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[2020] ZALMPPHC 56
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EMC Consulting Engineers (Pty) Ltd v Mopani District Municipality (3832/2019) [2020] ZALMPPHC 56 (15 July 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:YES/
NO
(3)
REVISED
CASE NO: 3832/2019
In
the matter between:
EMC
CONSULTING ENGINEERS (PTY) LTD
APPLICANT
And
MOPANI
DISTRICT MUNICIPALITY
RESPONDENT
JUDGMENT
MULLER
J:
[1]
The
applicant
[1]
seeks to set aside, with costs on an attorney and client scale, a
notice of exception delivered by the respondent, as being an
irregular step, in terms of rule 30. The respondent
[2]
launched a counter-application in terms whereof the following relief
is claimed:
"declaring
that the Respondent is entitled to negotiated, fair and reasonable
opportunity to inspect the documents discovered
by the Applicant in
its reply to the Respondent's Rule 35(14) notice of 23 August 2019,
being Annexure "E" to the founding
affidavit,
compelling
the Applicant to afford the Respondent such opportunity within 7
(seven) of the order of the Court;
if the
Applicant fails to allow the Respondent such opportunity within the
seven days' period. the Respondent Is entitled to forthwith
apply to
the Court on the same, as may be supplemented, as they may be, for an
order:
declaring
the Applicant's particulars of claim to be irregular and/or improper
step; striking out such particulars of claim;
dismissing
the Applicant's action and claim in Case no. 3832/2019 with costs,
including the costs of two Counsel, and on the attorney
and client
scale."
[2]
For an understanding of the developments
and the filing of notices and pleadings in the action, it is
necessary to explain the chronological
sequence of the relevant
events.
[3]
The plaintiff instituted action for the
recovery of R27 730 283.66. The defendant delivered a notice of
intention to defend on 23
July 2019 with the result that a plea had
to be delivered on or before 21 August 2019. However, the plaintiff
on 20 August 2019
delivered a notice of bar. The notice of bar was
admittedly delivered prematurely and was subsequently withdrawn.
Nothing turns
on this particular notice of bar which played no
further role in the proceedings.
[4]
On 23 August 2019 the defendant delivered a notice in terms of rule
35(14) requesting
sight of certain documentation to enable the
defendant to plead. In response to the said notice, the plaintiff
delivered a reply
on 11 September 2019 in which the defendant was
informed that it may inspect the documents requested the following
day 12 September
2019. The defendant failed to inspect the documents.
I will return to this aspect, as the consequences of the reply and
the failure
to inspect the documents, are the subject matter of the
counter-application.
[5]
On 13 September 2019 the plaintiff
served a second notice of bar on the defendant. Counsel for the
defendant conceded, during argument,
that delivery of the second
notice of bar was regular.
[3]
The said notice of bar
was,
however
, only filed on 16 September 2019 with the registrar. In terms of the
notice of bar, the defendant was afforded five days
within which to
deliver its plea. The five day period, referred to in the notice of
bar therefore, commenced on 17 September 2019
and expired on 23
September 2019.
[6]
Rule 26 prescribes:
“
Any
party who fails to
deliver
a replication or
subsequent pleading within the time stated in rule 25 shall be
ipso
facto
barred...”.
(The emphasis is mine.)
[7]
Similarly, rule 23(1) states:
"Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the
case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading,
deliver
an exception thereto...”
(My emphasis).
Provided
that where a party intends to take an exception that a pleading is
vague and embarrassing he shall within the period allowed
as
aforesaid by notice afford his opponent an opportunity of removing
the cause of complainant….”
[8]
The defendant served a notice of exception on 20 September 2019 on
the plaintiff and
thereafter filed the said notice with the registrar
on 27 September 2019.
[4]
[9]
Accordingly,
it may be accepted without demur, that the five day period allowed by
the notice of bar within which the defendant
was required to deliver
its plea expired prior to the date on which the notice of exception
was delivered; put differently, the
notice of exception was delivered
out of time, the consequence of which is that the defendant was
barred from delivering a notice
of exception or any other subsequent
pleading.
[10]
On 26 September 2019 plaintiff delivered
a notice in terms of rule 30 in terms whereof the defendant was
called upon to remove the
notice of exception. The cause of complaint
was that the notice of exception was not served within the period
allowed for delivering
any subsequent pleading.
[11]
Although the notice in terms of rule 30,
was delivered prematurely, no issue was taken with its delivery. The
defendant, in any
event, took a further step by delivering an
exception on 29 October 2019.
[12]
In my view this matter can be laid to
rest with reference to the definition of “deliver" in rule
1, which states:
"deliver''
shall
mean serve copies on all parties and file the original with the
registrar."
[13] The
notice of bar was served on 13 September 2019. The said notice was
"delivered," when
it was filed with the registrar on16
September 2019. It is the latter date which triggered the
commencement of the five day period
of the notice of bar. The five
day period expired on 23 September 2019.
[14]
The same reasoning applies to the date
on which the notice of exception was filed at court after service
thereof on the plaintiff.
The defendant was required Y the notice of
bar to deliver its plea within the period of five days which period
expired on 23 September
2019.
[15]
It follows that the word« within"
in rule 26
[5]
must be given its ordinary literal meaning which must be interpreted
that the defendant was required to serve copies of the notice
of
exception on the plaintiff and file the original with the registrar
within that five day period, to comply with the rule. The
notice of
exception was served on 20 September 2019 but filed with the
registrar bn 27 September 2019. The latter date constituted
the date
of delivery thereof.
[16]
In
Wahl
v Prinswil Beleggings (Edms) Bpk
[6]
the issue was whether the notice to
defend was delivered after the
dies
induciae
had expired. It was
common cause that the defendant was in default on 28 July 1981
after summons was served and the 21 days
dies
induciae
had expired. The notice of
intention to defend was served on 28 July 1981 and filed with the
registrar on 29 July 1981. The court
explained what the effect was:
“
Betekening
van 'n kennisgewing
van
voorneme om te
verdedig geskied ingevolge HofeeI 19(1) deur dit
af
te ewer.
Votgens
Hofreet 1 beteken "aflewer" die betokening van afskrifte
aan alle partye en die indiening van die oorspronklike
by die
Griffier
As
daar verder gekyk word na die bepalings van van Hofreel 4, wat slaan
op betokening van stukke deur die Balju, dan is dit duidelik
dat 'n
afskrif van die oorspronklike
kennisgewing
gelaat word by die plek of person waar of aan wie beteken word,
terwyl
die
oorspronklike by die Griffier ingedien word.
…
Behoorlike
betekening het eers later in die loop van 28 Julie 1981 geskied toe
ene Van Wyk ·n afskrif by respondent se prokureur
se kantoor
gelaat het. Betekening is formeel voltooi toe die oorspronkhke op 29
Julie 1981 by die Griffier ingedien was.”
[17]
The defendant delivered a notice of
exception after the defendant was
ipso
facto
barred to deliver subsequent
pleadings in terms of the notice of bar delivered by the plaintiff.
In the result, the application
in terms of rule 30 should succeed.
[18] It
will serve no purpose to deal with the merits of the
counter-application whilst the defendant is
barred. An order in the
terms which the defendant seeks will be ineffectual and meaningless
and cannot. whilst the bar is operative,
assist to enable the
defendant to plead.
[19]
Counsel for the defendant argued that
the plaintiff has failed to prove that it suffered any prejudice
whereas the position of defendant
is vastly different in that it
suffered real prejudice and that its inability to plead was actually
caused by the failure of the
plaintiff to comply with the spirit of
the rule 35(14) notice.
[20]
I do not deem it necessary to deal with
the complaint raised by the defendant. The factual situation, simply
is, that the defendant
is barred. And until the bar is lifted the
defendant is precluded from delivery of a plea. Non-compliance with
rule 35(14) is academic
for as long as the defendant is barred.
[21]
I am unpersuaded that the prejudice
referred to is of importance when the defendant is
ipso
facto
barred from delivering a plea.
Even if I am wrong, the plaintiffs will be prejudiced if the
defendant is allowed to continue to
deliver notices and pleadings
without the bar first being lifted and if the relief claimed in the
counter-application should be
granted before the bar is lifted. It
cannot be countenanced and will, moreover, defeat the very purpose of
the bar. It will lead
to a parallel process being sanctioned by the
court in conflict with the rules.
[22]
Counsel for the plaintiff conceded that
the rule 30 application was not premised specifically on the dates on
which the notices
of bar and exception were delivered, but rather
with the focus on the dates of service of the respective notices. The
plaintiff
relied mainly on the judgment in
Mc
Nally NO and Others v Codron and Others
(WCC)
[7]
that delivery of a notice of exception after a notice of bar had been
delivered is not a pleading which cannot invalidate the notice
of
bar. Counsel for the plaintiff, very properly, also referred to the
contrary views held in
Landmark
Mthatha Ltd v King Sabata Dalidyebo Municipality and Others : In Re
African Bulk Earthworks (Pty) Ltd v Landmark Mthatha
(Ply) Ltd and
Others
[8]
and
Tuffsan
Investments 1088 (Pty) Ltd v Busisiwe Agnes Sethole
(GNP).
[9]
[23]
There is no need to attempt to resolve
the differences of opinion expressed in those decisions because of
the conclusion that I
have reached.
[24]
The plaintiff is successful in respect
of the rule 30 application as well as the counter-application. There
is no reason why the
plaintiff is not entitled it to its costs. The
costs must follow the result. It seems that it has now become the
general practice,
in this Division at least, to seek costs on the
scale as between attorney and client as a matter of cause. This
application is
no exception. The practice is to be censured. There
are no special considerations arising from the facts or the conduct
of the
parties in this matter to warrant the award of such costs.
[10]
Order
1.
That
the notice of exception delivered on 27 September 2019 be and is
hereby set aside as an irregular step taken by the
defendant/respondent.
2.
That
the defendant/respondent is ordered to pay the costs of the rule 30
application, such costs to include the costs of two counsel.
3.
That
the counter-application instituted by the defendant/respondent be and
it is hereby dismissed with costs, such costs include
the costs of
two counsel.
GC MULLER
THE
HIGH COURT LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For the
Applicant
: HW Sibuyise
SC
: Sibuyise
2.
For the
Respondent
: G Shakoane SC
: TG Ramatsekisa
3.
Date of the
hearing
: 08 July 2020
4.
Judgment
delivered
: 15 July 2020
[1]
Hereinafter called "the plaintiff."
[2]
Hereinafter called "the defendant”.
[3]
No notice in terms of rule 30 was delivered to declare the notice of
bar an irregular step.
[4]
The exception was delivered on 29 October 2019.
[5]
Read with rule 25.
[6]
1984 (1) SA 457 (T) 460 F-H.
[7]
Unreported judgment dated 9 March 2011.
[8]
2010 (3) SA 81 (ECM).
[9]
Unreported judgment dated 4 August 2015.
[10]
Net v Waterberg Landbouwers Ko-op Vereeniging
1946 AD 597
, 60
7;
Sentrachem v Prinsloo
199
7
(2) SA
1
(A) 21E-22E.