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[2017] ZAGPPHC 44
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Draht and Others v Manqele and Others (2014/29501) [2017] ZAGPPHC 44 (14 February 2017)
IN
THE GAUTENG DIVISION OF THE HIGH COURT OF SOUTH AFRICA, PRETORIA
CASE
NO: 29501/2014
DATE:
14/2/2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
HEIKO
DRAHT
N.O. FIRST
APPLICANT
MARC
BRADLEY BEGINSEL
N.O. SECOND
APPLICANT
DONOVAN
THEODORE MAJIEDT
N.O. THIRD
APPLICANT
And
THULANI
JOSEPH
MANQELE FIRST
RESPONDENT
STANDARD
BANK OF SOUTH AFRICA LIMITED SECOND
RESPONDENT
MASTER
OF THE HIGH
COURT THIRD
RESPONDENT
JUDGMENT
TSATSAWANE
AJ
Introduction
1.
This is an application for default judgment against the first
respondent.
2.
The applicants are the trustees of the insolvent estates of
Mbongiseni Isaac Manqele and Lindiwe Grace Manqele
("the
insolvents"
).
3.
The first respondent is the joint owner of what is described in the
papers as
"one half undivided share of the property described
in paragraph 2 of the Notice of Motion"
as –
"Section No. 11 as shown
and more fully described on Sectional Plan No SS000158/07 in the
scheme known as VILLA DANIELLA in
respect of the land and building or
buildings situated at MEYERSDAL EXTENSION 12 TOWNSHIP
... "
("the property").
4.
The property is registered in the names of the first respondent and
the insolvents. In their notice of motion, the applicants
seek an
order in terms of which this joint ownership is terminated and
certain consequential relief relevant to the termination
and the
disposal of the property.
The
main application
5.
The main application was instituted in April 2014. The first
respondent delivered his answering affidavit in May 2014 to oppose
the relief sought by the applicants. The applicants replied to the
first respondent's answering affidavit in September 2014, clearly
out
of time.
6.
On 30 April 2015, the main application was called before Her Ladyship
Madam Justice Neukircher, who after hearing the parties,
ordered that
the matter be referred to trial and that the applicants file a
declaration within 20 days from the date of the order.
7.
In terms of the aforesaid order, the applicants ought to have filed
their declaration by no later than
5
June 2015 at the latest.
They didn't.
8.
The applicants only delivered their declaration in February 2016, way
out of time. They did so without seeking the leave of the
Court.
9.
The first respondent did not deliver a plea to the applicants'
declaration as a result of which the applicants delivered a notice
of
bar on 3 March 2016. The first respondent objected to this and
delivered a notice in terms of Rule 30A(l). The first respondent
objected to the notice of bar on the ground that the applicants
themselves were in fact
ipso facto
barred from delivering
their declaration due to the fact that they failed to deliver it
within the 20 days prescribed in the Court
order of 30 April 2015 in
terms of which the matter was referred to trial. For this reason, the
first respondent contended that
it was not competent for the
applicants to deliver a notice of bar and called upon the applicants
to withdraw it.
10.
The applicants did not withdraw the notice of bar and proceeded to
bring this application for default judgment.
The
present application for default judgment
11.
The applicants now seek default judgment on the basis that the first
respondent has failed to deliver a plea (having been barred
from
doing so). The application is opposed by the first respondent on the
following basis set out in the notice of opposition –
"AND KINDLY TAKE NOTE
THAT
the Applicants are prohibited in law and
in
terms of the Uniforms Rules of Court to bring an application for
Default Judgment in terms of Rule 31(2)(a) of the Uniform Rules
of
Court as they were in the first place barred from delivering their
declaration after twenty (20) Court days from 30 April 2015.
The
Applicants only delivered their Declaration almost
nine (9)
months after the 30 April 2015. The Applicants have failed to comply
with Rule 27 of the Uniform Rules of Court
..."
12.
Before me the applicants were represented by
Mr. Raubenheimer
and
the first respondent was represented by
Mr. Sebola.
Both filed
practice notes in which they summarised their points of contention.
They both agree that the issue which requires determination
is
whether the applicants were automatically barred when they failed to
deliver their declaration within the 20 days' period prescribed
in
the Court order of 30 April 2015. It is common cause that the
declaration was filed outside the period prescribed in the Court
order of 30 April 2015 and no order was sought (and granted)
condoning such late delivery.
13.
Mr. Raubenheimer
contended that the applicants were not
automatically barred from delivering their declaration despite the
fact that they delivered
their declaration way out of time. He
further contended that the first defendant ought to have delivered a
notice of bar to bar
the applicants from delivering their declaration
if they did not do so within the time period which would have been
given in the
notice of bar.
14.
In support of his submissions,
Mr. Raubenheimer
referred me to
Woolf v Zeenex Oil (Pty) Ltd
1999 (1) SA 652
(
W
)
.
In this case, Joffe J was dealing with a matter where the Court,
as in this case, had previously referred the matter to trial and
fixed a date for the delivery of a declaration and the declaration
was not delivered within the prescribed date. On the basis of
this
failure, the applicant then applied for an order to dismiss the
plaintiff's action.
15.
In
Woolf,
the respondent contended that the applicant was
obliged first to have filed a notice of bar in terms of Rule 26. The
Court upheld
this argument and
Mr. Raubenheimer
says that I
should do the same in this application.
16.
On the other hand,
Mr. Sebola
urged me to find that the
applicants were automatically barred from delivering their
declaration when they failed to deliver it
within the timeframe
prescribed in the Court order of 30 April 2015. He further contended
that the applicants were obliged first
to
uplift
the bar
pursuant to an application in terms of Rule 27.
17.
When the Court granted the order of 30 April 2015, it did so in terms
of Rule 6(5)(g) which provides that where an application
cannot
properly be decided on affidavits, the Court
"may refer the
matter to trial with appropriate directions as to pleadings or
definition of issues, or otherwise."
The Court gave
"directions as to pleadings"
and said that the
applicants are
"to file a declaration within twenty
(20)
days of date of this order"
and that the
"filing of
further pleadings and conduct of trial is to be done in accordance
with the provisions of the Uniform Rules of Court."
18.
In
Woolf,
the Court ordered that the declaration
"is
to be delivered within one month of today's date"
and did
not give further directions. It, however, followed that the Uniform
Rules of Court would apply.
19.
At issue in this application is whether the applicants were
automatically barred from delivering their declaration upon the
expiry of the time period for doing so prescribed in the Court order
of 30 April 2015. If so, it would mean that the first respondent
did
not have to first deliver a notice of bar before the applicants
became barred. In
Woolf,
the Court held that a notice of bar
in terms of Rule 26 was required to bar the plaintiff in that case
from delivering a declaration
- in other words, there was no
automatic barring from delivering a declaration without a notice of
bar in terms of Rule 26 having
been delivered first.
20.
Rule 26 deals with the failure to deliver pleadings and barring. It
provides that –
"Any party who
fails to deliver a replication or subsequent pleading within the time
stated in Rule 25 shall be ipso facto
barred. If any party fails to
deliver any other pleading within the time laid down in these Rules
or within
any extended time allowed in terms thereof
,
any other party may by notice served upon him require him to deliver
such pleading within 5 days after the day upon which the
notice is
delivered. Any party failing to deliver the pleading referred to in
the notice within the time therein required or within
such further
period as may be agreed between the parties, shall be in default of
filing such pleading, and ipso facto barred ..."
(my
emphasis).
21.
On a proper reading of Rule 26, it is clear that it refers to two
instances in which a party may be barred. The first instances
to
which it applies is where a party has failed to deliver a replication
or subsequent pleading within the time stated in Rule
25. In that
event, such a failure result in such party being
ipso facto
barred
without the need to deliver a notice of bar. The second instance to
which the rule applies is where a party has failed to
deliver any
other pleading
"within the time
laid down in these
Rules or within any extended time allowed in terms thereof."
In
that event, a notice of bar is required before the party concerned is
barred from delivering the pleading in issue.
22.
It is clear that in the second instance to which Rule 26 applies, one
is concerned with a failure to deliver a pleading within
the time
period prescribed in the Rules or within an extended time
"allowed
in terms"
of the Rules. In my view, the Rule does not apply
to the time periods prescribed in a Court order.
23.
In addition, the reference to a failure to deliver any other pleading
is a reference to a failure to do so
"within the time laid
down in these rules"
and clearly not within the time laid
down in a Court order. The reference to
"or within any
extended time allowed in terms thereof'
is again a reference to
the
"extended time allowed in terms"
of the Rules
and not in terms of a Court order.
24.
Rule 20 deals with the delivery of a declaration
"within
fifteen days after"
receipt of a notice of intention to
defend. In this case, the Rule itself prescribes the period within
which a declaration must
be delivered and Rule 26 applies to it in
the event of a failure to deliver the declaration
"within the
time laid down in these rules",
i.e. Rule 20 in this regard.
In that event, there is no automatic barring - a notice of bar ought
first to be delivered for the
recipient thereof to be barred from
delivering the pleading which such a party is called upon to deliver
in terms of the notice
of bar.
25.
In the premises, I am of the view that the decision of the Court in
Woolf
is clearly wrong insofar as it held that a notice of bar
in terms of Rule 26 is required before a party is barred from
delivering
a declaration within the time period prescribed by a Court
order. This is so due to the fact that Rule 26 does not apply to a
failure
to deliver a pleading within the time period prescribed by a
Court order, it applies to a failure to deliver a pleading
"within
the time laid down in these rules"
or within any extended
time allowed in terms of the Rules and not the time period prescribed
by a Court order.
26.
Rule 27 which deals with the extension of timeframes, the removal of
bar and condonation makes it clear that there are two categories
of
timeframes relevant to court proceedings, i.e.
"the time
prescribed by these rules or by an order of Court."
It
provides that the
"time prescribed by these rules or by an
order of Court"
may be extended by the Court upon
application on notice and on good cause shown.
27.
In this case, the Court order of 30 April 2015 does not say that a
failure to deliver the declaration within .the 20 days' period
provided for therein shall result in the applicants being
automatically barred from delivering it. Even if it did, the
applicants
would have been entitled to apply for the removal of the
bar in terms of Rule 27.
28.
The first respondent takes issue with the late delivery of the
applicants' declaration and
Mr. Sebola
contended that the
present application is not properly before the Court due to the fact
that the applicants failed to deliver the
declaration within the time
period prescribed in the Court order of 30 April 2015 and did not
seek an order in terms of which the
time period in issue was extended
in terms of Rule 27.
29.
There is no dispute that the applicants delivered their declaration
out of time and that they did not seek an order condoning
such late
delivery or for an extension of the time period prescribed in the
Court order of 30 April 2015 as contemplated in Rule
27.
30.
In the circumstances, I am of the view that the present application
for default judgment is not properly before the Court due
to the fact
that the applicants' declaration on which it is founded was delivered
after the expiry of the time period prescribed
for its delivery and
the applicants did not seek an order to extend that time period. I
accordingly make the following order –
30.1. the applicants' notice of
bar dated 2 March 2016 is set aside;
30.2. the application for default
judgment is dismissed;
30.3. the first respondent's
costs shall be paid by the applicants;
30.4. the applicants are granted
leave, if so advised, to bring an application for an order
contemplated in Rule 27 insofar as the
late delivery of their
declaration is concerned;
30.5. the applicants are ordered
to bring the aforesaid application within 15 days from the date of
this order failing which, and
if so advised, they shall seek an order
condoning the late filing of such an application.
_____________________
Kennedy
Tsatsawane
Acting
Judge of the Gauteng Division of the High Court of South Africa,
Pretoria.
For
the applicants: R
Raubenheimer
Vezi
de Beer Inc., Pretoria.
For
the first respondent: MS
Sebola
Nchupetsang
Attorneys, Johannesburg, Noko Phago Inc., Pretoria