About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 711
|
|
Smith and Others v Du Plessis (99075/2015) [2018] ZAGPPHC 711 (9 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
CASE NO: 99075/2015
9/2/2018
In
the matter between
JACQUES
SMITH
FIRST APPLICANT
DAVE
SMITH
SECOND APPLICANT
DAWIE
SMITH
THIRD APPLICANT
DAWIE
NORTJE
FOURTH APPLICANT
AND
JEAN
PRIEUR DU
PLESSIS
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
The
applicants have launched an application seeking the following relief
in summary form;
1.1.
That the notice of bar dated 20 July
2016 be uplifted and set aside;
1.2.
That the applicants' notice of exception
in terms of rule 23 be upheld;
1.3.
That the respondent be ordered and
directed to amend his particulars of claim within 10 days of the
order of this court;
1.4.
That any party opposing the application
be directed to pay the costs.
[2]
The
application is opposed by the respondent.
[3]
The
following common cause events gave rise to this application;
3.1.
During December 2015 the respondent
caused summons to be issued against the applicants;
3.2.
The summons were served on the
applicants during January 2016;
3.3.
On 11 January 2016 the applicants filed
a notice of intention to defend;
3.4.
On 15 March 2016 the respondent's new
attorneys came on record;
3.5.
On 18 March 2016 the respondent served a
notice of bar on the applicants;
3.6.
On 29 March 2016 the applicants served a
notice in terms of rule 35(12) and 35(14) of the uniform rules of
court on the respondent;
3.7.
The response to the rule 35(12) and (14)
was filed on the 7 April 2016;
3.8.
On 15 April 2016 the applicants served a
notice in terms of rule 23 calling on the respondent to remove the
cause of complaint.
I interpose to indicate that the thrust of the
rule 23 notice was that the respondent's particulars of claim were
vague and embarrassing.
The paragraphs referred to are paragraphs 4,
5, 6, 7, 8, 14, and 17. The applicant further objected to the fact
that the respondent
relied on a written agreement without disclosing
details thereof or attaching it to the particulars of claim. There
was a further
objection to reliance on a cession without better
elucidation.
3.9.
On 23 May 2016 the applicants served a
second notice in terms of rule 23 on the respondent.
3.10.
On 1 June 2016 the respondent served a
notice of intention to amend, to which there was no objection;
3.11.
On 21 June 2016, the respondent effected
the amendment by filing amended pages.
3.12.
The respondent served a notice of bar on
25 July 2016.
3.13.
On 1 August 2016 the applicants by fax
and email served the respondent with a rule 23 notice.
3.14.
On 4 August 2016 the respondent caused a
letter to be written to the applicants stating that the service of
the rule 23 notice by
way of fax and email was not consented to and
therefore that such service would not be accepted .
[4]
In addition to the above, I must mention
that the applicant in the conduct of these proceedings, had appointed
correspondent attorneys
Ehlers Fakude Incorporated. The notice of bar
which had been served on the correspondent attorneys was due to take
effect on 1
August 2016. On that day the correspondent attorneys
forwarded the notice of bar to the applicants' instruction attorneys
by way
of email. The instructing attorney sought to establish why
there had been a delay in forwarding the notice to them and an
explanation
emanating from the correspondent attorneys was that the
attorney who had been allocated the matter was on leave between 26 to
July
29 July 2016. On top of that, their office server had not been
working on 29 July 2016.
[5]
The instructing attorneys engaged
directly with the respondent's attorneys with the view to seeking an
extension of time to file
their plea. The response received from them
was to the effect that they were prepared to extend the timeline
provided the applicants
were going to plead and not except. In the
mean time applicants ' attorneys instructed counsel to settle an
exception which, after
minor amendments was served by fax and email
as aforesaid and which precipitated the email objecting to the form
and manner of
service.
[6]
The applicants are of the view that the
posture adopted by the respondent, namely, to be willing to extend
the timeline for the
filing of the plea provided the applicants filed
a plea and not a notice of exception and together with the objection
to service
through electronic means, in circumstances where the
respondent was not prejudiced, is unreasonable.
[7]
The respondent opposes the application
on many fronts. Firstly, the respondent is of the view that the
applicants are simply evading
their responsibility to plead to the
particulars of claim. In this regard, the respondent contends that a
pattern of behavior on
the part of the applicants, namely, their
failure to plead but instead to except to the particulars of claim,
was a clear indication
of their abdicating their responsibility.
Secondly, that absent a disclosure of a
bona
fide
defence in the application, the
application falls to be dismissed. Moreover, so it is contended, the
issues raised in the notice
of exception are dilatory in nature.
Thirdly, that the correspondent attorneys were grossly negligent in
not forwarding the notice
of bar timeously. Other numerous grounds of
opposition are advanced I however consider these to be the main ones.
[8]
Uniform rules provide that in the
absence of an agreement between the parties a court may on
application and provided good cause
is shown, make an order extending
or abridging any times limits prescribed in the rules. A court also
may on good cause shown condone
any non-compliance with the rules.
[9]
The use of the words "good cause
shown" gives this court a broad discretion as to whether or not
to uplift the bar and
to grant the defendant leave to file its plea,
or in this case for the respondent to respond to the exception.
[10]
Our courts have been hesitant to formulate an exhaustive definition
of what constitutes good
cause because to do so will impede
unnecessarily the discretion of the court. (See
Silber v Ozen
Wholesalers (Pty) Ltd
1954 (2) SA 345
(A)
at 353A and
Du
Plooy v Anwes Motors (Edms) Bpk
1983 (4) SA 212
(OJ
at 21SC -
21?C. The requirements for the favorable exercise of a court's
discretion have been crystallized in the decision of
Smith N.O.
v Brummer N.O.
1954 (3) SA 352
(OJ
at 358A. Over time courts
have leaned in favor of lifting the bar where the following
requirements are found to have been met;
10.1.
the applicant has given a reasonable
explanation for his delay;
10.2.
the application is
bona
fide
and not made with the object of
delaying the opposite party's claim;
10.3.
there has not been a reckless or
intentional disregard of the rules of court;
10.4.
the applicant's action is clearly not
ill-founded; and
10.5.
any prejudice caused to the opposite
party could be compensated for by an appropriate order as to costs.
[11]
The courts have held that an applicant
must at least furnish an explanation of his default sufficiently to
enable a court to understand
how it really came about and to also
assess his motives :and conduct. One of the critical factors is the
extent of the delay.
[12]
As I follow the applicants' submissions,
the correspondent attorney reverted to them, at virtually the
eleventh hour, with a notice
of bar. The reason for such late
referral was that the attorney allocated the matter was not
available. On the same day on which
applicants ' attorneys became
aware of the notice of bar, they made contact with the respondent's
legal representatives seeking
from them some sort of indulgence. They
were met with a conditional one,
"
an indulgence can only be extended if you file a plea and nothing
else".
The applicants it seems
to me, felt strongly about the excipiable nature of the particulars
of claim, in that instead of agreeing
to file a
plea
and nothing else,
chose to rather
proceed by way of exception.
[13]
In examining the explanation proffered
for the delay, inevitably one must also closely look at the extent
thereof as well as all
other surrounding factors. The respondent's
initial gripe or objection is premised on the fact that the parties
had not agreed
on the manner of service which the applicants chose to
serve the notice of exception on 1 August 2016. Secondly, that
although
the notice of exception was properly served on 2 August
2016, it had been served out of time which meant that the applicant
was
de facto
barred.
While true that the parties had not agreed on the manner of service,
namely email and fax, the fact that the applicants
made an effort to
not only fax and email the notice of exception on 1 August 2016 but
to also serve it the following day, having
become aware of the notice
of bar that same day, suggests that the there was no intention to act
ma/a
fide
nor
was there recklessness or an intention to deliberately disregard the
rules. The promptitude with which the applicants attempted
to comply
with the filing timelines, is in my view a clear indication that the
applicants are not simply intent on simply frustrating
the
respondent's action.
[14]
The respondent makes reference to the
applicants' past conduct of having excepted to the particulars of
claim, in support of his
contention that the applicants have a
stratagem to avoid pleading. When consideration is given to the fact
that the first notice
of exception yielded a substitution of the
entire particulars of claim by way on an amendment, the contention
that the exception
is filed for delaying purposes is not meritorious.
This also goes to the question whether the application is
ill-founded, which
I deal with below.
[15]
Whereas the nub of the applicants' first
notice of exception was that the particulars of claim were vague and
embarrassing, the
second one was to the effect that the particulars
of claim lacked averments which are necessary to sustain an action.
The purpose
of an exception to a pleading on the basis that a cause
of action is not disclosed, is worth restating. In
Barclays
National Bank Ltd v Thompson
1989 (1) SA
547
at 553G-I, van Heerden JA said:
"It has also been said
that the main purpose of an exception that
a
declaration does
not disclose a cause of action
is
to avoid the
leading of unnecessary evidence at the trial:
Dharumpal
Transport (Pty) Ltd v Dharumpal
1956 (1) SA 700
(A)
at 706. Save for exceptional
cases,
such as those
where
a
defendant admits
the plaintiff's allegations but pleads that as
a
matter of law the
plaintiff is not entitled to the relief claimed by him (cf
Welgemoed
en Andere v Sauer
1974 (4) SA 1
(A)),
an
exception to a plea should consequently also not be allowed unless,
if upheld, it would obviate the leading of 'unnecessary '
evidence."
[16]
The purpose of an exception the thrust
of which is that the particulars of claim lack averments that are
necessary to sustain an
action , is aimed at disposing of the action
in its entirety.
"An exception
provides a useful mechanism for weeding out cases without legal
merits"
Erasmus, Superior
Court Practice, 2nd edition Vol. 2 D1-294. H v Fetal Assessment
Centre 2015(2) SA 193 (CC)
at
198;
Telematrix (Pty) Ltd t/a
Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 (1)
SA 461
(SCA)
at 465H. A summons
that does not disclose a cause of action or lacks averments necessary
to sustain it goes to the decision on a
point of law without which
the whole cause or part thereof may be disposed of without leading
unnecessary evidence at the trial.
Santos
v Standard General Insurance Co Ltd.
1971 (3) SA 434
(O)
at
4378;
[17]
The explanation that is given for the
delay, is one that this court readily accepts. The duration is
equally not excessive. Although
the respondent states that there is
prejudice on his part in the event the application is granted, none
has been pointed at or
demonstrated. I am of the view that it should
be left open to the respondent in the event he is of the persuasion
that the exception
is not meritorious, to challenge it in the normal
cause.
[18]
I
therefore make the following order;
1.
Condonation
is granted to the applicant for failure to timeously plead or except;
2.
The notice of bar is uplifted;
3.
The
respondent is directed to respond to the notice of exception within
10 days hereof;
4.
The
respondent is directed to pay the costs hereof on a scale as between
party and party.
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA