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[2016] ZAKZPHC 83
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Charioteer Investor 2 CC t/a Ballid Protection Services CC v Electrical Power Systems CC (9244/2014) [2016] ZAKZPHC 83 (31 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 9244/2014
In
the matter between:
CHARIOTEER
INVESTOR 2 CC t/a
BALLID
PROTECTION SERVICES CC
PLAINTIFF
and
ELECTRICAL
POWER SYSTEMS CC
DEFENDANT
ORDER
1.
The plaintiff’s application in terms of rule 30 to
declare the defendant’s notice of exception an irregular step
is
upheld with costs.
2.
The defendant’s exception is dismissed with costs.
3.
The defendant is directed to pay the party/party costs
occasioned by both the application to declare the notice of exception
an
irregular step as well as the exception on the tariff applicable
to the Regional Court.
JUDGMENT
HENRIQUES
J
Introduction
[1]
Two interlocutory applications served before me on the opposed motion
roll on 22 February 2016, having been enrolled by consent
for
simultaneous determination. One is the defendant’s exception to
the plaintiff’s particulars of claim; the other
is the
plaintiff’s application to declare the defendant’s notice
of exception to be an irregular step.
Issues
for determination
[2]
The following are the issues for determination in these applications,
namely:-
[2.1]
Is paragraph 3 of the particulars of claim excipiable?
[2.2]
Is the notice of exception out of time, and consequently an irregular
step?
The
Pleadings
[3]
Relevant to a determination of the applications is a consideration of
the pleadings and a timeline which preceded the enrolment
of these
applications.
[4]
On 3 July 2014, the plaintiff issued summons in which it sought
payment of the sum of One Hundred and Seventeen Thousand Six
Hundred
and Seventy Seven Rand and Thirty Cents (R 117 677.30) together
with interest and costs of suit. The cause of action
pleaded was in
respect of security services rendered to the defendant at various
times in terms of an oral agreement. Annexed to
the particulars of
claim were invoices submitted monthly to the defendant for the
various services rendered at the Umgababa site.
It is worth
mentioning that at the time, the plaintiff was cited as Ballid
Protection Services CC, a close corporation trading
as Ballid
Protection Services.
[5]
An appearance to defend prompted an application for summary judgment
which became opposed. The deponent to the founding affidavit
was
Riaan Claasens, who describes himself as a director of the plaintiff.
In the answering affidavit, the deponent Rory Van Lingen,
the sole
member of the defendant, in seeking condonation for the late filing
of the answering affidavit, indicated that he had
been engaged in
settlement discussions with Riaan Claasens, with whom he was a
co-director in a separate company Octegon (Pty)
Ltd.
[6]
In addition two points
in
limine
were raised. The first
point challenged Claasen’s authority to depose to the founding
affidavit as the plaintiff was a close
corporation and a member is
authorised to depose to the affidavit on its behalf. As Claasen did
so as a “director”
of the plaintiff, he did not have
locus standi
to depose to the affidavit in support of summary
judgment.
[7]
The second point was to aver that the particulars of claim were
excipiable for want of compliance with the rules of court relating
to
the pleading of agreements and thus vague and embarrassing. The
defendant elected not to file an exception calling upon the
plaintiff
to cure the pleadings at this stage.
[8]
Presumably, in answer to the first point
in
limine,
on
21 January 2015, the plaintiff served a notice in terms of rule 28(1)
of its intention to amend the citation of the plaintiff
in the
pleadings from “Ballid Protection Services” to
“Charioteer Investor 2 CC t/a Ballid Protection Services”.
In essence, the nature of the amendment was to correct a misnomer.
[9]
Such application was opposed by way of notice in terms of rule 28(3)
on 30 January 2015. The defendant objected to the proposed
amendment
on the basis that the amendment was not competent and constituted an
abuse of the court processes as the plaintiff was
attempting ‘to
withdraw from proceedings and to introduce a new party to the
proceedings and/or substitute a Plaintiff by
simple amendment. . .
.’
[1]
[10]
A formal application was instituted in terms of rule 28(4) on 9
February 2015 and was enrolled for hearing on 18 March 2015,
on which
date the application to amend the particulars of claim was granted
with costs against the defendant, in
absentia
.
[2]
On 20 March 2015, the plaintiff filed the amended pages to its
particulars of claim. On 7 May 2015, a period of approximately eight
(8) months from the date of service of the summons and particulars of
claim, the defendant served and filed a notice in terms of
rule
23(1), calling upon the plaintiff to remove the cause of complaint
within fifteen (15) days.
[11]
The notice of exception recorded the defendant’s complaint to
the particulars of claim as being vague and embarrassing
as follows:
‘
The
content thereof is vague and embarrassing, as the Plaintiff fails to
plead in accordance to Rule 18(6) of the Honourable Court
as to names
and capacity of the representatives in terms of the Agreement between
Plaintiff and Defendant.
In
addition these omissions render the paragraph insufficient of
particularity to enable the Defendant to plea or to consider
Plaintiff’s
claim at all.
In
light of the Defendant’s complaints, Plaintiff’s claim is
confusing and therefore vague and embarrassing and Defendant
cannot
be expected to nor is it able to plead to same.’
[3]
[12]
On 14 May 2015, the plaintiff filed a notice of irregular step in
terms of rule 30(2)(b), on the basis that the defendant was
required
to file its plea by no later than 14 April 2015 in terms of rule
28(8), which was within fifteen (15) court days of the
amended pages
being filed. The notice called upon the defendant to withdraw its
notice in terms of rule 23(1) as it was out of
time, not accompanied
by an application for condonation, and called on the defendant to
remove the cause of complaint within ten
days, failing which it would
proceed in terms of rule 30(1).
[13]
The defendant filed the exception on 11 June 2015, without any
application for condonation, enrolling the exception for hearing
on
15 July 2015. On 18 June 2015, the plaintiff filed its application in
terms of rule 30(1) enrolling the application to be heard
simultaneously with the exception.
[14]
As both applications were opposed, the matters were enrolled for
hearing on 22 February 2016 by consent. At the hearing of
the matters
the parties were
ad idem
that:
[14.1]
the notice of exception was served and delivered outside the 20 day
period
envisaged in terms of the rule for the filing of further
pleadings;
[14.2]
the defendant’s cause of complaint related to paragraph 3 of
the particulars
of claim in that the plaintiff did not comply with
rule 18(6) and indicate who represented the parties at the time of
conclusion
of the agreement.
[15]
At this juncture, it is perhaps useful to set out the submissions of
the parties in respect of the applications. Mr
Bernhard
who
appeared for the defendant submitted that the exception was not an
irregular step and was not out of time. He indicated that
an
exception is a pleading and that the defendant had 20 days within
which to serve and file the notice of exception. Whilst he
conceded
the exception was filed in excess of the 20 day period, he submitted
that the exception was not out of time as being a
pleading. The
plaintiff was therefore required to serve a notice of Bar, which it
had failed to do and consequently, the defendant
was thus free to
raise an exception at any time, in the absence of a notice of Bar.
[16]
In addition, Mr
Bernhard
submitted that the plaintiff had
failed to comply with rule 18(6) and had not identified the
representatives or the capacities
of the representatives to the
alleged agreement. He submitted that the defendant would have no
alternative but to file a bare denial
and would then have to amend
its plea once such information came to hand. He indicated that a
request for further particulars requesting
such information could
only be filed once pleadings had closed and this would then
necessitate an amendment to the plea once the
information came to
hand, if in fact, it was supplied in answer to a request for further
particulars.
[17]
He further submitted that the pleadings are vague and embarrassing
because of this and that such went to the root of the cause
of action
and the defendant would be embarrassed and prejudiced should it have
to plead to such particulars. A further concession
made by Mr
Bernhard
was that the proper course of action, should the
exception be upheld, would be to afford the plaintiff an opportunity
to remove
the cause of complaint within a stipulated time period
rather than dismissing the action.
[18]
Mr
Ender
who appeared for the plaintiff submitted firstly,
that the defendant’s exception was out of time and that same
was an irregular
step. He obviously disagreed with certain of Mr
Bernhard’s
submissions and indicated that the exception
had been filed out of time and that the plaintiff was not required to
place the defendant
under Bar. In addition, he submitted that the
particulars of claim, specifically paragraph 3 thereof, was not vague
and embarrassing
and complied with the provisions of rule 18(6) and
therefore disagreed that the defendant was prejudiced as a
consequence thereof.
[19]
Mr
Ender
also submitted that the pleadings comply with the
requirements of the rules of court and that the plaintiff has pleaded
each
facta probanda
for the cause of action. Furthermore, the
manner in which it has been pleaded does not render the particulars
of claim meaningless
or capable of more than one meaning. In
addition, he submitted that the contracting parties are juristic
persons and consequently
all that a plaintiff was required to state
in compliance with rule 18(6) was that the juristic entities were
duly represented.
[20]
The purpose of the exception was to see if there was a point of law
which would dispose of the case in whole or in part, and
if there was
any embarrassment, that such embarrassment was real and the prejudice
to the defendant was of such a nature that it
could not plead. The
defendant was neither embarrassed nor prejudiced by the pleadings and
the exception did not dispose of the
matter in whole or in part.
Analysis
[21]
I now turn to the exception. Rule 23(1) of the Uniform Rules of Court
provides that:
‘
Where
any pleading is vague and embarrassing. . .the opposing party may,
within the period allowed for filing any
subsequent pleading
, deliver an
exception thereto. . .Provided that where a party intends to take an
exception that a pleading is vague and embarrassing
he shall within
the period allowed as aforesaid by notice afford his opponent an
opportunity of removing the cause of complaint
within 15 days. . . .
’
(My
emphasis)
[22]
In considering an exception, a court commences from the premise that
the allegations contained in the particulars of claim
are correct and
considers the pleadings as a whole. No facts outside those contained
in the pleadings can be brought into issue.
An excipient will have to
show that the pleading is excipiable on every interpretation that can
reasonably be attached to it.
[4]
[23]
The purpose of an exception is to dispose of the case in whole or in
part. An exception on the grounds that the pleadings are
vague and
embarrassing is not directed at a particular paragraph in the
particulars of claim but goes to the whole cause of action
which must
be shown to be vague and embarrassing.
[5]
[24]
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal
validity.
[6]
[25]
In dealing with exceptions that pleadings are vague and embarrassing,
courts have held that such an exception can only be taken
when the
vagueness and embarrassment strikes at the root of the cause of
action as pleaded,
[7]
and such
exception will not be allowed unless an excipient will be seriously
prejudiced if the offending allegations are not expunged.
[8]
[26]
In deciding on exceptions based on vagueness and embarrassment, our
courts have over the years ultimately held the following
are the
considerations, namely:
[26.1]
the onus is on the excipient to show both vagueness amounting to
embarrassment
and embarrassment amounting to prejudice;
[9]
[26.2]
whether or not the exception should be upheld is whether the
excipient is
prejudiced;
[10]
[26.3]
the excipient must make out a case for embarrassment by reference to
the
pleadings alone.
[11]
[27]
It is these considerations which must be considered by this court in
deciding this application. The defendant alleges that
paragraph 3 of
the particulars of claim is vague and embarrassing as it does not
comply with rule 18(6). Rule 18 of the Uniform
Rules of Court are the
rules relating to pleadings. Rule 18(4) reads as follows:
‘
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.’
[28]
Rule 18(6) relates to pleadings based on contract and reads as
follows:
‘
A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading.’
[29]
It is the defendant’s complaint that the plaintiff did not
comply with rule 18(6) as it did not mention the names or
the
capacities of the persons that duly represented the parties in
concluding the agreement. It is for this reason that the defendant
alleges that the particulars of claim lacks sufficient clarity to
enable it to plead and that it is prejudiced thereby.
[30]
If one reads the provisions of rule 18(6), the sub-rule does not say
that a pleader must provide the name and capacity of the
parties who
concluded the contract. All that is required to be pleaded is whether
or not the contract is written or oral, when,
where and
by
whom
[12]
it was concluded.
[31]
In my view, the plaintiff has pleaded each of the facts required to
sustain a cause of action based on an agreement - facts
not evidence
must be pleaded. One must draw a distinction between the
facta
probanda
(the facts that have to be proved) and the
facta
probantia
(the evidence needed to prove those facts)
.
[32]
If one has regard to the pleadings as a whole, the plaintiff sues the
defendant, a close corporation, for security services
rendered
pursuant to an oral agreement. It has pleaded the express,
alternatively implied, alternatively tacit terms of the agreement
and
has also, in addition attached to the particulars of claim,
individual invoices evidencing the amount claimed, the date the
services were rendered, the nature of these services rendered, as
well as the specific site at which such services were rendered.
Essentially, paragraph 3 refers to the fact that the parties were
duly represented. The contracting parties to the agreement are
identified and being juristic persons, it is alleged they were duly
represented when the agreement was concluded in or about July
2013
but no later than 23 July 2014 at Howick, KwaZulu-Natal.
[33]
The defendant bears the onus to prove that the lack of clarity
amounts to vagueness and embarrassment and consequently
prejudice.
[13]
In my view, the
defendant has failed to make out a case that the omission of the
names and capacity of the persons, who represented
the parties when
the agreement was concluded, amounts to vagueness and embarrassment
and that it is prejudiced.
[14]
[34]
The exception does not, in my view, go to the root of the cause of
action and consequently, does not dispose of the matter
in whole or
in part.
[15]
The omission of
the names and capacity of the representatives does not render the
particulars of claim meaningless or capable of
more than one meaning,
and in addition, discloses a cause of action to which the defendant
is able to plead without embarrassment.
I am fortified in this view
having regard to the opposing affidavit in the summary judgment
application and the decision in
Absa
Bank Ltd v Boksburg Transitional Local Council
(
Government
of the Republic of South Africa, Third Party
)
[16]
where the court held the following:
‘
.
. .if a plaintiff's pleading is seriously vague, it is wrong to
blatantly say that a defendant is able to plead, even if it is
then
only a general denial. Once it is not such a flagrant fundamentally
defective situation, the omission of detail will still
either create
vagueness to the extent that the other party does not adequately know
what the plaintiff's case is or, alternatively,
the case will fall
outside that deficient category. But how a specific pleading is to be
classified is then an
ad hoc
decision involving a matter of degree. The decision must necessarily
be influenced,
inter alia
,
by the nature of the allegations, their content, the nature of the
claim, the relationship between the parties. It is essentially
a
factual question. It is on that level that I conclude that despite
the probable right to request further particulars (under Rule
21)
(not necessarily a right to obtain the information as asked because
the defendant may be entitled to answer that it will have
to
establish the fact by way of inference from proclomations, press
reports, silence, and other considerations), it seems to me
that the
third party can fairly be expected to plead to the third party notice
as it stands at the moment. It can respond adequately
even if a
hypothetical outsider
happens to be
relatively disadvantaged. It may be that, as the exception claims,
the third party is unable to establish `precisely'
what case it is
called upon to meet. But it knows `adequately' what the plaintiff’s
case is. It can understand the defendant’s
case and is able to
take instructions from the client and to record a meaningful response
to it.’
[35]
In opposition to the application for summary judgment, the defendant,
through its sole member Rory van Lingen, deposed to an
affidavit in
opposition to summary judgment. A point
in limine
was raised
in respect of Claasen, the deponent to the founding affidavit, and
the defendant further pleaded that the particulars
of claim were
excipiable for reasons already alluded to in this judgment. A fairly
detailed affidavit was filed in respect of the
security services
rendered at the Umgababa site. These extend to some 28 paragraphs.
What is noteworthy are paragraphs 5, 6 and
7 of the opposing
affidavit as it would appear that the names and capacities of the
representatives who concluded the agreement,
may be known to the
defendant and further, paragraph 48 of such affidavit which reads as
follows:
‘
.
. .and that costs be awarded on a punitive scale against the
Plaintiff as it has been well aware of these defences which have
been
raised with it from the initiation of its invoicing and immediately
following the abandonment of site.’
[36]
It would appear from the opposing affidavit that the defendant has
been able to deal with its defence to the action in much
detail and
importantly, it has essentially placed the terms of the agreement in
dispute but it does not dispute that services were
rendered. The
defendant appears to have had no difficulty understanding the cause
of action pleaded and formulating a response
to same, at least for
summary judgment purposes. This is indicative in my mind that the
defendant is not only able to file a plea
not constituting a bare
denial, but also deal with what it says the terms of the agreement
were,
[17]
its defences thereto
and its counterclaim.
[37]
In my view, the defendant has failed to make out any case that it
will be severely prejudiced if the exception is not allowed,
[18]
and consequently, the exception is without merit and falls to be
dismissed with costs.
[38]
I turn now to the next application namely, whether or not the
exception is an irregular step and in doing so bear the following
in
mind. As early as October 2014, the defendant was of the view the
particulars were excipiable. The amendment in terms of rule
28 did
not in any way affect the cause of action or the content of the
particulars of claim. It was confined to the citation of
the
plaintiff. The amended pages were served in terms of rule 28(7) on 20
March 2015. The notice of exception was served in May
2015.
[19]
[39]
The plaintiff sets out in detail why the exception is an irregular
step.
[20]
[40]
Rule 30(1) of the Uniform Rules of Court reads as follows:
‘
A
party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.’
[41]
Rule 30(2) of the Uniform Rules of Court deals with the procedure to
be followed and provides that:
‘
An
application in terms of subrule (1) shall be on notice to all parties
specifying particulars of the irregularity or impropriety
alleged,
and may be made only if-
(a)
the applicant has not himself taken a
further step in the cause with knowledge of the irregularity;
(b)
the applicant has, within ten days of
becoming aware of the step, by written notice afforded his opponent
an opportunity of removing
the cause of complaint within ten days;
(c)
the application is delivered within 15
days after the expiry of the second period mentioned in paragraph
(b)
of subrule (2).’
[42]
It is apparent that the plaintiff has complied with rule 30(2). The
defendant’s stance has been dealt with earlier on
in this
judgment and it has submitted the authorities it relies on in its
heads of argument.
[43]
Rule 30(3) of the Uniform Rules of Court provides that:
‘
If
at the hearing of such application the court is of opinion that the
proceeding or step is irregular or improper, it may set it
aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make any such
order as to
it seems meet.’
[44]
The premise on which the defendant relies on for its submission is
rule 23, the relevant portion for purposes of its argument
reads:
‘
.
. .the opposing party may,
within the
period allowed for filing any subsequent pleading
,
deliver an exception thereto. . . .’
(My
emphasis)
[45]
I agree with the submission that an exception is a pleading. I have
also had regard to the authorities relied on by both counsel
in
support of their respective submissions.
[21]
Having considered them, they are distinguishable from the present
matter on the facts.
[46]
In my view, the starting point in this matter is rule 28(8). Rule
28(8) of the Uniform Rules of Court provides that:
‘
Any
party affected by an amendment may,
within
15 days after the amendment has been effected
or within such other period as the court may determine, make any
consequential adjustment to the documents filed by him, and
may
also take the steps contemplated in rules 23 and 30
.’
(My
emphasis)
[47]
The steps referred to in rule 28(8) is to file a notice of exception
in terms of rule 23 or proceed in
t
erms of
rule 30. These steps must however be taken within 15 days of the
amendment, in this instance, within 15 days of the amended
pages
being filed.
[48]
Should such steps not be taken within that time, the exception will
be out of time, unless the court has on application granted
leave for
it to be filed outside of the time period stipulated in the rule.
This is what must be meant by the words in the sub-rule
‘…or
within such other period as the court may determine’.
[22]
[49]
Rule 28 makes specific provision for the taking of an exception once
an amendment has been effected and it is the procedure
and the time
frames in this sub-rule that the respondent must comply with if it
wants to proceed in terms of rule 23. To give another
interpretation
to rule 28(8) would in my view, not be correct. The sub-rule uses the
word “may” which implies that
a party has a choice. In
the event of a party electing not to invoke rules 23 or 30, then a
plea would have to be filed within
the 15 day period, failing which,
the party would have to be placed under bar. Failure to file a notice
in terms of rules 23 or
30 which is referred to as “any other
pleading”, results in a party being automatically barred and a
notice of bar
being unnecessary. This is consistent with rule 26.This
would be consistent with the provisions of rule 23 as well. It could
never
have been the intention that once the amended pages were filed
a party was at liberty to invoke rule 23 until such time as it had
been placed under bar. This would mean at any time of its choosing,
even outside of the time period of 15 days.
[50]
Consequently, the defendant’s notice of exception is out of
time and has not been accompanied by an application for condonation.
In the premises, the plaintiff is entitled to the relief it seeks in
the notice of motion.
Costs
[51]
Both parties seek punitive costs orders against each other in the
respective applications. In my view, the amount of the claim
falls
within the jurisdiction of the Regional Court and I see no reason to
mulct the defendant with costs on the tariff applicable
to the High
Court.
[52]
I have considered the submissions of the plaintiff regarding a
punitive costs order. The court in the rule 28 application expressed
its displeasure and awarded a costs order in favour of the plaintiff.
I could find no authority in this division dealing with the
issue
raised by the defendant in the rule 30 application, namely that a
notice of Bar would have to be served before the exception
was out of
time. In light of that, it was reasonable for the defendant to take
this point and have a court in this division decide
that issue.
[53]
In addition, there does not appear to be anything in the conduct of
the defendant warranting a punitive costs order in the
exception
application either. Consequently, there appears to be no reason to
grant a punitive costs order on the attorney client
scale.
[54]
In the result the following orders will issue:
[54.1]
The plaintiff’s application in terms of rule 30 to declare the
defendant’s
notice of exception an irregular step is upheld
with costs.
[54.2]
The defendant’s exception is dismissed with
costs.
[54.3]
The defendant is directed to pay the party/party costs occasioned by
both
the application to declare the notice of exception an irregular
step as well as the exception on the tariff applicable to Regional
Court.
______________
HENRIQUES
J
Case
Information
Date
of argument
:
22
February 2016
Date
of judgment
:
31
August 2016
Appearances
Counsel
for Plaintiff
:
Adv
G.E.Ender
Instructed
by
:
Talbot
Attorneys
Office
No: FLOOC
Hayfields
Mall
28
Blackburrow Road, Hayfields
Pietermaritzburg
Ref:
T.Talbot//BAL1/001
(E)
Terence@talbotlaw.co.za
(T)
033-386 5499
(F)
086 529 0436
Counsel
for Defendant
:
Mr
O.L.Bernhard
Instructed
by
:
Bernhard Attorneys
70
Hilton Avenue
Hilton
Ref:
OLB/ct/ELE1/005
(E)
secretary@bernhard.co.za
(T)
033-343 4434
(F)
033-343 3920
[1]
Notice
of objection to plaintiff’s notice in terms of rule 28, pages
3 and 4 of Bundle titled Index to Applications: Amendment,
Exception, Irregular Step.
[2]
Court
order 18 March 2015, page 17 of Bundle titled Index to Applications:
Amendment, Exception, Irregular Step.
[3]
Notice
in terms of rule 23, page 24 of Bundle titled Index to Applications:
Amendment, Exception, Irregular Step.
[4]
Theunissen
& andere v Transvaalse Lewendehawe Koöp BPK
1988 (2) SA 493
(A) at 500E-F;
First
National Bank of Southern Africa Limited v Perry N.O. & others
2001
(3) SA 960
(SCA) at 965C-D.
[5]
Jowell
v Bramwell-Jones & others
1998 (1) SA 836
(W) at 899F-G.
[6]
Trope
& others v South African Reserve Bank
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 269I-J.
[7]
See
Jowell
supra
at 902F-G;
Factory
Investments
(Pty) Ltd v Record Industries Ltd
1957
(2) SA 306 (T).
[8]
Levitan
v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at 298A-B;
Gallagher
Group Ltd & another v IO Tech Manufacturing (Pty) Ltd &
others
2014 (2) SA 157
(GNP) at
166G-H.
[9]
Theunissen
supra
at 500E-F.
[10]
Trope
v South African Reserve Bank & another and Two Other Cases
1992 (3) SA 208
(T) at 211B-C.
[11]
Deane
v Deane
1955 (3) SA 86
(N) at 87(F)-G.
[12]
My
emphasis.
[13]
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
2003 (2) SA 620
(T) para 6.
[14]
Nxumalo
supra
para
6.
[15]
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553F-I.
[16]
1997
(2) SA 415
(W) at 421I-422D.
[17]
Opposing
Affidavit, page 12 para 23 of Bundle Index: Notices.
[18]
Swissborough
Diamond Mines (Pty) Ltd & others v Government of the Republic of
South Africa & others
1999
(2) SA 279
(T) at 337;
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C) at 298.
[19]
I must also make mention that it would appear that having regard to
the court file, several notices of Bar were served in an
attempt to
get the defendant to file its plea, which notices were subsequently
withdrawn after service of notices in terms of
rule 30. I make no
ruling as to whether they were correctly withdrawn or were irregular
steps in terms of rule 30.
[20]
See
founding affidavit of Terence Talbot, pages 6 to 11 of Index to
Applications: Amendment, Exception, Irregular Step and plaintiff’s
Heads of Argument, pages 6 to 11.
[21]
Stockdale
Motors Ltd v Mostert
1958 (1) SA 270
(O);
Felix
& another v Nortier NO & others (2)
1994
(4) SA 502
(SE);
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality &
others: In Re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha
(Pty) Ltd & others
2010
(3) SA 81
(ECM);
Tyulu
& others v Southern Assurance Associated Ltd
1974
(3) SA 726 (E).
[22]
Rule
27 of the Uniform Rules of Court provides for the court in the
absence of an agreement between the parties, to condone the
non-compliance with the rules of court on good cause shown. Subrule
(3) empowers the court to condone ‘any non-compliance’
with the rules, and the use of the word ‘any’ emphasizes
the absence of any restriction on the powers of the court
to do so.