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[2016] ZAGPPHC 67
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Standard Bank of South Africa v Maimela (62128/2015) [2016] ZAGPPHC 67 (11 February 2016)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case no: 62128/2015
REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
11/02/2016
In the matter between
THE STANDARD BANK OF SOUTH AFRICA
Plaintiff
and
KHULISO KENNEDY MAIMELA
Defendant
JUDGMENT
1. The plaintiff issued a simple
summons against the defendant in which the defendant was informed
that he had an opportunity to
enter an appearance to defend the
action within two weeks from date of service of the summons.
2. At first blush this determination
of the period available to the defendant to enter an appearance to
defend appeared to be at
variance with the provisions of Rule 19 (1)
of the Uniform Rules, which sub-rule reads:
'19 Notice of Intention to
Defend
(1)
Subject to the provisions of
section 27 of the Act, the defendant in every civil action shall be
allowed ten days after service
of summons on him within which to
deliver a notice of intention to defend, either personally or through
his attorney: Provided
that the days between 16 December and 15
January, both inclusive, shall not be counted in the time allowed
within which to deliver
a notice of intention to defend.'
3. The question therefore arose
whether the summons was invalid in this form, even though the
defendant had entered an appearance
to defend, consequent upon which
plaintiff had applied for summary judgment. No opposing affidavit was
filed. If the summons was
a nullity, summary judgment could not be
granted.
4. Counsel was requested to address
the issue and did so in helpful short heads of argument, for which
the Court is indebted to
Mr Riley. He pointed out that, while the
Rule determines that appearance to defend should be delivered within
ten days, excluding
the
dies non,
section 24 of the Superior
Courts Act 10 of 2013 ('the Act'), decrees that a notice of intention
to defend must be delivered within
two weeks.
5. A 'day' is defined in the Rules as
a business day. Weekends and public holidays are excluded when days
are calculated for purposes
of the Rules.. Section 24 contains no
reference to public holidays or weekends and does not include a
determination of the
dies non.
The issues of how a public
holiday or
dies non
are to be dealt with in any future
calculation do not arise in the present matter and are best left for
later determination if such
should be required.
6. It is, however, clear that there is
an apparent conflict between the Rule and section 24 of the Act. As
Mr Riley has pointed
out such conflict must be resolved as laid down
in section 51 of the Act, which provides that the Rules in existence
at the commencement
of the Act will remain applicable unless they are
inconsistent with the Act; until amended or repealed. Summons was
issued in this
matter after the commencement date of the Act. In the
light of the conflict the Act's determination that appearance must be
entered
within two weeks from date of service must be applied.
7. The summons is therefore valid,
which means that plaintiff is entitled to the summary judgment it
seeks.
The following order is made:
Summary judgment is granted as prayed
for.
Signed at Pretoria on this 31
st
day of January 2016.
_______________
E BERTELSMANN
Judge of the High Court