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[2023] ZAECELLC 5
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Business Connexion (Pty) Ltd v Buffalo City Metropolitan Municipality (1269/2020) [2023] ZAECELLC 5 (21 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. 1269/2020
NOT
REPORTABLE
In
the matter between:
BUSINESS
CONNEXION (PTY) LTD
Plaintiff
(Respondent)
And
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Defendant
(Excipient/Applicant)
JUDGMENT IN RESPECT OF
RULE 30
APPLICATION DATED 28
MARCH 2022
HARTLE
J
[1]
The defendant seeks an order setting aside
the plaintiff’s “amended particulars of claim”
filed on 15 February
2022 on the basis that they constitute an
“irregular step” within the meaning envisaged by rule 30
(1).
[2]
The particulars of claim are the fifth
iteration of the plaintiff’s particulars, the last version
having been filed after
an exception taken to them was upheld by this
court. On 25 January 2022 the court afforded the plaintiff a
period of fifteen
days to “deliver its amended particulars of
claim”.
[3]
As
an aside the defendant complained in this application that the
plaintiff filed its amended particulars without complying with
the
provisions of rule 28 which would in the ordinary course have
afforded it an opportunity to object to the newest impugned version,
a layer of courtesy usually afforded a litigant at the receiving end
of an amended pleading.
[1]
Nonetheless, the defendant filed a notice in terms of rule 30 (2)(b)
as a prelude to the present application, evidently
accepting
the last iteration of the claim as the properly filed “amended”
particulars of claim as envisioned by the
court’s order dated
25 January 2022. Instead of addressing the causes of complaint
raised in the notice, the plaintiff
filed a notice of bar and a
request for default judgment. These steps taken will obviously
fall by the wayside, given the
view I take in this matter. In the
result I need not consider their import any further.
[2]
[4]
The plaintiff’s claim is for payment
of the sum of 15 864 539.90 ostensibly based on a variety of
invoices for services
rendered pursuant to underlying agreements.
These agreements allegedly comprise of a financial information
management system master
agreement (referred to by the plaintiff as
the “first master agreement” (“POC1”)), a
service level agreement
(“POC2”), and a master agreement
(“POC4”). The plaintiff also references a “Contract
Schedule”
(“POC 6”) as playing a role in the whole
scheme of things. Evidently it is pursuant to these agreements
and within
the ambit of their terms, including pricing specifications
and payment protocols, that the plaintiff says the defendant
requested
precognized resources (“services”) that were
duly provided to it. The defendant was invoiced for the agreed upon
services
which it has failed to pay. The plaintiff also relies
on “requests” by the defendant for the resources that
triggered
its performance and supposedly gave rise to the defendant’s
obligation to pay in each scenario.
[5]
Under the heading “COMPLIANCE”
in the plaintiff’s amended particulars of claim, it alleges
that:
“
23.
Around February 2018 to March 2019, and
in
terms of the SLA read with the first request
,
the plaintiff supplied resources to the defendant which services the
defendant accepted.
24.
From around March 2019 to March 2020, and
in terms of the SLA read
with the second request and the schedule
, the plaintiff supplied
resources to the defendant which services the defendant accepted.”
(Emphasis added.)
[6]
The plaintiff outlines the invoices
furnished to the defendant over the relevant period making up its
claim “in respect of
the services rendered”, copies of
which it has attached to its particulars marked “POC7.1-7.45”.
It pleads
in paragraph 25 in relation to these that:
“
Notwithstanding
the plaintiff having rendered services and (having) furnished the
defendant with invoices as aforesaid, the defendant
has failed to
make payment to the plaintiff in the amounts set out in the
invoices.”
[7]
Tracking backwards, the invoices are for
services rendered. The peculiar services were rendered pursuant
to the several agreements
alluded to by the plaintiff that appear to
be inter-connected and in terms of which the anticipated services and
their price were
contemplated. Also evidently anticipated were
how the parties would engage with each other if and when such
services were
to be requested and, in that event, what protocols
would be adhered to around billing and payment in due course. In this
context
the first and second requests relied upon by the plaintiff
assume a pivotal significance and appear to be part of the
essentialia
of the contract(s) on which its claim is predicated.
[8]
The plaintiff has annexed the purported
copies of the agreements referred to above to its particulars of
claim. It has set out the
“material terms” of each
agreement which it avers are “relevant to the dispute (in the
action)” even though
in the end it asserts that the it is “in
terms of the SLA read with the first request” and “in
terms of the SLA
read with the second request and the schedule”
that the parties’ legal obligations arise.
[9]
The
plaintiff pleads in this respect that the “first request”
for services was made in writing on 5 February 2018 “in
terms
of the SLA”.
[3]
These services were intended to assist in the MSCOA phase 2
project outlined in the SLA that were ultimately invoiced
and form
the subject matter of the claim.
[10]
The plaintiff pleads that it “accepted”
the first request and executed the request by supplying the defendant
with the
resources mentioned.
[11]
It pleads further that the defendant
“accepted the resources at the respective rates” and that
it “accepted the
services provided by the supplied resources”.
[12]
The
second request for services is alleged to have been made by the
defendant to the plaintiff in writing on 24 January 2019.
The
plaintiff pleads that the requests were “both subject to the
Master Service Agreement and the Service Level Agreement
Schedule
Amendment” (Sic).
[4]
The plaintiff pleads as follows in this respect:
“
16.1 The
first request was for the contract extension
[5]
of certain resources already deployed pursuant to the first request
of 5 February 2018 referred to above. The defendant requested
the extension of specific resources whose deployments were due to end
in February 2019. The defendant requested that their deployment
be
extended from 1 February 2019 to 31 March 2020.
16.2 The
second request was for additional resources for a period of 12 months
from 1 February 2019 to 31 March 2020
the stated purpose of which was
“to ensure that the BCMM [i.e., the defendant] utilize the same
local resources from the
MSCOA phase 1 Project in the Phase 2 Project
to completion to ensure business continuity and overall compliance.”
To
this end the defendant requested that the plaintiff provide:
…”
(and thereupon follows an
outline of the particular services.)
[6]
[13]
The plaintiff alleges further that the
defendant accepted this second request and “accordingly agreed
to extend the terms
of certain resources supplied in terms of the
first request read with the SLA and it agreed to supply the
additional resources
contemplated in the second request”.
[14]
The plaintiff then references “the
Contract Schedule” attached as “POC 6” regarding
which it pleads that
“the parties understood and accepted that
(it) was a Services Annexure contemplated by the second master
agreement
alternatively
first master agreement”. It then relates the material
terms of this “schedule” concerning the provisioning
of
services, their costing and payment terms, concluding as follows:
“
21.
The plaintiff complied with its obligations in that it supplied the
services pursuant to the second
request and in accordance with
inter
alia
the terms of the SLA read with the schedule.
22.
The defendant accepted the resources at their respective rates and
accepted the services
provided by the supplied resources.”
[15]
The purpose of providing this background is
to demonstrate the interconnectedness of all the agreements and the
two requests referenced
by the plaintiff.
[16]
Even before I traverse the complaints
forming the subject matter of the present application, it is
necessary to point out that certain
of the agreements annexed to the
plaintiff’s claim cannot represent final or true copies
thereof. Their order and significance
one to the other and the
whole sequence of cascading obligations is also confusing.
[17]
The first master agreement (“POC 1”)
was ostensibly signed by the plaintiff on 18 April 2016 at Pretoria
and by the
defendant at East London on 21 October 2016. The effective
date is recorded as 1 September 2015. In clause 6.1 the
agreement
provides that “the main agreement shall start on the
effective date and terminate on … 30 June 2018.”
[18]
The
copy attached to the plaintiff’s claim appears to be a true
copy of the main agreement although the initials appearing
at the
foot of each page are not complete.
[7]
[19]
The
service level agreement (“POC 2”) is referenced in the
document itself as an addendum (annexure “10”),
although
to what primary agreement, it is not entirely clear. It is
ostensibly signed by the plaintiff only and lacks a reference
(left
blank) to another annexure mentioned in the first paragraph of its
preamble.
[8]
It is a very
poor copy and is also illegible in places. This agreement seems to
have been effective over the period 1 March
2018 to 28 February 2019,
although it is unclear when it was signed or by whom representing the
defendant. It is also clearly
postdates the “first
request” for services.
[20]
The copy of the second master agreement
(“POC 4”) attached to the plaintiff’s particulars
of claim ostensibly
reflects a signing by the defendant’s
municipal manager at East London on 21 January 2019 but does not
reflect a signature
by or on behalf the plaintiff.
[21]
Then of further significance according to
the plaintiff’s particulars of claim, is the contract schedule
(“POC 6”)
which is headed “Annexure 6” and
purports to be a schedule number “11C”, although again to
what primary
agreement this is not clear. The commencement date
is recorded as being 1 March 2019 and the termination date 29
February
2020. The author’s printing reference at the foot of
the schedule reads “Revised: 2019/ 01/29 BCX Annexure to SLA”.
The particular copy attached to the claim and on which the
plaintiff relies was ostensibly signed at East London on 31 January
2019 by an agent of the defendant but does not reflect any signing by
the plaintiff.
[22]
The
complainant raised by the defendant’s notice in terms of rule
30 (2)(b) (repeated in the present application) is to the
effect that
although the plaintiff invokes contracts between itself and the
defendant, it has failed to comply with the provisions
of rule 18 (6)
of the uniform rules of court in this regard.
[9]
[23]
Rule 18 (6) provides as follows:
“
(6) A party who in
his pleading relies upon a contract shall state whether the contract
is written or oral, and when, where and
by whom it was concluded, and
if the contract is written a true copy thereof or of the part relied
on in the pleading shall be
annexed to the pleading.”
[24]
It complains that the plaintiff in this
instance does not state whether the contracts it relies on for its
claim are written or
oral and when, where and by whom they were
concluded and, if written, without annexing a true copy thereof or
the part relied upon
in the particulars of claim as required by the
sub-rule aforesaid.
[25]
More particularly the defendant complains
as follows:
“
3.
Thus, in paragraph 11 of the particulars of claim the plaintiff avers
that the first
request was accepted by one of two people without
indicating whether such acceptance was written or oral and, if
written, without
annexing a true copy thereof or of the part relied
upon.
4.
In paragraph 12 the plaintiff avers that the Defendant accepted the
resources
at their respective rates and accepted the services
provided by the supplied resources without stating whether such
acceptance
was written or oral and by whom it was so accepted and, if
written, without annexing a true copy of such written acceptance or
of the part relied upon.
5.
In paragraphs 16 and 17 the Plaintiff avers that on or about 24
January 2019
the Defendant issued two written requests to the
Plaintiff and on or about 24 January 2019 the Plaintiff accepted the
second request
thereby agreed to extend the term of certain resources
supplied in terms of the first request, again without stating whether
the
acceptance was written or oral and where and by whom it was made
and, if written, without annexing a true copy thereof or of the
part
relied on in the particulars of claim.
6.
In paragraph 19 the Plaintiff claims that the parties understood and
accepted
that the written contract schedule referred to in paragraph
18 was a service annexure contemplated by the second master
agreement;
alternatively, the first master agreement, without stating
whether such acceptance was written or oral and when, where and by
whom
it was arrived it and, if written, without annexing a true copy
thereof or of the part relied on in the particulars of claim.
7.
The same objections apply to paraphs 21 and 24.
8.
Furthermore, in paragraphs 7, 11, 17 and 18 the Plaintiff claims to
have been
represented, for purposes of the conclusion of the
contracts referred to in those paragraphs, by Modise Nyawane or Vish
Rajpal,
a methodology which is also non-compliant with rule 18 (6)
which requires particulars of the identity of the person who
concluded
the contract.”
[26]
The
plaintiff was afforded the customary opportunity to remedy the
defendant’s objections within 10 days of a notice delivered
on
7 March 2022.
[10]
It is
common cause that the notice was filed 4 court days out of time in
relation to the filing of the plaintiff’s
particulars of claim,
for which delay the defendant seeks condonation. (I deal with
this aspect below.)
[27]
It
was alleged on behalf of the defendant’s by its attorney that
it is prejudiced by the plaintiff’s particulars of
claim in
that, since the institution of the action, the plaintiff has filed
five sets of particulars of claim and that it is still
unable to
plead for the reasons complained of in its present notice in terms of
rule 30 (2)(b).
[11]
Further it’s legal representative alleges that the plaintiff’s
present failure to have complied with the
provisions of rule 18
(6) has prejudiced it, such prejudice being manifest in the fact that
it is (still) impossible for it to
plead to the plaintiff’s
amended particulars of claim for the reasons outlined in its
pre-application notice to remove the
cause of its complaint.
[28]
The plaintiff however denies that the
filing of its latest particulars of claim is irregular in the manner
suggested by the defendant
or at all or that it was obliged to
respond to or comply with the defendant’s notice to remove the
cause of its complaint.
It also raises a number of technical
issues which I deal with briefly below.
[29]
Rule 30 indicates the circumstances under
which its provisions may be invoked, the prerequisites to make the
application envisaged
thereby if a proceeding or step taken in the
cause is alleged to be irregular, and what relief the court can grant
if in its opinion
the impugned step is indeed found to be irregular
or improper. The rule 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.
(5)
….”
[30]
I have above set out above the provisions
of rule 18 (6), but it is also necessary to allude to the provisions
of rule 18 (4) which
provide the standard that a pleading generally
should aspire to, given the defendant’s complaint that it is
unable to plead
to the plaintiff’s latest set of particulars of
claim:
“
4) Every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his claim,
defence or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto.”
[31]
It is also apposite to allude to the
provisions of rule 18 (12) applicable to the present matter:
“
(12)
If a party fails to comply with any of the provisions of this rule
(meaning rule 18), such pleading shall be deemed to be an
irregular
step and the opposite party shall be entitled to act in accordance
with rule 30.”
[32]
Rule 30 is a remedy peculiar to a step
taken in a cause that in the court’s opinion is irregular in
that narrow context and
for a defined period. Thus, it is not
open to me to dwell on how the plaintiff has fared in the past in the
conduct of its
litigation against the defendant as the concern is
with the impugned step taken by the filing of the plaintiff’s
latest set
of particulars. Mr. Heunis who appeared for the
defendant himself acknowledged that the filing of the latest
particulars
after this court’s order in the exception
application constitutes a
novus actus
interveniens
as it were. I
mention this since it was submitted on behalf of the defendant that
the prior failed iterations of the particulars
of claim in themselves
constitute an offence and are relevant to the issue of prejudice.
In this regard the defendant complains
of a historical and enduring
prejudice in that the plaintiff cannot seem to get its particulars of
claim into a presentable format
so that it can plead to them. Mr.
Heunis submitted that this abject failure was also a ground for this
court to grant the
extreme remedy (not prayed for in the notice of
application) of finally setting aside the plaintiff’s
particulars and dismissing
its action. It was further suggested
that the costs following its anticipated success in the application
should carry a punitive
element because the defendant has been
inconvenienced for a long time coming.
[33]
However,
the objective by an application of this nature is to address an
obstacle
[12]
that is
temporarily standing in the way of the conduct of the litigation
moving forward.
[13]
[34]
In
my view the defendant’s objection to the latest iteration of
the plaintiff’s claim is well founded on the simple
basis that
the terms of the contract(s) on which the plaintiff relies to claim
for the specific services rendered has become lost
in verbiage and/or
is not readily ascertainable from the several annexures
provided.
[14]
Whether
one approaches it from the defendant’s broader complaint that
the plaintiff has failed to strictly comply with
the provisions of
rule 18 (6), or one studies the adequacy of the pleadings as a whole
read together with the various annexures
that are not carefully
brought into the orbit of relevance so as to understand where the
defendant’s alleged legal obligation
to pay for these specific
services rendered originated from exactly, the latest particulars of
claim (regardless of what they did
or didn’t achieve in earlier
iterations of them), come up wanting in their formulation. Each
agreement’s significance,
one to the other, requires to be
explained and the sequence followed through. It serves no
purpose to refer to the material
terms of each one if their inter
connectedness, or their relation to the end goal (which is to claim
payment for the cost of each
service rendered), is not clarified. The
same applies in my view to the “requests” and the
plaintiff’s acceptance
of them. In the realm of public
procurement, confirmation in writing begs itself.
[35]
Although the alleged acceptance of the
first and second requests by the plaintiff appear from the context of
the plaintiff’s
outline to possibly be an incident of
performance of the contract(s) in each scenario that will probably be
established by evidence
in due course, it seems unlikely (in the
realm of public contract) that the invoking of the legal obligations
in casu
would not have been recorded in writing. However, if the
plaintiff means to suggest by its latest particulars that there
was
no acceptance in writing by the defendant in either case in response
to the two requests because this is to be inferred from
conduct then
the basis for that inference will need to be contextualized otherwise
the narratives regarding the acceptance of the
requests in each case
mean nothing.
[36]
There
are two distinct elements that are required to be established in rule
30 applications. The first is the issue whether
the party
complained against has in fact taken an irregular step (the court
must hold this opinion), and the second is that the
court must be
satisfied that the party complaining will be prejudiced in the cause
if the irregular step is not set aside.
The question of
prejudice goes to determine what, if any, relief ought to be granted
in all the circumstances but could, and may,
so it appears from case
law gone before, be a strong indicator of an irregular step or
proceeding. In other words, if it
causes palpable prejudice, it
will almost certainly look like an irregularity and be found to be
one. The two issues are often
conflated but are not necessarily
synonymous because a court may find the objection, “standing on
its own”, to be technically
irregular (as was found in
Gardiner
v Survey Engineering (Pty) Ltd
),
[15]
but yet consider that, absent any prejudice, the irregularity should
rather be condoned. Notionally the two aspects should be considered
separately.
[37]
In
the matters of
Z
Sihleko and Z Ncobe v MEC for Health, ECP
[16]
this court had reason to deal with the issue of what constitutes an
irregular step in the context of an application such as the
present
one.
[17]
I concluded
thus:
“
25.
An “irregular step” or the standard by which a step is to
be judged as to be so irregular
or defective that it constitutes a
nullity is also not defined.
[18]
Nestadt J mused in Krugel v Minister of Police
[19]
that “(p)erhaps it is a question of degree”. He
also quaintly refers to an irregular pleading having “a
germ of
validity” in the context of it surviving the challenge of being
accused of being so defective as to constitute a
nullity, but his
remark seems to relate more to the issue of prejudice than to the
question whether the jurisdictional fact of
the “taking of an
irregular step” envisaged in rule 30 (1) is in fact present.
In this sense, the contention
on behalf of the plaintiff that the
defendant has sufficient information to plead (hardly an answer to
the defendant’s complaint
of
prejudice
by virtue of the plaintiff’s failure to comply with the
provisions of rules 18 (4) and (10) which flows obviously from the
non-observance of what those sub-rules intend),
[20]
is tantamount to a stab at the existence of the jurisdictional fact
that an irregular step has been taken by a party to a cause
(rule 30
(1)). Alternatively put, the plaintiff’s defence is rather a
denial that the proceeding or step is irregular or
improper on the
basis envisaged by rule 30 (3) entitling the court to remediate it
with the wide powers at its disposal.
26.
In Nasionale Aartappel Koöp v Price Waterhouse Coopers Ing
[21]
the court remarked that there was no exhaustive test to determine
whether a pleading contained “sufficient particularity”
for the purposes of rule 18 (4), but that it was an issue of fact: “a
pleading contained sufficient particularity if it identified
and
defined the issues in such a way that it enabled the opposing party
to know what they were”.
[22]
27.
Certainly, guidance as to the standard of “sufficient
particularity” is also
to be found in the Rules of Court, more
especially in this instance rule 18 dealing with the directions
relating to pleading generally.
This must be read together with
rule 18 (12) deeming a pleading non-compliant with any of these
general rules to constitute an
irregular step.
28.
Another way to view the standard of sufficiency is to ask whether,
under the old practice
of requesting particulars in order to plead,
it would have been necessary for the party complained against to
supplement an incomplete
or defective statement by a request for and
supply of further particulars. The absence of such a procedure
presently available
to the complaining party to address such a
request for particulars indeed enhances the prejudicial aspect of a
pleader’s
failure to comply strictly with the requirements of
rules 18 (4) and (10).”
[23]
[38]
In
casu
and
for the reasons I have already highlighted above, the plaintiff has
pleaded its case awkwardly, raising more questions than
answers. A
court faced with an application for default judgment premised on
these particulars, although appreciating what the plaintiff’s
case is about generally, would in my view struggle to understand how
exactly the defendant’s alleged obligation to pay for
the
invoiced services arose in each case. In the realm of public
contracts, a written agreement takes centre stage and constitutional
values may also enter the picture.
[24]
The plaintiff has referenced several agreements. The material
terms of each and their significance one to the other and to
the
“requests” ought to follow seamlessly. It is not helpful
to simply recite “material terms” of each
relevant
agreement. Their relevance to the terms of the other agreements
as a collective are also required to be pleaded
and bought into the
collective context. Their natural sequence too is of vital
significance to explain the manner in which
the parties’
contractual arrangement evolved or how primary obligations came to be
extended. The
plaintiff is further obliged,
since its relies upon one or more contracts which it has randomly
attached to its particulars, to
spell out what in each of them is
essential to the dispute and how the one flows from the other. A
court (and the defendant in
this instance) can’t be expected to
have to trawl through pages of contracts that coincidentally may not
even purport to
be final signed copies of them. The obligation of the
plaintiff is indeed, in terms of the provisions of rule 18 (6), to
annex
a “true copy” of what it hopes to assert as the
written premise for the relied upon obligation.
[39]
I am satisfied that the defendant has
established the first requirement for its present application, namely
that the plaintiff’s
latest particulars of claim constitute an
irregular step. This is in my view a clear example of an
“irregularity of
form” and a non-observance of the
provisions of both rule 18 (4) and (6).
[40]
In
Sihleko &
Ngcobe
I also dealt with the issue of
prejudice as follows:
“
[19]
In
both
Gardiner
[25]
and
Life
Healthcare Group (Pty) Ltd v Mdladla Prince & Another
[26]
the courts make reference to “proof of prejudice” as
being a requisite to success in an application in terms of rule
30,
but the choice of the word “proof” is in my view perhaps
unfortunate. Prejudice is rather simply stated a
requirement
for the success of such an application. The converse of this is
that, absent any prejudice, even if in the opinion
of the court the
step is irregular, the excipient is unlikely to be successful in the
application.
[27]
[20]
One looks in vain in the rule itself for any mention of prejudice,
but it is trite that such
an application will be granted only where
the irregular step would cause prejudice to the applicant seeking to
set it aside.
[28]
[21]
At the one end of the perspective the excipient complains of an
irregular step or proceeding
and asks for it to be set aside.
At the other end of that perspective, the respondent argues that,
even assuming the irregular
steps or proceeding is established,
condonation should rather be granted, or the irregularity left well
alone because there is
an absence of any or real prejudice. It
is balancing of the interests of excipient and respondent. The
presence of prejudice
is what elevates the issue at the root of the
objection to something of substance warranting the exercise of the
court’s
discretion in favour of the excipient.
[41]
There
is of course also the assumed affect of a failure to comply with the
necessary provisions of rule 18. When allegations
in a
particulars of claim are flawed for want of compliance with these
provisions (in this instance subrule (4), and (6)
that
stipulate the necessary standard for a meaningful pleading) the
pleading, in terms of subrule (12), is deemed to be an irregular
step, a taint which in itself attracts prejudice. This accords
with the approach adopted in Sasol Industries (Pty) Ltd,
[29]
articulated as follows:
“
In
my view, if a pleading does not comply with the subrules of Rule 18
requiring specific particulars to be set out, prejudice has,
prima
facie,
been established. Cases may well arise where a party would not
be prejudiced by the failure to comply with these subrules,
or where
a pleader would be excused from providing the prescribed
particularity because he is unable to do so. But in such
cases
the
onus
would in my view be on him to establish the facts excusing his
non-compliance. The law reports abound with cases which lay
down this principle in respect of other Rules of Courts, and the same
principle applies in my view in relation to non-compliance
with Rule
18.”
[30]
[42]
The plaintiff
in
casu
has not at all sought to justify
why it cannot provide the copies of each agreement it contends is
relevant to its claim (as in
signed final copies), or why it cannot
reformulate its claim accordingly to the acceptable standard to meet
the defendant’s
objections to it. The prejudice to the
defendant thereby is in my view not just assumed but is instead quite
real as it cannot
plead thereto.
[43]
In my view this is further not one of those
instances where, as Mr. Seape, who appeared for the plaintiff, sought
to prevail upon
this court that the complaints concern “mere
details”. These details are instead vital to put the
plaintiff’s
cause of action into the prescribed format required
by the provisions of rule 18 (6) and to make sense as a whole before
the defendant
can be expected to plead to its claim. The
prejudice lies in the fact that the plaintiff has not observed the
subrule leading
to the confusion and uncertainty regarding the source
of the obligations as highlighted above.
[44]
Mr.
Seape coincidentally suggested that the application should fail
because the prejudice contended for by the defendant had not
been
stated under oath by the defendant itself. It is however not in
my view a requirement for an affidavit to be put up
by the
complaining party at the receiving end of an irregular or improper
step. I dealt with this aspect too quite extensively
in
Sihleko
& Ngcobe
[31]
as follows:
“
[12]
In Chelsea Estates and Contractors CC v Speed-O-Rama
[32]
the court was faced with an objection
in
limine
in the course of hearing an opposed rule 30 application. The
plaintiff in that matter had contended,
inter
alia
,
that the defendant’s objection, being in the form of such an
application, should be supported by an affidavit. In
this
respect Mullins J reiterated the peculiar nature of an application in
terms of rule 30 and confirmed his view that the filing
of affidavits
in respect of such a procedure are unnecessary:
“
Defendant’s
notice in terms of Rule 30 certainly did not require to be supported
by an affidavit. All that Rule 30 (2)
requires is that the
notice must specify the particulars of the irregularities complained
of. It is analogous to an exception.
Nor does Rule 30
provide for any form of reply, Plaintiff was quite entitled to give
notice of intention to oppose defendant’s
application, but
whether an answering affidavit on behalf of plaintiff will in any way
be justified can be decided by the Court
hearing the application.
It was held in
Viljoen
v Federated Trust Ltd
1971 (1) SA 750
(O), in certain applications, in
casu
an application to strike out, ‘the Court must have regard only
to the pleadings filed and cannot consider any fresh matter
introduced by way of evidence on affidavit or in any other manner’.
In my view the Rule 30 applications are in a similar
category.”
[33]
[13]
In Scott & Another v Ninza
[34]
Jansen J agreed with the view of Mullins J that applications in terms
of rule 30 do not as a norm require the filing of a supporting
affidavit. However, he held in that matter that it was
exceptionally justifiable for the parties to file affidavits in
support
of their cases, which he sanctioned by having regard to the
facts mentioned in the supporting and opposing affidavits.
[35]
[14]
There is an obvious reason why an affidavit is not required in this
instance, or why on the face
of it in my view a supporting affidavit
may not be justified. Rule 18 (12) spells out in no uncertain
terms the consequences
of a party’s failure to comply with any
of the provisions of rule 18, which consequence was highlighted by
the defendant
in her prior notice of the complaints on which she
presently relies to assert her entitlement to act in accordance with
rule 30,
and to seek the relief which she does:
“
(12)
If a party fails to comply with any of the provisions of this rule,
such pleading shall be deemed to be an
irregular step and the
opposite party shall be entitled to act in accordance with rule 30.”
[45]
Concerning
the technical issues raised, Mr. Seape submitted that the defendant
was barred from invoking the provisions of rule 30
because it in
effect had taken a “further step” in the proceedings with
knowledge of the irregularity. This knowledge
was supposedly
gleaned by virtue of the fact that the defendant had conceded or
overlooked defects only raised now that were already
there in prior
iterations of the plaintiff’s particulars of claim.
(Ironically the defendant’s attorney in his
founding affidavit
proclaimed that the defendant’s present complaints “thus
far essentially resolve around the same
complaints”.) The
plaintiff argues that those would therefore have been quite apparent
from the fourth iteration that
the defendant chose to except to and
that the plaintiff for this reason had “knowledge” within
the meaning contended
for by rule 30 (2)(a) of the irregularities
that it is only now making capital of. Mr. Seape, also argued
that the ten day
period referred to in sub-rule (2)(b) should for the
same reason have run earlier, that is from the date when the
defendant became
aware of the shortcomings (that were as much there
then as they are now) in the fourth edition of the particulars of
claim.
The short answer to this submission however is that the
irregularity only commenced when the plaintiff delivered its most
recent
particulars of claim pursuant to the exception order.
Whatever imperfections existed before were overtaken by the court’s
order nullifying the last iteration of the particulars of claim.
In any event knowledge of the irregularity means knowledge
of the
fact which constitutes the irregularity (the filing of the latest set
of particulars) and not consciousness that the fact
constitutes an
irregularity.
[36]
Further, the procedural limitation referred to in rule 30 (2)(b)
referred to now makes it clear that a party must give notice
to
remove the cause of complaint within 10 days of becoming aware of
the
fact that the step concerned had been taken,
and
not within ten days of
becoming
aware of the irregularity of the step.
[37]
[46]
Mr.
Seape also argued quite vociferously that I should dismiss the
application since the defendant by its own admission failed to
timeously comply with the provision of rule 30 (2)(b) and paid mere
lip service to its purported application for condonation for
this
delay. This notice, although a necessary requirement to give
the offending party an opportunity to remedy the impugned
step so
that it no longer poses a hindrance to the conduct of the litigation
and can be remedied without resorting to an application,
can be
condoned.
[38]
The
defendant evidently assumed that the four court days it had been
delayed to file the necessary notice was not a substantial
delay and
could be condoned for the very brief reasons furnished by its
attorney, namely that she was out of town and away for
a week
immediately after the date of service of the plaintiff’s
amended particulars of claim. She explained that she
purported
to serve an unsigned copy on a Saturday, 5 March 2022, via electronic
mail. The formal signed copy was filed on
7 March 2022.
She averred further that she could not imagine that the plaintiff
could be prejudiced by such an insignificant
delay and pointed out
that its attorneys had in any event not taken issue with such late
filing in correspondence entered into
with her.
[47]
The defendant’s attorneys
supplemented its case for condonation in a replying affidavit and
pointed out
inter alia
that she had diarized her file for the date when the plea ought to
have been delivered in the ordinary course, obviously without
expectation that counsel who she had briefed to draft her client’s
plea would advise her to instead invoke the procedure
under rule 30.
(The time limit for the filing of a plea would have been longer.) To
my mind she offered a
bona fide
explanation for what was in effect a short delay and sought to
address her miscalculation immediately once she realized that it
was
necessary to file a notice in terms of rule 30 (2)(b).
Evidently the defendant found itself in a quandary because it
could
not meaningfully plead to the plaintiff’s particulars of claim
and had to adopt a different approach within a shorter
time frame.
This was clearly not anticipated by her. The particulars of
claim including all the annexures entail a
bulky set of documents
that even this court required a lengthy period of time to traverse.
The defendant’s attorney
cannot be faulted for expecting that
the fifth iteration of particulars would probably be in an acceptable
format to plead when
she left it up to her counsel to draft a plea in
the ordinary course.
[48]
As for prejudice to it, the plaintiff’s
attorney has not suggested any real prejudice occasioned by the short
delay.
Indeed its response in this respect is somewhat curious:
“
13.
The other matter that requires comment is the glib assertion that the
plaintiff is not prejudiced by
the late notice. The disorderly
conduct of litigation is inherently prejudicial, and especially so in
this case because addressing
the notice involves expending time and
resources to oppose the consequence of the notice which is this
application. There
is therefore no merit to the defendant’s
suggestion that the plaintiff is not prejudiced by the delays.
14.
Finally, it is important to point out that the defendant would suffer
no prejudice if this
court dismissed the threatened application for
condonation. In the event, the defendant would simply have to
file its plea.
The defendant cannot seriously complain that it
would be prejudiced by the invitation to raise its defence.”
[49]
To the contrary, even if I non-suited the
defendant, the obstacle standing in the way of the litigation
proceeding would still be
there, and the continuation of the action
confounded thereby. Therefore I propose to condone the late
filing of the defendant’s
pre-application notice.
[50]
On the issue of costs, I cannot agree with
Mr. Heunis’ submission that costs on the scale of attorney and
client are justifiable.
This is because the prejudice suffered by the
defendant could only have related to the present irregular step
taken. As I have
opined above, the historical prejudice to the
defendant is irrelevant. Further the matter involved a simple
application in
terms of the rule and did not in my view warrant the
attention of a second advocate.
[51]
In the result I issue the following order:
1.
The late filing of the defendant’s
rule 30 (2) (b) notice is condoned.
2.
The plaintiffs “amended particulars
of claim” are set aside as an irregular step.
3.
The plaintiff is permitted a period of 15
days within which to file a fresh set of particulars of claim.
4.
The plaintiff is liable for the costs of
the application on the party and party scale.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
9
September 2022
DATE
OF JUDGMENT:
21 February 2023
APPEARANCES
:
For
the plaintiff: Mr. M Seape instructed by Mothle Jooma
Saddia Inc c/o I Clark Inc., East London (ref. Ms De Azevedo).
For
the defendant : Messrs J C Heunis SC & F T Pretorius instructed
by Clark Laing Inc., East London (ref. F Van Rooyen).
[1]
The exception order would have had the effect of setting aside the
fourth iteration of the plaintiff’s claim entirely as
if it
had not existed before. Therefore, there would have been
nothing left as a premise to “amend” from.
The
order required the filing of a fresh set of particulars. In my view
the provisions of rule 28 do not feature in such a scenario.
[2]
The defendant alleged that the filing of the notice of bar and
request for default judgment were both further irregular steps
in
the proceedings, notably because the plaintiff had failed to respond
to the plaintiff’s notice in terms of rule 30 (2)(b)
in the
first instance as was required of it to do.
[3]
I could not help but notice that the SLA postdates the “first
request” for services.
[4]
This
appears to contradict what is stated in paragraphs 23 and 24 of the
plaintiff’s particulars.
[5]
The use of the phrase “contract extension” read with the
next two sentences implies a primary contract or pre-existing
arrangement. If the obligation flows from the first master
agreement, this has not been clearly stated.
[6]
The
services billed for on the invoices do not equate in every instance
with the services listed in this clause.
[7]
This
in itself is not objectionable.
[8]
This
is at page 139 of the indexed papers.
[9]
This
is the enduring complaint of the defendant also in respect of prior
iterations of the plaintiff’s claim, namely that
the plaintiff
has failed to comply with the peremptory provisions of rule 18 (6).
[10]
See rule 30 (2)(b). This fixes the second date by when the
application must be delivered provided for in subrule 2(c),
which is
within fifteen days after the expiry of the ten day chance afforded
to the party who has taken the impugned step, to
remove the cause of
the complaint.
[11]
Counsel
for the defendant in their heads of argument allude to the
plaintiff’s “repetitive, torturous and inadequate”
amendments to the plaintiff’s particulars of claim and to its
ill-fated attempts to cure its “fatally flawed”
particulars of claim.
[12]
See
Metr
opolitan
Lewensversekeringsmaatskappy Bpk v Louw NO
1981
(4) SA 329 (O) 333 G – H.
[13]
The
irregular step is only open to be addressed for a short period once
it has been taken in the cause. If the other party “condones”
it or gets beyond it by taking a further step that indicates it is
not bothered by it, it loses its sting and that is then the
end of
the matter. Contrariwise, if the other party complains that the step
taken in the cause is irregular or improper and constitutes
a
hindrance to the future conduct of the litigation, which in itself
is prejudicial, then it has this remedy at its disposal
and own
choosing to complain, and failing the removal of the cause of its
complaint, to deliver a rule 30 application and make
it the court’s
business to decide what to do about the complained of step.
[14]
See
in this regard the similar scenario in
Heugh
v Gubb
1980 (1) SA 699
(C) at 702 in which the plaintiff’s
particulars of claim contained extensive extracts from and
references to other documents
and sources which detracted from a
clear basic formulation of the plaintiff’s claim.
[15]
1993 (3) SA 549
(SE) at 551.
[16]
Bhisho case no’s 1016 and 1017/2018. Unreported judgment of
Hartle J delivered on 6 June 2019.
[17]
The
claims in those instances were for damages in delict and the
complained of non-compliance related to the non-observance of
subrules 18 (4) and (10). The principles are however the same.
[18]
Herbstein
& Van Winsen, Civil Procedure of the High Court of South Africa,
Volume 1, 5
th
Ed at 738.
See
also
Gardiner
Supra
at 551 I.
[19]
1981 (1) SA 765
E.
[20]
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H
Marthinusen
1992 (4) SA 466
(W) at 470 H.
[21]
2001 (2) SA 790
(T) as paraphrased in the English headnote.
[22]
At 798 F/G – 799 J.
[23]
Minister
of Law and Order v Jacobs
1999 (1) SA 944
(O) at 954D – E/F.
[24]
Baedica
231 CC & Others v Trustees for the Time Being of the Oregon
Trust & Others
2020
(5) SA 247
(CC) at [175] – [178].
[25]
Supra
.
[26]
[2014] JOL 31463 (GSJ).
[27]
This is because the court exercises a discretion. See
Herbstein & Van Winsen,
Supra
at 740 – 2 and especially footnote 46 under the mantle of “The
Court’s discretion and the requirement of prejudice”.
[28]
De
Klerk v De Klerk
1986 (4) SA 424
(W);
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO, Supra
;
Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik GmbH
1991 (1) SA 823 (T).
[29]
Supra.
[30]
At
470 H.
[31]
Supra.
[32]
1993
(1) SA 198 (E)
[33]
At
202 E - F
[34]
1999
(4) SA 820
(E) at 823 C
[35]
At 823 D
[36]
See
Erasmus, Superior Court Practice at page D1 – 355, read with
footnote 49.
[37]
Erasmus,
Supra,
with reference to footnote 50.
[38]
Erasmus,
Supra
,
with reference to footnote 52.