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[2022] ZAFSHC 187
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Flexi Trade 110 (Pty) Ltd Maselspoort Resort and Another v Capitaux (Pty) Ltd (284/2022) [2022] ZAFSHC 187 (4 August 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case No.: 284/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter between:
FLEXI
TRADE 110 (PTY) LTD
First
Respondent/First Plaintiff
MASELSPOORT RESORT AND
CONFERENCE
CENTRE (PTY) LTD
Second
Respondent/Second Plaintiff
And
CAPITAUX
(PTY)
LTD
Applicant/Defendant
Coram:
Opperman,
J
Date
of hearing:
9
June 2022
Judgment
Delivered:
4
August 2022.
The reasons for judgment were
handed down electronically by circulation to the parties’ legal
representatives by email and
release to SAFLII on 4 August 2022. The
date and time for hand-down is deemed to be 4 August 2022 at 15h00
Summary:
Irregular step – Rules 17(3) and 18(1) of
the Uniform Rules of Court – signature of legal representative
not on copy
of summons and pleadings served on opposing party or
before issued by registrar.
JUDGMENT
BACKGROUND
[1]
The applicant/defendant (“Capitaux”) seeks an order
setting aside the first and second respondents’/plaintiffs’
(“respondents”) summons, inclusive of the particulars of
claim (combined summons
[1]
),
served on them on 1 February 2022
(“the
1 February 2022 – combined summons”)
,
as being an irregular step.
[2]
[2]
The irregularity is to be in terms of Rule 30(1) of the Uniform Rules
of the Court.
[3]
Rule
30(1): A party to a cause in which an irregular step
[4]
has been taken by any other party may apply to court to set it aside.
[3]
The application, fundamentally, turns on the alleged non-compliance
with the provisions of Uniform Rules
17(3) and 18(1) that was
acknowledged by both parties.
[5]
[4]
It is clear from BKR1
[6]
introduced into evidence by Capitaux and not disputed by the
respondents; that a combined summons, the summons and the particulars
of claim, was not signed and dated by the legal practitioner when it
was issued by the Registrar of the Court on 25 January 2022
and
served on the opposing party by the Sheriff on 1 February 2022 in
terms of Rule 4(1)(a)(v) “by handing to the firstmentioned
(sic) a copy thereof after exhibiting the original and explaining the
nature and exigency of the said process RULE 4 (1)(a)(v).”
[7]
[5]
It is the evidence of the respondents that the original version of
the 1 February 2022 – combined
summons (“the original
combined summons”) was properly signed, issued and served. It
seems as if it was not the original
that was exhibited to the
recipient nor so handed over. I will return to this aspect later.
[6]
There is a definite distinction to be observed between the 1 February
2022 – combined summons
and the original combined summons. The
application is for the 1 February 2022 – combined summons to be
set aside;
[8]
not the original
combined summons.
[7]
Capitaux complied with Rule 30(2) that decrees that an applicant must
give notice to all the parties
whereby the particulars of the alleged
irregularity are specified. Such an application may be made
only if:
(a)
The applicant has not himself or herself or itself taken a further
step in the proceedings with the knowledge
of the irregularity;
(b)
The applicant has, within 10 days of becoming aware of the irregular
step by written notice afforded the
opponent an opportunity of
removing the cause of the complaint within 10 days; and
(c)
The application to set aside is delivered within 15 days after the
expiry of the 10-day period within which
the opponent was supposed to
have removed the cause of the complaint.
THE FACTS
[8]
The factual basis for the application as per the narrative of
Capitaux that was caused by the reality
they were confronted with at
the time of the launching of the application, is the following:
[9]
7.
The Respondents’ combined summons and
particulars of claim were served on the Applicants’
offices on
1 February 2022. A copy of the combined summons and particulars of
claim as received by the Applicant are annexed hereto
marked
“
BKR1”
,
with the return of service annexed thereto marked
“
BKR2”.
8.
The combined summons that was served was dated 25 January 2022 and
did not bear the signature of
any attorney.
9.
The particulars of claim that was served was not dated and did not
bear the signature of an attorney.
The Respondent’s
response to the opportunity to remedy the irregularity
13. In
accordance with rule 30(2)(b), the Respondents were afforded 10 days
within which they had the opportunity to
remove the causes of
complaint.
14.
On 16 February 2022 the Respondents’ attorneys addressed a
letter to my offices via email. The letter dated
16 February 2022 is
annexed hereto marked
“
BKR5”
.
15. The
letter enclosed signature (sic) pages that the Respondent’s
attorneys allege to be:
15.1 “
a
copy of the signed page 3 of the combined summons as well as a copy
of the signed page 16 of the Plaintiff’s particulars
of claim.”
16.
On 22 February 2022, I addressed a letter to the Respondents
attorneys’ offices, via email, in response
to the signed pages
emailed to my offices by the Respondent’s attorneys. The letter
dated 22 February 2022 is annexed hereto
marked
“
BKR6”
.
17. For
this Honourable Court’s convenience our letter recorded the
following observations at paragraph
3 thereof:
“
3.
In respect of the above, we note that:
3.1 – page 3 of
the combined summons is not the same page that has been signed by the
Registrar of the Court and served on
our client by the sheriff; and
3.2 – it appears
that page 16 of the particulars of claim has been backdated,
subsequently signed, and is also not the same
page that was served on
our client by the sheriff.”
18. On
the grounds of the above observations, I informed the Respondents in
my letter, at paragraph 4, that:
“…
we
are not able to respect the email receipt of the signed pages as the
appropriate procedure to remedy your clients’ non-compliance
with the Uniform Rules of the Court.”
19.
On 28 February 2022 the Respondent’s attorneys addressed a
letter, with annexures, to my offices via
email. The letter
dated 25 February 2022, and its annexures, are annexed hereto marked
“
BKR7”
.
20. On
the Respondents’ attorney’s own version, the letter
records in paragraph 7 thereof:
“
7.1
The
only difference between the original summons (a copy of which was
mailed to you) and the copy that was served on your client
is that
the original was signed and dated in manuscript
[10]
by writer”;
and
“
7.2
The copies of the
originally issued summons, were neither signed nor dated as it is not
a requirement of the Uniform Rules of Court
nor is it a practice in
the Free State Division.”
21. The
statements from the letter above are not only contradictory, but the
Respondents’ attorneys acknowledged
that:
21.1. there
is a difference between the version emailed to us and the version
that was served on the Applicant; and
21.2
the originally issued summons was not signed nor dated.
22. One
only has to look at the signature page of the summons as part of
Annexure BKR5 to see that the date of
the summons sent to my offices
via email, and the date of the summons served on the Applicant, are
different.
Conclusion
23.
Despite being afforded the opportunity (sic) correct the irregularity
and/or non-compliance with the Uniform
Rules of Court, the
Respondents have failed and/or refused to correct the irregularity
and/or non-compliance.
24. The
Rules require that a summons and particulars of claim be signed in a
particular manner in order that there
can be no dispute at a later
stage as to which documents the defendant party/ies are being called
upon to answer. In this
case, the Applicant cannot be expected
to answer a claim not knowing which version of the summons or
particulars of claim it is
expected to answer. On the
Respondent’s own attorney’s correspondence, per paragraph
7.1 of Annexure BKR7, there
is a difference between the original
version, and the version served on the Applicant.
25. The
Respondents’ combined summons and particulars of claim should
therefore be set aside with costs,
including costs of counsel.
[9]
Counsel for the respondents is mistaken in
their submission in paragraph 6.2 of their Heads of Argument: “That
the respondents’
original combined summons and particulars of
claim with annexures “A” to “C” (“
the
process”)
was served upon the
applicant’s registered address on 1 February 2022.” It
was a copy and not a true or exact copy of
the original that was
handed over to Capitaux. The original was not handed over to the
Sheriff according to the statement of the
legal practitioner and
could neither have been served nor exhibited.
1.
If it was the original or an exact copy of
the original, it would have borne the signature of the legal
practitioner of the respondents;
this, on the version of the legal
practitioner that the original was indeed signed by him and issued by
the Registrar of the Court.
The legal practitioner states as follows:
14.8.2 Pursuant to the
photo stating of the documents referred to in paragraph 14.8.1 above,
the date of 24 January 2022 was recorded
in manuscript by myself
on
only the not yet issued original combined summons and particulars of
claim
and which not yet issued original combined summons and
particulars of claim I also signed on 24 January 2022. (Accentuation
added)
2.
According to the statement it is this
document that was issued by the Registrar; the signed original
document. One Mr. Mvambi (paragraph
14.8.7) “… returned
the now issued original combined summons, together with photo stated
copies to the offices of
Symington & de Kok Inc.” (There is
a definite distinction between the original signed documents,
probable copies of the
original signed documents and the unsigned (by
the legal practitioner) photo stated copies. It is not known if
copies were made
of the original signed and issued version.)
3.
Subsequent thereto aforesaid documents were
attached to a letter of instruction addressed to the Sheriff with the
necessary jurisdiction.
Mr. Mvambi delivered the letter of
instruction together with the “
now
issued original combined summons,
a
copy thereof
(on the basis
explained above) as well as …” (paragraph 14.8.8).
4.
“
14.8.9 The sheriff, in turn,
caused
a copy of the original
combined summons
to be served
upon the applicant, on 1 February 2022, …”
This cannot be correct because an unsigned copy was served on
Capitaux; the original combined summons was signed and the copy of
the original combined summons would also have been a signed version.
An unsigned photo stated document was handed over and it differs
from
the original combined summons in regards to the signature(s) and the
manner the date was written by the Registrar.
5.
In paragraph 14.8.10 the legal practitioner
confusingly so, stated that: “… it is appropriate to
point out that the
copies of the original combined summons are true
copies thereof except for the fact that said copies do not reflect my
signature
and date of 24 January 2022 as recorded on the original
combined summons and particulars of claim.” This might prompt
the
inference that the copy of the original referred to is not a copy
of the original but the photo stated version that was not signed.
It
must be noted that Capitaux did not have any evidence or assurance
that the document they received was a true copy; it differed
from the
original and the affidavit of the legal practitioner was not
available to them.
6.
In summary; an inference can be made that
the 1 February 2022 – combined summons is the same as the
“original”
referred to by the Sheriff exhibited to the
recipient. In other words, there was not a signed version; original
or copy, in the
possession of the Sheriff.
7.
The 1 February 2022 – combined summon
cannot be a true copy of the original if it does not bear the
signature of the legal
representative. The original was signed and
the date signed by the Registrar altered.
8.
BKR3 and BKR4 was electronically signed
(the so-called stamp signature).
9.
Rule 4 permits the service of a copy of the
summons but, as will be shown later, it must be a true copy and true
reflection of the
original properly signed and issued.
[10] The
unfortunate reality of the case is that the documents that were
served on Capitaux were not signed and dated
by the legal
practitioner; only the Registrar. It could therefore not have been
the original or a true copy of the original. The
original was signed
and dated by the legal practitioner and issued by the Registrar. The
1 February 2022 – combined summons
did not bear the signature
of the legal practitioner (BKR1). The date on page 3 later supplied
(page 84 of the Bundle) has been
altered by the Registrar and is
different from page 3 of the 1 February 2022 – combined
summons. It was not the date signed
by the legal practitioner that
was altered but the date signed by the Registrar.
[11]
In
Russel
and Flemming v Levitt
1904 TH 322
[11]
Wessels, J, as
he then was, ruled that the copy of a promissory note served on the
defendant was not a true copy of the original
note, in that the names
of certain sureties which had been scratched out on the original did
not appear as so scratched out on
the copy served on the defendant.
Wessels, J dismissed the summons on this basis with costs.
THE ISSUES
[12] Firstly;
did the manner in which the respondents litigate offend against the
Rules of Court to the extent that
it caused an irregular step or
irregularity?
[13] The
second issue is whether the respondents’ presentation,
via
email, of copies of two pages that purports to represent the whole of
the document, remedied the objections of Capitaux and the
administration of justice in general. May the alleged oversight of
the respondents be condoned with the mere presentation of copies
of
pages 3 and 16 of the original papers that are different from the
copy served and exhibited; or should original documents, or
true and
exact copies thereof, as a whole have been served on Capitaux?
THE LAW & FINDINGS
[14] The
Constitutional Court in
Grootboom v National Prosecuting Authority
and another
2014 (2) SA 68
(CC) noted that the inundation of
courts by slovenly litigation is unacceptable. I align myself with
this concern.
[32] I
need to remind practitioners and litigants that the rules and court's
directions serve a necessary purpose.
Their primary aim is to ensure
that the business of our courts is run effectively and efficiently.
Invariably this will lead to
the orderly management of our courts'
rolls, which in turn will bring about the expeditious disposal of
cases in the most cost-effective
manner. This is particularly
important given the everincreasing costs of litigation, which if left
unchecked will make access to
justice too expensive.
[33]
Recently this court has been inundated with cases where there has
been disregard for its directions. In
its efforts to arrest this
unhealthy trend, the court has issued many warnings which have gone
largely unheeded. This year, on
28 March 2013, this court once again
expressed its displeasure in eThekwini19 as follows:
'The conduct of litigants
in failing to observe rules of this court is unfortunate and should
be brought to a halt. This term alone,
in eight of the 13 matters set
down for hearing, litigants failed to comply with the time limits in
the rules and directions issued
by the Chief Justice. It is
unacceptable that this is the position in spite of the warning issued
by this court in the past. In
[Van Wyk], this court warned litigants
to stop the trend…
'The statistics referred
to above illustrate that the caution was not heeded. The court cannot
continue issuing warnings that are
disregarded by litigants. It must
find a way of bringing this unacceptable behaviour to a stop. One way
that readily presents itself
is for the court to require proper
compliance with the rules and refuse condonation where these
requirements are not met. Compliance
must be demanded even in
relation to rules regulating applications for condonation.'
[34]
The language used in both Van Wyk and eThekwini is unequivocal. The
warning is expressed in very stern
terms. The picture depicted in the
two judgments is disconcerting. One gets the impression that we have
reached a stage where litigants
and lawyers disregard the rules and
directions issued by the court with monotonous regularity. In many
instances very flimsy explanations
are proffered. In others there is
no explanation at all. The prejudice caused to the court is
self-evident. A message must be sent
to litigants that the rules and
the court's directions cannot be disregarded with impunity.
[35]
It is by now axiomatic that the granting or refusal of condonation is
a matter of judicial discretion. It
involves a value judgment by the
court seized with a matter based on the facts of that particular
case. In this case, the respondents
have not made out a case
entitling them to an indulgence. It follows that their application
must fail.
[15] With
regard to and respect for the significance of proper and due process
and the rights of Capitaux in the instance;
the legal representatives
of the parties could have prevented the unsavoury mudslinging with
one or two professionally mature collegial
conversations
via
any
method of communication but litigation. The constitutional piety and
virtue of litigation; or access to court and integrity
of legal
practitioners, are precious commodities.
[16] This is
what they accuse each other off:
The applicant
2.
We note that you have enclosed a copy of a signed version of what you
now allege to be page 3 of your
clients’ combined summons, as
well (sic) a copy of a signed version of what you allege to be page
16 of your clients’
particulars of claim.
3.
In respect of the above, we note that:
3.1
page 3 of the combined summons is not the same page that has been
signed by the Registrar of the Court and
served on our client by the
sheriff; and
3.2
it appears that page 16 of the particulars of claim has been
backdated, subsequently signed, and is also not
the same page that
was served on our client by the sheriff.
[12]
The respondent
4.
Properly interpreted, your letter under reply is spurious and
defamatory as to its content.
[13]
[17] The
approach of this Court to be applied will not be balanced if I do not
caution in the words of Rampai, J in
Louw v Grobler and another
(3074/2016)
[2016] ZAFSHC 206
(15 December 2016) that:
[18] The purpose of
the uniform court rules is to regulate the litigation process,
procedures and the exchange of pleadings. The
entire process of
litigation has to be driven according to the rules. The rules
set the parameters within the course of litigation
has to
proceed. The rules of engagement, must, therefore, be obeyed by
the litigants. However, dogmatically rigid adherence
to the
uniform court rules is as distasteful as their flagrant disregard or
violation. Dogmatic adherence, just like flagrant
violation,
defeats the purpose for which the court rules were made. The
prime purpose of the court rules is to oil the wheels
of justice in
order to expedite the resolution of disputes. Quibbling about
trivial deviations from the court rules retards
instead of enhancing
the civil justice system. The court rules are not an end in
themselves.
[18]
The above noted; parties to litigation have a right to have
irregularities set aside if it affects the efficacy
of constitutional
litigation. All parties have a right to trust the veracity of a
summons and particulars of claim. Eksteen, AJ
in a scenario similar
to the case in hand, in
Bredenkamp v
Dart
1960 (3) SA 106
(O) set aside the
plaintiff's
replication in the matter of
Neuritza
Dart v Johannes Christoffel Bredenkamp
and the respondent was ordered to pay the costs of the application
for the
fact that it was not properly signed
.
[19] In 2016
Rampai, J of this division ruled unequivocally in
Louw v Grobler
and Another
supra
that the summons and particulars of
claim
must
be signed and non-compliance
shall
cause an
irregular step.
Rule
18(12) If a party fails to comply with any of the provisions of this
rule, such pleading shall be deemed to be an irregular
step and the
opposite party shall be entitled to act in accordance with rule 30.
[20] Rule
17(3):
(3)(a) Every summons
shall be signed by the attorney acting for the plaintiff and shall
bear an attorney's physical address, within
15 kilometres of the
office of the registrar, the attorney's postal address and, where
available, the attorney’s facsimile
address and electronic mail
address.
(b)
If no attorney is acting, the summons shall be signed by the
plaintiff, who shall in addition
append an address within 15
kilometres of the office of the registrar at which plaintiff will
accept service of all subsequent
documents in the suit, the
plaintiff's postal address and, where available, plaintiff's
facsimile address and electronic mail address.
(c)
After paragraph (a) or (b) has been complied
with, the summons shall be signed and issued by the registrar and
made returnable by
the Sheriff to the court through the registrar.
[Para. (c) substituted by
GNR.1603 of 17 December 2021.] (Accentuation added)
[21] Rule
18(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. [Amended by GN R873 of 1996.] (Accentuation added)
[22] The
lawgiver as supported by the courts of the country demands that
“every summons” and “a combined
summons and every
other pleading” shall be signed.
[23]
“Every other pleading” includes the particulars of
claim.
[14]
[24] “Every
summons” and “a combined summons and every other
pleading” shall by implication
include the summons and
supporting papers, the very documents, served by the parties on each
other;
even if it is a copy
. If this is not adhered to the
receiver of the document and the Court may doubt the veracity of the
document and hesitate to reply
and act thereon.
The crux lies in
the trustworthiness of the papers
.
[25] What
made the matter worse in the instance is that the Registrar of the
Court signed and issued the unsigned 1
February 2022 – combined
summons served on Capitaux in complete disregard of Rule 17(3)(c).
This is irregular; the Registrar
should not have signed and issued
the document and the respondents should not have used and served this
document on Capitaux as
it was not signed by the legal practitioner.
The Registrar may not issue an unsigned summons and particulars of
claim and is the document that was served on Capitaux irregular
on
this aspect in itself.
(Rule 17(3)(c):
“
After
paragraph (a) or (b) has been complied with, the summons shall be
signed and issued by the registrar and made returnable by the
Sheriff
to the court through the registrar.”)
[26]
The allegations of back dating, justifiably so, made by Capitaux with
the information they had at hand; fall by
the wayside when compared
to the respondents’ answering affidavit.
[15]
The explanation must be accepted. Capitaux did not prove an
irregularity on the evidence of this case that can cause an order
setting aside the first and second respondents’
original
summons and particulars of claim.
[27] Capitaux
did indeed prove prejudice in that it is understandable that they
mistrusted the whole of the content
of the 1 February 2022 –
combined summons and would and could not reply before the
irregularity was remedied. The two pages
send
via
email and
separate from the document as a whole, incensed the confusion. The
respondents caused litigation that could have been
avoided if only
they had adhered to the basic principles. One fails to understand why
the photo stated copies cannot be signed
by the legal practitioner or
why the original cannot be signed by the legal practitioner and then
photo stated.
[28] The
issue is about the signatures and the dates affixed thereto and the
veracity of the copy of the entire document
that was served on
Capitaux; not the original document in possession of the respondents.
[29]
The legal representative of the respondents caused the situation of
this case when an unsigned summons and particulars
of claim,
irregularly so issued by the Registrar of the Court, were served upon
Capitaux. (This is “BKR1”
at
pages 11 to 27. It is an unsigned version of the documents referred
to in paragraphs 2.3 and 2.4 of the affidavit filed by Malihambe
Christian Godfrey Mvambi (L52) on page 112 of the Bundle.) Again; on
the version of the respondents, it seems as if a signed and
an
unsigned version of the documents were issued by the Registrar and
exist; but the unsigned version was served on Capitaux. This
existence of the original does not remedy the irregularity.
[30] Yet
again, Rule 17(3)(a): “
Every
summons
shall be
signed
…” and Rule 18(1): “
A combined
summons, and
every other
pleading except a summons
,
shall be signed
…”. The Rules; literally
interpreted and with due regard to the criticalness of these
documents, must be accepted to
demand that the original and copies of
the original be signed the same.
[31] Copies
are used as summonses and pleadings and nothing else and it has the
same impact and forte when so used;
it must be an exact
representation of the original. The veracity of these documents must
be protected and unnecessary litigation
on the issue prevented. It
must be signed by the legal practitioner and may not be served by the
Sheriff on any party as summonses
if Rule 17(3) and Rule 18(1) have
not been complied with.
[32] Legal
practitioners must immediately desist from and cease the alleged
behaviour that it is practise in this division
that the use of
unsigned copies is standard in litigation. I could not trace
precedent on the claimed practise nor was any referred
to by the
legal practitioner of the respondents.
[33]
The
original document must be signed and dated and issued; and then and
then only must copies be made thereof. This will ensure
legal
certainty and the veracity of documents. Unsigned court documents of
this nature and significance must not be tolerated;
not if it is
purported to be the original, nor if it is purported to be a copy of
the original.
[34]
In fact; this habit that caused Court files to be littered with
unsigned summonses and pleadings has caused some
awkwardness in a
case wherein interlocutory orders were issued by two Presiding Judges
on unsigned documents and only when the
matter appeared for hearing
on the main case was the signed document handed up. The state of
affairs was brought to the attention
of the parties by myself as
Presiding Officer. The Court had to adjourn for the issue to be
resolved. The same happened on 26 July
2022 in another case and the
matter had to be postponed for, among others, the tracing of the
original and signed documents. The
copies in this case were also
contaminated with handwritten notes and emphasis by an unknown
entity.
[16]
[35] These
unsigned and confusion - causing documents lie before a Court and
must be respected by all involved to have
veracity. It can cause dire
consequences for any or all of the parties.
[36] Legal
representatives must ensure that the utmost diligence and care be
taken when documents of this nature are issued
and dispersed.
[37]
It might be the behaviour of legal practitioners in this division not
to sign the copies of these crucial court
documents; but it is
definitely not good practise. It might also be practise tolerated in
this division but it is not practise
directed by this division.
[17]
[38]
The original must be signed and dated by the legal practitioner and
thereafter may copies of this document be issued
by the Registrar of
the Court. (“In manuscript:
The
original form
before
being printed (or copied)”)
[39] A true
and exact copy of the above original combined summons inclusive of
the particulars of claim must be the
documents served on the parties.
The original must be presented to the Court; not the copy.
[40]
Non-compliance with the Rules on the facts of this case may not be
condoned. The irregular step that has been taken
by the respondents
stands to be set aside. The Court must be fair to both parties and
serve the administration of justice. The
respondents will be granted
the opportunity to serve a copy that represents the original combined
summons on Capitaux.
COSTS
[41] This
brings me to the issue of costs; the respondents did indeed serve an
irregular summons on Capitaux. They caused
the litigation and they
will have to bear the costs. The matter could have been addressed
more collegially by the parties. They
can also take legal action
against each other for insult and offense. It will be a case for
another day and it is not relevant
to this application and the costs
hereof.
[42] ORDER
1.
The application to set aside the combined
summons inclusive of the particulars of claim, served on Capitaux
(Pty) Ltd on 1 February
2022 (BKR1/the 1 February 2022 –
combined summons), as being irregular as contemplated by Rule 30(1)
read with Rule 17(3)
and Rule 18(1) of the Uniform Rules of Court, is
granted and is it ordered set aside.
2.
The first and second respondents (Flexi
Trade 110 (Pty) Ltd and Maselspoort Resort and Conference Centre
(Pty) Ltd/plaintiffs in
the main action) are granted leave to serve
the applicant in this matter (Capitaux (Pty) Ltd/defendant in the
main action) with
a complete and properly signed and dated combined
summons, inclusive of the particulars of claim, that represents the
original
papers relied upon and issued by the Registrar of the High
Court of South Africa: Free State Division on 25 January 2022.
Service
shall be within fifteen (15) days of the date of this order.
3.
The first and second respondents to pay the
costs of this application.
M OPPERMAN, J
APPEARANCES
FOR THE
APPLICANT/DEFENDANT ADVOCATE C SNYMAN
Chambers, Bloemfontein
051 430 3567
K REW/D SOLOMONS
WEBBER WENTZEL
Cape Town
c/o
WEBBERS ATTORNEYS
Webbers Building
96 Charles Street
Bloemfontein
051 430 1340
karin@webberslaw.com
kim.rew@webberwentzel.co
dale.solomons@webberwentzel.com
K Rew/D S
Solomons/3052815
FOR THE 1
st
& 2
nd
RESPONDENTS/
1
st
&
2
nd
PLAINTIFFS ADVOCATE
DJ VAN DER WALT SC
Chambers, Bloemfontein
051 430 3567
ADVOCATE S TSANGARAKIS
Chambers, Bloemfontein
051 430 3567
L STRATING
Symington de Kok
Attorneys
169B Mandela Drive
BLOEMFONTEIN
051 505 6600
lstrating@symok.co.za
Ref: FKC0072
[1]
A
combined summons is a summons to which is annexed a statement of the
material facts relied upon by the plaintiff in support
of the
plaintiff's claim. A combined summons does not exist separately from
the particulars of claim, JUSTICE COLLEGE -
SAFLIIhttps://www.saflii.org
› cases › ZARMC ›
1.pdf.
[2]
“
Notice
of Application in terms of Rules 30 and 30A” prayer 1 dated 14
March 2022 on page 1 of the Bundle indexed on 4 May
2022 (“the
Bundle”).
[3]
Paragraph
3 of the Practice Note of Capitaux and paragraph 1 of the Heads of
Argument of Capitaux.
[4]
Suliman
v Karodia
1926
WLD 102.
Harms with reference to case law stated that: “It is
not possible to draw up an exhaustive list of what constitutes an
irregular step but the term would embrace:
failure
by qualified practitioners to sign particulars of claim
;
delivering a plea to a simple summons before the plaintiff has
delivered his declaration, and premature set-down.”
(Accentuation
added),
Civil
Procedure in the Superior Courts
,
Part B High Court, UNIFORM RULE 30 IRREGULAR PROCEEDINGS,
https://www.mylexisnexis.co.za/Index.aspx
,
last updated: March 2022 - SI 73 at B30.3.
[5]
The
Respondents’ Practice Note at paragraph 4.2.
[6]
Pages
11 to 27 of the Bundle.
[7]
BKR2
at page 77 of the Bundle. Rule 4(1)(a)(v): “if the person so
to be served has chosen a domicilium citandi, by
delivering or leaving a
copy thereof at the domicilium so chosen;” [Substituted by
GNR.1343 of 18 October 2019.]
[8]
“
Notice
of Application in terms of Rules 30 and 30A” prayer 1 on page
1 of the Bundle.
[9]
Supporting Affidavit:
Bundle
at pages 4 to 10.
[10]
“
The
original form before being printed
”
,
Merriam-Webster.com Dictionary,
https://www.merriam-webster.com/dictionary/in%20manuscript. Accessed
26 July 2022.
[11]
Law
Reports, 1828 to 1946 - All South African Law Reports, Law Reports,
Witwatersrand High Court (TH) 1902-1910, 1904,
https://www.mylexisnexis.co.za/Index.aspx.
[12]
“BKR6” at page 86 of the Bundle.
[13]
“BKR7” at page 88 of the Bundle.
[14]
Louw v
Grobler and another
supra
.
[15]
Pages
97 to 117 of the Bundle.
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E to 635C.
[16]
Case
284/2022 on 24 March 2022 and case 118/2019 on 26 July 2022.
[17]
Louw
v Grobler and another
(3074/2016)
[2016] ZAFSHC 206
(15 December 2016).
The
case of
Protea
Insurance Co Pty v Vinger
1970 (4) SA 663
(O) turns on the signature and date stamp of the
Registrar; not that of the legal practitioners as is decreed in
Rules 17 and
18.