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[2023] ZAECELLC 21
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Kubupay (Pty) Ltd v Mayibuye Transport Corporation (EL1203/2022) [2023] ZAECELLC 21 (27 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL
1203/2022
NOT REPORTABLE
In
the matter between:
KUBUPAY
(PTY) LTD
Plaintiff
And
MAYIBUYE
TRANSPORT CORPORATION
Defendant
JUDGMENT
COLLETT AJ:
Introduction
[1]
This is an application brought in terms of
Rule 23 (2)
of the
Uniform Rules of Court
for the striking out of certain content contained in the defendant’s
plea on the basis of such content being irrelevant.
[2]
The plaintiff issued summons against the
defendant for payment of the amount of R2 508 593.46 and
ancillary relief for
services rendered in terms of a written service
level agreement (hereinafter referred to as ‘
the
SLA’
) concluded between the
parties on 15 July 2019.
[3]
The defendant entered an appearance to
defend and filed a plea to the plaintiff’s particulars of
claim.
[4]
The plaintiff served a notice in terms of
Rule 23(1)
to afford the defendant an opportunity to remove the cause of
complaint in respect of its plea alleging that certain of the content
was irrelevant, vexatious and/or scandalous.
[5]
Ultimately, an application to strike out
was filed in terms of
Rule 23(2)
and the defendant has opposed the granting thereof.
The Rule 23(2)
Notice
[6]
The plaintiff in its application to strike
out referred to the content of several paragraphs some of which it
sought to be partially
struck and other in
toto
.
[7]
On
6 September 2022, the plaintiff delivered a notice in terms of
Rule
23
in respect of a striking out application and a Conditional Notice to
Remove Cause of Complaint. This notice was subsequently
amended
on 10 November 2022. The plaintiff contended that ‘
it
is prejudiced in pleading over and/or proceeding to trial on the
defendant’s plea as it presently stands’
.
[1]
[8]
The plaintiff averred that the material
identified for striking out, falls within the definition of
‘
irrelevant matter’
.
[9]
The plaintiff alleged that it relied
exclusively upon the SLA to found its cause of action in accordance
with
Rule 18(4).
The defendant in its plea referred to the terms and conditions of the
tender specification as contained in the
Tender
Document
as well as the
Tender
Proposal
submitted to the plaintiff.
[10]
The plaintiff contends that reference
hereto had no relevance to the claim against the defendant and for
this reason any reference
thereto is irrelevant. Furthermore,
that the defendant has failed to comply with
Rule
18 (6)
regarding the plea relating to
either the ‘
Tender
Document
’
or ‘
Tender Proposal’
(hereinafter
referred to as ‘the agreements’).
[11]
It is further averred that because of the
defendant’s failure to attach these agreements to the plea, it
cannot be said that
the defendant relies on these documents.
Accordingly, the court should strike out the contents of the
paragraphs referring
thereto.
[12]
A perusal of the alleged offending
paragraphs of the defendant’s plea, whilst admitting the SLA,
refers to the SLA incorporating
the terms and conditions of the
tender specifications contained in the
Tender
Document
and
Tender
Proposal
. Thereafter the
defendant pleaded the terms and conditions of the agreements in the
ensuing paragraphs.
[13]
The defendant avers that the plaintiff has
not complied with
Rule 23(2)
as there is no founding affidavit in which the factual issues of
relevance and prejudice are laid out.
[14]
The defendant further contended that
Rule
18(6)
refers to the attachment of a
contract in relation to a plaintiff who is asserting a cause of
action. As the defendant is
only bringing a defence, it has no
duty to attach any agreement in terms of
Rule
18(6).
[15]
Lastly, the defendant alleged that the
plaintiff has failed to make out a case for alleged irrelevance of
the content of the impugned
paragraphs. It is alleged that
liability is denied on the basis that the plaintiff has not performed
in terms of the agreement.
The issues for
determination
[16]
whether the plaintiff’s application
to strike out in terms of
Rule 23(2)
conforms with the
Uniform Rules of
Court
.
[17]
whether the defendant’s plea complies
with
Rule 18(6).
[18]
Whether certain content in the defendant’s
plea ought to be struck out on the basis of the content being
irrelevant.
Application to
strike out Rule 23(2)
[19]
Rule 6
deals
with the procedure relating to applications in general and, in
particular,
Rule 6(11)
provides as follows:
‘
Notwithstanding
the aforegoing subrules, interlocutory and other applications
incidental to pending proceedings may be brought on
notice supported
by such affidavits as the case may require and set down at a time
assigned by the registrar or as directed by
a judge.’
[20]
Rule
6(11)
refers
specifically to ‘
interlocutory
and other applications incidental to pending proceedings’
.
Proceedings are regarded as ‘
pending’
until their final determination.
[2]
It is accordingly competent for a party in a pending proceeding to
invoke the provisions of
Rule
6 (11).
By extension, an interlocutory application relates to a ‘
pending’
proceeding.
[21]
There is no doubt that applications in
terms of
Rule 23
are indeed interlocutory applications.
[22]
The
question as to whether
Rule
6(5)
applies to applications premised under
Rule
6 (11)
was considered by Mullins J in
Chelsea
Estates and Contractors CC v Speed-O-Rama
[3]
who concluded that:
‘
there
is no doubt that this is an interlocutory application.
Furthermore in many interlocutory applications there is no need
to
file affidavits, and certainly the provisions of Rule 6 (5)(f) do not
apply to such applications.’
[23]
It
was similarly concluded in
Yorkshire
Insurance Company Ltd v Reuben
[4]
that the procedure outlined in
Rule
6(5)
need not be followed in circumstances where parties are already
litigating. ‘
Notice’
as referred to in
Rule
6(11)
does not mean notice of motion.
[5]
[24]
The
application provided for in
Rule
23(2)
striking out averments in opponent’s pleadings is in a special
form of application as envisaged in
Rule
23(11).
[6]
[25]
What
is required in a striking out application is identification of the
averments to which objection is raised and the grounds for
such
objection.
[7]
[26]
In
an application to strike out, the court must consider only the
pleadings filed and cannot consider any other information introduced
by way of affidavit or in any other manner
[8]
thus vitiating the need for affidavits.
[27]
There is accordingly no merit in the
defendant’s submission that the format of the plaintiff’s
application in terms
of
Rule 23(2)
should comply with
Rule 6(5)(f).
Plaintiff’s
application in terms of Rule 23(2)
[28]
The plaintiff alleges that the defendant’s
case,
inter alia,
refers to different agreement(s) other than the SLA, more
particularly, ‘
the terms and
conditions of the tender specifications contained in the tender
document’
and the ‘
tender
proposal submitted to the plaintiff’
.
[29]
It is contended that reference is made to
‘
material terms’
of the agreements and that in this regard the defendant has failed to
comply with
Rule 18(6)
,
more particularly:
‘
1.
To state whether the contact is written or oral (or partly written
and partly oral)’
2.
to state when, where and by whom the contract was concluded; and
3.
if the contract is written, to annex a true copy thereof or of the
part relied
on in the pleading to the pleading.’
[9]
[30]
The plaintiff submits that in view of the
aforementioned non-compliance with
Rule
18(6)
, the agreements are ‘
merely
referred to but not rely upon’
and accordingly the allegations in the paragraphs are irrelevant and
should be struck out in terms of
Rule
23(2).
[31]
The plaintiff’s compliant is that the
defendant’s plea is defective for a failure to comply with
Rule
18(6)
which clearly raises an
irregularity of form and not substance.
[32]
Accordingly, the plaintiff’s remedy
is to be found in
Rule 18(12)
and the provisions of
Rule 30
should be invoked for such pleading to be deemed an irregular step.
[33]
I am furthermore of the view that the
plaintiff’s reasoning of relevancy culminating in the
Rule
23(2)
application is the incorrect
procedure and the plaintiff should have proceeded in terms of
Rule
30.
[34]
It is not necessary for me to make a
finding on the compliance or otherwise with
Rule
18(6).
[35]
The following order will issue:
1.
The application is dismissed with costs.
S A COLLETT
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Mr.
A Bishop
Instructed
by
Petersen
Hertog Attorneys
c/o
Difford Underwood Inc.
c/o
Drake Flemmer & Orsmond Inc.
East
London
Ref.
Ms. Underwood
Counsel
for the Respondent
Mr.
Mazwazi
Instructed
by
Mbabane
& Maswazi Inc. Attorneys
East
London
Ref.
Mr. Maswazi
Date
heard: 20
July 2023
Date judgment
delivered: 27 July 2023
[1]
Conditional
notice in terms of Rule 23 (1), page 60
[2]
Laubscher
and Another v Commercial Union Assurance Company of South Africa Ltd
and Another
1976
(1) SA 908 (E)
[3]
1993
(1) SA 198 (SE)
[4]
1967
(2) SA 263 (E)
[5]
Muller
v Paulsen
1977
(3) SA 206
E
[6]
Viljoen
v Federal Trust Ltd 1971 (1) SA 750
[7]
Ehler (Pty) Ltd v Silver 1947 (SA 173 (2) at 178
[8]
Viljoen
v Federated Trust Ltd at page 754 para E - F
[9]
Plaintiff’s heads of argument page 74, para 15