of municipal services. On 13 November 2009 the
defendant
delivered an objection. The plaintiff applied for summary judgment.
On 2 December 2009 the defendant delivered its opposing
affidavit.
Summary judgment was refused and the defendant was granted leave to
file its plea.
(b)
On 15 February 2010 the plaintiff served notice in terms of Uniform
Rule of Court 28 of its intention to amend its particulars
of claim.
(c)
On 26 February 2010 the defendant served a notice of objection to the
proposed amendment.
(d)
On 2 March 2010 the plaintiff's attorneys addressed a letter to the
defendant's attorneys giving the defendant notice, as contemplated
in
Rule 30(2)(b),
1
that its notice of objection did not comply with the Rules of Court
and afforded it 10 days to remove the cause of complaint. The
defendant had to respond on or before 16 March 2010 and it did not do
so.
(e)
The plaintiff then launched an application in terms of Rule 30 to
have the defendant's notice of objection dated 26 February
2010 set
aside as constituting an irregular step contemplated by Rule 30 of
the Uniform Rules of Court.
3.
This application was vigorously opposed and counsel, equally
vigorously, debated before me the parties' respective positions.
The
central dispute was factual. The defendant's attorneys denied having
received the notice of 2 March 2010. The plaintiff's attorneys,
on
the other hand, contended that they had given written notice it by
way of facsimile. Two issues arose from this - was it permissible
to
have given notice by way of facsimile, and if it was, the question
arose whether it was indeed sent, or received.
4.
Though it was suggested that Rule 4(12)
2
would
serve as a bar to the suggestion that the letter may be dispatched by
facsimile, I am of the view that it is clear that the
furnishing of
the facsimile numbers in the notice of appointment as attorneys of
record was also an invitation to accept service
of notices by way of
facsimile. This, I understand, takes place every day as between
attorneys. Had the notice been dispatched,
addressed to the active
facsimile number, I have little doubt that no objection would have
been received to the manner in which
notice was given, and I, for
one, would not have entertained such objection. Mr Schreuder, in
argument, all but conceded that it
was an everyday occurrence that
attorneys would serve notices by way of facsimile. It must also be
said that the defendant's attorneys
invited, by appending the
facsimile number to their notice, service on them by way of
facsimile.
5.
Moreover, I am of the view that rule 30(2)(b) does not require
service of the notice, it merely requires
"written
notice"
to
be given. I would, accordingly, have been prepared to grant
condonation for the service of the notice on 2 March 2010 by way
of
facsimile.
6.
The resolution of the factual issue, namely what had happened to the
faxed notice only became apparent during argument and only
after I
had addressed some questions to counsel. The facsimile number used
was one that appeared on the notice of appointment as
attorneys of
record. On this notice appeared two facsimile numbers. The
plaintiff's attorney chose to use the one to send the notice
on 2
March 2010. Unfortunately, unbeknown to him, that number was no
longer in use. He dispatched the facsimile and received confirmation
of delivery. The plaintiff's attorney, accordingly, was under the
erroneous impression that his notice had been delivered to the
defendant's attorneys. The defendant's attorney, of course, oblivious
to the notice, did not respond thereto. Ultimately this resulted
in
the launching of the Rule 30 proceedings which served before me. It
was only after the application had been served on 1 May
2010 that the
plaintiffs attorneys were informed that the defendant's attorneys had
not received the notice of 2 March 2010. The
non-receipt of the
notice by the defendant's attorneys was not as a result of the
dispatch thereof by facsimile, which, as I have
already stated, was
invited, but by virtue of the fact that an incorrect number was
furnished by the defendant's attorneys.
7.
The defendant proposed, immediately prior to the hearing, that it
would deliver a notice of withdrawal and substitution of its
notice
of objection by Friday, 28 May 2010,
"which
will provide for the delivery of a notice of objection, setting out
the grounds for the objection".
8.
In the circumstances this seems to me to be a sensible suggestion.
9.
I have little doubt that had the defendant received the notice in
terms of Rule 30(2)(a) and had it not responded, the plaintiff
was
perfectly entitled to bring its application in terms of Rule 30 and
that a proper case has been made out for the granting of
the relief
therein claimed. The notice of objection did not specify, as it was
required to, the nature of the objection taken.
10.
Given the facts set out above, it seems to me that it would be
inappropriate to grant such relief. The necessary prerequisite
to the
application, namely the service of a notice in terms of Rule 30(2)(a)
did not come to the notice of the defendant, also
due to a mistake on
its part.
11.
It is clear that due to an unfortunate confluence of circumstances
the defendant did not respond to the Rule 30(2)(a) notice,
and the
plaintiff thereafter, as it was entitled to, launched its application
in terms of Rule 30.
12.
In the premises it would seem to me that justice would be done by the
granting of an order as was proposed by the defendant's
attorney. At
the hearing both Mr Schreuder and Mr Jansen de Villiers appeared to
accept that this would be the most expedient manner
of dealing with
the application.
13.
Having given careful consideration to the issue of costs, and the
circumstances which gave rise to the applicant bringing this
application, I am of the view that each party should pay its own
costs.
14.
In the premises I make the following order:
(a)
The defendant is ordered to deliver its notice of withdrawal and
substitution of its notice of objection by not later than Friday,
17
September 2010.
(b)
Each party is ordered to pay its own costs.
S
Oliver, AJ
1
"(2)
An application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity
or impropriety
alleged, and may be made only if-
(a)
the
applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
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;
(e)
the application is delivered within fifteen days after the expiry of
the second period mentioned in paragraph (b) of subrule
(2)."
2
"Service
shall be effected by delivering to the person to be served one copy
of the process or citation to be served and
one copy of the
translation (if any) thereof in accordance with the provisions of
this Rule."