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[2018] ZAGPPHC 700
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Minister of Police and Another v Majola (86299/2015) [2018] ZAGPPHC 700 (16 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: 86299/2015
16/2/2018
In the matter between
MINISTER OF POLICE
FIRST APPLICANT
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICES
SECOND APPLICANT
and
SIBUSISO
MAJOLA
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1] The applicant has
launched an application seeking the following relief in summary
form;
1.1. That the notice of bar
dated 20 July 2016 be uplifted ad set aside;
1.2. That the applicant's
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 applicant;
3.2. The summons were
served on the applicant during January 2016;
3.3. On 11 January 2016 the
applicant 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 applicant;
3.6. On 29 March 2016 the
applicant 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
applicant 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
applicant 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 applicant 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 applicant stating that the
service of the rule 23 notice by way of fax and email was not
consented to and therefore that 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 applicant's instruction attorneys by way of email. The
instructing attorney sought to establish why there
had been a delay
in forwarding the notice to them the 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 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 applicant's 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 service.
[6] The
applicant is 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
(O)
at 215C - 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
(O)
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 applicant's 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
applicant's 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 applicant, 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 applicant 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 applicant 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 applicant
attempted
to comply with the filing timelines, is in my view a clear
indication that the applicant is not hellbent on simply frustrating
the respondent's action.
[14] The
respondent makes reference to the applicant's 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
(0)
at 437B;
[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. 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 between party and party.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT