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[2023] ZAFSHC 153
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Kramer Weihmann & Joubert Attorneys v Rabela and Another (A5/2023) [2023] ZAFSHC 153 (8 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case no: A5/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
KRAMER
WEIHMANN & JOUBERT ATTORNEYS
Appellant
[1]
and
KGOPOTSO
ELIZABETH RABELA (neé MOAHLOLI)
First
Respondent
NCUMISA
YOLANDA RABELA
Second
Respondent
[2]
[3]
CORAM:
OPPERMAN,
J
et
GUSHA,
AJ
HEARD
ON:
17 APRIL 2023
DELIVERED
ON:
8 May 2023. The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 8 May 2023. The
date and time for hand-down is deemed to be 8 May 2023 at 15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Is a notice of exception in terms of Rule 19(1)(b) of the
Magistrate’s Court Rules considered a pleading and a legal
response to a notice of bar that will consequently halt a request for
a default judgment?
JUDGMENT
INTRODUCTION
[1]
The appeal eventuated from an opposed application for default
judgment that served
a quo
before the regional court. The
court order, in so many words, illustrates the issues:
1.
The Applicants’ Notice of Bar in terms of section 21B stands.
2.
The Respondent’s purported Notice of Exception herein is deemed
not to be a pleading.
3.
The
Respondent to pay the costs of this Application.
[4]
[2]
The issue of the case is whether a notice of exception in terms
of Rule 19(1) of the Magistrate’s Court Rules is considered
a
pleading and a proper legal response to a notice of bar that will
consequently prevent a request for a default judgment? Is it
possible, at all, for a plaintiff to cause a pleading in reply and in
response to a notice of exception?
[3]
It must be noted that the request for default judgment shall not
be entertained in the appeal. The appellant, notwithstanding their
submission that default judgment was granted on the 28
th
of January 2022 at paragraph 2.5 on page 2 of their Heads of
Argument, their prayers at paragraphs 8.5 and 8.6. of the same Heads
of Argument dated 23 March 2023 and the Draft Order submitted to
court on 17 April 2023, conceded that the default judgment was
not
granted.
[4]
Although the magistrate stated in paragraph [1] of her judgment
that the case is an opposed application for a default judgment she
neither granted nor dismissed the application for default judgment.
She also did not rule on the merits of the default judgment;
this
issue remains
sub judice
in the regional court pending the
outcome of this appeal.
[5]
This case is a reminder that the Rules of Courts may not be
utilised to play litigatory games that delay justice and causes costs
and procedural misery. The Rules may not be warped to the extent that
the administration of justice is made a mockery. Legislation,
commentaries and cases must be read in context, in its totality and
with judicious responsibility.
[6]
The parties were in agreement
a quo
that Rule 19(1) and
Rule 21B are applicable.
[7]
The judgment will be organised as follows:
1.
The Rules;
2.
submissions of the appellant;
3.
the relevant case law;
4.
the facts and chronology of the case & the law; and
5.
the order.
THE
MAGISTRATE’S COURT RULES
[5]
[8]
The
Rules came into effect in 2016 and 2019. Rule 19 was substituted by
GN R842 of 31 May 2019 with effect from 1 July 2019. Rule
21B was
inserted by GN R507 of 27 June 2014 with effect from 28 July 2014 and
substituted by GN R2 of 19 February 2016 with effect
from 22 March
2016.
[6]
[9]
Rule 19 Exceptions
and applications to strike out
(1) (a)
Where any pleading is vague and embarrassing or lacks averments which
are necessary to sustain an action
or defence, the opposing party who
intends to take an exception shall, within the period allowed for
filing any subsequent pleading,
deliver an exception thereto, as
provided in paragraphs
(b)
and
(c)
.
(b)
A party who intends to take an exception shall, by notice, within 10
days of receipt of the pleading, afford
the party delivering the
pleading an opportunity of removing the cause of complaint within 15
days of such notice.
(c)
A party who intends to take an exception shall, within 10 days from
the date on which a reply to such notice
is received or from the date
on which such reply is due, deliver the exception.
(d)
The exception may be set down for hearing in terms of
rule
55
within
10 days after delivery thereof,
failing
which the exception shall lapse
.
(Accentuation added)
[10]
Rule 21B Failure
to deliver pleadings — barring
(1)
Any party who fails to deliver a replication or
subsequent pleading within the time stated in
rule
21
shall
be automatically barred.
(2)
If any party fails to deliver any other pleading within
the time laid down in these rules or within any extended
time allowed
in terms thereof, any other party may deliver a notice in writing
calling upon that party to deliver such pleading
within five days of
receipt of such notice.
(3)
Any party failing to deliver the pleading referred to in
the notice mentioned in sub-rule (2) within the time therein
required
or within such further period as may be agreed between the parties,
shall be in default of filing such pleading and automatically
barred:
Provided that for the purposes of this rule the days from 16 December
to 15 January, both inclusive, shall not be counted
in the time
allowed for the delivery of any pleading.
[11]
The Rules and the law are clear here
:
1.
An exception is a pleading; not a notice.
2.
A notice cannot replace a pleading.
3.
A notice to except does not place the plaintiff in a fair and legal
position to plea. A litigant
pleads to a pleading not a notice; the
case against the plaintiff must be clear and certain. In
Minister
of Safety and Security v Slabbert
2010 2 All SA 474
(SCA) at
paragraph 11 Mhlantla, JA stated:
The purpose of pleadings
is to define the issues for the other party and the court. A party
has a duty to allege in the pleadings
the material facts upon which
it relies. It is impermissible for a plaintiff to plead a particular
case and seek to establish a
different case at trial. It is equally
not permissible for a trial court to have recourse to issues falling
outside the pleadings
when deciding a case.
[7]
4.
A litigant may react to a notice by removing the issues excepted to
but cannot plead on a notice.
5.
The onus is on the excipient to maintain the momentum by the notice,
followed by the pleading/exception
and the set down for hearing.
6.
The
next legal procedural step
is
not a legal response
in the sense that it exonerates the excipient from the provisions in
Rule 19(1) and Rule 21B.
7.
A notice that calls for a pleading of the exception is not compulsory
and does not absolve the
excipient from the process prescribed in the
Rules.
8.
Failure to deliver a pleading/exception causes an automatic bar and
does not uplift a notice of
bar. The plaintiff may on default take
the next step in the main action; it is often a request for default
judgment.
THE
APPELLANT’S SUBMISSIONS ON THE APPLICATION OF THE RULES
[12]
The appellant relies, significantly so, on the commentary to Rule 21B
in Jones & Buckle
[8]
that:
…
the learned
authors submit that a notice in terms of
Rule 19(1)(b)
to the
effect that the plaintiff’s particulars of claim are vague and
embarrassing, and giving the plaintiff the required
period to fix the
particulars of claim,
is a proper response to a notice of bar,
provided that it is delivered within the stipulated
5-day
period.
[13]
The above quote comes from a statement at footnote 5 in the text. At
footnotes 3 and 4 Jones & Buckle do however unequivocally
state
that:
An exception is a
pleading
and
must
,
in terms of
rule
19(1)
(c)
,
be delivered within 10 days from the date on which a reply to a
notice to remove the cause of complaint is received or from
the
date on which such reply is due. If it is not delivered within that
time period, the other party
may
,
it is submitted, deliver a notice in writing calling upon the party
intending to take an exception to deliver the exception within
five
days of receipt of such notice as provided in
rule
21B(2)
. (Accentuation added)
[14]
The learned writers might have intended “proper response”
to mean “proper step” since they clearly
indicated that
an exception is a pleading (not a notice) and there are more steps to
be taken to establish a proper legal response
that will lift the bar.
The proper legal response that will uplift and not just suspend the
bar, must be a pleading with a consequent
set down for hearing.
Failure will cause the exception to lapse and the bar to remain or an
automatic bar to result. The case law
discussed hereunder underscores
the Rules.
[9]
[15]
At paragraph 4.7 of their Heads of Argument the appellant argues
that:
Arguments have in the
past been advanced that outright exceptions constitute “
pleadings”
and are thus the only proper response to the Notices of Bar, whereas
notices to cure pleadings alleged to be vague and embarrassing
do not
constitute “
pleadings”
and are therefore not
proper responses. This argument has, however, been rejected by
several judgments of the High Court across
South Africa on the basis
that it would defeat the purpose of Rule 23 in the High Court.
[16]
At paragraph 4.8 they argue that: “The legislature’s
intent of proceedings in the Magistrate Court regarding
exceptions
clearly ends the aforementioned debate in calling for a Notice to
Cure before Exception.”
[17]
Again, a misinterpretation of the Rules:
Rule
19(1)(c):
A
party who intends to take an exception
shall
, within 10 days
from the date on which a reply to such notice is received or from the
date on which such reply is due, deliver
the exception.
Rule
21B (2):
If
any party fails to deliver any other pleading within the time laid
down in these rules or within any extended time allowed in
terms
thereof, any other party
may
deliver a notice in writing calling upon that party to deliver such
pleading within five days of receipt of such notice.
Rule
21B (3):
Any
party failing to deliver the pleading referred to in the notice
mentioned in sub-rule (2)
within the time
therein required or within such further period as may be agreed
between the parties,
shall
be in default of filing such pleading and automatically barred
:
Provided that for the purposes of this rule the days from 16 December
to 15 January, both inclusive, shall not be counted in the
time
allowed for the delivery of any pleading. (Accentuation added)
[18]
If a pleading from the excipient is not forthcoming or the issues
excepted to removed, a vacuum occurs wherein, on the argument
of the
excipient, nobody needs or is allowed to take any subsequent step in
the main action or the exception. The case becomes
stagnant and
delayed.
[19]
Rule 19(1)(d) and Rule 21B (3) are clear that the excipient is
automatically barred if the pleading is not delivered timeously.
The
bizarre situation above is not a scenario that can or may eventuate
in terms of the Rules:
Rule
19 (1)(d): The exception may be set down for hearing in terms
of
rule
55
within
10 days after delivery thereof,
failing
which the exception shall lapse
.
Rule
21B (3): Any party failing to deliver the pleading referred to in the
notice mentioned in sub-rule (2) within the time therein
required or
within such further period as may be agreed between the parties,
shall be in default of filing such pleading and automatically
barred:
…
[20]
The legislator clearly and without any doubt places the onus on the
excipient to bring the hearing of the exception before
a court and to
completion.
[21]
A notice of exception is an abbreviated legal procedural step to
curtail, simplify and expedite litigation. If the issue(s)
excepted
to is removed, litigation proceeds on the main action in a reduced
time. If not; the provisions of Rule 19(1) and Rule
21B take effect
to prevent the stagnation of the case.
CASE
LAW
[22]
The conundrum of this case is not new. Many judgments
[10]
evolved on the issue. The facts of the cases, in some instances,
differed and caused subtle nuances that caused the perception
of
contradicting rulings of the courts. The same scenarios, that are
relevant in this case, played itself out in the High Courts.
[23]
The
appellant in their Heads of Argument relies on numerous judgments
[11]
to condone their litigatory conduct based on their view that a notice
will uplift a bar placed upon them and make a request for
default
judgment illegal. They conflate the facts of each case, a proper
legal procedural step and a proper legal response that
will uplift a
bar and a notice with a pleading.
[24]
If the Rules do not convince then the case law that binds the
appellant in this division might. Daffue, J on 5 December 2017 in an
unreported judgment:
Lambons (Pty) Ltd v Hannes Marthinus Jonker
and six others
, Case Number 2769/2017 (Lambons - case), gave a
comprehensive exposé of the case law and some of the cases
relied on by
the appellant. In the Lambons - case it was ruled that a
notice to an exception is not a pleading as is required in the Rules.
I will not repeat the discussions in the judgment; it is
comprehensive and based on solid law and reasoning that I align
myself
with. The judgment
in casu
must be read in conjunction
with the Lambons - case.
[25]
It was concluded in paragraph [18] that: “There is a huge
difference between a notice of intention to except, or put
otherwise,
a notice in terms of the first proviso to rule 23(1) to remove a
cause of complaint on the one hand and an exception
on the other.”
[26]
The judgment continued to rule, correctly so, and as is the situation
in this case; in favour of the judgment of
McNally NO and Others v
Codron and Others
(20406/11)
[2012] ZAWCHC 17
(9 March 2012).
[20] During argument I
raised a pertinent question with Mr Patrick, for the defendants, as
to whether a notice of intention to except
is a plea or a proper
process which may constitute a proper response to the plaintiffs'
notice of bar. The best that Mr Patrick
could say is that 'a notice
of intention to except' constitutes the taking of the next procedural
step after service of a notice
of bar, and being the next procedural
step taken, it is competent of a defendant to serve a notice of
exception during bar period
relying on the observations of Griffiths
AJ in Landmark Mthatha, supra, at p86E-F.
The taking of the next
procedural step in my view, would be a step which advances the
proceedings one stage nearer to completion.
The question that calls
for determination, therefore, is whether the delivery of a notice of
exception is a further step that advances
the proceedings one stage
nearer completion
. (Accentuation added)
[21]
The criterion of 'a further step in the proceedings' was laid down in
Pettersen v Burnside
1940 NPD 403
at 406 where it was held that a
further step in the proceedings is 'some act which advances the
proceedings one stage nearer completion',
and this criterion has been
applied and followed in several other decisions. [See, amongst
others, Cyril Smiedt (Pty) Ltd v Lourens
1966 (1) (SA) 150 (O) at
152E; Killarney of Durban (Pty) Ltd v Lomax
1961 (4) SA 93
(D) at 96]
[22]
In Jowell v Bramwell-Jones & Others
1998 (1) SA 836
(W) at F-G,
Heher J, as he then was, made the following observation:
"
A
further step in the proceedings is one which advances the proceedings
one stage nearer completion
and which, objectively viewed,
manifests an intention to pursue the cause despite the irregularity.
Seen in that light, the filing
of a notice of exception, which
contains as an alternative
an application to set pleadings aside
under the provision of Rule 18(2) read with Rule 30, does not
constitute the taking of a further
step
within the meaning of
Rule 30(2). Such an excipient is concerned merely
to make full use
of the remedies which the Rules provide for an attack on a defective
pleading
." My emphasis
[23]
The issue before Heher J, in Jowell v Bramwell-Jones & Others,
supra, concerned exceptions and procedural objections taken
to
plaintiff's particulars of claim in an action for damages. What is
clear from Heher J's observations is that a further step
in the
proceedings is the one which advances the proceeding one stage nearer
completion; an application to set the pleading aside
does not
constitute the taking of a further step in the proceedings; and an
excipient who intends to except on the basis that the
particulars are
vague and embarrassing is concerned merely to make full use of
remedies which the Rules provide for an attack on
a defective
pleading. Such an exception does not advance the proceeding one stage
nearer completion. Those observations are compelling.
I say the
observations are compelling because they seek to differentiate
between further procedural steps that tend to advance
the proceedings
towards completion and those that do not constitute the taking of
further steps but merely provide for an attack
on a defective
pleading.
[24]
In its notice of exception, the defendant gives notice of its
intention to except to plaintiffs' particulars of claim
on the
grounds that the particulars fail to disclose a cause of action,
alternatively, that the particulars are vague and embarrassing.
The
defendants could well have excepted to the plaintiffs' particulars on
the grounds that the particulars do not disclose a cause
of action
and that exception would have been a valid response to the notice of
bar delivered on the defendants, but the defendants
elected not to do
so. The delivery of an exception on the basis that the particulars of
claim lack the averments which are necessary
to sustain a claim,
would have been a regular step because the notice of bar calls for
delivery of a pleading. As has already been
pointed out in paragraph
[19] above, there is authoritative support to the proposition that an
exception is a pleading the delivery
of which would have constituted
a valid response to plaintiffs' notice of bar.
[25]
As has already been pointed out, the defendants' notice of intention
to except, on the basis of the authorities referred to
in paragraph
[21] to [22] of this judgment cannot be said to advance these
proceedings a stage nearer completion. What the defendants,
in
effect, want to do is to utilize one of those remedies in the Rules
that provide an attack on a defective pleading. The notice
of
intention to except is intended to achieve that objective. It is not
an objective that can be achieved by way of a response
to a notice of
bar. It is a remedy that would have had to be utilized and resorted
to within a period of twenty (20) days as provided
in Rules 17(1) and
22(1) of the Uniform Rules. The notice of intention to except, as
taken in the instance of these proceedings,
is an irregular step that
falls to be set aside.
[26]
If the defendants had elected to except to the plaintiffs'
particulars of claim on the grounds that the particulars are vague
and embarrassing, they would have had to file their notice of
exception within a period of twenty (20) days of delivery of a notice
of intention to defend as provided in Rules 17(1) and 22(1) of the
Uniform Rules. It is not competent of a defendant to file a
notice of
exception contemplated in rule 23(1) during bar period and as a
response to a notice of bar. The remarks of Griffiths
AJ, which, in
my view, were obiter, and which remarks were relied on by Mr.
Patrick, should be understood in the context of the
analysis in
paragraphs [19] to [23] of this judgment.
[27]
The remarks in authorities such as Felix v Nortier N.O.
1994 (4) SA
502
(SE) at 506E and Landmark Mthatha, supra, that what rule 26
requires is that the party served with a notice of bar take the next
procedural step in the matter, dealt with the delivery of an
exception, which is a pleading. They are definitely no authority for
what is contended for on behalf of the defendants. Those authorities
did not deal with a notice of intention to except as is a
case in the
matter before me.
[27]
In
Hill NO and Another v Brown
(3069/20)
[2020] ZAWCHC 61
(3
July 2020) the defendant was served with a notice of bar requiring it
to serve its plea or exception within five days from receiving
the
notice of bar. The defendant served a notice of intention to except
against the plaintiff’s summons on the basis that
the summons
was vague and embarrassing and did not disclose a cause of action.
[28]
The court in the above case had to adjudicate whether a notice to
except as envisaged in Rule 23(1)(a) is a valid response
to a notice
bar and the court came to the following conclusion:
[4]
An
exception is a ‘pleading’ (
Haarhoff
v Wakefield
1955
(2) SA 425
(E);
Tyulu
&
others
v Southern Insurance Association Ltd
1974
(3) SA 727
(E)
at 729B-D;
Icebreakers
No.83 (Pty) Ltd v Medi Cross Health Care Group (Pty) Ltd
[2011]
ZAKZDHC 15;
2011
(5) SA 130
(KZD)
para 2). Like a plea, a properly drawn exception concludes with a
prayer for relief (
Marais
v Steyn & ʼn ander
1975
(3) SA 479
(T)
at 483A;
Barclays
National Bank Ltd v Thompson
1989
(1) SA 547
(A)
at 552H), typically – in the case of an exception to
particulars of claim – a prayer that the exception be
upheld
with costs and that the particulars of claim be set aside.
[5]
Accordingly, the ‘pleading’ contemplated in rule 26
covers – in the case of a defendant
who has failed to plead to
particulars of claim – a plea as contemplated in rule 22(1) or
an exception as contemplated in
rule 22(1) read with 23(1). Either of
these is a valid response to the rule 26 notice, and the defendant
will not be barred.
[6]
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.
[7]
Accordingly, I agree with Yekiso J’s judgment in
McNally
NO & others v
Codron
&
others
[2012]
ZAWCHC 17
that
a notice in terms of rule 23(1)(
a
)
is not a pleading (and see also
De
Bruyn v Mile Investment 307 (Pty) Ltd & others
[2017]
ZAGPPHC 286 paras 25-26). The contrary is scarcely arguable.
[8]
If
a defendant is to avoid being barred pursuant to a notice in terms of
rule 26, he must file a ‘pleading’, i.e., a
plea or an
exception. A rule 23(1)(
a
)
[12]
notice, which is merely a precursor to an exception (which may
or
may not be delivered), is not a proper response
.
(Accentuation
added)
THE FACTS AND
CHRONOLOGY OF THIS CASE & THE LAW
[29]
The facts and chronology of the case are:
1.
The claim
a
quo
stems
from an amount of R260 000.00 that was paid over into the trust
account of the appellants on 13 February 2019.
[13]
2.
The monies were paid over
in lieu
of the sale of immovable
property and at the instruction of the agent.
3.
After the
sale was cancelled on 30 July 2019, the monies were never refunded to
the respondents that were the buyers of the property.
[14]
4.
On 15
December 2020 a letter was delivered by Maduba Attorneys on behalf of
the respondents on the appellant to remind them that
a mandate to
terminate the sale was delivered to “Jackie and Chanel Jaars”
of Kramer Weihmann & Joubert Attorneys
per email on 30 July 2019.
Maduba Attorneys, acting on behalf of the respondents, now claimed
that the monies be paid into the
trust account of Maduba Attorneys
Incorporated within ten days of the filing of the letter with
interest.
[15]
5.
The letter spurred no reaction and a combined summons was issued and
served
on 17 August 2021 on one Mr. D Muller of the now Kramer
Weihmann Incorporated; the appellant.
6.
Kramer Weihmann Incorporated served a notice of intention to defend
on
31 August 2021.
7.
The case was again ignored by Kramer Weihmann Incorporated and time
lapsed
to the degree that the respondents were forced to serve a
notice of bar on 1 October 2021.
8.
On the last day of the notice of bar, 8 October 2021, Kramer Weihmann
Incorporated
served a notice of exception in which it was stated that
the plaintiffs' particulars of claim are vague and embarrassing on
the
grounds set out in the notice and their opponents were afforded a
period of fifteen days to remove the defendant's causes of complaint.
9.
The
dies
lapsed with no movement in litigation from either
side.
10.
Rule 19(1) does not require a mere notice but places a burden on the
excipient to await
fifteen days for a response and if it is not
forthcoming by for instance the removal of the cause of complaint;
they must deliver
the exception in terms of Rules 19(1)(b) & (c).
These are the pleadings.
11.
The excipient must then set the matter down for hearing of the
exception within ten days,
failing which,
the exception shall
lapse
.
Rule 19(1)(d) is clear that the exception lapses
automatically.
There is not any prerequisite that the opposing
party must file another notice of bar on the facts of this case. Rule
21B underscores
that the respondents were in the right to file the
request for default judgment without another notice of bar.
12.
Kramer Weihmann Incorporated in a lackadaisical manner with complete
disregard of the Rules
and unacceptable delay of the proceedings did
not file their exception, nor set the matter down for hearing as Rule
19 demands.
It must be remembered that a notice of bar was already
issued against them for not responding in the first instance.
13.
The respondents in the appeal went forth and filed a request for
default judgment on 25
January 2022.
14.
The delay caused by Kramer Weihmann Incorporated from the date on
which the notice of exception
was filed, dragged on from October 2021
until January 2022 when they suddenly jumped into the litigation
again.
15.
Exceptions may not be abused to obstruct a litigant in obtaining
expeditious justice. If
Kramer Weihmann Incorporated followed the
simple instructions in Rule 19 the matter could have been resolved
earlier. They have
not filed their pleadings on the exception or set
the matter down for hearing up until the date of this judgment. The
respondents,
awaiting the pleadings as per the Rules, were prevented
from any further legal litigation. They cannot file pleadings to a
notice
in terms of the Rules and law.
16.
The unfortunate state of affairs is that the litigation has blown up
to an Appeal.
17.
Their
statement in paragraph 4.3 in a letter
[16]
addressed to Maduba Attorneys on 13 January 2022 with a threat of
punitive costs orders is patently wrong on the reading of the
Rules
and law.
4.3 Filing of
an outright exception on the basis that no cause of action is
disclosed, constitutes the filing of a Subsequent
Pleading. As such
we are not under bar and therefor you are not entitled to proceed
with default judgment, as same is an abuse
of the Court Process and
an irregular step/process.
[30]
ORDER
The appeal is dismissed
with costs
M.
OPPERMAN, J
I
concur
N.G.
GUSHA, AJ
APPEARANCES:
For
the appellant:
ADVOCATE
E.G. LUBBE
Chambers,
BLOEMFONTEIN
Instructed
by: Kramer
Weihmann Inc., Bloemfontein
For
respondents:
NO
APPEARANCE
[1]
Defendant
in the court
a
quo.
[2]
Applicants
in the court
a
quo
.
They did not join the litigation in the appeal and an email marked
Exhibit A, received on the day of the appeal, indicated that
they do
not oppose the appeal and will abide by the finding of the court.
[3]
The parties will be referred to as the “appellant or
excipient” and the “respondents” in this judgment.
[4]
Page
16 of the Indexed Bundle at paragraph [25] of the judgment. It does
not appear from the record that the default judgment
was granted.
[5]
The Magistrate’s Court Rules are applicable here but case law
referred to also deals with the Uniform Rules of Court applicable
to
the High Court procedure that caused the same legal disputes.
[6]
Van Den
Heever NO and Others v Potgieter NO and Others
2022 (6) SA 315 (FB).
[7]
Also see
Nieuwoudt
v Joubert
1988 2 All SA 189
(SE) at page 194 where the court stated that the
purpose of pleadings is to define the issues and inform one's
opponent of what
case he has to meet. In order to determine whether
a pleading is technically correct, the question to be posed is
whether the
pleading in question properly defines the issues so that
the other side is in a position to ascertain what evidence it
requires
to pursue its case at the trial.
[8]
At paragraph 4.2 on page 5 of their Heads of Argument dated 23 March
2023.
Jones
and Buckle, The Civil Practice of the Magistrates' Courts in South
Africa (Volume I and II) » … »
21B
Failure to deliver pleadings — barring
at RS 32, 2022 Rule-p21B-1,
https://jutastat.juta.co.za/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu
on 26 April 2023
. The appellant refers to a quote from the 2020
issue of the Commentary at “R26, 2020 Rule-p21B-1”.
[9]
Hill
NO and Another v Brown
(3069/20)
[2020] ZAWCHC 61
(3 July 2020
)
at paragraphs [4]–[5] and [8],
Lambons
(Pty) Ltd v Hannes Marthinus Jonker and six others
,
Case Number 2769/2017 (5 December 2017) and
Van
den Heever NO v Potgieter NO
2022
(6) SA 315 (FB)
at
paragraphs [16]–[26].
[10]
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality: In re
African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty)
Ltd
2010
(3) SA 81 (ECM)
at
86B–C, at 86A–B and
Hill
NO v Brown
(unreported
WCC case no 3069/20 dated 3 July 2020) at paragraphs [4]–[5]
and [8], dealing with the position in High
Court practice,
Steve's
Wrought
Iron Works v Nelson Mandela Metro
2020
(3) SA 535
(ECP)
at
paragraphs [13]–[18],
Van
den Heever NO v Potgieter NO
2022
(6) SA 315 (FB)
at
paragraphs [16]–[26],
Quinn
v MQ Finance (Pty) Ltd t/a Marquis Finance
(unreported, GJ case no 13330/21 dated 22 June 2022) at paragraphs
[12]–[16] and [23],
McNally
NO and Others v Codron and Others
(20406/11)
[2012] ZAWCHC 17
(9 March 2012)
and
Lambons
(Pty) Ltd v Hannes Marthinus Jonker and six others
,
Case Number 2769/2017 (5 December 2017).
[11]
Steve's
Wrought Iron Works v Nelson Mandela Metro
2020
(3) SA 535 (ECP)
at
paragraphs [13]–[19],
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality: In re
African Bulk Earthworks (Pty) Ltd v Landmark Mthatha (Pty)
Ltd
2010
(3) SA 81
(ECM)
at
[12] and [13],
Felix
and Another v Nortier NO and Others
(2)
1994 (4) SA 502
(SE) at 506D-H,
Tuffsan
Investments 1088 (Pty) Ltd v Sethole and another
(22826/2015)
ZAGPPHC 653 (5 August 2016) at paragraphs 25 and 26,
Kramer
Weihmann Joubert Inc v South African Commercial Catering and Allied
Workers Union
(SACCAWU)
(3818/2011) [2012] ZAFSHC (16 August 2012) at paragraphs [8] and
[9],
Fuku
v Mpoka
(A137/2013)
[2013] ZAFSHC 152
(19 September 2013),
Webster
NO v Mohr NO
(13645/15)
[2016] ZAWCHC 41
(15 March 2016),
Bertobrite
(Pty) Ltd v Kegtlengrivier Local Municipality
(3200/19)
[2021] ZANWHC 47
(20 April 2021) and
Kobusch
and another v Whitehead
(5217/2022P)
[2022] ZAKZPHC 77 (15 December 2022).
[12]
This is the Uniform Rules of Court applicable in the High Court. The
equivalent Rules in the Magistrate’s Court read either
the
same or substantially the same and what is applicable to the High
Court applies
mutatis
mutandis
to the Magistrate’s Court with certain minor exceptions. See
paragraph [2] of the Lambons - case.
[13]
Annexure
A page 29 of the Indexed Bundle.
[14]
Annexures
B and C of the Indexed Bundle at pages 30 to 32.
[15]
Annexure
D at pages 33 and 34 of the Indexed Bundle.
[16]
Page 51 of the Indexed Bundle.