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[2021] ZAKZDHC 4
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Standard Bank of South Limited v Piper and Another (15325/2010) [2021] ZAKZDHC 4 (17 February 2021)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 15325/2010
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA
LIMITED
Plaintiff/Respondent
and
ROLAND
PIPER
First Defendant/Applicant
JOHANNES ALBERTUS VAN
JAARSVELD
Second Defendant
ORDER
It is ordered:
1. The
plaintiff is granted leave to withdraw the application
in terms of
s
27
of the
Superior Courts Act 10 of 2013
and is directed to pay the
costs occasioned by such application.
2. The
application in terms of
rule 30
is dismissed and the first defendant
is directed to pay the costs occasioned by such application as well
as the application for
condonation.
JUDGMENT
Henriques J
Introduction
[1]
This is an opposed application in terms of Uniform
rule 30
in which
the first defendant (applicant) seeks an order declaring the delivery
of the plaintiff’s (respondent’s) notice
of bar dated 12
December 2017, an irregular step, and seeks to have the notice set
aside in terms of
rule 30.
[2]
The parties have agreed that the opposed motion be decided
on the
papers without the need for an oral hearing. For the sake of
convenience, I will refer to the parties as they are cited
in the
action.
Issues
[3]
The issues which require determination in this application
are the
following:
(i) whether the
notice of bar is irregular;
(ii) whether the
rule 30
notice and application is a dilatory step seeking to delay the
finalisation of the merits of a jurisdiction debate;
(iii) whether the first defendant
has suffered any prejudice; and
(iv) whether the first defendant has
made out a case for the relief that it seeks.
[4]
The parties have agreed that there are no material disputes
of fact
and in order to decide the application, a brief summary of the steps
taken in the litigation between the parties is necessary.
Factual Matrix
[5]
The plaintiff instituted action against the defendants
in December
2010, in their capacity as sureties, in respect of a debt owed by the
first defendant for monies loaned and advanced
by the plaintiff to
the defendants who operated a business current account with the
plaintiff in the name of Minecom SA (Pty) Ltd.
Only the first
defendant defended the action.
[6]
Subsequently, in February 2011, the plaintiff instituted
an
application for summary judgment which was opposed by the first
defendant. Certain in limine points were raised in opposition
to
summary judgment but in the main, the first defendant asserted that
the court did not have jurisdiction, the reasons advanced
are not
relevant to this application. The other defences raised similarly are
not relevant to this application.
[7]
Summary judgment was refused and the first defendant
was granted
leave to defend. The plaintiff then applied for default judgment
against the second defendant on 15 June 2016 which
was placed before
the Registrar of this court. On 16 August 2016, the Registrar refused
to grant default judgment against the second
defendant, as the
Registrar was of the view that this court did not have jurisdiction.
[8]
In November 2016, the plaintiff applied for the transfer
of the
matter to the South Gauteng High Court in terms of
s 27(1)(a)
of the
Superior Courts Act 10 of 2013
. This is approximately five years
after the first defendant was granted leave to defend. The
application to transfer the matter
to the South Gauteng High Court
was opposed by the first defendant. The plaintiff did not pursue the
application to transfer the
matter to the South Gauteng High Court.
In July 2017, the plaintiff then amended its particulars of claim to
reflect the residential
address of the first defendant which is
within the court’s jurisdiction.. Such amendment was not
opposed and was effected
by the service of the amended pages.
[9]
On 13 December 2017, the plaintiff served a notice of
bar relating to
the first defendant’s failure to file a plea to the amended
particulars. A notice in terms of
rule 30
dated 14 December 2017
appears to have been served in December, however the first defendant
failed to timeously set down the
rule 30
application. Although a
notice in terms of
rule 30
was served on the plaintiff’s
attorneys, the application was not enrolled. This only came to the
attention of the first defendant’s
attorneys in February 2018
when an application for default judgment was enrolled by the
plaintiff for hearing on 14 May 2018. On
receipt thereof, the first
defendant then applied for condonation.
The
first defendant was granted condonation for the late enrolment of his
rule 30
application on 14 May 2018, and the costs of such condonation
application were reserved and the plaintiff’s application for
default judgment was adjourned sine die
,
with the costs of
such application similarly reserved.
Submissions of the
parties
[10] The first
defendant contends that the application to transfer the matter
to the
South Gauteng High Court is still pending and consequently, it ought
not to be required to plead until the finalisation
of such
application, and secondly that such application to transfer the
matter constitutes a concession by the plaintiff, that
this court
does not have jurisdiction.
[11]
In support of such submission the first defendant relies on an
averment
in an affidavit filed in support of the application to
transfer the matter to the South Gauteng High Court by the
plaintiff’s
former attorneys of record. The relevant paragraph
in the affidavit reads as follows:
‘
The
Applicant’s original Attorneys-of-Record was the firm of
Harkoo, Brijlal & Reddy, as appears from the original Combined
Summons in the matter. At that stage, the underlying action was
instituted in the KwaZulu-Natal Durban Local Division. I cannot
say
with certainty why this was done’.
[1]
[12]
And further, at para 8 of the affidavit, it reads as follows:
‘
It
therefore appears that the correct forum in which the action is to
proceed is the South Gauteng High Court, Johannesburg, and
I
respectfully submit that the action should accordingly be transferred
to that division’.
[2]
[13]
The first defendant, in opposing the application to transfer
indicated
that such application was not competent as the old Supreme
Court Act 59 of 1959 did not contain any provision for an action to
be transferred to another jurisdiction and that the Superior Courts
Act, which allowed such transfer in terms of s 27(1)(a) commenced
on
23 August 2013, and did not operate retrospectively.
[14] The first
defendant submits that the removal application must be decided
before
any further steps can be taken in the action and it is prejudiced, as
it is required to plead in this division when this
court does not
have jurisdiction. He alleges that he is fortified in this view as
the Registrar refused to grant default judgment
against the second
defendant on the basis that this court did not have jurisdiction and
submits further that he is prejudiced as
he is required to continue
litigation in a court when the plaintiff has conceded that the court
does not have jurisdiction and
is incurring costs in two
jurisdictions.
[15]
The plaintiff submits that the application to transfer the action to
the South Gauteng High Court, although instituted, was not pursued.
It subsequently amended its particulars of claim on 24 July
2017 to
cite the first defendant at his residential address in Westville,
Durban. Such amendment was not opposed and the amended
page was
served on 6 September 2017 and filed on 11 September 2017 and
consequently the particulars of claim now refer to the first
defendant residing within the court’s jurisdiction.
[16]
It denies that the court does not have jurisdiction and indicates
that
the references to the paragraphs in the plaintiff’s
affidavit referred to above do not constitute concessions and if the
court finds they are in fact concessions, it is not bound by such
concessions. In addition it submits that the application to transfer
has nothing to do with the matter.
[17]
The plaintiff avers that it did not concede that the court did not
have
jurisdiction and that there was nothing in
s 27
of the
Superior
Courts Act which
suspends the time period for the filing of
pleadings. In addition, the plaintiff submits that the provisions of
rule 30
are being improperly utilised to avoid the question of
whether or not the court has jurisdiction, pursuant to the amendment.
It
submits that if the first defendant was bona fide, he would have
objected to the amendment, filed a special plea of prescription
alternatively, not oppose the application for transfer and/or file a
special plea of jurisdiction.
[18] The crux
of the issue for determination, in my view, is whether or not
the
provisions of
rule 27
have suspended the
dies
for the filing
of a plea.
Analysis
[19] The
provisions of Uniform
rule 30
reads as follows:
‘
30.
Irregular proceedings.
-
(1) A party to a cause in which an irregular step has been taken by
any other party may apply to court to set it aside.
(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;
(c)
the application is
delivered within 15 days after the expiry of the second period
mentioned in paragraph (
b
)
of subrule
(2).
(3)
If at the hearing of such
application the court is of opinion that the proceeding or step is
irregular or improper it may set it
aside in whole or in part, either
as against all the parties or as against some of them, and
grant leave to amend or make
any such order as to it seems
meet.
(4)
Until a party has
complied with any order of court made against him in terms of this
rule, he shall not take any further step in
the cause, save to apply
for an extension of time within which to comply with such
order.’
[20]
The rule is intended to deal with matters of form not of substance.
It
is intended to deal with irregular steps taken by parties during
the course of litigation and where the irregularity emanates from
the
inappropriate use of the rules of court.
[3]
It is not in my view to be used as a dilatory step and serve to
prevent the speedy resolution of matters. The words of De Villiers
CJ
in
Le Roex v Prins
[4]
quoted in
Singh v Vorkel
are still apposite:
‘
The
tendency of recent rules of procedure in this Court has been to sweep
away all unnecessary technicalities and hinderances to
the speedy and
effectual administration of justice’.
[5]
[21] It is
common cause that the application to transfer the matter to the
South
Gauteng High Court after it became opposed, was not pursued by the
plaintiff. This was in January 2017. Subsequently, the
plaintiff then
in July 2017 sought to amend its particulars of claim to cite the
residential address of the first defendant, which
amendment was not
opposed. The amendment became effective when the amended pages were
filed in September 2017. The first defendant,
in my view, was then
required to plead to the amended particulars of claim. The plaintiff,
quite correctly in my view, served a
notice of bar requiring the
first defendant to plead when he failed to do so.
[22]
In addition, if the first defendant was desirous of having the
s 27
application determined, it could have proceeded to enrol the matter
for hearing in terms of the Practice Rules in this Division,
as a
consequence of the plaintiff’s failure to file a replying
affidavit.
[23]
There is nothing to indicate why it did not exercise this option. In
addition, I agree with the submission of Mr
Tucker
that there
is nothing in the reading of
s 27
of the
Superior Courts Act which
indicates that the dies for the filing of a plea is suspended as a
consequence of such application. It must follow that I agree
with the
submission that the first defendant can still raise the aspect of a
special plea in relation to prescription as well as
jurisdiction,
should it be of the view that this is a defence in any plea it files.
[24]
I also do not agree that the contents of the two paragraphs referred
to in the plaintiff’s affidavit in the
s 27
application is a
concession that this court does not have jurisdiction and even if I
am wrong in coming to that conclusion, there
is existing authority
that the court is not bound by such concessions if same is wrong in
law.
[6]
[25] No purpose
will be served in having the
s 27
application enrolled as the
plaintiff has tendered the costs of such application, and in addition
one of the grounds filed in opposition
namely the apparent lack of
jurisdiction has been surpassed by the amendment which the first
defendant did not oppose. The other
grounds of opposition including
that of jurisdiction can rightfully still be raised in the first
defendant’s plea. Although
none is alleged, any prejudice which
may be suffered by the first defendant in relation to the
s 27
application can be cured by the tender of costs and any defences can
still be raised in his plea.
[26]
The reliance on
rule 30
by the first defendant in my view is
inappropriate and does not bring the parties any closer to having the
real issues determined.
I do not agree that the plaintiff’s
notice of bar constitutes an irregular step or that the
s 27
application stayed the dies for the filing of further pleadings. In
this regard I align myself with the sentiments expressed by
Rampai J
in
Louw v Grobler & another
where he held the following:
‘
The
purpose of the uniform court rules is to regulate the litigation
process, procedures and the exchange of pleadings. The entire
process
of litigation has to be driven according to the rules. The rules set
the parameters within the course of litigation has
to proceed. The
rules of engagement, must, therefore, be obeyed by the
litigants. However, dogmatically rigid adherence to
the uniform court
rules is as distasteful as their flagrant
disregard or violation. Dogmatic adherence,
just like flagrant
violation, defeats the purpose for which the court rules were made.
The prime purpose of the court rules is
to oil the wheels of justice
in order to expedite the resolution of disputes. Quibbling about
trivial deviations from the court
rules retards instead of enhancing
the civil justice system. The court rules are not an end in
themselves.’
[7]
Costs
[27] That then
brings me to the aspect of costs. Both parties, in my view,
have been
lax in pursuing the matter to finalisation. The plaintiff now by its
tender of costs seeks to withdraw the
s 27
application at this late
stage, subsequent to the application being enrolled on the opposed
motion court roll for hearing and does
so in its heads of argument.
In my view, an appropriate order in this regard ought to be made.
[28] The first
defendant too has persisted with this application rather than
deal
with the merits of the matter. He is fully aware that the particulars
of claim have been amended and he had elected not to
object to such
amendment. In addition, although the first defendant indicates that
he filed an exception, such exception does not
appear to have been
set down. Presumably, this was as the plaintiff amended its
particulars of claim.
Order
[29]
In my view, the fairest result is the following:
[29.1] The plaintiff is granted leave to withdraw the application in
terms of
s 27
of the
Superior Courts Act 10 of 2013
and is directed
to pay the costs occasioned by such application.
[29.2] The application in terms of
rule 30
is dismissed and the first
defendant is directed to pay the costs occasioned by such application
as well as the application for
condonation.
HENRIQUES J
Case Information
Date of Hearing
: 23 June
2020
Date of Judgment
: 17
February 2021
Appearances
Counsel for the Plaintiff
: Mr M C
Tucker
:
Cell: 073 0089 389
Instructed by
Attorneys
: Strauss
Daly Attorneys
9
th
Floor, Strauss Daly
Place 41 Richefond Circle Ridgeside Office Park UMHLANGA
Ref: SVeeran/kg/STA606/0058 Email:
SVeeran@straussdaly.co.za
Counsel for the First Defendant
: Mr P A
Wilkins
Cell: 083 4339 131
Instructed by Attorneys
:
Strydom Attorneys First Floor,
IVH Centre 142 Leeuwpoort Street BOKSBURG
Ref: Mr J Strydom/AH/PIP/001 c/o Van Heerden Attorneys
62 Old Main Road KLOOF, DURBAN
Ref: CvanHeerden/hM/03/S056/003 Email:
chris@vanheerdenlaw.co.za
j
ukaki@mweb.co.za
annemarie@webmail.co.za
This judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII.
The
date and time for hand down is deemed to be 09h30 on 17 February
2021.
[1]
Para 5, page 29, Index to the
rule 30
application.
[2]
Page 29, Index to the
rule 30
application.
[3]
D Harms
Civil Procedure in the Superior Courts
S1
-
69
at B30.3
[4]
Le Roex v
Prins
(1883-1884) 2 SC 405
at 407.
[5]
Singh v Vorkel
1947 (3) SA 400
(C) at 406.
[6]
Alexkor Ltd & another v The Richtersveld Community &
others
[2003] ZACC 18
;
2004 (5) SA 460
(CC) para 43;
Mount Edgecombe Country
Club Estate Management Association II (RF) NPC v Singh & others
2019 (4) SA 471
(SCA) para10
[7]
Louw v Grobler & another
(3074/2016)
[2016] ZAFSHC 206
(15 December 2016) para 18.