Summary of Judgment

1. Introduction

These proceedings concerned an interlocutory application in the High Court of South Africa, Free State Division, Bloemfontein, in which the applicant sought procedural relief directed at the respondent’s combined summons and a subsequent notice of bar. The application was brought in terms of Uniform Rule 30 (irregular proceedings) and Uniform Rule 30A (non-compliance with the Rules), and was premised on an alleged failure to comply with Uniform Rule 18(1) (signature requirements for pleadings).

The applicant was Itumeleng Victoria Moloi, cited as the second defendant in the main action. The respondent was the Municipal Manager, Fezile Dabi District Municipality, cited as plaintiff in the main action. The application arose within the broader action instituted by the respondent against Anna Magagudi Olifant (first defendant) and Itumeleng Victoria Moloi (second defendant).

Procedurally, after receiving the respondent’s combined summons, the applicant delivered a notice under Rule 30A calling upon the respondent to remedy what the applicant characterised as non-compliance with Rule 18(1). The respondent did not amend the summons; instead, it responded by letter asserting compliance. Thereafter, the respondent served a notice of bar on the applicant. The applicant reacted by delivering a Rule 30 notice contending that the notice of bar constituted an irregular step. When the respondent did not remove the notice of bar, the applicant launched the present application.

The general subject-matter of the dispute was therefore not the merits of the underlying municipal claim, but the formal validity of the combined summons (specifically its signatures and what it reflected about rights of appearance), and the consequential procedural validity of the notice of bar.

2. Material Facts

The respondent issued a combined summons in the main action. On the face of that summons, Noge Attorneys Incorporated appeared as the respondent’s instructing attorneys of record, with Modise and Modise Attorneys reflected as correspondent attorneys.

The applicant’s complaint was based on what appeared from the summons and particulars of claim regarding signatures. The summons appeared to be signed by the respondent’s attorneys, but, according to the applicant, it did not indicate in its contents whether the respondent’s attorney of record was an attorney with a right of appearance in the High Court in terms of the Right of Appearance in Courts Act 62 of 1995. The applicant also contended that the particulars of claim appeared to have been signed by Noge Attorneys “per procurationem (pp)” on behalf of counsel.

After forming the view that the combined summons did not comply with Rule 18(1), the applicant served a notice in terms of Rule 30A calling upon the respondent to comply with Rule 18(1). The respondent did not amend the summons in response. Instead, on 26 May 2021, the respondent’s attorneys wrote to the applicant confirming that the particulars of claim were signed by Mr Paul Modise of Modise and Modise Attorneys on behalf of counsel, and asserting that this was in accordance with Rule 18(1) because the attorney who signed had a right of appearance under section 4(2) of the Right of Appearance in Courts Act 62 of 1995.

On 5 August 2021, the respondent served the applicant with a notice of bar. The applicant then delivered a notice in terms of Rule 30 calling upon the respondent to remove the notice of bar as an irregular step. The respondent did not react to that notice, which led to the present application.

On the question of the signatories’ professional status, the respondent placed facts before the court that Mr Morolong Noge had obtained the right of appearance in terms of the Act on 29 July 2016, and Mr Modise in February 2014. It was also stated on the respondent’s version that Mr Modise signed in his capacity as an authorised agent, and that this did not render the particulars of claim fatally defective. The respondent additionally contended that no prejudice had been shown by the applicant.

A dispute existed as to whether Mr Noge signed the particulars of claim. Mr Noge denied signing them and asserted that they were signed by Mr Modise as correspondent; a confirmatory affidavit by Mr Modise supported that assertion. The court treated the decisive enquiry as whether the relevant documents were signed by an attorney with a right of appearance as contemplated by the Act, rather than focusing on the identity of the specific attorney between the two.

A further procedural point raised by the respondent was that the application was allegedly out of time and should fail for want of a condonation application. The applicant did not bring a separate condonation application, and the court addressed whether one was necessary.

3. Legal Issues

The central legal questions for determination concerned the application of procedural rules to the facts of how the combined summons and particulars of claim were signed and presented.

The court was required to determine whether, for purposes of Uniform Rule 18(1), a combined summons is defective if it does not reflect on its face that the attorney signing it is an attorney with right of appearance in the High Court in terms of the Right of Appearance in Courts Act 62 of 1995, even where that attorney in fact holds such right.

Closely connected to that enquiry was whether the delivery of the notice of bar constituted an irregular step in circumstances where the applicant had challenged the summons as defective and had invoked Rule 30A.

The court also had to address a procedural timing objection: whether the applicant’s recourse was out of time and, if so, whether the absence of a condonation application was fatal. This involved an evaluative procedural determination by the court as to whether condonation was required on the facts before it.

4. Court’s Reasoning

The court approached the matter by identifying the operative requirements of Uniform Rule 18(1). It noted that the rule provides that a combined summons and pleadings must be signed by both an advocate and an attorney, or, in the case of an attorney who has the right of appearance under section 4(2) of the Right of Appearance in Courts Act 62 of 1995, by that attorney alone (with an additional alternative where a party acts in person).

The court then considered the statutory mechanism under section 4(2) of the Act, which provides for the registrar to issue a certificate confirming that the attorney has a right of appearance in the High Court once the registrar is satisfied the application complies with the Act. The relevance of this provision was that the respondent placed before the court facts indicating that both Mr Noge and Mr Modise had been issued with such certificates by the time the proceedings were instituted.

In assessing the applicant’s substantive complaint, the court accepted that it was apparent from the summons that Noge Attorneys Inc were the attorneys of record and Modise and Modise were correspondent attorneys. The court also accepted that the summons, on its face, did not state that Mr Noge was an attorney with a right of appearance as envisaged by the Act. However, the court treated the critical question as whether the documents were in fact signed by an attorney with the requisite right of appearance, rather than whether that right was expressly recorded on the face of the documents.

The court acknowledged that, as a matter of practice, attorneys with rights of appearance generally reflect that status on the combined summons, and it indicated that doing so is desirable to avoid procedural disputes. Nevertheless, the court held that Rule 18(1) does not require the pleading to state ex facie that the person signing it has the right of appearance in terms of the Act. On the evidence before it, by 2021 both relevant attorneys (Mr Noge and Mr Modise) held certificates and therefore had the right of audience in the High Court. In consequence, the court concluded that the mere failure to indicate that right on the summons did not render the summons defective. The court characterised an insistence on such an explicit indication as elevating form over substance, given that the underlying requirement (signature by an appropriately qualified attorney) had been met.

On the respondent’s point regarding lateness and condonation, the court stated that it was satisfied there was no need for a condonation application, thereby rejecting the respondent’s contention that the application should be dismissed on that basis.

Although the court found that the application seeking to declare the summons defective should fail, it separately assessed the fairness of the procedural position created by the respondent’s decision to proceed with a notice of bar while the applicant’s concerns remained live. The court considered that the lack of clarity on the face of the summons about rights of appearance had prompted the application, and it expressed the view that the respondent ought to have dealt with the concerns raised by the applicant in a way that could have prevented the application. On that basis, and as a matter of fairness in the management of pleadings, the court concluded that the notice of bar should be uplifted and the applicant should be afforded an opportunity to file further steps.

This approach reflected a discretionary, case-management type evaluation: the summons was not defective in law, but the procedural posture (including the notice of bar) warranted adjustment to ensure fairness between the parties in the pleadings process.

5. Outcome and Relief

The court dismissed the application insofar as it sought relief declaring the summons defective, setting aside steps on that basis, or striking out the respondent’s claim for non-compliance with Rule 18(1).

Despite dismissing the application, the court ordered that the notice of bar delivered on 5 August 2021 be uplifted. It further granted the applicant leave to file any further notice or pleading within five days of service of the order, failing which the respondent could file a further notice or pleading it deemed fit.

The court ordered that each party pay its own costs.

Cases Cited

No case law was cited in the judgment.

Legislation Cited

Right of Appearance in Courts Act 62 of 1995 (section 4(2)).

Rules of Court Cited

Uniform Rule 18(1).

Uniform Rule 30.

Uniform Rule 30A(1).

Held

The court held that a combined summons is not defective merely because it does not state on its face that the attorney signing it holds a right of appearance in the High Court under the Right of Appearance in Courts Act 62 of 1995, where it is established that the attorney in fact holds such right and the signature requirements of Uniform Rule 18(1) are substantively satisfied.

The court further held, as a matter of fairness in the pleadings process, that the notice of bar should be uplifted and the applicant should be afforded a short period to deliver further pleadings, notwithstanding the dismissal of the main application.

LEGAL PRINCIPLES

Uniform Rule 18(1) requires that a combined summons be signed either by both an advocate and an attorney, or by an attorney who holds a right of appearance in the High Court under section 4(2) of the Right of Appearance in Courts Act 62 of 1995; the rule does not, on its wording as applied by the court, require that the pleading itself expressly record that the signing attorney holds such right.

Where the substantive requirement of signature by a duly authorised attorney with a right of appearance is met, a failure to reflect that status on the face of the summons is not, without more, treated as rendering the summons defective; an insistence on such disclosure as a condition of validity may amount to prioritising form over substance.

Even where an application challenging the validity of process fails, the court may exercise a discretionary fairness-based control over pleadings and procedural steps, including uplifting a notice of bar and permitting further pleadings, particularly where procedural uncertainty contributed to the dispute and could have been addressed to avoid it.