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[2016] ZAFSHC 206
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Louw v Grobler and Another (3074/2016) [2016] ZAFSHC 206 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3074/2016
Reportable:
No
Of
interest to other judges: No
Circulate
to magistrates: No
In
the matter between:
TILANA
ALIDA
LOUW
Plaintiff
and
DR STEPHEN PAUL
GROBLER
1st
Defendant
NETCARE UNIVERSITAS
HOSPITAL
2nd
Defendant
CORAM:
RAMPAI, J
HEARD
ON:
20 OCTOBER 2016
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
15 DECEMBER 2016
[
1]
These were interlocutory proceedings. The applicant applied in
terms of Rule 30(1) to have the respondent’s summons
set aside
or struck out as an irregular step. The foundation of the
objection was that the summons offended the certain rules
of the
court. The respondent opposed the interlocutory application.
[2]
I think a brief factual background is necessary. The
respondent, as the plaintiff, initiated actions proceedings against
one Dr SP Grobler and the applicant. The latter was cited as
the second defendant. The registrar issued the summons
on 1
July 2016. The plaintiff, employed as a theatre unit manager by
the defendant, alleged that the first defendant continually
and
racistically abused, threatened, degraded and humiliated her at
workplace. The defendants denied her allegations and
defended
the action. In the summons the plaintiff averred that the
second defendant had two physical addresses, one in Bloemfontein
and
the other in Sandton. The summons and the particulars of claim
attached to it were signed by an attorney called Mr J
Nortje.
[3]
The sheriff served the summons on the second defendant in
Bloemfontein on 5 July 2016. Six days later, on 11 July 2016,
to be precise, a second copy of the summons was served by the sheriff
on the second defendant in Sandton.
[4]
On 18 July 2016, seven days after the second service and thirteen
days after the first, the second defendant’s notice
of
intention to defend was drawn up and signed by a certain Pieter,
seemingly an attorney in Sandton. It was then emailed
to Mr P
du Toit of McTyre van der Post in Bloemfontein. On the same day
it was served on Kramer Weihmann & Joubert in
Bloemfontein.
The next day, on 19 July 2016 the notice was filed.
[5]
Still on 19 July 2016 the second defendant filed a notice of
objection in terms of Rule 30(2)(b). The second defendant
complained that the plaintiffs combined summons constituted an
irregular step. The alleged objectionable irregularities were
then specified and ventilated. The first cause of the complaint
concerned the signing of the combined summons. The
second cause
of the complaint concerned the number of days afforded to the second
defendant for delivering notice of intention
to defend.
[6]
The second defendant then called upon the plaintiff to remove the
aforesaid causes of the complainant. The notice was
served on
the plaintiff a day before it was filed. Such service and call
notwithstanding, the plaintiff did not respond within
the 10 day
period as stipulated in the notice.
[7]
Aggrieved by the plaintiff’s refusal to remove the causes of
its complaint, the second defendant moved the current proceedings
on
10 August 2016. The plaintiff filed her opposing papers on 25
August 2016. She contended that the second defendant’s
complaint was without merit. The interlocutory application was
initially enrolled for hearing on 1 September 2016.
On that day
Moloi J postponed it to 13 September 2016. On that day I heard
the matter.
[8]
The first issue in the application was whether the plaintiff’s
combined summons was signed in a manner that offended the
rules of
this court.
[9]
Ms Van der Merwe,
counsel for the applicant
,
in other words the second defendant, contended that the combined
summons was irregular in that the plaintiff’s attorney
did not,
on the particulars of claim, state, in terms of Section 4 Act No
62/1995, that he has a right of appearance in the high
court.
The omission, so counsel submitted, rendered the entire combined
summons irregular and thus objectional. Arguing
that the
defective and irregular signing offended Rule 18(1), counsel urged me
to uphold the objection and to set the summons aside.
[10]
Mr Van Aswegen,
counsel for the respondent, in
other words the plaintiff, sharply differed. He contended that
the combined summons was properly
signed by the plaintiff’s
attorney and that there was nothing irregular about the way the
attorney had signed the particulars
of claim. Therefore,
counsel submitted that the manner in which the attorney signed the
particulars of claim was perfectly
regular – and thus did not
offend Rule 18(1). He urged me to dismiss the second
defendant’s complaint.
[11]
We know that Rule 30 delineates that an applicant who lodges a
complaint by virtue of this particular rule must give notice
to all
the parties whereby the particulars of the alleged irregularity are
specified. Such an application may be made only
if:
(a)
The applicant has not
himself or herself or itself taken a further step in the proceedings
with the knowledge of the irregularity;
(b)
The applicant has,
within 10 days of becoming aware of the irregular step by written
notice afforded the opponent an opportunity
of removing the cause of
the complaint within 10 days and
(c)
The application to set
aside is delivered within 15 days after the expiry of the 10 day
period within which the opponent was supposed
to have removed the
cause of the complaint.
[12]
The rule applies to irregularities of form only and not to matters of
substance. It is not practically possible to draw
up an
exhaustive list of what constitutes an irregular step. However,
the words “an irregular step” would embrace,
for
instance:
Failure
by qualified practitioners to sign particulars of claim renders the
summons irregular
Suliman v Karodia
1926 WLD 102.
[13]
The provisions of rule 18 are applicable. It delineates that a
combined summons, and every other pleading except a summons,
shall be
signed by both an advocate and an attorney or, in the case of an
attorney who, under sec 4(2) Right of Appearance Act,
Act No 62/1995,
has a right of appearance in the Supreme Court, only by such attorney
or, if a party sues or defends personally,
by that party – vide
subrule (1)
It
further delineates that non-compliance with the provisions of the
rule is deemed to be an irregular step and that the opposite
party
shall thereby be entitled to act in accordance with rule 30 –
vide subrule (12).
[14]
In this instance, the summons consisted of the prescribed standard
form together with the unprescribed peculiar declaration
attached to
it. The declaration contained the particulars of the
plaintiff’s claim. It is usually called “particulars
of claim”. As regards the standard form, it was common
cause that it was signed by Attorney J Nortje and that below
his
signature or rather name, he appended no certificate in terms of
section 4(3) Act No 62/1995. He however stated that
he was
qualified to appear in the high court.
[15]
As regards the particulars of claim, it was also undisputed that the
document which embodied them was also signed by the same
person,
Attorney J Nortje and that below his signature no certificate in
terms of section 4(3) Act No 62/1995 had been appended.
Further, he did not state that he was qualified to appear in the high
court. It was precisely that omission which caused
the second
defendant to complain.
[16]
The word “pleading” as used in rule 18 has not been
legislatively defined in the rules. Absent such definition,
however, a document that embodies particulars of claim is regarded as
a pleading in addition to what is usually understood by the
term,
namely: declarations and indendits. It follows,
therefore, that because they are regarded as pleadings,
particulars
of claim have to be properly signed in accordance with either subrule
(1) - Herbstein Van Winsen: The Civil Practice
of the High
Court of South Africa, Fifth Edition Volume I p562 par 11.
[17]
In Ex parte Vally: In re
Bhoolay v Netherlands Insurance
Co of SA Ltd
1972 (1) SA 184
(W) at 185 Galgut J in an
attempt to unpack or elucidate the term pleading, said:
“
I
have always understood a pleading to be a document which contains
distinct averments or denials of averments. If I am correct
in that
view and in the view that Rule 18 (3) purports to describe a
pleading, a request for further particulars cannot be said
to be a
pleading.”
[18]
The purpose of the uniform court rules is to regulate the litigation
process, procedures and the exchange of pleadings.
The entire
process of litigation has to be driven according to the rules.
The rules set the parameters within the course
of litigation has to
proceed. The rules of engagement, must, therefore, be obeyed by
the litigants. However, dogmatically
rigid adherence to the
uniform court rules is as distasteful as their flagrant disregard or
violation. Dogmatic adherence,
just like flagrant violation,
defeats the purpose for which the court rules were made. The
prime purpose of the court rules
is to oil the wheels of justice in
order to expedite the resolution of disputes. Quibbling about
trivial deviations from
the court rules retards instead of enhancing
the civil justice system. The court rules are not an end in
themselves.
[19]
In the instant matter, the particulars of claim were actually
signed. The signatory’s name was given as J Nortje
who
described himself as attorney for the plaintiff. The gist of
the second defendant’s complaint in terms of rule
30 was that
the signatory did not indicate anywhere on the pleading, termed
particulars of claim, that he had a right in terms
of section 4 Act
No 62/1995 to appear in the high court on behalf of the plaintiff.
Indeed the contention was correct.
But that was not where it
all ended.
[20]
The pleading which was at the heart of the matter or complaint was no
ordinary pleading. It was not a district and separate
pleading. It was not drawn up alone, served alone and filed
alone like any other pleading such as defendant’s plea,
plaintiff replication or plaintiff’s plea. Particulars of
claim, or statement of claim, or indendits according to English
Law
and Dutch Law respectively, constitute some kind of special
pleading. They first have to be issued before they can be
served. But even before they can be issued by the registrar,
they require a prescribed covering sheet technically termed
a summons
to which they have to be attached. It is peremptory to have
them attached to such prescribed and standardized legal
document.
These then are the peculiar hallmarks of the special pleading
domestically termed particulars of claim.
[21]
The particulars of claim in the instant matter were duly attached to
the summons. The two legal document put together
are termed
combined summons. It was undisputed that the summons was
properly signed. The signatory’s name was
given as J
Nortje who described himself as attorney for the plaintiff. The
signature was substantially the same as the one
on the particulars of
claim. But the description of the signatory did not end there.
The signatory went a step further.
The signatory qualified
himself further by indicating that he was an attorney with a right of
appearance conferred on him in terms
of section 4 Act No 62/1995.
[22]
The second defendant did not challenge the way the summons had been
signed as explained in the preceding paragraph. Consequently,
it has to be accepted that the summons, as prefixed to the
particulars of claim, was duly signed by an attorney lawfully
certified
to appear in this court. That was not the case in
Fortune v Fortune
[1996] 2 ALL SA 128
(c). As
regards the summons, therefore, the provisions of rule 18(1) were
complied with. There was no complaint of
any irregularity
raised.
[23]
It was never the second defendant’s case that the particulars
of claim on the one hand and the summons to which they
were affixed
on the other hand were not signed by one and the same person.
It must accordingly be accepted that the same
attorney who has a
right of appearance in terms of section 4 and competent to sign a
combined summons alone in terms of rule 18(1)
also signed the
particulars of claim. The mere omission,
ex facie
the
signed particulars of claim, to expressly qualify his right in terms
of section 4 did not, in my respectful view, have an adverse
impact
on the combined summons as a whole. After all, a combined
summons is a single legal document which is why it has to
be issued
and served as such. The omission complained of did not render
it an irregular step as it was submitted. It
has to be
accepted, therefore, that the proper signing of the summons redeemed
the cosmetically defective signing of the particulars
of claim.
[24]
I would, therefore, dismiss the first cause of the complaint and
decide the first issue in favour of the respondent.
The facts
in
Suliman v Karodia
,
supra
, were clearly
distinguishable. There unlike here, the particulars of claim
were not signed at all.
[25]
The second issue in the application was whether the second defendant
was given an inadequate time within which to file the
required notice
of its intention to defend the action. To that issue I turn
now.
[26]
Ms Van der Merwe contended that the plaintiff’s summons
constituted an irregular step in that it did not afford the second
defendant the time as contemplated by rules and the statute.
The inadequate time the plaintiff afforded the second defendant,
rendered the service of the summons irregular and thus objectionable.
Since a service of a defective summons does not cure an irregular
step, rule 17(1) was offended by the inadequate time of 10 days
afforded to the second defendant. Therefore, counsel urged me to
uphold the second objection of the complaint.
[27]
On the contrary, Mr Van Aswegen, contended that the moment the second
defendant entered an appearance to defend the action,
the object of
section 24 Superior Court Act, 10/2013 was achieved and that whatever
non-compliance there was with the provisions
of the act or the rules
by the plaintiff became an irrelevant consideration.
[28]
According to rule 17(1) a combined summons shall specify a time
period as stated in the rule within which a defendant has to
give
notice of intention to defend the action.
[29]
According to rule 19(1) a defendant in every civil action shall be
allowed ten days, after service of a summons, to deliver
a notice of
intention to defend. The rule pertinently provides further that
it is subject to the provisions of section 24
Superior Courts Act
10/2013.
[30]
Section 24 Act No 10/2013 in turn provides that the time allowed for
the entering of appearance to defend a civil summons,
served outside
the area of jurisdiction of the high court division in which such
summons was issued, shall not be less than one
month if the summons
is to be served at a place more than 150km from the court out of
which it was issued.
[31]
It was common cause in this matter the summons was served in
Sandton. Gauteng Province outside the jurisdiction of this
high
court division. I cannot be disputed that Sandton is
approximately 450km from Bloemfontein Free State where the summons
was issued. It follows, therefore, that the second defendant
was entitled to a period of one month from 17 July 2016.
Instead the second defendant was given no more than ten days within
which to file notice of intention to defend. On those
facts the
summons, at glance, appeared to be irregular. Was it?
[32]
The first difficulty I had concerned the second defendant’s
response. Aware of the irregularity, the second defendant
proceeded to take a constructive step in the action proceedings that
were irregular
ab initio.
It filed a notice of intention
to defend. That, the second defendant could not do because it
was fully aware of the irregularity
and it had already even taken a
decision to attack the plaintiff’s summons. The ground of
the contemplated challenge
in terms of rule 30 was violation, by the
plaintiff, of the second defendant’s 30 day statutory right to
consider the claim
in a peaceful and undisturbed atmosphere.
The second defendant, therefore, ignored the forewarning in rule 30.
It did
so at its own peril. Now it is precluded from invoking
the remedy it had in terms of the rule. On its own accord, it
abrogated its procedural right to invoke the rule. It shot
itself in the foot the moment it filed notice of its intention
to
defend. It should have filed its application straight away.
[33]
The second hurdle on the path of the second defendant was not
apparent on the papers. In the combined summons the plaintiff
averred:
“
The
second defendant is
UNIVERSITAS
PRIVATE HOSPITAL
(the
Hospital), a hospital situated at
1
Loggeman Street, Universitas, Bloemfontein
,
operated in terms of a public private partnership under the auspices
of Netcare Ltd, a public company with its principal place
of business
situated at
76 Maude Street,
Corner West Street, Sandton, Gauteng Province
.”
(my
emphasis)
[34]
In keeping with those averments the plaintiff caused two copies of
the combined summons to be served upon the second defendant.
In
Bloemfontein, the sheriff served the combined summons upon one Ms C
Grant, a receptionist, ostensibly an employee of the second
defendant, at Netcare Universitas Hospital on 5 July 2016. It
was undisputed that the second defendant carried and still
carries on
business at 1 Loggeman Street, Universitas, Bloemfontein within the
jurisdiction of this court. That place of
business, commonly
known as Universitas Hospital from where the second defendant
ordinarily operates within the jurisdiction of
this court, is hardly
10km from the seat of this court.
[35]
As regards the first service in Bloemfontein, the summons was
perfectly regular. The 10 day period as specified in rule
19(1)
and afforded to the second defendant was, therefore not an irregular
step. Commonsense dictates that the subsequent
second service
in Sandton was really unnecessary. It was clearly done
ex
abudandi cautela
– out of abundance of caution indeed.
[36]
In my view it was not open to the second defendant to selectively
rely on the second service in Sandton in total disregard
of the legal
effect of the first service in Bloemfontein. In the light of
all these considerations, I am also inclined to
determine the second
issue as well in favour of the plaintiff.
[37]
I am persuaded that even if the summons was served only once upon the
second defendant in Sandton; that even if the second
defendant
was erroneously afforded insufficient time of 10 instead of 30 days
to enter an appearance to defend – such an
irregularity would
have been neutralized the moment the second defendant served on the
plaintiff its notice to defend as it actually
did on 18 July 2016
because then the object of section 24 Act No 10/2016 and indeed the
rules was achieved. See
Consani Engineering (Pty) Limited
v Anton Steinecker Maschinenfabrik
1991 (1) SA 823
(T) at
824. Although that case was decided before the promulgation of
the statute, the principle remains the same even after
the
promulgation. It is, therefore, as valid now as it was then.
[38]
Assuming in favour of the second defendant that there was substance
in the causes of its complain, then the third issue in
the
application concerns the question of prejudice.
[39]
I hasten to point out that it has been held on more than two
occasions, that it was never the intention of the supreme legislative
organ, in formulating rule 30, that every irregular step, however
big, should necessarily be visited with the extreme remedy of
nullifying the pleading concerned even where there was no proven
prejudice to the complainant.
Gardiner
v Survey Engineering (Pty) Ltd
1993 (3)
SA 549
(SE);
Sasol
Industries (Pty) Ltd v Electrical Repair Engineering (Pty) Ltd
1992 (4) SA 466
(W);
SA
Metropolitan Lewensversekeringmaatskappy Bpk v Louw N.O.
1981 (4) SA 329
(O) and
Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik
1991 (1) SA 823
(T).
[40]
The word prejudice appeared nowhere in the second defendant’s
supporting affidavit. The salient principle of our
law is that
in a case where any proven irregularity does not cause any
substantial prejudice to the complaining party the court
is entitled
to overlook it. This is so because the court rules are designed
to ensure fairplay and thereby prevent injustice.
The court
rules are not an end in themselves. See:
Minister
van Wet of Orde v Jacobs
1999 (1) SA 944
(O),
Northern
Assurance Co Ltd v Somdaka
1960 (1) SA 588
(A) and
Protea
Assurance Co Ltd v Vinger
1970 (4) SA 663
(O).
[41]
If, and only if, I was wrong in my earlier conclusion in connection
with the first and the second issues, I am nonetheless
satisfied
that, such irregularities notwithstanding, there has been substantial
compliance, in this matter, with the provisions
of the rules as
regard the signing of the combined summons and the time afforded to
the second defendant to consider the claim
before entering an
appearance to defend.
[42]
There being no prejudice to the second defendant, I am inclined to
determine the third and last issue in favour of the plaintiff.
I do so by condoning such inconsequential irregularities and by
upholding the summons despite its shortcomings. I am not
inclined to allow a purely technical defence to frustrate the
plaintiff’s summons since doing so would defeat the noble
objectives of the norms and standards of the caseflow management
system. This is particularly true in a case where the defendant
will suffer no prejudice as a consequence of the irregularity
complained of. In such a case, the courts use their
discretionary
powers to condone the irregularity.
Liberty
Group Ltd v Singh and Another
2012 (5) SA 526
(KZD) pars [43]
and [44].
[43]
Given all the peculiar circumstances of this particular case, I
would, therefore, entirely dismiss the second defendant’s
complaint. None of the causes of such complaint had any
substantive merits. None of the objections underlining the
complaint was well taken. The plaintiff’s opposition is
sustained.
[44]
In the result I make the following order:
44.1
The second defendant’s application in terms of rule 30 is
dismissed.
44.2
The second defendant is directed to pay the plaintiff’s costs
of opposition.
____________
M.H.
RAMPAI, J
On
behalf of plaintiff: Adv. W.A. van Aswegen
Instructed
by:
Kramer
Weihmann Joubert Inc.
Bloemfontein
On
behalf of defendant: Adv. C van der Merwe
Instructed
by:
Oosthuizen
Du Toit Berg & Boon Attorneys
Randburg
and
McIntyre
van der Post Attorneys
Bloemfontein