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[2021] ZAGPPHC 343
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M and M Quantity Surveyors CC v Orvall Corporate Designs (Pty) Ltd (84202/19) [2021] ZAGPPHC 343 (27 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 84020/19
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
M
AND M QUANTITY SURVEYORS CC
(REG.
NO:
2006/130127/23)
Plaintiff
And
ORVALL
CORPORATE DESIGNS (PTY) LTD
(REG
NO:
2012/091962/07)
Defendant
JUDGMENT
BARNARDT
AJ
1.
The plaintiff’s application for default judgment is opposed
inter alia
on the basis that the defendant filed notices in terms of
Rule 30 and 30A of the Uniform Rules of Court which should be decided
on due to the plaintiff’s failure to remove the causes of
complaint.
PROCESS
BACKGROUND
2.
A simple summons was issued on 6 November 2019 and since a notice of
intention
to defend was filed, the plaintiff filed a declaration on
16 January 2020.
3.
On 5 February 2020, the defendant excepted against the plaintiff’s
declaration
and in answer to the exception, the plaintiff filed a
notice of intention to amend the declaration on 27 February 2020.
A
notice of intention to oppose the application to amend the
declaration was served on 13 March 2020, being one day to late and
the
plaintiff’s amended declaration was filed on 19 March 2021.
4.
On 11 June 2020, the defendant served a notice in terms of Rule 30
and/or Rule
30A of the Uniform Rules complaining about the following
irregular step
“
1.
There has been a failure by the Plaintiff to comply with the
provisions of Rule 18(10)
which requires particulars of damages given
to enable the Defendant to assess them.
2.
The Plaintiff has prayed for payment of R555 446, 55 damages without
properly
setting it out so as to enable the Defendant know how it is
quantified.
3.
The Defendant is therefore prejudiced by the said irregular step
alternative
the non-compliance in that it does not know how
the amount was quantified, especially since the Plaintiff alleges to
have rendered
services from stage 1 to 4.”
5.
On 17 June 2020, the plaintiff served a notice of bar on the
defendant and in
reply the defendant filed a second notice in terms
of Rule 30 and/or 30A on 22 June 2020 complaining about the following
irregular
steps.
“
1.
The Plaintiff has served the Defendant with a notice of bar after
having being served
with a notice of irregular step for failure to
comply with rule 18(1) in its amended particulars of claim.
2.
The Plaintiff has been cautioned about the irregularity of serving a
notice of
bar whilst the notice of irregular steps for failure to
comply with rule 18(10) is still pending but has dismissed this
caution.
3.
The Defendant is being prejudiced by the Plaintiff’s actions
and is unable
to plead to the particulars as it is not in a position
to assess how the R555 446, 55 is quantified.
4.
Thus, the Plaintiff is serving of the notice of bar in the light of
the pending
notice of irregularity for failure to comply with Rule
18(1)) shows total disregard of the rules of court and amounts to
abuse
of the court processes.”
6.
The defendant filed its application in terms of Rule 30 and/or 30A on
the plaintiff
on 14 July 2020 and on 26 August 2020 the plaintiff
filed its notice of set down of the application for default judgment.
Although
the default judgment application was dated 6 July 2020, I
could find no proof of service of the application but for the proof
of
service of the notice of set down of the application on 26 August
2020.
7.
The defendant filed its notice of intention to oppose the default
judgment application
on 11 September 2020, but no notice of intention
to oppose the Rule 30 and/or Rule 30A application was filed and the
defendant
never applied to have its Rule 30 / 30A application
enrolled.
ALLEGATIONS
IN THE DECLARATION
8.
The relevant parts of the declaration read as follows:
“
4.
On
or about the 19
th
of January 2018, the Plaintiff duly
represented by its member, Siyupwa Mataa attended to a consultation
meeting with the Defendant
duly represented by its chief executive
officer in Pretoria, in which meeting the parties concluded a written
Sub-Consultancy Agreement
attached hereto marked as Annexure “MM1”.
5.
The
material, express and/or alternatively implied standard terms and
conditions of the agreement are the following:
5.1.
The parties to the agreement are the Plaintiff, referred to as the
sub-consultant and the Defendant, referred
to as the company;
5.2.
The sub-consultant undertakes and agrees to that it and its
employees, representatives, contractors
and/or agents shall:
5.2.1. carry out
the services and any other obligations contained in this agreement
with professional skill, care, diligence
and efficiency;
5.2.2. act in
absolute good faith and shall follow any and all reasonable written
instructions provided
to the
sub-consultant by the company,
effectively and efficiently;
5.2.3. complete the
services or any portion thereof by no later than the dates set by the
company;
5.2.4. regularly report
to and inform the company of progress made in relation to the
provision and finalization of the services,
the project, the works
and/or any portion thereof;
5.2.5. submit
invoices and portfolio of evidence that are clear and that accurately
account for the services that have been
provided;
5.3. The company agrees
to pay the sub-consultant the professional fees for the services
rendered as set out in annexure c;
5.4.
The sub-consultant shall ensure that any invoices submitted to the
company for payment shall clearly and expressly contain
information
as per clause 6 of the agreement".
6.
The
Plaintiff fulfilled its obligations in terms of the agreement in that
it completed services as contemplated in stage 1 to stage
4 of the
agreement and invoiced fees as per the 2013 Tariff of Professional
Fees Schedule attached hereto marked as Annexure "MM2".
The invoice for professional fees incurred was submitted to the
defendant on the 9
th
July 2018, which invoice is attached hereto marked as Annexure
“MM3”.”
9.
Specific reference is made, in subparagraph 5.3 to annexure c,
dealing with the
professional fees to be paid for services rendered,
which reads as follows:
“
ANNEXURE
C
PROFESSIONAL
FEES AND CASH FLOW PLAN
1.
FEES
Fees
based on Guideline for Services and Processes for Estimating Fees for
registered Persons in terms of the Quantity Surveying
Profession Act,
2000 (Act 49 of 2000 with 35% Discount. FEE AMOUNT TO BE DETERINED
(sic) AFTER CONDITIONAL ASSESSMENT IS FINALISED
AND THE COST
ASSESSMENT PREPARED.
2.
ESCALATION
N/A”
10.
Reference is also made to clause 6 of the agreement, which reads as
follows:
“
6.
PAYMENT
6.1
The
Company
agrees
to
pay
the
Sub-consultant
the
Professional
Fees for
the
Services
rendered
as
set
out on
-annexure
C;
6.2
The Sub-consultant shall ensure that any invoices submitted to the
Company for payment
shall
clearly
and
expressly contain the following information:
6.2.1. the words
“tax invoice” prominently stated;
6.2.2 a
serialised tax invoice number;
6.2.3 date of
invoice;
6.2.4 the
registered and trading (if applicable) names and address of the
Sub-consultant;
6.2.5
the Sub-consultant’s VAT Number (if registered as a VAT
vendor);
6.2.6
registered name and address of the Company;
6.2.7
the Company’s VAT number (if registered as a VAT vendor);
6.2.8
detailed and accurate description of the services provided which
forms the subject matter of the invoice;
6.2.9
quantity or volume supplied, if applicable, for example, the hours of
services provided where the services supplied
are on a time-cost
basis;
6.2.10
unit price (excluding VAT);
6.2.11
VAT charged; and
6.2.12
total amount payable.
6.3
The Company shall not be obliged to make payment
of any invoice unless it strictly complies with
the
requirements
set
out in this
clause
6.
6.4
The Sub-consultant shall ensure that invoices are sent to the Company
Representative’s
email address
that
the Sub-consultant has been
liaising with
as
well as
to
accounts@orvallcorporatedesigns.co.za
Should
the
Sub-consultant
omit
to
send
the
invoice to
accounts@orvallcorporatedesigns.co.za
then the invoice will be deemed to have not been received for the
purpose of payment.
6.5
The Company submits its invoices to the Client on the last day of the
month. Should the
Sub-consultant wish for the Company to include
their invoice for that month, the Sub-consultant must submit its
invoice/costing
on the 22
nd
day of that month. Should the
project be phase-based, then the Sub-consultant shall submit its
invoice when requested
by the Company.
6.6
Notwithstanding the foregoing, the Sub-consultant acknowledges that
the Company relies on
the Client for payment of the Professional
Fees. Accordingly, the Company shall only be obliged to make
payment of the Professional
Fees if:
6.6.1 the
Sub-consultant has complied with the invoicing requirements as set
out in this clause;
and
6.6.2
the Company has received payment for the Sub-Consultant’s
Professional Fees, in which event payment will
be made within 14
(fourteen) days of receipt of payment from the Client.”
11.
According to the invoice Q/S Services: Stage 1- 4 were rendered and
an amount of R643 996,00
was invoiced.
12.
As indicated above the defendant initially excepted against the
plaintiff’s first
declaration and tried to oppose the
application to amend the declaration but served its notice to oppose
a day to late and the
amendment was effected on 19 March 2020.The
defendant then, on 11 June 2020, (almost three months later) served
his first notice
in terms of Rule 30 and/or R30A of the Uniform Rules
of Court. He served his second notice on 22 June 2020, after
the plaintiff
served a notice of bar on 17 June 2020 and the
application in terms of Rule 30/30A on 14 July 2020.
13.
On behalf of the defendant it was argued that its application in
terms of Rule 30 and/or
30A should first be adjudicated before the
plaintiff’s application for default judgment can be considered.
RULE
30
14.
Rule 30 reads as follows:
“
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 subrule (1) shall be on notice to all parties specifying
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 subrule
(2).
(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.
(4)
Until a party has complied with any order of court made against him
in terms of this rule, he shall not take any further step
in the
cause, save to apply for an extension of time within which to comply
with such order.”
15.
This rule can only be used if the conditions referred to in Rule
30(2) are satisfied. This
is of importance since there are strict
provisions applicable, in breach of which, the rule may not be
utilised and if the stipulated
periods have elapsed the rule cannot
be used unless an extension of time application in terms of Rule 27
is brought.
16.
The defendant
in casu
did not, within ten days of becoming aware of the irregular step,
notify the plaintiff thereof, (the Rule 30 notice was only served
almost 3 months after the amended declaration was filed) and did not
ask for an extension of time.
17.
The ultimate application in terms of Rule 30 and/or 30A was filed in
accordance with the
stipulated periods provided for in Rule 30(2)(c),
but the defendant did not file an affidavit in support of its
application. Erasmus,
Superior Court Practice,
[1]
discussed the requirement of an affidavit is support of the
application as follows:
“
In
Chelsea Estates & Contractors CC v
Speed-O-Rama
1993 (1) SA 198
(E) at
202E-F and
Scott v Ninza
1999 (4) SA 820
(E) at 823A-C it was held that an application
under subrule (2) need not be supported by an affidavit and that all
that the
subrule requires is that the notice must specify the
particulars of the irregularity or impropriety complained of,
although,
in the latter case, the court took note of the facts
mentioned in the affidavits in support of and opposing the
application.
These decisions, obviously, lost sight of the fact
that proof of prejudice is required in the affidavit in support of
the application
and can be rebutted by evidence in the affidavit
opposing the application.”
18.
In
Bester
N.O and others v Target Brand Orchards (Pty) Ltd and Others
[2]
Hockey AJ discussed the requirements of Rule 30 as follows:
“
[13]
A court will grant a rule 30(1) application if it is satisfied that
there is an irregular step, that the party brining such
application
has not taken any further step in the cause of the matter with
knowledge of such irregular step, has given its opponent
notice to
remove such step within 10 days of the former becoming aware of the
step, and importantly, if the applicant will suffer
prejudice unless
the irregular step is removed. In this regard, see
Afrisun
Mpumalanga (Pty) Ltd v Kunene NO and Others
1999(2) SA 599 (TPD) where it was held by Southwood J (at 611 C-F);
‘
With regard to the Rule 30
application Mr Van der Linde pointed out that such an application
will be granted only where the irregular
step would cause prejudice
to the applicant seeking to set it aside. In support of this argument
he referred to Trans-African Co
Ltd v 7 Maluleka
1956 (2) SA 273
(A)
at 276 F-H; SA Metropolitan Lewensversekering-maatskappy Bpk v Louw
NO
1981 (4) SA 329
(O) at 333 D-F and 333 H-334 E; De Klerk v De
Klerk 1986 (4) 424 (W) at 426 F- 427 B; Consani Engineering (Pty) Ltd
v Anton Steinecker
Maschinenfabriek GmbH
1991 (1) SA 823
(T) at 824
G-H; and Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair
Engineering (Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(W) at 496
G. The prejudice that is referred to is prejudice which will be
experienced in the further conduct of the case if the
irregular step
is not set aside. There is no prejudice if the further conduct of the
case is not affected by the irregular step
and the irregular step can
simply be ignored.’”
19.
With due regard to the requirements of Rule 30(2), it is clear that
the defendant did not
comply therewith and cannot rely on his Rule 30
notice.
RULE 30A
20.
Rule 30A reads as follows:
“
30A
Non-compliance with rules
(1) Where a party fails
to comply with these rules or with a request made or notice given
pursuant thereto, or with an order or
direction made in a judicial
case management process referred to in rule 37A, any other party may
notify the defaulting party that
he or she intends, after the lapse
of 10 days from the date of delivery of such notification, to apply
for an order—
(a) that such rule,
notice, request, order or direction be complied with; or
(b) that the claim or
defence be struck out.
(2)
Where a party fails to comply within the period of 10 days
contemplated in subrule (1), application may on notice be made to
the
court and the court may make such order thereon as it deems fit.”
21.
T
his rule has far less stringent requirements than
Rule 30(2), and no reference is made to specific time limits or a
requirement
that no “further steps” may have been taken.
22.
The question is whether Rule 30A may be used
in
casu
. Rule 30A provides a general
remedy for non-compliance with the rules.
23.
in
Minister
of Police v Nobesuthu Irene Bacela
[3]
Lowe J discussed the applicability of Rule 30A:
“
[18]
In
ABSA Bank Ltd v The Farm Klippan 490
CC
the Court made it clear that if a
provision in the rules provides a specific remedy for non-compliance
with the rule, a party need
only follow the specific rule and need
not give notice in terms of, or follow, Rule 30A.
[19] Harms, Civil
Procedure in the Supreme Court: LexisNexis provides that:
‘
The
rule applies only if compliance with the rules is sought and then
only if the relevant rule does not have its own inbuilt procedure
such as rule 21(4), which provides for an enforcement procedure in
the event of a failure to provide particulars for trial.
...
Under rule 30A, a
party making a request, or giving a notice, to which there is no
response by the other party, may through a further
notice to the
other party warn that after the lapse of 10 days, application will be
made for an order that the notice or request
be complied with, or
that the claim or defence be struck out, as the case may be. Failing
compliance within the 10 days mentioned,
application may then be made
to court and the court may make an appropriate order.’
[20] This makes complete
sense as the remedies provide for non-compliance with the rules which
have their own requirements, benefits
and disadvantages which should
then be utilised.
…
[31] In the result it is
my view that Rule 18(12) read with Rule 30 is in fact in conflict
with and contradictory to Rule 30A. It
seems to me perfectly clear
that the procedure referred to in Rule 18(12), that an irregular step
is to be dealt with in terms
of Rule 30, is a specific rule with its
own requirements and time limits. Rule 30A is a rule of general
application as to non-compliance
with the Rules. As pointed out in
Norman (supra) it can hardly be that Rule 30A was intended to
override or amend the special provision
of Rule 18(12), as read with
Rule 30, as per the presumption
generalia specialibus non
derogant
.
[32] The Rules in this
regard are in fact in conflict. If a party fails to meet the time
limits in Rule 30, or takes a further effective
step with knowledge
of the irregularity (absent time extension by a Court), the party may
no longer take the point of an irregular
step. It would make no sense
then that Rule 30 could then simply be bypassed to Rule 30A with far
less stringent requirements.
[33]
The requirement that Rule 30 be utilised for a Rule 18 breach is
precisely what must have been intended by the Rules as to
the result
sought to be achieved. To hold otherwise would effectively supersede
Rule 18(12), read with Rule 30, which cannot have
been the intended
result.”
24.
I therefore find that that the defendant’s reliance on Rule 30A
in this matter is
unfounded and cannot be upheld.
DEFAULT
JUDGMENT
25.
Rule 31(2) provides as follows:
“
(2)
(a) Whenever in an action the claim or, if there is more than one
claim, any of the claims is
not for a debt or liquidated demand and a
defendant is in default of delivery of notice of intention to defend
or of a plea, the
plaintiff may set the action down as provided in
subrule (4) for default judgment and the court may, after hearing
evidence, grant
judgment against the defendant or make such order as
it deems fit.”
26.
It is common cause that the defendant
in
casu
,
was in default for failure to file its plea even though it was
represented at the hearing. In
Rainbow
Farms (Pty) Ltd v Crockery Gladstone Farm
[4]
a
decision by Makgoba JP (Kganyago J and M S Sikhwari AJ concurring)
the question of default was decided as follows:
“
[2]
The question to be decided is twofold, namely:
2.1. Whether
the Appellant was in default despite the attendance of its Counsel in
Court when judgment was granted; and
2.2.
Whether the Appellant whose application for rescission of judgment
was dismissed by single Judge of this Division had made
out a case
for the relief sought.
[3]
The judgment sought to be rescinded was granted on 2 August 2016 when
M G Phatudi J refused an adjournment sought by the
Appellant’s
Counsel and granted judgment in the absence of any answering
affidavits by the Appellant and on the Respondent’s
version
alone.
[4]
. . .
[10]
The Court a quo decided that the judgment was not a judgment taken on
default of appearance by the Appellant. It did so
on the basis
that the Appellant’s Counsel was present in Court when the
Order was made. The Court a quo erred in this regard.
This matter was
an application and the presence or absence of a party can only be
determined by whether that party has submitted
affidavits or not. The
presence of the actual party and / or Counsel in Court is irrelevant
to that issue. In the absence of any
affidavits (bearing in mind that
there is no option available for the party to testify at such a
hearing) it is logical to
conclude that that party is in default
of appearance when the Order was made notwithstanding that Counsel
may have been in Court.
[11]
In my view where opposing papers have not been filed there is a
“default” even if the Respondent in the matter
or his
legal representative is present in Court. See: Morris v Autoquip
(Pty) Ltd
1985
(4) SA 398
(WLD); First
National Bank of SA Ltd v Myburgh and Another
2002
(4) SA 176
(CPD).
[12]
The question of what is meant by “default” was considered
in Katritsis v De Macedo
1966
(1) SA 613
(A).
In this matter the Appellate Division (as it then was) held that
“default” which then as is the
case now is not defined in the Rules or the Act, meant a default in
relation to filing the necessary documents required by the
Rules in
opposition to the claim. In casu the judgment was granted in the
absence of an opposing affidavit by the Appellant and
was therefore a
“default judgment” even if it
was not a default in the sense of the absence
of the party.”
27.
However, despite the defendant’s default, I accept that it
intended, throughout, to
defend the action. This is evident
from the fact that it filed an exception to the first declaration,
tried, albeit to late,
to oppose the plaintiff’s application to
amend its declaration and filed a Rule 30 application, once again too
late, to complain
about the fact that the particulars of claim did
not comply with Rule 18(10) of the Uniform Rules.
28.
I considered the agreement, with annexures referred to therein, and
the defendant’s
complaint that the
plaintiff
sued for payment of R555 446, 55 damages without properly setting out
how it is quantified, in consideration of the application
for default
judgment.
29.
As stated above, the invoice was for “
Q/S Services:
Stage 1- 4” claiming an amount of R643 996,00 without a
“detailed and accurate description of the services
provided
which forms the subject matter of the invoice” as required in
Clause 6 of the agreement.
30.
Although I am not convinced that the defendant was prejudiced by the
plaintiff’s failure
to give a more detailed description, it is
accepted that the defendant ‘tried’ (although without
proper adherence to
the rules) to obtain more information to enable
it to plea.
31.
Therefore, with due consideration of the history of the matter, I am
not prepared to grant
default judgment.
COSTS
32.
Both the plaintiff’s application for default judgment as well
as the defendant’s
application in terms of rule 30 and/ or 30A
were unsuccessful and I therefore order that each party should pay
its own costs in
respect of the default judgment and /or Rule 30
applications.
33.
I grant the following order:
1.
The defendant’s Rule 30 and or Rule 30A application is
dismissed.
2.
The plaintiff’s application for default judgment is dismissed.
3.
The defendant should file its plea within 20 days of uploading of
this judgment
on
Caselines.
4.
Each party to pay its own costs.
ACTING
JUDGE JF BARNARDT
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 27 May 2021.
APPEARANCES
For
the plaintiff: Adv Ramarumo
Instructed
by:
MATAA Matsebula Attorneys
For
the defendant: Adv BM Lukhele
Instructed
by: KX
Mkhawane Attorneys
Date
of hearing: 10 March 2021
[1]
Volume
2 -
D1-354
[Service 3, 2016] footnote 3
[2]
Saflii
(22593/2019)
[2020] ZAWCHC 183
(21 December 2020)
[3]
Saflii
(275/2019)
[2020] ZAECHC 19
(8 September 2020)
[4]
Saflii
(HCA15/2017)
[2017] ZALMPPHC 35 (7 November 2017)