Van den Heever N.O and Others v Potgieter N.O and Others (2200/2021) [2022] ZAFSHC 70; 2022 (6) SA 315 (FB) (4 March 2022)

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[2022] ZAFSHC 70
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Van den Heever N.O and Others v Potgieter N.O and Others (2200/2021) [2022] ZAFSHC 70; 2022 (6) SA 315 (FB) (4 March 2022)

IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number:  2200/2021
In
the matter between:
MARTHINUS
CHRISTIAAN VAN DEN HEEVER N.O.
1
st
Plaintiff
[cited in his
capacity as duly authorised Trustee of
THE BRAKKUIL TRUST –
IT 1095/98]
MARISSA VAN
DEN HEEVER
N.O.
2
nd
Plaintiff
[cited in her
capacity as duly authorised Trustee of
THE BRAKKUIL TRUST –
IT 1095/98]
ARNOLD RICHTER
N.O.
3
rd
Plaintiff
[cited in his
capacity as duly authorised Trustee of
THE BRAKKUIL TRUST –
IT 1095/98]
and
THEUNIS
GERHARDUS POTGIETER N.O.
1
st
Defendant
[cited in his
capacity as duly authorised Trustee
of THE DOMINO TRUST-
IT 1096/98]
JAN JOHANNES
MARAIS
N.O.
2
nd
Defendant
[cited in his
capacity as duly authorised Trustee
of THE DOMINO TRUST-
IT 1096/98]
KITTY
POTGIETER
N.O.
3
rd
Defendant
[cited in her
capacity as duly authorised Trustee
of THE DOMINO TRUST-
IT 1096/98]
WILLEM PETRUS
FOUCHE
N.O.
4
th
Defendant
[cited in his
capacity as duly authorised Trustee
of THE WOLWEKOP
TRUST- IT 1094/98]
ALETTA JOHANNA
CROUS
N.O.
5
th
Defendant
[cited in her
capacity as duly authorised Trustee
of THE WOLWEKOP
TRUST- IT 1094/98]
EMMERENTIA
COETZEE
N.O.
6
th
Defendant
[cited in her
capacity as duly authorised Trustee
of THE WOLWEKOP
TRUST- IT 1094/98]
EMMERENTIA
COETZEE
7
th
Defendant
KITTY
POTGIETER
8
th
Defendant
WILLEM
FRANCOIS BOUWER
N.O.
9
th
Defendant
[cited in his
capacity as duly appointed
Executor in the
deceased estate of the late
BAREND VAN DEN
HEEVER]
MASTER OF THE
HIGH COURT,
BLOEMFONTEIN
N.O.
10
th
Defendant
ADRIAAN
NEL
11
th
Defendant
CORAM:
VAN ZYL, J
HEARD
ON:
14 OCTOBER 2021
DELIVERED
ON:
4 MARCH 2022
[1]
The plaintiffs are seeking an order that the first to eighth
defendant’s
Notice in terms of Rule 23, dated 3 August 2021, be set
aside, with the first to eighth defendants to pay the costs of the
application.
The first to eighth defendants are opposing the
application.
Condonation:
[2]
The first to eighth defendants sought condonation for the late filing
of
their heads of argument.  They duly filed an affidavit
deposed to by their attorney of first instance in support of the
application
for condonation, in which affidavit it was explained how
the failure to file the heads of argument timeously, came about. The
plaintiffs
did not oppose the application for condonation.
However, they deemed it necessary to file an affidavit deposed to by
the plaintiff`s
attorney of record in order to respond to certain
allegations contained in the affidavit filed on behalf of the first
to eighth defendants.
[3]
I considered it proper and in the interest of justice to grant the
condonation
and I consequently made the following order before I
entertained the arguments on the merits of the application:
1.
The first to eighth defendants’ failure to file
their heads of argument and Practice Note in terms of the provisions
of Rule 13.3
of the Rules governing the conduct of proceedings in the
Free State Division, is condoned.
2.
The first to eighth defendants are ordered to pay
the costs of the application.
Chronology of
procedural steps:
[4]
No relief is being sought against the ninth, tenth and eleventh
defendants.
I will consequently, for the sake of expediency,
henceforth refer to the first to eighth defendants as “the
defendants”.
[5]
The procedural steps which led to the present application are not in
dispute.
[6]
The plaintiffs issued summons against the defendants (and the ninth,
tenth
and eleventh defendants).
[7]
On 21 June 2021 the defendants filed their notice of intention to
defend
the action.
[8]
The defendants had to file their plea within 20 days from the
aforesaid
date, but failed to do so.  The plaintiffs
consequently filed a notice of bar in terms of Rule 26 on 27 July
2021.
[9]
On 3 August 2021 the defendants filed a notice in terms of Rule 23 in
which
it was stated that the plaintiffs’ particulars of claim is
vague and embarrassing on the grounds set out in the notice and the
plaintiffs were afforded a period of fifteen (15) days to remove the
defendants’ causes of complaint.
[10]
On 11 August 2021 the plaintiffs served a notice in terms of Rule
30(2)(b) in
response to the defendants’ Rule 23 notice on the basis
that the said notice constitutes an irregular step.  In terms of
the
said notice the plaintiffs afforded the defendants 10 days to
remove the cause of complaint, failing which the plaintiffs would
proceed
with an application to set aside the defendants` Rule 23
notice.
[11]
The cause of complaint set out in the plaintiffs’ Rule 30 notice is
the following:
1.
The plaintiffs’ notice in terms of Rule 23 was
not delivered within 10 days of receipt of the summons as determined
in Rule 23(1)(a).
2.
The defendants’ Rule 23 notice is neither a
plea nor an exception as provided for in Rule 22(1).
3.
The delivery of the Rule 23 notice consequently
constitutes an irregular step and the defendants are
ipso
facto
barred from filing a pleading.
Main
submissions on behalf of the respective parties:
[12]
Mr Snellenburg, who appeared on behalf of the defendants, referred to
the fact
that Rule 23(1) provides that an exception may be filed
“
within the period allowed for filing any subsequent pleading
”.
Rule 23(1)(a), however, requires the peremptory filing of a notice
when it is contented that the pleading is vague and
embarrassing. Mr
Snellenburg consequently submitted that in the circumstances the
filing of such a notice, as a compulsory precursor
to the filing of
an exception, in response to a notice of bar and within the
stipulated 5-day period, constitutes a proper response
to a notice of
bar.
[13]
In support of this submission Mr Snellenburg relied,
inter alia,
on the judgment in
Steve’s Wrought Iron Works v Nelson
Mandela Metro
2020 (3) SA 535
(ECD). He, however, also
referred to the unreported judgment in
Hill N.O. v Brown
(3069/20)
[2020] ZAWCHC 61
(3 July 2020) in which the contrary view
was expressed. Mr Snellenburg submitted that the
See Steve’s
Wrought Iron Works
judgment “
is on its own persuasive
and the reasoning exemplary
”.  He consequently submitted
that the reasoning and finding in the
Steve’s Wrought Iron
Works
judgment are to be followed instead of that of the
Hill
N.O. v Brown
judgment.
[14]
Mr Pretorius, who appeared on behalf of the plaintiffs, submitted
that the amendment
of Rule 23(1) with effect from 22 November 2019
impacted on the interpretation and application of Rule 26 and the
admissibility of
a Rule 23(1) notice that a pleading is vague and
embarrassing filed in response to a notice of bar.
[15]
Mr Pretorius pointed out that the
Steve’s Wrought Iron Works
matter was heard on 17 October 2019 and judgment was handed down on
21 November 2019.  It therefore concerned the interpretation
and
application of Rule 23(1) prior to its abovementioned amendment.
Conversely, the
Hill v Brown
matter, which was heard on
26 June 2020, concerned the interpretation and application of the
amended Rule 23(1). Mr Pretorius submitted
that since the present
application also concerns the amended Rule 23(1), the reasoning and
finding in the
Hill N.O. v Brown
judgment, namely that
the filing of a Rule 23(1) notice that a pleading is vague and
embarrassing does not constitute a valid response
to a notice of bar,
is likewise applicable to the present application.
Legal
principles:
[16]
Prior to the amendment of Rule 23(1), which amendment came into force
on 22 November
2019, it was required that a notice that a pleading is
vague and embarrassing was to be filed “
within the period
allowed for filing any subsequent pleading”
.  It used to
read as follows:
“
(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary to sustain
an action or defence, as the case may
be, the opposing party may,
within the period
allowed for filing any subsequent pleading,
deliver an exception thereto and may set it down for hearing in terms
of paragraph (f) of sub-rule (5) of Rule (6): Provided that
where a
party intends to take an exception that the pleading is vague and
embarrassing he shall
within the period
allowed as aforesaid
by notice afford his
opponent an opportunity of removing the cause of complaint within 15
days: Provided further that the party excepting
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
his exception.”
(Own
emphasis)
[17]
The amended Rule 23(1) now requires that a notice that a pleading is
vague and
embarrassing must be filed within 10 days of receipt of
such pleading:
“
(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary
to sustain an action or defence, as the case may
be, the opposing party may,
within the period
allowed for filing any subsequent pleading,
deliver an exception thereto and may apply to the registrar to set it
down for hearing within 15 days after delivery of such exception:
Provided that
–
(a)
where a party intends to take an exception that
the pleading is vague and embarrassing such party shall, by notice,
within 10 days of receipt of the pleading
,
afford the party delivering the pleading an opportunity to remove the
cause of complaint within 15 days of such notice;  and
(b)
…”
(Own emphasis)
[18]
As correctly pointed out by Mr Pretorius, in the
Steve’s
Wrought Iron Works
matter the application was heard on 17
October 2019 (which is evident from the copy of the judgment
available on SAFLII) and judgment
was handed down on 21 November
2019.  The finding that a notice of exception delivered within
the 5-day period provided in a
notice of bar, constitutes a proper
response to a notice of bar, therefore concerned the interpretation
and application of Rule 23(1)
prior to the aforesaid amendment.
[19]
In the judgment of
Hill N.O. v Brown
the amended Rule
23(1) was applicable; therefore a notice that the pleading is vague
and embarrassing was required to have been filed
within 10 days of
receipt of the pleading.  The background facts with regard to
the relevant procedural steps in that application
were similar to the
facts
in casu.
In the said judgment the court stated as
follows at paras [1] to [3]:
“
[1]
The plaintiff contends that the defendant`s delivery of a rule
23(1)(a) notice was an
irregular step which should be set aside in
terms of rule 30(1). It is not in dispute that on 15 April 2020 the
plaintiff served
a valid notice of bar in terms of rule 26 or that
the defendant`s rule 23(1)(a) notice was served on the last day of
the five-day
period specified in rule 26. The question is whether the
service of the Rule 23(1)(a) notice was a valid response to the
notice of
bar.
[2]
…
[3]
As applied to a defendant’s response to a combined summons (which
is our
situation), the relevant provisions of the rules are these:
(a)
…
(b)
…
(c)
…
(d)
If a defendant wishes to except on the first of these grounds (the
vague and embarrassing
ground), Rule 23(1)(a) requires him, as a
precursor to the exception, to afford his opponent an opportunity of
removing the cause
of complaint within 15 days. The defendant’s
notice to this effect must be served within 10 days of receipt of the
combined summons.
(The latter time-limit was introduced by an
amendment to Rule 23(1) which came into force on 22 November 2019,
and is shorter than
the period previously allowed.)”
The court
subsequently found as follows at para [11] of the judgment:
“
[11]
Be that as it may, the amended rule is unambiguous.  In
practice, sensible plaintiffs are
unlikely to object to a Rule
23(1)(a) notice delivered a few days later than the strict limit
imposed by the amended rule, but for
present purposes the important
point is that the framers of the rules plainly did not intend that
the defendant should have a leisurely
period to assess whether or not
particulars of claim are vague and embarrassing.  In the
circumstances, a defendant can hardly
complain if, after the expiry
of the 20-day period allowed for a plea or exception,
his
opponent delivers a notice of bar having the effect of making the
subsequent service of Rule 23(1)(a) notice irregular.
In such a
case, a Rule 23(1)(a) served after delivery of the notice of bar
would,
ex hypothesi,
be
at least 20 days
out
of time
.”
(Own
emphasis)
The defendant`s
notice in terms of Rule 23(1)(a) was consequently declared to be an
irregular step and was set aside.
See also
Van
Zyl N.O. v Smith
2021 JDR 1848 (GP) at paras [6] –[8].
[20]
Also in
Erasmus Superior Court Practice
, Van
Loggerenberg
et al,
Juta Law Online Publications, December
2021 at RS 17, 2021, D1-309 the following is stated with reference to
the words “w
ithin the period allowed for
filing any subsequent pleading”
as
contained in the
amended
Rule 23(1):
“
This
part of subrule (1) evidently applies only to an exception that a
pleading lacks averments which are necessary to sustain an
action or
defence. In the case of an exception that a pleading is vague and
embarrassing, paragraph (a) of subrule (1)
must first be
complied with before an exception on that ground could be delivered
in terms of paragraph (b) of subrule
(1).”
Conclusion:
[21]
The defendants failed to file their Rule 23 notice that the
particulars of claim
is vague and embarrassing within 10 days of
receipt of the summons as prescribed in Rule 23(1)(a). In the absence
of any application
for condonation for the non-compliance with the 10
days’ period, it consequently constitutes an irregular step.
Discretion:
[22]
Rule 30(3) provides as follows with regard to irregular proceedings:
(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.
(Own
emphasis)
[23]
The court therefore has a discretion to set aside an irregular step.
In
Erasmus
Superior Court Practice
,
supra,
at
RS 17, 2021, D1-356, the following principles enunciated in relevant
case law in this regard are stated:
“…
it
is not intended that an irregular step should necessarily be set
aside. The discretion must be exercised judicially on a
consideration
of the circumstances and what is fair to both
sides. The court is entitled to overlook in proper cases any
irregularity which
does not work any substantial prejudice to the
other party.
[24]
As previously pointed out, the background facts with regard to the
relevant procedural
steps in the
Hill N.O. v Brown
matter, were similar to those in the present matter. In that judgment
the court found as follows at paras [12] and [13]:
“
[12] The
court has a discretion whether or not to set aside an irregular step,
and the presence or absence of prejudice is usually
decisive. In my
view, the plaintiff will clearly be prejudiced if the rule 23(1)(
a
)
notice is allowed to stand. The defendant…would be entitled to file
an exception if the plaintiff fails to remove the alleged
causes of
complaint.
[13] On
a proper construction of the rules, however, the defendant has not
filed a proper response to the notice of bar and should
now be under
bar. If the irregularity of the rule 23(1)(
a
) notice is
confirmed by this court and the notice set aside, the parties will
know where they stand. The defendant, if he wishes
to oppose the
case, will have to apply in terms of rule 27 to have the bar lifted
and will need to show good cause. Whether or not
the defendant will
be able to show good cause is not something on which I can form an
opinion, because I do not know what facts the
defendant will advance
in support of a rule 27 application.”
[25]
The aforesaid findings with regard to prejudice to be suffered by the
plaintiff
in that matter were the Rule 23 notice not to be set aside,
are in my view
mutatis mutandis
applicable
in casu
.
Furthermore, should I not set aside the defendants` Rule 23 notice,
the plaintiffs will be prevented from obtaining the relief,
for
example default judgment, to which they otherwise may be entitled as
a result of the defendants being under bar. As correctly
contended by
Mr Pretorius, that would further prejudice the plaintiffs.
[26]
Consequently, in the exercise of my discretion, I am of the view that
the defendants`
Rule 23(1) notice is to be set aside.
[27]
There is no reason why costs should not follow the outcome of the
application.
Order:
[28]
The following order is made:
1.
The first to eighth defendants’ notice in terms
of Rule 23, dated 3 August 2021, is set aside.
2.
The first to eighth defendants are ordered to pay
the costs of the application, jointly and severally, payment by the
one, the other
to be absolved.
C.
VAN ZYL, J
On behalf of the
plaintiffs:
Adv. JJ Pretorius
Instructed by
:
McIntyre & Van
der Post
BLOEMFONTEIN
On behalf of the 1
st
– 8
th
defendants:      Adv. N
Snellenburg SC
Instructed by:
Kramer Weihmann Inc
BLOEMFONTEIN