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[2010] ZAGPPHC 196
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Bindco (Pty) Limited and Others v Technologies Acceptances (Pty) Ltd (40187/2009) [2010] ZAGPPHC 196 (19 October 2010)
NOT
REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
no: 40187/2009
DATE:
19 /10/2010
IN THE
MATTER OF:
BINDCO
(PTY)
LIMITED
...........................................................
FIRST
APPLICANT
GERLEZA
BELEGGING (PTY) LIMITED
...............................
SECOND
APPLICANT
JGT
VERMAAK
.........................................................................
THIRD
APPLICANT
NEDINE
VERMAAK
…............................................................
.
FOURTH APPLICANT
AND
TECHNOLOGIES
ACCEPTANCES (PTY) LTD
…..............
RESPONDENT
JUDGMENT
BAM,
AJ
[1]
The
applicants are the defendants in the main claim in this matter and
the respondent is the plaintiff. I will refer to the parties
as in
the main claim.
[2] On
3 July 2009 the plaintiff issued a summons against the defendants.
The summons consisted of the usual formalities and an
annexure marked
as annexure “A” and Particulars of Claim. Annexure “A”
consists of 25 pages. To annexure
“A” is attached a set
of documents marked “B-G” consisting of a further 22
pages. Both the summons and
annexure “A” are signed by J
Motobe Incorporated, purportedly the plaintiff’s attorneys.
[3] On 28 July 2009 the
defendants filed their notice of intention to defend.
[4] The
next document filed is entitled “Declaration” and signed
by counsel and the attorneys of the plaintiff. That
document
consists of 33 pages.
[5] The
two documents, the “particulars of claim” and the
“declaration”, seems to have been exactly the
same, save
for a few minor aspects.
[6] The
respondents filed their plea on 8 September 2009. On this document
it is formally stated that it is a plea to the plaintiff’s
particulars of claim. It is common cause that this document was a
plea filed in answer to plaintiffs particulars of claim annexed
to
the summons issued on 3 July 2009.
[7] The
plaintiff thereafter filed a document entitled “Kennisgewing
van belet”, a notice of bar which was signed on
16 March 2010,
in which defendants were notified and required to plea to plaintiffs’
“Declaration” within five
days, to avoid a notice of bar.
[8] On
the 18
th
of March a document entitled “Notice in terms of Rule 30”
was filed by the defendants objecting to the irregular filing
of the
notice of bar
“under circumstances
where the defendants have already pleaded to the plaintiff’s
combined summons and particulars of
claim.”
This document was followed up by a notice filed by the applicant
opposing the application in terms of Rule 30.
[9] The
issue in this application is crisp. It depends upon the question
whether applicants’ summons together with the particulars
of
claim constitute a combined summons as envisaged by Rule 17(3) of the
Rules of Court. If it is a combined summons the defendants’
motion in terms of Rule 30 should succeed and this court should
consequently find that the filing of the Plaintiff’s notice
of
bar was an irregular step.
[1
0] To
my mind the plaintiffs’ intention with the suing of the summons
combined with the particulars of claim and other relevant
documents,
referred to in paragraph 3 above, was to, despite the unusual form of
the summons, to sue out a combined summons as
envisaged by the
provisions of Rule 17.
[11] I
am satisfied that the said summons together with the particulars of
claim, despite the fact that it was not signed by counsel,
do indeed
comply with the requisites of a combined summons as envisaged by the
said Rule 17.
[12] Failure
to have the summons signed by counsel as provided for in Rule 18, to
my mind, will be excipiable but does not render
the summons null and
void per se. Such a failure regarding the signing of the combined
summons by counsel can in any event be
condoned by the court. See in
this regard
Plascon Evens (Transvaal)
Ltd v Virginia Glass Works (Pty) Ltd
1983 (1) SA 465
(O). I can add that the rules are made for the court
and not the court for the rules.
The
defendants were in any event entitled to lodge an application in
terms of the provisions of Rule 30, but declined to do so.
Accordingly
I find that the plaintiffs" notice of bar dated 16 March 2010 is
an irregular step and that it should be set aside.
I make the
following order:
1.
The plaintiffs' notice of bar is set aside:
2.
The plaintiff is ordered to pay the costs of the application.
AJ
BAM
ACTING
JUDGE OF THE HIGH COURT
FOR THE APPLICANTS: ADV.
SW DAVIES
INSTRUCTED BY: JW WESSELS
& PARTNERS INC.
FOR THE RESPONDENT: ADV.
JJ DURANDT
INSTRUCTED BY: JAY
MOTHOBI INC, JHB