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[2019] ZAECMHC 4
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Stemela v MEC for Health,Eastern Cape Province (3962/17) [2019] ZAECMHC 4 (12 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case
no. 3962/17
Date
heard: 31/1/19
Date
delivered: 12/2/19
Not
reportable
In
the matter between:
NANDISWA
STEMELA
Applicant
and
MEC
FOR HEALTH, EASTERN CAPE PROVINCE
Respondent
JUDGMENT
Plasket
J
[1]
The applicant instituted an action against the respondent in which
she claimed damages
arising from her treatment by the respondent’s
employees at a public hospital. A notice of opposition was filed by
the respondent
but a plea was not filed. This resulted in the
respondent being barred from pleading. An application for default
judgment was then
made by the applicant. At the hearing of that
application, an order by agreement was made. It stated that the
application for default
judgment ‘is hereby withdrawn with the
Leave of the Court
’,
that the respondent was ‘given 20 days to file
plea
’
and that the respondent was to pay the applicant’s costs.
[2]
Nothing appears to have been done by either party from 27 February
2018, when the
order was made, until 23 May 2018, when the respondent
filed a notice of exception in terms of rule 23(1) of the uniform
rules,
followed by an exception on 27 June 2018. The applicant
responded with a notice in terms of rule 30 in which the respondent
was
accorded ten days to remove the cause of complaint. The notice,
in identifying the irregular step alleged by the applicant, stated:
‘
1
Whereas the Plaintiff instituted action proceedings against the
Defendant. The
Defendant filed its Notice to defend and failed to
file a plea;
2
Consequent to the failure to file the plea, the plaintiff filed a
notice
of bar on the 01
st
November 2017 as a result the
defendant remains ipso facto barred from filing any pleading
3
The defendant disregarded the notice of bar which remains effective
by filing
an exception to the plaintiff’s particulars of claim.
4
Now therefore the conduct by the defendant to just file an exception
whilst
under bar as stated above, constitutes an irregular step.’
[3]
When the respondent did not withdraw its exception, the applicant
brought an application
in terms of rule 30 in which it sought an
order that the respondent’s ‘rule 23 notices be and are
hereby declared an
irregular and/or improper step and set aside’,
together with an order of costs in her favour. This application was
opposed
by the respondent on a number of grounds.
[4]
The applicant made no mention, as she should have, of the default
judgment and the
order by agreement in the founding papers. This
created a misleading picture of the facts, particularly because the
order is central
to the resolution of this dispute. The application
for default judgment and the subsequent order were raised by the
respondent
in the answering affidavit.
[5]
In the replying affidavit, the applicant’s case on the merits
of the application
was set out in the following terms (which I quote
verbatim):
7.3
At the time when this matter served before Court for a default
judgment, the defendant was
under Bar and the Bar was never uplifted
even by the Court Order. The only thing the court was the leave to
the applicant to withdraw
the application. The Court in its order has
put it in no uncertain terms in paragraph 2 that . . . (“
the
defendant is given 20 days to file plea”
) and surprisingly
the defendant files a rule 23(1) notice. This step also constitutes
an irregular step. The court never said the
defendant to file
pleadings.
7.4
The defendant has taken an irregular step by ignoring with a notice
of bar and clear court
Order. Anything to the contrary is denied as
if specifically traversed.
7.5
I wish to implore this Honourable Court to pay no regard to the smoke
and mirrors which
the respondents are trying to create, so as to
divert the courts attention from the true issues at hand.’
[6]
Two issues arise for determination. The first is whether, when the
exception was filed,
the respondent was under bar. The second is
whether, if the first question is answered in the negative, the
respondent was entitled
to file an exception rather than a plea.
[7]
The rules are for the court and not the other way around. They are
not an end in themselves,
to be observed for their own sake. Instead,
they serve the purpose of providing a mechanism for the expeditious
resolution of justiciable
disputes between parties. Formalism in
their application is to be discouraged and they must be interpreted
sensibly so as to facilitate
the achievement of their purpose, rather
than in such a way as to frustrate that object.
Federated
Trust v Botha
1978 (3) SA 645
(A) at 654D-G.
Court orders, like any other document, should be interpreted
purposively.
[8]
When the parties agreed to the order, they agreed that the respondent
would be allowed
to file a plea. Of necessity that meant that the bar
that had been in place was lifted. The order gave effect to that
intention.
There is thus no merit in the applicant’s argument
that, despite the respondent being allowed to plead, the bar remained
in place because it had not been expressly lifted. The effect of the
lifting of the bar is that, if the applicant wanted to bar
the
respondent again, it would have had to file a notice of bar in terms
of rule 26. It never did so with the result that the respondent
was
not barred from pleading even after the 20 day period had expired.
[9]
The second issue – whether leave to file a plea included leave
to file an exception
– was dealt with in
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality & others:
In re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha (Pty) Ltd
& others
2010 (3) SA 81
(ECM).
[10]
After a notice of bar had been served by a plaintiff on a third
party, but before the five day
period mentioned in rule 26, the third
party filed an exception rather than a plea. The exception was argued
and dismissed. The
plaintiff applied for default judgment but the
third party filed a plea nonetheless. It was argued on behalf of the
plaintiff that
it was entitled to proceed with its application for
default judgment despite the filing of the plea because the notice of
bar had
remained operative when the third party filed its exception.
In other words, it was argued that while the filing of the exception
stopped the running of the five day period, as soon as the exception
was dismissed, the clock began to tick again.
[11]
Griffiths AJ rejected this argument. He held, at paras 12 and 13:
‘
[12]
Secondly, the rule states: “If any party fails to deliver any
other pleading . . .” (my
emphasis). It does not refer to a
declaration or a plea. The reason for this is obvious. Form 10 to the
first schedule to the rules
(the standard combined summons) calls
upon the defendant to deliver “a plea, exception, notice to
strike out, with or without
a counter claim”. Although it has
become practice (as has occurred in the present matter) to call upon
the defendant (or
third party) to file a plea without reference to an
exception and notice to strike out (as in the combined summons), it
is clear
from the wording of this rule that it requires the defendant
to take the next procedural step in the proceedings, be it an
exception,
plea or notice to strike out.
[13]
It follows logically in my view that where a defendant, in response
to a notice of bar, delivers
an exception, he has taken the next
procedural step in the matter and has thus complied with the demand
made in the notice on pain
of bar. In this regard, it has been
held that an exception is in fact a pleading and thus falls squarely
within the wording
of rule 26.’
[12]
Griffiths AJ also rejected the argument that by electing to file an
exception, the third party
had foregone its right to plead with the
result that on the exception being dismissed, the third party was
barred from pleading.
He held that the third party was entitled, ‘as
of right’, to except and then to plead; and that ‘[w]ere
a defendant
or third party to be required to elect between the two
options of excepting or pleading, with the result that, once it
elects to
except it loses its right to plead, this would make a
mockery of the exception procedure’. (Para 14.)
[13]
As I am in respectful agreement with Griffith AJ reasoning in the
Landmark Mthatha
case,
I accordingly find that it was not an irregular step for the
respondent to file an exception even if the order only referred
to a
plea.
[14]
The result is that there is no merit in the rule 30 application. It
must be dismissed with costs.
Two counsel appeared for the
respondent. There is no justification for the appointment of two
counsel is a simple and straightforward
case such as this.
[15]
The application is dismissed with costs.
_______________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant:
Mr F H Maliwa
Instructed
by:
Makangela
Mtungani Inc, Mthatha
For
the respondent:
Mr M H Sishuba and Mr P Mhlana
Instructed
by:
The
State Attorney, Mthatha