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Ntiyiso Consulting CC v Mafube Local Municipality (5612/2019) [2022] ZAFSHC 180 (22 July 2022)

80 Reportability
Civil Procedure
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Brief Summary

Civil Procedure — Further particulars for trial — Applicant sought order compelling respondent to provide further particulars for trial preparation, claiming that respondent's refusal prejudiced its case — Respondent contended particulars were unnecessary and denied the existence of a valid agreement — Court held that the applicant was not entitled to further particulars as the pleadings provided sufficient clarity for trial preparation, and dismissed the application with costs.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned an interlocutory application in the High Court of South Africa, Free State Division, Bloemfontein, in which the applicant sought to compel the respondent to furnish further particulars for purposes of trial in terms of the Uniform Rules of Court. The application was heard by Africa AJ on 2 June 2022 and judgment was delivered electronically on 22 July 2022.


The parties were Ntiyiso Consulting CC (applicant/plaintiff in the main action) and Mafube Local Municipality (respondent/defendant in the main action). The interlocutory dispute arose after the respondent provided a response to the applicant’s request for further particulars, refusing to answer certain questions on the basis that the particulars were “not necessarily for the purposes of trial,” did not relate to the plea, and were therefore refused.


The broader dispute in the main action concerned an alleged breach of a partly written, partly verbal service level agreement (SLA) in terms of which the applicant purportedly rendered financial and project management advisory services to the municipality. The applicant claimed payment of R1 074 464.00 allegedly due under the SLA. The respondent disputed the existence of the agreement as pleaded, and in the alternative asserted that any such agreement would be unlawful and invalid due to non-compliance with statutory procurement requirements applicable to organs of state.


2. Material Facts


The applicant’s cause of action in the main proceedings was founded on an alleged SLA under which it provided services to the respondent and for which it claimed outstanding remuneration in the amount pleaded. The respondent’s pleaded position included a denial that an agreement had been concluded as alleged. It further contended that, if a contract were found to exist, it would be unlawful and invalid for failure to comply with statutory requirements governing municipal procurement.


It was common cause for purposes of the interlocutory application that the applicant delivered a request for further particulars for trial, and that the respondent refused to provide answers to questions 1 to 5 of that request. The respondent’s refusal was expressed on the basis that the particulars sought were not necessary for trial, were not directed at the plea, and were accordingly refused.


The applicant maintained that the requested particulars were required for trial preparation, would limit the evidence at trial, and would shorten proceedings. It contended that the refusal caused it prejudice in preparing its case. The applicant also advanced the contention that the respondent’s pleaded defences were expressed as legal conclusions (including assertions of non-compliance with procurement requirements) without sufficient factual detail, and that certain defences were said to be mutually exclusive.


The respondent, while denying the conclusion of the agreement, maintained that its plea and counterclaim were sufficiently clear to enable the applicant to understand the case it had to meet. It also relied on the existence of material in the record arising from earlier rescission proceedings, contending that its defence had been fully dealt with there and that no surprise could arise at trial. The respondent characterised the request as an attempt to elicit evidence or to tie it down unfairly.


3. Legal Issues


The central question was whether the applicant was entitled to an order compelling the respondent to provide further particulars for purposes of trial in relation to questions 1 to 5, given the respondent’s stance that the request was not necessary for trial preparation and was instead an attempt to elicit evidence or constrain the respondent’s case.


This dispute primarily concerned the application of procedural law to the pleadings and record: whether, on an assessment of the pleadings (and, where appropriate, other material in the record), the applicant had shown that the requested particulars were necessary to prevent surprise or prejudice in trial preparation, as opposed to being an impermissible attempt to obtain evidentiary material.


A further issue, relevant to the relief sought, concerned the court’s approach to the discretionary remedies under Rule 21(4), including the circumstances in which a court may ultimately strike out a defence or dismiss a claim for failure to furnish particulars (although the immediate relief sought was an order compelling replies, with contingent leave to seek striking out upon non-compliance).


4. Court’s Reasoning


The court approached the application by restating the recognised purpose of further particulars for trial, namely to prevent surprise, to inform a party with greater precision of what must be met at trial so that preparation can occur, and at the same time not to bind an opposing party so tightly that its case is unfairly limited. The court also recorded that the respondent relied on the proposition that particulars for trial are generally not intended to elicit evidence or information that would emerge in cross-examination, while the applicant relied on the qualification that even if particulars may involve disclosure of evidence, they may still be ordered where necessary to avoid embarrassment or prejudice in preparing a case.


The court identified Rule 21(4) as the operative provision governing the remedy when particulars are not delivered timeously or sufficiently. It emphasised that the rule encompasses not only complete failures to answer, but also failures that are late or insufficient. The judgment further noted the principle that striking out a defence or dismissing an action is a drastic remedy, that it is discretionary, and that it would only follow where there is deliberate and contemptuous disobedience of a court order.


In considering how to evaluate the sufficiency of the information available to the applicant, the court referred to the holding in Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D) that, in an enquiry of this nature, a court may go beyond the pleadings and consider other matter forming part of the record, since pleadings may not always contain sufficient information to determine the risk of surprise and what a party intends to prove.


Applying these principles, the court considered the respondent’s “bona fide” defence as raised in the rescission application, together with the respondent’s plea and counterclaim. On that assessment, the court concluded that it could not be said that the pleadings lacked sufficient clarity to enable the applicant to determine the case it had to meet. The judgment therefore accepted, on the material before it, that the applicant was not entitled to further particulars of the kind sought, because they were not necessary to enable trial preparation in the sense required by Rule 21 and the established purpose of trial particulars.


On that basis, the court held that the application to compel answers should fail, and that the costs should follow the result.


5. Outcome and Relief


The court dismissed the application seeking an order compelling the respondent to reply properly and fully to questions 1 to 5 of the request for further particulars for trial.


The dismissal was with costs, and no further relief (including the contingent relief concerning leave to return for striking out) was granted because the primary relief was refused.


Cases Cited


Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D).


Von Gordon v Von Gordon 1961 (4) SA 211 (T).


Annandale v Bates 1956 (3) SA 549 (W).


Legislation Cited


Constitution of the Republic of South Africa, 1996, section 217.


Municipal Finance Management Act 56 of 2003, section 110.


Municipal Supply Chain Management Regulations, regulation 32.


Rules of Court Cited


Uniform Rules of Court, Rule 21(4).


Held


The court held that, when regard was had to the respondent’s pleaded case together with the record (including the defence advanced in rescission proceedings), the applicant had sufficient clarity regarding the case it had to meet at trial. The further particulars sought were therefore not shown to be necessary to prevent surprise or to avoid prejudice in trial preparation. Consequently, the application to compel replies to questions 1 to 5 of the request for further particulars was dismissed with costs.


LEGAL PRINCIPLES


Further particulars for purposes of trial are intended to prevent surprise and to inform a party, with sufficient precision, of the case it must meet to prepare for trial, while not unfairly restricting the other party’s presentation of its case at trial.


Under Uniform Rule 21(4), where particulars are not delivered timeously or sufficiently, the requesting party may apply to court for appropriate relief. The drastic remedies of dismissal of an action or striking out of a defence are discretionary and are generally reserved for circumstances involving deliberate and contemptuous non-compliance with a court order.


In determining whether further particulars are necessary to prevent surprise and enable trial preparation, a court may consider not only the pleadings but also other parts of the record, because pleadings alone may not contain sufficient information to assess what a party intends to prove at trial and whether an opponent may be taken by surprise.

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[2022] ZAFSHC 180
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Ntiyiso Consulting CC v Mafube Local Municipality (5612/2019) [2022] ZAFSHC 180 (22 July 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5612//2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NTIYISO
CONSULTING CC
Applicant/Plaintiff
and
MAFUBE
LOCAL MUNICIPALITY
Respondent/Defendant
CORAM
:
AFRICA, AJ
HEARD
ON:
02 JUNE 2022
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time
for
hand-down is deemed to have been at 11h00 on 22 JULY 2022.
JUDGMENT
INTRODUCTION
[1]
In this interlocutory application the applicant seeks an order in the
following terms:
1.
That
the respondent be ordered to properly and fully reply to questions
numbered 1 to 5 of the Applicant’s
Request
for Further Particulars
for purposes of trial
[1]
, within
10 days from the date on which this order is granted;
2.
That should the Respondent fail to
comply with prayer 1
supra
,
the applicant be given leave to approach the above Honourable Court,
on the same papers, duly supplemented, for an order that
the
respondent’s defence as contained in the plea and the claim as
contained in its counterclaim be struck out;
3.
That the respondent is ordered to pay
costs of this application on an attorney and client scale;
[2]
This application was launched subsequent to defendant’s
responds to applicant’s
request for further particulars for the
purposes of trial, stating that:
“
The
particulars requested herein are not necessarily for the purposes of
trial, does not relate to the defendant’s plea and
are
accordingly refused.”
[3]
The applicant contends that the particulars so requested from the
respondent is not
only required for purposes of trial preparation but
that such particulars will limit the evidence which is to be led at
trial and
shorten the legal proceedings. Further, that the
respondent’s reply as aforesaid and its refusal to provide the
particulars
requested severely prejudices the applicant in its
preparation for trial.
[2]
[4]
The applicant’s claim in the main action is premised on the
respondent’s
breach of a partly written, partly verbal Service
Level Agreement (“SLA”) in terms of which the applicant
was to provide
financial and project management advisory services to
the respondent. Applicant contends that the respondent is in breach
of the
SLA and has failed and/or refused to pay the total amount of
R1 074, 464.00, to the applicant.
[5]
The respondent denies that an agreement was entered into between the
parties as pleaded
by the applicant and accordingly that the
applicant have the
onus
to prove this agreement.
[3]
[6]
The applicant contends that the purported defences raised by the
respondent are mutually
exclusive of one another and further that the
defences so raised constitutes legal conclusions which cannot
co-exist. It is argued
that the respondent fails to plead any facts
in order to substantiate the legal conclusions of non-compliance with
the statutory
requirements and Regulations relied upon.
[7]
Save for the baseless allegation that no procurement system was
followed and that
Mr Hlubi (“respondent’s
representative”) was not authorised to procure the applicant’s
services and that
there was non-compliance with section 110 of the
Municipal Finance Management Act 56 of 2003 (“MFMA”) and
Regulation 32
of the
Municipal Supply Chain Management Regulations
(“the Regulations”), the respondent did not advance any
factual allegations required to sustain such purported defence
in the
Application for Rescission of judgment and the respondent’s
plea is even more devoid of any facts in support of the
legal
conclusions, which the respondent relies on.
[4]
Therefore, the submission by the applicant is that the respondent
bears the
onus
of proving the alleged unlawfulness of the SLA.
[8]
The respondent in denying that an agreement was entered to, submits
that should the
trial court finds that an agreement was in fact
entered into between the parties, such agreement is unlawful and
invalid for want
of compliance with the statutory requirements which
provide clear requirements for a valid and lawful agreement to be
concluded
between organs of state and private entities. These
requirements were simply not met and respondent’s plea is clear
in this
regard.
[5]
[9]
A further submission made by applicant is that what the respondent
seeks to do in
casu
is a declaration of invalidity of the agreement in the form of a
defence at a juncture when respondent’s contractual counterpart

(applicant) moves for the enforcement of the contract, constitutes
what has been referred to as a ‘reactive challenge’
or
‘collateral challenge’.
[6]
LEGAL
PRINCIPLES APPLICABLE
[10]
The purpose of permitting a party to call for further particulars for
trial is:
a)
To prevent surprise;
b)
That the parties should be told with
greater precision what the other party is going to prove in order to
enable his opponent to
prepare his case to combat counter
allegations;
c)
Having
regard to the aforegoing, nevertheless not tie the other party down
and limit his case unfairly at the trial.
[7]
[11]
Rule 21(4)
provides essentially that if the party is called upon to
furnish any particulars, fails to deliver same timeously or
sufficiently,
the requesting party may apply to court for an order
for the delivery or for the dismissal of the action or the striking
out of
the defence of the defaulting party, whereupon the court may
make such order as it deems meet.
[12]
A court will only strike out the defence or claim if it is found that
the party has deliberately
and contemptuously disobeyed the order.
The
following three (3) points warrant mention with regards to the ambit
of
rule 21(4):
[12.1]
the rule applies not only where there has been a complete failure to
furnish particulars, but also in the ostensibly less
serious
instances namely, failing to comply timeously or sufficiently;
[12.2]
secondly, it is clear that the ultimate remedy for the dismissal of
an action or the striking out of a defence is a drastic
remedy;
[12.3]
thirdly, it is clear that the power to grant such a remedy is
discretionary and that the discretion
must be exercised
judicially.
[13]
The respondent argues that in general, however, the purpose of
particulars for trial is not to
elicit evidence or information which
will emerge on cross-examination.
[8]
[14]
The applicant however holds the view that even if the particulars
requested may at times involve
the disclosure of evidence, this does
not disentitle the party requesting such particulars from obtaining
them, if on the grounds
of embarrassment or prejudice in preparation
of his case, he would otherwise be entitled to know what case he has
to meet.
[9]
[15]
The applicant holds the view that the contention that the statutory
provisions and Regulations
relied on by the respondent are
sufficiently clear so as to enable the applicant to ascertain what
case it is required to meet,
is respectfully, without merit.
[16]
In opposing this argument, counsel for the respondent submits that
respondent’s plea read
with its counterclaim is clear in this
respect. In fact, the respondent has dealt with its defence to
applicant’s claim in
the action fully in the Rescission
proceedings to which the applicant had referred to in its heads of
argument.
[10]
Therefore it can
neither be said that the applicant does not know what the case of the
respondent will be, nor can there be any
surprise. Respondent submits
that this application brought by applicant is misplaced as it amounts
to nothing more than an attempt
to solicit evidence or tie the
respondent down and limit its case unfairly.
[17]
The respondent submits that what is being sought by applicant, he is
not entitled to and that
the statutory provisions referred to are
clear because it sets out what requirements must be met. Applicant as
the plaintiff in
the main action is
dominus litis
and should
know how to prepare for trial.
[18]
This court is indeed mindful that with reference to the case of
Schmidt
[11]
,
it was held:
“
that
the court was entitled in an enquiry such as the present to go beyond
the pleadings and to look at matter forming part of the
record…since
the pleadings alone did not necessarily contain sufficient
information to determine whether or not a party
may be taken by
surprise and what the other party intended to prove.”
[19]
The respondent argues that having regard to the Rescission of
Judgment, and the fact that the
POC
[12]
does not indicate how the SLA was concluded, for example by way of
procurement; the respondent under these circumstances are therefore

necessitated to formulate its plea as wide as possible and if the
plaintiff was in any manner embarrassed to plea, then an Exception

should have been filed. Counsel for the respondent argues that
section 217
[13]
can be deemed
as an “umbrella provision” and   that the
defences raised is not mutually exclusive.
[20]
The applicant states
[14]
that
the respondent’s plea raises a bare denial in respect of the
conclusion of the SLA, save for specious allegations that
no
procurement system was followed. Further, that respondent failed to
advance any other factual allegations required to sustain
such
purported defence in the application for Rescission of Judgement; the
plea being more devoid of any facts in support of the
legal
conclusions which the respondent relies on.
[21]
This court having regard to the “
bona fide
”
defence raised in the Application for Rescission; Respondent’s
plea and Counterclaim, is of the considered view that
it cannot be
argued that, the pleadings lack sufficient clarity to enable the
applicant to determine, which case it has to meet.
Therefore, the
applicant is not entitled to call for such further particulars, which
in the view of this court is not necessary
to enable applicant to
prepare for trial.
[22]
In the result the following order is made:
[22.1]
The Application that the Respondent be ordered to properly and fully
reply to Applicant’s request for further
particulars, is
dismissed with costs.
AFRICA,
AJ
APPEARANCES
:
COUNSEL
FOR THE APPLICANT:
Adv. Van der Merwe
Instructed
by:

Honey Attorneys
COUNSEL
FOR THE RESPONDENT
:

Adv. Roux
Instructed
by:
Peyper

Attorneys
[1]
A copy of which is annexed to the founding affidavit marked “N1”.
[2]
Paragraph 28 of applicants heads of argument.
[3]
Record, page 24 paragraph 7.
[4]
Paragraph 12 of applicants written heads of argument.
[5]
Paragraph 8.3 of respondent’s heads of argument.
[6]
Paragraph 17 of applicant’s heads of argument.
[7]
Schmidt Plant Hire (Pty) Ltd v Pedrelli
1990 (1) SA 398
(D) at 402.
[8]
Von Gordon v Von Gordon
1961 (4) SA 211
(T) at 213.
[9]
Annandale v Bates
1956 (3) SA 549
(W) at 551.
[10]
Paragraph 14 of respondents heads of argument.
[11]
1990 (1) SA 398.
[12]
Particulars of claim
[13]
Of the Constitution
[14]
Paragraph 11 of applicant’s heads of argument.

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