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[2016] ZAECMHC 8
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Johnson v Xesibe Construction CC and Others (1779/15) [2016] ZAECMHC 8 (31 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE LOCAL
DIVISION, MTHATHA]
CASE NO: 1779/15
DATE: 31 MARCH 2016
Not Reportable
In the matter between:
VUYANI
JOHNSON
....................................................................................................................
Plaintiff
And
XESIBE CONSTRUCTION
CC
.......................................................................................
1st
Defendant
CAMDEKOM ENGINEERING
CC
...............................................................................
2nd
Defendant
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF ROAD AND PUBLIC WORKS,
EASTERN CAPE,
BHISHO
............................................................................................
3rd
Defendant
INGQUZA HILL LOCAL
MUNICIPALITY
..................................................................
4th
Defendant
THE MANAGER OF INGQUZA HILL LOCAL
MUNICIPALITY
...............................................................................................................
5th
Defendant
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF LOCAL GOVERNMENT
AND TRADITIONAL
AFFAIRS
.....................................................................................
6th
Defendant
Heard on: 03/03/16
Delivered on: 31/03/16
JUDGMENT
NHLANGULELA DJP:
[1] This matter served before me in the
opposed motion court as an application brought by the second
defendant in terms of Rule
23 (1) of the uniform rules of this
Court.I will refer to the parties as are cited in the summons purely
for the purposes of convenience.
[2] The issue that this Court is called
upon to decide is whether the second defendant, as the excipient, is
entitled to an order
of costs, given that the plaintiff has filed a
notice of intention to amend the particulars of claim in response to
the application
for the setting aside of the particulars of claim.
[3] The gist of the plaintiff’s
refusal to pay the costs in that since the plaintiff, legally
represented by a firm of attorneys
residing in East London, had not
appointed a correspondent upon which to serve the notice of amendment
on 23 October 2015, the
last day on which to respond to the notice of
exception. The response was ultimately served on 20 November 2015.
The application
for exception, later followed by a notice of set
down, had already been served upon the plaintiff on 04 November 2015
when the
notice to amend was served on 20 November 2015. .
[4] The method adopted by the parties
with regard to the service of documents upon the second defendant can
be traced from the documents
that have been filed of court. The
summons commencing action was issued by Mduma Mjobo Attorneys of
Lusikisiki, locally represented
by Fikile Ntayiya & Associates of
50 Madeira Street, Mthatha. On 31 August 2015 Andre Schoombee
Attorneys of East London
delivered a notice to defendant on behalf of
the second defendant to Ntayiya through its correct fax/email
address. The telephone
and fax address of Schoombee was set out on
that notice. On 02 October 2015 Schoombee delivered the notice of
exception to Ntayiya
using a fax/email address. A copy of the
covering letter to Ntayiya, which appears on page 5 of the papers,
shows that service
by means of fax/email was sanctioned by both
parties “as per mutual telephonic discussions about the
delivery of the notice
of exception. Mr Mjobo did not contend
otherwise when he argued that matter. In terms of the rules, the
plaintiff, Ntayiya
to be specific, had to ensure that the notice to
amend was served upon Schoombee within 15 days, reckoned from 02
October 2015.
That was not done.
[5] The date stamp proving delivery of
the notice to amend upon the second defendant, reads 20 November
2015. And the recipient
of that process was Smith Tabata Attorneys
of 34 Stanford Terrace, Mthatha. It is common cause that these are
second defendant’s
local correspondents as is stated in the
notice to amend that reads: “As Arranged Telephonically With
Cindy [of Schoombee]
On The 09/11/2015 to Serve At Offices Of Messrs
Smith Tabata Attorneys…” To my mind Ntayiya must have
telephoned Schoombee
to arrange for the service of the notice in
exactly the same way that Schoombee had done when serving their
notice of intention
to defend. Further, the 9th November 2015 is
the date not without any significance if one has regard to the fact
that on the
same date Schoombee had served the notice that the second
defendant was proceeding with the application to set aside the
particulars
of claim due to absence of a response to the notice dated
02 October 2015. The names of the second defendant’s local
correspondent
was provided on the notice of 09 November 2015.
[6] With respect, I find it difficult
to understand how the objection, raised in the opposed court from the
bar, and for the first
time, could be the justification for the
refusal to pay costs. The further submission, that the service of
the notice to amend
upon the first defendant on 23 October 2015
demonstrates an attempt on the part of the plaintiff to serve the
notice upon the second
defendant on the same date, is
incomprehensible.
[7] On the foregoing, I am unable to
find fault on the part of the second defendant.
[8] I may as well state for the
purposes of completeness that it was open to the plaintiff upon
receipt of the notice to defend
to raise an objection on the issue of
a local correspondent. In the circumstances of this case he cannot
cry foul on the face
of a choice that he made voluntarily to engage
in telephonic arrangements with Schoombee.
[9] The following order is appropriate:
1. The plaintiff to pay the costs of
hearing on 03 March 2016 including those for the notice in terms of
Rule 23.
Z. M. NHLANGULELA
DEPUTY JUDGE PRESIDENT OF THE HIGH
COURT
For the
plaintiff:Mr M. Mjobo of
Mduna Mjobo
Attorneys
c/o Fikile
Ntayiya & Ass
MTHATHA.
For the
defendant:Adv. J.L. Hobbs
Instructed
by:Andre Schoombee Attorneys
c/o Smith Tabata
Attorneys
MTHATHA.