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[2018] ZAKZDHC 8
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Standard Bank of South Africa and Another v Caine and Others (6309/2017) [2018] ZAKZDHC 8 (25 April 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 6309/2017
In
the matter between:
STANDARD
BANK OF SOUTH
AFRICA
FIRST
APPLICANT
THE
SHERIFF INANDA DISTRICT
TWO
SECOND
APPLICANT
and
THOMPSON
CAINE
FIRST
RESPONDENT
PRINCESS
CAINE
SECOND
RESPONDENT
BYRON
KEVIN
CAINE
THIRD
RESPONDENT
URSULA
ANDREA
CAINE
FOURTH
RESPONDENT
In
re
THOMPSON
CAINE
FIRST
PLAINTIFF
PRINCESS
CAINE
SECOND
PLAINTIFF
BYRON
KEVIN
CAINE
THIRD
PLAINTIFF
URSULA
ANDREA
CAINE
FOURTH
PLAINTIFF
and
THE
STANDARD BANK OF SOUTH
AFRICA
FIRST
DEFENDANT
THE
SHERIFF INANDA DISTRICT
TWO
SECOND
DEFENDANT
JUDGMENT
SISHI
J
[1]
The first applicant, Standard Bank of South Africa, made an
application in terms of Rule 30(1) of the rules of court wherein it
sought an order in the following terms:
(1) Setting aside the
particulars of claim filed under case number 6309/2017;
(2) Affording the respondents a
period of 15 days following service of the order on the respondents
to deliver their amended
particulars of claim;
(3) Authorising the applicants'
attorneys of record to attend to the delivery of the order on the
respondents;
(4) That first to fourth
respondents be ordered to pay the costs of the rule 30 application,
jointly and severally, the one
paying the other to be absolved.
[2]
In respect of the second applicant, the Sheriff lnanda
District Two, two matters served before this court namely:
(a) Exception to the plaintiff's
particulars of claim.
(b) The rule 30 application, in
respect of the plaintiffs' "purported notice" to amend.
[3]
Before I proceed with this matter, I may as well mention that
on the day of the hearing of these opposed applications there were
no
appearances by or on behalf of the respondents. It is clear from the
documents that notices of set down were properly served
on the
addresses chosen by the respondents. Counsel for the first applicant
in the exception mentioned that his instructing attorney
received a
copy of a sick note on behalf of the first respondent. The document
did not properly indicate the first respondent's
ailment. The first
respondent did not notify the court through the registrar or in any
other way that he would not be able to attend
the proceedings. The
names of the second, third and fourth respondents were called and
there was no appearance by or on their behalf.
[4]
It became clear that the respondents were all aware of the
date of the opposed application. The notices of set down of the
matters
on the opposed roll were served on the address chosen by the
respondents. It is also clear from the reading of the papers that the
respondents drafted their own papers and that they have not been
legally represented right through these proceedings.
[5]
Counsel, for the first and second applicants, applied that the
matter proceeded despite the absence of the respondents. The
application
was accordingly granted and the court proceeded with the
matter in their absence.
[6]
The respondents contend that the first applicant instituted
action against Ms Van Zyl under case number 2824/2014. The
respondents
complain that the summons, and other documents were not
served by the second applicant, the sheriff, and that the property at
issue
(owned by and in the name of Van Zyl) was listed to be sold. As
a result the respondents' claimed damages exceeding R62 millions.
[7]
On the 2 June 2017 the first to fourth respondents caused
summons to be issued again the first and second applicants.
Subsequent
to receipt of the summons on 7 July 2017 and 28 July 2017
both first and second applicants served upon the respondents notices
in terms of rule 23 calling upon the respondents to remove various
causes of complaints.
[8]
On 4 August 2017 the first to fourth respondents served their
responses to the first and second applicants' notices to remove the
causes of complaint.
[9]
On 30 August 2017 and in consequence of the first to fourth
respondents' failure to remove the causes of complaint, the first
applicant
served on the respondents its notice of exception. The
second respondent, the sheriff, also served his notice of exception,
objecting
to the notice of amendment, dated 24 May 2017 and stating
that it does not comply with Uniform Rule 28 and that it is
irregular.
[10]
On 10 June 2014 Madam Justice Moodley granted a judgment
sounding in money against Melanie Nannie Van Zyl, the first and
second
respondents' daughter.
[11]
On 11 August 2014 Mr Justice Koen granted an order against
Melanie Nannie Van Zyl, in favour of the first applicant declaring
the
mortgaged property described as Erf […] Newlands
(Extension 16) specially executable.
[12]
Notwithstanding that the respondents claim is founded on the
orders that were granted by Judge Moodley and Judge Koen, Melanie
Nannie
Van Zyl is not cited as a co-plaintiff in the action
instituted by the respondents against the applicants.
[13]
On 27 November 2017 the first to fourth respondents served a
notice of amendment citing Melanie Nannie Van Zyl as a first
plaintiff
and Ursula Andrea Caine as a fourth ·plaintiff in
the main action and seeking to effect certain amendments to its
particulars
of claim.
[14]
Insofar as the first applicant's rule 30 application is
concerned, it contended that on 28 July 2017, Jason Michael Smith
Incorporated
Attorneys, the applicant's erstwhile attorneys of
record, served a joint notice in terms of rules 23(1) and 30(1) on
the respondents,
and allowed the respondents 15 days within which to
remedy the causes of complaints set out in the notice. The notice is
annexed
to the application in terms of the rule 30 as RT1 and
contains 24 causes of complaints.
[15]
The 15 day period within which the respondents were afforded
to cure the defects in the particulars of claim has lapsed yet the
respondents have still not rectified the causes of complaint set
forth in the notice to date. It has been contended on behalf of
the
applicant in the rule 30 application that it is prejudiced in the
running of the matter due to the respondents' failure to
address the
causes of complaint.
[16]
Having considered all the above, in my view, there is no
reason why the order sought in the notice of application cannot be
granted.
[17]
On 11 December 2017 the second applicant caused a notice in
terms of Uniform Rule 30(2) of the rules of court to be served upon
the respondents and filed it with registrar of this court on the same
day. The notice is annexure "A" to the founding
affidavit
in support of the second applicant's application in terms of rule
30(2). The second applicant in the main application
identified the
causes of complaint as irregular steps by the respondents as follows:
"1. On 27 November
2017, the respondents caused a notice of amendment of the
Respondents' particulars of claim to be served
upon the second
applicant (which notice is dated 24 November 2017), in which the
respondents inform the second applicant that "...the
respondents
hereby amend the particulars of claim to read as follows... "
2. The said notice of intention to
amend the respondents' particulars of claim does not comply with Rule
28(2) which regulates proposed
amendments to pleadings.
3. In addition to the foregoing, the
existing respondents purport to join a new plaintiff as first
plaintiff by means of the aforementioned
irregular notice of
intention to amend. No application for joinder of the first
plaintiff, as provided by the rules has been made."
[18]
The notice indicated that the respondents herein took
irregular steps in delivering a notice of intention to amend their
particulars
of claim which was not compliant with the rules of this
court. This notice of intention to amend sought to introduce a new
party
without complying with the rules and procedures of this court.
The respondents were called upon to remove the causes of complaint,
and the irregular steps within 1O days of delivery of notice. The 10
day period in the notice expired on 27 December 2017. The
respondents
failed to remove the causes of complaint or irregular steps either
timeously or at all.
[19]
It was submitted, correctly in my view, on behalf of the
second applicant that the claim against the second applicant is
excipiable
for the following reasons:
"1. No cause of
action: There are no allegations to support any legal duty or
obligation owed by the "plaintiffs"
who were not the owners
of the property and were not party to the impugned action and
processes served thereunder. The "plaintiffs"
are complete
legal strangers to that action and those processes. The respondents
advance no averments as to why they are suited
to advance the claims.
2. No cause of action - fourth
plaintiff: The fourth plaintiff is a minor and there are insufficient
allegations to confer
locus standi
on the fourth plaintiff.
3. No cause of action/vague and
embarrassing: the respondents rely on the "family unit" and
non-service on "the family".
The legal nature of the family
unit and the family is unclear and not pleaded.
4. No cause of action/vague and
embarrassing: In paragraph 32(iii) of particulars of claim the
respondents refer to paragraph 33(ii)
but there is no such paragraph.
5. Vague and embarrassing: the
particulars of claim are replete with general references to
corruption, court capture and so on.
None of these are linked to any
cause of action against the second applicant. Their inclusion renders
the claim vague and the second
applicant is embarrassed in pleading."
[20]
Furthermore the allegations in the following paragraphs of the
particulars of claim are irrelevant: 7, 8, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 30, 33, 34, 36, 38 and 39. The second
respondent is and will be prejudiced if these allegations remain.
They stand to be struck out. It is further contended that the
"further particulars" do not cure the complaints.
[21]
In an undated response, the respondents opposed the
applicants' exceptions and the motion to strike out certain averments
in the
particulars of claim. Their response mainly contains denials
of the averment made on behalf of the applicants and refers to the
corruption and capture of the courts and accuses the courts of making
rulings based on fraudulent documents.
[22]
I have considered the document filed on behalf of the
respondents in response to the applicants' exceptions and the motion
to strike
out. I am satisfied that the issues raised as causes of
complaint by the applicants have not been addressed by the
respondents
in their response.
[23]
In my view there is no reason why the second respondent's
exception should not be upheld.
[24]
On 27 November 2017, the respondents delivered a "notice
of amendment" dated 24 November 2017. In this notice the
respondents
sought to introduce Van Zyl as the first respondent. This
notice does not comply with Uniform Rule 28 of the rules of court and
stands to be set aside as irregular.
[25]
In my view there is no reason why this notice should not be
set aside.
Costs
[26]
On the issue of costs both counsel argued that their
applications should be upheld with costs. In my view there is no
reason why
the costs should not follow the result.
[27]
In the result I make the following order:
1.
The first and second applicants'/defendants' exceptions to the
respondents/plaintiff's particulars of claim are upheld.
2.
The respondents/plaintiffs are afforded a period of 15 days to
deliverer their amended particulars of claim.
3.
If the respondents/plaintiffs fail to amend their particulars
of claim in accordance with above paragraph, the
applicants/defendants
are given leave to set the matter down without
notice to the respondents/plaintiffs for an order striking out the
respondents'/plaintiffs'
particulars of claim and granting the
judgment in favour of the applicants/defendants with costs.
4.
The following paragraphs of the respondents'/plaintiffs'
particulars of claim are struck out: 7, 8, 11, 12, 13, 14, 15, 16,
17,
18, 19, 20, 21, 22, 23, 30, 33, 34, 36, 38 and 39.
5.
The respondents'/plaintiffs' "notice of amendment"
dated 24 November 2017 is set aside as an irregular step and shall be
of no force or effect.
6.
The respondents/plaintiffs jointly and severally, the one
paying the other to be absolved, are ordered to pay the costs
occasioned
by the exceptions, the rule 30 application and the opposed
motion.
__________________
SISHI
J
Appearances
For
the First Applicant/defendant: Adv D Ramdhani
Instructed
by: Norton Rose Fulbright South Africa Inc
15
Alice Lane, Sandton, 2196
Ref:
AIG1188/R Tlhavani
c/o
Norton Rose Fulbright South Africa Inc
3
Pencarrow Crescent
Pencarrow
Park
La
Luia Ridge, Durban
Ref:
B Perrett
For
the Second Defendant: Adv AJ Boulle
Instructed
by: Savage Jooste & Adams Inc
Ref:
WDF/D Van Der Walt/BD/WS2497
c/o
Barkers Attorneys
8
Rydell Vale Crescent
La
Lucia Ridge Office Estate
Durban
Date
Judgment Reserved: 27 March 2018
Date
of Judgment; 25 April 2018