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[2022] ZAFSHC 247
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Letseng v Car Care Clinic Bloemfontein (4090/2021) [2022] ZAFSHC 247 (17 June 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4090/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
LELOKONYANA
ISAAC
LETSENG
Applicant/Plaintiff
And
CAR
CARE CLINIC BLOEMFONTEIN
Respondent/Defendant
HEARD
ON:
26
MAY2022
JUDGEMENT
BY:
LITHEKO,
AJ
DELIVERED
ON:
17
JUNE 2022
Introduction
[1]
This
case
involves
an
application
and
a
counter
application,
both
brought
in
terms of Rule 30 of the Uniform Rules of Court.
The
parties
[2]
The
plaintiff
is
an
adult
male
resident
at
[....]
C[....],
V[....]
Road, W[....], Bloemfontein.
[3]
The defendant is motor mechanics company
conducting business at 30 Curie Avenue, Bloemfontein.
Background
[4]
On the 06
th
September 2021 the plaintiff issued a combined summons in this Court
against the defendant wherein he prays for confirmation of
cancellation of the agreement between him and the defendant, return
of the Volvo [....] motor vehicle with registration number
[....] and
for payment of R123,420.00.
[5]
On the 17th September 2021, after
entering a notice of intention to defend, the defendant delivered a
notice in terms of Rule 30(2)(b)
complaining about the irregularity
of the plaintiff's combined summons owing to non-compliance thereof
with the provisions of Rule
18(1) and Rule 41A(2)(a) of the Uniform
Rules of Court.
[6]
The bases of the complaints are that:
(a)
The plaintiff's summons and the
particulars of claim annexed thereto were signed only by an attorney
without indicating therein
that he has a right of appearance in the
High Court.
(b)
The plaintiff
did not serve a notice wherein he
indicates whether
he
agrees to or opposes referral of the dispute to mediation.
[7]
On the 4
th
October 2021 the plaintiff also delivered a notice of complaint in
terms of Rule 30(2)(b). The cause of complaint is that the
defendant's
notice
in terms of the latter rule is an irregular step for the reason that,
by delivering a notice of intention to defend, the
defendant had
taken a further step in the cause with knowledge of the alleged
irregularity. The plaintiff consequently called upon
the defendant to
withdraw its notice of complaint in terms of Rule 30(2)(b).
[8]
The defendant did not comply with the
plaintiff's Rule 30(2)(b) notice whereupon the plaintiff served an
application in terms of
Rule 30(1) to have defendant's notice in
terms of Rule 30(2)(b) set aside.
[9]
On the 22
nd
April 2022 the defendant served a counter application in terms of
Rule 30(1) upon the plaintiff wherein it sought an order setting
aside the plaintiff's combined summons on the basis that same is
irregular on the grounds stated above. As the defendant's counter
application was out of time, condonation was granted
by
agreement
which
was
made
an
order
of
the
Court
on the 14
th
April 2022.
[10]
Both the application and the counter
application are opposed.
The
legal position
[11]
The relevant provisions of Rule 30 are
the following:
"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 sub-rule (1)
shall be on notice to all parties specifying the 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
fifteen days after the expiry of the second period mentioned in
paragraph (b) of sub-rule (2).
(3)
••• ‘’
[12]
Rule 18(1) provides that:
"(1)
A combined summons, and every other pleading except a summons, shall
be signed by both an advocate and an attorney or,
in the case of an
attorney who, under Section 4(2) of the Right of Appearance in Courts
Act, 1995 (Act No. 62 of 1995), has the
right of appearance in the
Supreme Court, only by such attorney or, if a party sues or defends
personally, by that party."
[13]
During
the hearing Mr. Tsoeu, who appeared for the plaintiff conceded that,
not only is entry of appearance to defend not a further
step
contemplated in Rule 30(2)(a),
[1]
but the application of the plaintiff stands to fail based also on the
provisions of Rule 19(4). Rule 19(4) provides that:
"(4)
A party shall not by reason of delivery of notice to intention to
defend be deemed to have waived any right to object
to the
jurisdiction of the court or to any irregularity or impropriety in
the proceedings".
[14]
Mr. Booysen, for the defendant did not
pursue his application based on the provisions
of
Rule
41A(2)(a).
He
argued
however
that
the
plaintiff's
combined summons must be set aside on
the basis that it was not signed in accordance with the provisions of
Rule 18(1).
[15]
It is necessary to mention the fact that
the defendant's case in this regard is based on the fact that the
combined summons that
was served upon the defendant did not have the
last page. This last page is page 16 of the paginated bundle to which
the signature
of Adv. Tsoeu is appended.
[16]
Mr. Booysen consequently attacks the
combined summons on the basis that:
(a)
Firstly, it was signed only by an
attorney who does not have a right of appearance in the High Court,
if that last page is to be
disregarded, and
(b)
Secondly, even if the last page is not
disregarded, it is irregular on the basis that only the particulars
of claim were signed
by the advocate whereas in terms of Rule 18(1),
both the summons and the particulars of claim must be signed by an
attorney with
a right of appearance in the High Court or by any other
attorney and an advocate.
[17]
Regarding
the last page, Mr. Booysen
argued that it must be disregarded
as it did not form part of the combined
summons upon service thereof on the defendant. He suspects that it
was surreptitiously annexed
to the particulars of claim after the
defendant raised the irregularity of the combined summons. However,
Mr. Booysen conceded
that a possibility also exists that the combined
summons may have been served with all the pages upon the defendant
and that the
defendant might have misplaced the last page.
[18]
In the light of the fact that the
combined summons which was filed with the registrar
is complete and for the reason
that it is not improbable
that the last page may have been part of
the combined summons upon service and might have been misplaced by
the defendant, I am
not prepared, based on a suspicion, to disregard
any part of the summons that is contained in the court file.
[19]
The last issue raised by Mr. Booysen is
whether a combined summons that is signed by an attorney
and an advocate only on the particulars
of claim is irregular for want of
compliance with Rule 18(1). The attorney in this matter signed the
summons alone and it is common
cause that he does not have the right
of appearance in the High Court.
[20]
Mr.
Booysen
referred
me to the unreported
judgement
of
Rampai J.
in
the case of Louw v Grabler and Another
[2]
, which he argues is authority for the proposition that to comply
with the provisions of Rule 18(1), both the summons and the
particulars of claim must be signed by either an attorney authorised
to appear in the High Court or by any other attorney and an
advocate.
In that case, although the Court was dealing with a combined
summons
wherein the attorney had stated
in
the particulars
of
claim, but not on the summons,
that
he
had the
right
to appear in the High Court, the following was said, in passing:
"The
second defendant did not challenge the way the summons had been
signed as explained in the preceding paragraph. Consequently,
it has
to be accepted that the summons, as prefixed to the particulars of
claim, was duly signed by an attorney lawfully certified
to appear in
this Court."
[3]
[21]
The Court proceeded as follows:
"It
was never the second defendant's case that the particulars of claim
on the one hand and the summons to which they were
affixed on the
other hand were not signed by one and the same person. It must
accordingly be accepted that the same attorney who
has a right of
appearance in terms of section 4 and competent to sign a combined
summons alone in terms of Rule 18(1) also signed
the particulars of
claim."
[4]
[22]
It is indeed correct that, properly
interpreted, the paragraphs of the judgement referred to above seem
to suggest that both the
summons and the particulars of claim must be
signed either by an attorney with the right of appearance
in the High Court or by an attorney and
an advocate. However, to the extent that that is the interpretation
given to the provisions
of Rule 18(1) in that judgement, I am unable
to agree therewith. In any event, the issue that had to be
adjudicated in that case
was not the meaning to be given to the
provisions of Rule 18(1) but a different issue altogether.
[23]
The answer to the issue raised by Mr.
Booysen is to be found in the proper meaning of Rule 18(1) and, in my
view, the following
rules are relevant in the determination of that
meaning:
23.1
Rule 1 defines a combined summons as a
"summons with particulars of
plaintiff claim annexed thereto in terms of subrule (2) of rule 17."
23.2
Rule 17(2)(a) provides that:
"(2)(a)
In every case where the claim is not for a debt or liquidated demand,
the summons shall be in accordance with Form
10 of the First
Schedule, to which summons shall be annexed particulars of the
material facts relied upon by the plaintiff in support
of the claim,
which particulars shall
inter alia
comply with rule 18;
and..."
[24]
Rule 18(1) requires a combined summons,
and every other pleading except a summons, to be signed by an
attorney with a right of appearance
in the High Court or an attorney
with no such right, together with an advocate. When this is read with
Rule 17(2)(a), the result
is that the part of the combined
summons
that is required to be signed as
provided in Rule 18(1) is the
"annexed
particulars of the material facts relied upon by the plaintiff'.
This
view is based on the fact that Rule 18(1) specifically provides that
"a
combined summons, and every
other pleading"
shall be signed
with the specific 'exclusion'
of
a summons, which is not a pleading. Lest I am misunderstood, I must
state that I do not suggest that a summons need not be signed,
but my
understanding of the rule is that only the particulars of claim which
are annexed to the summons need to be signed by an
attorney with the
right of appearance in the High Court or by an attorney and an
advocate. It is sufficient
compliance
with the rule if the summons
is
signed
only
by an attorney who has no right to appear in the High Court and the
particulars of claim annexed thereto are signed by both
such attorney
and an advocate.
[25]
As I have found that the last page of
the particulars of claim should not be disregarded, contrary to Mr.
Booysen's submission,
and for the reason that the last page has been
signed by an advocate, there is, in my view, sufficient compliance
with the provisions
of Rule 18(1). The combined summons is
consequently properly signed and it is not an irregular or improper
step. The defendant's
counter application therefore also stands to be
dismissed.
COSTS
[26]
Based
on
the above conclusion,
there
is no need to deal with the issue of costs in any more detail than to
order that, as both parties have been unsuccessful,
each party must
pay his or its own costs.
ORDER
[27]
In the result I make the following
order:
1.
The plaintiff's application in terms of
Rule 30 is dismissed.
2.
The defendant's counter application in
terms of Rule 30 is dismissed.
3.
Each party is ordered to pay his/its own
legal costs.
M.S.LITHEKO,
AJ
For
the Applicant:
AdvTE
Tsoeu
Instructed
by:
ZB Moletsane
Attorneys
211
Second Floor, Sondag Skool Gebou
154
Charlotte Maxeke Street
Bloemfontein
For
the First Respondent: Adv.
Booysen
Instructed
by: Scheepers
Pretorius Inc
c/o
Stiglitz Bates Attorneys
77
Kellner Street, Wesdene
Bloemfontein
[1]
Singh v Vorkel
1947 (3) SA 400
(C) at 407.
[2]
(3074/2016)
[2016] ZAFSHC 206
(15 December 2016).
[3]
At paragraph 22
[4]
At paragraph 23.